Upendra Raut vs The State Of Jharkhand Through ...
2023 Latest Caselaw 2931 Jhar

  IN THE HIGH COURT OF JHARKHAND AT RANCHI
              Cr. Appeal (S.J.) No. 43 of 2011
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(Against the Judgment of conviction and order of sentence dated 11.01.2011 passed by the A.D.J.-I cum Special Judge, C.B.I., Dhanbad in Spl. Case No. 04 of 2007.)

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Upendra Raut, son of Sri Saryu Prasad Raut, resident of village and P.O. Rohini, P.S. Jasidih, Dist. Deoghar.

...                    ...                ...          ...Appellant
                     Versus-
The State of Jharkhand through Vigilance.      ...Respondent

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                PRESENT
THE HON'BLE MR. JUSTICE SUBHASH CHAND

For the Appellant  :     Mr. R.S.Mazumdar, Sr. Advocate
For the C.B.I.     :     Mr. Anil Kumar, A.S.G.I.
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C.A.V. on 31.07.2023         : Pronounced on 17.08.2023
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This Criminal Appeal has been preferred on behalf of

appellant Upendra Raut against the Judgment of conviction and

sentence dated 11.01.2011 passed by Additional District &

Sessions Judge-I cum Special Judge, C.B.I., Dhanbad in Special

Case No. 04 of 2007, arising out of Karau P.S. Case No. 43 of 2006

(G.R.No. 311 of 2006) whereby the learned Special Judge, C.B.I.,

Dhanbad had convicted the appellant for the offence under

Section 7 and 13 (2) of Prevention of Corruption Act and had

directed to undergo R.I. for 02 years for the charge under Section

7 and 13(2) of Prevention of Corruption Act each. Both the

sentences were directed to run concurrently. Further directed to

pay the fine of Rs.2,000/- for the offence under Section 13(2) of

the Prevention of Corruption Act. In default of payment of fine,

the appellant has to undergo additional R.I. for six months.

2. The brief facts leading to this Cr. Appeal are that a letter

of S.D.O., Madhupur addressed to the Circle Officer dated

10.06.2006 was to this effect that Upendra Raut

accused/appellant herein was deputed on table No.1 to receive the

application from the Old Age Pension Holders in the Camp which

was arranged for selecting the genuine Old Age Pension Holders. In

course of the camp proceeding, learned S.D.O. found that Upendra

Raut- appellant/convict was counting three currency notes of

500/- each which he had received from one Md. Ibrahim Ansari

and Md. Altaf as well. The number of currency notes were also

mentioned in the letter. It was also alleged that Upendra Raut had

received the currency notes as a bribe for those application for

pension. The concerned C.O., Madhupur sent this letter to Karau

P.S. under Sub Division Madhupur for lodging the F.I.R. Thereafter

the Karau P.S. Case No. 43 of 2006 dated 10.06.2006 was

registered under Section 420 I.P.C. and under Sections 5(1) (d) (2)

of the P.C. Act against the accused Upendra Raut.

3. After investigation the I.O. filed the charge-sheet under

the same Sections before the S.D.J.M., Madhupur at Deoghar.

Thereafter the S.D.J.M., Madhpur sent this case to the Special

Judge, C.B.I., Dhanbad for taking cognizance and to conduct trial.

4. The Special Judge, C.B.I. after having received the

record of this case took cognizance on the charge-sheet against the

accused and framed charge under Section 7 and under Section

13(2) of Prevention of Corruption Act. The charge was explained

and read over to the accused who denied the charge and also

claimed to face the trial.

5. On behalf of C.B.I. to prove the charge against the

accused in documentary evidence filed written report (Ext.1),

signature of P.W.1 on seizure list (Ext.2), signature of P.W.2 in

seizure list (Ext. 2/1), signature of P.W.3 in seizure list (Ext.2/2),

signature of P.W.6 on office order (Ext. 2/3) and office order (Ext.3).

6. On behalf of prosecution in oral evidence examined

P.W.1 Sunil Kumar Sinha, P.W.2 Sunil Kumar Tiwari, P.W.3

Sadanand Deo, P.W.4 Triveni Kumar, P.W.5 Doman Rajak, P.W.6

Vinod Chandra Jha.

7. The statement of the accused was recorded under

Section 313 of Cr.P.C. in which he denied the incriminating

circumstances against him and stated that he has been falsely

implicated in this case.

8. The learned trial court after hearing the rival

submissions of the learned Counsel for the accused and also the

learned Counsel on behalf of C.B.I. passed the Judgment of

conviction and sentence as stated hereinabove.

9. Aggrieved from the impugned Judgment of conviction

and sentence this Cr. Appeal has been preferred on behalf of the

appellant on the ground that the impugned Judgment of conviction

and sentence passed by the court-below is based on the wrong

appreciation of the evidence. The learned court-below has not

appreciated the evidence in a proper perspective. It is also further

submitted that three currency notes of 500/- are alleged to be

received from Md. Ibrahim Ansari and Md. Altaf but none of them

were examined on behalf of prosecution. It is also further submitted

that there is no evidence in regard to demand of the bribery and

the learned trial court has convicted the appellant on the mere

seizure of memo of which the witnesses are only the interested

person. Accordingly prayed to allow this Cr. Appeal and to set aside

the impugned Judgment of conviction and sentence passed by the

Special Judge concerned.

10. I have heard the learned Counsel for the appellant and

learned ASGI on behalf of C.B.I. and perused the record.

11. To decide the legality and propriety of the impugned

Judgment of conviction and sentence, it would be relevant to

evaluate the evidence oral and documentary adduced on behalf of

the C.B.I. to prove the charge against the accused which is

reproduced here-in-below:

12. P.W.1 Sunil Kumar Sinha in his Examination-in-chief

says that in 2006 he was posted in Sarath Circle and was also the

In-charge of Karau Circle. Both come within the District of Deoghar.

The occurrence is of 10.06.2006. The camp was going on under the

Old Age Pension Scheme. The Sub-divisional Magistrate was also

present there. The Sub-divisional Officer had caught Upendra Raut

the employee at a table counting the note red handed. The currency

notes were seized and accused was arrested. F.I.R. was directed to

be lodged. As per direction of Sub-divisional Officer, the F.I.R. was

lodged and this written information in his handwriting and his

signature marked as Ext.1. The seizure memo also bears his

signature marked Ext.2.

In cross-examination this witness says whatever the

proceedings were done by him as per order of Sub-divisional

Officer. No occurrence was occurred in his presence. In the letter

of Sub-divisional Officer, it was mentioned that on the basis of the

suspicion the seizure was prepared and arrest was made. The

Police Officer has not recorded his statement.

12.1 P.W.2 Sunil Kumar Tiwari in his Examination-in-chief

stated that in 2006 he was posted in Sarath but he was also C.I. of

Karau Circle. He had heard that the revenue employee Upendra

Raut had been caught red handed receiving three currency notes

of 500/- rupees each by Sub-divisional Officer in the camp. On the

seizure memo he put his signature marked Ext.2.

12.2 P.W.3 Sadanand Deo in his Examination-in-chief says

that in 2006 the Old Age Pension Scheme camp was in Karau

division. He was also there. He neither had seen the occurrence nor

heard in regard to the same. He put his signature on the seizure

memo marked Ext. 2/2.

In cross-examination this witness says that he put

signature on the direction of the Circle Officer. Nothing was read

over to him in regard to the contents of the seizure memo.

12.3 P.W.4 Triveni Kumar in his Examination-in-chief says

that in 2006 he was Block Development Officer in Karau, District-

Deoghar. On 10.06.2006 at 12:30 of day time the Old Age Pension

Scheme was going on. There were four tables. At table No.1

Upendra Raut, the Halka Karamchari was deployed and the Sub-

divisional Officer Shri Vinod Chanda Jha saw that he was counting

the three currency notes of 5,00/- each under the table. The Sub-

divisional Officer had shown this occurrence to him and the

application and the amount was also taken in custody by the Sub-

divisional Officer and the Circle Officer was asked to lodge the F.I.R.

In cross-examination this witness says that he had not

seen the accused receiving the currency note and counting the

same rather S.D.O. Saheb had also told him in regard to the

occurrence.

12.4 P.W.5 Doman Rajak, Dy.S.P., Madhpur in his

Examination-in-chief says that on 22.02.2006 he had taken over

the investigation of this case. At that time, he was posted as

S.D.P.O. Madhupur. He had taken over the investigation of this

case from former Investigating Officer Sri Parmanand Toppo. He

had completed the investigation. He on the basis of the previous

investigation done by the former I.O. filed the charge-sheet and the

prosecution section had also been obtained earlier.

In cross-examination this witness says that the sanction

order was received by the former I.O. He only filed charge-sheet

after perusal of the evidence collected by the I.O. which was

recorded in the case diary.

12.5 P.W.6 Vinod Chandra Jha is the Sub-divisional

Officer in his Examination-in-chief has stated that the occurrence

was of 10.06.2006. For selection of the beneficiary of old age the

camp was going on in Karau block. At each table there were 2 to 3

staff on duty. At table No.1 Upendra Raut was deputed. He was

counting the currency note under the table. He was asked what he

was doing and found that there were three currency notes of 5,00/-

each which was given to him by Md. Ibrahim Ansari and Md. Altaf.

Thereafter the application and three currency notes were taken in

custody and the F.I.R. was directed to be lodged by him. The office

order was directed to C.O. by him which is marked Ext.3 and

signature of the same are Ext.2/3.

In cross-examination this witness says that he did not

make any query from the applicant of the application. The numbers

of notes he does not recollect. No any aggrieved person in the camp

came to him to make complaint against Upendra Raut. He is not

witness of the seizure memo. He had not prepared the seizure

memo.

13. In order to decide the legality and propriety of the

impugned Judgment of conviction and sentence, it would be

relevant to reproduce here certain statutory provisions under

Section 7 and 13(2) of Prevention of Corruption Act, 1988

Section-7. Offence relating to public servant being bribed.- Any public servant who,-

(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or

(b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant, or

(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in

anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

Section-13(2)- Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than 1[four years] but which may extend to 1[ten years]

and shall also be liable to fine.

14. Herein on behalf of the prosecution to prove the charge

under Section 7 and 13(2) of the Prevention of Corruption Act, 1988

have been examined altogether six witnesses.

15. The allegations made against the appellant in the F.I.R.

are that on the date of occurrence the Sub-divisional Officer had

seen the accused counting three currency notes of 5,00/- each

which was alleged to have been received by him from Md. Ibrahim

Ansari and Md. Altaf. At that time the accused Upendra Raut had

been deputed on table no.1 to receive the applications form for the

Old Age Pension Holders in a camp being held under Old Age

Pension Scheme for selecting the genuine Old Age Pension Holders

and the S.D.O., Madhupur had written the letter to the Circle

Officer to lodge the F.I.R. of this occurrence with the Police Station

concerned against Upendra Raut. The occurrence was of

10.06.2006. It is also alleged that the three currency notes of

5,00/- each were also seized at the spot and seizure memo of the

same was also prepared.

16. The informant in this case is Sunil Kumar Sinha who

was examined as P.W.1 who had lodged the F.I.R. by the order of

the Sub-divisional Officer, Madhupur camp Karau. This witness

has proved the written information Ext.1 on the basis of which

the F.I.R. was lodged. He has stated that he lodged it by the order

of Sub-divisional Officer, Madhupur and he stated that the

occurrence did not take place in his presence.

17. P.W.4 Triveni Kumar is the B.D.O. in his Examination-

in-chief has stated that he did not see the accused accepting the

rupees as well as the application and he did not see him even

counting the note whatever the S.D.O. has told him in regard

to the occurrence he narrated the same before the court.

18. P.W.6 Vinod Chandra Jha is the District Panchayat Raj

Officer, Hazaribagh. He has stated that in the year 2006 he was

posted as Sub-divisional Officer, Madhupur. The occurrence was of

07.06.2006. For Old Age beneficiary selection, the camp was held

in Karau Block. The staff was deployed for the same. The accused

Upendra Raut was deputed at table no.1. He saw that he was

counting rupees which he had taken from some Old Age

beneficiary. He was caught hold by him and three notes of 5,00/-

each were recovered from him. It came to know that Md. Ibrahim

Ansari and Md. Altaf had given it to accused Upendra Raut. He also

prepared the seizure memo of the three currency notes which was

marked as Ext.3 and got the signature of the witnesses.

In cross-examination this witness says that he did not

make any query from both the applicants Md. Ibrahim Ansari

and Md. Altaf.

19. P.W.2 Sunil Kumar Tiwari and P.W.3 Sadanand Deo

both are the witnesses of the seizure memo of the currency notes.

Both these witnesses in their cross-examination have stated that

no rupee was recovered in their presence. The C.O. Saheb had

directed them to put the signature on seizure memo and they

put their signature.

20. P.W.5 is the I.O. Doman Rajak he has stated that the

earlier investigation was conducted by Sri Parmanand Toppo and

he filed simply charge-sheet and the whole investigation was

conducted by him. The prosecution sanction was also obtained by

the previous Investigating Officer.

21. From the testimony of all these prosecution witnesses, it

is found that the only eye-witness in regard to counting the

three currency notes by the appellant/convict Upendra Raut is

P.W. 6 Vinod Chandra Jha Sub-divisional Officer, Madhupur. All

other witnesses who were examined on behalf of the prosecution

have stated that they did not see the occurrence and did not see

even the appellant-accused counting the note under the table. P.W.

6 has stated that he came to know that these three currency

notes were given to the appellant/convict by Md. Ibrahim

Ansari and Md. Altaf who had given their application to be

selected as a beneficiary under Old Age Pension Scheme. But

admittedly this witness in his cross-examination stated that he did

not make any query in regard to giving the alleged bribery to

convict Upendra Raut to get the favour for being selected as

beneficiary under the Old Age Pension Scheme. From the

testimony of this witness only counting the three currency notes by

the appellant/convict is proved but it is not proved that these

three currency notes of 5,00/- each total amounting 1,500/-

was given to the appellant/convict by Md. Ibrahim Ansari and

Md. Altaf. Neither Md. Altaf nor Md. Ibrahim were examined on

behalf of the prosecution to prove either the demand of the

bribe by the convict/appellant or accepting the same from Md.

Ibrahim Ansari and Md. Altaf.

22. So far as the seizure memo is concerned Ext.2 only the

signature on the seizure memo has been admitted by both the

witnesses of seizure memo P.W.2 Sunil Kumar Tiwari and P.W.3

Sadanand Deo; but both these witnesses have not proved the

recovery of the three currency notes of 5,00/- each from the

appellant/convict Upendra Raut. They have stated that no rupee

was recovered in their presence rather they put signature on

the seizure memo at the behest of the Circle Officer. Therefore

the recovery memo of the alleged three currency notes of

5,00/- each is also not found proved.

23. So far as the F.I.R. Ext. 1 is concerned, its execution is

proved from the testimony of P.W. 1 Sunil Kumar Sinha; but this

witness has stated that no occurrence took place in his presence.

He gave the written information by the order of the Sub-

divisional Officer, Madhupur. Therefore from the testimony of this

informant the very contents of the F.I.R. in regard to commission

of the offence of taking bribe is not proved.

24. So far as the prosecution sanction is concerned, the first

Investigating Officer Shri Paramanand Toppo who obtained

prosecution sanction has not been examined on behalf of the

prosecution. The whole investigation was conducted by Sri

Parmanand Toppo but he was not examined on behalf of

prosecution. Only the charge-sheet was filed by Doman Rajaj who

was examined as P.W.5 Dy. S.P. Madhupur. This witness has

stated that after having perused all the papers of case diary and

documents in which the evidence was collected by the previous

Investigating Officer Sri Parmanand Toppo he filed charge-sheet.

Even this prosecution sanction was also obtained by the former

Investigating Officer not by him. Therefore from the testimony of

this witness P.W.5 Doman Rajak the prosecution sanction is

also not found proved.

25. The appellant/convict Upendra Raut was also examined

under Section 313 of Cr.P.C. This witness had denied all the

incriminating circumstances which were explained to him while

recording the statement under Section 313 of Cr.P.C. and he has

stated that he has been falsely implicated in this case.

26. Herein it would be pertinent to give the reference of

certain legal propositions of law as laid down by the Hon'ble Apex

Court

The Hon'ble Apex Court held in K. Shanthamma vs.

State of Telangana (2022) 4 SCC 574:

10. We have given careful consideration to the submissions. We have perused the depositions of the prosecution witnesses. The offence under Section 7 of the PC Act relating to public servants taking bribe requires a demand of illegal gratification and the acceptance thereof. The proof of demand of bribe by a public servant and its acceptance by him is sine qua non for establishing the offence under Section 7 of the PC Act.

The Hon'ble Apex Court held in Neeraj Dutta vs. State

(GNCTD of Delhi), 2022 Live Law S.C. 1029:

"No offence is made out by showing mere acceptance of the bribe without proving the offer or demand...."

27. In view of the law as laid down by the Hon'ble Apex

Court, the prosecution has neither proved the demand for

bribery made by the appellant/convict Upendra Raut nor has

proved the acceptance of this bribery by the appellant/convict

which is alleged to be given by so-called Md. Ibrahim Ansari

and Md. Altaf. As such both the ingredients for the offence under

Section 7 of Prevention of Corruption Act, 1988 is not made

out from the evidence adduced on behalf of the prosecution.

28. So far as the offence under Section 13 of Prevention of

Corruption Act is concerned, no one witness adduced on behalf of

prosecution has stated that the appellant/convict had dishonestly

or fraudulently misappropriated or converted the three currency

notes for his own use. There is no evidence in regard to entrusting

by anyone these three currency notes to the appellant/convict

Upendra Raut. There is no evidence to the effect that he

intentionally enriched himself illicitly by any amount of money

during period of his service. As such none of the ingredient of the

offence under Section 13(1) is made out from the evidence

adduced on behalf of the prosecution. Consequently the charge

framed under Section 13(2) of the Prevention of Corruption

Act, 1988 is also not made out against the appellant/convict.

29. Therefore in view of the analysis of the evidence given

here-in-above I am of the considered view that the prosecution has

miserably failed to prove the charge framed against the accused.

As such the impugned order of conviction and sentence passed by

the court-below being based on the perverse finding needs

interference. Accordingly, this Cr. Appeal deserves to be allowed.

30. This Cr. Appeal is hereby allowed. The impugned

Judgment of conviction and sentence passed by the court-below is

hereby set aside and the appellant is acquitted from the charge

under Section 7 and 13(2) of Prevention of Corruption Act.

31. The appellant is on bail. His bail bonds are hereby

cancelled and the sureties are discharged from their liabilities.

32. Let the record of learned lower court be remitted back

along with the copy of the Judgment.

(Subhash Chand, J.)

Jharkhand High Court, Ranchi Dated the 17.08.2023 P.K.S./A.F.R.