SURESH DUTT SHARMA Vs. STATE

JUDGEMENT

(1.) The present appeal has been preferred against the judgment and order dtd. 19/11/2019 passed by the Learned Judge, Special (CBI) Court, Siliguri in Special (CBI) Court Case No. 34 of 2012 arising out of RC Case No. 05(A)/2004-Kol of CBI, Kolkata dtd. 4/2/2004 corresponding to FIR No. RC.CAA2004A 0005 dtd. 4/2/2004 under Sec. 7 of Prevention of Corruption Act, 1988, wherein the learned Trial Court was pleased to hold the appellant guilty for commission of offence and punished him under Sec. 13(2) of the Prevention of Corruption Act, 1988 and sentenced him to suffer Simple Imprisonment of one year and to pay of fine of Rs.2,000.00 i.d. to suffer simple imprisonment for three months. The Initiation of RC.CAA2004A 0005 dtd. 4/2/2004 was on the basis of a complaint lodged by Barnali Banerjee (Chakraborty) (hereinafter referred to as the 'complainant'). The complainant stated that in the month of September, 2003 she was appointed as a dance teacher at Central School (Kendriya Vidyalaya), Sevoke Road, Siliguri, District- Darjeeling with a contract of Rs.200.00 per day. On 29/1/2004 when she had been to school then S.D. Sharma, Principal of the said Kendriya Vidyalaya, Sevoke Road, Siliguri demanded as bribe from her a sum of Rs.1300.00 per month out of her monthly salary to be paid for continuation of her contract as a dance teacher in the said school. The complainant alleges that the Principal told her that she should pay him the said amount of Rs.1300.00 on 5/2/2004 afternoon in his office chamber at school. She was further threatened by the Principal that if she did not pay him the said amount of Rs.1300.00 on 5/2/2004 then he would terminate her from the service as a dance teacher. Complainant alleged that she did not intend to pay the said bribe of Rs.1300.00 to Sri S.D. Sharma, Principal of the school and a legal action may be taken against him. On the basis of the aforesaid complaint FIR was registered and the police authorities on conclusion of investigation submitted charge-sheet against the appellant Suresh Dutt Sharma under Sec. 7/13(1)(d) read with Sec. 13(2) of Prevention of Corruption Act, 1988. It was contended in the charge-sheet that during investigation it revealed that the complainant was appointed as dance teacher on contractual basis and accordingly she joined the said school on 15/9/2003 and her salary was fixed @ Rs.50.00 per teaching period subject to maximum limit of Rs.200.00 per day. On 29/1/2004 the appellant demanded bribe alleged in the written complaint. A trap was laid as per pre trap memorandum and accused was caught red handed. During post trap proceeding one Jayoti Roy intervened and alleged that the accused also took Rs.850.00 from her as bribe for allowing her to continue her service in the school on contract basis and said money was recovered from the accused in presence of witnesses on same day.

(2.) On conclusion of investigation the investigating agency submitted charge-sheet under Sec. 7/13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 against the present appellant. After supply of the documents on which the prosecution proposed to rely the learned trial Court was pleased to frame charges under Sec. 7/13(1)(d)/13(2) of the Prevention of Corruption Act, 1988. The contents of the charges were read over to the accused/appellant to which he pleaded not guilty and claimed to be tried. Prosecution in order to prove its case relied upon 10 witnesses which included PW1, Sibananda Bhattacharjee, a retired Bank Manager who was a witness of the recovery of trap money and trap procedure; PW2, Smt. Arati Darnal, a Senior assistant of SBI who was a shadow witness and who stated to have witnessed demand and acceptance of bribe and seen recovery of trap money and other post trap procedure; PW3, Barnali Banerjee (Chakraborty), complainant; PW4, Jayoti Roy, teacher of same school; PW5, Bimal Chandra Purkait, Chemical examiner who reported regarding phenolphthalein, sodium carbonate test; PW6, Sudip Roy, trap laying officer; PW7, Sanjay Kumar Aryya, Senior branch manager, UCO Bank at whose instance withdrawal slips, forwarding letter and one bank account statement were marked as exhibit; PW8, Arindam Paul, employee of Kendriya Vidhyalaya; PW9, H.M. Cairae, the then Commissioner of Kendriya Vidhyalaya Sangathan, New Delhi who granted sanction order for prosecution of the accused and PW10, Shri Rajesh Chahal, Inspector-in-charge, CBI. The prosecution also relied upon 36 documents to prove its case and five material exhibits which included the three bottles containing sodium carbonate solution, yellow envelope and 85 notes of Rs.10.00 denomination. PW1, Sibananda Bhattacharjee is a retired Bank officer who was posted as Manager, Allahabad Bank, Siliguri, Regional Office from 2004 till 31/10/2007. The witness deposed that on 4/2/2004 he was instructed by the Regional Manager to report at the CBI Office at Siliguri on 5/2/2004. As such on the morning of 5/2/2004 he reported at CBI Office where he was introduced to Barnali Banerjee (Chakraborty) who was the complainant. The witness deposed that he was shown the complaint which the complainant informed was lodged voluntarily. Another person named Arati Darnal was also introduced to him. Barnai Banerjee told him that an amount of Rs.1300.00 was demanded by the Principal as bribe to renew her in the same post as teacher for further period of time, she did not accept the proposal and lodged the complaint. The witness deposed that in his presence Barnali Banerjee gave 13 notes of Rs.100.00 denomination to the CBI Officer, which were to be used in trap. The notes were treated with phenolphthalein powder and the number of the notes were recorded in a separate sheet. A copy of the same was handed over to the witness. The CBI Officer informed him that the notes which were treated if dipped into a solution would became pink, the same was demonstrated also by dipping one of the notes in a solution which became pink. The solution which was used was kept in a bottle and was sealed and labeled, the same was identified by the witness in Court and marked as MAT Ext.I, the label which contained the signature of the witness and pasted on the bottle on identification was marked as Ext.1. Witness deposed that the notes were handed over to the complainant/Barnali and she kept it at the right side of her cardigan. She was instructed by the CBI Officer that the said notes should be handed over only when the Principal demanded it and she should enter the chamber of the Principal along with Arati Darnal. Arati Darnal was instructed to give signal as soon as the transaction was over and the witness along with CBI Officer would thereafter enter the chamber of Principal. Witness also signed the pre-trap memo which was prepared, the signature in the pre-trap memo was identified by him and marked as Ext.2 (collectively). Barnali and Arati left CBI Office in a car, the two cars separately proceeded to school with CBI Officials and the witness accompanying them. After going to the school and reaching the location of the Principal's chamber, witness found that the Barnali, Arati and CBI Officers were outside the chamber of the Principal, as a visitor was inside. When the visitor came out Barnali entered the chamber of Principal and Arati followed her. Then Arati gave signal when the CBI Officers and the witness entered the chamber. Two CBI Officers caught hold of the two hands of the Principal and the witness found that money was lying on the table in front of the Principal, his hands were immersed in the liquid which turned pink. The liquid was thereafter placed in bottles, sealed and labeled. Witness signed on the labels. Witness identified both the bottles which were marked as MAT Ext.II and MAT Ext.III, and his signature on labels were marked as Ext.3 and Ext.4 respectively. The witness was thereafter asked to count and verify the notes with those shown at the pre-trap session, on verification witness found the notes tallying with those shown at the pre-trap session. The notes were then kept in an envelope and sealed and signature was obtained in the envelope. Witness deposed had the same been shown to him, he could have identified the same. After the said process was completed another teacher came to the Principal's chamber and informed that she was Computer Teacher working temporarily and in order to renew her service, Principal in the morning has taken Rs.850.00 from her. After search the CBI Officers recovered the same from attachi of the Principal. The said notes were seized under a proper seizure list, sealed and kept in an envelope. Witness signed the same on both sides of the seizure list, identified the same in Court, which was marked as Ext.5 (collectively). Witness also identified his signature in the envelope which was marked as Ext.6. Witness identified the 85 notes of Rs.10.00 denomination. The envelope was marked as MAT Ext.IV and the notes bound with cotton thread was marked as MAT Ext.IV/1. Those notes contained slip of UCO Bank, Siliguri, over which the witness signed and identified the same in Court which was marked as Ext.7. Witness also identified his signature on the sketch map which was marked as Ext.8. A post trap memo was also prepared wherein the witness signed and identified the same in Court which was marked as Ext.9. The signature of the Principal which was signed in his presence on the seizure list was identified and marked as Ext.5/1 (collectively). Witness identified the accused in Court and submitted that his statement was earlier recorded by the Investigating Officer. PW2, Arati Darnal was posted as Sr. Assistant of State Bank of India, Pradhan Nagar Branch and from 1992 till May, 2004 she was posted at Zonal Office, Siliguri. She deposed that as per request of CBI at the Zonal office, Siliguri she was instructed to join CBI on 4/2/2004 and she had been to CBI Office at Hakim Para, Siliguri. On 5/2/2004 at 9.30 am she was introduced with another lady namely, Barnali Banerjee a dance teacher of Central School, Siliguri. It was informed to her that she was a temporary teacher there and has lodged a complaint against the Principal of Central School, Siliguri. She was also shown 13 notes of Rs.100.00 denominations and informed that the said notes would be used for trap. The CBI Officers stated that phenolphthalein powder would be spread over the said notes and if those notes are washed by solution of sodium carbonate and water the colour of the solution would become pink. Before spreading powder over the said notes, the CBI Officers recorded the number of the 13 notes on a paper and asked another person who was also a bank officer present there to verify the same. The CBI Officers thereafter demonstrated by washing his hands in the solution which turned pink after the hands were dipped. The said solution was kept in a bottle sealed in her presence and she signed the label pasted over it. She identified the bottle which was marked as MAT Ext.I and her signature on the label was marked as Ext.1/1. The notes were handed over to Barnali Banerjee and she was asked to keep those notes in the pocket of her cardigan. She was instructed to accompany Barnali Banerjee to the chamber of Principal, Barnali was asked to hand over the money to the Principal only when the Principal demanded the same and she was instructed to carefully hear the conversation between Barnali and the Principal and to give signal to the members of the CBI team who would wait outside the chamber of the principal. She was asked to give signal after completion of the transaction by coming out of the chamber and to rub her face with hand. S. Bhattacharjee was asked to wait outside the chamber with the CBI officers and to accompany them to the chamber after getting signal from her. After instruction the memorandum prepared at CBI Office was signed by her, the same was identified in Court and marked as Ext.2/1 collectively. She along with Barnali Banerjee thereafter left the CBI Office for school and went near the chamber of the Principal when they found another visitor was there in the chamber. They were waiting outside the chamber and the CBI Officers along with Mr. Bhattacharjee were also waiting outside the chamber. When the visitor came out she along with Barnali Banerjee entered the chamber. The Principal asked Barnali regarding her identity when she introduced her as a neighbor and also informed the Principal she was not fit at that moment to attend classes on that day so she was accompanied by her. Barnali thereafter requested to extend her term when the Principal asked whether she had brought the money. At that time Barnali informed him that she was carrying the money when the Principal asked her to give him the money. Barnali thereafter brought out the notes from the right pocket of her cardigan and gave it to the Principal and the Principal received the same with his right hand and counted the notes with both of his hands. She came out of the chamber and gave signal by rubbing her face with her hands and immediately CBI Officers and Mr. Bhattacarjee entered the chamber of the Principal. Thereafter she also entered the chamber of the Principal again. Two CBI officers caught hold of the two hands of the Principal who was still counting the notes. As soon as his hands were caught by the officers, he threw the notes on the table. Thereafter CBI officers brought a solution in a bowl and washed left hand of the Principal in that bowl with that solution. The colour of the solution became pink and the said solution was kept in a bottle, again the said bowl was filled with solution and right hand of the Principal was washed with that solution and the solution became pink. The said pink coloured solution was kept in another bottle. Both the bottles were sealed and labels were pasted over it and she signed on those two labels. The bottles were identified and marked as MAT Ext.II and MAT Ext.III. The signature on the labels were marked as Ext. 3/1 and Ext.4/1. The CBI Officers thereafter asked Mr. S. Bhattacharjee to verify those notes with the list which was prepared at pre- trap session, he verified and found the same to be correct and tallying. The notes were kept in envelope and she was asked to sign the envelope. She stated that had the said envelope been produced she could have identified the same with her signature thereon. She added that when they were in the chamber of the Principal and the CBI Officers were doing their work at that time another lady namely, Jayoti Roy entered the chamber, she was computer teacher of the school and she alleged before the CBI that in the morning of that day she also gave bribe of Rs.850.00 to the Principal for extension of her tenure as temporary teacher. She further informed that she gave eighty five notes of Rs.10.00 denomination, the CBI officers then started searching and recovered the said money from the briefcase of the Principal. CBI seized the said amount under a seizure list and she signed it. She witnessed the seizure and identified her signature in the seizure list which was marked as Ext.5/2. A copy of the said seizure list was handed over to the Principal but she was unable to identify the signature of the Principal. She identified her signature on the envelope where the 85 notes of Rs.10.00 denomination were kept, the said envelope was marked as MAT Ext.IV. The signature on the envelope was marked as Ext.6/1. Her signature was also obtained on the slip attached to the notes, she identified the Rs.10.00 notes bound by cotton thread as well as her signature on the slip which was marked as Ext.7/1. The signature of the witness was also present in the rough sketch map which was marked as Ext.8/1. She narrated that after completion of seizure a post-trap memorandum was prepared and her signature was obtained therein, she identified her signature which was collectively marked as Ext.9/1. Post-trap memorandum was prepared in the chamber of the Principal with the help of computer available in his chamber. She identified the Principal in Court and also identified the complaint which was shown to her and was filed by Barnali Banerjee.

(3.) PW3, Barnali Banerjee (Chakraborty), complainant, deposed that during January and February, 2004 she was a dance teacher of Kendriya Vidyalaya, Sevoke Road, Siliguri. She was appointed on contractual basis for working on and from September, 2003 to 4/2/2004 the then Principal of the School Mr. S. D. Sharma demanded Rs.1300.00 from her for continuation of the contractual service in that school. She was unable to accept such proposal for giving him bribe and went to CBI Office at Hakimpara to lodge a complaint against Mr. S.D. Sharma and she lodged her complaint there. She identified the written complaint addressed to the S.P. CBI. She also identified her signature on the complaint and the same was marked as Ext.10. After submission of her complaint she was asked by the CBI Officer to come to their office on the next day, as such on 5/2/2004 she had been to the CBI Office at Hakimpara at about 10.00 am with a sum of Rs.1300.00 as instructed by the CBI Officer. There were some CBI Officers and other persons. Those CBI Officers informed her, that a trap would be laid and they demonstrated before her as to how the trap will be laid. The notes brought by her were taken by CBI Officers, a list of the said 13 notes were prepared. The notes were also spread with phenolphthalein powder. One of the Officer demonstrated after holding the notes and washing his hands in a bowl containing some soda water that immediately the colour of the solution would turn pink. The said pink coloured water was kept in a bottle which was sealed along with others, she also signed the label pasted on it. Her signature on the label was marked as Ext.1/2. The notes were kept in an envelope, the said envelope was kept in the pocket of her cardigan by an officer and was asked not to touch it and that she should give it to the Principal only when he would demand the money. She was told that R.T. Dharnal would accompany her. She should introduce him as a neighbor. He was instructed that when the money would be taken by the principal in his chamber he would come out by rubbing his hands on his face. Another witness Sibananda Bhattacharjee was also instructed to observe the matter. Thereafter a pre-trap memorandum was prepared and along with others she signed the said memorandum. She identified the memorandum and her signature which was marked as Ext.2/2. All of them started from CBI office in their vehicle for Central School, at a distance from the school the vehicle stopped and she along with R.T. Dharnal got down from the vehicle and proceeded towards the school, the other persons including the CBI officers also followed her from some distance. She stated that they reached the school at about 12.30 p.m. and when they reached there were two other persons in the chamber of Principal and they had to wait outside the chamber. When those two persons came out she along with R.T. Dharnal entered his chamber and as soon as they entered the chamber Principal questioned as to who was accompanying her, she introduced him as a neighbor and stated that as she was not physically fit and unable to hold her class for being sick he accompanied her. She informed the Principal that she brought the money which was demanded for service. Then he stated "Kya lie ho", she confirmed the same when he asked for the money and she brought out the same from her pocket and handed it over to him and when she offered the money to him at that moment R.T. Dharnal got out of the room and immediately the CBI officers entered into the chamber. The Principal who was still holding the money threw it on the table and the CBI officers caught hold of his two hands and the same was washed in a solution kept in a bowl which turned pink. The said pink colour solution was kept in a bottle and label was pasted on it, she identified the signature which was marked as Ext.4/2. Another bottle containing pink colour solution was also labeled and pasted on the bottle with her signature which was marked as Ext.3/2. CBI Officers thereafter asked Sibananda Bhattacharjee to verify the number of the notes mentioned in the list, Sibananda Bhattacharjee verified the same and found the numbers tallying with the numbers in the list and the same was kept in an envelope and sealed. On the said envelope she also signed. The said envelope was marked as 'D' by the CBI Officers. She could have identified the same if the same was produced in Court. At that time another teacher namely, Jayoti Roy computer teacher entered the chamber of the Principal. She represented that the Principal took Rs.850.00 from her and she gave the same in the form of 85 notes of Rs.10.00 denomination accompanied by a slip of UCO Bank, those were bound by girder. On hearing the same CBI Officers searched the briefcase of the Principal and found those notes in his briefcase. The slip of UCO Bank was attached with those notes. After completion of the said seizure the same were recorded in post-trap memorandum which was signed by her along with others present there. She identified the post-trap memo and her signature over it which was collectively marked as Ext.9/2. She also identified the 85 ten rupees notes which were marked as MAT Ext.IV/1. She deposed that she applied at the Central School on the basis of an advertisement in the newspaper. She produced the said application which was submitted by her at the time of appointment, it contained her signature. The document was marked as Ext.11 and her signature on it was marked as Ext.11/1. She further narrated that interview was held in which Principal was present and she was appointed as dance teacher. After interview she was informed about her selection over phone, she joined the school on 15/9/2003 and her appointed was on contractual basis. As a teacher she signed the attendance register both at the time of entrance and after completion of classes and used to maintain diary as a teacher. The teacher's diary was shown to her and she stated that the diary contains endorsement from 24/2/2003 to 26/2/2004. The diary was marked as Ext.12. The 15 pages of the diary were used by her, other pages were blank. Staff attendance register for the period from December, 2002 till January, 2004 contains her signature against her name in all the working days when she was present in school in those five months. The part of the attendance register for the month of September, October, November and December were marked as Ext.12, Ext.13/1, Ext.13/2, Ext.13/3 and Ext.13/4. At the end of every month teachers had to submit summery sheet, she submitted summary sheet during her tenure at school. She identified the summary sheet for the month of September, October, November and December, 2003 and January 2004. The summary sheets of five months were collectively marked as Ext.14. After end of the month she was given consolidated amount of salary which she received by signing a bill. She also deposed that generally she used to speak with the Principal in Hindi. All the conversation relating to bribe and payment to bribe were done in Hindi. She indentified the Principal in Court.