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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
J U D G M E N T
Banna Ram Vs. State of Rajasthan
S.B.CRIMINAL APPEAL NO.118/2006
against the judgment dt.10.1.2006 passed by
the Special Judge, P.C.Act, Jodhpur,
in Criminal Case No.47/2002.
Date of Judgment: Aug.21, 2008
P R E S E N T
HON'BLE MR.JUSTICE DEO NARAYAN THANVI
Mr.P.N.Mohanani, for appellant.
Mr.O.P.Rathi, Public Prosecutor.
BY THE COURT :
1. By this Appeal, accused appellant Banna Ram has
challenged his conviction for the offences u/ss.7 & 13(1)(d)(ii) of
the Prevention of Corruption Act, 1988, hereinafter referred-to
as “the Act”, with one year’s R.I. and a fine of Rs.1000/- and in
default, to further undergo three months’ S.I. and two years’ R.I.
and a fine of Rs.1000/- and in default, to further undergo three
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months’ S.I. respectively. Both the substantive sentences were
ordered to run concurrently.
2. Brief facts leading to this appeal are that on 20.3.2001,
report Ex.P.31 was lodged by Babulal (PW 11) before
Dy.Inspector General of Police, Anti Corruption Department,
Jodhpur, that he is a registered Contractor of Municipal
Corporation, Jodhpur and has done the work of construction of
Nala etc. His bill was passed but security amount of Rs.17,775/-
was not refunded for which he talked with Manoj Kumar, Asstt.
Director, who told him to meet Banna Ram, who is Accountant in
the Audit Deptt., where Banna Ram and Mohanlal are the
Accountants. According to FIR, Banna Ram prepares the bill and
Mohanlal after passing the same, send it to Manoj Kumar. Both
were demanding Rs.1000/- for passing the bill. As he was not
willing to give the same, he filed this report. Upon this report,
D.I.G., ACB, Jodhpur deputed Jeta Ram, Dy.S.P., ACB, Churu,
Camp Jodhpur to arrange the trap. Accordingly, the trap was
arranged and a tap recorder with cassette was handed over to
complainant. The complainant produced ten currency notes of
Rs.100/- each, which were initialled and after having smeared
with phenolphthalein powder, kept in the left pocket of shirt of
complainant. The complainant was instructed about the trap
proceedings alongwith motbirs. The trap party reached at the
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office of the Municipal Corporation at 10.30 AM, where Babulal
complainant pointed towards accused Banna Ram, Jr.Accountnat,
who obtained Rs.1000/-. Upon asking, Banna Ram told that he
has kept Rs.1000/- in the almirah, which he obtained for himself,
Mohanlal Jr.Accountant and Manoj Kumar, Asstt. Director. The
said amount was recovered and upon washing the hands of
accused Banna Ram, the water of the glass turned into pink
colour. Another personal amount of Rs.4300/- was also found in
the almirah which accused Banna Ram told to be in connection
with the mining lease in the name of his wife Smt.Jayantik. After
conducting the trap, the case was registered and accused was
arrested and after obtaining the sanction, the challan was filed.
The accused was charged u/s.7 read with 13(1)(d)(ii) of the Act,
to which he pleaded not guilty. The prosecution examined 18
witnesses. The statement of the accused was recorded u/s.313
CrPC. He produced Jawrilal, DW 1 in his defence. After hearing
the arguments, the learned trial Judge convicted the appellant as
above.
3. Learned counsel for the appellant has assailed the
judgment of the trial Court on many counts. Firstly according to
him, the sanction itself is defective because the sanction
authority has not applied his mind with regard to demand of
Rs.1000/- jointly by Mohanlal and Manoj Kumar, who have not
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been even chargesheeted by the police. According to him, the
demand was made not by the accused Banna Ram but by Manoj
Kumar, Asstt.Director, Municipal Corporation, who has been left
out by the prosecution and who refused to sign the recovery
memo. According to the learned counsel, the presumption u/s.20
of the Act cannot be raised, unless there is a demand by the
accused. Learned counsel further submitted that the recovery
was made from the almirah of the office, which can be opened
by anyone and the personal money of the accused was also lying
therein. In such circumstances, it cannot be presumed that the
accused accepted the illegal gratification as a reward of some
work. In support of his contention, he has placed reliance upon a
judgment of the Hon’ble Supreme Court in V.Venkata Subbarao
v. State reported in 2007 Cri.L.J.754.
4. Per contra, the learned Public Prosecutor has supported the
judgment of the trial Court.
5. In the present case, the sanction order is Ex.P.17, which
has been issued by the Director of Treasury & Accounts against
Banna Ram. In para 2 of the sanction order, it is stated that the
demand was made by both Banna Ram and Mohanlal for a sum
of Rs.1000/-. The sanctioning authority Sh.A.K.Gupta has been
examined by the prosecution as PW 5. When this witness was
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cross examined, he has stated that he discussed with the
investigating officer but said that neither he knows the name of
the investigating officer nor factual report was placed before
him. Even he has said that except FSL report, there is no
mention of examining other documents in the sanction letter
Ex.P.17. This evidence reveals that the sanctioning authority
A.K.Gupta has not applied his mind before issuing sanction. This
fact can be fortified from the F.I.R. Ex.P.31 in which the
complainant has given the names of three persons viz; Manoj
Kumar, Asstt.Director and Accountants Banna Ram and
Mohanlal. In the running note, which is followed in the papers of
F.I.R., Ex.P.31, the case was registered against all the three
persons. When the recovery Officer viz; Jeta Ram was examined
in this regard as PW 15, he has stated that portion `I to J’ of
transcript Ex.P.34 was written by him, which reads as under:
"म हनल ल- आपक ब ल ममल ज यग , आप स ढ दस ज आ जण
हम र प स ....औ......?
पररव द - क म मह र दस स ढ दस जजय पस ल न आऊ
म हनल ल- आपक कह स ढ दस ज ब ल प स ककय ह!आ ममलग "
In this portion, the conversation regarding the money
transaction is almost between Mohanlal and the complainant.
There is no conversation with regard to money transaction with
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accused Banna Ram except that to bring the bill, Babulal is
`duboda’ (having no means) and to come in the line at three
places. On the basis of this conversation, accused Banna Ram
cannot be linked with demand.
6. Further, in this regard, Jeta Ram, PW 15 has also stated
that he did not ask on the spot that who is the incharge of the
almirah, from where the amount was recovered. When the
complainant Babulal (PW 11) was examined, he has stated in the
cross examination that Banna Ram told him that why he was
giving the money, then he replied that Manoj Kumar had told
him to give it. At first stage, Banna Ram refused to accept the
money but later he forcibly gave the amount to him. The
relevant portion of the cross examination is as under:
” नन र म न यह कह कक य पस ककस मलए द रह ह , त मन उसक
कह कक मन ज क!म र न आपक दन क मलए ल ह, इसमलए उसन पस
ल मलए पहल त नन र म न पस लन स मन कर कदय , क’र उसन पस
ल मलय। नन र म न पस नह ) मलय, त मन क’र उसक ज रदसत+ पस
कदय।”
This statement reveals that there was no demand by
accused appellant Banna Ram from the complainant Babulal,
who forcibly gave money to accused Banna Ram. The person
who demanded the money viz; Manoj Kumar has been left out
alongwith another accountant Mohanlal. No satisfactory
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explanation has been given in this regard by the recovery officer.
7. That apart, it is also revealed that the bill was passed on
20.3.01 as stated by the complainant Babulal (PW 11) and this
trap has been arranged on the next day i.e. 21.3.01. This shows
that the work was also not pending on the date of trap and the
office almirah was common, where the personal amount of
accused Banna Ram was also lying as stated in the F.I.R. as well
as in the statement of complainant Babulal (PW 11) and Jeta
Ram (PW 15). This type of trap proceedings and the prosecution,
where the principal accused, who demanded the money, has
been left out, cannot be said to be bonafide, especially when the
sanctioning authority has also not applied his mind. In this
regard, the authority cited by the learned counsel for the
appellant in V.Venkata Subbarao’s case (supra) is helpful in the
facts of the present case. The relevant portion of the judgment is
as follows:
“22. It is a mystery as to why no offer was made to the
M.R.O. Directly or why the raiding party did not visit his
house? The prosecution witnesses even did not know in
which village the M.R.O., Surveyor and Revenue Inspector
has their respective residences. A short intervention made
by the appellant was purported to be in relation to the
quantum of amount. The offer, therefore, should have
been made to the M.R.O. Directly. He was named in the
complaint, but along with him and the appellant, two
others were also named. Why no action had been taken as
against three other persons, is not known. Why M.R.O.,
8who had made a demand, on whose behalf the appellant
had accepted the amount, had escaped prosecution has
not been explained.
23. It is also accepted that before the Sanctioning
Authority, the vital documents showing involvement of the
M.R.O. had not been produced. The Sanctioning Authority,
therefore, did not have any occasion to apply their mind to
the entire materials on record and in that view of the
matter, the sanction is, therefore, vitiated in law. Conduct
of the officers of the respondent who had taken recourse
to suppressio veri deserves serious condemnation.”
8. In the cited case, the MRO, who demanded the money,
was left by the prosecution, who was named in the complaint.
Here in the present case, it was Manoj Kumar, Asstt.Director,
who made direct demand, has also been left by the prosecution.
The only incriminating circumstance against the accused Banna
Ram is about the colour of the water of glass, which turned into
pink after washing the hands of accused, who accepted the
money but this is a corroborative evidence and the presumption
cannot be drawn on the basis of such evidence, unless the
pendency of the work and demand is proved in a trial for the
offence u/s.7 of the Act.
9. In view of the above discussion, particularly in absence of
demand rather refusal to accept the money and forcibly handing
over the same to the accused Banna Ram by the complainant
Babulal, non-implication of principal accused i.e. Manoj Kumar,
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non-application of mind by the sanctioning authority and
recovery from a common almirah are such factors, which lead to
the only conclusion that in the present case, the prosecution
story suffers from serious infirmities for which accused is entitled
to be benefitted.
10. Consequently, this appeal is allowed. The judgment of the
learned Special Judge, Prevention of Corruption Act, Jodhpur
dt.10.1.2006 convicting the accused appellant Banna Ram for
the offences u/ss.7 & 13 (1)(d)(ii) of the Act is set aside. He is
on bail, his bail bonds stand cancelled.
(DEO NARAYAN THANVI), J.
RANKAWAT JK, PS