Banna Ram v. State of Rajasthan

Judgment

Aug.21, 2008 P R E S E N T HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.P.N.Mohanani, for appellant. Mr.O.P.Rathi, Public Prosecutor. BY THE COURT :

1. By this Appeal, accused appellant Banna Ram has

challenged his conviction for the offences u/ss.7 & 13(1)(d)(ii) of the Prevention of Corruption Act, 1988, hereinafter referred-to as “the Act”, with one year's R.I. and a fine of Rs.1000/- and in default, to further undergo three months' S.I. and two years' R.I. and a fine of Rs.1000/- and in default, to further undergo three 2 months' S.I. respectively. Both the substantive sentences were ordered to run concurrently.

2. Brief facts leading to this appeal are that on 20.3.2001, report Ex.P.31 was lodged by Babulal (PW 11) before Dy.Inspector General of Police, Anti Corruption Department, Jodhpur, that he is a registered Contractor of Municipal Corporation, Jodhpur and has done the work of construction of Nala etc. His bill was passed but security amount of Rs.17,775/- was not refunded for which he talked with Manoj Kumar, Asstt. Director, who told him to meet Banna Ram, who is Accountant in the Audit Deptt., where Banna Ram and Mohanlal are the Accountants. According to FIR, Banna Ram prepares the bill and Mohanlal after passing the same, send it to Manoj Kumar. Both were demanding Rs.1000/- for passing the bill. As he was not willing to give the same, he filed this report. Upon this report, D.I.G., ACB, Jodhpur deputed Jeta Ram, Dy.S.P., ACB, Churu, Camp Jodhpur to arrange the trap. Accordingly, the trap was arranged and a tap recorder with cassette was handed over to complainant. The complainant produced ten currency notes of Rs.100/- each, which were initialled and after having smeared with phenolphthalein powder, kept in the left pocket of shirt of complainant. The complainant was instructed about the trap proceedings alongwith motbirs. The trap party reached at the 3 office of the Municipal Corporation at 10.30 AM, where Babulal complainant pointed towards accused Banna Ram, Jr.Accountnat, who obtained Rs.1000/-. Upon asking, Banna Ram told that he has kept Rs.1000/- in the almirah, which he obtained for himself, Mohanlal Jr.Accountant and Manoj Kumar, Asstt. Director. The said amount was recovered and upon washing the hands of accused Banna Ram, the water of the glass turned into pink colour. Another personal amount of Rs.4300/- was also found in the almirah which accused Banna Ram told to be in connection with the mining lease in the name of his wife Smt.Jayantik. After conducting the trap, the case was registered and accused was arrested and after obtaining the sanction, the challan was filed. The accused was charged u/s.7 read with 13(1)(d)(ii) of the Act, to which he pleaded not guilty. The prosecution examined 18 witnesses. The statement of the accused was recorded u/s.313 CrPC. He produced Jawrilal, DW 1 in his defence. After hearing the arguments, the learned trial Judge convicted the appellant as above.

3. Learned counsel for the appellant has assailed the judgment of the trial Court on many counts. Firstly according to him, the sanction itself is defective because the sanction authority has not applied his mind with regard to demand of Rs.1000/- jointly by Mohanlal and Manoj Kumar, who have not 4 been even chargesheeted by the police. According to him, the demand was made not by the accused Banna Ram but by Manoj Kumar, Asstt.Director, Municipal Corporation, who has been left out by the prosecution and who refused to sign the recovery memo. According to the learned counsel, the presumption u/s.20 of the Act cannot be raised, unless there is a demand by the accused. Learned counsel further submitted that the recovery was made from the almirah of the office, which can be opened by anyone and the personal money of the accused was also lying therein. In such circumstances, it cannot be presumed that the accused accepted the illegal gratification as a reward of some work. In support of his contention, he has placed reliance upon a judgment of the Hon'ble Supreme Court in V.Venkata Subbarao v. State reported in 2007 Cri.L.J.754.

4. Per contra, the learned Public Prosecutor has supported the judgment of the trial Court.

5. In the present case, the sanction order is Ex.P.17, which has been issued by the Director of Treasury & Accounts against Banna Ram. In para 2 of the sanction order, it is stated that the demand was made by both Banna Ram and Mohanlal for a sum of Rs.1000/-. The sanctioning authority Sh.A.K.Gupta has been examined by the prosecution as PW 5. When this witness was 5 cross examined, he has stated that he discussed with the investigating officer but said that neither he knows the name of the investigating officer nor factual report was placed before him. Even he has said that except FSL report, there is no mention of examining other documents in the sanction letter Ex.P.17. This evidence reveals that the sanctioning authority A.K.Gupta has not applied his mind before issuing sanction. This fact can be fortified from the F.I.R. Ex.P.31 in which the complainant has given the names of three persons viz; Manoj Kumar, Asstt.Director and Accountants Banna Ram and Mohanlal. In the running note, which is followed in the papers of F.I.R., Ex.P.31, the case was registered against all the three persons. When the recovery Officer viz; Jeta Ram was examined in this regard as PW 15, he has stated that portion `I to J' of transcript Ex.P.34 was written by him, which reads as under: “म(cid:2)हनल(cid:6)ल- आपक(cid:2) ब(cid:12)ल ममल ज(cid:6)य(cid:16)ग(cid:6), आप स(cid:6)ढ(cid:16) दस (cid:12)ज(cid:16) आ ज(cid:6)ण(cid:6) हम(cid:6)र(cid:16) प(cid:6)स ....औ......? पररव(cid:6)द(cid:26) - क म(cid:27) मह(cid:6)र(cid:16) दस स(cid:6)ढ(cid:16) दस (cid:12)जजय(cid:6) प(cid:30)स(cid:6) ल(cid:16) न(cid:16) आऊ म(cid:2)हनल(cid:6)ल- आपक(cid:2) कह(cid:6) स(cid:6)ढ(cid:16) दस (cid:12)ज(cid:16) ब(cid:12)ल प(cid:6)स ककय(cid:6) ह!आ ममल(cid:16)ग(cid:6)" In this portion, the conversation regarding the money transaction is almost between Mohanlal and the complainant. There is no conversation with regard to money transaction with 6 accused Banna Ram except that to bring the bill, Babulal is `duboda' (having no means) and to come in the line at three places. On the basis of this conversation, accused Banna Ram cannot be linked with demand.

6. Further, in this regard, Jeta Ram, PW 15 has also stated that he did not ask on the spot that who is the incharge of the almirah, from where the amount was recovered. When the complainant Babulal (PW 11) was examined, he has stated in the cross examination that Banna Ram told him that why he was giving the money, then he replied that Manoj Kumar had told him to give it. At first stage, Banna Ram refused to accept the money but later he forcibly gave the amount to him. The relevant portion of the cross examination is as under: “(cid:12)नन(cid:6)र(cid:6)म न(cid:16) यह कह(cid:6) कक य(cid:16) प(cid:30)स(cid:16) ककस मलए द(cid:16) रह(cid:16) ह(cid:2), त(cid:2) म(cid:27)न(cid:16) उसक(cid:2) कह(cid:6) कक मन(cid:2)ज क! म(cid:6)र न(cid:16) आपक(cid:2) द(cid:16)न(cid:16) क(cid:16) मलए (cid:12)(cid:2)ल(cid:6) ह(cid:30), इसमलए उसन(cid:16) प(cid:30)स(cid:16) ल(cid:16) मलए पहल(cid:16) त(cid:2) (cid:12)नन(cid:6)र(cid:6)म न(cid:16) प(cid:30)स(cid:16) ल(cid:16)न(cid:16) स(cid:16) मन(cid:6)कर कदय(cid:6), क’र उसन(cid:16) प(cid:30)स(cid:16) ल(cid:16) मलय(cid:16)। (cid:12)नन(cid:6)र(cid:6)म न(cid:16) प(cid:30)स(cid:16) नह(cid:26)) मलय(cid:16), त(cid:2) म(cid:27)न(cid:16) क’र उसक(cid:2) ज(cid:12)रदसत+ प(cid:30)स(cid:16) कदय(cid:16)।" This statement reveals that there was no demand by accused appellant Banna Ram from the complainant Babulal, who forcibly gave money to accused Banna Ram. The person who demanded the money viz; Manoj Kumar has been left out alongwith another accountant Mohanlal. No satisfactory explanation has been given in this regard by the recovery officer. 7

7. That apart, it is also revealed that the bill was passed on

20.3.01 as stated by the complainant Babulal (PW 11) and this trap has been arranged on the next day i.e. 21.3.01. This shows that the work was also not pending on the date of trap and the office almirah was common, where the personal amount of accused Banna Ram was also lying as stated in the F.I.R. as well as in the statement of complainant Babulal (PW 11) and Jeta Ram (PW 15). This type of trap proceedings and the prosecution, where the principal accused, who demanded the money, has been left out, cannot be said to be bonafide, especially when the sanctioning authority has also not applied his mind. In this regard, the authority cited by the learned counsel for the appellant in V.Venkata Subbarao's case (supra) is helpful in the facts of the present case. The relevant portion of the judgment is as follows: “22. It is a mystery as to why no offer was made to the M.R.O. Directly or why the raiding party did not visit his house? The prosecution witnesses even did not know in which village the M.R.O., Surveyor and Revenue Inspector has their respective residences. A short intervention made by the appellant was purported to be in relation to the quantum of amount. The offer, therefore, should have been made to the M.R.O. Directly. He was named in the complaint, but along with him and the appellant, two others were also named. Why no action had been taken as against three other persons, is not known. Why M.R.O., 8 who had made a demand, on whose behalf the appellant had accepted the amount, had escaped prosecution has not been explained.

23. It is also accepted that before the Sanctioning Authority, the vital documents showing involvement of the M.R.O. had not been produced. The Sanctioning Authority, therefore, did not have any occasion to apply their mind to the entire materials on record and in that view of the matter, the sanction is, therefore, vitiated in law. Conduct of the officers of the respondent who had taken recourse to suppressio veri deserves serious condemnation.”

8. In the cited case, the MRO, who demanded the money, was left by the prosecution, who was named in the complaint. Here in the present case, it was Manoj Kumar, Asstt.Director, who made direct demand, has also been left by the prosecution. The only incriminating circumstance against the accused Banna Ram is about the colour of the water of glass, which turned into pink after washing the hands of accused, who accepted the money but this is a corroborative evidence and the presumption cannot be drawn on the basis of such evidence, unless the pendency of the work and demand is proved in a trial for the offence u/s.7 of the Act.

9. In view of the above discussion, particularly in absence of demand rather refusal to accept the money and forcibly handing over the same to the accused Banna Ram by the complainant Babulal, non-implication of principal accused i.e. Manoj Kumar, 9 non-application of mind by the sanctioning authority and recovery from a common almirah are such factors, which lead to the only conclusion that in the present case, the prosecution story suffers from serious infirmities for which accused is entitled to be benefitted.

10. Consequently, this appeal is allowed. The judgment of the learned Special Judge, Prevention of Corruption Act, Jodhpur dt.10.1.2006 convicting the accused appellant Banna Ram for the offences u/ss.7 & 13 (1)(d)(ii) of the Act is set aside. He is on bail, his bail bonds stand cancelled. (DEO NARAYAN THANVI), J. RANKAWAT JK, PS