- (1.) BY Court: This appeal has been directed against the judgment of conviction dated 19.12.2002 and order of sentence dated 20.12.2002 passed by Special Judge, Vigilance -cum - 1st Additional Sessions Judge, Dhanbad in Special Case No. 6 of 1999 (Chas P.S. Case No. 9 of 1999), whereby the sole appellant has been held guilty and convicted under Section 7 and 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 and accordingly sentenced to the period undergone by the appellant in custody since 17.1.1999. He has also been imposed fine of Rs. 1,000/ - each under Section 7 and 13(1)(d) of the Prevention of Corruption Act and in default of payment of fine further imprisonment for two months.
(2.) ON the basis of written report lodged by Basudeo Das, the then S.D.O., Chas, Chas P.S. Case No. 9 of 1999 was registered under section 420 I.P.C. and sections 7 and 13(1)(d) of the Prevention of Corruption Act, against accused Lakhsman Prasad. The written report discloses a fact that in course of interview for providing loan under Prime Minister Rozgar Yozna, one of the applicants, namely, Sanjay Kumar Singh had complained that some persons are demanding money for getting the loan sanctioned and also for producing the candidate before the Board out of turn. After receiving written complaint from Sanjay Kumar Singh, the then D.D.C. (P.W. 10) informed the then S.D.O. (P.W. 11). Thereafter the notes which were likely to be given to the accused were signed by the S.D.O. and the same were handed over to the complainant Sanjay Kumar Singh with a direction to 2.handover the notes on demand to the concerned person. Accordingly, a raid was conducted and Lakshman Prasad (appellant) who was then posted as peon in D.I.C., Dhanbad, was apprehended. The aforesaid notes to the tune or Rs. 3,500/ - which were singed by the S.D.O., Chas, were recovered from possession of appellant. Besides above notes, further sum of Rs. 2,300/ - was also recovered. The seizure list was prepared and the S.D.O. drafted a written report and the appellant was remanded to jail custody. The investigation was handed over to Nagendra Prasad Singh, (P.W. 13), the then S.D.P.O., Chas who completed the investigation and submitted charge -sheet against the appellant. Accordingly the appellant was put on trial and the prosecution has examined altogether 13 witnesses to substantiate the charges.
(3.) LEARNED counsel, appearing for the appellant, has assailed the impugned judgment on various grounds and submitted that the impugned judgment is highly erroneous, based on mis - appreciation of evidence and without considering the legal aspect. He has pointed that the complainant, Sanjay Kumar Singh, on whose complaint the raiding party was constituted and the appellant was allegedly trapped, has not supported the prosecution case and turned hostile. Even in his deposition, he has not named the appellant, nor raised any allegation against him. Akhilesh Kumar Singh (P.W. 2) who happens to be Economic Investigator, Dhanbad is a hearsay witness and according to his statement, he had heard that Lakshman Prasad was apprehended with money, which was received by him as illegal gratification. Brajesh Kumar Singh (P.W. 3) and Sanjay Kumar Singh (P.W. 4) who happen to be the seizure witnesses have also not supported the prosecution case. They have said that they had signed on a blank piece of paper and nothing was recovered from possession of the appellant in their presence. Binod Kumar Sinha, Industry Extension Officer, Chas has also not supported the prosecution case and he has been declared hostile. Utpal Kumar Rai (P.W. 6) who was also a member in the 3.Board and then posted as Deputy Manager (Credit) in Bank of India is a hearsay witness who has said that after the interview was over, he could learn that a person who was taking bribe was apprehended by the police. Amarjit Prasad (P.W. 7) was another member in the Interview Board and he has also supported the same fact as disclosed by P.W. 6. Kamta Prasad Singh (P.W. 9) was then Chairman, D.I.C., Dhanbad and according to his statement, the interview was over at about 3.30 p.m. While they were collecting the documents, they heard some hulla from outside that a peon Lakhsman Prasad of D.I.C., Dhanbad was apprehended by the then D.D.C. and S.D.O., Bokaro and he was being taken by the police. He learnt that money has been recovered from packet of Lakhsman Prasad. This witness has confirmed this fact that Lakshman Prasad (appellant) was a peon posted in the office of D.I.C, Dhanbad and he was present at the place of occurrence in order to call out the names of candidates according to their turn. In his cross examination, in para -3, he says that he did not see how Lakshman Prasad was arrested. Shashi Bhusha Verma (P.W. 10) was posted as D.D.C. on the date of incident and he was the person before whom Sanjay Kumar Singh had submitted a written complaint was endorsed to S.D.O., Chas for necessary action. This witness had supported this fact that a person was arrested from whose possession currency of Rs. 3,500/ -, on which the S.D.O. had signed, were recovered. But, this witness was not very much sure about the identity of the accused at the time his deposition was recorded in court. It is further pointed out that the S.D.O., Basudeo Das who had arranged the trap and signed the notes to be given to the appellant, has not given a consistent statement against the appellant. He did not identify the accused in court and therefore, the evidence of P.W. 11 is of no use. Bhagwan Kisku, Inspector of Police (P.W. 12) was posted as Officer -in -Charge at Maraphari P.S. on the date of incident. After receiving instruction from S.D.O., Chas, he had come to the place of occurrence, where interview for advancing loan against Pradhan Mantri Rozgar Yozna was going on. A raiding party was 4.constituted and currency signed by S.D.O., was handed over to the complainant with direction to give it to the person who had demanded money. Thereafter accused Lakshman Prasad was apprehended from whose possession currency of Rs. 3,500/ -, having initial of S.D.O., were recovered. Besides said sum of Rs. 3,500/ - a sum of Rs. 2,300/ - was also recovered from possession of Lakshman Prasad (appellant). The trapped person was apprehended, seizure list was prepared, F.I.R. was drawn and this case was registered. He has also claimed to identify the accused in court. Nagendra Prasad Singh, S.D.P.O., Chas had conducted the investigation and submitted charge -sheet against Lakshman Prasad. It is pointed out that mandatory provision contained under Section 17(C) of P.C. Act was not complied with. The Inspector (P.W. 12) had no authority to arrest the appellant and the Dy.S.P. who had conducted the investigation, was not present at the spot at the time of arrest of the appellant. ;