Ramesh Chandra Ojha vs The Union Of India Through Cbi
2022 Latest Caselaw 4684 Jhar

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IN THE HIGH COURT OF JHARKHAND AT RANCHI
               Criminal Appeal (SJ) No. 825 of 2015
Ramesh Chandra Ojha                                .... .. ... Appellant
                         Versus
The Union of India through CBI                     .. ... ...  Respondent
                                 .........

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY .........

For the Appellant          : Mr. R.S. Mazumdar, Sr. Advocate
                             Mr. Nishant Kr. Roy, Advocate
For the CBI                : Mr. Prashant Pallav, DSGI
                             Mr. Navneet Sahay, AC to DSGI
                                   .........
 C.A.V. ON 26.09.2022                        PRONOUNCED ON 23 / 11/ 2022

1. The instant Criminal Appeal (SJ) is directed against the judgment of conviction and sentence passed by learned District & Additional Sessions Judge-IV- cum- Special Judge, CBI, Dhanbad in R. C. Case No.6(A)/2007(D), under Section 7 and 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988.

2. The FIR in this case was registered on the basis of a written complaint dated 08.05.2007 submitted by the complainant, namely, Sri Arjun Mehra, Postman, Sector-IX, Sub Post Office, Bokaro Steel City. It is alleged in the F.I.R. that the accused, Ramesh Chandra Ojha, Assistant Superintendent of Post Office, East Sub Division, Dhanbad Division, Bokaro Steel City had demanded Rs.2500/- as illegal gratification from the complainant, Arjun Mehra for not transferring him to the Post of Overseer Mails, Bokaro Steel City. Earlier also the accused R. C. Ojha, Assistant Superintendent of Post had transferred the complainant to the Post of Overseer Mails in October, 2006. When the complainant complained to the accused that because of his poor educational qualification he would face hardship to discharge the duty involved in the capacity of Overseer Mails, the accused took an illegal gratification of Rs.1000/- from him to keep the transfer order in abeyance. It is further alleged that the accused made an illegal demand of Rs.500/- per month for not harassing him in future.

3. Complaint was verified by R. K. Prasad, Inspector, CBI, ACB, Dhanbad on 09.05.2007 who found the allegation true and pursuant to the verification this case was instituted against the said accused u/s 7 of the P.C. Act on 28.11.2008.

4. A trap team under the leadership of Sri Sudhanshu Shekhar, Inspector, CBI, consisting CBI officials, the complainant and two independent witnesses, namely, Sri S. N. Thakur, Sr. Inspector, Vigilance Dept., BCCL and Alam Hussain, Welfare Inspector, DRM Office, EC Railway, Dhanbad, was constituted and after completing necessary pre-trap formalities, raid was conducted and the accused was apprehended red handed in which illegal gratification of Rs.2500/- from the complainant was seized

which he had accepted from the complainant. Thereafter, post trap formalities were made and the hand wash was sent to CFSL, Kolkata.

5. After investigation charge-sheet u/s 7, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 was submitted under which cognizance was taken and the accused was put on trial for committing offences under these sections.

6. The Prosecution has examined altogether 10 witnesses and exhibited certain documents.

7. One witness, namely, Dilip Kumar Sikdar (DW-1) has been examined on behalf of the defence.

8. The specific defence of the accused is false implication.

9. The appeal has been preferred on the ground that the sanction has not been proved by the prosecution. None of the independent witnesses, including shadow witness has not proved that the appellant accepted the money. P.W.4 [Allam Hussain] has also declined in his statement regarding the transaction of money. P.W.5 [Asit Baran Banerjee] also declined to support the prosecution case. P.W.6 [Arjun Mehra] complainant has not supported the case of the prosecution and has been declared hostile. Out of 10 P.Ws., only two i.e. P.W.7 and P.W.10 have supported the case of the prosecution who are not material witness to prove the ingredient of the offence.

10. Demand is the sine qua non for the proof of a charge under Section 7 r/w Section 13 (2) of the Prevention of Corruption Act, 1988. Mere recovery of cash, by the trap team is not sufficient, unless it is proved that the recovery was made in pursuance of demand. Demand, acceptance and recovery are the three basic ingredients of the offence. In order to prove the charge, it is incumbent on the part of the prosecution to establish, that the accused accepts or attempts to accept from any person, undue advantage, with intention to perform or cause to be performed public duty, improperly or dishonestly or to forbear such duty either by himself or by another public servant. The said amount should have been received as a motive or reward for doing or forbearing to do any official act. Before a presumption can be drawn under section 20, the basic ingredient of demand has to be established. Where demand is not proved, Section 20 will have no application.

11. As per the prosecution case, the demand was made by the accused for giving choice posting to the complainant. Earlier also he had taken a bribe of Rs. 1000 but the promise of posting did not materialize and later Rs. 500 per month was demanded for leaving him undisturbed at the existing place of his posting.

12. The complainant Arjun Mehra has turned hostile and has not at all supported the case of the prosecution. He has deposed in para-3 that he had lodged the complaint on being asked by the leader of the postal union. In para-5 has further stated

that he had never visited the CBI office and was taken by the leader of the postal union to the CBI office on 8.5.2007. The disposition of this witness has knockdown the foundation of the prosecution case. Further P.W.4 [Sri Allam Hussain] who had been arrayed as an independent witness of the search, has deposed in para -13 that when he entered into the room on being signaled by the CBI inspector, he saw the accused standing their along with the CBI personnel. Beyond this he has not stated anything significant. PW5 [Asit Baran Banerjee] has deposed in para -11 that he was present there from 8 o'clock, but he had not seen the complainant making payment in his presence or demand being made by the accused. He has testified that he cannot say who had put the cash amount in the pocket of the accused. PW-3 S.N Thakur was the Inspector vigilance of BCCL and independent witness has deposed in para-9 that he he had not seen either the bride being demanded or accepted by the accused. PW-4 has testified to PW-3 presence at the time of the raid being conducted, but neither of these witnesses have stated themselves to be the eye witness to the demand or acceptance of bribe.

13. Learned counsel on behalf of the appellant has placed reliance on B. Jayaraj v. State of A.P., (2014) 13 SCC 55 where in almost identical facts situation the accused was acquitted of the charges, because the complainant had turned hostile and there was no other witness to prove the demand of illegal gratification. It was held, "7. 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 above position has been succinctly laid down in several judgments of this Court".

14. Learned Counsel on behalf of the CBI has relied on (1980) 2 SCC 390 and Neeraj Dutta Vs State (NCT of Delhi), but that is of no avail as B.Jayraj (supra) holds the ground.

Further, it has been held in P. Satyanarayana Murthy v. State of A.P., (2015) 10 SCC 152

26. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas v. State of Assam [(2013) 12 SCC 406 : (2014) 1 SCC (Cri) 677] had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of

"must be" true in order to steer clear of any possible surmise or conjecture. It was held, that the court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused.

In view of the above stated position of fact and law, the judgment of conviction and sentence is not sustainable and is accordingly set aside.

Appeal is allowed.

(Gautam Kumar Choudhary, J.)

Jharkhand High Court, Ranchi Dated the 23rd November, 2022 AFR / Sandeep