Nalini Ranjan Biswas vs State of Bihar

C.M. Prasad, J.—These two appeals are directed against the judgment and order dated 11th May, 1992 of the Special Judge, C.B.I., Patna passed in Special Case No. 49 of 1988 whereby appellant Nalini Ranjan Biswas (appellant in Cr. Appeal No. 90 of 1992) has been convicted u/s 120B read with Section 161 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and a fine of Rs. 1,000/- (one thousand), in default of payment of fine to undergo rigorous imprisonment for three months. Appellant Shidheshwar Prasad Singh @ Sudho Babu (appellant in Cr. A. No. 94 of 1992) has been convicted u/s 5(1 )(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 and sentenced to undergo rigorous imprisonment for two years and a fine of Rs. 1,000/- and in default of payment of fine, to undergo rigorous imprisonment for three months. He has also been convicted u/s 161 read with Section 120B of the Indian Penal Code but no separate sentence has been passed for these offences. The F.I.R. (Ext/13) of the case was registered on the basis of letter bearing Endt. No. 4989/3/26(A)/88-PAT dated 2nd August, 1988 of the Deputy Superintendent of Police, SPE/CBI, Patna who mentioned in the letter that the informant Satto Poddar appeared in the C.B.I. Office on 2nd August, 1988 at 11.00 A.M. and gave out a written complaint (Ext-2) in Deonagan Script, the copy of which was annexed with the letter constituting the F.I.R. In the written complaint, the informant alleged that on 1st February, 1988 he had auction purchased unserviceable fragmented gunny bags from the F.C.I., Mokamah. After depositing the auction money, he obtained release Order No. 11 dated 10th February, 1988. Thereafter, he contacted the Depot Manager, F.C.I., Mokamah for taking delivery of the auction purchase unserviceable fragmented bags. But the Depot Manager and co-worker Sidheshwar Prasad Singh (the appellant) demanded a bribe of Rs. 20/- per quintal for effecting the delivery. He (the informant) refused to pay the demanded bribe and insisted that the delivery had to be given according to the paper i.e. R.O. whereupon the Depot Manager stated that in case of non-payment, he (the informant) will have to run from piller to post for months. And it also so happened that he (the informant) remained pursuing the matter in the Office of the District Manager and the Depot Manager for months but in vain. Thereafter, he intimated the Regional Manager about the position. It was again on 1st August, 1988 that he (the informant) requested the Depot Manager Sri A.N. Biswas and Sudho Babu (the appellant) who was present in the Office stated in presence of Sri A.N. Biswas (the appellant) that he (the informant) may get a programme for 3rd August, 1988 for getting delivery but he (the informant) will have to pay Rs. 300/- for delivery of 15 quintals of used fragmented bags and that in case of non-payment, no proper delivery would be effected. Sudho Babu (the appellant) also stated that every purchaser who wanted to get proper delivery was required to pay some money as expenses in the Office. Sri Biswas supported the stand of Sudho Babu (the appellant) and stated that Sudho Babu was saying correct things. He (the informant) suspected that both the appellants were in collusion hence, he kept quiet. Then he (the informant) came to the C.B.I. Office and by filing a petition stated that he was going to take delivery of used fragmented bags and he will be compelled to pay the bribe money for taking delivery of used fragmented bags and hence, he prayed for suitable action in this regard. After recording the F.I.R. on the basis of the written report dated 2nd May, 1988 of the informant Satto Poddar, it appears that on the ensuing day i.e. 3rd August, 1988, the C.B.I, people constituted a Trap Party for detecting the transaction of bribe money and recovery of the same. Further case of the prosecution is that P.W. 15 A.K. Srivastava, Deputy Superintendent of Police, C.B.I. who was leading the Trap Party proceeded for F.C.I., Mokamah in the morning of 3rd August 1988 with the informant Satto Poddar as well as PW. 2, PW. 5, PW. 9 and PW. 12 who were the Officers of the C.B.I. as well as some other Officials from other departments to stand as witnesses in the Trap Party and they reached Bharat Wagon Guest House, Mokamah and stayed there. The informant Satto Poddar who was also in the Trap Party had brought three currency notes of Rs. 1007- denomination each which were treated with phenolpthalien powder and were placed in the hands of PW. 5 and then the fingers of PW. 5 were dipped in the solution of sodium carbonate the colour of which turned into pink from white. This was done as a demonstration and that the demonstration of pre-trap memorandum (Ext.-3) was prepared.''

Then the further case of the prosecution is that phenolpthalien treated notes were given to the informant Satto Poddar who was asked to give it to the appellant on demand and the other members of the Trap Party remained at different place nearby the Shed No. 5 from where delivery of fragmented bags was to be taken. PW. 5 particularly accompanied the informant Satto Poddar to witness the passing of the tainted bribe money to the appellant. Then it is said that informant Satto Poddar went to appellant Shidheshwar Prasad Singh in Shed No. 5 of F.C.I. Godown, Mokamah with his truck and he requested for effecting delivery of the used fragmented bags according to the release order. On his being so asked, appellant Shidheshwar Prasad Singh asked "Have you brought the money?" Then Satto Poddar said--"Yes" and he gave out the Phenalpthalien treated three currency notes of 100 denomination to him (Shidheshwar Prasad Singh) who counted it and kept it in the pocket of his KURTA (Shirt). Then the informant Satto Poddar and PW. 5 both came out of Shed No. 5 and gave signals by putting towel on head and combing the hair and on this signal other members of the Trap Party rushed to the place and appellant Shidheshwar Prasad Singh was challenged that he had received a bribe of Rs. 300/- and that on hearing this, appellant Shidheshwar Prasad Singh @ Sudho Babu trembled and he stated that a mistake was committed by him. Then the further case of the prosecution is that both the hands of appellant Shidheshwar Prasad Singh were caught hold of by the members of the Trap Party and his fingers were washed in solution of sodium carbonate which turned into pink colour from white. The lower left pocket of KURTA from which the recovery of the tainted bribe money is said to have been recovered was also dipped in solution of sodium carbonate and it also resulted into change of colour of the solution to pink from white. It is said that the solution of sodium carbonate which had changed colour during the pre-trap demonstration as well as the solution used for the same after recovery of the money were kept in bottles and sealed and were sent for chemical examination. It is further said that the chemical examination report (Ext.-18) was received which shows that the solution of sodium carbonate sent for chemical examination contained Phenolpthalien. Hence on the basis of the allegations as made by Satto Poddar in his written report constituting the F.I.R, as well as the recovery of the tainted bribe money from the possession of the appellant Shidheshwar Prasad Singh @ Sudho Babu. It was said that he had demanded bribe money which he received and which was also recovered from his possession. About the other appellant, i.e. N.R. Biswas, the allegation in the written report of the informant Satto Poddar was that he was in collusion with the appellant Shidheshwar Prasad Singh in the demanding of the bribe money. Thus, after the recovery of the money in the manner as alleged from the possession of the appellant and the receipt of chemical Analyst''s report (Ext.-18) and on obtaining sanction for prosecution (Ext.-12) charge-sheet was filed and the appellants were put on trial. Then on conclusion of trial, the appellants have been convicted and sentenced as above.

The defence case is of false implication. The appellants examined D.W. 1 Sadan Prasad Singh who is a contractor under the F.C.I., Mokamah. He deposed that Murari Singh is a Transporting Agent in F.C.I., Mokamah. He further deposed that on 27th July, 1988 when he was taking tea at tea shop, appellant Shidheshwar Prasad Singh and Satto Poddar (the informant) was also there and an altercation was going on between them. Satto Poddar was saying that he used to bring truck from outside but despite that Murari Singh was demanding commission from him and he (Satto Poddar) asked Shidheshwer Prasad Singh to persuade Murari Singh for not demanding commission from him (Satto Poddar) whereupon Shidheshwar Prasad Singh had declined saying that Murari Singh will not obey him whereupon Satto Poddar threatened him (Shidheshwar Prasad Singh) that he (Satto Poddar) will teach him (Shidheshwar Prasad Singh) a lesson. Thus on the basis of those evidence, the appellants have propounded a defence case that Satto Poddar got the appellant Shidheshwar Prasad Singh implicated falsely out of grudge and enmity.

As many as 16 witnesses were examined by the prosecution. Out of these witnesses, PW. 2 Sachchidanand Mishra, S.D.O. Telephone, PW. 5 Prakash Nath J.T.O., PW. 8 Rajendra Prasad Rai, PW. 9 Bachcha Rai, Constable C.B.I., PW. 12 Arbind Kumar, Inspector, C.B.I. and PW. 15 A.K. Srivastava, Deputy Superintendent of Police, C.B.I. who is also the investigating Officer of the case were the members of the Trap Party. PW. 1 Rajendra Poddar is also a witness who has claimed to have filed complaint before the C.B.I. and passed away the tainted money of appellant Shidheshwar Prasad Singh. PW. 3 Deo Prasad is the Assistant Manager, F.C.I., Gaya who deposed that after advertisement bids were called for auction of fragmented bags in F.C.I., Mokamah and that in that bid, auction sale was finalised in favour of Satto Poddar who had auction purchased the bags and had also deposited the auction sale price of Rs. 44,000/-. PW. 4 Ajay Jamuar is Shed In-charge in F.C.I., Mokamah who proved the gate passes with respect to removal of fragmented bags purchased by Satto Poddar. PW. 6 Ajo Mahto is a labour Sardar in F.C.I., Mokamah but he turned hostile and has not supported the prosecution case. PW. 7 Parmeshwar Mahto is a watchman in F.C.I., Mokamah but he too turned hostile and he has not supported the prosecution case. PW. 10 S.K. Bhaumik, District Manager, F.C.I., Patna proved Ext.-10 to Estg-10/3 which are files regarding quotations, complains and auction of non-serviceable fragmented bags. At Para 3 of his" evidence, he deposed that the auction purchaser Satto Poddar had complained that he was not getting goods of proper quality and the complaint had been enquired into and the enquiry report was in the files. But this witness did not prove any enquiry report indicating the complicity of any of the appellants nor even the auction purchaser Satto Poddar has been examined to say that he had made any complaint about not getting goods of proper quality. PW. 11 Rajendra Mohan Maiti, Assistant Manager, F.C.I. deposed that he was In-charge of F.C.I., Mokamah and Biharsharif. He further deposed that in 1987-88, advertisement had been published in newspapers for auction purchase of gunny bags and in response to that advertisement, Satto Poddar had offered the highest bid and he had auction purchased the gunny bags and he had also deposited the price of the bags. He had further deposed that he had received complain that Satto was not getting supply of auction purchased gunny bags and that in this regard, he had written a D.O. Letter to N.R. Biswas (the appellant) but he does not say about any enquiry made with respect to complicity of N.R. Biswas or finding about the complicity of N.R. Biswas in any such complain nor the auction-purchaser Satto Poddar has been examined to say that he had made any such complain.

PW. 13 Sri Amar Chatterjee, Assistant Director, F.S.L. Kolkata and PW. 16 Sri S.K. Mukhopadhyay, Senior Scientific Officer, F.S.L., Kolkata have proved Ext.-18 which is Chemical Examination report to the effect that the solution of sodium carbonate sent for examination contained phenolpthalien. PW. 14 Shankar Chaudhary is a typist who has proved the sanction for prosecution (Ext.-12).

At the very outset this has to be mentioned here that Satto Poddar who is said to be the complainant, who filed the written complaint on the basis of which F.I.R, was lodged has not been examined by the prosecution. This Satto Poddar is said to be the auction purchaser who had purchased the fragmented gunny bags on paying the highest bid money of Rs. 44,000/- and according to the prosecution, he is the main person said to be the aggrieved person who had filed his written complaint before the C.B.I. officials.

In order to decide the charges, it is proper to discuss the evidence of the members of the Trap Party, namely, PW. 2, PW. 5, PW. 8, PW. 9 and P.W. 12 and also P.W. 15 who was the leader of the Trap Party as well as the I.O. of the case.

Firstly I take up the evidence of PW. 15 A.K. Shrivastava, Deputy Superintendent of Police, C.B.I. He deposed that on the written complaint of Satto Poddar he had registered the F.I.R. (Ext.-13). At Para-2 of his evidence he identified the original written complaint of Satto Poddar containing the signature as Satto Poddar and which written report had been marked as Ext.-3. At Para-3 he deposed that after recording the F.I.R., he alongwith some independent witnesses proceeded on 3rd August, 1988. He further deposed at Para-4 that the informant Satto Poddar was also with him and that day at about 8.00 A.M. he reached Bharat Wagon Engineering Guest House where solution of sodium carbonate was prepared and paper containing phenolpthalien chemical was touched on the fingers of witness Sri Prakash (PW. 5) and then his fingers were washed in solution of sodium carbonate which turned its colour to pink from white. Then the pink colour solution was kept and sealed in a bottle. He also deposed that informant Satto Poddar had brought-3 notes of Rs. 100/-each which were treated with Phenolpthalien powder and they were given to him (Satto Poddar) with a direction that it had to be given to N.R. Biswas (appellant) on his demand. He also deposed that a memorandum with regard to the demonstration at the Guest House was also prepared. It is pre-trap memorandum which has been marked Ext.-3 and it mentions the names of the complainant as Satto Poddar son of late Bimal Poddar resident of village and P.O. Pipra Debas, Begusarai, District Begusarai. Then he further deposed at Para-5 that complainant Satto Poddar along with witness Sri Prakash (PW. 5) was sent into Shed No. 5 of Shidheshwar Prasad Singh (the appellant) and the other persons of the Trap Party scattered and located themselves hither and thither outside Shed No. 5. He deposed at Para-8 that he saw that the appellant Shidheshwar Prasad Singh and informant/complainant were talking but he could not perceive as to what they talked. Then he deposed that after some time receiving signal from the informant Satto Poddar he and other witnesses rushed to the place where Satto Poddar stated that Shidheshwar Prasad Singh (the appellant) had received a bribe of Rs. 300/-whereupon Shidheshwar Prasad Singh (the appellant) imploringly admitted that he had committed a mistake. Then he deposed that search of Shidheshwar Prasad Singh was carried on whereupon Rs. 340/- and some papers were recovered from his pocket and that out of this Rs. 300/- was the tainted money which had been noted in Pre-trap Memorandum. He further deposed that solution of sodium carbonate was prepared in a glass of water and fingers of Shidheshwar Prasad Singh (the appellant) were washed in that solution which turned red because the fingers contained phenolpthalien powder due to touching the tainted notes which contained it. Thereafter solution was put in a bottle which was sealed and a post-trap memorandum (Ext.-8) was also prepared. He stated that he also seized some other papers from there and he took the statement of witnesses. He deposed at Para-11 that he sent the two sealed bottles containing a solution of sodium carbonate for chemical examination and the report of chemical examination was also received but the original report was not readily available in the office of the C.B.I. hence, a certified copy of the examination report was again obtained. The report has been proved as Ext.-15.

At Page-12 of his evidence, PW. 15 (the I.O.) deposed that the witness PW. 6 Ajo Mahto (who has turned hostile) had stated before him that he (PW. 6) had been called in the Office where contractor Satto Poddar was also present and where N.R. Biswas (the appellant) had asked him (PW. 6) to load the gunny bags on truck after taking Rs. 125/-. Thus, according to the statement of PW. 6 as recorded by the I.O., the prosecution case takes a different turn in the way that according to F.I.R. Rs. 300/- was demanded for the delivery of gunny bags whereas according to PW. 6 only Rs. 125/- was ordered to be realised for the loading of the gunny bags on the truck. At Page-17 of his evidence, the I.O. deposed that he was the leader of the trap and after completion of investigation, he had submitted the charge-sheet. Thus, according to the I.O.,-the informant was Satto Poddar son of Kamlu Poddar (as mentioned in F.I.R.) who had filed the written complaint and who had also accompanied the trap party and who had brought the tainted money which was treated with phenolpthalien powder and who had offered the same to the appellant Shidheshwar Prasad Singh and which tainted money was recovered from Shidheshwar Prasad Singh (appellant).

At page-18 of his cross-examination, the Investigating Officer (PW. 15) stated with stress that he had lodged the F.I.R. on the statement of Satto Poddar. At Page-22 of cross-examination, he deposed that before lodging any F.I.R., firstly an Officer of C.B.I, is deputed as witness to hear conversation of the accused regarding the demand of bribe by him. But in the instant case, he did not feel necessity of any kind of such verification. Thus, the I.O. recorded the F.I.R. without making any verification into the allegation as levelled in the written report of complainant Satto Poddar. At Page-26 of his cross-examination, he deposed that the informant (Satto Poddar) had stated before him and the members of the team that whatever he had written in the written complaint was true. At Para-28 of his cross-examination, he deposed that he had mentioned in the Pretrap memorandum that Satto Poddar had produced Rs. 300/- which was to be given as tainted money. At Para-38 of his cross-examination the I.O. (PW. 15) deposted that he did not know any person with the name Rajendra Poddar (PW. 1) and that the person who had accompanied him was Satto Poddar. It has to be remembered that both the Memorandums i.e. Pre-trap Memorandum (Ext.-3) and Post-trap Memorandum (Ext.-4) mention the name of the informant as Satto Poddar son of late Kamlu Poddar. At Para-40 of his cross-examination he deposed that the bribe money was neither demanded by nor was recovered from Nalini Ranjan Biswas (the appellant) nor the transaction of bribe money had taken place in his (N.R. Biswas''s) presence. Thus, there is no evidence of the complicity of appellant N.R. Biswas excepting the allegation in the written complaint of informant Satto Poddar that he was also involved in the demand of bribe.

At Para-42 of the cross-examination, the I.O. (PW. 15) deposed that the informant Satto Poddar had also given petitions in the C.B.I. Office on 21st July, 1988 and 26th July, 1988. It shows that prior to the date of F.I.R. and written report dated 2nd August, 1988 two other petitions were filed by informant Satto Poddar before the C.B.I, but despite that all, no verification about the demand of bribe was done by the C.B.I. Officials and it was on 2nd August, 1988 that an F.I.R. was registered directly on the statement of informant Satto Poddar.

At Para-45 of cross-examination the I.O. deposed that on 3rd August, 1988, delivery of 17.45 quintals of fragmented bags had been given to the informant Satto Poddar.

At Para-56 of his cross-examination, the I.O. deposed that he had himself taken out Rs. 300/- from the upper left pocket of the accused Shidheshwar Prasad Singh. The shirt worn by the appellant Shidheshwar Prasad Singh had been seized at the time of occurrence and it was produced in court as Ext.-(xii). During reexamination of the I.O. on 24th September, 1991 the shirt was shown to him (I.O.) who on seeing the shirt stated that the shirt did not contain any left upper pocket. In this context, it has to be mentioned here that the seizure memorandum (Ext.-4) at its page-8 shows the seizure of the shirt and it also shows that the left side inner bottom pocket of the shirt was dipped into solution and it turned into pink colour. Thus, according to the seizure memorandum, lower left side pocket was dipped into the solution but according to the I.O. who had immediately rushed to the spot and recovered the bribe money, the money had been recovered from the upper left pocket which discredits the prosecution story about the recovery of the bribe money from lower left pocket which was dipped in solution which turned pink. Thus, reasonable doubt is entertained about the story of recovery of bribe money from the appellant Shidheshwar Prasad Singh.

P.W; 5 Prakash was the member of the trap party who is said to have accompanied the informant Satto Poddar to witness the acceptance of the bribe money by the appellant (Shidheshwar Prasad Singh). He deposed that on 3rd August, 1988 he had proceeded with the Trap Party as a member of the party and that when he reached at Bharat Wagon Guest House, he was introduced to the informant. He further deposed that at that time, he had learnt that some persons were demanding illegal money from Satto Poddar with respect to gunny bags'' transaction. Then he deposed that Satto Poddar had brought 3 notes of Rs. 100/- each. He also deposed that the demonstration was made in which phenolpthalien powder was put on his finger which were dipped into solution which turned pink and the solution was put and sealed in a bottle and the notes were treated with phenolpthalien powder and were given to Satto Poddar. He stated about preparation of pre-trial memorandum and he also identified his signature on it. Then he deposed that he, alongwith informant Satto Poddar went on a truck into the Shed No. 5 of F.C.I. Godown, Mokamah. He further deposed that Satto Poddar met Shidheshwar Prasad Singh (the appellant) and requested him for loading consignment. Then Shidheshwar Prasad Singh (the appellant) said, "Have you brought the money demanded? Then Satto Poddar said, "I have brought the money and truck". Then Shidheshwar Prasad Singh (the appellant) demanded the money and Rs. 300/- was given by Satto Poddar which was taken by Shidheshwar Prasad Singh (the appellant) who kept it in his left pocket. Then this witness deposed that the C.B.I. people on getting their signal came there and challenged Shidheshwar Prasad Singh and caught hold of his hands and then the hands were washed in solution which turned red and that Rs. 300/- was also recovered from the pocket of Shidheshwar Prasad Singh (the appellant). Then he deposed about the preparation of pre-trap/seizure memorandum (Ext.-4). At Para-9 of his cross-examination, he deposed that after loading of the consignment on the truck, the truck went out of the godown.

At Para-9 of his evidence, PW. 5 has deposed that at the time of giving bribe money, 6-7 persons were present there. According to this evidence, it appears that when the bribe money was given, 6-7 other persons besides PW. 5 and the informant Satto Poddar were present there. It is admitted case of prosecution that informant Satto Poddar has not been examined by it. Now PW. 5 is the only witness on the point of giving and accepting the bribe money. Learned counsel for the appellant argued that in this case, PW. 1 being a member of the trap party was under the influence of the C.B.I., hence, he was not an independent witness and it was further argued that the 6-7 other persons who are said to be present at the time of transaction of the bribe money could have been the best or independent witness but they have not been examined by the prosecution and there is no explanation for it.

Out of the remaining witnesses, namely, PW. 2, P.W. 8, PW. 9 and PW. 12 who were also members of the trap party have similarly deposed that as members of the trap party they had gone to Mokamah where they had stayed in Bharat Wagon Guest House where Satto Poddar was introduced to them and that Satto Poddar had brought 3 notes of Rs. 100/- denomination each which had been treated with phenolpthalien powder and that on demonstration of solution of sodium carbonate it turned pink due to treatment with phenolpthalein powder and that the pre-trap memorandum was prepared and further that they went into the F.C.I. Godown as members of the trap party and further that on receiving signal from the informant Satto Poddar and PW. 5 they rushed to the spot and that recovery of Rs. 300/- was made from the pocket of Shidheshwar Prasad Singh (the appellant) and that the hands of Shidheshwar Prasad Singh was washed in solution of sodium carbonate which turned pink and further that a post-trap/seizure memorandum was also prepared there. Thus, these witnesses were members of the trap party which had been called by the C.B.I. in their Office at Patna and from where they had been taken to witness the transaction of bribe money and its recovery. Thus, all the witnesses have said that Satto Poddar was the informant who had gone with them and who had brought the tainted money to be given in the bribe. It has to be mentioned here that in the F.I.R, as well as in the pre-trap memorandum (Ext.-3) and Post-trap/seizure memorandum (Ext.-4) the name of the appellant has been mentioned as Satto Poddar son of Kamlu Poddar. It has further to be mentioned at the risk of repetition that Satto Poddar son of Kamlu Poddar who is said to be the complainant before the C.B.I. and who is said to be the auction purchaser and the giver of the bribe money has not been examined by the prosecution.

There is a peculiar aspect in this case that witness PW. 1 Rajendra Poddar has examined himself as a witness and who claims that he had lodged the written report with C.B.I. in the name of Satto Poddar. It has to be remembered here that none of the several witnesses who constituted the trap party as well as the I.O. who had led the trap party does say anything about any person with any name like Rajendra Poddar other than Satto Poddar. Curiously enough, the I.O. (PW. 15) at Para-38 deposed that he did not know any person with the name Rajendra Poddar. Thus, there is no scope for any kind of admission or acceptance from the evidence of any of the members of the trap party and the I.O. that any person other than Satto Poddar son of Kamlu Poddar had appeared before them and who filed the written report and who had offered the bribe money which was recovered by the trap party. But curiously enough said Satto Poddar has not been produced by the prosecution for his examination as a witness. It is strange why the prosecution did not examine Satto Poddar. The prosecution is also not admitting any person named Rajendra Poddar who had appeared as informant before the C.B.I, people rather the evidence of the I.O. is to this extent that he does not know any person with the name Rajendra Poddar.

PW. 1 Rajendra Poddar claims in his evidence that he had filed the written report in the name of Satto Poddar but he has no explanation why he acted as an imposter in filing written complaint with a fake name. In his evidence he (PW. 1) at Para-1 admits that he and Satto Poddar both had taken part in the auction bid and that the bid had been finalised in favour of Satto Poddar. He further deposed that Satto Poddar is his "Baba" who is 3-4 years older to him and at Para-41 he deposed that Satto Poddar is alive and lives in the village and at Para-17 he deposed that he can produce Satto Poddar for evidence. Thus, Satto Poddar is the real auction purchaser who had auction-purchased the gunny bags and according to the evidence of this witness he was alive and present in village and he could be brought for his evidence still it is strange why he was not produced for evidence.

The learned Standing Counsel for the C.B.I, argued that PW. 1 was acting on behalf of Satto Poddar in business transaction with F.C.I. with respect to supply of gunny bags. He also submitted that according to gate pass dated 19th May, 1988 (Ext.-8) and 3rd August, 1988 (Ext.-8/2) PW. 1 had obtained delivery of consignment on behalf of Satto Poddar. The perusal of the gate pass book mentions the gate pass dated 19th May, .1988 (Ext.-8) which is signed by Balo Sah and the PW. 1 Rajendra Poddar. Gate Pass dated 27th July, 1988 (Ext.-8/1) is the gate-pass which has been signed by Balo Sah and gatepass dated 3rd August, 1988 (Ext.-8/2) has been signed by PW. 1 who had taken delivery of the consignment on behalf of auction purchaser Satto Poddar in whose names the gate-passes were prepared.

The evidence of PW. 4, the Shed In-charge of F.C.I., at Page-2 is also that when the sold consignment was removed out of the gate, the gate pass was prepared and that on 19th May, 1988, the gate pass had been prepared in the name of Satto Poddar regarding delivery of fragmented gunny bags and that the gate pass had been signed by Rajendra Poddar and Balo Sah who had taken delivery. Thus the delivery was given to the original purchaser Satto Poddar, though at the time of taking out the consignment out of the gate, the gate pass was signed by Balo Sah and Rajendra Poddar on behalf of Satto Poddar. May be Balo Sah and Satto Mahto on occasions signed the gate pass for taking sold consignment out of the gate of F.C.I. but by this act they cannot take the right and status of auction purchaser Satto Poddar. Moreover, when the written report was filed before the C.B.I., it was filed in the name of Satto Poddar and the parentage of Satto Mahto is also given as Kamlu Poddar in the F.I.R., Pre-trap Memorandum and Post-trap Memorandum. Almost all the trap witnesses, including the I.O. have stated that Satto Poddar was the person who was all through with them. The I.O. even goes to the extent of saying that he does not know any person with the name Rajendra Poddar i.e. PW. 1. Thus, there is no scope for accepting that any person other than Satto Poddar son of Kamlu Poddar had filed the written report levelling allegation on the appellant and who had accompanied the trap party all through and who had offered bribe money which is said to have been recovered but surprisingly he is out of scene and he never came to depose before the court in support of allegations as per the prosecution case. Even if it be assumed for argument sake that PW. 1 had acted and filed the written report before the C.B.I, in the name of Satto Poddar it becomes a case of fraud and mis-representation. In this case, the F.I.R, was lodged on 2nd August, 1988 and the charge-sheet was prepared on 29th September, 1988 and during this period, the investigation continued. Thus a pretty long time was available to the I.O. but during this time, the I.O. even did not care to verify the real identity of the informant and he mentioned in the charge-sheet the name of the informant as Satto Poddar. I am pained to mention here that due to such a lapse on the part of the I.O. in not even caring to know about the real identity of the informant, though there being sufficient time available for it, the investigation carried on by the I.O. cannot be viewed with any faith and confidence.

There is another important aspect in the case. PW. 1, when he claims to be basis of the prosecution case, I find that he is nothing but an imposter and he is not worthy of any credence.

Learned counsel for the appellants argued that the evidence of PW. 1 is not worthy of any reliance.and he also challenged his identity and he further sub-mitted that there is no substance in the claim of PW. 1 that he had filed the written report or he had accompanied the trap party or he had offered the bribe money in the name of Satto Poddar. The learned counsel referred to the trial court''s order dated 11th June, 1990. PW. 1 was the first witness and thereafter the other members of the trap party and the 1.0. were examined in this case. Vide the said order dated 11th June, 1990 on the petition filed by the defence, the prosecution had undertaken before the trial court that the PW. 1, Rajendra Poddar would be physically produced before the court before the examination of prosecution witnesses. The learned counsel submitted that the defence had made this prayer for verifying from the prosecution witnesses that PW. 1 Rajendra Poddar was the man who had misrepresented himself as Satto Poddar before them. But prosecution did not produce the PW. 1 Rajendra Poddar before any prosecution witnesses in court for such verification. Due to the failure of the prosecution in producing the PW. 1 before the other members of the trap party examined as prosecution witness an adverse inference should be drawn against the claim of the PW. 1 that he was the person who had filed the written report before the C.B.I. and that who had accompanied the members of the trap party and who had offered the bribe money to the appellant Shidheshwar Prasad Singh. I find substance in this submission of the learned counsel for the appellants and hold that due to the non-production of PW. 1 before the members of the trap party who were examined as witnesses, no credence can be led to the evidence of PW. 1 and the same is fit to be rejected out right as unworthy of any reliance.

Thus, to sum up the matter, I find that the prosecution has miserably failed to prove the charge due to the following reasons:

(i) That Satto Poddar who was the informant who filed the written report and who is said to have accompanied the members of the trap party and who is said to have offered the bribe money has not been examined by the prosecution.

(ii) That the recovery of the bribe money from the possession of appellant Shidheshwar Prasad Singh becomes doubtful in view of the evidence of the I.O. (PW. 15, Para-56) that he had himself recovered the bribe money which he had taken out from the upper left pocket of the appellant Shidheshwar Prasad Singh. The shirt was seized and proved as Ext.-12 but on being shown to the I.O. he admitted that the shirt did not contain any pocket like upper left pocket. According to the case of the prosecution, the recovered money was found in the lower left side pocket which was dipped into solution which had turned pink. Thus, the evidence of PW. 15 that he had recovered bribe money from the upper left pocket discredits the prosecution story about the recovery of the bribe money from the lower pocket of the appellant Shidheshwar Prasad Singh.

(iii) So far the allegation of demanding bribe money is concerned, there is no evidence in this regard excepting the averment in the written report of informant Satto Poddar which form basis of the F.I.R. As already discussed above, the informant has not been examined to corroborate the averment in the F.I.R. hence, the said averment in the written report is of no value in the eye of law. Besides this, the I.O. has deposed that prior to the lodging of the F.I.R. on 2nd August, 1988, the informant Satto Poddar had filed petitions on 21st July, 1988 and 26th July, 1988. It is not disclosed as to what were the allegations in those petitions but it goes to show that that prior to the F.I.R. petitions had been filed. Anyway, it shows that the C.B.I. people had opportunity to verify into the allegations, if any, in the petitions but they did not verify into the matter or they did not think it proper to verify into it. This also goes to show lack of material constituting the allegations on the appellants.

(iv) Including the I.O., there were as many as six witnesses and the informant Satto Poddar who had constituted the trap party. The informant has not been examined. So far other five witnesses are concerned, they are either the people of C.B.I. of some other persons called from other Offices to stand as witnesses. So directly all these persons were under the influence of the C.B.I. Out of the members of the trap party, PW. 5 was the only witness who was asked to accompany the informant Satto Poddar at the time of offering of the bribe money and who only has deposed that the informant had tendered the bribe money to appellant Shidheshwar Prasad Singh in his presence. As already stated, the informant Satto Poddar has not been examined and, thus, PW. 5 remains the only witness on the point of tendering of the bribe money to appellant Shidheshwar Prasad Singh. PW. 5 has deposed at Para-9 of his evidence that 6-7 persons were present there at the time of tendering of the bribe money. The I.O. has stated in his evidence that he had recorded the statement of witnesses. The 6-7 persons who are said to be present at the time of tendering of the bribe money could have been the best or independent witnesses to say about the tendering of the money and the acceptance of the same by appellant Shidheshwar Prasad Singh, but they have not been examined by the prosecution. Non-examination of such persons goes against the prosecution case.

Learned Standing Counsel for the C.B.I. cited the case of Man Singh Vs. The State of Haryana, . It was a case u/s 4 of the P.C. Act, 1947. The recovery of the marked currency notes were made from the pocket of the shirt which the accused was wearing and in such circumstances, the Hon''ble Apex Court held that it was for the accused to show how he came into possession of the notes. Citing the above authority of the Hon''ble Apex Court, learned Standing Counsel argued that in this case, the recovery of the marked currency notes was made from the pocket of the appellant Shidheshwar Prasad Singh, hence onus lies on him to explain how he came in possession of the said notes. But so far the facts of the instant case is concerned, in view of the discussion of facts, as above, it has already been held that the prosecution has failed to prove the demand of bribe and the story of recovery of the currency notes has also not been proved beyond doubt. Hence, in these circumstances, the aforesaid authority, as cited by the respondents do not help him.

Thus, considering as above, I find that the prosecution has miserably failed to prove the charges against the appellants. Accordingly, charges are held not proved against the appellants and, therefore, they are acquitted of the charges. The judgment of conviction and sentence as passed by the learned trial court are hereby set aside. In the result, the appeals are allowed.