REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 285 OF 2001

State of U.P. ...Appellant

Vs.

Bhaiya Lal Verma ...Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge  in  this  appeal  is  to  the  order  passed  by  a

learned Single Judge of the Allahabad High Court allowing the

criminal appeal filed by the respondent (hereinafter referred to

as  the  ‘accused’).   The  accused  was  convicted  by  learned

Special Judge (E.C. Act) Banda in Special Case No. 3 of 1985

for offence punishable  under Section 5(2) of the Prevention of

Corruption Act, 1947 (in short the ‘Act’).  He was sentenced to

undergo  rigorous  imprisonment  for  two  years  and  was

directed to pay a fine of Rs.5,000/- with default stipulation.

He was also convicted for offence punishable  under Section

161 of the Indian Penal Code,  1860 (in short the ‘IPC’)  and

sentenced to rigorous imprisonment for two years.  Both the

sentences were directed to run concurrently.

2. Background facts in a nutshell are as follows:

Sri  Rajendra  Singh  Kushwaha,  Assistant  Agriculture

Inspector of Rajkiya Krishi Sadhan Purti Bhandar Badokhar

Buzurg,  Banda  moved  an  application  before  the  District

Magistrate, Banda confidentially on 2.4.1984 stating that Sri

Bhaiya Lal Verma, the accused who was the Accountant in the

office  of  District  Agriculture  Officer  and  Project  Officer  in

collusion with the Project Officer ( Agriculture) Sri. Lal Mani

Ram was harassing him by giving threats of recovery on the

basis of fictitious bills. Sri Bhaiya Lal Verma the Accountant

had promised him that if he pays Rs.150/- to him no action

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will  be taken against him. Sri Bhaiya Lal Verma had called

him  in  the  office  on  2-4-1984  and  has  agreed  to  accept

Rs.150/-  as  bribe.  Hence  request  was  made  that  the

Accountant Sri Bhaiya Lal Verma may be  caught red handed

while  accepting  Rs.150/-  as  illegal  gratification  so  that  the

applicant  may  discharge  his  duties  impartially.  The  then

District Magistrate, Banda marked the said application to the

Additional  District  Magistrate  (Finance  and  Revenue)  and

ordered him to lay the trap. Thereafter,  the then Additional

District Magistrate (F), Banda Sri J.N. Vishwakarma directed

Sri. R.L. Gupta, the then Executive Magistrate and Additional

S.D.M./S.D.O. Naraini Banda to record the statement of the

complainant and to prepare the fard of currency notes which

were to be given in the bribe and thereafter the papers were to

be handed  over to  C.O.  Sadar for laying trap. In compliance

with the order of A.D.M. (F) Banda, Sri R.L. Gupta, Additional

S.D.M. Banda recorded the statement of the complainant Sri.

Rajendra Singh on 2-4-1984 at 5.45 P.M. Sri Rajendra Singh

confirmed the facts mentioned in the application moved before

the District Magistrate, Banda. He further stated that he has

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brought one currency note of Rs.100/- denomination, and one

currency note of Rs.50/- denomination, numbers of which are

AA/35 377745 and 3 DH 355826 respectively. Sri R.L. Gupta

prepared the fard of the said currency notes on 2-4-1984 at 6

P.M. He marked to currency notes with his initial which were

to be given in the bribe to Sri Bhaiya Lal Verma. Thereafter,

the  aforesaid  currency  notes  were  handed  over  to  the

complainant  Shri  Rajendra  Singh  Kushwaha.  The  fard  was

read  over  to  him  and  his  signatures  were  also  obtained.

Thereafter Sri R.L. Gupta the Additional S.D.M. Banda called

Sri. O.P. Kakkar the then C.O. Sadar in the office of A.D.M.

(F), Banda on 2-4-1984 at about 6 P.M., and handed over the

application dated 2-4-1984 of Sri Rajendra Singh Kushwaha

containing  orders  of  the  District  Magistrate  and  Additional

District Magistrate (F) for laying trap. He also handed over the

statement  of  Sri  Rajendra  Singh  and  the  fard  of  currency

notes,  as  referred  to  above,  to  him.  Sri  O.P.  Kakkar  took

Rajendra Singh with him and proceeded towards the spot. He

also took the then S.H.O. P.S. Kotwali Sri. Shiva Nandan and

constables Rajendra Kumar Tiwari, Dinesh Kumar and Gulab

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Singh from Kutchery Chauraha with him and proceeded  by

jeep  towards  the  office  of  District  Agriculture  Officer  and

Project  Officer.  They  left  the  jeep  near  the  Telephone

Exchange.  From there  they  proceeded  towards  the  place  of

occurrence on foot.  Sri Shiv Prasad Yadav and Sri Mithlesh

Kumar Dwivedi  met  him near  the  Telephone  Exchange.  He

took them with him and gave information about his purpose.

They  reached  near  the  office  and  sent  Rajendra  Singh  for

giving  illegal  gratification.  They  remained  standing  in  the

Verandah by  the  side  of  the  eastern  window affixed  in  the

northern wall of the big room lying in the middle of the office.

At that time light was on in the office and it was about 6.45

P.M. Sri Bhaiya Lal Verma was sitting on the table and was

talking  with  one  person.   The  police  party  and  the  public

witnesses  heard  and  saw  from  the  window  that  Rejendra

Singh  informed  Bhaiya  Lal  Verma  that  he  has  brought

Rs.150/-  which  he  had  demanded  for  not  making  recovery

from him and he should accept the said amount. Thereafter

Rajendra Singh offered  Rs.150/-  to  Bhaiya Lal  Verma,  who

accepted the currency notes of Rs.150/-. He took out purse

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from his pocket and kept the said currency notes in the purse.

Thereafter, he kept the purse in the left pocket of his bush-

shirt. On being satisfied that Bhaiya Lal has accepted bribe,

the  office  was  raided  immediately  and  Bhaiya  Lal  was

apprehended inside the room. His personal search was made

in  accordance  with  rules.  One  currency  note  of  the

denomination of Rs.100/- having No.AA/35 377745 and one

currency note of the denomination of Rs.50/- having No.3 DH

355826 with marked initials of Sri. R.L. Gupta were recovered

from  the  purse  kept  in  the  left  pocket  of  his  bush  shirt.

Besides  it,  two  currency  notes  of  the  denomination  of

Rs.100/- each and two currency notes of the denomination of

Rs.50/- each were also recovered from the said purse. In the

purse, photograph of the accused was there.  During search,

the person with whom the accused was talking before taking

bribe  escaped  quietly  from  there.  On  interrogation,  he

disclosed  his  name  as  Bhaiya  Lal  Verma  son  of  Korey  Lal

Verma  and  stated  his  full  address.  The  aforesaid  currency

notes along with purse and the photo of the accused and the

bush shirt  which the accused  was wearing were taken into

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possession by the police at the spot and the aforesaid articles

were  sealed  at the spot.  The recovery memo Ex. Ka. 1 was

prepared at the spot by Sri Shiv Nandan Singh at the dictation

of Sri O.P. Kakkar. The recovery memo was read over to the

police personnel and the public witnesses and their signatures

were  obtained.  Thereafter,  the  accused  Bhaiya  Lal  was

brought to P.S. Kotwali  and was lodged there.  The recovery

memo and the other papers were also filed at P.S. Kotwali. On

the basis of the recovery memo the case was registered against

the accused Bhaiya Lal Verma for offences punishable under

Section l61 I.P.C. and under Section 5 (2) of Act. The case was

investigated by Sri Akshay Kumar Singh, the then Deputy S.P.

Babenu.  During investigation, he recorded the statements of

the  witnesses  and  prepared  the  site  plan.  The  sanction  to

prosecute the accused was granted by Sri Rishi Ram Sharma,

Director  Agriculture,  Uttar  Pradesh  on  14th January,  1985.

After  completion  of  the  investigation,  the  charge  sheet  was

filed  against  the  accused  for  commission  of  offences

punishable under Section 161 IPC and Section 5(2) of the Act.

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The accused pleaded innocence. He admitted that he was

posted as Accountant in the office of District  

Agriculture and Project Officer Banda in April, 1984.  In his

statement recorded under Section 313 of the Code of Criminal

Procedure, 1973 (in short the ‘Code’), it was his stand that Sri

Ram Adhar Awasthi was dealing with files relating to recovery.

He had no concern with the files  of  recovery.   He took the

stand that there was enmity between the then Plant Protection

Officer,  Banda  who  in  collusion  with  Rajendra  Kumar

Kushwaha registered the false case against him.  He examined

two witnesses to substantiate his defence.

The prosecution examined Sri Mithlesh Kumar Dwivedi

(PW.1),  Shiv  Prasad  (PW2),  Rajendra  Singh  (PW3),  Akshay

Kumar Singh (PW4), Rishi Ram Sharma (PW5), Om Prakash

Kakkar  (PW6),  Munna Lal  Katiyar (PW 7)  and Ram Lakhan

Gupta  (PW8)  in  support  of  its  case.   Sri  Mithlesh  Kumar

Dwivedi  (PW1)  proved  the  recovery  Memo  Ex.Ka.1.  Sri

Rajendra Singh (PW3) proved the application dated 2.4.1984

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Ex.Ka.2.  Sri Akshay Kumar Singh (PW 4) proved the site plan

Ex.Ka.3 and the charge sheet Ex.Ka.4.  Sri Rishi Ram Sharma

(PW5)  proved  the  sanction  order  Ex.Ka.5.  Sri  Om  Prakash

Kakkar  (PW6)  also  proved  the  recovery memo Ex.Ka.1.   Sri

Munna Lal  Katiyar  (PW7)  proved  the  FIR  Ex.Ka.  6  and the

copy of G.D.Ex.Ka. 7.  Sri Ram Lakhan Gupta (PW8) proved

the  order  of  A.D.M.(F)  dated  2.4.1984  Ex.Ka.8,  order  dated

2.4.1984  of  District  Magistrate  Ex.Ka.9,  the  statement  of

Rajendra  Singh  Ex.Ka.  10  and  the  Fard  of  currency  notes

Ex.Ka.11.  Sri Ram Adhar Awasthi (DW1) proved the initial of

accused Bhaiya Lal Ex.Ka. 12 on the Photostat copy of order

Ex.Ka.1.   The  currency  notes  Ka.1  to  Ex.6,  a  purse  Ex.  7,

bush shirt Ex.8, specimen of seal Ex.9 and the photo of the

accused Ex.10 were produced in the evidence.  

Placing reliance on the evidence of prosecution witnesses

more  particularly  PWs.  1,  2  & 3,  the  trial  court  found  the

accused  guilty  and  convicted  and  sentenced  him  as

aforestated.  However,  in  appeal,  the  High  Court  directed

acquittal.

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4. In support of the appeal, learned counsel for the State

submitted  that  the  approach of  the  High Court  was clearly

erroneous.  Recovery  of  the  money  has  been  clearly

established.  No  reason  has  been  indicated  to  discard  the

evidence of PW 3.

5. Learned  counsel  for  the  accused,  on  the  other  hand,

submitted  that  the  High Court  on analysis  of  the  evidence

came to hold that the prosecution has failed to establish the

accusations.

6. One  of  the  reasons  which  has  weighed  with  the  High

Court to direct acquittal is the statement of PW 1.  According

to High Court his evidence clearly proved that recovery order

was  issued  against  the  complainant  on  29.3.1984  and  it

contained  signatures  of  the  superior  officer  as  well  as  the

accused.  The High Court came to hold that once the recovery

order has been issued, the accused could not have frustrated

the recovery on any ground.  The recovery can be frustrated

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only before the issuance of the recovery order.  The reasoning

of  the  High  Court  is  clearly  fallacious  in  as  much  as  it

overlooked the fact that the recovery order itself contained the

signature of the accused.  If that is so, there was no question

of his being not involved in recovery. The High Court noted

that  in  the  personal  search  one  currency  note  of  Rs.100/-

having  No.AA/35  377745  and  the  other  currency  Note  of

Rs.50/- having No.3 DH 3555826 were recovered from him.

7. The High Court attached unnecessary importance to the

evidence of PWs.1 & 2 to hold that they did not clearly hear

the demand for bribe.  It is contrary to the evidence on record.

The  High  Court’s  conclusion  is  that  after  examining  the

statement of these two witnesses it is apparent that none of

these  witnesses  had  heard  any  conversation  between  the

appellant  and the complainant.   Apart from it,  it  is  further

clear from their statements that it was not possible for anyone

to  hear  the  conversation  from  that  place  where  they  were

standing.  Shiv Prasad (PW 2) stated that appellant enquired

from police  party  the reason for  his  arrest.   This  is  a  very

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material  piece  of  evidence  which  hints  at  an  element  of

surprise  in  the  conduct  of  the  appellant  instead  of  an

exhibition  of  shock.  This  clearly  strikes  at  the  root  of

prosecution case of demand of a bribe by appellant for stalling

the  recovery.  There  was no reason indicated  to  discard the

evidence of PW 3.   

8. It is not to understand how the root of the prosecution

case  of  demand  of  bribe  was  rendered  vulnerable.   Merely

because the accused enquired from the police the reason for

his arrest, that does not establish the innocence. The question

as  to  why  he  was  being  arrested  and  then  telling  the

complainant that he had not done a good thing to him and he

had deceived him rather goes to show that the accused was

blaming the complainant for having betrayed him. It was not a

statement of innocence and on the contrary it was a statement

showing anguish that the complainant had got him caught.

As  noted  above,  the  recovery  of  the  money  has  not  been

disputed. The evidence of PW 3 clearly establishes the demand

and acceptance of bribe and the recovery.   The High Court

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had  recorded  contradictory  findings.   On  one  hand  it  has

noted that the recovery order contained the signature of the

accused  but  at  another  place  it  says  that  the  copy  of  the

recovery memo was neither handed over to the accused nor

his  signature  was  obtained  on  that.  With  this  erroneous

conclusion  the  High  Court  came  to  hold  that  the  recovery

memo  was  prepared  behind  the  back  of  the  accused.

According to the High Court’s own conclusion it was not really

so.  Interestingly, the suggestion made by the accused during

the cross-examination of PW 3 was that he had handed over

the money to the accused stating that the amount is the price

of  ghee  for  the  Project  Officer.  This  is  an  indirect  way  of

accepting that money has been received by him.  In fact there

was practically no denial of this aspect and the recovery has

also not been denied.

9. Above being the position, the order of the High Court is

clearly indefensible and is set aside. The order of conviction

recorded by the trial court is restored.  The custodial sentence

shall be one year which is the minimum sentence prescribed.

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10. The appeal is allowed to the aforesaid extent.   

…………………………………J. (Dr. ARIJIT PASAYAT)

…………………….…………..J. (P. SATHASIVAM)

…………………………………J. (AFTAB ALAM)

New Delhi, July 7, 2008

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