Jharkhand High Court
Brij Bhushan Prasad vs State Of Bihar on 22 August, 2003
Equivalent citations: 2004CRILJ1513, 2004 CRI. L. J. 1513, 2004 AIR - JHAR. H. C. R. 815, (2004) 2 RECCRIR 811, (2003) 4 JLJR 297, (2004) 1 EASTCRIC 161
Author: Amareshwar Sahay
Bench: Amareshwar Sahay
JUDGMENT Amareshwar Sahay, J.
1. The present appeal has been filed by the appellant against the judgment of conviction and sentence dated 6-10-1997 passed by the Special Judge (C.B.I.), Dhanbad in R. C. Case No. 5/86; whereby the appellant has been convicted under Section 161 of the Indian Penal Code and under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act., 1947 and has been sentenced to undergo Rigorous Imprisonment for one year under each count and has further been sentenced to pay a fine of Rs. 500/- and in default of such payment of fine to undergo Rigorous Imprisonment for two months. However, sentences were ordered to run concurrently.
2. The prosecution case in brief is that Shankar Bhuian, a Miner Loader, Ena Colliery, B.C.C.L. Area VIII, Dhanbad lodged a complaint before the C.B.I. Dhanbad alleging therein that on 25-1-1986 he was to join his duty but as his wife was ill, he went to join on 28-1-1986 but he was not allowed to join and was asked by the Personnel Officer to produce a certificate about sickness of his wife. Thereafter, the complainant met the appellant, who was Senior Dresser, and requested him for the said sickness certificate but the appellant demanded Rs. 50/- for issuing of such certificate. The complainant was not willing to pay bribe of Rs. 50/- to the appellant, therefore, he made complaint to the Superintendent of Police, C.B.I. in writing requesting to take necessary action against the appellant.
The allegations in the written complaint submitted by the complainant was verified and after its confirmation, the F.I.R. was registered. Thereafter in order to catch hold of the appellant the C.B.I. arranged a trap. After observing the pre-trap observation, Rs. 50/- brought by the complainant was tainted with Phenolphthalein Powder in presence of witnesses and a preliminary memo was prepared, which was signed by the independent witnesses, complainant and all other members. When the raiding party reached Bhuli Township Dispensary, the complainant, entered into the dressing room of the dispensary where the appellant was sitting. The appellant, thereafter, enquired from the complainant as to whether he has brought the money as demanded earlier for issuing the sickness certificate and when the complainant told him that yes, he has brought the money, then the appellant asked for the same. Thereafter complainant, Shankar Bhuian took out the tainted money of Rs. 50/- and handed over to the appellant who accepted the same and started counting the currency notes. In course of counting, he suspected and wanted to confirm as to whether G. C. notes were treated with any sort of powder or not, he poured some water over the tainted G. C. note but when he did not (get) any result, kept the G. C. notes in the right pocket of his trouser. At that moment the shadow witness Had Pada Banerjee signalled, at which Lakhi Prasad, Inspector, followed by other members of the raiding parry entered into the dressing room and after disclosing his identity, he challenged the appellant saying that he had demanded and accepted the bribe of Rs. 50/- from the complainant for giving sickness certificate. The appellant began to sweat profusely and became extremely nervous and then he admitted the fact that he had demanded and accepted the amount of Rs. 50/- from the complainant as bribe. Thereafter, the G. C. notes of Rs. 50/- were recovered from the pocket of his trouser. The number of which tallied with the number and denomination mentioned in the preliminary memo. Those tainted G. C. notes were kept in a sealed envelope on which all the members of the raiding party, complainant and independent witnesses put their signatures. Thereafter, both the hands of the appellant and also his trouser from which G. C. notes were recovered, were got washed in three separate solutions of sodium carbonate and on receiving the positive result, the solutions of sodium carbonate were sealed in three separate bottles on which also the witnesses put their signatures. Trousers were also sealed in big envelope on which also witnesses put their signatures. The investigation was taken, statements of the witnesses were recorded, seizure memoes were prepared and material exhibits were sent to Forensic Science Laboratory, Calcutta and thereafter on receiving the opinion of the expert and on receiving the sanction order for prosecution, the charge-sheet was submitted against the appellant.
3. In order to establish the charges against the appellant, all together 16 witness were examined on behalf of the prosecution and several documents were adduced in evidence which were marked as Ext.
4. On the basis of the oral and documentary evidences the learned Special Judge (C.B.I.) convicted and sentenced the appellant as aforesaid.
5. Mr. B. M. Tripathy learned counsel for the appellant has submitted that so far as the factum of the payment of the money made by the complainant and acceptance of money by the appellant is not being challenged by him. The learned counsel has stressed much on the point that money so paid by the complainant was not by way of bribe but it was a repayment of loan which was advanced by the appellant to the complainant and therefore, it is absolutely wrong to say that the appellant accepted Rs. 50/- from the complainant as bribe. He has submitted that the prosecution has totally failed to prove that in fact the money so recovered, which was received by the appellant, was actually bribe money. In this regard he strongly relied on the evidence of P.W. 6, complainant and submitted that the complainant himself has stated in Court that he did not pay the amount of Rs. 50/- to the appellant as bribe and the appellant never demanded any bribe from him. The complainant in specific term has stated that he paid the said amount towards the repayment of the loan which was advanced by the appellant to him. The learned counsel for the appellant referred the evidence of P.W. 2, Sitaram Nonia particularly his statement in paragraph 12 of his deposition, in which it was stated by the said witness, that he could not say as to on which account the money was paid. He has further referred the evidence of P.W. 3 Hari Pada Banerjee and submitted that this witness has also not whispered a word as to for what purpose the money was paid by the complainant to the appellant.
6. According to the learned counsel for the appellant, from the evidence of the P.Ws. 2 and 3 who are independent witnesses read with the evidence of the P.W. 6, complainant who was declared hostile, it is clear that the prosecution has not been able to prove that the money so paid by the complainant to the appellant was a bribe money. In support of his submissions the learned counsel for the appellant has relied on a decision in the case of State of M. P. v. J. B. Singh, reported in 2000 SCC (Cri) 1507 : (2000 Cri LJ 4591).
7. It was next contended by the learned counsel for the appellant that so-called written report submitted by the complainant was not produced in Court rather a photo copy of the said report was adduced in evidence which was wrongly marked as Ext. in spite of the objection raised by the defence. He submitted that the said document was not admissible in evidence as the prosecution did not fulfil the conditions as laid down under Section 65 of the Evidence Act for adducing secondary evidence.
8. On the other hand, Mr. Rajesh Kumar learned counsel for the C.B.I. has submitted that since it has been established by the prosecution that money so paid by the complainant to the appellant was recovered in presence of so many witnesses, therefore, legal presumption can be drawn that the money so paid was a bribe money and then the onus shifted on the appellant to prove that the amount so recovered from his possession was not a bribe money. In this regard he has relied on decision in the case of Madhukar Bhaskarrao Joshi v. State of Maharashtra, reported in 2001 Cri LJ 175 : (AIR 2001 SC 147) and also the decision in the case of State of Andhra Pradesh v. Kommraju Gopala Krishna Murthy, (2000) 9 SCC 752 and also unreported judgment by this Court in Dr. Prabhat Kumar Gupta v. State of Jharkhand in Cr. Appeal No. 3 of 2002 decided on 7-5-2003, (reported in 2003 (3) East Cri C 165).
9. In order to appreciate the arguments of the learned counsel for the parties I have carefully gone through the entire evidence, particularly of P.Ws. 2, 3 and 6.
10. P.W. 2 Sitaram Nonia has stated in his examination in chief that he saw the complainant in the office and in his presence the appellant demanded Rs. 50/- from the complainant (P.W. 6) and then the complainant handed over five currency notes of Rs. 10 denomination and thereafter the appellant kept those G.C. note in the pocket of his trousers and at that time C.B.I. people appeared at the place of occurrence and arrested the appellant. This witness is a chance witness who was present at the place of occurrence, as he had gone there with regard to the treatment of his son. In 12 of his cross-examination he has stated that he could not hear the full conversation between the appellant and the complainant. He further stated that he could not say as to under what account or for which purpose the money was paid to the appellant. He came to know subsequently that the money so paid was by way of bribe for obtaining sickness certificate.
11. P.W. 3 Hari Pada Banerjee is a retired Coal Mines Provident Fund Inspector C.M.P.F. Dhanbad. In his examination in chief, this witness has stated that he heard conversation between the complainant and the appellant with regard to demand of payment of money and thereafter the appellant was paid Rs. 50/- by the complainant which was kept by the appellant in his right pocket of trousers. On being cross-examined by the defence, this witness has stated in para 10 of his evidence that since he was standing just at the door of the dispensary, therefore he could hear the conversation between the complainant and the appellant but this witness has not disclosed as to what was the conversation between the complainant and the appellant. This witness has not stated in specific words that the appellant demanded any money as a bribe from the complainant.
12. The evidence of P.W. 3 supports the case of the prosecution only to the effect that money was paid by the complainant to the appellant. Therefore, in my view, there is force in the submission of the learned counsel for the appellant that P.Ws. 2 and 3 have not stated that they heard that the appellant was demanding money from the complainant by way of bribe and the complainant paid the said amount to the appellant as bribe.
13. There is no other evidence on the record to establish the fact that the appellant demanded any money by way of bribe from the complainant and the money so recovered from the appellant was paid by the complainant by way of bribe. Therefore, from close scrutiny of the evidence of P.Ws. 2 and 3 and also the evidence of P.W. 6 who has been declared hostile, I hold that the prosecution has not been able to prove beyond all reasonable doubts that the appellant took any amount from the complainant by way of bribe and amount so recovered from his possession was bribe money.
14. The decision in the case of the State of M. P. v. J. B. Singh, reported in 2000 SCC 1507 : (2000 AIR SCW 3557) is applicable in the facts and circumstances of the case as the facts are practically similar in the present case.
15. So far as the decision relied by the C.B.I, in the case of Madhukar Bhaskarrao, 2001 Cri LJ 175 : (AIR 2001 SC 147) is concerned, it has been held by the Supreme Court that once prosecution has established that gratification in any form cash or kind had been paid or accepted by a public servant the Court is under a legal compulsion to presume that the said gratification was paid or accepted as a motive or reward to do any official act.
16. But in the present case the prosecution has not been able to establish the facts that money which was accepted by the appellant was a bribe money or it was gratification, therefore the decision in the case of Madhukar Bhaskarrao Joshi v. State of Maharashtra reported in 2001 Cri LJ 175 : (AIR 2001 SC 147) , does not apply in this case. Similarly the decision in the case of State of A.P. v. Kommaraju Gopala Krishna Murthy reported in 2000 (9) SC 752, which is also in the same line, is not applicable in the facts and circumstances of this case.
17. In the result I hold that the prosecution has not been able to establish the charge against the appellant beyond all reasonable doubts and therefore, the judgment of conviction and sentence passed against the appellant by the trial Court cannot be sustained. Since this appeal succeeds on the first point raised by the appellant, therefore, it is not necessary to decide the second submission advanced by the learned counsel for the appellant.
18. In the result this appeal is allowed and conviction and sentence passed by the trial Court against the appellant are hereby set aside. The appellant who is on bail is discharged from the liability of his bail bond.