Jharkhand High Court
Madan Mohan Singh vs State Of Jharkhand Thr C.B.I on 31 July, 2012
Author: Jaya Roy
Bench: Jaya Roy
Criminal Appeal No. 218 of 2007
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Against the judgment of conviction and order of sentence
dated 17.02.2007 passed by the VIIth Additional Judicial
Commissioner-cum-Special Judge, C.B.I., Ranchi in R.C. No.
10(A) of 2000(R)
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Sri Madan Mohan Singh ..... ..... Appellant
--Versus--
The State of Jharkhand through C.B.I. ..... ..... Respondent
For the Appellant: M/s. N.N. Sinha, Advocate, & Rajesh Kumar
Mahatha, Advocates.
For the Respondent: Mr. Md. Mokhtar Khan, Advocate
PRESENT
HON'BLE MRS. JUSTICE JAYA ROY
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JUDGMENT
C.A.V. ON 26.04.2011 PROUNCED ON 31/ 07/ 2012.
Jaya Roy, J. The appellant has filed this appeal for setting aside the Judgment
of conviction and sentence dated 17.02.2007 passed by the VIIth
Additional Judicial Commissioner-cum-Special Judge, C.B.I., Ranchi in
R.C. No. 10(A) of 2000(R) whereby the appellant has been convicted for
the offence under Sections 7 and 13(2) read with Section 13(1) (d) of the
Prevention of Corruption Act, 1988. He is sentenced to undergo R.I. for
three years under Section 7 of the P.C. Act and he is further sentenced to
pay a fine of Rs.10,000/-. In case of default, he will further undergo
simple imprisonment for two months. The convict is further sentenced to
undergo rigorous imprisonment for five years under Sections 13(2) read
with 13(1) (d) of the P.C. Act and sentenced to pay a fine of Rs.30,000/-.
In case of default in payment of fine, the convict will further undergo
simple imprisonment for six months. All the sentences will run
concurrently.
2. The prosecution case in brief is that the complainant Ladle Hassan
had applied for loan of Rs.1,00,000/- under Prime Minister Rojgar
Yojana. The application for loan was submitted before District Industrial
Centre in the year 1999-2000 and the complainant was selected by the
District Industrial Centre and his loan application was forwarded to local
branch of Central Bank. It is further alleged that thereafter the
2. Criminal Appeal No. 218 of 2007
complainant had met with Madan Mohan Singh, Branch Manager of
Balumath Branch of the Central Bank in connection with his loan
application for several times. On 10.9.2000 when the complainant went
to the accused Madan Mohan Singh regarding the loan application, he
asked him to give Rs.10,000/- and further told him that when he will give
the said amount, then his work will be done. Inspite of the several
request of the complainant, the accused did not agree. He asked the
complainant to pay him Rs.10,000/- on 11.9.2000. As the complainant
did not want to pay the aforesaid bribe amount to the accused, he
submitted a written complaint to the S.P. C.B.I. Ranchi for taking action
against the accused. After filing the written complaint, the allegation was
verified bySri B.N.Singh Inspector and after submission of the
Verification Report, a regular case under Section 7 of the P.C.Act was
registered against the accused appellant. Thereafter a trap team was
constituted consisting of Sri A.Prasad, Deputy S.P.,Binay Kumar,
B.N.Singh both Inspector, H.Bahuguna, S.I., C. Mahto and Mahesh
Kumar both constable. The complainant Ladle Hassan was instructed to
be present at 12.30 hours with Rs.10,000/- to be used as bait for catching
Madan Mohan Singh accused red handed while demanding and
accepting the bribe. Services of two independent witnesses Kalyan
Khalkho and Francis Lakra were requisitioned from the Income Tax
Department who reported to Sri A. Prasad, Dy. S.P., C.B.I., Ranchi at
12.15 hours. All the trap team members and both the independent
witnesses and the complainant Ladle Hassan assembled in the office
room of Sri A.Prasad, Dy. S.P., C.B.I. at about 12.30 hours.
3. Thereafter they were told the purpose for which they have been
called and the written complaint of the complainant was shown to them.
The purpose and use of phenolphthalein powder and its reaction with
solution of sodium Carbonate in plain water have also been explained to
them with an elaborate practical demonstration and also directed about
their part to play and they were properly briefed. Thereafter, the
memorandum of all the Pre-trap Proceedings was prepared and after it
was read over and explained to them, all the persons so assembled, put
their signature over the said Memorandum. Thereafter, they proceeded
for Balumath.
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4. The further case of the Prosecution is that after reaching Balumath,
at about 7.15 P.M. the complainant Ladle Hassan was asked to contact
the accused M.M. Singh, branch Manager, Central Bank of India,
Balumath Branch at his residence. The complainant Ladle Hassan
(P.W.5) along with shadow witness Kalayn Khalkho (P.W.2) went to the
residence accused. The C.B.I. trap team members and the other
independent witness Francis Lakra took their position in cognito in close
vicinity. After exchange of pleasantries the complainant and the shadow
witness were asked by accused to come inside the room. Accordingly the
complainant and the shadow witness Kalayan Khalkho went inside the
room. The accused appellant asked the complainant as to whether the
complainant had brought the money to which the complainant replied in
confirmity. Thereafter, the accused appellant extended his hand and the
complainant handed over the tainted currency notes amounting
Rs.10,000/- to the appellant. The appellant after counting the amount by
his both the hands and hold the said amount in his right hand and told the
complainant that he will get the loan. The conversation was clearly heard
by the Shadow witness Kalyan Khalkho who also saw the transaction of
the amount. Thereafter, according to the direction, the complainant gave
the signal, the trap team members rushed towards the accused appellant
and Sri A, Prasad after disclosing his identity and identity of other team
members and witnesses challenged the accused appellant for having
demanded and accepted illegal gratification of Rs.10,000/- from the
complainant. On being challenged, the accused appellant got perplexed
and his face became pale and admitted his guilt. He was declared
arrested. The ground of his arrest was conveyed to the accused appellant.
Thereafter, a solution of sodium carbonate was prepared in clean water.
On being asked, the appellant washed his left hand fingers in the said
solution and the colour of the solution turned pink. The accused appellant
was asked to hand over the tainted currency notes which he was holding
in his right hand to the witness Kalayan Khalkho. Kalayan Khalkho
counted the number and denomination which talied in toto. The
aforesaid solution kept in a bottle was sealed and leveled and the
recovered tainted currency notes were kept in an envelop which was
sealed and signed by all the concerned. The details of all the proceedings
4. Criminal Appeal No. 218 of 2007
was incorporated in the memorandum and the memorandum was read
over and explained to all the present. After finding the contents correct
all the team members, witnesses and the complainant signed over the
memorandum. A copy of the memorandum was also given to the accused
appellant under his duly acknowledgment. The seized materials were
thereafter forwarded to the C.F.S.L., Ranchi and after obtaining the
report and after receiving the sanction for prosecution and after
completion of the investigation, the I.O. submitted charge sheet against
the appellant under Sections 7 and 13(1)(d) read with 13(2) of the
Prevention of Corruption Act, 1988.
5. The appellant denied charges and had pleaded in his defence that
he has been falsely implicated by the complainant and claimed to be
tried.
6. The prosecution has examined ten witnesses to prove its case
amongst them P.W.1 Sharvan Kumar Gupta, P.W.2 Kalayn Khalkho,
P.W.3 Francis Lakrka, P.W.4 Anil Kumar Srivastava, P.W.5 Ladle
Hassan, P.W.6 Arun Kumar Sinha, P.W.7 Arun Kumar Pathak, P.W.8
Gautam Shanker Das, P.W.9 Rameshwar Baski and P.W.10 Binay
Kumar. The defence has examined three witnesses on his behalf.
7. Mr. N.N. Sinha the learned counsel for the appellant has submitted
that P.W.6 Arun Kumar Sinha, P.W.7 Arun Kumart Pathak, P.W.8 G.S.
Das and P.W.9 R. Bakshi have stated in their evidence about the
procedure laid down under Prime Minister Rojgar Yojona (P.M.R.Y)
loan programme. They have stated that for grant loan Rs.100000/- (One
lakh) under the aforesaid loan programme, the applicant has to be
educated and unemployed and after verifying the application by the
D.I.C. constituted in each District, applicant have to appear before a
"Task Force Committee" and if the committee finds the applicant fit in
all respect, it will send the application to the local Bank. The duty of the
Bank thereafter is to examine the viability of the Industry/ Trade opted
by the applicant and then only loan will be allowed. It is also stated by
P.W.7 that usually it takes one month time in completing the formality. It
cannot be done by two or three days. P.W.8 has also stated that the
procedure takes atleast 15-13 days time for an application to mature for
payment. He has further submitted in his evidence that if any application
5. Criminal Appeal No. 218 of 2007
is rejected, the applicant has to file a fresh application. P.W.7 also stated
in case trade is changed by the applicant, the entire formalities have to
start from very beginning.
8. Mr. Sinha counsel of the appellant has pointed out that the P.W.9
Rameshwar Baski has stated that the complainant Ladle Hassan had
earlier applied for loan for Sari Printing Industry but that was withdrawn.
Thereafter, he applied for the loan for starting Bangle Shop that too was
rejected by the Bank because it was not economically viable. Thus, from
the evidence of P.Ws. 6,7,8 and 9 it appears that the application was not
at all maintainable as the last application filed by the complainant has not
passed through the procedure as explained by the above named
witnesses. Therefore, there is no question of demanding any bribe from
the complainant.
9. It is further contended that the complainant (P.W.5) has stated in
his evidence that his earlier two applications for loan had not been
accepted by the Bank. In para-22 he has admitted that his application had
been rejected but thereafter he had struck off the nature of the Trade on
the top of the same application and submitted for the payment of loan.
He has also admitted that the said application was not sent to D.I.C.
neither it had been processed by the Task Force Committee. He has
further admitted that normally time for granting loan takes 2 to 3 months
and without recommendation of "Task Force Committee", loan cannot be
granted. Therefore, from the evidence all these witnesses including
P.W.5, it shows that the complainant is not at all fit for getting the loan
neither his application was properly processed. If the complainant is not
entitled for any loan, there is no scope for demanding any bribe for
payment of loan.
10. Mr. Sinha has further pointed out that the complainant P.W.5 has
made contradictory statement in his evidence as he has stated that the
accused appellant has demanded bribe money on 10.9.2000 in his house
but his own admission in the Court during his evidence that the accused
appellant had demanded bribe money in the Bank not in the house.
Further more, in para-32 of his evidence he has stated that he never went
to the house of the accused appellant. Therefore, the story of demand and
acceptance of bribe money by the accused appellant is utterly false and
6. Criminal Appeal No. 218 of 2007
the accused appellant is deserved to be acquitted from the charges
framed against him.
11. Mr. Sinha has further submitted that the complainant P.W.5 is not
at all a trust worthy witness. He has pointed that the appellant though
applied for loan stating that he was educated and unemployed but he
admitted in his evidence that the complainant was in service at Surat
since 1993. Further more, he has suppressed the fact in his complaint to
the C.B.I. that earlier two applications of the complainant for loan had
been rejected by the Bank, which he disclosed in his evidence. He did
not tell the C.B.I. that the complainant had made forgery in his last
application and had changed the nature of the Trade, and inspite of
knowing the procedures and time expected to be taken in it, he wanted
the accused appellant to grant loan to him immediately. The complainant
asked the accused appellant to grant loan in his favour and when the
accused did not agree to grant the loan without verification and proper
formalities, the complainant in conspiracy with C.B.I. officials got the
accused arrested. The accused never demanded nor he had accepted any
bribe money nor any thing had been recovered from his possession. The
complainant made false statements that he had met the accused appellant
on 10.09.2000 in Bank but it was a Sunday not the working day. He
made another false statement that he had gone to the house of the
accused appellant on 10.09.2000 as he himself admitted para 32 that he
had never visited the house of the accused appellant. In view of these
aspect question of demand and payment did not arise.
12. It is further submitted that not a single local or independent
witness was called at the time of occurrence, only the tutored witnesses
showing them as independent, had been taken by the C.B.I. from Ranchi
to Balumath with them and so called independent witnesses after
traveling long distance i.e. from Ranchi to Balumath and remained with
the C.B.I. Officials cannot be treated as independent witness.
13. Mr. Sinha has further argued that the sanction accorded in this case
is bad in law and without jurisdiction as the sanction authority in his
order has nowhere mentioned regarding any documents which he had
seen and considered. Thus, without considering the facts and
circumstances and without application of mind, sanction has been
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accorded mechanically. To support of his contention he has cited a
decision of the Hon'ble Apex Court A.I.R. 2007 S.C.489 = (2006) 13
S.C.C.-305 V.Venkata Subbarao- Vrs- State represented by
Inspector of Police A.P. in which it is held:-
"23. It is also accepted that before the Sanctioning
Authority, the vital documents showing involvement of
the M.R.O. had not been produced. The Sanctioning
Authority, therefore, did not have any occasion to apply
their mind to the entire materials on record and in that
view of the matter, the sanction is therefore, vitiated in
law...."
14. Mr. Khan the counsel of the C.B.I. has submitted that sanction has
been accorded by the competent authority after perusal of all the
materials. The sanction order which is Ext-1 clearly shows that the
sanctioning authority has very specifically mentioned in the said order
that after fully carefully examining the materials sanction was given for
the prosecution of the accused appellant. Therefore, there is no illegality
in the sanction order. In this regard Mr. Khan has cited a decision of the
Hon'ble Apex Court reported in (2010) 8 Supreme Court Cases- 655
State of Madhya Pradesh- Vrs- Harishankar Bhagwan Prasad
Tripathi
in which the Hon'ble Apex Court has held:-
16.... "While granting sanction the officer concerned is not
required to indicate that he has personally scrutinised
the file and had arrived at the satisfaction for granting
sanction. The narration of events granting sanction for
prosecution clearly indicates the case and the reason
for grant of such sanction. In the present case also the
order granting sanction does not, in our view, suffer
from any infirmity which prompted the courts below
to acquit the accused persons.
15. Mr. Khan has contended that regarding independency of witness,
the Hon'ble Supreme Court has held in the case of State of U.P. Vrs-
Zakaullah reported in (1998) 1 Supreme Court Cases- 557:-
" - Every citizen is presumed to be independent until proved
to be dependant on police for any purpose whatsoever-
Merely because the witness was complainant in another
bribery case or that he was a witness in two other cases
though not yet examined in those cases would not render
him a non-independent witness."
8. Criminal Appeal No. 218 of 2007
Mr. Khan has submitted that in the present case, the witnesses
were taken from the income tax department. They were independent
witnesses and neither they were related with the complainant nor they
were member of the C.B.I. They can not be said interested witnesses or
tutored witness as because they were taken by the C.B.I. Official from
Ranchi and they have traveled with the C.B.I. Officer from Ranchi to
Balumath. It is also submitted that the counsel of the appellant could not
point out any evidence oral or documentary which can prove that they
are dependant on the police for their living or liberty or for any other
purpose. Therefore, the plea taken by the counsel appearing for the
appellant that the witnesses are not the independent witness, is not
tenable.
16. Mr. Khan has further argued that the prosecution has fully
established all the material facts and prove the case beyond all
reasonable doubt against the appellant.
17. Perused the material on records including the oral and
documentary evidence adduced by the parties. P.W. 5 namely Ladle
Hassan is the complainant and P.W. No. 2 namely Kalayan Khalkho is
the shadow witness. I find P.W.2 has very specifically stated that when
he and P.W.5 entered into the room, the appellant Madan Mohan Singh
asked Ladle Hassan whether he has brought Rs.10,000/-, Ladle Hassan
said "Jee Sir" I have brought the amount according to your direction.
Thereafter, Madan Mohan Singh told him "Theek Hai, doo" and Madan
Mohan Singh extended his right hand to Ladle Hassan who gave then the
tainted currency notes to Madan Mohan Singh and he accepted the
amount and counted by his both the hand and after holding the said
currency notes at his right hand, told the complainant "Theek Hai,
Tum Jaoo, Tumhara Loan Hoo Jayaga". P.W. 5, the complainant has
also stated the same thing and P.W.3 Francis Lakra has also supported
the aforesaid fact as he was also in the close vicinity of the said place of
occurrence. I further find from the records that the witnesses have
proved the recovery of the aforesaid tainted currency notes from the
appellant Madan Mohan Singh.
18. It is well settled law when the amount is found from the accused,
the burden is on the accused to prove that the amount is taken by him not
9. Criminal Appeal No. 218 of 2007
by way of illegal gratification. In the present case, the demand,
acceptance and recovery have been proved by the prosecution witnesses
and admittedly the appellant has applied for the loan under P.M.R.Y.
Scheme to get himself employed.
19. Regarding the statement of D.Ws, they have only proved in
nutshell that few persons had come on the date of occurrence and who
had taken the appellant with them. They are not the witness of the main
occurrence. Only D.W.2 has stated that the servant namely Mohan was
present in the house of the appellant whereas D.W.3 Ramesh Kumar
Claiming himself as the servant of the appellant and he has stated in his
cross-examination in para no.4 that he did not used to go in the evening
hours in the appellant's house and admittedly the occurrence was in the
evening hours. Thus, the evidence of the defence witnesses is of no help
to the appellant.
20. Having carefully considered the submissions made on behalf of
the parties as discussed above and the materials on records including the
sanction order Ext-I, in my opinion there is no illegality in the sanction
order and the prosecution has able to prove the charges against the
present appellant beyond all reasonable doubts. Therefore, I do not find
any reason to interfere with the Judgment passed by the Court below. I
therefore, dismiss the appeal.
(Jaya Roy, J.)
Jharkhand High Court, Ranchi
Dated, 31st July, 2012
Satayendra/N.A.F.R.