T .NANDAKUMAR SINGH,J. -
(1.) This appeal is directed against the judgment and order dated 23.06.2009 convicting the accused/appellant under Section 7 as well as Section 13(1)(d)(i) read with Section 13(2) of the P.C. Act and sentencing him to undergo rigorous imprisonment of 6 months and fine of Rs.10,000/ - in default of payment thereof and further imprisonment of 2 months for the offence under Section 7 of the P.C. Act and further sentenced to undergo imprisonment for 1 year and imposition of fine of Rs.20,000/ - in default thereof to undergo further impriso -nment for 4 months for the offence under Section 13(1)(d)(i) of the P.C. Act.
(2.) HEARD Mr. S.P. Mahanta, learned counsel appearing for the appellant/accused and Mr. VK Jindal, learned senior counsel appearing for the respondents -CBI.
The prosecution case is miraculously mentioned in the impugned judgment and order dated 23.06.2009. However, for appreciation of the evidence for the prosec -ution and also to see if the sufficient materials have been made out by the appellant/accused for interfering the impugned judgment and order dated 23.06.2009, a gist of the prosecution case is recapitulated as under: -
3.1. The contract work for the construction of hospital building for 200 bedded hospital expansion and services projects of the NEIGRIHMS at Shillong was awarded to the Engineering Projects (India) Limited (for short "EPIL") by the Hospital Services Consultancy Corporation (for short "HSCC") representing the NEIGRIHMS vide P.O. No.CAL/MMD/358/013IV dated 02.12.2002. The accused/appellant is the Senior Manager in HSCC at Shillong. The NEIGRIHMS project was divided into four packages: -
(ii) 300 bedded hospital
(iii) 200 bedded hospital expansion and
(iv) Nursing College, Auditorium etc.
3.2. The contract work at Package No.3 i.e. 200 bedded hospital expansion was with the EPIL, the proximate value was Rs.62 crores and the contract work of Package No.4 awarded to the Unity Infra Project was of the proximate value of Rs.27 crores. The appellant/accused, Shri.S.K. Gupta, was incharged for the Packages No.1 and 3. The contract work of the Package No.3 awarded to the EPIL was again sub -contracted to the M/s Parekh Premier Private Limited, Kolkatta (for short "PPPL") by the EPIL. For payment of any item of the work, PPPL submitted under R/A Bill to the EPIL, who in its turn again submitted to the HSCC. The HSCC made the payment to the EPIL and in its turn released the R/A Bill to the PPPL. The execution of the contract work by the PPPL consists of excavation of hard rock and ordinary rock. The PPPL submitted the 14th R/A Bill for the month of March, 2004 amounting to Rs.7,87,520.75/ -, which includes the claim for excavation of hard rock 1159.71 cubic meters @ Rs.380/ - cubic meter amounting to Rs.4,40,689/ - of the EPIL. There was a difference of payment between hard rock and ordinary rock for the sum of Rs.2,76,300/ -. The EPIL in its turn submitted their 18th R/A Bill for the month of March, 2004 to the HSCC, which includes the 14th R /A Bill of PPPL. The said bill for the hard rock was checked and certified by the appellant/accused, Mr. S.K. Gupta.
3.3. Shri.Jayanta Kumar Dhar, PW 1 filed a written complaint dated 04.08.2004 to the Superintendent of Police, CBI, Guwahati, Assam against the appellant/accused, Shri.S.K. Gupta, Senior Manager (Tech) HSCC, Shillong, alleging that the said contract of the PPPL with the EPIL is back to back basis as they are having with HSCC. Hence, the payment of any item to the PPPL shall be released by the EPIL only after they get the payment from the HSCC. The payment was made to the EPIL, who in its turn made the payment after certified by the appellant/accused Shri.S.K. Gupta, being the Senior Manager (Tech) of the HSCC. During the execution of the work, PPPL had excavated substantial quantity of hard rock which is much beyond the quantity stipulated in the bill of the PPPL. With great difficulty and persistent request by the PPPL to the appellant/accused Shri.S.K. Gupta, he had certified the quantity and the PPPL received the payment of the hard rock R/A Bill of March, 2004 from the EPIL. Immediately, after receiving the payment by the PPPL, the appellant/accused Shri.S.K. Gupta, had started asking the complainant (PW 1) as well as PW 3 Shri.Rajiv Menon to pay 60% of the amount released against the hard rock, otherwise, he would create problem in the smooth execution of the work. The said 60% of the amount released against the hard rock comes about Rs.1.25 lakhs. Finally, on 28.04.2004, the complainant Shri.Jayanta Kumar Dhar, PW 1, had a talk with the appellant/accused, Shri.S.K. Gupta over telephone from his Kolkatta Office to the appellant/accused Shri.S.K. Gupta at his residence telephone at Shillong. The appellant/accused Shri.S.K. Gupta, further demanded 60% of the amount received by the PPPL on account of hard rock excavation and asked the complainant to pay the amount to the tune of Rs.1.25 lakhs at the earliest. On the request of the complainant, the appellant/accused finally agreed for payment in installments and directed to pay the first installment immediately through Mr.Rajiv Menon (PW 3) in his office. The complainant Shri.Jayanta Kumar Dhar (PW 1) mentioned to him that Rs.25,000/ - will be paid as first installment and the rest after getting the payment against the bills. The complainant PW 1 as well as his Managing Director decided not to pay the bribe to the appellant/accused, as such the complaint filed a complaint with the Superintendent of Police, CBI, Guwahati for taking necessary action in this regard. After receipt of the said complaint, a case being CBI ACB, Guwahati Case No. R.C. 16(A)/2004 -GWH was registered against the appellant/accused, Shri.S.K. Gupta, Senior Manager (Tech) HSCC, Shillong under Section 7 of the PC Act, 1988.
3.4. As the matter relates to payment of bribe by a public servant, it was considered necessary that a trap for catching of the appellant/accused red handed, while demanding and accepting bribe from the complainant, was necessary. A trap team consisting of: (i) S/Sh.V.L. Hriata, Inspector, CBI:ACB: Guwahati, CBI:ACB:Guwahati (ii)Ng.Khamrang, Inspector, CBI:ACB: Guwahati - PW 18 (iii) K.R.Kabui, Sub -Inspector, CBI:ACB:Guwahati (iv)Amal Chakraborty, P.C., CBI:ACB:Guwahati (v)E.Lyngdoh, P.C., CBI:ACB:Shillong Unit (vi) Gilbert Sohtun, Inspr.Income Tax, Shillong -PW 13 (vii)Jangkholal Gangte, Programme Executive, AIR, Shillong -PW 14 (viii)Shri.Jayant Dhar, S./Project Manager, M/s CRL.APPL.NO.(SH)10/2009 Page 5 of 52 Parekh Premier Pvt. Ltd. PW 1 and (ix)Rajiv Menon, Accounts In -charge of M/s Parekh Premier Pvt. Ltd. PW 3, assembled in the CBI: ACB, Office, Shillong on 05.08.2004 at 11:45.00 hrs and a Pre -Trap Memorandum was prepared (Ext.No.8). The said persons assembled in the Office were explained the purpose for trap and they had been made to understand that the complaint dated 04.08.2004 was received from the complainant, Shri.Jayanta Kumar Dhar (PW1). The contents of the complaint were read over to all persons present. The complainant Shri.Jayanta Kumar Dhar (PW 1) confirmed the complaint, its content and his signature on it. The said persons assembled had been informed that a trap for catching Shri.S.K. Gupta, appellant/accused red handed while demanding and accepting bribe from the complainant was necessary. The complainant, Shri.Jayanta Kumar Dhar (PW 1) had told that Shri.Rajiv Menon (PW 3), their officials in Shillong will be contacting the appellant/accused, Shri. S.K. Gupta with the bribe amount on behalf of the Company (PPPL) and accordingly, Shri.Rajiv Menon (PW 3) attended the CBI, Office and confirmed that he had brought the money of Rs.25,000/ - for making payment to Shri. S.K. Gupta, appellant/accused. Shri.Rajiv Menon (PW 3) produced a sum of Rs.25,000/ - for payment as demanded by the appellant/accused, Shri.S.K. Gupta as bribe in currency notes having denomination and numbers mentioned in the Pre -Trap Memorandum.
3.5. To the aforesaid persons, who were assembled at the time of preparation of the Pre -Trap Memorandum, use of phenolph -thalene powder and its re -action with the sodium carbonate solution was explained. The phenolphthalene powder when reacts with sodium carbonate solution even in traces, the colour of the solution turned pink. For the purpose of demonstration, a portion of the phenolphthalene powder was taken on a paper. The same was applied on the aforesaid notes by Shri.Amal Chakraborty in presence of all. No one else touched the powder. The remnant phenolphthalene powder was packed in the paper itself and kept in an envelope which was signed and sealed by all. The sealed envelope had been marked as "A". Witness Sh.Jangkholal Gangte (PW 14) was asked to touch the currency notes applied with the phenolphthalene powder, which he did with his right hand. Solution of sodium carbonate was prepared in a clean glass with water and Sh.Jangkholal Gangte (PW 14) was asked to dip his fingers with which he had touched the currency notes into the solution. No sooner did Sh.Jangkholal Gangte (PW 14) dip his fingers into the solution, the solution turned pink. The solution was kept in a clean bottle, which was sealed and signed by all. The sealed bottle was marked as "B".
3.6. Then, the tainted currency notes were given to Shri. Rajiv Menon (PW 3) with instruction to keep the same in the front pocket of the jean he was wearing and to hand over the same to Shri. S.K. Gupta (appellant/accused) only on demand and not, otherwise. He was further instructed to keep the aforesaid currency notes with him except few amounts in his other pockets for meeting his expenses on tea/snacks. Witness Shri.Gilbert Sohtun (PW 13) was asked to accompany Shri.Rajiv Menon (PW 3) closely and hear the conversation between Shri.Rajiv Menon (PW 3) and the appellant/accused Shri.S.K. Gupta attentively and also to watch the money transaction. Shri.Rajiv Menon (PW 3) was also instructed that when the money was passed on to Shri.S.K. Gupta (appellant/accused) on demand, he should give signal by rubbing his face with his right hand. All the other members of the team were asked to separate themselves around the place and to see the transaction and hear the conversation as far as possible. All the persons then washed their hands with soap and water. In order to further ascertain the demand and to record the same in the electronic media, Shri.Rajiv Menon (PW 3) was instructed to ring up to Shri.S.K. Gupta (appellant/accused) and ascertain his availability in his office. As Shri.S.K. Gupta (appellant/accused) was reported out of the office at about 13:30 hrs, Shri.Rajiv Menon (PW 3) contacted the appellant/accused Shri.S.K. Gupta on the mobile phone. A new and unused audio cassette (T -series HQ -90 audio tape) opened in presence of the witnesses. The cassette was played on both side and was found blank. This was confirmed by witness Shri.Gilbert Sohtun (PW 13) and Sh.Jangkholal Gangte (PW 14) by recording their voices as under: -
"I am Shri. Gilbert Sohtun. This cassette was played before me and found blank."
"I am Sh. Jangkholal Gangte. This cassette was played before me and found blank."
The cassette was inserted in the recording system connected with tape recording device with speaker so that all present could hear the conversation. Thereafter, Shri.Rajiv Menon (PW 3) was asked to talk to Shri.S.K. Gupta (appellant/accused). The cassette was then rewinded and replayed. It contained the aforesaid voices of the witnesses and conversation between Shri.Rajiv Menon and the appellant/accused, Shri. S.K. Gupta. The conversation of which was also recorded in hand writing as per Annexure -1 to the Pre -Trap Memorandum. At the end the voices as under were recorded by the witnesses:
"I am Shri.Gilbert Sohtun. The aforesaid recording was done in my presence."
"I am Shri.Jangkholal Gangte. The aforesaid recording was done in my presence."
A copy of the aforesaid conversation was obtained in a separate cassette for day to day investigation. The cassette (T -series HQ -90 audio tape) was signed by all and kept in an envelope which was sealed and signed by all.
3.7. As per their conversation, Shri.S.K. Gupta (accused/appellant) had required Shri.Rajiv Menon (PW 3) to come to Delhi Mistan Bhandar within 10(ten) minutes, the trap team left for the place immediately at about 13:40 hrs. The said contents of the Pre -Trap Memorandum were read over to all and it has been signed by all present. The specimen of the seal with which the aforesaid exhibits were sealed was given at the margin. The aforesaid trap team reached at Delhi Mistan Bhandar, Police Bazar at about 13:50 hrs. Shri. Jayanta Kumar Dhar, Senior Project Manager of PPPL, could not accompany as he was not felling well. Shri. Rajiv Menon (PW 3) took a seat facing the entrance of the said restaurant on the ground floor. The other members took the seats nearby inside the restaurant so that Shri.Rajiv Menon (PW 3) could remain in view of all. But Shri. S.K. Gupta (appellant/accused) did not turn up till 14:15 hrs. Shri.V.L. Hriata came out of the restaurant and informed others that a man in blue shirt was standing outside as if waiting for someone. Accordingly, Shri. Rajiv Menon (PW 3) was asked to check if the said person was Shri. S.K. Gupta (appellant/accused). Thereafter, Shri.Rajiv Menon (PW 3) came out Shri.V.L. Hriata, Inspector, Shri. Ng. Khamrang, Inspector (PW 18) and the witnesses came out closely following Shri.Rajiv Menon (PW 3) so that the conversation could be overheard. After seeing Rajiv Menon (PW 3), Shri. S.K. Gupta (appellant/accused) came towards him and said, he had been waiting outside for quite sometime and Shri. Rajiv Menon said to him that he had also been waiting for the appellant/accused inside the restaurant because with this much money in his pocket, he could not walk on the road freely. Thereafter, both of them walked towards the right side of the restaurant and they were followed by the witnesses and the other team members closely. Shri.S.K. Gupta (appellant/accused) asked Shri.Rajiv Menon (PW 3) "where is the money, is it in the car? Shri.Rajiv Menon (PW 3) replied that the money was in his pocket. Shri. S.K. Gupta (appellant/accused) took Shri.Rajiv Menon (PW 3) towards right side and turning towards the car parking area in Police Bazar, Shillong. Shri.S.K. Gupta (appellant/accused) asked for the money by saying O.K. give. Thereafter, Shri.Rajiv Menon (PW 3) took out the money from his left pocket of his jean pant with right hand and gave it to Shri.S.K. Gupta (PW 3). Shri.S.K. Gupta (appellant/accused) accepted with his right hand and transferred to his left hand and kept the same in his left pant front side pocket and thereafter, at about 14:25 hrs, Shri.Rajiv Menon (PW 3) rubbed his face with his right hand as per prearranged signal. Thereupon, Shri.V.L. Hriata and Shri.Ng.Khamrang alongwith other members rushed and challenged Shri.S.K. Gupta (appellant/accused) after disclosing their identities for having demanded and accepted an illegal gratification of Rs.25,000/ - from Shri.Rajiv Menon (PW 3). At this, Shri. S.K. Gupta (appellant/accused) turned pale, perplexed and could not offer any explanation for the same. Both the hands of Shri.S.K. Gupta (appellant/accused) were held at his writs. As it was a public place and imme -diately, the people around started crowding around, it was not possible to continue further proceedings at the spot. Shri.S.K. Gupta (appellant/accused) was immediately taken into the vehicle of CBI and brought to CBI Office at Oakland, Shillong at about 14:30 hrs.
3.8. After reaching CBI, Office, Shri.S.K. Gupta (appellant/accused) was again asked about the demand and acceptance of illegal gratification by him. Still Shri.S.K. Gupta (appellant/accused) could not reply anything. Thereafter, a solution of sodium carbonate was prepared by Shri.K.R. Kabui, Sub -Inspector in a clean glass of water and Shri.S.K. Gupta (appellant/accused) was asked to dip his left hand fingers in the solution which Shri.S.K. Gupta (appellant/accused) did. Upon his doing so, the solution turned pink, which was witnessed by all present. This pink solution was transferred into a clean glass bottle which was sealed and signed by all and marked "Left Hand" for the purpose of identification. Thereafter, another solution of sodium carbonate was prepared in a separate clean glass of water by Shri.K.R. Kabui, Sub -Inspector and Shri. S.K. Gupta (appellant/accused) was asked to dip his right hand fingers in the water. Shri.S.K. Gupta (appellant/accused) did so and the solution immediately turned pink. This solution was also transferred to a clean glass bottle which was sealed and signed by all and marked as "Right Hand" for identification. Thereafter, Shri.S.K. Gupta (appellant/accused) was asked as to where did he keep the money. Shri.S.K. Gupta (appellant/accused) replied that it was kept in his left hand side pocket of the pant he was wearing. Witness Shri.Gilbert Sohtun (PW 13) was asked to check the said pocket. Shri.Gilbert Sohtum (PW 13) accordingly, checked the pocket of Shri.S.K. Gupta (appellant/accused) and took out the G.S. notes out of Shri.S.K. Gupta (appellant/accused) pocket in presence of all the members. Witness Shri.Gilbert Sohtun (PW 13) and Shri.Jangkholal Gangte (PW 14) were asked to check the denominations and the numbers of the recovered G.C. notes and whether they tallied with the denominations and numbers mentioned in the Pre -Trap Memo. Both the witnesses confirmed that the denominations and numbers of the G.C. notes tallied fully with that mentioned in the Pre -Trap Memo. These G.C. notes were kept in an envelope sealed and signed by all present and it was marked "Tainted Bribe Money Rs.25,000/ -." Thereafter, Shri. S.K. Gupta (appellant/accused) was asked to take off his pant which he did. He was offered a chadar (cloth) to put around his waist. A fresh solution of sodium carbonate was prepared by Shri.Kabui, Sub -Inspector in another clean glass of water. The left hand pocket of the pant of Shri.S.K. Gupta (appellant/accused) was washed in the said solution and the solution instantly turned pink. This pink solution was transferred to another clean glass bottle which was sealed and signed by all and marked as "Left Pocket Washed of Pant" for identification. The pant of Shri.S.K. Gupta (appellant/accused) was also taken into Police possession which was kept in an envelope sealed and signed by all and marked "Pant of Shri.S.K. Gupta (appellant/accused) "for the purpose of identification.
3.9. Shri.S.K. Gupta (appellant/accused) could not offer any explanation regarding demand and acceptance of Rs.25,000/ - from Shri.Rajiv Menon (PW 3). As such, he was arrested at 16:00 hrs. A separate personal search memo and arrest memo were prepared. The wife of Shri.S.K. Gupta (appellant/accused) namely Smt.Sunita Gupta was intimated over telephone. In the meantime, Deputy Manager of HSCC, Shillong came to CBI Office and he was also intimated about the arrest of Shri.S.K. Gupta (appellant/accused). Inspector Shri.Ng. Khamrang (PW 18) was deputed to conduct searches the residence of Shri.S.K. Gupta (appellant/accused). A fresh pant was sent from the house of Shri.S.K.Gupta (appellant/accused) for wearing which was given to Shri.S.K.Gupta (appellant/accused). Imme -diately after arrest, Shri.S.K. Gupta (appellant/accused) was sent for medical examination through Shri.Amal Chakraborty, PC to Civil Hospital, Shillong. A rough sketch map of the place of occurrence was also drawn by Shri.K.R. Kabui indicating the various positions of the trap team members including the two independent witnesses i.e. Shri.Gilbert Sohtun (PW 13) and Shri. Jangkholal Gangte (PW 14). The Post Trap Memorandum was prepared containing the above facts and read over to all and signed by all present. Specimen of the seal with which the various exhibits are sealed as mentioned in Memo was given in the Post Trap Memo. Sanction order for prosecution being No.HSCC/Vig(I)/0157 dated 14.07.2005 was accorded under Section 19(i) (C) of the Prevention of Corruption Act, 1988 for prosecution of the appellant/accused Shri.S.K. Gupta for the aforesaid offences punishable under Section 7 and Section 13(2) r/w Section 13 (i) (d) of the P.C. Act, 1988 and any other offences for the fact mentioned in the sanction order and also for taking cognizance by a Court of competent jurisdi -ction. After completing the investigation, charge sheet was submitted before the Special Judge (CBI), Shillong, who framed the charges after perusal of the charge sheet as well as after hearing the parties. The charges, so framed, against the appellant/accused read as follows: -
"Special Case No.4/2004
C H A R G E
I, Shri. Sudip Ranjan Sen, Special Judge CBI, Shillong do hereby charge you Shri.S.K. Gupta, Senior Manager, HSCC India Ltd. as follows: -
Firstly, that you on 04.08.2004 a complaint was lodged against you to CBI by Shri.Jayanta Dhar, Senior Manager M/s Parekh Premier Private Limited that you had illegally demanded bribe for 60% of the payment received by P.P.P.L. against excavation of Hard Rock, amounting to Rs.1.25 lakhs, and on request by the complainant you agreed to receive the bribe money in installment basis and first installment was fixed at Rs.25,000/ - through one Shri.Rajiv Menon. And on 05.08.2004 you were caught red handed after accepting the illegal gratification of Rs.25,000/ - and the said bribe money consist of Rs.500/ - and Rs.100/ - denomination notes were recovered from your possession in presence of independent witnesses and thereby you have committed offence punishable under Section 7 of the P.C. Act within the cognizance of this court.
A N D
Secondly, you being a public servant misusing your official status demanded and accepted bribe for your personal gain which amount to criminal misconduct and thereby you have committed an offence punishable under Section 13(1) (d) read with Section 13(2) of P.C. Act within the cognizance of this court.
I hereby directed that you to be tried by this court for the above said charges.
Special Judge (CBI), Shillong."
The charges, so framed, against the appellant/accused were explained and read over to him, which he pleaded not guilty and claimed to be tried.
(3.) TO bring home the charges against the appellant/accused, the prosecution had examined as many as 18 witnesses, namely, (1) Shri.Jayanta Kumar Dhar (PW 1), (2) Shri.Sanjiv Sood (PW 2), (3) Shri. Rajiv Menon, (4) Shri Pramod Kumar, (5) Shri Omeka R Marak, (6) Shri SK Sinha, (7) Shri Suraj Sewa, (8) Shri Susovan Samanta, (9) Shri Ashi Kumar Mitra, (10) Shri Ametaleh Pathak, (11) Shri Pawan Kumar Jaipusiar, (12) Shri G Babu Rao, (13) Shri Gilbert Sohtun, (14) Shri Jankholal Gante, (15) Shri Joshin E Myrthong, (16) Shri RL Moses, (17) Shri Bimal Chandra Purkait and (18) Shri Ng Khamrang and also exhibited 29 documents, 8 Nos. of paper marks and 11 Nos. of Mt. Ext. Defence also exhibited 4 Nos. of Exhibits during cross examination of PWs as Ext.A, Ext.7/A, paper mark 1 and Ext.B. The statement of the appellant/accused Shri.S.K. Gupta was recorded under Section 313 of the Cr.P.C. No Defence witnesses were examined by the Defence. When the statement of the appellant/accused was recorded under Section 313 of the Cr.P.C., the appellant/accused Shri.S.K. Gupta had admitted that the bribe amount of Rs.25,000/ - was recovered from his possession i.e. from the pocket of his pant and also that the bribe money of Rs.25,000/ - were tainted with phenolphthalene powder. He took out the tainted bride money from his pocket and he also admitted that his hand when dipped into the sodium carbonate solution, it turned into pink. There was no explanation after admitting the recovery of the bribe money from his pocket and also both his hands when dipped into sodium carbonate solution, it turned into pink, except that one person from the trap team put something in his pocket.;