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2014 DIGILAW 791 (ORI)

U. Harigopal v. Republic of India

2014-11-24

B.P.RAY

body2014
JUDGMENT : B.P. Ray, J. This appeal has been preferred under Sections 374 of Criminal Procedure Code and Section 27 of the Prevention of Corruption Act by the appellant challenging the judgment and order of conviction dated 07.08.2004 passed by the learned Special Judge (C.B.I.), Bhubaneswar sentencing him to undergo rigorous imprisonment for a period of one year and pay a fine of Rs.2,000/- (rupees two thousand), in default, to undergo rigorous imprisonment for a period of six months for the offence under Section 7 of Prevention of Corruption Act and rigorous imprisonment for two years and pay a fine of Rs.5,000/- (rupees five thousand), in default of such payment, to undergo further rigorous imprisonment for a period of one year for the offence under Section 13(2) r/w Sec. 13(1)(d) of the said Act and both the substantive sentences were directed to run concurrently. 2. Prosecution case, in short, is that complainant (P.W.2) Ramesh Chandra Sahu, Secretary, Kedar Gouri Khadi Gramodyog Samiti, Bhubaneswar had applied for a loan to Khadi and Village Industries Commission (in short, 'KVIC'), Bhubaneswar, for opening of a jewellery shop by their Samiti. The appellant-accused was the Director of the said Commission. On his application, the Samiti was sanctioned with a loan of Rs.79,956/- on 08.05.98. Out of that sanctioned amount, a sum of Rs.36,450/- was released at the first instance on 31.3.2000. The complainant thereafter applied for second instalment to the Commission. It is alleged that the appellant demanded bribe of Rs.1000/- to release the second instalment of the loan amount. Being aggrieved, the complainant lodged a written report against the accused-appellant before the S.P. C.B.I., Bhubaneswar and ultimately it was registered as an F.I. R. under Section 7 and 13(2) r/w Sec. 13(1)(d) of the Prevention of Corruption Act on 17.10.2000 and investigation was taken up by paying a trap. During the trap proceeding, the accused was caught red handed while accepting the bribe, and after completion of the investigation charge sheet was submitted. 3. Plea of the appellant is that of complete denial. The further case of the appellant is that he has neither demanded any bribe nor accepted any money. 4. In order to prove its case, prosecution has examined nine witnesses. P.Ws.1 and 7 are said to be the independent witnesses. 3. Plea of the appellant is that of complete denial. The further case of the appellant is that he has neither demanded any bribe nor accepted any money. 4. In order to prove its case, prosecution has examined nine witnesses. P.Ws.1 and 7 are said to be the independent witnesses. P.W.2 (informant) is the decoy, P.W.3 is the Development Officer of the 'KVIC', P.W.4 is the sanctioning authority, P.W. 5 is the Scientific Officer, P.W.6 is the Probationary D.S.P. in the Office of the S.P., C.B.I., Bhubaneswar and member of the trap party, P.W.8 is the Trap Laying Officer and P.W.9 is the I.O., who after completion of investigation, submitted charge-sheet. 5. The specific defence plea of the appellant is that the loan sanction file had never come to him and therefore, the demand of bribe and release of loan amount are thoroughly misconceived. Moreover, the appellant was the recommending authority only having no power to release the loan amount. The complainant being goldsmith by caste the appellant had requested him to prepare a silver ring with lucky stone and for that reason he (appellant) had given a sum of Rs.1000/- to the complainant. On repeated request, as the complainant could not give his ring, the appellant demanded refund of money. On the date of trap, the complainant came to the office and refunded the said money to the accused-appellant. The money which was recovered from the possession of the appellant was not bribe. 6. The appellant has been charged for demanding and accepting the bribe. In case of bribery the essential ingredients are (i) factum of demand, and (ii) factum of acceptance. Demand of bribe is the most important constituent and the entire edifice of the prosecution case rests on it. The next ingredient is the factum of acceptance. Acceptance in the context means acceptance of money/valuable thing pursuant to the demand. If these two requisites are established by the prosecution through clear, cogent and wholly reliable evidence, the recovery of tainted money would be an incriminating factor. Recovery bereft of positive evidence regarding demand and acceptance would not bring culpability. The next ingredient is the factum of acceptance. Acceptance in the context means acceptance of money/valuable thing pursuant to the demand. If these two requisites are established by the prosecution through clear, cogent and wholly reliable evidence, the recovery of tainted money would be an incriminating factor. Recovery bereft of positive evidence regarding demand and acceptance would not bring culpability. The Hon'ble apex Court in the case of Suraj Mal v. The State of (Delhi Administration), AIR 1979 SC 1408 consistently has held that "mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable". Keeping the above principles in mind, it may be examined as to whether the prosecution has been able to prove its case. It is alleged that on 16.10.2000 the complainant met the appellant, who had asked him to come next day to his residence. Accordingly, on 17.10.2000 at 8 A.M. in the morning the complainant met the appellant "in his residence when the appellant demanded Rs. 1,000/- and asked him to pay the same on 18.10.2000 and the balance" amount after release of the second installment. FIR is completely silent about any demand on 16.10.2000. The alleged demand of bribe was made only on 17.10.2000 morning in the residence of the appellant. The testimony of the complainant P.W.2 in Court is different. P.W.2 in his evidence has deposed that the accused demanded RS.7000/-. There is no mention when and where the appellant raised the said demand and in his further evidence he has stated that on 16.10.2000 he reported to the C.B.I. but the C.B.I. authorities did not believe him and for verification of the truth, they sent one C.B.I. Officer, Mr. Tripathy (P.W.8) with him to the Office of the appellant. Both of them went to the Office of the appellant where the complainant introduced him saying that Mr. Tripathy would start brick manufacturing unit, for which he wanted to avail a loan and he would have to pay him 10% of the loan amount. 7. From the above evidence, the following facts emerge; As per the FIR there was no demand on 16.10.2000. In such circumstances, there was .no reason as to why the complainant would go to the C.B.I. Office and contact them. 7. From the above evidence, the following facts emerge; As per the FIR there was no demand on 16.10.2000. In such circumstances, there was .no reason as to why the complainant would go to the C.B.I. Office and contact them. In the FIR the complainant alleged that he met the accused on 17.10.2000 morning at 8 A.M. in his residence. Strangely enough, in his evidence P.W.2 has not uttered a word that he had met the accused on 17.10.2000 at all, either in the office or in the residence. P.W.2 in his evidence has deposed that P.W.8, the C.B.I. Inspector, had accompanied him to the C.B.I. Office. In his statement in Court, P.W.2 did not say that P.W.8 Mr. Tripathy had accompanied the complainant on any date. P.W.8 who has been projected as overhearing witness did not say that he had accompanied the complainant on 16.10.2000 or had ever gone to the residence of the appellant. On the other hand, he has deposed that on 17.10.2000 he had gone to the office of appellant with the complainant. This part of his evidence is contrary to the evidences of P.W.2 who did not whisper a word that on 17.10.2000 P.W.8 had accompanied him either to the office or to the residence of the appellant. P.W.8 was also silent that the appellant had ever demanded 10% commission of the loan amount as alleged by the complainant. The prosecution case is that the C.B.I. authority did not believe the report of the complainant and for verification of the truth, they sent an officer P.W.8 to the office of the appellant. P.W.8 in his evidence has stated that after registration of the case and as per direction of the S.P., C.B.I., he accompanied the complainant. F.I.R. was lodged on 17.10.2000. Accordingly, the case was registered on the said date. Therefore, any direction stated to have been issued must necessarily have been after 17.10.2000 only. In such circumstance, P.W.2 accompanied the complainant on 16.10.2000 to verify the truth of the allegation, as alleged and deposed to by the P.W.2, is false. According to the learned counsel for the defence, FIR has been lodged on 17.10.2000 after due deliberation with the C.B.I. officials as revealed from the evidence of the complainant. Therefore, there cannot be any accidental slip or omission in the narration of the material facts in the FIR. 8. According to the learned counsel for the defence, FIR has been lodged on 17.10.2000 after due deliberation with the C.B.I. officials as revealed from the evidence of the complainant. Therefore, there cannot be any accidental slip or omission in the narration of the material facts in the FIR. 8. On consideration of the above facts and circumstances, the conclusion is irresistible that the allegation of demand of bribe by the appellant either only 16.10.2000 or 17.10.2000 is not correct. Complainant has categorically deposed that on 17.10.2000, he met the appellant only once. If this part of evidence of P.W.2 is considered in juxtaposition to his earlier version in the FIR, it can safely be concluded that both are contradictory to each other and are irreconcilable. The complainant has met the appellant only once and as per FIR, it was in his residence and not in the Office. If the complainant had not gone to the office then the evidence of P.W. is false that he accompanied the complainant on 17.10.2000. Further evidence of the complainant is that on 16.10.2000, he met the appellant-Harigopal twice. On the first instance, he was alone and on the subsequent occasion, the C.B.I. officer was with him. The above evidence of the complainant completely falsifies the prosecution case. Therefore, the evidence of P.Ws.2 and 8 is mutually exclusive and cannot co-exist. 9. The prosecution case can be adjudged from other perspective also. P.W.3 is the Development Officer of the Commission. In his evidence he has deposed that whenever any application is submitted through the Commission, the State Director forwards and recommends such application after scrutiny. The appellant, who was the Director at the relevant time, was not the authority to release the second instalment. The Head Office was the competent authority to release such instalment. Therefore, the allegation is that the appellant demanded bribe to release the second instalment is not correct. P.W.3 in his evidence has further stated that as a Development Officer of the Commission, his duty was to process the loan application and proposal submitted by the individuals or institutions. The paper submitted by Ramesh Chandra Sahu (P.W.2) was incomplete. After examining the papers, he had asked the said Ramesh Chandra Sahu to submit the documents relating to payment of interest to the Commission. Till 19.10.2000 he had not placed the file of Ramesh Chandra Sahu before the appellant. The paper submitted by Ramesh Chandra Sahu (P.W.2) was incomplete. After examining the papers, he had asked the said Ramesh Chandra Sahu to submit the documents relating to payment of interest to the Commission. Till 19.10.2000 he had not placed the file of Ramesh Chandra Sahu before the appellant. If the file had not gone to the appellant till 18.10.2000, there was no reason/justification for the complainant to approach the appellant either on 16.10.2000 or 17.10.2000. No work was pending with the appellant for which there was no scope on his part to raise any demand. Therefore, in my considered view, the allegation of demand of bribe of Rs.1,000/- for releasing the second instalment is nothing but false. The prosecution was conscious of its shortcomings and it did not bring the file to Court's record. Therefore, it can be safely concluded that the complainant, P.W.2 has not complied with the defects, for which second instalment was not released in his favour. Therefore, this goes to show that the allegation of demand of bribe for release of the second installment is false and concocted, as it appears. P.W.3 has stated in his evidence that the appellant is an honest officer. 10. Coming to the next factum of acceptance, the word, "acceptance" connotes receipt or acknowledgment with consenting mind. The consent is the essential ingredient to constitute acceptance. In other words, it is a deliberate act, by which one was willing to receive or acknowledge something for the act to be done. Accidental, unintentional receipt or receipt under misrepresentation or placing of money clandestinely would not amount to acceptance and the same would not constitute the offence under Section 13(1)(d) or 7 of the Act. P.W.2 has stated that the appellant asked him if he had brought money and he replied in affirmative. The appellant then demanded the money twice and extended one diary. He kept the tainted notes inside that diary. The appellant took that diary and kept it in his table drawer. Admittedly, the diary was not seized. Seizure of the alleged diary would have been a circumstance in lending corroboration to the prosecution case. The trial Court while dealing with the acceptance of tainted money, appears to have laid much stress on the fact that the appellant has accepted the money through his diary. Admittedly, the diary was not seized. Seizure of the alleged diary would have been a circumstance in lending corroboration to the prosecution case. The trial Court while dealing with the acceptance of tainted money, appears to have laid much stress on the fact that the appellant has accepted the money through his diary. If there was no diary at all, the above conclusion of the trial Court is completely baseless. Had there been a diary, the tainted money, which was, in fact, kept inside the diary would have been an incriminating piece of evidence and the wash of the diary if shown positive indicating change of colour would have made the accusation probable. In absence of the said diary the specific plan of the appellant that he had given Rs.1000/- as advance to the complainant, who was a jeweler to prepare a silver ring with lucky stone and after repeated request when he did not deliver the same, the appellant demanded refund of the said money, to which the complainant agreed to refund on 18.10.2000 becomes more probable. Therefore, when the complainant met the appellant and handed over the money, the appellant accepted the same in his hand and kept in his shirt pocket believing the same to be his own money. 11. In order to prove the plea of the defence, the appellant had examined one witness, who has clarified the entire scenario. He has deposed that in the August/September, 2000 he called the complainant to the appellant for preparing a silver ring with lucky stone. The complainant told that Rs.1200/- would be spent to prepare the ring and accordingly, the accused gave Rs.1,000/- to the complainant so as to prepare the ring within 8-10 days. He has further deposed that as the lucky stone was not available, the complainant could not be able to prepare the ring. Then the appellant asked D.W.1 to request the complainant to return his money. The complainant was approached thrice to return his money. There is absolutely no material to disbelieve this evidence. It is well settled in law that truth is not monopoly of the prosecution. The evidence of the defence witness is to be considered equally with that of the prosecution. The complainant was approached thrice to return his money. There is absolutely no material to disbelieve this evidence. It is well settled in law that truth is not monopoly of the prosecution. The evidence of the defence witness is to be considered equally with that of the prosecution. Merely because of examination of a person by the defence, is not a ground to discard his evidence, which is trustworthy and there is nothing on record to impeach his testimony. 12. This defence plea of advancing money to the complainant appears to have been taken at the earliest. When the trap party challenged the appellant to have accepted bribe, the appellant stoutly denied the same and gave the explanation that the complainant returned the money which was taken by him for preparation of a ring. During the trial, the prosecution witnesses, who are the members of the trap party, have not denied the same. Therefore, in my considered view, mere recovery of tainted money by itself is not enough to establish the charge in absence of evidence to prove payment of bribe or to show that the appellant has voluntarily accepted money knowing it to be bribe. Appellant has rebutted the charge by rendering the defence evidence. In the present case, the evidence of the complainant as well as part I.O.-cum-overhearing witness has been rendered unreliable and the defence evidence of D.W.1 has remained unassailed. 13. Learned counsel for the appellant placed reliance on the decision reported in the case of Punjabrajo, Appellant v. State of Maharashtra (2002) 10 SCC 371 , wherein the Hon'ble apex Court has held as follows :- "If the explanation offered by him under Section 313 Cr.P.C. is found to be reasonable, then it cannot be thrown away merely on the ground that he did not offer the said explanation at the time when the amount was seized." 14. In the instant case, the appellant offered explanation immediately after the trap. As it was riot recorded correctly in the post-trap memorandum, the appellant signed it with protest. The explanation has not been denied. The witnesses have avoided by saying that they did not remember. Merely recovery of tainted money divorced from circumstances under which it is paid is not sufficient to convict the appellant. As it was riot recorded correctly in the post-trap memorandum, the appellant signed it with protest. The explanation has not been denied. The witnesses have avoided by saying that they did not remember. Merely recovery of tainted money divorced from circumstances under which it is paid is not sufficient to convict the appellant. In this regard, learned counsel for the appellant placed reliance on the decisions in the cases of Suraj Mal v. The State of (Delhi Administration), AIR 1979 SC 1408 , C.M. Girish Babu v. C.B.I., Cochin, High Court of Kerala (2009) 3 SCC 779 , and State of Kerala and another v. C.P. Rao (2011) 6 SCC 450 . 15. It is the evidence of the P.W.3 that the appellant is a strict officer and he has disposed of the file and never kept it pending with him and there is no allegation that any demand was made at the time of disbursement of the first installment. In this regard, learned counsel for the appellant placed reliance on the decision in the case of G.V. Nanjundiah v. State (Delhi Administration) AIR 1987 SC 2402 . 16. In the present case even though independent official witnesses were available, they were kept out and the I.O. has been cited as overhearing witness. The I.O., PW.8 accompanied the decoy. Therefore, in my considered view, the independent witnesses though were requisitioned by the S.P., were not examined with an apprehension that the actual facts would come to the light. The evidence of the decoy has to satisfy the double test. The evidence must be reliable and if this test is satisfied, it must be sufficiently corroborated. In absence of corroboration, the same cannot be accepted as truth. 17. On the date of trap there was no work of the complainant pending with the appellant and demand of bribe is not free from doubt and not acceptable. In this regard, learned counsel for the appellant placed reliance on Niranjan Bharati v. State of Orissa 2003 (2) OLR 399 . As has been held by the Hon'ble Supreme Court in the case of State through Inspector of Police, A.P. v. Narasimhachary, (2005) 8 SCC 364 , if two views are possible, one in favour of the accused should be taken. As has been held by the Hon'ble Supreme Court in the case of State through Inspector of Police, A.P. v. Narasimhachary, (2005) 8 SCC 364 , if two views are possible, one in favour of the accused should be taken. Similarly, it has been held by the Hon'ble Supreme Court in the case of C.M. Girish Babu v. C.B.I., Cochin, High Court of Kerala, AIR 2009 SC 2022 , that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution and he can establish the same by Preponderance of probability. The appellant in the instant case, has proved his case by the test of preponderance of probability. Thus prosecution has failed to establish the guilt of the appellant beyond reasonable doubt. 18. Keeping in view the decisions referred to above and in the facts and circumstances of the case, conviction of the appellant cannot be sustained and the same is liable to be set-aside. In the result, appeal is allowed. The order of conviction and sentence passed against the appellant under Sections 7 and 13(2) r/w Sec. 13(1)(d) of the Prevention of Corruption Act is set-aside. The bail bond furnished by the appellant, be cancelled.