Anil Kumar Gupta vs The State Of Jharkhand

Heard the arguments of learned Sr. counsel for the appellant-Sri B.M. Tripathi and learned counsel Mr. Deepak Kumar Bharati appearing on behalf of C.B.I.

The instant criminal appeal has been preferred by the above named sole appellant challenging his conviction and sentence for the offence under Sections 7 & 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 in R.C. Case No. 6A of 2000 (R) passed by the learned Special Judge, CBI, Ranchi vide its Judgment and order dated 11^th May, 2006 whereby and whereunder, the appellant has been directed to undergo R.I. for three years with a fine of Rs. 10,000/- for the offence under Section 13(2) and 13(1)(d) of the P.C. Act and further sentenced to undergo R.I. for two years for the offence under Section 7 of the P.C. Act with a fine of Rs. 6000/-, with default stipulation. Both the sentences of imprisonment were directed to run concurrently.

The factual matrix giving rise to this appeal is that the complainant Rozamat Ansari (P.W.-5) was posted as Post Master in Jaher Bargari Branch of Sub Post Office Since 31.2.1979. The present appellant Anil Kumar Gupta was sub-divisional Inspector of Post used to visit time to time for inspection of the post office. It is alleged by the complainant that the appellant had demanded Rs. 1000/- from him on 27.05.2000 for giving favourable report in the ongoing departmental enquiry being conducted by the appellant against him in connection with an allegation of having fraudulently withdrawn Rs. 4,000/- from the savings account of one Marium Toppo. It is further stated that the appellant had recorded the statement of complainant on 27.05.2000 in the said inquiry and told him that in case he did not meet his demand, he would be put in serious trouble like loss of job and also told to come with the above amount to his residence on 31.05.2000. The complainant was not desiring to give bribe. Hence, he lodged the complaint on 30.05.2000 at the office of S.P., C.B.I., Ranchi who directed to Sri, P.K. Panigrahi (Inspector, C.B.I., P.W.-8) for verification of the allegation who submitted his report confirming the allegation leveled against the appellant to be true and recommended for registration of a regular case on the same day.

Accordingly, S.P., C.B.I., Ranchi directed Sri Binay Kumar, Inspector of Police, CBI/SPE Ranchi to register a case against Sri Anil Kumar Gupta under Section 7 of the P.C. Act.

After registration of the case being R.C. Case No. 6A/2000 (R) dated 30.05.2000 at 5 PM by the CBI, a pre-trap proceeding was started on 30.05.2000 under the leadership of Sri A Prasad, Dy. S.P., C.B.I. Ranchi with other C.B.I. Officials. As per direction, all the team members of CBI along with both independent witnesses and complainant assembled in the office of Sri A Prasad, Dy. S.P. at about 7 AM on 31.05.2000 and were explained the process of laying trap and also explained the use of phenolphthalein powder and its chemical reaction with the sodium carbonate solution in water which was followed by a practical demonstration and Sri Rozamat Ansari produced 20 number of G.C. Notes of Rs. 50/- denomination amounting to Rs. 1000/- and number and denominations of the G.C. Notes were noted and properly treated with phenolphthalein powder and asked the complainant to keep in his left side upper pocket and instructed to given the said tainted G.C. notes to the accused on being demanded as bribe otherwise not. The complainant was instructed to negotiate the bribe matter in an audible manner so that the shadow witness could hear the same and give a signal so that team members could reach at the place of occurrence after receiving signal. Accordingly, a memorandum of pre-trap proceeding was prepared. The team proceeded for the place of occurrence and reached there to apprehend the appellant red-handed. Thereafter, the complainant along with independent witness Nandlal Prasad (P.W.-3) entered inside the campus of accused Anil Kumar Gupta at 8:30 AM and it is alleged that on demand, the complainant handed over the bribe amount of Rs. 1000/- and the same bribe amount of Rs. 1000/- is alleged to be recovered from the possession of the present appellant. Memorandum of post-trap proceeding was prepared, accordingly.

After conducting thorough investigation, the Investigating Officer filed charge-sheet against the present appellant for the offence under Section 7, 13(1)(d) and 13(2) of the P.C. Act. The appellant pleaded not guilty and claimed to be tried.

In order to substantiate the charges leveled against the appellant, the prosecution has examined altogether eight witnesses:-

P.W.-1 Kamakhya Nand Tiwary

P.W.-2 Akhil Das

P.W.-3 Nand Lal Prasad

P.W.-4 Sandeep Kumar Jaiswal

P.W.-5 Rozamat Ansari

P.W.-6 Anil Kumar Srivastava

P.W.-7 Binay Kumar

P.W.-8 Prasan Kumar Panigrahi

Apart from oral testimony of the witnesses, the prosecution has adduced following documentary evidence:-

Ext.-1 Series Signature of the complainant and the witnesses over pre-trap, post-trap memorandum, all the four bottles and envelopes.

Ext.-2 Sanction Order

Ext.-3 Complaint Petition

Ext.-4 Report of C.F.S.L.

Ext.-5 Forwarding Letter

Ext.-6 Endorsement of Sri N. Jha over complaint petition.

Ext.-7 Verification Report

Ext.-8 F.I.R.

Ext.-9 Pre-Trap Memorandum

Ext.-10 Search List

Ext.-11 Observation remarks dated 31.05.2000

Ext.-12 Memorandum Recovery and Seizure

The prosecution has also examined following material exhibits:-

On the other hand, the case of the defence is total denial from occurrence. Further defence of accused is that he was conducting an enquiry against the complainant for fraudulent withdrawal of amount of Rs. 4000/- from the account of one Mariyum Toppo and with a view to put pressure upon the accused, this false case has been instituted against him and he has falsely been implicated in this case. Further defence of the accused is that he had already submitted the enquiry report on 30.05.2000 against the complainant, therefore, there was no occasion to demand any illegal gratification for showing favour to the complainant. It is also pleaded that nothing was recovered from the conscious possession of the accused and his hand was never washed in the solution of sodium carbonate as claimed by the prosecution. However, no oral evidence has been adduced on behalf of the defence, but defence has adduced following documentary evidence:-

Ext.-A to Ext.-7 Enquiry Report Number E-J Bargari/Brame dated 20.09.2000, inspection report dated 16.07.1980, 07.01.1995, 22.03.199522.03.1997, 16.04.1998 and 02.02.1996

Ext.-B Letter No. B/2-10 AKG/CBI/2000-01 dated 28.07.2000

Ext-B/1 Letter No. F-Misc./J Bargari/SB/7/2003 dated 19.05.2004

The learned trial Court after evaluating the oral as well as documentary evidence along with material exhibits relied upon by the prosecution arrived at definite findings that the present appellant being the public servant was under the charge of conducting enquiry for allegation of illegal withdrawal from the account of Marium Toppo and was bound to conduct a fair enquiry but with intention to show favour to the complainant demanded illegal gratification of Rs. 1000/-. The prosecution witnesses have fully supported and proved the factum of demand, acceptance and recovery of illegal gratification at the hands of the accused and he was also caught red-handed in the trap. The post-trap memorandum also fortifies the charges leveled against the accused. Accordingly, the learned trial Court held the appellant guilty for the offence as stated above which has been assailed in this appeal.

Assailing the impugned judgment of conviction and sentence of the appellant, learned Sr. counsel for the appellant has pointed out following main grounds:-

 Admittedly, the appellant was conducting the departmental enquiry against the complainant just prior to institution of this case. The allegation was very serious in nature against the complainant that he has fraudulently withdrawn of Rs. 4,000/- from the savings account of one Marium Toppo but it is stated by the complainant that on 27.05.2000, he met with the appellant in connection with departmental enquiry against him and his statement was recorded. In the same breath, he stated that there was demand of Rs. 1000/- by the appellant to give a favourable report otherwise consequence will be troublesome to him and also invited him at his residence in the morning of 31.05.2000. It is quite surprising that instead of immediately lodging the case, the complainant waited for three days and in the evening of 30.05.2000, filed a complaint before the S.P., C.B.I., Ranchi, although at that time enquiry report was already submitted against him and he might have come to know the result of enquiry by any source and maliciously and having ill-will with the appellant lodged this false case on an concocted story of demand of bribe in order to teach a lesson to the appellant.

 P.W.-1 Kamakhya Nand Tiwary, a postal employee has categorically admitted in his evidence (para-5 & 7) that the appellant had informed that the enquiry report with regard to the complainant was complete and there has been an entry in the dispatch register of the office dated 30.05.2000 and the enquiry report was also attached and since it was inter-office letter, no dispatch number was mentioned.

 P.W.-2 Akhil Das, Personal Assistant of CMPDI office, has been turned hosilte. P.W.-3 Nandlal Prasad, UDC in CMPDI has admitted to be star witness of C.B.I. in many trap cases including the present case.

 The preliminary enquiry conducted by P.W.-8 on 30.05.2000 itself shows that he simply interrogated with the complainant and concluded, no other independent inquiry about the truthfulness of the allegation and submitted his verification report confirming the allegation. This witness did not bother to examine Marium Toppo, whose money was fraudulently withdrawn by the complainant himself.

 The complaint was presented by P.W.-5 (Complainant) at about 3:00 PM in the office of Sri N. Jha, S.P., C.B.I. and within two hours of enquiry, report was submitted and F.I.R. was lodged.

 The story of trap is also strange. It is admitted by complainant that the shadow witness were standing at a distance of 50-60 feet from him. He alone went to the residence of the appellant. This fact is also corroborated by P.W.-2- Akhil Das. Therefore, there was no occasion for the shadow witnesses to overhear the conversation about transaction in between the complainant and the appellant regarding demand, acceptance and recovery of bribe money as alleged.

 It is also admitted by the complainant that he has not been found guilty of mis-appropriation of Rs. 4000/- in case of Marium Toppo rather he was directed to deposit the aforesaid amount and the recovery of aforesaid money was ordered by the postal department and the same was recovered from him. It is submitted that recovery of amount illegally withdrawn also comes under category of “punishment” under service rule of Gram Dak Sewa Rule-9 (Ext.-A/1). In the year 1997 also, the complainant was found guilty for mishandling of money and the then Superintendent of Post Office had recommended removal from service of the complainant (Ext.A).

 The prosecution has miserably failed to even disclose the name of shadow witnesses and evidence of other witnesses who were member of trap team also goes to show that only Rozamat Ansari went inside the gate and other witnesses were around 60 feet away from the gate. The complainant rang the bell and some conversation took place between the complainant and the accused but none of the witnesses as per their location were able to hear anything. It is also strange that at the time of taking the bribe amount, some Hulla were raised but the prosecution is mum as to who raised Hulla. The complainant should not make any Hulla, if everything was going as per the plan, he has to only give signal as demonstrated during pre-trap formalities. P.W.-2 and P.W.-3 have also made contradictory statement in this regard. Admittedly the residence of appellant is situated in the dense populated area having 300-400 houses in near vicinity to each other but no neighbors were called upon to witness the trap proceedings. The location of trap is also misconceived by the prosecution witnesses.

 Admittedly, the appellant was apprehended on 31.05.2000 and was granted bail by the Hon’ble High Court on 14.07.2000. Therefore, there was no occasion for the appellant to manipulate enquiry report and submit the enquiry report prior to lodging of the case in the office, in between 31.05.2000 to 14.07.2000.

 Admittedly, 11 trap team members assembled at CBI Office on 31.05.2000 at about 7 AM and finally trape was conducted at 8:35 am at the residence of appellant. In such span of 95 minutes, all the witnesses were demonstrated about pre-trap formalities, memorandum was prepared, G.C. Notes were dipped with phenolphthalein power, sealed and given to the complainant, with direction to give the same to the accused only on demand of bribe and not otherwise, thereafter, proceeded to location with the 11 members read over and gone through the pre-trap memorandum and thereafter put their signature. Similarly, post-trap formalities were conducted. All these proceedings were done within above short span of time speaks foul play and preparation of table work only. It is out and out a false case, deliberately instituted by the complainant as a grudge reckoning his vengeance due to submission of enquiry report against the complainant on 30.05.2000. The enquiry report (Ext.-A) dated 30.05.2000 was also relied upon by the appellant while he was in custody and moved his bail application before the C.B.I. Court on 07.06.2000 and also found mention in the bail rejection order dated 09.06.2000 in Cr. Misc. Case No. 4965 of 2000(R) for grant of bail. The said enquiry report was also filed as annexure-3. Therefore, the appellant was granted bail. Above report is not disputed by the prosecution. On the basis of which, the recovery was made from the complainant of his illegally withdrawn money.

 From the conversation in between P.W.-5 and the appellant, at the alleged time of trap itself, does not constitute any demand of illegal gratification in connection with ongoing departmental enquiry pending against the complainant, which was concluded and report was already submitted.

 The learned trial Court has miserably failed to consider the vital aspects of the case and the circumstances under which the prosecution case was initiated against the appellant and the background of the case which gave rise to false implication of the appellant as well as improbability proving the essential ingredients for constituting the offence under Section 7, 13(1)(d) read with 13(2) of the P.C. Act. In view of the fact that no favour was shown to the complainant in the department proceeding going on against him and conducted by the present appellant, therefore, there was no question to demand and accept any illegal gratification using his official position.

On the other hand, learned Sp.P.P. (C.B.I.) controverting the aforesaid contentions raised on behalf of the appellant has submitted that the learned trial Court has very wisely and aptly considered the vital aspects of the case, scrutinize and appreciated the evidence of witnesses, trap, proceedings and material exhibits and arrived at right conclusion that the prosecution has proved the charges leveled against the accused beyond all reasonable doubt. It is also settled law that if the demand and acceptance of gratification has been proved by the prosecution even through holding trap, the presumption under Section20 of the P.C. Act can be invoked to the effect that gratification was demanded and accepted as a motive or reward as contemplated under Section 7 of the P.C.Act. The defence has simply relied upon enquiry report submitted on 30.05.2000 itself but could not properly prove the same and by submission of enquiry report itself, he cannot be exonerated from his criminal liability if otherwise demand of illegal gratification and its acceptance is proved by the prosecution. The defence has miserably failed to rebut the aforesaid presumption invoked against the appellant. During trap proceeding, the demand, acceptance and recovery has been proved which was in connection with departmental proceeding against the complainant. Therefore, there is no illegality or infirmity in the impugned judgment of conviction and sentence of the appellant and no merits in this appeal which is fit to be dismissed.

I have gone through the record of case along with impugned judgment in the light of contentions raised on behalf of respective parties.

The only point for determination in this appeal is “as to whether the impugned judgment of conviction and sentence of the appellant suffers from any error of law, which requires any interference in this appeal?”

Before imparting my verdict on the above point, it is pertinent to take brief resume of the evidence available on record for proper adjudication.

The star witness of this case is P.W.-5 Rozamat Ansari (complainant). According to his evidence, he was posted at Jaher Bargari Post Office as Branch Post Master and one Marium Toppo had complained about fraudulent transaction of Rs. 4000/- which led to departmental proceeding against the complainant which was being conducted by the appellant who asked for Rs. 1000/- for giving favouarable report and asked the complainant to come with Rs. 1000/- at 7 AM on 31.05.2000. The complaint was filed on 30.05.2000 before S.P., C.B.I., Ranchi. After verification of allegations, F.I.R. was instituted on 31.05.2000, pre-trap memorandum was planned to apprehend the appellant red-handed and all the pre-trap formalities were explained to the complainant. Thereafter, the trap team proceeded for place of occurrence and reached there about 8:30 AM. The complainant and Sri Nand Lal Prasad (P.W.-3) entered into the residential premises of appellant and rang the doorbell then the appellant asked the complainant “kya Ansari ek hazar rupya laye ho”, he replied “ haa”, the complainant brought out the money from upper left side pocket of the shirt and gave to the appellant who counted the same and kept in his upper left side pocket of T-Shirt. Then, the complainant gave a signal, all the trap team members apprehended the appellant red-handed and all the post-trap proceeding was completed including the wash of hand which colour of solution turned pink and was sealed and signed by the trap team members.

P.W.-3 Nand Lal Prasad has claimed to have gone with the complainant inside the house of the appellant when post-trap proceeding was going on to apprehend the appellant red-handed. This witness in his cross-examination admits that he was standing near the gate just in front of the Verandah of the house of the accused and P.W.-2 Akhil Das was standing behind him

P.W.-2 Akhil Das has admitted that he has not seen the transaction of bribe amount and on this point, this witness has been declared hostile by the prosecution. He has further stated that he was standing on the main road during trap proceeding and on Halla, he had rushed in the house of the accused.

P.W.-7 Binay Kumar is the Investigating Officer of this case and after receipt of verification report, Sri N. Jha, S.P., C.B.I. directed this witness to register a case and take up investigation. This witness was also a member of trap team constituted for apprehending the accused red-handed. This witness has also admitted that complainant and P.W.-3 had entered into the premises of accused and other members took their suitable position. This witness has also supported the fact that the appellant had rang the doorbell then the appellant asked the complainant “kya Ansari ek hazar rupya laye ho”, the complainant replied in affirmative “ haa”, the complainant brought out the money from upper left side pocket of the shirt and gave, the appellant counted the same and kept in his upper left side pocket of T-Shirt. Then, the complainant gave a signal, all the trap team members apprehended the appellant red-handed and all the post-trap proceeding was completed including the wash of hand which colour of solution turned pink was sealed and signed by the trap team members. A detail memorandum of recovery and seizure was prepared and sent the material exhibit to C.F.S.L., Kolkata and obtained expert opinion and after completion of the investigation, submitted charge-sheet. This witness has also admitted that he had recorded the statement of Akhil Das (P.W.-2), who had stated before this witness that appellant enquired from the complainant by saying “Kya Ansari Ek Hazar Rupya Laye Ho”, then the complainant replied in affirmative “Haa”.

It is surprising that P.W.-2 in his deposition has admitted that he has not seen any transaction between the appellant and complainant due to his position being outside the premises but he has given his statement before the I.O. that he has seen the conversation between them.

P.W.-8 Prasan Kumar Panigrahi who is the verifying officer and member of the trap team and was directed by S.P., C.B.I., on 30.05.2000, to verify the genuineness of the complaint lodged by the complainant. This witness states that he had questioned the complainant and confirmed his allegation but he had not enquired from the Marium Toppo whose money was fraudulently withdrawn by the complainant.

P.W.-6 Anil Kumar Srivastava is the Asst. Director, C.F.S.L. who had examined the solution of four bottles sealed during pre-trpa and post trap and found phenolphthalein and sodium carbonate in the solution.

P.W.-1 Kamakhya Nand Tiwary is the Sub Divisional Inspector, Post Office. He has stated that in the year 2000, he was complaint Inspector in the office of Senior Superintendent. He has further stated that an enquiry for withdrawal of Rs. 4,000/- from the S.B. Account of Mariyam Toppo was pending. The enquiry was entrusted to accused Anil Kumar Gupta and after his trap that enquiry was entrusted to Sri Sita Ram, Assistant Superintendent, Sri Bimal Kishore, Sub. Div. Superintendent and to me by Senior Superintendent. He has stated during his cross examination that Anil Kumar Gupta had not submitted his enquiry report before trap. He has further stated that it was mentioned in dispatch register that his enquiry report is ready.

Before adverting to evaluate the aforesaid evidence available on record, it appears pertinent to extract the relevant provisions of the Prevention of Corruption Act, 1988.

It is also pertinent to mention relevant judgments of Hon’ble Supreme Court of India. The Apex Court in the matter of K. Shanthamma Vs. State of Telangana, [(2022) 4 SCC 574] and Neeraj Dutta Vs. State (Govt. of NCT of Delhi) [(2023) 4 SCC 731] has held that for recording conviction under Sections 7, 13(1)(d)(i) and (ii), the prosecution has to first prove the demand and acceptance of illegal gratification.

The relevant paragraph number 11 of K. Shanthamma (Supra) is reproduced as hereunder:-

Similarly, the relevant paragraph number 88 of Neeraj Dutta (supra) is reproduced as hereunder:-

In the instant case, the evidence of P.W.-1, P.W.-2 and P.W.-3 does not disclose as to whether any talk of demand was made or not. It is also not clear from the evidence of two shadow witnesses who were especially sent for overhearing the conversation between the complainant and the appellant as the P.W.-2 has stated in his evidence that he had not seen any transaction between the appellant and the complainant whereas P.W.-3 states that he was standing just behind the gate in front of Verahnda but not the room where the conversation and transaction alleged to have taken place between the appellant and the complainant. There also appear several contradictions in the evidence of P.W.-2 and P.W.-3 where it has come on record that somewhere P.W.-3 Nand Lal Prasad admits that Akhil Das was standing just behind him whereas Akhil Das (P.W.-2) himself admits that he was standing at the main road. Another glaring aspect is that whole pre-trap and post-trap proceedings have been executed in a haste completing all the pre-trap formalities and post-trap proceedings within a very short span of time which also casts a doubt whether the post-trap plan was executed in a manner as was planned in the pre-trap demonstration. It is also apparent from the perusal of the report of departmental proceedings (Ext.-A) that on the date of institution of complaint, the report of departmental proceeding was ready and was submitted in the office of Sr. Superintendent of Post Office, Ranchi and its entry was made in the dispatch/correspondence register. It is also surprising that if the appellant has actually demanded any illegal gratification and told the complainant to reach at his residence on 31.05.2000 then, why the report of the departmental proceeding of the complainant was ready for dispatch on 30.05.2000 itself. Further, it is crystal clear from the evidence of complainant as well as purported shadow witness (P.W.-3) Nand Lal Prasad that both have consistently stated that the accused wishing the complainant at his door straightway asked “whether you have brought Rs. 1000/-“that is also corroborated by the P.W.-3. The above version of both the witnesses does not indicate that there was any demand of bribe at the hands of the appellant or he ever accepted any money as a bribe. Therefore, demand of bribe by the appellant from the complainant appears to be absolutely unreliable and unworthy of credit. I also find substance in the point of argument raised on behalf of the appellant that complainant approached the appellant on 27.05.2000 and if as alleged, any illegal gratification for showing favour was made by the appellant, as to why the complainant waited for three days instead of immediately lodging the complaint regarding the illegal gratification and in the evening of 30.05.2000, the complainant filed a complaint before the S.P., C.B.I., Ranchi although at that time enquiry report was already submitted against him. It might be a situation that the complainant might have come to know the result of enquiry by any source and maliciously and having ill-will with the appellant lodged this false case on a concocted story of demand of bribe in order to teach a lesson to the appellant. Most of the prosecution witnesses are the members of the pre-trap memorandum who had to execute the same in the post-trap proceedings and all have just managed to complete the table work of post-trap proceeding lacking in substance of demand, acceptance and recovery.

The Hon’ble Supreme Court of India in the case of P. Satyanarayana Murthy Vs. District Inspector of Police, State of A.P. and Anr. reported in (2015) 10 SCC 152 has held in para 22 and 23 that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as Section 13(1)(d)(i) and (ii) of the Act. Para 22 and 23 are reproduced hereunder for ready reference:-

Therefore, there is complete absence of any demand of bribe made by the accused, its acceptance and recovery as alleged by the complainant. The mere insistence upon recovery of G.C. Notes and post-trap formalities would be of no avail to prosecution. Therefore, no presumption under Section 20 of the Act, can be raised against the appellant. The complainant himself had an evil motive to implicate the appellant.

In the above factual background, the ingredients of either of the offences under Section 7 & 13 (1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 are absolutely not attracted against the appellant. The learned trial Court has believed the testimony of the witnesses only on conjecturing and the observations of the learned trial Court are absolutely beyond the record. The totality of circumstances as proved by the prosecution clearly proves the innocence of the appellant.

In the light of foregoing discussions and reasons, I find substance in the points of argument raised on behalf of the appellant and merits in this appeal. Accordingly, impugned judgment of conviction and order of sentence of the appellant is hereby set aside and he is acquitted from the charges leveled against him.

The appellant is on bail, hence, he is discharged from the liabilities of bail bond. Sureties are also discharged.

In result, this appeal is allowed.

Pending I.A(s), if any, is also disposed of, accordingly.

Let a copy of this judgment along with Trial Court Records be sent back to the court concerned for information and needful.