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2013 DIGILAW 385 (JHR)

Sadan Lal v. State of Jharkhand

2013-03-15

R.R.PRASAD

body2013
JUDGMENT R.R. Prasad, J. The appellant, Sadan Lal was put on trial to face charges under Section 7 as well as Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act on the allegation of having demanded and accepted illegal gratification of Rs.5000/- from the complainant Surendra Baraik (P.W.7). Learned trial court having found the appellant guilty for the said charges sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.4000/- for the offence under Section 7 of the Prevention of Corruption Act with a default clause to undergo rigorous imprisonment for three months. Further he was sentenced to undergo rigorous imprisonment for one and half year under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and to pay a fine of Rs.6000/- with a default clause to undergo rigorous imprisonment for five months. Both the sentences were ordered to run concurrently. 2. The case of the prosecution is that the complainant Surendra Baraik (P.W.7) had applied for grant of loan before the District Industries Center, Gumla. On loan being sanctioned, the application was forwarded to the Bank of India, Chainpur Branch for its disbursement. On receipt of such application, this appellant was asked by Ignasias Kindo (P.W.6), the then Branch Manager to submit enquiry report which he did. Meanwhile, when the complainant did approach the appellant, Sadan Lal for getting the loan amount, he told him that in course of enquiry, his shop has been found to be too small which needs to be increased in size. The complainant, as per the advise, did that. After doing that, when he again met the appellant, he told the complainant that a sum of Rs.75000/- has been sanctioned but that would be disbursed to him only when he pays 10% of it. The complainant expressed his inability to meet the demand. Thereupon the appellant told him that he would be paid the money in instalment and the first instalment would be given for purchasing the furniture and out of that amount, he will have to pay money to him. Thereupon a cheque of Rs. 12,875/- was given. After purchasing furniture when the complainant met the appellant on 13.1.1995, he asked him to pay rest of the money. Upon it, the appellant told him that rest of the money would be paid only when 10% of that amount is paid. Thereupon a cheque of Rs. 12,875/- was given. After purchasing furniture when the complainant met the appellant on 13.1.1995, he asked him to pay rest of the money. Upon it, the appellant told him that rest of the money would be paid only when 10% of that amount is paid. Out of it, he may pay him Rs. 5000/- at first instance and the rest of the amount of Rs. 2500/- be paid, after the loan is disbursed. However, the complainant asked for some time. 3. Thereafter the complainant made a complaint in writing (Ext.11) before the S.P, C.B.I. On receiving the said complaint, the then S.P, C.B.I asked one Dy.S.P, D.B.Singh, (P.W.12) to verify the allegation. P.W.12 having interacted with the complainant did find the substance in the allegation and hence, submitted verification report (Ext.15). On receiving verification report, P.W.10 Shravan Kumar, Dy.S.P, C.B.I registered a case as R.C. No.2(A)/95(R) under Section 7 as well as Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and a formal F.I.R (Ext.14) was drawn. Thereupon P.W.10 was entrusted with the investigation, who constituted a team consisting of himself, other C.B.I official (P.W.12), the complainant (P.W.7) and two independent witnesses, Abhay Kumar Jha (P.W.3), Manager, C.C.L and Ilias Ba, an Income Tax Inspector (P.W.5). Thereafter pre trap exercises were undertaken whereby 45 currency notes of denomination of Rs.100/- and one currency note of denomination of Rs.500/- produced by the complainant were treated with a Phenapthalein powder and were given back to the complainant after its numbers were noted in the pre trap memorandum (Ext.2A) with the instruction to him as well as to the witnesses particularly P.W.3 to hand over the same to the appellant only he makes demand and then to convey it by giving signal to the members of the trap team. Thereafter the team led by P.W.10 came to the Bank. The complainant entered into the Bank where P.W.3 also came by following complainant. The appellant was found sitting at the counter of the Bank. The complainant told him that he has arranged money. Thereupon the appellant told him that if it is so, then he will get rest of the amount. By saying so, the appellant asked him to come out of the Bank. On coming out of the Bank, the appellant along with complainant came to the shop of one Vijay Kumar (P.W.9). The complainant told him that he has arranged money. Thereupon the appellant told him that if it is so, then he will get rest of the amount. By saying so, the appellant asked him to come out of the Bank. On coming out of the Bank, the appellant along with complainant came to the shop of one Vijay Kumar (P.W.9). P.W.3 following them also came there. There the appellant asked the complainant to give money to him. Accordingly, a sum of Rs.5000/- was given who kept it in a Rexin bag and put it in his cash box/drawer. Thereafter the appellant told the complainant that now he will be getting money and then left that place. At that point of time, members of the raiding team reached over there and challenged Vijay Kumar who on being asked disclosed to them immediately that he had kept money at the instance of appellant. Thereupon money which had been kept in a Rexin bag was recovered. On verification, currency notes were found to be the same which had been given to the complainant after it was treated with Phenopthelene at the time of pre trap exercises. Thereafter Phenopthelene test was undertaken whereby right hand fingers of Vijay Kumar were dipped in the solution kept in a container, upon which it turned pink. The said container was sealed over which signatures were put in. G.C notes of denomination of Rs.100/- (Exts. VI to VI/44) and G.C notes of denomination of Rs.500/-(Ext. Vi/45) was kept in an envelopes (Ext.7) which were sealed. Thereafter post trap memorandum (Ext.16) was prepared. Thereafter relevant records were seized from the Department of the Bank and the Investigating Officer got the statement of Vijay Kumar recorded under Section 164 of the Code of Criminal Procedure wherein he admitted that the appellant had asked him to keep the money which was to be taken back by the appellant later on. The Investigating Officer having obtained sanction order (Ext.1) submitted charge sheet, upon which cognizance of the offences punishable under Section 7 as well as Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act was taken against the appellant. Subsequently, when the charges were framed, the accused pleaded not guilty and claimed to be tried. 4. In course of trial, 12 witnesses were examined on behalf of the prosecution. 5. Subsequently, when the charges were framed, the accused pleaded not guilty and claimed to be tried. 4. In course of trial, 12 witnesses were examined on behalf of the prosecution. 5. After closer of the prosecution case, the appellant was questioned under Section 313 of the Code of Criminal Procedure about the incriminating circumstances appearing against him which he simply denied. Thereupon the learned trial court on finding the testimonies of the witnesses to be trust worthy recorded the judgment of conviction and order of sentence as aforesaid. 6. Being aggrieved with the said judgment, this appeal has been preferred. 7. Mr. A.K. Das, learned counsel appearing for the appellant submitted that admittedly P.W.3 and P.W.5 were the independent members of the team constituted for laying trap. According to P.W.3, he accompanied the complainant P.W.7 to the Bank where the appellant put forth the demand but P.W.5 has never testified that he heard appellant asking for money. Moreover, P.W.7 has also not said anything in his evidence that P.W.3 had accompanied him. In such situation, evidence of P.W.3 regarding demand being made by the appellant never inspire confidence to be believed. 8. Further it is the case of the prosecution that money which was recovered from the shop of Vijay Kumar had been given to Vijay Kumar by the complainant at the instance of this appellant but this fact gets falsified from the simple fact that this appellant was never found present at the shop of Vijay Kumar when the money had been recovered. Moreover, none of the prosecution witness has come forward to say anything as to how this appellant slept away from there when so many persons of the trap team were there near the shop. 9. Further the case of the prosecution becomes quite suspicious when P.W.7 says that he did not give any signal when the money was paid whereas other witnesses contrary to that evidence say that members of the trap team reached at the shop and only when the complainant gave pre-fixed signal, they came to shop. 10. 9. Further the case of the prosecution becomes quite suspicious when P.W.7 says that he did not give any signal when the money was paid whereas other witnesses contrary to that evidence say that members of the trap team reached at the shop and only when the complainant gave pre-fixed signal, they came to shop. 10. Further submission is that when this appellant, an Agriculture Assistant had nothing to do with the disbursement of the loan amount which has been admitted by the then Bank Manager, Ignasias Kindo (P.W.6) and hence, any allegation levelled against the appellant that he put forth the demand of money for disbursing the money appears to be of without substance. 11. Thus, it was submitted that the prosecution has failed to establish its case beyond any reasonable doubt and hence, the judgment of conviction and order of sentence is fit to be set aside. 12. As against this, Mr. Khan, learned counsel appearing for the C.B.I submits that the complainant Surendra Boraik (P.W.7) had been sanctioned loan under Prima Minister Rojgar Yojna by Gumla District Industries Center and the amount was to be disbursed by the Bank of India, Chainpur Branch. When the complainant P.W.7 approached to the accused, he asked for his commission to which the complainant initially expressed his inability to make payment. However, when insistence was made, the complainant agreed to pay a sum of Rs.5000/-. Upon it, he informed to the C.B.I. When on verification, allegation was found to be true, a trap team was laid and when payment was made to one Vijay Kumar at the instance of the accused, Vijay Kumar was intercepted and the money was recovered which fact gets established from the evidence of the complainant (P.W.7), P.W.3, P.W.5 the shadow witnesses and also from the evidence of P.W.10, Investigating Officer as well as P.W.12, members of the raiding team and thereby the trial court is absolutely justified in holding the appellant guilty. 13. Having heard learned counsel appearing for the parties and on perusal of the record, it does appear that it has been admitted position that the appellant had been sanctioned loan of a sum of Rs.75000/- by the District Industries Center, Gumla under the Prima Minister Rojgar Yojna which amount was to be disbursed by the Bank of India, Chainpur Branch. Having heard learned counsel appearing for the parties and on perusal of the record, it does appear that it has been admitted position that the appellant had been sanctioned loan of a sum of Rs.75000/- by the District Industries Center, Gumla under the Prima Minister Rojgar Yojna which amount was to be disbursed by the Bank of India, Chainpur Branch. When the P.W.7 approached this appellant, he told to the complainant that if the amount is released in his favour, he will have to pay 10% to which the appellant expressed his inability to pay him. Thereupon, as per the evidence of P.W.7, the appellant told him that initially he will be getting a cheque of Rs.12875/- for purchasing furniture and out of that amount, he may pay 10% of the amount. Thereafter a cheque was given. When P.W.7 approached the appellant for release of rest of the money, he asked for Rs.5000/-. 14. Submissions were made on behalf of the appellant that this appellant had nothing to do with the matter relating to disbursement of the loan and as such, no occasion was there for the appellant to ask for illegal gratification but this submission does not have any substance in view of the evidence of P.W.6, Ignasias Kindo, the then Branch Manager. According to him, it was the appellant who had submitted verification report when loan amount had been sanctioned in favour of the appellant. Not only that he has further gone to depose that when money was paid for purchasing furniture, the appellant was again requested to submit verification report. In that view of the matter, it can be said that the appellant was very much concerned with the matter relating to release of the fund in favour of the appellant. 15. Going further in the matter, it does appear that when allegation was made before the office of the C.B.I by the complainant, a trap team was constituted consisting of two independent witnesses, Abhay Kumar Jha (P.W.3) and Ilias Ba (P.W.5). According to P.W.3, while the trap team formalities were being performed, he was asked by P.W.10 to remain along with the complainant when the complainant would be approaching the appellant for paying money. His version gets support from the evidence of P.W.10 and also from the evidence of P.W.12, members of the raiding party. According to P.W.3, while the trap team formalities were being performed, he was asked by P.W.10 to remain along with the complainant when the complainant would be approaching the appellant for paying money. His version gets support from the evidence of P.W.10 and also from the evidence of P.W.12, members of the raiding party. Accordingly, when trap team came to the Bank, the complainant to whom P.W.3 followed came inside the Bank where complainant found appellant sitting at one of the counters of the Bank. On seeing the complainant, the appellant asked as to whether he has arranged money, when he answered in positive, the appellant asked him to come along with him outside of the Bank. They came to the shop of Vijay Kumar, P.W.3 also followed them. There the appellant asked the complainant to give Vijay Kumar Rs.5000/- which the complainant gave to him. He after getting it kept in a Rexin bag and put it in the counter box. Immediately a trap team came over there and on being quizzed, Vijay Kumar admitted that he had kept the money at the instance of the appellant. However, by that time, the appellant had left that place. Right hand finger wash of Vijay Kumar when was treated with Sodium Carbonate, it turned pink and then the money was recovered. 16. Submission was advanced on behalf of the appellant that two independent witnesses, namely, Abhay Kumar, P.W.3 and Ilias Ba, P.W.5 were members of the trap team but the P.W.5 had never deposed about the demand being made by the appellant, though P.W.3 has said so, but his version becomes quite suspicious as even the P.W.7 in his evidence has not said about the presence of P.W.3 at the Bank. 17. It is true that P.W.5 has not said anything about the demand being made by appellant. The reason for not saying is that he had no occasion to come inside the Bank along with P.W.3 and the complainant as it was only P.W.3 who had been instructed by P.W.10 during pre trap exercises to remain present along with the complainant which would be evident not only from the evidence of P.W.3 but also from the evidence of P.W.10 and P.W.12. 181. 181. Further it appears from the evidence of P.W.3 that when the complainant entered inside the Bank, P.W.3 followed him and thereby P.W.7 may not have seen P.W.3 following him and also at the time when the appellant put forth the demand of money. Therefore, the submission what was advanced on behalf of the appellant is devoid of any substance. 19. Submission was also advanced on behalf of the appellant that it is quite strange that when the money was recovered from the shop of Vijay Kumar, this appellant who is said to have accompanied the complainant, P.W.7 to the shop of Vijay Kumar was not apprehended which fact alone falsifies the entire case. 20. Admittedly, the appellant was never found at the shop of Vijay Kumar when the money was recovered. The reason, as per the evidence of P.W.3 is that he had left the place by the time the trap team could reach over there and recover the currency notes of denomination of Rs.100/- (Exts,Vi to Vi/44) and also currency notes of denomination of Rs.500/- (Ext.Vi/45). 21. Same is the version of P.W.10 and P.W.12 and also P.W.5 though all of them had seen the appellant going along with the complainant to the shop of Vijay Kumar. After the money was recovered, they all rushed to the office of the appellant where they apprehended the appellant. 22. In that view of the matter, the circumstance of appellant being not found at the shop of Vijay Kumar never appears to be as such that the prosecution case be disbelieved. At this stage, it be noticed that Vijay Kumar has also been examined by the prosecution as P.W.9 who had simply deposed that it was the appellant who came to his shop and kept the money, though earlier statement made under Section 164 of the Code of Criminal Procedure was there that the complainant had kept the money at the instance of the appellant and for that reason he was declared hostile. 23. In that view of the matter, the testimony of Vijay Kumar that it was the complainant who kept the money is never acceptable. 24. 23. In that view of the matter, the testimony of Vijay Kumar that it was the complainant who kept the money is never acceptable. 24. Thus, I do find that the prosecution has been able to prove the case beyond any reasonable doubt that the appellant demanded illegal gratification which when tendered was accepted and thereby the trial court has rightly convicted the appellant for the offence under Section 7 as well as Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, though both the offences seem to have been committed in single transaction but still in view of the decision rendered in a case of State represented by Inspector of Police, Pudukottai, Tamil Nadu vs. A. Parthivan [(2007) 1 SCC (Cr.) 520] one can be convicted for the offence under Section 7 as well as under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, even if the act was committed in single transaction. 25. It has been held that every acceptance of illegal gratification whether preceded by a demand or not would be covered by Section 7 of the Prevention of Corruption Act but if the acceptance of illegal gratification is in pursuance of a demand by the public servant, then it would also fall under Section 13(1)(d) of the Prevention of Corruption Act. However, it has been held that as the offence is one which falls under two different sections providing different punishment, the offender should not be punished with more severe punishment than the court could award the person by any one of the two offences. 25. It be noticed that minimum punishment under Section 7 is for six months and the minimum punishment under Section 13(1) (d) is for one year. Keeping in view the minimum sentence prescribed under the aforesaid provision and also the fact that the appellant has been facing rigour of the trial since 1995 it would be appropriate for the ends of justice to sentence him for six month for the offence under Section 7 of the Prevention of Corruption Act and for one year for the offence under Section13(1)(d) read with Section 13(2) of the Prevention of Corruption Act without any modification with respect to sentence of fine imposed by the trial court for the said offences. 26. Accordingly, with the modification on the point of sentence, this appeal stands dismissed.