Shailendra Kumar vs The State Of Jharkhand Through ...
2022 Latest Caselaw 4281 Jhar

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IN THE HIGH COURT OF JHARKHAND AT RANCHI
           Cr. Appeal (SJ) No. 663 of 2003
Shailendra Kumar                                 ....   .... Appellant
                            Versus
The State of Jharkhand through C.B.I           .... .... Respondents
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellant     : Mr. A.K. Kashyap, Sr. Advocate
For the CBI           : Mr. Prashant Pallav, DSGI
                        Mr. Navneet Sahay, AC to DSGI

C.A.V. ON 08.09.2022                       PRONOUNCED ON 19 / 10 / 2022

1. This appeal has been preferred against judgment of conviction of sentence passed in R.C. 10(A)/91(R) whereby and whereunder appellant has been convicted and sentenced under Section 7 and 13 (2) r/w Section 13 (1)(d) of the Prevention of Corruption Act.

2. Can there be a wrongful demand for rectification in the inadvertent mistake in submitting a vacation report of quarter by an employee? Yes, even for this a demand can be made, if the prosecution case is to be believed.

3. Ghanshyam Prasad is the complainant who was allotted Quarter No. 5-D/19 in Sector 5 of B.S. City in 1990, later in December, 1990 as per his entitlement he was allotted Quarter No. 12-F/D/1133 and he submitted his vacation report in December 1990 with respect to Quarter No. 5-D- 19. While submitting the vacation report, by mistake he mentioned Quarter No.12- F/D/1133 in place of 5-D/19. For this a claim for penal rent at the rate of Rs.700/- per month for four months was raised on the charge that he had not vacated Qr. No. 5-D/19 and had retained it. When the complainant requested the appellant accused shri Shailendra Kumar the field Assistant for necessary rectification of the bonafide mistake, he demanded Rs.1400/- half of the penal rent as bribe for making rectification. This impelled him to submit a written complaint before the S.P CBI, against the above named accused. Thereafter the matter was thoroughly examined and having found genuineness in the complaint, the case was registered and trap was laid by C.B.I officer in presence of independent witnesses. It is alleged that the accused shailendra Kumar was caught red handed taking bribe of Rs.1400/- by the CBI team on

28.04.91 then the seizure list was prepared and after completing the formalities and the accused was remanded to jail custody.

4. After investigation the charge-sheet was submitted on the basis of which cognizance was taken by the Special Judge Dhanbad under Section 7 and Section 13 (2) read with sec 13(1) (D) of the P.C. Act 1988. The learned Trial Court convicted the appellant for offence under these sections.

5. The appeal has been preferred mainly on following grounds:

A. The demand of illegal gratification has not been proved.

B. It was the admitted case of the prosecution that no matter was pending before this appellant in the matter of making rectification in the vacation report, therefore the question of giving any illegal gratification to the appellant or his receiving the same does not arise.

C. P.W 8 who was an independent/witness had taken part in the trap has not supported the demand and was tendered by the prosecution.

D. The informant had approached appellant with a defective fan and regulator after vacating the Quarter, which was objected to by appellant as it did not belong to Bokaro steel plant (town administration department), so the informant had threatened him with dire consequences to implicate in the case.

E. The defence case of the appellant had been prejudiced due to non- examination of Kumar Sanjay sub inspector C.B.I ,S.L Yadav Head Constable B.N. Sharma, Inspector, C.B.I , B.N. Singh , A.S.I , C.B.I of the trap party.

6. On the point of demand complainant/informant (PW.11) has deposed in his deposition at page 5 that a demand of Rs.1400 was made by the appellant accused for carrying out the necessary rectification. He again approached the accused at his residence on 26.4.91 in the evening with a request in this regard but still he did not agree to it. Demand of illegal gratification was made which was to be given on 28 April 1991 in the morning at around 8-8.30. After this he contacted Dy. S.P. CBI and the trap was laid. It has further come in his deposition that one 28.4.1991 he along with R.N. Tiwari and other members of the trap team went to the house of the accused. He and R.N. Tiwari went inside the house where Shailendra Jee was sitting on the sofa and he introduced RN Tiwari as his friend. On his demand Rs 1400

was given to him. This witness has been cross-examined at length . It has been deposed by him that after vacating the quarter, fan, regulator was returned to the T.A. Department.

7. R.N. Tiwari has not been examined but tendered by the prosecution. But Om Prakash Singh (PW7), who was the Vigilance Inspector but not from the CBI, was involved in the trap. He has deposed that he was standing near the window of the room and he has testified to the demand and acceptance of the bribe amount by the accused and has thereby corroborated the account of the informant (PW11). Under Section 134 of the Evidence Act, no specific number has been provided for the proof of a particular fact. Merely because all the charge-sheeted witnesses have not been summoned for examination, an adverse inference cannot be drawn when the evidence on record are cogent, reliable and trustworthy. It is the cardinal principle of appreciation of evidence that it is not the number or quantity of witnesses but their quality and intrinsic worth that is to be considered by the court. Both these witnesses have been cross-examined at length but nothing significant has surfaced in their account so as to cast cloud on their veracity. Demand in such cases is not made in public and is often clandestine and therefore we cannot expect evidence of the nature of offer and acceptance as in a commercial transaction. It is for this reason that in trap cases an elaborate procedure of scientific proof to test the acceptance and recovery of the tainted money is followed to minimise the chances of false implications. In the present case the defence has failed to raise any suspicious circumstance to cast doubt on the factum of demand and recovery of the tainted amount.

8. It is a moot point whether the appellant was in a position of authority to permit the rectification of the vacation report on the basis of which penal rent was being charged. What is relevant to the present adjudication is whether the accused agreed to use his official position to obtain an undue advantage. Once the public servant demands and accepts an illegal gratification, the offence is complete and it does not matter whether the promised work was within his authority or not. It has been held in Chaturdas Bhagwandas Patel v. State of Gujarat, (1976) 3 SCC 46 : "If he has used his official position to extract illegal gratification, the requirement of the law is satisfied. It is not necessary in such a case for the Court to consider whether or not the public

servant was capable of doing or intended to do any official act of favour or disfavour".

9. Lastly a defence of false implication has been raised that while vacating the earlier quarter the informant had attempted to deposit a malfunctioning regulator with the accused, which the latter had refused to take. The defence witnesses examined on behalf of the accused have supported this version. This defence version is not tenable for the reason that the complainant submitted the vacation report on 21.12.1990 in respect of Quarter No. V/D-19 after returning back two fans and regulators of the said quarter, whereas demand of bribe followed by a raid took place in the month of April 1991. It was not this accused who received the regulator and fan but one Sri S.N. Prasad, storekeeper of the town administrative stores as per the receipt (Ext-2). On perusal of the record of case it appears that the statement of the accused was recorded under section 313 of the Cr.P.C. on 15.4.1999 and again on 10.2.2003. After the recording of the statement in 1999 a petition under section 311 of Cr.P.C. was filed by the C.B.I which was rejected by the Court below on 25.4.2000. Against the order of rejection CBI moved the High Court of Jharkhand which was allowed vide order dated 19.1.2001 passed in Cri. Misc. No. 6589 of 2000 (R). Thereafter the informant and I.O. were examined and the statement under Section 313 was again recorded. In the statement recorded in 1999 the defence of accused was plain denial and no specific defence had been pleaded that the accused had been implicated in this case falsely because the complainant insisted to get the defective fan and regulators accepted in the storeroom. This plea has come in the later statement under Section 313 Cr.P.C. in 2003. Thus, this defence appears to be a product of afterthought and no complain from any quarter was made when the fans and regulators were accepted by the store keeper. It was not this accused who was concerned with accepting those electrical articles and therefore the theory of false implication is far-fetched and not convincing.

10. It is not incumbent on the part of the prosecution to examine all its witnesses. Section 134 of the Evidence Act does not specify any definite number for the proof of any fact. In any case it is not the number of witnesses but their intrinsic worth that is relevant in any criminal adjudication. Therefore when the basic ingredient of the offence has been proved by cogent and reliable evidence whose testimony is of the unimpeachable quality, non-

examination of the other charge sheeted witnesses is of no consequence. It is not necessary for the public prosecutor to examine each and every charge- sheeted witness.

11. On the point of sentence considering the nature of offence, protracted nature of litigation and the amount involved, a punishment of six months S.I. under Section 7 and one year S.I. under Section 13 (2) r/w 13 (1) (d) of the P.C. Act will and a fine of Rs.1000/- under both the sections shall meet the ends of justice. Both the substantive sentences to run concurrently. In default of payment of fine the accused to undergo SI of 15 days each.

With this modification in sentence the appeal stands dismissed.

(Gautam Kumar Choudhary, J.)

Jharkhand High Court, Ranchi Dated the 19th October, 2022 NAFR / AKT