Court No. - 66
Case :- JAIL APPEAL No. - 1167 of 2011 Appellant :- Gopal Mani Tripathi Respondent :- State Of U.P.
Counsel for Appellant :- From Jail,Archana Singh Counsel for Respondent :- A.G.A.
Hon'ble Rajul Bhargava,J.
Heard Ms. Archana Singh, learned Amicus Curiae appearing for the appellant and learned A.G.A. for the State.
The present jail appeal has been filed by the appellant through Jail Superintendent, District Jail, Varanasi against the impugned judgment and order dated 24.12.2010 passed by Special Judge (Anti-Corruption), Varanasi in S.S.T. No.07 of 2009 convicting the appellant under Sections 7 and 13(1)(b) r/w Section 13(2) of Prevention of Corruption Act and Sections 419, 420 I.P.C. sentencing him to undergo two years rigours imprisonment under Section 7 of the Prevention of Corruption Act and to pay fine of Rs.5,000/- and in default of payment of fine to further undergo one month imprisonment, two years and six months rigours imprisonment and fine of Rs.10,000/- in default of fine to further undergo two months imprisonment under Section 13(1)(b) r/w Section 13(2) of Prevention of Corruption Act, one year rigours imprisonment and fine of Rs.2,000/- in default of payment of fine to further undergo fifteen days imprisonment under Section 419 I.P.C., two years rigours imprisonment and fine of Rs.2,000/- and in its default to undergo fifteen days further imprisonment under Section 420 I.P.C.; and all the aforesaid sentences to run concurrently.
The prosecution version in brief is that the first informant, Indradev Prasad Jaiswal, PW-1 filed a complaint before the Dy. S.P., Anti-Corruption Bureau, Varanasi stating the accused- appellant is working as Inspector in Local Intelligence Unit and he met him in November, 2005. The accused-appellant also told him that one of his brothers is Chairman in Railway Board, Mumbai and demanded Rs.30,000/- for appointment on the post of Station Master out of which the first informant paid him Rs.22,700/- at his residence on 20.11.2005. He further assured the first informant that he shall ensure that his appointment is done by February, 2006, but he was not appointed. The accused kept on assuring him to secure job for him, however, on 30.6.2006 he learnt from a newspaper that the appellant has been arrested red-handed by the Anti-Corruption Bureau and he has also cheated several persons on the pretext of securing appointment. On the complaint made by the informant, P.W.-1, F.I.R. was registered and after thorough investigation the charge-sheet was submitted against the accused-appellant under Sections 419, 420 I.PC. and 7/13(2) Prevention of Corruption Act on which the court took cognizance on 27.3.2009. However, the appellant was charged for offence under Sections 7 and 13(1)(b) r/w Section 13(2) of the Prevention of Corruption Act and Sections 419, 420 I.P.C. which the accused denied and claimed trial.
The prosecution in order to establish its case, the deposition of PW-1, Indradev Prasad Jaiswal, PW-2, independent witness Gangadhar Pandey, P.W.-3, Constable Mirka Ram, PW-4, Circle Officer and P.W.-5, the then D.I.G., Varanasi were examined. After closure of the prosecution evidence, statement of the accused-appellant was recorded under Section 313 Cr.P.C. in which he stated that the first informant has falsely implicated him after hatching a conspiracy and the investigation has not been conducted properly. The appellant examined D.W.-1, Constable Virendra Singh and D.W.-2 Durga Prasad Pandey, Constable, Anti-Corruption Bureau, Varanasi who have proved certain documents.
The learned Amicus Curiae has assailed the impugned judgment and order mainly on the ground that the prosecution version that the accused who admittedly was a Constable in L.I.U. could not have secured any job to the first informant in railways and, thus, there was no question of the first informant making any payment to him. She further argued that the L.I.U. and Indian Railways are two different departments and none of the brothers of the appellant is working as Chairman in Railway Board in Mumbai. She has further submitted that the manner in which the first information report was lodged by the P.W. 1 after inordinate delay that too after learning from a newspaper that the appellant has been arrested by the police while accepting some bribe. The version setup by the informant is incredible. The prosecution has utterly failed to prove that Rs.22,700/- was given by P.W.-1 to the appellant at his residence on 20.11.2005 and there are several material contradictions in this regard. She has further submitted that the first informant had parted money in order to secure job for his son, Manish Jaiswal and in whose presence the said amount was given to the appellant and he was the best witness to prove the factum of passing of money by P.W.-1 to the appellant. Lastly, she has submitted that the prosecution has utterly failed to prove the charge under the Prevention of Corruption Act or under Sections 419, 420 I.P.C.
Per contra, learned A.G.A. has submitted that the statement of PW-1, first informant and independent witness, PW-2 Gangadhar Pandey are wholly reliable and merely because there are some minor inconsistency on the basis of which their testimony cannot be thrown over board. It was also pointed out by learned A.G.A. that the appellant is a big fraudster and he has been involved in several kind of offences as has also been recorded in the impugned judgment and order. Learned A.G.A. has submitted that so far as the defence arguments that the appellant was Constable in L.I.U., therefore, he could not have secured job from the railway board is unbelievable and would not constitute offence under the Prevention of Corruption Act is wholly unfounded. He has referred to the Section 13(1) of Prevention of Corruption Act, 1988 which states that "criminal misconduct of a public servant is said to commit the offence of criminal misconduct,— (a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7."
Considering the rival submissions made by learned Amicus Curiae and learned A.G.A., I may record that the testimony of P.W.-1, first informant, Indradev Jaiswal who has no axe to grind against the appellant and he has fully corroborated the prosecution version and there was no earthly reason for him to implicate the appellant. The statement of P.W.-1 has been fully corroborated by the independent witness, P.W.-2 Gangadhar Pandey. The trial court has appreciated the prosecution evidence and the defence evidence threadbare and has correctly recorded conviction of the appellant for the aforesaid offences.
I do not find any merit in the present jail appeal and the same is, accordingly, dismissed.
However, I may record that in compliance of the Court's order dated 11.12.2018, the Jail Superintendent, Varanasi has submitted a detailed report dated 2.1.2019 stating that the appellant has already undergone the jail sentence and the default sentence in lieu of fine imposed by the trial court and has been released from District Jail on 12.10.2012.
In view of aforesaid report, the appellant need not be taken into custody to serve out sentence as imposed by the court below.
I hereby direct the State Legal Services Authority to pay Rs.5,000/- to the learned Amicus Curiae for rendering her valuable assistance to the Court.
Order Date :- 27.2.2019 Vikas