Mithilesh Kumar Singh vs The State Of Jharkhand Through Vigilance (A.C.B.), Ranchi

Heard the arguments of learned Sr. counsel for the appellant and learned Spl.P.P.

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 Special (Vig.) Case No. 9 of 2002 passed by the learned Special Judge, Anti Corruption Bureau, Ranchi vide its Judgment and order dated 17^th November, 2017 whereby and whereunder, the appellant has been directed to undergo R.I. for one year for each of the aforesaid offences along with fine of Rs. 5,000/- with default stipulation. Both the sentence of imprisonment were directed to run concurrently.

The factual matrix giving rise to this appeal is that informant (P.W.-5) applied for registration of one N.G.O. namely “Bananchal Kalyan Samiti” in the month of June, 2001 which could not be registered till December, 2001. Thereafter, the informant met with the present appellant who in turn advised the informant to remove some defects in the application, which was also removed as pointed out by the appellant on 08.01.2002. Thereafter, the informant again met with the appellant on 22.01.2002 for the said purpose but the appellant demanded illegal gratification of Rs. 2,500/- (Two Thousand Five Hundred Only) for getting the registration of the said N.G.O. Informant was not desirous to pay any bribe or illegal gratification, hence, he lodged a written complaint (Ext.-3) before D.G. Vigilance on 23.01.2002.

Upon receipt of complaint, Mr. Laxmi Narayan Singh (P.W.-15) was appointed as verification officer to conduct an inquiry about truth and genuineness of the complaint on 23.01.2002, who verified the allegations and reported the matter to be true and genuine. Accordingly, F.I.R. (Ext.-13) was registered on the same day for the offence under Sections 7 & 13 of the P.C. Act, 1988. The trap team was constituted on 24.01.2002 (Ext.-1). The trap was conducted with the verification officer and other members of team on the same day. A pre-trap formality was made. G.C. Notes Memorandum was prepared and Rs. 2,500/-in the denomination of Rs. 1000x1, Rs. 500x1 and Rs.100x10 Indian currency notes were supplied to the informant by the dept. concerned. All the currency notes were percolated with phenolphthalein powder and it was handed over to the complainant as per rules. As per trap plan, all the members of trap team visited the office of the appellant on 24.01.2002, at about 11 AM, where the trap team dispersed in different areas. The informant went inside the office of the accused. After some time, the accused and the informant came out from the office and arrived at the pitch road besides the T.A. Division Building where, on the demand, the complainant gave the tainted money as illegal gratification to the accused appellant and on signal of complainant, accused was caught red-handed by trapping team. On search, the tainted money was recovered from the possession of the appellant and was seized after comparing with the G.C. Notes Memorandum and post trap formalities were made. Seizure list was prepared. The trap team caught the appellant receiving the amount of tainted amount of Rs. 2,500/- from the informant outside the office (backside road of T.A. Division).

Mr. Nagendra Chaudhary (P.W.-16) was deputed the charge of investigation who after completion of investigation submitted charge-sheet No. 13/2002 dated 18.02.2002 against the appellant for the aforesaid offences. After taking cognizance, the charges were framed against the accused to which he denied and claimed to be tried.

The learned trial Court after considering the oral as well as documentary evidence adduced on behalf of the parties held the appellant guilty for the aforesaid offences and accordingly convicted and sentenced as stated above.

The learned Sr. counsel for the appellant assailing the impugned judgment has strenuously argued that the appellant has falsely been implicated in this case as per version of the informant himself (P.W.-5). It is admitted case of the prosecution that the demand of bribe was made by any other official who has not been made accused in this case and the complainant himself admitted that the appellant did not make any demand of bribe from him. It is also admitted by the complainant that twice he met in the office but talked with another person claiming himself to be Mithilesh Kumar Singh (appellant) without making any talk with the present appellant. It is further argued that the informant himself has admitted that he gave tainted money to him which was refused and thrown on the ground but in the meantime, the trap team caught hold of the appellant. The complainant and the other shadow witness have miserably failed to prove that the tainted money was given to the appellant on his demand as illegal gratification for registration of the N.G.O. as applied by the complainant. The other members of trap team have also deposed that the complainant was warned to give the tainted money only when it is demanded by the accused, if demand is not made, the money has to be returned to the dept. concerned. The complainant in his evidence clearly admits that money was given to the accused without making any demand. According to the complainant, the place of occurrence was the office premise of the accused but other witnesses have given a different place of occurrence which is pitch road in front of the office near T.A. Division Building. The seizure list witnesses have also denied any recovery in their presence and the tainted currency notes. The prosecution has also failed to prove that the matter of registration of NGO in favour of the complainant was pending before the appellant. No investigation in this regard, has been conducted and nothing is stated by the I.O. as he has to make an investigation in this regard. The sanction order for prosecution was also issued in a mechanical manner without applying the mind towards the materials collected against the appellant. It is further submitted that no proceeding for registration of any NGO as alleged by the complainant was pending before the appellant and the prosecution has also failed to prove any demand of illegal gratification by the appellant or its acceptance as well as the recovery of tainted money from the possession of the appellant is also not proved beyond doubt. Learned trial Court has taken into consideration the irrelevant evidence and also relied upon some reported judgments which were not strictly applicable in the facts and circumstances of this case. Therefore, impugned judgment of conviction and sentence of the appellant is absolutely illegal based beyond the weight of evidence available on record and liable to be set aside. The appellant deserves acquittal from the charges leveled against him. Accordingly, this appeal may be allowed.

Per contra, the learned Spl.P.P. controverting the aforesaid contentions raised on behalf of the appellant has submitted that the learned trial Court has very wisely and aptly taken into consideration the overall evidence available on record. Mere hostility of seizure list witnesses who have admitted the preparation of pre-trap memorandum and also signature on trap proceedings memorandum, the prosecution has been able to prove the demand of illegal gratification by the appellant and none else who came out from his office with the complainant for receiving the illegal gratification demanded by him of Rs. 2,500/-. The recovery of tainted G.C. Notes were also effected from the conscious possession of the appellant. There is no legal substance regarding disputed identity of the appellant as alleged by the learned Sr. counsel for the appellant. The impugned judgment suffers from no illegality or infirmity calling for any interference in this appeal which is devoid of merits and 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 Pradeep Kumar Sinha (complainant). According to his evidence, he applied for registration of NGO “Bananchal Kalyan Samiti” before the registration office Dhruwa Ranchi in the month of June, 2001. In the month of January, 2002, he went to the said office for progress in the matter and met with one Mithilesh Kumar Singh who was working in the sub-registry office. Then, some defects in his application were pointed out which were removed. Then, this witness was suggested to come after Makar Shakaranti. This witness went to the office on 22.01.2002 and met with Mithilesh Kumar Singh who told that he takes Rs. 5,000/- from other persons but he will do his work for Rs. 2,500/- only. This witness was not inclined to give any bribe hence he met with D.G. Vigilance and presented a written complaint (Ext.-3). Again, on 24.01.2002, at about 9:00 to 9:30 am, he went to the D.G. Office along with amount of bribe where G.C. Notes Memorandum was prepared with some powder and sealed in an envelope. He was directed to hand over this currency notes to the accused only when he demands for bribe. He was also shown the procedure of Phenolphthalein powder and chemical reactions through Sodium Carbonate and the liquid was also sealed in bottle. Thereafter, he along with raiding party proceeded for registration office at about 10:15 to 10:30 AM. He went inside the office of Mithilesh Kumar Singh along with members of raiding team. He met with Mithilesh Kumar Singh in his office and told that पैसा लेकर आए हœ काम कीिजए िफर वह बोला िक पैसा उसको दे दीिजए वही िमिथलेश कुमार िसंह है तब मœने कहा िक परसो तक आप कहते थे िक आप ही िमिथलेश कुमार िसंह हœ और पैसा मुझे ही दीिजएगा तब मœने पैसा उस आदमी को दे िदया और धावा दल के लोगो को इशारा िकया धावा दल के लोग जैसे ही अंदर घुसे उस आदमी ने पैसा नीचे िगरा िदया िफर धावा दल के लोगो ने उɎŐ पकड़ िलया िफर गाड़ी मŐ बैठा कर उस ʩİƅ को उनके आवास ले गए और मुझे बोला गया िक आप कायाŊलय पŠंचŐ िफर कायाŊलय आए तो आधा घंटा के बाद धावा दल के सद˟ लोग ने अिभयुƅ को ले आएं िफर वहा हाथ धुलवाया गया तो पानी गुलाबी हो गया और गुलाबी पानी को बोतल मŐ सील कर िदया गया

He has further proved the tainted G.C. Notes kept in sealed envelope which was opened and marked material Ext.I to I/II. This witness has further deposed that above G.C. Notes were given to the accused Mithilesh Kumar Singh in the T.A. Building (registration office) which was given near the door of the office and recovered, at the time of search, two to three witnesses namely Arman Khan and R. Singh were also called upon in whose presence search was conducted.

In his cross-examination, this witness has categorically admitted that when he went for inquiry about the progress of N.G.O. registration on earlier two occasions while removing the defects in the application form and thereafter the person who posed himself to be Mithilesh Kumar Singh is not the same person as the accused behind the dock. He also admits that the person who asked bribe from him in the registration office and against whom he lodged the complaint is not the person in this Court. The trap was also conducted for red-handed apprehension of the person who asked bribe from this witness. This witness further admits that prior to holding trap, the allegations mentioned in his complaint was not verified by the department. Even prior to trap, he was not brought to the registry office for verification of the complaint and the accused Mithilesh Kumar Singh. He also admits that at the time of trap when he went inside the office and met with the official/staff who posed him to be Mithilesh Kumar Singh but he pointed present accused as Mithilesh Kumar Singh then he went there and handed over the tainted money without any demand. He also admits that the said tainted G.C. Notes were not accepted by the present appellant rather the same was thrown on the ground. These things were disclosed by him before the vigilance officer at the time of further proceeding but no heed was paid. He also states that the accused person behind the dock has no concern with this case and the allegations leveled by this witness.

Surprisingly, this witness has not been declared hostile by the prosecution.

P.W.-1 Binod Kumar Singh is a constable and identified his signature (Ext.-1) on the list of trap team members which was prepared by Inspector Deva Sankar Prasad. According to his evidence, on 24.01.202, informant went to the registration office and on signal, he along with other officials went inside the office and caught the accused with tainted money of Rs. 2,500/-. The seizure list was prepared and accused was arrested. Admittedly, this witness has not seen the demand and acceptance of the bribe by the accused.

P.W.-2 Umesh Kumar Singh is also a member of raiding team. His evidence also appears to be in same line as P.W.-1. According to him also, at the time, when informant went inside the registry office and came back with the accused outside office and thereafter on the signal, they caught the accused and searched the tainted money which was recovered and the formalities were made at the place of occurrence and the accused was arrested.

P.W.-3 Duryodhan Gagrai is also a member of trap team. According to his evidence also, the informant alone went inside the office and came out with the accused and after sometime on signal of informant they caught the accused and on search the tainted money was recovered from possession of the accused. According to him, the accused was arrested on the road.

P.W.-4 Md. Shahbaz Ansari is also a member of trap team. According to him, near T.A. Building in the leadership of Nagendra Chaudhary, he had gone to trap the fellow along with other equipments and at about 11AM, the informant went inside the office and came out with the accused after sometime and when they came to the pitch road on signal of the informant the trap team caught him in presence of two independent witnesses with tainted money of Rs. 2,500/-. The tainted money which was recovered from him was the same as mentioned in G.C. Note Memorandum. He has disclosed how G.C. notes Memorandum were prepared and other formalities like chemical test and preparation of trap team.

P.W.-6 Ramesh Singh is one of the seizure list witnesses. According to his evidence, he saw two to four persons standing on the road and on request of police personnel he signed on some papers but in his presence nothing was recovered from any person. The signature has been marked as Ext. 2/3 and the seizure list as Ext.-4.

P.W.-7 Armaan Khan is the another seizure list witness and a social worker. According to his evidence, he saw crowd on the road near T.A. Building where he came to know that vigilance had conducted raid and someone was caught. No search was made in his presence but Rs. 2,500/- was shown to him which has been recovered from the possession of the accused. When he asked about the arrested fellow, he was informed that he has been sent to the police station but G.C. Notes Memorandum was shown to him and his signature was obtained. Therefore, this witness except admitting his signature on some documents taken by the officers clearly admits nothing happened before him.

P.W.-8 Gopal Ji Jha is a formal witness and proved the S.F.S.L. report as Ext.6.

P.W.-9 Lalan Singh is also a member of trap team and identified his signature on memorandum of trapping as Ext. 1/1. According to him also, the informant went inside the office of the accused with Laxmi Narayan Singh and after sometime informant and accused came out. After signal by the informant, the accused was caught red-handed in presence of two witnesses and on his personal search, the tainted G.C. notes of Rs. 2,500/- was recovered. Thereafter, formalities of chemical examination by dipping hands of the accused in sodium carbonate has been conducted, then, the color of his hands turned into pink which was seized accordingly and kept in a bottle.

In his cross-examination, this witness categorically admits that he has not seen the accused while taking money from the informant rather he was outside the office and waiting for arrival of the informant.

P.W.-10 Diva Shankar Prasad, the police inspector of Vigilance Dept. deposed that he was also member of the trap team. According to his evidence also, only informant went inside the office of the accused and after sometime he came out along with the accused and after receipt of tainted money as gratification the accused was caught red-handed. He also admits that the truth of the allegation made in the complaint was also verified by him on 23.01.2002. However, he has further stated that he does not know as to enquiry about truthfulness of the allegation of the complainant was made on 23.01.2002 or not.

P.W.-11 Arbind Prasad Sinha is police inspector posted in vigilance dept. at the relevant time and is a member of trap team. According to his evidence, the verification about truth of allegation made in the complaint was verified by Laxmi Narayan Singh after constitution of trap team and preparation of pre-trap memorandum, the informant went inside the office of the accused and came out from the said office after giving him the tainted money and on getting signal the accused was arrested and tainted money was recovered from his possession.

P.W.-12 Rang Nath Sharma is also a member of the raiding team. According to his evidence also, the informant alone went inside the office of the accused and after sometime both came out and proceeded towards the road and on signal of the informant, accused was caught red-handed with tainted money and on his personal search, the tainted G.C. Notes were recovered. Thereafter, other formalities by dipping the hands of the accused in sodium carbonate liquids were also conducted and his hands became pink. This witness also admits that the accused was caught near T.A. Division Building.

P.W.-13 Devendra Nath Upadhaya, A.S.I. and member of trap team. According to his evidence also, after verification about allegation in the complaint, the same was found to be true. Thereafter, pre-trap memorandum was prepared and he also proceeded for the purpose of trapping the accused. The occurrence took place on the pitch road near the registration office where the accused was caught red-handed with tainted currency notes of Rs. 2,500/-.

P.W.-14 Ajit Kumar Sinha is a formal witness who has proved the sanction order for prosecution as Ext. -12.

P.W.-15 Laxmi Narayan Singh has verified the truth and genuineness of the complaint. According to him, after receiving the complaint and order of superior officer, he verified the matter on the same day and found the allegations true against the accused. He has proved his endorsement for verification on complaint as Ext.3/1. According to his evidence, at the time of trap when they went near the place of occurrence, he went near the office of the accused who along with three to four persons came out from the office. After some time, the informant gave the tainted money to the accused and gave signal, then, Ragvendra, Diva Sankar Prasad caught his hand and on his search, the tainted money was recovered which was tallied with the G.C. Notes Memorandum, after chemical test, the color of hand became pink and seizure list was prepared.

In his cross-examination, he fairly admits that three to four persons who were talking with the accused were not the members of the raiding team.

P.W.-16 Nagendra Choudhary is the I.O. who after receiving the charge of investigation interrogated with the witnesses and sent the seized materials to S.F.S.L. for chemical examinations. He also obtained the chemical examination report and sanctions order from the competent authority for the prosecution of the case and submitted charge-sheet finding sufficient evidence against the accused for the aforesaid offence.

On the other hand, the plea of innocence was taken by the accused in his statement under Section 313 Cr.P.C. However, two documentary evidence has also been adduced by the accused without examining any oral witnesses.

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.

(Prior to Amendment in the year 2018)

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 witnesses as discussed above, categorically reveals that the informant himself was not acquainted with the present appellant prior to lodging of the complaint. The complaint was lodged under the impression that the present accused (appellant) has made demand of bribe for registration of N.G.O. as applied for by the complainant. The real facts depicted by the complainant is that he met with another person on earlier two occasions before instituting the complaint who disclosed his name as Mithilesh Kumar Singh but at the time of trap, when he met with the same person, he pointed out another table, where the present appellant was sitting as that person is Mithilesh Kumar Singh he met with. It is also absolutely clear that when the complainant attempted to deliver money in the hands of the present appellant, the same was thrown on the ground, thereafter, who took the said money and how it came to the physical possession of the appellant has not been proved by the prosecution. It also transpires that none of the witnesses examined in this case has claimed to be shadow witness at the time of holding the trap. All the witnesses have categorically stated that only the complainant went inside the office of the present appellant, thereafter, he came out with the appellant and signal was raised outside the building of registration office on pitch road. This fact is also contradictory to the evidence of complainant himself who claims that the money was delivered to the accused in the office which was thrown and other proceedings were conducted in the office itself.

Therefore, there is complete absence of any demand of bribe made by the accused, its acceptance and recovery as alleged by the witnesses. There are material contradictions about the place of occurrence where the whole proceedings were conducted. The seizure list witnesses have also not supported any search and seizure conducted in their presence rather simply identified their signatures. The most strange thing is that the complainant who himself has not supported the prosecution case against the present appellant was not declared hostile by the prosecution rather his testimony gets stamp of the prosecution as truthful witness. If the testimony of the complainant is taken to its face value, the whole prosecution story falls on the ground.

In view of the fact that the complainant never visited the present appellant for inquiry into the progress of registration of N.G.O. applied for by him rather he met with another person who asked illegal gratification. Moreover, there is no shadow witness who overheard any conversation between the complainant and the appellant. The complainant also admits that he straightforward handed over the money to the present appellant without any demand.

In the above factual background, the ingredients of either offence under Section 7 & 13 (1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 is absolutely not attracted against the appellant. The learned trial Court has believed the testimony of the complainant only on conjecturing that he might have not disclosed the real things in order to save the accused and also to save his own scheme from being prosecuted for perjury. These observations by the learned trial Court are absolutely beyond the record and his own inventions which cannot be recognized and accepted. The totality of circumstances as proved by the prosecution clearly proves the innocence of the appellant.

In view of the above discussions and reasons, I find substance in the above point 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 bonds. 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.