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2019 DIGILAW 1716 (ALL)

Adesh Kumar Amin v. State of U. P.

2019-07-17

ARVIND KUMAR MISHRA

body2019
JUDGMENT : ARVIND KUMAR MISHRA, J. 1. Heard Sri Mohan Yadav, holding brief of Sri S.P. Pandey, learned counsel for the appellant as well as learned A.G.A. for the State of U.P and perused the material available on record. 2. By way of instant appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 18.01.2008 passed by Special Judge, (Anti Corruption) Meerut, in Criminal Case No.07 of 1999 State Vs. Adesh Kumar Amin, arising out of Case Crime No.187 of 1997, under Sections 7, 13 (1) (d) read with Section 13(2) of Prevention of Corruption Act, 1988, Police Station- Lalkurti, District- Meerut, whereby the appellant has been sentenced to undergo two years rigorous imprisonment coupled with fine Rs.5,000/- under Section 7 of Prevention of Corruption Act, 1988, in default of payment of fine, he will have to undergo additional two months' simple imprisonment and two years rigorous imprisonment coupled with fine Rs.5,000/- under Section 13(1) (d) read with Section 13(2) of Prevention of Corruption Act, 1988, in default of payment of fine, he will have to undergo additional two months' simple imprisonment. All the sentences were directed to run concurrently. 3. The course of the events leading to the trial of the present appellant as extracted from the record appears to be that Vinod Kumar Jain son of Peetam Singh, resident of village and post - Kurdi, Police Station Chhaprauli, District Meerut, moved a complaint Ext. Ka-8, on 07.08.1997, addressed to the Superintendent of Police, Vigilance Cell Meerut in his office that he runs flour mill in his village and he took a loan of Rs.23,400/- on 17.03.1987 from Punjab National Bank, Branch Chhaprauli, but he could not pay back the loan, therefore, the bank issued notice to him in the year 1988. In the meanwhile, he fell ill and could not pay back the loan for 6 to 7 years, in the meanwhile the aforesaid bank sent recovery citation to Tehsil Baraut concerned, District Meerut for realization of the loan amount. 4. The appellant being Amin of the area was entrusted by the Tehsildar to recover the amount in question who in turn came to the complainant whereupon the complainant in presence of his neighbours - say Salim, Kiranpal, Surendra and Veersen etc. 4. The appellant being Amin of the area was entrusted by the Tehsildar to recover the amount in question who in turn came to the complainant whereupon the complainant in presence of his neighbours - say Salim, Kiranpal, Surendra and Veersen etc. paid Rs.2000/- and Rs.5000/- time and again and continued to pay towards loan money in installments and after the payment was fully made he asked for the receipts of the same from the appellant but he avoided on pretension that receipts will be issued after collecting the entire amount. He requested again that receipts should be issued to him whereupon the appellant said to him that unless the complainant gives some extra money, he will be sent to jail. The accused-appellant did not give him receipt for Rs.24,000/- but he insisted demanding Rs.2000/- as bribe. 5. It was also described in the complaint that on 07.08.1997, the appellant again came to his shop (flour mill) and asked for bribe and threatened that the complainant shall be sent to jail in case the demand is not met and he will not issue receipts to him (complainant). The complainant requested for issuance of receipts but to no avail. Being compelled under circumstances, the complainant promised to give Rs.2000/- to the appellant on 08.08.1987 at Begumpul, Meerut. It was prayed that the complainant wants that the appellant who is a corrupt man should be caught red handed. Hence the complaint. 6. Upon this complaint, the Superintendent of Police, Vigilance Cell, U.P. Meerut Sector Meerut, directed the Inspector J.P Bhargauti to make preliminary inquiry who after inquiry found the complaint genuine and submitted his report. After the report was submitted on 07.08.1997, the Superintendent of Police, Vigilance Cell directed the Inspector J.P Bhargauti to arrange a trap and ordered for constitution of trap team comprising Inspector K.K. Tyagi, Inspector Ajay Kumar along with two constables. 7. Thereafter, the complainant was called in separate room and was enquired about the contents of the complaint whereupon the complainant confirmed the contents of the complaint and told that he will give Rs.2000/- on 08.08.1997 at 2:00 p.m., at Milkshake and Cold Drinks Shop, at Derawal Dressers & Company situate at Begumpul where cold drinks shop is being run for the time being whereupon he was asked to come back to the Vigilance Office - 151 at Saket, on 08.08.1997 at 9:00 a.m. with Rs.2000/-. The Superintendent of Police, Vigilance Cell Meerut also wrote a letter to the District Magistrate requesting him for arranging two independent government witnesses for accompanying the trap team. This letter is Ext. Ka-20. At the same time, the District Magistrate, Meerut directed to contact the administrative office of the district. 8. Pursuant thereto, the Additional District Magistrate concerned nominated Sant Ram Singh, J.R.K. Section and Vijay Kumar, R.R.K. Section as nominees and they were required to report at the vigilance office on 08.08.1997 at 9:00 a.m. Similarly, Inspectors K.K. Tyagi and Ajay Kumar and Constables Ram Autar Tyagi, Balwant Singh were directed to report at the aforesaid vigilance office at the aforesaid date and time. 9. The complainant Vinod Kumar Jain and nominees witnesses Sant Ram Singh and Vijay Kumar arrived at the aforesaid vigilance office in time. All consulted on the point of trap and took search of each other. After this, the complainant Vinod Kumar Jain gave four currency notes each of Rs.500/- denomination whereupon the witnesses and Inspectors made their initials on them and spread phenolphthalein powder on it and handed over the same to the complainant with the direction that the same be given to the person concerned (appellant) when the same is demanded by him. The Inspector J.P. Bhatgauti washed his hand with solution of sodium carbonate due to which solution turned into pink colour. This solution was kept as specimen in one bottle and it was sealed and memo of this proceeding was also prepared by him at about 9:30 a.m. in the vigilance office, which is Ext. Ka-1. 10. Thereafter, trap party departed to its destination by the government jeep and reached near the destination at Derawal Dressers around 12:30 p.m. and left the jeep and its driver at some distance and walked on foot and arrived at Derawal Dressers and the Inspector Ajay Kumar took his position near the counter of milk and cold drinks shop being run at Derawal Dressers and rest of the persons were divided into two parties who kept on waiting at a short distance for arrival of the appellant. The appellant arrived on the spot by his scooter U.P. 15 5167 at about quarter to 2:00 p.m. and parked his scooter nearby and arrived at the counter of the Cold Drinks Shop whereupon the complainant called him and said that he has arranged the money with difficulty and he should stall execution of recovery and should not detain him in the lock up and receipts of money previously paid should also be given to him. 11. After this, the complainant took out of the treated currency Rs.2000/- and gave it to the appellant who took the same in his right hand and counted the same. After counting the money, he held it in his palm and assured the complainant that he will not face any trouble and he will also issue receipts for money previously paid / given by him. At this juncture, Inspector J.P. Bhargauti being assured of the completion of the transaction introduced himself to the appellant and asked him that he has taken bribe Rs.2000/- from the complainant and asked (the appellant) to make his search, thereafter carried out search of the appellant whereupon he recovered four currency notes of Rs.500/- denomination each totalling Rs.2000/- from his right hand fist which currency notes on comparison tallied with description of memo Ext. Ka-1 prepared at the vigilance office. 12. Upon being asked about name and address, the appellant told his name and address and the recovered currency notes were kept under seal in polythene bag and both the hands of the appellant were washed in a glass in the solution of sodium carbonate then the solution became pink colour, the specimen of the same was kept in bottle seal. Similar process was adopted in the case of the complainant and his hands were washed and the solution became pink, the sample of the same was kept inside bottle under seal. 13. The entire proceeding was taken down in writing, a memo was prepared on the spot which is Ext. Ka-4, copy of the same was given to the appellant, who was arrested and taken to Police Station Lalkurti, District Meerut where Inspector J.P. Bhargauti reported the matter, consequently a case was registered after preparing check F.I.R. which is Ext. Ka-6. 13. The entire proceeding was taken down in writing, a memo was prepared on the spot which is Ext. Ka-4, copy of the same was given to the appellant, who was arrested and taken to Police Station Lalkurti, District Meerut where Inspector J.P. Bhargauti reported the matter, consequently a case was registered after preparing check F.I.R. which is Ext. Ka-6. On the basis of the same, the case was registered against the appellant by Constable Clerk Om Prakash PW-5 in the relevant general diary and the matter was investigated by the Investigating Officer, Jaiveer Singh, PW-10 who after recording statement of the witnesses and sending the samples to the Forensic Science Laboratory for chemical analysis by Constable Dayaram PW-4 completed his part of the investigation. Subsequently, the investigation was entrusted to Inspector K.P.S. Dhaka who pursued the investigation to its logical end by obtaining sanction for prosecution Ext. Ka-27 and after collecting the evidence filed charge sheet Ext. Ka-26 against the appellant in the trial court namely Special Judge (Anti Corruption), Meerut and requested for prosecuting the appellant. 14. Pursuant thereto, the Special Judge (Anti Corruption), Meerut, heard both the sides on point of charge and was prima-facie satisfied with case against the accused-appellant, accordingly, framed charge under Section 7 and 13 (1) (d) Prevention of Corruption Act, 1988. Charges were read over and explained to the accused-appellant who abjured the charge and opted for trial. 15. The prosecution, in order to prove guilt of the appellant examined as many as twelve witnesses namely Vijay Kumar PW-1, Sant Ram PW-2, Incharge Trap Team Inspector J.P. Bhargauni, PW-3, Constable Dayaram PW-4, Constable Om Prakash PW-5, Inspector K.K. Tyagi PW-6, Complainant Vinod Kumar Jain PW-7, Taslim PW-8, R.K. Jain PW-9, the first Investigating Officer Jaiveer Singh PW-10, Om Pal PW-11 and the Investigation Officer Inspector K.P.S. Dhaka PW-12. 16. In the trial, following papers were also proved by the prosecution, namely memo of the proceeding Ext. Ka-1 whereby solution of sodium carbonate was made available prior to carrying out the trap against the appellant, complaint Ext. Ka-3, recovery memo Ext. Ka-4, Check FIR Ext. Ka-6, original information / report Ext. Ka-8, letter of bank Ext. Ka-18, order for inquiry given by Superintendent of Police, Vigilance Cell Meerut Ext. Ka-19, letter to District Magistrate by Superintendent of Police, Vigilance Cell Meerut Ext. Ka-20, site plan of the spot Ext. Ka-21, register supurdaginama Ext. Ka-3, recovery memo Ext. Ka-4, Check FIR Ext. Ka-6, original information / report Ext. Ka-8, letter of bank Ext. Ka-18, order for inquiry given by Superintendent of Police, Vigilance Cell Meerut Ext. Ka-19, letter to District Magistrate by Superintendent of Police, Vigilance Cell Meerut Ext. Ka-20, site plan of the spot Ext. Ka-21, register supurdaginama Ext. Ka-22, letter to District Magistrate, Meerut Ext. Ka-24, order of Superintendent of Police, Vigilance Cell Meerut, Ext. Ka-25, charge sheet Ext. Ka-26 and order of sanction for prosecution Ext. Ka-27. 17. Except as above, no other testimony was adduced by the prosecution. Consequently, evidence for the prosecution was closed and statement of the accused was recorded u/s 313 Cr.P.C., wherein, he disclaimed the entire prosecution story and submitted that the recovery citation was given to him for realization of the loan amount when the appellant exerted pressure upon the complainant, he stated that he will give money in Meerut whereupon the appellant along with his peon arrived at Meerut when the complainant Vinod Kumar Jain gave him Rs.2000/- and asked him to give receipt for the same then he issued receipt for Rs.2000/- and the record was taken by his peon to his home whereupon the appellant was caught by four-five persons and he was challaned. The appellant has produced Rajveer DW-1 in his defence. 18. Thereafter, evidence for the defence was closed and the case was posted for arguments. 19. After appreciating the evidentiary value and the attendant circumstances of the case, the trial court recorded finding of conviction and passed the aforesaid sentence. 20. Resultantly, this appeal. 21. Contention extended is straight forward to the ambit that in this case the very foundation/basis of the entire case rests admittedly on the sanctity of the trap operation carried out on the spot of Cold Drinks Shop near Begampul by the trap team against the appellant-accused on 08.08.1997 at 2:00 p.m. is shaky and doubtful and the same becomes ante-time, for the reason that entire prosecution was conducted near Begampul at the Police Station - Lal Kurti, District - Meerut in mechanical way. This aspect exposes hollowness of the entire prosecution case. The entire prosecution story is concocted, baseless and is the outcome of mischievous thinking of the informant of this case in collusion with the so called complainant Vinod Kumar Jain in order to avoid payment of the recovery citation. This aspect exposes hollowness of the entire prosecution case. The entire prosecution story is concocted, baseless and is the outcome of mischievous thinking of the informant of this case in collusion with the so called complainant Vinod Kumar Jain in order to avoid payment of the recovery citation. The trap in question has not been properly proved and established because two independent government witnesses nominated by the District Magistrate, Meerut namely Vijay Kumar and Sant Ram (both Government Servant) PW-1 and PW-2 have stated correct facts with acuteness that nothing took place on the spot and the entire proceeding was actually done at the concerned police station. The sanctity of this testimony of both the witnesses who were nominated by the District Magistrate, Meerut reaches to its height in view of the fact that whatever was found on the spot was stated correctly that proceeding took place at the police station. It means that no trap was conducted at the Cold Drinks Shop near Begampul. The testimony of these two witnesses was accurate and it cannot be said that they have been won over. Once being nominated by the District Magistrate, Meerut, both the witnesses have stated the truth but their testimony has been overlooked by the trial court for no worthy reason. The trial court acted on conjecture and surmises, misread the entire evidence based on conjecture and recorded conviction, which in the prevailing facts and circumstance of the case stands vitiated, consequently judgment of conviction and sentence dated 18.1.2008 passed by the Special Judge Anti Corruption Act, Meerut, is illegal, perverse besides being erroneous and the same is liable to be set aside. Appellant is innocent. 22. Per contra, the learned A.G.A. has vehemently opposed to the aforesaid contention by replying that the fact is that the flour miller Vinod Kumar Jain, in fact, took some loan from the Panjab National Bank concerned but he could not pay back the loan in time. Consequently, recovery citation / notice was issued against him and the appellant being Amin of the area was entrusted by the concerned Tehsildar for realizing the recovery amount from him ( flour miller ). 23. It so happened that the appellant somehow misguided the flour miller and demanded from him Rs. 2,000/- as bribe for stalling recovery proceeding, which he refused. 23. It so happened that the appellant somehow misguided the flour miller and demanded from him Rs. 2,000/- as bribe for stalling recovery proceeding, which he refused. Flour miller asked the appellant first to handover the receipts of amount previously paid in various installments. The appellant promised that he will give the receipt after getting the entire amount paid up by mentioning therein the same (entire amount). But no receipt at all was given. However, subsequently an illegal demand for gratifying the palm of the appellant was raised by the appellant himself for Rs. 2,000/-. Information of this demand was intimated by Vinod Kumar Jain to the authorities concerned by moving written complaint, whereby after inquiring into the matter, a trap team was constituted along with two nominees of D.M., Meerut which apprehended red handed the appellant while taking bribe, which after conduction of case by the trial couirt led to his conviction, consequently the sentence. 24. On merit, it has been claimed that apart from the two witnesses the informant himself has deposed about the trap proceeding as a witness of fact, as he was present on the spot, even if the two witnesses have not supported the prosecution story regarding the proceeding of trap on the spot, it is obvious that they have been won over by the appellant or they are concealing the truth, therefore, they are not speaking the actual truth. The entirety of the case, is proved that the appellant wanted illegal gratification in the shape of Rs. 2,000/- from the flour miller. The statement of the two prosecution witnesses (nominees) can not form basis of any doubt but over all evaluation of the entire evidence on record is to be made, therefore, the trial court has rightly convicted the appellant and passed sentence accordingly. 25. Considered rival submissions - ut supra - of the parties. 26. After considering the rival submissions and perusing record of this case, moot point involved for adjudication of this appeal basically relates to the fact whether the prosecution story is established as per averment of the trap team or whether the trap proceeding, in fact, took place on the spot at the aforesaid shop of the Cold Drinks or trap proceeding was mechanically completed at the police station Lalkurti, District Meerut? 27. 27. It can be observed that insofar as contents of the complaint are concerned, specific allegation of demand of bribe has been made by the complainant Vijay Kumar Jain, flour miller wherein it was averred that the appellant was demanding illegal gratification from the complainant which was preliminary agreed upon to be paid at Cold Drinks Shop at Derawal Dressers and after preliminary inquiry in the allegations in complaint by the Inspector, Vigilance Cell Meerut, genuineness of the complaint was found intact whereupon the Superintendent of Police, Vigilance Cell Meerut formed a trap team to be headed by two Inspectors along with two constables and to ensure transparency, two independent government witnesses were asked to be made available by writing letter to the District Magistrate, Meerut whereupon two independent government witnesses Vijay Kumar and Sant Ram Singh were made available to the trap team. 28. Now the trap team proceeded to the spot on 08.08.1997 at Begampul, Meerut at the aforesaid Cold Drinks Shop at Derawal Dressers where every person took his respective position and waited for the appellant to come over there. In the meanwhile, the appellant was seen coming to the spot on a scooter, he parked his scooter and arrived at the counter of the Cold Drinks Shop at Derawal Dressers where he met with the complainant Vinod Kumar Jain, flour miller and demanded Rs.2000/- whereupon the complainant Vinod Kumar Jain gave him four currency notes each of Rs.500/- denomination and the appellant after counting the same held it in his right hand. 29. At that point of opportune moment, the Inspector Vigilance Cell Meerut intercepted and introduced himself to the appellant and told him that he has received bribe, therefore, search of his person is to be made by him. Thereafter, on search being made of the person of the appellant, four currency notes each of Rs.500/- denomination were recovered from the right hand of the appellant. Thereafter, other necessary formality was done on the spot and the hands of the appellant were washed in the solution of sodium carbonate whereupon colour of the solution turned pink. Similarly, hands of the complainant Vinod Kumar Jain were also washed and the same result was obtained and sample of the solution were kept under seal in respective bottles. 30. Thereafter, other necessary formality was done on the spot and the hands of the appellant were washed in the solution of sodium carbonate whereupon colour of the solution turned pink. Similarly, hands of the complainant Vinod Kumar Jain were also washed and the same result was obtained and sample of the solution were kept under seal in respective bottles. 30. After completing all these things, the appellant was arrested and memo of the entire proceeding was noted down on the spot and it was signed by all the members of the trap team including the two independent government witnesses and the appellant as well, copy whereof was handed over to the appellant and he was taken to Police Station Lalkurti where report was lodged against him and the Check FIR was entered at the aforesaid crime number at the aforesaid date and time at Police Station Lalkurti, District Meerut and a case at Case Crime No.187 of 1997 was registered against the accused - appellant. 31. To cut short the matter, it is gathered from testimony of Vijay Kumar PW-1 and Sant Ram Singh PW-2, who elaborated and verified proceeding of the trap team and the so-called proceeding on the spot. The Investigating Officer has also prepared site plan Ext. Ka-21 wherein specific spots have been mentioned where the trap proceeding took place on 08.08.1997 at 2:00 p.m. and the various spots were shown noting where the appellant was standing and what was position of the complainant Vinod Kumar Jain. Now moot point for adjudication is whether their testimony is to be accepted in all or not? 32. Upon perusal of the records, facts and circumstances of the case, the entire prosecution story as stated by the informant Inspector, Vigilance Cell Meerut and other members of the Vigilance Cell Meerut becomes highly doubtful in view of specific testimony of the two independent government witnesses Vijay Kumar and Sant Ram Singh (PW-1 and PW-2 respectively) who were nominated by the District Magistrate, Meerut. They have not supported the proceeding of trap being laid at the aforesaid Cold Drinks Shop at Derawal Dressers, Begampul on 08.08.1997 at 2:00 p.m. Their testimony specifically indicates that the entire proceeding of trap and preparation of memo of recovery and arrest was done at Police Station Lalkurti, District Meerut and it never took place on the spot. They have not supported the proceeding of trap being laid at the aforesaid Cold Drinks Shop at Derawal Dressers, Begampul on 08.08.1997 at 2:00 p.m. Their testimony specifically indicates that the entire proceeding of trap and preparation of memo of recovery and arrest was done at Police Station Lalkurti, District Meerut and it never took place on the spot. The testimony of the two prosecution witnesses PW-1 and PW-2 is innocuous and without blemish. In the result, the site plan becomes dubious and cannot be believed as such. Once the site plan becomes dubious, the version of the trap team as vindicated by the Inspector, Vigilance Cell Meerut and the two constables, Vigilance Cell Meerut before the trial court become highly doubtful. It means that no trap ever took place as claimed by the prosecution witnesses forming the trap team. 33. Had the two independent government witnesses PW-1 and PW-2 been witnesses of the public as ordinary then possibility of their being won over by the appellant would have been there but they being the two nominees independent government witnesses, they are expected to ensure accuracy of trap, it is obvious that they have stated the truth as to what happened on the spot before them. Why they will take U-turn about the spot trap claim is not satisfactorily explained. Their testimony on the whole is trustworthy in the sense that they have stated categorically that the entire proceeding of trap took place at Police Station Lalkurti, District Meerut. It means that the trap proceeding did not take place at Cold Drinks Shop at Derawal Dressers as claimed by the prosecution. 34. Once the trap proceeding becomes doubtful and the preparation of the recovery memo on the spot is thus found to be not genuine, then the same becomes a waste paper and the centre point of the entire prosecution case - the trap proceeding and the memo of the trap proceeding are not proved and established even in the least degree. If it did not take place on the spot instead the trap proceeding was somehow perfunctorily done at Police Station Lalkurti, District Meerut then none but the prosecution itself is to be blamed and this vital aspect forming central theme of the prosecution story cannot be bypassed on any reasoning positive or negative. If it did not take place on the spot instead the trap proceeding was somehow perfunctorily done at Police Station Lalkurti, District Meerut then none but the prosecution itself is to be blamed and this vital aspect forming central theme of the prosecution story cannot be bypassed on any reasoning positive or negative. Trap proceeding requires satisfactory probative force which under facts and circumstances of the case ought and must be proved beyond reasonable doubt. 35. Here the two independent government witnesses Vijay Kumar and Sant Ram Singh have categorically testified to the ambit that the entire proceeding took place at Police Station Lalkurti, District Meerut, which virtually vitiates the entire prosecution case and in the end, it can be affirmed that nothing has been proved by the prosecution in regard to the recovery and arrest of the appellant on the spot as per site plan Ext. Ka-21. In this regard, statement of the appellant recorded under Section 313 Cr.P.C. becomes relevant worth consideration that the complainant Vinod Kumar Jain had himself asked him to come at Cold Drinks Shop at Derawal Dressers where he handed over money, thereafter the appellant was taken to the Police Station Lalkurti, District Meerut and the entire proceeding completed there (at the police station Lalkurti). 36. The trial court somehow overlooked this vital aspect and diluted the same by reasoning but this factual aspect cannot be diluted by any stretch of reasoning and it requires complete and satisfactory probe. Thus, on the basis of analysis made herein above, this Court is of the view that the trial court's finding on the point of holding guilty the accused-appellant for the offence under Sections 7, 13 (1) (d) read with Section 13(2) of Prevention of Corruption Act, 1988 is not in accordance with the evidence and law and the same is not sustainable, in the result, the appeal filed by the appellant is liable to be allowed. 37. For all the reasons stated above, the appellant is entitled to the benefit of doubt and, accordingly, is entitled to acquittal. 38. In the result, the appeal is allowed and the judgment and order of conviction dated 18.01.2008 passed by Special Judge, (Anti Corruption) Meerut, in Criminal Case No.07 of 1999 State Vs. 37. For all the reasons stated above, the appellant is entitled to the benefit of doubt and, accordingly, is entitled to acquittal. 38. In the result, the appeal is allowed and the judgment and order of conviction dated 18.01.2008 passed by Special Judge, (Anti Corruption) Meerut, in Criminal Case No.07 of 1999 State Vs. Adesh Kumar Amin, arising out of Case Crime No.187 of 1997, under Sections 7, 13 (1) (d) read with Section 13 (2) of Prevention of Corruption Act, 1988, Police Station- Lalkurti, District- Meerut, is hereby set aside. 39. Appellant Adesh Kumar Amin is acquitted of charge levelled against him in this case. He is on bail. He need not surrender. His bail bonds and sureties stand discharged. 40. Let a copy of this judgment/order be certified to the court concerned for necessary informant and follow up action.