Jharkhand High Court
S. N. Kumar @ Sahaja Nand Kumar Son Of Late ... vs State Of Bihar (C.B.I.) on 16 March, 2020
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 208 of 2014
S. N. Kumar @ Sahaja Nand Kumar son of Late Bangali
Gorain, resident of Quarter No. CD-184, Sector-III at
Dhurwa, P.O. Dhurwa, P.S. Dhurwa, District-Ranchi
... ... Appellant
Versus
State of Bihar (C.B.I.) ... ... Respondent
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellant : Mr. Anil Kumar, Senior Advocate Mr. Saurabh Shekhar, Advocate For the Respondent : Mr. Rohit Sinha, Advocate
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19/16.03.2020
1. Heard Mr. Anil Kumar, learned senior counsel appearing on behalf of the appellant along with Mr. Saurabh Shekhar, Advocate.
2. Heard Mr. Rohit Sinha, learned counsel appearing on behalf of the respondent-CBI.
3. This criminal appeal is directed against the judgment dated 19.11.1998 passed in R.C. Case No. 22/91 by the Special Judge, C.B.I., Ranchi whereby the appellant has been sentenced to undergo rigorous imprisonment for two years under Section 7 and 13(1)(d) of the Prevention of Corruption Act, 1988. The appellant has been further sentenced to pay a fine of Rs. 500/- on each count and in lieu thereof to serve sentence of simple imprisonment for one month separately. Both the sentences have been directed to run concurrently.
The prosecution Story
4. The prosecution story as per the F.IṚ and charge sheet is that the informant (P.W.-1) submitted a written complaint (Exhibit-2) before the Superintendent of Police, CBI, SPE, Ranchi mentioning that on 23.10.1991, one Telephone was installed at his 2 residence at Dhurwa, Ranchi. The telephone went out of order of 25.10.1991. As such, the informant contacted (appellant) J.T.O. South Zone, Dhurwa on 29.10.1991 to know the reasons, upon which the appellant demanded Rs. 500/- for giving line to the telephone. On refusal to pay the bribe, the appellant told that the informant will have to pay Rs. 500/- for regular functioning of the telephone. On 04.11.1991, the informant met the appellant at his office and requested him to restore the telephone line, but the appellant repeated the said demand. When the informant explained his inability to pay the amount, the appellant demanded Rs. 200/- as bribe and asked the informant to come to his residence on 06.11.1991 in the morning with the bribe money.
5. Further case of the prosecution is that pursuant to application for telephone connection dated 21.01.1991 and deposit of the requisite amount, Advice note dated 30.03.1991 was issued by the SDO, Phone (South), Ranchi to JTO Dhurwa for allotment of Telephone number and giving line. Thereafter the cable was laid and D.P. was erected and the appellant, who joined as JTO (Out-door) Dhurwa on 14.08.1991, issued Jumper Slip dated 23.10.91 for allotment of new telephone number and giving connection. On getting the said jumper slip, Sri Krishna Prasad, Technical Supervisor of the office of JTO (In-door) Dhurwa Ranchi, allotted Telephone No. 409544 and tested the line on 25.10.1991 for giving connection, but found A.C. induction on the line. Accordingly, he intimated the appellant for necessary action. The line was further tested by Sri Krishna Prasad on different dates till 06.11.1991 and the same defect was noticed even though Sri Krishna Prasad intimated the appellant about the fault after every testing. On 29.10.1991 the complainant personally contacted the appellant to know the reasons for non-functioning of his telephone, upon which, the appellant demanded Rs. 500/- as bribe for giving Telephone Line. The complainant again contacted the appellant on 04.11.91 3 and the appellant repeated the said demand. On refusal by the complainant to pay such amount, the appellant asked the complainant to pay at least Rs. 200/- as bribe for regular functioning of his telephone and asked the complainant to come with the bribe money on 06.11.1991 in the morning at his residence.
6. It is the case of the prosecution that since the complainant was not willing to pay the bribe, he lodged the complaint to S.P, CBI for necessary action and on the basis of the complaint dated 04.11.91, this case was registered as per orders of SP, CBI, SPE Ranchi. A trap party consisting of officers of CBI, Ranchi was constituted and the attendance of two independent witnesses was secured. The members of the trap party and the witnesses assembled in CBI office on 06.11.1991 at about 7.00 A.M. After preliminary introduction, the purpose was explained to them and the written complaint dated 04.11.91 was read over. The witnesses satisfied themselves about the genuineness of the complaint by putting certain questions to the complainant. A practical demonstration of the use of Phenolphthalein powder and its chemical reaction with the solution of Sodium Carbonate was given to the witnesses and the members of the trap party. The complainant then produced two GC notes of denomination of Rs. 100/- each, which he had brought, to be given to the appellant on demand as bribe. The notes were treated with phenolphthalein powder and given to the complainant with specific instruction to pay the same to the appellant only on his demand as bribe. The other pre-trap formalities were also observed and the members of the trap party and the witnesses were briefed for the action to be taken at the residence of the appellant and to overhear the conversation between the appellant and the complainant and to see the transaction regarding bribe money. It was decided that 4 the complainant would introduce Shadow witness, Sri Amal Deo Rai to the appellant as his munshi and he was to accompany the complainant. A pre-trap memorandum was also prepared which included the details of the currency notes to be used as bribe money. The trap party along with the complainant and the witnesses, reached the quarter of the appellant and took their respective position. The complainant along with the shadow witness, Sri Amal Deo Rai approached the appellant in his drawing room and introduced Sri Amal Deo Rai, as his Munshi. The other shadow witness Sri Lalan Giri took his position at the front Varandah of the Quarter behind the window. The complainant then asked the appellant in Hindi. "Kumar Sahib Kya Soche Mere Kam ke bare men". Upon this, the appellant replied."Apko to parso hi bata diya tha ki do Sau Rupaye Kharcha Karana Hoga Tabhi Phone Thik Hoga". The complainant then said "Thik hai Aapne Jaisa Kaha tha do Sau Rupaya Le Aya Hun." On hearing this the appellant asked the complainant to pay the bribe amount by saying "Thik hai Laiye"
and accordingly, the complainant paid the bribe amount of Rs. 200/- to the appellant which he accepted with his right hand and counted the amount to be Rs. 200/- by using his left hand also. Immediately after the appellant accepted the bribe amount, the trap party, on getting fixed signal, rushed to the drawing room of the appellant and the leader of the trap party, after disclosing his identity challenged the appellant for having demanded and accepted bribe of Rs. 200/- from the complainant which the appellant was still holding in his right hand. On being challenged, the appellant became nervous and admitted the same and could not render any explanation. The right and left hand fingers of the appellant were washed in two separate solutions of Sodium Carbonate prepared separately and on washing, the colour of the solution turned pink which 5 was preserved in separate bottles duly sealed and signed by all present. The number and denomination of the bribe amount were compared jointly by the witnesses with that mentioned in the pre-trap memorandum and the same tallied in toto. The bribe amount was also kept in an envelope duly sealed and signed by all present. It is alleged on the basis of investigation that the appellant, intentionally, and with ulterior motive to collect illegal gratification from the complainant, kept the matter pending and did not rectify the fault noticed in the line from 25.10.91 till 05.11.91, though he was intimated by the technical supervisor almost daily. The appellant was charge- sheeted under Section 7 and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988. The cognizance was taken on 01.04.1992 and charge was framed on 16.11.1992 and was explained to the appellant who pleaded not guilty and claimed to be tried.
7. It is the case of the prosecution that the necessary sanction order under Section 19(1)(a) of Prevention of Corruption Act, 1988 for prosecution of the appellant for the aforesaid offences and any other offence punishable under any other provisions of law in respect of acts aforesaid and for taking cognizance of the said offence by the court of competent jurisdiction was obtained from the authority competent to remove the appellant from service.
8. In support of the prosecution case, the prosecution produced altogether 13 witnesses and after recording of statements of the appellant under Section 313 of Cr.P.C and after hearing the counsel for the parties, the learned court below has convicted the appellant.
A. Submissions on behalf of the appellant
9. Learned counsel appearing on behalf of the appellant submits that the prosecution has not been able to prove the 6 demand of illegal gratification beyond the shadow of all reasonable doubts. He submits that there were two shadow witnesses P.W. 9 and P.W. 12 and in the evidence, it has come that they could not overhear any conversation between the appellant and the P.W-1. Accordingly, in the evidence on record, it is the solitary evidence of P.W. 1 (complainant) on the point of demand of illegal gratification by the appellant. He has also stated that 29.10.1991 was the first date when the P.W-1 had visited the appellant when demand of Rs. 500, as alleged to have been made by the appellant.
Thereafter, the second meeting of the P.W-1 with the appellant was on 04.11.1991, wherein the demand of illegal gratification was reduced to Rs. 200 and the 3rd demand of illegal gratification is alleged during trap itself. He submits that the P.W. 5 is the technical supervisor who has deposed in his chief that on four dates, he conducted repairing work regarding telephone line of the complainant i.e. on 25.10.1991, 31.10.1991, 05.11.1991 and 06.11.1991 and the line was rectified on 07.11.1991. Learned counsel has also submitted that complaint is dated 04.11.1991, but the trap is dated 06.11.1991.
He also refers to the evidence of P.W. 6 and submits that he was the temporary mazdoor, and although in his chief, he has stated that he had informed the appellant, that due to error, the telephone line was required to be rectified, but in his cross examination he has stated that he had examined the telephone line on 25.10.1991. He submitted that evidence of P.W.-6 is also sufficient to say that the prosecution has not been able to prove the demand of illegal gratification by the appellant beyond all reasonable doubts.
He submitted that aforesaid is coupled with the fact that there has been no verification/preliminary enquiry regarding 7 the complaint at the time of institution of the F.I.R. The appellant was working as a Junior Telecom Officer (J.T.O.). The learned counsel has relied upon the judgment passed by the Hon'ble Supreme Court reported in (2009) 6 SCC 587 (A. Subair vs. State of Kerela) and has referred to para 10 thereof to submit that in absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13(1)(d) of the Prevention of Corruption Act, 1988 cannot be held to have been established.
10. The learned counsel for the appellant submits that even the acceptance of bribe has not been proved by the prosecution beyond all reasonable doubts.
He has referred to the evidence of P.Ws.-1, 9 and 12 on the point. While referring to the evidence of P.W.-9, the learned counsel submits that he has stated that the tainted money has been recovered from the table, while P.W.-12 has stated that the recovery was made from the pocket of the appellant upon his search and P.W.-1 has stated that he gave Rs.200/- to the appellant which the appellant has taken in his hand and from his possession, the money was recovered. He submits that evidence of P.Ws.-9 and 12 and 1 are inconsistent and are contradictory to the extent that it creates a doubt regarding the recovery of the tainted money.
The learned counsel has also referred to a judgment passed by Hon'ble Supreme Court reported in (2014) 13 SCC 55 (B. Jayaraj vs. State of Andhra Pradesh) Para-7 and 9. The learned counsel submits that in Para-7 of the aforesaid judgment, it has been held that under Section 7 of Prevention of Corruption Act, 1988, unless it is proved beyond all reasonable doubts that the appellant voluntarily accepted the money knowing it to be bribe, the demand of illegal gratification cannot be said to have been established. He submits that it is a 8 settled proposition of law that demand of illegal gratification is a sine qua non to constitute an offence and mere recovery of currency notes cannot constitute the offence under Section 7 of the aforesaid Act of 1988. He has referred to para-9 of the aforesaid judgment to submit that presumption, permissible to be drawn under Section 20 of the aforesaid Act of 1988, can only be in respect of offence under Section 7 and not for the offences under Section 13(1)(d)(i)(ii) of the aforesaid Act, 1988. In any event, it is only upon the proof of acceptance of illegal gratification that the presumption can be drawn under Section 20 of the aforesaid Act of 1988 that such gratification was received for doing or forbearing to do any official act.
Proof of acceptance of illegal gratification can follow only if there is proof of such demand. He submits that as the proof of demand is lacking, therefore, consequently, proof of acceptance is also lacking.
The learned counsel submits that admittedly, there was no written complaint for the purposes of rectification of telephone line and therefore, in absence of there being any written complaint for rectification of telephone line, the acts and omissions on the part of the appellant cannot be said to be in discharge of his official duty and therefore, the provisions of Sections 7 and 13 of the Prevention of Corruption Act, 1988 are not at all attracted.
11. The learned counsel for the appellant has also argued that further point which is involved in this case is that there is no proper sanction for prosecution in the present case, in as much as, the sanctioning authority i.e. P.W.-7 has not stated in his evidence that he was the competent authority to grant sanction. He has referred to Para-4 of the cross-examination of P.W-7 to submit that the P.W.-7 has stated that presently, the Director was the competent authority to grant sanction, and his 9 deposition was recorded in 1995. He has further stated that at the relevant point of time, appointing authority was Deputy General Manager, and at the time of grant of sanction, nobody was working as Deputy General Manager. The learned counsel submits that in view of the fact that there is no specific averment made by the P.W.-7 that he was the competent authority to grant sanction for prosecution, therefore there is no proper sanction for prosecution.
12. The learned counsel for the appellant has submitted that in the present case, though the complaint was made by the P.W.-1, but the police officer immediately registered the case and the police officer was not only a part of the trap team, but was also the investigating officer of the case. He submits that in such circumstances, the investigating officer who was examined as P.W.-13 was an interested witness and such an investigation of the case by an interested witness has been deprecated by the Hon'ble Supreme Court in the judgment reported in AIR 2018 SC 3853 (Mohan Lal vs. State of Punjab) Para 14 and 25. B. Submissions on behalf of the opposite party (CBI)
13. In response, the learned counsel for the C.B.I. has submitted that as per the F.I.R., the information to the police regarding the alleged offence was given by the complainant i.e. P.W.-1 and the case was registered by the officer (P.W-13) who was also the investigating officer of the case as well as a member of the trap team. It is not a fact, as alleged by the learned counsel for the appellant, that the investigating officer was himself the complainant as was the fact in the case which decided by the Hon'ble Supreme Court in the judgment reported in AIR 2018 SC 3853 and relied upon by the appellant. The learned counsel has further submitted that there is no allegation of bias or malice or any indication of bias/ malice in the entire case record and accordingly, it cannot be said that the 10 investigating officer of the case was an interested witness or the investigation itself was not fair.
14. On the point of demand of illegal gratification by the appellant, the learned counsel for the C.B.I. has referred to the evidence of P.Ws.-5 and 6. He submits that in Para-6 of the evidence of P.W.-5, he has stated that after examining the line on various dates, the appellant was informed about the reason but in spite of such information, the high voltage of the line was not rectified. The learned counsel has also submitted that the appellant has argued that there was no written complaint regarding the fact that the telephone line was not working. With respect to the said argument, it is submitted by the learned counsel for the respondent that although no written complaint regarding telephone line has been exhibited on behalf of the prosecution, but the fact remains that grievance of the complainant (P.W-1) was being taken care of by the department as it has come in evidence that right from 25.10.1991 onwards, the telephone line of the complainant (P.W-1) was being attended by the authority of the telephone department. He submits that even P.W.-6 has stated that the factum about the error in the line was duly intimated to the appellant. The learned counsel has also submitted that from perusal of F.I.R., which records the complaint made by the P.W- 1 to CBI in verbatim, it has been clearly mentioned that the first demand of illegal gratification was made on 29.10.1991 and it has been stated by P.W-5 that on 25.10.1991 itself, he had examined the telephone line and has also stated in the evidence that he had informed the appellant regarding the problem in the line. P.W-1 has also stated that the second demand of illegal gratification was on 04.11.1991, and on 04.11.1991 also the telephone line of P.W-1 was examined by P.W.-5. He submits that there was all occasion for the appellant to demand illegal 11 gratification from the P.W-1 and accordingly, such demand was made not only on aforesaid dates, but also at the time of trap when the appellant was caught red handed with bribe money.
15. On the point of acceptance and recovery of the tainted money, the learned counsel for the C.B.I. has submitted that the factum about the signal being given by the P.W-1 immediately after handing over the bribe money to the appellant by shaking his hat is consistent evidence of all the witnesses of the trap and the appellant is raising a dispute as to whether the recovery was from the table or from the hands of the appellant. He submits that even if the recovery was from the table of the appellant or from his hands, it amounts to recovery from the possession of the appellant. The fact remains that both the hands of the appellant independently turned pink upon treatment with the solution of sodium carbonate in water which itself indicates that the appellant had touched the bribe money at the time of trap.
16. On the point of sanction for prosecution, the learned counsel for the C.B.I. submits that the sanction order has been marked as exhibit without any objection and the sanction order itself indicates that the P.W.-7 was the competent authority for grant of sanction and accordingly, he submits that there is appropriate sanction for prosecution of the appellant. C. Findings of this court Deposition of the prosecution witnesses
17. In support of the prosecution case the Opposite party C.B.I has produced altogether 13 witnesses.
i. P.W. 1 is the Informant/complainant.
P.W. 2 to 8 are the employees of the telephone department in which the appellant was working.12
ii. P.W.2. Sri T. Pandey, the Junior Telecom Officer, Dhurwa who made over charge to the appellant on 14.8.1991.
iii. P.W.3 Birendar Prasad the Senior S.D.O of P.N.T who has proved the demand note issued on the basis of the application of P.W.1 and thereafter, the advice note.
iv. P.W. 4 Manikant Sinha who has proved the transfer order and correction of the said transfer order vide Ext. 10 and 11. He has further proved another order dated 12.08.1991 as Ext. 12.
v. P.W.5 Krishna Prasad is the Technical Supervisor who tested the line connecting telephone no.409544 at the house of P.W.1.
vi. P.W.6 Chandrika Prasad Singh is the temporary labour who worked along with P.W.5 while testing the telephone line of P.W-1.
vii. P.W.7, B.P. Sinha, was posted as G.M. operation, Telecom Circle, Bihar on 12.11.91 and he accorded sanction for prosecution of the appellant vide Ext.13.
viii. P.W.8 B.N. Sinha is the formal witness.
ix. P.Ws. 9 and 12 are the Independent shadow witnesses in the trap team. They are employees of the C.C.L. x. P.W.11, Sanat Kumar Mukherjee is the Assistant Director, Central Forensic Sciences Laboratory, Hyderabad and is the Senior Scientific Officer, C.F.S.L. Calcutta who had tested the material exhibits sent to him for examination.
xi. P.W. 13, Narayan Jha, is the person who instituted the FIR on the complaint of the P.W-1, a member of 13 the trap team and also the Investigating officer of the case.
18. P.W-2 to 8 and 10 are the employees of the telephone department who have deposed about the procedure of the grant of telephone connection to the complainant, problem in connection with the phone line and the role of the appellant and P.W- 7 is the sanctioning authority who has granted sanction for prosecution for the appellant.
a. PW-2 (Tarkeshwar Pandey) is the Junior Telecom Officer, Dhurwa who had made over charge to the appellant on 14-08-1991. He proved the advice note dated 30.03.1991 on the application of PW-1 for a new telephone connection which has been marked as Exhibit-4. He proved Jumper slip dated 23.10.1991 issued by appellant as Exhibit-5 and has stated that the same is in the writing and signature of the appellant and the signature of the appellant on Exhibit-5 has been marked as Exhibit-6. In cross- examination, he has stated that the writing at the back of the exhibit-6 is that of P.W-5 and has stated that PW-5 from 25.10.91 to 06-11-1991 had reported in connection with the telephone line of the complainant that there is A.C. induction due to parallel overhead electricity line. He has stated that for the removal of the defect pointed out by Krishna Prasad, technical supervisor (P.W-5) coordination of the electricity department is required. b. PW-3 (Birendar Prasad), he has stated that in the month of July 1991, he was holding the post of S.D.O., Phone, South and Doranda, Kadru fell within his jurisdiction and at that point of time, he was assigned the work in connection with giving new telephone connection, telephone shifting and maintenance and junior telecom officer works under S.D.O. and the appellant was 14 working under him. He has narrated the entire procedure regarding the various memos and advices issued in connection with new telephone connection to the complainant and has inter alia, stated that jumper memo was issued under the signature of the appellant on 23.10.1991 which has been marked as exhibit. He has stated that the telephone connection could not be rectified till 6.11.1991 due to AC induction which happens when the electricity line and the telephone lines are nearby and this can be rectified with the help of electricity department which may take time.
c. PW-4 (Mani Kant Sinha) was posted as Divisional Engineer, Telephone. He has proved the transfer order and corrigendum of the transfer order as Exhibits-10 & 11 both relating to the appellant. In cross-examination, he has deposed that due to A.C. induction, the telephone connection cannot be corrected and in order to remove this defect, at times the subscriber takes steps with the electricity department in order to avoid delay. d. PW-5 (Krishna Prasad) was posted as Technical Supervisor, Telephone Exchange, Dhurwa who was supposed to test the line connecting the telephone at the house of the complainant. He has also narrated the entire procedure of giving new telephone connection to the complainant. He has deposed that jumper slip was issued by the appellant and this witness was directed to test the telephone line of the complainant. This witness had tested the telephone line of the complainant on 25-10-1991, 31- 10-1991, 05-11-1991 and 06-11-1991 who found AC induction high voltage on the line and the test reports were intimated to the appellant and printout of the test reports marked as Exhibits-X to X/7, but inspite of that 15 the A.C. induction high voltage was not removed. He has stated that the phone connection of the complainant could be restored on 07.11.1991.
In cross-examination, he admitted that the defect pointed out by him was required to be removed by the appellant. The telephone connection given to the Informant had remained dormant from 25-10-1991 to 06-11-1991. He has stated that the phone connection of the complainant could be rectified on 07.11.1991 due to reduction in electric induction.
e. PW-6 (Chandrika Prasad Singh) was working as a temporary Labourer in Telecom Department, Dhurwa alongwith PW-5. He has also supported the prosecution case. In cross-examination, he deposed that the defect was detected on 25-10-1991 and he had also asked the appellant to remove the defect in the telephone connection of the complainant.
f. PW-7 (B.P. Sinha) - He was holding the post of Chief General Manager, Telecom Department, Bihar on 12-11- 1991. He accorded sanction for prosecution (Exhibit-13) of the appellant. He has stated that the sanction order was typed by his senior P. A, B.N. Sinha (P.W- 8). In his cross- examination, he has stated that he had received the file in connection with the sanction for prosecution of the appellant and no person from CBI had come to brief him and he could not recollect the names of the various witnesses. He has stated that at present, the appointing authority of JTO (Junior Telecom officer) is the Director. Earlier he was posted as Deputy General Manager who was the appointing authority of JTO and at the time of grant of sanction, no one was posted as Deputy General Manager.16
g. PW-8 (B.N. Sinha) is Senior P.A in the telephone department and a formal tendered witness who appeared for cross examination. He has simply deposed that he had come upon receiving summons.
h. P.W- 10 (Manmohan Singh ) has deposed that he was posted as General Manager, Ranchi, Telephones in the year 1990-91 and is a formal witness who has stated that the appellant had given his joining in Dhurwa as JTO on 14.08.1991 and has supported the case of the prosecution by stating that the appellant was caught while taking bribe.
19. From perusal of the evidence of the aforesaid witnesses, this Court finds that it is not in dispute that the appellant was posted and working as JTO (Junior Telecom officer), Dhurwa area of Ranchi with effect from 14.08.1991. It is also not in dispute that the complainant (P.W-1) had applied for a new telephone connection for which required payments were made by the complainant and the advice note dated 30.03.1991 for a new telephone connection was also issued. Thereafter, Jumper slip dated 23.10.1991 was issued by the appellant. It has been proved beyond all reasonable doubt, with particular reference of the evidence of P.W- 2 and 5 that PW-5, from 25.10.91 to 06- 11-1991, had reported in connection with the telephone line of the complainant that there is A.C. induction due to parallel overhead electricity line and that P.W-5 had tested the telephone line of the complainant on 25-10-1991, 31-10-1991, 05- 11-1991 and 06-11-1991 and found AC induction high voltage on the line and the test reports were intimated to the appellant and printouts of the test reports are marked as Exhibits-X to X/7, but in spite of that the A.C. induction high voltage was not removed. It is also proved on the basis of aforesaid evidences on record that the phone connection of the complainant could 17 be restored on 07.11.1991. So far as the evidence of P.W-6 is concerned, he being a temporary mazdoor has supported the fact of testing of the line done on 25.10.1991 and he had reported the error in the telephone line of the complainant to the appellant. He has not said anything about the testing done on other dates. This Court is of the considered view that the evidence of the P.W-6 supports the case of the prosecution and merely because he has not said anything about testing on other dates, though stated by P.W-5, it does not create any doubt in the prosecution case and accordingly the arguments on behalf of the appellant on this point is hereby rejected. Thus, this Court finds that the matter regarding testing the line and detection of the error was reported to the appellant who was to take steps for rectification of the line. Merely because it has come in evidence that the coordination of the electricity department was required and could take some time, it does not create any doubt in the prosecution case that the appellant was duly intimated about the problem in the telephone line on repeated dates and it was for him to take appropriate steps for rectification of the telephone line of the complainant.
The appellant has raised a point that there was no complaint in the writing given by the complainant to the telephone department and in absence of such complaint, the acts or omissions on the part of the appellant cannot be said to be in discharge of his official duty. This Court is of the considered view that such plea has no legs to stand, in as much as, it is not in dispute that the defective telephone line containing the aforesaid technical defect was being attended to by the telephone department through its technical persons right from 25.10.1991 and in such circumstances, absence of any written complaint by the P.W.-1, has no bearing in this case. The fact remains that the matter was within the jurisdiction of 18 the appellant and he was fully aware of the problem in the telephone line of the P.W.-1 which was required to be rectified.
20. P.Ws-1, 9, 11, 12 and 13 are the witnesses in relation to the trap of the appellant while demanding and accepting illegal gratification of Rs.200/- from the P.W-1 for correcting the telephone line of the P.W-1.
A. The P.W.-1 (Arvind Kr. Singh) is the complainant. He has stated that since the year 1990, he is an Advocate at Ranchi Bench and had applied for telephone connection in the year 1989. The application dated 29.01.1989 has been marked as Ext.-
1. He has further stated that he was allotted the telephone number-409544 and immediately after two days i.e. on 23.11.1991, the telephone line started functioning.
The learned counsel for the appellant has submitted that the date 23.11.1991 has been wrongly mentioned, it ought to have been 23.10.1991. This is apparent from the subsequent statement where P.W-1 has stated that the telephone was out of order on 25.10.1991. This submission appears to be correct and is accepted by this court.
The P.W.-1 has further stated that on 25.10.1991, the telephone was out of order and accordingly, on 29.10.1991, he approached the appellant and upon being approached, the appellant asked P.W-1 to make payment of Rs. 500/- to ensure that his telephone line is restored. Upon this, P.W-1 expressed his inability to pay Rs. 500/- and again on 04.11.1991, he requested the appellant to rectify the telephone line upon which the appellant said that at least Rs.200/- has to be paid to him to ensure proper functioning of the telephone.
Since P.W.-1 did not want to give bribe to the appellant, he approached the C.B.I. Office and lodged a complaint. The complaint filed in the C.B.I. Office has been exhibited as Ext.-2. P.W-1 has stated that he was called in the C.B.I. Office on 19 06.11.1991 and when he went to C.B.I. Office and met the Superintendent of Police, he was asked to meet Shri N. Jha, Deputy Superintendent of Police, who was a member of the trap party. During the meeting, two independent witnesses, who were the employees of C.C.L., were also present. The P.W- 1 was enquired about the written complaint which he explained in presence of the witnesses and thereafter, Shri N. Jha asked P.W-1 to give Rs. 200/- for the purposes of treating the same with 'Phenolphthalein Powder' and was told that only this money has to be given to the appellant on demand. Accordingly, the P.W-1 gave Rs. 200/-, upon which Phenolphthalein Powder was applied and was returned to P.W-1 with an instruction that only this money has to be given to the appellant. P.W.-1 has also stated that a practical demonstration was done and a memorandum was prepared on which everyone had put their signatures. P.W-1 has stated that during practical demonstration, a small piece of paper was treated with 'Phenolphthalein Powder', touched by the witness and when the piece of paper was dipped in the solution, it turned pink and the pink solution was kept in a bottle and was sealed and signed by everyone, the paper was also kept in an envelope which was also sealed and signed by everyone. The bottle has been marked as Material Ext.-I, the said envelope has been marked as Material Ext.-II. So far as the remaining powder is concerned, that was also kept in an envelope and it was marked as Material Ext.-III, on which also everyone had put their signatures. He has further stated that the pre-trap memorandum was also prepared which was exhibited and marked as Ext.-3, on which, he along with everyone had put their signatures.
He has further stated that he was instructed in the C.B.I. Office that one of the witnesses would accompany him as his 20 Munsi and then as soon as the appellant would accept the money, the P.W-1 would make the signal upon which the appellant would be caught by the members of the trap party. Then they went to the premises of State Bank in Dhurwa and from there one of the witnesses, who was to act as his Munshi accompanied him and they proceeded to the house of the appellant and the other members of the trap party stood outside the house of the appellant. Upon being knocked, the appellant opened the door and P.W-1 informed the appellant that the person accompanying him is his munshi who was standing at the door. Upon this, the appellant asked P.W-1 as to whether he has brought the money or not, to which the P.W-1 answered that he has brought the money and handed over Rs. 200/- to the appellant which he took in his hand and thereafter, the complainant gave the signal to the trap team. Upon his signal, the members of the trap team entered into the house and caught hold of the appellant. Thereafter, the people gathered on the spot and he has stated that the post-trap demonstration could not take place and thereafter, the amount of Rs. 200/- was kept in an envelope which was sealed in the house of the appellant itself. In further examination-in chief, the P.W-1 has stated that he had put his signature on the envelope in which Rs. 200/- was sealed that was marked as Material Ext.-IV. The envelope was torn in the court and Rs. 200/- was taken out and he has stated that it was this money which was recovered from possession of the appellant and the tainted money has been exhibited and marked as Material Ext.-V & V/1. The P.W-1 has identified the appellant in the court. He has also stated that the hands of the appellant were dipped in separate solutions which turned pink and the solutions in connection with both the hands of the appellant were sealed in two different bottles, in which, P.W-1 had put his signature and these two bottles 21 have been marked as Material Ext.-VI and VII. He has stated that as large number of people had gathered in the house, the C.B.I. team took the appellant in the Office of the C.B.I. and the P.W-1 also went to the office of CBI where the memorandum was prepared and upon reading it, P.W-1 and others signed the memorandum, the post trap memorandum was marked as Ext.- 3/1. He has also stated that a copy of the memorandum was also handed over to the appellant, in which, the appellant had also put his signature and had mentioned "received".
During the cross-examination, P.W.-1 has stated that the appellant had initially asked a bribe money of Rs. 500/-, but P.W-1 said that he was not in a position to give Rs. 500/-. Thereafter, the appellant had asked him to make a payment of Rs. 200/- for the purposes of rectification of the telephone line and when he realized that the appellant was asking for bribe money, he approached the C.B.I. Office and lodged the F.I.R. as he did not want to give bribe money to the appellant. He has also stated that on the date of incident, the P.W-1 had gone to the house of the appellant and upon demand, he gave the money to the appellant. He has also stated in his cross- examination that he did not make any written complaint regarding the fact that his telephone line was not working. He has stated that he did not know the appellant before and when he had gone to the telephonic department, he could not meet the appellant at that point of time. However, the workman in the telephone department had informed him about the address of the appellant and P.W-1 went to the house of the appellant on 03.11.1991 and was not accompanied with anybody on which day the appellant demanded the bribe amount of Rs.500/- and when he went again on 04.11.1991, the appellant demanded an amount of Rs.200/- and on this date also, he went alone.
22B. P.W. 9 (Amal deo Roy) is a member of the trap team and a shadow witness. He has stated that in the year 1991-92, he was posted as guard in Central Coalfields Limited, Darbhanga House, Ranchi and his higher authority has asked him to meet D.P. Jha, Controlling Authority. Sri D.P. Jha had asked him to report in the office of the Central Bureau of Investigation at 7 O' clock in the morning on 06.11.1991 pursuant to which he appeared in the CBI office, and in the CBI office, he met Sri N. Jha, Deputy Superintendent, Sri D.B. Singh, Director, Sri R.P. Tiwary and D. N. Singh, Lalan Giri and A.K. Singh (Complainant) and being introduced, he was shown the complaint's letter and also powder. He has stated that as per the complaint, the appellant was demanding an amount of Rs. 200/- to rectify the telephone line of the complainant, Sri A.K. Singh. Thereafter he has explained the pre- trap demonstration and he has stated that a piece of paper was taken which was treated with Phenolphthalein powder and upon being dipped in the solution, it turned pink and the pink solution was put in a bottle and sealed and which was duly signed by everyone and the piece of paper was kept in an envelope on which they have also signed. The said exhibits have already been marked as Material Exhibit-I and II and this witness has exhibited his signatures on the said material exhibits. He has also stated that the remaining power was put in an envelope already marked as Material Exhibit-III and he has exhibited his signature on the same. He has stated about preparation of pre-trap memorandum. He has stated that the everyone were searched and were asked to keep only I-Card and a pen and he was asked to remain with the P.W-1 in the capacity of a Munshi and to hear the conversation between the P.W-1 and the appellant. He has also stated that the complainant Sri A.K. Singh was instructed that the money is to be handed over to the appellant 23 only on demand and immediately after payment of money, he has to give signal by shaking his hat so that the CBI officers could take steps for the trap. Thereafter, all along with the officers of CBI went to the house of the appellant in a car and Sri A.K. Singh (complainant) knocked at the door. The P.W-1 asked the appellant as to what happened to his work and upon this the P.W-1 was told that as per conversation on the day before the previous day, the P.W-1 will have to give an amount of Rs. 200/- upon which the P.W-1 gave the amount to the appellant who counted the money and the P.W-1 shook his hat as the signal. Upon this, the CBI team entered the house of the appellant and caught the appellant with the bribe money. Both the hands of the appellant were separately treated with the solutions of sodium carbonate which turned pink and were kept in two separate bottles which were signed by everyone and he has exhibited his signatures on the material exhibits. This witness has further stated that thereafter, the body of the appellant was searched and tainted money of Rs. 200/- in denomination of Rs. 100 was recovered from the table on which it was kept, which tallied with the number of notes which was mentioned in pre-trap memorandum. He has stated that tainted money was put in an envelope and everybody had put their signatures on the envelope and he has exhibited his signature. The tainted money as well as envelope has already been marked and exhibited. He has also stated that thereafter, the appellant was taken to the CBI office where the post trap memorandum was prepared and it was explained and he thereafter put his signature on the same. He has identified the appellant in court.
In his cross-examination, he has stated in Para-14 of his evidence that he was standing at verandah when the complainant entered into the room of the appellant and he 24 entered into the room only after signal was made by the P.W-1 and at that point of time, the bribe money was kept on the table. He has also stated that the CBI officer never asked the appellant to count the money and hand it over to them. He has stated that he could not hear the conversation between the appellant and the complainant which had taken place prior to the incident. He has further stated that recovered money was put in an envelope which was sealed in presence of the appellant in his house itself. He has denied the suggestion regarding giving of any false evidence before the court. C. P.W.-12 (Lalan Giri) is also a shadow witness and an employee of Central Coalfields Limited (CCL) who had accompanied the trap team. His version is almost similar to that of other shadow witness i.e. P.W.-9. He has fully supported the prosecution case. He has stated that he went to the Office of C.B.I. on 06.11.1991 under the instructions of his superior officer. When he reached the office of C.B.I., he met with various officers and also the complainant. He has also stated that during interaction with the complainant, he was shown the complaint and was told about the illegal gratification being demanded by the appellant amounting to Rs. 200/- for the telephone connection. He has described the pre-trap demonstration, he has exhibited his signatures on pre-trap material exhibits, he has stated about pre-trap memorandum and exhibited his signature on the same. He has mentioned that it was also explained to the complainant that after the appellant receives the tainted money, signal was to be made by the P.W-1 by shaking his hat. He has stated that P.W.-9 was asked to remain with the P.W-1, as his munshi during the trap and the P.W-1 was asked to give the money to the appellant only on demand. He has stated that every one proceeded to the house of the appellant and P.W-9 and P.W-1 went together and P.W-1 25 knocked at the door of the appellant and others took their position and this witness was standing near the verandah. He has stated that P.W-1 asked as to whether work has been done or not, upon which the appellant said that Rs.200 was to be paid. Thereafter, the P.W-1 handed over Rs.200/- to the appellant which was accepted by the appellant by his right hand and counted the same and thereafter, the P.W-1 came out and shook his hat. Upon receiving the signal, others immediately entered the room. He has stated that the appellant was caught, his hands were dipped in the solution which turned pink and the money was recovered from his possession when he was searched which tallied exactly with the pre-trap memorandum and was tallied by P.W-9. He has exhibited his signatures on the post trap material exhibits as well as on the post trap the memorandum. In his cross-examination at Para- 17, he has stated that he came to know about taking and giving of the money only after the P.W-1 made signal and has also stated that when he entered the room, he saw that the money was kept on the table from where it was recovered. This witness could not further give any details about the number of tables and other articles which were present in the room. This shadow witness neither heard the conversation between the appellant and the P.W-1, nor seen the transaction of money between the appellant and the P.W-1 during the trap, but he has fully supported the prosecution case.
D. So far as the evidence of P.W.-13 (Narayan Jha) is concerned, he has stated that on 04.11.1991, he was posted in Ranchi Branch of C.B.I. Office and he had registered the F.I.R under the instructions of Superintendent of Police, C.B.I. and at that point of time, the appellant was posted as Junior Telecom Officer at Dhurwa and the complainant was an Advocate. He has referred to the complaint made by the complainant on 26 04.11.1991 and the allegations made therein. He has also referred to Ext.-1 which was already marked. The Investigating Officer has stated that on 23.10.1991, the telephone was installed in the house of the complainant, but it was not working till 25.10.1991. He has also stated that on 29.10.1991, the complainant had met the appellant with a request to rectify the telephone line, but the appellant had asked a bribe amount of Rs. 500/-. Thereafter, on 04.11.1991, the complainant again met the appellant and at that point of time, the appellant had asked a bribe amount of Rs. 200/- and the appellant had asked the complainant to give the money to him on 06.11.1991 in his house. This witness has stated that when the trap team met, upon interaction with the complainant, the allegation against the appellant appeared to be true. This witness has further stated that pursuant to lodging of the F.I.R. on 04.11.1991 in order to constitute a trap team, he had arranged for two independent witnesses from the Office of C.C.L. He has also stated that they were instructed to come to the C.B.I. Office at 7 o'clock in the morning on 06.11.1991 and the entire C.B.I. team was present, when they approached the C.B.I. on 06.11.1991 including the complainant. This witness has further stated that during the interaction with the complainant on 06.11.1991, the entire fact was explained to the trap team and the pre-trap demonstration was also conducted. He has narrated about the pre-trap demonstration in the same manner as has been done by the other witnesses as aforesaid. He has also referred to the material exhibits which were already marked and has also referred to his signature on the material exhibits. This witness has also stated that necessary instructions were given to the members of the trap team and one shadow witness was instructed to accompany P.W-1 and hear the conversation regarding the transaction of money by P.W-1 to the appellant 27 and the other shadow witness was also instructed to remain in the vicinity. The entire team proceeded after washing the hands and the hand wash was marked as exhibit containing the signatures of all the concerned witnesses. The pre-trap memorandum was also prepared. This witness has also deposed about the fact that the entire team went to the house of the appellant and they took their respective positions as per the instructions. In Para-18 he has submitted that he could not hear the conversation between the appellant and the complainant. In para-20, the investigating officer has stated that he had seen the bribe money on the hand of the appellant and he had not asked the appellant to keep the money on the table, but the appellant himself had kept the money on the table. This witness has also given full description of the entire trap and his evidence is consistent with other witnesses.
E. P.W.11, Sanat Kumar Mukhopadhya is the Assistant Director Central Forensic Sciences Laboratory, Hyderabad and was posted as Senior Scientific Officer, C.F.S.L. Calcutta in the year 1991. He has examined three washes vide Material Exts.-I, VI and VII which were sent to him by C.B.I and he has reported that all the three bottles containing pink solution marked A, B and C were examined by him chemically and found to contain phenolphthalein and sodium carbonate contents. He has proved his report as Ext.-16. He identified those three bottles already proved as material Exts.-I, VI and VII along with his signatures on them which were marked as Ext.-I/1, VI/2 and VII/3 respectively. No arguments have been advanced on behalf of the appellant in connection with the evidence of this witness.
21. This Court finds that the P.W-1 has fully supported the case right from the stage of demand, filing of FIR, pre-trap procedures including preparation of pre-trap memorandum, 28 presence of two independent witnesses as shadow witnesses in the trap team, his interaction with the trap team members regarding demand of illegal gratification by the appellant to rectify the telephone line, the procedure of trap, payment of illegal gratification of Rs.200/- to the appellant upon demand made by the appellant, the appellant being caught red handed with the bribe money by the trap team, post trap procedures including preparation of post trap memorandum, a copy of which was handed over to the appellant also. This Court further finds that neither any arguments have been advanced, nor there is any material on record to show any malice of the complainant or any of the members of the trap team against the appellant and in fact, the evidence on record shows that the complainant had met the appellant for the first time on 29-10- 1991 in connection with the rectification of error in the telephone connection. There is no material on record to create any doubt regarding the veracity, genuineness and correctness of the evidence of this witness.
So far as the evidence of the two independent witnesses P.W.-9 and 12 are concerned, they have also fully supported the prosecution case right from the stage of interaction with the complainant on 6.11.1991 when they had interacted with the complainant in presence of the trap team particularly P.W-13 which enabled them to be satisfied with the correctness of the complaint made by the P.W-1 against the appellant. They have also supported the prosecution case at the various stages of the trap and there are no material contradictions. However, during their cross-examination, regarding hearing the conversation between the appellant and the P.W-1, they have stated that they could not hear the conversation between them. This Court is of the considered view that this aspect of the matter also does not create any doubt in the prosecution case as they have fully 29 supported the prosecution case on all other aspects of the matter coupled with the fact that P.W-1 has fully supported the prosecution case and there is no doubt on the correctness of the evidence of the P.W-1. This Court is of the considered view that the evidence of P.W-1 cannot be discarded only because he is the complainant. Further, P.W-13, who had instituted the FIR upon receiving the complaint and was the investigating officer of the case, has also fully supported the prosecution case.
The aforesaid witnesses have fully supported the fact that the hands of the appellant turned pink when dipped in the sodium carbonate solution and the money recovered from him tallied with the details mentioned in the pre-trap memorandum.
The appellant has referred to the evidences to submit that one of the witnesses has stated that the money was recovered from the hands of the appellant, other has stated that it was recovered from the table and the third has stated that it was recovered from the appellant. This aspect of the matter is clarified from the evidence of P.W-13 who in Para-20 has stated that he had seen the bribe money on the hand of the appellant and he had not asked the appellant to keep the money on the table, but the appellant had himself kept the money on the table. This Court is of the considered view that the recovery of tainted money from the hands of the appellant or from the table kept in the room of the appellant makes no difference when both the hands of the appellant turned pink when separately treated with the sodium carbonate solution which proves beyond all reasonable doubt that the bribe money was touched by the appellant by both the hands and recovery was from his possession within the room itself.
22. In his examination under Section 313 of Code of Criminal Procedure, this Court finds that a specific question was put to 30 the appellant that it has come in evidence of P.Ws.-1, 9, 12, and 13 that the appellant was caught red handed by the members of the trap team while demanding and accepting of a sum of Rs. 200/- as bribe from the complainant (P.W.-1) at his house for rectifying defects/giving lines to the telephone of the complainant, what had he to say in this connection.
In response to this query, the appellant has stated that this is not factually correct. He has further stated that on that particular day, he had not demanded any money in the alleged manner. He has also stated that the complainant had kept the money on his table in his house and the C.B.I. officials had recovered that money.
In another question i.e. Question No.-7, a specific query was put to the appellant that it has come in the evidence of P.W. Nos. 1, 9, 12, and 13 that the appellant has received the said bribe money from his right hand and seized by the trap team, what had he to say in this connection.
In response to this query, the appellant has stated that this is not correct to say that he had taken the money from the complainant by his right hand and kept the money on the table and the same was recovered by the C.B.I. officials. He has stated that the C.B.I. officials had forcibly asked him to pick up the money and thereafter, he had picked up the money with his both hands and then his hands were washed. He continues to state that he had neither willingly demanded money, nor accepted the same and that he is not guilty.
It is not in dispute that the appellant did not lead any defence witness, and in his Question No. 10 under Section 313 of Cr.P.C, as to whether he wants to lead any defence witness, he has categorically stated that he does not want to examine any defence witness and his Advocate would argue the case.
3123. This Court finds that the explanation given by the appellant in his statement under Section 313 Cr.P.C alleging that the P.W-1 had kept the money on his table and the officials of the CBI had forced him to pick the money which he picked up by both the hands is ex-facie not acceptable particularly because no malice has been alleged against any person and admittedly, all happened in presence of the two independent shadow witnesses who have fully supported the case of the prosecution on the point of recovery of the tainted money from the possession of the appellant.
24. The learned counsel for the appellant has submitted that P.W.13 registered the case on 04.11.1991 itself without making any verification about the correctness of the allegation made against the appellant and has further raised objection that the person who had instituted the F.I.R could not have been an investigating officer himself. For this, he has relied upon the judgment passed by the Hon'ble Supreme Court reported in AIR 2018 SC 3853.
This Court finds that so far as verification regarding the complaint is concerned, it has come in the evidence of P.W.9 and P.W. 12 read with the evidence of P.W.13 that there was clear interaction and a conversation prior to proceeding with the trap of the appellant and the aforesaid three persons were fully satisfied regarding the correctness of the allegations made by the P.W.1 against the appellant. Accordingly, even if prior to institution of the F.I.R on the complaint made by P.W.1, the P.W.13 who instituted the F.I.R did not make any additional verification, the same has no bearing under the facts and circumstances of this case and it does not help the appellant in any manner whatsoever. There can be no doubt on the basis of materials on record, that the P.W.13 along with trap team was fully convinced about the correctness of the allegations made 32 by the P.W.1 against the appellant and accordingly, aforesaid plea of the appellant regarding verification of the complaint, is hereby rejected.
So far as the plea that the appellant P.W.13 who had registered the case could not have been the investigating officer of the case and the reliance of the appellant in the judgment reported in AIR 2018 SC 3853 (Mohan Lal Vs. State of Punjab) are concerned, this Court finds that in the said judgment , the police officer who had investigated the case was himself the informant of the case and after registering the case, he proceeded with the investigation. In this background, it was held by the Hon'ble Supreme Court that in a criminal prosecution, there is an obligation cast on the investigator not only to be fair, judicious and just during investigation, but also that the investigation on the face of it must appear to be so. This Court finds that the facts of the present case are totally different. In the instant case, P.W.-13 is not the informant of the case and the case was instituted by P.W.-13 only when the informant of the case i.e., P.W.1 had approached the C.B.I with a written complaint. The appellant has neither made any argument, nor there is any material on record to suggest any malice or any bias on any of the members of the trap team or shadow witnesses of the trap team or against the complainant i.e., P.W.-1, to show that there was any strained relationship or any point of bias against the appellant vis a vis any of the aforesaid persons in the trap team. In such circumstances, the aforesaid judgment, does not help the appellant in any manner whatsoever.
25. So far as sanction for prosecution is concerned, this Court finds that the same has been exhibited without any objection from the side of the appellant and this Court fully agrees with the arguments of the opposite party that the sanction order 33 itself indicates that the P.W.-7 was the competent authority for grant of sanction and this Court finds that there is no contrary evidence on record. The P.W-7 has stated that the relevant records were placed before him for the purposes of grant of sanction for prosecution of the appellant. Accordingly, this Court is of the considered view that there is appropriate sanction for prosecution of the appellant granted by the P.W-7.
26. Thus, from the evidences on record, this Court is of the considered view that the basic ingredients of a trap case i.e. demand of money by way of illegal gratification, its acceptance and recovery from the possession of the appellant are fully established against the appellant beyond all reasonable doubts to sustain the conviction and sentence of the appellant passed by the learned court below.
FINDINGS OF THE LEARNED TRIAL COURT
27. After considering the materials on record, the learned court below has held as follows in Para-14 of the impugned judgement: -
"14. I have gone through the entire evidence on record minutely. It appears that the appellant Sri Kumar was incharge J.T.O, Dhurwa Area of Ranchi and the telephone connection provided to the complainant (P.W.1) was not functioning right from the date when it was installed. It is also apparent from the record that the telephone line has got some defect which was reported by the technical supervisor and the line-man. P.W.5 and 6 on 25.10.1991 itself that the line has got high voltage A.C induction which was required to be removed by the J.T.O concerned. The appellant has not denied that he was approached by P.W.1 to rectify the defect although it was suggested that no such written complain was filed. On information of such defects when the telephone connection was just made and it did not function the J.T.O incharge was supposed to ensure that the connection actually function in all such cases. The evidence of P.W.5 and 6 further shows that the appellant was informed of the defect which could be removed till the raid was conducted. In this background when the evidence of P.W.1 is scrutinized it appears most probable that he met with appellant and requested him to remove the defect 34 as alleged on 29.10.1991. It further was stated that he further met him on 4.11.1991 and being refused to rectify the defect unless illegal amount was paid to appellant because there is no evidence on the record to show that what step the appellant took on report of defect in the line to remove it right from 25.10.1991 till 6.11.1991. The version of P.W.1 is supported by his written complaint dated 4.11.91. It is also clear from the facts on the record why the complainant (P.W.1) should falsely implicate the appellant if he actually did not demand the money for rectification of the defect. It is proved from facts on the record that P.W.9, 12 and 13 have personally inquired from P.W.1 regarding the complaint and on being satisfied that actually such demand was made by the appellant, the trap was laid. The evidence on the record further shows that Rs.200/- in two currency notes of Rs.100/- denomination having similar number as noted in pre-trap memorandum Ext.3 was recovered from the room of the appellant by the raiding party which are material Exts. V and V/1. The recovery of these two notes is not denied even by the defence. However, explanation was given that the complainant voluntarily kept these two notes on the table before the raiding party invaded the house. I find that the explanation is not acceptable particularly in the fact of the eases that these two notes were previously noted by the raiding party in C.B.I office vide Ext.3 and before that the complainant has made a written complain in this context. It is also most unlikely that the complainant should go to the house of the appellant without being asked by him to provide the money for rectification of the defects. In such circumstances, I find and hold that the recovery or the tainted money from the possession of the appellant is proved beyond doubts by the prosecution in the manner alleged which was not legal remuneration for any official act supposed to be performed by the appellant to remove the defects. The appellant has not anywhere explained the circumstances which justify the recovery of the said tainted money from his possession. In this context presumption u/s 20 of the P.C. Act, 1988 is also against the defence because this amount has been admittedly accepted by the appellant other than legal remuneration and in such circumstances unless contradictory is proved it has to be presumed that he accepted this amount as a motive or reward which amounted to gratification. Therefore, the appellant is found and held guilty u/s 7 of the P.C. Act. So far as the question of liability u/s 13 (1) (d) is concerned this amount so recovered from his possession was obtained by him by corrupt practices as a public servant, J.T.O and which amounts to 35 criminal mis-conduct on his part as such public servant. The prosecution has sufficiently proved beyond doubt that the appellant functioning as J.T.O and demanded and accepted this amount from the complainant for an official act which amounted to criminal mis-conduct on his part. Accordingly, he is further found and held guilty u/s 13 (1) (d) of the P.C. Act, 1988. In the result, the appellant is found guilty for the offences for which he was charged."
28. This Court has also gone through the entire judgment passed by the learned court below and finds that the learned court below has correctly appreciated the materials on record and has convicted the appellant by a well-reasoned judgment. This Court has also come to the same conclusion after independently considering the materials on record.
29. Thus, this Court finds no merits in the present criminal appeal, which is accordingly dismissed.
30. Pending interlocutory application is dismissed as not pressed.
31. The bail bond furnished by the appellant is hereby cancelled.
32. The office is directed to immediately send the records to the learned court below along with a copy of this judgment.
(Anubha Rawat Choudhary, J.) Mukul / Binit/Saurav