- (1.) This criminal appeal is directed against the judgment of conviction and order of sentence dated 10.10.2007 and 11.10.2007 respectively passed by Sri P.C. Agrawal, Additional District & Sessions Judge-VIII-cum-Spl. Judge, C.B.I., Dhanbad in R.C. Case No. 15A/1988(D) whereby and whereunder the sole appellant Parmeshswar Prasad Jaiswal has been held guilty for the offences punishable u/s 5(2) r/w 5(1)(d) of the Prevention of Corruption Act, 1947 corresponding to Section 13(2) r/w 13(1) (d) of the Prevention of Corruption Act, 1988 and sentenced to undergo R.I. for three years with fine of Rs. 500/- and in default in depositing fine, further imprisonment for two months R.I. However, the period undergone during the trial was directed to be set off. The prosecution case, as it appears front the complaint of one Sri Kedar Nath Pandey, reported to S.P., C.B.I., Dhanbad on 01.08.1988 is that at the relevant point of time complainant was Pay Loader Operator, employed in East Basuria Colliery Area-VI, BCCL, Dhanbad and was working under the charge of the accused/appellant namely Parmeshwar Prasad Jaiswal. It is further stated that appellant was Sr. Assistant Colliery Manager and was the incharge of Tipper Section and it was his duty to allow duties to the operators and drivers of the Tipper Section of East Basuria Colliery and to allow overtime to the drivers, Pay Loader Operators. Further, according to the complainant, accused/appellant, as an incharge of tipper section used to demand Rs. 100/- every month for allowing overtime to Pay Loader Operator and when the complainant approached him on 29.07.1988 for allowing overtime, accused/appellant demanded Rs. 200/-for two months and after request made by the complainant, he agreed to accept Rs. 150/- and balance Rs. 50/- subsequently. According to the complainant, as he was not wilting to pay illegal gratification to accused/appellant, he lodged a written complaint on 01.08.1988 to the Superintendent of Police, C.B.I., Dhanbad for taking necessary legal action.
(2.) According to the prosecution, the said complaint was got verified by one C.B.I. Officer and the allegation, made therein was found to be genuine and thereafter a regular case was registered bearing R.C. Case No. 15A/88-D dated 01.08.1988 and the investigation was taken up by Sri A.K. Asthana, Inspector of Police, C.B.I., copy of the F.I.R. was forwarded to the Court of Spl. Judge, C.B.I., Dhanbad under the signature of S.P., C.B.I., Dhanbad.
(3.) Further, according to the prosecution, during the course of investigation a successful trap was led by a team of officials of SPE, C.B.I., Dhanbad in active participation of two independent witnesses, namely, Sri L.N. Dibakar and Sri R.C. Saha, U.G.C. and Stenographer respectively in the office of the Regional Labour Commissioner, Dhanbad. The complainant was also present with the team. As per prosecution, the team assembled in the office of S.P. S.P.E., C.B.I., Dhanbad on 02.08.1988 and the pre-trap formalities were explained in details and a practical demonstration was also held in order to make the process of laying of trap clear to the persons present. During this the complainant replied to the question put by the witnesses by which genuineness of the allegations, made by the complainant was found to be satisfied. According to the prosecution, after completing the above formalities, the complainant produced three G.C. Notes of Rs. 50/- each being number 7 DD-A-845911, 8AH-187040 and 9 BA-672517. These currency notes were treated with phenolphthalein powder and pre-trap formalities were incorporated in the preliminary memorandum which has been signed by the members of raiding parry two witnesses and the complainant. The hand wash of Sri L.N. Diwakar obtained during the demonstration and the piece of papers treated with phenolphthalein powder, which was used during the demonstration, were preserved and sealed. Necessary instructions were given to the members of raiding party, the complainant and two witnesses. Witness Sri R.L. Saha was adviced to shadow the complainant and other members including other witnesses were adviced to position themselves in and around the place of transaction in order to overhear the conversation and the passing of tainted money between the complainant and (he accused, if possible. It was ensured that no members including the complainant and the witnesses retain any currency notes with them. The shadow witness was adviced to pass signal by rubbing his head with his right hand as soon as the transaction was over. Further, according to the prosecution, the raiding party mentioned above, left C.B.I. office and arrived East Basuria Colliery. All the members took up their position as adviced earlier and the complainant proceeded towards the office of the accused and met him near the gate. The complainant wished the accused who immediately enquired from him "KYA JI PANDEY, TUMNE OT KE BARE MEIN KYA SOCHA ? The complainant replied "SIR HUM TO JAISA AAP KAHE THE DERH SAU RUPIYA LAYE HAIN". The accused then reminded the complainant "LEKIN BAKI PACHASH RUPIYA BHUINA NAHIN AUR JALDI HI DENA". The complainant accepted and remained silent. The accused then demanded the money by saying "LAYO RUPIYA DO AUR ES HAFTE SE TUMHARA BHI OT BANA DENGE". Further prosecution has stated that the complainant thereafter immediately took up the money from his pocket and handed over the same to the accused/appellant who accepted and kept the tainted money in the right hand side pocket of his trouser after counting. The personal search of the accused/appellant was made and tainted money was recovered apart from the sum of Rs. 370/-. These amounts were preserved separately. The left and right hand and also the inner lining of right hand pocket of his trouser were washed in the solution of Sodium Carbonate prepared separately for washing of each. As a result of which the milky colour solution turned pink when his right hand side pocket and the right hand were washed but the colour did not apparently changed in case of left hand. Further, according to the prosecution, these wash were preserved and sealed in three separately phials and the recovered tainted money was sealed in an envelop. These exhibits were signed by the members of raiding party, the witnesses and the complainant. A memorandum of recovery incorporating the post trap memorandum was prepared and were signed by the members of trap parties. Further, according to the prosecution, investigation revealed that the accused/appellant was the incharge of the Tipper Section and was responsible for allocation of duties to the Pay Loader Operator, dumper drivers etc. It has also been found that the accused was competent to allow the overtime to operators also. Further, according to the prosecution, the hand wash of witness, accused and the wash of pocket were sent to the Director, C.F.S.L., Calcutta who has opined that both the phenolphthalein powder and sodium carbonate were detected in the contents of four phials which were sent to them. Further the prosecution has stated that from the above, it is evident that the accused/appellant demanded and accepted illegal gratification from the complainant in the matter of allowing overtime to the complainant and thereby misused his official position as a public servant.;