Criminal Appeal (SJ) No.333 of 1998 **** Against the judgment, dated 11th of September, 1998, passed by Sri Shyam Kishore Sharma, Special Judge, C.B.I. (North) Patna, in Special Case No. 73 of 1990 **** Kolahal Prasad, son of late Sri Sheo, resident of village Gajpur, P.S. Gagaha, district Gorakhpur (Uttar Pradesh) at present residing at Chaudhary Bhawan Ganga Sagar Road, Donar, Darbhanga, C/O Sri B.K. Joshi (Block Development Officer), P.S. Darbhanga Sadar, district Darbhanga .. Appellant Versus The State of Bihar .. Respondent **** For the appellant .. Mr. Kanhaiya Prasad Singh, Sr. Adv. with Mr. N.K. Prasad, Adv. For the C.B.I. .. Mr. Bipin Kumar Sinha, Standing Counsel, C.B.I. **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and the State. 2. The appellant has been convicted under Sections 7 and 13(1)(b) read with 13(i)(ii) of the Prevention of Corruption Act (hereinafter referred to as, ‘the Act’) and sentenced to undergo rigorous imprisonment for three years and fine of Rs.10,000/- and in the event of 2 failure to deposit the fine shall, further, undergo rigorous imprisonment for one year. 3. The prosecution case is that one Jagdish Paswan, Chief Trains Clerk, was transferred from Samastipur to Darbhanga in place of Jaugeshwar Paswan, on his retirement. The transfer order was issued by the Divisional Railway Manager (Personnel). Before the order of transfer one Sri Lal Mandal was posted at Darbhanga, as In-Charge of Chief Trains Clerk and was senior to Jugeshwar Paswan. Jagdish Paswan requested Kolahal Prasad, Station Superintendent, Darbhanga Railway Station, that Shri Mandal is junior to him (Jagdish Paswan) and, hence, taking into consideration the seniority he be handed over the charge of Chief Trains Clerk. It is alleged that Kolahal Prasad refused to give the charge and it was disclosed that he will not do so because he (Jagdish Paswan) has been transferred to Darbhanga in place of Jugeshwar Paswan, who was junior to Shri Mandal and so he (Jagdish Paswan) can not be treated above Shri Mandal. Jagdish Paswan, thereafter, gave in writing to remove the anomaly to the superior authorities. On the report of Jagdish Paswan, no step was taken to remove the anomaly. It is alleged that Jagdish Paswan met with the Station Superintendent, Darbhanga Railway Station, and requested to give him charge of Chief Trains Clerk, taking into consideration his seniority over Shri Mandal. It is alleged that the Station Superintendent demanded Rs.1,000/- as bribe to favour Jagdish Paswan in handing over the charge else he will not give the charge of Chief Trains Clerk. Hence, Jagdish Paswan reported the matter to the Superintendent of Police, 3 Central Bureau of Investigation, Patna, making allegation against Kolahal Prasad, Station Superintendent, Darbhanga Railway Station, and in consequence to the allegation, made, it was verified on 10.09.1990 and on verification the complaint was found genuine. First information report lodged for offence under Sections 7, 13(1)(b) and 13(1)(ii) of the Act. A trap was organized. All the members of the trap party asked to report at Laheriasarai Circuit House. The members of the raiding party and two independent witnesses met at Circuit House, Laheriasarai. The complainant was introduced to the members of the raiding party and vice versa. The system of laying trap and a practical demonstration were conducted to acquaint the witnesses to follow the process. A piece of paper were smeared in phenolphthalein powder and witness, B.K. Jha, was asked to take the same with his right hand and B.K. Jha touched the tainted paper with his right hand finger and a solution of sodium carbonate was prepared and as soon as the finger was dipped in the solution it changed it’s colour into pink. The complainant produced ten notes of hundred rupees denomination, which were smeared with phenolphthalein powder and handed over to Jagdish Paswan with a clear instruction to give the same only when the money is demanded by Kolahal Prasad as illegal gratification and not otherwise. S.K. Singh was asked to closely follow Jagdish Paswan and hear the conversation between the accused and Jagdish Paswan before and after the transaction. Other witness, B.K. Jha, was advised to maintain alert at safe distance to watch the transaction and hear the conversation if possible and the raiding party were acquainted with the topography of 4 the fixed venue of transaction which is Darbhanga Railway Station. The raiding party was also advised to be alert and circumspective around the official chambers of the accused. 4. Following the completion of pre trap formalities at Circuit House, the raiding party reached Darbhanga Railway Station at 09.35 hours. Jagdish Paswan followed with the shadow witness, S.K. Singh, reached near the official chambers of accused, Kolahal Prasad. The another witness, B.K. Jha, and Inspector, S.S. Lakda, remain seated on a fixed bench at a distance of 12 to 15 feet from the gate of the official chambers of the accused and the remaining members took their respective position, close to the official chambers of Station Superintendent. Jagdish Paswan entered into the official chambers of the accused, Kolahal Prasad, but, Kolahal Prasad was busy in discussion with some staff. Kolahal Prasad asked Jagdish Paswan to come after some time as he has to go to attend the meeting fixed with A.E.M., Darbhanga. At 10.30 a.m. Kolahal Prasad left for the office of A.E.M., Darbhanga, and returned at 11.45 hours and entered in his chambers. The accused was in chambers accompanied with 2-3 staff. After some time accused came out from his chambers and proceeded towards platform no. 1 to attend Train No. 326 Dn and asked Jagdish Paswan to follow him. In between official chambers and Train No. 326 Dn placed at platform no. 1, accused enquired from Jagdish Paswan as to whether he has brought the money as demanded by him for getting the work done. The said conversation was heard by shadow witness. Thereafter, the complainant retorted that he has brought Rs.1,000/- as per his 5 demand and now the work is to be done. The accused thereupon asked for the money. In compliance, Jagdish Paswan took out the ten tainted notes of Rs.1,00/- denomination from his upper left chest pocket of his bushirt and handed over the same to the accused. The accused accepted the money and kept the same in his right hand and kept the same in the upper left chest pocket. As soon as the accused accepted the money the Train No. 326 Dn reached at platform. In the meantime, the shadow witnesses gave the pre fixed signal by rubbing his power glass with handkerchief. On getting the signal the investigating officer and the other members of the team rushed, they challenged the Station Superintendent on the spot and disclosed their identity and asked Kolahal Prasad that he has demanded and accepted bribe of Rs.1,000/- from Jagdish Paswan for showing his favour in giving the charge of Chief Trains Clerk. On being challenged the accused, Kolahal Prasad, became unnerved and did not assign any explanation and was caught with his wrist by Maheshwari Singh and S. Pal and the accused was brought to the Government Railway Police Station, Darbhanga Railway Station, and on his personal search Rs.1,000/- which he accepted as illegal gratification and a sum of Rs.20/- was recovered. The G.C. notes were recovered from the upper left chest pocket in a search conducted in accordance with law in immediate presence of the two witnesses. The number and denomination of the G.C. notes recovered were compared with the number G.C. notes prepared in memorandum and they were found to be tallying. The solution of sodium carbonate prepared and the right hand finger of the accused was dipped in the solution and 6 consequently the milky colour solution changed into pink and the same chemical solution was preserved in a seal cover. Another solution prepared in separate clothes and the left hand finger of the accused was dipped, this time also the solution changed it’s colour to pink that was prepared in another file with special mark and, thereafter, the shirt also dipped in sodium carbonate solution and the milky colour turns in pink and that was also preserved and sealed. The charge sheet submitted. 5. During the trial fourteen witnesses were examined and out of fourteen witness, P.Ws. 9, 10 and 11 were tender, P.Ws. 1, 2, 4 and 7 are formal witnesses, who have proved Exhibits 1, 2, 3, 5 and 5/1 and chemical examination report, P.W. 8 is the informant, P.Ws. 5 and 6 are two independent witnesses and P.Ws. 12, 13 and 14 are members of the raiding party, which includes the investigating officer, P.W. 14. 6. The trial Court took into consideration the evidence and held that the witnesses supported the prosecution case about demand and acceptance of the illegal gratification and the two independent witnesses who were employed officer of Food Corporation of India supported the demand and acceptance of illegal gratification and the phenolphthalein test has also been established. The sanction for prosecution granted by Senior Divisional Operating Superintendent, hence, convicted and sentenced the appellant, as mentioned above. 7. The learned counsel for the appellant contended that the request of Jagdish Paswan to hand over the charge of In-Charge, Chief Trains Clerk, from Lal Mandal was rejected by Kolahal Prasad and communicated to Jagdish Paswan in clear term that since Jagdish 7 Paswan has been transferred against Jugeshwar Paswan who was junior to Lal Mandal by the order of Divisional Railway Manager (Personnel) so he can not order for change of Chief Trains Clerk. Hence, once, the decision was taken by Kolahal Prasad there was no occasion for demand and acceptance of illegal gratification. It has, further, been contended that the demand and acceptance has been alleged at venue and time chosen when the train is to reach at station and Kolahal Prasad was to hand over the chest and, hence, the prosecution story is not believable. It is, further, contended that when train reached at station several people rush to get on the train and several people get down and people were in hurry and in such a situation the possibility of the thrusting the money in the pocket of Kolahal Prasad can not be ruled out. 8. The learned counsel for the State, however, contends that Jagdish Paswan was transferred to Darbhanga by the Divisional Railway Manager (Personnel) and Kolahal Prasad has also admitted and conversant with the fact that Jagdish Paswan is senior to Mandal . It was Kolahal Prasad who has to make the local arrangement. It is, further, contended that when the money recovered from possession of the appellant and the demand and acceptance of the bribe has been established by the two independent witnesses as well as other witnesses of the raiding party proved the possession of the money and phenolphthalein test confirmed the possession of bribe money. The evidence of the witness found to be cogent, reliable and unimpeachable evidence then Section 20 of the Act lay to raise a presumption that he 8 demanded and accepted the money to attract Sections 7 and 13(i) of the Act. 9. Taking into consideration the prosecution case in the light of submission, it is apparent that Jagdish Paswan was transferred to Darbhanga in place of Jugeshwar Paswan. Jagdish Paswan was senior to Sri Lal Mandal. Sri Lal Mandal was In-Charge of Chief Trains Clerk, so a petition was filed by Jagdish Paswan before Station Superintendent, Kolahal Prasad, but, the same petition was rejected. The complainant represented to the superior officials. In the meantime there was demand for illegal gratification for handing over the charge of Chief Trains Clerk by Kolahal Prasad the Station Superintendent. The complaint made was verified and trap arranged. During trial the witnesses supported the prosecution case. The complainant and P.Ws. 5 and 6, the independent witnesses, supported the prosecution case about demand and acceptance of rupees one thousand as illegal gratification. The complainant and other witnesses, P.Ws. 12, 13 and 14 also supported the recovery from the pocket of the appellant. The phenolphthalein test stood confirmed. The department granted sanction. 10. P.Ws. 5 and 6 also supported the prosecution case about the demand and acceptance of the money and the money was seized from his pocket and the phenolphthalein test stood confirmed and the other witnesses also supported the prosecution case is about the search and seizure. 11. The learned counsel for the appellant, however, placed reliance upon the decision reported in 1994 Cr.L.J., 3738 (Suresh 9 Kumar Shrivastava Vrs. State of M.P.). However, the facts and circumstances of the case reported in 1994 Cr.L.J., 3738 (supra) is that one Pahalwan Singh was sanctioned loan for digging a well and purchase of pump by District Cooperation Land Development Bank, however, the money was released in installment and the last installment was required to paid worth Rs.1500/- and it is alleged that Suresh Kumar Srivastava, Manager of the Bank, demanded a bribe of Rs.200/- for releasing Rs.1500/- for which a trap was organized. However, during the trial the complainant and the shadow witnesses turned hostile. The conviction recorded on the basis of the averment made in the complaint petition filed by the complainant as substantive evidence. It was held that the complaint filed by the complainant is only a formal statement can only be used for contradiction or corroboration and can not be used as substantive evidence. Since there is no substantial evidence regarding the demand and acceptance, hence, it was held that when the demand and acceptance was not established by the cogent, reliable and admissible evidence then merely because money was seized was not sufficient to raise any presumption. 12. However, the facts and circumstances of the case at hand is quite different from the facts and circumstances of the case reported in 1994 Cr.L.J., 3738 (supra). In the case at hand there is evidence of the complainant that the appellant demanded the money and on tender accepted the illegal gratification. This part of the prosecution case has been supported by two independent witnesses of different department. Hence, the decision relied upon by the learned counsel for 10 the appellant is of no consequence and not applied to the facts and circumstances of the case at hand. 13. The learned counsel for the appellant, further, placed reliance upon an unreported decision of Cr. Appeal No. 260 of 1979, disposed off on 18th March, 1983. In this decision it was held that there was no evidence on the fact of actual give and take of the bribe money of any independent witness and, hence, a view was taken that the necessity for a Court to search for an independent witness in a case of charge for corruption is greater and it was held that in a case of trap the absence of independent witness cause a good deal of doubt. However, having regard to the facts and circumstances of the case, at hand, the complainant as well as the independent witnesses have supported the prosecution case about the demand and acceptance of the money and, hence, the decisions relied upon by the learned counsel for the appellant is of no consequence and the ratio decided in those cases is not applicable to the facts and circumstance of the case, at hand as the facts and circumstances of the case is apparent that the witnesses supported the prosecution case and demand and also supported the prosecution case about acceptance and the appellant was apprehended. 14. The learned counsel for the appellant has contended that the money was alleged to have been demanded and accepted, but, the demand and acceptance alleged to be at a place and time when the train was to reach the station and complainant was to hand over the chest in the train when there was crown of people who has to board the train and several people are to get down and in such circumstances the allegation 11 of demand and acceptance is quite improbable and the probability of the money having been thrust in his pocket can not be ruled out. However, it is pertinent to mention that the demand and acceptance is as per the wish of the appellant and the bribe was only to be handed over when there is demand by appellant. The complainant first went in the chambers and the appellant himself told that he is going in meeting when he returned from the meeting of A.E.M he was engaged with some staff in the chambers and, thereafter, he came out and then asked the complainant to follow in between his chambers and platform no. 1 when it was time of arrival of train. The appellant proceeded with the register and then first assured that the complainant has brought the money, thereafter, demanded and accepted the money. Hence, there is nothing to disbelieve the prosecution case as the independent witnesses have also supported to have over heard the demand and were even witnesses to the acceptance of the money. On giving the signal the members of the trap party appeared and consequently it was challenged, but, no explanation was given neither any plea was taken that the money has been thrust. In his statement under Section 313 of the Criminal Procedure Code also or even during the trial no plea was taken that the money was thrust in his pocket and, hence, no plea that the money was thrust in the pocket has been taken and, hence, the plea taken at the appeal is only an after thought. 15. However, to the contrary, the learned counsel for the appellant has relied upon various decisions reported in 2011 A.I.R. S.C.W., 278 (Narayana Vrs. State of Karnataka) and 297 (C.M. 12 Sharma Vrs. State of M.P.), 2009 A.I.R. S.C.W., 5411 (State of Maharashtra Vrs. Dayaneshwsar Lauman Rao Wankhede) and 2004 Cr.L.J, 4191 (State of A.P. Vrs. Punardana Rao) that when the tainted money having been recovered from the possession of the appellant coupled with the evidence of demand and acceptance and the independent witness have supported the prosecution case followed with a positive phenolphthalein test established the case of prosecution. Hence, the presumption under Section 20 of the Act is well applicable to the facts and circumstances of the case and, hence, taking into consideration the entire facts and circumstances I come to an irresistible conclusion that the prosecution has proved the case beyond reasonable doubts. 16. I do not find any illegality or irregularity in the order of conviction and sentence recorded by the lower Court. 17. This appeal is dismissed. ( Gopal Prasad, J. ) The Patna High Court, The 25th day of October, 2011, A.F.R., S.A.