Govt. Appeal (S.J.) No. 1 of 2001
Against the judgment of acquittal dated 29th November, 2000 passed by Shri
Raj Narain Prasad Singh, learned Special Judge, C.B.I., Dhanbad in R.C. Case No.
11(A) of 91(D)
......................
State of Jharkhand through Superintendent of Police, SPE, C.B.I., Dhanbad
…. …. …. Appellant/Prosecutor
Versus
Madan Mohan Singh …. …. …. Respondent/Accused
For the Appellant : Mr. Md. Mokhtar Khan, Advocate
For the Respondent : Mr. Mahesh Tiwari, Advocate
………………
PRESENT
THE HON’BLE MRS. JUSTICE JAYA ROY
By Court: The State of Jharkhand, through Superintendent of Police, C.B.I.,
Dhanbad has filed this appeal against the judgment dated 29.11.2000
passed by Special Judge, C.B.I., Dhanbad in R.C. Case No. 11(A) of 91(D)
whereby the Special Court has acquitted the sole accusedrespondent,
namely Madan Mohan Singh from the charges under Sections 7 and 13(2)
read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.
2. Prosecution case, in short, is that the complainant L.B.P. Shrivastav,
Contractor of BCCL lodged a written complaint dated 27.06.1991 with the
S.P., C.B.I., Dhanbad stating therein that the accusedrespondent demanded
a sum of Rs. 500/ from him as illegal gratification for preparation of bills
relating to the civil works done by him. Mr. R.S. Kuril, Sub Inspector of
Police, C.B.I., Dhanbad verified the complaint under the order of the S.P.,
C.B.I., Dhanbad and on such verification, the allegation made by the
complainant against the respondentaccused was found to be correct and
well founded. Thereafter, on the basis of the said complaint and on the basis
of the verification report the instant case was registered under Sections 7
and 13(2) read with Section 13(1)(d) of the P.C. Act, 1988 and, thereafter,
investigation was taken up by one B.K. Birdi, Inspector of Police, C.B.I.,
Dhanbad who arranged an assembly of two independent witnesses, Mr. S.K.
Choudhary, Group Clerk, Region No. 1, D.G.M.S., Dhanbad and Jagannath
Roy, L.D.C., Examination Section, D.G.M.S., Dhanbad. Then the complainant
was introduced to all the members. The purposes of the assembly was
explained to all the members of the trap team. All the members of the C.B.I.
Trap Team and both the witnesses and the complainant were introduced to
each other. After following the entire Pre Trap Proceeding procedure the Pre
Trap Memorandum was prepared. The contents of which were read over and
explained to all the members of the team who put their signatures thereon.
The independent witness, Jagannath Roy was instructed to follow the
complainant as shadow witness so that he could hear the conversation
2
between the complainant and the accused and see the transaction between the
complainant and the accused. He was further advised to give a signal by
stratching back portion of his neck as soon as the tainted amount was handed
over by the complainant to the accused.
3. Further case of the prosecution is that after holding Pre Trap Proceeding
the C.B.I. Raiding Party along with both the independent witnesses and the
complainant went to the office of the Dy. C.M.E., E.K.O.C.P., Dhansar Colliary,
BCCL, Dhanbad on the same day at about 13 hours. Thereafter, members of the
raiding party took their suitable position. The complainant L.B.P. Shrivastav
and the witness Jagannath Roy went to the room of the accusedrespondent
where he used to sit but they could not find the accused there and they came
to know that the accused respondent had already left the office for his
residence at about 1520 minutes earlier. Then, it was decided to go to his
residence situated at Hirapur. Accordingly, the team proceeded to the residence
of the accused situated at Professors Colony, Chiragora, Hirapur, Dhanbad. On
arrival there, all the members took their position by the side of the road
passing by the boundary wall of the accused. As instructed, the complainant,
L.B.P. Shrivastav along with shadow witness Jagannath Roy entered through
the boundary gate and went upstairs where the accused was living with his
family. When the accused saw the complainant at his door, he came out of his
room. The complainant wished the accused and informed him that he was a
little late in reaching at Dhansar K.O.C.P. Office and after ascertaining that the
accused had left for his house to meet him at his residence. At that the accused
asked the complainant to come inside the room. The shadow witness,
Jagannath Roy too followed the complainant. Both the complainant and the
shadow witness who were introduced as ‘Gumasta’ of the complainant, were
made to sit on the wooden cot. Immediately, thereafter, the complainant
requested the accused to expedite the preparation of the bills in respect of the
Barbad wire fancing in the East Basuria. At this request of the complainant, the
accused Madan Mohan Singh asked “500/ RUPYE HUM JO AAPKO LANE KE
LIYE BOLE THE, LAYE HO?” : The complainant replied, JI, SIR, AAPKE KAHE
MUTABIK RUPYA LE AAYE HAIN’. The accused then stretched his hand and
said “LAO DE DO”. On this, the complainant took out the tainted amount of
Rs. 500/from the left upper chest pocket of his shirt and handed over the
same to the accused who accepted the same by his right hand and after
counting the bribed amount with both of his hand the accused kept the same
on the cot beneath the papers relating to the agreement of the work which had
been just then taken by him from the complainant. Soon after money
transaction was over, the shadow witness Jagannath Roy came out of the room
and gave a signal by scratching the back portion of his neck with his left hand.
3
On receipt of the signal, the I.O. along with other witness S.K. Choudhary
reached to the spot and after disclosing his identity the I.O. challenged the
accused about his having demanded and accepted a sum of Rs. 500/ as illegal
gratification from the complainant for showing him favour in preparation of his
bill. On being thus challenged, the accused became perplexed and could not
offer any explanation. After a few moments, the accused however confessed to
have accepted illegal gratification of Rs. 500/ from the complainant. By then,
all the members of raiding party had reached the spot. On being pointed out by
the complainant and the shadow witness, the tainted money was recovered
from beneath the paper. The numbers and denomination of the recovered
tainted money were compared with that of G.C. Notes recorded in the
Preliminary Memorandum prepared in the C.B.I. Office. On comparison, all of
them tallied in toto. Then the recovered tainted G.C. Notes were preserved in a
small envelope which was sealed and signed by all the present members.
Subsequent to that a solution of Sodium Carbonate with water was prepared in
a glasstumbler in which the accused on being asked, dipped his right hand
fingers. Consequently, milky solution became pink which was preserved in a
clean glass phial which was sealed and signed by all of them. Another alike
solution was also prepared in which the accused dipped his left hand finger as
a result of which milky solution turned pink. That solution was also preserved
in another glass phial which was also sealed and signed by all the members of
raiding party. All these materials were marked as Exhibits. The accused was
then put under arrest and thereafter his personal search was made by the
investigation officer. Thereafter, the arrest memo was prepared separately. On
search certain incriminating documents were recovered and for that seizure list
was prepared separately. Thereafter the memo of recovery was was prepared
and all the members of raiding party put their signatures. A copy of the
memorandum of recovery was handed over to the accused. After obtaining
sanction order from the competent authority, the I.O. submitted chargesheet
under the aforesaid Sections of the P.C. Act, 1988 against the respondent
accused. Cognizance was taken and the trial proceeded. The accused pleaded
not guilty to the charges framed against him and claimed to be tried. He, in his
examination under Section 313 of the Code of Criminal Procedure, clearly
denied the entire allegation brought against him. He very categorically stated
that without doing the contract work the complainant L.B.P. Shrivastav
pressurised him (accused) to prepare his favourable bill. On 22.06.1991 at
about 12.30 P.M. the complainant came to him and asked him to prepare his
bill. In reply thereto, the accused told him that since even less than half of the
contract work had not been done by him, he would not prepare the complete
bill. On that, the complainant abused him. Thereupon, it is said that the
4
accused pushed him out of his house. Thereafter, the complainant went away
from there grumbling and holding out threat that he would take revenge
against the accused and spoil his life.
4. In order to prove its case, the prosecution examined altogether nine
witnesses. Out of them S.K. Choudhary is P.W. 1 and Jagannath Roy is P.W. 2.
They are the independent witnesses who claimed to have participated and
witnessed all the Pre Trap and Post Trap proceedings. They have also adduced
evidence in respect of the same. P.W.2 acted as a shadow witness. P.W. 3 is the
C.F.S.L. Expert who had chemically examined the wash of both the hands of the
accused and the concerned portion of his bedsheet taken during the Post Trap
Memorandum. P.W. 8 is the complainant. P.W. 4 verified the complaint petition
of the complainant. P.W. 9 is the I.O.
5. Mr. Mokhtar Khan, learned counsel appearing for the C.B.I. has
submitted that the trial court, without considering the evidence of the
witnesses and the shadow witness, acquitted the accused respondent. He has
further submitted that the witnesses have stated clearly that the aforesaid
money had been accepted by the accused and recovery was also made.
6. Mr. Mahesh Tewari, learned counsel appearing for the accused
respondent has submitted that according to the prosecution case only the
complainant and the shadow witness went to the upstairs and entered into the
room of the accused respondent. Other witnesses were present at the time of
the alleged incidence near the boundary wall of the residence of the accused.
Nowhere it has come that from that position they could have heard or seen the
alleged incidence. Furthermore, Mr. Tewari has submitted that as the other
persons were at the ground floor, it was not possible for them either to hear or
to see the alleged incidence. Therefore, the complainant and the shadow
witnesses are only the most important witnesses. Mr. Tewari has also pointed
out that P.W. 8, the complainant in his evidence has stated that the accused had
asked him, “AAP PAISA LAYE HAI.” On which the complainant had replied, “JI,
SIR, AAPKE KAHE MUTABIK RUPYA LE AAYE HAIN” and handed over the
same to the accused. After getting the same, the accused kept the said amount
beneath the bed of his chowki in a newspaper. In this regard, the shadow
witness, P.W. 2, has simply stated that the accused, Madan Mohan Singh,
demanded a sum of Rs. 500/ on which the complainant had given Rs. 500/
of G.C. currency notes and the accused kept the same in a newspaper under his
Bed. P.W. 2, in his cross examination has stated that he could not remember
whether the said amount were kept under the bedsheet of the cot of the
accusedrespondent or not. To this, he could not say as to whether the C.B.I.
team counted and compared the said notes with their list regarding G.C. notes
given in the PreTrap proceeding. Though he stated that, thereafter, the
5
recovered notes were compared and kept in a envelope. Mr. Tewari has further
pointed out that the complainant P.W. 8, in his evidence has not stated as to
who said to the C.B.I. party regarding the accepted money kept under the bed.
Therefore, it is very doubtful as to how the C.B.I. party came to know that the
accepted money was kept under the bed. He has further pointed out that it has
also come in the evidence of these P.Ws 2 & 8 that the said bribed money was
kept in a newspaper and thereafter the entire thing was kept under the bed of
a cot but according to the prosecution case the accusedrespondent had kept
the said money in the measurement book of the agreement. Furthermore, it
has come in the evidence that the number of one of the G.C. notes did not tally
with the number of the notes incorporated in the preliminary memorandum.
P.W. 9, the I.O. has admitted these facts in his evidence. P.W. 1 has also stated
and accepted this fact in his evidence that one of the recovered G.C. notes did
not tally with the number of any of the G.C. notes mentioned in the
preliminary memorandum. Mr. Tewari has further pointed out that the
evidence of P.W. 7 who is a Civil Engineer of the department has admitted in his
statement that in the measurement book from Pages 176 to 184 entries were
made regarding the work of barbed wire fencing which was given to the
complainant. He has further stated that if the contractor had any grievance
regarding any measurement, the procedure is to make a complaint before the
Civil Engineer but the complainant did not lodge any complaint either before
him nor before any officer of the department regarding the measurement. Mr.
Tewari has further pointed out that if the complainant had any grievance
regarding measurement of these work, he could have very well complained the
same to P.W. 7. Mr. Tewari has further contended that since the complainant
had not completed the contractual work according to the contract, he had no
courage to complain about it to P.W. 7.
7. All these evidences also support the defence of the accusedrespondent
which the accusedrespondent had very specifically mentioned in his statement
recorded under Section 313 of the Code of Criminal Procedure.
8. Considering the entire submissions of both the parties as discussed
above, in my opinion the prosecution has failed to prove its case against
accusedrespondent beyond all reasonable doubt. I, therefore, do not find any
reason to interfere with the judgment of acquittal. This appeal is accordingly
dismissed.
(Jaya Roy, J.)
Jharkhand High Court, Ranchi
The 25th February, 2011
B.N.O./N.A.F.R.