Ajit Kumar vs State Of Jharkhand Through ...
2022 Latest Caselaw 2801 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
             Cr. Appeal (S.J.) No. 135 of 2021
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Ajit Kumar ..... ..... Appellant Versus State of Jharkhand through A.C.B./ Vigilance .... .... Respondent

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CORAM : HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellant : M/s Mahesh Tewari, Advocate Abhishek Dubey & Ankur Anand, Advocates For the Respondent : Mr. Suraj Verma, Spl. P.P.

CAV ON 06.07.2022 PRONOUNCED ON 21 .07. 2022

1. The present appeal is directed against the judgment of conviction and sentence passed by the learned Trial Court under Sections 7 & 13(2) of the Prevention of Corruption Act 1947 (Hereinafter called PC Act).

2. As per the prosecution case, the complainant-Durga Singh Munda was appointed to the post of orderly in Government High School but his salary was not released after his joining. The appellant was posted as Assistant, in District Education Office, Saraikela and he demanded Rs.5000/- as bribe for processing and getting his salary released. In this regard complaint was made to S.P., Vigilance Bureau, Ranchi on 19.04.2020 and after completing the procedural formalities, the trap team was arranged and raid was conducted in which the appellant accused was apprehended by the trap team with Rs.5000/- which he received from the complainant.

3. The accused was put up on trial for offences under Sections 7/13(2) r/w Section 13 (1) (d) of the PC Act and convicted.

4. Altogether 12 witnesses have been examined on behalf of the prosecution and Exhibits 1-10 have been adduced into evidence. Apart from this, one G.C note of Rs.1000/- denomination and 8 of Rs.500/- have also been marked as material exhibits.

5. The judgment of conviction and sentence has been assailed on the ground that the basic ingredients of the offence of illegal demand, acceptance and recovery have not been proved by the prosecution. The prosecution evidence suffers from discrepancies and contradictions. There is no explanation that when the complaint was verified on 22.04.2010 but the verification report was submitted after nearly a month on 19.05.2010. The appellant was not arrested immediately after the acceptance of the said bribe from the house but was apprehended from his office.

The main thrust of the argument is that the trap team and shadow witness was not present as per the prosecution case at the time when the amount was accepted by the accused. As per the prosecution version the complainant visited the house of the appellant alone and the payment was made there in the absence of any witness. The case rests on uncorroborated testimony of the official witnesses and the prosecution has failed to prove its case beyond the shadow of all reasonable and probable doubt particularly when PW8 and PW 9 have not fully supported the prosecution case. PW 8 has deposed in the cross-examination at para 5 that nothing had been shown to him and he merely signed over the papers produced before him. PW 9 in para 5 has also deposed that nothing had been seized in his presence. House of the accused was at a distance of 3 km from the office and he had not gone there. It is contended on these evidence that in the absence of any independent evidence on the point of demand, acceptance or recovery charge is not proved. Reliance has been placed on the following authorities on behalf of the appellant:

a. (2011) 6 SCC 450 -In this case the complainant was not examined, apart from other infirmities in the prosecution case, therefore the Judgment of acquittal was upheld.

b. (2017) 8 SCC 136--In this case the factum of demand was not proved and therefore the accused was acquitted.

c. (2014) 13 SCC 55--The complainant had turned hostile, therefore the conviction was set aside.

d. (2015) 10 SCC 152 The complainant had died before his examination as witness and therefore benefit of doubt extended to him.

6. Before adverting to the plea taken in appeal, it will be worthwhile to consider the settled law on the point. Hon'ble Apex Court in C.M. Sharma v. State of A.P., (2010) 15 SCC 1 held:

18. Further, corroboration of evidence of a witness is required when his evidence is not wholly reliable. On appreciation of evidence, witnesses can be broadly categorised in three categories viz. unreliable, partly reliable and wholly reliable. In case of a partly reliable witness, the court seeks corroboration in material particulars from other evidence. However, in a case in which a witness is wholly reliable, no corroboration is necessary. Seeking corroboration in all circumstance of the evidence of a witness forced to give bribe may lead to absurd result. Bribe is not taken in public view and, therefore, there may not be any person who could see the giving and taking of bribe. As in

the present case, a shadow witness did accompany the contractor but the appellant did not allow him to be present in the chamber. Acceptance of this submission in abstract will encourage the bribe-taker to receive illegal gratification in privacy and then insist for corroboration in case of prosecution. Law cannot countenance such a situation.

19. In our opinion it is not necessary that the evidence of a reliable witness is necessarily to be corroborated by another witness.

In Narendra Champaklal Trivedi v. State of Gujarat, (2012) 7 SCC 80 it has been held :

16. It is the settled principle of law that mere recovery of the tainted money is not sufficient to record a conviction unless there is evidence that bribe had been demanded or money was paid voluntarily as a bribe. Thus, the only issue that remains to be addressed is whether there was demand of bribe and acceptance of the same. Be it noted, in the absence of any evidence of demand and acceptance of the amount as illegal gratification, recovery alone would not be a ground to convict the accused. This has been so stated in T. Subramanian v. State of T.N. [(2006) 1 SCC 401 : (2006) 1 SCC (Cri) 401 : AIR 2006 SC 836]

17. The demand and acceptance of the amount as illegal gratification is the sine qua non for constituting an offence under the Act. It is also settled in law that there is a statutory presumption under Section 20 of the Act which can be dislodged by the accused by bringing on record some evidence, either direct or circumstantial, that money was accepted other than for the motive or reward as stipulated under Section 7 [Ed.: The relevant part of Section 7 reads as follows: A public servant is prohibited from accepting "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..."] of the Act. It is obligatory on the part of the Court to consider the explanation offered by the accused under Section 20 of the Act and the consideration of the explanation has to be on the anvil of preponderance of probability. It is not to be proven beyond all reasonable doubt.

7. On the ingredient of demand PW 1 is the complainant who has deposed

that he joined on 01.02.2010 as peon in Government High School at Sirum. The principal of his school dispatched all the documents to the D.E.O. office for processing his salary papers but his salary was not released and therefore, he gave an application to the D.E.O. office. Appellant-accused was working as an assistant and he demanded Rs.5000/- to start the payment of his salary. After this, he went to the Vigilance Office, Ranchi and lodged a formal complaint on 19.04.2010 which has been marked as Exhibit 1. Vigilance Inspector- Shyamlal Champiya went along with him to the DEO office at Seraikela where he was asked by Ajit Kumar Singh for Rs.5000/- and he requested him for time to make arrangement for the payment of the said amount. He went to Seraikela along with vigilance team with the currency notes. The details of the currency notes were noted down in the vigilance office. He has narrated in detail the procedure by which the memorandum of G.C. notes were prepared. In para 3 of his deposition he has deposed that Rs.5000/- had been given to the accused Ajit Kumar at his residence which he kept it under the mattress. After this, he went along with accused to the office on his motorcycle. It was at this juncture that appellant accused was apprehended by the vigilance team at around 1.30 pm and the accused was taken to his residence from where Rs.5000/- was recovered and phenolphthalein test was conducted.

P.W. 2- Shayam Lal Champiya that on 19.04.2010 he was posted as Police Inspector, Vigilance. He was given direction to enquire into the matter on the complaint of Durgapad Singh Munda. He has proved the verification report marked as Exhibit 3/1. On 20.05.2010, the complainant came to the Vigilance Office and produced one general currency note of Rs.1000/- and 8 G.C. note of Rs.500/-. He has further deposed about the manner in which the accused was brought to the office and his hands were washed. In para 6 of the cross examination, he deposed that he had arrived in the office of D.E.O. at 12.30 along with the complainant. In para 7 he has deposed that Rs.5000/- was demanded by the accused in his presence.

PW 3 Sashi Bhusan Dy.S.P has deposed that the trap team was constituted by the S.P. Vigilance. The team assembled in the vigilance office on 20.5.2010 in the morning at 5 PM. The memorandum of the G.C note was prepared and the details of it was noted. Sodium Carbonate and Phenolphthalein powder were kept in two separate bottles A and B. The currency notes were handed to the complainant after applying Phenolphthalein powder. They started in the morning at 6 'o' clock and reached the office of DEO Saraikela at 11.30 hours. The

complainant went to the house of the appellant along with Shyam Lal Champiya police inspector whereas the other members of the trap team were on vigilance outside. The Complainant came out from the residence of the accused and came back to the office on his motor cycle where he informed that cash of Rs.5000/- had been given to the accused at his residence. It was then that Ajit kumar was apprehended and taken to his residence along with Chandrasekhar Mahto and Chandan Kumar Patnaik who employees of the DEO office. The accused produced Rs 5000/- kept underneath the pillow of his bed. The description of the notes were matched with the memorandum and found it to have tallied. He has given in detail further procedure followed after the seizure.

Other witnesses have corroborated the sequence of event leading to the arrest of the appellant accused after he accepted the illegal gratification of Rs 5000/- from the complainant.

8. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The facts of the authorities relied upon by the appellant are different from the present case. The accused were given benefit of doubt either on account of the non-examination of complainant or because the demand being not proved in those cases. The present case does not suffer from any such infirmity.

9. The complainant has stated in no uncertain term about the demand, acceptance and recovery of the bribe from the accused. His account is duly corroborated by the testimony of other prosecution witnesses. PW 2 inspector vigilance has described in detail the sequence of event and the formalities observed and raid conducted by the trap team. He has explained in para 7 the reason for the delay in submitting the verification report, because the complainant had no money which was to be offered to the accused. Other witnesses have also fully supported the prosecution case and no vital contradiction has surfaced in their testimony. PW 8 both of whom were working as assistant and in the DEO office has also deposed in his examination in chief that vigilance personnel had brought the accused to the office and from there he was taken to his private residence. After returning to the office the currency note which was recovered, it was documented. He also deposed that the recovered currency note was seized in his presence and the wash kept in a bottle was also seized. He has proved his signature on the seizure list. Deposition

of PW-9 is also to the same effect. Under the circumstance their deposition in the cross-examination that the articles were not shown is of not much consequence. In any case the factum of seizure cannot be set aside merely on the ground that the seizure list witnesses partly resiled and do not fully support the prosecution case.

Under the aforesaid facts and circumstance of the case, I find and hold that prosecution has succeeded to prove its case beyond the shadow of all reasonable and probable doubt. The Judgment of conviction and Sentence under Section 7 and 13(2) of the PC Act is affirmed.

The appeal stands dismissed. Consequently, I.A. No. 4095 of 2021 stands disposed of.

(Gautam Kumar Choudhary, J.)

Jharkhand High Court, Ranchi Dated the 21st July, 2022 AFR / AKT