REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 285 OF 2001 State of U.P. Appellant Vs.
Bhaiya Lal Verma Respondent J U D G M E N T 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 criminal appeal filed by the respondent (hereinafter referred to as the ‘accused’). The accused was convicted by learned Special Judge (E.C. Act) Banda in Special Case No. 3 of 1985 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 stipulation. He was also convicted for offence punishable under Section 161 of the Indian Penal Code, 1860 (in short the ‘IPC’) and sentenced to rigorous imprisonment for two years. Both the sentences were directed to run concurrently.
2. Background facts in a nutshell are as follows:
Sri Rajendra Singh Kushwaha, Assistant 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 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 harassing him by giving threats of recovery on the basis of fictitious bills. Sri Bhaiya Lal Verma the Accountant had promised him 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 gratification so that the applicant may discharge his duties impartially. The then District Magistrate, Banda marked the said application to the Additional District Magistrate (Finance and Revenue) and ordered him to lay the trap. Thereafter, the then Additional District Magistrate (F), Banda Sri J.N. Vishwakarma directed Sri. R.L. Gupta, the then Executive Magistrate and Additional 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.O. Sadar for laying trap. In compliance 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 at 5.45 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/- denomination, and one currency note of Rs.50/- denomination, numbers of which are AA/35 377745 and 3 DH 355826 respectively. Sri R.L. Gupta prepared the fard of the said currency notes on 2-4-1984 at 6 P.M. He marked to currency notes with his initial which were to be given in the bribe to Sri Bhaiya Lal Verma. Thereafter, the 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 Sri R.L. Gupta the Additional S.D.M. Banda called Sri. O.P. Kakkar the then C.O. Sadar in the office of A.D.M. (F), Banda on 2-4-1984 at about 6 P.M., and handed over the application dated 2-4-1984 of Sri Rajendra Singh Kushwaha containing orders of the District Magistrate and Additional District Magistrate (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 O.P. Kakkar took Rajendra Singh with him and proceeded towards the spot. He also took the then S.H.O. P.S. Kotwali Sri. Shiva Nandan and constables Rajendra Kumar Tiwari, Dinesh Kumar and Gulab 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 there they proceeded towards the place of occurrence on foot. Sri Shiv Prasad Yadav and Sri Mithlesh Kumar Dwivedi 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 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 police party and the public witnesses heard and saw from the window that Rejendra Singh informed Bhaiya Lal Verma that he has brought Rs.150/- which he had demanded for not making recovery from him and he should accept the said amount. Thereafter Rajendra Singh offered Rs.150/- to Bhaiya Lal Verma, who accepted the currency notes of Rs.150/-. He took 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. On 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 in accordance with rules. One currency note of the denomination of Rs.100/- having No.AA/35 377745 and one currency note of the denomination of Rs.50/- having No.3 DH 355826 with marked initials of Sri. R.L. Gupta were recovered from the purse kept in the left pocket of his bush shirt. Besides it, two currency notes of the denomination of Rs.100/- each and two currency 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 escaped quietly from there. On interrogation, he disclosed his name as Bhaiya Lal Verma son of Korey Lal Verma and stated his full address. The aforesaid 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 the spot and the aforesaid articles were sealed at the spot. The recovery memo Ex. Ka. 1 was prepared at the spot by 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 memo and the other papers were also filed at P.S. Kotwali. On the basis of the recovery memo the case was registered against the accused Bhaiya Lal Verma for offences punishable under Section l61 I.P.C. and under Section 5 (2) of Act. The case was investigated by Sri Akshay Kumar Singh, the then Deputy S.P. 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 investigation, the charge sheet was filed against the accused for commission of offences punishable under Section 161 IPC and Section 5(2) of the Act.
The accused pleaded innocence. He admitted that he was posted as Accountant in the office of District Agriculture and Project Officer Banda in April, 1984. In his statement recorded under Section 313 of the Code of Criminal Procedure, 1973 (in short the ‘Code’), it was his stand that Sri Ram Adhar 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 collusion with Rajendra Kumar Kushwaha registered the false case against him. He examined two witnesses to substantiate his defence.
The prosecution examined Sri Mithlesh Kumar Dwivedi (PW.1), Shiv Prasad (PW2), Rajendra Singh (PW3), Akshay Kumar Singh (PW4), Rishi Ram Sharma (PW5), Om Prakash Kakkar (PW6), Munna Lal Katiyar (PW 7) and Ram Lakhan Gupta (PW8) in support of its case. Sri Mithlesh Kumar Dwivedi (PW1) proved the recovery Memo Ex.Ka.1. Sri Rajendra Singh (PW3) proved the application dated 2.4.1984 Ex.Ka.2. Sri Akshay Kumar Singh (PW 4) proved the site plan Ex.Ka.3 and the charge sheet Ex.Ka.4. Sri Rishi Ram Sharma (PW5) proved 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.D.M.(F) dated 2.4.1984 Ex.Ka.8, order dated 2.4.1984 of District Magistrate 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 the Photostat copy of order Ex.Ka.1. The currency notes Ka.1 to Ex.6, a purse Ex. 7, bush shirt Ex.8, specimen of seal Ex.9 and the photo of the accused Ex.10 were produced in the evidence.
Placing reliance on the evidence of prosecution witnesses more particularly PWs. 1, 2 & 3, the trial court found the accused guilty and convicted and sentenced him as aforestated. 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.
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 accusations.
6. One of the reasons which has weighed with the High Court to direct acquittal is the statement of PW 1. According to High Court his evidence clearly proved that recovery order was issued against the complainant on 29.3.1984 and it contained signatures of the superior officer as well as the accused. The High Court came to hold that once the recovery order has been issued, the accused could not have frustrated the recovery on any ground. The recovery can be frustrated only before the issuance of the recovery order. The reasoning of the High Court is clearly fallacious in as much as it overlooked the fact that the 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 personal 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 recovered 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 that after examining the statement of these two witnesses it is apparent that none of these witnesses had heard any conversation between the appellant and the complainant. Apart from it, it is further clear from their statements that it was not possible for anyone to hear the conversation from that place where they were standing. Shiv 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 appellant 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 arrest, that does not establish the innocence. The question 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 complainant for having betrayed him. It was not a statement of innocence and on the contrary it was a statement showing anguish that the complainant had got him caught. As noted above, the 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 that the recovery order contained the signature of the accused but at another place it says 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 of the accused. According to the High Court’s own conclusion it was not really 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 practically no denial of this aspect and the recovery has also not been denied.
9. Above being the position, the order of the High Court is clearly indefensible and is set aside. The order of conviction recorded by the trial court is restored. The custodial sentence shall be one year which is the minimum sentence prescribed.
10. The appeal is allowed to the aforesaid extent.
… J.
(Dr. ARIJIT PASAYAT) … J.
(P. SATHASIVAM) New Delhi, July 7, 2008 … J.
(AFTAB ALAM)