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Kamal Kishore Prasad v/s Union of India

    Criminal Appeal No. 15 of 2004

    Decided On, 08 July 2009

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE SMT. SHEEMA ALI KHAN

    For the Appearing Parties: Rana Pratap Singh, Surendra Prasad Singh, Aruni Kumar Singh, Bipin Kumar Sinha, Advocates.



Judgment Text

(1.) Appellant Kamal Kishore Prasad, who was working as an Executive Engineer in the Central Public Works Department, has been charged and convicted under Section 161 of the Penal Code and Section 5(ii) read with Section 5(i)(d) of the Prevention of Corruption Act, 1947.

(2.) The prosecution case, in short, is that the complainant Jitai Kewat filed a petition before the Superintendent of Police (C. B. I.), Patna making an allegation to the effect that the accused Kamal Kishore Prasad who was working as Executive Engineer Electrical, General Electrical Division, Boring Road, Patna had demanded Rs. 200/- for passing a bill. The genuineness of the complaint was verified. A trap team consisting of C. B. I. personnel and two independent witnesses including the complainant was formed and it is alleged that the appellant was caught red handed while taking a bribe of Rs. 200/- from the complainant. The notes which were treated with phenolphthalein powder were recovered from the possession of the accused. A memorandum of seizure was prepared and thereafter the appellant was taken to the C. B. I. office where his hands were dipped in the solution of Sodium Carbonate which turned pink indicating that the money that was recovered was the bribe money offered by the complainant.

(3.) The prosecution has examined seven witnesses to substantiate the charge. On behalf of the defence K. K. Anand Narain, Superintending Engineer has been examined to show that V. Prasad and Surendra Prasad bore a grudge towards the appellant as he had put an adverse remarks against V. Prasad in his character roll.

(4.) The main contentions raised on behalf of the appellant are that the entire prosecution case would fail on account of the fact that the informant Jitai Kewat, PW 6 has not supported the factum of demand and acceptance of the bribe money. The second contention rased on b

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ehalf of the appellant is that there was no occasion for him to demand bribe on 8-10-1986 as the bill had already been passed on 7-10-1986 itself. Thirdly it is contended that there are glaring deficiencies and contradictions with respect to the manner in which the trap and raid was conducted.

(5.) The prosecution case is based on the complaint (Ext. 7) filed by Jitai Kewat in which he has stated that on 7-10-1986 he met the Executive Engineer (appellant) who asked him for Rs. 200/- in order to pass his bill of Rs. 3000/-. The appellant asked Jitai Kewat, PW 6 to meet him in his office on 8- 10-1986 with the money.

(6.) Having stated the allegations in the complaint it would be important to refer to the evidence of Jitai Kewat alias Jitai Mahto, PW 6 who has deposed that he came to Patna to the P. W. D. office on 7-10-1986 and met the appellant who told him that his bill would be passed. The bill was passed on 7-10-1986. This witness states that V. Prasad and Surendra Prasad took him to the C. B. I. office, where the aforesaid persons met some officers of the C. B. I. who made him sign on a document which is the complaint petition. This witness admits his signature on the complaint, but at paragraph 5 denies that the appellant had asked him for a bribe of Rs. 200/-. Not only that PW 6 denies that a demand of Rs. 200/- was made from him but further goes on to say that he did not give the said Rs. 200/- to the appellant and denies the entire procedure in which trap was set up. He has specifically stated that he did not hand over Rs. 200/- to the appellant and states that the persons who accompanied him to the office of Kamal Kishore Prasad went inside his chamber and gave Rs. 200/-. He states that he does not recall whether a search was made in front of him and also whether the Notes of Kamal Kishore Prasad were washed in sodium solution. At paragraph 7 he has stated that V. Prasad is posted as an Assistant Engineer at Ranchi and Surendra Prasad is his clerk. These two witnesses had forced him to sign on the complaint. PW 6 also denies that Arvind Kumar, PW 3 had accompanied him for the purpose of verifying the genuineness of the complaint. In this manner PW 6 not only denies the factum of demand of bribe but also states that he had been forced by Surendra Prasad and V. Prasad to put his signature on the complaint. He specifically states that Surendra Prasad and V. Prasad had travelled from Ranchi to Patna for the said purpose.

(7.) The evidence of PW 6 virtually demolishes the case of the prosecution and, therefore, this Court would also need to examine the procedure and the manner in which the trap was set up for reaching to a proper conclusion regarding this case.

(8.) As always the witnesses examined on behalf of the C. B. I. have strenuously and in detail given the preparations made by them at the pre trap stage. The members of the raiding party were Bhikhan Chand Vohra, PW 5, P. K. Srimal, P. W. 2, independent witnesses Manjit Singh, Jyoti Kuma, P. C. Sharma, D. P. Singh (These witnesses who were Inspectors of C. B. I. have not been examined by the prosecution), Arvind Sharma, PW 3, Inspector of C. B.I., Rama Shankar Singh, PW 2 and Jitai Kewat, PW 6. Therefore, the important witnesses are P. Ws. 2, 3, 4, 5 and 7 for the purpose of showing the procedure adopted for conducting the raid.

(9.) P. W. 2 is an independent witness and works in the office of the Punjab National Bank. According to this witness the money that was recovered from the appellant at his office was put in an envelope and sealed. At paragraph 8 he says that on receiving the signal he entered the office of the appellant along with the C. B. I. officers who caught hold of appellant's hands and left for the C. B. I. office. At paragraph 10 he states that the officers of the C. B. I. searched the pocket, recovered the money and the numbers of the Notes were tallied and thereafter put in a sealed envelope. From his evidence it is also clear that the entire procedure was conducted at the C. B. I. office which is about a kilo meter from the office of the appellant. At paragraph 26 this witness has stated that after the raiding party reached the office of the C. B. I., the number of Notes were tallied and the hands and shirt of the appellant were dipped in the solution of sodium carbonate which turned pink. He also states that he did not see whether the numbers of the Notes tallied with the numbers noted in the pre trap memorandum. Surprisingly this witness states that after the search was made, the money was again kept back in the pocket of the appellant. Another anomaly which stares in the face of the prosecution is that after the appellant's hands were dipped in the sodium solution, the memorandum was signed by him on the next day which leaves this Court in doubt with respect to the entire procedure adopted by the C. B. I. officers.

(10.) On perusal of the evidence of PW 2 this Court finds that there are several glaring aspects with respect to the procedure adopted by the C. B. I. officials. According to this witness, the memorandum seizing the money was prepared in the office of the appellant, whereas this witness gives a go by to that statement at paragraph 26 wherein he states that the number of the Notes were tallied in the office of the C. B. I. It is, therefore, not clear that from the evidence of this witness, as to when the seizure list was prepared and the tainted money sealed.

(11.) I shall now turn to the evidence of the second independent witness, namely, Bhikhan Chand Vohra, PW 5. According to this witness the entire procedure of seizure, the preparation of memorandum etc. was done at the C. B. I. office. This witness was in charge of hearing the conversation that took place between PW 6, the complainant, and the appellant and as such he is said to have accompanied the complainant inside the office of the appellant This witness denies that he heard any conversation between the complainant and the appellant, that is to say, PW 5 did not hear the demand being made. This witness has been declared hostile but has been cross-examined. Even with respect to the procedure he contradicts the evidence of PW 2 and states that after reaching the C. B.I. office the entire procedure and preparation of memorandum etc. was completed at about 9 in the night. Therefore, as far as PW 5 is concerned, his evidence does not disclose that any demand of money was made to his hearing and, therefore, has been declared as a hostile witness.

(12.) Arvind Kumar, PW 3 was the verifier of the complaint and also one of the members of the raiding team. His evidence with respect to verification has to be examined in the context of what has been stated by PW 6 who denies that he had accompanied PW 3 to verify the so called complaint. PW 3, however, supports his verification report. PW 3 states that only PW 5 had entered the chamber along with PW 6 for the purpose of giving the bribe money. After receiving the signal PW 7 and other C. B. I. officers entered the chambers of the appellant. This witness remained in the verandah. As such the subsequent statement that search was made in his presence and the numbers of the tainted money was tallied etc. does not appear to be believable. This witness admits that the recovered money was kept by K. D. Mishra, PW 7 and also admits that no papers were prepared in the office of the appellant. This witness, therefore, is not very important for the purpose of establishing search and seizure of the tainted Notes.

(13.) PW 4 Rama Shankar Singh is said to be one of the members of the raiding party. At paragraph 14. this witness has stated that he was about five to six meters away from the office of the appellant. After receiving the signal he entered the office but does not recall as to who held the hands of the appellant after the recovery. According to this witness the entire procedure i.e. the seizure list and dipping of the Notes in the solution etc. was done in the C. B. I. office. PW 4 does not claim to be a witness with respect to determining whether the Notes that were recovered bore the same numbers as mentioned in the pre-trap memorandum (Ext. 4). Therefore, apart from making a bald statement that recovery was made from the pocket of the appellant, this witness has not contributed much to support the prosecution case.

(14.) Lastly, this Court will discuss the evidence of Kapildeo Mishra, C. B. I. Inspector, P. W. 7. He has recorded the fard-e-bayan of Jitai Kewat. He -has proved the seizure list, receipts and signatures of the seizure list and the memorandum prepared by the C. B. I. officer. An explanation has been offered in the cross-examination wherein it has been stated that PW 6, the complainant did not know to read and write in English and Hindi and, therefore, he has written the complaint on the basis of the statement made by PW 6. He denies the suggestions that he had written the complaint at the instance of V. Prasad, D. P. Singh who have not been examined. He accepts the fact that at the place of occurrence i.e. the office of the appellant, no steps were taken to prepare any written report. It is said that no attempts were made to keep the recovered money in the sealed cover at the place of occurrence, rather, the appellant's hands were caught and he was taken on a jeep to the C. B. I. office where the rest of the procedure was conducted.

(15.) This Court has examined the evidence that has come on record regarding the pre- trap and trap procedure. The evidence has to be examined and tested keeping in view the fact that P. W. 6 denies that any complaint was made by him and that there was no demand made by the appellant and the complainant had not tendered the bribe money to the appellant.

(16.) This Court has already made its comments on the evidence of the witnesses who were part of the raiding team. The evidence of independent witness PW 2 differs from the evidence of the official witnesses i.e Inspectors of C. B. I. team. It is surprising that after the seizure of the alleged money was made at the office of the appellant, the C. B. I. officers did not take any step to prepare the seizure list or seal the money which was seized from the appellant. In fact it appear that the C. B. I. officers had not taken with them the solution of sodium carbonate or any other material which would have been required to conduct the test at the spot to find out whether the appellant's hands were soiled in sodium carbonate. Rather, they preferred to take the appellant to the office of the C. B. I. and then prepare a seizure list, sealed the alleged bribe money and prepared the memorandum with respect to post trap procedure. The manner in conducting the seizure and post trap procedure is highly suspicious for two reasons. Firstly, the independent witnesses contradict each other regarding the procedure adopted by the C. B. I. officers and secondly the C. B. I. should have at least attempted to seal the tainted notes recovered from the appellant at the place where the raid was conducted.

(17.) In this context it would be important to note that mere acceptance of money is not sufficient to convict an accused. There must be evidence that there was a demand of bribe money which was being fulfilled in the transaction by payment by the complainant. The evidence of P. W. 5 indicates that there was no demand made by the appellant to his hearing and the evidence of PW 6 is complete denial of the complaint itself as well as denial of the procedure adopted by the C. B. I. officials. Specific allegations have been made that the whole procedure was engineered by two persons who had forced PW 6 to sign on the complaint petition.

(18.) The trial Court has not considered this aspect of the matter at all and in fact has not considered the defence of the accused who has specifically stated and examined DW 1 to show that appellant had made an adverse remarks against V. Prasad and it was V. Prasad along with Surendra Prasad, his clerk, who had managed the entire affairs. Therefore, it appears from the evidence of PW 6 and the evidence led in Court by the C. B. I. Inspectors that the prosecution has not been able to prove its case beyond doubt that in fact recovery was made of the tainted Notes by PW 7 and others.

(19.) It has lastly been argued that in fact no bill was pending on 8-10-1986 as the same had already been passed on 7-10-1986 and, therefore, there was no occasion to make a demand of Rs. 200/- from PW 6, Jitai Kewat, PW 1, Suresh Singh, the cashier and Accountant has stated at paragraph 10 of his cross- examination that only after the bill is passed, the payment order is made and has further clarified that the payment order on the bill in question was made on 7-10-1986 and the informant has signed on receiving payment on 8-10-1986. The draft in the name of K. K. Electricals was issued on 8-10-1986. It has been submitted that once the bill is sent to the Bank for preparation of the demand draft, there would be no occasion for demand of any bribe. PW 6 also supports this aspect when he admits that the bill was passed on 7-10-1986 itself. Therefore, it would be evident from the evidence of PW 1 Suresh Singh and PW 6 Jitai Kewat that no bill amount of Rs. 3000/- was pending with the appellant for which there is an allegation of demand a bribe money of Rs. 200/-.

(20.) The evidence and the facts in this case reveal that the prosecution fall short on two aspects in absence of which it becomes difficult for a Court to hold that the prosecution has succeeded in proving its case. To convict a Government servant for an offence and hold that he is guilty of criminal misconduct is a very serious allegation; it affects his entire career and, therefore, the procedure which is prescribed for holding a man guilty of an offence is elaborate and requires strict adherence by the prosecuting agency. As discussed the facts reveal that the procedure followed in this case while conducting the trap is full of discrepancies. The entire manner in which the trap was laid raises doubts in the mind of the Court. I find it difficult to understand why the investigating authorities did not seize the tainted Notes in the office of the appellant and no explanation has been provided for this lapse by the prosecution. It may be in certain cases that it is impossible to strictly follow the procedure of seizure etc. at the place of occurrence, but circumstances must be set forth by the prosecution to explain the difficulties faced by them for not doing so.

(21.) It has been contended that there is a distinction between Section 5(1)(d) and bribery. It is argued that if, a man (Government servant) obtains a pecuniary advantage by abuse of his position, he will be guilty under sub-clause (d) of Section 5 of the Prevention of Corruption Act, and as such the conviction under Section 5(d) is unwarranted. However, the Supreme Court has already held as far back as in 1956 in the case of Ram Kishan v. State of Delhi, AIR 1956 SC 476 : (1956 Cri LJ 837) that the offence as defined under sub-clause (d) of Section 5 does not come within the meaning of bribery is to place too narrow a construction on the sub-clause.

(22.) The second leg of the argument on behalf of the appellant has been discussed threadbare in the forgoing paragraphs. The conclusion reached by this Court is that it would be difficult to hold the appellant guilty of demanding or taking bribe in view of the fact that the informant has denied that the appellant had demanded bribe and further denied that he had given the tainted money to the appellant leading this Court to conclude that the appellant was a victim of circumstances. I, thus, hold that merely because the appellant took the tainted money, would not by itself lead to the conclusion that there was a demand of bribe in the absence of specific evidence to that effect.

(23.) Considering the evidence and the contentions raised by learned counsel appealing on behalf of the appellant, it is apparent that the prosecution has not been able to prove that there was a demand of Rs. 200/- from the complainant Jitai Kewat for passing the bill of Rs. 3000/-. The allegation of demand and payment of bribe money has been denied. The procedure adopted by the C. B. I. in preparing the seizure etc. becomes highly doubtful as the manner adopted appears to be highly suspicious in view of the evidence which has come on record.

(24.) In view, of the facts aforesaid this Court finds that the prosecution has miserably failed to prove its case beyond reasonable doubt that the appellant was guilty of the offences alleged. Accordingly, the impugned judgment and order of conviction and sentence passed against the appellant is hereby set aside and the appellant is acquitted of the charges levelled against him and discharged from the liabilities of the bail bonds.

(25.) In the result, this appeal is allowed. Appeal allowed
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