Tarak Nath Choudhary vs State of Bihar (Now Jharkhand)

Jaya Roy, J.—The appellant has preferred this appeal against the Judgment dated 26.2.98 and order of sentence dated 9.3.98 passed by the Special Judge (CBI Cases) Dhanbad in R.C. Case No. 2(A) of 1992, whereby the appellant has been convicted u/s 7 and 13(1)(d) of the Prevention of Corruption Act and he has been sentenced to undergo R.I. for 6 month and to pay a fine of Rupees 250/-under Section 7 of the P.C. Act and in default of payment of fine he will go under imprisonment for 15 days and u/s 13(1)(d) of P.C. Act he is also sentenced to undergo R.I. for one year and to pay a fine of Rs. 250/-in default to undergo R.I. for 15 days. Both the sentences shall run concurrently.

The case of the prosecution is that on receipt of a telephonic information through a source on 28.1.92 to the effect that Shri Tarak Nath Choudhary (the appellant) P.O.''s clerk of Nichitpur colliery, B.C.C.L. Dhanbad has demanded Rs. 2000/-as illegal gratification from Shri Bishun Bhuiyan in the forenoon on 29.1.1992 for processing the case of joining of duty by Shri Bhuiyan after long absence. The SP/CBI/Ranchi directed Shri D.B. Singh, Inspector C.B.I. Ranchi to constitutre a team and to proceed to Dhanbad for taking necessary legal action against said Shri Tarak Nath Choudhary. SP/CBI/ Ranchi had also advised the source to ask the complainant Sri Bishun Bhuian to report to the CBI team of Ranchi Branch in the office of SP/CBI/Dhanbad at about 10 A.M. on 29.1.92 alongwith Rs. 2000/-with him. Shri A.K. Babaria, Additional C.V.O. of Bokaro Steel Plant was requested over telephone to direct two independent witnesses to report to Sri B.B. Singh in Hotel Limica, B.S. City at about 6 A.M. on 29.1.92 along with a jeep. As arranged Shri D.B. Singh, A.K. Saha Inspector, R.P. Tiwary, A.S.I. and B.N.B. Singh, A.S.I. alongwith two witnesses namely Shri B.K. Verma, A.V.I. and Shri A.K. Singh. AVI both of vigilance department of Bokaro Steel plant met the complainant Shri Bishun Bhuiyan at C.B.I. Office Dhanbad at about 10 A.M. on 29.1.92.

Shri Bishun Bhuiyan narrated that he joined Nichitpur colliery of B.C.C.L. as a loader in August''1980. He worked there as such till 1984. Some time in 1984, due to demise of his mother and brother he went to his native place. Due to unavoidable circumstances he could not report for duty for a long time. After his return he contacted Shri Tarak Nath Choudhary, P.O.''s clerk of Nichitpur colliery and requested him for processing his case for joining duty. Shri Tarak Nath Choudhary demanded Rs. 6000/as bribe for processing his case. Shri Bhuiyan told Shri Choudhary that he was a poor man and as such, he was not in a position to pay him the demanded amount. Thereupon Shri Choudhary told Sri Bhiyan to contact him after arranging the demand amount. On 28.1.92 Shri Bishun Bhuiyan again contacted Shri Tarak Nath Choudhary in his office. On being contacted, Sri Choudhary instantly asked Sri Bhuiyan as to whether he had brought the demanded amount or not. Having no alternative, Shri Bhuiyan told Sri Tarak Nath Choudhary that he would be able to arrange and pay him Rs. 2000/-only by tomorrow (29.1.92) on this Shri Choudhary asked Shri Bhuiyan to give him Rs. 2000/on 29.1.92 in his office. Sri Choudhary further told Shri Bhuiyan that after giving the balance amount, Shri Bhuiyan would be able to join his duty.

As Shri Bhuiyan was not able to write a complaint petition as such, Shri R.P. Tiwary, A.S.I. wrote down the petition incorporating the facts as narrated by Shri Bhuiyan. Shri Bhuiyan put his L.T.I. on this petition after the contents of it was explained and read over to Shri Bhuiyan. As the allegation made by Shri Bhuiyan disclosed that Shri Tarak Nath Choudhary has demanded Rs. 2000/-as illegal gratification from Shri Bhuiyan, a trap was planned to catch Shri Tarak Nath Choudhary red handed while demanding and accepting bribe from Shri Bhuiyan. For this purpose, process of laying the trap was explained to all including both the witnesses and the complainant by Sri D.B. Singh, Inspector. The use of phenolphthalein power and its reaction with Sodium carbonate solution was explained verbally as well as through demonstration. Thereafter, Sri Bishun Bhuiyan produced 40 numbers of 50 rupees Currency Notes amounting to Rs. 2000/-. The numbers of these Currency Notes were recorded in a memorandum before the trap. Thereafter, these currency Notes were treated with phenolphthalein powder and given to Sri Bishun Bhuiyan for giving the same to Sri Tarak Nath Choudhary as bribe only on demand and not otherwise. Sri Bhuiyan kept the said amount in his right side pant pocket.

The witness Shri A.K. Singh was asked to accompany Sri Bhuiyan as his relaltive to the office of Sri Tarak Nath Choudhary. The witness Sri B.K.Verma was asked to remain present in close proximity of the complainant to overhear the conversation between Sri Bhuiyan and Shri Tarak Nath Choudhary as well as to see the occurrence of bribe amount by Shri Choudhary. Other members of the trap party were also suitably instructed.

The whole proceeding was recorded in form of a memorandum in which everybody signed. This memorandum was closed at about 11.30 A.M. on 29.1.92.

The trap party members, witnesses and the complainant got down from their vehicles at some distance away from the office of Shri Tarak Nath Choudhary. Sri Bishun Bhuiyan alongwith Shri A.K. Singh moved towards the office room Shri Choudhary. The witness Shri B.K. Verma moved to close proximity of them. Other members of the trap party also moved behind them in an unobtrusive manner. Sri Bhuiyan indicated that Shri Choudhary was present in his office room. Thereafter Shri Bhuiyan along with Shri A.K. Singh entered into the room of Shri Choudhary and Shri B.K. Verma took his position near the door leading to the office room of Sri Choudhary. Other members remained present at some distance from the room of Sri Choudhary.

When Shri Bhuiyan contacted Shri Choudhary, he wished him. Shri Tarak Nath Choudhary immediately asked Shri Bhuiyan "Kya Rupaye Laye Ho?" Sir Bari Mushkil se Do Hazar Rupaye Ka Intezam Kar Ke Laya Hun. Kya Ab Meri Joining ho Jayegi?. Thereupon Sri Tarak Nath Choudhary told Shri Bhuiyan "Abhi to Main papers Tayyear Karunga, Baki Char Hazar Dene par Tumre joining Mil Jayegi." Thereafter Shri Tarak Nath Choudhary extended his right hand towards Shri Bhuiyan for accepting the bribe amount. Sri Bhuiyan gave the tainted amount in the right hand of Shri Choudhary. After accepting the same Shri Choudhary kept the tainted amount in the right side pocket of his full pant and thereafter he told Shri Bhuiyan "Baki Paise Ka Intezam Zaldi Karke Mujh se Milo".

Thereafter Shri Bhuiyan gave the reassigned signal by raising his left hand over his head. Immediately Sri B.N. Singh, A.S.I. challenged Shri Tarak Nath Choudhary and by this time other members of the trap party arrived in the office room of Shri Choudhary. On being challenged, Shri Choudhary became very nervous and immediately admitted to have accepted the bribe amount from Sri Bhuiyan.

Thereafter the right hand fingers of Sri Choudhary were washed in solution of Sodium Carbonate. This solution turned pink which established that Shri Choudhary accepted the bribe amount from Shri Bhuiyan in his right hand. This pink solution was preserved in a clean glass bottle which was sealed and signed by all. Thereafter Sri Choudhary produced the tainted amount from his right side pant pocket. When the number of these Currency Notes was compared to those of recorded the memorandum, the same exactly tallied. These Currency Notes were sealed in an envelop which was signed by all. A full pant was provided to Shri Choudhary and thereafter the right side pant pocket worn by Sri Choudhary was washed in freshly prepared solution of Sodium Carbonate. On washing this solution turned pink which established that Shri Choudhary kept the bribe amount in his right side pant pocket. The pink solution was preserved in a clean glass bottle which was sealed and signed by all. The full pant of Sri Choudhary was sealed in an envelope which was signed by all.

Sri Tarak Nath Choudhary accepted the bribe amount of Rs. 2000/-from Shri Bishun Bhuiyan on 29.1.92 at about 12.25 P.M. and he was arrested at about 12.30 P.M.

As the aforesaid facts disclose a prima-facie case against Sri Tarak Nath Choudhary, P.O.''s clerk of Nichitpur colliery of Area V, B.C.C.L. Dhanbad u/s 7 and Section 13(2) read with 13(1)(d) of P.C. Act, 1988, a case is registered against the appellant Tarak Nath Choudhary. The appellant/accused pleaded not guilty and claimed to be tried. He has denied all the allegations leveled against him in his statement u/s 313 Cr.P.C.

The point for consideration is whether the accused/appellant demanded and accepted the illegal gratification other than legal remuneration from Bishun Bhuiyan for processing his duty. The prosecution has examined 12 witnesses to prove its case. But on the point of specific charges there are only four witnesses. P.W.1 Ashok Kumar Singh Vigilance Inspector in Vigilance department of Bokaro Steel Plant. P.W.2 Binod Kumar another Vigilance Inspector of Bokaro Steel Plant, P.W.9 S. Mukhopadhyay is senior Scientific Officer, C.F.S.L. Calcutta, P.W.10 Dhira Dushad is co-minor Loader of Bishun Bhuiyan at Nichitpur Colliery, P.W.11 D.B. Singh is Inspector of CBI, Ranchi who led the trap team and also made investigation of the case and submitted charge sheet, P.W.12 is Constable of CBI Ranchi. Amongst them P.W.2 and P.W.4 are tendered.

From the evidence I find P.W.1 Ashok Singh the Vigilance Inspector has stated in his chief that the bribe amount was kept by the accused in his right hand side pant pocket and in cross-examination he say that after receiving the amount by the accused, it was kept in his shirt pocket. He has further deposed that A.K. Barbaria, Addl. Chief Vigilance Officer, Bokaro Steel Ltd, directed him and B.K.Verma, to meet with D.B. Singh, C.B.I. Inspector at Limica Hotel, Bokaro Steel City at 6 A.M. on 28.1.92 in accordance with that direction, he has met with D.B. Singh and other C.B.I. Officer at the said Limica Hotel. His deposition further shows that he along with C.B.I Officers came to C.B.I. office, Dhanbad where Bishun Bhuiyan complainant met with D.B. Singh who introduced Bishun Bhuiyan with them. Thereafter, Bishun Bhuiyan got his complt. written by Ram Pujan Tiwary in his presence on which Bishun Bhuiyan affixed his L.T.I. which has been marked Ext.1 on his proof. But it is very significant to mention here that P.W.1 never stated in his deposition that Ram Pujan Tiwary has written the complaint in his presence and the complainant has affixed his L.T.I. in his presence after contents of the complaint was explained to him.

P.W.9 is senior Scientific Officer C.F.S.L. Calcutta and he examined three bottle sent by S.P. CBI Ranchi and submitted his report as exhibits-10 and 11 but in his cross-examination he has stated that he did not write in his report that he has taken the solution from sealed bottles and examined the said solution. P.W.10 Dhira Dushad has stated only that the complainant Bishun Bhuiyan worked with him for about two years only. His evidence simply established that Bishun Bhuiyan was an employee of Nichitpur Colliery.

In this case prosecution has not examined the complainant Bishun Bhuiyan as according to the prosecution he died during the pendency of the trial. But from the record I find that P.W.12 Rakesh Kumar was entrusted to serve summon to Bishun Bhuiyan and went to Khas Kusunda No. 10 on 8.7.94. He got information from a village lady that Bishun Bhuiyan died 10 to 15 days ago. On this information P.W.12 has submitted his report on the summon which is marked as Exhibit-16 but in his cross- examination he has stated that Bishun Bhuiyna died on 10.7.94 which was informed by the wife of Lakhan Bhuiyan but utter surprise he has not obtained neither the signature of that lady nor the signature of any witness of that locality. Therefore, it is very difficult to rely on his report to establish that Bishun Bhuiyan is dead. The utter surprise the trial court as because there is no otherwise evidence, has accepted that Bishun Bhuiyan is dead on 10.7.94. It is practically having no basis at all. Rakesh Kumar P.W.12 never went to Mukhia or Sarpanch of the village. As such it is very clear that the prosecution not even brought on record the death certificate of the complainant or tried to produce the birth and death Register from the Block Office to prove that the complainant is dead. The said village lady was not examined in the court to prove his death. In this manner the prosecution has failed to prove that the Bishun Bhuiyan died and as such it could safely be inferred that the entire prosecution case is doubtful as neither the complainant was examined nor prosecution is able to prove the complaint i.e. Ext. I.

Mr. Mahesh Tiwary, the learned Counsel of the appellant has submitted in this regard that non examination of the maker of the written complaint is fatal to the prosecution case. Further more, no death certificate was ever produced before the trial court. More over the complaint written by R.P. Tiwary P.W.4 has also been tendered. Therefore, according to him the prosecution has failed to prove the complaint. Considering his argument on this very point, in view the non examination of the complainant by the prosecution, further more for having no evidence of his death, certainly it causes serious prejudice in his defence practically when the complaint is not proved either by his maker or by his author, it becomes no nest in law.

The evidence of P.W.11 clearly shows that he had for the first time met with Bhushan Bhuiyan in the C.B.I. Office which shows he was not known with complainant from before. It has further come that he was at a distance of 40 ft from the place of occurrence and he has very specifically stated that he did not hear any conversation made between the complainant and the accused appellant at the time of trial. When reached to the appellant, he found Mr. B.N. Singh has caught hold the hand of the accused appellant which shows that he is not the eye witness of the occurrence, neither of the demand of the money nor the acceptance of the money.

It is pertinent to mention here about the geniuses of the complaint petition (Exhibit 1) as raised by Mr. Tiwary that who has proved the said Ext-1. The P.W.1 Ashok Kumar Singh at page-3 of his examination in chief clearly stated that "Bishun Bhuiyan got the complain written by Ram Pujan Tewari and put his thumb impression on it. The complainant is in the hand writhing of Ram Pujan Tewari". He (P.W.1) never stated that Ram Pujan Tewari has written the complaint in his presence as the complaint told him and after finding it correct, the complainant has affixed his thumb impression on it in his presence. So at the face of it, it is only a hearsay statement. As such it is clear that the prosecution failed to prove the complainant (Ext.1) legally and validly. Further more, P.W.4 Ram Pujan Tewari the Sub-Inspector is Tendered witness as such thumb impression of the complainant on Ext-1 has not been proved. It is a vital blow on the prosecution case. The learned Counsel of the appellant has heavily relied on the decision of this Hon''ble Court, Reported in 2008(1) J.L.J.R. 185, Dr. Shambhuy Sharan Lal v. State of Jharkhand and rightly he has pointed out about the genuiness of the written report of Bishun Bhuiyan of the Ext.1 i.e. that the very genesis of the case has not been proved. It was not brought on record in accordance with law by examining the competent person i.e. the complainant has not been examined and scribe of the complaint petition has not deposed in the court that he has recorded the complaint as the complainant dictated it and thereafter the complainant has put his thumb impression on the complaint petition. I find substance in the argument of the defence that there is no legal evidence on record in support of the fact stated in the complaint petition.

In the facts and circumstances stated above, I hold that prosecution has totally failed to prove that the complaint Ext.1 as this Ext. 1 could not be substantiated by its maker by adducing ocular evidence. The aforesaid case law mention above supports the legal proposition. The fact of the present case about proof of Ext-1 is absolutely similar as the proof of Ext-10 of the said reported case.

Mr. Tiwary the learned Counsel for the appellant further submits that Bishun Bhuiyan was employed of the same Colliery in the year 1983 but on the ground of long absence he was dismissed and he was not on the roll of the B.C.C.L. as his service was terminated by the office order dated 16.11.83 that nearly a decade ago. The appellant accused was not at all competent to re-employ Bishun Bhuiyan. Thus, after termination of service, no question of demanding money by the accused appellant to re-employ the complainant, can arise.

In this context it is further submitted that P.W.6 Birendra Sharma, Personnel Officer of the Nichitpur Colliery has proved the office order dated 16.11.83 by which the services of Bishun Bhuiyan had been terminated. He has stated that usually the cases of dismissed employees are reviewed by the Director Personnel. But he has also stated that such dismissed employee whose name has been removed from ''Form B'', is not reviewed. From the statement of P.W.5 who is Project Officer of Nichitpur Collieiry it has come that Bishun Bhuiyan (complainant) had been dismissed from the service in 1983 and his name had been struck off from Form ''B''. The P.W.8 has also supported this contention of the P.Ws. 5 and 6. Therefore, it is certain that the accused appellant has not at all competent to reappoint or to review the case of the complainant. In these circumstances whether the accused appellant had demanded any money from Bishun Bhuiyan and gave him any assurance of his reemployment is questionable. It has come in the light that not a single independent witness has been examined in this case. Further more the P.W.2 and P.W.4 who are most important witness have been tendered by the prosecution.

Mr. Rajesh Kumar, the learned Counsel appearing for C.B.I. submits that the trap was successfully done. The witnesses have supported and corroborated the every step of the proceeding adopted before the trap and after the trap.

Considering the rival contention of the parties, I find and hold that in the facts and circumstances from which the conclusion of the guilt is sought to be drawn by the prosecution against the appellant, Tarak Nath Choudary for the charge under Sections 7 and 13(1)(d) of the Prevention of Corruption Act 1947 have not been fully and satisfactorily established beyond all reasonable doubt. In short, the evidence on the record has not proved the guilt of the appellant for the charge he stood. I find merit in this appeal. Accordingly this appeal is allowed, the impugned Judgment of conviction and order of sentence, as passed by the trial court against the appellant, is hereby set aside. The appellant is acquitted from the charge of offences for which he was charged, since the appellant is on bail, he is discharged from the liability of his bail bonds.