RAGHBIR SMGH Vs. STATE

JUDGEMENT

(1.) This is an appeal against the judgment and sentence dated 17.11.82. Thecaseoftheprosecutionwasthaton23.11.81 atabout3.15p.m. near the main gate. Employment Exchange, Darya Ganj when the appellant was employed as Peon in the office of the Employment Exchange he demanded and accepted Rs. 100/ - as bribe from one Ramesh for helping him to get a call letter. The learned Additional Sessions Judge found the appellant guilty under Section 161 IPC and Section 5(2) read with Section 5(l)(d) of the Prevention of Corruption Act and sentenced him to one year R.I. each under Section 161 Indian Penal Code and Section 5(2) read with Section 5(l)(d) of Prevention of Corruption Act. He was also ordered to undergo one year R.I. and to fine of Rs. 100.00 under Section 5(2) read with Section 5(1) (d) of Prevention of Corruption Act. Mr. B.T. Singh says that the fine of Rs. 100.00 was deposited by the appellant. Both the sentences were to run concurrently. Mr. B.T. Singh has argued that on the basis of evidence no case was made out against the appellant and as a matter of fact no charge could have been maintained against the appellant. He has specifically invited the attention of this Court to the testimony of PW5 Mr. P.L. Narula who had stated in the cross- examination that the appellant did not deal with the files relating to the call letters which were issued to the candidates. PW5 at the relevant time was working as Head Clerk in the said 673 Employment Exchange. Mr. B.T. Singh has further drawn the attention of this Court to the testimony and cross-examination of PW9 Mr. O.P. Guliani who was the Assistant Employment Officer at the said Employment Exchange on the date of occurrence i.e. 23.11.81 who also stated that the appellant had no connection absolutely whatsoever with the issuance of the call letters to the candidates registered with the Employment Exchange. Mr. B.T. Singh has also argued that in view of this evidence the charge framed itself could not have been sustained and impugned judgment and order of sentence do not survive in the eyes of law. In support of his contention he has cited Bhupesh Deb Gupta v .State of Tripura, 1978 Cri. L.J. 1738.-

(2.) Ms. Mukta Gupta learned Counsel for the State controverted the arguments of the learned Counsel for the appellant and has sought to defend the impugned judgment. She has argued that taking into consideration testimony of PW9 it was stated that the appellant used to take dak to various Sections and was in a position to read the dak as it was open. Therefore, it cannot be said that prosecution has failed to prove its case.

(3.) I have given my careful consideration to the arguments advanced by both the Counsel for the parties. I do not agree with the contention of the Counsel for State that the prosecution has proved its case. If I look at the charge which has been framed against the appellant, same was that the appellant has received a sum of Rs. 100.00 as bribe for getting a call letter issued in the name of wife of the complainant. Whereas the testimony ofPW5 and PW9 categorically states that the appellant had nothing to do with the issuance of call letter. Merely by taking dak if the appellant could see the contents of dak itself would not amount to committing of offence as alleged. In view of the specific statements made by the Head Clerk, PW5 and the Assistant Employment Officer, PW9 that appellant had no role whatsoever in the issuance of the call letter as he was only employed as Peon and his job was only to take dak, I do not feel that prosecution proved its case. The Court below has acted with material irregularity in appreciating the evidence of prosecution. In view of the observations made above, I set aside the impugned judgment and sentence. The appeal is allowed. The appellant stands acquitted. Appeal allowed.