AI Structured Summary
Not yet generated for this judgment
Judgment
S.S. Mishra, J. The appellant Niranjan Mehera, has filed the present appeal assailing the judgment of conviction and order of sentence dated 15.03.2000 passed by the learned Special Judge, Vigilance, Sambalpur, whereby he has been found guilty of offence under Sections 13(1) (d) read with Section 13(2) of the P.C. Act, 1988 as well as under section 7 of the said Act and on each count he has been sentenced to undergo R.I. for two years and the sentenced was directed to run concurrently.
Heard Ms. Ananya Mishra, learned counsel for the appellant and Mr. M.S. Rizvi, learned Standing Counsel for the Vigilance Department.
In the present case, the FIR was lodged on 19.07.1995 before the S.P. (Vigilance), Sambalpur and the trap was conducted on the subsequent date, i.e., on 20.07.1995 at 12.30 afternoon in the office of the D.F.O., Bamara. The complainant (P.W.4) alleged that he being a forest contractor had obtained Timber Transit Permit (T.T. Permit) from DFO, Bamara for transportation of five truck-loads of timber. In transit, one of the trucks transporting the timber broken down at Bamara Check Gate. During the intervening period, the time duration of T.T. permit was lapsed before the truck could be repaired. Therefore, he approached the DFO, Bamara for issuance of fresh T.T. permit. The DFO directed him to produce necessary documents before the accused appellant, who was posted as Senior Clerk in the office of DFO, Bamara. It is alleged by P.W.4 that the appellant demanded Rs.2,000/- bribe for facilitating to issue T.T. permit. However, after negotiation he agreed for Rs.1,000/-. P.W.4 promised him to make good the amount on the next date, but he straightway went to the S.P., Vigilance to lodge the complaint. Accordingly, the complaint came to be registered on 19.07.1995 and the trap was conducted on the very next day. The tainted money of Rs.1,000/- was recovered from the appellant during the trap.
On the basis of the aforementioned allegations, the investigation was carried out and charge sheet was filed for the offences, as mentioned above. On the stance of appellant’s complete denial, he was subjected to face the trial.
The prosecution examined five witnesses and exhibited as many as twelve documents to substantiate its case. The defence examined one witness and also exhibited one document, i.e., Ext.A, the promissory note. But the learned trial court arrived at a conclusion that from the evidence adduced by the prosecution, it is clear that there was recovery of the tainted money from the appellant which he received from P.W.4 and he himself produced before the raiding party. As the acceptance and receipt of the tainted money is not disputed, the presumption u/s 20 must be employed and the burden of proof would be on the accused and if he establishes his case by a preponderance of probability, he may get the benefit of doubt and get acquitted. On the face of the aforementioned observation made by the learned trial court by appreciating the evidence, the defence version needs to be appreciated.
The appellant through D.W.1 putforth the defence that P.W.4 has borrowed Rs.1000/- and executed a promissory note (Ext.A). The signature of P.W.4 is appended to the promissory note and one Pratik Lakra also singed the promissory note. Pratik Lakra has been examined as D.W.1, who has deposed that in his presence the promissory note was executed and he had signed the promissory note. In the accused statement recorded under Section 313 Cr.P.C., the appellant has categorically admitted that he has received the tainted amount from P.W.4, however it was the money paid back to him by P.W.4, which he had borrowed on 09.06.1995 on execution of receipt/promissory note in presence of D.W.1. The learned trial court disbelieved the defence version and arrived at a conclusion that the appellant could not discharge his onus of reverting the presumption under Section 20 against him as he has accepted the tainted money of one thousand which is graft money. The trial court has very meticulously dealt the defence plea and arrived at the following conclusion:-
“21.It is the defence version and it has been repeatedly argued by the learned defence counsel that the accused had put up a Note recommending realisation of penalty to the tune of Rs.9,600/- from the complainant as he was dealing with the Lease section as senior clerk which fact is undisputed as D.W. 1 the witness of the accused has given clear corroboration to that effect. Admittedly the complainant is a big forest contractor and belongs to Marwari community. The accused is a clerk in the D.F.O's office and from the evidence of the I. O., who had also searched his official as well as residence in the native place, did not find much asset or ready cash which suggests that he was not affluent to readily lend Rs.1000/- that too to the complai1-nant who suddenly required Rs. 1000/- on 9.6.95. It also does not appeal to the conscience in the circumstance of the case that the complainant would choose to come to the accused straight without going to any other person of his community at Bamra, if at all he felt any need of 1000/- badly. His choosing the person who had officially put up note to penalise him, to expect loan from him also appears to be incredible, and no normal human being would run to a person who was not well dispose of to him for incurring loan. It is also not understood nor explained as to why a person of accused's status would readily advance loan of Rs.1000/- on the asking for by the complainant, if at all the complainant and the accused had intimacy and no doubt they had prior acquaintance, the accused would insist upon execution of a document by the complainant for his advancing loan of Rs.1000/-. If at all the complainant had incurred loan from the accused on execution of a document which was retained by the accused with him to be returned on repayment of the loan, the complainant would not venture to take the assistance of the Vigilance Police to trap the accused paying the amount of Rs.1000/- which would subject him to criminal prosecution, if the accused produced the receipt of the loan executed by the complainant. No normal person would take such a risk and, in the instant case, since there is nothing to show that the accused had then and there gave out that he had returned the receipt to the complainant which was in his possession nor he produced the xerox copy of the receipt which was in his own possession as he had stated in his 313 Cr.P.C. examination which is not a mere formality, the theory of advancement of loan and repayment of loan by the complainant appears to be highly improbable. The accused was being charged by the Vigilance police of accepting bribe of Rs.1000/- and he had in his possession the xerox copy of the original receipt and he though advanced the theory of repayment of loan which he accepted from the complainant, his non-production of the xerox copy of the loan receipt falsifies his plea of loan and receipt of the loan on repayment, and I can hardly believe this story as advanced by the accused/ defence to act upon it.
22.Apart from the above noted circumstances. I would like to go to the evidence of D.W.1, Patrik Lakra who came forward to depose about the defence loan theory and, has added that on 20.7.95 he was in the office of the D.F.O., Bamra and at about. 12.30 to 1 P.M. the complainant came to the office and told the accused Niranjan Meher that he had brought Rs.1000/- which he had taken on loan basis, and asked Niranjan Meher to receive the same and he paid that Rs.1000/- to Niranjan Meher, and Niranjan Meher returned the receipt to the complainant Murarichand Agrawal keeping the xerox copy thereof. The xerox copy has been marked Ext.A after objection and the signature of the complainant thereon has been marked Ext.A/1, and the signature of this D.W.1, Patrik Lakra is marked as Ext.A/2, and Ext.A/3 is the signature of accused Niranjan Meher, I have compared the admitted signature of the complainant with the signature purported to have been given by the complainant in Ext.A to which he has flatly denied it when confronted during his examination and, I have found on comparison that the admitted signature and this alleged signature do not tally even at a bare glance. Besides, it does not occur to me as to why a person who advanced loan due to his prior intimacy or acquaintance, would obtain a receipt from a person for that loan and that loan the loanee would require one month or 2 months to repay, the loanee being a big Forest Contractor and needed the money urgently on his return from Raipur. It also does not occur to me as to why even after receiving back the loan amount, the accused would retain the xerox copy, of the original loan receipt and for what purpose.”
Ms. Ananya Mishra, learned counsel for the appellant submitted that the complainant (P.W.4) used to frequently visit the DFO’s office for his work and he was well acquainted with the appellant. The complainant (P.W.4), due to some sudden urgent requirement, had taken Rs.1000/- from the appellant on 09.06.1995 on a loan basis in the presence of D.W.1 and others and to that effect a document was reduced to writing and signed by the appellant, the complainant (P.W.4) and also D.W.1 signed as a witness thereon (Ext.A). After repeatedly asking for money, the complainant (P.W.4) finally on 20.07.1995 came to the office of the DFO and returned the Rs.1000/- to the appellant and the promissory note was returned back by retaining a Xerox copy of the document by the appellant. During such transaction, the vigilance authorities entered the office and apprehended the appellant while accepting the money. Apart from being supported by documentary evidence at Ext.A, P.Ws.1, 3 and 5 and D.W.1 have all supported the appellant’s version inasmuch as each of them have testified that the appellant asked for his money back which he had loaned to the complainant and received Rs.1000/- from him on that day. The appellant has consistently and without deviation, taken this plea during enquiry by the I.O. (P.W.5) in his statement u/s 313 Cr.P.C. and throughout the trial. These facts are supported by the evidence of all the prosecution witnesses and the defence witness save and except the complainant (P.W.4) version. Learned counsel for the appellant has relied upon the judgment of this Court in the case of Sidhartha Kumar Nath vrs. State of Orissa, reported in MANU/OR/0499/2017, wherein the appellant in that case had taken identical plea of money recovered being a previously advanced loan and not a bribe and that there was no occasion for the appellant to have asked the complainant for any bribe, allowing the appeal, this Court has held that the defence plea was not considered by the learned trial court on the touchstone of preponderance of probability and on overall assessment, the defence versions seems to be more probable. It was further held that suspicion, however strong, cannot replace the proof and the prosecution had failed to prove the guilt of the accused beyond reasonable doubt.”
She further submitted that the prosecution has erroneously taken the aid of the presumptive provision under Section 20 of the P.C. Act to shift the burden on the appellant. She further submitted that the illegal gratification is sine qua non to constitute the offence under section 7 of the P.C. Act and mere handing over of currency notes is not proof of acceptance of illegal gratification, unless the prosecution successfully proved that it is bribe money or meant for graft. She has relied upon the judgment of the Hon’ble Supreme Court in the matter of B. Jayaraj vrs. State of A.P., MANU/SC/0245/2014, para-7 of the said judgment, reads thus:-
“7.In so far as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma Vs. State of A.P.[1] and C.M. Girish Babu Vs. C.B.I. MANU/SC/0274/2009: (2009)3 SCC 779.”
Relying upon the judgment of the Hon’ble Supreme Court in the matter of Central Bureau of Investigation vrs. Ashok Kumar Aggarwal, reported in (2014) 14 SCC 295, she has submitted that in the present case the sanction obtained by the prosecution against the appellant to prosecute him would not sustain the scrutiny of law. She has relied upon the evidence of P.W.2 and submitted that the entire documents relating to the prosecution case was not placed before P.W.2 the sanctioning authority. Therefore, the sanction itself is defective. She submitted that from the evidence on record it should illuminate that the sanction order must ex-facie revealed that the entire relevant record and material was duly placed before the competent sanctioning authority and he in turn had independently applied his mind to the same before according sanction. Relying upon the evidence of P.W.2, she has submitted that the T.T. permit book, which was seized by the I.O. was never produced before the P.W.2 and was deliberately withheld. The T.T. permit issued dated 19.07.1995 in favour of P.W.4 being the vital documents, on the basis of which the entire prosecution case rests, ought to have been produced before P.W.2. In that regard, she has relied upon paragraph-16 of the judgment of the Ashok Kumar Aggarwal (supra), which reads as under:-
16.In view of the above, the legal propositions can be summarised as under:
16.1.The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.
16.2.The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.
16.3.The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
16.4.The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.
16.5.In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law.”
Ms. Mishra, learned counsel appearing for the appellant has also drawn the attention of this Court to the glaring discrepancies in the investigation and the contradictions in the evidence of the prosecution witnesses.
Mr. Rizvi, learned Standing Counsel for the Vigilance Department, on the other hand, submitted that this is an open and shut case for the prosecution because the appellant has admitted the acceptance of the tainted money but has failed to discharge the burden on proof shifted on him under the operation of the presumptive provisions under Section 20 of the Act. Even in the present case, demand of bribe prior to the registration of the FIR and at the time of the trap it is also proved. Hence, in the case in hand both on the demand as well as acceptance the prosecution has brought ample evidence on record. The trial court has meticulously dealt with not only the evidence adduced by the prosecution but also the defence evidence and by a very detailed analysis of evidence has passed the impugned judgment.
I have very carefully gone through the evidence on record and in the light of the rival submission advanced by both the counsel, analysed the findings returned by the trial court. The evidence of P.W.4 regarding the bribe being given to the appellant to facilitate issuance of T.T. permit could not be demolished in the cross examination by the defence. The evidence even if kept aside, the admission on the part of the appellant regarding acceptance of the tainted money and subsequently not able to discharge the onus to explain as to why and for what reason he has accepted the bribe proved vital to the defence. No doubt, the appellant has attempted to prove the promissory note through D.W.1, but that aspect of the matter has been rightly disbelieved by the trial court. The reasoning reflected in para-21 and 22 of the impugned judgment which are reproduced, above cannot be discredited by the defence evidence. The prosecution has also brought on record cogent evidence regarding demand being made by the appellant through the evidence of P.W.1, P.W.3 and P.W.5. P.W.1, one of the witnesses to the raiding party has deposed that before him and in presence of vigilance inspector, P.W.4 narrated that accused demanded bribe of Rs.1000/-. He also deposed that he over-heard conversation between P.W.4 and accused and gave the signal to the raiding party. P.W.3, the magistrate accompanying the raiding party also corroborated this version of “demand” made by the appellant. Acceptance has been admitted in the present case. The defence couldn’t demolish the evidence of the prosecution regarding demand or acceptance. Therefore, I agree with the reasoning of the trial court on the basis of which the defence version has been disbelieved.
In view of the aforementioned, I have no hesitation to uphold the conviction and sentenced recorded by the trial court. Accordingly, the appeal deserves no merit, hence dismissed.