S. Raman vs Central Bureau Of Investigation

Heard the arguments of learned Sr. counsel for the appellant and learned A.S.G.I. appearing on behalf of the 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) read with Section 13(2) of the Prevention of Corruption Act, 1988 in R.C. Case No. 13A of 1995 (R) passed by the learned Special Judge, CBI, Ranchi vide its Judgment and order dated 30^th May, 2005 whereby and whereunder, the appellant has been directed to undergo R.I. for two years with a fine of Rs. 10,000/- with default stipulation for the offence under Section 7 of P.C. Act; further directed to undergo R.I. for one year with a fine of Rs. 5,000/- with default stipulation for the offence under Section 13(2) of the P.C. Act. All the sentences were directed to run, concurrently.

The factual matrix giving rise to this appeal is that the informant Shri Subrato Mukherjee, Propritor of M. S. Elsias Sales Company, Kanke Road, Ranchi lodged a written complaint before the S.P., C.B.I., Ranchi stating inter alia therein that firm of the informant had supplied certain electrical items to the E&M Department of C. C. L., Ranchi against rate contract in the year 1991-92 and submitted bills thereof in the office of the Dy. Chief Engineer (E & M), C. C. L. for payment. It is further alleged that the informant got information by the office of the Dy. Chief Engineer, E & M, C. C. L. that the bill submitted by the informant were misplaced as such the informant was directed to submit duplicate bills. Thereafter the informant submitted duplicate bills with a certificate of non-payment and after submission of the duplicate bills, the payment of the informant was not realized, then, the informant contacted Shri S. Raman, Senior Executive, E & M in-charge, Dy. Chief Engineer, E & M, C. C. L., Darbhanga House, Ranchi to get the bills realized, still the bills were not passed due to some reasons. Then, the informant again met Shri Raman on 21.05.1995 at his residence and requested him for payment of bills, upon this, the appellant told the informant that he has seen the pending bill of the informant and stated that out of the total pending bills, initially he will initiate payment against one set consisting of 7 bills amounting to Rs. 11,600/- approximately for processing the same, demanded Rs. 1500/- and told to come to his residence with a sum of Rs. 1500/- on 23.05.1995 at about 7.00 P.M.

The informant was not willing to pay the bribe hence, he approached the S.P., C. B.I., Ranchi to take necessary action against the appellant and filed a complaint.

After receipt of the written complaint, S. P., C. B.I., SPE, Ranchi directed Shri N. Jha, Dy. S. P. to verify the allegation made in the complaint. Shri N. Jha, Dy. S. P. interrogated the complainant Shri Subrato Mukherjee and found the allegation prima facie to be true. Thereafter a case being R. C. Case No. 13(A)/95 (R) was registered on 23.05.1995 under Section 7 of the Prevention of Corruption Act, 1988 and investigation of the same allegation was entrusted to Shri N. Jha, Dy. S. P., C. B.I., Ranchi.

Accordingly, to apprehend the appellant red-handed while demand and accepting the bribe from the complainant, the I.O. constituted a trap team including two independent witnesses namely Shri Nand Kumar Gupta, Inspector, Central Excise Department and Shri E. Sanga, Inspector, Income Tax Department and other C. B.I. Personnels. All the members of the trap team and the complainant Subrato Mukherjee assembled in the office of Dy. S. P., C.B.I., Ranchi at about 5.00 P.M. of 23.05.1995. Shri N. Jha, Dy. S. P. introduced everybody with each other and explained the purpose of the assemblages and the complaint lodged by the informant Subrato Mukherjee was explained to both the independent witnesses who went through the same. Thereafter Dy. S. P. Shri N. Jha explained the procedure of laying the trap to all present. The use of Phenolphthalein Powder during the trap was also explained verbally as well as through a practical demonstration along with reaction of phenolphthalein powder with the solution of the sodium carbonate. Shri Subrato Mukherjee produced 15 number of denominations of 100 rupees and the number of G.C. Notes were recorded in the pre trap memorandum and the said note was properly treated with phenolphthalein powder and the same was given back to Shri Subrato Mukherjee with a direction to keep the same and to hand over the accused on his demand as bribe. Shri Subrato Mukherjee kept the tainted G.C. notes in pocket of his shirt. After completing the formalities of the trap and preparation of the pre trap memorandum, they left C.B.I. office at about 7.00 P.M. in two vehicles for the residence of accused S. Raman at Gandhi Nagar and reached their at about 7.15 P.M. The trap team of the C.B.I. caught hold the accused Shri S. Raman while taking bribe of Rs. 1500/- on 23.05.1995 and the same was allegedly recovered from the possession of the accused which were tallied with pre trap memorandum and his hands were dipped in the solution which turned pink and after completing the post-trap formalities, the appellant was arrested.

After completion of investigation, charge sheet was submitted against the accused for the offence under section 7 & 13 (2) r/w 13 (1) (d) of the P.C. Act 1988 and accordingly, cognizance of the offence was taken vide order dated 26.03.1996. The accused pleaded not guilty and claimed to be tried.

In order to substantiate the charges leveled against the appellant, the prosecution has examined altogether (twelve) 12 witnesses:-P.W.-1 Subrato Mukherjee (Complainant) P.W.-2 Nand Kishore Gupta P.W.-3 Ashok Kumar Bandhopadhy P.W.-4 Eman Sanga P.W.-5 Shaibal Kumar Das P.W.-6 Basant Kumar Manjhi P.W.-7 S.M. Chaudhary P.W.-8 Gautam Biswas P.W.-9 Binod Kumar P.W.-10 Prasanjeet Kumar Sengupta P.W.-11 Bimlendra Das P.W.-12 Narayan Jah

Apart from oral testimony of the witnesses, the prosecution has adduced following documentary evidence:-Ext.-1 to 12 series are Supply of Orders at different dates and their duplicates bills/bills and their challans Ext.-13 is forwarding letter Ext.-14 to 14/4 are pre-trap memorandum Ext.-14 to 15 series of signature and endorsement of complainant and other witnesses on memorandum, envelope and material exhibits. Ext.-16 to 16-B are office notes in two sheets. Ext.-17-Sanction Order Ext.-18 Notice dated 12.03.1995 Ext.-19 is letter No. CTM(01)/95/22095 Dt. 22.02.1995 Ext.-20 to 20/2 series are office note and signature of witnesses Ext.-21 Report of Forensic Science Laboratory Ext.-22 Forwarding Letter Ext.-23 to 23/3 are signatruer of witnesses on four letters Ext.-24 and 24/1 are verification report and endorsement upon verification report Ext.-25 is formal F.I.R. Ext.-26 is pre-trap memorandum Ext.-27 is memorandum of recovery Ext.-28 to 28/2 are copies of seizure list.

The prosecution has also examined following material exhibits:-M. Ext.-‘I’ series to ‘X’ are bottle, sealed envelope, G.C. Notes and T-shirt and signatures of complainant on bottle, envelope.

On the other hand, no oral evidence has been adduced on behalf of the defence, apart from following documentary evidence:-Ext.-A to A/1 Note sheet with signature of the appellant Ext. –A/2 Extra Copy of receipt of same documents/bills

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 of guilt of the appellant 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 vehemently argued and raised following grounds:-

 It is submitted that complainant who is the author of the written complaint and sole witness to the alleged demand, in his examination-in-chief has stated that whatever was stated in the complaint was not true. Therefore, the complainant has been declared hostile. In his cross-examination, he has further admitted that he has not stated before the C.B.I. that the appellant had demanded Rs. 1500/- but the complainant had brought “as per his wish” and he had not handed over the same in the hands of the appellant. Therefore, the version of the complainant himself demolished the case of the prosecution which disowns the very genesis and foundation of the charge under Section 7 of the P.C. Act.

 It is further submitted that neither of the two independent witnesses examined by the prosecution have deposed about any conversation of demand having taken place between the complainant and the appellant and P.W.-2 confined his testimony to the effect that he had seen only the complainant giving money at the Varandah.

 It is further submitted that in trap cases, the evidence of shadow witnesses plays a pivotal role to demonstrate the demand and the complete absence of such evidence by the shadow leads no reality in the allegation of demand by the appellant where the complainant has also been declared hostile.

 Learned counsel for the appellant has further submitted that in view of the above grounds and in the light of settled law of the Hon’ble Supreme Court in the case of K. Shanthamma Vs. State of Telangana that proof of demand is the sine qua non of an offence under Section 7 and 13(2) of P.C. Act as well as the fact that there was no occasion for any demand as the bills stood already processed, the impugned judgment of conviction and order of sentence is not sustainable in the eye of law which is liable to be set aside.

On the other hand, learned A.S.G.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, scrutinized and appreciated the evidence of witnesses, pre-trap and post-trap proceedings, 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 illegal gratification has been proved by the prosecution even through holding trap, the presumption under Section 20 of the P.C. Act can be invoked to the effect that illegal gratification was demanded and accepted as a motive or reward as contemplated under Section 7 of the P.C. Act. The defence has miserably failed to rebut the aforesaid presumption invoked against the appellant. 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.

P.W.1 Subarto Mukherjee is the complainant of this case who has been declared hostile by the prosecution. According to this witness, when the post-trap team reached at the place of occurrence, the complainant rang the bell of the door of the appellant, upon this, the appellant opened the gate and told to sit on a steel chair. Further, this witness deposed that after sitting, both the them exchanged wishes to each other and the complainant told the appellant that complainant is in trouble and in urgent need of money and requested the appellant to pass the bills. Upon this, the appellant replied that he has already told the complainant that he will first forward first set of bills. Thereafter, the complainant said that anyhow please pass the bills and the complainant brought out the G.C. Notes and keep the same in the pocket of appellant and gave signal, upon this, the raiding party rushed and disclosed the identity being C.B.I. Officials.

From the deposition of the complainant, it appears that there was no demand made by the appellant rather the complainant himself put the G.C. Notes in the pocket of the appellant without any demand.

In his cross-examination, this witness has expressed no knowledge during recording of statement before the I.O. (Sri N. Jha) that appellant had enquired about the money which he had asked for from the complainant and would pass the bills of the complainant only on payment of bribe money of Rs. 1500/-. This witness has also expressed no knowledge before the I.O. that as per the demand of the appellant, the complainant has brought the bribe money. This witness has himself given a contradictory statement in his deposition by saying on the one hand that he had kept the money in the pocket of the appellant and on the other hand, he admits that he has given the money in the hands of the appellant who counted the same and kept in his pocket.

P.W.2 Nand Kumar Gupta and P.W.-4 E. Sanga are the independent witnesses-cum-members of raiding party and have witnessed the pre-trap proceeding and the post-trap proceedings who have deposed that complainant rang the bell of the door and entered and this witness along with Narayan Jha got position at the door which was half-opened and were able to see Verahnda where both the complainant and accused were sitting and both of them were talking about bill clearance and appellant demanded money, then, complainant gave the same in the right hand of the appellant and the same were counted and kept in the left pocket of T-shirt and by coughing gave signal, all the raiding party reached there and challenged the appellant for having demanded bribe, upon, this the appellant got nervous and after completing post-trap proceedings like washing hands leading to reaction of solution, sealing, preparing seizure list and other further formalities. Narayan Jha arrested the appellant.

Thus neither of two independent (Shadow) witnesses i.e. P.W.-2 and P.W.-4 had deposed any conversation of demand having been made by the appellant.

P.W.3 Ashok Kumar Bandopadhyay is also an employee of CCL who has proved the supply order made by the firm of the complainant on different dates through different bills received by the employee of the C.C.L.

P.W.5 Shaibal Kr. Das is the formal witness who has proved the sanction order stating that he had typed the same on the dictation of R.K. Sen, C.M.C. who has also put his signature which this witness identifies.

P.W.6 Basant Kumar Manjhi is also an employee of the C.C.L who has deposed that appellant was the competent authority to pass the bills and bills were passed after the raid of C.B.I.

In his cross-examination, this witness admits that the bills of the complainant were in process of payment and the bills which were submitted by the complainant was not attached with the required documents and that was the reason for keeping the bills in process. This witness further admits that the appellant had processed the bills with no objection but the same got returned and appellant pass the same on Sri Satish Prahasan and accordingly the bill was pending before Sri Prahasan.

P.W.7 S. M. Choudhary and P.W.-9 Binod Kumar are the employees of the C.C.L who have deposed that the bills of 1991-92 were pending and also found that there were lack of information, then , P.W.-7 advised that after linking up the previous challans and supply order and after approval of competent authority, the payment should be made and due to old bills, the same were also required to be approved by the C.G.M.

P.W.8 Gautam Biswas, employee of the C.C.L. has deposed that has proved the claim letter given by the complainant for his pending bills which was endorsed by the appellant and this witness was directed by the appellant to put up the bills before the appellant after examination of the challan and after scrutinizing the same, a note sheet was prepared by this witness and endorsed to Executive Engineer (E&M) Maintenance and Executive Engineer marked the appellant.

P.W.10 Prasanjeet Kumar Sengupta, the then Chairman-cum-Managing Director Coal India Ltd. has accorded sanction order.

In his cross-examination, he has stated that he did not remember that the steno had noted down his dictation in long or short-hand and this witness accorded the sanction without making any enquiry by himself.

P.W.-11 Bimlendra Das was posted as Junior Scientific Officer, Central Forensic Sc. Laboratory (C.F.S.L) and this witness was marked for chemical reaction and report thereof by the Director, C.F.S.L.

P.W.-12 Narayan Jha, Dy. S.P. C.B.I. Ranchi is the verifying officer of the complaint. This witness has stated that he had verified the allegation by interrogating the complainant only and submitted verification report dated 23.05.1995 to S.P., C.B.I., Ranchi. He has further deposed regarding formalities which were completed in the pre-trap demonstration and has further deposed that the appellant had enquired from the complainant as to where the complainant had brought Rs. 1500 as demanded. Complainant replied in affirmative and the complainant took out the tainted G.C. Notes and paid the same to appellant in the right hand and by counting, the appellant kept the same in upper left pocket of this Tshirt. He further states that the conversation was overheard and seen by this witness as well as Sri N.K. Gupta.

In his cross-examination, this witness admits that he did not remember whether he has seen the pending bill during verification or before verification. Further, in para 53, he admits that he was not a witness to the incident.

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 especially the evidence of P.W.-1, P.W.-2 and P.W.-4 reveals that the bills of the complainant were pending for payment before the appellant and the same was pending becuase the appellant had demanded illegal gratification from the complainant as alleged but the true story which comes out from the perusal of the testimony of the above witnesses that the bills were pending due to being old one and non-compliance of required documents to be attached with the bills. It further appears that as per the complaint, the C.B.I. officers acted upon it and laid a pre-trap plan to catch the appellant red-handed and accordingly prost-trap proceedings were completed and appellant was arrested but the main motive of pre-trap demonstration lacked in post-trap proceeding i.e. “demand of any illegal gratification by the appellant”. From the evidence of witnesses as discussed above, it goes to reveal that shadow witnesses who were deputed to overhear and see the post-trap proceedings between the appellant and the complainant lacks in stating the fact as to whether the G.C. Notes were given to the appellant on the demand of the appellant or not rather the shadow witnesses stated that they have seen the complainant giving the G.C. Notes but whether any demand especially for clearing the bills of the complainant was made or not is not clear from the version of the shadow witness. Moreover, the story of the prosecution has already been falsified by the version of the complainant that after reaching at the place of occurrence, the complainant rang the bell of the door of the appellant, upon this, the appellant opened the gate and told to sit in a steel chair, both of them exchanged wishes to each other and the complainant told the appellant that complainant is in trouble and in urgent need of money and requested the appellant to pass the bills. Upon this, the appellant replied that he has already told the complainant that he would first forward first set of bills. Thereafter, the complainant said that anyhow please pass the bills and the complainant brought out the G.C. Notes and kept the same in to the pocket of the appellant and gave signal and the above version of the complainant goes to show that there was no demand on the part of the appellant and the complainant himself put the money in his pocket and on signal, the raiding party reached and arrested the appellant.

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 and its acceptance as alleged by the complainant.

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