Jharkhand High Court
Md. Quyumuddin Ahmad vs The State Of Jharkhand on 15 June, 2007
Equivalent citations: 2007 (3) AIR JHAR R 835
Author: D.G.R. Patnaik
Bench: D.G.R. Patnaik
JUDGMENT D.G.R. Patnaik, J.
1. The appellant was convicted by the Special Judge, C.B.I.-cum-01st Additional Sessions Judge, Dhanbad in R.C. Case No. 20 (A)/88 (D) for the offence under Sections 7 and 13(1)(d) of the Prevention of Corruption Act, 1988 read with Section 13(2) of the said Act and sentenced to undergo Rigorous Imprisonment for 3 years for the offence under Section 7 of the aforesaid Act besides imposition of fine of Rs. 500/-and in default of payment of fine, further imprisonment of 2 months and further sentenced to undergo R.I. for a period of 3 years for the offence under Section 13(1)(d) under the said Act with a fine of Rs. 500/- and in default of payment of fine further sentence of 2 months R.I. Against the aforesaid order of conviction and sentence, the appellant has preferred the instant appeal.
2. The case of the prosecution in nutshell is that the appellant being the Post Master of Bhuli Post Office, Dhanbad, demanded an illegal gratification of Rs. 300/- from the complainant, Pawan Kumar Srivastava (P.W. 1) for himself as well as for other officials of the said Post Office as a consideration for releasing the amount of family pension, payable to Smt. Chandra Badan Devi (P.W. 5), the mother of the complainant. On report by the complainant to the Superintendent of Police, C.B.I., Dhanbad on 13.09.1998, a case was registered against the appellant being R.C. Case No. 20 (A)/88 (d) and consequently, a trap team comprising of C.B.I. Officials besides the complainant and the independent witnesses, namely, Shri Ram Dhyan Ojha. (P.W. 2) and Shri S.N. Mitra (P.W. 4) was constituted after a rehearsal of the proposed trap and in presence of the witnesses, trap memorandum was prepared, in which the denomination of a currency notes of Rs. 100/-, was recorded. The currency note dusted with Phenolphthalein powder was handed over to the complainant. Thereafter the raiding party came to the Bhuli Post Office, where the members of the raiding party took their strategic positions. The complainant alongwith his mother Chandra Badan Devi and the two witnesses, named above, entered into the room of the appellant. When the complainant approached the appellant, the later enquired as to whether the separate amount of Rs. 100/- was brought by him and on receiving an affirmative reply, the appellant allegedly reminded him about the agreed deduction of Rs. 200/-from the total payable amount of family pension. Thereafter, on obtaining the L.T.I, of the lady Smt. Chandra Badan Devi (P.W. 5), a sum of Rs. 18,900/- was handed over to the complainant, who counted the money. However, the acknowledgement receipt for the sum of Rs. 19, 100/- was made, since it was explained by the complainant that the amount of Rs. 200/- was deducted from the total payable amount of family pension. The appellant thereafter followed the complainant to the Verandah and demanded Rs. 100/-, and in response to the demand, the complainant brought out the tainted currency note of Rs. 100/- from his pocket and handed over the same to the appellant, who kept the currency note in the front pocket of his trouser. The shadow witnesses on receiving the signal from the complainant alongwith the other members of the raiding party pounced upon the appellant. On being challenged, the appellant accepted to have received the illegal gratification of Rs. 100/- from the complainant. The tainted currency note was retrieved from the trouser pocket of the appellant and on comparing the number of the currency note with the number recorded in the pre-trap memorandum and the chemical test was conducted after dipping the right hand of the appellant in a solution sodium carbonate. A similar chemical test of the left hand of the appellant was also conducted and both the solutions were preserved in a separate glass phials duly sealed and signed by the concerned witnesses affixing specific mark of identification thereon. The inner lining of the trouser pocket of the appellant from where the said currency note was recovered was also dipped in a separate sodium carbonate solution and the same was also preserved in yet another glass phial with another mark of identification. The recovered tainted money was also preserved in a small size envelope duly sealed and signed by all.
3. At the trial, eight witnesses were examined by the prosecution including the complainant (P.W. 1), his mother (P.W. 5), two trap witnesses, namely, P.W. 2 and P.W. 4, a clerk employed at the Bhuli Post Office (P.W. 3) and the Investigating Officer (P.W. 6), the authority, who granted sanction for prosecution (P.W. 7 ) and the expert witness (P.W. 8). Besides the oral evidences of the witnesses, the prosecution had also adduced certain documents in evidence, which include the letter of sanction for prosecution (Exhibit 23). On considering the evidences on record and placing reliance on the testimony of the complainant, the trap witnesses as well as that of the Investigating officer, the trial court recorded its finding of guilt against the appellant for the aforesaid offences and sentenced him, accordingly
4. The appellant has challenged his judgment of conviction and sentence on the following main grounds:
(i) That the appellant was implicated on cooked-up allegation at the behest of one R.K. Prasad, who was on inimical terms with the appellant.
(ii) That the prosecution has not proved that the appellant had made any demand whatsoever from the complainant or from the complainant's mother for any illegal gratification.
(iii) That the prosecution has not proved by cogent and reliable evidence that the appellant had accepted or received the sum of Rs. 200/- from the complainant.
(iv) That the prosecution has likewise failed to prove that the appellant had accepted the sum of Rs. 100/- from the complainant.
(v) That no preliminary verification of the complaint lodged by the complainant was made prior to conducting the alleged raid.
(vi) That the sanctioning Authority (P.W. 7) did not apply his judicial mind for granting the sanction to prosecute the appellant.
5. Heard the learned Counsel for the appellant and learned Counsel for the State.
6. Elaborating the grounds of the appellant's false implication, learned Counsel for the appellant refers to the evidence of the complainant (P.W. 1) and points out that the complainant has admitted that he knows R.K. Prasad, who happens to be the Union leader of the Postal Department and that the said R.K. Prasad happens to be a relative of the complainant. Learned Counsel next refers to the evidence of P.W. 3, who is an Assistant, employed at the Bhuli Post Office and points out that this witness has categorically admitted that prior to the institution of the present case, there was a quarrel between the present appellant and R.K. Prasad. Learned Counsel further refers in this context to the evidence of P.W. 2, who has also admitted that there was a quarrel between R.K. Prasad and the present appellant prior to the institution of the present case. Learned Counsel also points out from the evidence that the said R.K. Prasad was seen at the place and time, when the C.B.I, officials conducted the raid. Learned Counsel argues that the above admitted facts clearly point out that there was previous enmity between R.K. Prasad and the appellant and that R.K. Prasad, who happens to be a near relative of the complainant was instrumental in getting, the case instituted against the appellant on false allegations.
On the point that the prosecution has not proved that the appellant had made demand for any illegal gratification, learned Counsel refers to the evidences of P.W. 1 and that of P.W. 5 and the contradictions, therein. Learned Counsel explains that P.W. 1 claims to have received a sum of Rs. 18,900/- only but the mother (P.W. 5) has categorically stated that she had received a total sum of Rs. 19,100/- and that she did not find any shortage in the payable amount and further, that her son had not complained or informed her that the amount paid was short of any amount. Learned Counsel further refers to the evidence of P.W. 1 and points out that as per the admission of this witness, the receipt in respect of the money received was true and correct, The evidence of P.W. 2, claimed to be one of the trap witnesses has also been referred to, wherein, he has acknowledged that one bundle of currency notes was given to him and he had counted the money and had found the same to be complete. A similar statement had been given by P.W. 3, who affirms that the amount paid to the mother of the complainant was a sum of Rs. 19,100/- and against which, she has executed a receipt affixing her L.T.I. on the pension papers. P.W. 3 has also stated that on verification, no excess amount was found with the appellant after the raid nor was any anomaly found in the unclassified head as per the cash Register. On the basis of the above evidences, learned Counsel argues that the allegation that the appellant had demanded and received a sum of Rs. 200/- by way of deducting the money from the payable amount of pension is totally falsified.
On the point of alleged acceptance of a sum of Rs. 100/- from the complainant (P.W. 1) by the appellant, learned Counsel points out that the complainant, who has claimed that the currency note of Rs. 100/- was given almost simultaneously across the counter after the pension papers were cleared, meaning thereby that the appellant was continuously sitting at his chair and the entire transaction took place in one go. On the other hand, the prosecution has come up with the case that after releasing the pension papers and obtaining the L.T.I, of the lady, the appellant came out from his office along with the complainant to the Verandah, where the currency note of Rs. 100/- was given to the complainant. This according to the learned Counsel for the appellant is a vital contradiction, which entirely falsifies the case of the prosecution regarding the manner of transaction.
Learned Counsel refers next to the other ground, namely that no pre-verification of the complaint lodged by the complainant was made by the C.B.I. Officials, nor has any verification Report been filed at the trial by the prosecution, and neither has any verification Officer been examined by the prosecution. Learned Counsel points out from the evidence of P.W. 1 and the date and time on which the pre-trap memorandum was recorded that there was a gap of hardly less than one hour and therefore the complaint, could not possibly have been verified within the short span of time. Learned Counsel further argues that that the manner in which the entire operation was conducted definitely suggests that the entire operation was conducted with oblique motives.
On the last point regarding impropriety of the sanction for prosecution, learned Counsel refers to the evidence of P.W. 7 and points out that this witness has acknowledged that on the basis of the investigation Report of the C.B.I, on the findings of the trap case including the evidence of trap witnesses, she has given the sanction for prosecuting the appellant. Learned Counsel argues that it is apparent from the above admission of P.W. 7 that she has merely accepted the Investigation Report, to accord the sanction for prosecution without applying judicial mind. learned Counsel argues that such a sanction without application of mind is totally illegal and is a nullity. On this issue, learned Counsel refers to the judgment of the apex Court in the case of Mansukhlal Vithaldas Chauhan v. tate of Gujarat .
7. As against this, learned Counsel for the State claims to support the judgment of conviction as imposed against the appellant and argues that from the evidence of the complainant and the trap witnesses as well as of the Investigating Officer, it leaves no doubt to conclude that the tainted currency note was recovered from the possession of the appellant and the recovery itself lead to the presumption that the appellant had received the money by way of illegal gratification and not by way of any sum, lawfully receivable by him.
8. Out of the several grounds, advanced by the appellant, two grounds do stand out. First is that the prosecution has not proved by cogent and reliable evidence that the appellant had demanded a sum of Rs. 300/- from the complainant and that according to a prior understanding between him and the complainant, the appellant had deducted the sum of Rs. 200/- from the payable amount of pension, before making the payment of pension amount and also that the appellant had demanded the sum of Rs. 100/- from the complainant. From the evidence of P.W. 5, who is the mother of the complainant and the recipient of the pension amount, it would appear that she has categorically admitted to have received the total sum of Rs. 19,100/-, which was the payable amount of pension to her. She has not alleged any shortage in the amount paid to her. Rather, she admits that her son, namely, the complainant had not told her of any shortage of any amount paid to her. The receipt, acknowledging the payment made to her in presence of the witnesses also indicate that a total sum of Rs. 19,100/- was paid to the lady and this fact is also affirmed by P.W. 2, a member of the trap team who admits to have counted the bundle of currency notes and found the same to be complete. P.W. 3, who is an Assistant, employed at the said Post Office in his evidence has explained that there was no excess cash found with the appellant, on verification of the Cash Register. These evidences are sufficient to indicate that the complainant's mother was paid full payable amount of sanction and no deduction of any money was made there from on any account. The above evidences do clearly contradict the prosecution's claim regarding the demand and acceptance of the appellant for the sum of Rs. 300/- from the complainant.
9. By the same evidences of the Prosecution, it appears that there is no cogent and reliable evidence to confirm that the appellant had demanded a sum of Rs. 100/- separately as illegal gratification from the complainant. This is perceptible from the contradiction in the manner of occurrence as explained by the complainant in his deposition and the manner projected by the prosecution through the other witnesses. As rightly pointed out by the learned Counsel for the appellant, one set of the evidences of the prosecution including that of the complainant (P.W. 1), suggests that the entire transaction concluded at a single stretch across the counter. The other set of evidences want to impress that the appellant followed the complainant out of his room on to the Verandah, where the tainted currency note was given to him. This contradiction in the manner of occurrence is a serious contradiction, as it does not specify the actual place where the currency note was allegedly handed over to the appellant. Even otherwise, there does not appear to be any consistent evidence from any witness that the appellant had demanded the sum of Rs. 100/- from the complainant by way of illegal gratification and on this issue, the prosecution is left with the statement of the complainant whose evidence as pointed out above, does not appear to be consistent regarding the manner of occurrence. Mere recovery of the tainted currency note from the possession of the appellant in itself cannot lead to any adverse inference against him unless it is proved that he demanded the money as illegal gratification and knowingly accepted the same. The fact that the Union leader of the Post Office, namely, R.K. Prasad, who admittedly is a close relative of the complainant and who had indulged in a quarrel with the complainant one day prior to the occurrence and the fact that the said Union leader was present at the time when the raid was made by the C.B.I. Officials, assumes significance in the light of the further fact that the Prosecution has not proved by any cogent evidence that a verification into the complaint of the complainant was made prior to the institution of the case. The defence is entitled to harbour a reasonable suspicion of the involvement of R.K. Prasad and a genuine belief that the entire operation was conducted at the behest of R.K. Prasad, who was on enmical terms with the appellant and the raid was conducted in hot haste without prior verification of the complaint and the tainted currency note was implanted to create incriminating evidence against the appellant. The appellant in his statement under Section 313, Cr.P.C. has specified his categorical defence specified his categorical defence that he was implicated on false accusations at the behest of his enemy R.K. Prasad.
10. As regards, the ground taken by the appellant on the point of improper sanction, I am not persuaded to accept the argument of the learned Counsel on this issue. The sanctioning authority i.e. P.W. 7, has stated that she had granted the sanction for prosecuting the appellant after going through the relevant documents on record, which include the Investigating Report and the statements of the trap witnesses. These were materials sufficient for the sanctioning authority to consider and to apply her mind, which she did. Even otherwise, there does not appear to be any miscarriage of justice caused to the appellant on account of any irregularity in the order of sanction.
11. Nevertheless, on the other issues discussed above, I find that the Prosecution has not been able to prove and establish beyond reasonable doubt, the charge framed against the appellant, namely, that he had demanded and received a sum of Rs. 300/- from the complainant by way of illegal gratification.
12. From the perusal of the impugned judgment of the trial court, which was recorded almost 14 years after the alleged date of occurrence, I find that the learned trial court has failed to consider the above noted inconsistencies in the prosecution evidence and the shortcomings, therein, in respect of the proof of the charges for which the appellant was put on trial.
13. In the light of the above discussions, I find merit in this appeal. Accordingly, this appeal is allowed. The impugned judgment of the appellant's conviction for the offences under Sections 7 and 13(1)(d) and 13(2) of the Prevention of Corruption Act 1988 and the sentence imposed against him for the said offences as recorded by the learned trial court is hereby quashed. The appellant is hereby acquitted from the charges in respect of the aforementioned offences and he is absolved from the liability of his bail bonds.