Jharkhand High Court
(Against The Judgment Of ... vs The State Of Bihar on 11 August, 2021
1 Cr. Appeal (SJ) No.205 of 1998
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No.205 of 1998
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(Against the Judgment of conviction and order of sentence dated
16.05.1998 passed by learned Special Judge, C.B.I. (South Bihar), Patna in
Special Case No.74 /85)
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Shri Aditya Narain Chaurasia, son of Late Anirudh Narain Chaurasia,
Resident of village- Thakurgaon, Police Station- Burmo, District- Ranchi
...... Appellant
Versus
The State of Bihar, through the Central Bureau of Investigation
..... Respondent
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For the Appellant : Mr. Dr. Ashok Kumar Singh, Advocate
Mr. Akash Deep, Advocate
For the C.B.I : Mrs. Nitu Sinha, Advocate
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties through Video Conferencing.
2. This appeal has been preferred by the appellant-convict being
aggrieved by the Judgment of conviction and order of sentence
dated 16.05.1998 passed by learned Special Judge, C.B.I. (South
Bihar), Patna in Special Case No.74 /85 whereby and where under,
the learned court below has held the appellant-convict guilty for
the offences punishable under Section 165A of the Indian Penal Code
read with Section 120B of the Indian Penal Code and sentenced the
appellant-convict to undergo Rigorous Imprisonment for one year.
This appeal was originally filed in the Patna High Court but after
creation of the High Court of Jharkhand, the appeal stood
transferred to this court.
3. The brief facts of this case is that the co-convict, Sri Sib Nath Bodhak
(since deceased and his Cr. Appeal (SJ) No. 203 / 1998 has since been
abated) while functioning as Branch Manager of Thakurganj Branch
of Bank of India in Ranchi, misused his financial position and took
illegal gratification from the appellant-convict, who was the
borrower of the said bank through the cheque bearing No.1044261 of
2 Cr. Appeal (SJ) No.205 of 1998
Rs.4,000/- dated 11.11.1980 and utilized the same for purchasing the
demand draft of Rs.7,750/- in favour of M/s Ranchers Marketing
Company, Ranchi for purchasing of a motorcycle and in lieu of this
illegal gratification paid by the appellant-convict, the wife of the
appellant-convict was sanctioned a loan of Rs. 25,000/- for the
purpose of purchasing a vehicle and the brother-in-law of the
appellant-convict namely Subodh Kumar was sanctioned a cash
credit limit of Rs. 25,000/- in utter disregard to the norms/ rules of
the bank, by the said co-convict Branch Manager of the said bank. In
the FIR besides the allegation of taking the bribe from the appellant-
convict, also the allegations have been made against the said co-
convict, the then Branch Manager of Bank of India of having
received bribe from many other account holders / borrowers of the
bank also. After investigation of the case by the CBI, charge sheet
was submitted against the appellant-convict and the said co-convict
for having committed offences punishable under Sections 109, 120B,
161, 165, 165A of the Indian Penal Code and Section 5(1) (d) read
with Section 5 (2) of Prevention of Corruption Act, 1947. Separate
charges for the offences punishable under Section 165 A and for the
offences punishable under Sections 109, 161, 165 of Indian Penal
Code were framed against the appellant-convict for having on
11.11.1980 at Thakurganj in the district of Ranchi abetted Sib Nath
Bodhak, Branch Manager, Bank of India, who was a public servant,
in commission of the offence punishable under Section 161 and 165
of the Indian Penal Code.
4. The appellant-convict pleaded not guilty to the charges and claimed
to be tried. Hence he was put to trial.
5. In support of its case, the prosecution altogether examined twelve
witnesses. Out of the witnesses examined by the prosecution, P.W.1-
Samiur Rahman has stated that in the year 1980, he took Rs.2,000/-
from the Bank of India, Thakurgaon Branch for purchasing
buffaloes, but the buffaloes died within a short while. Thus he has
not stated anything to incriminate appellant-convict in this case.
6. P.W. 2- P. Tirkey was the staff officer of Bank of India at the time of
his examination as witness in the court. He has stated that it is an
3 Cr. Appeal (SJ) No.205 of 1998
essential condition that a person who avails the vehicle loan, must
have driving license, experience in the field and interest in the
concerned work and is also capable of returning the loan. Hence, the
females are not given such loans. In his cross-examination, he has
stated that he was not examined by the police. He further stated that
Bank gives loan to the persons who do not have driving license as
absentee owner.
7. P.W. 3-Ramakant Mishra who was the Deputy Chief Officer,
Industrial Relations of the Bank of India at the time of his
examination in court. He has stated that he conducted one enquiry
against the co-convict S.N. Bodhak. Mr. Bodhak misused the vehicle
advance amount. Mr. Bodhak transferred the vehicle advance in his
savings account. When the time for repayment of loan came, a sum
of Rs. 3,200/- only was in the account of Mr. Bodhak. The co-convict-
Mr. Bodhak took a blank cheque for Rs.4,000/- from this appellant-
convict and Mr. Bodhak himself mentioned the name of the person
to whom the amount is to be paid in that cheque as the appellant-
convict had only put his signature and date in the said cheque. On
being proved by the P.W.-3, the cheque was marked as exhibit 2. He
has stated that all other materials except the date and signature of
the appellant-convict was in the hand-writing of Mr. Bodhak and
Mr. Bodhak has also put his initials over the same. It is further
deposed that after the said cheque being issued to Mr. Bodhak, Mr.
Bodhak sanctioned a loan of Rs.24,000/- to Smt. Shanti Devi for
purchasing a Mahindra Maxi taxi. Mr. Bodhak filled-up all the forms
of Shanti Devi, which was signed by Smt. Shanti Devi. In his cross-
examination, P.W.3 has stated that he does not remember whether
he was examined by police or not. The bank staffs do not fill up any
form of literate borrowers. The appellant-convict and his wife were
having the account with the Thakurgaon Branch of Bank of India,
Ranchi before the joining of the co-convict in the said branch. The
cash credit facility is granted to a person for one year only which is
renewed. The bank gives a second loan when the first loan is repaid.
He cannot say whether any loss has been occasioned to the bank by
giving the loan to the appellant-convict or his wife but the loan has
4 Cr. Appeal (SJ) No.205 of 1998
been closed after full satisfaction of the loan amount of the account
of the appellant-convict and his wife. In paragraph 19, he has stated
that the loan sanctioned to the appellant-convict was as per the rule
but there was irregularity in disbursal of the loan. The vehicle
purchased by the wife of the appellant-convict was valued more
than Rs.1,00,000/- and Rs.24,000/- was given as loan by the bank.
The remaining amount was spent by the wife of the appellant-
convict. Before closing the cash credit account of the appellant-
convict, he took several cash credit loan earlier also.
8. P.W. 4- R. Sitaraman was posted as a Steno-Typist in the Bank of
India on the date of his deposition. He has proved the order of
sanction for prosecution.
9. P.W. 5 - G.P. Gupta was the Assistant of State Bank of India. He has
stated that specimen signature of the co-convict, S. Bodhak was
obtained in his presence.
10. P.W. 6- Ashok Kumar Thakur and the P.W. 7 - Sundar Rajan were
tendered for cross-examination of the defence only but the defence
declined to cross-examine them.
11. P.W. 8- Abdul Rahman was a cultivator. He has stated about taking
loan of Rs. 1500/- from the Bank of India, Thakurgaon Branch,
Ranchi and he was given a pair of small bullocks worth Rs.1,100/-
but Rs.400/- was not paid to him.
12. P.W. 9- Santosh Munda has stated that a loan of Rs.2,000/- being
sanctioned in his favour and he was given a pair of bullocks of Rs.
1200/- but was not paid the rest amount of Rs.800/-.
13. P.W. 10- Amar Singh was posted as Assistant Government
Examiner of Questioned Documents and he has proved that the co-
convict S. Bodhak also wrote the cheque, marked as Exhibit 2 and
the application being marked as Exhibit 8.
14. P.W. 11- Uday Narayan Rai is the part Investigating Officer of the
case and he was entrusted with the investigation of the case after the
earlier Investigating Officer namely G. Verma. In his cross-
examination, he has stated that he has neither done any investigation
in the case nor did he record any statement of any witness and he
only submitted the charge sheet.
5 Cr. Appeal (SJ) No.205 of 1998
15. P.W. 12 - Mrinal Kanti Ghosh is an Accountant in M/s Ranchers
Marketing company. He has deposed that the co-convict S. N.
Bodhak paid Rs. 500/- as an advance and he has proved the carbon
copy of the receipt of payment of advance and also proved the
carbon copy of the receipt issued in favour of the co-convict S.N.
Bodhak for Rs.7,750/-. Thus PW4 to 12 also have not stated anything
to incriminate appellant-convict in this case.
16. After conclusion of the evidence of the prosecution, the statement of
the appellant-convict under Section 313 Cr.P.C. was recorded
wherein he has stated that he handed over the cheque with his
signature and date to the co-convict much later. He further stated
that he has repaid the loan before institution of the case.
17. No witness was examined on behalf of the defence in this case.
18. Learned trial court after considering the evidence in the record,
observed that the fact that the appellant-convict issued a cheque to
the co-convict, goes to show that it was for ulterior purpose as the
loan was granted to the wife of the appellant-convict who was not
having the driving license, proves that the cheque was given by the
appellant-convict for illegal gratification and accordingly, it
convicted and sentenced the appellant-convict, as already indicated
above.
19. Dr. Ashok Kumar Singh- learned counsel for the appellant-convict
submits that learned court below failed to appreciate the evidence in
the record in its proper perspective and submits that the prosecution
has failed to prove essential ingredients of the offences punishable
under Section 161 or 165 of the Indian Penal Code as was existing at
the relevant point of time and in the absence of that, the appellant-
convict ought not have been held guilty for the offence punishable
under Section 165 A of the Indian Penal Code with the aid of Section
120B of the Indian Penal Code. It is further submitted by Dr. Singh
that though the P.W-2 has categorically stated that he was not
examined by the investigating officer and the P.W-3 has stated that
he was not in a position to state as to whether he was examined by
the police or not, yet the non-examination of the investigating officer
has prejudiced the appellant-convict as well as the same has
6 Cr. Appeal (SJ) No.205 of 1998
rendered the testimony of the PW1 and 2 untrustworthy. It is next
submitted by Dr. Singh that the prosecution has failed to bring any
document in evidence to show that a person who is not having a
driving license, cannot be sanctioned a vehicle loan and in the
absence of any such document the learned trial court erred in
believing that the co-convict has done an illegal act by the
sanctioning of the vehicle loan to the wife of this appellant-convict. It
is also submitted that the learned court below failed to appreciate
the evidence of the P.W-2 wherein he has categorically stated that
such persons who does not have driving license, can be sanctioned
the loan as absentee owner as also the deposition of PW3, in
paragraph-19 of which the PW3 has stated in no uncertain manner
that the sanction of the loans were as per the rules of the bank. It is
further submitted by Dr. Singh that the only evidence that has been
brought on record against the appellant-convict is that the appellant-
convict signed the cheque and put date on the cheque as admittedly
the same was filled up by the co-convict but considering the fact that
the appellant-convict was admittedly having several accounts of him
as well as his wife and other relatives with bank of which the co-
convict was the branch manager and as disclosed by the appellant-
convict during the enquiry conducted by the officers of the bank
regarding the anomalies in the vehicle loan sanctioned to the co-
convict, that the appellant convict issued the said cheque to the co-
convict to discharge his debt regarding the ready-made garments
purchased by the co-convict during his visit to Kolkata shop of the
appellant-convict, such mere issuing of the cheque cannot be a
sufficient ground to bring home the charge for the offence
punishable under Section 165A read with Section 120B of the Indian
Penal Code. In support of his contention regarding sufficient
ingredients to bring home the charge for the offence punishable
under Section 7 as well as Section 13 (1) (d) (i) and (ii) of the
Prevention of Corruption Act, 1988, demand, acceptance and
recovery are the essential ingredients, Dr. Singh relies upon the
judgment of Hon'ble Supreme Court of India in the case of P.
7 Cr. Appeal (SJ) No.205 of 1998
Satyanarayana Murthy v. State of A.P. reported in (2015) 10 SCC
152 para-22 of which reads as under:-
22. "In a recent enunciation by this Court to discern the imperative
prerequisites of Sections 7 and 13 of the Act, it has been underlined in B.
Jayaraj [B. Jayaraj v. State of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri)
543] in unequivocal terms, 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 Sections 13(1)(d)(i) and (ii) of the Act. It
has been propounded 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. The proof of demand, thus, has been held to be an
indispensable essentiality and of permeating mandate for an offence under
Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a
presumption as envisaged therein, it has been held that while it is
extendable only to an offence under Section 7 and not to those under
Sections 13(1)(d)(i) and (ii) of the Act, it is contingent as well on the proof
of acceptance of illegal gratification for doing or forbearing to do any official
act. Such proof of acceptance of illegal gratification, it was emphasised,
could follow only if there was proof of demand. Axiomatically, it was held
that in absence of proof of demand, such legal presumption under Section
20 of the Act would also not arise."
20. It is next submitted by Dr. Singh that as the prosecution has
miserably failed to prove the essential ingredients of the offences
concerned for which the appellant--convict has been convicted, the
appellant-convict be acquitted of the charges, at least by giving him
the benefit of doubt. It is lastly submitted that the impugned
judgment of conviction and order of sentence of the appellant-
convict be set aside and the appellant-convict be acquitted of the
charges.
21. Mrs. Nitu Sinha- learned counsel for the Central Bureau of
Investigation on the other hand defended the impugned judgment
and order of sentence and submitted that the witnesses examined by
the prosecution have brought in ample evidence in the record to
establish the charges for which the appellant-convict has rightly
been convicted. Hence, it is submitted that the learned court below
having rightly convicted the appellant-convict and the sentence of
the appellant-convict being proper, this appeal, being without any
merit, be dismissed.
22. Having heard the submissions made at the Bar and after going
through the evidence in the record, before adverting to the materials
8 Cr. Appeal (SJ) No.205 of 1998
in the record, it is pertinent to refer to Sections 161, 165 and 165 A of
the Indian Penal Code which stood at the relevant time though it got
repealed subsequently, which read as under:-
"161. Public servant taking gratification other than legal
remuneration in respect of an official act.- Whoever, being or expecting
to be a public servant, accepts or obtains, or agrees to accept, or attempts to
obtain from any person, for himself or for any other person, any
gratification whatever, other than legal remuneration, as a motive or
reward for doing or forbearing to do any official act or for showing or
forbearing to show, in the exercise of his official functions, favour or
disfavour to any person, or for rendering or attempting to render any
service or disservice to any person, with the Central or any State
Government or Parliament or the Legislature of any State, or with any local
authority, corporation or Government company referred to in Section 21, or
with any public servant, as such, shall be punished with imprisonment of
either description for a term which may extend to three years, or with fine,
or with both.
"165. Public servant obtaining valuable thing, without
consideration, from person concerned in proceeding or business
transacted by such public servant.- Whoever, being a public servant,
accepts or obtains or agrees to accept or attempts to obtain for himself, or for
any other person, any valuable thing without consideration or for
consideration which he knows to be inadequate.
from any person whom he knows to have been, or to be, or to be likely
to be concerned in any proceeding or business transacted, or about to be
transacted by such public servant, or having any connection with the
official functions of himself or of any public servant to whom he is
subordinate;
or from any person whom he knows to be interested in or related to
the person so concerned;
shall be punished with [imprisonment of either description for a term
which may extend to three years,] or with fine, or with both.
"165-A. Punishment for abetment of offences defined in
Sec.161 or Sec. 165.- Whoever abets any offence punishable under Sec. 161
or Sec. 165, whether or not that offence, is committed in consequence of the
abetment shall be punished with imprisonment of either description for a
term which may extend to three years, or with fine, or with both."
23. It is crystal clear from the above that to establish the offence
punishable under Section 165 A of the Indian Penal Code the
ingredients required are as under:-
(1) an accused abetted the offence.
(2) that the offence abetted was one punishable under Section 161 or
Section 165.
9 Cr. Appeal (SJ) No.205 of 1998
24. It is a settled principle of law that abetment involves a mental
process of instigating a person or intentionally aiding that person in
doing of a thing. In cases of conspiracy also it would involve that
mental process of entering into the conspiracy for the doing of that
thing.
As has been held by the Hon'ble Supreme Court of India in
the case of Sohan Raj Sharma Vs. State of Haryana reported in
(2008) 11 SCC 215, a person abets doing of a thing if:-
(i) he instigates any person to do that thing; or
(ii) engages with one or more other persons in any conspiracy
for the doing of that thing; or
(iii) intentionally aids, by act or illegal omission, the doing of
that thing.
and these are essential to complete abetment as a crime. It is also
pertinent to mention here that in this case no specific charge for the
offence punishable under section 120B of the Indian Penal Code has
been framed against the appellant-convict though the appellant
convict has been convicted with the aid of the said offence.
25. Now, coming to the facts of the case, it is undisputed fact that the
appellant-convict was having a cash credit facility with the Bank of
India much prior to the co-convict S. N. Bodhak joining the said
branch of that bank. There is no evidence in the record that the
appellant-convict had the knowledge and intention that the cheque
issued by him could be used by the co-convict for illegal
gratification. There is no conclusive evidence in the record that any
illegality was done by the co-convict in sanctioning of any loan to
either the wife of the appellant-convict or his brother-in-law rather
the PW3 in paragraph-19 of his deposition has categorically stated
that the loan was sanctioned as per the rules of the bank though
there was irregularity in its disbursal. There is no evidence in the
record as to what were the irregularities in the disbursal of the loans.
Keeping in view that this is a criminal proceeding, it was incumbent
upon the prosecution to bring in record the evidence regarding the
irregularities in the disbursal of the loan by the co-convict-Bank
Manager and in the absence of the detailed particulars of the alleged
10 Cr. Appeal (SJ) No.205 of 1998
irregularities, certainly the claim of PW3 that irregularities were
committed by the co-convict-Bank Manager, cannot be treated as
gospel truth. The prosecution failed to prove that the loan cannot be
given to a person who doesn't have a driving license, because as
already indicated above the PW 2 himself has stated that such loan
can be given to the person even if that person does not have a
driving license as absentee owner. There is no dispute that the loans
sanctioned by the co-convict bank manager to the wife and brother
in law of the appellant-convict, has been liquidated and repaid. The
enquiry which was conducted against the co-convict and the report
of which has been marked Ext.20 is regarding the allegations against
the co-convict pertains to the illegality in the vehicle loan account of
him. The co-convict-Bank Manager was sanctioned Rs.8,100/- and
the said amount was withdrawn from the loan account from
01.08.1980 to 11.11.1980 and credited to the savings account of the
co-convict-Sri S. N. Bodhak. Sri Bodhak paid Rs.500/- on 26.08.1980
for a motorcycle and made the final payment of Rs.7,750/- by
demand draft on 11.11.1980. In the said report (marked exhibit-20),
the statement of the appellant-convict has also been mentioned
wherein the appellant-convict has stated that Mr. Bodhak
occasionally used to purchase readymade garments for the shop of
the appellant-convict whenever he used to visit Kolkata and for
which the appellant-convict used to pay him the required amount
for purchasing the garments for his said shop and likewise he
handed over the blank cheque bearing No.1044261 to Mr. Bodhak for
purchasing garments for his shop from Kolkata and Mr. Bodhak
filled the said cheque himself in his favour for Rs.4,000/- and the
amount withdrawn from his cash credit account of the appellant-
convict on 11.11.1980. In the said report it has been categorically
mentioned by the inspector-Bank Officer, who submitted the report
to the Regional Manager, Bank of India, Ranchi Region, Ranchi
regarding the cash credit account with sanction limit of Rs.25,000/-
of Subodh Kumar, the brother-in-law of Mr. Chaurasia-the
appellant-convict, that the said inspector could not observe anything
linking with the payment of Rs.4,000/- to Mr. Bodhak by the
11 Cr. Appeal (SJ) No.205 of 1998
appellant-convict, except that he is the brother-in-law of Mr.
Chaurasia- the appellant-convict and the address in the account was
given as C/o- A. N. Chaurasia although they have separate
establishments and business and the cash credit account was heavily
withdrawn beyond the authority of the manager. So, the material
against the appellant-convict to claim that he paid said Rs.4,000/- by
the way of a blank cheque as gratification to the co-convict can at
best, be termed as a suspicion but the same, in the considered
opinion of this Court, does not come under the category of
conclusive proof of abetting either the offence punishable under
Section 161 or 165 of the Indian Penal Code as the fact that the co-
convict used to go to Kolkata frequently and he used to purchase
garments for the shop of the appellant-convict has remained
unchallenged and thus undisputed. Such private arrangement
between the appellant-convict and the co-convict Bank Manager
may be detrimental to the co-convict Bank Manager in respect of his
violating his service conditions, but certainly there is no element of
illegality in such arrangement so far as the appellant-convict is
concerned. It is a settled principle of law that suspicion however
strong cannot take the place of proof. The plea of the appellant-
convict before the Inspector- Bank Officer, of having given the
concerned blank cheque to the co-convict Bank Manager towards
discharging his debt to the Branch Manager as the Branch Manager
invested the said money consequent upon a private arrangement by
which the Branch Manager used to bring ready-made garments in
his personal capacity from Kolkata for the shop of the appellant-
convict situated at Thakurgaon which is about 30 kilometres away
from Ranchi and fairly a countryside, cannot be ruled out. It is well-
settled that in order to establish the charges of criminal conspiracy
the incriminating circumstances must form a chain of events from
which a conclusion about the guilt of the accused could be drawn. In
the facts of the case this court is of the considered view that the
evidence put forth in the record by the prosecution is not of such
nature that it can conclusively be established from the evidence in
the record that the said blank cheque was given by the appellant-
12 Cr. Appeal (SJ) No.205 of 1998
convict to the co-convict Branch Manager of the bank to abet
commission of the offence punishable under section 161 or section
165 of the Indian Penal Code. Hence, this Court is of the
considered view that this is a fit case where the appellant-convict-
Shri Aditya Narain Chaurasia be acquitted by giving him the benefit
of doubt.
26. Accordingly, the impugned judgment of conviction and order of
sentence dated 16.05.1998 passed by Special Judge, C.B.I. (South
Bihar) Patna in Special Case No.74/85 is set aside and the appellant-
convict- Shri Aditya Narain Chaurasia is acquitted by giving him the
benefit of doubt.
27. Perusal of the record reveals that the appellant-convict- Shri Aditya
Narain Chaurasia is in custody. In view of his acquittal, he is
directed to be released from custody forthwith unless his detention
is required in any other case.
28. Let a copy of this Judgment along with the lower court records be
sent to the learned court below forthwith.
29. In the result, this appeal stands allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 11th August, 2021.
AFR/Smita-Animesh
