Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.210 of 2001 =========================================================== Syed Nehal Ahmad, son-in-law of Md. Hasan Imam, son of Syed Jamal Ahmad, resident of G-I, Iqbal Yusuf Complex, Sabjibagh, Police Station Pirbahore, District Patna Versus .... .... Appellant/s The State of Bihar .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. Ashok Kumar, Advocate For the Vigilance : Mr. Mr. Ramakant Sharma, Sr. Advocate Law Officer, Vigilance Mr. Kedar Singh, Advocate, A/c to Vigilance
Legal Reasoning
=========================================================== CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH ORAL JUDGMENT Date: 16-12-2013 The Appellant Md. Hasan Imam died during the pendency of the appeal, whereafter an Interlocutory Petition was filed for substituting his son-in-law, namely, Syed Nehal Ahmad, which was allowed by this Court by order dated 30.7.2008. The Appellant has been convicted under Section 5(2) read with 5(1)(d) of the Prevention of Corruption Act, 1947 and sentenced to R.I. for one year and also under Section 161 I.P.C. and sentenced to R.I. for one year and a fine of Rs.1000/- in default of which one month further R.I. by a judgment dated 8.6.2001 passed by the Special Judge (Vigilance), North Bihar, Patna in Special case No.19 of 1988. The case of the prosecution according to the written report filed by one Wazir Yusuf, retired upper Division Assistant of Garkha Patna High Court CR. APP (SJ) No.210 of 2001 dt.16-12-2013 2 Block, Saran was that he was entitled to payment of pension from February, 1988 to May, 1988 but the Nazir refused to make payments. The Appellant, who was the Block Development Officer at that point in time, demanded a bribe of Rs.200/- for passing the bills of retirement benefits but he agreed to payment of Rs.100/-. Since the Complainant was not ready to pay bribe, he made a Complaint before the D.I.G., Vigilance Department, Patna, after which the allegation was verified and a trap party was constituted. On 6.7.1988 when the trap party went to the official residence of the Appellant he was caught red handed accepting Rs.100/- which was allegedly bribe amount. The defence of the Appellant was that in fact the Complainant had been advanced a sum of Rs.150/- for admission in School of the Appellant’s daughter but he had not succeeded in doing so, so the Appellant demanded the return of the amount. It was the said Rs.100/- rupees which was due to him that had been repaid and recovered by the trap party. For this reason the defence also adduced the evidence of three witnesses. During trial the prosecution examined ten witnesses in all. Out of whom, P.W.1 Gupteshwar Mishra was a member of the trap party, who stated that on the date of occurrence the Complainant was directed to give notes to the accused only on demand and the verifier Patna High Court CR. APP (SJ) No.210 of 2001 dt.16-12-2013 3 was also directed to remain present with the Complainant to verify the acceptance of bribe and give a signal thereafter. On the date of occurrence when the verifier P.W.6 made a sign the trap party rushed there and Rs.100/- was recovered from the possession of the Appellant’s part pocket and the rest of the formalities were conducted. P.W.2 Ramnath Prasad is a formal witness, whereas P.W.3 Deo Girish Sharma is a tendered witness. P.W.4 Lalit Prasad, P.W.5 Ravindra Kumar Rai, P.W.7 Surendra Kumar Singh, P.W.8 Chandrika Prasad, P.W.9 Arun Kumar Singh ‘Vinit’ and P.W.6 Jaikant Lal are all the members of the trap party. They all state that a trap party was constituted and on the date of occurrence the Complainant was to hand over the money only on demand to the Appellant and the verifier was to make a sign after acceptance of the bribe. When these acts were done allegedly the trap party went and apprehended the Appellant with the tainted notes. It appears that P.W.6 Jaikant Lal, who was the verifier, could appear in Court only to give part of his evidence in examination-in- chief. Since he died, he could not appear for his further examination and cross examination. Similarly the Complainant has also not been examined. Hence the entire prosecution case depends solely on the recovery of the tainted money. The argument of the Counsel for the Appellant is that in the Patna High Court CR. APP (SJ) No.210 of 2001 dt.16-12-2013 4 event when neither the demand has been verified nor positively proved by the prosecution, the recovery of the money has no value since that by itself does not indicate acceptance or demand. On the other hand, the Counsel for the prosecution submits that P.W.6 Jaikant Lal was examined partly, at which time he had proved the documents of verification and hence relying on the same the factum of demand should be accepted by thos Court. Further the recovery of tainted money points to the demand and acceptance and hence there is no scope for acquittal. On going through the evidence of the prosecution witnesses, admittedly all that the prosecution has been able to prove recovery of a certain amount of money. P.W.6 the verifier was only partly examined by the prosecution. In absence of opportunity to the accused to cross examine him evidently his evidence is of no value. Further even if he proved the documents, which indicated verification of demand at the earlier stage, the document would have no value for the reason that it is not substantive evidence and also since the accused was denied an opportunity to cross examine him on the said documents he would be prejudiced on a very vital fact. Hence his evidence is of no value. As for the factum of recovery, there are repeated decisions on the point that by itself a recovery does not indicate demand or Patna High Court CR. APP (SJ) No.210 of 2001 dt.16-12-2013 5 acceptance. To satisfy the ingredients of Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act demand and acceptance has to be positively proved. The same cannot be assumed. Hence considering the aforesaid, the appeal is allowed and the order of conviction and sentence passed against the appellant on 8.6.2001 by the Special Judge (Vigilance), North Bihar, Patna in Special case No.19 of 1988 is set aside. The appellant is discharged from the liability of his bail bonds. NAFR/Narendra/- (Anjana Prakash, J)