Jharkhand High Court
Vijay Kumar vs The State Of Jharkhand on 4 February, 2020
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No.964 of 2016
Vijay Kumar, son of Late Moti Bhagat, resident of Sahaganj,
P.O. Sahaganj, P.S. Konch, District Gaya (Bihar), at present
resident of Qr. No.263, Sector-3/A, Bokaro Steel City, Bokaro,
P.O. & P.S. Bokaro Steel City, District Bokaro (Jharkhand)
... ... Appellant
Versus
The State of Jharkhand, through the Central Bureau of
Investigation (C.B.I) ... ... Opposite Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellant : Mr. Indrajit Sinha, Adv.
: Mr. Suraj Singh, Adv.
For the State : Mr. B.K. Prasad, Adv.
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16/04.02.2020 Heard Mr. Indrajit Sinha, learned counsel appearing
on behalf of the appellant along with Mr. Suraj Singh, Advocate.
2. Heard Mr. B.K. Prasad, learned counsel appearing on behalf of the Opposite Party -State - C.B.I.
3. This criminal appeal is directed against the judgment of conviction and order of sentence dated 20.8.2016 passed by learned District & Additional Sessions Judge-II-cum-Special Judge, C.B.I., Dhanbad in R.C. Case No.16(A) of 2009-D, whereby learned District & Additional Sessions Judge-II- cum-Special Judge, C.B.I., Dhanbad has been pleased to hold the appellant guilty and to convict him for the offence punishable under Section 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and has further been pleased to sentence him to undergo rigorous imprisonment for three years with fine of Rs.4,000/- for the offence under Section 7 of the Prevention of Corruption Act, 1988 and in default in making payment of fine, to further undergo rigorous imprisonment for three months and has further been pleased to sentence him to undergo rigorous 2 imprisonment for three years with fine of Rs.4,000/- for the offence under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and in default in making payment of fine, further to undergo rigorous imprisonment for three months and all the sentences have been directed to run concurrently.
The case of the prosecution
4. The instant case arises out of RC.16(A)/09-D for which FIR was lodged on 28.10.2009 against the appellant at 14:15 hrs.
5. As per the written complaint of the informant dated 28.10.2009, the informant had applied for tractor loan to State Bank of India, Bokaro Thermal, Bokaro about two months back and his loan was already approved and the information was given to him by the appellant himself by calling him in the bank and he had completed all the formalities for grant of loan which was sanctioned for Rs.3,13,000/-. The loan application was pending for two months and in spite of sanction of the loan, the appellant was not giving the draft. On 27.10.2009, the appellant called the informant to his house and when he went to the house of the appellant on 27.10.2009 at 7.00 P.M, the appellant demanded an amount of Rs.15,000/- in order to release the draft and upon his request, the complainant agreed for an amount of Rs.8,000/-. The appellant had called the informant to his house for giving the money on 28.10.2009 at 7.00 p.m. The informant has stated in his complaint that he did not want to give the money and requested for legal action on his complaint.
6. It further appears from the F.I.R that after receiving the complaint, the S.P., C.B.I directed Sri M. Bhattacharjee, Inspector CBI, ACB, Dhanbad to verify the correctness of the allegations and report quickly. As per the prosecution case, a 3 verification was conducted by thoroughly examining the complaint and submitted verification report on the same day i.e. on 28.10.2009 confirming demand of illegal gratification by the appellant as alleged. The allegation was found to prima facie disclose commission of offence by the appellant under Section 7 of Prevention of Corruption Act, 1988 and the case was registered and endorsed to Sri Malik, Dy. S.P., CBI, ACB, Dhanbad for investigation.
7. The complaint, (Case No. RC.16(A)/2009-D, U/s 7 of P.C Act, 1988) was registered against appellant, Sri Vijay Kumar, Asst. Manager, S.B.I., Bokaro Thermal Branch, Distt.- Bokaro and plan was made to lay a trap to catch the appellant red-hand while demanding and accepting the illegal gratification of Rs.8,000/- from the complainant. For the said purpose, the S.P., C.B.I, A.C.B, Dhanbad constituted a team consisting of Sri S. Lamba & M. Bhattacharjee, both Inspectors, Suresh Kumar and Ganesh Singh, all of C.B.I, A.C.B, Dhanbad under the leadership of Sri S. Malik, Dy. S.P C.B.I. Dhanbad. Two Independent witnesses namely Sri P. Mohan, Material Manager and S.P Mukherjee, Dy. Manager (system), both from Vigilance wing of BCCL HQ, Koyla Bhawan, Dhanbad were arranged to witness the trap proceeding and its genuineness. As per plan, specific 20 nos. of GC notes produced by the complainant, were properly treated with Phenolphthalein powder by Suresh Kumar and thereafter, Sri S. Malik, Dy. S.P, specifically instructed the complainant to give the tainted notes to the appellant only on demand as bribe and not otherwise. At about 19:20 hrs., the complainant, accompanied by shadow witness Sri S.P. Mukherjee contacted the appellant Sri Vijay Kumar and advanced towards the residence of the appellant.
48. As per the prosecution case in the charge-sheet, upon reaching the residence of the appellant, the complainant and the shadow witness started the conversation as follows:
Appellant: Yeh kaun hai sath mein?
Complainant: Yeh mera mausaji hain, Kargali CCL mein duty karte hain. Pahele jo advance rupia maine jama kia tha, usme chaalis hazar rupia mausaji se hi udhar lia tha. Kal jaise aapke sath tay hua hai, aajka ghus ka rakam bhi inhone udhar dia hai. Inko biswas nahi ho raha hai, isliye sath mein aaye hain.
Shadow witness: Sir, inka loan ka rakam mil jayega na? Appellant: han, ho jayega.
After the aforesaid conversation, the appellant gave hint with his eyes to the complainant to get the shadow witness sent out of the room which he did. Thereafter, the appellant asked the complainant to close the door and put the money below the mattress spread on his bed. The complainant complied the instructions of the appellant and came out of the room and gave signal to his team. On receiving the signal, the entire C.B.I. trap team members rushed inside the residence of the appellant and arrested him. After his arrest, a solution of Sodium Carbonate in plain water was prepared in clean glass and the appellant was asked to wash his right & left hand finger in the said solution. When he washed his fingers in the solution of Sodium Carbonate, the colour of the solution did not change from milky to pink. On disclosure of the appellant Sri Vijay Kumar, the tainted GC notes totalling Rs.8,000/- were recovered by Sri P.C. Mohan, independent witness, from below the mattress. The numbers and denomination of the GC notes found below the mattress matched with the pre- recorded number & denomination of notes of the informant. The contents of the Phenolphthalein powder from the bed of the appellant, from where the tainted GC notes were recovered, were taken with a swab and when the said swab 5 was dipped in the solution of Sodium Carbonate, the milky colour of the solution turned pink. The swab used for collecting the contents of the Phenolphthalein Powder lying on the bed of the appellant was also kept in an envelope which was duly sealed and signed by all present. It has been further clearly stated in the Post Trap Memorandum that the appellant was then subjected to personal search. Nothing incriminating was found and seized from this person. However, a Personal Search Memo and an Arrest Memo were prepared separately. The said residence of appellant was also searched but nothing incriminating was found in the said room. Thereafter, on being requested over mobile phone Sri Biswajeet Sinha, Branch Manager, SBI, Bokaro Thermal Branch, Bokaro, came to the residence of the appellant and was apprised of the entire incident as mentioned above and was requested to open the bank i.e. SBI, Bokaro Thermal Branch, Bokaro. He opened the bank. The office room/table of the appellant was searched and the records pertaining to loan of the complainant were found in the drawer of the office table of the appellant, which were seized from said Sri Biswajeet Sinha under a Production-cum-Seizure Memo and a copy of the same has been given to him under proper acknowledgement. It has also been stated that the above incident was committed at night at Bokaro Thermal and it was not safe to stay there till late night. Keeping in view the law and order problem in the said area in those days the Post Trap Memorandum was prepared at the CBI Office, Dhanbad, after returning from the place of occurrence on the dictation of Sri S. Malik, Dy. SP, which concluded at about 05.00 Hrs. the next day i.e. 29.10.2009. However, signing date of this memorandum has been put as 28.10.2009, as the said incident had occurred on 28.10.2009. The contents of this Post Trap 6 Memorandum were read over and explained in Hindi to all concerned who signed in token of correctness of its contents.
9. The charge sheet against the appellant was filed for offence U/s 7 & 13(2) r/w section 13(1)(d) of P.C Act, 1988. On 15.02.10, the cognizance was taken against the appellant under the above Sections. On 25.04.11, the learned court below framed charges against the appellant for the offence u/s 7 and u/s 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and charges were read over and explained to the appellant in Hindi to which the appellant pleaded not guilty and claimed to be tried. After recording of the evidence of 11 prosecution witnesses, the statements of the appellant under Section 313 of Cr.P.C. were recorded and the appellant has also produced one defence witness. Upon conclusion of the trial, the appellant has been convicted.
Submissions of the appellant before this Court
10. It is submitted that in a case under Section-7 and 13(1)(d) of Prevention of Corruption Act,1988 it is incumbent upon the prosecution to prove the demand and acceptance of the illegal gratification by the appellant from the complainant and if one of the ingredients i.e. demand or acceptance is not proved, in that case appellant is entitled to be acquitted.
11. Section 7 and 13(1)(d) of Prevention of Corruption Act, 1988 in order to constitute an offence under Section 7, proof of demand is a sine-qua-non. Initial burden of proving that appellant accepted or obtained the amount other than legal remuneration is upon the prosecution and only when the initial burden is successfully discharged by the prosecution, then the burden of proving the defence shifts upon the appellant and a presumption would arise under Section 20 of the Prevention of Corruption Act, 1988.
712. In the instant case, prosecution only alleged recovery of money from under bed of the appellant and mere recovery of money was not enough to draw the presumption under Section 20 of the Prevention of Corruption Act, 1988. On this point, the appellant has relied upon the judgment of the Hon'ble Apex Court reported in (2015) 3 SCC 247. It is submitted that for allegation of illegal gratification, it is not enough that some currency notes were handed over to the public servant.
13. In the present case, demand of illegal gratification made by the appellant from the complaint has not been proved. As per F.I.R., it has been alleged by the complainant (P.W.-10) that on 27.10.2009, the appellant had demanded alleged bribe, but not a single witness has been examined by the prosecution to corroborate the same. In this regard, the independent witnesses namely, P.W.-2, Shyama Prasad Mukherjee and P. Mohan (P.W.-6) were examined to prove the demand made by the appellant from the complainant.
P.W.-2, being Shadow witness, in Para-24 of his deposition deposed that he had not seen demand and acceptance because he was asked to go out by the complainant from the room and the door was closed. He further deposed that he was standing nearby in the Verandah in front of the door and CBI officials were also standing. He deposed that he had not heard conversation of the Complainant and the appellant inside the room despite the fact that Mr. Mallick had instructed them to speak loudly.
Similarly, P.W.-6, in respect of alleged demand, in Para-18 of his deposition, deposed that in his presence no demand and acceptance of bribe took place. In preliminary memorandum, these two witnesses are the eye witnesses, but they have not corroborated the evidence of the Complainant (P.W.-10) who in 8 para-24, deposed that if the securities kept by the bank were returned by the appellant in that event, he would not have lodged the present case. In para-25, he deposed that the bribe amount of Rs.8,000/- were kept in "envelope" and the appellant did not ask money from him, rather appellant instructed him to keep the money under the mattress and he did accordingly, but he failed to give account of the "envelope".
It is submitted that in view of the above, the prosecution has failed to prove the demand. In order to constitute an offence under Section 7 of Prevention of Corruption Act, "Proof of demand" is sine-quo-non. This has been affirmed in several judgments including the recent judgment of the Hon'ble Apex Court. Wherein the Apex Court held as under:-
In so far as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine-quo- non to constitute the offence and mere recovery of currency notes cannot constitute the offence under Section 7 of the Prevention of Corruption Act, unless it is proved beyond all reasonable doubt that the appellant voluntarily accepted the money known it to be a bribe.
The above position succinctly laid down in several judgment of the Hon'ble Apex Court by way of illustration reference may be made to the decision in C.M. Girish Babu (2009) 3 SCC 779.
14. The learned counsel for the appellant submitted that the points to be decided are as under:-
(A) The core question, whether alleged Rs. 8,000/- was a bribe money ?
(B) Whether the said sum comes under Section 7 of Prevention of Corruption Act ?9
15. According to prosecution, the Complainant, P.W.-10 in his written report stated that his loan from the bank was already sanctioned by the Manager of the bank for an amount of Rs.3,13,000/- and the allegation against the appellant was that the draft of the said sum was not being delivered to the complainant by the appellant. It is submitted that the prosecution has failed to prove that the Manager of the Bank had sanctioned the aforesaid sum in favour of the complainant by way of loan and draft was prepared for a sum of Rs.3,13,000/-.
16. In this regard, the prosecution examined P.W.-4, Biswajeet Kumar Sinha who was Branch Manager of SBI, Bokaro Thermal at the relevant time. He deposed regarding process of sanctioning loan of SRTO and has proved certain documents regarding complainant. In Para-21 of his deposition, he deposed that the Complainant Pritam Sao @ Pritam Kumar had asked for a loan Rs.3,13,000/- under the Scheme of small road transport operation scheme. In para-22, he has stated that the party has to disclose regarding previous loan including default. In Para-23, he stated that on 29.10.2009, it came to light that Pritam Kumar was a defaulter of one previous loan and bank informed Pritam Sao @ Pritam Kumar that he is defaulter, so he would not get loan, it was also asked to the complainant to pay the amount of earlier loan by 31.03.2010 by depositing Rs. 48,499/-. In para-24, he deposed that Pritam Kumar gave an application dated 27.07.2009 (Ext-14) for settlement of the loan and bank informed that his loan under SRTO scheme has already been rejected in view of the guidelines of R.B.I. He has stated that the complainant is a defaulter of previous loan. In Para-25, he deposed that it is not true that Pritam Kumar had no knowledge regarding rejection of his loan on 28.10.2009. In Para-26, he deposed that on 27.10.2009, on the application of 10 Pritam Kumar (Ext-14), he was directed to deposit Rs. 45,000/- against the previous due loan amount, but, he did not deposit. In Para-27, he has stated that due to case lodged by CBI, complainant did not get SRTO loan.
17. P.W.8, Siddarth Ghosh, Deputy Manager of the Bank, in his deposition in Para-7 has deposed that Pritam Kumar was defaulter from before as he previously obtained loan from the bank under the head of PMRY in the name of Pritam Sao and thereafter, applied loan in the name of Pritam Kumar and further he deposed that no willful defaulter is entitled to take loan for the second time.
18. P.W.9 T.L.O. (Trap Laying Officer) in his deposition at para-16, accepted that he had not inquired regarding obtaining previous loan by the complainant and also regarding his default. He also did not enquire that the process of loan recovery was going on by the bank against the complainant. He deposed that he had no knowledge that the complainant took loan previously in the name of Pritam Sao, but the complainant disclosed his name as Pritam Kumar before this witness. He deposed that if the loanee of P.M.R.Y. scheme makes default then he will not get the loan for the second time. In Para-17, he deposed that if the complainant had come to him fraudulently and he had knowledge of the same, then the present case ought not have been initiated against the appellant.
19. P.W.10, Pritam Kumar- complainant in his deposition at para-16 deposed that before applying loan for tractor, he took loan under PMRY scheme and about Rs.50,000/- was due of the said loan. He stated that he had informed CBI regarding obtaining previous loan under PMRY scheme and also stated regarding the outstanding dues. He deposed that out of due amount of Rs.50,000/-, he has deposited Rs.20,000/- so that he 11 could get loan for tractor. In para-17, he deposed that his loan application was blank and the same was not filled. He has not put his signature on the application. He has stated that to obtain loan, he deposited fixed deposit of his brother and LIC of his father and again he stated that fixed deposit of his parents was also deposited. In para-18, he has stated that he was also negotiating for loan in another bank, but all were asking for security. But, in view of deposits of his security papers in the SBI of appellant's bank, he was not able to get loan from other bank, as they were not returning his documents and deposit inspite of asking the same from the Manager of the bank who used to ask him to pay the old dues and until same is not paid, the security papers would not be returned to him. In Para-23, he deposed that when CBI took his statement, he stated before CBI that on 20.10.2009, he met the appellant who informed him to regularize the PMRY Loan.
20. It is submitted that if the evidences of aforesaid witnesses namely P.W.-4, Biswajeet Kumar Sinha, P.W.8 Siddarth Ghosh, P.W.9, Sridhan Mallick and P.W.10, Pritam Kumar @ Pritam Sao are scrutinized minutely, in that case it would be evident that no loan under SRTO under (Tractor Loan) was initiated by the bank in favour of the complainant (P.w.-10) as everything was blank, so question of sanction of the said loan as told by P.W.-10 is false and therefore, question of demand of bribe by the present appellant as a motive or reward other than his legal remuneration does no arise at all. It is submitted that the question of demanding illegal gratification by this appellant, at the stage when there was no sanction of loan in favour of the complainant, does not arise as there cannot be any motive of appellant for asking illegal gratification from the complainant since the gratification should be as a motive or reward for doing or forbearing to do any official act or for showing or 12 forbearing to show favour in the exercise of his official function to the complainant. It is important to note that that securities of the P.W.10 (complainant) which are lying in the bank in respect of PMRY scheme loan could not be released in favour of the complainant unless the said due is paid which has been explained by the prosecution as well as D.W. Diwakar Jha.
21. Regarding acceptance of the bribe, it is submitted that the prosecution has failed to prove the same, except allegation of the complainant that it was kept by him under the mattress and no one has seen that the appellant had told the complainant to keep the same under the mattress. It is submitted that the mattress and the bed sheet have not been seized by the I.O.
In respect of acceptance of bribe, P.W.-9, trap laying officer has stated that he contacted the complainant P.W.-10, since the complainant had not stated that the appellant had touched the tainted notes, but P.W.-9, in Para-9 of the deposition contradicts his own statement by stating that the solution of Sodium Carbonate, in which both the hands of the complainant were washed separately turned 'PINK', meaning thereby that the appellant had touched the tainted notes which is not the case of the prosecution and therefore, neither demand neither, nor acceptance of bribe has been proved.
The verification report discloses that P.W.-5 had neither moved from his office, either to place of occurrence or to the Bank, nor has examined any independent person.
In para-20 of his deposition he deposed that "I directly verified the reputation of "Sri Arvind Kumar Madhukar" from reliable source and came know that the appellant was not enjoying good reputation. So, it appears that verification of the allegations has been made with regards to another person 13 namely Arvind Madkhukar and further in Para-26, he deposed that he had not seen any signal since the door was closed.
It is important to peruse Ext.-A which is the General Diary of C.B.I. that on 28.10.2009, there is no entry on whole day of 28.10.2009 that verification officer P.W.-5, was entrusted to verify the allegations against the appellant and there is no endorsement that he submitted verification report on 28.10.2009, by mentioning any time. It is submitted that the Apex Court reported in IV (2013) CCR (69 (SC) in full bench dicision held that in General Diary, it should be mentioned regarding preliminary verification to show that before registration of the F.I.R., the verification has been done in the General Diary. The registration of this case has been mentioned at 14:15 hours on 28.10.2009, and no entry has been made regarding submission of verification report and therefore, the entire verification and F.I.R. is illegal in the eye of law.
It is submitted that if CBI lodges a case against a public servant, then the public servant is debarred from any promotion in his service, but this appellant, after lodgment of this case, has been promoted in his service which is exhibit-B.
22. The learned counsel for the appellant submitted that the prosecution has failed to prove any previous misconduct of this appellant, rather the complainant once took loan from the bank by depicting him as Pritam Sao and subsequently, pending due of his first loan, he attempted to take second loan from the same bank by showing himself as Pritam Kumar without signing any application for second loan and falsely got the appellant trapped in this case and so his conduct is questionable and P.W.-9 has already stated that had it been the fact that the complainant came to him fraudulently, in that event, he would not have lodged the present case against this appellant.
1423. The learned counsel for the appellant has referred to the judgments passed by the Hon'ble Supreme Court reported in (1976) 1 SCC 577, Para 4 to 7; (2014) 13 SCC 143 Para-22, 27 to 46 and (2017) 8 SCC 136 Para 13, 15 and 25 to 26 to submit that the prosecution in the present case, upon true consideration of the materials on record has not been able to prove the demand of illegal gratification and has further not been able to prove that the recovery of the tainted money was made from under the mattress which was spread over the bed in the room of the appellant. The learned counsel has also submitted that there is no dispute that neither the bed, nor the mattress, nor its cover has been seized and accordingly, they have not been exhibited before the learned court below. The learned counsel has also submitted that admittedly the post trap memorandum was ultimately prepared on the next date in the morning which is recorded in the post trap memorandum itself and he has also stated that the post trap memorandum was admittedly prepared and completed on the next day in the morning in the C.B.I office, after returning from the place of occurrence, on the dictation of Sri. S. Mallik, Dy. S.P., C.B.I. He submitted that this has been mentioned in the post trap memorandum itself and that a copy of the same was handed over to the appellant. The learned counsel submitted that admittedly in the instant case, the swab has not been exhibited and what has been exhibited is the envelope containing the swab. The learned counsel submitted that in such circumstances, it cannot be said that the recovery of the tainted money was also proved.
24. The learned counsel has also referred to the contradictory version of the shadow witness and the informant of the case so far as the conversation at the place of occurrence in presence of the appellant is concerned and he submitted that the contradiction is fatal to the entire case of the prosecution. He 15 has also submitted that the informant has stated in his evidence that when the money was demanded by the appellant, the shadow witness was also present. However, the shadow witness has stated that the shadow witness was directed to go out and he actually followed the instruction and thereafter, the door was shut and thereafter, the alleged conversation and transaction regarding money had taken place. It has also come in evidence of the shadow witness that he could not hear the conversation which was going on between the appellant and the complainant. The learned counsel has also submitted that there is material contradiction in the deposition of the shadow witness i.e., P.W. 2 and the informant i.e., P.W. 10 when it is compared with the conversation which is recorded in the charge-sheet. He submitted that the conversation which is recorded in the charge-sheet has been quoted by the learned court below in the impugned judgment from which it appears that during the conversation, the money which was sought to be given at the time and place of occurrence was indicated expressly to be the "bribe money" but such version and reference, that the money being given was bribe money, is totally absent in the deposition of the shadow witness, P.W.2, as well as the complainant, P.W. 10.
25. In this background, the learned counsel submitted, though not admitting, that at best the demand of money can be said to have been proved, but the demand of money by way of illegal gratification or as bribe has not been proved by any cogent evidence. The learned counsel submitted that there was no reason for giving bribe as the complainant was a defaulter of loan which was advanced to him earlier in a different name and the Bank Manager had asked the complainant to clear the earlier loan amount. The counsel has also submitted that in this background, mere demand of money cannot be said to be 16 demand of illegal gratification and rather it was the duty of the appellant to ask the complainant to deposit money against earlier defaulted amount. The learned counsel has also referred to the deposition of the sole witness on behalf of the defence wherein it has come that as per the banking norms, fresh loan can be sanctioned only when the earlier loan is cleared and so the entire prosecution story that money was being demanded by way of bribe is incorrect and the prosecution has not been able to prove the same beyond all reasonable doubt. The learned counsel has also referred to Para 24 of the deposition of the complainant wherein the complainant had himself stated that certain securities were lying with the bank and he was demanding the securities back by stating that he could get loan from other bank and he himself has stated that if the securities were returned to him, he would not have filed the case. The learned counsel submitted that this statement of the complainant itself goes to show that he was no longer interested in the loan and was interested in return of the security documents/money and as per the banking norms, the securities cannot be returned/refunded unless the dues are cleared. He submitted that aforesaid aspect of the matter indicates his malicious intention to implicate the appellant in a false case. He further submitted that even if this is not taken to be malicious, but certainly it can be said that the prosecution has not been able to prove the case beyond all reasonable doubt.
26. The learned counsel, by referring to the statement of the appellant under Section 313 of the Cr.P.C has submitted that the appellant has clearly denied the incident and the allegation and has given an explanation by stating that the complainant had already taken the loan. He has clearly stated that the loan was sanctioned in favour of the complainant and for the 17 purposes of processing of loan, the complainant had approached him and upon his approach, he had asked the complainant to clear the earlier loan, which was taken by the complainant so that he could get fresh loan and he has said that on this account, the complainant has falsely implicated him. The appellant has also stated that he had given oral notice as well as written notice to the complainant to return the earlier loan and pursuant to that, he had deposited Rs.20,000/- on 20.10.2009 and subsequent thereto, he had filed an application for settlement of the loan amount on 27.10.2009 and the present case has been lodged on 28.10.2009. The appellant has also stated in his statement under Section 313 of Cr.P.C. that security amount to the tune of Rs.1,70,000/- was lying with the bank as a fixed deposit and LIC. The learned counsel for the appellant submitted that the aforesaid explanation which has been furnished by the appellant in his statement under Section 313 of Cr.P.C. has been fully established during the course of trial and therefore, it is apparent that the complainant was asking for the refund of the securities for which he was to clear the earlier loan amount. The learned counsel has also submitted that the complainant is guilty of suppressing these material facts regarding his earlier loan and his application for settlement of the earlier loan at the time of filing of the complaint before the C.B.I. and also the fact regarding payment of Rs.20,000/- towards his earlier loan and has his application for settlement has also not been disclosed by him before the C.B.I.
27. The learned counsel has also referred to the findings which have been recorded by the learned trial court to submit that the learned court below has held that no reasonable explanation was given by the appellant as to how the tainted money came in his possession and has held that there is a 18 presumption under Section 20 of the Prevention of Corruption Act, 1988 that the appellant has accepted bribe money. The learned counsel has submitted that the question of presumption under Section 20 of the Prevention of Corruption Act, 1988 can be resorted to only when the basic ingredient of demand of illegal gratification is established beyond all reasonable doubts and this ingredient having not been established upon true interpretation of the evidence, which has been led before the learned trial court, the presumption under Section 20 of the Prevention of Corruption Act, 1988 will have no role to play.
28. It is submitted that in view of the above facts and circumstances, the appellant deserves benefits of doubt and be acquitted.
Arguments of opposite party (C.B.I)
29. On the other hand, the learned counsel appearing on behalf of the CBI has submitted that the complaint before the C.B.I had specifically stated about the demand of Rs.8,000/- and the same was duly verified by the authority of C.B.I. and the complainant was also thoroughly examined, the case was registered. Thereafter, the pre-trap formalities in presence of independent witnesses were done and after completing all the formalities, the complainant alongwith the shadow witness had gone to the residence of the appellant. It is submitted that after entering the residence of the appellant, the complainant was asked by the appellant as to who has accompanied the appellant, to which, the complainant had mentioned that he was accompanied by his uncle, who is working in Kargali C.C.L. and the complainant had further introduced his uncle by saying that out of the advance money which was deposited by the complainant, Rs. 40,000/- was paid by his uncle and whatever money was to be paid on that day, was also being 19 given by his uncle and since his uncle was not believing it, therefore, he had accompanied him. The learned counsel submitted that this conversation, which had taken place between the appellant and the complainant, in presence of the shadow witness, has been supported by the complainant as well as the shadow witness in their deposition and accordingly, there can be no doubt that there was demand of illegal gratification of money.
30. The learned counsel also submitted that the tainted money was placed under the mattress which was lying on the bed in the room of the appellant and although the hands of the appellant did not turn pink, but the money was kept under the instructions of the appellant under the bed which ultimately was seized and the seizure witnesses have duly supported the prosecution case regarding seizure of tainted money from under the mattress. Therefore, there can be no doubt regarding recovery of tainted money from conscious possession of the appellant. He further submitted that merely because the mattress was not seized or the bed was not seized or the cover of the mattress was not seized, the same is not fatal to the prosecution case as there is enough oral evidence on record regarding seizure of the tainted money from under the mattress. The learned counsel also submitted that merely because the swab was not exhibited, the same itself is not fatal to the prosecution case, in as much as, the envelope containing the swab was duly exhibited before the learned court below and there is no further cross-examination of the prosecution witness on the point of use of swab which was kept in the envelope. The learned counsel submitted that in this view of the matter, so far as the recovery of tainted money from the possession of the appellant is concerned, there cannot be any doubt.
2031. The learned counsel submitted that in view of the aforesaid facts and circumstances, the demand of the illegal gratification as well as the recovery of tainted money was duly established by the prosecution beyond all reasonable doubt and therefore, the presumption under Section 20 of the Prevention of Corruption Act, 1988 will certainly come into play and it was for the complainant to lead evidence for rebuttal of such presumption. He submitted that the learned trial court has rightly convicted the appellant by referring to Section 20 of the Prevention of Corruption Act, 1988 and there is no illegality or perversity in the impugned judgment. He submitted that when the entire evidences on record are taken in totality, there can be no doubt that the prosecution has proved the case against the appellant beyond all reasonable doubt and the appellant has been rightly convicted.
32. The learned counsel for the State has referred to the judgments passed by Hon'ble Supreme Court in the case of Binod Kumar Garg in Cr. Appeal No.1781 of 2009; (2018) 9 SCC 242; (2016) 11 SCC 357 and judgment reported in (2012) 11 SCC 642 to submit that it has been held by the Hon'ble Supreme Court that the statutory presumption under Section 20 of the Prevention of Corruption Act, 1988 can be rebutted by bringing on record some evidence either direct or circumstantial that the money was accepted other than for the motive or the reward under Section 7 of the aforesaid Act, although the standard required for rebutting the presumption is to be tested on the touch stone of preponderance of probabilities and it has also been held by the Hon'ble Supreme Court that the condition precedent for drawing such a legal presumption is applicable when the basic ingredient of demand of illegal gratification is established beyond all the reasonable doubt. The learned counsel submitted that since the basic ingredient regarding 21 demand of illegal gratification was fully established by the prosecution, therefore, the presumption under Section 20 of Prevention of Corruption Act, 1988 was fully applicable and in such circumstances, the appellant has been rightly convicted by the learned trial court for the offence under Sections 7 and 13 of Prevention of Corruption Act, 1988.
Findings of this Court
33. Altogether eleven witnesses were examined by the prosecution. The witnesses have stated as follows:
Evidence of the witnesses relating to trap of the appellant
i) P.W.-2 - Shyama Prasad Mukherjee has stated that on 28.10.2009, he was working as Vigilance Officer B.C.C.L. Upon order from Chief Vigilance officer, he went to C.B.I office alongwith another Vigilance officer, Sri P. Mohan, where he met D.S.P. Mallick who told him about the complaint regarding the illegal gratification of Rs.8000/-. A practical demonstration was done in which white powder was applied on white paper which he touched and when he dipped his fingers in water like solution, the colour of that liquid changed to pink, which was transferred to a bottle. He signed on piece of paper and affixed it on the bottle containing the pink liquid marked as Ext.2. He has proved his signature on the paper affixed on the bottle used for practical demonstration marked as Ext.2 and also proved his signature on the envelope in which the piece of paper treated with white powder was kept and marked as Ext.-2/1. He has proved his signature in the envelop in which remaining white powder is kept and marked as Ext.-2/2 and has also proved his signature on every page of pre trap memorandum marked as Ext.-2/3 to 2/7 respectively.
Thereafter, eight thousand rupees of 500 denomination was taken out by the complainant which was treated with the 22 powder and the complainant was instructed that this money was to be paid only upon demand by the appellant and thereafter, they proceeded. The complainant had asked the appellant about his whereabouts and the appellant informed the complainant that he was at his home. Upon this, the complainant told him that he was coming in 10 minutes and the appellant asked him to come and then Mr. Malik (I.O.) asked the complainant to go to the house of the appellant. The P.W. 2 has further stated that when the complainant and the shadow witness entered the house of the appellant, the appellant asked the complainant as to who was accompanying him and in response, the complainant introduced the shadow witness as his mausaji who works in CCL and stated that he had taken Rs.40,000/- from his mausaji by way of loan for depositing and the money which is being given today has been borrowed from mausaji only and since mausaji was not believing it, therefore he has come. Upon this, Mr. S.P. Mukherjee, shadow witness, asked the appellant as to whether the complainant would get the loan, then the appellant said that it will be done.
It has been specifically stated by P.W. 2 that thereafter, the complainant asked P.W.2 to go out for some time. Upon this, P.W.2 went out and when he was near the door itself, the complainant closed the door. It has been specifically stated by P.W.2 that he could not hear anything. Thereafter, after two minutes, the complainant came out and started coughing. Immediately, thereafter, 5 to 6 persons entered into the house. The P.W 2 has further stated that thereafter Ganesh Singh and Mr. Bhattacharya, caught hold of the hands of the appellant and his hands were dipped in the solution which did not turn pink and those solutions were kept in different bottles in which he had put his signature and he had exhibited his 23 signature in the bottle and signature on the page and has exhibited the same as 'Exhibit 2/8 and 2/9'. The P.W. 2 has also stated that upon this, the appellant started shouting that he had committed mistake and he may be excused and thereafter, the tainted money was recovered from below the bed which was taken out by Mr. Mohan. The money was counted which tallied with the memorandum of note furnished by the complainant. The notes were put in an envelope in which the P.W.-2 had also put his signature and was marked as 'Exhibit 2/10'. The P.W 2 has also stated that a small portion of cotton was taken from the mattress which was dipped in the solution and turned pink which was in turn kept in a bottle and he had put his signature which is marked as 'Exhibit 2/11'. He has further stated that thereafter, the piece of cotton (swab) was put inside an envelope in which he had put his signature on the envelope which has been marked as 'Exhibit-2/12'. He has further stated that he had put his signature on the Pre-Trap Memorandum as well as on the seizure in 5 pages and has exhibited those signatures as 'Exhibit 2/13, 2/14, 2/15, 2/16 and 2/17' respectively. P.W 2 has also identified the appellant.
In his cross-examination, he has stated that he is aware of the fact that if any person has taken loan and if it is not repaid, he cannot be granted loan under PMRY scheme. He has also stated that the complainant did not disclose that on 27.10.2009, he had filed an application before the Branch Manager, SBI indicating that he has not been able to repay the previous loan of Rs.75,000/- and he had made a request for fixing the installments for the purposes of its repayment. He has further stated in his cross examination that when P.W.-2 went to the Bank, the said application of the complainant was not shown and it was told that the complainant had applied for loan, but 24 the Branch Manager, SBI did not pass the order and he was not shown any of the documents regarding the loan granted to the complainant. He has also stated that the Investigation Officer did not inform him as to whether any person was sent in order to ascertain the correctness of the allegation being made by the complainant and the complainant had informed P.W.-2 that he has to pay the illegal gratification to the appellant on the date. He has also stated that the complainant did not inform him as to the place where the illegal gratification was to be paid, rather he has said that he will have to go and find out after visiting the bank. He has also stated that the office of the C.B.I. is situated about 70 kms away from the SBI Branch. He has specifically stated in Para- 24 of his deposition that he has not seen the transaction of money and that he was asked to go out and the door was closed and when the door was closed, then other officers were standing nearby. He has clearly stated that whatever was the conversation inside the house, he could not be hear, although it was specifically instructed by Mr. Malik (I.O.) that they had to speak loudly. He has further stated in Para-25 of his deposition that there was a bed sheet on the mattress and the money was recovered from under the mattress. The mattress has not been recovered and only a piece of cotton was used to show the recovery from under the mattress. He has also stated that when the cotton was dipped in water, it turned pink. He has also stated that the outer cover of the mattress was not dipped in water. He has also stated that the cover of the mattress was also not seized. He has further stated that no person from the surrounding was called to certify that there was no phenolphthalein powder in the hands of the persons involved in the trap. He has further stated that the post trap memorandum was prepared in the C.B.I. Office.
25ii) P.W.-6 - P. Mohan (Independent shadow witness) - He has stated that on 28.10.2009 he was posted as Senior Manager, (Material management) in BCCL, Koyla Nagar. On 28.10.2009 his Senior Officer told him to go to the C.B.I office. He along with S.P. Mukherjee (P.W.- 2) went to the office at 2 PM, where they met the complainant and came to know about the complaint and demand of bribe of Rs.8,000/- by the appellant for clearing the loan. He has also described the pre-trap procedure and preparation of pre-trap memorandum which is almost the same as that mentioned by P.W.-2 and this witness has exhibited his signatures on the various material exhibits as well as on pre-trap memorandum. He has deposed that P.W.-2 was asked to remain with the complainant as his mausa (maternal uncle) and to hear and witness the transaction. Thereafter, they went to the residence of the appellant and only Pritam Kumar (Complainant) and S.P Mukherjee (P.W.-2) entered into the house of the appellant. He has inter alia stated that the complainant and the shadow witness Mr. P. Mukherjee went to the house of the appellant and rest of the team members followed them. When the complainant and the shadow witness entered the house of the appellant, the appellant asked the complainant as to who was accompanying him and in response, the complainant introduced the shadow witness as his mausaji, who works in CCL and stated that he had taken Rs.40,000/- from his mausaji by way of loan for depositing advance of Rs.40,000/- and the money which is being given today has been borrowed from mausaji only and since he was not believing it, therefore he has come. Upon this, Mr. S.P. Mukerji, shadow witness, asked the appellant as to whether the complainant would get the loan, then the appellant said that it will be done. He has also said that the complainant as well as the shadow witness subsequently told 26 him that the appellant had asked the complainant to send Mr. S. P. Mukherjee out and thereafter, the complainant closed the door. In the closed-door conversation between the complainant and the appellant, the appellant asked the complainant to put the money under the mattress and thereafter, the complainant came out and gave signal and consequently, the entire C.B.I team entered the room. He has also stated that the hand of the complainant was dipped in the solution which did not turn pink. He has further stated that upon being asked the appellant said that the money was kept under the mattress and when the money was recovered, the number of the notes exactly tallied with the pre trap memorandum details and the recovered notes were put in an envelope and it was sealed and he has exhibited his signature on the envelope. He has further stated that the place from where the money was recovered, a swab was taken out from that place and the swab was used which was dipped in the solution of sodium carbonate which turned pink and the solution was sealed in bottle which was exhibited. He has also stated that the swab was put in an envelope which was also sealed. He has exhibited the signature on the envelope and the envelope has also been marked as an exhibit. This witness has also not exhibited the swab and he has stated that post trap memorandum was prepared in the C.B.I office, Dhanbad and he is signatory to the post trap memorandum.
iii) P.W 10 - Pritam Kumar (Informant) - He is the informant of the case and had applied for tractor loan of Rs. 3,16,000/- in State Bank of India. After the approval of loan, he met the appellant, Asst. Bank Manager to release the loan amount, but the appellant told him to pay the earlier dues in connection with PMRY loan of Rs 20,000/- which he deposited. Then the appellant asked the complainant to meet 27 him in his house and accordingly, the complainant met the appellant in his house on 27.10.2009. Upon meeting, the appellant demanded Rs. 20,000/- for approving the loan and upon negotiation agreed to Rs.8,000/- and asked the complainant to come on the next day in the evening. Thereafter, on 28.10.2009, he went to C.B.I. Office, Dhanbad and gave a written complaint against the appellant marked as Ext.20 to the S.P who sent the complainant to the inspector who heard the complainant and asked the complainant to come to the office at 2.30 P.M with an amount of Rs.8,000/-. This witness has stated that he interacted with the CBI officers and the independent witnesses and explained the entire pre- trap procedure and exhibited his signatures on the various material exhibit. He has also stated that he was instructed to give the bribe money to the appellant only upon demand and the independent witness P.W.-2 was directed to accompany the complainant throughout and watch the transaction and the conversation. This witness has stated that the P.W.-2 was introduced to the appellant as mausa of the complainant and the appellant asked him as to why he has brought P.W.-2 with him. Upon this, the complainant replied that his mausa wanted to see as to whether the money is paid to the appellant or not. Thereafter, the P.W.-2 asked the appellant as to whether the loan would be passed or not to which the appellant answered in affirmative. The appellant asked as to whether money has been brought to which the complainant answered in affirmative. Thereafter, the appellant asked the complainant to keep the money under his mattress which the complainant complied and thereafter, they were asked to go. This witness has also stated that upon giving signal, the trap team entered into the room, caught hold of the appellant and upon washing his hands, the solution did not turn pink. He 28 has deposed that the money was recovered from under the mattress by P. Mohan which tallied with the pre-trap memorandum. He has also stated that the place from where the money was recovered was wiped with a piece of cotton (swab) and upon being treated in the solution, the solution turned pink. He has exhibited his signatures on all the post trap exhibits as well as his signatures on the post trap memorandum.
The informant has also stated that thereafter, the drawer of the appellant was searched and the loan application (Material Exhibit-1) was completely unfilled. He has mentioned about the four-security delivery letter, which included fixed deposit of Rs.1,00,000/- and he has stated that these were given by way of security to the bank.
He has further stated in his cross-examination that he had taken loan under PMRY scheme earlier from the bank in which Rs.50,000/- was outstanding. He has also stated that he has informed the C.B.I about his earlier loan and out of Rs.50,000/-, he has deposited Rs.20,000/- so that the tractor loan could be released. He has further stated in his cross- examination that his loan application was blank and he has denied his signature on the same. He has further stated that he was talking about the loan from other bank also who were asking for security, but the security which was deposited with the SBI was not being returned back to him and when he asked the Manager to return the security, he was told that unless he clears the earlier loan, the security will not be returned. He has stated that on 27.10.2009, he has given an application dated 27.10.2009 in connection with the earlier loan in which he has mentioned that the loan amount was Rs.75,000/- and out of which, he had paid Rs.20,000/-. He has stated that the earlier loan was in the name of Pritam Sao and 29 Pritam Kumar and Pritam Sao are one and the same person. He has stated in his Para-20 of his cross-examination that he had stated to the S.P, C.B.I. that an amount of Rs.15,000/- was being asked as illegal gratification and the appellant had told him that in order to pass the loan Rs.20,000/- will be required as expenses. He has stated that he had no idea that if the earlier loan is not cleared, fresh loan cannot be granted. He has stated that he had informed the S.P., CBI that the earlier loan has not been cleared and in the application under PMRY scheme, he has not mentioned about the earlier loan. He has stated that on 20.10.2009 when he met the appellant, he was informed that in order to get the loan, he has to regularize his previous loan. He has clearly stated in Para-24 of his cross examination that if the security would have been returned to the informant, he would not have filed the case. He has stated in Para-25 in his cross examination that money of Rs.8,000/- was kept in an envelope. He has stated that along with him one more person had entered into the room of the appellant and at the instance of the appellant, the other person was asked to go out and the door was closed. The money was in his pocket. The appellant did not ask him to give money to him and ask him to keep it below the mattress and he did accordingly and he said that he does not know what he did to the envelope. He has stated that the mattress was not seized. This witness has admitted that there was outstanding loan against him and he was a defaulter and had filed an application for settlement on 27.10.2009 and had also paid Rs.20,000/- and there was substantial amount to be repaid against the previous loan. Admittedly, this witness had taken the previous loan in different name of Pritam sao and not Pritam kumar and had not disclosed this fact in his fresh loan application. This witness has deposed that the demand and 30 acceptance of bribe money by the appellant had taken place in presence of P.W.-2 and he has narrated the conversation amongst the appellant, complainant and P.W.-2 which is materially different from that of P.W.-2. Not only this, P.W.-2 has categorically stated that at the time of transaction of money, he was not present in the room and was at the door which was closed and he could not hear the conversation from outside.
iv) P.W.-5 - Manvesh Anand Bhattacharya - He has stated that on 28.10.2009, he was posted as Inspector in A.C.B, C.B.I. He has stated that Mr. B.P. Arya S.P., C.B.I gave him a written complaint of Pritam Kumar and he has identified the writing and signature of C.B.I, S.P. endorsed on the written complaint and marked as Ext 4/16. After this, he verified the complaint and submitted his report. He has proved his report which is marked as Ext.11. This witness is the person who was to verify the allegations made by the complainant in his report. He was also a part of the raiding team. He has stated that he did not go to the spot to verify the allegations and he got it verified through reliable source which he is not obliged to disclose. He has also stated that he met the complainant after the verification was done. He has supported the pre-trap procedures and the pre-trap memorandum. He has stated that at the time of trap, P.W.-2 accompanied the complainant. Initially, P.W.-2 came out of the room of the appellant and then the complainant came out after 2 to 3 minutes. He has stated that the appellant had disclosed that the money was kept under the mattress. He has stated that a swab was used to take powder from under the mattress which when dipped in solution turned pink, but he has not stated that swab was put in an envelope and sealed. However, he is also a signatory of Post Trap Memorandum.
31v) P.W.9 - Sri Sridhar Mallick - He was posted as D.S.P, C.B.I, A.C.B., Ranchi from 05.05.2003 to 05.05.2010. On 28.10.2009, he received a written complaint from Pritam Kumar against Vijay Kumar, S.B.I., Bokaro regarding demand of Rs.8,000/- for releasing the loan amount. The verification was done by Mr. M. Bharracharya who submitted a report on 28.10.2009, on basis of which F.I.R was registered on 28.10.2009 and a trap team was constituted on the order of S.P., C.B.I. This witness was trap laying officer in that team. All members of trap team gathered in I.O. Hall where pre trap demonstrations were done. This witness has exhibited his signatures on the material exhibits of pre-trap procedures and has also exhibited his signature on the pre-trap memorandum. He has stated that the money which was to be given as bribe was produced by the complainant whose serial numbers were duly recorded and the same was returned to the complainant by recording the numbers of the notes. The complainant was instructed to hand over the money to the appellant only on demand and P.W.-2 was directed to accompany the complainant and see the transaction of bribe money and to hear the conversation between them. The complainant was instructed to give a signal by coughing three times upon receipt of the bribe money by the appellant. After demonstration, the team went to the residence of appellant and the appellant and P.W.-2 were asked to enter the quarter of the appellant and rest remained outside and took their respective positions. He has stated that after 8 to 10 minutes the complainant came out and coughed thrice and thereafter, the entire team members entered and challenged the appellant for having taken bribe and arrested the appellant. He has deposed that after arrest of the appellant, a solution of Sodium Carbonate was prepared in two separate vessels and when the 32 fingers of both of the hands of the appellant were washed in this solution, the colour of solution changed to pink and the pink solution was kept in a bottle and sealed and this witness has exhibited his signature on the sealed bottle. He has deposed that upon enquiry from the appellant, the appellant disclosed that the money is kept under the mattress and the money was recovered by the independent witness P. Mohan which tallied exactly with the numbers noted earlier. The bribe money was kept in an envelope which was sealed and signed and he has exhibited his signature. The seal was opened in the court and the notes were exhibited with their numbers and marked as Material Exhibits-IV to IV/19. The place from where the money was recovered was wiped with the swab and when it was dipped in the solution it turned pink and that pink solution was kept in a bottle and sealed and that solution has been exhibited as 'Exhibit 2/85'. He has further stated that the swab was kept in an envelope and he has exhibited his signature on the envelope as 'Exhibit 2/86'. He has also stated that the documents were recovered from the bank and the post trap memorandum of recovery and seizure was prepared in the C.B.I. Office under his dictation by one Mr. M Bhattacharya and he has exhibited the post trap memorandum.
In his cross-examination, he has stated that he could not find out that a recovery process was already going against informant and that the informant had taken loan in another name i.e., in the name of Pritam Sao and that the informant had disclosed his name only as Pritam Kumar to this witness. He has also stated that he had no idea that the complainant had given certain securities documents to the bank and he was pressurizing the bank for return of the security documents. He has also stated that he had no idea that on 27.10.2009, the 33 complainant had filed an application before the bank that Rs.75,000/- loan amount was due and he had deposited 25% application money for waiver of interest.
vi) P.W.- 11 - Vikas Chandra Chaurasia - He was posted as Dy. S.P, C.B.I., A.C.B., Dhanbad and is Investigating Officer of this case. He has stated about the written complaint from Pritam Kumar against Vijay kumar, Asst. Manager, S.B.I Bokaro, who was demanding bribe to release the loan amount of Sri Pritam Kumar. After initial investigation by Sridhar Mallick, the case was handed over to him vide letter dated 06.11.2009. The appellant was arrested on 28.10.2009 while taking bribe from the complainant. During investigation, he has sent some of the exhibits to CFSL, Kolkata for testing. He has proved the computerized typed formal F.I.R. which has been marked as Ext.-21 and has also proved his signature on seizure list memorandum marked as Ext.- 22. He has proved his signature on two seizure-cum-production memo marked as Ext.-22/1 and Ext.-22/2. He has stated in his cross examination that the informant did not disclose in his complaint that he had taken loan from the bank on PMRY and that he has not cleared the loan. P.W.-1 has further stated in his cross-examination that the hand wash of the appellant did not change the colour. He has further stated that the mattress under which the bribe amount was kept has not been seized. He has further stated that the document of loan which was seized had thumb impression and the stamp was embossed, but the form was unfilled. SBI booklet advanced to SME was also seized which was blank, but certain stamp was embossed by the bank.
vii) P.W.-3 - B. Mukhopadhaya has stated that he was posted as Assistant Director in C.F.S.L., Kolkata in 2009 till 04.07.2011 and during this period, Dr. C.N. Bhattacharjee was 34 the Director of C.F.S.L. Dr. C.N. Bhattacharjee gave him four bottles of liquid to test which he had received from C.B.I., Dhanbad. On test, he found that in one bottle, there was a mixture of phenolphthalein, Sodium Carbonate and water, in two other bottles, there was a mixture of sodium carbonate and water and in the fourth bottle, there was a mixture of sodium carbonate, water, cotton and phenolphthalein. In one packet, there was dry cotton which was coated with Phenolphthalein and sodium carbonate. He has proved the test report and stated that same was prepared and typed by him. He has signed the report which was counter signed by the Director of the C.F.S.L. marked as Ext.-3. He has identified his signature on the bottles which are marked as Exhibit-2/18 to 2/21. He has also identified his signature on the envelope as Ext.-2/22.
Evidences of bank officials and Rajesh Kumar Agarwalla (P.W.-7) in connection with loan to Complainant
viii) P.W.-4 - Bishwajeet Kumar Sinha - He has stated that on 11.11.2009, he was posted as Branch Manager in State Bank of India, Bokaro Thermal Branch. From his branch, finance of S.R.T.O loan was being done after getting application from the applicant. While explaining the procedure, he has stated that an enquiry about the identity of the applicant, address, etc. is done to fulfill the KYC norms. Thereafter, a loan officer commonly known as Field Officer enquires about the property and makes opinion report on basis of which loan amount is to be decided. After satisfaction, the application of the applicant is sent to the Regional Manager for administrative approval. After approval of the loan under SRTO, the applicant has to furnish margin money of 20-25%, collateral security money of 40-50% and suitable guarantee is also demanded as per the letter issued by Zonal Manager to all Regional Managers 35 which is marked as Ext -2/23 and his signature on this letter is marked as Ext-2/24. Thereafter, the applicant is called with the documents and the documents are processed and on the recommendation of Field Officer, the Branch Manager sanctions the loan and the loan amount is disbursed by draft issued in the name of the dealer.
He has further submitted that in the evening of 26.10.2009, he received a call from the Dy. S.P., C.B.I regarding the arrest of appellant field officer while taking bribe. He went to his residence and found a huge crowd along with C.B.I. team. C.B.I. told him about the trap and the arrest of the Field Officer and thereafter, they went to the branch alongwith the team of C.B.I. and the appellant where the C.B.I team searched the drawer of the appellant and seized the papers and documents related to loan of Pritam Kumar and marked as "X". On 11.11.2009, C.B.I. team called him at their office in Dhanbad alongwith certain documents like attendance register, duty allocation register, copy of delegation of financial power, joining letter of Vijay Kumar to the Branch and joining letter of Vijay Kumar to the bank. He has proved his signature on the documents and stated that seizure list was prepared and he identified his signature and endorsements on the documents. He has proved statement of account of complainant, Pritam Kumar from 06.04.06 to 31.10.2009 marked as Ext.-7. He proved computer generated term loan statement of the complainant which is identified by him and the signature on that statement is marked as Ext.-7/1. He has proved the branch copy of approval of loan on which there is signature of the then Manager Mr. Rajesh Prasad marked as Ext.-8. He has proved the KYC document given by the informant marked as X to X/7. He has proved the letter of R.B.O., Deoghar and identified the signature of S.N. Parsad, C.M. Rural, R.B.O. 36 Deoghar marked as Ext.-9. He proved the letter of final approval of loan from Regional Manager marked as Ext.-10 and endorsement is marked as X/8.
He has stated that it is essential for the party to give details of his earlier loan and also the fact about being a defaulter. This witness has stated that prior to 29.10.2009, they did not know that the complainant was a loan defaulter. Upon getting knowledge, the bank has issued notice to clear the dues and has asked the complainant to pay Rs. 48,449/- by 31.03.2010. He has also deposed that the complainant had given a letter dated 27.10.2009 for the settlement of loan and the complainant was informed that his application for loan under SRTO Scheme has been rejected as the complainant is a loan defaulter. He has denied the suggestion that the complainant knew that his application for loan has been rejected. He has stated that on 27.10.2009, the complainant was directed to deposit Rs. 45,000/-, but till November, 2011, the complainant did not deposit the amount and that the loan under SRTO was not granted after institution of the CBI case.
ix) P.W.-7 - Rajesh Kumar Agarwalla has stated that in 2009, he was an employee in M/s Jai Machinery Store, Bokaro and has given quotation of tractor and trailer to Pritam Kumar. He has proved the money receipt of Rs.5,000/- as advance money (marked as Ext.-12) and quotation (marked as Ext.-Z).
x) P.W.-8 - Sidhartha Ghosh has stated that on 30.06.2009, he was posted as Deputy Manager, Personal Banking Division in State Bank of India, Bokaro Thermal Power Branch. He has proved the Seizure Memo, marked as Ext.13 and has also proved the letter dated 27.10.2009 which was given by the complainant to the Branch Manager, S.B.I which is marked as Ext.-14. He has proved the photocopy of customer information 37 register which is marked as Ext.-15 and also proved the letter of Branch Manager dated 14.11.2009 issued to Pritam Kumar marked as Ext.16. Exhibit 14, which is a letter dated 27.10.2009 and has stated that this letter was written by Pritam Sao in favour of the Branch Manager that the informant had one PMRY loan. He has also stated that the complainant namely, Pritam Kumar is a defaulter of loan previously taken and he had taken the loan in the name of Pritam Sao. He has also stated that no further loan can be advanced to willful defaulter.
xi) P.W.-1 - Jitendra Narayan Mishra has stated that in July 2009, he was posted as G.M. Network-II at local head office in State Bank of India in Patna. He has given the sanction order to prosecute the appellant-Vijay Kumar. Sanction Order for prosecution is marked as Ext.-1. He has stated that appellant Vijay Kumar was demanding illegal gratification from Pritam Kumar to release the loan amount. He had perused the F.I.R, Pre-Trap memo, Post trap memo and statements of the witnesses and then issued the sanction order for prosecution against the appellant. He has further stated that he had not done any enquiry in this matter and enquiry was done by Vigilance Department of C.B.I. No argument has been advanced by the appellant on the point of grant of sanction for prosecution of the appellant. From the perusal of the evidence of the aforesaid witness, this court is of the considered view that the sanction for prosecution was granted by the competent authority after going through the documents and due application of mind.
Conduct of the Complainant
34. From the perusal of the evidence of the officers of the bank in which the appellant was working, it is clear that the complainant was already a defaulter of the loan taken earlier in the name of 38 Pritam Sao and now he had applied for loan under STRO in a different name i.e. Pritam Kumar and did not disclose about the previous loan and its default.
His loan application under STRO was approved and he had also submitted certain documents for security etc., but prior to its disbursement the aforesaid material, suppression by the complainant came to light.
The complainant had given a letter dated 27.10.2009 for the settlement of earlier loan stating that the dues in his account is Rs.75,000/- and he had paid Rs. 20,000/- on 20.10.2009 and requested for fixation for installments for its repayment and also for waiver of interest. It has come in the evidence of P.W.-10 itself that on 20.10.2009 the appellant had asked the complainant to clear the earlier loan amount for getting the new loan.
On 28.10.2009, the complainant went to the CBI office and lodged complaint against the appellant by stating that the appellant is demanding bribe for releasing the draft of the sanctioned loan (i.e. the second loan) without disclosing the true picture that on 27.10.2009, he had applied for settlement of the previous loan and he was a defaulter and the previous loan was in another name i.e. Pritam Sao and not Pritam Kumar (the name of the complainant) . It has come in evidence that the complainant had almost succeeded in misleading the bank till the stage of sanction of the second loan, but before it could be disbursed the entire suppression by the complainant came to light. It has come in the evidence of the bank officials who have deposed from the side of the prosecution as well as Defense Witness No.1 that no loan can be sanctioned in favour of a defaulter and before fresh loan application is processed, the borrower has to clear the earlier loan.
35. The appellant has clearly denied the allegations in his statement made under section 313 of Cr.P.C. and has also given the reason of 39 his false implication in the case. He has stated in his statement that the complainant had already taken a loan and was a defaulter. He has clearly stated that the fresh loan was sanctioned in favour of the complainant and for the purposes of processing of loan, the complainant had approached him and upon his approach, he had asked the complainant to clear the earlier loan which was taken by the complainant so that he could get fresh loan. The appellant has also stated that he had given oral notice as well as written notice to the complainant to return the earlier loan and pursuant to that he had deposited Rs.20,000/- on 20.10.2009 and subsequent thereto, he had filed an application for settlement of the earlier loan amount on 27.10.2009 and the present case has been lodged on 28.10.2009. The appellant has stated that for the aforesaid reasons, the complainant has falsely implicated him.
36. This court finds that on account of timely detection that the complainant was a defaulter and the appellant had been asking the complainant to clear the earlier loan for the purposes of getting the fresh loan, the evil design of the complainant to take loan from the bank under a different name without clearing the earlier loan miserably failed and accordingly, the complainant naturally had a grudge against the appellant. Accordingly, this court finds that it has come in evidence that there was a demand from the side of the bank upon the complainant through the appellant to clear the dues of the bank and consequently, the complainant had applied for a settlement of the dues on 27.10.2009 mentioning that he has paid an amount of Rs.20,000/- to the bank on 20.10.2009.
37. Further the complainant, in his complaint to the CBI on 28.10.2009, neither disclosed the actual reason for non-disbursal of loan, nor disclosed the same to any of the witnesses as is apparent from the evidences of the witnesses relating to trap. Moreover, there is no doubt that the complainant was a defaulter and the loan could not be disbursed to him till he cleared his earlier loan even if the 40 appellant was bribed. This fact was very well known to the complainant which is apparent from his conduct that he applied for the second loan in a different name without disclosing his previous loan and had even succeeded to some extent as his second loan application was processed and sanctioned, but his suppression came to light before disbursal of the second loan and ultimately, it was not disbursed.
38. In the aforesaid back ground, the evidences of the witnesses of trap are required to be examined and close scrutiny of the evidence of the complainant is required to be done as this court, upon considering his conduct, has no doubt that he is a highly interested witness.
Verification of the complaint
39. So far as the verification of the complaint is concerned, this court, upon consideration of the submissions advanced on behalf of the appellant is of the considered view that the officer never went to the place of work of the appellant for verification of the complaint and that he did the verification by getting the information over phone about the bad reputation of the appellant in the bank. Thus, this court finds that verification of the complaint was not properly done by the verifying officer and report was submitted without examining the complainant or without interacting with the complainant. However, the witnesses of the trap, including the independent witnesses have stated that they had interacted with the complainant and were told that the appellant is demanding Rs.8000/- to disburse the loan to the complainant.
Findings on pre-trap procedures
40. So far as the pre-trap procedures and preparation of pre-trap memorandum are concerned, the evidences of the witnesses are consistent and accordingly, this court finds that the same have been duly proved by the prosecution.
41Findings on the point of demand of illegal gratification, its acceptance and its recovery from the appellant
41. So far as the proceeding during the trap is concerned, there is consistent evidence that the P.W.-2 had accompanied the complainant inside the house of the appellant and the others including the other independent witness (P.W.-6) had stood outside the house.
42. So far as the evidence of P.W.-9 is concerned, he has supported the prosecution case. He has also stated that P.W.-2 had accompanied the complainant during the trap and the P.W.-2 had come out of the room prior to the complainant and thus, it is clear from his evidence also that at the time of actual transaction of money, P.W.-2 was not present inside the room. In his cross-examination, he has stated that PW-9 could not find out that a recovery process was already going against informant and that the informant had taken loan in another name i.e. in the name of Pritam Sao and that the informant had disclosed his name as Pritam Kumar only to this witness. He has also stated that he had no idea that the complainant had given certain securities documents to the bank and he was pressurizing the bank for return of the security documents. He has also stated that he had no idea that on 27.10.2009, the complainant had filed an application before the bank that Rs.75,000/- loan amount was due and he had deposited 25% of the application money for waiver of interest.
43. Upon perusal of the evidence of P.Ws.-2 and 6, it appears that the complainant and P.W.-2 had together entered the room of the appellant and P.W.-2 was introduced as mausaji of the complainant and the complainant told the appellant that the amount of Rs.40,000/- deposited in the bank earlier was given by the P.W.-2 as loan and the money to be given on that day to the appellant as per previous day's discussion, was also given by P.W.-2 as loan to the complainant . Thereafter the P.W.-2 asked the appellant as to whether 42 the loan will be granted to the complainant, to which the appellant answered in affirmative. Thereafter P.W.-2 went out of the room under the instructions of the appellant and he stood outside the closed door and could not hear any further communication between the two. The complainant came out after two to three minutes and gave the pre-fixed signal. Thus, P.W.-2 was not present at the time of actual transaction of the money and the only witness to the actual transaction of the money is the complainant himself.
44. The complainant has tried to project in his evidence that P.W.-2 was throughout present during the transaction of money and both of them came out of the room together, but this version of the complainant is contrary to the evidence of the independent witnesses i.e. P.W.-2 and 6 as stated above.
45. Although it is alleged in the charge-sheet that during interaction on the date and time of trap, the complainant had disclosed to the appellant that the "bribe money" to be paid by the complainant to the appellant was also paid by the his mausa (P.W.-2- shadow witness), but in the evidence before the learned trial court, there is no such communication/conversation between the appellant as apparently the words , "bribe money", has not been used in the conversation as disclosed by the P.Ws.-2 and 6. This court also finds that the P.W.-2 was asked to go out of the room when the actual transaction of money had taken place and the complainant has stated about further conversation in his evidence that thereafter, the appellant demanded the bribe money and upon instructions of the complainant the bribe money was kept under the mattress.
46. However, the complainant (P.W.-10) has not mentioned that P.W.-2 was asked to go out after the initial conversation and has deposed as if the entire transaction of demand and acceptance of bribe money had taken place in presence of P.W.-2. This version of the complainant has not been supported by the P.W.-2 and 6.
43So far as the evidence of the complainant, P.W.-10 is concerned, he has stated that P.W.-2 had accompanied him and was introduced with the appellant as mausa of the complainant and the appellant asked him as to why he has brought P.W.-2 with him. Upon this, the complainant replied that his mausa wanted to see as to whether the money is paid to the appellant or not. Thereafter the P.W.-2 asked the appellant as to whether the loan would be passed or not, to which the appellant answered in affirmative. The appellant asked as to whether money has been brought to which the complainant answered in affirmative. Thereafter, the appellant asked the complainant to keep the money under his mattress which the complainant complied and thereafter, they (P.W.-10 and P.W.-2) were asked to go.
This witness has tried to project as if P.W.-2 was throughout present till the actual transaction of the money and has not stated that P.W.-2 was asked to go out after initial conversation. This evidence on the point of demand of illegal gratification is contrary to the evidence of the other witnesses of the trap including that of P.Ws.-2 and 6.
47. P.W.-10, Complainant in his cross examination has clearly admitted about his previous loan in a different name and he was a defaulter. On 20.10.2009, he was told by the appellant that he has to regularize the earlier loan for getting the second loan and the complainant had filed an application for settlement of loan on 27.10.2009, just a day before the date of Complaint to CBI and the trap of the appellant. Thus, even as per the evidence of the complainant, there was enough reason for the appellant to demand money from the complainant for clearing the dues of the bank.
Further in Para 24 of the deposition, the complainant has himself stated that certain securities were lying with the bank and he was demanding the securities back by stating that he could get loan from other bank and he himself has stated that if the securities were returned to him, he would not have filed the case. This evidence itself 44 goes to show that the complainant knew that the State Bank in which the appellant was working would not grant him loan and accordingly, he was not interested in loan from SBI, but was interested in getting the securities back which the appellant refused to give as the complainant was already a defaulter in the earlier loan.
48. The appellant has also stated in his statements under Section 313 of Cr.P.C. that security amount to the tune of Rs.1,70,000/- was lying with the bank as a fixed deposit and LIC. The learned counsel for the appellant has submitted that the aforesaid explanation which has been furnished by the appellant in his statements under Section 313 of Cr.P.C. has been fully established during the course of trial and therefore, it is apparent that the complainant was asking for the refund of the securities for which he was to clear the earlier loan amount.
49. Under the facts and circumstances of this case, the complainant (P.W.-10) is a highly interested witness and accordingly, his evidence showing that the P.W.-2 was throughout present at the time of demand and acceptance of the bribe money cannot be accepted when P.Ws.-2 and 6 have deposed that P.W.-2 was made to leave the room of the appellant and thereafter, the money transaction had taken place and the complainant came out of the room after about 3 minutes.
50. This Court is of the considered view that the onus is on the prosecution to prove that the money was demanded by way of illegal gratification and mere the demand of money is not sufficient to establish a case under Sections 7 and 13 of the Prevention of Corruption Act, 1988.
51. The conversation between the complainant, appellant and the shadow witness as recorded in the charge-sheet refers to the use of the word ghus ka rupaya (i.e. bribe money) but the evidence of the shadow witness does not mention use of this term or a term of like 45 nature during the conversation and the conversation when seen in the context of the earlier loan to the complainant creates a doubt as to whether the demand of money was by way of bribe or it was in connection with repayment of the existing dues of the bank against the complainant as he has stated during conversation with the appellant that earlier amount of Rs. 40,000/- was also paid by his mausa (shadow witness).
52. This court is of the considered view that the communication which had taken place in the room as mentioned in the evidence of P.Ws.-2 and 6 cannot be seen in isolation from the fact that on the previous day, the complainant had gone to the bank and had filed application for clearing his previous loan in installments and that the appellant was throughout insisting that the complainant has to clear the previous loan before disbursal of the second loan and by this time, the suppression by the complainant regarding his previous loan (in another name) had already come to light. As per the aforesaid communication, it appears that the transaction of money on the date of trap was linked to certain more amount i.e. Rs. 40,000/- claimed by the complainant to have been paid to the bank.
53. In the aforesaid facts and circumstances, this court is of the considered view that the prosecution has not been able to prove beyond all reasonable doubts that on 28.10.2009, the appellant had demanded illegal gratification for disbursal of fresh loan to the complainant by the bank. Admittedly the loan documents which were recovered from the bank were blank and application dated 27.10.2009 for fixing installments to clear the previous loan was already filed by the complainant. In aforesaid circumstance, when the appellant was already asking the complainant to pay the money against his previous loan, a reasonable doubt is created as to whether the conversation was relating to bribe money or it was related to the legitimate dues of the bank against the complainant arising out of earlier loan. When the aforesaid communication is read in the 46 context, the demand of money by way of illegal gratification by the appellant is not proved against the appellant beyond all reasonable doubts.
54. As the demand of illegal gratification has not been proved beyond all reasonable doubts, the presumption under Section 20 of the Prevention of Corruption Act, 1988 has no role to play.
55. The aforesaid aspects of the matter have not been properly considered by the learned trial court and accordingly, the impugned judgment of conviction is fit to be set-aside.
56. On the point of recovery, it has come in evidence that the tainted money was never touched by the appellant as his hand did not turn pink upon being treated with sodium carbonate solution. This has also been stated by the P.W.-11 (Vikas Chandra Chaurasia), the investigating officer who had later on taken the charge of investigation and also by the expert witness who had examined the material exhibits.
57. This Court also finds that the post trap memorandum was admittedly prepared in the C.B.I office and the cotton swab which was there inside the envelope showing recovery of the alleged money from under the mattress spread over the bed was never exhibited before the learned trial court and what was exhibited was the envelope said to contain the cotton swab. Admittedly, neither the bed, nor the mattress, nor its cover has been seized and recovered and accordingly not exhibited. The fact that swab was kept in an envelope and sealed and signed was also not placed before the appellant at the time of questions put to him under section 313 of Cr.P.C. It has also not been placed before the appellant that the money was recovered upon being disclosed by the appellant, rather the question was relating to the fact that money was recovered by P. Mohan (P.W.-6) upon search.
4758. Even if it is assumed that recovery of tainted money from under the mattress and hence from the conscious possession of the appellant is proved on the basis of oral evidences of the witnesses, this also does not help the prosecution in any manner whatsoever as demand of money by way of illegal gratification has not been proved beyond all reasonable doubts and in such circumstances, there is no question of resorting to any presumption against the appellant under Section 20 of Prevention of Corruption act, 1988 .
Findings of the learned court below
59. The learned court below has inter-alia recorded the following findings:-
"From the statement of the prosecution witnesses it has come clearly that the complainant applied for loan for purchasing of a Tractor and he was previously defaulter, so accused demanded Rs.8,000/- in bribe for passing the second loan of the complainant for which he has applied. Thereafter complainant lodged complaint before S.P. CBI, and a preliminary enquiry was conducted and thereafter F.I.R was lodged and then trap team was constituted in which P.W.9 Sridhar Mallick was the trap laying Officer, P.W.2 S.P. Mukherjee was the shadow witness, P.W.6 P. Mohan was the witness and thereafter a pre trap proceeding was prepared and the phenolphthalein powder was used in the 15 currency notes of Rs.500/- and 5 currency notes of Rs.100/- and it was given to the complainant to hand over the accused when he demanded bribe and then the CBI team went to the house of accused where complainant and the shadow witness S.P. Mukherjee went inside the room of the accused where a talk taken place in between them in presence of S.P. Mukherjee in which it has been proved that the accused demanded money for bribe and thereafter the shadow witness P.W.2 was asked by the accused to come outside and then he came out from the room and the room was closed and then the accused told the complainant to put money under the mattress and thereafter complainant came out and gave signal and accused was caught hold and then his both hands were washed with 48 sodium carbonate it did not change the colour and the tainted money was recovered under of the mattress and that place was clean with cotton and that cotton poured into the solution of sodium carbonate which turned into pink which clearly shows that the bribe money was kept beneath the mattress."
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.............. Here in this case also it has been proved that the tainted money was recovered under the mattress of the accused in his room and in the statement U/s 313 of the Cr.P.C, he has not given any explanation how the tainted money found under the mattress of his bed. So also there is a presumption U/s 20 of the Prevention of Corruption Act, 1988 that the accused has accepted the bribe money."
60. This Court is of the considered view that the learned court below while convicting the appellant has wrongly held that demand of money by way of bribe was made by the appellant in presence of the shadow witness P.W.-2. This court has come to the finding as recorded above that the P.W.-2 was not present at the time of actual transaction of money and the prosecution has not been able to prove the demand of illegal gratification against the appellant beyond all reasonable doubts.
This Court also finds that no such question has been put to the appellant even at the time of recording his statements under Section 313 of Cr.P.C., rather the question under Section 313 of Cr.P.C indicates that evidence has come that the demand of money was made after P.W.-2 went out of the room.
61. The learned trial court has failed to properly scrutinize the evidence of the P.W.-10, the complainant, a highly interested witness under the facts and circumstances of this case. The P.W.-10 has mentioned about throughout presence of P.W.-2 in the room and has not stated that P.W.-2 was asked to go out at the time of transaction of the money. This is contradictory to the evidence of the P.Ws.-2 and 49 6, the independent witnesses. There is no doubt that complainant (P.W.-10) is an interested witness and had suppressed material facts from the prosecution about being a defaulter in relation to earlier loan. The P.W.-10 i.e. the complainant, was a highly interested witness as the appellant was pressurizing the complainant to clear the earlier dues of the bank which he had taken in a different name and the complainant in his evidence did not mention that P.W.-2 was asked to go out at the time of actual transaction of the money thereby trying to project as if P.W.-2 was an eye witness to the actual transaction of bribe money. The learned court below has also failed to consider Para-24 of the deposition of P.W.-10 that he was interested in getting the securities back so that he could approach other bank for loan and P.W.-10 himself has stated in his cross examination that on 20.10.2009, he was told by the appellant that for getting the second loan he has to regularize the earlier loan. The learned trial court has also not considered the fact that the complainant had totally suppressed the fact regarding being a defaulter of the earlier loan and that the appellant was asking him to clear the dues and that on 27.10.2009, he had filed an application for settlement of the earlier loan mentioning that he had deposited 20,000/- in the account on 20.10.2009 out of total dues of 75,000/- .
62. Considering the aforesaid aspect of the matter and conduct of the complainant, the learned trial court erred in law while holding that the prosecution has proved the demand of illegal gratification against the appellant beyond all reasonable doubts and has resorted to presumption under section 20 of the prevention of corruption act, 1988 to convict the appellant.
63. Accordingly, the impugned judgment of conviction and sentence cannot be sustained in the eyes of law and is set-aside giving benefits of doubt to the appellant as held above.
5064. Accordingly, this criminal appeal preferred by the appellant is hereby allowed.
65. The bailors of the appellant are discharged from the liability of their bail bonds which they have furnished.
66. Let the records of the case be sent back to the court concerned along with a copy of this judgment.
(Anubha Rawat Choudhary, J.) Saurav/