Jharkhand High Court
Against The Judgment Of Conviction And ... vs The State Of Jharkhand Through Central ... on 1 September, 2021
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1 Cr. Appeal (SJ) No.290 of 2014
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 290 of 2014
[Against the Judgment of conviction and Order of sentence
dated 16.04.2014, passed by the learned Special Judge, C.B.I./
A.C.B, Ranchi in R.C. Case No. 05(A)/2009-AHD-R]
Ratneshwar Sharma, S/o -Late Janak Singh, Resident of
Warispur, P.O. + P.S. -Bhagwanpur, District -Vaishali (Bihar)
..... Appellant
Versus
The State of Jharkhand through Central Bureau of
Investigation, Ranchi
..... Respondent
.....
For the Appellant : Mr. Suraj Kumar, Advocate For the C.B.I. : Mrs. Nitu Sinha, Advocate .....
PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court: - Heard the parties through video conferencing.
2. The appellant-convict has preferred this appeal being aggrieved by the Judgment of conviction and Order of sentence dated 16.04.2014, passed by the learned Special Judge, C.B.I.(A.C.B), Ranchi in R.C. Case No. 05(A)/2009- AHD-R whereby and where under the learned court below has held the appellant-convict guilty for the offences punishable under Section 7 and under Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988 and sentenced him to undergo Rigorous Imprisonment for a 2 Cr. Appeal (SJ) No.290 of 2014 period of one year for the offence committed under Section 7 of the Prevention of Corruption Act, 1988 and fine of Rs.1,000/- with default clause of undergoing Rigorous Imprisonment for three months and for the offence punishable under Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988, the appellant-convict has been sentenced to undergo Rigorous Imprisonment for one year and fine of Rs.5,000/- with default clause of undergoing Rigorous Imprisonment for three months, if the fine amount is not paid and it has also been ordered that both the sentences shall run concurrently.
3. The brief facts of the case is that the appellant- convict was posted as Security Sub-Inspector of Bhurkunda Project of C.C.L. The complainant (P.W.7) was running a tobacco shop at Sayal More of Bhurkunda. The appellant- convict demolished the shop of the complainant and when the complainant approached him and sought permission to allow him to put his shop, the appellant-convict on 15.05.2009 demanded Rs.1,000/- for permitting the complainant to put his shop and also cautioned him that if the complainant puts his shop without giving the money then the appellant-convict would demolish his shop and would also lodge complaint with police. As the complainant was not intending to pay the bribe, hence, he lodged the complaint with the Superintendent of Police, Central Bureau of Investigation, Ranchi. P.W.10 -
3 Cr. Appeal (SJ) No.290 of 2014 Ram Kishore Sahu, A.S.I., verified the allegations made in the complaint by going to Sayal More of Bhurkunda in the evening of 15.05.2009. The appellant-convict came near the shop of the informant at about 05:30 P.M. and enquired from the complainant in presence of the P.W.10, whether the complainant has arranged the money, about which the appellant-convict told him in the morning of that day. The complainant replied that he was trying to arrange the money. Upon which, the appellant-convict told that in the next day evening, he would come to that place and the complainant has to pay the money to him at that time and after that the complainant can freely run his tobacco shop there but again said that if the complainant will not give the money then the appellant-convict would complain to the police against the complainant(P.W.7). The P.W.10 submitted his verification report which has been marked Ext.13 and on the basis of the report submitted by the P.W.10, the F.I.R. of this case was registered. The complaint of the complainant (P.W.7) has been marked Ext. 11 and the formal F.I.R. has been marked Ext. 14. A trap was successfully conducted on 16.05.2009. The appellant-convict was caught red handed upon accepting the bribe amount of Rs.1,000/-.
4. After completion of investigation, charge sheet for the offences punishable under Section 7 and under Section 13(2) read with Section 13(1) (d) of the Prevention of 4 Cr. Appeal (SJ) No.290 of 2014 Corruption Act, 1988 was submitted against the appellant- convict. Separate charges for the offences punishable under Section 7 and under Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988 were framed against the appellant-convict to which, the appellant-convict pleaded not guilty and he was put to trial.
5. In support of its case, the prosecution altogether examined 13 witnesses besides proving the documents but no witness was examined on behalf of the appellant-convict.
6. Out of the witnesses examined by the prosecution, P.W.7- Mithilesh Kumar is the complainant himself. He has stated about the contents of the complaint submitted by him to the Superintendent of Police, C.B.I. He has also stated in detail about the pre-trap preparation. He further stated that on 16.05.2009, he along with the members of the trap team in two vehicles reached Sayal More. At about 05:30 P.M., the appellant-convict came there. The complainant wished him and sought permission to run his shop. The appellant-convict demanded Rs.1,000/- and also told the complainant that till five days, he must run his shop on a cot and he should not put any pillar. Upon demand of Rs.1,000/- by the appellant- convict, the P.W.7 brought out the money from his shirt pocket and gave it to the appellant-convict. The appellant- convict took the money with his right hand but did not count the money. He kept the money in the back pocket of his pant.
5 Cr. Appeal (SJ) No.290 of 2014 After this, the personnel of C.B.I. and independent witnesses surrounded the appellant-convict. The sodium carbonate solution was prepared and upon the right hand of the appellant-convict being immersed in the solution, the colour of the said solution turned pink. The solution was kept in a bottle and was sealed. His signatures were obtained. P.W.2 - Rajendra Kumar brought out the money from the pocket of the appellant-convict. The numbers of the currency notes were compared and the numbers tallied. The pocket of the pant of the appellant-convict was also immersed in the sodium carbonate solution and the colour of the solution turned pink and the same was kept in another bottle and sealed. The complainant also identified the appellant-convict who was present in the court. In his cross-examination, the P.W.7 stated that he was involved in two cases also and he put his tobacco shop on the land of C.C.L. On 15.05.2009, the appellant-convict demanded Rs.1,000/- for the first time from the P.W.7.
7. P.W.5- Kishor Prasad Mishra is the shadow witness. He has stated about the pre-trap preparations in detail. He further deposed that on 16.05.2009, they reached near Sayal More of Bhurkunda at 04:30 P.M. and they alighted from the vehicle a few steps before the Sayal More. At 05:00 P.M., they reached Sayal More and took their respective positions. At 05:30 P.M., the appellant-convict came. The P.W.7 told the appellant-convict to permit him to run his 6 Cr. Appeal (SJ) No.290 of 2014 tobacco shop at the said place. The appellant-convict told the informant to first give Rs.1,000/- and to put his cot for five days but within those five days, the informant must not put any pillar. The P.W.7 brought out money from his pocket. The appellant-convict told the complainant to give him the money and on being demanded by the appellant-convict, the P.W.7- complaint gave Rs.1,000/- to the appellant-convict. The appellant-convict took the money by his right hand and kept the same in the right pocket of his pant. Thereafter the entire trap team reached near the appellant-convict. B.K. Singh (P.W.13) challenged the appellant-convict, at which the appellant-convict became nervous and accepted that he received the money. The C.B.I. officers caught hold of both the hands of the appellant-convict by the wrist. The sodium carbonate solution was prepared and the right hand of the appellant-convict was washed with the same and the colour of the solution turned pink. The same was kept in a bottle and sealed. P.W.5 also signed on different documents and exhibits. P.W.2 brought out Rs.1,000/- from the back pocket of the appellant-convict. The number of the notes upon being compared, tallied. They went to the Project Office with the appellant-convict. In his cross-examination, the P.W.5 has stated that he does not remember who was next to him at the time of occurrence.
7 Cr. Appeal (SJ) No.290 of 2014
8. P.W.2- Rajendra Kumar is the other independent witness. He has stated about the pre-trap preparations. He further stated that on 16.05.2009, they reached Bhurkunda at 04:30 P.M. The appellant-convict came to the place of occurrence and talked with the complainant but he cannot hear the conversation between the complainant and the appellant-convict as he was at a distance. Thereafter, the P.W.7 brought out money from his pocket and gave it to the appellant-convict. The appellant-convict without seeing or counting, kept the money in his right back pocket. The complainant signaled at that time. The appellant-convict was caught. The hand of the appellant convict was washed with the sodium carbonate solution and the colour of the solution turned pink. Money was brought out from the pocket of the appellant-convict and the same was compared with the G.C. Note numbers. He also proved the various documents. In his cross-examination, he has stated that he was at a distance of 10 feet from the place of occurrence. The trap took place between 05:00 -05:30.
9. P.W.10 -Ram Kishor Sahu was a Sub-Inspector, of C.B.I., EOW, Ranchi. He has stated about the complaint made by the P.W.7 on 15.05.2009. He went for verification of the complaint along with the complainant (P.W.7). On 15.05.2009, they reached there at 05:30 P.M. At that time, the appellant- convict went there and talked with the P.W.10. The appellant-
8 Cr. Appeal (SJ) No.290 of 2014 convict demanded Rs.1,000/- for not complaining the matter of encroachment upon the land of C.C.L. to the police. On the next day, the P.W.10 and the complainant came to C.B.I. Office and the P.W.10 submitted his verification report to the S.P of C.B.I. Sri B.K. Singh, Inspector (P.W.13) was given the charge of investigation. A trap team was prepared and the pre-trap preparations were made about which he has also stated in detail. They reached Sayal More at 04:30 and everybody took their position at 05:00 P.M. At 05:30 P.M., the appellant-convict reached Sayal More. The P.W.7 wished him and requested the appellant-convict to permit him to put up his shop. The appellant-convict demanded Rs.1,000/- and told to put his cot for five days and within five days, not to put any pillars and thereafter demanded Rs.1,000/- at which the P.W.7 gave Rs.1,000/- after bringing out from the pocket of his shirt. The appellant-convict kept the money in his right side back pocket. As the giving and taking of money took place, all the members assembled there and surrounded the appellant-convict. P.W.13 gave his identification and the identification of the members of the trap team to the appellant-convict and enquired from the appellant-convict as to whether, he has taken money. The appellant-convict became nervous and admitted taking money. The sodium carbonate solution was prepared and the hand of the appellant-convict was washed in the solution. The colour of the solution in which the right hand of the appellant-
9 Cr. Appeal (SJ) No.290 of 2014 convict was washed, turned to pink, which was kept in a bottle and sealed. P.W.2 brought out the bribe money from the pocket of the appellant-convict. The numbers of the currency notes were compared and the same tallied with the numbers mentioned in the pre-trap memorandum. In his cross- examination, the P.W.10 has stated that he went to Sayal More by bus for verification.
10. P.W.12- Manas Kumar Bakshi was also an officer of C.B.I. and member of the trap team. He has deposed about the members of the trap team and the pre-trap preparations. He then stated that on 16.05.2009, they reached the Sayal More, Bhurkunda at 04:30 P.M. They got down from the vehicle a little before the Sayal More at 05:30 P.M. The appellant-convict came near the complainant. The complainant (P.W.7) wished him and after some conversation, the P.W.7 brought out the money and gave it to the appellant- convict in his right hand. P.W.13 challenged the appellant- convict. The appellant-convict admitted taking Rs.1,000/- from the complainant. The hand of the appellant-convict was washed with the sodium carbonate solution and the colour of the solution with which his right hand was washed turned pink. He also submitted about the number of the currency notes tallying with the numbers mentioned in the pre-trap memorandum and the pocket of the pant of the appellant- convict was also washed with the sodium carbonate solution 10 Cr. Appeal (SJ) No.290 of 2014 and the colour of the solution turned pink. In his cross- examination, the P.W.12 has stated that he was at a distance of 40 metre and he could not hear the conversation between the appellant-convict and the P.W.7 but saw giving and taking of money.
11. P.W.13- Bir Kuwar Singh is the I.O. of the case and he was also a member of the trap team. He has deposed about the investigation done by him in this case and he has proved the documents and materials exhibits also. P.W.13 has also stated about the pre-trap preparations in detail. He further deposed that the appellant-convict came at 05:30 P.M. to Sayal More and met the P.W.7-complainant. There was some conversation between the two. Thereafter, the complainant- P.W.7 brought out the money from the pocket of his shirt and gave it to the appellant-convict. The appellant-convict received the same in his right hand and kept the same in his pocket. By that time, the P.W.2 and the other members of the trap team reached the place and the P.W.13 challenged the appellant- convict after revealing his identity by asking him that the appellant-convict has demanded and accepted Rs.1,000/- as bribe from the P.W.7 for allowing him to put his tobacco shop. The appellant-convict became worried and stated that he has committed a mistake. P.W.13 has also stated about the colour of the sodium carbonate solution turning pink after the finger of the right hand of the appellant-convict was washed with the 11 Cr. Appeal (SJ) No.290 of 2014 solution. He has also stated about the numbers of the currency notes tallying with the numbers mentioned in the pre-trap memorandum. During the course of investigation, he sent the exhibits for opinion to Central Forensic Science Laboratory, Kolkata. He has recorded the statement of the witnesses during course of investigation. In his cross-examination, the P.W.13 has stated that during the course of investigation, he found that some of the shops at Sayal More were unauthorized while some shops were with the permission of C.C.L. He has not heard the conversation between the P.W.7 and the appellant-convict but he has seen the giving and taking.
12. Apart from the material witnesses, the prosecution also examined P.W.1 -Ranjan Kumar Saha who was the authority for sanction for prosecution of the appellant- convict and on being proved by him, the sanction for prosecution has been marked Ext.1. His cross-examination was declined by the appellant-convict.
13. P.W.3 -Shailendra Singh has inter-alia stated that the appellant-convict was the Security Sub-Inspector and his duty was round the Clock in shifts.
14. P.W.4 -Bimal Chandra Purkait is the S.S.O, C.S.F.L, Kolkata who did the chemical examination of the solution sent and he opined that out of the four bottles, three bottles contained phenolphthalein, sodium carbonate and 12 Cr. Appeal (SJ) No.290 of 2014 water but the bottle with which left hand of the appellant- convict was washed, did not contain phenolphthalein and it contained only sodium carbonate and water.
15. P.W.6 -Saiyad Sahab Raza (Raja) is the Chief Manager of C.C.L. He has proved the production-cum-seizure memo of different documents seized by the C.B.I. upon production by the officers of C.C.L. and also proved documents to show that on the relevant day, the appellant- convict was the Security Sub-Inspector.
16. P.W.8 -Benzamin Paul who was a General Manager of C.C.L. has inter-alia stated that the appellant- convict was a Security Sub-Inspector and the C.M.D., C.C.L was the competent authority to remove him from service.
17. P.W.9 -Pradeep Kumar Sinha was the Project Officer of Bhurkunda Colliery. He deposed that the appellant- convict was directed to go to the spot and demolish the encroachment made at Sayal More, Bhurkunda and submit his report but the appellant-convict did not submit his report.
18. P.W.11 -Uma Shanker Yadav was a retired ASSI, of Bhurkunda Colliery. He has stated that security personnel were deputed shift wise in three shifts.
19. After closure of the evidence of the prosecution, the statement under Section 313 Cr.P.C. of the appellant- convict was recorded regarding the circumstances appearing in evidence against him. The appellant-convict admitted that 13 Cr. Appeal (SJ) No.290 of 2014 he was posted as Security Sub-Inspector on 16.05.2009 but he denied demand of bribe of Rs.1,000/- made by him on 15.05.2009 from the P.W.7 and also either expressed his ignorance or denied the material questions put to him and pleaded innocence and stated that he will adduce evidence in his defence.
20. Learned trial court after taking into consideration the evidence in the record observed that all the prosecution witnesses on the matter of trap have supported the case of the prosecution and have deposed about demand, acceptance and recovery of the bribe money, which is corroborated by the colour of the sodium carbonate solution turning pink and the numbers of the currency notes tallying with the pre-trap memorandum and held that the evidence in the record is sufficient to establish the charges for the offences punishable under Section 7 and under Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988 and convicted and sentenced the appellant-convict as already indicated above.
21. Mr. Suraj Kumar, the learned counsel for the appellant-convict submits that the learned trial court failed to appreciate the evidence in the record in its proper perspective and could not consider the fact that the prosecution has miserably failed to prove the case beyond reasonable doubt. It is next submitted by Mr. Suraj Kumar, learned counsel for the 14 Cr. Appeal (SJ) No.290 of 2014 appellant-convict that there is ample evidence in the record that the appellant-convict was not the sole Security Sub- Inspector rather there were others also and the appellant- convict was not in a position to permit the P.W.7-complainant to put up his shop at the place of occurrence, hence, the contention of the prosecution that the appellant-convict was paid bribe for the purpose of being allowed to put up a tobacco shop is baseless and on this score also, the appellant- convict needs to be given the benefit of doubt. Mr. Suraj Kumar, learned counsel for the appellant-convict relied upon the judgment of Hon'ble Supreme Court of India in the case of Mukut Bihari and Anr. v. State of Rajasthan reported in (2012) 11 SCC 642, paragraph no.11 of which reads as under :-
"11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an
15 Cr. Appeal (SJ) No.290 of 2014 interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person. [Vide Ram Prakash Arora v. State of Punjab [(1972) 3 SCC 652 : 1972 SCC (Cri) 696 : AIR 1973 SC 498] , Panalal Damodar Rathi v. State of Maharashtra [(1979) 4 SCC 526 : 1980 SCC (Cri) 121] , Suraj Mal v. State (Delhi Admn.) [(1979) 4 SCC 725 :
1980 SCC (Cri) 159 : AIR 1979 SC 1408] , Meena v. State of Maharashtra [(2000) 5 SCC 21 :
2000 SCC (Cri) 878] , T. Subramanian v. State of T.N. [(2006) 1 SCC 401 : (2006) 1 SCC (Cri) 401] , A. Subair v. State of Kerala [(2009) 6 SCC 587 : (2009) 3 SCC (Cri) 85] , State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede [(2009) 15 SCC 200 : (2010) 2 SCC (Cri) 385] , C.M. Girish Babu v. CBI [(2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1] and State of Kerala v. C.P. Rao [(2011) 6 SCC 450 : (2011) 2 SCC (Cri) 1010 : (2011) 2 SCC (L&S) 714] .]"
and submitted that as there is no evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe hence, the appellant-convict ought to have been acquitted by the trial court by giving him the benefit of doubt. Lastly, it is submitted by Mr. Suraj Kumar, learned counsel for the appellant-convict by relying upon an order passed by a coordinate Bench of this Court in the case of Krishna Bihari Singh v. State of Jharkhand reported in 2007 (1) JLJR 14, paragraph no.7 of which reads as under:-
"7. Though the minimum sentence provided under the aforesaid sections has been awarded to the appellant, but in my view, since the appellant is aged more than 60 years and against him the case of the prosecution was that he accepted Rs 10/- only as bribe, which was recovered from his possession and for which he has already undergone the ordeal of protracted trial for about 15 years, the ends of justice would be met if the sentence of imprisonment; awarded to the appellant, is reduced to the period already undergone by him."
16 Cr. Appeal (SJ) No.290 of 2014 which was also relied upon by another coordinate Bench of this Court in the case of Rajendra Sharma vs. The State of Jharkhand through C.B.I. reported in 2011 (2) JLJR 434, that considering the fact that the appellant-convict is an old person of 69 years of age and he has received petty amount of Rs.1,000/- as bribe and he has already undergone sentence of about ten months out of the maximum sentence of one year hence, the sentence of the appellant-convict be reduced to a period he has already undergone, in case, this Court confirms his conviction.
22. Mrs. Nitu Sinha, the learned counsel for the Central Bureau of Investigation on the other hand defended the impugned judgment of conviction and submitted that the P.Ws.7 and 5 who are respectively the complainant and the shadow witness as well as P.W.10 have categorically stated about the three ingredients of
(i) demand of bribe by the appellant-convict,
(ii) acceptance of bribe by him; and
(iii) recovery of the tainted bribe money from the appellant- convict.
It is next submitted by Nitu Sinha, the learned counsel for the Central Bureau of Investigation that in the respective cross-examination of these witnesses, nothing has been elicited to demolish or discredit their testimonies. It is then submitted that in fact, there is no cross-examination at all of 17 Cr. Appeal (SJ) No.290 of 2014 any of the prosecution witnesses examined in this case including the P.W.7, P.W.10 and P.W.5 regarding their testimonies made in their respective examination-in-chief so far as the essential ingredients of bringing home the charges for the offences punishable under Section 7 and under Section 13 (2) read with 13 (1) (d) of Prevention of Corruption Act, 1988 being demand of money, acceptance of money and recovery of money. It is further submitted by Mrs. Nitu Sinha, the learned counsel for the Central Bureau of Investigation, that the testimonies of P.W.7, P.W.10 and P.W.5 has been corroborated by the testimonies of P.W.2, P.W.12 and P.W.13 who have also stated about the acceptance and recovery of the tainted money and as obviously they being at a distance at the time of trap, they could not hear the exact conversation between the P.W.7 and the appellant-convict regarding the demand of money made by the appellant-convict. It is further submitted that the P.W.10 has also stated that one day prior to the occurrence on 15.05.2009 during course of verification of the complaint, he also heard the appellant-convict demanding bribe of Rs.1,000/- for allowing the P.W.7 to put up his shop at the concerned place of occurrence and agreed to receive the bribe amount on the next day at about 05:30 P.M. and this portion of the testimony of the P.W.10 has also not been challenged in any manner in his cross-examination and in the absence of any cross-examination on this material particulars, 18 Cr. Appeal (SJ) No.290 of 2014 the testimonies of these prosecution witnesses are to be accepted as true. It is also submitted by Mrs Sinha, that the contention of the appellant-convict that he had no authority to allow the complainant to put to shop, is an irrelevant submission as without doubt the appellant-convict was the person, in capacity of the security sub- inspector who was to report encroachment of the land of CCL and it is not the case of the prosecution that the complainant was seeking any permanent permission from the competent authority of the CCL to put his shop but he only wanted an accommodation from the appellant-convict, to the extent that the appellant- convict will not disturb the complainant from putting up his tobacco shop. It is then submitted that the contention of the appellant-convict that he was not the sole security sub- inspector does not carry any weight, as there is specific allegation against the appellant-convict that he demolished the shop of the complainant earlier and only he demanded and accepted the bribe amount from the complainant and the bribe amount was recovered from him. It is next submitted by Mrs. Nitu Sinha, the learned counsel for the Central Bureau of Investigation that the testimony of P.W.4 also corroborates the case of the prosecution also as the chemical examination of the solution reveals that the solution in which the hand and pocket of pant of the appellant-convict was washed contained phenolphthalein in addition to sodium carbonate and water.
19 Cr. Appeal (SJ) No.290 of 2014 Mrs. Nitu Sinha, the learned counsel for the Central Bureau of Investigation relied upon the judgment of Hon'ble Supreme Court of India in the case of Vinod Kumar Garg v. State (NCT of Delhi), reported in (2020) 2 SCC 88, paragraph nos.16 and 17 of which reads as under :-
"16. On the said aspect, we would now refer to Section
20 of the Act which reads as under:
"20. Presumption where public servant accepts gratification other than legal remuneration.--(1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) or sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under Section 12 or under clause (b) of Section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn."
20 Cr. Appeal (SJ) No.290 of 2014 The statutory presumption under Section 20 of the Act can be confuted 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 Act. The standard required for rebutting the presumption is tested on the anvil of preponderance of probabilities which is a threshold of a lower degree than proof beyond all reasonable doubt.
17. In the case at hand, the condition precedent to drawing such a legal presumption that the accused has demanded and was paid the bribe money has been proved and established by the incriminating material on record. Thus, the presumption under Section 20 of the Act becomes applicable for the offence committed by the appellant under Section 7 of the Act. The appellant was found in possession of the bribe money and no reasonable explanation is forthcoming that may rebut the presumption. Further, the recovery of the money from the pocket of the appellant has also been proved without doubt. We, therefore, hold that money was demanded and accepted not as a legal remuneration but as a motive or reward to provide electricity connection to Nand Lal (PW 2) for the shed."
and submits that the evidence in the record is sufficient enough to establish beyond reasonable doubt, the foundational facts, to draw the statutory presumption under Section 20 of Prevention of Corruption Act, 1988, that money of Rs.1,000/- accepted by the appellant-convict was accepted as the motive or the reward such as is mentioned in Section 7 of the Act. It is next submitted by Mrs. Nitu Sinha, the learned counsel for the Central Bureau of Investigation that in the absence of any evidence whatsoever adduced by the appellant-convict, the said presumption could not be rebutted by the defence. It is further submitted by Mrs. Sinha, the learned counsel for the Central Bureau of Investigation that as the statute itself prescribes the minimum sentence of one year 21 Cr. Appeal (SJ) No.290 of 2014 so far as the offence punishable under section 13 (2) of the Prevention of Corruption Act 1988 for the offences which were committed before the year 2014, does not permit reduction of the sentence than the minimum sentence. Hence, it is submitted that the sentence imposed by the learned court below is also proper and there is no scope for reducing the same further. Hence, it is submitted by Mrs. Nitu Sinha, the learned counsel for the Central Bureau of Investigation that this appeal being without any merit be dismissed.
23. Having heard the rival submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that there is no dispute that it is a settled principle of law as has also been held in the case of Mukut Bihari and Anr. v. State of Rajasthan (supra) that mere recovery of the bribe by itself cannot bring home the charges for the offences punishable under Section 7 or Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988 against the accused of the case but here in this case, both the P.W.7, P.W.10 and P.W.5 have categorically stated in their depositions that the appellant-convict demanded the bribe of Rs.1,000/- for permitting P.W.7 to put his shop initially for the period of 5 days only with a cot and only upon such demand, the P.W.7 paid the bribe of Rs.1,000/- which was accepted and kept in the back pocket of his pant by the appellant-convict and the same was recovered by the members 22 Cr. Appeal (SJ) No.290 of 2014 of the trap team and upon the right hand and pocket of pant of the appellant-convict being washed with sodium carbonate solution, the colour of the solution turned pink and this in the considered view of this Court is sufficient to constitute all the three ingredients i.e. demand of bribe amount by the appellant-convict, acceptance of the bribe by the appellant- convict and recovery of the bribe amount from the appellant- convict. More so, because there is no cross-examination at all by any of these three witnesses or for that matter, the other witnesses of the trap team being the P.W.2, P.W.12 and P.W.13 and their evidence in respect of the said ingredients for bringing home the charges for the offences punishable under section 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act 1988, has remained intact and the evidence in the record is sufficient to draw the presumption under section 20 of the Prevention of Corruption Act 1988, that Rs.1,000/- accepted by the appellant-convict was as reward or motive as mentioned in section 7 of the Prevention of Corruption Act 1988. As the appellant-convict has not come up with any explanation whatsoever as to why he accepted the ₹ 1000/- from the complainant, the question of the rebuttal of the said presumption under section 20 of the Prevention of Corruption Act 1988 does not arise. As rightly submitted by the learned Counsel for the Central Bureau of Investigation in view of the evidence put forth by the prosecution in this case, the 23 Cr. Appeal (SJ) No.290 of 2014 contention of the appellant that the appellant-convict was caught the sole Security Sub- Inspector or for that matter he was not the authority to allow the complainant to run his shop do not carry any weight. Under such circumstances, this Court is of the considered view that the evidence in the record is sufficient enough to bring home the charges both for the offences punishable under Section 7 as well as Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988 and the learned trial court having rightly convicted the appellant-convict for the said offence. The conviction of the appellant-convict for the offences under Section 7 as well as Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988 as made by the trial court is upheld.
24. So far as the sentence is concerned, it is a settled principle of law as has been held by the Hon'ble Supreme Court of India in the case of Gurjant Singh v. State of Punjab reported in (2015) 8 SCC 650, as the occurrence took place on 15.05.2009 i.e. prior to 16.01.2014 with effect from which date the minimum sentence under Section 7 and under Section 13 (2) of the Prevention of Corruption Act has been enhanced by Act 1 of 2014 hence, the statutory minimum sentence applicable will be one year for the offence punishable under Section 13 (2) of Prevention of Corruption Act, 1988.
25. By now it is a settled principle of law that where minimum sentences provided for by a statute without giving 24 Cr. Appeal (SJ) No.290 of 2014 any discretion to the court, the court cannot impose less than the minimum sentence as has been held by the Hon'ble Supreme Court of India in the case of State of M.P. v. Vikram Das, (2019) 4 SCC 125 paragraph 8 of which reads as under:
8. In view of the aforesaid judgments that where minimum sentence is provided for, the court cannot impose less than the minimum sentence. It is also held that the provisions of Article 142 of the Constitution cannot be resorted to, to impose sentence less than the minimum sentence.
In the case of Mohd. Hashim v. State of U.P., (2017) 2 SCC 198 also the same view was expressed by the Hon'ble Supreme Court of India in paragraph 19 of which reads as under:
19. Xxxxxxxxxx We may further elaborate that when the legislature has prescribed minimum sentence without discretion, the same cannot be reduced by the courts. In such cases, imposition of minimum sentence, be it imprisonment or fine, is mandatory and leaves no discretion to the court. However, sometimes the legislation prescribes a minimum sentence but grants discretion and the courts, for reasons to be recorded in writing, may award a lower sentence or not award a sentence of imprisonment.
Such discretion includes the discretion not to send the accused to prison. Minimum sentence means a sentence which must be imposed without leaving any discretion to the court. It means a quantum of punishment which cannot be reduced below the period fixed.
26. In view of these authoritative pronouncements in the matter by the Supreme Court of India this court is of the considered view that the orders passed by the coordinate benches of this court in the case of Krishna Bihari Singh v. State of Jharkhand reported in 2007 (1) JLJR 14 and Rajendra Sharma vs. The State of Jharkhand through C.B.I. reported in 25 Cr. Appeal (SJ) No.290 of 2014 2011 (2) JLJR 434, so far as they relate to reducing the sentence of a convict to less than the minimum sentence prescribed by the statute, are no more good law.
27. Under such circumstances, this Court is of the considered view that keeping in view the facts of the case, there is no justifiable reason to reduce the sentence of the appellant-convict to a period which is less than the minimum sentence of rigourous imprisonment for one year so far as the offence punishable under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act 1988 is concerned, as the same is not permissible in law and the fine amount imposed in respect of the said offence is also proper. Keeping in view the facts of the case sentence of rigourous imprisonment of one year and fine for the offence punishable under section 7 of the Prevention of Corruption Act 1988 also is proper. Hence, the sentence as imposed by the learned trial court is also confirmed.
28. Accordingly, the impugned Judgment of conviction and Order of sentence dated 16.04.2014, passed by the learned Special Judge, C.B.I./A.C.B, Ranchi in R.C. Case No. 05(A)/2009-AHD-R is up held and this appeal being without any merit is dismissed.
29. Perusal of the record reveals that the appellant- convict -Ratneshwar Sharma is in judicial custody.
26 Cr. Appeal (SJ) No.290 of 2014
30. Let the Lower Court Records be sent back to the learned court below along with a copy of this Judgment forthwith.
31. In view of the dismissal of this appeal, all the interlocutory applications filed in this appeal are dismissed being infructuous.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 1st September, 2021 AFR/ Sonu-Gunjan/-