HARI SHANKAR PRASAD, J. - (1.) THIS criminal appeal is directed against the judgment dated 4.1.1999 and order of sentence dated 11.1.1999 passed in R.C. Case No. 13/90(R), whereby the learned Court below held the appellant Ramatullah Khan guilty under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 and sentenced him to undergo RI for one year each and further sentenced him to pay a fine of Rs. 500/ - under Section 13(2) of the Act and in default to further undergo RI for six months.
(2.) THE case of the prosecution in brief is that one despatch clerk of Alkusa Colliery, BCCL, Dhanbad demanded a sum of Rs: 300/ - from some Sunil Bouri. Sunil Bouri was working as miner loader in the said colliery and for getting his leave regularized and to allow him to join his duty the despatch clerk had demanded the money. This piece of information was received in CBI office, Ranchi and S.P. CB1, Ranchi directed Sri. D.B. Singh, Inspector, CBI, Ranchi in the morning of 25.7.1990 for constituting a team of CBI officers/staff to apprehend the said despatch clerk redhanded while demanding and accepting bribe from said Sri Sunil Bouri. A team consisting of Sri. D.B. Singh, Inspector, Sri A.K. Saha, Inspector. Sri B.N. Singh. ASI, Sri U.K. Choudhary, F.C. and Sri R.K. Saha. FC was constituted as per order and all these personnel belonged to Ranchi CBI. The team visited Dhanbad on 25.7.1990 in the evening and on the way to Dhanbad two persons namely, Sri Y.N. Singh, Senior Vigilance Officer, RSC Bokaro Steel City and Sri A.K. Mishra, Incharge Department of Geography, Bokaro Mahila College, Bokaro Steel City were taken as witnesses. In the evening of 25.7.1990 the complainant Sunil Bouri was contacted and from him they learnt that Rahmatullah Khan, despatch clerk of Alkusa Colliery had demanded Rs. 300/ - from him as bribe for managing his joining on duty after absence on long leave. The complainant gave a written petition to the SP, CBI, Ranchi stating therein the fact of demand of illegal gratification. The complainant after Holi festival had remained absent from duty for three months and this appellant demanded money from him for getting his work done so that he may join his duty but at that time he had no money with him and therefore, he promised to give money on getting the same. Thereafter he received orders for joining his duty on and from 9.7.1990. He discharged his duty for seven days and during this period appellant always demanded money from him. The complainant annoyed from the behaviour of the appellant absented himself from duty for ten days as he did not want to give money as bribe and, therefore, he lodged a written complaint for action against the appellant. The complainant was asked to report in the Circuit House, Dhanbad at about 7.30 a.m. on 26.7.1990 with Rs. 300/ - to be used as bribe money and on 26.7.1990 all others including witnesses assembled in the room No. 4 of the Circuit House, Dhanbad at about 8 a.m. where all of them were explained including witnesses the purpose of assembling and witnesses perused the written report of the complainant and on being satisfied about the genuineness of the allegations they put some questions to the complainant. Thereafter, procedure for allowing trap was explained to all of them. A phenopthelenle powder was sprinkled on a piece of paper and witness Sri A.K. Mishra was asked to touch the same and his right hand was dipped in the sodium carbonate solution and the solution turned into pink. The aforesaid solution was sealed and kept in a bottle, which was signed by all of them. The said piece of paper was also kept and sealed in an envelop, which was signed by all of them. Thereafter three G.C. notes of 100 denomination each in all three hundred rupees were produced by the complainant and on these notes phenopthelenle powder was also sprinkled and numbers of the notes were noted down and that was also sealed and signed and G.C. notes were returned back to the complainant with the instruction to give the money on demand of the appellant as bribe and not otherwise. The remaining phenopthelenle powder was kept in an envelop and signed by all of them and all the members of the raiding party washed their hands with soap and water and they were not allowed to keep anything except identity card and pen etc. Both witnesses were asked to remain specifically alert after reaching the P.O. and hear the conversation between the accused and the complainant to witness the transaction of money between them. A pre -trap memorandum was prepared, which was signed by all and the complainant was asked to give a signal by raising his left hand above his head as soon as the bribe money was accepted by the appellant. Both the witnesses were asked to rush to the P.O. on receiving the signal. All the members of the raiding party left for Alkusa Colliery at about 10 a.m. by vehicles and they reached there at about 11 a.m. The complainant and witnesses were again briefed properly. Appellant was present in his office. It was hoped that appellant could be watched from the window opening on road -side from the other -side of the window sitting on a chair. This room was connected with the room of the bill clerk and a partition wall has been erected in the room of the appellant. It was decided to post both the witnesses near the window from the road -side from where appellant was clearly visible. All of them took their respective positions. Complainant approached the appellant at about 11.15 a.m. and at that time appellant was sitting in his office. Seeing the complainant the appellant complained to him as to how you have become traceless for so many days then complainant replied that since he had no money he was not coming for last several days. Today I have managed the money and I have come to you. Appellant wanted to know as to how much money he has brought then he replied that as you have asked, I have brought Rs. 300/ -. Appellant extended his right hand for money and complainant took out the tainted money from the upper left side pocket of his shirt and gave the same to the appellant. Appellant counted the money and accepted the same by using both of his hands. Appellant was challenged then the produced the G.C. notes accepted by him as bribe from the complainant and on comparison the numbers of G.C. notes recovered exactly tallied with the numbers recorded in the memorandum prepared before the raiding trap. Other paraphernalia such as dipping of the right - hand and left hand separately in carbonate solution was done and the solution turned into pink. Those solution were sealed and signed G.C. notes recovered were also sealed and signed in an envelop and accused was arrested. Janbitran Pranali in which appellant had kept the tainted money was also seized in presence of the witnesses. A memorandum after raid was prepared and on the basis of fact alleged, a case was registered in CBI office. Ranchi Branch against the appellant on 27.8.1990 and after the appellant was produced he was remanded to judicial custody by the Special Judge, CBI. Ranchi. In course of investigation it transpired that the complainant is a miner loader in the colliery and he had proceeded on leave for three months and when he wanted to join his duty he was served with charge -sheet on 3.7.1990 for his unauthorized absence from duty. He submitted a reply to the appellant for forwarding the same to the higher authority and Deputy Personnel Manager of the Colliery incorporated his remarks on his letter and reply submitted by the complainant and recommended for allowing the complainant to join his duty. The remarks of the Deputy Personnel Manager came to the appellant for obtaining orders from the Colliery Manager. The complainant came to know that appellant has managed the early joining on duty of other employees of the colliery who had absented themselves from duty without proper sanction and so the complainant requested the appellant for managing his early joining on duty and appellant demanded Rs. 300/ - for helping him as bribe for the job and finding no way out the complainant agreed to pay Rs, 300/ - which he did not want to pay. It was also agreed that complainant will make payment afterwards after receiving the amount. Since order was passed in favour of the complainant, the complainant joined his duty without any punishment with a simple warning. When complainant joined on 9.7.1990 then appellant contacted him and demanded the sum as bribe. The appellant sought three days time for arranging the money and after lapse of the period the appellant again demanded money and as a result of which the appellant stopped coming from 6.7.1990. In the meantime complainant came to know that CBI. Ranchi Branch had apprehended a clerk of nearby Kenduadih colliery for demanding and accepting the money and, therefore, he reported the matter to the SP, CBI, Ranchi on 25.7.1990. The appellant was caught re -handed by demanding and accepting Rs. 300/ -. The appellant was dispatch clerk and he was in a position to know the correspondence or to deal with the letters which were sent outside or which were received from outside and, therefore, he knew the order of the higher authority and in the name of helping the complainant the appellant demanded a sum of Rs. 300/ - as bribe. On the basis of written information a case was registered and after investigation I.O. submitted charge -sheet and charges were framed and the learned Special Judge, after recording evidence both oral and documentary, came to a finding that appellant was guilty and, therefore, he convicted and sentenced the appellant as aforesaid.
(3.) LEARNED counsel for the appellant assailed the impugned judgment on the ground that no illegal gratification was ever demanded nor paid and accepted and further that the so called recovery of Rs. 300/ - is not proper and in accordance with law. The learned counsel further assailed the impugned judgment on the ground that there was no independent witness to corroborate the occurrence and the witnesses, who have been produced on behalf of the prosecution in the name of independent witnesses are not actually independent witnesses but interested witnesses. Learned counsel further assailed the impugned judgment on the ground that the learned Court below has passed and delivered the judgment on conjecture and surmises as there was neither any demand nor any amount was paid or accepted and the informant (bribe giver), out of annoyance with the appellant, has falsely implicated the appellant in this case and Investigating Officer without jurisdiction has conducted the investigation. Learned counsel further submitted that PW 2, Jogendra Nath Singh was a vigilance officer and as a vigilance officer he was in touch with CBI officials and so he is not an independent witness. Similarly Sri A.K. Mishra was also not an independent witness and since both of them were under the control and authority of CBI, they cannot be called to be independent witnesses. In this connection reliance has been placed upon AIR 1973 SC 498, in which it has been held that the appreciation of evidence of inverested and partisan witnesses, who are concerned in success of the trap, must be founded in the way as that, of any other interested witnesses in a proper case and the Court should look after independent corroboration before convicting the accused person.;