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2023 DIGILAW 1042 (JHR)

Dwarika Prasad v. State of Jharkhand

2023-08-17

DEEPAK ROSHAN

body2023
JUDGMENT : DEEPAK ROSHAN, J. 1. Heard learned counsel for the parties. 2. This appeal is directed against the judgment of conviction and order of sentence, both dated 21.12.2004, passed by the learned Special Judge, C.B.I. cum 3rd Additional Sessions Judge, Dhanbad, in R.C. Case No. 25 (A)/94 (D); whereby the appellant has been convicted for the offences punishable under section 7 and Section 13 (2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and sentenced to undergo R.I. for 2 years under each section. The appellant has also been sentenced to pay a fine of Rs. 500/- each under both the section i.e. Rs. 1000/- and in default of payment of fine two months further S.I. has been awarded. However, no separate sentence has been passed under section 120(B) IPC, though the appellant was found guilty under this section also and both the sentences were ordered to run concurrently. 3. The prosecution case in brief is that on 1.9.1994, informant was transferred from Barwadih to Patratu, however he was not released from his office. In this regard when the informant went to Mahendra Prasad; he demanded Rs. 200/- as illegal gratification to issue the release order. Thereafter, on complaint, a trap was laid by CBI and Mahendra Prasad demanded and accepted illegal gratification of Rs. 200/- and further transferred the money to this appellant who was working as carriage and wagons in the said office and the money was recovered from the appellant. 4. Learned senior counsel for the appellant submits that even admitting the entire allegation made in the F.I.R. as well as the case of the CBI as true; then also it is evidently clear that Mahendra Prasad, the co-accused, demanded and accepted the illegal gratification of Rs. 200/-. Thus, it is crystal clear that the demand was made by Mahendra Prasad and not by this appellant. The said Mahendra Prasad was also convicted and filed an appeal before this court which was numbered as Cr. Appeal (SJ) No. 39 of 2005, however, the said criminal appeal of Mahendra Prasad was disposed of by sustaining the conviction. However, his sentence was modified for the period undergone. The said Mahendra Prasad was also convicted and filed an appeal before this court which was numbered as Cr. Appeal (SJ) No. 39 of 2005, however, the said criminal appeal of Mahendra Prasad was disposed of by sustaining the conviction. However, his sentence was modified for the period undergone. Learned senior counsel for the appellant further submits that in the instant application since the demand was not made by this appellant which is sine qua non to bring any accused in the net of trap, the appellant deserves to be acquitted. 5. Mr. Anil Kumar, learned Addl. S.G.I. opposed the prayer for acquittal but could not dispute the fact that the demand was made by the co-accused Mahendra Prasad. However, he submits that the amount was recovered from this appellant. 6. Having heard learned counsel for the parties and after going through the documents available on LCR, it appears that the case of the prosecution is that he was transferred from Barwadih to Patratu on the same post vide office order dated 29.07.1994 issued by Sr. D.P.O. Eastern Railway, Dhanbad. It further appears that though he was transferred but he was not released from his present office and for that he went to meet and talked with co-accused, Mahendra Prasad who was clerk in the office of Barwadih who demanded Rs. 200/- as illegal gratification to issue his release order. When he showed his inability to pay the said amount, Mahendra Prasad told him that he will not be released without paying the said amount and thus the informant informed the CBI. Thus, it is clear that the main case of the prosecution is that it was Mahendra Prasad who was the co-accused has demanded and accepted the illegal gratification of Rs. 200/-. 7. At this stage, it is also relevant to note that no prosecution witness has deposed to the effect that this appellant asked the co-accused Mahendra Prasad to take money from the informant and handover to him. As a matter of fact, the prosecution has failed to prove that there was any proximity between the demand made by the co-accused Mahendra Prasad and the appellant herein and when the demand was not made by this appellant, which is sin qua non for brining any accused in the net of trap; this appellant deserves to be acquitted. As a matter of fact, the prosecution has failed to prove that there was any proximity between the demand made by the co-accused Mahendra Prasad and the appellant herein and when the demand was not made by this appellant, which is sin qua non for brining any accused in the net of trap; this appellant deserves to be acquitted. In this regard reference may be made to the case of K.L. Bakola vs. State through Director, Central Bureau of Investigation, (2015) 8 SCC 395 , wherein the Hon’ble Apex Court at Para 8 has held as under: “8. For coming to the finding of guilt for the offence under Section 13(1)(d) of the Act, firstly, there must be a demand and secondly, there must be acceptance in the sense that the accused received illegal gratification. The courts below recorded concurrent findings that there was evidence on record to substantiate the fact that there was a demand and the complainant paid the bribe amount to the appellant who has accepted the same. The courts below also recorded concurrent findings that there is no reason to discredit the testimony of the complainant (PW-4) and Inspector of Police A.K. Kapoor (PW-7). The defence plea of the accused that the currency notes were put under the sofa without his knowledge was rightly rejected by the courts below. The conviction of the appellant under Section 7 and Section 13(2) read with Section 13(1)(d) of the Act is unassailable.” 8. As noted hereinabove, it was Mahendra Prasad who demanded and accepted the illegal gratification of Rs. 200/- and it is not the case of prosecution that this appellant asked the co-accused Mahendra Prasad to take money from the informant and handover to him. Moreover, this appellant was working as carriage and wagons in the said office and was not competent to ask Mahendra Prasad to take illegal gratification and hand over the same to him. At the cost of repetition, the prosecution has failed to prove that there was any proximity between the demand made by the co-accused Mahendra Prasad and the appellant herein. As indicated herein above, the said Mahendra Prasad was also convicted by the learned trial court and his appeal was also dismissed by this court by sustaining the conviction. 9. At the cost of repetition, the prosecution has failed to prove that there was any proximity between the demand made by the co-accused Mahendra Prasad and the appellant herein. As indicated herein above, the said Mahendra Prasad was also convicted by the learned trial court and his appeal was also dismissed by this court by sustaining the conviction. 9. Having regard to the unabridged discussions made hereinabove and looking to the other all facts and circumstances of the case, the appellant deserves to be acquitted, inasmuch as, the prosecution has failed to the charge against this appellant. Consequently, the judgment of conviction and order of sentence dated 21.12.2004 passed by the learned Special Judge, C.B.I. cum 3rd Additional Sessions Judge, Dhanbad, in R.C. Case No. 25 (A)/94 (D), is set aside. 10. As a result, the instant application stands allowed. The appellant shall be discharged from the liability of his bail bonds. 11. Let the lower court record be sent to the court concerned forthwith.