Ratneshwar Sharma vs The State Of Jharkhand Through ...
2021 Latest Caselaw 3197 Jhar

                     1                      Cr. Appeal (SJ) No.290 of 2014




 IN THE HIGH COURT OF JHARKHAND AT RANCHI
          Cr. Appeal (SJ) No. 290 of 2014

[Against the Judgment of conviction and Order of sentence
dated 16.04.2014, passed by the learned Special Judge, C.B.I./
A.C.B, Ranchi in R.C. Case No. 05(A)/2009-AHD-R]


Ratneshwar Sharma, S/o -Late Janak Singh, Resident of
Warispur, P.O. + P.S. -Bhagwanpur, District -Vaishali (Bihar)
                                               .....        Appellant
                         Versus

The State of Jharkhand            through   Central        Bureau            of
Investigation, Ranchi
                                               .....       Respondent
                            .....

For the Appellant : Mr. Suraj Kumar, 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. The appellant-convict has preferred this appeal

being aggrieved by the Judgment of conviction and Order of

sentence dated 16.04.2014, passed by the learned Special

Judge, C.B.I.(A.C.B), Ranchi in R.C. Case No. 05(A)/2009-

AHD-R whereby and where under the learned court below

has held the appellant-convict guilty for the offences

punishable under Section 7 and under Section 13(2) read with

Section 13(1) (d) of the Prevention of Corruption Act, 1988 and

sentenced him to undergo Rigorous Imprisonment for a 2 Cr. Appeal (SJ) No.290 of 2014

period of one year for the offence committed under Section 7

of the Prevention of Corruption Act, 1988 and fine of

Rs.1,000/- with default clause of undergoing Rigorous

Imprisonment for three months and for the offence punishable

under Section 13(2) read with Section 13(1) (d) of the

Prevention of Corruption Act, 1988, the appellant-convict has

been sentenced to undergo Rigorous Imprisonment for one

year and fine of Rs.5,000/- with default clause of undergoing

Rigorous Imprisonment for three months, if the fine amount is

not paid and it has also been ordered that both the sentences

shall run concurrently.

3. The brief facts of the case is that the appellant-

convict was posted as Security Sub-Inspector of Bhurkunda

Project of C.C.L. The complainant (P.W.7) was running a

tobacco shop at Sayal More of Bhurkunda. The appellant-

convict demolished the shop of the complainant and when the

complainant approached him and sought permission to allow

him to put his shop, the appellant-convict on 15.05.2009

demanded Rs.1,000/- for permitting the complainant to put

his shop and also cautioned him that if the complainant puts

his shop without giving the money then the appellant-convict

would demolish his shop and would also lodge complaint

with police. As the complainant was not intending to pay the

bribe, hence, he lodged the complaint with the Superintendent

of Police, Central Bureau of Investigation, Ranchi. P.W.10 -

3 Cr. Appeal (SJ) No.290 of 2014

Ram Kishore Sahu, A.S.I., verified the allegations made in the

complaint by going to Sayal More of Bhurkunda in the

evening of 15.05.2009. The appellant-convict came near the

shop of the informant at about 05:30 P.M. and enquired from

the complainant in presence of the P.W.10, whether the

complainant has arranged the money, about which the

appellant-convict told him in the morning of that day. The

complainant replied that he was trying to arrange the money.

Upon which, the appellant-convict told that in the next day

evening, he would come to that place and the complainant has

to pay the money to him at that time and after that the

complainant can freely run his tobacco shop there but again

said that if the complainant will not give the money then the

appellant-convict would complain to the police against the

complainant(P.W.7). The P.W.10 submitted his verification

report which has been marked Ext.13 and on the basis of the

report submitted by the P.W.10, the F.I.R. of this case was

registered. The complaint of the complainant (P.W.7) has been

marked Ext. 11 and the formal F.I.R. has been marked Ext. 14.

A trap was successfully conducted on 16.05.2009. The

appellant-convict was caught red handed upon accepting the

bribe amount of Rs.1,000/-.

4. After completion of investigation, charge sheet for

the offences punishable under Section 7 and under Section

13(2) read with Section 13(1) (d) of the Prevention of 4 Cr. Appeal (SJ) No.290 of 2014

Corruption Act, 1988 was submitted against the appellant-

convict. Separate charges for the offences punishable under

Section 7 and under Section 13(2) read with Section 13(1) (d) of

the Prevention of Corruption Act, 1988 were framed against

the appellant-convict to which, the appellant-convict pleaded

not guilty and he was put to trial.

5. In support of its case, the prosecution altogether

examined 13 witnesses besides proving the documents but no

witness was examined on behalf of the appellant-convict.

6. Out of the witnesses examined by the prosecution,

P.W.7- Mithilesh Kumar is the complainant himself. He has

stated about the contents of the complaint submitted by him to

the Superintendent of Police, C.B.I. He has also stated in detail

about the pre-trap preparation. He further stated that on

16.05.2009, he along with the members of the trap team in two

vehicles reached Sayal More. At about 05:30 P.M., the

appellant-convict came there. The complainant wished him

and sought permission to run his shop. The appellant-convict

demanded Rs.1,000/- and also told the complainant that till

five days, he must run his shop on a cot and he should not put

any pillar. Upon demand of Rs.1,000/- by the appellant-

convict, the P.W.7 brought out the money from his shirt

pocket and gave it to the appellant-convict. The appellant-

convict took the money with his right hand but did not count

the money. He kept the money in the back pocket of his pant.

5 Cr. Appeal (SJ) No.290 of 2014

After this, the personnel of C.B.I. and independent witnesses

surrounded the appellant-convict. The sodium carbonate

solution was prepared and upon the right hand of the

appellant-convict being immersed in the solution, the colour of

the said solution turned pink. The solution was kept in a bottle

and was sealed. His signatures were obtained. P.W.2 -

Rajendra Kumar brought out the money from the pocket of the

appellant-convict. The numbers of the currency notes were

compared and the numbers tallied. The pocket of the pant of

the appellant-convict was also immersed in the sodium

carbonate solution and the colour of the solution turned pink

and the same was kept in another bottle and sealed. The

complainant also identified the appellant-convict who was

present in the court. In his cross-examination, the P.W.7 stated

that he was involved in two cases also and he put his tobacco

shop on the land of C.C.L. On 15.05.2009, the appellant-convict

demanded Rs.1,000/- for the first time from the P.W.7.

7. P.W.5- Kishor Prasad Mishra is the shadow

witness. He has stated about the pre-trap preparations in

detail. He further deposed that on 16.05.2009, they reached

near Sayal More of Bhurkunda at 04:30 P.M. and they alighted

from the vehicle a few steps before the Sayal More. At 05:00

P.M., they reached Sayal More and took their respective

positions. At 05:30 P.M., the appellant-convict came. The

P.W.7 told the appellant-convict to permit him to run his 6 Cr. Appeal (SJ) No.290 of 2014

tobacco shop at the said place. The appellant-convict told the

informant to first give Rs.1,000/- and to put his cot for five

days but within those five days, the informant must not put

any pillar. The P.W.7 brought out money from his pocket. The

appellant-convict told the complainant to give him the money

and on being demanded by the appellant-convict, the P.W.7-

complaint gave Rs.1,000/- to the appellant-convict. The

appellant-convict took the money by his right hand and kept

the same in the right pocket of his pant. Thereafter the entire

trap team reached near the appellant-convict. B.K. Singh

(P.W.13) challenged the appellant-convict, at which the

appellant-convict became nervous and accepted that he

received the money. The C.B.I. officers caught hold of both the

hands of the appellant-convict by the wrist. The sodium

carbonate solution was prepared and the right hand of the

appellant-convict was washed with the same and the colour of

the solution turned pink. The same was kept in a bottle and

sealed. P.W.5 also signed on different documents and exhibits.

P.W.2 brought out Rs.1,000/- from the back pocket of the

appellant-convict. The number of the notes upon being

compared, tallied. They went to the Project Office with the

appellant-convict. In his cross-examination, the P.W.5 has

stated that he does not remember who was next to him at the

time of occurrence.

7 Cr. Appeal (SJ) No.290 of 2014

8. P.W.2- Rajendra Kumar is the other independent

witness. He has stated about the pre-trap preparations. He

further stated that on 16.05.2009, they reached Bhurkunda at

04:30 P.M. The appellant-convict came to the place of

occurrence and talked with the complainant but he cannot

hear the conversation between the complainant and the

appellant-convict as he was at a distance. Thereafter, the P.W.7

brought out money from his pocket and gave it to the

appellant-convict. The appellant-convict without seeing or

counting, kept the money in his right back pocket. The

complainant signaled at that time. The appellant-convict was

caught. The hand of the appellant convict was washed with

the sodium carbonate solution and the colour of the solution

turned pink. Money was brought out from the pocket of the

appellant-convict and the same was compared with the G.C.

Note numbers. He also proved the various documents. In his

cross-examination, he has stated that he was at a distance of 10

feet from the place of occurrence. The trap took place between

05:00 -05:30.

9. P.W.10 -Ram Kishor Sahu was a Sub-Inspector, of

C.B.I., EOW, Ranchi. He has stated about the complaint made

by the P.W.7 on 15.05.2009. He went for verification of the

complaint along with the complainant (P.W.7). On 15.05.2009,

they reached there at 05:30 P.M. At that time, the appellant-

convict went there and talked with the P.W.10. The appellant-

8 Cr. Appeal (SJ) No.290 of 2014

convict demanded Rs.1,000/- for not complaining the matter

of encroachment upon the land of C.C.L. to the police. On the

next day, the P.W.10 and the complainant came to C.B.I. Office

and the P.W.10 submitted his verification report to the S.P of

C.B.I. Sri B.K. Singh, Inspector (P.W.13) was given the charge

of investigation. A trap team was prepared and the pre-trap

preparations were made about which he has also stated in

detail. They reached Sayal More at 04:30 and everybody took

their position at 05:00 P.M. At 05:30 P.M., the appellant-convict

reached Sayal More. The P.W.7 wished him and requested the

appellant-convict to permit him to put up his shop. The

appellant-convict demanded Rs.1,000/- and told to put his cot

for five days and within five days, not to put any pillars and

thereafter demanded Rs.1,000/- at which the P.W.7 gave

Rs.1,000/- after bringing out from the pocket of his shirt. The

appellant-convict kept the money in his right side back pocket.

As the giving and taking of money took place, all the members

assembled there and surrounded the appellant-convict. P.W.13

gave his identification and the identification of the members of

the trap team to the appellant-convict and enquired from the

appellant-convict as to whether, he has taken money. The

appellant-convict became nervous and admitted taking

money. The sodium carbonate solution was prepared and the

hand of the appellant-convict was washed in the solution. The

colour of the solution in which the right hand of the appellant-

9 Cr. Appeal (SJ) No.290 of 2014

convict was washed, turned to pink, which was kept in a

bottle and sealed. P.W.2 brought out the bribe money from the

pocket of the appellant-convict. The numbers of the currency

notes were compared and the same tallied with the numbers

mentioned in the pre-trap memorandum. In his cross-

examination, the P.W.10 has stated that he went to Sayal More

by bus for verification.

10. P.W.12- Manas Kumar Bakshi was also an officer

of C.B.I. and member of the trap team. He has deposed about

the members of the trap team and the pre-trap preparations.

He then stated that on 16.05.2009, they reached the Sayal

More, Bhurkunda at 04:30 P.M. They got down from the

vehicle a little before the Sayal More at 05:30 P.M. The

appellant-convict came near the complainant. The

complainant (P.W.7) wished him and after some conversation,

the P.W.7 brought out the money and gave it to the appellant-

convict in his right hand. P.W.13 challenged the appellant-

convict. The appellant-convict admitted taking Rs.1,000/-

from the complainant. The hand of the appellant-convict was

washed with the sodium carbonate solution and the colour of

the solution with which his right hand was washed turned

pink. He also submitted about the number of the currency

notes tallying with the numbers mentioned in the pre-trap

memorandum and the pocket of the pant of the appellant-

convict was also washed with the sodium carbonate solution 10 Cr. Appeal (SJ) No.290 of 2014

and the colour of the solution turned pink. In his cross-

examination, the P.W.12 has stated that he was at a distance of

40 metre and he could not hear the conversation between the

appellant-convict and the P.W.7 but saw giving and taking of

money.

11. P.W.13- Bir Kuwar Singh is the I.O. of the case and

he was also a member of the trap team. He has deposed about

the investigation done by him in this case and he has proved

the documents and materials exhibits also. P.W.13 has also

stated about the pre-trap preparations in detail. He further

deposed that the appellant-convict came at 05:30 P.M. to Sayal

More and met the P.W.7-complainant. There was some

conversation between the two. Thereafter, the complainant-

P.W.7 brought out the money from the pocket of his shirt and

gave it to the appellant-convict. The appellant-convict received

the same in his right hand and kept the same in his pocket. By

that time, the P.W.2 and the other members of the trap team

reached the place and the P.W.13 challenged the appellant-

convict after revealing his identity by asking him that the

appellant-convict has demanded and accepted Rs.1,000/- as

bribe from the P.W.7 for allowing him to put his tobacco shop.

The appellant-convict became worried and stated that he has

committed a mistake. P.W.13 has also stated about the colour

of the sodium carbonate solution turning pink after the finger

of the right hand of the appellant-convict was washed with the 11 Cr. Appeal (SJ) No.290 of 2014

solution. He has also stated about the numbers of the currency

notes tallying with the numbers mentioned in the pre-trap

memorandum. During the course of investigation, he sent the

exhibits for opinion to Central Forensic Science Laboratory,

Kolkata. He has recorded the statement of the witnesses

during course of investigation. In his cross-examination, the

P.W.13 has stated that during the course of investigation, he

found that some of the shops at Sayal More were

unauthorized while some shops were with the permission of

C.C.L. He has not heard the conversation between the P.W.7

and the appellant-convict but he has seen the giving and

taking.

12. Apart from the material witnesses, the

prosecution also examined P.W.1 -Ranjan Kumar Saha who

was the authority for sanction for prosecution of the appellant-

convict and on being proved by him, the sanction for

prosecution has been marked Ext.1. His cross-examination

was declined by the appellant-convict.

13. P.W.3 -Shailendra Singh has inter-alia stated that

the appellant-convict was the Security Sub-Inspector and his

duty was round the Clock in shifts.

14. P.W.4 -Bimal Chandra Purkait is the S.S.O,

C.S.F.L, Kolkata who did the chemical examination of the

solution sent and he opined that out of the four bottles, three

bottles contained phenolphthalein, sodium carbonate and 12 Cr. Appeal (SJ) No.290 of 2014

water but the bottle with which left hand of the appellant-

convict was washed, did not contain phenolphthalein and it

contained only sodium carbonate and water.

15. P.W.6 -Saiyad Sahab Raza (Raja) is the Chief

Manager of C.C.L. He has proved the production-cum-seizure

memo of different documents seized by the C.B.I. upon

production by the officers of C.C.L. and also proved

documents to show that on the relevant day, the appellant-

convict was the Security Sub-Inspector.

16. P.W.8 -Benzamin Paul who was a General

Manager of C.C.L. has inter-alia stated that the appellant-

convict was a Security Sub-Inspector and the C.M.D., C.C.L

was the competent authority to remove him from service.

17. P.W.9 -Pradeep Kumar Sinha was the Project

Officer of Bhurkunda Colliery. He deposed that the appellant-

convict was directed to go to the spot and demolish the

encroachment made at Sayal More, Bhurkunda and submit his

report but the appellant-convict did not submit his report.

18. P.W.11 -Uma Shanker Yadav was a retired ASSI,

of Bhurkunda Colliery. He has stated that security personnel

were deputed shift wise in three shifts.

19. After closure of the evidence of the prosecution,

the statement under Section 313 Cr.P.C. of the appellant-

convict was recorded regarding the circumstances appearing

in evidence against him. The appellant-convict admitted that 13 Cr. Appeal (SJ) No.290 of 2014

he was posted as Security Sub-Inspector on 16.05.2009 but he

denied demand of bribe of Rs.1,000/- made by him on

15.05.2009 from the P.W.7 and also either expressed his

ignorance or denied the material questions put to him and

pleaded innocence and stated that he will adduce evidence in

his defence.

20. Learned trial court after taking into consideration

the evidence in the record observed that all the prosecution

witnesses on the matter of trap have supported the case of the

prosecution and have deposed about demand, acceptance and

recovery of the bribe money, which is corroborated by the

colour of the sodium carbonate solution turning pink and the

numbers of the currency notes tallying with the pre-trap

memorandum and held that the evidence in the record is

sufficient to establish the charges for the offences punishable

under Section 7 and under Section 13 (2) read with Section 13

(1) (d) of the Prevention of Corruption Act, 1988 and convicted

and sentenced the appellant-convict as already indicated

above.

21. Mr. Suraj Kumar, the learned counsel for the

appellant-convict submits that the learned trial court failed to

appreciate the evidence in the record in its proper perspective

and could not consider the fact that the prosecution has

miserably failed to prove the case beyond reasonable doubt. It

is next submitted by Mr. Suraj Kumar, learned counsel for the 14 Cr. Appeal (SJ) No.290 of 2014

appellant-convict that there is ample evidence in the record

that the appellant-convict was not the sole Security Sub-

Inspector rather there were others also and the appellant-

convict was not in a position to permit the P.W.7-complainant

to put up his shop at the place of occurrence, hence, the

contention of the prosecution that the appellant-convict was

paid bribe for the purpose of being allowed to put up a

tobacco shop is baseless and on this score also, the appellant-

convict needs to be given the benefit of doubt. Mr. Suraj

Kumar, learned counsel for the appellant-convict relied upon

the judgment of Hon'ble Supreme Court of India in the case of

Mukut Bihari and Anr. v. State of Rajasthan reported in

(2012) 11 SCC 642, paragraph no.11 of which reads as under :-

"11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an 15 Cr. Appeal (SJ) No.290 of 2014

interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person. [Vide Ram Prakash Arora v. State of Punjab [(1972) 3 SCC 652 : 1972 SCC (Cri) 696 : AIR 1973 SC 498] , Panalal Damodar Rathi v. State of Maharashtra [(1979) 4 SCC 526 : 1980 SCC (Cri) 121] , Suraj Mal v. State (Delhi Admn.) [(1979) 4 SCC 725 : 1980 SCC (Cri) 159 : AIR 1979 SC 1408] , Meena v. State of Maharashtra [(2000) 5 SCC 21 : 2000 SCC (Cri) 878] , T. Subramanian v. State of T.N. [(2006) 1 SCC 401 : (2006) 1 SCC (Cri) 401] , A. Subair v. State of Kerala [(2009) 6 SCC 587 : (2009) 3 SCC (Cri) 85] , State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede [(2009) 15 SCC 200 : (2010) 2 SCC (Cri) 385] , C.M. Girish Babu v. CBI [(2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1] and State of Kerala v. C.P. Rao [(2011) 6 SCC 450 : (2011) 2 SCC (Cri) 1010 : (2011) 2 SCC (L&S) 714] .]"

and submitted that as there is no evidence to prove

payment of bribe or to show that the money was taken

voluntarily as bribe hence, the appellant-convict ought to have

been acquitted by the trial court by giving him the benefit of

doubt. Lastly, it is submitted by Mr. Suraj Kumar, learned

counsel for the appellant-convict by relying upon an order

passed by a coordinate Bench of this Court in the case of

Krishna Bihari Singh v. State of Jharkhand reported in 2007

(1) JLJR 14, paragraph no.7 of which reads as under:-

"7. Though the minimum sentence provided under the aforesaid sections has been awarded to the appellant, but in my view, since the appellant is aged more than 60 years and against him the case of the prosecution was that he accepted Rs 10/- only as bribe, which was recovered from his possession and for which he has already undergone the ordeal of protracted trial for about 15 years, the ends of justice would be met if the sentence of imprisonment; awarded to the appellant, is reduced to the period already undergone by him."

16 Cr. Appeal (SJ) No.290 of 2014

which was also relied upon by another coordinate

Bench of this Court in the case of Rajendra Sharma vs. The

State of Jharkhand through C.B.I. reported in 2011 (2) JLJR

434, that considering the fact that the appellant-convict is an

old person of 69 years of age and he has received petty

amount of Rs.1,000/- as bribe and he has already undergone

sentence of about ten months out of the maximum sentence of

one year hence, the sentence of the appellant-convict be

reduced to a period he has already undergone, in case, this

Court confirms his conviction.

22. Mrs. Nitu Sinha, the learned counsel for the

Central Bureau of Investigation on the other hand defended

the impugned judgment of conviction and submitted that the

P.Ws.7 and 5 who are respectively the complainant and the

shadow witness as well as P.W.10 have categorically stated

about the three ingredients of

(i) demand of bribe by the appellant-convict,

(ii) acceptance of bribe by him; and

(iii) recovery of the tainted bribe money from the appellant-

convict.

It is next submitted by Nitu Sinha, the learned counsel

for the Central Bureau of Investigation that in the respective

cross-examination of these witnesses, nothing has been

elicited to demolish or discredit their testimonies. It is then

submitted that in fact, there is no cross-examination at all of 17 Cr. Appeal (SJ) No.290 of 2014

any of the prosecution witnesses examined in this case

including the P.W.7, P.W.10 and P.W.5 regarding their

testimonies made in their respective examination-in-chief so

far as the essential ingredients of bringing home the charges

for the offences punishable under Section 7 and under Section

13 (2) read with 13 (1) (d) of Prevention of Corruption Act,

1988 being demand of money, acceptance of money and

recovery of money. It is further submitted by Mrs. Nitu Sinha,

the learned counsel for the Central Bureau of Investigation,

that the testimonies of P.W.7, P.W.10 and P.W.5 has been

corroborated by the testimonies of P.W.2, P.W.12 and P.W.13

who have also stated about the acceptance and recovery of the

tainted money and as obviously they being at a distance at the

time of trap, they could not hear the exact conversation

between the P.W.7 and the appellant-convict regarding the

demand of money made by the appellant-convict. It is further

submitted that the P.W.10 has also stated that one day prior to

the occurrence on 15.05.2009 during course of verification of

the complaint, he also heard the appellant-convict demanding

bribe of Rs.1,000/- for allowing the P.W.7 to put up his shop

at the concerned place of occurrence and agreed to receive the

bribe amount on the next day at about 05:30 P.M. and this

portion of the testimony of the P.W.10 has also not been

challenged in any manner in his cross-examination and in the

absence of any cross-examination on this material particulars, 18 Cr. Appeal (SJ) No.290 of 2014

the testimonies of these prosecution witnesses are to be

accepted as true. It is also submitted by Mrs Sinha, that the

contention of the appellant-convict that he had no authority to

allow the complainant to put to shop, is an irrelevant

submission as without doubt the appellant-convict was the

person, in capacity of the security sub- inspector who was to

report encroachment of the land of CCL and it is not the case

of the prosecution that the complainant was seeking any

permanent permission from the competent authority of the

CCL to put his shop but he only wanted an accommodation

from the appellant-convict, to the extent that the appellant-

convict will not disturb the complainant from putting up his

tobacco shop. It is then submitted that the contention of the

appellant-convict that he was not the sole security sub-

inspector does not carry any weight, as there is specific

allegation against the appellant-convict that he demolished

the shop of the complainant earlier and only he demanded

and accepted the bribe amount from the complainant and the

bribe amount was recovered from him. It is next submitted by

Mrs. Nitu Sinha, the learned counsel for the Central Bureau of

Investigation that the testimony of P.W.4 also corroborates the

case of the prosecution also as the chemical examination of the

solution reveals that the solution in which the hand and

pocket of pant of the appellant-convict was washed contained

phenolphthalein in addition to sodium carbonate and water.

19 Cr. Appeal (SJ) No.290 of 2014

Mrs. Nitu Sinha, the learned counsel for the Central Bureau of

Investigation relied upon the judgment of Hon'ble Supreme

Court of India in the case of Vinod Kumar Garg v. State

(NCT of Delhi), reported in (2020) 2 SCC 88, paragraph

nos.16 and 17 of which reads as under :-

"16. On the said aspect, we would now refer to Section 20 of the Act which reads as under:

"20. Presumption where public servant accepts gratification other than legal remuneration.--(1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) or sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.

(2) Where in any trial of an offence punishable under Section 12 or under clause (b) of Section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.

(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn."

20 Cr. Appeal (SJ) No.290 of 2014

The statutory presumption under Section 20 of the Act can be confuted by bringing on record some evidence, either direct or circumstantial, that the money was accepted other than for the motive or the reward under Section 7 of the Act. The standard required for rebutting the presumption is tested on the anvil of preponderance of probabilities which is a threshold of a lower degree than proof beyond all reasonable doubt.

17. In the case at hand, the condition precedent to drawing such a legal presumption that the accused has demanded and was paid the bribe money has been proved and established by the incriminating material on record. Thus, the presumption under Section 20 of the Act becomes applicable for the offence committed by the appellant under Section 7 of the Act. The appellant was found in possession of the bribe money and no reasonable explanation is forthcoming that may rebut the presumption. Further, the recovery of the money from the pocket of the appellant has also been proved without doubt. We, therefore, hold that money was demanded and accepted not as a legal remuneration but as a motive or reward to provide electricity connection to Nand Lal (PW 2) for the shed."

and submits that the evidence in the record is sufficient

enough to establish beyond reasonable doubt, the

foundational facts, to draw the statutory presumption under

Section 20 of Prevention of Corruption Act, 1988, that money

of Rs.1,000/- accepted by the appellant-convict was accepted

as the motive or the reward such as is mentioned in Section 7

of the Act. It is next submitted by Mrs. Nitu Sinha, the learned

counsel for the Central Bureau of Investigation that in the

absence of any evidence whatsoever adduced by the

appellant-convict, the said presumption could not be rebutted

by the defence. It is further submitted by Mrs. Sinha, the

learned counsel for the Central Bureau of Investigation that as

the statute itself prescribes the minimum sentence of one year 21 Cr. Appeal (SJ) No.290 of 2014

so far as the offence punishable under section 13 (2) of the

Prevention of Corruption Act 1988 for the offences which

were committed before the year 2014, does not permit

reduction of the sentence than the minimum sentence. Hence,

it is submitted that the sentence imposed by the learned court

below is also proper and there is no scope for reducing the

same further. Hence, it is submitted by Mrs. Nitu Sinha, the

learned counsel for the Central Bureau of Investigation that

this appeal being without any merit be dismissed.

23. Having heard the rival submissions made at the

Bar and after going through the materials in the record, it is

pertinent to mention here that there is no dispute that it is a

settled principle of law as has also been held in the case of

Mukut Bihari and Anr. v. State of Rajasthan (supra) that

mere recovery of the bribe by itself cannot bring home the

charges for the offences punishable under Section 7 or Section

13 (2) read with Section 13 (1) (d) of Prevention of Corruption

Act, 1988 against the accused of the case but here in this case,

both the P.W.7, P.W.10 and P.W.5 have categorically stated in

their depositions that the appellant-convict demanded the

bribe of Rs.1,000/- for permitting P.W.7 to put his shop

initially for the period of 5 days only with a cot and only upon

such demand, the P.W.7 paid the bribe of Rs.1,000/- which

was accepted and kept in the back pocket of his pant by the

appellant-convict and the same was recovered by the members 22 Cr. Appeal (SJ) No.290 of 2014

of the trap team and upon the right hand and pocket of pant of

the appellant-convict being washed with sodium carbonate

solution, the colour of the solution turned pink and this in the

considered view of this Court is sufficient to constitute all the

three ingredients i.e. demand of bribe amount by the

appellant-convict, acceptance of the bribe by the appellant-

convict and recovery of the bribe amount from the appellant-

convict. More so, because there is no cross-examination at all

by any of these three witnesses or for that matter, the other

witnesses of the trap team being the P.W.2, P.W.12 and P.W.13

and their evidence in respect of the said ingredients for

bringing home the charges for the offences punishable under

section 7 and 13(2) read with 13(1)(d) of the Prevention of

Corruption Act 1988, has remained intact and the evidence in

the record is sufficient to draw the presumption under section

20 of the Prevention of Corruption Act 1988, that Rs.1,000/-

accepted by the appellant-convict was as reward or motive as

mentioned in section 7 of the Prevention of Corruption Act

1988. As the appellant-convict has not come up with any

explanation whatsoever as to why he accepted the ₹ 1000/-

from the complainant, the question of the rebuttal of the said

presumption under section 20 of the Prevention of Corruption

Act 1988 does not arise. As rightly submitted by the learned

Counsel for the Central Bureau of Investigation in view of the

evidence put forth by the prosecution in this case, the 23 Cr. Appeal (SJ) No.290 of 2014

contention of the appellant that the appellant-convict was

caught the sole Security Sub- Inspector or for that matter he

was not the authority to allow the complainant to run his shop

do not carry any weight. Under such circumstances, this Court

is of the considered view that the evidence in the record is

sufficient enough to bring home the charges both for the

offences punishable under Section 7 as well as Section 13 (2)

read with Section 13 (1) (d) of Prevention of Corruption Act,

1988 and the learned trial court having rightly convicted the

appellant-convict for the said offence. The conviction of the

appellant-convict for the offences under Section 7 as well as

Section 13 (2) read with Section 13 (1) (d) of Prevention of

Corruption Act, 1988 as made by the trial court is upheld.

24. So far as the sentence is concerned, it is a settled

principle of law as has been held by the Hon'ble Supreme

Court of India in the case of Gurjant Singh v. State of Punjab

reported in (2015) 8 SCC 650, as the occurrence took place on

15.05.2009 i.e. prior to 16.01.2014 with effect from which date

the minimum sentence under Section 7 and under Section 13

(2) of the Prevention of Corruption Act has been enhanced by

Act 1 of 2014 hence, the statutory minimum sentence

applicable will be one year for the offence punishable under

Section 13 (2) of Prevention of Corruption Act, 1988.

25. By now it is a settled principle of law that where

minimum sentences provided for by a statute without giving 24 Cr. Appeal (SJ) No.290 of 2014

any discretion to the court, the court cannot impose less than

the minimum sentence as has been held by the Hon'ble

Supreme Court of India in the case of State of M.P. v. Vikram

Das, (2019) 4 SCC 125 paragraph 8 of which reads as under:

8. In view of the aforesaid judgments that where minimum sentence is provided for, the court cannot impose less than the minimum sentence. It is also held that the provisions of Article 142 of the Constitution cannot be resorted to, to impose sentence less than the minimum sentence.

In the case of Mohd. Hashim v. State of U.P., (2017) 2 SCC

198 also the same view was expressed by the Hon'ble

Supreme Court of India in paragraph 19 of which reads as

under:

19. Xxxxxxxxxx We may further elaborate that when the legislature has prescribed minimum sentence without discretion, the same cannot be reduced by the courts. In such cases, imposition of minimum sentence, be it imprisonment or fine, is mandatory and leaves no discretion to the court. However, sometimes the legislation prescribes a minimum sentence but grants discretion and the courts, for reasons to be recorded in writing, may award a lower sentence or not award a sentence of imprisonment. Such discretion includes the discretion not to send the accused to prison. Minimum sentence means a sentence which must be imposed without leaving any discretion to the court. It means a quantum of punishment which cannot be reduced below the period fixed.

26. In view of these authoritative pronouncements in the

matter by the Supreme Court of India this court is of the

considered view that the orders passed by the coordinate

benches of this court in the case of Krishna Bihari Singh v.

State of Jharkhand reported in 2007 (1) JLJR 14 and Rajendra

Sharma vs. The State of Jharkhand through C.B.I. reported in 25 Cr. Appeal (SJ) No.290 of 2014

2011 (2) JLJR 434, so far as they relate to reducing the sentence

of a convict to less than the minimum sentence prescribed by

the statute, are no more good law.

27. Under such circumstances, this Court is of the

considered view that keeping in view the facts of the case,

there is no justifiable reason to reduce the sentence of the

appellant-convict to a period which is less than the minimum

sentence of rigourous imprisonment for one year so far as the

offence punishable under section 13(2) read with section

13(1)(d) of the Prevention of Corruption Act 1988 is concerned,

as the same is not permissible in law and the fine amount

imposed in respect of the said offence is also proper. Keeping

in view the facts of the case sentence of rigourous

imprisonment of one year and fine for the offence punishable

under section 7 of the Prevention of Corruption Act 1988 also

is proper. Hence, the sentence as imposed by the learned trial

court is also confirmed.

28. Accordingly, the impugned Judgment of

conviction and Order of sentence dated 16.04.2014, passed by

the learned Special Judge, C.B.I./A.C.B, Ranchi in R.C. Case

No. 05(A)/2009-AHD-R is up held and this appeal being

without any merit is dismissed.

29. Perusal of the record reveals that the appellant-

convict -Ratneshwar Sharma is in judicial custody.

26 Cr. Appeal (SJ) No.290 of 2014

30. Let the Lower Court Records be sent back to the

learned court below along with a copy of this Judgment

forthwith.

31. In view of the dismissal of this appeal, all the

interlocutory applications filed in this appeal are dismissed

being infructuous.

(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 1st September, 2021 AFR/ Sonu-Gunjan/-