IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.09 of 2005 Bal Krishna Gupta … Appellant Versus Central Bureau of Investigation … Respondent Sri A. Rab, Sr. Advocate assisted by Sri Anurag Bisaria, Adv. for the appellant Sri Arvind Vashisth, standing counsel for CBI Dated: December 28, 2011 Hon’ble Servesh Kumar Gupta, J. The challenge in this appeal is to the judgment and order dated 31.1.2005, rendered by the Special Judge, Anti- Corruption/Additional Sessions Judge, Dehradun while concluding the CBI Case no.4 of 1998, CBI Vs. Bal Krishna Gupta. The learned Judge found the accused guilty for the offence of Section 7 of the Prevention of Corruption Act, 1988 [hereinafter to be referred as the Act] and sentenced him to undergo three year’s R.I. and fine of Rs.10,000/-. The accused was further sentenced to undergo four years’ R.I. with fine of Rs.10,000/- u/s 13(1)(d) r/w Section 13(2) of the Act. Both the terms of incarceration were directed to run concurrently. It was also directed that in case of default of payment of fine, the accused shall undergo six months’ R.I. in addition to the above imprisonment. The bone of contention in the instant case is the alleged acceptance of the illegal gratification by the appellant Bal Krishan Gupta in lieu of sanctioning the loan worth Rs.25,000/- which was recommended by the District Industries Center under a scheme, titled as ‘Pradhanmantri Rozgar Yojana’. Sri Purnanand Joshi, the applicant, who was a matriculation passed youth, running in his thirties, applied 2 for a loan under the said Scheme, which was sanctioned by the District Industries Center and forwarded to the State of Bank of India for preparation of a draft/cheque to grant the above loan to Sri Joshi for opening a grocery-cum-general store shop. Sri Joshi approached the bank, situated in Swargashram (Pauri Garhwal) wherefrom the amount of loan, in the form of cheque/draft had to be disbursed. The appellant was the Assistant Manager (advances) in the said branch of the Bank and his task was to make the spot inspection of the spot where the shop was proposed to be opened, and then to submit his report. The appellant made an inspection of the concerned village of the complainant on 9.7.1997 and the prescribed form as well as the composite loan agreement, containing several columns and clauses, including a lengthy draft of terms and conditions, was filled up by the accused on 10.7.1997. It divulges that the loan was sanctioned by the prescribed authority on 10.7.1997 itself. The favourable report of the appellant, which is not happily legible on the form itself, was signed by him on 10.7.1997. The loan agreement was got signed by Purnanand Joshi on 15.9.1997. It renders a reflection that since 10.7.1997, the date of sanction of the loan and 15.9.1997, the date of execution of the agreement, in the span of more than two months, the cheque was not prepared. The complainant has alleged that the bank authorities made him to run time and again from pillar to post in getting his work done de facto. Ultimately, on 15.9.1997, when he approached the accused for the last time to grant him the required cheque/draft, then the appellant asked Mr. Joshi to come into the bank with requisite stamp papers, and gave him a slip containing the address of his residence, asking him to visit at such address. Accused Sri Gupta stated that government grants Rs.4,000/- as subsidy upon the repayment of such loans, so out of the said 3 amount, Sri Joshi has to spare Rs.2,000/- for the appellant in advance, before the cheque/draft is handed over to him. Mr. Joshi was disgruntled and annoyed with the unwarranted desire expressed by the appellant, so he reached to the office of Superintendent of Police, Central Bureau of Investigation (in short the CBI) on 15.9.1997, sometimes after 4 PM and moved an application, apprising him all the facts. This application is Ex.Ka-12. The Superintendent of Police, CBI, on that very application, passed the following order: - “Sri Ashok Babu, Inspector to please verify and take further action as warranted by facts and circumstances according to law” Having been so directed by the Superintendent of Police, Inspector Ashok Babu, at about 5:55 PM, on the same day i.e. on 15.9.1997, along with other Inspectors Sri S.S. Atwal, Sri Arya, Sri J.P. Dobhal, Sri Udaiveer Singh, Constable Kishori Lal and the complainant Purnanand Joshi, left headquarter Dehradun and reached at the IDPL Guesthouse. He made a preliminary enquiry in order to verify the facts, as alleged by Sri Joshi, and found that the appellant was posted as Assistant Manager in the Bank and through some reliable sources, it was revealed that he was a corrupt officer. So, Sri Ashok Babu asked the complainant to appear before the Team on the next day at 6 PM. Then on 16.9.1997, a Trap Team, was organized, taking the complainant with them. The complainant presented Rs.2,000/- and a Pre-Trap Memo was prepared. The complainant presented Rs.2,000/- in the form of 40 currency notes, having denomination of Rs.50/- each, the numbers whereof were written in the Pre Trap Memo Ex.Ka-10 and the chemical powder was applied upon those currency notes. After giving back those currency notes to the complainant, the party proceeded for the residence of the 4 appellant, along with two independent witnesses, one is Mr. Jaspal Singh and the other is Mr. Madan Mohan Maithani. From IDPL Guest House, within 10-15 minutes, the party reached to the house of accused. Sri Purnanand Joshi along with Mr. Maithani went inside the house of accused, while rest of the members of the party were eavesdropping and stealthily having a watch over the decoy. Mr. Gupta was sitting in his drawing room. Sri Maithani introduced himself as a State Government employee, being posted on deputation in IDPL. Meanwhile, some unknown person called on Mr. Gupta, so naturally, the accused asked the complainant, accompanied by Mr. Maithani, to come after sometime. When that unknown person left the spot, the complainant along with Mr. Maithani, again went in the house of accused. Then he asked Mr. Maithani to quit and keep distance for a minute. Sri Maithani, following the command of accused, came outside the drawing room. The transaction between the accused and the complainant was made during this period. After receiving Rs.2,000/- from Sri Joshi, Sri Gupta went in an adjacent room inside the drawing room. Sri Purnanand Joshi informed Sri Maithani that the transaction has been completed. Sri Gupta returned from the inside room to his drawing room and sat on the Sofa again. Sri Joshi and Sri Maithani extended thanks to Sri Gupta for the work and came outside the drawing room. After receiving the draft, Sri Gupta also observed courtesy to see both of them off from the drawing room. Sri Maithani aired the indication to the CBI Team, which pounced over the accused and caught him red handed. On being asked, Sri Gupta dipped his fingers in the water, mixed with some chemical which is used for testing in such cases. His fingers were found to be soiled and the water became pink. The amount was also recovered from the Almirah of the inside room of Sri Gupta. The accused was arrested by the CBI 5 Team and the FIR was drafted, reproducing the entire version of Sri Purnanand Joshi, which he gave to the Superintendent of Police, Vigilance (Ex.Ka-12) along with the order of Superintendent of Police, the endorsement of verification of Sri Ashok Babu and preparation of pre-trap scheme on 16.9.1997. This all was reduced into writing wherein the version of Sri Purnanand Joshi is in handscript and rest of the particulars and endorsement are typed written. This FIR is Ex.Ka-21. The matter was investigated and chargesheet Ex.Ka-24 was submitted against the accused/appellant for the offences, as stated above. The charge was levelled upon the appellant on 9.10.1998 and the trial was concluded after examination of the prosecution witnesses, as aforementioned. Learned senior counsel for the appellant has argued that there is no endorsement/order of Superintendent of Police, Vigilance for making the Trap. This contention is wholly untenable because the Superintendent of Police has directed for the Inspector, on the application of the complainant itself, which contains the words “Sri Ashok Babu, Inspector to please verify and take further action, as warranted by facts and circumstances according to law”. This endorsement implies the direction/order of the Superintendent of Police to the Inspector for taking further action, i.e. the raid, as warranted by the facts and circumstances, found by him after verification of the contents mentioned in the application of the complainant. It was further argued that there is no recording of any conversation between the decoy and the accused. Such an argument is not acceptable, inasmuch as, in such cases, no 6 question arises of any recording. When the complainant went along with Mr. Maithani (an independent witness) in the drawing room of the accused, the latter asked Sri Maithani to quit and keep distance for a minute. Sri Maithani had no option but to follow the directions of the accused, thus, he came outside the drawing room. This time, only the complainant Purnanand Joshi and the accused Mr. Gupta had been left in the drawing room and this was quite a natural and usual conduct of the accused because an educated man, occupying the post of an Assistant Manager of State Bank, cannot be supposed to be so foolish as to permit Mr. Maithani, with a tape recorder in his hand or pocket to record the conversation of accused and himself. The amount was recovered later on and the particulars of the currency notes and their numbers were the same, as have already been mentioned in the Pre-Trap Memo, i.e. Ex.Ka-10. Fortiori, when the currency notes were washed in the chemical mixed water, the same became pink. The fingers of the accused were found to be soiled too. In that case, denial of accused, to the effect of not accepting the notes, is wholly irrelevant because Section 20 of the Act creates the presumption in such cases towards the guilt of the accused and in the case of “B. Hanumantha Rao Vs. State of Andhra Pradesh reported in AIR 1992 SC 1201”, the Hon’ble Apex Court has held that once the amount is found in possession of the accused, the burden shifts on him to explain the circumstances to prove his innocence as contemplated under Section 20 of the Act. Learned counsel on behalf of CBI has relied upon the following precedents: - 1. Sayyed Shabiralli Hafizali Vs. State of Maharashtra reported in (2009) 6 SCC 724 7 2. B. Noha Vs. State of Kerala & another, reported in (2006) 12 SCC 277 3. State represented by CBI, Hyderabad Vs. G. Prem Raj reported in (2010) 1 SCC 398 In all the above precedents, the crux of the ratio laid down by the Hon’ble Apex Court is that once it is proved that where the demand of illegal gratification was there, coupled with voluntary and conscious acceptance of the same, nay the recovery of same currency notes, then the presumption u/s 20 of the Act is applicable and burden shifts upon the accused to rebut that presumption strongly. ‘Possession’ does not always mean that the currency notes were safely kept and preserved by the accused in his pocket. Even after acceptance of the same, if those have been kept by him in his Almirah, that would also be deemed to be in the immediate possession of the accused. PW1 is Anil Kumar Dixit who is the Manager of the State Bank of India, Branch Swargashram Rishikesh, who ultimately sanctioned the loan worth Rs.25,000/-, on the favourable report of the accused. He has proved only this much of fact. PW2 is Jaspal Singh who has been declared hostile by the prosecution but it is also a settled principle, propounded in several precedents by the Hon’ble Apex Court, that the entire evidence of the hostile witness cannot be discarded. The testimony of this witness also proves some of the facts to the extent of preparing the trap party and observing other formalities regarding the currency notes. So, to this extent, his evidence is admissible. PW3 is decoy Purnanand Joshi, who has deposed all the facts from beginning to end, right from moving his application 8 to the District Industries Center for sanctioning the loan, forwarding the application after sanction to the Bank, inspection of his village by the accused Sri Gupta for the verification and judging the genuineness of the need for opening the grocery and general merchant shop. He has also proved that he kept on running since 9.7.1997 to 15.9.1997, i.e. for more than two months, requesting and entreating time and again to the bank authorities, mainly to Sri Gupta for issuing the necessary cheque/draft, but in vain. He has proved that the accused demanded Rs.2,000/- from him with the comment that Rs.4,000/- are to be granted as subsidy by the Government, so out of this money, he will have to spare Rs.2,000/- to Mr. Gupta. He has been cross-examined at length but he could not be shaken in any manner so as to create any distrust upon his evidence. He has proved all the facts including the observance of the formalities regarding the furnishing of the currency notes by him, application of chemical powder upon them and the sequence of events which happened after taking the raiding party to the abode of the accused, nay the offering of Rs.2,000/- and pouncing of the trap party over Mr. Gupta. PW5 Madan Mohan Maithani is the independent witness. He is a government servant. At the relevant time, he was posted in IDPL. He has also proved and corroborated the version, as has been stated by decoy substantially and in a similar manner. PW6 Ashok Babu is the Deputy Inspector of Police, CBI, Dehradun, who was also a member of the team of Trapping. He has corroborated the factual version, as deposed by the decoy. PW7 is Smt. Renu Prasad, Inspector CBI, who has investigated the matter and has filed the chargesheet. She 9 has proved all the formal papers, including the chargesheet in the court by deposition. PW8 Vibhash Chand who, at the relevant point of time, was posted as Accountant in the State Bank of India, Swargashram, Rishikesh. He has proved the application form (Ex.Ka-25) filled up by the accused for preparation of Bankers Cheque for Rs.25,000/-. Thereafter the statement of the accused was recorded u/s 313 Cr.P.C. At last, the version of accused is that in the last week of June, 1997, an application was sent by Purnanand Joshi for installing a Photostat machine in his village but since his village did not have any government office or even electricity, so he was denied the loan. Thereafter, Purnanand Joshi got a recommendation from the District Industries Center for granting a loan of Rs.25,000/- for opening a provisional store. Having received this recommendation, his village was again surveyed by Sri Gupta. The above statement given by the accused also gives a reflection that the complainant Purnanand Joshi was being harassed at the hands of Sri Gupta for one reason or the other. This was the task of District Industries Center to recommend or not to do recommend, after verifying the facts and considering the genuineness of the same. This was not in the domain of the bank to stunt the recommendation of the District Industries Center. It was not for nothing, but for the obviate reasons of seeking something from the complainant in return, because the accused was well aware that a subsidy has to be granted by the Central Government upon this loan. Learned counsel for the defence has pointed out some minor incongruities or discrepancies in the prosecution case here and there. This Court does not think it necessary to 10 burden the judgment by way of mentioning all the minute discrepancies and contradictions, inasmuch as, the same are bound to occur in each and every criminal case. There is no case which is free from these discrepancies. The power of observance, retention and expression of the same, after a lapse of 4-5 years, always varies on the part of every witness. Besides, a perusal of the order-sheet reveals that after levelling of the charge on 9.10.98, the evidence could be completed after almost six years and in this span of period, several dates for evidence were fixed by the court below, and many of the dates were got adjourned by the accused, feigning for one reason or the other, all the same the witnesses were present. So, it was not unnatural on the part of the prosecution witness to depose with little variations on the same facts, despite of their presence at a single moment at the time of raid. The Hon’ble Apex Court in the case of “State of Maharashtra Vs. Narsingrao Gangaram Pimple reported in (1984) 1 SCC 446” has laid down that the testimony of a trap witness, who bears no grudge or animus against the accused, is ordinarily reliable. Minor contradictions or inconsistencies in his version, which are not very material, is not sufficient to discard his testimony. Also, the failure of the complainant, who participated in the Trap, to state about the demonstration of subjecting all members of the raiding party to anthracene powder test in the glow of bulb, would by itself not discredit his testimony particularly when corroborated by independent witness. Therefore, in sum and substance, this Court is of the view that the learned trial court has very elaborately and lucidly discussed and analyzed the entire evidence on record and the judgment and order passed by the learned Judge is 11 not interferable. The appeal is bereft of any merit and liable to be dismissed. Appeal is, accordingly, dismissed. Bail of the appellant already stands cancelled. Appellant is already in gaol. He will serve out the sentence as imposed against him by the trial court. A copy of this order along with the lower court record be sent back to the court below. After dictating the judgment in open Court, learned counsel for the appellant, placing reliance upon a precedent of Hon’ble Apex Court in the case of “State represented by Inspector of Police, Pudukottai, T.N. Vs. A. Parthiban reported in (2006) 11 SCC 473” has requested to reduce the quantum of sentence awarded by trial court. Having considered this precedent, and taking into consideration the depth of the complicity of the appellant in the matter, this Court is of the view that the ratio laid down by Hon’ble Apex Court is applicable only when the court has imposed a minimum punishment, as envisaged u/s 7 and 13 (1)(d) of the Act. However, the said precedent is not applicable in the instant case, inasmuch as, the trial court has not imposed the minimum sentence, as envisaged u/s 7 and 13 of the Act. Rather, it has imposed the sentence of 3 years’ R.I. u/s 7 while 4 years’ R.I. u/s 13(1)(d) r/w Section 13(2) of the Act, whereas Section 7 of the Act envisages the limit of extension of sentence up to 5 years while Section 13(2) of the Act envisages the extension of sentence up to seven years. The trial court has rightly imposed the sentence to the span of 3 years R.I. and 4 years’ R.I., u/s 7 and 13 (2) of the Act respectively with fine of Rs.10,000/- under each of the offence. Needless to mention that already it has been directed that both the sentences will run concurrently. So, this way, the learned trial Judge cannot be said to be too harsh while passing the sentence, as above. However, it is made clear that time span spent by culprit Sri Gupta in gaol ever since the date of his 12 arrest in the case and thereafter from time to time, may be reckoned in the term of sentence so awarded. Further, as regards his pending bail application no.1562/11, nothing was argued. Otherwise also, it is now infructuous and thus, stands rejected. (Servesh Kumar Gupta, J.) 28.12.2011 Rdang