(1) Cr. Appeal No. 2239/1997
HIGH COURT OF MADHYA PRADESH AT JABALPUR
DIVISION BENCH:HON'BLE SHRI JUSTICE RAKESH SAKSENA
HON'BLE SHRI JUSTICE M.A.SIDDIQUI
CRIMINAL APPEAL NO. 2239/1997
APPELLANT: Rajesh Kumar Goswami S/o R.G.Goswami, aged
37 years, Bank Adhikari, Chhindwara-Seoni
Kshetriya Gramin Bank, Seoni, R/o 848, Vijay
Nagar Madhotal, P.S. Gohalpur, Jabalpur (M.P.)
Versus
RESPONDENT: The State of Madhya Pradesh
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For the Appellant : Shri S.C.Datt, Senior Advocate with
Shri Siddharth Datt, Advocate.
For the Respondent/State : Shri Vikram Singh, Standing Counsel
for C.B.I.
Date of hearing : 21/07/2011
Date of judgment: 27/07/2011
(J U D G M E N T )
Per: Rakesh Saksena; J,
Appellant has filed this appeal against the judgment dated 22nd
October, 1997 passed by Fifth Additional Sessions Judge/Special Judge
(C.B.I.) Jabalpur in Special Case No. 08/1989, convicting him under
Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of
Corruption Act, 1988 and sentencing him to rigorous imprisonment for two
years with fine of Rs. 5000/- on each count respectively. Substantive
sentences have been directed to run concurrently.
2. In short, facts of the case are that in the month of November,
1989, appellant R.K.Goswami was functioning as Branch Manager of
Nagan-Deori Branch of Chhindwara-Seoni, Kshetriya Gramin Bank at
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Nagan-Deori, District Seoni. This Bank was sponsored by the Central
Bank of India. On the application of complainant Mohanlal Uikey, a loan
for a sum of Rs. 6000/- was sanctioned. As first installment, a sum of Rs.
1,000/- was paid to him by the appellant on 14.4.2008. When
complainant Mohanlal approached to appellant for remaining amount of
Rs. 5000/- on 31.10.1989, appellant demanded Rs. 500/- by way of
illegal gratification for disbursement of the said amount.
3. Since, complainant did not want to give bribe, he went to C.B.I.
Office Jabalpur and submitted a written complaint Ex. P/12.
Superintendent of Police, C.B.I. recorded the first information report Ex.
P/17 and deputed Inspector R.K.Shukla (PW6) to inspect the matter.
Inspector R.K.Shukla requisitioned services of two independent witnesses
namely K.K.Sareen (PW3) and Dr. A.K.Verma (PW4), who were the
employees of Oriental Insurance Company. These Officers on 2.11.1989
verified the facts from the complainant. R.K.Shukla (PW5) obtained Rs.
500/- from the complainant and demonstrated the effect of
Phenolphthalein powder to complainant and other witnesses. He
arranged for a trap and asked complainant to hand over the bribe money
of Rs. 500/- to appellant and give a signal. A pre trap panchnama Ex. P/
13 was prepared.
4. On 2.11.1989, complainant and the members of the trap party
reached the Bank Nagan-Deori, where appellant was working.
Complainant handed over tainted currency notes of Rs. 500/- to appellant
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and gave prefixed signal to C.B.I. people. Inspector R.K.Shukla and
other members of the trap party caught appellant’s hands and washed
them with sodium carbonate solution which turned pink. Tainted
currency notes were recovered from the pocket of appellant. When
pocket of the pants of appellant was washed with sodium carbonate
solution, it also turned pink. All the solutions were seized and a
memorandum of the trap proceedings Ex. P/14 was drawn. On the same
day, loan file of the complainant was seized vide memorandum Ex. P/15
and spot map Ex. P/16 was drawn. After further investigation and
obtaining the requisite sanction Ex. P/1, charge sheet was filed in the
Court of Special Judge.
5. On charges being framed appellant pleaded false implication. His
defence as per his statement under Section 313 of the Code of Criminal
Procedure was that complainant had given Rs. 500/- to him for getting
them deposited in his saving bank account. He had handed over the said
amount to cashier Ramesh Maravi. He had sanctioned the loan to
complainant according to rules and had asked him to bring license from
the forest department. According to him, in the past also complainant
often handed over money to him for depositing in the saving account.
Receipts were used to be issued by the cashier later on.
6. Prosecution examined six witnesses to establish its case viz.
Sudhakar Trimbak Karkhanis (PW1), Hemant Jha (PW2), K.K.Sarin (PW3),
Dr. A.K.Verma (PW4), Inspector R.K.Shukla (PW5) and complainant
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Mohanlal Uikey (PW6). Appellant, to substantiate his defence, examined
Ramesh Kumar Maravi (DW1) and Somnath Nema (DW2). Learned
Special Judge, after trial and upon appreciation of the evidence adduced
in the case, convicted and sentenced the appellant of the charges under
Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of
Corruption Act. Aggrieved by his conviction, appellant has challenged the
impugned judgment in this appeal.
7. We have heard the learned counsel for the parties.
8. It was no longer disputed that at the relevant time appellant was
working as Branch Manager in Chhindwara-Seoni, Kshetriya Gramin Bank
and as such he was a public servant.
9. So far as the sanction Ex. P/1 for the prosecution against the
appellant is concerned, it was proved by Sudhakar Trimbak (PW1), who
on 23.12.1989 was functioning as Chairman of Chhindwara-Seoni
Kshetriya Gramin Bank, Chhindwara. He categorically stated that he had
accorded sanction after thorough study of the documents produced
before him. He perused the evidence of witnesses, complaint, recovery
memorandum and loan file etc. Even otherwise, learned counsel for the
appellant has not challenged the validity of sanction accorded by
Sudhakar Trimbak (PW1).
10. Hemant Jha (PW2), who in the month of November, 1989 was
posted in the head quarter of the said Bank as District Coordinator
deposed that appellant was posted in Nagan-Deori Branch as a Branch
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Manager. He was empowered to sanction loans to the extent of Rs.
10,000/-. He had sanctioned loan of Rs. 6000/- to Mohanlal Uikey. This
fact was not disputed by the appellant himself in his statement under
Section 313 of the Code of Criminal Procedure.
11. Learned counsel for the appellant contended that complainant
(PW6) had turned hostile. He did not say in the Court that he gave Rs.
500/- to appellant by way of bribe. There was no evidence on record to
indicate that appellant made any demand of illegal gratification. The
person, who scribed the complaint Ex. P/12 was not examined in the
Court, therefore, it was not established that any demand was made by
the appellant.
12. Complainant (PW6) deposed that appellant asked him to bring the
license of carpenter and said that only then his remaining amount of loan
would be paid. He also asked him to deposit Rs. 500/- before bringing
license. Since, he had no money at that time, he went away and
discussed the matter with some persons who advised him to go to
Jabalpur C.B.I. He submitted a written complaint in the C.B.I. Office. He
got the said complaint written by Ramesh Shrivastava. He stated that
the complaint Ex. P/12 was written according to his instructions. He,
however, stated that the word `bribe’ in it was not written on his
instruction, but rest of the part of the complaint was got written by him.
Complainant (PW6) admitted his signatures on Ex. P/12. In these
circumstances, merely the non examination of Ramesh Shrivastava, who
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scribed the complaint, in our opinion, does not affect the credibility of
complaint Ex. P/12.
13. According to prosecution case, K.K.Sarin (PW3) and Dr. A.K.Verma
(PW4) verified from the complainant about his making the complaint.
Learned counsel for the appellant submitted that K.K.Sarin (PW3) was a
stock witness of C.B.I.. He had appeared as witness for C.B.I. in 3-4
cases, therefore, no reliance could be placed on his evidence. As far as
Dr. A.K.Verma (PW4) is concerned, he was also working in the same
Office in which K.K.Sarin (PW3) was working, therefore, his evidence was
also not trustworthy. Learned counsel submitted that the evidence of
Dr.A.K.Verma (PW4) was also not reliable because his statement under
Section 161 of the Code of Criminal Procedure was read over to him
before he entered the witness-box and he was asked to give evidence in
the Court on the same lines. In these circumstances, trial Court
committed error in placing reliance on the evidence of the aforesaid
witnesses. He further submitted that the evidence of Inspector
R.K.Shukla (PW5) was inconsistent with the evidence of aforesaid
witnesses. It was not proved beyond doubt that tainted currency notes
were recovered from the pocket of the pants of the appellant. From the
spot map Ex. P/16, it seemed that the said notes were recovered from
the table of accused kept in the office. Inspector Devendra Singh, who
had drawn the said map (Ex. P/16) was not examined in the Court,
therefore, learned Special Judge committed error in convicting the
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appellant. Learned counsel placed reliance on the decisions rendered by
the Apex Court in G.V. Nanjundiah Vs. State (Delhi Administration)-AIR
1987 SC 2402, Banarsi Dass Vs. State of Haryana- AIR 2010 SC 1589 and
Division Bench judgment of this Court namely Ramvilas Ramdin and others
Vs. State of M.P.- 1984 MPLJ 492.
14. K.K.Sarin (PW3), who was Assistant Manager in Oriental Insurance
Company, Regional Office, Jabalpur admitted that he appeared as
witness in three trap cases of C.B.I.. Dr. A.K.Verma (PW4) also worked
in the same Office.
15. For appreciating the evidence of such witnesses, in the case of G.V.
Nanjundiah (supra) the Apex Court observed:
” Learned Special Judge and also the High Court have placed
much reliance upon the evidence of R.L.Verma and
R.N.Khanna and the Deputy Superintendent of Police as to the
acceptance of the bribe by the appellant and recovery of the
bribe amount from him. R.L. Verma and R.N.Khanna have
been stated to be two independent witnesses. So far as R.N.
Khanna is concerned, he categorically admitted in his cross
examination that he had earlier joined three or four such raids
for traps organised by the C.B.I.. Khanna and Verma work in
the same office and there is substance in the contention made
on behalf of the appellant that both of them are very much
known to the police. It was the Deputy Superintendent of
Police who had called them from their office for the purpose
of being trap witnesses. We do not think that in the
circumstances, either of them can be called an independent
witness.”
16. At the relevant time, Dr. A.K.Verma (PW4) was also posted as
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Assistant Regional Manager in the Oriental Insurance Company in which
K.K.Sarin (PW3) was posted. Apart from it, Dr. A.K.Verma (PW4) in
para-6 of his statement admitted that an Advocate read over to him his
previous statement in the verandah of the Court and that he was asked to
give same statement before the Court. That Advocate told to him that
since the incident had occurred long back, therefore, he was making him
to recollect the same. In Ramvilas Ramdin (supra) Division Bench of this
Court dealt with this aspect in great detail and held that earlier statement
of a witness recorded under Section 161 of the Code of Criminal Procedure
read over to him and witness asked to give the same in Court renders his
testimony valueless. It was further held that the statement made by the
witness to the police during the course of investigation was made use of in
contravention of section 162, Criminal Procedure Code. Nobody can say
what the witness would have said had his memory not been refreshed in
that manner before he entered the witness box. It does not make any
difference that the statement was narrated to him not when he was in the
witness-box but shortly before entering the witness-box because the fact
remains that it was narrated to him for the purpose of giving evidence at
the trial. That tantamount to making use of the statement at the trial.
AIR 1941 PC 75 and 1968 Cri. L.J. 54.
17. Learned counsel for the appellant contended that since the evidence
of alleged independent witnesses was not trustworthy, appellant cannot
be convicted merely on the evidence of complainant, who turned hostile
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and gave discrepant and inconsistent versions, and on the evidence of
Investigating Officer R.K.Shukla (PW5), whose evidence appeared
contrary to the spot map Ex. P/16. Counsel placed reliance on the
decision of Banarsi Dass (supra) in which complainant and another witness
turned hostile. The Apex Court dealt with the matter as under:
” PW2 insisted on changing the Khasra Girdawaris and after
she got annoyed , she got him falsely implicated. Money
alleged to have been recovered from him, in fact, was lying on
the table without his knowledge or demand. PW-2 has also
stated in her statement that she kept the money on the table
after some altercation with the accused. In these
circumstances, it is difficult for the Court to hold that the
prosecution has established the offence against the accused,
that he accepted the money voluntarily as illegal gratification.
The effect of the statement of PW2 and PW4 has a substantial
adverse effect on the case of the prosecution. There are
other witnesses examined by the prosecution which are formal
witnesses and in the absence of support of PW2 and PW4, the
prosecution has not been able to establish the charge
(demand and acceptance of illegal gratification by the
accused), thus entitling him to some benefit on the technical
ground of two witnesses i.e. PW2 and PW4 turning hostile.
In the light of the statement of two hostile witnesses PW2
and PW4, the demand and the acceptance of illegal
gratification alleged to have been received by the accused for
favouring PW2 by recording the Khasra Girdawaris in the
name of her mother cannot be said to have been proved by
the prosecution in accordance with law. We make it clear that
it is only for the two witnesses having turned hostile and they
having denied their statement made under Section 161 of the
Cr.P.C. despite confrontation that the accused may be
(10) Cr. Appeal No. 2239/1997entitled to acquittal on technical ground. But, in no way we
express the opinion that the statement of witnesses including
official witnesses PW10 and PW11, are not accepted by the
Court. Similarly, we have no reason to disbelieve the recovery
of Ex. P-1 to P-4 vide Ex. P-D.”
18. On perusal of the evidence of complainant (PW6), it is apparent that
he stated that though the complaint Ex. P/12 was written according to his
instructions, but he did not mention therein the word `bribe’. This
indicates his deliberate expression that he did not want to impute
criminality on the part of appellant. Of course, it is not always necessary
that while demand is made by an accused, either accused or the
complainant should use specifically the word `bribe’, but here complainant
clarified that Manager asked him to deposit Rs. 500/-. When he went in
the Office, on asking of the Manager, he put the money on the table and
gave signal to C.B.I. team. When trap party entered the Office, the money
was not found with the Manager, it was found on the table of cashier
Maravi along with Rs. 150/- of some body else which was separated by the
Officers of C.B.I. He admitted that Manager told him that unless he
deposited Rs. 500/- he would not get remaining amount of Rs. 5,000/-,
therefore, he made a complaint with C.B.I. In cross examination, he
admitted that he did not give bribe money to appellant. He had two
accounts in the Bank. Often Bank Manager took money from him and
deposited in his accounts. According to him, when the appellant demanded
money, he thought that money was to be deposited in his one of the
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accounts. Complainant further admitted that he had got Rs. 1,000/-
towards loan, but appellant had told him that unless he brought a license
from the Forest Department for furniture, he would not get remaining
amount. Thus, while examining the evidence of complainant Mohanlal
(PW6) in the light of ratio of the decision of Apex Court in Banarsi Dass,
we find that trial Court committed error in placing reliance on his
testimony.
19. In view of the observations made by the Apex Court in G.V.
Nanjundiah, we are unable to place reliance on the evidence of K.K.Sarin
(PW3) and Dr. A.K.Verma (PW4) who worked in the same Office and one
of them namely K.K.Sarin (PW3) happened to be a witness of 3-4 raids
conducted by police C.B.I. Apart from it, Dr. A.K.Verma (PW4) gave his
statement before the Court after he was read over his previous statement
and was asked to state the same in the Court. In case of Raghbir Singh
Vs. State of Punjab- AIR 1976 SC 91 Apex Court observed:
” We must take this opportunity of impressing on the
officers functioning in the anti-corruption department to insist
on observing this safeguard as zealously and scrupulously as
possible for the protection of public servants against whom a
trap may have to be laid. They must seriously endeavour to
secure really independent and respectable witness so that the
evidence in regard to raid inspires confidence in the mind of
the court and the court is not left in any doubt as to whether
or not any money was paid to the public servant by way of
bribe.”
20. Learned counsel for the C.B.I. submitted that even if the trap
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witnesses turn hostile or found not independent, the Court may accept the
prosecution version on the basis of evidence of complainant and the police
officers. He placed reliance on the decision of the Apex Court rendered in
the State of U.P. Vs. Dr. G.K. Ghosh AIR 1984 SC 1453, wherein it was held
that in case of an offence of demanding and accepting illegal gratification,
depending on the circumstances of the case, the Court may feel safe in
accepting the prosecution version on the basis of the oral evidence of the
complainant and the police officers even if the trap witnesses turn hostile
or are found not to be independent. When besides such evidence there is
circumstantial evidence which is consistent with the guilt of the accused
and not consistent with his innocence, there should be no difficulty in
upholding the prosecution case.
21. In the case in hands besides the evidence of trap witnesses, we
have found that the complainant Mohanlal (PW6) himself did not
substantially support the prosecution version and was, therefore, declared
hostile. Though, he supported the prosecution story to some extent about
the demand of Rs. 500/- by the appellant and handing over the tainted
money to him, but he in clear terms stated that it was not bribe. On
several occasions he gave money to appellant or appellant himself fetched
money from him for depositing the same into his accounts. He never took
the demand of money made by the appellant as a demand of illegal
gratification. In these circumstances, we find the facts and circumstances
of the present case different from the case of Dr. G.K.Ghosh (supra).
(13) Cr. Appeal No. 2239/1997
Similarly the decision of the Apex Court in Ramesh Gupta Vs. State of M.P.
-1995 Cr.L.J. 3656 wherein it was observed that in a bribery case, for
demand and acceptance of bribe corroboration to the evidence of
complainant can be by way of circumstantial evidence also, has no
application since in the present case the complainant himself in substance
did not support the prosecution version.
22. Learned counsel for the C.B.I. Placing reliance on the decisions of
Apex Court in Gian Singh Vs. State of Punjab- AIR 1974 SC 1024 and Hazari
Lal Vs. The State (Delhi Admn.)-AIR 1980 SC 873 contended that in a trap
case the conviction of accused may be based on the evidence of police
officer who laid the trap, if his evidence is trustworthy. In case of Hazari
Lal (supra), Supreme Court observed:
” Where the evidence of the Police Officer who laid the trap
is found entirely trustworthy, there is no need to seek any
corroboration. There is no rule of prudence, which has
crystallized into a rule of law, nor indeed any rule of
prudence, which requires that the evidence of such officers
should be treated on the same footing as evidence of
accomplices and there should be insistence on corroboration.
In the facts and circumstances of a particular case a Court
may be disinclined to act upon the evidence of such an officer
without corroboration, but, equally, in the facts and
circumstances of another case the Court may unhesitatingly
accept the evidence of such an Officer. It is all a matter of
appreciation of evidence and on such matters there can be no
hard and fast rule, nor can there by any precedential
guidance.”
(14) Cr. Appeal No. 2239/1997
23. In the light of above proposition when we examine the evidence of
R.K.Shukla (PW5), we find that he requisitioned two officers of Oriental
Insurance Company as independent trap witnesses though he must have
knowledge that K.K.Sarin (PW3) had been a witness in about 3-4 raids
conducted by C.B.I. He stated that the spot map Ex. P/16 was drawn by
Inspector Devendra Singh wherein it was mentioned that tainted money of
Rs. 500/- was lying on the table, but he did not say that the map was
wrong. Inspector Devendra Singh was not produced by the prosecution in
evidence. The aforesaid spot map was witnessed by K.K.Sarin (PW3)
and Dr. A.K.Verma (PW4), but none of them pointed out the said mistake.
On the contrary, Inspector R.K.Shukla (PW5) and K.K.Sarin (PW3) stated
that the money was recovered from the pocket of appellant and they did
not know how it was marked in Ex. P/16 that tainted money was lying on
the table. In these circumstances, the evidence of complainant Mohanlal
(PW6) that appellant kept the money on the table appears probable. It is
true that the complainant Mohan Lal as well as Ram Kumar Maravi (DW1),
cashier of the Bank stated that tainted currency notes were seized from
the table of Maravi, but in view of the inconsistencies appearing in the
evidence, it becomes suspicious as to where from the money was
recovered.
24. In view of the aforesaid infirmities occurring in the prosecution case,
we are unable to hold that the prosecution succeeded in establishing that
demand of illegal gratification was made by the appellant and that the
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appellant accepted tainted money as a bribe/illegal gratification, and thus
to prove the guilt of appellant beyond all doubts, in our opinion learned
Special Judge committed error in holding the appellant guilty.
25. After careful consideration of the evidence adduced by the
prosecution, the statement of appellant under Section 313 of the Code of
Criminal Procedure and the submissions made by learned counsel for the
parties, we are of the view that prosecution has failed to prove guilt of
appellant beyond a reasonable doubt.
26. For the reasons aforesaid, appeal is allowed. The order of conviction
and sentence as passed by the learned Special Judge is set aside.
Appellant is acquitted of the charges. His bail bond and personal bond are
discharged.
(RAKESH SAKSENA) (M.A.SIDDIQUI)
JUDGE JUDGE
AD/