State Of U.P vs Bhaiya Lal Verma

Bhaiya Lal Verma ...Respondent

JUDGMENT

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

2 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

3 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

4 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

5 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

6 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.

7 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

8 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.

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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

10 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

11 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

12 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.

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10. The appeal is allowed to the aforesaid extent.

.......................................J. (Dr. ARIJIT PASAYAT)

.......................................J. (P. SATHASIVAM)

.......................................J. (AFTAB ALAM) New Delhi, July 7, 2008

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