Jharkhand High Court
Against The Judgment Of Conviction And ... vs The State Of Jharkhand Through C.B.I on 3 December, 2020
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 23 of 2014
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[Against the Judgment of Conviction and Order of Sentence dated 21.12.2013 passed by the Additional Sessions Judge-IV-cum-Spl. Judge, C.B.I., Dhanbad in R.C. Case No.02 (A) of 05(D)]
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Md. Mahmood Ansari @ Md. Mahmud Ansari, S/o Mafijuddin Ansari, Resident of Village- Islampur Tola, P.O. Jungalpur P.S.-Govindpur, District-Dhanbad, State-Jharkhand ............Appellant Versus The State of Jharkhand through C.B.I., Dhanbad ..........Respondent
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For the Appellant : Mr. Mahesh Tewari,Advocate
For the C.B.I. : Mr. Rohit Sinha, Advocate
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PRESENT
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HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
C.A.V. ON 21.09.2020 PRONOUNCED ON 03.12.2020
Anil Kumar Choudhary, J. Heard the parties through video conferencing.
2. This appeal has been preferred against the Judgment of Conviction and Order of Sentence dated 21.12.2013 passed by the Additional Sessions Judge-IV-cum-Spl. Judge, C.B.I., Dhanbad in R.C. Case No.02 (A) of 05(D) whereby and whereunder, learned court below has held appellant-accused guilty for the offence punishable under Section 7 and under Sections 13 (2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988. The appellant-accused has been sentenced to undergo Simple Imprisonment for two years and to pay a fine of Rs.10,000/- for 2 the offence punishable under Section 7 of Prevention of Corruption Act and Simple Imprisonment for two years and to pay a fine of Rs.10,000/- for the offence punishable under Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988 and in default of payment of fine to undergo Simple Imprisonment for a period of three months for both offences. Both the sentences were directed to run concurrently.
3. The brief facts of the case is that the complainant Murli Kumhar consequent upon his retirement from Patherdih coal washery as TRM worker went to the office of Regional Commissioner of Coal Mines Provident Fund, for expediting release of his pension, Provident fund amount and arrear amount. The appellant-convict was the upper division clerk concerned and when the complainant approached the appellant- convict and enquired about the status of his documents, the appellant-convict informed the complainant that his documents have been received but the processing of the same will not be done unless the complainant pays him a bribe of ₹ 2000/-. As the complainant was not inclined to pay the bribe amount, he approached the CBI, with the complaint. The complaint of the complainant was verified by the constable of CBI namely Mr. I.D. Mishra. Upon finding the complaint to be true the FIR of this case was registered. A trap was laid. The appellant-convict was caught red-handed while accepting the bribe amount of ₹ 2000/-. His hands were washed with sodium carbonate solution. The colour of the solution turned pink. After completion of the investigation of the case charge sheet was submitted against the 3 appellant-convict for having committed offences punishable under section 7 as well as 13 (2) read with 13 (1) (d) of the Prevention of Corruption Act 1988. Charges for the said offences were framed against the appellant-convict by the learned trial court and the charges were read over and explained to the appellant-convict.
4. The appellant-convict pleaded not guilty to the charges and claimed to be tried. In support of its case the prosecution altogether examined 10 witnesses. The appellant-convict did not examine any witness in his defence.
5. It is pertinent to mention here that in this case the complainant has not been examined as a witness, as the summon issued to him to be examined as a witness returned with the endorsement that he has died. Out of the witnesses examined by the prosecution P.W.3 Gandhi Chandra Mandal is a trap witness. He stated that on 6th of January 2005 he reached the office of C.B.I under the orders of the G.M. of B.S.N.L. He met the complainant. The complaint was read over to him. He has described in details about the pre-trap preparations. They went to the office of C.M.P.F. at 1:15 PM. They got down from their vehicle at a distance from the office. The complainant was continuously being told that he must give the bribe amount to the appellant- convict only if he demands the money. P.W 3 was instructed to signal after the appellant-convict received the money, by putting his hand over his head. They went to the table of the appellant- convict. The appellant-convict was not present there. After some time, they saw that the appellant-convict was coming from a 4 different office. The appellant-convict came near the garden, stood there and said if you have brought money then give it. The appellant-convict was given the money. He kept the money in his right pocket at the bottom. The P.W.3 signalled as the appellant-convict received money. The personnel of C.B.I came and caught both the hands of the appellant-convict. They asked the appellant-convict as to where he has kept the money. The appellant-convict became nervous. The appellant-convict was taken to the chamber of the Commissioner. The appellant-convict brought out the money from the pocket of his pant. Sodium carbonate solution was prepared in a glass tumbler. The hand of the appellant-convict was dipped in the solution. The milky white colour of the solution turned pink. P.W.3 then stated in detail about the post-trap formalities. He has also proved his signatures on the various documents which were marked exhibits. In his cross-examination the P.W.3 stated that the portico of the C.M.P.F. office is situated near the garden.
6. P.W.5- Raj Nandan Paswan is another trap witness. He has stated that he went to the office of CBI at 11:30 AM. He met the complainant, the other witnesses and the officers of CBI. He has also stated in detail about the pre-trap preparations. The complainant and P.W.3 were told to go inside. The CBI officers brought the appellant-convict outside by catching hold of his hands. They disclosed their identity and challenged the appellant-convict by saying that the appellant-convict has received bribe of ₹ 2000/-. The appellant-convict became nervous. The officers of the CBI got the money brought out from the right 5 side back pocket of the appellant-convict. The appellant-convict was taken to the office of D2 officer of C.M.P.F.. The bribe amount was kept in an envelope and sealed. Everybody signed on the envelope. He has also stated above the post trap formalities. The pant of the appellant-convict was kept in an envelope and sealed. The pocket of the pant was washed by the solution prepared and thereof the solution turned pink. This said solution was kept in a bottle and sealed. He has also stated about the post-trap formalities. In his cross examination the P.W.5 had stated that he had not seen the giving and taking of ₹ 2000/-. The money from the pocket of the appellant-convict was seized near a palm tree.
7. P.W.7 Ishwar Dayal Mishra was the constable posted in CBI, Dhanbad who verified the complainant. He is also a trap witness. He stated that the verification of the complaint was entrusted to him by the superintendent of police of CBI. He proved the verification report prepared by him. He also stated about the pre-trap preparations in detail. They went to the C.M.P.F. office. They stopped their vehicle at a distance from the gate of the said office. The complainant and the shadow witness P.W.3, were together. When the appellant-convict took the money; P.W.3 came out and signalled. The CBI personnel went and caught hold of the hands of the appellant-convict. From the nearby office Mr R. Nayak, came out and the appellant-convict was taken to him. The currency notes were brought out and compared. They were the same four notes of ₹ 500 denomination each. The hands of the appellant-convict were washed. The 6 colour turned pink. His pant was also washed. That also turned yellow. He also stated about the post-trap formalities. In his cross-examination the P.W.7 stated that he made the verification on 6th of January 2005. He went to the CMPF office at 9:45 AM for verification. He did not talk with anybody during the verification. He did not verify, as to whether the documents relating to pension was with the appellant-convict or not.
8. P.W.8 Ganesh Singh stated that the complainant met and told him that his money is blocked with the appellant-convict and the appellant-convict is demanding ₹ 2000/- to clear the documents. As the complainant did not want to pay the bribe hence he wanted to lodge the complaint with the CBI. The complainant submitted a complaint to the superintendent of police. On the next day a team of CBI was constituted. The P.W.8 also stated in detail about the pre-trap preparations. At about 1 PM the team reached the office of CMPF at Dhanbad. With the complainant, the shadow witness- P.W.3 also went. When the appellant-convict took the money P.W.3 gave the signal. After this CBI team reached and challenged by saying that the appellant-convict has taken bribe. P.W.8 caught hold of the left hand of the appellant-convict while Ashish Kumar caught hold of the right hand of the appellant-convict. The independent witness-P.W.5 brought out the money from the back pocket of the appellant-convict. The hands of the appellant-convict were washed and the solution became pink. The solution was kept in two bottles and sealed. The numbers of the seized notes were compared and the notes were kept in an envelope and sealed. 7 The appellant-convict was made to remove his pant. The back pocket of this pant was washed. The colour of that also turned to pink. He also stated about the post-trap formalities. In his cross- examination the P.W.8 stated that money was given to the appellant-convict by the side of the portico.
9. P.W.10 - Bipin Kumar is the investigating officer of the case. He stated about the complaint of the complainant. He proved the formal FIR and also stated about the verification of the complainant. He also stated about the constitution of the trap team and the pre-trap preparations in detail. The trap team reached the CMPF at about 1:20 PM. The complainant along with the independent witness-P.W.3 reached the office of the appellant-convict. He was following them. When they reached the main gate he saw that one person is calling the complainant by indication. P.W.7 informed the P.W.10 that the said person is appellant-convict. The complainant and the appellant-convict met near the portico and talked to each other. The P.W.10 saw that the complainant brought out the tainted money of ₹ 2000/- from his pocket and gave the same to the appellant-convict. The appellant-convict received the same by his right hand and kept the same in the right side pocket of his trousers. The shadow witness gave the pre-fixed signal. Then the P.W.10 and Ganesh went and caught hold of the appellant-convict and challenged him. The appellant-convict became nervous and admitted his guilt and also begged to be excused. As a mob assembled, the appellant-convict was taken to the office of Regional Commissioner-II, where the Regional Commissioner was also 8 associated with the procedure. The fingers of the right hand of the appellant-convict were washed with sodium carbonate solution and the solution became pink. The P.W.3 informed that he has heard the conversation between the complainant and the appellant-convict and has also seen the giving and taking and further intimated that the appellant-convict has kept the money in the right pocket of his pant. The P.W.5 was told to bring out the money, which he brought out from the pocket of the appellant-convict. The Regional Commissioner compared the numbers of the notes and found the same to be true. The appellant -convict was provided with a towel and was told to remove his pant. The inner line of his backside pocket was washed with solution and the colour turned to pink. The PW 10 also proved the various documents which were marked the exhibits. He also proved the seized currency notes which were marked material exhibits I to IV. He also sent the seized articles to the Central Forensic Science Laboratory. He recorded the statement of the witnesses and found the allegation against the appellant-convict of having committed offences punishable under section 7 and 13 (1) (d) of the Prevention of Corruption Act 1988 to be true and submitted the charge sheet. He also obtained the sanction for prosecution of the appellant-convict. In his cross-examination the PW 10 stated that he did not investigate regarding maintenance of register at the gate of CMPF.
10. PW9 Vimal Chandra Purkait conducted the chemical examination of the solution with which the fingers of the 9 appellant-convict as well as the inner lining of the pocket of his pant were washed. On being proved by him, the report prepared by him has been marked exhibit-11. Upon the said chemical examination phenolphthalein, sodium carbonate and water were found in the bottle sent for the chemical examination.
11. PW1 Jitendra Prasad Saw stated about seizure of the sectional diary from him by the officers of CBI. He further stated that serial number 627 of the said diary which was marked Exhibit 1 relates to the entry of the refund application of the complainant. Serial number 638 of the said register has reference of pension claim of the complainant.
12. PW2 Bal Krishna Panda was posted as the Commissioner of Coal Mines Provident Fund Organisation in the year 2005. He accorded the sanction for prosecution of the appellant-convict. On being proved by him, the sanction of prosecution accorded by him has been marked exhibit-5.
13. PW 4 Mahendra Prasad Sinha was posted as assistant in the D1 of CMPF. He stated that the inspector of CBI seized the various documents relating to the service of the appellant- convict. The defence declined to cross-examine him.
14. PW6 Gautam Sen Gupta has stated that the appellant- convict was caught while accepting bribe. The appellant-convict was the UDC. The appellant-convict used to do the pension settlement work. He was directly under the PW 6.
15. After closure of the evidence of the prosecution, the statement of the appellant-convict was recorded under section 313 of the Code of Criminal Procedure, wherein he admitted that 10 he was the UDC in D1 department of CMPF, Dhanbad. He then stated that the file of the complainant was not in his table. He denied the material questions put to him. He further stated that he will examine witnesses in support of his defence.
16. The learned trial court after considering the evidence in the record observed that in this case the prosecution has succeeded in establishing and proving the demand, acceptance and recovery of the bribe amount of ₹ 2000/-. Hence the learned trial court convicted and sentenced the appellant-convict as already indicated above.
17. At the hearing of this appeal it was submitted by Mr. Mahesh Tiwary- the learned counsel for the appellant that the trial court could not appreciate the evidence in the record in its proper perspective. It is then submitted by the learned counsel for the appellant-convict that the learned trial court failed to take into consideration the fact that the complainant and the Regional Commissioner in whose office the fingers and pant of the appellant-convict were washed, have not been examined in this case as witness. It is next submitted that PW 3 who is the only witness examined by the prosecution in this case on the point of alleged demand of the bribe money by the appellant-convict has not stated as to who gave money and to whom the money was given nor he stated from whom money was demanded and for what purpose money was to be brought, so it cannot be said that the prosecution succeeded in establishing the essential ingredient that is the demand of the bribe amount by the appellant-convict to bring home the charges for the offences punishable under 11 section 7 or 13 (1) (d) of the Prevention of Corruption Act, 1988. It is further submitted that none of the other witnesses examined by the prosecution in this case has stated about the demand of bribe by the appellant-convict hence in the absence of any evidence whatsoever regarding the essential ingredient of the demand of bribe by the appellant-convict, the Learned Court below ought to have acquitted the appellant-convict at least by giving him the benefit of doubt. Mr Tiwari next relied upon the judgment of The Hon'ble Supreme Court of India in the case of P. Satyanarayana Murthy v. District Inspector of Police, State of A.P., (2015) 10 SCC 152 paragraph 23 and 24 of which reads as under:
23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder.
24. The sheet anchor of the case of the prosecution is the evidence, in the facts and circumstances of the case, of PW 1 S. Udaya Bhaskar. The substance of his testimony, as has been alluded to hereinabove, would disclose qua the aspect of demand, that when the complainant did hand over to the appellant the renewal application, the latter enquired from the complainant as to whether he had brought the amount which he directed him to bring on the previous day, whereupon the complainant took out Rs 500 from the pocket of his shirt and handed over the same to the appellant.
Though, a very spirited endeavour has been made by the learned counsel for the State to co-relate this statement of PW 1 S. Udaya Bhaskar to the attendant facts and circumstances including the recovery of this amount from the possession of the appellant by the trap team, identification of the currency notes used in the trap 12 operation and also the chemical reaction of the sodium carbonate solution qua the appellant, we are left unpersuaded to return a finding that the prosecution in the instant case has been able to prove the factum of demand beyond reasonable doubt. Even if the evidence of PW 1 S. Udaya Bhaskar is accepted on the face value, it falls short of the quality and decisiveness of the proof of demand of illegal gratification as enjoined by law to hold that the offence under Section 7 or Sections 13(1)(d)(i) and (ii) of the Act has been proved. True it is, that on the demise of the complainant, primary evidence, if any, of the demand is not forthcoming. According to the prosecution, the demand had in fact been made on 3-10-1996 by the appellant to the complainant and on his complaint, the trap was laid on the next date i.e. 4-10-1996. However, the testimony of PW 1 S. Udaya Bhaskar does not reproduce the demand allegedly made by the appellant to the complainant which can be construed to be one as contemplated in law to enter a finding that the offence under Section 7 or Sections 13(1)(d)(i) and (ii) of the Act against the appellant has been proved beyond reasonable doubt. And submitted that just like the case of P. Satyanarayana Murthy v. District Inspector of Police, State of A.P.(supra) in this case also the testimony of the PW3 falls far short from establishing that the appellant-convict demanded bribe money from the complainant.
18. Mr Tiwari on the point of the indispensability the proof of demand and illegal gratification for establishing the charges under section 7 and 13 of the Prevention of Corruption Act, 1988 relied upon the judgment of Hon'ble Supreme Court of India in the case of Mukhtiar Singh v. State of Punjab, (2017) 8 SCC 136, at page 141 paragraph 13 of which reads as under :
13. The indispensability of the proof of demand and illegal gratification in establishing a charge under Sections 7 and 13 of the Act, has by now engaged the attention of this Court on umpteen occasions. In A. Subair v. State of Kerala, this Court propounded that the prosecution in order to prove the charge under the above provisions has to establish by proper proof, the demand and acceptance of the illegal gratification and till that is accomplished, the accused should be considered to be innocent. Carrying this 13 enunciation further, it was exposited in State of Kerala v. C.P. Raothat mere recovery by itself of the amount said to have been paid by way of illegal gratification would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
19. Mr Tiwari also relied upon the judgment of Hon'ble Supreme Court of India in the case of B. Jayaraj v. State of A.P. reported in 2014 (13) SCC 55, paragraph nos. 8 and 9 of which reads as under:-
"8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext. P-11) before LW 9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW 1 and the contents of Ext. P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.
9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can 14 only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent."
20. Mr Tiwari also relied upon the judgment of Hon'ble Supreme Court of India in the case of Krishen Chander versus State of Delhi Criminal Appeal No. 14 of 2016 arising out of SLP (Cr.) No. 703/2015 dated 6th of January 2016 wherein the Hon'ble Supreme Court of India in paragraph-34 has reiterated the well settled position of law that demand of bribe money is sine qua non to convict the accused for the offences punishable under sections 7 and 13 (1) (d) of the Prevention of Corruption Act, 1988.
21. It is lastly submitted by Mr Tiwari the counsel for the appellant-convict that the prosecution has miserably failed to establish either the charge for the offence punishable under section 7 or the charge for the offence punishable under section 13(1)(d) of the Prevention of Corruption Act, 1988 hence impugned judgment of conviction and order of sentence dated 21st December 2013 passed by the Additional Session Judge IV cum Special Judge CBI, Dhanbad in R.C. Case No. 2(A)/2005(D) be set aside and the appellant-convict be acquitted of the charges by at least giving him the benefit of doubt.
22. Mr Rohit Sinha the learned counsel for the CBI on the other hand defended the impugned judgment of conviction and order of sentence. It was submitted by Mr Rohit Sinha that the witnesses examined by the prosecution by their testimonies have proved all the essential ingredients for bringing home the charges for the offences punishable under section 7 as 15 well as 13(1)(d) of the Prevention of Corruption Act, 1988 beyond shadow of any reasonable doubt hence it is submitted that the prosecution having proved its case beyond reasonable doubt and as the learned trial court has rightly convicted and sentenced the appellants-convict by the impugned judgment, therefore this appeal being without any merit be dismissed.
23. Having heard the submissions made at the Bar and after carefully going through the records this court finds that out of the witnesses examined by the prosecution only PW 3 has stated about being an eyewitness to the giving and taking over the money from close quarters so that he could have the opportunity of hearing the conversation between the complainant and the appellant-convict as the other eyewitness as per the prosecution case were at a distance and the complainant has not been examined as a witness in this case. As already indicated the other independent witness of this case being the PW5 has categorically stated that he has not seen giving and taking of the money between the complainant and the appellant-convict. The PW 3 has not stated about the appellant-convict demanding the money from the complainant. The PW 3 has not stated as to who gave money and to whom the money was given. Further he did not state from whom money was demanded and for what purpose money was to be brought..
24. Thus after going through the evidence in the record this court is of the considered view that, the evidence in the record falls short of establishing the demand of bribe money by the appellant-convict from the complainant beyond reasonable doubt. As already discussed above it is a settled principle of law that demand of bribe money is sine qua non to convict the accused for the offences punishable under sections 7 and 13(1)(d) of the Prevention of Corruption Act, 1988. In the absence of evidence regarding the essential ingredient of bringing the charge for the offences punishable under sections 7 and 13(1)(d) of the 16 Prevention of Corruption Act , 1988, this court is of the considered view that this is a fit case where the appellant- convict be acquitted by giving him the benefit of doubt.
25. Accordingly, the impugned Judgment of conviction and order of sentence dated 21.12.2013 passed by the Additional Sessions Judge-IV-cum-Spl. Judge, C.B.I., Dhanbad in R.C. Case No.02 (A) of 05(D) being not sustainable in law is set aside and the appellant-convict Md. Mahmood Ansari is acquitted of all the charges by giving him the benefit of doubt.
26. Perusal of the record reveals that the appellant- convict - Md. Mahmood Ansari is on bail. In view of his acquittal, the appellant-convict is discharged of the liabilities of his bail bond.
27. In the result, this appeal is allowed. Let the lower court record along with a copy of the judgment be sent to the learned Court below forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 3rd of December, 2020 AFR/ Gunjan/-