Patna High Court
Rajeshwar Yadav vs State Of Bihar on 19 August, 2013
Author: Akhilesh Chandra
Bench: Akhilesh Chandra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.297 of 2002
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Rajeshwar Yadav, son of Late Soman Yadav, resident of Mohalla M/3, Officers‟
Flat, New Punaichak, Patna, P.S. Shastri Nagar, District- Patna.
.... .... Appellant/s
Versus
1. State Of Bihar
2. The Union of India, through C.B.I. Patna
Opposite parties.... Respondent/s
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Appearance :
For the Appellant/s : Mr. Chittaranjan Sinha, Sr. Advocate &
Mr. Nityanand Mishra, Advocate.
For the Respondent/s : Mr. Bipin Kumar Sinha (SCCBI)
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CORAM: HONOURABLE MR. JUSTICE AKHILESH CHANDRA
ORAL JUDGMENT
Date: 19-08-2013
This is an appeal preferred by the solitary appellant against his
conviction for the offence under sections 7 and 13 (2) read with section 13 (1) ©
of Prevention of Corruption Act, 1988 hereinafter said as Act and sentenced to
undergo R.I. for two years for each of the offences. However, sentences will run
concurrently as awarded by the Special Judge, C.B.I., South Bihar, Patna in
Special Case No. 83 of 1992, R.C. No. 38 (A) of 1992 on 11 th June, 2002.
2. The prosecution case, in short, is that one U.S. Sharma,
proprietor of M/S U.S. Steel Industries Pvt. Ltd, Phulwarisharif, Patna P.W. 8
applied for telephone connection and after preparation of advice and deposit of
money etc. as per demand notes telephone connections were installed for which
the appellant, Junior Telecom Officer approached and demanded Rs. 1,000/- for
each connection in addition to what has already been officially deposited, as a
gratification. Since the same was not acceptable complaint, Exhibit 7, by an
Patna High Court CR. APP (SJ) No.297 of 2002 dt.19-08-2013 2
employee R.N. Sharma (not examined) was lodged with the S.P. C.B.I. (Not
examined) after initial verification and report Ext. 6 a team of officials including
independent witnesses called from the Branch of State Bank of India was
arranged for trap and demonstration was made by P.W. 12 before the Team and
they were instructed properly what to do. Required currency notes were also made
ready after pouring phenolphthalein powder and as per pre-trap memorandum Ext
9 everything was arranged and the team proceeded and when the appellant
accepted after due conversation Rs.1,000/- as agreed for installation of one
connection, first he was taken into custody got from his office to C.B.I. Office,
recovery, seizure and other legal other formalities as per recovery memo Ext 11
were prepared, obtaining sanction etc. charge sheet was submitted.
3. During trial the prosecution examined altogether 12 witnesses
besides producing a good number of documentary evidence such as:-
Ext.1- Signature on Advice note.
Ext.2 & 2/1- Advice Note.
Ext.3- Sanction order.
Ext.4- Advice No. 313
Mark „X‟ for identification- Photo copy of advice notes dated
17.10.92.
Mark „Y‟ for identification- Letter dt. 11.11.92 of Ram Narayan Sharma.
Mark „Y/1‟ for identification- Letter dt. 11.11.92 of Prabeen Kumar Ext.5- Signature of Sri Sita Ram on bottal No. 507A.
Ext.5/1- Signature of Sri Sita Ram on sealed envelop of piece of Paper.
Ext.5/2- Signature of Sri Sita Ram on sealed envelop of Phenolphthalein Exts. 5/3 to 5/6- Signature of Sri Sita Ram on preliminary memorandum Ext. 5/7- Signature of Sri Sita Ram on sealed envelop of Rs.
1000/-
Ext.5/8- Signature of Sri Sita Ram on bottal of left hand wash. Ext. 5/9- Signature of Sri Sita Ram on bottal of shirt wash. Ext. 5/10- Signature of Sri Sita Ram on sealed envelop of shirt. Ext. 5/11- Signature of Sri Sita Ram on sealed envelop of Carbonate powder.
Ext. 5/12- Signature of Sri Sita Ram on sealed envelop of Rs.
840/-.
Patna High Court CR. APP (SJ) No.297 of 2002 dt.19-08-2013 3 Ext. 5/13- Signature of Sri Sita Ram on sealed envelop of Rs.
300/-
Ext. 5/14 to Ext. 5/17- Signature of Sri Sita Ram on memo of recovery.
Ext. 2/2- Advice Note.
Ext. 5/18- Signature of Sri Krishna Choudhary Ext. 6- Verification report.
Mark Z to Z/2 for identification- Demand Note.
Ext. 7- Complaint.
Ext. 8- Expert report.
Ext. 5/19- Signature of Sri M.K.Sinha on envelop of piece of paper.
Ext. 5/20- Signature of Sri M.K. Sinha on D/W bottal. Ext. 5/21- Signature of Sri M.K. Sinha on envelop of powder use. Ext. 5/22 to 5/25- Signature of Sri M.K. Sinha on preliminary Memorandum.
Ext. 5/26- Signature of Sri Mahendra Kr. Sinha on envelop of tainted amount Rs. 1000/-.
Ext. 5/27- Signature of Sri Mahendra Kr. Sinha on envelop of money of Rs. 840/-.
Ext. 5/28- Signature of Sri M.K. Sinha on envelop of recorded money of Rs. 300/-.
Ext. 5/29- Signature of Sri M.K. Sinha on Right hand wash bottal.
Ext. 5/30- Signature of Sri M.K. Sinha on left hand wash bottal; Ext. 5/31- Signature of Sri M.K. Sinha on pocket wash bottal. Ext. 5/32- Signature of Sri M.K. Sinha on envelop of shirt. Ext. 5/33- Signature of Sri M.K. Sinha on envelop of sodium Carbonate powder.
Ext. 5/34 to 5/37- Signature of Sri M.K. Sinha on recovery memorandum.
Ext. 5/38- Signature of Sri M.K. Sinha on search list. Ext. 5/39- Signature of Sri Sita Ram on search list.
Ext. 5/40- Signature of Sri M.K. Sinha on search list. Ext. 5/41- Signature of Sri Sita Ram on search list.
Ext. 9- Preliminary report.
Ext. 5/42- Signature of J.P. Mishra on Phenolphthalein powder Envelop.
Ext. 5/43- Signature on piece of paper demonstration. Ext. 5/44- Signature of J.P. Mishra on Demonstration wash bottal.
Ext. 5/45- Signature of J.P. Mishra on G.C. Note envelop. Ext. 5/46- L.H.Wash Bottal Signature of J.P. Mishra. Ext. 5/47- R.H. Wash Bottal Signature J.P. Mishra.
Ext. 5/48- Shirt pocket wash bottal signature J.P. Mishra. Ext. 5/49- Signature J.P. Mishra on Sodium Carbonate envelop. Ext. 5/50 to 5/51- Signature J.P. Mishra on personal search G.C. note two envelop.
Ext.5/52 to 5/55- Signature of J.P. Mishra on Recovery of Memorandum.
Ext. 10- F.I.R.
Ext. 5/56 to 5/59- Signature of Nagendra Prasasd on preliminary Patna High Court CR. APP (SJ) No.297 of 2002 dt.19-08-2013 4 Memorandum.
Ext. 5/60 to 5/63- Signature of R.N. Sharma on Preliminary Memorandum (Complainant).
Ext. 5/64 to 5/65- Signature of Nagendra Prasasd and R.N. Sharma on G.C. Note envelop.
Ext. 5/66 to 5/67- Signature of Nagendra Pd. On Personal search G.C. Note two envelop of Rs. 840 and 300.
Ext. 5/68 to 5/69- Signature of R.N. Sharma on personal search G.C. Note envelops two.
Ext. 5/70 to 5/75- Signature of Nagendra Pd. And R.N. Sharma on R.H.W. Bottals & H.N. Bottal and shirt wash Bottal.
Ext. 5/76 to 5/77- Signature of Nagendra Pd. And R.N. Sharma Ext. 5/78 to 5/79- Signature of Nagendra Pd. And R.N. Sharma on sodium carbonate envelop.
Ext. 11- Recovery Memorandum.
Ext. 5/80 to 5/87- Signature of Nagendra Pd. Snd R.N. Sharma on Recovery Memorandum.
Ext.12 to 12/1- Search List two sheets.
Ext. 5/88 to 5/89- Signature on phenolphthalein envelop of Nagendra Pd. And R.N. Sharma.
Ext. 5/90 to 5/91- Demonstration piece of paper; Signature of N. Pd and R.N. Sharma.
Ext. 5/92 to 5/93- D.W. writing signature Nagendra Pd. And R.N. Sharma.
4. In defence there is one witness but no documentary evidence. And on consideration of the materials available the trial court convicted and sentenced the appellant in the manner aforesaid.
5. During course of argument it is contended on behalf of the appellant that before proceeding against the appellant sanction from the competent authority was not obtained for no reason explained. Recovery and seizure etc. were not made at the place where the appellant was allegedly trapped. The complainant inspite of having full control and knowledge of his present address has not been examined and out of two independent witnesses one has not identified the appellant in dock and no attempt was made to get the appellant identified from another. The verifier P.W 6 clearly denied visiting office of the appellant, but ignoring all such aspects including false implication of the Patna High Court CR. APP (SJ) No.297 of 2002 dt.19-08-2013 5 appellant at the instance of employer of the complainant who was annoyed with the appellant on his refusal to otherwise oblige.
6. Contra, learned counsel representing C.B.I. tried to support findings of the court below for the reasons mentioned therein and further submitted that once acceptance of money (gratification) is proved/ admitted presumption of taking gratification and corrupt practice is to be presumed and it is for the person apprehended to explain how and from where such amount was lying or found with him, whereas, in the instant case no such presumption is rebutted and in that event recovery and preparation of seizure memo etc. at the office of C.B.I. not at the place of recovery which often used to be done under compelling circumstances like present case do not dilute the allegation established.
7. Out of twelve prosecution witnesses, P.W.1 Shipahi Ram, a regular Mazdoor in Telephone Department has come to say that he has been working since 1979 and at the relevant time received 16 advice notes from the appellant against the receipt issued wherein Nos. 312 and 313 were also there and is proved his signature as Ext. I and at such advice notes Exts. 2 and 2/1. In cross- examination he says that the appellant starts his work at the office near old secretariat and about 12.30 noon comes to main office and after completing work again goes back to other office.
8. P.W. 2 Lakshman Prasad, another formal witness typed sanction order on 12.2.1993 i.e. order of General Manager Telephones, Patna, Ext. 3, wherein in last but one paragraph there is clear mentioned of the fact that the order giver is competent authority to remove the appellant from office. But nothing is produced on behalf of the appellant to show that the said General Manager, Telephones A.K. Sexena was not competent to accord sanction for Patna High Court CR. APP (SJ) No.297 of 2002 dt.19-08-2013 6 prosecution as required U/S 19 of the Act which reads as such:-
"19. Previous sanction necessary for prosecution:- (1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction-
(a)in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b)in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
©in the case of any other person, of the authority competent to remove him from his office.
(2)Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub. Section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3)Notwithstanding anything contained in the Code of Criminal procedure, 1973 (2 of 1974),-
(a)no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub. Section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;
(b)no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c )no court shall stay the proceeding under this Act on any other ground and no court shall exercise the powers or revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceeding.
(4)In determining under sub. Section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.
Explanation:- For the purposes of this section-
(a)error includes competency of the authority to grant sanction;
Patna High Court CR. APP (SJ) No.297 of 2002 dt.19-08-2013 7
(b)a sanction required for prosecution
includes reference to any requirement that the prosecution
shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature."
Hence, the decision cited and relied upon by the Bar in the case reported in 2006 (7) SCC 172, A.I.R. 1974 SC 1024 and 2009 (15) SCC 72 need no further consideration and discussion.
9. P.W. 3 Shrikant Prasad Shrivastava is also a formal witness who proved signature as Ext.4 while handing over advice notes P.T. 312 and P.T. 313 respectively in favour of M/S U.S. Steel Industries F.C.I. road, Fulwarisharif and one Advice Note P.T. 3 was in favour of Union Ply Wood, Khagaul, Patna. In cross-examination he admits that two advice notes in favour of firm, one was for office and another was for residence and he is not in a position to say whether connection in the office was provided. He is also not in a position to say whether telephone connection at office was given on 11.11.1992 or not and since there was no cable line second connection was not provided for three years.
10. P.W.4 Gorakh Nath Pathak, Divisional Engineer Telephones comes to say that on 19.11.1992 he was posted as S.D.O. Phones at Patna and continued till 1996 July- August. The appellant was J.T.O. of Patna West and his office is at the first floor in telephone Centre and the appellant was incharge of taking advice notes from his office and provide connections and the relevant two advice notes P.T. 312 and P.T. 313 were received in his office on 14.10.1992 which was received on 17.10.1992 by P.W.1. Receiving was marked as Ext. X for identification. In cross-examination he unable to say when advice note was received by the appellant. He further admits that office at Secretariat hutment Patna High Court CR. APP (SJ) No.297 of 2002 dt.19-08-2013 8 where initially appellant works and after finishing job comes to main office which is at Budh Marg and he further admits that at the relevant date i.e. 11.11.1992 in the office of U.S. Steel Industries telephone connection had already been provided. Of course, he expressed his inability to say that due to lack of cable line no connection was provided at Janipur and further he explains that since no complain was made he has not enquired.
11. P.W.5 Sitaram, Dy. Manager S.B.I., one of the members of the raiding team as an independent witness comes to say that at the relevant time he was an Assistant Branch Manager and at the direction of his superior he reached at the C.B.I. Office where in the Hall good number of persons (members of raiding team) were introduced with each other and the team leader provided complaint petition which was read over indicating contents of the complaint made by the aggrieved relating to demand of bribe by the appellant. The petition was marked as Ext. Y for identification. They were also shown verification report marked as Ext. Y/1. Contents of the complaint petition were also verified from the complainant who was also there and thereafter demonstration was made showing what was to be done. Phenolphthalein powder was shown on the thin paper and this witness does the same and thereafter he washed his hand in the mixture of sodium carbonate which was prepared there and milky colour turned into Pink. Such materials were kept under seal and he also put his signature on the relevant papers and marked as Exts. 5 and 5/1. The team learnt about demanded money from the complainant and five notes of Rs.100/- and ten of Rs50/- were brought and on such notes phenolphthalein power was spread and due instruction was given to the complainant to provide this to the appellant only when he demands and this witness and another M.K. Sinha P.W 10 was advised to remain with the complainant and watch the conversation and others were also given instruction. Patna High Court CR. APP (SJ) No.297 of 2002 dt.19-08-2013 9 Thereafter everyone who had touched phenolphthalein power washed their hands and it was kept under seal whereon this witness put his signature which marked as Ext. 5/2 and all the members including this witness put their signatures on the prepared preliminary memorandum and he proved his signature as Exts. 5/3 to 5/6 and thereafter the team proceeded with their destination at the office of the S.D.O. Telephone Building, West Patna. One of the two independent witnesses M.K. Sinha, P.W.10 along with complainant entered into the office of the appellant and he and others stayed at near by places some time thereafter M.K. Sinha, P.W.10 came out of the chamber and by gulfing his head given due indication as directed, then all other members went therein and Nagendra Pd. P.W. 12 And S.S. Kishore (not examined) caught both hand of the appellant and made allegation of taking bribe of Rs.1,000/- which was initially denied and notes were shown to him to which he could not reply and at his instruction this witness took out money from the left pocket of shirt of the appellant, currency numbers tallies with the list and the appellant in the same position taken out and brought to C.B.I. Office where recovered amount was kept in an envelop. He proved his signature as Ext. 5/7. Both the hands of the appellant was washed in the mixture of sodium carbonate converted into Pink and also sealed where he signed and marked as Ext. 5/8. Thereafter pocket of shirt of the appellant was also washed and the same was sealed and signed and marked as Ext. 9 and the shirt was sealed under the signature marked as Ext. 5/10 also and the sodium carbonate etc. was also kept under seal. He put his signature marked as Ext. 5/11 and from the pocket of the appellant Rs. 840/- and Rs.300/- were also recovered which was sealed separately whereon his signature is marked as Exts. 5/12 and 5/13. Everything which was recovered after search a recovery memorandum was prepared in four pages, and on all such pages he put his signatures and marked as Exts. 5/14 to 5/17. After Patna High Court CR. APP (SJ) No.297 of 2002 dt.19-08-2013 10 stating all such things in detail this witness with regard to allegation against the appellant said "ABHIYUKT KO AABHI NAHI PAHCHANTA HUI". Thus, there is total denial of identification of the appellant during trial in court. Thereafter in cross-examination he has said about the time consumed during different processes. In para-11 he states that office of the appellant was in the first floor of the building and adjacent to same at the same floor there was chamber of S.D.O. Telephone or not he was not in a position to say. Further he expressed his inability to say about conversation between the appellant and the complainant (Not examined). He further denied suggestions that it was complainant who came out and signal and it was he who forcibly put money in the pocket of the appellant inspite of his protest during which process his hands were also came in touch with such currency and the appellant was forcibly taken out from the chamber to C.B.I. office in the midst of his colleagues. He was dragged at the instance of Uma Shankar Sharma, P.W.8 since the appellant did not oblige him.
12. P.W. 6 Praveen Kumar, verifier of the allegation leveled by the complainant and proved Ext.6, the report. In cross-examination states that the S.P. C.B.I. (Not examined nor any written application is on record) had instructed him for verification at 9.30 to 9.40 A.M. on the relevant date, but below his initial signature Ext. 5/18 his allegation has not mentioned and contrary to contents of Ext. 6 as well P.W.5 this witness says that office of the S.D.O. Telephones situates in the ground floor of the building where he had verified and he completely denied visiting first floor of the building and further asserts in his report Ext.6 that it has wrongly been mentioned that such office is situated in the first floor of the building. Thus, this witness completely denied the place of verification about the allegation, leveled against the appellant, and this witness who was not even declared hostile, consequently is a witness relied by the Patna High Court CR. APP (SJ) No.297 of 2002 dt.19-08-2013 11 prosecution. But gives jolt to the entire trapping and apprehension etc. of the appellant from his chamber at first floor, who, as stated earlier has not been identified by P.W. 5.
13. P.W.7 Md. Nasruddin, A.G.M. Telephones (Commercial) at the relevant time was posted in Telephone Exchange and he proved advice notes P.T. 312 and P.T. 313 in the writing of M.C. Pandit, whereon the said Pandit and this witness both have put their signatures. He further admits Exts. 2 and 2/1 but also proved Ext. 2/2. Further on his statements demand notes were marked as Exts. Z and Z/1. In cross-examination he is not in a position to state when Exts. 2 to 2/2 was received in the office of J.T.O. and against Exts. 2 and 2/1 one demand note was issued. Further he cannot say whether there was telephone line at Janipur on the date of occurrence or not.
14. P.W.8 Uma Shankar Sharma, employer of the complainant (Not examined) initially comes as formal witness by admitting writing and signature of his employee Rannarain Sharma and proved the complaint petition as Ext.7 but not said a word regarding contents of Ext. 7 which indicates initial conversation between the complainant and the appellant relating to demand etc. which was in his presence. In absence of above, it is difficult to accept the contents of the complaint petition especially when the complainant has not been examined. However, in cross-examination this witness admits that till the date of deposition i.e. 2nd September, 2000 another telephone connection (Janipur) was not given but another one had already been provided, on the date of trapping itself. He further denied that he through his employee had lodged such complaint. This witness further appears reexamined on 4.3.2002 and supports the contents of the complaint petition and states that the appellant had demanded money as bribe from the complainant, whereas, as per complaint petition Ext.7 such demand was Patna High Court CR. APP (SJ) No.297 of 2002 dt.19-08-2013 12 made when this witness and the complainant requested the appellant to expedite and provide early connection, but even on recall this witness has not said a word about his presence at the time of conversation. In absence whereof receiving any information from the complainant (still alive but not examined) is not admissible. He further admits that the complainant may be available at his ancestoral house, address of which he is personally known to him, but inspite of such statement in the examination-in-chief itself the complainant was withheld. This witness had denied suggestion of false implication of the appellant at his instance only because he was not ready to shift and provide telephone connection at the place other than applied for.
15. P.W.9 Shanat Kumar Mukhopadhaya, the Dy. Director, C.F. Science Laboratory, Haidrabad has come to prove the report after chemical examinations to the seized articles and proved as Ext. 8.
16. P.W.10 Mahendra Kumar Sinha, another Manager of S.B.I. proceeded in a trap of appellant likewise his colleague P.W. 5 only says that it is he who allegedly accompanied the complainant in his chamber and witnessed to handing over money and conversation there. Likewise his colleague P.W.5 has stated right from trapping of the appellant till recovery and preparation of seizure list and proved his signatures on all such relevant papers Ext.5/19 to 5/41 and said about when he and the complainant entered into the chamber of the appellant where this witness has introduced as colleague of the appellant and the appellant was asked about money the complainant handed it over. Enquiry was made about the same whether it is complete or not and thereafter the appellant counted and kept in the pocket, then the complainant again requested to expedite the proceeding and it was replied that work has already entrusted and it will be provided immediately. Then this witness came out of the chamber and get signal Patna High Court CR. APP (SJ) No.297 of 2002 dt.19-08-2013 13 as decided earlier and thereafter the appellant was apprehended and money was taken by P.W.5, but during entire examination-in-chief, perhaps owing to the denial by P.W.5 to identify the appellant, no attempt was made to get the appellant identified by this witness also in court during trial. This itself creates much cloud against the prosecution case since two independent persons stating everything, but they either did not identify the appellant or the prosecution did not dare to put such question to them. In cross-examination this witness has said that when the appellant has already sent a person to provide connection what is requirement of taking money and at the same time he denied suggestion that the appellant did not demand money rather he protested keeping the same in his pocket and further he denied suggestion that when the appellant was apprehended he raised alarm and his colleague came in his rescue then the raiding party fled away with him. This witness has further denied his participation in trapping and giving and taking money etc.
17. P.W.11 J.P. Mishra, Inspector C.B.I., one of the members of the team likewise P.Ws. 5 and 10 stated about preparation of pre-trapping memorandum at the direction of his superior Nagendra Prasad and proved Ext.9, likewise P.WS. 5 and 10 proved their signatures on the relevant paper as Ext.5/42 to 5/55. In Cross-examination in para-7 he admits that the telephone office is near secretariat, but denied any office of the appellant there, but asserts his office at Budha Marg building either on first floor or second floor. He is not sure inspite of participating in the trapping and denied that everything was shown in the C.B.I. Office, illegal apprehending of the appellant at the instance of P.W.7. On the point of identification of the appellant during trial no question is put to this witness during examination-in-chief and consequently in cross-examination.
18. Last witness of prosecution P.W.12 Nagendra Prasad, Patna High Court CR. APP (SJ) No.297 of 2002 dt.19-08-2013 14 Inspector of C.B.I. proved F.I.R. Ext.10 and thereafter stated the entire process of trapping, instruction including demonstration etc. at his instance during which Ext. 6 and 7 were also proved. He further said about entering into the chamber of the appellant only after receiving signal from P.W.10 and apprehending him, money was recovered by P.W.5 on relevant papers. He proved his signature as well of the complainant as Exts. 5/56 to 5/93 and further submitted charge sheet. He is the only person as member of the raiding party to identify the appellant in court during trial. In cross-examination denied suggestion of preparation of pre- trapping memorandum etc. after apprehending the appellant and also denied that the appellant had already instructed the mechanic at 10.30 A.M. to do the needful with regard to telephone connection. Further he denied that the appellant was crying about not demanding any amount as bribe rather said normal conversation was being heard from out side, whereas P.W.5 an independent witness was not in a position to hear anything. This witness has further denied that the money was forcibly put in the pocket of the appellant inspite of his resistance and that is why when protest was made by his colleagues no seizure etc. was prepared there and since the complainant is not inclined to support the wrong complaint inspite of having full knowledge of his address etc. he has not been produced.
19. From the evidence of the prosecution stated and discussed above, it appears that out of four persons examined as members of the raiding team, one independent witness P.W.5 has clearly refused to identify the appellant in Court and P.WS. 10 and 11 also said nothing about identification, whereas, it is only P.W. 12 who has identified him during trial. Consequently, testimony of P.WS. 5, 10 and 11 cannot be aid to be reliable one. At the same time P.W.7 employer of the complainant also did not support the prosecution version as is stated in the complaint petition Ext.7. P.W. 6 is the verifier who as per Ext.6 Patna High Court CR. APP (SJ) No.297 of 2002 dt.19-08-2013 15 accompanying the complainant arrived at the chamber of the appellant and verified the allegations. In his presence there was also some conversation, but in court he has said nothing about the same, thus due to lack of any such material especially on the point of verification of allegations in absence of complainant, it was not possible for the raiding team to arrive at the appellant on particular place and time. It was to be done only on verification and report of the verifier. In absence of both there is absolutely nothing to fix the time according to which entire exercise of trapping of the appellant was to be planned and acted upon. But there is no explanation at all from the prosecution side for non examination of the complainant.
20. It was contended by learned counsel for the appellant that the investigation of the case was not done by the competent authority. Inspector C.B.I. P.W.12 was not a person authorized to investigate as per section 17 of the Act which reads as such:-
"17. Persons authorized to investigate-
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no police Officer below the rank,-
(a)in the case of the Delhi Special Police Establishment, of an Inspector of Police;
(b)in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under sub-section (1) of Section 8 of the Code of Criminal Procedure, 1973 (2 of 1974), of an Assistant Commissioner of Police;
©elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank, Shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant :
Provided that if a police officer not below the rank of an Inspector of Police is authorized by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor without a warrant :
Provided further that an offence referred to in clause (e) of sub-section (1) of Section 13 shall not be Patna High Court CR. APP (SJ) No.297 of 2002 dt.19-08-2013 16 investigated without the order of a police officer not below the rank of a Superintendent of Police."
21. True it is that the complaint petition, Ext.7 and verification report, Ext.6 both were addressed to the Superintendent of Police, C.B.I. but no where it is mentioned even in the charge sheet including sanction of prosecution, Ext.3, that ever Superintendent of Police authorized P.W.12. Undisputedly an Inspector of Police to proceed further and investigate, whereas, such authorization in writing is highly essential in order to show due compliance of the provisions of law stated above.
22. Earlier under the provisions of Prevention of Corruption Act, 1947 similar matter was considered by this Court and the order of cognizance taken by the Court on authorized investigation was quashed in a case of "Ram Dayal Ram Vs. The State of Bihar" reported in 1981 PLJR 221.
23. And the Apex Court in the case "State Inspector of Police, Vishakhapatnam Vs. Surya Sankaram Karri" reported in (2006) 7 SCC 172 in paragraph- 13 has clearly laid down as follows:-
".................Authorization by a Superintendent of Police in favour of an officer so as to enable him to carry out investigation in terms of Section 17 of the Act is a statutory one. The power to grant such sanction has been conferred upon the authorities not below the rank of a Superintendent of Police. The proviso uses a negative expression. It also used the expression "shall". Ex facie it is mandatory in character..........."
In paragraph- 16- it is further said ..............when a statutory functionary passes an order, that too authorizing a person to carry out a public function like investigation into an offence, an order in writing was required to be passed. A statutory functionary must act in a manner laid down in the statute. Issuance of an oral direction is not contemplated under the Act. Such a concept is unknown in administrative law. The statutory functionaries are enjoined with a duty to pass written orders."
Patna High Court CR. APP (SJ) No.297 of 2002 dt.19-08-2013 17
24. It is also vehemently contended by learned counsel representing C.B.I. that gratification money was demanded, accepted and recovered from the pocket of the appellant. Thus, in view of Section 20 of the Act which reads as such:-
"20. Presumption where public servant accepts gratification other than legal remuneration:- (1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of sub. Section (1) of Section 13 it proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain the gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2)Whether in any trial of an offence punishable under Section 12 or under clause (b) of Section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused persons, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3)Notwithstanding anything contained in sub.
Section (1) and (2), the court may declined to draw the presumption referred to in either of the said sub.sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn."
Now it is for the appellant to rebut the presumption created by law against him. Contra, it is the case of the appellant that at no point of time any such money was demanded or accepted, rather thrushed in his pocket.
25. In the cases before the Apex Court in AIR 1974 SC 226, 1976 SC 1497 and 2004 AIR S.C. 966 whereon reliance has been placed by learned counsel representing C.B.I., matter was quite different. The accused on Patna High Court CR. APP (SJ) No.297 of 2002 dt.19-08-2013 18 being apprehended with tainted money by accepting amount received from the complainant had taken a plea of payment in lieu of some other cause. And the Apex Court as regard to P.C. Act, 1947 in the case of "T. Subramanian Vs. The State of Tamil Nadu" reported in AIR 2006 SC 836 in Para-7 has held as follows:-
"Mere receipt of Rs.200/- by the appellant from P.W.1 on 10.7.1987 (admitted by the appellant) will not be sufficient to fasten guilt under section 5 (1) (a) or Section 5 (1) (d) of the Act, in the absence of any evidence of demand and acceptance of the amount as illegal gratification. If the amount had been paid as lease rent arrears due to the temple or even if it was not so paid, but the accused was made to believe that the payment was towards lease rent due to the temple, he cannot be said to have committed any offence. If the reason for receiving the amount is explained and the explanation is probable and reasonable, then the appellant had to be acquitted, as rightly done by the Special Court. In Punjabrao Vs. State of Maharashtra (2002 (10) SCC 371)."
26. The Apex Court in a case of "Trilok Chand Jain Vs. State of Delhi" reported in (1975) 4 SCC 761 in Paragraph-14 has held as follows:-
"It is true that in law the incapacity of the government servant to show any favour or render any service in connection with his official duties does not necessarily take the case out of the mischief of these penal provisions. Nevertheless, it is an important factor bearing on the question as to whether the accused had received the gratification as a motive or reward for doing or forbearing to do any official act or for showing any favour or disfavour in the exercise of his official functions. This question as to whether the government servant receiving the money had the requisite incriminative motive is one of the fact"
27. And in another case reported in 2011 AIR SCW 297 it is held as follows:-
"Demand of illegal gratification is sine qua non to constitute the offence under the Act. Mere recovery of currency notes itself does not constitute the offence under the Act unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe."
Patna High Court CR. APP (SJ) No.297 of 2002 dt.19-08-2013 19
28. Almost similar is the view taken by the Apex Court in another case of "Narendra Champaklal Trivedi and Harjibhai devjibhai Chauhan Vs. State of Gujrat" reported in 2012 AIR SC (Criminal) 1006=AIR 2012 SC 2263, wherein in paragraph 12 it is held as follows:-
"At the outset, we may state that the recovery part has gone totally unchal-lenged. Though a feeble attempt was made before the High Court and also before us, yet a perusal of the evidence and the test carried out go a long way to show that the amount was recovered from the possession of the accused- appellants. It is settled principle of law that merely recovery of the tainted money is not sufficient to record a conviction unless there is evidence that bribe had been demanded or money was paid voluntarily as a bribe. Thus, the only issue that remains to be addressed is whether there was demand of bribe and acceptance of the same. Be it noted, in the absence of any evidence of demand and acceptance of the amount as illegal gratification, recovery would not alone be a ground to convict the accused. This has been so stated in T. Subramanian Vs. The State of Tamil Nadu."
29. It is now settled principle of law that mere recovery of tainted money is not sufficient to record conviction unless there is evidence that bribe has been demanded or money was paid voluntarily as bribe. Thus, only issue remains for consideration is as to whether there was any demand of bribe and was voluntarily accepted.
30. It is undisputed that the tainted money was recovered from the pocket of the appellant but right from beginning it is the case of the appellant that since he has not obliged P.W.8 he taking undue advantage of his influence (relative) got the appellant caught by the C.B.I. and when unexpectedly same amount was forcibly being put in his pocket the appellant resisted, raised alarm for his rescue, but by that time his colleagues may be able to realize the happening or do anything, the appellant was taken out from there to C.B.I. Office Patna High Court CR. APP (SJ) No.297 of 2002 dt.19-08-2013 20 where other formalities could be done. This is an admitted case of the prosecution that after recovery of the tainted money from the pocket of the appellant his both the hands were under the control of two of member of the raiding parties and in this condition he had been taken to C.B.I. Office where washing of hands of the appellant, seizure and recovery memo etc. were prepared, but neither from any documentary evidence adduced on behalf of the prosecution nor from the testimony of any witness it came to show what prevented them to complete all legal requirements at the place where such recovery of tainted money was made. Even during cross-examination this question was put to them but none of the witnesses including P.W.12 made any reply to it. As per normal rule all such legal requirement had to be completed promptly at the place where recovery etc. was made.
31. True it is, under compelling circumstances if required any departure can be made but if it is done, it needs to be stated and duly explained. The Apex Court in the case of Khed Singh Vs. Union of India, reported in 2002 (4) SCC 380, of course in a case of N.D.P.S. Act has held in para-10 of the judgment as such:-
"....................In that event where seizure mahazar is prepared at later stage officer should indicate its reasons as to why it has not been prepared mahazor at the spot of recovery and to have fair procedure in respect of search and seizure. It is always desirable to prepare seizure Mahazar at the spot itself."
But as stated, no explanation is offered which gives room to submit that entire prosecution version is not free from doubt.
32. Now coming to the main issue relating to demand and acceptance of tainted money by the appellant. As per prosecution case, money was demanded for installation of telephone connection which as per evidence had Patna High Court CR. APP (SJ) No.297 of 2002 dt.19-08-2013 21 already been installed on the date of occurrence itself. Prosecution has said a word about exact timing of such installation, whereas, P.W. 10 in para-7 has said that during conversation at the relevant time between complainant (not examined) and the appellant (not identified during trial) on the request of early installation of the connection the appellant‟s response was that he had already instructed the competent person to do so.
33. In view of above, timing of admitted installation of telephone connection has its own role to play, but there is nothing to indicate the same on behalf of the prosecution even by P.W. 8. Besides non identification of the appellant during trial by P.WS. 5, 10 and 11 who are only members of the raiding party examined except P.W.12 further darken cloud against the prosecution version.
34. On behalf of the appellant the solitary witness Ram Pujan Singh, a retired personnel in Telephone Department has been examined to say that there was no cable connection in Janipur Area. Obviously, in absence whereof it was not possible for the appellant to provide one of the two connections as applied for and he further said that at the relevant time on 11th November, 1992 he heard the appellant crying BACHAO-BACHAO and official of the C.B.I. took him away. In absence of any consistent and convincing evidence adduced on behalf of the prosecution, this witness has supported the circumstances as put forward by the appellant against the prosecution version and his false implication.
35. True it is, by examining this witness the appellant has not been able to fully establish the defence he has taken, but it is not for the accused to fully establish his defence beyond any reasonable doubts, but if he succeeds in causing doubt against the prosecution version, it is sufficient for the defence and it is the duty of the prosecution to establish its case beyond any shadow of Patna High Court CR. APP (SJ) No.297 of 2002 dt.19-08-2013 22 reasonable doubts then and then only the accused may be held guilty and subjected to punishment. But apart from others, by withholding the competent witness, i.e. complainant, without offering any explanation has not discharged its duty.
36. In the result, on over all consideration of the materials, finding the prosecution has not been able to remove dark clouds against its version, and the appellant deserves benefit whereof, the appeal is hereby allowed and conviction and sentence of the appellant is set aside and he is set free from the liabilities of bail bonds furnished on his behalf.
(Akhilesh Chandra, J) Abhay/-