[2008] 10 S.C.R. 123

STATE OF U.P.

II.

BHAIYA LAL VERMA (Cr1minal Appeal No. 285 of 2001)

JULY 7, 2008

lDR. ARIJIT PASAYAT, P. SATHASIVAM AND AFTAB

ALAM, JJ] ,

Prevention of Corruption Act, 1947:

.• s.5(2) and s.161 /PC - Government servant - Caught C

~ while accepting illegal-gratification - Conviction by trial court

- Acquittal by High Court - Held: High Court recorded contradictory finpings - It noted that. marked currency notes were recovered from accused -· There was no reason to discard evidence of prosecution witness - Order of High Court set . D aside -:- Conviction and sentence awarded by trial court re-_ stored -Penal Code, 1860s.161. - The respondent-accusd was prosecuted u/s 5(2) of the Prevention of Corruption Act, 1947 and s.161 IPC. PW- 3, an Agicultural Inspector, made a confidential complaint E to the DistricfMagistrate that th~31ccused, who was workinf in the office of the District Agriulture Project Officer, was harassing him by giving threats of recovery on the . basis of fictitious bills and demanded Rs.150/- from him.

A trap yvas laid and the accused was caught with two F marked currency notes of Rs.100/-· and Rs.50/-. The trial . court convicted the accused and sentenced him to rigor- . ous imprisonment for two years under each count, and .

directed him to pay a firie of Rs. 5,000/-. On appeal by the accused, the High Court acquitted him holding that re- G covery order against PW.3 had already been issued and thereafter the accused could not have frustrated the recovery on any ground. Aggrieved, the State filed the instant appeal. 123 H

124 SUPREME COUR.T REPO_fnS


A Allowing the appeal, the Court

HELD: 1.1. The High Court overlooked the fact that the recovery order against P.W.3 itself contained the signature of the accused. There was thus no question of his

8 being not.involve-din the recovery. [para 6] [130-~ & B]

.1.2. The High Court attached unnecessary importance to the evidence of PWs.1 and 2 to hold that they did not clearly hear the demand for bribe. It is contrary to the evidence on record. PW 2 stated that the appellant enc quired from police party the reason fo.r his arrest. This is a very mateFia.I piece of evidence which hints at an element of surprise m-th_~ conduct of the appellant instead of an exhibition of shocl<:--rrus_clearly supports prosecution. case. of demand of bribe by appellant for stalling the

0 recovery. There was no reason indicated to discard the evidence of P.W 3. [para 7] [130-C, E & F] ·

2.1. The recovery-of the marked currency notes from the -accused has not been disputed. The evidence of PW 3 clearly establishes the demand and acceptance of bribe E and the recovery. The High Court noted that in the personal search the marked currency notes were recovered from the accused. The High Court recorded contradictory findings. At one place it has noted that the recovery

~ memo contained tlie signature of th_e accused but at an- F other place it says that the copy of the recovery memo was neither handed over to the accused nor his signa• ture was obtained on that. With this erroneous conclusion the High Court came to hold that the recovery memo was prepared behind the back of the accused. Accord- G ing to High Court's own conclusion it was not really so. [paras 6 and 8] [130-B & C; 131-A, B & C]

2.2. The order of the High Court 'is clearly indefensible and is set aside. The order of conviction recorded by the trial court is restored. [para 9] [131-0 & E]

l--.

~ CRIMINALAPPELLATE JURISDIC1:"10N: Criminal Appeal A No. 285 of 2.001

Fr.om the final Judgment and-Order. dated 20.7.2000 of the High Court of Judicature at Allahabad in Criminal Appeal No. 2633 of 1987

S.G. Hasnianan, Mohd. Fuzail Khan, Archana Singh and An ii Kumar Jha for the Appellant.

Anis Ahmed Khan and Shoaib Ahmad Khan for the Re- - spondent.

The Judgment of the Court was delivered by

Dr. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to

the order passed by a learned Single Judge of the Allahabad

High Court allowing _the crimin;:t! appeal filed by the respondent (hereinafter referred to as the 'accused'). The accused was con- - D~ victed by learned Special Judge (E.C. Act) Banda in Special Case No. 3of1985 for offence punishable under Section.5(2) of the Prevention of Corruption Act, 1947 (in short the 'Act').

He was sentenced to undergo rigorous imprisonment for two years and was directed to pay a fine of Rs.5,000/- with default E _ stipulation. H~ was also convicted for offence punishable under Section 161 of the Indian Penal Code, 1860 (in short the _ 'IPC') and sentenced to rigorous imprrsonment for Mo years.

Both the sentences were directed to run concuffently.

• p • ('"

2. Background facts in a nutshell are as follows: F

Sri Rajendra Singh Kushwaha; Assant Agriculture Inspector of Rajkiya Krishi Sadhan Purti Bhandar Badokhar Buzurg, Banda moved an application before the District Magistrate, Banda confidentially on 2.4.1984 stating that Sri Bhaiya G Lal Verma, the accused who was the Accountant in the office of District Agriculture Officer and Project Officer in collusion with the Project Officer (Agriculture) Sri. _Lal Mani Ram was harass~ ing him by giving threats of recovery on the basis of fictitious bills. Sri Bhaiya Lal Verma the Accountant had promised him H

A that if he pays Rs.150/- to him no action will be taken against him. Sri Bhaiya Lal Verma had called him in, the office on 2-4- 1984 and has agreed to accept Rs.150/- as bribe. Hence request was made that the Accountant Sri Bhaiya Lal Verma may be caught red handed while accepting Rs.150/- as illegal gratis fication s.o that the applicant may discharge his duties impartially. The then District Magistrate, Banda marked the said application to the Additional District Magistrate (Finance and Rev,. enue) and ordered him to lay the trap. Thereafter; the then Additional District Magistrate (F), Banda Sri J.N. Vishwakarma die rected SrL R.L. Gupta, the then Executive Magistrate and AdditionaJ S.D.M./S.D.O.'Naraini Banda to record the statement of the complainant and to prepare the fard of currency notes which . were to be given in the bribe and thereafter the papers were to be handed over to C.0. Sadar for laying trap. In compliance

0 with the order of A.D.M. (F) Banda, Sri R.L. Gupta, Additional

S.D.M. Banda recorded the statement of the complainant Sri.

Rajendra Singh on 2-4-1984 at5.45 P.M. Sri Rajendra Singh confirmed the facts mentioned in the application moved before the District Magistrate, Banda. He further stated that he has brought one currency note of Rs.100/a denomination, and one E currency note. of Rs.50/- denomination, numbers of whic.h are

AA/35 377745.and 3 DH 355826 respectively. Sri R.L Gupta prepared the fard of the said currency notes on 24-19a4 at 6 P.M., He marked to currency noteswith his initial which were to be given in the bribe to Sri Bhaiya Lal Verma. Thereafter •. the F aforesaid currency notes were handed over to the complainant

Shri Rajendra Singh Kushwaha. The fard was read over to him and his signatures were also obtained. Thereafter SriRL. Gupta the Additional S.D.M. Banda called S~~· O.P. Kakkar the theri

C.O. Sadar in the office of A.D.M.(F), Banda on 2-4-1984 at G _ about6 PM., and.handed over the.application dated _2-4-1984

of Sri Rajendra Singh Kushwaha containing orders of the Dis-. trici Magistrate and Additional DistrictMagistrate (F) for laying trap. He also handed over the statement of Sri. Rajendra Singh and the fard of currency notes, as referred to above, to him. Sri H O.P. Kakkar took-Rajendra Singh with him and proceeded to:.

~ wards the spot. He also took the then S.H.O. P.S. Kotwali Sri. A Shiva Nandan and constables Rajendra Kumar Tiwari, Dinesh Kumar and Guiab Singh from Kutchery Chauraha with him and proceeded by jeep towards the office of District Agriculture Officer and Project Officer. They left the jeep near the Telephone

.:....

Exchange. From t!'lere they proceeded towards the place of occurrence on foot. Sri Shiv Prasad Yadav and Sri Mithlesh B

KumarDwivedi met him near the Telephone Exchange. He took them with him and gave information about his purpose. They reached near the office and sent Rajendra Singh for giving illegal gratification. They remained standing in the Verandah by c the side of the eastern window affixed in the northern wall of the big room lying in the middle of the office. At that time light was . on in the office and it was about 6.45 P.M. Sri Bhaiya Lal Verma -was sitting on the table and was talking with one person. The l

police party and the public witnesses heard and saw from the D window that Rejendra Singh informed-Bhaiya Lal Verma that he has brought Rs.150/- which he had demanded for notmaking recovery from him and he should accept the said amount.

Thereafter Rajendra- Singh offered. Rs.150/- to Bhaiya LaJ Verma, who accepted the currency notes of Rs.150/-. He took E out purse from his pocket and kept the said currency notes in the purse. Thereafter, he kept the purse in the left pocket of his bush-shirt. ori being satisfied that Bhaiya Lal has accepted bribe, the office was raided immediately and Bhaiya Lal was apprehended inside the room. His personal search was made --r in accordance with rules. One currency note of the dendmina- F tion of Rs.100/- having No.AA/35 3777 45 and one currency note of the denomination of Rs.50/- having No.3 DH 355826 with marked initials of $ri. R.L. Gupta were recovered from the purse kept in the left pocket of his bush shirt. Besides it, twq currency notes of the denomination of Rs.100/- each and two currency G notes of the denomination of Rs.50/- each were also recovered

~ from the said purse. In the purse, photograph of the accused was there; During search, the person with whom the accused was talking before taking bribe esc.aped quietly from there. On interrogation, he disclosed his name as Bhaiya Lal Verma son H

A of Korey Lal Verma and stated his full address. The afores_aid currency notes along with purse and the photo of the accused and the.bush shirt which the accused was wearing were taken.

Into possession by'the police at thespot and the aforesaid articles were.sealed at the spot.~The-recovery memo Ex. Ka. 1 B was prepared at the spot _Qy Sri Shiv Nandan Singh at the dictation of Sri O.P. Kakkar. The recovery memo was read over to the police personnel and the public witnesses and their signatures .were obtained. Thereafter, the accused Bhaiya Lal was brought to P.S. Kotwali and was lodged there. The recovery c .memo and the other papers were also filed at P.S. Kotwali. On

the basis ofthe recovery mmo these was registered. against the accused Bhaiya Lal Verma for offences punishable under S_ection 161 l.P.C. and unqerSection 5 (2) of Act. The case was

- investigated by Sri Akshay Kumar Singh, the then Deputy $,.P,.

0 Babenu. During investigation, he recorded the statements of the witnesses and prepared the site plan. The sanction to prosecute the accused was granted by Sri Rishi Ram Sharma, Director Agriculture, Uttar Pradesh on 14th January, 1985. After completion of the inestigation, the charge sheet was filed against the accused for commission. of offences puhishable E under Section 161 IPC and Section 5(2) of the Act .

~ .

The accused pleaded innocence.He admitted tat he was posted as Accountant in the office of District Agriculture and Project Officer Banda in April, 1984. In his statement recorded

F - un9er Section 313 of the Code of Criminal Procedure,· 1-973 (in

sho_rt the 'Cc)de'), it was his stand that Sri Ram Aahar Awasthi was dealing with files relating to recovery.' He had no concern

-~ '

with the files of recovery. He took the stand that there was enmity between the then Plant Protection Officer, Banda who In G collusion with Rajendra Kumar Kushwaha registered the false

case against him. He examined two witnesses to substantiate his defence.

~--1 The prosecution examined Sri Mithlesh Kumar Dwivedi '(PW.1), Shiv Prasad (PW2), Rajendra Singh (PW3), Aksha~ H Kumar Singh (PW4), Rishi Ram Sharma (PW5), Om Prakash_

STATE OF U.P. v. BHAIYA LAL VERMA 129

[DR. ARIJIT PASAYAT, J.] _,.,,

Kakkar (Pvv6), Munna Lal Katiyar (PW 7) and Ram Lakhan A Gupta (PW8) in support of its case. Sri Mithlesh Kumar Dwivedi (PW1) proved the recovery Memo Ex. Ka.1. Sri Rajndra Singh (PW3) proved the application dated 2.4.1984 Ex.Ka.2. $ri AkshayJ<umarSingh (PW 4) proved the site planEx.Ka.3 and the charge sheet Exj(a.4. Sri Ri$hi Ram Sharma (PW5) proved B the sanction order Ex.-Ka."5. Sri Om Prakash Kakkar (PW6) also proved the recovery memo Ex .. Ka.1. Sri Munna Lal Katiyar (PW7) proved the FIR Ex.Ka. 6 and the copy of G.D.Ex.Ka. 7.

Sri Ram Lakhan Gupta (PW8) proved the order of A.0.M;(F) dated 2.4.1984 Ex.Ka.8, order dated 2.4.1984 of Distrjct Mag~ c istrate Ex.Ka.9, the statement of Rajendra Singh Ex.Ka. 10 and the Fard of currency notes Ex.Ka.11. Sri Ram Adhar Awasthi (DW1) proved the initial of accused Bhaiya Lal Ex.Ka. 12 on l the Photostat copy of orde.r Ex.Ka.1. The currency notes Ka.1 to Ex.6, a purse Ex. 7, bush shirt Ex.8, specimen of seal Ex:9 D and the photo of the accused Ex.10 were produced in the evidence.

-11 Placing reliance on the evidence of prosecu!ion witnesses more particularly PWs. 1, 2 & 3, the trial court found the accused guilty arid convicted and sentenced him as aforestated. . '

' E However, in appeal, the High Court directed acquittal.

. 4. In support of the appeal, learned .counsel for the State

-( submitted that the approach of the High Court was clearly erroneous. Recovery of the money has been clearly established. No reason has been indicated to discard the evidence of PW 3. _ F . '

5. Learned counsel for the accused, on the other hand, submitted that the High Court on analysis of the evidence came to hold that the prosecution has failed to establish the accusc; itions.

6. One of the reasons which has weighed with the Higt:i Court to direct acquittal is the statement of PW 1. Accordinfto High Court his evidence clearly proved that recovry order was issued against the complainant on 29.3.1984 and it contained signatures of the superior officer as well as the accused. The H

A High Court came to hold that once the recovery order has been issued, the accused could not have frustrated the recovery on anygrou'nd. The recovery can be frustrated only before the i~ suance of the recovery order. The reasoning of the High. Court is clearly fallacious in as much as it overlooked the fact that the B recovery order itself contained the signature of the accused. If

that is so, there was no question of his being not involved in recovery. The High Court noted that in the per$onal search one currency note of Rs.100/- having No.AA/35 377745 and the other currency Note of Rs.50/- having No.3 DH 3555826 were recov- C ered from him.

7. The High Court attached unnecessary importance to the evidence of PWs.1 & 2 to hold that they did not clearly hear the "demand for bribe. It is contrary to the evidence on record.

The High Court's conclusion is tat after exS!mining the state- D ment of these two witnesses it is apparent that none of these witnesses had heard any-conversation belween the appellant and thecomplainant. Apart from it, it is-further clear from their statements that it was not possibl€for anyone to hear the conversation from that place where they were stl:3nding. Shiv E Prasad (PW 2) stated that appellant enquired from police party the reason for his arrest. This is a very material piece of evidence which hints at an element of surprise in the conduct of the appellant instead of an exhibition of shock. This clearly strikes at the root of prosecution case of demand of a bribe by appel- F lant for stalling the recovery. There was no reason indicated to discard.the evidence of PW 3.

8. It is not to understand how the root of the prosecution .case of demand of bribe was rendered vulnerable. Merely because the accused enquired from the police the reason for his -G arrest, that does not establish the innocence. The quest!on as to why _he was being arrested and then telling the complainant that he had not done a good thing to him and he had deceived him rather goes to show that the accused was blaming the com-

- plainant for having betrayed him. It was not_a_statement.of inno- H cence and on the contrary it was a statement showing anguish

} t

-"·

that the complainant had got him caught. As noted above, the A recovery of the money has not been disputed. The evidence of PW 3 clearly establishes the demand and acceptance of-bribe and the recovery. The High Court had recorded contradictory findings. On one hand it has noted tha' the recovery order contained the signature of the accused but at another place it says , B that the copy of the recovery memo was neither handed over to the accused nor his signature was obtained on that. With this . erroneous conclusion the High Court came to hold that the recovery memo was prepared behind the back bf the accused.

According to the High Court's own conclusion it was not really c so. Interestingly, the suggestion made by the accused during the cross-examination of PW 3 was that he had handed over the money to the accused stating that the amount is the price of . ghee for the Project Officer. This is an indirect way of accepting that money has been received by him. In fact there was practi- 0 cally no denial of this aspect and the recovery has also not been denied.

c,:

9. Above being the position, the order of the High Court is clearly indefensible and is set aside. Th~ order of conviction recorded by the trial court is restored. The custodial sentence E shall be one year which is the minimum sentence prescribed.

10. The appeal is allowed to the aforesaid extent.

R.P.

Appeal allowed.