BHUSHAN SHARMA Vs. STATE

JUDGEMENT

(1.) By this appeal the Appellant challenges the judgment dated 12th August, 2002 convicting the Appellant for offences under Section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (in short the PC Act) and the order dated 16th August, 2002 awarding the sentence of rigorous imprisonment for a period of two years and a fine of Rs. 3000/- and in default of payment of fine to undergo simple imprisonment for a period of six months for offence under Section 7 PC Act, and rigorous imprisonment for a period of two years and a fine of Rs. 3000/- and in default of payment of fine to undergo simple imprisonment for six months for offence under Section 13(1)(d) read with Section 13(2) of the PC Act.

(2.) Learned counsel for the Appellant contends that PW1 in his testimony has stated that he went to the Assistant Accounts Officer Jai Gopal who sent him to the Appellant directing that the complainant PW1 should pay Rs. 1000/- to the Appellant which he will get and the bill will be rectified. Thus the Appellant has been erroneously charged and convicted for offence under Section 7 and 13 of the PC Act, though only a charge under Section 12 PC Act was made out. Even on confrontation in the cross-examination this witness states that money was demanded by Jai Gopal to be paid to the Appellant. Further DW2 with whose help PW1 approached the Appellant clearly stated that PW1 wanted installments. The bill had already been corrected on 7th June, 1993 and thus alleged demand on 14th June, 1993 could not have been made. Further the main accused Jai Gopal was never been summoned as an accused. PW1 had in fact gone to the CBI to make a complaint against Jai Gopal, however the complaint was dictated by the inspector of CBI and instead of Jai Gopal, the Appellant had been made the accused. Further to a Court query PW1 clarified that before going to the CBI he had come to know that the bill had already been corrected. Since the bill had already been corrected before payment of the alleged bribe, the entire prosecution story on the face of it is false. PW2 J.K. Sinha, the shadow witness has not supported the prosecution case. He has been put leading questions by the learned APP which are impermissible in view of the decision in Varkey Joseph Vs. State of Kerala, 1993 CrLJ 2010 . Despite number of people being present, none was joined as a public witness. The version that the entire proceedings were conducted at the spot is belied by the contrary versions of the prosecution witnesses. PW2, the shadow witness has stated that he did not hear the talk between the PW1 and the Appellant. There is non-application of mind by the sanctioning authority as he neither recollected which papers were sent to him and how long was the file kept before granting sanction. He was not even aware whether the bill in question had been rectified before the demand was made. There are material contradictions in the testimony of witnesses. Hence the Appellant be acquitted of the charges framed. Reliance is placed on Sunil Kumar Sharma Vs. State (CBI),2007 2 JCC(Del) 1315 and Banarsi Dass Vs. State, 2010 2 CivCC 181.

(3.) Learned Special PP for the CBI on the other hand contends that witness Jai Gopal could not be examined as he had died before he could be examined before the Court. It was the duty of the Appellant to correct the bill as he was working as a bill clerk and he demanded money for the correction of the bill. The bill was recovered from the possession of the Appellant at the time of raid. Further since tainted trap money was recovered from the Appellant, the onus under Section 20 PC Act having been discharged by the prosecution, thereafter the onus shifted on the Appellant/ accused to discharge. The version of the witnesses is supported by the CFSL report which says that the solution turned pink. It is further stated that in case acceptance is proved then the demand may not be necessarily proved. Reliance is placed on M. Narsinga Rao Vs. State of A.P., 2001 1 SCC 691; Krishna Ram Vs. State of Rajasthan, 2009 11 SCC 708; B. Noha Vs. State of Kerala and Anr., 2006 12 SCC 277; Girja Prasad (Dead) by LRs. Vs. State of M.P., 2007 7 SCC 625; Baliram S/o Irrappa Kamble Vs. State of Maharashtra, 2008 14 SCC 779; Tarsem Lal Vs. State of Haryana, 1987 2 SCC 648 and Bhagwan Singh Vs. The State of Haryana, 1976 1 SCC 389.