Yeeti Prabhakar vs The State Through C.B.I.
2018 Latest Caselaw 4080 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A. F. R.
 
RESERVED
 
Case :- CRIMINAL APPEAL No. - 485 of 2002
 
Appellant :- Yeeti Prabhakar
 
Respondent :- The State Through C.B.I.
 
Counsel for Appellant :- Arun Sinha
 
Counsel for Respondent :- Govt.Advocate, Bireshwar Nath
 

 
Hon'ble Dinesh Kumar Singh, J.

1. Present criminal appeal under Section 374 Cr.P.C. read with Section 389 Cr.P.C. is directed against the judgment of conviction and order of sentence dated 3rd April, 2002 passed by the Special Judge, Anti-Corruption (West), U.P. C.B.I., Lucknow in Criminal Case No. 12 of 1998, arising out of R.C.No. 29(A)/96CBI, Lucknow under Section 7 and 13(2)/13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the P.C. Act"). Vide the impugned judgment and order, the accused-appellant has been convicted and sentenced to undergo two years rigorous imprisonment and fine of Rs.2,500/- under Section 7 of the P. C. Act and three years rigorous imprisonment and fine of Rs.3,000/- under Sections 13(2) read with Section 13(1)(d) of the P. C. Act and in case of non-payment of fine six months additional imprisonment. All the sentences would run concurrently.

2. The accused-appellant, at the relevant time, was working as Village Development Officer (Rural Development Officer) in Singramau Branch of Union Bank of India, District Jaunpur (hereinafter referred to as 'The Bank). Complainant, Sunil Kumar (PW-3) applied for a loan of Rs. 50,000/- to the Bank through District Industrial Centre under the Prime Minister Employment Scheme. The aforesaid loan was sanctioned by the Singramau Branch of the Bank in the month of September, 1995. The accused-appellant was working there as Rural Development Officer in the Branch and he continued on the aforesaid post till his services got dispensed with.

3. Allegation against the accused-appellant is that he demanded Rs.2,000/- as illegal gratification from the complainant (PW-3) for release of remaining loan amount of Rs.23,225/- by the Bank. The complainant with respect to the aforesaid illegal demand, wrote a letter (Exhibit Ka-2) on 22nd July, 1996 to Superintendent of Police, Central Bureau of Investigation, Anti-Corruption Wing, Lucknow.

4. On the basis of aforesaid complaint (Exhibit Ka-2), a case was registered against the accused-appellant. Inspector, Central Bureau of Investigation (hereinafter referred to as "the CBI") (PW-4), Jayant Kashmiri conceived a plant to arrest the accused-appellant red-handed while accepting the bribe money. On 23rd July, 1996 at around 8:30 a.m. in Room No. 8 of Circuit House of Public Works Department, Sultanpur a trap team demonstrated reaction of phenolphthalein powder to the complainant, Sunil Kumar and independent witnesses, PW-2, Manjar Saeed and Fateh Bahadur. A pre-trap memo was also prepared. Rs.2,000/- was made available by the complainant, Sunil Kumar and these currency notes were treated in the phenolphthalein powder. On the same day, CBI arrested the accused-appellant red-handed, accepting Rs.2,000/- as bribe money from the complainant in presence of the independent witnesses. When the accused-appellant's hands and shirt, in which he kept the Rs.2,000/-, were washed with mixture of sodium carbonate, it got pink. Seizure/post trap memo (Exhibit Ka-4) was prepared on the spot and the bribe money was seized. Site-plan (Exhibit Ka-7) was also prepared.

5. After completing the investigation, charge-sheet (Exhibit Ka-12) was filed in the Court. Charges were framed against the accused-appellant under Sections 7 and 13 (2) read with Sections 13(1)(d) of the PC Act which the accused-appellant denied and claimed for trial.

6. To prove its case, the prosecution examined PW-1 to PW-5.

7. PW-1, S.C. Duggal was the Ex-Manager (Personnel) of the Bank. He granted sanction (Exhibit Ka-1) in the month of August, 1997 for prosecuting the accused-appellant.

8. PW-2, Manjar Saeed is an eye-witness of giving bribe money to the accused-appellant. As per the prosecution case, PW-2 was with the complainant as shadow witness to trap the accused-appellant in accordance with the trap-plan while accepting the bribe money. This witness, while supporting the case of the prosecution, proved documents which he signed and which were prepared before trap and after the accused-appellant was arrested with the amount which was given to him as bribe money.

9. PW-3, Sunil Kumar (complainant) proved his written complaint (Exhibit Ka-2) given to S.P., C.B.I. and supported the prosecution case. He also proved the documents, which he signed, including pre-trap and post-trap memos and other documents.

10. PW-4, Jayant Kashmiri, Inspector, C.B.I. conducted the trap proceedings and arrested the accused-appellant. He proved the documents, including first information report (hereinafter referred to as "the F.I.R."), Exhibit Ka-5 and other documents.

11. PW-5, Rohit Srivastava was the Investigating Officer (hereinafter referred to as "the I.O."). He proved the documents recovered from the accused-appellant and report received from the Central Forensic Science Laboratory, New Delhi in respect of the phenolphthalein mixture.

12. Defence examined Mr. Girija Shanker as DW-1 in favour of the accused-appellant.

13. Heard Mr. Arun Sinha, learned counsel representing the accused-appellant, and Mr. Bireshwar Nath, learned counsel representing the C.B.I. and perused the record, including the evidence available on record.

14. Mr. Sinha, learned counsel for the accused-appellant, submits that the accused-appellant had been falsely implicated. He made post disbursement inspection of complainant's shop and found that no business transactions were being carried out by the complainant for which he applied for loan. Out of the loan amount, Rs.26,775/- was disbursed to the complainant and rest of the amount of Rs.23,225/- was to be disbursed to him. After inspection, the accused-appellant gave his report dated 13th July, 1996 (Exhibit Ka-31). Consequent to the said report, the Bank issued a notice dated 18th July, 1996 (Exhibit Ka-32) to the complainant, Sunil Kumar. He further submits that the accused-appellant did not demand any bribe money nor did he accept the same.

15. The learned counsel further submits that there was no occasion for the accused-appellant demanding Rs.2,000/- as bribe money for release of the remaining amount of the loan i.e. Rs.23,225/- as it is established from the evidence available on record that it was the Branch Manager, who was empowered to release the loan amount. The accused-appellant was only empowered to supervise the utilization of disbursed loan amount for the very purpose for which it was sanctioned. He submits that this fact is clear from the evidence of PW-1 itself.

16. The accused-appellant had conducted inspection of the complainant's shop on 3rd June, 1996 and a report (Exhibit Ka-24) was prepared and submitted by him. According to the report, the accused-appellant had opined that Rs.30,000/- was sufficient amount for running the shop by the complainant. The learned counsel further submits that the complainant had accepted that on his request Rs.23,000/- were directly paid by the Bank from his loan amount to Food-grains Merchant, Mr. Ashok Misra for purchase of food-grains. It is clear from statement of PW-3 that the complainant did not purchase any food-grain from the Food-grains Merchants, Mr. Ashok Misra.

17. However, the complainant denied about submitting any forged receipt for purchase of food-grains from Mr. Ashok Misra. The Investigating Officer, however, on this point had said that during investigation, the complainant told him that he had submitted the receipt of purchase of food-grains from Mr. Ashok Misra. The learned counsel further submits that the complainant did not purchase any food-grain, but submitted a forged receipt in the Bank of purchasing the food-grains from Mr. Ashok Misra and, thus, it is clear that he did not require the loan for running his business, but he wanted to misappropriate/misutilize the loan amount.

18. In respect of the report of inspection dated 13th July, 1996 (Exhibit Ka-32) of the shop of the complainant, he had clearly said that the shop of the complainant remained closed and no business was being transacted from the premises of the shop. After this report (Exhibit Ka-32) was submitted, the Bank sent a notice to the complainant for non-utilization of loan amount and recovery of the said amount. After receipt of the notice sent by the Bank, the complainant got aggrieved from the accused-appellant and sent a false complaint to the S.P., C.B.I. in pursuance of which the trap proceedings were conducted.

19. The learned counsel further submits that to constitute the offence under Sections 13(1)/13(2)(d) PC Act, demand, acceptance and recovery are sine-qua-none. In this case, demand of money by the accused-appellant from the complainant could not be proved. He further submits that mere production of tainted money recovered from the accused-appellant along with positive realization of phenolphthalein Test would not be enough to establish the guilt of the accused-appellant.

20. It is submitted that Sunil Kumar, the complainant (PW-3) and independent witness Manjar Saeed are the witnesses who are said to have proved the demand and acceptance of the money. From the evidence of PW-3 regarding accused-appellant asking him whether he had brought Rs.2,000/- and when the complainant asked the accused-appellant Rs.2,000/- bribe money and alleged reply of the accused-appellant do not inspire confidence as no-one would openly ask whether the bribe giver had brought bribe money or not?

21. The learned counsel for the accused-appellant further submits that according to PW-4, he had instructed the complainant to give money only on specific demand by the accused-appellant and not otherwise. However, the complainant gave the money on his own, without any demand from the accused-appellant and it is clear from the evidence of PW-2, Manjar Saeed, who was instructed to overhear the conversations between the accused-appellant and the complainant. The said shadow witness (PW-2) had not proved any demand made by the accused-appellant. He had not proved the alleged conversation recorded in the post-trap memo. He said that alleged demand of Rs.2,000/- as bribe money did not get proved by any other witness and he, thus, submits that the demand of bribe money is not proved against the accused-appellant.

22. He further submits that even in respect of acceptance of bribe money by the accused-appellant, there is no independent witness in this regard. PW, Manjar Saeed did not say that the accused-appellant demanded Rs.2,000/- as bribe money. The learned counsel for the accused-appellant further submits that Rs.2,000/- given to the accused-appellant by the complainant was not brine money, but payment of installment of the loan amount of the complainant, which is evident from the evidence of Girija Shanker Singh, DW-1. Girija Shanker Singh , DW-1 in his statement had said that on the date of incident, at around 16:15-16:30 hrs the complainant, Sunil Kumar was sitting on a bench. He was outside the counter where the accused-appellant was sitting and the accused-appellant was asked to get pay-in-slip. When he came back from the counter having pay-in-slip he witnessed that the accused-appellant was apprehended by his hands and 2-4 people were standing nearby him. These people asked about him from the shadow witness then he told that he was a peon in the Bank. These persons asked the DW-1 to give the pay-in-slip and leave.

23. The learned counsel submits that it was accepted that the Bank had executed a Power of Attorney in favour of the accused-appellant. Paragraphs-4 and 5 of the Power of Attorney are in respect of authorizing him to receive the amount of installment etc. recoverable from the borrowers and deposit the same in the Bank. The prosecution has not been able to challenge the testimony of DW-1. The learned counsel for the accused-appellant, therefore, submits that from the evidence of PW-2 and DW-1, it is clear that the prosecution has failed to establish the demand of bribe money of Rs. 2,000/- from the complainant and when the demand is not proved, recovery would be of no consequence. Mere recovery of tainted money is not sufficient to convict the accused-appellant. The learned counsel further submits that the case could not get proved against the accused-appellant and he ought to have been acquitted.

24. On the other hand, learned counsel representing the C.B.I., Mr. Bireshwar Nath, submits that the acceptance and recovery of bribe money of Rs.2,000/- is not in dispute. He says that only question, which is to be seen, is whether the accused-appellant had made demand of Rs.2,000/- for advancing the balance loan amount to the complainant or not. He says that the learned trial Court in paragraph-17 of its judgment and order had arrived at a finding that the accused-appellant made demand of Rs.2,000/-, which was supported by statement of Sunil Kumar and this fact also gets support from the complaint made by the complainant to the S.P., C.B.I. (Exhibit Ka-2). Sunil Kumar in his statement had said that he got sanction for loan amount of Rs.50,000/- from the Bank, Singramau Branch. He was advanced Rs. 26,775/- and Rs. 23,225/- was to be released by the Bank. He said that he visited the Bank and met the accused-appellant and requested him to release the balance amount of loan, but the accused-appellant asked him that the balance amount would be released only after he paid him Rs.2,000/-. The complainant was not willing to pay the bribe money, but the accused-appellant insisted for payment and, therefore, he lodged the complaint (Exhibit Ka-2) with S.P., C.B.I. He further submits that the testimony of Sunil Kumar remained unshaken and he supported the prosecution case in all respects. There is no previous enmity between the accused-appellant and the complainant and, therefore, the evidence of the complainant (PW-3) inspired confidence. He further submits that the accused-appellant had admitted the recovery of Rs.2,000/- from his possession. This amount of Rs.2,000/- was not lawful remuneration, but it was a bribe money, therefore, there is presumption under Section 20 (1) of the P. C. Act of accepting the bribe money by the accused-appellant as illegal gratification.

25. The accused-appellant in his statement recorded under Section 313 Cr.P.C. had said that the complainant, Sunil Kumar gave Rs.2,000/- for depositing installment against the loan amount which the accused-appellant kept in his pocket for sometime and then he immediately called upon the peon (DW-1) to get the pay-in-slip for depositing the money. However, in the meantime, C.B.I. personnel persons apprehended him. DW-1, Girija Shanker, the peon, deposed that he was asked by the accused-appellant to bring deposit slip to deposit the money and when he came back he saw the accused-appellant was apprehended by his hands.

26. I find that PW-2, Manjar Saeed, shadow witness had supported the prosecution case regarding demand of bribe money. He deposed as under:

"Sunil Kumar said that please do his work and gave the money. Prabhakar asked about me then he told him that I was his friend. He requested Prabhakar to do his work and then Prabhakar demanded Rs.2,000/- which Sunil Kumar gave to Prabhakar."

Specific question was put to PW-2, Manjar Saeed regarding brining of pay-in-slip by DW-1 and he said that no such conversation took place in-front-of him with any bank employee. The accused-appellant did not ask any bank employee for pay-in-slip. Shri Bireshwar Nath, learned counsel for the respondent, submits that the explanation by the accused-appellant that Rs.2,000/- was given for deposition of the installment is totally belied from the statement of Manjar Saeed, PW-2 and only conclusion is that the accused-appellant demanded Rs.2,000/- which was given to him and that amount was recovered from him.

27. There is no evidence, which had come forward to prove that the installment of Rs.2,000/- was fixed or it was due which was to be paid by the complainant on the date fixed. In view of aforesaid, the only conclusion, which is to be drawn and which is also established from the evidence of the prosecution witnesses that the accused-appellant demanded Rs.2,000/- for release of the balance loan amount to the complainant. Thus, the demand of bribe money is proved, the acceptance and recovery are not in dispute in any manner. The accused-appellant has, therefore, rightly been convicted for demanding and accepting the bribe money of Rs.2,000/-. The evidence of PW-2, Manjar Saeed and PW-3, Sunil Kumar clearly establish beyond reasonable doubt that the accused-appellant had demanded Rs.2,000/- as bribe money for release of balance loan amount to the complainant and the complainant gave the bribe money which the accused-appellant accepted and same was recovered from him. He further submits that the trial Court after considering the evidence on record carefully had rightly convicted and sentenced the accused-appellant and the impugned order is not required to be interfered with in the appeal.

28. I have considered the arguments carefully advanced by the learned counsel for the parties.

29. Shri Arun Sinha, learned counsel representing the accused-appellant, in support of his submission has placed reliance on the judgment of the Supreme Court in Mukhtiar Singh (since deceased) through his L.R. Vs. State of Punjab, AIR 2017 SC 3382. Paragraphs 14 and 15 of the aforesaid judgment read as under:-

"14. The indispensability of the proof of demand and illegal gratification in establishing a charge under Sections 7 and 13 of the Act, has by now engaged the attention of this Court on umpteen occasions. In A. Subair vs. State of Kerala, this Court propounded that the prosecution in order to prove the charge under the above provisions has to establish by proper proof, the demand and acceptance of the illegal gratification and till that is accomplished, the accused should be considered to be innocent. Carrying this enunciation further, it was exposited in State of Kerala vs. C.P. Rao that mere recovery by itself of the amount said to have been paid by way of illegal gratification would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained."

15. In P. Satyanarayana Murthy (AIR 2015 SC 3549) (supra), this Court took note of its verdict in B. Jayaraj vs. State of A.P. underlining that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as Section 13(1)(d)(i) and (ii) of the Act. It was recounted as well that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. Not only the proof of demand thus was held to be an indispensable essentiality and an inflexible statutory mandate for an offence under Sections 7 and 13 of the Act, it was held as well qua Section 20 of the Act, that any presumption thereunder would arise only on such proof of demand. This Court thus in P. Satyanarayana Murthy (supra) on a survey of its earlier decisions on the pre-requisites of Sections 7 and 13 and the proof thereof summed up its conclusions as hereunder:

"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 6 (2014) 13 SCC 55 11 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 Sections 7 and 13 of the Act would not entail his conviction thereunder."

30. Per contra, Shri Nath, learned counsel representing the C.B.I., has placed reliance on the judgment of the Supreme Court in L. Laxmikanta Vs. State by Superintendent of Police, Lokayukta, Criminal Appeal No.593 of 2012. Paragraphs 14 and 15 of the aforesaid judgment read as under:-

"14. On perusal of evidence of complainant (PW-3) and the shadow witness (PW-4), we find that it is consistent on the issue of demand and acceptance of illegal gratification from the complainant and is without any contradiction. There is, therefore, no reason to disbelieve the testimony of PW-3 (complainant) when he deposed that the appellant made a demand of Rs. 2000/- from him for allotment of a room in the hostel. It is not in dispute that PW-3 was staying in the Hostel, and had applied for re- admission for allotment of room in the hostel. It is also not in dispute that appellant being the Warden of the hostel knew the complainant. It is also not in dispute that four currency notes (each Rs. 500/- denomination) were given to the appellant which he kept in his trousers' pocket and they changed their colour (pink) when mixed in solution along with his hands and trousers' pocket. (Ex-P-18). PW-7 a police inspector (I.O.) of Lokayukta, who investigated the case, duly proved the articles. We have not been able to find any evidence of the defense to discard the evidence of prosecution on this material issue.

15. We are not inclined to believe the defence version of DW-1 and DW-2 as, in our considered view, the Courts below, rightly did not believe their version. DW-1 is the student who was occupying one room in the hostel. According to him, when he was coming out from the bathroom, he saw that complainant and his friend were forcing the appellant to accept the money, which the appellant was refusing to accept while standing in the passage. He further deposed that he does not know as to what happened thereafter because he went to his room. So far as DW-2 is concerned, he is also the student like DW-1. He deposed that he saw appellant along with the complainant and one person standing in the passage where complainant was seen offering money to the appellant. He said that he then proceeded to his room and did not see what had happened thereafter."

31. In the present case, the demand of bribe money of Rs.2,000/- by the accused-appellant from the complainant is fully proved. From the evidence of PW-2 and PW-3, it is clear that when the complainant requested the accused-appellant for releasing the balance loan amount, the accused-appellant asked the complainant whether he has brought the bribe money or not. The complainant gave Rs.2,000/- to the accused-appellant which he kept in his pocket. PW-2, who was shadow witness, clearly witnessed the demand and acceptance of bribe money of Rs.2,000/- by the accused-appellant. The statement of DW-1 does not inspire confidence inasmuch as PW-3 in his statement had clearly said that he did not hear the accused-appellant asking any bank employee to get pay-in-slip. The defence set up by the accused-appellant that the complainant gave him Rs.2,000/- for making deposit of installment is not proved by any evidence.

32. Considering the aforesaid facts and circumstances, I do not find any infirmity in the impugned judgment and order of conviction and sentence passed by the learned trial Court. However, considering the fact that the litigation has been pending since the year 1996 i.e. for 22 years, it would be appropriate to reduce the sentence from three years to one year since at the relevant point of time, when the offence was committed by the accused-appellant, the punishment provided under Sections 7 and 13(2)/13(1)(d) P. C. Act were six months and one year, which could have been extended to five years and seven years respectively. In similar circumstances, the Supreme Court in Kiran Chander Asri Vs. State of Haryana AIR 2015 SCC 3775 in paragraphs 20 and 22 has held as under:-

20. Taking into consideration the totality of the facts and circumstances of the case, such as firstly, the incident is of 1995; secondly, this litigation is pending for the last 20 years; thirdly, the appellant is now quite old and suffering with ailments; fourthly, he has already lost his job, we consider it just and proper, in peculiar facts of this case, to reduce the punishment awarded to the appellant from two years to that of one year.

22. In view of the foregoing discussion, the appeal succeeds and is hereby allowed in part. Impugned order is modified to the extent that the appellant is awarded one year punishment for the offences punishable under Sections 7 and 13 of the P.C. Act. So far as the fine amount imposed by the Courts below is concerned, it is upheld. If the appellant is on bail, his bail bonds stand cancelled and he be taken into custody forthwith to undergo the remaining period of sentence awarded by this Court."

33. Considering the aforesaid judgment and the time period which has elapsed since 1996, I reduce the punishment awarded to the accused-appellant to one year. So far as the fine imposed by the trial Court is concerned, it is upheld. The bail-bonds filed by the accused-appellant stand cancelled. The accused-appellant shall be taken into custody to undergo the remainder period of sentence awarded by the learned trial Court.

34. The appeal against conviction is dismissed, however, the sentence awarded to the accused-appellant is reduced as aforesaid.

Order Date: 3rd December, 2018

MVS Chauhan/-