Jharkhand High Court
Deonandan Prasad Sharma vs State Of Jharkhand C.B.I on 20 February, 2015
Author: R.N. Verma
Bench: Ravi Nath Verma
Criminal Appeal (S.J.) No. 66 of 2005
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Against the judgment of conviction and order of sentence
dated 22.12.2004 passed by the learned Special Judge, C.B.I.-
cum- A.D.J.-VIII, Dhanbad in R.C. Case No.4(A)/90(D).
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Deonandan Prasad Sharma
Son of late Mahabir Singh at present residing at Bakar Bandh,
Railway Qr. No.658-A Dhanbad, P.S.-Dhanbad, District-Dhanbad
.... .... .... Appellant
--Versus--
The State of Jharkhand through C.B.I.
.... .... .... Respondent
For the Appellant : Mr. A.K. Kashyap, Sr. Advocate
M/s. Anurag Kashyap &
Ravi Prakash, Advocates
For the C.B.I. : Mr. K.P. Deo, A.P.P.
PRESENT
HON'BLE MR. JUSTICE RAVI NATH VERMA
JUDGMENT
C.A.V. ON: 29/01/2015 PRONOUNCED ON: 20/02/2015
This appeal has been preferred by the appellant against
the judgment and order of sentence dated 22.12.2004 passed in
R.C. Case No.4(A)/90(D) by Special Judge, C.B.I.-cum-A.D.J.-
VIII, Dhanbad whereby the appellant has been convicted under
Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention
of Corruption Act and sentenced to undergo rigorous imprisonment
for one year on each count and both the sentences have been
directed to run concurrently. The appellant has further been
sentenced to pay a fine of Rs.1000/- under both counts and in
default of payment thereof, further to undergo simple imprisonment
for two months.
2. Background facts in nutshell are as follows:-
The present case was instituted on a written complaint
filed by Dharamdas Karmali, a railway employee, before the C.B.I.,
Dhanbad, on the allegation that the complainant was working as
Safaiwala-cum-Lamp Man under T.I., Choupan and was transferred
to Peprakund Station under the same authority but he was asked to
perform his duty at Mirchadhuri Station and though he had worked
there from 26.12.1989 till 15.01.1990 but he was not given any
2 Cr. Appeal (S.J.) No.66 of 2005
salary for that period from the D.R.M. office and so he contacted
the accused Deo Nandan Prasad Sharma, who was Head Clerk at
the office of Senior D.P.O. for his salary and also requested the
accused to get him transferred to Hindgiri Station. The accused
asked him to bring his performance chart from Mirchadhuri Station
and also in writing from T.I. Choupan and only thereafter his salary
will be prepared. It is also alleged that after completing the
formalities as directed by the accused, again contacted the accused
on 10.02.1990 but he asked the complainant to meet again on
16.02.1990and when the complainant met the said accused on that date, the accused asked him to pay Rs.500/- to get the order of transfer and payment of salary. After submission of the above complaint, it appears from the record that discreet verification was conducted by C.B.I. authority and after following the procedures, the case was instituted. After lodging the F.I.R., a trap was laid on 21.02.1990 in presence of C.B.I. officials as well as two independent witnesses namely P.W.2 and P.W.4. The accused was caught red handed while taking bribe and after completing the formalities and investigation, charge sheet was submitted. Accordingly, cognizance was taken and charges were framed as above said. The charges were explained to the accused to which he pleaded not guilty and claimed to be tried.
3. In course of trial, the prosecution examined 11 witnesses which are as follows:-
P.W.1- Dewashis Rai. He is a formal witness and proved the sanction order of D.P.O. for the prosecution of the accused whereafter the sanction order was marked as Ext-1. P.W.2-Rajendra Prasad, a Clerk in the office of C.C.W. Dhanbad, is an independent witness called for as a witness of trap formalities. P.W.3-Kamla Prasad, A.S.I. deputed in C.B.I. on the alleged date is a witness of discreet verification before lodging the complaint and was also a member of trap team.
P.W.4-Madhusudan Prasad, a witness of pre trap and post trap formalities but he was declared hostile.
P.W.5 is the complainant himself.
3 Cr. Appeal (S.J.) No.66 of 2005 P.W.6- Vishwamohan Jha in his evidence has only stated that the appellant was working as Head Clerk in E.T.-II Section and was dealing with the file of the complainant but the appellant being a Clerk had no power to grant promotion or transfer to any of the employee and the objection on payment of salary to the complainant was made by the Pay Bill Section.
P.W.7 Sanat Kumar Mukhopadhyay, Deputy Director, C.F.S.L., Hyderabad who conducted scientific examination of contents of bottles prepared during trap, so he is a witness of report of chemical examination.
P.W.8 Yogendra Mahato, a Railway Porter is a witness of quarrel between Deonandan Prasad Sharma and Dharamdas Karmali, the complainant before filing of the present case.
P.W.9 Prem Chandra Prasad, a Stenographer in the D.R.M. office, Dhanbad on the alleged date of occurrence, is a hearsay witness of raid in the house of the accused-appellant.
P.W.10 Jai Ram Singh, a Fitter in Carriage Section of Railway is also a hearsay witness of quarrel and of the fact that complainant had taken loan from the accused appellant and because of non payment of loan amount, the quarrel took place between the appellant and complainant.
P.W. 11 Lal Mohan Manjhi, D.S.P., C.B.I. was I.O. of the case.
4. After recording the prosecution evidence, the appellant was examined under Section 313 of the Code of Criminal Procedure wherein he has denied the averments made in the evidence of the prosecution witness and also denied to take any illegal gratification from the complainant and has claimed to be falsely implicated in this case. The appellant has further stated in the said statement that the complainant Dharamdas Karmali had quarrel with him before the alleged trap and also threatened to implicate him in a false and fabricated case whereafter informatory petition was filed by him in the court of S.D.M., Dhanbad. It appears from the record that the said informatory petition filed by the appellant was marked as Ext.A at the instance of defence witness no.1.
4 Cr. Appeal (S.J.) No.66 of 2005
5. The learned trial court, after considering the evidences and material available on record, convicted the accused appellant and sentenced him as indicated above.
6. Assailing the findings recorded by the learned trial court, the learned counsel appearing for the appellant Mr. Kashyap contended that the evidences on the point of demand of money, is highly indiscrepant and unreliable so as to attract the offence under Sections 7 and 13 of the Prevention of Corruption Act. Even one of the trap witness, who was in fact a shadow witness, has not supported the factum of demand and denied to hear any conversation of demand between the complainant and appellant. Learned counsel further submitted that mere recovery of tainted money by itself cannot prove the charge of prosecution when the substantive evidence is not reliable. In support of his contention, learned counsel has relied on a judgment reported in 2009(3) SCC 779 C.M. Girish Babu Versus C.B.I., Cochin. Learned counsel further submitted that even the recovery has not been proved in accordance with law and the hands of the appellant after pre trap were not put in solution immediately after seizure of money rather the same was followed in the office of C.B.I., which was almost 2 Km away from the alleged place of occurrence. Learned counsel further submitted that an important witness Sunil Kumar Sharma, who was Sub Inspector of Police, has not been examined and no explanation has been given by the prosecution for his non examination. Lastly, it was contended that the accused appellant was apprehended on 22.02.1990 and he remained in custody for almost a month whereafter he was released on bail on 28.03.1990 and since thereafter the accused appellant has been facing pangs of pendency of trial and appeal and as such as more than 24 years have passed, a lenient view may be taken against the appellant.
7. Contrary to the above submissions, learned counsel appearing for the respondent C.B.I. seriously refuted the contentions and submitted that inconsistency and contradictions are bound to creep in the testimony of truthful witness and that there is no rule of law or the prudence that the prosecution should produce 5 Cr. Appeal (S.J.) No.66 of 2005 all the witnesses on the same point. The court has to see the quality of the evidence not the quantity.
8. To establish the charge against the appellant, the prosecution in relation to demand and receipt of illegal gratification, had examined mainly four witnesses, P.W.2- Rajendra Prasad, P.W.3-Kamla Prasad, P.W.4-Madhusudan Prasad and P.W.5 the complainant- Dharamdas Karmali. Out of these witnesses, P.W.4-Madhusudan Prasad, who was an independent witness, was though declared hostile but the witness has narrated the entire pre and post trap proceedings, however, he denied to hear any demand of illegal gratification during conversation between the complainant and the accused-appellant. Before I examine the two independent witnesses of demand and acceptance P.W.2 and P.W.4, examination of P.W.3-Kamla Prasad a witness of verification and subsequent trap proceeding is necessary.
9. Kamla Prasad (P.W.3), has stated in his evidence that in the year 1990, he was posted as Assistant Sub Inspector in the office of C.B.I., Dhanbad where a complaint was filed by one Dharamdas Karmali against the appellant Deo Nandan Prasad Sharma and after direction of S.P., C.B.I., Dhanbad to verify the complaint, he along with complainant Dharamdas Karmali visited the office of Senior D.P.O., Dhanbad on 16.02.1990 and after verification finding the contents of complaint correct he submitted the report to S.P., C.B.I., Dhanbad which was marked as Ext.3. Thereafter, the F.I.R. was lodged. The witness has confirmed that he was also a member of trap party and to complete the pre trap formalities, he visited the C.B.I. office on 21.02.1990 at about 10.30 a.m. where Inspector Lal Mohan Manjhi completed the formalities in presence of two independent witnesses, the complainant and other members of raiding party and the contents of the complaint was also read over to all the members. The witness has further stated that as the accused had demanded Rs.500/- but out of that Rs.200/- was given to the appellant on 16.02.1990 when this witness alongwith complainant had gone for the verification of the contents of the complaint and so the complainant had brought only Rs.300/- on 21.02.1990. After putting Phenolphthalein powder 6 Cr. Appeal (S.J.) No.66 of 2005 on the said notes, the same was returned to the complainant with certain directions. Thereafter, pre trap memorandum was prepared by him in carbon process which was during evidence marked as Ext.2/12 to 2/14. The witness has further confirmed that after completing formalities, the trap party along with this witness proceeded to the office of D.R.M., Dhanbad at 3.30 p.m. and found the accused Deo Nandan Prasad Sharma present in his office. Dharamdas Karmali (P.W.5) went inside the room and enquired from the accused about his order of transfer, upon which the accused demanded Rs.300/- and when the complainant replied in positive, he asked him to wait outside the room as he was busy in some other work. After some time, the accused came out of his office along with one staff and asked Karmali to come to a tea stall near the post office. The team was watching the complainant and on way to post office where the accused demanded money from Karmali, he requested for some time to bring money from his brother. Karmali, thereafter, informed the raiding party about the demand of illegal gratification by the appellant. Dharamdas Karmali, on the instruction of trap party, handed over the money to the appellant Deo Nandan Prasad Sharma, who after counting the money kept the same in the inner pocket of the shirt. The complainant thereafter gave signal, which was fixed by the raiding party and immediately the trap team caught the appellant and took him to the office of Senior D.P.O. The trap team challenged the appellant upon which he became nervous. Thereafter, both the hands of the appellant were dipped into a solution prepared of Sodium Carbonate and the solution became red. The said solution was preserved in a bottle and the rupees recovered were compared with the number of pre trap memorandum. The pocket of the shirt of the appellant was also dipped in the solution which became red. The shirt was also kept in a separate envelop and sealed and a separate memo was also prepared. The witness has further stated that thereafter the house of the accused was also searched and one of the note out of Rs.200/- which was given to the accused on 16.02.1990, was also recovered and the bottle in which the solution were kept, were also marked as material exhibit II/1, II/2, III/3.
7 Cr. Appeal (S.J.) No.66 of 2005 However, this witness in Paragraph 5 of his cross-examination has stated that money was recovered from the pocket of the pant and the same was dipped in solution and the witness further identified the said pant in court. The witness in Paragraph 12 has further stated that no paper was prepared by the trap party between the tea stall and the office of D.R.M. The witness has further stated in his cross examination that the recovery was not made from the same place where the money was given to the appellant. Apparently, from the evidence of P.W.3 it appears that he was not a witness of demand of illegal gratification by appellant in lieu of the pending work of the complainant.
10. Now I would like to examine the evidence of P.W.5 the complainant. This witness has supported the fact of pre trap and post trap formalities. In Paragraph-8, the witness has further confirmed the direction given to him in C.B.I. office that the money has to be given to the appellant only on his demand and at that time Rajendra Prasad will accompany him in room and Rajendra was directed to hear the conversation. The witness has further stated that at about 3.30 p.m. he along with trap party reached the office of D.R.M. and he alone entered into the room of the appellant Deonandan Prasad Sharma and enquired from him about his work relating to transfer and salary, upon which the appellant enquired about the money. When the witness assured him to pay the money, the appellant asked him to wait outside the room. At that time, other trap members were standing near the door of the room. The witness on his own accord stated that he alone entered into the room. When the witness again entered into the room, the appellant became annoyed and asked him to wait outside as he is busy with some other work. After 15-20 minutes, the appellant and two other persons came outside the room and asked him to follow and on way to post office, the appellant further enquired from him about the money upon which he requested for 5 minutes time to bring money from his brother. Whereafter, he handed over rupees 300/- to the appellant, who after counting the money kept in the right pocket of full-pant. The witness has further stated that as earlier decided by the trap party, he gave signal to Rajendra and further stated that he 8 Cr. Appeal (S.J.) No.66 of 2005 along with the appellant came near petrol pump where the trap party apprehended the appellant and brought him to the office of Sunil Sharma, D.P.O. where Madhusadan took out the money from the pocket of the appellant. The witness has further stated that Rs.200/-, which was given earlier to the appellant, was also tallied with the number mentioned in the pre trap memorandum. Apparently, none of the witness has said about recovery of Rs.200/-, which was alleged to be given to the appellant on 16.02.1990 during verification of complaint. It appears to be improbable that 200/- rupees, which was alleged to be given to the appellant by the complainant, was still lying in the pocket of the appellant.
11. From the evidence of P.W.5, it is clear that as decided by the trap party Rajendra Prasad P.W.2 had to follow the complainant in the room and to hear the conversation between the complainant and the accused-appellant regarding demand of illegal gratification but from the evidence of P.W.5 himself, it would appear that this witness alone had entered into the room where the appellant Deo Nandan Prasad Sharma was working and no other person of the trap team heard the conversation between the complainant and the accused-appellant. Now on the above point, I would like to examine P.W.2-Rajendra Prasad, who was directed to follow the complainant and hear the conversation.
12. P.W.2- Rajendra Prasad has narrated about the entire trap proceedings as to how the trap was laid down till he along with P.W.4 and trap team reached the office of D.R.M. at about 3.30 p.m. and affirmed that the accused was present in his office and how the complainant Dharamdas Karmali went near the accused and thereafter he followed him and behind him one S.I., Sunil Sharma was there and other trap parties were standing outside. But during cross examination in Para 7, the witness has stated that when the complainant entered in the office room of the accused, almost five persons were working in that room and further confirmed that he did not find anyone talking to other person and when Karmali gave signal only then he thought that the transaction has been completed.
9 Cr. Appeal (S.J.) No.66 of 2005
13. In the preceding Paragraphs, I have dealt with the evidence of P.Ws. 2, 3, 4 and 5. So far as the contention of learned counsel for the appellant that the evidence on the point of demand of money is not credible and cogent, the evidence shows that though P.Ws.2, 3, 4 and 5 were examined on demand of money but none of the witness has even whispered that they heard the conversation on the point of demand of illegal gratification. It is well settled principle that mere recovery by itself cannot prove the charge of demand of bribe against the accused in absence of any evidence. In view of Section 20(1) of Prevention of Corruption Act it shall always be presumed, unless the contrary is proved, that the accused accepted or obtained or agreed to accept gratification and the proof not mean direct proof as that would be impossible but the proof must be one which would introduce a reasonable amount to come to a particular conclusion. Apparently, none of the witness of demand P.W.3 or P.W.4 have disclosed anywhere in their evidences that either of them heard the conversation between the complainant and the accused-appellant relating to demand of illegal gratification. Now question would arise as to what was the occasion for the complainant to falsely implicate the accused-appellant. P.W.5 in his evidence has clearly stated that he had approached the accused-appellant for demand of salary and transfer and also stated that the accused-appellant was the dealing Clerk of his file and had demanded Rs.500/- as illegal gratification to get his order of transfer and payment of salary. P.W.6 has also confirmed that the appellant was dealing with the file of the complainant regarding transfer and salary being the Head Clerk of E.T.-II Section. This witness has further confirmed that whenever there is any dispute with regard to salary, the Bill Section sends the file to E.T.-II Section for its approval. Undoubtedly, the appellant was dealing Clerk of the file relating to the complainant but in absence of any direct witness of demand of illegal gratification, I would like to examine two other witnesses P.W.8 and P.W.10. These two witnesses have confirmed that an altercation took place between the complainant and accused on 10.02.1990 near railway catering. P.W.8 has denied to know reason for the said quarrel but P.W.10 in 10 Cr. Appeal (S.J.) No.66 of 2005 cross-examination has confirmed that D.P. Sharma had given adverse report against the complainant on his pay bill and annoyed with that Karmali had abused Deo Nandan Prasad Sharma, the appellant. The witness has further stated that he also came to know that the appellant had given some loan to the complainant Karmali almost 2-3 months ago and the appellant was demanding that money and for that there was a quarrel between the appellant and complainant.
14. The defence had examined one witness and brought on record one Informatory Petition filed in the court of S.D.M., Dhanbad which has been marked as Ext.A. This Informatory Petition was filed on 13.02.1990 after threatening given by the complainant Dharmdas Karmali. It appears from the said petition that on 24.01.1990 Dharmdas Karmali had taken friendly loan of Rs.500/- from the appellant on a promise to return the same within 15 days. On 10.02.1990, when Dharmdas Karmali again came to his house the appellant demanded his money whereafter the complainant became annoyed and threatened the appellant to implicate him in a false case and on interference of some other railway staff, Dharmdas Karmali assured to return the loan amount of Rs.500/- by end of February, 1990 whereafter this Informatory Petition was filed showing a reasonable apprehension of his false implication in any case by Dharmdas Karmali. Admittedly, this Informatory Petition was filed much before the trap laid down by the C.B.I. on 21.02.1990.
15. It is a settled principle of criminal jurisprudence that the conviction of an accused cannot be founded on the basis of mere presumption and inference. It is the basic principle that prosecution has to prove his case against the accused beyond all reasonable doubt either by direct evidence or even by circumstances. Applying above principles to the facts of the present case, P.W.3 who was an independent witness to the demand has nowhere said that he was a witness of demand and the second witness P.W.4-Madhusudan Prasad became hostile upon his denial to hear about the demand. This witness has completely denied to know anything about the demand and acceptance and also denied to 11 Cr. Appeal (S.J.) No.66 of 2005 acknowledge that the sum of Rs.300/- was demanded by the accused-appellant from P.W.5 in his presence. Even P.W.2, who was a witness of verification and trap, has not given a clear picture about demand rather has said that none of the person present in the room was talking to any other person.
16. In a case under Prevention of Corruption Act, the prosecution has to prove the three ingredients- demand, acceptance and recovery. The most important ingredient is the demand because the demand may be of illegal gratification or the demand to return the previous loan or any demand not related with official work. The money was certainly recovered from the pocket of the accused- appellant and there is no dispute over the acceptance of money by the appellant but the most important ingredient 'demand' has not been proved by the prosecution.
17. In the case of C.M. Girish Babu Versus C.B.I., Cochin (supra) the Hon'ble Supreme Court while considering almost a similar circumstance, took the view that mere recovery of money from the accused by itself is not enough in absence of substantive evidence for demand and acceptance. The Supreme Court further held that there was no valid acceptance of money knowing it to be a bribe and give advantage to the accused of the evidence on record, the Supreme Court in Para 18 & 20 of the judgment held as under:
"18. In Suraj Mal v. State (Delhi Admn.) [1974(4) SCC 725], this Court took the view that (at SCC p. 727, para 2) mere recovery of tainted money discovered from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.
20. A three Judge Bench in M. Narasinga Rao v. State of A.P. [2001 (1) SCC 69] : [2001 (1) East Cr C 300 (SC)], while dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification, observed: (SCC p. 700, para 24).
"24. .... We think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length. (vide Madhukar Bhaskarrao Joshi v. State of Maharashtra. [2000 (8) SCC 571]. The following statement made by us in the said decision 12 Cr. Appeal (S.J.) No.66 of 2005 would be the answer to the aforesaid contention raised by the learned counsel: (Madhukar case, SCC p. 577, para 12) The Hon'ble Supreme Court in the above case acquitted the accused. In view of the evidences as analyzed above that there was some dispute between the parties and there was also an apprehension of false implication in the light of Ext.A which was corroborated by P.W.8 and P.W.10 that some quarrel took place between the complainant and the accused-appellant on 10.02.1990, it is difficult to hold that prosecution has established the offence against the accused appellant that he accepted the illegal gratification voluntarily in absence of corroboration of demand of money by P.W.3 and P.W.4. Where the charge of demand of illegal gratification has failed, the acceptance and recovery of money, even if, proved by prosecution, will not sustain in the eye of law and the conviction of appellant on sole ground of recovery will be bad in law. The prosecution, in my opinion, has failed to establish the charge of demand of illegal gratification by the accused-appellant, thus entitling him to the benefit of doubt.
18. On an examination of the entire evidence, I am constrained to hold that it would be difficult to conclusively show the involvement of the accused-appellant beyond reasonable doubt. To my mind, the truth and falsehood are so inextricably inter- twined, that it is not possible to discern where one ends and the other begins.
19. Accordingly, the impugned judgment of conviction and order of sentence passed by the court below are hereby set aside. Appeal stands allowed. Consequently, the appellant, who is on bail, is discharged from the liabilities of his bail bonds.
(R.N. Verma, J.) Jharkhand High Court, Ranchi Dated, 20th February, 2015 Anit/N.A.F.R.