Jharkhand High Court
Tara Prasad vs The State Of Jharkhand Through Cbi on 27 February, 2015
Author: R.R.Prasad
Bench: R.R.Prasad
Criminal Appeal (S.J.) No. 822 of 2013
Against the Judgment of conviction and order of sentence dated 30/09/2013, passed
by Sri A.K.Chaturvedi, A.J.C. XVIII-cum-Special Judge,CBI (other than AHD Scam),
Ranchi in R.C.Case No. 23(A) of 2004 R.
Tara Prasad, S/o Late Badri Prasad Saw,
R/O Bhurkunda Colliery PO & PS Bhurkunda,
District Hazaribagh.............................. Appellant
Versus
The State of Jharkhand through CBI.................. Respondent
.....
For the Appellant : M/s. Indrajeet Sinha, K. Sarkhel, Adv.
For the CBI : Md. Mokhtar Khan, ASGI
......
P R E S E N T
The Hon'ble Mr. Justice R.R.Prasad
J U D G M E N T
C.A.V. On 21/11/2014 Delivered on 27/02/2015
R.R.Prasad, J. This appeal is directed against the judgment of conviction and and
order of sentence dated 30/09/2013, passed by the A.J.C. XVIIIcumSpecial
Judge, CBI (other than AHD Scam), Ranchi, in R.C. Case No. 23(A) of 2004 R,
whereby and whereunder the Court having found the appellant guilty for the
offence punishable under Sections 7 and 13 (2) read with Section 13(1)(d) of
the Prevention of Corruption Act, sentenced him undergo R.I. for one year and
to pay fine of Rs. 1,000/ for the offence punishable under Section 7 of the PC
Act and further to undergo R.I for two years and to pay fine of Rs. 2,000/ for
the offence under Section 13(1)(d) read with Section 13(2) of the PC Act, and in
default of payment of fine to undergo S.I for two months and four months
respectively. Both the sentences were directed to run concurrently.
2. The case of the prosecution, as it appears from the FIR, PreTrap
Memorandum (Ext.16), Post Trap Memorandum (Ext.20), is that the
complainant Yashwant Kumar Verma (PW4), Secretary, Koyla Mazdoor Sangh,
Bhurkunda, District Hazaribagh, approached to appellant Tara Prasad, the
then Security Inspector, CCL, Bhurkunda on 27/10/2004, for getting four of
his Union men deputed at Weigh Bridge and Sales Department of Bhurkunda
Colliery through the Project Officer of the said Colliery. The appellant, for
getting the job done, asked for Rs. 5000/ as illegal gratification. When it was
told by the complainant that it would not be possible for him to pay the same,
the appellant told him to pay Rs. 2000/ at the first instance, failing which
the Union Men would never be deputed.
Thereupon, the complainant (PW4) submitted a written complaint
(Ext.4) to the S.P., CBI, ACB, Ranchi to that effect. After receiving the
complaint, the then S.P., CBI, directed one Jagan Rai, SubInspector of Police,
CBI, ACB, Ranchi to verify the veracity of the allegation made in the
complaint. The said SubInspector, on making verification, when found the
allegation to be true, submitted verification report (Ext.11) on 28/10/2004.
Thereafter, the FIR was drawn on 28/10/2004 under Sections 7 of the
Prevention of Corruption Act, against the appellant. Investigation of which was
taken over by one K.K.Singh (PW8), Inspector of Police, CBI, ACB, Ranchi.
After registration of the case, a trap team headed by Mr. K.K.Singh, Inspector
of Police, was constituted consisting of Mr. Vikash Gupta, R.S.Solanki, both
Inspectors, Mukesh Verma, SubInspector, B.K. Ojha, Shailesh Kumar and
Sujit Jha, all Constables of CBI and two independent witnesses Amar Nath
Prasad (PW5) and Lalan Prasad Yadav (PW6), both LDC of the Office of the
Regional Provident Fund Commissioner, EPFO, Ranchi. Thereafter, a PreTrap
Memorandum (Ext.16) was drawn after explaining the characteristics of
Phenolphthalein powder and its use in the trap. Four currency notes each
having denomination of Rs. 500/given by the complainant were treated with
phenolphthalein powder and were given back to the complainant( PW4), to be
given it to the appellant. PW5 Amar Nath Prasad and PW6 Lalan Pd. Yadav,
were asked to remain with the complainant. Thereafter, the trap team left the
CBI office and proceeded to the resident of the appellant at about 06.00 P.M.
On reaching over there, the complainant, alongwith the independent witness
Lalan Pd. Yadav (PW6) come to the gate of the residence of the appellant and
gave a call 'Prasad Sahab' 'Prasad Sahab'. On hearing this, the appellant came
out from a room and after seeing the complainant asked from him as to
whether he has withdrawn money from the Bank. When the complainant
replied in affirmative, the appellant extended his right hand towards the
complainant. The complainant took out the GC Notes amounting to Rs.
2000/ from the pocket of his shirt and gave it to the appellant, who counted
it and then assured the complainant that his work would be done. At that
point of time, a prefix signal was given upon which the Trap Team came
rushing over there and then the Inspector K.K.Singh (PW8), by disclosing his
identity, challenged the accused for having demanded and accepted the illegal
gratification. Thereupon, the money was recovered, which, on comparing by
the witness Amar Nath Prasad (PW5) with the numbers of note mentioned in
the PreTrap Memorandum, found it tallied. Thereafter, hand wash of both the
hands of the appellant was done, which on treatment got pink. Upon all the
formalities being completed, Post Trap Memorandum (Ext.20) was prepared.
Thereupon, the appellant was arrested and then the trap team left place.
3. On completion of the investigation and on procuring order
sanctioning prosecution (Ext.1), accorded by Rajendra Prasad Ritolia,
ChairmancumManaging Director, CCL, Ranchi, charge sheet was submitted,
upon which cognizance of the offence was taken against the appellant.
4. When the appellant was put on trial, the prosecution examined as
many as 9 witnesses; of them PW4 the complainant, when was examined by
the prosecution, did support the case of the prosecution but on the point of
giving bribe money, he deviated himself from his earlier statement as he did
depose that when he came to the residence of the appellant and met with him,
he, on asking as to whether the money has been brought, kept it over a rack
at the instance of the appellant, whereas earlier he had stated in his
statement, made under Section I61 Cr.P.C., that the money had been given to
the appellant in his hand and then he had counted it. However, PW6 Lalan
Pd. Yadav, an independent witness, who had accompanied the complainant,
has deposed that when the complainant gave the money on being demand by
the appellant, he took it by extending his hand. PW5 Amar Nath Prasad, the
another independent witness, who was a member of the trap team, though
had not entered inside the room but heard the appellant demanding money
and was witness to recovery of the money. PW3 Vimal Chandra Purkait, a
Junior Scientist Officer, CFL, Kolkata, upon examining the solution did find
that the aqueous solution was that of Phenolphthalein Powder and Sodium
Carbonate. He has proved the FSL report as Ext.2. PW8, the Inspector is
also a witness to recovery of the tainted money. PW9 is the Dy. S.P., who had
taken over the investigation w.e.f. 02/11/2004.
The defence also examined four witnesses; of them DWs1, 2 & DW3
have deposed that they had never approached the complainant for their
deputation either to Weigh Bridge or to Sales Department. DW4 has testified
that the complainant had been removed from the post of Secretary and, as
such, there was no occasion for the complainant to approach the appellant for
deputation of some of the members of the Union.
5. After the case of the prosecution was closed, the incriminating
materials appearing against the appellant was explained to the appellant
under Section 313 Cr.P.C, which he denied.
6. The Trial Court, having found the prosecution being able to establish
that the appellant having demanded the money, accepted the illegal
gratification, convicted and sentenced him as aforesaid vide impugned
judgment, which is under challenge.
7. Mr. Indrajeet Sinha, learned counsel appearing for the appellant
submits that though the prosecution has come with the case that the
complainant had approached the appellant for getting some of the Union men
deputed at Weigh Bridge and Sales Department of Bhurkunda Colliery, but
the complainant, as per the evidence of DW4, had been removed from the
post of Secretaryship and, as such, there was no occasion for the complainant
to approach the appellant for deputation of the Union men and if that is so,
the case of the prosecution is not worth acceptable. Learned counsel in
support of his submission has referred to a decision rendered in a case of
"State of Punjab versus Sohan Singh [(2009) 6 SCC 444]".
In this regard, it was further submitted that when the prosecution
failed establish the factum of demand and recovery of the tainted money,
presumption, in terms of Section 20 of the PC Act, cannot be drawn against
the appellant of receiving illegal gratification, which proposition has been laid
down in case of "Om Prakash versus State of Haryana [(2006) 2 SCC
250]".
8. Further it was submitted that the prosecution, in the facts and
circumstances, cannot be said to have proved the factum of demand and
recovery of the tainted money as the complainant (PW4) in his evidence has
testified that when he came to the residence of the appellant, he at the
instance of the appellant, kept the tainted money over a rack, whereas PW6, a
shadow witness, who had accompanied the complainant, has testified that the
appellant, when demanded money, accepted the same by stretching his hands
and thereby, inconsistency is there on this point and, therefore, the Court
below should have disbelieved the case of the prosecution that the appellant
had received the illegal gratification and under the circumstances, the Court
below can certainly be said to have committed illegality in recording the order
of conviction and sentence as aforesaid against the appellant and, hence, it is
fit to be set aside.
9. As against this, Mr. Khan, learned counsel appearing for the CBI
would submit that though there has been discrepancy in the evidence of PW4
and PW6 on the point of recovery of tainted money but that would hardly
affects the case of the prosecution adversely as the witnesses PW4, PW5 and
PW6 are consistent on the point of demand of illegal gratification by the
appellant. So far as the point relating to recovery of tainted money is
concerned, the evidence of PW4 is not consistent with the evidenced of other
witnesses. PW4, when, during evidence did depose something different on the
point of recovery from his earlier statement, he was declared hostile. In spite
of that other part of his evidence which is consistent with the other evidence
can very well be relied upon and in fact it has been relied with by the trial
Court. The other witnesses such as PW5, PW6 and PW8 are consistent on
the point of recovery of the tainted money. Under the circumstances, the trial
Court has rightly convicted and sentenced the appellant and, hence, the order
of conviction and sentence, never warrants to be set aside.
10. It is the case of the prosecution right from the beginning that the
appellant, who, at the relevant point of time was posted as Security Inspector,
CCL, Bhurkunda Colliery, had demanded money from the complainant,
Secretary, Koyla Mazdoor Sangh, Bhurkunda, for getting some of the Union
men deputed at Weigh Bridge and Sales Department of Bhurkunda Colliery
through the Project Officer, when the complainant (PW4) had approached the
appellant for their deputation, which was given and was accepted by the
appellant. During trial PW4 testified that after the money was demanded, he
made complaint upon which a case was registered and a pretrap exercise was
under taken during which the currency notes treated with Phenolphthalein
were given to him and then he came to the residence of the appellant where he
entered into the room alongwith PW6 and when the demand was made, he
took out the money and put it on the rack at the instance of the appellant,
whereas the complainant in his earlier statement had stated that the money
had been received by the appellant by stretching his hands and, therefore, he
was declared hostile on that particular point of receiving money. In spite of
PW4 being declared hostile by the prosecution, his testimoney other than on
the point of recovery of tainted money, i.e. on the point of demand remain
intact which can very well be relied upon as the factum of demand gets
corroboration from the evidence of other witnesses PW5 and PW6, in view of
the decision rendered in a case of "Himanshu @ Chintu - versus State (NCT
of Delhi) [(2011) 2 SCC 36]", wherein it has been held that evidence of hostile
witness remains admissible evidence and it is open to Court to rely upon
dependable part of that evidence which is found to be acceptable and duly
corroborated by some other reliable evidence available on records.
So far matter relating to recovery is concerned, PW6, who
accompanied the complainant to the residence of appellant, has testified that
the complainant, on demand of money being made by the appellant, gave it
which was received by the appellant by stretching his hand, which evidence
cannot be disbelieved for the reason that when hand wash of both the hands
of the appellant was treated with Sodium Carbonate it turned pink. Even the
Junior Scientist Officer, CFL, Kolkata, did find aqueous solution, which was
sent under sealed cove,r as that of Phenolphthalein and Sodium Carbonate.
That part of testimony of the complainant whereby he says that he kept the
money over a rack, is not acceptable as had that been so the hands of the
appellant would not have turned pink when the hand wash of the hands of
the appellant was treated with Sodium Carbonate. Even PW5, the another
shadow witness and also PW8 have testified that on getting prefixed signal
from the complainant (PW4) they found the appellant having money in his
hand, which was recovered and when its number was compared by PW5 from
the number noted in the pre memorandum it got tallied.
11. Thus, the prosecution has been able to establish with clinching
evidences that upon demand being made by the appellant, a sum of Rs.
2000/ was given to the appellant as illegal gratification, who accepted it and
then tainted money was recovered from his possession.
12. So far the other point relating to the competency of the complainant
to approach the appellant for deputation of some of the Union men at Weigh
Bridge and Sales Department is concerned, submission advanced is that since
the complainant had been removed from the primary membership of the
Union, he had no occasion to approach the appellant for deputation of the
Union members. This submission is based on the testimony of DW4., who is
claimed to be the Zonal Secretary of Koyla Mazdoor Sangh, Bhurkunda
Colliery and has testified that the complainant had been expelled from the
primary membership of Colliery Mazdoor Sangh, Bhurkunda Colliery since
04/08/2003, as he was misusing the letter pad of the Union, information of which was given to the Project Officer vide letter dated 04/08/2003, photocopy of which was annexed with another letter dated 29/11/2004 (Ext. A) giving the same information. However, DW4 has admitted that original copy of the letter dated 04/08/2003 had been destroyed by the rat and, therefore, photocopy of it was annexed with the letter (ExtA). However, from perusal of the photocopy of the letter dated 04/08/2003, I do find that margin of it is torn, but it is not torn in the manner that anything written in the margin would disappear. Therefore, it has been admitted that over that letter there has been no endorsement of receiving the same in the Project Office. In view of the clear admission that there was no endorsement of receiving of the letter dated 04/08/2003 at the Project Office the person posted at Project Office would not be aware that the complainant had no concern with the Union. Therefore, question raised over the competency of the complaint to pursue the matter for deputation before the appellant has got no substance.
13. Thus, I do find that the prosecution has been able to prove the factum that the appellant having demanded illegal gratification had received it which was recovered. In that event, burden in terms of provision as contained in Section 20 of the Prevention of Corruption Act, was upon the accused to disprove the fact that the amount recovered was never the amount which had been received as illegal gratification. In this respect, I may refer to a decision rendered in a case of "M. Narsinga Rao versus State of A.P. [2001 SCC (Cr.) 258]", wherein it has been held as hereunder:-
"When Section 20(1) deals with legal presumption it is to be understood as in terrorem i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forebearing to do any official act etc., if the condition envisages in the former part of the section is satisfied. The only condition for drawing such a legal presumption under section is that during trial it should be proved that the accused had accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. Direct evidence is one of the modes through which a fact can be proved. But is not the only mode en visaged in the evidence Act. It can even be proved by factual presumption and not necessarily be direct evidence, but if the accused fails to disprove the presumption the same would stick and it can be held by the court that the prosecution has proved that accused received the said amount"
14. In the instant case the appellant has failed to discharge the burden rather it be said that even attempt has not been made to discharge the burden and, hence, it can be said that the amount which was recovered was the amount received as illegal gratification.
15. Under the circumstances, I do not find any illegality with the impugned judgment of conviction and order of sentence, passed against this appellant , rather the trial court seems to be absolutely justified in recording the order of conviction and sentence, which is hereby, affirmed.
Thus, this appeal stands dismissed.
(R.R.Prasad, J) Jharkhand High Court, Ranchi Dated the 27th February, 2015 NAFR/Mukund/cp 3