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2021 DIGILAW 1103 (ALL)

Sunil Chaudhary v. State of U. P.

2021-09-22

AJAI TYAGI

body2021
JUDGMENT : Ajai Tyagi, J. 1. This appeal has been preferred against the impugned judgment and order dated 3.7.2018, passed by Special Judge, Anti-Corruption/Additional Sessions Judge, Meerut, in Criminal Case No.08 of 2013 (State vs. Sunil Chaudhary) arising out of Case Crime No.1146 of 2013, under Section 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (herein after referred to as 'the Act, 1988'), Police Station-Loni, District-Ghaziabad, by which the appellant was convicted and sentenced for a period of four years and fine of Rs.15,000/-under Section 7 of the Act, 1988 and for a period of five years and Rs.15,000/-fine under Section 13(2) of the Act, 1988 with imprisonment in default of fine. All the sentences were directed to run concurrently. 2. Brief facts of this case are that on 6.6.2013, a case was registered against the appellant-Sunil Chaudhary on the basis of first information report (Ex.ka10), according to which, the appellant was lekhpal and posted in Tehsil-Loni, District-Ghaziabad as a public servant. One Sonepal had applied through an application for measurement of his land and the said application was given to concerned Sub Divisional Magistrate. On 4.6.2013, complainant-Pramod Sharma submitted an application in the office of Anti-corruption, Meerut, stating that his cousin-Sonepal had moved an application to SDM for measuring his land. That application was sent to lekhpal-Sunil Chaudhary. On 3.5.2013, he met with lekhpal, but he demanded Rs.50,000/-as bribe for measurement of the land. Again on 1.6.2013, he met with lekhpal, but he told that he will not make the measurement unless he has given Rs.50,000/-. After bargaining, lekhpalwas ready to take Rs.30,000/-as bribe and said that he should talk to him on 6.6.2013. It is said in first information report that complainant did not want to give the bribe, but wanted that lekhpal should be caught red-handed. After recording the statement of complainant, Inspector G.S.Chauhan was directed to conduct pre-trap exercise. Shri Chauhan submitted report that general reputation of lekhpalis of a corrupt public servant. Team for trap was organized and District Magistrate, Ghaziabad, was contacted to make two independent witnesses available. District Magistrate nominated Shri Raj Singh Yadav, DIOS Ghaziabad, and directed that he should take one of his subordinates with him as witness. Shri Raj Singh Yadav took Shri Tasleen with him from the office of DIOS. Team for trap was organized and District Magistrate, Ghaziabad, was contacted to make two independent witnesses available. District Magistrate nominated Shri Raj Singh Yadav, DIOS Ghaziabad, and directed that he should take one of his subordinates with him as witness. Shri Raj Singh Yadav took Shri Tasleen with him from the office of DIOS. Trap-team led by Deputy S.P.-Ravindra Pal Singh Tomar, went to the place of occurrence where complainant met with the team. Complainant handed over Rs.30,000/-, consisting of 60 notes of Rs.500/-to D.S.P., who noted the numbers of currency notes. Constable Anand Swaroop applied chemical powder on the notes. After that above notes were handed over to the complainant with the direction that these notes will be given to the lekhpal on his demand. Hands of constable Anand Swaroop and the complainant were made to wash separately in the liquid of sodium-carbonate and the colour of water turned pink, which was filled in separate bottles and sealed. 3. It was told by the complainant that lekhpal has called him at about 01:00 p.m. in front of Abhinandan Vatika, trap-teem took the position near Abhinandan Vatika. At about 1:15 p.m., he came there in Swift Car bearing No.UP14BR1105. Complainant reached to the lekhpa land asked him to conduct the measurement of his land. Lekhpal demanded Rs.30,000/-as bribe as decided earlier. Complainant handed over the notes, which were treated with the chemical. Trap-team surrounded lekhpal at once. Lekhpal tried to flee away, but he was caught 15 steps away from the car at about 1:30 p.m. and treated 60 notes of Rs.500/-were recovered from his right hand. On the basis of above report, Case Crime No.1146 of 2013 was registered against the appellant. 4. Report was received from Forensic Science Laboratory, Agra, according to which in the sample liquid contained in bottles, sent for chemical examination, sodium-carbonate and phenolphthalein was found. This report is Ex.ka16 on record. After investigation, Investigating Officer submitted charge-sheet against the appellant-lekhpal under Section 7/13 (1) d and 13 (2) Prevention of Corruption Act, 1988. 5. Learned trial court framed charges against the appellant under Section 7 of the Prevention of Corruption Act, 1988 and Section 13(1) d and 13(2) of the Prevention of Corruption Act, 1988. Learned trial court, after conclusion of trial, convicted the appellant for the aforesaid charges and sentenced as stated earlier. Hence, this appeal. 6. 5. Learned trial court framed charges against the appellant under Section 7 of the Prevention of Corruption Act, 1988 and Section 13(1) d and 13(2) of the Prevention of Corruption Act, 1988. Learned trial court, after conclusion of trial, convicted the appellant for the aforesaid charges and sentenced as stated earlier. Hence, this appeal. 6. Heard Shri Aishwarya Pratap Singh, learned Advocate, assisted by Shri Munna Pandey, learned counsel for the appellant, Shri S.S.Sachan, learned AGA appearing on behalf of State and perused the record. 7. Learned counsel for the appellant submitted that appellant has been falsely implicated in this case by the complainant due to annoyance. The work of measuring the land was not in the work-domain of the appellant. He has revealed this fact in writing to his superior officers. He further argued that the work of measurement of land was to be conducted by a three-member committee and not by lekhpal alone. Therefore, when the work of measurement was not in work-domain of the appellant, there was no question for demanding any bribe. He further submitted that prosecution has failed to prove that any demand of bribe was made by the appellant. It is also submitted that prosecution witnesses have given contradictory statements regarding the dates of demand. It is next argued by counsel for the appellant that story of trapping was narrated by prosecution witnesses, but it is also contrary to the statements of each other. Manner of arrest on the spot is also told differently by prosecution witnesses. Learned counsel contended that in fact, appellant refused for measurement of land because it was not within his work-domain and due to that reason, complainant misunderstood that appellant is in connivance with the other party. Hence, complainant falsely implicated the appellant. 8. Per contra, learned AGA submitted that all the witnesses of fact have supported the prosecution case. Minor discrepancies in the statements of witnesses are bound to occur when statements were recorded after a lapse of time, but overall story is the same. It is also submitted that recovery of Rs.30,000/-treated notes was made from the possession of the appellant, which is not a small amount. It is next submitted that Mahaveer Prasad (PW6), Revenue Inspector at the time of occurrence, has proved that the application of complainant's brother, namely, Sonepal was sent to appellant-lekhpal in writing. It is also submitted that recovery of Rs.30,000/-treated notes was made from the possession of the appellant, which is not a small amount. It is next submitted that Mahaveer Prasad (PW6), Revenue Inspector at the time of occurrence, has proved that the application of complainant's brother, namely, Sonepal was sent to appellant-lekhpal in writing. Therefore, it is proved that work had to be conducted by the appellant only. Therefore, there was no question of false implication. Moreover, laboratory report has also supported the prosecution case. As far as demand is concerned, it is a matter between two persons. Learned trial court has rightly convicted and sentenced the appellant. Hence, the appeal is liable to be dismissed. 9. First of all, learned counsel for the appellant has raised the argument with regard to the demand of bribe. It is stated by learned counsel for the appellant that it was a matter of measurement of land of complainant's brother, but this work was not in the domain of appellant. A three-members committee does this work and complainant's land was also measured by forming a three-members committee. PW1 has categorically stated that SDM formed the committee consisting of Ayub Khan (Lekhpal), Rakesh Sharma (Lekhpal) and Mahaveer (Kanoongo), which recorded their statements also. Therefore, it is very much natural when the work of measurement was not to be conducted by the appellant, there was no question of demand of bribe. 10. It is also submitted by learned counsel for the appellant that prosecution witnesses have failed to establish the date of aforesaid demand. In this regard, PW1-complainant Pramod Sharma has stated in his statement that he met with appellant in connection with measurement of land for the very first time in May, 2013, but he could not tell that before or after how many days of date 15th of the month, he met with the appellant. In his examination-in-chief, the complainant-Pramod Sharma (PW1) has said that he met with appellant on 1.6.2013 while in cross-examination, he said that he met with him in the month of May, 2013. Learned counsel also submitted that complainant has also said in his statement that he did not meet with any person of anti-corruption department between 1.6.2013 and 6.6.2013 while Ravindra Pal Singh Tomar (PW2), the then Deputy S.P. of Anti-Corruption Department has said that complainant met him on 4.6.2013. Learned counsel also submitted that complainant has also said in his statement that he did not meet with any person of anti-corruption department between 1.6.2013 and 6.6.2013 while Ravindra Pal Singh Tomar (PW2), the then Deputy S.P. of Anti-Corruption Department has said that complainant met him on 4.6.2013. In this way, prosecution has measurably failed to establish and prove the factum of demand of bribe by the appellant and when demand is not there, prosecution case does not stand anywhere. 11. Learned counsel submitted a legal argument that demand is sine qua non to constitute the offence under the provisions of Prevention of Corruption Act. Learned counsel referred the case law of B.Jayaraj vs. State of A.P. [2014 SC (supp.) 1837] and submitted that it is held by Hon'ble Apex Court that insofar as the offence under Section 7 is concerned, it is settled position of law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 of the Act unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. 12. Learned counsel argued that since demand is sine qua non to constitute the offence, in the absence of demand, no case is made out against the appellant and learned trial court convicted and sentenced the appellant without sufficient evidence and without the ingredients of the offence. 13. Learned counsel for the appellant argued that from the prosecution evidence at the worst case, it can be said that currency-notes were recovered from the appellant, but this alone does not constitute the offence. To bring home the charges levelled against the appellant, the prosecution is required to prove beyond reasonable doubt that the accused/appellant had demanded the illegal gratification and accepted the same voluntarily. This argument of learned counsel for the appellant is legally correct. Kerala High Court in C.M.Girish Babu vs. CBI Cochin, 2009(3) SCC 779 has also upheld this view. In Surajmal vs. State (Delhi Administration) 1979 (4) SCC 725 , Hon'ble Apex Court held that mere recovery of tainted money divorced from the circumstances under which it is paid not sufficient to convict the accused when the substantive evidence in the case is not reliable. In Surajmal vs. State (Delhi Administration) 1979 (4) SCC 725 , Hon'ble Apex Court held that mere recovery of tainted money divorced from the circumstances under which it is paid not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. 14. In this regard, the statement of PW6 is very important. PW6 was posted as Revenue Inspector, Tehsil-Loni, District-Ghaziabad, in the month of May, 2013, who has stated in his statement that the Paper No.8ka/2, the application of Sonepal, which was received by him from Hanuman Prasad Maurya (Tehsildar) in connection with measurement of the land. He has also stated that he had sent this application to the appellant-Sunil Chaudhary on 8.5.2013 through dak-bahiand lekhpal-Sunil Chaudhari put his signature by receiving this application in dak-bahiat serial No.486. Although, it is in the evidence of SDM (PW8) that he formed a committee of three-members subsequently for measurement of the land yet the statement of PW6 cannot be overlooked for the purpose of application moved for measurement was handed over to appellant to get the work done, therefore, occasion arose for appellant to raise the demand of greasing the palm. Thus, the contention of counsel for the appellant that particular work for which the bribe was demanded, was not in work-domain of the appellant does not exist. As far as, the argument regarding the discrepancies in the dates of demand is concerned, these minor discrepancies do not make the issue of demanding the bribe unbelievable because it is a general phenomenon of human memory that one cannot repeat the things in mechanical manner. It does not make any difference if the PW1 could not ascertain the exact date of demand of bribe whether it was in the month of May, 2013 or on the date of 1st June, 2013 because the crux of the matter is that complainant (PW1) categorically stated that demand was raised by the appellant and in his cross-examination also nothing is extracted which proves fatal regarding the issue of demand. Evidence of a witness should be seen and considered in its entirety and not in piecemeal. Evidence of a witness should be seen and considered in its entirety and not in piecemeal. In my considered opinion, the evidence of PW6 corroborates the evidence of complainant-PW1, who is public servant and it is established that appellant had reason to make the demand, which is positively stated by PW1 that it was raised. 15. It is also argued by counsel for the appellant that application moved for measurement of land was given by Sonepal, who is cousin of complainant, but entire exercise of trapping was carried out at the behest of complainant and Sonepal was not even produced in evidence while he was the prime witness. In this regard, it is in the evidence of PW1 that he had purchased some land from Sonepal so he had interest in measurment of the land because the erstwhile purchaser of the portion of land from Sonepal had encroached the land due to which application for measurement was given to the concerned SDM. 16. It is next argued on behalf of appellant that prosecution witnesses have failed to corroborate each-other's statement regarding the scene of crime and arrest of the appellant. In this regard, it is submitted that PW1 does not say in his statement that he sat inside the car of the appellant at the time of transaction of money, but PW2 says that the complainant sat inside the car. Moreover, PW1 has categorically stated that at that time A.C. of the car was on, but PW2 has said that at that time, glasses (windows) of car were open. If it was so then this statement of PW1 falsifies that A.C. of the car was on. These contradictory statements show that nothing had happened there. There are two versions of the same story. It is also submitted that Raj Singh Yadav (PW4), who is said to be an independent witness, has specifically stated in his statement that he could not hear the conversation between the complainant and the appellant. Hence, it is clear from the aforesaid statement of PW4 that no person was in a position to hear the conversation between them and in this situation, it cannot be said by prosecution that the appellant made any demand from the complainant and complainant gave any money to the appellant. 17. Hence, it is clear from the aforesaid statement of PW4 that no person was in a position to hear the conversation between them and in this situation, it cannot be said by prosecution that the appellant made any demand from the complainant and complainant gave any money to the appellant. 17. Learned counsel for the appellant also submitted that as per site-plan and even on the basis of statements of witnesses, place of occurrence is almost in front of Police Station-Loni. Hence, it is not possible for any person to fix the place for taking the bribe in front of any police station. Moreover, the place of occurrence is not established by prosecution because if it was in front of police station then no police personnel came on the spot and no police personnel of that police station was produced in evidence as it is not in evidence that any police personnel came out from police station when such type of trapping was led by the team. If it was the place of occurrence, it is very busy place, but no public witness is there. 18. These arguments regarding place of occurrence do not convince this Court as it is in evidence of witnesses that police station was 150-200 steps away from the place of occurrence and moreover, when trap-team set the trap, it was not necessary for police personnel to come on the spot because it is not the prosecution case that team contacted or informed the said police station prior to setting the trap. 19. Now, it comes the question of voluntary acceptance of bribe by the appellant. In this regard, perusal of first information report (Ex.ka10) itself shows that it is mentioned in this report that when trap-team caught the appellant then treated 60 notes of Rs.500/-were recovered from his right-hand. Ravindra Pal Singh Tomar (PW2), the then DSP, has also stated in his statement that from his right-hand, Rs.30,000/-were recovered and these were the same notes, which were treated before laying the trap. Hence, when treated-notes were recovered from the hand of the appellant and that too 15-20 steps away from his car then it is itself proved that he accepted the money voluntarily. 20. Recovery of Rs.30,000/-from the possession of appellant at the place of occurrence is not at all doubted. Hence, when treated-notes were recovered from the hand of the appellant and that too 15-20 steps away from his car then it is itself proved that he accepted the money voluntarily. 20. Recovery of Rs.30,000/-from the possession of appellant at the place of occurrence is not at all doubted. There is ample evidence on record that at the time of apprehending the appellant, the amount of Rs.30,000/-was recovered from his right-hand and these were the same currency-notes, which were treated before giving to him as a bribe. Report received from Forensic Science Laboratory, Agra (Ex.ka.16) states that in the sample of liquid sent for chemical examination, sodium-carbonate was found. This liquid was result of washing the hands of appellant and due to application of powder on currency-notes, which were to be given as bribe. Demand of illegal gratification is sinequanonto constitute the offence under the Act. Mere recovery of currency-notes also itself does not constitute the offence under the Act, 1988, unless it is proved beyond all reasonable doubt that the accused-appellant voluntarily accepted the money, knowing it to be bribe. But, in the facts of the present case, I am of the opinion that both the above ingredients of offence under Sections 7 and 13 (1) (d) (ii) of the Act, 1988, are completely satisfied and proved as discussed above. 21. With the above discussion, this Court comes to the conclusion that in this case demand of illegal gratification on the part of the appellant is proved and it is also proved that he accepted it, voluntarily. It is also proved that at the time of apprehending him, the same treated-notes worth Rs.30,000/-were recovered from his right hand. 22. Hence, the learned trial court has rightly appreciated the evidence on record. There is no infirmity or illegality in the impugned judgment. The appeal is devoid of merit and is liable to be dismissed. 23. The appeal is dismissed, accordingly.