Soumen Kumar Pal vs Central Bureau Of Investigation
2023 Latest Caselaw 6345 Cal

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               IN THE HIGH COURT AT CALCUTTA

                   (Criminal Appellate Jurisdiction)

                            Appellate Side
Present:
Justice Bibhas Ranjan De


                       C.R.A. (SB) 186 of 2022
                         Soumen Kumar Pal
                                 Vs.
                   Central Bureau of Investigation.


For the Appellant            :Mr. Mrityunjoy Chatterjee, Adv.
                              Mr. Manas Das, Adv.
                              Mr. Debapriya Majumdar, Adv.


For the CBI                  :Mr. Amajit De, Special PP, CBI
                             Mr. Subrata Santra, Adv.


For the de State            :Mr. Koushik Kundu, Adv.


Heard on                     :19.06.2023, 31.07.2023, 09.08.2023,
                              22.08.2023, 23.08.2023,12.09.2023
Judgment on                    :September 21, 2023
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Bibhas Ranjan De, J.

1. On 12.07.2017 one telephonic complaint was received from

Shri Om Prakash Mahato(complainant), Tub Repairing

Majdoor, Parbelia Colliery of Eastern Cold Fields Limited (for

short ECL), Purulia whereby it was alleged that Soumen

Kumar Pal, Colliery Manger, Parbelia ECL, had demanded

bribe @ Rs. 1000/- per month for the complainant by

threatening that if he did not pay the said bribe, he would be

transferred from his assigned job of mechanical fitter to more

difficult job like underground mining. That allegation was

verified and investigation was conducted along with a 'trap' on

14.07.2017 to apprehend the accused red handed at the time

of demanding and accepting bribe. Accordingly, trap team was

constituted and accused was caught red handed with bribe

from his possession. After completion of investigation charge

sheet was submitted against the appellant/accused Soumen

Kumar Pal on 22.12.2017 before the Ld. Judge, Special (CBI)

Court, Asansole, Paschim Bardhaman under Section 7 & 13

(2) read with section 13(1) (d) of the Prevention of Corruption

Act, 1988 (for short Act, 1988). Cognizance was taken.

2. Ld. Judge, framed formal charge under aforementioned

Sections and after being read over an explained

appellant/accused pleaded not guilty and claimed to be tried.

3. To prove the charge prosecution examined as many as sixteen

witnesses namely Gopal Singh, Chairman cum Managing

Director of ECL as PW1, Wasim Akram Khan, Sub Inspector,

CBI, ACB, Kolkata as PW2, Baijyanta Mukhopadhyay, Deputy

Director and Scientist 'D' (explosives) at CFSL, Kolkata as

PW3, Gopal Sharan, Chief Welfare Inspector, D.R.M Office,

Asansol as PW4, Om Prakash Mahato (complainant), Tub

Repair Majdoor as PW5, Devanand Kumar, Vigilance

Inspector, SAIL, ISP, Burnpur, as PW6, Rabindra Sharma,

then Manager of Parbelia Colliery as PW7, Amar Jyoti Prasad,

a witness to voice audio clips as PW8, Ashoke Kumar Poddar,

a witness to voice audio clips as PW9, Diptarka Moitra,

Colliery Engineer of Parbelia Colliery as PW10, Babu Lal

Pandey, Assistant Manager (personnel)of Parbelia Colliery as

PW11, Arbind Kumar Singh, agent of Parbelia Group of Mines

at Sodpur area as PW12, Amitabha Ghosh, the then Inspector

CBI, ACB, Kolkata as PW13, Amitabha Das, the then Inspector

CBI, ACB, Kolkata as PW14, Doctor Subhrat Kumar

Choudhury, Senior Scientific Officer (HOD) Computer Forensic

Division, CFSL, New Delhi as PW 15 and one Mukesh Kumar,

Inspector CBI, ACB, Shillong, attached to ACB, Kolkata as

PW16.

4. In course of evidence a good number of documents namely

FIR, Sketch map, pre-trap memo, post trap memo, and

signatures therein, seizure list with signature, transfer order,

posting order, release order, regularization order, transcription

of audio clip, search memo etc. were admitted in evidence as 1

to 25. That apart, some materials like bottles, trap money,

envelope containing, memory card, signature on the envelope

etc. were admitted in evidence as MAT exhibit I to MAT VII

series.

5. After examination and cross-examination of witnesses

appellant/accused was examined under Section 313 of the

code of Criminal Procedure and he attributed his false

implication in this case.

6. Ld. Trial Judge, heard rival submission of the parties and after

evaluation of evidence passed the judgement and order of

conviction on 20.12.2022 and sentenced the

appellant/accused to suffer simple imprisonment of three

years and to pay fine of Rs. 20,000/-, in default, further

imprisonment of three months for commission of offence

under Section 7 of the Prevention of Corruption Act, 1988 and

also to suffer simple imprisonment for four years and to pay

fine of Rs. 10,000/- , in default, to suffer simple imprisonment

of three months. Both the punishments were ordered to run

concurrently. That appellant/accused was also directed to pay

the total fine of amount of Rs. 30,000/- , in default, to suffer

simple imprisonment of six months apart from period of

imprisonment.

7. Aggrieved from the impugned judgment of conviction and

sentence appellant/convict preferred the instant appeal

assailing the judgment of conviction of sentence passed by the

Ld. Judge Special (CBI) Court, on the grounds that the

impugned judgement is based on wrong appreciation of

evidence. The finding of the judge is perverse as the non

admissible evidence has been admitted by the court in

convicting the appellant. There is no eye witness to the alleged

incident of taking bribe by the appellant, having no authority

to provide preferable posting to the complainant. Also on the

ground that the documents admitted in the case were not in

compliance with the procedure prescribed therefor. Evidence

adduced on behalf of the prosecution did not support the

allegation leveled against the appellant. Accordingly, prayed to

allow the appeal and to set aside the judgment of conviction

and sentence passed against the appellant and to acquit the

appellant.

Argument Advanced:-

8. Ld. Advocate, Mr. Mrityunjoy Chatterjee, appearing on behalf

of the appellant has referred to the contradictions among the

witnesses examined on behalf of the prosecution. Mr.

Chatterjee further assailed the sanction order for prosecution

given by Chairman cum Managing Director (CMD) (PW1)of

Coal India Limited, Kolkata at the relevant point of time and

has tried to make this Court understand that sanction was not

given after application of mind. Mr. Chatterjee further argued

that receipt of telephonic information by the Superintendent of

Police, anti corruption branch as well as all the movements of

trap-team was not recorded in any register.

9. Mr. Chatterjee has further submitted PW 2, Sub Inspector,

CBI, ACB Kolkata who verified the complaint did not disclose

any threat caused to the complainant regarding underground

posting. Mr. Chatterjee has further submitted that in respect

of recording conversation in a micro SD Card has not been

substantiated by any certificate under Section 65B of the

Indian Evidence Act. Mr. Chatterjee further particularly

assailed the evidence of PW 4, (shadow witness) and submitted

that he did not support the case of the prosecution case with

regard to accepting bribe by the appellant exercising his

official power. Mr. Chatterjee also took an effort to convince

this Court that de facto complainant (PW5) who testified in his

cross examination that appellant did not ask for money for

favouring him in any office work.

10. Mr. Chatterjee, before parting with, has contended that

prosecution could not obtain any hash value certificate to

prevent any kind of tampering of the voice sample. In this

regard, Mr. Chatterjee has referred to PW15 (voice expert) and

thereby prosecution hopelessly failed to establish the case

beyond reasonable doubt.

11. In support of his contention , Mr. Chatterjee has relied

on the following cases:-

Mukut Bihari & Anr. Vs. State of Rajasthan reported in

2012 SCC OnLine SC 461

Arjun Pandit Rao Khotkar Vs. Kailash Vs. Kushanrao

Gorantyal reported in (2020) 7 SCC 1

Soundarjan Vs. State Rep. by the Inspector of Police

Vigilance Anticorruption Dindigul reported in 2023 SCC

OnLine SC 424

12. Ld. Advocate, Mr. Amajit De, Special PP, appearing on

behalf of the CBI has relied on the evidence on record together

with the documents exhibit in this case and submitted that all

procedure according to CBI manual were complied with in

respect of receipt of information , verification of information

registration case and other procedure till appellant was caught

red handed.

13. Mr. De on behalf of the CBI relied on a case of Anvar P.V.

Vs. P.K. Basheer and other reported in (2014) 10 SCC 473

Decisions with reasons:-

14. Before going to the concluding part of the decision, I

would like to refer to the evidence recorded in this case.

15. PW2, Sub Inspector CBI, ACB, Kolkata has testified in

his examination in chief that on 12.07.2017 one Mr. P.K.

Panigrahi the then S.P., ACB, CBI instructed him to visit

Parbelia Colliery, Asansol for verification of one complaint of

demanding bribe money of Rs. 1000/- from the complainant

(PW5) against Soumen Kumar Pal, the then Colliery Manager

of Parbelia Colliery in consideration of giving light duty in the

coal mine otherwise he will be given comparatively tougher

task like working in the underground of the said mine.

Accordingly, he visited Parbelia Colliery and talked with the

complainant who handed over a written complaint (exhibit 3)

which was faxed to S.P. Officer CBI, ACB, Kolkata on

12.07.2017 at about 6.45 p.m. The said complaint was

reduced into writing by his daughter according to his

dictation. On receiving that FAX (PW2) he was directed to

verify the allegations by SP, CBI, ACB over telephone.

Accordingly, he conducted verification by providing a voice

recorder to the complainant (PW5) with a blank and new micro

SD Card for the purpose of recording conversation between the

accused and the complainant. Thereafter, complainant went to

the house of accused/appellant at around 7.30 p.m. on

12.07.2017 accompanied by him (PW2) though complainant

alone entered into the house of the accused. PW2 switched on

the said voice recorder and put it in the left chest of wearing

shirt of complainant. After 50 minutes complainant came

outside of the house of the accused and PW2 took out the

voice recorded from his pocket and turned it off. Next morning

on 13.07.2017 he left for SP office and reported the matter in

writing (exhibit 5) wherein he recommended for initiation of

proceeding under Section 7 of the Prevention of Corruption

Act, against the accused/appellant. The case was started

under RC No. 0102017A0019 dated 13.07.2017 under Section

7 of the Prevention of Corruption Act, 1988 and formal FIR

was prepared. Mukesh Kumar Inspector CBI, ACB, Kolkata

was entrusted with investigation of the case.

16. Thereafter, Micro SD Card was inserted in the office

desktop and saved the transcript in the computer and took out

a print out (exhibit 4) of the conversation between complainant

(PW5) and accused/ appellant.

17. A trap team was constituted by the eight members

namely Amitava Das, Inspector CBI, ACB (TLO) PW14, Wasim

Akram Khan SI of CBI, ACB, Kolkata, PW2, Gopal Sharan,

(independent witness) Retired chief welfare DRM officer

Asansol PW4, Shadow witness, Complainant Om Prakash

Mahato, PW5, Devanand Kumar (independent witness)

Vigilance Inspector, SAIL, ISP, Burnpur, PW6 and Amitava

Ghosh the then Inspector CBI, ACB, Kolkata PW13, Inspector

K. K. Ghosh and Inspector Arup Kumar Paul.

18. On 14.07.2017 all the team members met at River Bank

Guest House. The TLO briefed the matter to all including

reading out the complaint before the pre -trap proceeding.

Inspector Arup Kumar Pal typed the pre-trap proceedings on a

laptop on the dictation of the TLO Amitava Das (PW14).The de

facto complainant was asked to take out the bribe money of

Rs. 1000/- (10 pieces of Rs. 100 notes) only after demand by

the accused/appellant. The number of the notes were recorded

in writing and thereafter those were smeared in

phenolphthalein powder by Wasim Akram Khan (PW2) under

instruction of the TLO. Thereafter, both of his hands were

doused in solution of sodium carbonate and water which

turned pink and subsequently destroyed. The notes were again

treated with phenolphthalein powder and kept in the back side

right trouser pocket of the de facto complainant, being so told

by the de facto complainant. TLO directed Gopal Sharan(PW4)

to act as shadow witness and a pre-trap memorandum was

prepared and also signed.

19. From the evidence of the witnesses it appears that

aforesaid trap team members went to the official quarter of

accused/appellant and complainant (PW5) and shadow

witness (PW4) were instructed to enter into the official

residence of accused/appellant and other team members also

stayed scattered outside the official residence of

accused/appellant. The de facto complainant after going to the

bed room of the accused/appellant, handed him over the 10

GC notes of hundred denomination which he kept in his

drawer by own hands. After 10 to 12 minutes the shadow

witness on initiation of the complainant came out and as per

prior instruction he gave a signal by scratching his head.

Immediately, afterwards the TLO along with the other team

members rushed inside the house of the accused appellant

and caught the accused/appellant red handed with tainted

money. The TLO then ordered Arup Kumar Pal to switch off

the recording device kept with the complainant. The 10 GC

notes of hundred denomination which were received by the

accused person who kept it in his drawer by own hands were

seized and subsequently both the hands of the

accused/appellant were treated in separately prepared sodium

carbonate and water solution which turned pink in both the

cases which clearly indicated the acceptance of the tainted

money. The solutions were bottled, sealed and lebelled

(marked as A & B). The other independent witness was

instructed to bring out the phenolphthalein tainted GC notes

which were tallied with the numbers of GC notes recorded

during the pre trap proceeding. The mat on which the notes

were kept inside the drawer was also tested and turned

positive. The SD memory card (MAT exhibit V) from the voice

recording device was taken out in presence of the witnesses

and the contents of the same was copied by the TLO in the

laptop they were carrying. A search list was prepared by the

TLO on spot which was signed by all the witnesses and the

accused person was arrested.

20. Mr. Chatterjee has contended that shadow witness (PW4)

being a member of the trap team did not support the demand

for gratification as he did not witness or hear the demand and

acceptance of bribe by the accused/ appellant but from the

evidence of PW 4 it appears that accused/appellant segregated

the shadow witness from the de facto complainant by taking

the de facto complainant to his bed room for accepting alleged

transaction. Mr. Chatterjee further assailed that the PW 4,

who was the shadow witness testified that he saw the written

complaint in Hindi language. But, here in this case PW2

received the written complaint from the complainant which

was written in English language by the daughter of the

complainant. Therefore, evidence of PW4 in this regard does

not make any difference to the prosecution case.

21. Mr. Chatterjee also highlighted the contradiction in

statement of PW5, 4 and 13 regarding the actual positioning

and sitting arrangement of the persons involved during the

alleged transaction. By this minor contradiction the evidence

of segregation cannot be tainted as the deposition of the

shadow witness clearly proves the meeting between the

accused/appellant and the de facto complainant where the

alleged transaction took place. Subsequently the

accused/appellant was caught red handed.

22. Mr. Chatterjee contended that PW6 Devanand Kumar

(independent witness) in his deposition stated that he was not

able to re-call whether any incriminating material was

recovered after search and that he put his signature on the

search list at the instance of the CBI official but mere inability

to recall something doesn't mean he denied the occurrence of

the alleged transaction.

23. The TLO PW13 has mentioned that no member of the

trap team could over hear the conversation between the

complainant and accused.

24. Mr. Chatterjee has contended that PW1, Gopal Singh,

Chairman cum Managing Director, Coal India Limited, Kolkata

who was the competent authority to remove the appellant/

accused without proper knowledge so as to the factual position

of the incident signed the sanction order without application of

proper mind. He further contended in his cross examination

that he is unable to furnish under which section the sanction

was accorded.

25. Now after thorough analysis of the specific evidence

adduced by PW1 It cannot be said that no application of mind

was there at the time of giving sanction.

26. Now coming to the deposition of the then manager

Parbelia Colliery Rabindra Sharma, PW7 he stated that the

persons working for the installation, maintenance and safe

working of the machinery are under the control of the engineer

directly. The Tub Repairing Mazdoor (designation of the de

facto complainant) is directly under the control of the engineer

but he admitted the fact that over all control of the colliery was

vested on the manager.

27. Amarjyoti Prasad and Ashoke Kumar Poddar, (witnesses

to voice audio clip) PW8 & 9 respectively stated that they had

no clear knowledge about the transcribe audio clip and they

have put their signature to the identification of the recorded

voice at the instance of CBI. PW9 has further stated that his

complete statement to the Court was at the instance of CBI.

28. Diptarka Moitra, Colliery Manager of Parbelia Colliery

and Arbind Kumar Singh, agent of Parbelia Group of mines at

Sodpur area, PW10 & PW 12 respectively, have identified the

voice sample of the accused and de facto complainant. PW10

has contended in his deposition that he did not endorse the

fact that Colliery manger has power in transfer re-designation

of a Tub Repairing Mazdoor in Colliery. PW12 in his deposition

further highlighted the argument of the appellant by stating

that in his tenure he has not received any complaint about the

accused/appellant.

29. Babu Lal Pandey, Assistant Manager (personnel) of

Parbelia Colliery, PW11, he clearly stated that as per

nomenclature of the documents mentioned, that Tub Repair

Mazdoor is under control of electrical and mechanical

engineer.

30. Baijayanta Mukhopadhyay, Deputy Director and

Scientist 'D' (explosives) at CFSL Kolkata, PW3 clearly has

stated that the report of the results show detection of

phenonphthalein, Sodium carbonate and water in the contents

of the three sealed glass bottles.

31. Subhrat Kumar Chowdhury, Senior Scientific Officer,

(HOD) Computer Forensic Division CFSL New Delhi, PW15 in

his cross examination mentioned absence of hash value

certificate of the voice recording which were tested. But, in his

report he has clearly stated that Micro SD Card was original.

32. After delving into all the facts, circumstances, evidences

adduced the following points of contentions are to be analyzed

in order to secure the ends of justice.

33. The argument of the appellant regarding the doubtful

verification of the complaint by the investigating officer is

absurd as all the processes prescribed were properly complied

with the relevant provisions of the CBI manual.

34. The claim of Mr. Chatterjee that there was no mentioning

of any kind of threat to the de facto complainant is in stern

contradiction with that of the written complaint as there has

been clear mentioning of the accused threatening the de facto

complainant in case of non compliance with his monetary

claims.

35. Another point made by Mr. Chatterjee that

accused/appellant lent Rs. 5000/- to the de facto complainant

is not substantiated by any of his hypothesis or evidence

adduced.

36. Now coming to the next point of contention raised by Mr.

Chatterjee is that the electronic evidence relied on was not

duly certified under Section 65 B of the Evidence Act but after

going through all the relevant facts and evidences adduced I

can come to an authentic conclusion that, in the present

matter we are not dealing with any secondary copy of the

original piece of evidence as the original Micro SD Card

(exhibit Mat VI) is the primary document and it has been duly

identified and authenticated by sufficient supporting evidence

and report by the competent authority (Forensic Expert, CFSL

New Delhi) (PW15). Now, if I take cognizance of the Judements

of the Hon'ble Apex Court in matters of similar nomenclature

the Apex Court has clarified that if an electronic record as

such is used as primary evidence under Section 62 of the

Evidence Act, the same is admissible in evidence, without

compliance of the conditions prescribed in the Section 65B of

the Indian Evidence Act.

37. In furtherance Mr. Chatterjee has claimed that there is

absence of any direct evidence of demand on part of the

accused also fails to hold any substantive ground as the mere

reliance on the deposition of the shadow witness (PW4) that he

did not directly witness or hear the exchange of pecuniary

advantage does not induce the innocence of the accused/

appellant. In sharp contrast it indicates the intentional

segregation of the de facto complainant from the shadow

witness in order to accept the bribe money in isolation. The

subsequent recovery of the phenolphthalein tainted notes from

his drawer and his hand wash yielding positive result clearly

indicates the wrongful intention of the accused/appellant

which leads to raise the presumption of fact that there has

been demand immediately before acceptance on part of the

accused which is admissible evidence in view of Section 6,7,&

8 of the Indian Evidence Act. The report of the expert of CFSL,

Kolkata (PW3) shows detection of phenolphthalein sodium

carbonate and water in the contents of the sealed glass bottles

and serial wise detection of the tainted currency notes clearly

points out the acceptance of the bribe money.

38. Now coming to another important aspect of the case in

hand regarding 'demand for illegal gratification' on part of the

accused. After detailed analysis it is a proven case that the

accused/appellant had a dominant authoritarian power over

the de facto complainant. He tried to frighten the complainant

that in case of non compliance with his demand he will make

his official work more arduous which leads to criminal abuse

of official position as a public servant on part of the

accused/appellant under Section 13 of the Prevention of

Corruption Act, 1988.

39. In Mukut Bihari (supra) Hon'ble Apex Court dealt with a

case of illegal demand by the accused/appellants for issuance

of discharge ticket to the complainant in Shadat Hospital,

Tonk for treatment of unary infection of father of the

complainant. In that case, the apex Court clearly laid down

the principle that mere demand of illegal gratification cannot

be said to have been proved only by mere recovery of tainted

money but in that scenario the burden rested on the accused

only to displace the statutory presumption raised under

Section 20 of the Prevention of Corruption Act, to bring on

record evidence to establish with reasonable probability that

the money accepted by him was other than a motive or reward

as referred to in Section 7 of the Prevention of Corruption of

Act, 1988.

40. In this case, appellant /accused took a plea of loan given

to the de facto complainant and demand was made for

repayment of loan. But unfortunately nothing was brought on

record at the instance of accused/appellant to substantiate

his claim.

41. Soundarjan (supra) dealt with a case of demand of

gratification of Rs. 500/- from the de facto complainant for

handing over the registered sale deed by a Sub Registrar of

Kannivadi, Dindigul District Tamil Nadu. Hon'ble Apex Court

came across evidence of the complainant himself who did not

support the prosecution case and was declared as hostile. Not

only that shadow witness was also present at the time of

alleged transaction unlike our case, but, he also did not

support the contention of any illegal gratification within the

meaning of the act.

42. In Arjun Pandit Rao Khotkar (supra) & Anwar P.V.

(supra) It was held that the nature and manner of admission

of electronic record was an important aspect of analyzing

Genuineness, Veracity or Reliability of the evidence adduced in

both the cases it has been clarified that if an electronic record

as such is used as primary evidence under Section 62 of the

Indian Evidence Act, the same is admissible in evidence

without compliance of the conditions prescribed in Section

65B of the Indian Evidence Act.

43. But, in the present case, I am not dealing with any

secondary copy of the original piece of evidence as the original

Micro SD Card (Mat exhibit 5) has been duly adduced and

identified as the primary document.

44. In the aforesaid view for the matter I am unable to

interfere with the judgement and order of conviction dated

20.12.2022 passed by Ld. Judge, Special Court, CBI Asansol,

45. As a sequel, appeal being no. CRA SB No. 186 of 2022

stands dismissed. Trial Court Record be sent back

immediately.

46. Trial Court shall secure the accused and committing him

to undergo the remaining period of sentence.

47. Case diary be returned.

48. All parties to this revisional application shall act on the

server copy of this order downloaded from the official website

of this Court.

49. Urgent Photostat certified copy of this order, if applied

for, be supplied to the parties upon compliance with all

requisite formalities.

[BIBHAS RANJAN DE, J.]