1 S. B. Criminal Appeal No.49/89 Juja Ram v. Union of India. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT JUJARAM V. UNION OF INDIA. S. B. CRIMINAL APPEAL NO.49/89 against the judgment dated 22.2.89 passed by Shri U.S.Bhargava, Special Judge, CBI Cases, Jodhpur, in Special Criminal Case No.2/88. DATE OF JUDGMENT ::: 03/05/2010 HON'BLE MR. JUSTICE C. M. TOTLA Mr. Sandeep Mehta, for Appellant (s). Mr. Panney Singh, PP for C.B.I. BY THE COURT: Appellant convicted by judgment dated 22.2.89 for the offence of S. 5 (1) (d) and S.5 (2), Prevention of Corruption Act, 1947 (hereinafter referred to as 'the PC Act'), is sentenced to one year's rigorous imprisonment with fine Rs.200/- and for non-payment, three months' rigorous imprisonment, hence this appeal. Alleged incident and sequence of events, per prosecution, as unfolded in course of trial, is that on May 13th, 1987, Chhina Ram PW 6 at 11.00 hours, presented written complaint Ex.P6 to Inspector, C.B.I. Shri Gaur PW 5, complaining that he (PW 6) doing work of handicraft, has often to go at various places Bombay, Delhi, Ahmedabad etc and, on that day, he is at Pali and has to go Ahmedabad so for that reservation he at Pali railway station reservation counter, met clerk, who first declined, but when persuaded, told of cost Rs.50/- of which Rs.38/- for ticket and Rs.12/- over and additional and the clerk, keeping the slip, has asked him to come after hour or one and half – PW 6 mentioned in complaint that he does not want to pay bribe and desire that be caught red-handed. PW 5, making own endorsement on Ex.P6, instructed Sub-Inspector PW 4 to verify the demand and PW 4 doing so, informed that for providing seat in train No.251 UP for Ahmedabad, charges including reservation are Rs.38/- 2 S. B. Criminal Appeal No.49/89 Juja Ram v. Union of India. and asked are Rs.50/-. PW 5, making endorsement on Ex.P6, also mentioned that learnt is of one Mr. Meena sitting on reservation counter is accepting bribe from the passengers, so decided to lay the trap. Initiating proceedings, PW 5 at dak bungalow, called two persons Shri O.P.Mutha PW 1 officer SBBJ and Shri Rajendra Mohnot PW 2, an Assistant at United India Insurance and in presence of these, complainant, S.I. PW 4, constables Alam Singh and Niranjan Kumar, PW 5 taking down the numbers of the five currency notes presented by complainant in memo being prepared Ex.P1, the notes were smeared with phenolphthalein powder and purpose with other details explained to all and then giving notes to PW 6 who kept in pocket of his Kurta, PW 6 was instructed to pass these notes to reservation clerk on demand and if the clerk accepts-apart from cost Rs.12/- more-to indicate by putting his hand at head – PW 2 was asked to accompany complainant and specifically instructed to remain present there and witness the passing over the amount and also to over-hear conversation – memo of these proceedings is Ex.P1, drawn from 1215 hrs. to 1315 hrs. Complainant and raid party proceeded to railway station in two auto-rickshaws. According to trap memo Ex.P2, on passing over of rupees fifty as 10 x 5 from complainant to reservation clerk and seeing the signal from complainant, PW 5 and all others rushed to reservation room and at reservation counter challenged reservation clerk (appellant), whether he has just accepted bribe from Chhina Ram, for providing a seat in train to Ahmedabad and also gave introduction of members of the party – the clerk initially became nervous and then started repeating that he has to return some amount to PW 3 which he could not return due to rush and disclosed own name to be Juja Ram – appellant when asked about fare etc. , replied ticket charges, including Re.1/- for reservation being Rs.38/- and when asked why accepted Rs.50/-, stated that he could not return the money due to rush. His hands were washed by coloureless sodium carborate aqua solution which, turning pink, sealed in two bottles Arts. 6 and 7. Appellant asked about money taken from complainant, pointed for left side drawer, meanwhile called for station superintendent Shri Ram Kishan Sharma also reached – in left hand drawer, found were above five notes (and also 10 + 2 notes rupee one coin) which tallied with numbers recorded in prepared Ex.P1 and in left hand drawer also found notes 10 +2 and a coin of Re.1/-. Inquiring about sale proceeds of the tickets, appellant pointed towards ticket tube and drawer of the table which were 3 S. B. Criminal Appeal No.49/89 Juja Ram v. Union of India. collected. In personal search were found Rs.10 x 2 plus 5 x 2 = Rs.30/- which tallied with entry of declaration in private cash book – reservation chart Ex.P12from the register, slip Ex.P8 and issued ticket bearing No.22294 over which were written figures 44 and on back “251 UP/13/5 Ex.P7 Chhina Ram Meena”, taken in possession. Chief Booking Clerk Shri Shyam Lal was asked to tally the found amount with sale proceeds – the amount found was Rs.1213/- whereas sale proceeds of the duty hours of Juja Ram were Rs.1633/- and returns Rs.360/- so amount ought to have been 1273, whereas found was 1213 and if sale proceeds of this ticket Rs.38/- is included, this amount becomes Rs.1251/-, whereas ought to have possessed Rs.1273/-. Thus, was short 1273 - 1251, of Rs.22/-. All these proceedings started at 1315 hrs. and completed at 1800 hrs. and memo drawn is Ex.P2, memos of impression of seal prepared one being Ex.P3 and site plan is Ex.P4. Just behind seat of appellant Juja Ram, was a tin box which disclosed to be of Yogendra Singh who called and found in box a note of Rs.50/- and also 2 x 20 plus 10 x 1 plus 5 total Rs. 55 with reservation slips and tickets etc., taken in possession as Yogendra could not, per prepared memo Ex.P5, satisfactorily explained of these. PW 5, prepared detailed report Ex.P11 and on basis of it was registered FIR Ex.P16 for the offence of S.161 IPC and S. 5 of the P.C. Act, 1947. Inspector Shri A.R.Kaushik, PW 7, in course of further investigation, obtaining various records, seized vide memos Ex.P17 to Ex.P20, recorded statements of witnesses etc. and after obtaining prosecution sanction, accorded by PW 7, charge-sheet submitted. Appellant charged on above allegations, claimed trial. Among the seven prosecution witnesses examined, Shri Gaur Inspector PW 5, initiating proceedings, laid trap and Sub-Inspector PW 4 accompanied. PW 1 and PW 2 are witnesses of the proceedings, PW 3 is complainant who is cross-examined by prosecution. PW 6, the then DRM accorded sanction Ex.P15. Appellant, in course of examination under Section 313 Cr.P.C., denying of all above, states that he was not on duty and also states that proceedings all were for other Shri Choudhary. No defence witness examined. Learned Special Judge, arriving at conclusions that appellant booking reservation clerk having a cause and occasion of demanding, did ask the complainant for payment of Rs.50/- as against total charges of Rs.38/-, obtained and accepted bribe of Rs.12/- which found and recovered from his possession – accordingly convicted and sentenced. 4 S. B. Criminal Appeal No.49/89 Juja Ram v. Union of India. Heard learned counsel for the appellant and learned Public Prosecutor and gone through the evidence, judgment assailed and also memo of appeal. Learned counsel for complainant extensively reading statements of witnesses, argues that (1) appellant not named in FIR - his name was not known to complainant and not perhaps to any of the trap party, (2) complainant does not support prosecution, (3) no verification of the said demand made, (4) ticket window enough only for one person and the reservation clerk, can be observed only when one kneels down a little , (5) cash was found short by Rs.22/- and that also when this ticket amount Rs.38/-, is included. Learned counsel thrustly submits that very reasonably based on evidence is that complainant did give to trap party one currency note of Rs.50/- and the same converted by party into notes of Rs.10 x 5, this coupled with the fact that per complainant, he was asked to tell (report), if any difficulty for ticket is, indicate object of trapping somehow, in this regard, submits that PW 5 was posted at Jaipur and no specific reason has appeared for his being at Pali on that day and also that according to complainant Ex.P6 and also evidence of PW 3, he resides at Jodhpur on that day for his work was at Pali, from where had to go to Ahmedabad is too much a coincidence. Argues that PW 1 specifically asked to be with complainant and to over-hear conversation or anyone else did not hear any conversation – at that time, a train just arrived – work-rush was – instantly no sooner than ticket was handed over entire party rushed and appellant instantly said of returning amount which he could not by then. Submits that amount Rs.12/- is meagre one at least not significant one so assumption or inference under Section 20 should not be. Submitted that admittedly, two ticket windows were and box of other booking clerk also searched in which tickets and amount found which could not be explained by him. Submits that amount net found was still short of total sales till then. In support of contentions, reliance placed are on A. Subair v. State of Kerala, JT 2009 (8) SC 415; Venkata Subbarao v. State, (2007) 3 SCC (Cri)175; T.Subramanian v. State of T.N, (2006) 1 SCC (Cri)401; Subash Parbat Sonvane v. State of Gujarat, 2002 SCC (Cri) 954; & G.V.Nanjundiah v. State, 1988 SCC (Cri)77. Learned counsel for the appellant, doing little mathematics, argued that per memo prepared Ex.P2, in left hand drawer, including these 10 x 5, also were 1 x 10 and 1 x 2 notes with rupee one coin and other sale proceeds found there sealed and tallied were Rs.1213. Learned counsel 5 S. B. Criminal Appeal No.49/89 Juja Ram v. Union of India. submits that sale proceeds with Rs.38/- should have been 1273 and at Rs.38/-, taking from 10 x 5 becomes 1251 and thus a shortage of Rs.22/-. Learned counsel submits that 1213 plus this found 50 and 10 + 2 becomes 1273. It is the sum appellant should have, including charge of this issued ticket Rs.38/-. Argued that thus, amount becomes 1273/-. Learned Public Prosecutor submits that not knowing name of the reservation clerk does not make any effect and complainant had no means to find the name – provenly, appellant was booking clerk, selling tickets and making reservation who for providing reservation did obtain Rs.12/- over and above the right amount, demand for which was made earlier. Submits that bribe amount is Rs.12/-, but this was and value pertains to May, 1987 and recovered from appellant so inference is drawable. Thoughtfully considering arguments, perused evidence adduced, record, judgment assailed and memo of appeal. Complainant PW 3, who is cross-examined by prosecution for some points, states that on 13.5.87, he went to Pali and police personnels did tell him that if any trouble for obtaining ticket, then to give application (complaint) and he writing Ex.P6, presented it, matter of which was prepared and given to him by police. Per PW 3, he gave to police personnels (trap party) Rs.50/- note who exchanged it to 10 x 5 notes and smearing it with powder gave him back with instructions of indicating, by keeping hand over head, as soon as gives to booking clerk. PW 3 states that he went to booking, handed over Rs.50/- note, appellant handed over ticket Ex.P7 and as appellant kept amount in drawer, he indicated, uproar following all entered in the booking room, where accused, picking up from drawer, handed over notes. PW 3 states that when he earlier asked for reservation, accused declined and then asked to come after two O'clock and that charges shall be Rs.38/- and reservation charges separate but did not tell or ask for bribe. According to PW 3, he understood that reservation charges shall be Rs.12/- which he also told to raid party but cannot say as to how and why so is not appearing in his statement. In cross-examination, PW 3 tells that neither bribe was given, nor asked and he gave Rs.38/- of ticket and Rs.12/- of reservation charges and he does not know who was at counter when he lined up for ticket. According to PW 3, in line, in addition to him, were 5-7 persons – appellant was sitting on window-all money was on counter and 6 S. B. Criminal Appeal No.49/89 Juja Ram v. Union of India. when he went in, uproar was and 8-10 persons there. Shri Gaur PW 5 state that he posted at Jaipur branch, was at Pali with other personnels for some Government work, where at railway station, met him Chhina Ram who told of asking by booking clerk of Rs.50/- instead of Rs.38/- which he does not want to give – he (PW 5) asked to give in writing and complainant Ex.P6 presented by PW 3 – then per his instructions, Rakesh Kapur inquiring, found that with sitting reservation, charges were only Rs.38/-. PW 5 narrating of preparation and making of memos, states that specifically instructed witness, Shri Mohnot PW 2 to remain with complainant and over-hear conversation, and other witness Shri Mutha PW 1 to be with Kapur towards platform. PW 5 states that complainant was in line at window and he himself near him – the clerk asked the complainant if had to go on that very day and as complainant said of same day and slip being with appellant, the appellant preparing ticket, asked for money and complainant gave Rs.50/- to clerk who counting twice, kept in table drawer and asked if right and appellant replied consenting-the complainant indicated, then this witness PW 5 indicated to constable who to Rakesh and they going to office, knocked and entered on opening. Describing the proceedings, PW 5 says that when they asked after introducing themselves, the appellant initially became nervous, then said because of crowd, could not return balance money. PW 5 accepts that when money given he could not see the face of the booking clerk and and in the room other booking counter was but closed, from where tickets were not being issued, though other booking clerk was sitting on that second counter. Yogendra Chaudhary, whose little box was lying there, was called afterwards and from box a note of Rs.50/- and other papers seized, because in investigation, it was to be found out as for what pertains this fifty rupees note. PW 5 accepts that on tallying, found short Rs.22/- and in drawer also were Rs.13/- about which appellant disclosed of ticket sales. PW 1 and PW 2 per till reaching at platform, narrate broadly as is mentioned in memo Ex.P1. PW 2 states that at dak bungalow, complainant said that for ticket Rs.50/- are asked, of which Rs.38/- of ticket and Rs.12/- is above. He also states that complainant went to booking, talked to accused on booking and then gave to appellant five notes of Rs.10/- each and accused handed over a ticket to complainant but not any amount than – instantly complainant signalled and they all going to booking room, knocked which opened and they entered, where 7 S. B. Criminal Appeal No.49/89 Juja Ram v. Union of India. PW 5, giving introduction asked appellant about notes and appellant picking from drawer, gave notes Art. 1 to Art. 5 to PW 5. PW 2 describing about hand wash etc. tells of preparing memo and signatures on it – in cross-examination, says that two were ticket windows, of which one was closed and from outside without bending , booking clerk was not visible and in room, with appellant, was one other. PW 2 states that when they arrived at window, at station, ready was a passenger train and when cash tallied, if these Rs.12/- included, short or of Rs.10/- otherwise Rs.22/-. PW 2 also says that appellant said that some is to be returned which by then he could not because of rush and then there appellant also stated that he could not count the notes. Omprakash PW 1 states that he was asked to remain with Shri Kapur on other side and they noticing signal, ran towards booking which, on knocking, was opened after a minute – PW 5, giving introduction, asked about notes and appellant said of being in drawer which taken out and hand wash etc. followed. According to PW 1, when he arrived at dak bungalow, complainant Chhina Ram was already there who handed over a fifty rupees note which exchanged by PW 5 in notes of Rs.10/- each. PW 1 accepts that his statement, in course of investigation, right is written that appellant stated of not being able to count properly and have to return some money which could not be because of rush and at that time, also came a passenger train, tickets of which were being sold. PW 4 says that on instructions of PW 5 he came with complainant to railway station and asked appellant about availability for sleeping berth and the appellant told of non-availability. Here, it may be observed that on complaint Ex.P6, endorsement of PW 5 mentions that PW 4 coming, informed of ticket charges with sitting reservation as Rs.38/- and what PW 4 state as above not specifically appears on Ex.P6. PW 4 describing of happenings, says that in the booking room, in a box found were some slips and few currency notes, including a fifty rupees note and when PW 5 inquired about it, booking clerk Yogendra Chaudhary said that fifty rupees note is not his, but tickets (found in drawer) are issued by him, i.e. by Shri Chaudhary. Thus, presence there of Shri Yogendra Chaudhary, booking clerk, is also established. As is admitted by almost every witness, was a second booking counter in the room which was closed. PW 5 states that in the room, that other (booking clerk ) was sitting. PW 1, PW 2 and also PW 4 say that other person was sitting and box was of Shri Yogendra, other clerk. PW 5 speaks that this box of Shri Chaudhary was searched 8 S. B. Criminal Appeal No.49/89 Juja Ram v. Union of India. and note of Rs.50/- and some other documents from it seized for further investigation. Memo Ex.P5 is of this search which mentions that in this box, just behind seat of appellant, was a fifty rupees note and notes 20 x 2 + 5 x 1, certain pieces of paper, including reservation slips bearing names amount etc. tickets from Marwar to Palanpur and two reservation tickets with sleeper surcharge for 14/5/ -. Memo prepared Ex.P4 mention and also is stated by PW 5 that not satisfactory explanation by Yogendra was, therefore, a fifty rupees note and some of the above tickets taken in possession. Hon'ble Apex Court in A. Subair v. State of Kerala, JT 2009 (8) SC 415 observed that where the gratification is too trivial, not necessarily ought to be drawn is presumption. For the incident of April, 1989, presumption was not taken. In V. Venkata Subbarao v. State, (2007) 3 SCC (Cri)175, is held that in absence of proof of demand, question of raising presumption hardly arises and for such presumption, proof of demand is also relevant. In T.Subramanian v. State of T.N., (2006) 1 SCC (Cri) 401, is held that if reasonable probable explanation based on evidence is offered, then only on proof of receipt of money by the accused and in absence of proof of demand and acceptance, guilt is not established. Crucial question may also be as to whether the appellant demanded illegal gratification. Similar is also held and observed in 2005 SCC (Cr.)1508, Duraisami v. State of T.N. and in 1988 SCC (Cri.) 77, G.V.Nanjundiah v. State - that allegations are to be considered along with all other material circumstances. In 2009 (6) SCC 462, Subbu Singh v. State, it is held that when demand and taking of bribe money is proved, then presumption can be and then it is for the accused to establish contrary (2009) 3 SCC 779, C.M.Girish Babu v. CBI, Cochin, is held that when substantive evidence not reliable, then mere recovery of tainted money, in absence of evidence of payment and voluntary acceptance, cannot be held guilty. Payment of bribe and acceptance it to be knowing such, is to be proved. Also is held that burden of proof under Section 20 is not same as the burden on prosecution to prove its case. In (2009) 15 SCC 200, State of Maharashtra v Dynaneshwar Laxman Roa Wankhede, is observed that demand is sine qua non and while arriving conclusions, facts and circumstances appearing on record, all are to be considered and before the accused is called to explain, foundational facts are to be established by the prosecution. Burden of proof for rebuttal for presumption is not the same as the burden on prosecution to prove case 9 S. B. Criminal Appeal No.49/89 Juja Ram v. Union of India. beyond reasonable doubt. Also is that this burden on prosecution is on pedestal above than for departmental inquiry or for rebutting assumption. Evidence and circumstances against appellant is as above. Amount alleged to have been demanded and/or accepted as gratification is Rs.12/-. It was in the year, 1987, but still the amount can be safely said to be trivial one and given all the circumstances, not worth taking presumption against appellant more so when evidence regarding demand is not credible. As is surfaces from other evidence and circumstances acceptance is not credible and convincing. Therefore, in the opinion of the Court, no presumption, only on basis of recovery is to be drawn. From the evidence, it emerges that complainant has not fully supported, his complaint and prosecution version. Per complainant, he was asked at platform by the authorities to lodge complaint, if any difficulty in procuring ticket is and then he submitted report Ex.P6, drafting it according to matter provided. Even if the complainant does not support, even then, necessary elements and prosecution case can be proved by other evidence but not is that version of complainant is not to be given any consideration at all. According to complainant, appellant did not ask for extra money and he was under impression that the amount is for reservation. According to PW 3, neither illegal gratification was demanded, nor given by him. Witness PW 2 was specifically asked and instructed to remain with complainant and over-hear the conversation and he deposing so do not say of having heard any conversation. PW 5 says that complainant and PW 2 reached near the window, then obviously, PW 5 was at little distance, then it becomes very hard to accept that PW 5 did over-hear any conversation. PW 2 and PW 1 categorically say that instantly, appellant did say that has to return the money which he could not because of rush. According to PW 5 and PW 4, after initial nervousness, appellant told so. Per all witnesses no sooner complainant received ticket, he signalled and all rushing went to room. Such is also appearing in prepared memo. As is apparent, per complainant and other witnesses, in line for getting tickets, were few persons, some before complainant and 2-3 after him. Clear also emerges that at that time, also arrived and/or was ready to depart a passenger train tickets for which were being issued. With above is also a fact that in the room along with appellant, was also a other booking clerk and box of that other booking clerk was also searched and from the box, found a currency note of rupees fifty along 10 S. B. Criminal Appeal No.49/89 Juja Ram