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2013 DIGILAW 668 (GAU)

Leena Talukdar v. Central Bureau of Investigation

2013-09-10

NISHITENDU CHAUDHURY

body2013
This is an appeal under section 374 of the Code of Criminal Procedure, 1973 read with section 27 of the Prevention of Corruption Act, 1988. By this appeal, the appellant Smt. Leena Talukdar has challenged her conviction under section 7 of the Prevention of Corruption Act in Special Case No. 18/2004 of the Court of learned Special Judge, CBI Guwahati, Assam vide judgment dated 9.11.2006 and thereby sentencing her to suffer R.I. for 6 months and a fine of Rs. 1,000, in default to suffer S.I. for 1 month more. 2. The prosecution story is that one Dudu Baruah a permanent resident of village Balisapara in the district of Jorhat lodged a written complaint with the Superintendent of Police, CBI, ACB at Guwahati on 27.11.2002 informing that Smt. Leena Talukdar who was an employee of NF Railway, Maligaon demanded Rs. 60,000 from him for arranging a job of LDC in the said office for which the informant had submitted his candidature and also appeared in the interview. Allegedly, the said Leena Talukdar demanded Rs. 10,000 being the first installment. 3. Upon receipt of the said complaint, the SP engaged one Bhagwan Das, Inspector of CBI, ACB, Guwahati to verify the genuineness of the complaint who made an enquiry and then reported that the complaint was genuine. At this stage, it was decided to lay trap to nab the employee red-handed. One Manoj Banerjee another Inspector of CBI, ACB, Guwahati was entrusted with the job to lay the trap. Shri Banerjee requisitioned, Smt. Sipra Sarkar and Shri Ramendu Nath Das both Assistants Grade-II in the office of FCI at Guwahati on 27.11.2002 and a pre-trap demonstration was held with them. Powder of phenolepthalein was sprinkled on some paper and thereafter Sri R.N. Das, one of the two witnesses requisitioned from FCI was asked to put his hand thereon and thereafter to put his hand aqueous solution of sodium carbonate and thereupon the water turned pink. The demonstration was given to these witnesses only to acquaint them with the process of laying trap. Thereafter, 5 notes of five hundred rupees and 75 notes of hundred rupees denomination thus valuing rupees ten thousand in total was similarly sprinkled with phenolpthalein powder and then given to the complainant to put in his pocket for giving to the accused on demand . A pre-trap memorandum was prepared with all details of currency notes. Thereafter, 5 notes of five hundred rupees and 75 notes of hundred rupees denomination thus valuing rupees ten thousand in total was similarly sprinkled with phenolpthalein powder and then given to the complainant to put in his pocket for giving to the accused on demand . A pre-trap memorandum was prepared with all details of currency notes. Then, the whole party consisting of Shri Dudu Baruah, the aforesaid two witnesses, Shri Bhagwan Das and Shri Manoj Banerjee both Inspectors of CBI, ACB, Guwahati proceeded towards the NF Railway Office at Maligaon where the complainant brought the accused Leena Talukdar talked to her and thereafter both Dudu Baruah and Smt. Leena Talukdar proceeded to canteen. In the canteen, the accused demanded the money to the complainant who accordingly made payment of the aforesaid packet of ten thousand rupees and then gave signal to the trap party. The episode was seen by witness Sipra Sarkar and Manoj Banerjee, the Trap Laying Officer (TLO) who then disclosed his identity to the accused and thereupon the Smt. Leena Talukdar immediately threw away the money on the floor. The TLO seized the currency notes and then she was asked to put her hand in the water containing sodium bicarbonate which immediately turned pink. Thereafter, as provided under the law, post trap memorandum was prepared and seizure of the notes as well as the solution was made. The TLO was thereafter appointed as IO who completed the investigation and then submitted charge sheet against Smt. Leena Talukdar under sections 17 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 to stand for trial. 4. The learned court below framed charge against the accused under the aforesaid sections as follows : "First, that during 2002-03 while you were functioning and working as Head clerk at the office of the Chief Commercial Manager (Rates), N.F. Railway Maligaon, Guwahati, a public servant and in such capacity, you demanded Rs. 60,000 from complainant Shri Dudu Baruah for arranging a job for him as Junior Clerk in N.F. Railway and you accepted Rs. 10,000 as first installment against the money demand on 27-11-2002 for your personal gain and, thus, committed an offence punishable under section 7 of the prevention of Corruption Act, 1988 and within the Cognizance of this court. 60,000 from complainant Shri Dudu Baruah for arranging a job for him as Junior Clerk in N.F. Railway and you accepted Rs. 10,000 as first installment against the money demand on 27-11-2002 for your personal gain and, thus, committed an offence punishable under section 7 of the prevention of Corruption Act, 1988 and within the Cognizance of this court. Secondly, that during the same time and place, working as above, you by corrupt and illegal means any by abusing your positions as public servants obtained for yourself an amount to the tune of Rs. 10,000, which you were not legally entitled to and thereby committed an offence punishable under section 13(2) read with 13(1)(D) P.C. Act, 1988 of this court." 5. To prove the aforesaid charges, prosecution examined as many as 9 witnesses including the Investigating Officer. Defence examined none. 6. PW 1 is Shri Sunil Kumar Roy Senior Commercial Manager (Marketing) of the N.F. Railway, Maligaon. He being competent gave sanction for prosecution of the accused Leena Talukdar ('the accused'). Exhibit 1 is the sanction order. There is no allegation from the side of the accused as to the validity of the sanction and as such, the deposition of the said witness need not be stated in detail. 7. PW 2 is Smt. Sipra Sarkar. She stated in her examination in chief that in November 2002 she was posted at Guwahati office of the FCI as Assistant Grade-II. She was summoned to the office of the CBI on 27.11.2002 along with his colleague Shr. Ramendu Nath Das and Shri Manoj Banerjee, Inspector, CBI told them that they had to accompany CBI team to Maligaon N.F. Railway Headquarter for being witness to certain thing. They were made to read the complaint Exhibit 2. Then, CBI official treated a piece of paper with some powder and gave the same to her colleague Shr. R.N. Das and asked him to set his hand on the same paper. Thereafter, he was asked to put his hand in a glass containing water solution but immediately after he had set his hand inside the solution, the water turned pink. The solution thereafter was transferred in a bottle and was sealed in presence of her and R.N. Das. Her signature was obtained on the seal of the said bottle and she identified the same as Ext. M/1(1). The solution thereafter was transferred in a bottle and was sealed in presence of her and R.N. Das. Her signature was obtained on the seal of the said bottle and she identified the same as Ext. M/1(1). The witness further stated that the complainant gave CBI officials a bundle of Rs. 10,000 with five notes of Rs. 500 and seventy-five notes of Rs. 100. All these notes were treated with same powder and were then returned to complainant who kept the same in his side pocket of the pant. The I.O. told the complainant to handover the notes to the accused on demand. Smt, Sipra Sarkar and her colleague Shri R.N. Das were asked to sit at a distance from them so that they could witness the proceeding likely to be unfolded later on. CBI officials also told the complainant to give signal from the office premises of the accused to indicate that the accused had arrived and if he put his hand on hand this would mean that transaction was over. Thereafter, pre-trap memorandum was prepared by Ext. 3 in six sheets whereon Ext. 3(1) to (6) are the signatures of PW 2, she proved. She went on further that after such pre-trap preparation all of them went to N.F. Railway Headquarter at Maligaon when complainant went inside the office and after sometime he came out with a middle aged lady from the said office and both the complainant and the lady set in one room of the canteen inside the complex. PW 2 stated that she and Manoj Banerjee took position before the open door of the canteen while others stayed outside. She showed that the complainant/accused went into the left corner of the entrance of the room and faced each other while sitting. After little bit of time and after having some discussion, complainant came out to wash his face which meant that the lady was the accused person. Then he returned to the seat, the lady placed order for tea which was served and both of them took tea. Then, there was discussion between them which she realized to be in regard to money. Accused enquired whether he brought the money or not then he took out the money from his pocket and handed over to her. PW 2 saw the whole episode. Then, there was discussion between them which she realized to be in regard to money. Accused enquired whether he brought the money or not then he took out the money from his pocket and handed over to her. PW 2 saw the whole episode. Then, complainant came out and gave the signal that transaction was over when all the team members including two lady constables rushed towards the accused and subsequently Manoj Banerjee disclosed his identity to the accused. At this, she fell the money on the floor of the room. Thereafter a solution of powder was prepared in two glasses and she was asked to put her hands therein. The solution turned pink. The PW 2 recovered the money along with R.N. Das and counted the same which tallied with the number of notes mentioned in the pre-trap memorandum. All of them then came to an office situated in the complex and hand wash of the accused were transferred to two separate bottles and sealed in their presence. Material Exts. M/2 and Ext. M/3 were those bottles which contained signatures of the PW 2 as Ext. M/2(1) and Ext. M/2(2). The post trap memorandum Ext. 5(in six sheets) were then prepared at the spot and Ext. 5(1) to (6) are her signatures. She also proved Ext. M/6 the envelope containing recovered notes whereon her signatures were Ext. M/6(1) out of which Ext. M/4 is the bundle of 80 notes. The defence cross-examined her at length when she said that she really did not hear the conversation between the complainant and the accused. 8. The PW 3 is Ramendu Nath Das the colleague of PW 2 and he also gave same version as given by PW 2. He also deposed that when the transaction was made by the complainant to the accused and signal was given to the trap team he along with others rushed near the accused. Manoj Banerjee challenged the accused in his presence. At that time, money was in the left hand of the accused but she immediately threw the money on the floor of the canteen. Two lady constables caught both of her hands and she was taken to the middle of the canteen where she was asked to put her hand in two glasses and thereupon the water turned pink. The other statements of this witness are same as that of PW 2. Two lady constables caught both of her hands and she was taken to the middle of the canteen where she was asked to put her hand in two glasses and thereupon the water turned pink. The other statements of this witness are same as that of PW 2. These two witnesses proved the whole episode of the trap as to how the accused was caught red handed in accepting money from the complainant. 9. PW 4 is one Dilip Kumar Uzir who stated on oath that the same accused had taken Rs. 55,000 from him through one Amiya Patgiri for arranging service for him. He subsequently met the accused at her house to ask as to what had happened in regard to his service to which she replied that he had already been appointed and that he would continue getting salary but would not require to do anything. She then paid him Rs. 1200 and he went on receiving such salary from her for next six months but thereafter she discontinued paying. She also did not return the money. In course of cross-examination, this witness revealed that he had given information to the CBI in this regard in the year 2003. 10. One Babul Chandra Dey was examined as PW 5 in the case who was senior clerk in the N.F. Railway, Maligaon. He proved that on 27.11.2002 there was a search at the residence of Leena Talukdar in Domdoma by CBI when he along with one Shyam Narayan of his office also accompanied the CBI team. In course of the search, some papers were recovered and the same were taken into possession by CBI. Ext. 10 was the search list wherein Ext. 10(1) and 10(2) are his signatures. He also proved Ext. 11 to Ext. 23 being the papers recovered from the house of Leena Talukdar wherein his signatures were at Ext. 11(1) to 23(1). These documents were in regard to return of loan to various persons. 11. PW 6 is said Shyam Narayan who had accompanied the CBI team along with PW 5 to search the residence of accused at Domdoma when Ext. 11 to Ext. 23 were recovered. He proved his signatures on those documents as Ext. 11(2) to Ext. 23(2). In his cross-examination, he disclosed that these documents were loan return documents from various persons. 12. 11 to Ext. 23 were recovered. He proved his signatures on those documents as Ext. 11(2) to Ext. 23(2). In his cross-examination, he disclosed that these documents were loan return documents from various persons. 12. Shri Manoj Banerjee the TLO and the IO was the PW 7 in this case. He has stated in detail as to how the trap was laid on receipt of complaint from Dudu Baruah followed by confirmatory inquiry by Shri Bhagwan Das Inspector, CBI that the accused was collecting money from different persons assuring to arrange service for them. From the evidence of said witness, the total episode referred to above leading to recovery of currency notes from possession of the accused smeared with phenolpthalein powder came to light. In course of his cross-examination, he denied the suggestion that he did not hear conversation between the complainant and the accused before payment of money when she had made the demand. 13. PW 8 was Shri Bhagwan Das another Inspector of CBI, ACB at Guwahati and he also corroborated the statements of the other witnesses in regard to the trap and nabbing the accused red-handed. He also stated that he had conducted inquiry earlier to ascertain the veracity of complaint lodged by Dudu Baruah. At this stage, he could know that the accused was issuing appointment letters to fictitious persons. Ext. 25 was the verification report submitted by him to the SP. In course of cross-examination, he testified that he could overhear the discussions between the accused and the complainant on 27.11.2002 in course of the trap. 14. PW 9 was Vanlal Hrata who was also another Inspector of CBI, ACB. He conducted the search in the house of the accused along with PW 5 and PW 6 at Domdoma and recovered Ext. 11 to Ext. 23. 15. The learned trial court examined the accused thereafter under section 313, Cr.PC and thereby the accused was given all opportunities to explain the circumstances proved against her but she did not avail the opportunity except denying the allegations in shortest possible words. The learned court upon consideration of the materials on record and after hearing the learned counsel of the parties, passed judgment and order on 9.11.2006 convicting the accused under section 7 of the Prevention of Corruption Act, 1988. But she was acquitted from the charges under section 13(2) and 13(1) (d) of the said Act. The learned court upon consideration of the materials on record and after hearing the learned counsel of the parties, passed judgment and order on 9.11.2006 convicting the accused under section 7 of the Prevention of Corruption Act, 1988. But she was acquitted from the charges under section 13(2) and 13(1) (d) of the said Act. As against the said judgment of conviction, the accused has approached this court in appeal. 16. I have heard Mr. B.M. Chaudhury, the learned counsel for the petitioner and Mr. P.N. Chaudhury, learned counsel for the CBI. I have also gone through the materials on record including the exhibits. 17. Mr. B.M. Chaudhury would submit that the prosecution having laid trap, did not examine the complainant and in the process, the prosecution has failed to prove that the accused made any demand to the complainant which is sine qua non for proof of offence under section 7 of the Act. The learned counsel placed a reliance on the case of A. Subair v. State of Kerala, (2009) 6 SCC 587 . According to the learned counsel, proof of a demand being the most crucial ingredient in trap laying case, the accused is entitled to be acquitted. 18. Per contra, Mr. P.N. Chaudhury, learned counsel for the CBI would submit that admittedly the accused received the money from the complainant in course of the laying of trap and there is no evidence from the side of the accused to explain under what circumstances did she receive the said money from the complainant. She was at liberty to lead evidence in this regard which she did not take recourse to and as such, court is bound to draw presumption under section 20 of the Prevention of Corruption Act. The learned counsel not only relied the same judgment in the case of A. Subair (supra) relied on by the learned counsel of the appellant, he has also relied on judgments of the hon'ble Supreme Court in the case of Hazari Lal v. State, 1980 Crl. LJ 564, Madhukar Bhaskarrao Joshi v. State of Maharashtra, (2009) 8 SCC 571 and also Mukut Bihari and Another v. State of Rajasthan, (2012) 11 SCC 642 . 19. LJ 564, Madhukar Bhaskarrao Joshi v. State of Maharashtra, (2009) 8 SCC 571 and also Mukut Bihari and Another v. State of Rajasthan, (2012) 11 SCC 642 . 19. The point that requires determination on the backdrop of above factual matrix is as to whether the prosecution is cast with any responsibility to prove demand of gratification by the accused after it has proved receipt of money from the complainant in course of trap laying. It is not denied that the accused did not accept money from the complainant. The existence of complainant is not denied either. The accused took money from complainant in her left hand and when the TLO disclosed his identity and she realized that she had walked into the trap her immediate reaction was to throw the money on the floor to give an impression as if she did not receive any money at all. But the said attempt failed as she was subjected to test by asking her to put her hand in aqueous solution of sodium carbonate. Even in cross-examination of the prosecution witnesses, there was no attempt from her side to make out a case that she did not receive the money in question. From the evidence adduced by PW 2 (Sipra Sarkar), PW3 (R.N. Das), PW 7 (Manoj Banerjee) and PW 8 (Bhagwan Das) as stated above, it is proved that the accused accepted money from the complainant sitting in canteen. The pre trap and post trap memoranda are in records which also show that the currency notes handed over to the conduit/complainant before trap laying are the same which were seized from her custody. Above all, she did not deny the acceptance of this money at all. Inn course of examination under section 313, Cr.PC when question was put to her vide question No. 6 that she was paid Rs. 10,000 by Dudu Baruah being first installment to be paid to her, she simply stated that she did not demand the money. Apart from that, she did not make any other statement as to how was she entitled to get this amount from Dudu Baruah. So, there is no doubt at all that she had accepted money from the complainant in presence of the witnesses referred to above. 20. Now the only question is why did she accept this money? Apart from that, she did not make any other statement as to how was she entitled to get this amount from Dudu Baruah. So, there is no doubt at all that she had accepted money from the complainant in presence of the witnesses referred to above. 20. Now the only question is why did she accept this money? By relying on the case of A. Subair (supra), the learned defence counsel submits that unless the complainant was examined demand of money can never be proved and in this case also the prosecution failed to examine the complainant Dudu Baruah and as such the demand has not been proved. The said case related to conviction under section 7 read with section 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. In that case also trap was laid on complaint by the PW 1. The said PW 1 was initially declared hostile, the PW 2 therein did not support the prosecution fully and PW 10 also failed to depose as to where was he positioned when the accused was trapped. On consideration of the materials on record, the hon'ble Supreme Court found serious doubt as to veracity of the prosecution case and more particularly, credibility of the PW 10 and this is why ultimately the appeal was allowed setting aside the judgment of conviction of the accused. Factually, present case stands on altogether different situation. Here, not only the prosecution witnesses had proved the trap, they testified that the accused received money from the complainant in front of them which they could see, their credibility could not be shaken at all in course of cross-examination. Rather, the accused herself did not deny acceptance of money. Her reaction was she did not demand the money. This takes us to section 20 of the Prevention of Corruption Act. This Section relates to presumption where public servant accepts gratification other than legal remuneration. Here in this case, the money paid by the complainant cannot be legal remuneration which is payable in the office by the employer. The complainant is neither an employee of NF Railway nor has he any authority to pay legal remuneration to the accused who is an LDC in the NF Railway Head Quarter at Maligaon, Guwahati. Section 20, therefore, is relevant in the present case and the same is quoted below : "20. The complainant is neither an employee of NF Railway nor has he any authority to pay legal remuneration to the accused who is an LDC in the NF Railway Head Quarter at Maligaon, Guwahati. Section 20, therefore, is relevant in the present case and the same is quoted below : "20. Presumption where public servant accepts gratification other than legal remuneration. -- (1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain from himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may, without consideration or for a consideration which he knows to be inadequate. (2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or the valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or, as the case may be, without consideration or for a consideration which he knows to be inadequate. (3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn." 21. It is apparent from a bare perusal of section 20 of the Prevention of Corruption Act referred to above that there is a mandatory provision for drawing presumption against the public servant once acceptance of gratification other than legal remuneration is proved. It is apparent from a bare perusal of section 20 of the Prevention of Corruption Act referred to above that there is a mandatory provision for drawing presumption against the public servant once acceptance of gratification other than legal remuneration is proved. Of course, this presumption is rebuttable as section 20(1) itself contains recital 'it shall be presumed, unless the contrary is proved' when it is proved that the public servant accepted, or attempted to obtain gratification or valuable thing as the case may be. In view of such legal position, this presumption can be rebutted only if the public servant can explain the circumstances to be legal under which he/she accepted money or gratification from someone as in the present case. This can be done by way of leading evidence by preponderance of probability. Support in this regard can be had from the catena of judgments of the hon'ble Supreme Court including the case of Mukut Bihari (supra) and Madhukar Bhaskarrao Joshi (supra). Even in the case of A. Subair (supra) the hon'ble Supreme Court has relied on section 20 of the Prevention of Corruption Act. But since the amount of gratification was a meagre sum of Rs. 25 only the hon'ble Supreme Court referred to the non-obstante clause at section 20(3) which entitles the court to decline to draw presumption if the gratification is trivial. So, the judgment referred to by the learned counsel of the appellant/accused also does not show that presumption cannot be drawn in a trap laying case where complainant is not examined. Once acceptance is proved the court may presume that the accused took the currency notes by way of gratification. This is also supported in paragraph 9 of the judgment of the hon'ble Supreme Court in the case of Hazari Lal v. State (Delhi Administration), 1980 Crl. LJ 564. Thus, there is no doubt that once accused accepts money or any other valuable thing during trap laying other than legal remuneration the burden of the prosecution is discharged to prove offence under section 7 of the Prevention of Corruption Act and onus immediately shifts to the accused to explain the circumstances under which he/she received the money. 22. In the case in hand, the accused has not led any evidence from her side. 22. In the case in hand, the accused has not led any evidence from her side. No attempt has been made in course of cross-examination of the prosecution witnesses to lay any foundation so as to explain the circumstances under which she was entitled to get money from the complainant. Acceptance of money was proved beyond reasonable doubt. Accused did not discharge its burden to rebut the presumption drawable against her under section 20 of the Prevention of Corruption Act, 1988 and the amount accepted being Rs. 10,000 cannot also be said to be a trivial one and accordingly, there is no escape from presumption under section 20 of the Prevention of Corruption Act and as such, the learned trial court has not committed any error in convicting the accused/appellant under section 7 of the said Act. The appeal, therefore, has no merit and is liable to be dismissed. 23. The appeal is accordingly dismissed and conviction of the appellant/accused under section 7 of the Prevention of Corruption Act, 1988 is upheld. It is needless to say that the interim order granted earlier in this appeal, stands automatically vacated. Her bail is cancelled and consequently, the bail bonds shall be discharged. The accused shall surrender before the learned trial court immediately to suffer the sentence imposed on her.