1. Challenge in this appeal is to the judgement and order dated 07.05.2008 passed by Shri Deepak Kumar, learned Special Judge, (Anti Corruption) Gorakhpur in Special Trial No. 4 of 2004 ( State Vs. Gulab Misra and others) arising out of Case Crime No. 30 of 2000, under sections 409, 420, 120-B IPC and section 7/13 of Prevention of Corruption Act, whereby the appellants were convicted and sentenced to two years' rigorous imprisonment and a fine of Rs. 5000/- each under sections 409/120-B IPC, one year rigorous imprisonment and a fine of Rs. 1000/- each under section 420/120-B IPC and one year rigorous imprisonment and a fine of Rs. 5000/- each under section 7 and 13(1)(C) read with section 13(2) of Prevention of Corruption Act with default stipulation. However, all the sentences were directed to run concurrently.
2. Filtering out the unnecessary details, the prosecution case is that a report was lodged by Sub-Divisional Engineer, Phones, Salempur, Deoria on 24.03.2000 that on 22.03.2000, the OC, Telephones Centre's Regional Engineer Shri Subhendu Bahadur informed that some unauthorised calls were being matured to abroad. Then Regional Engineer, Telephones, Deoria Shri R.N. Mishra along with Shri D.P. Mishra, TTA traced the calls and found that calls are being matured from Salempur side. When the informant under the directions of Shri R.N. Mishra traced the calls with other officers, during intervening night of 22/23.03.2000, it revealed that these calls are being matured from Bhatni Exchange. The information was sent to the Regional Engineer, Deoria intimating about these facts. In the intervening night of 23/24.03.2000 at about 1.00 O' clock in the night Regional Engineer Shri R.N. Mishra accompanied with Saroj Mishra, Gulam Mohammad along with Sub-Inspector H.N. Pandey, Constables Gopal Kannaujia and Lallan Prasad and Shri P.N. Kushwaha, TTA reached Bhatni Exchange and called Lineman Ram Chandra from his house and he was interrogated about the matter, who stated that his companion Gulab Misra and Janardan Pandey may also be called so that the whole incident may be revealed as to from where line had been connected and where telephone sets have been installed. On this Gulab Misra and Janardan Pandey were called. Gulab Misra came, but Janardan Pandey did not come. All the officers accompanied with Gulab Misra and Ram Chandra got the telephone exchange opened. The whole party proceeded to the roof on the pointing out of the accused Ram Chandra and Gulab Misra, where on the stair of the roof, the shape of a room was given by covering it, in which on the four telephone lines, three telephone sets and one handset was tied. All the instruments were having dial tone and STD and ISD calls could be matured from all the sets. When they were connected with the computer and STD lock was opened, it revealed that from telephone Nos. 81023, 81037, 81039, 81045, 81081, 81017 and 81143, the unauthorised calls were transferred and long conversations were being held abroad. Most of the calls related to Saudi Arabia, Bangladesh and U.K. and some parts of the country like Karnataka, Tamil Nadu and Bihar. A blanket was found on the floor in the enclosed space and a lighted lamp was also found. Three telephone sets, one handset, drop wire, two-way wire set, one ear phone set, two telephone directories of Mau Division relating to the year 1998, one electronic card, two personal diaries, purse and several piece of papers on which telephone numbers of country and abroad were written, one credit slip bearing seal of Allahabad Bank, Siwan relating to Cheque No. 404978 of Canara Bank amounting to Rs. 8,000/- and one credit slip of Account No. SB NRE-30 dated 02.03.2000 in the name of Ijaz Uddin was also recovered. All these articles along with two shirts which were recovered from the spot were collected. Linemen of Bhatni accused Ram Chandra and Gulab Misra stated that they used to give Ijaz Uddin the facility of transfer of calls by means of these instruments and in return Ijaz Uddin used to give money to them. As soon as Ijaz Uddin heard the sound of exchange being opened, he fled away leaving his articles on the roof. The articles recovered were brought to the police station by the informant. Illegal acts were done in connivance with the linemen Ram Chandra, Gulab Misra, Janardan Pandey, J.T.O, Bhaatpar Rani, Babu Lal Kushwaha and Shri Parmanand Kushwaha, TTA, Laar, who used their position and took bribe to illegally oblige Ijaz Uddin. Hence written report was lodged.
3. The investigation was entrusted to C.O. Dr. S.P. Singh, PW-6 on 24.03.2000, on that date he recorded the statement of the informant and inspected the spot. He further recorded the statement of Durga Prasad Mishra on 29.03.2000. He sought permission to examine the accused persons. On 04.05.2000, he recorded the statement of witnesses. On 01.06.2000, he further recorded the statement of R.N. Mishra. On 12.06.2000, he perused the statement of Alim Uddin recorded under section 164 Cr.P.C. Further on 29.07.2000 statement of Subhendu Bahadur and Alauddin Shahi were recorded. On 06.02.2001, the charge sheet was submitted by this witness. This witness proved the site plan as Ext. Ka-9 and charge sheet as Ext. Ka-10.
4. The prosecution has examined as many as six witnesses. PW-1, Ram Naresh Singh is the informant of the case, who has proved the written report as Ex. Ka-1. He has further proved the recovery memo, which was said to have been prepared by him. He has also proved the copy of print out as Ext. Ka-4 .
5. PW-2, Durga Prasad Mishra is said to be a witness of fact.
6. PW-3, Rama Nand Mishra is also said to be a witness of fact.
7. PW-4, Subhendu Bahadur is the then DET, Rampur. This witness has also proved the recovery and has proved the copy of the letter as Ext Ka -3 and copy of print out Ext Ka -4.
8. PW-5, Laxmi Narayan Mishra was posted at Assistant General Manager (Administration), who has proved the prosecution sanction as Exts. Ka-5 to Ka-8.
9. The evidence of PW-6, Dr. S.P. Singh has already been discussed earlier. The genuineness of the chik report was admitted by the accused, hence it was marked as Ext. Ka-11.
10. The statements of the accused were recorded under section 313 Cr.P.C. in which they denied the occurrence. However, no evidence was adduced in defence.
11. Learned lower court after hearing the counsel for the parties found the accused guilty and sentenced him as stated in para 1 of the judgment.
12. Feeling aggrieved the accused-appellants have come up in appeal.
13. I have heard Shri Rajrshi Gupta, holding brief of Shri Vinay Kumar Mishra, learned counsel for the appellants, learned Additional Government Advocate for the State-respondent and perused the trial court record.
14. Learned counsel for the appellants has submitted that the impugned judgement is based on no evidence and there is no reasoning in the trial court judgement. There is no evidence to prove any of the charges against the accused. The judgement is based on conjectures and surmises, which is liable to be set aside.
15. Per contra, learned Additional Government Advocate while supporting the judgement of the trial court has stated that the conviction is based on evidence on record, hence the appeal merits rejection.
16. It has been submitted by the learned counsel for the appellants that neither is there any eyewitness account nor circumstantial evidence to prove any offence against the accused persons. Further, it has been submitted that there is enmity between the accused and PW-3, R.N. Mishra due to which the accused-appellants have been falsely implicated inasmuch as PW-3, R.N. Mishra has admitted that Gulab Misra had submitted a false complaint against him to the higher authorities.
17. In so far as the offence under Section 7 is concerned, it is a settled position of law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgements of this Court. By way of illustration reference may be made to the decision in C.M. Sharma Vs. State of A.P. reported in (2010) 15 SCC 1 and C.M. Girish Babu Vs. C.B.I., reported in (2009)3 SCC 779.
18. PW 1, the informant had to undergo a test of cross-examination in which he has stated that he could not say what was the duration of the meter reading as mentioned in Ext. Ka-6 and this meter reading has nothing to do with the accused Gulab Misra, Janardan Pandey and Ram Chandra. As far as the involvement of the accused-appellants is concerned, PW-2, Durga Prasad Mishra has stated that he does not remember as to who proceeded to Salempur during the relevant period. He also could not say as to from where these unauthorised calls were being matured. All the calls were coming from Salempur. There were many exchanges under Salempur Exchange. He could not specify as to what was the departmental duties of the phone mechanic.
19. Learned counsel for the appellants has placed reliance upon the judgement of the Apex Court passed in Criminal Appeal No. 696 of 2014 (B. Jayaraj Vs. State of A.P.) decided on 28.3.2014, in which Hon'ble Apex Court has held as under:
" There is no other evidence to prove that the accused had made any demand, the evidence of PW-1 and the contents of Exhibit P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and rcovery of the currency notes from the accused without proof of demand will not bring home the offence under Sction 7. The above also will be conclusive in so far as offence under section 13(1)(d)(i)(ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.
In so far as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offence under Section 13(1)(d)(i)(ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent."
20. P.W. 3, R.N. Mishra has specifically admitted that on date when the illegal instruments were detected, appellant Gulab Misra was on duty from 10.00 a.m. to 6.00 p.m. and after 6.00 p.m. the exchange was closed. He has admitted that the occurrence was at 1.30 in the night and the exchange was locked from outside. He himself entered the exchange after breaking open the lock. No lineman was present on the spot. All the three linemen were called when Ram Chandra and Gulab Misra came, but Janaradan Pandey did not come during search. Specifying about his statement as far as Gulab Misra is concerned, this witness has stated " eSus tks C;ku fn;k fd bl pksjh djkus esa xqykc feJ dk gkFk gSA eS blfy, dg jgk gwWa D;ksfd xqykc feJ lhfu;j eksLV Fks vkSj bUpktZ FksA"
21. I do not think, liability can be fastened on the senior officer/official just on the ground of his being senior. PW-3, R.N. Mishra could not even find as to whether the calls were being matured from the four sets recovered on the roof or not. He also did not try to find out the names of any of the beneficiaries. He has specifically admitted that " fdlh eqfYt+eku us fdlh O;fDr ls iSlk fy;k vkSj fdlh O;fDr dks ykHk igqWpk;k Fkk ,slk O;fDr esjh tkudkjh esa ugh gSA"
22. Thus, as per the own prosecution version, neither was there any evidence of taking bribe or giving bribe or even of involvement of any of the accused-appellants. PW-4, Subhendu Bahadur has specifically stated that he is not acquainted with the accused-appellant because at the time of occurrence they were not working in his division. PW-5, Laxmi Narain Singh has specified that he did not conduct any enquiry at his end. Even the IO dismantled the whole prosecution story by stating that there was sufficient evidence, but he could not point out any specific evidence against the accused. He admitted that during the course of investigation he did not see the meter reading, only he perused the whole system. He concluded by saying that in investigation he found out that it was possible for the linemen to open the password, but particular appellants had actually committed the offence or not has not at all been proved by the prosecution.
23. Thus, the whole prosecution story is nothing, but a bundle of lies, false statements and concocted improbable theories. The learned lower court has convicted the accused appellant in a no evidence case. Thus, in conclusion, having regard to the discrepancies in the statements of the witnesses, I come to the conclusion that the conviction of the accused-appellants under sections 409/120-B, 420/120-B IPC and 7 and 13(1)(C) read with 13(2) of Prevention of Corruption Act is bad in the eyes of law and the sentence and conviction is liable to be set aside.
24. The appellant No. 3 Janardan Pandey has died and the appeal against appellant No. 3 Janardan Pandey has already been abated.
24. Consequently, I conclude that the prosecution has miserably failed to prove the case against the accused appellants, and as such the accused is entitled to be acquitted and the appeal is liable to be allowed.
25. Hence, the impugned judgement and order of conviction and sentence dated 07.05.2008 passed the learned Special Judge, (Anti Corruption) Gorakhpur in Special Trial No. 4 of 2004 ( State Vs. Gulab Misra and others) arising out of Case Crime No. 30 of 2000, under sections 409/120-B, 420/120-B IPC and 7 and 13(1)(C) read with 13(2) of Prevention of Corruption Act is hereby set aside.
26. Accordingly, the appeal is allowed.
27. The appellants Gulab Misra and Ram Chandra are on bail. Their bail bonds are cancelled and the sureties are discharged. However, the appellants are directed to comply with the provision of Section 437-A Cr.P.C.
28. Let a copy of this order be sent to the trial court concerned for compliance of the order.
Order Date :- 4.2.2016 Sazia