Jharkhand High Court
Upendra Raut vs The State Of Jharkhand Through ... on 17 August, 2023
Author: Subhash Chand
Bench: Subhash Chand
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 43 of 2011
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(Against the Judgment of conviction and order of sentence dated 11.01.2011 passed by the A.D.J.-I cum Special Judge, C.B.I., Dhanbad in Spl. Case No. 04 of 2007.)
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Upendra Raut, son of Sri Saryu Prasad Raut, resident of village and P.O. Rohini, P.S. Jasidih, Dist. Deoghar.
... ... ... ...Appellant
Versus-
The State of Jharkhand through Vigilance. ...Respondent
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PRESENT
THE HON'BLE MR. JUSTICE SUBHASH CHAND
For the Appellant : Mr. R.S.Mazumdar, Sr. Advocate
For the C.B.I. : Mr. Anil Kumar, A.S.G.I.
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C.A.V. on 31.07.2023 : Pronounced on 17.08.2023
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This Criminal Appeal has been preferred on behalf of appellant Upendra Raut against the Judgment of conviction and sentence dated 11.01.2011 passed by Additional District & Sessions Judge-I cum Special Judge, C.B.I., Dhanbad in Special Case No. 04 of 2007, arising out of Karau P.S. Case No. 43 of 2006 (G.R.No. 311 of 2006) whereby the learned Special Judge, C.B.I., Dhanbad had convicted the appellant for the offence under Section 7 and 13 (2) of Prevention of Corruption Act and had directed to undergo R.I. for 02 years for the charge under Section 7 and 13(2) of Prevention of Corruption Act each. Both the sentences were directed to run concurrently. Further directed to pay the fine of Rs.2,000/- for the offence under Section 13(2) of the Prevention of Corruption Act. In default of payment of fine, the appellant has to undergo additional R.I. for six months. 2
2. The brief facts leading to this Cr. Appeal are that a letter of S.D.O., Madhupur addressed to the Circle Officer dated 10.06.2006 was to this effect that Upendra Raut accused/appellant herein was deputed on table No.1 to receive the application from the Old Age Pension Holders in the Camp which was arranged for selecting the genuine Old Age Pension Holders. In course of the camp proceeding, learned S.D.O. found that Upendra Raut- appellant/convict was counting three currency notes of 500/- each which he had received from one Md. Ibrahim Ansari and Md. Altaf as well. The number of currency notes were also mentioned in the letter. It was also alleged that Upendra Raut had received the currency notes as a bribe for those application for pension. The concerned C.O., Madhupur sent this letter to Karau P.S. under Sub Division Madhupur for lodging the F.I.R. Thereafter the Karau P.S. Case No. 43 of 2006 dated 10.06.2006 was registered under Section 420 I.P.C. and under Sections 5(1) (d) (2) of the P.C. Act against the accused Upendra Raut.
3. After investigation the I.O. filed the charge-sheet under the same Sections before the S.D.J.M., Madhupur at Deoghar. Thereafter the S.D.J.M., Madhpur sent this case to the Special Judge, C.B.I., Dhanbad for taking cognizance and to conduct trial.
4. The Special Judge, C.B.I. after having received the record of this case took cognizance on the charge-sheet against the accused and framed charge under Section 7 and under Section 13(2) of Prevention of Corruption Act. The charge was explained 3 and read over to the accused who denied the charge and also claimed to face the trial.
5. On behalf of C.B.I. to prove the charge against the accused in documentary evidence filed written report (Ext.1), signature of P.W.1 on seizure list (Ext.2), signature of P.W.2 in seizure list (Ext. 2/1), signature of P.W.3 in seizure list (Ext.2/2), signature of P.W.6 on office order (Ext. 2/3) and office order (Ext.3).
6. On behalf of prosecution in oral evidence examined P.W.1 Sunil Kumar Sinha, P.W.2 Sunil Kumar Tiwari, P.W.3 Sadanand Deo, P.W.4 Triveni Kumar, P.W.5 Doman Rajak, P.W.6 Vinod Chandra Jha.
7. The statement of the accused was recorded under Section 313 of Cr.P.C. in which he denied the incriminating circumstances against him and stated that he has been falsely implicated in this case.
8. The learned trial court after hearing the rival submissions of the learned Counsel for the accused and also the learned Counsel on behalf of C.B.I. passed the Judgment of conviction and sentence as stated hereinabove.
9. Aggrieved from the impugned Judgment of conviction and sentence this Cr. Appeal has been preferred on behalf of the appellant on the ground that the impugned Judgment of conviction and sentence passed by the court-below is based on the wrong appreciation of the evidence. The learned court-below has not appreciated the evidence in a proper perspective. It is also further submitted that three currency notes of 500/- are alleged to be 4 received from Md. Ibrahim Ansari and Md. Altaf but none of them were examined on behalf of prosecution. It is also further submitted that there is no evidence in regard to demand of the bribery and the learned trial court has convicted the appellant on the mere seizure of memo of which the witnesses are only the interested person. Accordingly prayed to allow this Cr. Appeal and to set aside the impugned Judgment of conviction and sentence passed by the Special Judge concerned.
10. I have heard the learned Counsel for the appellant and learned ASGI on behalf of C.B.I. and perused the record.
11. To decide the legality and propriety of the impugned Judgment of conviction and sentence, it would be relevant to evaluate the evidence oral and documentary adduced on behalf of the C.B.I. to prove the charge against the accused which is reproduced here-in-below:
12. P.W.1 Sunil Kumar Sinha in his Examination-in-chief says that in 2006 he was posted in Sarath Circle and was also the In-charge of Karau Circle. Both come within the District of Deoghar. The occurrence is of 10.06.2006. The camp was going on under the Old Age Pension Scheme. The Sub-divisional Magistrate was also present there. The Sub-divisional Officer had caught Upendra Raut the employee at a table counting the note red handed. The currency notes were seized and accused was arrested. F.I.R. was directed to be lodged. As per direction of Sub-divisional Officer, the F.I.R. was lodged and this written information in his handwriting and his 5 signature marked as Ext.1. The seizure memo also bears his signature marked Ext.2.
In cross-examination this witness says whatever the proceedings were done by him as per order of Sub-divisional Officer. No occurrence was occurred in his presence. In the letter of Sub-divisional Officer, it was mentioned that on the basis of the suspicion the seizure was prepared and arrest was made. The Police Officer has not recorded his statement. 12.1 P.W.2 Sunil Kumar Tiwari in his Examination-in-chief stated that in 2006 he was posted in Sarath but he was also C.I. of Karau Circle. He had heard that the revenue employee Upendra Raut had been caught red handed receiving three currency notes of 500/- rupees each by Sub-divisional Officer in the camp. On the seizure memo he put his signature marked Ext.2. 12.2 P.W.3 Sadanand Deo in his Examination-in-chief says that in 2006 the Old Age Pension Scheme camp was in Karau division. He was also there. He neither had seen the occurrence nor heard in regard to the same. He put his signature on the seizure memo marked Ext. 2/2.
In cross-examination this witness says that he put signature on the direction of the Circle Officer. Nothing was read over to him in regard to the contents of the seizure memo. 12.3 P.W.4 Triveni Kumar in his Examination-in-chief says that in 2006 he was Block Development Officer in Karau, District- Deoghar. On 10.06.2006 at 12:30 of day time the Old Age Pension Scheme was going on. There were four tables. At table No.1 6 Upendra Raut, the Halka Karamchari was deployed and the Sub- divisional Officer Shri Vinod Chanda Jha saw that he was counting the three currency notes of 5,00/- each under the table. The Sub- divisional Officer had shown this occurrence to him and the application and the amount was also taken in custody by the Sub- divisional Officer and the Circle Officer was asked to lodge the F.I.R.
In cross-examination this witness says that he had not seen the accused receiving the currency note and counting the same rather S.D.O. Saheb had also told him in regard to the occurrence.
12.4 P.W.5 Doman Rajak, Dy.S.P., Madhpur in his Examination-in-chief says that on 22.02.2006 he had taken over the investigation of this case. At that time, he was posted as S.D.P.O. Madhupur. He had taken over the investigation of this case from former Investigating Officer Sri Parmanand Toppo. He had completed the investigation. He on the basis of the previous investigation done by the former I.O. filed the charge-sheet and the prosecution section had also been obtained earlier.
In cross-examination this witness says that the sanction order was received by the former I.O. He only filed charge-sheet after perusal of the evidence collected by the I.O. which was recorded in the case diary.
12.5 P.W.6 Vinod Chandra Jha is the Sub-divisional Officer in his Examination-in-chief has stated that the occurrence was of 10.06.2006. For selection of the beneficiary of old age the camp was going on in Karau block. At each table there were 2 to 3 7 staff on duty. At table No.1 Upendra Raut was deputed. He was counting the currency note under the table. He was asked what he was doing and found that there were three currency notes of 5,00/- each which was given to him by Md. Ibrahim Ansari and Md. Altaf. Thereafter the application and three currency notes were taken in custody and the F.I.R. was directed to be lodged by him. The office order was directed to C.O. by him which is marked Ext.3 and signature of the same are Ext.2/3.
In cross-examination this witness says that he did not make any query from the applicant of the application. The numbers of notes he does not recollect. No any aggrieved person in the camp came to him to make complaint against Upendra Raut. He is not witness of the seizure memo. He had not prepared the seizure memo.
13. In order to decide the legality and propriety of the impugned Judgment of conviction and sentence, it would be relevant to reproduce here certain statutory provisions under Section 7 and 13(2) of Prevention of Corruption Act, 1988 Section-7. Offence relating to public servant being bribed.- Any public servant who,-
(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or
(b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant, or
(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in 8 anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
Section-13(2)- Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than 1[four years] but which may extend to 1[ten years] and shall also be liable to fine.
14. Herein on behalf of the prosecution to prove the charge under Section 7 and 13(2) of the Prevention of Corruption Act, 1988 have been examined altogether six witnesses.
15. The allegations made against the appellant in the F.I.R. are that on the date of occurrence the Sub-divisional Officer had seen the accused counting three currency notes of 5,00/- each which was alleged to have been received by him from Md. Ibrahim Ansari and Md. Altaf. At that time the accused Upendra Raut had been deputed on table no.1 to receive the applications form for the Old Age Pension Holders in a camp being held under Old Age Pension Scheme for selecting the genuine Old Age Pension Holders and the S.D.O., Madhupur had written the letter to the Circle Officer to lodge the F.I.R. of this occurrence with the Police Station concerned against Upendra Raut. The occurrence was of 10.06.2006. It is also alleged that the three currency notes of 5,00/- each were also seized at the spot and seizure memo of the same was also prepared.
16. The informant in this case is Sunil Kumar Sinha who was examined as P.W.1 who had lodged the F.I.R. by the order of the Sub-divisional Officer, Madhupur camp Karau. This witness 9 has proved the written information Ext.1 on the basis of which the F.I.R. was lodged. He has stated that he lodged it by the order of Sub-divisional Officer, Madhupur and he stated that the occurrence did not take place in his presence.
17. P.W.4 Triveni Kumar is the B.D.O. in his Examination- in-chief has stated that he did not see the accused accepting the rupees as well as the application and he did not see him even counting the note whatever the S.D.O. has told him in regard to the occurrence he narrated the same before the court.
18. P.W.6 Vinod Chandra Jha is the District Panchayat Raj Officer, Hazaribagh. He has stated that in the year 2006 he was posted as Sub-divisional Officer, Madhupur. The occurrence was of 07.06.2006. For Old Age beneficiary selection, the camp was held in Karau Block. The staff was deployed for the same. The accused Upendra Raut was deputed at table no.1. He saw that he was counting rupees which he had taken from some Old Age beneficiary. He was caught hold by him and three notes of 5,00/- each were recovered from him. It came to know that Md. Ibrahim Ansari and Md. Altaf had given it to accused Upendra Raut. He also prepared the seizure memo of the three currency notes which was marked as Ext.3 and got the signature of the witnesses.
In cross-examination this witness says that he did not make any query from both the applicants Md. Ibrahim Ansari and Md. Altaf.
19. P.W.2 Sunil Kumar Tiwari and P.W.3 Sadanand Deo both are the witnesses of the seizure memo of the currency notes. 10 Both these witnesses in their cross-examination have stated that no rupee was recovered in their presence. The C.O. Saheb had directed them to put the signature on seizure memo and they put their signature.
20. P.W.5 is the I.O. Doman Rajak he has stated that the earlier investigation was conducted by Sri Parmanand Toppo and he filed simply charge-sheet and the whole investigation was conducted by him. The prosecution sanction was also obtained by the previous Investigating Officer.
21. From the testimony of all these prosecution witnesses, it is found that the only eye-witness in regard to counting the three currency notes by the appellant/convict Upendra Raut is P.W. 6 Vinod Chandra Jha Sub-divisional Officer, Madhupur. All other witnesses who were examined on behalf of the prosecution have stated that they did not see the occurrence and did not see even the appellant-accused counting the note under the table. P.W. 6 has stated that he came to know that these three currency notes were given to the appellant/convict by Md. Ibrahim Ansari and Md. Altaf who had given their application to be selected as a beneficiary under Old Age Pension Scheme. But admittedly this witness in his cross-examination stated that he did not make any query in regard to giving the alleged bribery to convict Upendra Raut to get the favour for being selected as beneficiary under the Old Age Pension Scheme. From the testimony of this witness only counting the three currency notes by the appellant/convict is proved but it is not proved that these 11 three currency notes of 5,00/- each total amounting 1,500/- was given to the appellant/convict by Md. Ibrahim Ansari and Md. Altaf. Neither Md. Altaf nor Md. Ibrahim were examined on behalf of the prosecution to prove either the demand of the bribe by the convict/appellant or accepting the same from Md. Ibrahim Ansari and Md. Altaf.
22. So far as the seizure memo is concerned Ext.2 only the signature on the seizure memo has been admitted by both the witnesses of seizure memo P.W.2 Sunil Kumar Tiwari and P.W.3 Sadanand Deo; but both these witnesses have not proved the recovery of the three currency notes of 5,00/- each from the appellant/convict Upendra Raut. They have stated that no rupee was recovered in their presence rather they put signature on the seizure memo at the behest of the Circle Officer. Therefore the recovery memo of the alleged three currency notes of 5,00/- each is also not found proved.
23. So far as the F.I.R. Ext. 1 is concerned, its execution is proved from the testimony of P.W. 1 Sunil Kumar Sinha; but this witness has stated that no occurrence took place in his presence. He gave the written information by the order of the Sub- divisional Officer, Madhupur. Therefore from the testimony of this informant the very contents of the F.I.R. in regard to commission of the offence of taking bribe is not proved.
24. So far as the prosecution sanction is concerned, the first Investigating Officer Shri Paramanand Toppo who obtained prosecution sanction has not been examined on behalf of the 12 prosecution. The whole investigation was conducted by Sri Parmanand Toppo but he was not examined on behalf of prosecution. Only the charge-sheet was filed by Doman Rajaj who was examined as P.W.5 Dy. S.P. Madhupur. This witness has stated that after having perused all the papers of case diary and documents in which the evidence was collected by the previous Investigating Officer Sri Parmanand Toppo he filed charge-sheet. Even this prosecution sanction was also obtained by the former Investigating Officer not by him. Therefore from the testimony of this witness P.W.5 Doman Rajak the prosecution sanction is also not found proved.
25. The appellant/convict Upendra Raut was also examined under Section 313 of Cr.P.C. This witness had denied all the incriminating circumstances which were explained to him while recording the statement under Section 313 of Cr.P.C. and he has stated that he has been falsely implicated in this case.
26. Herein it would be pertinent to give the reference of certain legal propositions of law as laid down by the Hon'ble Apex Court The Hon'ble Apex Court held in K. Shanthamma vs. State of Telangana (2022) 4 SCC 574:
10. We have given careful consideration to the submissions. We have perused the depositions of the prosecution witnesses. The offence under Section 7 of the PC Act relating to public servants taking bribe requires a demand of illegal gratification and the acceptance thereof. The proof of demand of bribe by a public servant and its acceptance by him is sine qua non for establishing the offence under Section 7 of the PC Act.13
The Hon'ble Apex Court held in Neeraj Dutta vs. State (GNCTD of Delhi), 2022 Live Law S.C. 1029:
"No offence is made out by showing mere acceptance of the bribe without proving the offer or demand...."
27. In view of the law as laid down by the Hon'ble Apex Court, the prosecution has neither proved the demand for bribery made by the appellant/convict Upendra Raut nor has proved the acceptance of this bribery by the appellant/convict which is alleged to be given by so-called Md. Ibrahim Ansari and Md. Altaf. As such both the ingredients for the offence under Section 7 of Prevention of Corruption Act, 1988 is not made out from the evidence adduced on behalf of the prosecution.
28. So far as the offence under Section 13 of Prevention of Corruption Act is concerned, no one witness adduced on behalf of prosecution has stated that the appellant/convict had dishonestly or fraudulently misappropriated or converted the three currency notes for his own use. There is no evidence in regard to entrusting by anyone these three currency notes to the appellant/convict Upendra Raut. There is no evidence to the effect that he intentionally enriched himself illicitly by any amount of money during period of his service. As such none of the ingredient of the offence under Section 13(1) is made out from the evidence adduced on behalf of the prosecution. Consequently the charge framed under Section 13(2) of the Prevention of Corruption Act, 1988 is also not made out against the appellant/convict. 14
29. Therefore in view of the analysis of the evidence given here-in-above I am of the considered view that the prosecution has miserably failed to prove the charge framed against the accused. As such the impugned order of conviction and sentence passed by the court-below being based on the perverse finding needs interference. Accordingly, this Cr. Appeal deserves to be allowed.
30. This Cr. Appeal is hereby allowed. The impugned Judgment of conviction and sentence passed by the court-below is hereby set aside and the appellant is acquitted from the charge under Section 7 and 13(2) of Prevention of Corruption Act.
31. The appellant is on bail. His bail bonds are hereby cancelled and the sureties are discharged from their liabilities.
32. Let the record of learned lower court be remitted back along with the copy of the Judgment.
(Subhash Chand, J.) Jharkhand High Court, Ranchi Dated the 17.08.2023 P.K.S./A.F.R.