Jharkhand High Court
Ajit Kumar Tigga @ Ajit Tigga vs The State Of Jharkhand Through ... on 9 July, 2024
Author: Subhash Chand
Bench: Subhash Chand
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No.407 of 2011
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[Against the judgment of conviction and the order of sentence dated 01.06.2011 passed by the learned Additional District & Sessions Judge-I-cum- Special Judge, C.B.I., Dhanbad in R.C. Case No. 7/01(D)]
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Ajit Kumar Tigga @ Ajit Tigga, son of Sri Anand Tigga, resident of Ajanta Para Hirapur, P.O. & P.S. Dhanbad, District Dhanbad ...... ...... Appellant Versus The State of Jharkhand through Inspector of Police Central Bureau of Investigation, Dhanbad ..... .... Respondent
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CORAM : HON'BLE MR. JUSTICE SUBHASH CHAND
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For the Appellant : Mr. Sanjay Prasad, Advocate
For the Respondent-CBI : Mr. Anil Kumar, ASGI
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C.A.V. on: 28/06/2024 Pronounced on: 09/ 07/2024
1. This Criminal Appeal has been preferred against the judgment of conviction and the order of sentence dated 01.06.2011 passed by the learned Additional District & Sessions Judge-I-cum- Special Judge, C.B.I., Dhanbad in R.C. Case No. 7/01(D), whereby and whereunder, the appellant has been convicted under Sections 7 and 13 (2) r/w 13(1) (d) of the P.C. Act and sentenced him to undergo R.I. for two years under Sections 7 and 13 (2) r/w 13(1) (d) of the P.C. Act each along with fine of Rs. 5000/- under each Section and in default of payment of fine, he was directed to undergo R.I. for six months. All the sentences were directed to run concurrently.
2. The brief facts of the prosecution case leading to this Criminal Appeal are that the complainant, Mritunjay Kumar Singh, son of Sri Shree Singh, R/o Ghanoodih, P.O. Jharia, P.S. Tisra, District Dhanbad (Jharkhand) lodged a written complaint in Hindi on 11.07.2001 addressed to the Superintendent of Police, C.B.I., Dhanbad alleging therein that the accused, Ajit Kumar
-1- Cr. Appeal (SJ) No.407 of 2011 Tigga, clerk in the office of General Manager, Telephones, BSNL, Dhanbad had demanded a sum of Rs.2000/- from him as illegal gratification for processing his application form for sanction of a Telephone PCO Booth connection in his favour. The allegations made in the complaint dated 11.07.2001 by the complainant was verified by Sri B.N. Roy, Inspector of Police, C.B.I. Dhanbad. In compliance of the order of Superintendent of Police, C.B.I., Dhanbad, B.N. Roy submitted his verification report on 11.07.2001 to the Superintendent of Police, C.B.I., Dhanbad confirming that the allegations made in the written complaint of the complainant are genuine and correct and, accordingly, the FIR was registered on 11.07.2001 as Case Crime No. RC 7(A) of 2001(D) under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 against the accused Ajit Kumar Tigga, Clerk in the office of General Manager (Telecom), BSNL, Dhanbad.
2.1 On this written information, an arrangement was made to lay the trap against the accused to apprehend him redhanded while demanding and accepting the illegal gratification of Rs.2000/- from the complainant. 2.2 A pre-trap formalities were observed in presence of two independent witnesses, namely, Sri Vani Bhushan Upadhayay, Personal Manager (Vig.) and Balram Prasad, Sr. Inspector, (Vig.) both officers of Executive Director (vig.), BCCL, Koyla Bhawan, Dhanbad, who remained associated with the trap laying party in the capacity of independent witnesses. A preliminary memorandum incorporating therein the details of pre-trap formalities observed was prepared in presence of the said two independent witnesses, the complainant and officers of CBI trap laying team and all the aforesaid persons put their signature on the preliminary memorandum in token of its correctness and genuineness. After observing the pre trap formalities in CBI
-2- Cr. Appeal (SJ) No.407 of 2011 Office, Dhanbad, all the aforesaid persons left the CBI office, Dhanbad for office of accused Ajit Kumar Tigga in the office of General Manager, Telecom, BSNL, Dhanbad situated at CTO Building, adjacent to GPO/Dhanbad Head Post Office and reached there at 11.45 hours. All the members of the CBI raiding team, said witnesses and the complainant were also briefed and instructed to be alert to take the suitable position. Thereafter, the complainant duly followed by Vani Bhushan Upadhayay, the shadow witness entered into the office of the accused in the commercial Section and the accused Ajit Kumar Tigga was found sitting on his office chair. The complainant requested to accused to process his application for sanction of Telephone PCO Booth and to prepare and send the advice to Jharia Telephone Exchange etc. On this request of the complainant, the accused asked to the complainant had he brought Rs.2000/- with him as demanded and desired by him. The complainant replied in affirmative. The accused asked him to hand over the tainted money to him by stretching his right hand before the complainant. On this demand of the accused, the complainant took out the tainted money of Rs.2000/- from his left-hand side upper chest pocket of his shirt and in the meantime accused asked him to count those amounts of Rs.2000/-. The complainant counted the same and on being satisfied in regard to the actual amount of Rs.2000/- handed over the same to the accused and the accused received the said tainted amount with his right hand and handled the same with both of his hands and kept the same in his steel almirah behind his chair. This transaction and conversation was seen and overheard by the shadow witness, V.B. Upadhayay and also by B.N.Roy, Inspector, CBI, Dhanbad. When this transaction was over, the accused assured the complainant to do his work and asked him to come tomorrow and, in the meantime, he would prepare and process the necessary
-3- Cr. Appeal (SJ) No.407 of 2011 documents. The complainant and the shadow witness flashed the prefixed signal by scratching their heads with their right hands to other members of the Royding team who had earlier taken their positions outside the office room in the corridor of 2nd floor of the Office of GM, Telephone, BSNL, Dhanbad discreetly. After receipt of signal from the complainant and the shadow witness, B.K. Birdi, Inspector, CBI along with A.K. Jha, R.P. Tiwary, all inspectors of CBI and other members including Sri Balram Prasad immediately rushed to the said place and B.K.Birdi, Inspector, CBI disclosing his identity challenged the accused for having demanded and accepted a sum of Rs.2000/- from the complainant. In the meantime, both the hands of the accused, A.K. Tigga were caught hold tightly by the wrists by R.P. Tiwary and B.N. Roy, Inspector, CBI, Dhanbad. On being thus challenged, the accused turned pale, nervous and perplexed and he could not utter any word. However, the accused admitted to have accepted Rs.2000/- as illegal gratification from the complainant to process and expedite his application for sanction of PCO both and also to issue advice thereof in his favour at the earliest. Thereafter, both the hands of the accused were washed in the solution of sodium carbonate and water prepared in two clean glasses tumblers in present of the members of the Royding party, the complainant and the witnesses. In process of dipping and washing both the hands of the accused in the solution of sodium carbonate and water, the milky coloured solution of sodium carbonate and water turned pink immediately as a result of washing and dipping both right and left hands of the accused separately turn by turn in the said solution. The said pink-coloured solutions were preserved in two separate glasses phials which were duly sealed after being wrapped in piece of cloth and signed by all the aforesaid persons present thereon. On being pointed out the shadow witness i.e. Vani Bhushan
-4- Cr. Appeal (SJ) No.407 of 2011 Upadhayay and the complainant, the said tainted money of Rs.2000/- was recovered from the steel Almirah of the accused behind his chair. The tainted money was taken by the shadow witness from the second shelf from upper side to lower side. The money was found kept and recovered from between one file and register. V.B. Upadhayay, Balram Prasad and Abdul Hasib Jaffari were asked to count and compare the numbers and denominations of tainted G.C. Notes so recovered with reference to numbers and denominations as mentioned in the preliminary memorandum. On comparison of the numbers and denomination of the recovered G.C. Notes the same were found tallied in toto. The tainted money of Rs.2000/- recovered were kept in an envelope and after it was duly sealed and signed by all the persons present thereon and the same were taken into police possession and seized. The said accused was arrested and arrest memo was prepared after taking his personal search. During the search of the office table, almirah and filing cabinet of accused in the commercial section, in presence of the witnesses, certain incriminating documents relevant to this case like application form of the complainant along with affidavit, sketch map and photocopies of certificates, demand notes, sanction memos and one note sheet total containing 1 to 18 sheets were recovered and seized from the hand bag of the accused kept in his office steel almirah vide search list dated 12.07.2001.
2.3 Thereafter, a memorandum of recovery was also prepared on the spot in presence of Royding party and the details of post trap formalities observed were incorporated in the memorandum of recovery and all the aforesaid persons put their signatures and a copy of that was also handed over to the accused under receipt.
2.4 During investigation, it was also established that the accused, Ajit Kr.
-5- Cr. Appeal (SJ) No.407 of 2011 Tigga, who was posted and functioning as Sr. TAO(G), Commercial Section in the office of General Manager, Telecom, BSNL, Dhanbad during the relevant period and he was looking after and dealing the work of applicants of new telephone connection and PCO related works and the accused in his capacity as above and an employee of BSNL, Dhanbad is a public servant. He was dealing and processing the application form of the complainant for PCO Telephone Booth Connection during the relevant period. Accordingly, the charge-sheet was filed against the accused Ajit Kumar Tigga under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and cognizance of which was taken by the Court of learned Spl. Judge, CBI, Dhanbad.
3. On this written information, the charge was framed against the accused Ajit Kumar Tigga by the learned Trial Court, Special Judge, CBI, Dhanbad under Sections 7 and 13(2) read with 13(1)(d) of the P.C. Act, 1988 and the same was read over and explained to him but the accused denied the charge and claimed to face the trial.
4. On behalf of the prosecution to prove the charge against the accused in oral evidence examined altogether twelve witnesses i.e. P.W.-1, Mrityunjay Kumar; P.W.-2, Vani Bhushan Upadhyay; P.W.-3, Baidyanath Roy; P.W.-4, Balram Prasad; P.W.-5, Pravir Kumar Ghosh; P.W.-6, Arun Kumar Sinha; P.W.-7, Jerome Tirky; P.W.-8, A.H. Zafri; P.W.-9, Anil Kumar Srivastava; P.W.-10, Rajendra Prasad; P.W.-11, Philip Semual and; P.W.-12, B.K. Birdi and in documentary evidence the prosecution has filed the exhibits.
5. The statement of the accused was recorded under Section 313 of Code of Criminal Procedure, in which, he denied the incriminating circumstances in evidence against him and stated himself to be innocent.
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6. The learned trial Court after hearing the rival submissions of the learned counsel for the accused and learned counsel for the CBI, passed the impugned judgment of conviction and the order of sentence dated 01.06.2011 holding the accused guilty for the offence under Sections 7 and Section 13(2) read with 13(1)(d) of the P.C. Act, 1988 and sentenced as stated hereinabove.
7. Aggrieved from the impugned judgment of conviction and the order of sentence dated 01.06.2011, this instant Criminal Appeal has been directed on behalf of the appellant on the ground that the impugned judgment of conviction and the order of sentence passed by the learned Trial Court is bad in the eyes of law. The learned Court below has not appreciated the evidence in proper perspective, while passing the impugned judgment of conviction and the order of sentence. In view of the facts and circumstances of this case and the evidence on record, prayed to allow this Criminal Appeal and set aside the impugned judgment of conviction and the order of sentence and acquit the appellant/ convict from the charges levelled against him.
8. Heard the rival submissions of the learned counsel for the appellant and learned ASGI for the CBI and perused the materials available on record.
9. In order to decide the legality and propriety of the impugned judgment of conviction and the order of sentence, the prosecution evidences on record are reproduced hereinbelow for reappreciation of the same:
9.1 P.W.-1, Mritunjay Kumar, in his examination-in-chief, says that on 11.07.2001 he has lodged the complaint with CBI against the accused Ajit Kumar Tigga in regard to demand of Rs.2000/- from him by Ajit Kumar Tigga for processing the file of telephone booth. This written information is in his pen and signature and he identifies the same marked Exhibit-1. Prior to this complaint i.e. on 09.07.2001, he had gone to Ajit Kumar Tigga. His
-7- Cr. Appeal (SJ) No.407 of 2011 application and photocopy of other relevant documents was also in his custody. On 11.07.2001 again, came to Ajit Kumar Tigga and expressed his inability to pay the gratification of Rs.2000/. On this, Ajit Kumar Tigga told that it would take 6-7 months in processing the file; but if the said money is paid, it will be done within ten or twelve days. Thereafter, he went to the office of C.B.I. and gave an application to the Superintendent of Police, C.B.I., Mr. Bridhi Sahay, who made queries from him, thereafter, on the direction of the Superintendent of Police, CBI, he along with Inspector, CBI, Roi Ji went to Telephone Department and talked with Tigga. The complainant was asked by the accused in regard to the person who had accompanied him and he told him that this person was his uncle. The accused again made demand of Rs. 2,000 and, thereafter, he came back to the CBI office where he was asked to come along with amount of Rs.
2,000/-.
9.1.1 On next day at 08:00 O'clock in the morning, he reached there and the two Vigilance Officers, namely, Balram Prasad and Vani Bhushan Upadhyay were also present there. He was introduced to them. His complaint was also perused and queries was made from him. The powder was applied on one paper and Balram Prasad was asked to touch the same, thereafter, his hand was dipped in a milky coloured water the colour of the same turned into Pink and the same was kept in two bottles. The said bottles were sealed and the signature was also put by all those present there and he himself also, which he identifies his signature and marked Exhibit-2. The paper in which it was sealed, was also signed by all and the same is marked Exhibit-2/1. The brief G.C. Notes was returned, thereafter, the powder was applied thereon and preliminary memorandum was prepared, which is in seven pages, which also bears his signature and other persons of the raiding
-8- Cr. Appeal (SJ) No.407 of 2011 team, which is marked Exhibit-2/2 to 2/8. Thereafter, he reached to the office of General Manager, Telecom, Dhanbad. Upadhyay Ji also accompanied him. Ajit Kumar Tigga asked him whether he brought the money. He began to handover the money. Tigga asked him to count the same and after accepting the said amount, he placed the same in the Almirah behind his chair. He also indicated as was advised earlier and the two officers of CBI and other two officers came and nabbed the accused. His hands were dipped separately in milky coloured water bottle, which turned in Pink. He also put his signature thereon on the same, which is marked Exhibit-2/9 to 2/10. The money was taken out from Almirah and the same was compared with the denominations which have been mentioned earlier and the same was sealed in a paper. The seizure memo bears his signature and marked Exhibit-2/11. That envelope was opened in the open Court in which there are 20 currency notes of Rs.100/- each which he had given to the accused and was recovered from his Almirah. The application form and certificate of the Xerox paper, which were recovered from his bag. The application is in the handwriting of his younger brother, which he identified and marked Exhibit Exhibit-3. He had also prepared the map of the place where the PCO booth was to be set up and certificate of matriculation was also annexed. This recovery memo is also bears his signature which he identifies and marked Exhibit-2/12 to 2/20. He identified the accused Ajit Kumar Tigga in Dock.
9.1.2 In cross-examination, this witness says that the bag, from which, his application and other relevant papers were recovered, the same is not produced in Court. He did not make any complaint of the accused to his senior officer in regard to the demand of rupees. He is not aware whether the accused was on leave on 11.07.2001 and 12.07.2001. He saw him in office
-9- Cr. Appeal (SJ) No.407 of 2011 on his seat on 12.07.2001. He came by his motorcycle while all the CBI officers came by their own vehicle. On 12th in CBI office, the solution was sealed. The recovery memo of the rupee was prepared on 12.07.2001. Two bottles solutions, which was prepared in the Telecom Office was of Pink colour. It is wrong to say that the accused was on leave on the date of occurrence and he did not demand any money and nothing was recovered by him.
9.2 P.W.-2, Vani Bhushan Upadhyay, in his examination-in-chief, corroborated the prosecution story and also reiterated the contents of the preliminary memorandum, which was in seven pages and also reiterated the Pre-Trap Proceedings and proved the memorandum of recovery, which was in nine pages. In cross-examination, this witness says that he has knowledge that at the time of trap, the CBI officers take the kit with them of phenolphthalein. In this case what was taken in the kit by the CBI officers, he is not aware. The solution of sodium carbonate is also called as lime water solution. In the room wherein the occurrence took place there were total 4-5 persons. How many Almirah was in that room, he is not aware. In the office of CBI, he was introduced one person as Mrityunjay Singh, who had already given the complaint and the verification of the allegation was also made and he was also directed to accompany the trap team and the preliminary memorandum was prepared.
9.3 P.W.-3, Baidyanath Roy, in his examination-in-chief, says that on 11.07.2001 and 12.07.2001, he was posted as Inspector, CBI, Dhanbad. On 11.07.2001, Mrityunjay Kumar had given a complaint against Ajit Kumar Tigga, Clerk of General Manager, Telecom Department Commercial Section, Dhanbad, who had made demand of Rs.2000/- for establishing PCO Booth. He had made the verification of his complaint. He had reached along with
- 10 - Cr. Appeal (SJ) No.407 of 2011 Mrityunjay Kumar to the office of Ajit Kumar Tigga. Ajit Kumar Tigga had asked in regard to him and it was told by Mrityunjay Kumar that he was his uncle. Thereafter, Mritunjay Kumar asked Ajit Kumar Tigga for the PCO Booth. Ajit Kumar Tigga made demand of Rs.2000/- and the file shall be processed at least in 8 or 10 days. The verification report was produced by him in the office of Superintendent of Police, CBI, Dhanbad. This verification report is in his handwriting and pen and marked Exhibit-4. By the order of the Superintendent of Police, CBI, Dhanbad on 12.07.2001, a team was constituted, of which, in-charge was Mr. B.K. Bridhi, A.K. Jha, R.P. Tiwari, B.M. Roy, K.M. Singh and R.V. Singh all were the members of this team. Two Vigilance Officers of BCCL, Dhanbad, namely, Balram Prasad and Hari Bhushan Upadhyay were the independent witnesses. The complaint of Mrityunjay Kumar was read over and the solution of sodium carbonate was prepared in a glass. In that powder, Vani Bhushan Upadhyay was put his hand whereby the colour of that water changed into light pink. the same was sealed and a memorandum of Rs.2000/- was also prepared. The rupees, on which the powder was applied, were given to Mrityunjay Kumar to hand over the same to Ajit Kumar Tigga. There were 20 notes of Rs.100/- each. This preliminary memorandum is in seven pages, each page bears his signature which he identifies and marked Exhibit-2/42 to 2/48. The whole of the team reached to the Telecom office Department of Commercial Section, the witness Vani Bhushan Upadhyay, Balram Prasad and complainant went together. Ajit Kumar Tigga asked him whether he has brought, Mrityunjay replied in affirmative. Mrityunjay Kumar began to give rupees to Ajit Kumar Tigga, who asked him to count the same, thereafter, Mritunjay Kumar after counting the same handed over to Ajit Kumar Tigga and he put those notes in his Almirah behind his chair. Mrityunjay Kumar
- 11 - Cr. Appeal (SJ) No.407 of 2011 gave signal by scratching on his head and the other members of the team rushed there. R.P. Tiwari caught held of Ajit Kumar Tigga by his wrist. Vani Bhushan Upadhyay and Balram Prasad were also present there. In presence of them, Ajit Kumar Tigga was asked in regard to accepting the bribe which he has placed in Almirah in presence of Bani Bhushan Upadhyay. The money was taken from Almirah and recovery memorandum of the same was prepared. Thereafter, the hands of Ajit Kumar Tigga were also dipped in Sodium Carbonate solution, which turned into pink. The personal search of Ajit Kumar Tigga was also done. The recovery memo of notes is in nine pages which bears his signature marked Exhibit-2/49 to 2/56. The envelop also bears his signature marked Exhibit-2/57. Both the phials were also sealed, he put his signature thereon which are marked Exhibit-2/58 to 2/59. This witness was not cross-examined on behalf of the accused and was discharged from cross-examination.
9.4 P.W.-4, Balram Prasad, in his examination-in-chief, corroborates the prosecution story and in cross-examination, this witness says that on the preliminary memorandum and the recovery memorandum, he put his signature after having perused the same. He had seen the whole occurrence. He had seen the accused accepting rupees. On accepting money and on making the signals, the CBI officers came and caught hold of accused. His statement was recorded on 28.08.2001 by the Investigating Officer. It is wrong to say that no bribe was demanded or accepted in his presence. It is wrong to say that nothing was recovered in his presence. 9.5 P.W.-5, Pravir Kumar Ghosh, in his examination-in-chief, says that on 26.12.2001, he was posted as General Manager, Dhanbad Circle. He had given the prosecution sanction against Ajit Kumar Tigg,a who was at that time T.O.A. in commercial section. He was empowered to suspend Ajit
- 12 - Cr. Appeal (SJ) No.407 of 2011 Kumar Tigga. He had perused all the papers of CBI and, thereafter, accorded the sanction for prosecution. He identifies his signature on the prosecution sanction, which was typed by his Personal Assistant on his dictation and he identifies the same marked Exhibit-5. In the sanction order, nowhere it is mentioned that all the papers were provided by the CBI. The CBI has sent the format, on the basis of the same, the sanction was accorded. 9.6 P.W.-6, Arun Kumar Bhuiyan, in his examination-in-chief, says that on 02.07.2001, he was T.A.O.(A) in Telecom Department, Dhanbad. He also gone along with Ajit Kumar Tigga for his personal search to his house. The search-list was prepared, which bears his signature and he identifies the same marked Exhibit-2/80 to 2/81. Ajit Kumar Tigga was not taken to his house for personal search. He is not aware whether Tigga was on leave. The personal search of Tigga was made at his house, which is at Hindu Mission Road. All the papers were recovered from his house and one advice note book, two demand note and one file of PCO in name of Rekha Poddar were recovered by CBI from there. On the seizure memo, he put his signature. Those papers are not shown to him today in the Court. Again on the next day, this witness was examined before the Court and those documents were produced before the Court and he identifies the same. In cross-examination, this witness says that advice note book does not bear his signature, which is in two volumes. Sanction note form is blank. Demand note is of 31 pages, of which, first and last page bears his signature.
9.7 P.W.-7, Jerome Tirky, in his examination-in-chief, says that on 12.07.2001, he was posted in Commercial Section, Telephone Department, Dhanbad. Ajit Kumar Tigga was also posted as Clerk in Commercial Section, Telecom Department, Dhanbad. On 12th July, Ajit Kumar Tigga came to office late, at that day, he was on leave. He told that on that day, he
- 13 - Cr. Appeal (SJ) No.407 of 2011 was called in the office. On 12th July, he was engaged in his work and he came to know that Ajit Kumar Tigga has been held, thereafter, CBI Officer interrogated Tigga and he told that he had received no money. This witness was declared hostile. In cross-examination by CBI, this witness says that on 12.07.2001 he has told to CBI Officers that Ajit Kumar Tigga was nabbed red-handed accepting Rs.2000/- from Mrityunjay Kumar Singh. He also gave the statement to the Investigating Officer that post-trap formalities were done in his presence and in presence of other members of CBI. This witness also says that tainted money was also recovered and the application form of Mrityunjay Kumar in a bag was also recovered. He had also given this statement that when the hand of Tigga was dipped in solution the same had turned into pink. He put his signature on the recovery memorandum marked Exhibit-2/82 to 2/90. In cross-examination, this witness says that his statement was recorded by CBI on 12.07.2001. Ajit Kumar Tigga was on leave on 11.07.2001 and 12.07.2001 who had called him to the office, he is not aware. In his presence, neither rupee was demanded by Tigga nor the same was accepted by Tigga. The Almirah, from which, the money was recovered was in possession of Tigga. The memorandum of recovery was not read over to him though he had put his signature in English. He put his signature on all those papers as asked to him.
9.8 P.W.-8, A.H. Zafri, in his examination-in-chief, says that on 12.07.2001, he was posted in Commercial Section G.M. Telecom office, Dhanbad as Sections Supervisor. He is familiar with Ajit Kumar Tigga and he knows Ajit Kumar Tigga who is present in Court. On 12.07.2001, in his office, CBI officers came and nabbed the accused and, thereafter, search was begun from his almirah and Rs.2000/- was recovered, that almirah was just adjoining to the table of the accused. The recovered rupees were kept in an
- 14 - Cr. Appeal (SJ) No.407 of 2011 envelope by the CBI officers and the same was sealed. Certain files were also seized from the almirah, this is the very envelope which was recovered from the almirah. He had signed thereon and identifies the same marked Exhibit. 2/91, which is marked material exhibit-1. This witness also identifies his signature thereon. This file was also recovered on the very date, which is marked material exhibit-2. Both the hands of the accused were dipped in a solution and nothing was shown of one hand but on dipping another hand, the colour of the same turned into pink. Both these solutions were sealed in a phial and he also put his signature thereon, which are marked material exhibit-3 and 3/1. He also identifies his signature which are marked Exhibit-2/92 and 2/93. Memorandum of recovery was also prepared and he put his signature thereon and identifies the same marked exhibit 2/94 to 2/101. The phial is material exhibit-2, on which, writing of demand note and writing of the section memo of Ajit Kumar Tigga, which he identifies the same marked exhibit-6 to 6/2. The papers were relating to the P.C.O. booth of Mritunjay Kumar Singh. In cross-examination, this witness says that prior to date of this occurrence, the complainant had never made any complaint to him. The almirah in the office is not allotted in the name of any specific official.
9.9 P.W.-9, Anil Kumar Srivastava, in his examination-in-chief, says that in RC No. 7 (A) 2001, (D) dated 11.07.2001, he received the CFSL, in which, three sealed glass bottles marked as Q1, Q2 and Q3 in sealed condition and tallied with the same impression forwarded by the forwarding authority the Superintendent of Police, CBI, Dhanbad. They were marked by him as 499/2001A, 499/2001B and 499/2001C respectively, each bottles contained pink colour liquid with white sediments. The mouth of all the three glass bottles were corked with metallic lid and again closed with white
- 15 - Cr. Appeal (SJ) No.407 of 2011 cloth and tied up with thread and duly sealed as per forwarding seal. The phenolphthalein and the sodium carbonate could be detected in the contains of the exhibits marked as above using suitable chemical tests and instrumental methods of the chemical analysis, such as, H.P.T.L.C. and U.V. absorption spectroscope. This report was typed by D. B. Dutta, steno of my dictation and signed by me on 31.07.2001 and forwarding note was also typed on my dictation and forwarding note was typed on the dictation of Shri. N.P. Bagh, Senior Scientific Officer for Director on 10.08.2001 and forwarded the report to C.B.I. Dhanbad along with remnants of the exhibits, the report and the forwarding note marked Exhibit-8 and 8/1 respectively. At this stage, three sealed bottles are provided by the prosecution to the witness which he identified by seal of C.F.S.L. which also bears the signature, the bottle marked as Q1, Q2 and Q3, which are already marked as material exhibit-III, III/1 and III/2 respectively. In cross-examination this witness says that the said exhibits were sent to the Director C.F.S.L, Kolkatta who had marked the same to me, for which, the chemical examination which is in my office file. I cannot say the formation of the above two chemical compound.
9.10 P.W.-10, Rajendra Prasad, in his examination-in-chief, says that on 12.07.2001, he was posted as S.D.E, Commercial Dhanbad. At that time, for some work, he was in the chamber of G.M. Telephone. From there, he came to his chamber and after sometimes came to know that C.B.I. had conducted the raid in the office and come to know that Ajit Kumar Tigga, Senior Clerk, Commercial Section was trapped red handed. Thereafter, both the hands of Ajit Kumar Tigga were dipped in a solution and, thereafter, he was called by G.M. Saheb for some work and he does not know what happened thereafter. Nothing was recovered in his presence from the accused. Tainted G.C. Notes
- 16 - Cr. Appeal (SJ) No.407 of 2011 envelope was shown to the witness and he identifies his signature thereon marked Exhibit-210. The seizure memo was also prepared by the C.B.I. Officers in regard to the seized documents, which also bears his signature. In cross-examination, this witness says that C.B.I. had not recorded his statement. This witness has declared hostile. In his cross-examination, this witness says that C.B.I. did not interrogate him. He has denied his statement recorded under Section 161 of the Cr.P.C. given to the Investigating Officer. He did not see the signature of Ajit Kumar Tigga in the attendance register. He is not individually aware whether Ajit Kumar Tigga was on leave or not from 11.07.2001 to 12.07.2001.
9.11 P.W.-11, Philip Samual, in his examination-in-chief, says that in the year 2001, he was in Establishment Section of B.S.N.L. office as Office Assistant. This witness in cross-examination says that C.B.I. did not interrogate him.
9.12 P.W.-12, B.K. Birdi, in his examination-in-chief, says that he had taken over the investigation of the C.B.I. case and the F.I.R. of the same was prepared on his dictation by Ashok Kumar. A forwarding note was also typed by him. The complaint is Exhibit-1. The verification report is Exhibit-4. Verification was done by the then Inspector B.N. Roy. Pre-trap proceeding was conducted and two independent witnesses and the members of the C.B.I. were also there. Mritunjay Kumar told in regard to his complaint to all the C.B.I. officials and he identified his writing and signature on the complaint, it was in regard to the P.C.O. booth connection and demand of Rs. 2,000/- was made. This witness also narrated in regard to the pre-trap and post-trap proceedings forwarding and also stated that after recording the statement of the witnesses, he filed charge-sheet. In cross-examination this witness says that the accused was not on leave from 11.07.2001 to
- 17 - Cr. Appeal (SJ) No.407 of 2011 12.07.2001 and the attendance register is not produced today in the Court. The xerox copy of the attendance register is on record, in which, there is no signature of Ajit Kumar Tigga on 11.07.2001 and 12.07.2001. The Inspector, R.V. Tiwari had held the accused by the right hand while B.S. Roy had held the accused by left hand, both officers had not washed their hands. The pocked of the complaint was also not washed even the hands of the complainant were also not washed. On that day, the papers were sent for sanction to the sanctioning authority, he is not aware and date of the same is also not mentioned. It is wrong to say that he did not receive the sanction.
10. Prior to evaluate the evidence on record, it would be pertinent to mention herein the statutory provisions of Sections 7 and 13 of the Prevention of Corruption Act, 1988, which reads as under:
"7. Public servant taking gratification other than legal remuneration in respect of an official act.--Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavor to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extent to five years and shall also be liable to fine.
13. Criminal misconduct by a public servant.--(1) A public servant is said to commit the offence of criminal misconduct,-
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official
- 18 - Cr. Appeal (SJ) No.407 of 2011 functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or
(d) if he, -
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
Explanation.- For the purpose of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.
(2) Any public servants who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine."
11. On behalf of the prosecution P.W.-1, Mritunjay Kumar has proved his complaint dated 11.07.2001, which is Exhibit-1, in which, he has stated that he had applied for Telephone Booth connection. When he met to Ajit Kumar Tigga, Clerk who made demand of Rs.2000/- from him. On 09.07.2001, he went to Ajit Kumar Tigga and asked him to process his application form who also got his form for the P.C.O. booth and xerox copy of certain certificates with him. Ajit Kumar Tigga took the form for P.C.O. connection filled by the complainant and also xerox copy of the certificate from the complainant, of which, no receipt was given to him and it was told by Ajit Kumar Tigga that he would not process his form till Rs.2000/- is paid. This written complaint was given by P.W.-1, Mritunjay Kumar to the
- 19 - Cr. Appeal (SJ) No.407 of 2011 Superintendent of Police, CBI, Dhanbad.
12. The Superintendent of Police, Dhanbad directed to his Personal Assistant to register his complaint and B.N. Roy, Inspector, CBI, Dhanbad was directed to verify and report.
13. On the complaint of P.W.-1, Mritunjay Kumar, verification report was submitted by P.W.-3, Baidyanath Roy on the very day i.e. on 11.07.2001, stating therein that he along with complainant went to Ajit Kumar Tigga, Clerk in Commercial Section of Telecom Department, Dhanbad. Ajit Kumar Tigga asked in regard to the introduction of him from the complainant and the complainant replied to Ajit Kumar Tigga that he is his uncle and in presence of P.W.-3, Baidyanath Roy who had posed himself to be the uncle of complainant and Rs.2000/- was paid to expedite the process of P.C.O. Booth connection. This verification report has been proved by P.W.-3, Baidyanath Roy and the same has been accepted, which is marked as Exhibit-4.
14. After verification report, the formal FIR was registered against Ajit Kumar Tigga which is registered as R.C. Case No.7 of 2001(D) under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988. This formal FIR was prepared by P.W.-12, B.K. Birdi, Inspector of Police, CBI, Dhanbad and this FIR has been proved by the prosecution witness and the same is marked as Exhibit-4. The investigation of this case was handed over to P.W.-12, B.K. Birdi, Inspector of Police, CBI, Dhanbad.
15. Thereafter, pre-trap proceeding was initiated, in which, the Superintendent of Police, CBI, Dhanbad had constituted a raiding team headed by P.W.-12, B.K. Birdi, A.K. Jha, B.N. Roy, R.P. Tiwary and Balram Prasad. The complainant P.W.-1, Mritunjay Kumar was also part of the raiding team. The complainant was introduced to all the members of
- 20 - Cr. Appeal (SJ) No.407 of 2011 raiding team. While preparing the pre-trap proceeding, practical demonstration was done by putting phenolphthalein powder on the piece of a paper. P.W.-4, Balram Prasad, who is one of the independent witness of the team asked to Ajit Kumar Tigga to touch that piece of paper, which he touched the same with right hand finger, thereafter, the solution of sodium carbonate with water was prepared in a clean glass bottle. P.W.-4, Balram Prasad was asked to dip his right-hand finger and the said milky white solution of sodium carbonate water changed into pink immediately and the pink colour solution was kept in a clean glass and was preserved the same after being corked and rapped in a piece of cloth.
16. Thereafter, the tainted piece of paper was also kept in a small size envelope, which was also sealed, after that, the complainant P.W.-1, Mritunjay Kumar was asked to produce the amount of Rs.2000/-. The number and denomination of those notes were noted, which were to be given to the accused Ajit Kumar Tigga in the office of G.M. BSNL, Dhanbad. The total G.C. Notes were 20 of Rs.100/- each, their number and denominations were mentioned and the instruction was also given that B.N. Roy will accompany the complainant because he had already been posed himself to be the uncle of complainant and two independent witnesses i.e. P.W.-2, Vani Bhushan Upadhyay and P.W.-4 Balram Prasad, both will be posted as shadow witnesses, who shall over hear the conversation between the complainant and the accused and the complainant was also asked to give the signal by scratching on his head so that the other members of team may reach immediately to the accused. This preliminary memorandum was prepared, which has been proved by the witnesses i.e. P.W.-2, Vani Bhushan Upadhyay; P.W.-3, Baidyanath Roy; P.W.-4, Balram Prasad; P.W.-12, B.K. Birdi and; P.W.-1, Mritunjay
- 21 - Cr. Appeal (SJ) No.407 of 2011 Kumar (the complainant), all have identified their respective signature on the preliminary memorandum and the same is marked Exhibit-2 on record.
17. Thereafter, the raiding team reached to the office of BSNL, Dhanbad in the Commercial Section where Ajit Kumar Tigga was found siting on the chair. P.W.-1, Mritunjay Kumar was accompanied by P.W.-3, Baidyanath Roy and as they reached to the accused Ajit Kumar Tigga, he asked him whether he has brought the amount of Rs.2000/-, on this, the complainant P.W.-1, Mritunjay Kumar replied in affirmative and he handed over 20 G.C. notes, on which, phenolphthalein powder had already applied. Ajit Kumar Tigga first of all asked him to count the same, complainant counted the same and, thereafter, he handed over the said amount in the hands of Ajit Kumar Tigga. Subsequently, Ajit Kumar Tigga placed that amount of Rs.2000/- in almirah, which was behind his chair. At the same time, P.W.-1, Mritunjay Kumar and P.W.-3, Baidyanath Roy both gave signal to all the members of Royding team, who immediately came there and nabbed the accused Ajit Kumar Tigga. Thereafter, the fingers of left and right hand of Ajit Kumar Tigga were dipped in the solution of sodium carbonate and as he dipped his finger, it turned into pink colour, the same was kept in the phial and the phial of the solution was sealed on the spot and the G.C. Notes of Rs.2000/- were also recovered from the almirah, the recovery memo of the same was also prepared. This post-trap proceeding is also proved by the prosecution witnesses i.e. P.W.-1, Mritunjay Kumar; P.W.-3, Baidyanath Roy; P.W.-2, Vani Bhushan Upadhyay; P.W.-4, Balram Prasad and; P.W.-12, B.K. Birdi. From the testimony of these witnesses, the demand and acceptance of Rs.2000/- as bribe money is proved. The demand and acceptance of Rs.2000/- was also seen and over heard by two independent
- 22 - Cr. Appeal (SJ) No.407 of 2011 witnesses i.e. P.W.-2, Vani Bhushan Upadhyay and P.W.-4, Balram Prasad, who have deposed that they had seen the accused making the bribe of G.C. Notes of Rs.2000/- and accepting the same.
17.1 P.W.-8, A.H. Zafri who was posted as Supervisor in Commercial Section of Telecom Department, Dhanbad. This witness has stated that on 12.07.2001 in his office, C.B.I. Officers came and nabbed the accused Ajit Kumar Tigga and from his almirah Rs.2000/- was recovered and this amount was kept in an envelope and certain files were also seized. On the seizure memo of the G.C. Notes and envelop, he put his signature and the envelop is marked as material exhibit-1, which was produced in the Court which bears signature of the accused. One file was also produced, which was recovered on that day, which is marked as material exhibit-2. He also says that he put his signature on the memo of recovery, which is exhibit-2. The demand note is in the sanction memo, which are in handwriting of Ajit Kumar Tigga, which is Exhibit-6. This file relates to the application of P.W.-1, Mritunjay Kumar for the connection of P.C.O. Booth. This witness also says that when both hands of the accused were dipped in a solution of sodium carbonate, from the first hand the colour was not changed but when the second hand was dipped the colour of water was changed into pink. This seizure memo is proved by the prosecution witness P.W.-10, Rajendra Prasad. Memorandum of recovery was also prepared, which is marked Exhibit-2. The prosecution witnesses i.e. P.W.1, Mritunjay Kumar; P.W.-2, Vani Bhushan Upadhyay; P.W.-3, Baidyanath Roy; P.W.-4, Balram Prasad and; P.W.-12 B.K. Birdi all have proved this recovery memo, who were the members of raiding team. P.W.-2 Vani Bhushan Upadhyay and P.W.- 4, Balram Prasad were the independent witnesses while rest of the witnesses were the Inspector of C.B.I., Dhanbad.
- 23 - Cr. Appeal (SJ) No.407 of 2011 17.2 The application form of complainant P.W.-1, Mritunjay Kumar was recovered from the office of the accused Ajit Kumar Tigga, the same has been proved as Exhibit-3 by P.W.-1, Mritunjay Kumar and the same is also proved by P.W.-12, B.K. Birdi, the Investigating Officer, therefore, the post-trap proceeding is well proved from the prosecution witnesses. 17.3 The FSL report is also proved by P.W.-9, Anil Kumar Srivastava, which is marked Exhibit-8. The conclusion of the same are that both phenolphthalein and sodium carbonate could be detected in contents of each of the exhibit marked 499/2001A, 499/2001B and 499/2001C respectively using suitable chemical tests and instrumental method of chemical analysis. The seal was also found intact on all the exhibits. As such, the FSL report also corroborates the prosecution case. 17.4 The three Judges Constitution Bench of Hon'ble Apex Court in the case of Neeraj Dutta vs. State (NCT of Delhi) reported in (2023) 4 SCC 731 at paragraphs 88, 93 and 94 has held as under:
"88. What emerges from the aforesaid discussion is summarised as under:
88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act. 88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact.
This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. 88.3. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
88.4. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe-giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand
- 24 - Cr. Appeal (SJ) No.407 of 2011 and the bribe-giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Sections 13(1)(d)(i) and
(ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe-
giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Sections 13(1)(d)(i) and (ii), respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe-giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe-giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d)(i) and (ii) of the Act.
88.5. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the court has the discretion to Royse a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands. 88.6. (f) In the event the complainant turns "hostile", or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
88.7. (g) Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to Royse a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be Roysed by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Sections 13(1)(d)(i) and (ii) of the Act.
88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature.
93. In this regard, we would like to reiterate what has been stated by this Court in Swatantar Singh v. State of Haryana "6. ... Corruption is corroding, like cancerous lymph nodes, the vital veins of the body politic, social fabric of efficiency in the
- 25 - Cr. Appeal (SJ) No.407 of 2011 public service and demoralising the honest officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post. The reputation of being corrupt would gather thick and unchaseable clouds around the conduct of the officer and gain notoriety much faster than the smoke."
94. The above has been reiterated in A.B. Bhaskara Rao v. CBI by quoting as under from State of M.P. v. Shambhu Dayal Nagar : (Shambhu Dayal Nagar case, SCC p. 701, para 32) "32. It is difficult to accept the prayer of the respondent that a lenient view be taken in this case. The corruption by public servants has become a gigantic problem. It has spread everywhere. No facet of public activity has been left unaffected by the stink of corruption. It has deep and pervasive impact on the functioning of the entire country. Large-scale corruption retards the nation-building activities and everyone has to suffer on that count."
17.5 The Hon'ble Apex Court in the case of K. Shanthamma versus State of Telangana reported in (2022) 4 SCC 574 at paragraphs 10 and 11 has held as under :
"10. We have given careful consideration to the submissions. We have perused the depositions of the prosecution witnesses. The offence under Section 7 of the PC Act relating to public servants taking bribe requires a demand of illegal gratification and the acceptance thereof. The proof of demand of bribe by a public servant and its acceptance by him is sine qua non for establishing the offence under Section 7 of the PC Act.
11. In P. Satyanarayana Murthy v. State of A.P, this Court has summarised the well-settled law on the subject in para 23 which reads thus :
"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder."
17.6 The Hon'ble Apex Court in the case of N.V. Subba Rao versus State through Inspector of Police, CBI/SPE, Visakhapatnam, Andhra Pradesh reported in (2013) 2 SCC 162 at paragraph 42 has held as under :
- 26 - Cr. Appeal (SJ) No.407 of 2011 "42. Insofar as the charge under Section 13(1)(d) read with Section 13(2) of the PC Act is concerned, the ingredients of that offence are viz.: (a) that the accused should be a public servant;
(b) that he should use some corrupt or illegal means or otherwise abuse his position as a public servant; (c) he should not have obtained a valuable thing or pecuniary advantage; and (d) for himself or any other person, and we have already noted the materials placed by the prosecution to substantiate the abovesaid offence."
17.7 Thereafter from the almirah, G.C. Notes were recovered and the recovery memo was prepared and the file was also recovered, in which, the application form of the complainant P.W.-3, Mritunjay Kumar and xerox copy of his certificates contained in a bag, the same was also taken into possession by the raiding team.
18. On behalf of the prosecution, sanction has also been proved by the prosecution witness i.e. P.W.-5, Pravir Kumar Ghosh. This witness has stated that on 26.12.2001, he was posted as General Manager, Dhanbad Circle. He had accorded the sanction for prosecution against Ajit Kumar Tigga the then Senior T.A.O., Commercial Section, Telecom Department, Dhanbad, he was competent to suspend the accused Ajit Kumar Tigga. After perusing the papers adduced on behalf of the CBI officers, he accorded sanction, which was typed by his Personal Assistant on his dictation, he identifies his signature thereon marked Exhibit-5. From perusal of the sanction order Exhibit-5, it is found that this order is in detail, in which, after having perused all the prosecution papers, the sanction has been accorded.
19. The learned counsel for the appellant has vehemently raised this plea that on the said date i.e. 11.07.2001 and 12.07.2001, the appellant-convict was on leave. The attendance register is also proved by the prosecution witness, which has also been adduced in evidence. Though in the attendance register signature of the appellant-convict is not found; yet
- 27 - Cr. Appeal (SJ) No.407 of 2011 all the members of raiding team of CBI and also the independent members and even P.W.-7, Jerome Tirky was posted in Commercial Section, Telecom Department, Dhanbad, who has stated that Ajit Kumar Tigga was also posted in his section on 12.07.2001. Ajit Kumar Tigga came late to the office on that day he was on leave. He has told that he had been called there. When Ajit Kumar Tigga was held then he came to know in regard to the occurrence. Though this witness was declared hostile by the prosecution; yet he has identified his signature on the recovery memo, which is marked Exhibit-2/82 to 2/90. Moreover, P.W.-8, A.H. Zafri, who was Section Supervisor in Commercial Section of G.M. Telecom Office, Dhanbad. While proving the application for connection of Telephone booth of the complainant, he has also proved the post-trap proceeding memo of recovery, which is marked Exhibit-2. This proves that even if there is no signature in the attendance register of the appellant- convict; yet he was present in the office on 11.07.2001 and 12.07.2001.
20. On the point of quantum of sentence, the learned counsel for the appellant has submitted that the appellant-convict has been facing the enquiry proceeding and trial since 2001 and also facing the appeal since 2011 and he has served out the sentence of two months, as such, contended to release the appellant on a period which he had served out in jail. 20.1 Per contra, learned ASGI appearing for the CBI has submitted that minimum sentence of the offence under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 is one year, as such, the appellant cannot be released on having served out the sentence.
21. From the impugned judgment of conviction and sentence, it transpires that the appellant was sentenced to undergo imprisonment of two years for the offence under Sections 7 and 13(2) read with 13(1)(d) of the
- 28 - Cr. Appeal (SJ) No.407 of 2011 Prevention of Corruption Act, 1988 and fine of Rs.5000/- under each Section and in default of payment of fine six months imprisonment was to undergo.
21.1 At the time of commission of offence in the year 2001, the offence under Section 7 of the Prevention of Corruption Act, 1988 was punishable with imprisonment, which shall not be less than six months but may extend to five years and was also liable to fine. The offence under Section 13 of the Prevention of Corruption Act, 1988 was punishable with imprisonment for a term which shall not be less than one year but which may extend to seven year and shall also liable to fine. 21.2 Obviously, the appellant has been facing trial since 2001 and, thereafter, he has been facing appeal since 2011 till date. The same is also one of the mitigating circumstances to reduce the sentence but the offence under Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 being punishable with minimum sentence of one year, the appellant cannot be released without having served out the minimum sentence of one year. Taking into consideration the fact that period of 23 years, which took in conclusion of the trial and further in conclusion of appeal and also taking into consideration the age of the appellant, who is now 65 years old, the sentence inflicted by the learned Trial Court is being reduced from two years to minimum one year, which is awarded for both the offences under Sections 7 and 13(2) read with 13(1)(d) of the P.C. Act, 1988.
21.3 The Hon'ble Apex Court in the case of SuRoyn Singh vs. State of Punjab reported in (2009) 4 SCC 331 at paragraphs 11 to 13 has held as under :-
"11. The High Court has analysed in great detail the evidence
- 29 - Cr. Appeal (SJ) No.407 of 2011 to show that the alleged animosity has not been established. Two witnesses, PWs 2 and 3 in detail had referred to the factual scenario and nothing discrepant has been brought on record to cast any doubt on the credibility of their evidence.
12. Day in and day out the gigantic problem of corruption in the public servants is on the increase.
"32. ... Large-scale corruption retards the nation-building activities and everyone has to suffer on that count. ... corruption is corroding, like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service and demoralising the honest officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post."
13. Considering the peculiar facts of the case, we are of the view that the custodial sentence of one year, which is minimum prescribed, would meet the ends of justice."
22. In view of the above analysis of evidence on record and the settled legal propositions of law as laid down by the Hon'ble Apex Court, this criminal appeal is partly allowed.
23. The impugned Judgment of Conviction dated 01.06.2011 passed by the learned Additional District & Sessions Judge-I-cum-Special Judge, C.B.I. Dhanbad in R.C. Case No.7/01(D) is affirmed and the Order of Sentence is hereby modified to the extent from 2 years to 1 year. The fine amount shall remain same as awarded by the learned Trial Court.
24. The appellant is on bail, his bail bonds are cancelled and he is directed to surrender before the learned trial court, who would send him jail to serve out the rest of the sentence.
25. Let the lower court's record be sent to the court concerned forthwith along with a copy of this judgment for necessary compliance.
(Subhash Chand, J.)
Jharkhand High Court, Ranchi
Dated: the 9th July, 2024
Madhav/-Rashmi/-N.A.F.R.
- 30 - Cr. Appeal (SJ) No.407 of 2011