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IN THE HIGH COURT OF JHARKHAND AT RANCHI

(Against the common judgment of conviction dated 11.09.2018 and order of sentence dated 15.09.2018 passed by learned Special Judge, ACB,-West Singhbhum at Chaibasa in (Spl.) Case No. 16 of 2003)

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Cr. Appeal (S.J.) No. 1374 of 2018

Arun Kumar … …. Appellant Versus

The State of Jharkhand, through the Vigilance … …. Respondent

With Cr. Appeal (S.J.) No. 1434 of 2018

Ram Janam Sharma … …. Appellant Versus

The State of Jharkhand, through the ACB … …. Respondent

P R E S E N T

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellant : Mr. B. M. Tripathi, Sr. Advocate Mr. Krishanu Ray, Advocate

For the ACB : Mrs. Priya Shrestha, SPP -----

C.A.V. Dated : 18.04.2024 PRONOUNCED ON 10.05.2024 By Court:

Heard the parties.

1. Both the aforesaid appeals are directed against the common judgment of conviction and sentence passed in connection with Vigilance (Spl.) Case No. 16 of 2003, whereby and whereunder, appellants have been convicted for the offence punishable under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act.

2. Complainant is Sunil Kumar Munda, who had been awarded a work contract of Rs. 69,800/- under Gram Shamridhi Yojana in Chandil Block in the year 2002 for laying of bricks in village Balidih of District Saraikella, Kharsawan. After the completion of the work he received payment of Rs. 50,000/- by different cheques and also got wheat and rice of worth Rs. 9,000/-. It is alleged that for clearing the bill for release of balance amount, Assistant Engineer-Arun Kumar and Junior Engineer-Ram Janam Sharma demanded Rs.3,500/- each i.e. 5%-5% commission on the said amount.

3. On receipt of the complaint, the Superintendent of Police, Vigilance Bureau,

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Ranchi deputed police inspector i.e., Diwa Shankar Prasad to verify the complaint and submit his report. He accordingly verified the matter and found the allegation true and submitted his report to the Superintendent of Police, Vigilance Bureau, Ranchi. Thereafter, on the direction of the Superintendent of Police, Vigilance, Ranchi, Vigilance P.S. Case No. 14 of 2003 was lodged and the Dy. S.P., namely, R.K. Dhan was appointed as I.O. of the case.

4. A trap team was constituted, and on 07.05.2003, after completing the pre-trap formalities, trap was laid on 08.05.2003 in the quarters of both the appellants situated in Chandil Block. The trap was first laid in the official quarter of Ramjanam Sharma, Junior Engineer and then in the house Arun Kumar, Assistant Engineer. Both of them were apprehended red handed while accepting the bribe amount of Rs3,500 each tendered by the appellant in the presence of shadow witness.

5. After investigation, charge sheet was submitted for the offence punishable under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act against the appellants and they were put on trial under these sections.

6. Altogether nine witnesses were examined on behalf of the prosecution and the relevant documents were adduced into evidence, marked as exhibits Nos. 1-10 and X as well as material exhibits have also been proved.

7. After prosecution evidence, statement of the appellants was recorded under Section 313 of the Cr.P.C. Defense is of innocence and false implication.

8. It is argued by the learned counsel on behalf of the appellants that there are serious infirmities in the prosecution case which renders the judgment of conviction unsustainable. Complainant has not been examined, and the complaint has been proved formally proved by a witness who was not the author of the document. It is argued that in the absence of proof of demand by the complainant, the evidence of proof of demand by other witnesses is not sufficient to prove the charges under Section 7 and 13(2) of the P.C Act. Prove of demand by the shadow witness or the I.O will not be sufficient. Reliance is placed on A. Subair v. State Of Kerala ., (2009) 6 SCC 587 wherein it has been held,

17. Pertinently, Manaf (the complainant) has not been tendered in evidence by the prosecution. PW 12 (IO) in his entire deposition has not stated a word as to why Manaf was not examined or why it was not possible to tender him in evidence. In the absence of examination of the

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complainant, there is no substantive evidence to prove the factum of demand.

As far as the impact of non-examination of the complainant, law has now been settled that mere non-examination of a complainant will not be fatal to the prosecution, if demand and acceptance is proved by other evidences on record. Hon'ble Supreme Court held in Neeraj Dutta v. State (NCT of Delhi), (2023) 4 SCC 731

90. Accordingly, the question referred for consideration of this Constitution Bench is answered as under:

In the absence of evidence of the complainant (direct/primary, oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution.

9. There was infirmity in the verification report. The verifying officer (PW-4) did not verify the work allotted to the appellants.

10. Independent witness PW-7 Ghansyam has deposed that no recovery was made in his presence and he could not say from where the G.C notes came in the hand of the appellants.

11. It is further argued that, it is highly improbable that trap having been laid in the same colony, did not draw the attention of the people when appellant Arun Kumar was also living in the same colony. Logically once the trap was laid, it should have put Arun Kumar on alert to prevent him from being trapped.

12. Learned APP has defended the impugned Judgment and sentence. It is submitted that the colony in which the trap was laid in the two quarters, stand at a distance of about 150 meters, to allow visibility. There is no evidence to buttress the argument that they were so close that raid in one could have drawn attention to those in another quarter.

13. Before entering into appreciation of evidence it will be desirable to restate the law regarding demand or obtainment, acceptance and recovery of bribe money in a case as laid down in Neeraj Dutta case (supra)

Underlying principles may be summarized as under:

(i) If there is an offer to pay by the bribe-giver without there being any demand from the public servant and the later simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.

(ii) On the other hand, if the public servant makes a demand and the bribe-giver

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accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Sections 13(1)(d)(i) and (ii) of the Act.

(iii) In both cases of (i) and (ii) above, the offer by the bribe-giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Sections 13(1)(d)(i) and (ii), respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe-giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe-giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d)(i) and (ii) of the Act.

(iv) Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Sections 13(1)(d)(i) and (ii) of the Act. We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature.

(v) In the event the complainant turns "hostile", or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.

14. From the above stated position of law it will be apparent that non-examination of complainant in a Case is not necessarily fatal to the prosecution, if the fact in issue is proved by other oral and/or circumstantial evidence. The principles of appreciation of evidence in Corruption cases does not fundamentally differ from that in cases of other Criminal trials. There is however provision of presumption

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of law to be drawn under sections 20 of P.C Act that where, in any trial of an offence punishable under Section 7 or under Section 11, it is proved that a public servant accused of an offence has accepted or obtained or attempted to obtain for himself, or for any other person, any undue advantage from any person, that he accepted or obtained or attempted to obtain that undue advantage, as a motive or reward under Section 7 for performing or to cause performance of a public duty improperly or dishonestly either by himself or by another public servant.

15. On the point of demand, PW-4 is the officer who verified the complaint and was also member of trap team. He has deposed in para 11 that on the said date (08.05.03) he first reached the official residence of Ramjanam Sharma, Junior Engineer along with the Complainant, Devendranath Upadhyay constable, and Dinesh Kumar Singh followed him. On seeing Complainant, accused made demand of the bribe money from him, on which he tendered him Rs 3500/- which was accepted by him. The accused took the bribe amount in his hand and the trap team apprehended him on spot. Seizure was made in the presence of two independent witnesses, Ghanshyam and Kapoor Bagi.

It has also been deposed by this witness that fingers of both the hands of accused Ram Janam Sharma were dipped in the solution sodium bicarbonate one by one which turn into pink colour. He has identified the signature of the witnesses on the seizure list of currency notes. The pink colour solution was sealed in two phials and they were tested with label. Signature of witnesses were put on label.

16. Trap team then proceeded to conduct the raid in the house of Arun Kumar. In his examination in chief PW-4, has deposed that on the demand having been made Rs.3500/- was given to him which he kept in his hand when he was nabbed by the trap team. Post trap formalities were completed with regard to making of seizure list. In his cross examination, he has admitted that in his verification of the complaint he had not made enquiry about the pending bill of the accused.

17. Testimony of PW 4 is corroborated PW 5-Sunil Kumar who was also member of trap team. PW 6-Kapoor Bagi is an independent witness and has stated that the incidence took place in May, 2003 at 8.00 a.m. in the morning. He heard that vigilance team was present at the residence of Junior Engineer- Ram Janama Sharma and out of curiosity he also went there and saw that cash was in the hand

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of Ram Janam Sharma to the tune of Rs.3500/-. The notes were tallied with GC note memorandum and were found to be the same. He has proved the signatures on seizure list on the phials of solution, GC note memorandum. He has also deposed that the vigilance team also recovered Rs.3500/- from the possession of accused Arun Kumar. In his cross examination, he has deposed that no money was recovered in his presence and that he had not read the documents on which he has put the signature.

18. PW 7 Ghanshyam is also an independent witness, who has proved the signature on the seizure list and has deposed that cash was found in the hand of the accused persons. He has conceded that he was not the witness to demand and acceptance of the cash.

19. PW 8 Vidya Kant Pathak was a Special Magistrate posted at Special Vigilance Bureau. He was also member of the trap team. It has been deposed by him on 08.05.2023 in the morning at 5 O' Clock the trap team proceeded for Chandil Block office. The raid was conducted in which Rs.3500/- in cash each was seized from both the accused persons from their official residence at around 8 O' Clock. It has been deposed by him in para 14, he had not personally seen the accused persons receiving the amount from the complainant. From his testimony, it appears that he also arrived at the place immediately after the amount was tendered and received by the accused persons.

20. From the combined reading of testimony of these witnesses, the factum of demand and acceptance have been deposed to by PW 4. Diwa Shankar Prasad who was posted as Police Inspector, Vigilance at the relevant time. The complainant in this case has not been examined, but this by itself will not be a factor to disbelieve the deposition of other witnesses examined on behalf of the prosecution. Deposition of PW 4 has remained undemolished during cross examination and the questions that were put on behalf of the accused, were largely regarding verification of the complaint made by this Officer. Another clinching evidence to prove the fact in issue is, PW.2 Dinesh Kumar Singh regarding whom it was deposed by PW 4 that he was also with the trap team. In para 4, he has deposed that on being signaled, he apprehended the accused Ram Janam Sharma. In para 11, he has deposed that after being signaled, he apprehended Arun Kumar.

21. On demand, PW 4 is the only eye witness, but other witnesses who

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immediately came after the arrest, have deposed that they were witness to the appellants being caught with currency notes. The oral evidence of PW-4 is therefore duly corroborated by the testimony of the other witnesses who came immediately after the demand and acceptance and are relevant under Section 7 of the Evidence Act as facts which are the occasion cause or effect of the fact-in-issue immediate or otherwise. While considering the charge against an accused of demand and acceptance of illegal gratification, the contextual circumstances, which precede and follow the actual demand and acceptance, are equally relevant that corroborate or contradict evidence on the said demand. As held in Neeraj Dutta case (supra), these facts can be proved by direct or circumstantial evidence. There is nothing in the cross examination or in the plea of defence to raise doubt on the veracity of account of PW-4. On these evidences, this Court is of the view that the factum of demand and acceptance has been duly proved, on the basis of which a presumption can be raised under Section 20 of the PC Act.

22. With regard to the argument, that houses where, the raid were conducted was in close proximity, and so it was not plausible that the second raid was conducted after only some time without putting the accused Arun Kumar on alert. The arguments that are raised in appeal should have some grounding and evidence on record. It was open to the counsel on behalf of the appellants to have raised question on this aspect from the investigating officer, to get the physical distance between the two quarters, and whether they were at a visible distance, or were obstructed by densely constructed buildings. No questions were put on these aspects, therefore the argument raised on this point fails.

Under the circumstance, this Court is of the view that appeal fails and the Judgment of conviction is accordingly affirmed.

Both the appellants are sentenced to undergo RI for one year and fine of Rs.5,000/- each and in default of the same, they will undergo SI for one month under Sections 7 & 13(2) of the P.C. Act.

Bail of the appellants stand cancelled and they are directed to surrender before the learned Court below so as to serve remaining part of the sentence. Both the aforesaid Criminal Appeals stand dismissed.

I.A., if any, stands disposed of.

(Gautam Kumar Choudhary, J.)

Jharkhand High Court, Ranchi Dated the 10^thMay, 2024 AFR / Sandeep/Pawan

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