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2018 DIGILAW 1038 (JK)

State of J&K v. Rajeev Kumar

2018-12-28

SANJAY KUMAR GUPTA

body2018
JUDGMENT : The instant Criminal Acquittal Appeal has been filed by the appellant against the judgment dated 30.12.2003 passed by the learned Special Judge, Anti Corruption, Jammu, by virtue of which the accused/respondent has been acquitted from the commission of offence under Section 5(2) of the Prevention of Corruption Act, 2006 read with Section 161 RPC, on the following grounds : (a) That order/judgment impugned in appeal is against the law and facts of the case, as such is required to be set aside. (b) That the learned Special Judge, Anti Corruption, Jammu has mis-appreciated the evidence and misconstrued the law attracted to the facts of the present case, as such the judgment impugned is liable to be set aside on this score also. (c) That the learned Special Judge, Anti Corruption, Jammu by ordering acquittal of the accused (respondent) has committed grave error in law which has resulted in passing of the impugned judgment. (d) That the prosecution has successfully proved the allegations levelled against the respondent, and the oral and documentary evidence produced during the trial has undoubtedly established the commission of alleged offences by the respondent, but even then the learned Special Judge Anti Corruption, has ordered his acquittal. 2. Briefly the prosecution case before the trial Court was that on 25.11.1998 the complainant namely Jagdish Chander S/o Balwant Rai R/o House No.40-B Bakshi Nagar, Jammu appeared in the Vigilance Organisation and lodged a written complaint alleging therein that he had applied for issuance of a learning driving licence from the RTO Office, Jammu and on 20.11.1998 he handed over the application form enclosing therein with medical fitness certificate to Shri. Rajiv Kumar, clerk posted in RTO’s Office Jammu. After he had deposited the requisite fee for the purpose, the said clerk delayed the issuance of the licence on one pretext or the other. On 24.11.1998 when the complainant again approached the said clerk Rajiv Kumar requesting for the licence, he demanded rupees 200/- as illegal gratification and asked the complainant to come on the next day. The complainant reluctantly agreed to pay the bribe amount. He further alleged in his complaint that there was a large scale corruption prevailing in RTO’s Office Jammu. Officers/Official in the said office were openly demanding bribe for issuance of learner driving licence, registration certificate etc. The complainant reluctantly agreed to pay the bribe amount. He further alleged in his complaint that there was a large scale corruption prevailing in RTO’s Office Jammu. Officers/Official in the said office were openly demanding bribe for issuance of learner driving licence, registration certificate etc. Some civilian persons were also involved in this racket and they in connivance with the officers/officials of RTO’s office Jammu indulge in such type of corrupt practice. The complainant also presented Rs.200/- (Two currency note of Rs.100/- denomination) before the vigilance authority. On this, the instant case was registered and the investigation taken up. A trap party headed by Sh. U.K. Aima, Dy. S.P. Vigilance Organisation was constituted by SP, Central to lay a trap on the accused, if he accepted the bribe money. In order to verify the other allegations levelled in the complaint four more vigilance teams were constituted to simultaneously conduct raids to other branches of the RTO’s office. Each vigilance team was accompanied by an independent witness whose services were requisitioned through their Heads of Department. Sh. Ab. Hamid Mir, Dy. Commissioner Provident Fund, Labour Department J&K, Jammu was associated with the trap team headed by Sh. U.K. Aima, Dy.S.P. The complainant narrated the whole story before the members of the trap party including the independent witness and also produced Rs.200/- of hundred rupees denomination before the said team. Independent witness noted down the numbers of these two currency notes on a separate paper and preserved the paper with him. Thereafter, the currency notes were dusted with phenolphthalein powder in the presence of the independent witness and were handed over to the complainant for passing on the same to the accused on his demand. Demonstration was conducted on spot and the solution was seized and sealed in a separate bottle. A demonstration memo was prepared and a handing over memo of the currency notes to the complainant was also prepared and these memos were got signed by the independent witness. Members of the trap team were subjected to personal search by the independent witness and nothing incriminating was found in their possession. Requisite certificate was also prepared by the independent witness. Shadow witness was directed to pass on a fixed signal to the trap party if the accused demanded and accepted the bribe money. Members of the trap team were subjected to personal search by the independent witness and nothing incriminating was found in their possession. Requisite certificate was also prepared by the independent witness. Shadow witness was directed to pass on a fixed signal to the trap party if the accused demanded and accepted the bribe money. After completion of all the legal formalities at Police Station, Vigilance Organisation, Jammu, the trap party headed by U.K. Aima, Dy.S.P. Vigilance Organisation accompanied by the independent witness, complainant and the shadow witness proceeded towards RTO’s office Jammu in a Govt. Vehicle bearing registration No.5692/JK02H. On reaching RTO’s Office, while the trap party took its position, the complainant and the shadow witness went inside the room of the accused Rajeev Kumar, Jr. Assistant, situated in the first floor of RTO’s office. After some time the shadow witness came out of the room and conveyed the prefixed signal to the trap party, which immediately swung into action and entered the room in which the accused was sitting. Dy.SP Sh. U.K. Aima, who was heading the team, disclosed his identity to the accused. The independent witness conducted the personal search of the accused and recovered the tainted amount of Rs.200/- from the left side pocket of the pants worn by the accused. The numbers of the currency notes were compared with the numbers already noted down by the independent witness on a separate paper and they tallied. The accused was subjected to hand wash on the spot in the presence of the independent witness and when the colour of the solution turned pink, the same was seized and sealed in a separate bottle. Pocket wash of the pants worn by the accused was also done on spot and the solution which turned pink was also seized and sealed in a separate bottle. The pants were also seized. Tainted bribe money recovered from the possession of the accused was also seized on spot. During the personal search of the accused Rs.35/- one purse, one driving licence, one identity card, one handkerchief, some rings and a watch were also recovered from his possession and the same were seized on spot. Application form learning licence form No.9385/LA/MVD/98 age proof certificate, medical form along with two photographs of the complainant were also seized on spot. During the personal search of the accused Rs.35/- one purse, one driving licence, one identity card, one handkerchief, some rings and a watch were also recovered from his possession and the same were seized on spot. Application form learning licence form No.9385/LA/MVD/98 age proof certificate, medical form along with two photographs of the complainant were also seized on spot. Besides, counter foil of GR Book from serial No.0691401 to 0691500 of RTO’s office Jammu and the current learners driving licence register was also seized on spot. In respect of all the seized articles, different seizure memos were prepared which were duly signed by the independent witness. Investigating Officer obtained posting orders and work distribution orders in respect of the accused. Questioned along with admitted initials/hand writing were sent to hand writing expert for his opinion. The statements of the persons acquainted with the facts of the case were recorded by the investigating officer. The accused was arrested on spot, who was subsequently enlarged on bail by the competent court of law. The complainant, who reluctantly agreed to pay the bribe but in the meanwhile approached the Vigilance Organisation for legal action against the accused. During the course of investigation offences under Section 5(2) P.C. Act, 2006 r/w 161 RPC were prima facie made out against Rajeev Kumar, Clerk. For conducting prosecution of the accused sanction as envisaged u/s 6 P.C. Act was accorded by the Government vide Govt. Order No.08-GAD(Vig) of 1999 dated 18.02.1999 where after the challan was submitted before the trial court on 15.03.1999 for taking legal action against the accused. The accused was charged for the commission of the offence u/s 5(2) Prevention of Corruption Act, 2006 read with Section 161 RPC. However, the learned Special Judge Anti-Corruption Jammu has acquitted the respondent of charge levelled against him vide impugned order/judgment dated 30.12.2003. 3. Heard learned counsel for the parties and perused the record. 4. During the course of arguments, learned counsel for the appellant has argued that the conclusion reached by the trial Court was not only erroneous but also illegal. Whereas counsel for respondent has argued that essential elements for constituting offence i.e. demand and acceptance are totally missing and so court below has rightly acquitted the respondent/accused. 5. I have considered the rival contentions. Whereas counsel for respondent has argued that essential elements for constituting offence i.e. demand and acceptance are totally missing and so court below has rightly acquitted the respondent/accused. 5. I have considered the rival contentions. The charges against accused read as under: (1) That you while posted as clerk in the learner’s driving licence section of R.T.O’s office Jammu was delaying issuance of learners driving licence to the complainant Jagdish Chander S/o Balwant Raj R/o House No.40-B, Bakshi Nagar, Jammu on one pretext or the other; (2) That it is alleged that on 20.11.1998, the complainant had applied for the issuance of the said licence and had handed over the relevant papers to you; (3) That you on 24.11.1998 demanded Rs.200/- as illegal gratification from said complainant and it was agreed that the said amount of Rs.200/- will be paid on 25.11.1998; (4) That on 25.11.1998 you accepted the said amount of Rs.200/- from the complainant and on the same day the vigilance organisation swung into action and caught you red handed while accepting the illegal gratification from the complainant of Rs.200/- which was recovered from your possession on the same day from your personal search; (5) That you being a public servant by corrupt and illegal means by abuse of your official position as a public servant obtained an amount of Rs.200/- as illegal gratification thereby committed offence under Section 5(2) P.C.Act 2006 BK read with Section 161 RPC which is cognizable by this court. 6. The law is very much clear that first demand of illegal gratification in consideration of doing some favour, and secondly, acceptance of illegal gratification by the person, who demanded, are most essential requirement for convicting a person under section 5(2) of the Prevention of Corruption Act, 2006 read with Section 161 RPC. 7. From perusal of judgement of trial court, it is evident that prosecution has not proved the fact of illegal demand of gratification made by accused. The relevant paras of impugned judgement read as under : “Applying the ratio of law laid down above to the facts of the instant case, the prosecution version is that the accused received the bribe money from the complainant in presence of the shadow witness on whose cue, the raid is said to have been carried out. The relevant paras of impugned judgement read as under : “Applying the ratio of law laid down above to the facts of the instant case, the prosecution version is that the accused received the bribe money from the complainant in presence of the shadow witness on whose cue, the raid is said to have been carried out. This contention put forward by the prosecution requires the court to analyse and appreciate the prosecution evidence, relevant to the two basic essentials of the offence of bribery at first, that are demand, and acceptance of the bribe money by the accused. The statement of the complainant, namely Jagdish Chander is that he paid an amount of Rs.200/- to the accused on his demand as he had applied for a learners Driving Licence in the office of RTO Jammu, where the accused was the concerned dealing Assistant and the recovery of these notes, he has stated, was effected on the pre-agreed signal given by him to the shadow witness, who was standing beneath the roof of the office of the RTO and the shadow witness thereafter gave a cue to the members of the raiding party. The independent witness, he has stated, conducted the search of the accused and in furtherance of the said search the recovery of the tainted money was effected. In his cross-examination, he has stated that he does not know the name of the father of the accused. He has further stated that it is incorrect to state that EXPW-JC/1 that is, the complainant was drafted by him under the dictation of someone, but the fact is that he reduced it into writing on his own. His statement further is that how the names of Saleem and Kewal figure in EXPW-JC/1 cannot be explained by him and they are not known to him, nor has he over come across them. On being asked to read the third and fourth words of line 3 of EXPW-JC/1, the witness has stated that he cannot read them. On being asked to read, the 3rd wor4d as it exists in the 5th line of EXPW-JC/1 the witness has stated that he neither knows its meaning, nor can be read it. On being asked to read the third and fourth words of line 3 of EXPW-JC/1, the witness has stated that he cannot read them. On being asked to read, the 3rd wor4d as it exists in the 5th line of EXPW-JC/1 the witness has stated that he neither knows its meaning, nor can be read it. The witness again has not been able to read the 2nd word of the 9th line, 6th word of the 14th line, 5th world of the 16th line and some other words incorporated as such in EXPW-JC/1. He has proceeded to state thereafter that EXPW-JC/1 was reduced into writing two days after the raid was laid in the office of RTO and that the said report was reduced into writing by him under the dictation of an officer of the Vigilance Organisation and that is why he has not been in a position to read various letters of the said report. He has further stated that no hand wash of any person was taken prior to laying of the trap, but the fact of the matter is that when he went into the office of the accused for the issuance of a licence in his favour, the accused asked him to come on the next day along with his photograph and some other documents which made him to labour under the belief that the accused has avoided him under the pretext that he wanted his palm to be greased where after he lodged a report before the authorities of Vigilance Organisation. He has further stated that he did not mention lit specifically anywhere that the accused demanded any money from him, but the authorities of Vigilance Organisation smeared the bribe money with phenolphthalein power and returned the same to him with the direction to pass on the same to any one whosoever demanded the same from him. On reaching the office of the RTO, he as well as an employee of the Vigilance Organisation was asked to proceed ahead, while as the other members of the trap team remained at a distance of 200 yards from the office of the accused. The office of RTO he has stated is fenced from all its sides and has its entry from a gate. The office of RTO he has stated is fenced from all its sides and has its entry from a gate. Just opposite to the said gate, he has stated is the staircase from where one reaches at the first floor of the office of the RTO. There is a varandah on the ground floor of the office of the RTO and the person who accompanied him, stayed in the courtyard adjacent to the varandah, while as, he made his entry into the office of the accused, where he saw the accused. He asked the accused whether his task has been accomplished to which the accused replied that there is some deficiency in his documents, on the production of which the licence will be issued in his favour. These utterance of the accused made him to believe that the accused has been demanding money from him, whereafter he took the bribe money out of his pocket and handed it over to the accused, who refused to accept it and told him that he will do his job without accepting any bribe, and, thereafter, frightened by the presence of the team of police personnel waiting outside the office of the RTO and the fear that they may not initiate any proceedings against him, he thrust the bribe money into the pocket of the pant of the accused, came out of the room, and at that very time, the trap team entered into the office of the accused, where after he left from there and does not know, what happened subsequently. In his re-examination he has stated that no doubt, the accused avoided issuing the licence to him, but he never demanded any money from him. The evidence of the complainant as it is on record demolishes the prosecution edifice in its entirety. It goes on to prove that the whole prosecution case is untrue, and every step taken in aid of the investigating of the case is the outcome of an illegality beyond cure, because of the registration of the prosecution case after the laying of the trap, as stated by the complainant in his statement meaning thereby that there was no FIR/complaint when the investigation started or when the criminal law was set in motion. Compliance to the provisions of section 154 CrPC has thus been lacking in the instant case, where the statement of the complainant is that the FIR was lodged after the trap was laid. The prosecution case therefore crumbles under the weight of the statement of the complainant himself who has in addition to what is said above stated that he is the author of the first information report, but has not been able to read the various letters, put to him where after he has buckled in his cross examination in stating that some other person is the architect of the said report and has after a few breaths, accepted that the FIR was authorised by him under the dictates of an officer of the Vigilance which he has said is the reason for he not having been in a position to read various letters incorporated therein. By stating that the report was reduced into writing by him after the raid was conducted, the very foundation of the prosecution case i.e., lodging of the FIR by the complainant, as is reiterated here, shrouds in a veil of suspicion, and thereby, an illegality, which goes to the root of the case has occasioned. The report lodged by the complainant after the trap would be a step in aid of the investigation of the case and the same cannot be termed as an FIR in the legal sense of the term meaning thereby that no information in terms of section 154 CrPC has been laid herein this case. The complainant has been emphatic in stating that the accused did not demand any money from him, meaning thereby that the basic limb of the office of the bribery i.e., demand to pay bribe has not been proved by the prosecution in the instant case. The acceptance of bribe money by the accused at any point of time by reference to the statement of the complainant himself has not been proved by the prosecution by any amount of evidence. The complainant by his own omission and commission has stated in his statement that the accused refused to accept the bribe money twice or thrice, when he insisted him to accept it, and thereafter, he under the apprehension that the trap team may not proceed against him thrust the bribe money into the pocket of the accused and came out of his office. Since the bribe money was put into the pocket of the accused as per the statement of the complainant himself without any demand having been extended by the accused, therefore, it can by no stretch of imagination be said that the accused accepted it voluntarily and this being so the recovery of the bribe money under such circumstances from the pocket of the accused looses all its sanctity and has no significance for the same having been put into his pocket forcibly. ” 8. I have my self gone through the statement of complainant in depth; I find that the complainant himself gave one version in his examination-in-chief and then another one in his cross-examination. In his examination-in-chief, he has claimed that demand was made to him by the accused-appellant; but in cross examination he has said that no demand was made. The evidence of the complainant appeared to be doubtful as he shifted one version to the other in the same breathe. That being so, the Court held that the evidence of the complainant could not be relied upon being doubtful as he was contradicting his own versions and failed to stand the test of credibility. Other grounds mentioned in judgment for acquittal, also are not perverse in nature. 9. In Dashrath Singh Chauhan v. CBI, 2018 SCC OnLine SC 1841, decided on 09-10-2018], it is held as under :- “32. Since in order to attract the rigors of Sections 7, 13(2) read with 13(1)(d) of PC Act, the prosecution was under a legal obligation to prove the twin requirements of “demand and acceptance of bribe money by the accused”, the proving of one alone but not the other was not sufficient. The appellant is, therefore, entitled for acquittal from the charges framed against him under the PC Act too. (See para 8 of M.K. Harshan Vs. State of Kerala, (1996) 11 SCC 720 ). 33. In view of the foregoing discussion, the appeal succeeds and is accordingly allowed. The impugned judgment is set aside. The conviction and the sentence awarded to the appellant under Sections 7, 13(2) read with Section 13(1)(d) of the PC Act by the Courts below are set aside and the appellant is set free from the said charges. 34. If the appellant is already on bail, it is not necessary for him to surrender.” 10. The conviction and the sentence awarded to the appellant under Sections 7, 13(2) read with Section 13(1)(d) of the PC Act by the Courts below are set aside and the appellant is set free from the said charges. 34. If the appellant is already on bail, it is not necessary for him to surrender.” 10. Another argument of counsel for appellant is that recovery of alleged illegal gratification has been proved, so judgement of trial court is bad. Now, law is also settled, mere recovery of money itself does not amount that same has been paid for illegal gratification. 11. In P. Satyanarayana Murthy v. The District Inspector of Police, State of Andhra Pradesh Anr., (2015) 10 SCC 152 , it is held that mere recovery by itself of the amount said to have been paid by way of illegal gratification would not prove the charges against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, the conviction cannot be sustained. 12. In view of above discussion, I do not find any infirmity of law and facts in the judgement of trial court. The appeal is dismissed accordingly.