Patna High Court
Ganesh Prasad Shukla vs State Of Bihar on 28 July, 2000
Equivalent citations: 2000(48)BLJR2366, 2000CRILJ4841
JUDGMENT Indu Prabha Singh, J.
1. The sole appellant has been convicted under Section 161 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year. He has been further convicted under Section 5(2) of the Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for two years and a fine of Rs. 1,000/ -. In default of payment of fine he shall further undergo rigorous imprisonment for six months. Both the sentences were ordered to run concurrently.
2. The prosecution case, in brief, arises on the basis of the written report dated 11-6-1986 (Ext. 7) of the informant Sheochandra Sahu lodged before the S. P. (Vigilance), Ranchi coupled with the verification report dated 12-6-1986 (Ext. 3) of Shri Bhagwan Singh, Inspector of Police (Vigilance), Ranchi is that he was doing the work on contract since the year 1979 In the office of the Executive Engineer, Rural Electrification Division, Ranchi, Kusai Colony, Ranchi. It is alleged that the payment of Rs. 14,000/- was made to him on 4-6-1986 vide Cheque No. 35/100-393563 by the said office. It is alleged that the accused had demanded a cum of Rs. 420/- at the rate of 3% in respect of the said amount Rs. 14.000/- and the informant had assured him that he shall be paid in respect thereof after the said cheque is encashed. It is alleged that he could not make payment of Rs. 420/- to the appellant after the encashment of the cheque due to his inability. It is alleged that the informant went to the appellant in his office on 10-6-1986 regarding for the payment of his other bills and the appellant demanded Rs. 420/ - aforesaid and on his expressing his inability in making the payment in respect thereof, the appellant used unparliamentary language against the appellant and told him in clear words that his another bills for payment cannot be issued until a sum of Rs. 420/- is paid to the accused-appellant by him. It is also alleged that the bill for payment in respect of Rs. 22.000/- or Rs. 23.000/- was still pending in the said office of the Executive Engineer, Rural Electrification Division, Kusai Colony, Ranchi. It was requested that the proper step be taken in the matter. As per allegation disclosed in the written report dated 11-6-1986 of the informant, the S. P. (Vigilance) as per his written order (Ext. 1/b) thereon, Inspector Shri Bhagwan Singh was directed to verify the allegations contained in the written report (Ext. 7) of the informant and submit his report in respect thereof. In the verification report dated 12-6-1986 (Ext. 3), the Police Inspector (Vigilance) Shri Bhagwan Singh has stated that he went with the informant to the office of the Executive Engineer, Rural Engineering Organisation, Division, Kusai Colony, Ranchi on 12-6-86 at 11.30 and heard the talk between the informant and the appellant and the informant told the appellant that "you please do my work of licence and I will finally settle your account on Tuesday i.e. 17-6-1986." It has been further stated in the verification report that the appellant is willing to accept the bribe for doing the work of the informant. On receipt of the verification report, the case against the appellant was lodged before the Vigilance Department, Patna on 13-6-1986 against the appellant. Thereafter a memorandum of G. C. notes consisting of four G. C. note each of Rs. 100/- denomination and one G.C. Note of Rs. 20/- denomination was prepared by the Dy. S. P. (Vigilance), Ranchi Shri Budhram Kindo in present of Shri Maheshwar Prasad Mishra, Special Magistrate, Vigilance, Patna and Dy. S. P. (v) Biglal Orson and Parmeshwar Ravidas and also Shri Bhaghwan Singh, Inspector of Police (V) and they put their signatures thereon and a raiding party was also constituted for the said purpose and the said G. C. notes were handed over to the informant to be paid to the appellant, if demanded as bribe. The further case of the prosecution is that the raiding party with the informant went the office of the appellant. It is also alleged that the G. C. notes aforesaid amounting to Rs. 420/- was handed over by the informant to the appellant in his office on 17-6-1986, when a demand in respect thereof was made by the appellant and the appellant after accepting the said amount as bribe kept the said amount in the right hand drawer of his table. It is further alleged that thereafter on the signal of the informant, the raiding party raided the office of the appellant and in present of the independent witnesses, the G. C. notes aforesaid of Rs. 420/- were recovered from the right drawer of the table of the appellant besides other documents and also sortie cash from the pocket of the appellant and seizure list (Ext. 6) was prepared in respect thereof which was signed by the independent witnesses besides the appellant. After completion of the investigation and on receipt of the sanction order of the competent authority charge sheet was submitted against the appellant. Thereafter the cognizance was taken and ultimately the trial concluded with the result as indicated above.
3. The appellant has pleaded not guilty to the charge levelled against him and has stated that he has been falsely implicated in this case at the instance of informant due to enmity.
4. Learned counsel appearing on behalf of the appellant has submitted that there is no independent witness to support the demand of money. He has further submitted that cheque against which; payment was made to the informant has not been exhibited. He has further submitted that the appellant has no authority for preparation of the cheque and he was also not authorised to deliver the same.
5. The prosecution to prove its case has examined altogether 13 witnesses, P.W. 1, Manoj Kumar Verma and P. W. 11 Bhulan Ram, Assistant Electrical Engineer are the witnesses of the seizure of the G. C. notes. P.W. 2 Shri Bhagwan Singh is the Inspector of Police (Vig). P.W. 3, Sheo Chandra Sahu is the informant of this case. P. 4, Garvet Hombrom is the Inspector of Police (Vig). P.W. 5 Meheshwar Prasad Verma is the Special Magistrate (Vig). P.W. 6 Budhram Kindo, Dy. S. P. (Vig) and P. W. 10 Biglal Orson Dy. S. P. (Vig) besides P.W. 7 Ram Naresh Singh, P. W. 8 Manohar Singh, Biruwa and P. W. 9 Belasious Toppo were the members of the raiding party. P.W. 13 P.R. Das, Dy. S. P. (Vig) is the I. O. in this case. P.W. 12, Parmeshwar Prasad Singh was the then General Manager-cum-Chief Engineer, Bihar State Electricity Board, Ranchi.
6. The defence has also examined a witness D. W. 1, Harinandan Singh Yadav.
7. P. W. 3, the informant has stated that the appellant demanded Rs. 420 for payment of cheque of Rs. 14.000/-. The appellant promised to pay the same later. His another bill was sent to the office of the Executive Engineer and he requested appellant to expedite it. He flatly refused and asked him that until and unless you pay the amount of Rs. 420 your further bill will not be cleared. He made complaint before the Executive Engineer who also refused to interfere in the matter, and the appellant became angry and told him to get out from the office. Thereafter he gave complaint petition (Ext. 7) to Vigilance Department. Inspector, Shri Bhagwan Singh (P.W. 2) accompanied him to the office of the appellant for verification of his allegation. P.W. 3 told the appellant that the money will be paid by 17-6-1986. Their conversation was heard by P.W. 2, Shri Bhagwan Singh P. W. 3 was called in vigilance office along with money on 17-6-1986. On that day he reached in vigilance office and handed over the money to the officials of the C.B.I. A memorandum was prepared for G. C. notes of Rs. 420 G. C. notes was handed over to him for paying it to the appellant at 10.30 along with the raiding party. He went to the office and went near the appellant. At that time P.W. 2, Shri Bhagwan Singh, P.W. 4, Garvet Hombrom were also standing nearby. P.W. 3 gave the money to the appellant and he kept in the right side of drawer of his table. P.Ws. 2 and 4 were witnessing it. P.W. 2 and the raiding party surrounded the appellant. He has also proved bill which was pending in the office. In his cross examination he has stated that the appellant was an account clerk. He does not have authority to sign the cheque neither he is the cashier who prepare the cheque. He has further stated in his cross-examination that when a bill from the Sub-division is sent to the Divisional Office for passing it and making payment against it, it is received by the receiving clerk. Thereafter it is countersigned by the Executive Engineer and then it is sent to Junior Accounts Officer who after examining it sent to the cashier for preparing a cheque. Such cheques are signed by the Executive Engineer as well as Junior Accounts Officer. P. Ws. 1 and 11 are seizure list witnesses. P.W. 1 is out-sider. He has no concerned with the electricity board. He has stated that he reached the office to see the crowd and a search was made in his presence and Rs. 420/- was recovered from the drawer of the table of the appellant. He has stated that Rs. 82/- was also recovered from his pocket. He has proved the seizure list Ext. 2 series. In his cross examination he has stated that he was outside the office. P. W. 11 Bhulan Ram, Assistant Election Engineer was posted in the office where the appellant was also working. He has stated that he saw the crowd with raiding party and he came out of his chamber and the vigilance requested him to be a witness of search and seizure. Thereafter number of G. C. Notes written in memorandum was read before him and the searcher was also searched in his presence. Thereafter the appellant was searched. Rs. 82 and some papers were recovered from his left side pocket. Rs. 420 G. C. notes, 100 denomination each and one G. C. Note of Rs. 20 was recovered from the drawer. He has also proved the G. C. notes as well as papers Ext. 2 to 2/d. and Ext. 10. In his cross-examination he has also stated that the payment of cheque the appellant has no rule and even he does not have to sign any paper in this regard.
8. P.W. 12 was the General Manager-cum-Chief Engineer who accorded the sanetion to launch the prosecution. He has stated that he after perusal of the case diary and other documents accorded the sanction. All other witnesses are concerned with the vigilance department. P.W.s 7, 8 and 9 are tendered witnesses.
9. P.W. 2, Shri Bhagwhan Singh, who was entrusted to make verification about the report submitted by the informant. He had also participated in the raid. He has stated that the raiding party after making a memorandum Ext. 4 of G. C. notes went to the office of the Executive Engineer, R. E. O. The informant went inside to office room and he remained at the eastern door. He was there with P.W. 4 and also with P. W. 7. He has stated that when the appellant has accepted the money and kept it in the drawer, he gave signal and he along with P.W. 7 went towards the appellant. The appellant tried to take out the money and throw it out. But instead of money some paper came in his hand. He also took out some papers and kept it in the mouth. He was forced to take it out the paper but it was illegible. Thereafter search by P.W. 13 was made in presence of P. Ws. 1 and 11. During the search G. C. notes as per the memorandum amounting to Rs. 420/- was recovered from the drawer of the table. Other papers were also seized and were made exhibits. In his cross examination he has stated that while he was entrusted with verification of allegation levelled against the appellant he along with P.W. 3 informant went to the office of the appellant and talked with him. He along with P.W. 3 went to the office of the appellant and P.W. 3 talked and he overheard it from the door. However, he could not say how many persons were working in the office and how many tables were in the office. He has also stated in his cross examination that the drawer from which money recovered was not locked and stated that no chemical was used in this case.
10. P. W. 13, P. R. Das, Dy. S. P. (Vig) has stated that the complaint filed by P. W. 3 the informant was verified by P. W. 2 and he gave report (Ext. 3) on the basis of which formal F.I.R. was drawn up and he was entrusted with the investigation. He has stated that on the day of raid money was brought by the informant and a memorandum for G. C. notes amounting to Rs. 420 was prepared. The same was signed by P. W. 6, Bhudhram Kindo, P. W. 5, Special Magistrate, Maheshwar Prasad Verma, Biglal Uraon (P. W. 10) and Shri Bhaghwan Singh (P. W. 2). He also signed the memorandum and raiding party was sent to the office of the appellant and after the money was transacted P. W. 2 gave signal. Thereafter he along with others went inside and search was made in front of the witnesses. Recovery of G. C. noted as per the memorandum was made. Other papers were also seized. In his cross examination he has stated that the alleged bill which was said to be pending was for Rs. 11.200/- only. There was no endorsement in the name of Junior Engineer Dutta and also in the name of appellant but where this bill was issued or sent has not been stated by this witness. He has also stated that there was endorsement of Executive Engineer on the bill as such there was no question of this bill put in account section for processing. He has also stated that chemical was not used on the notes.
11. P.W. 4, Garvet Hambrom, has stated that he was standing with P.W. 2 at the time of the raid and has also supported the seizure and recovery of the currency notes. P,W. 5 has fully supported the case of raid and seizure.
12. The defence has also examined a witness as D. W. 1 who was cashier in the office. He has stated that the cheque No. 32/ 100-393536 dated 30-5-1986 was issued to P.W; 3 the informant was received by him, on the same day which is written on the counter foil of cheque and cash book. Entry was also made on the same day. He has stated that in cash book no payment has been shown to have been made to P. W. 3 the informant on 4-6-1986 as alleged.
13. It has been contended on behalf of the appellant that nothing incriminating has been recovered from his conscious possession and he has never demanded any amount bribe from the informant and has never received a sum of Rs. 420/- as bribe from the informant. It has also been contended that a sum of Rs. 420 was kept in the drawer of his table in his absence when he was in the chamber of the Executive Engineer with the Vigilance Officers. It has also been contended that no cheque of Rs. 14.000/- was issued to the informant. There is nothing on the record to show that the cheque in question was delivered to the informant on 30-5-1996 i.e. the date of the cheque mentioned in the cheque in question. Ext. A is the counter foil of the cheque bearing No. 393563 dated 30-5-1986. Ext. C is the report of P. W. 11 Assistant Electrical Engineer, R. E. O. regarding the occurrence in question addressed to the Executive Engineer, Ext. B is the entry regarding the issue of cheque No. 393563 dated 30-5-1986 in the cash book.
14. From the deposition of the witnesses it is apparent that the appellant has no role to play in processing the bill and delivery of cheque. The bill is passed by the Executive Engineer after checking the same by the Assistant Accounts Officer posted in the Division. Thereafter it is sent for preparation of cheque and cheque was signed jointly by the Executive Engineer and Junior Accounts Officer. Thereafter the cheque is handed over to the concerned person by the cashier after making an entry into the cash book. It |is also evident that the alleged money amounting to Rs. 420/- was recovered from the drawer of the table of the appellant and as the time of search it was unlocked. There were three witnesses who claimed to be eye witnesses of the transaction of money and they are P.Ws. 2, 3 and 4. P.Ws. 2 and 4 both are members of the raiding party. They were standing at the door. The currency note was not having any chemical mark over it so it could not be established whether the appellant accepted it and kept it inside the drawer. P. W. 3 has accepted that he was assaulted and abused by the appellant when he approached him for processing his bills as such it is established that he had grudges against the appellant. In this situation keeping the money in the drawer by other persons or the informant cannot be ruled out.
15. Considering the facts and circumstances of the case, it will not be safe to 1 convict the appellant on contradictory evidence. The appellant deserves to be acquitted, giving benefit of doubt. The conviction and sentence passed by the court below is set aside and the appellant is acquitted of the charges levelled against him. As he is on bail, he is discharged from the liability of his bail bonds.
16. In the result, this appeal is allowed.