CENTRAL BUREAU OF INVESTIGATION Vs. BINOY KUMAR SARKAR

JUDGEMENT

(1.) THIS is an application filed by the petitioner CBI challenging the judgment and order dated 25th April, 2001 pronounced by the Ld. 5th Special Court, Calcutta in Case no.4 of 1996 in the matter of State (CBI) Vs. Binoy Kumar Sarkar and Anr. By the said impugned judgment and order the Ld. Special Court was pleased to acquit the accused persons of the charges framed against them under Sections 7 read with Section 13 (1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (for short the P.C.Act). Aggrieved by such order of acquittal the CBI has preferred the present application being CRM 2772 of 2001. The brief facts of the case are as follows: - a) That on 19th January, 1996, one Paresh Nath Duari, Laskar of Budge Budge Unit under Mooring Masters' office lodged a complaint with the CBI that one of the accused, Binoy Kumar Sarkar, being the respondent no.1 in this application has demanded a sum of Rs.1,000 as illegal gratification to be paid to him on 22nd January, 1996 at the Mooring Masters' office, Calcutta Port Trust for quick release of the salaries of the said complainant for the period August to September 1995 and his identification at the time of encashment. b) That the complaint was registered on 20th January, 1996 in the office of the CBI, Anti -corruption branch u/s 7 of the P.C.Act being R.C. Case no.7 of 1996. c) On the 22nd of January, 1996 at about 2:15 p.m. a trap was laid by the CBI in respect of the 2 respondents at the tea stall of one Swapan Mondal located in front of the Mooring Masters' office, Calcutta Port Trust at Taktaghat, Hastings. Immediately, after the said Binoy Kumar Sarkar, the respondent no.1 had accepted the bribe money and passed it on to the respondent no.2, Sri Nirmalendu Bhattacharya, they were arrested in the presence of witnesses. The entire trap operation was executed in front of several witnesses and the respondent no.2, the said Nirmalendu Bhattacharya accepted the money and concealed it in the right pocket of his 'kurta'. Thereafter the said money was transferred by him to the respondent no.1, the said Binoy Kumar Sarkar. d) The sanction was recorded for prosecution and charge sheet was submitted on 13th August, 1996. Cognizance was taken and, on 19th January, 1997 charges were framed under the aforementioned Sections of the P.C.Act. Upon commencement of trial on 14th April, 2001, on 25th April, 2001 the Ld. 5th Special Court pronounced its judgment and order acquitting the respondents of the charges and directing that the seized currency notes be returned to the de -facto complainant. Challenging the said order of acquittal the present application has been filed. Sri Ashraf Ali, Ld. Counsel appearing for the petitioner -CBI submits that the entire appreciation of the evidence of the Ld. Special Court is erroneous. Consequently, he submits that the Ld. Special Court arrived at a wrong conclusion thereby acquitting the respondents. Taking this Court first to the evidence of PW5 appearing at pg.44 of the paper book, Sri Ali points out that such evidence is totally free from ambiguity. PW5 is the de -facto complainant. In his evidence PW5 states that he is a Laskar attached to the Marine department of the Calcutta Port Trust. Between 18th August, 1995 to 3rd January, 1996 he was on leave on account of his wife's illness for which he was not able to draw his salary. The salary of Laskar is drawn from the office of Mooring Masters' office at Taktaghat under Calcutta Port Trust. On 16th January, 1996, i.e. the day of payment of his salary, PW5 went to the office of the Bill Section at the Mooring Masters' office and was met by the respondent no.1. At the relevant time the respondent no.1 was working as Bill Clerk and was responsible for payment of salaries. PW5 states that the said respondent no.1 demanded Rs.1,000 from him in cash in lieu of payment of salary. Failing such illegal gratification PW5 was told that he would receive no salary. The arrears of salary payable to PW5 at the relevant time was above Rs.7,000. It is the further evidence of PW5 that on payment of the bribe amount of Rs.1,000 to the respondent no.1 in cash all the present and outstanding salaries of PW5 shall be released to him. Being in a bind PW5 agreed to the payment of Rs.1,000 to the said respondent no.1. Subsequently PW5 met his colleague, one Nirmalendu Dey and narrated the above facts to him. He was taken by the said Nirmalendu Dey to the office of the CBI for lodging a complaint. He lodged a detailed written complaint of the demand for illegal gratification made by the respondent no.1 which is marked Exbt.11. PW5 was told by the CBI officials to come to the CBI office with a cash amount of Rs. 1,000 on the 21st of January, 1996. Accordingly, he came to the CBI office with the cash amount of Rs.1,000 and handed it over to the officials who made a bundle of the notes, Rs.10 each of Rs.1,000 with some powder in presence of two witnesses namely, one Sankar Babu and one Dibakar Babu. The notes were thereafter counted by Dibakar Babu at the instance of the CBI officials and after such counting was over the hands of Dibakar Babu were washed by soda water which was then kept stored in a separate pot. The water became pink in colour and the same was kept in a bottle and sealed with a label. On the label PW5 was asked to put his signature and the said bottle with pink water is marked material Exbt.IIA. The signature of PW5 on the bottle is marked Exbt.2/13. Thereafter several formalities regarding lodging of the complaint were completed by the CBI officials including the recording of the notes in a memorandum. While tendering evidence the notes were produced in a sealed pack before PW5 who identified the notes verifying it with the proofs mentioned on the trap memorandum. Thereafter on the instructions of the CBI officials PW5 along with the witnesses namely Dibakar Babu and Sankar Babu met before the Mooring Masters' office. As per arrangement the CBI officials also came to the office. The date was 22nd January, 1996. At the office on the said date the signature of PW5 was obtained by the respondent no.1 on two pay orders. The said pay orders have been marked Exbt. 12 to Exbt.12/3. After taking his signature on the pay orders the respondent no.1 instructed PW5 to come towards the canteen beside the Mooring Master's office near a tea stall alongwith the two independent witnesses, Dibakar Babu and Sankar Babu. On arriving at the tea stall PW5 sat nearby and after sometime the respondent no.1 came to the spot alongwith respondent no.2. There the respondent no.1 demanded the bribe amount of Rs.1,000 for payment of his arrear salary and PW5 handed over the said amount to the respondent no.1. The money was then passed by the respondent no.1 to the respondent no.2 who kept it inside the pocket of his 'kurta'. Simultaneously as per direction of the CBI officials PW5 put his hand on his head by way of a signal and on doing so the CBI officials intercepted both the respondent nos.1 and 2 by disclosing their identity. The pocket of the respondent no.2 was searched and the amount of Rs.1,000 was seized which was then handed over to the respondent no.1. The hands of the respondent were washed and the pink water which emerged after washing was kept in a bottle in sealed cover labelled by the CBI officials in presence of witnesses. PW5 again signed at the label on the bottle which was marked material Exbt.II B. Thereafter, other procedures connected with the trap and seizure were completed by the CBI officials, including washing the pocket of the 'kurta' of the respondent no.2 with soda water, the colour of which also became pink as well as washing the hands of the respondent no.1 which, again resulted in pink water. Thereafter, the respondent nos.1 and 2 were arrested and taken to the CBI office. Sri Ali submits that the entire evidence of PW5 is cogent and consistent. The fact that money was taken is not denied. The fact that a trap was laid is also not denied. Sri Ali emphasizes the fact that prior to handing over the money to the respondent nos.1 and 2 on the 22nd January, 1996, PW5 was required by the respondent no.1 to put his signatures on two pay orders. According to Sri Ali, this signifies that the money was demanded in relation to the promise to release the regular and outstanding salaries of the PW5. It is the further contention of Sri Ali that the case of the prosecution is buttressed by the evidence of the two independent witnesses namely PW3 and 4. Both PWs 3 and 4 have corroborated the version of PW5. In such view of the matter Sri Ali submits that the entire sequence of events prior to and on 22nd of January, 1996 with regard to the demand and acceptance of the bribe money stood established against the respondent no.1. Although, there is no allegation of demand of money against the respondent no.2, the respondent 2 was aware that the money handed over was bribe money and knowing such he took the money handed over to him by the respondent no.1 and kept it in the pocket of his 'kurta'. Sri Ali further takes this Court to the order granting sanction for prosecution which appears at pg.6 of the paper book. He submits that from a plain reading of the said order of sanction it will appear that there is application of mind by the sanctioning authority who was the Deputy Chairman, Calcutta Port Trust. Sri Ali therefore disputes the conclusion of the Ld. Special Court on the score that the sanctioning authority did not apply its mind as to who actually prepared the salary bill of PW5 -de facto complainant. In the opinion of the Ld. Special Court the sanctioning authority did not make any independent enquiry regarding the allegations against the respondent no.1 and derived knowledge with regard to the events from the complaint itself and such knowledge is reflected in the sanction order without having its basis in an independent enquiry. The Ld. Special Court was pleased to come to the view that the grant of sanction in the present case cannot be considered to be a careful and conscientious act upon proper application of mind. Rather, in the opinion of the Ld. Special Court the grant of sanction was a routine and mechanical one and hence the sanction order must be held to be illegal and in admissible in evidence. The Ld. Special Court therefore took the view that on the basis of such an illegal and invalid sanction order the prosecution case is void ab initio. However, the Ld. Special Court proceeded to deal with the merits of the complainant in addition to the declaring the sanction order as a nullity. On the merits of the complainant the Ld. Special Court was pleased to come to the view that it does not appear from the complaint (marked Exbt.11) or, from the evidence of the de facto complainant (PW5) or, from any other witness that there was any demand of illegal gratification by the respondent no.2. The respondent no.2 was admittedly posted as a Laskar at the relevant time being in the category of a Class IV staff. The said respondent no.2 appears to be in charge of the outdoor work at the relevant time and was nowhere connected with the office works or any duty in the office as per cross - examination of PW9. The respondent no.2, in the opinion of the Ld. Special Court and, to the mind of this Court, rightly so, was involved in the transaction of bribe only to the extent that he was asked by the respondent no.1 who was in a superior post to keep the money handed over by PW5, which he did in the right pocket of his 'kurta'. The respondent no.2 in his examination u/s 313 CrPC said that he took the money from the respondent no.1 instantly without knowing the background of the transaction and kept the money with him only on the instruction of the respondent no.1. The Ld. Special Court therefore rightly concluded that the respondent no.2 "is not a habitual go -between" in respect of acceptance of bribe money and therefore was entitled to acquittal from the charges under Sections 7 and 13(1)(d) of the P.C.Act. However, with regard to the role of the respondent no.1 the Ld. Special Court took the following line of reasoning. The Ld. Special Court first identified that there are two unions in the office of the Calcutta Port Trust namely, The Port Sramik Union and the I.N.T.U.C. Admittedly, the PW5 -de -facto complainant and his colleague, Nirmalendu Dey, who took him to the office of the CBI, are members of the I.N.T.U.C. and such would appear from the evidence. The PW5 - de facto complainant was not aware of the fact that the respondent no.1 is a member of the rival Port Sramik Union. The case of the defence was that the respondent no.1 belonging to a rival union has been falsely implicated by the PW5 -de facto complainant alongwith his colleague, Nirmalendu Dey. The Ld. Special Court found no reason to disbelieve the defence case on this cause. The Ld. Special Court came to the following view: - "Rivalry and animosity can, therefore be reasonably presumed between the de facto complainant and Nirmalendu Dey, on the one hand and the accused Binoy Sarkar on the other hand" The further view taken by the Ld. Spcial Court with regard to the involvement of the respondent no.1 was that the respondent no.1 was the Bill Clerk in the Mooring Masters' office at the relevant time and was responsible for preparing the bills for Class III staff. It being an admitted position that the PW5 - complainant was a Class IV staff there is no cogent evidence forthcoming that the respondent no.1 was responsible for preparing the bills of Class IV staff also. From Exbt.12 it transpires that the pay orders in respect of the PW5 - de facto complainant, who was a Class IV staff were not prepared by the respondent no.1 but by one, Arun Mallik, the PW8 from the salary bill (marked Exbt.12) it does not appear that there is any endorsement or signature of the respondent no.1. Admittedly, the Ld. Special Court noticed that the respondent no.1 was senior to the said Arun Mallik, PW8, who was the other Bill Clerk in the Mooring Master's office at Taktaghat. It was Arun Mallik who prepared the bill in question and therefore there are reasons to believe that the respondent no.1 was only responsible for preparing the bills of Class III staff. In such view of the matter the Ld. Special court was of the view that there can be no interest of the respondent no.1 which could be connected to the preparation of the bill of the PW5 -de facto complainant. In the absence of such interest, the charge of accepting illegal gratification is without any basis. Since the respondent no.1 was not in charge of the preparation of the bills of Class IV staff including the PW5 -de facto complainant it could not be inferred axiomatically that he would demand illegal gratification for releasing the regular and outstanding salaries of PW5 -de facto complainant. On this score the Ld. Special Court was pleased to allow the benefit of doubt in favour of the respondent no.1 and directed his acquittal. Another plank of reasoning adopted by the Ld. Special Court was that the PW5 -de facto complainant has admitted to borrowing money from others to meet the expenses of the treatment of his wife. The fact that respondent no.1 had stated in his examination u/s 313 CrPC that the PW5 -de facto complainant asked him to give money handed over to him on the 22nd January, 1996 to Arun Mallik, PW8 on the ground that PW5 -de facto complainant had borrowed the money from the said Arun Mallik. In the opinion of the Ld. Special Court the story of the borrowing of money from Arun Mallik -PW8 by the PW5 -de facto complainant and its return to the lender on 22nd January, 1996 through the medium of respondent no.1 was found to be probable and, on the basis of such probability the Ld. Special Court found it fit to order the acquittal of the respondent no.1. The concluding portion of the judgment and order impugned reads as follows: - "I have not the least shadow of doubt and hesitation in my mind to hold that there is ample scope for reasonable doubt about alleged guilt of the accused and the accused are, accordingly, given the benefit of doubt." Ms. Sutapa Sanyal, Ld. Counsel appearing for the respondent no.1 has supported the view taken by the Ld. Special Court and has taken this Court to several portions of the evidence. Taking this Court to such evidence Ms. Sanyal laid emphasis on the fact that it is on record that the respondent no.1 was not in charge of the preparation of bills of Class IV staff to which PW5 -de facto complainant admittedly belonged. The respondent no.1 has been found to be only in charge of preparation of bills of Class III staff of the Calcutta Port Trust at the Taktaghat office and hence he cannot be said to have any manner of nexus with the release of the regular and outstanding salaries of PW5 - de facto complainant. In such view of the matter the very sub -stratum and/or basis of the allegation of illegal gratification in respect of an act to which respondent no.1 is not at all connected cannot arise. In support of her above argument Ms. Sanyal places heavy reliance to the evidence of PW8 who has clearly admitted that he is responsible for preparing the bills of Class IV staff. Therefore, Ms. Sanyal has argued that the Ld. Special court was correct in arriving at the conclusion that the money paid to respondent no.1 outside the office was not money connected to the bribe but connected to the loan taken by PW5 -de facto complainant. Ms. Sanyal also support the conclusion of the Ld. Special Court on the finding that the respondent no.1 may have been implicated by the PW5 -de facto complainant alongwith the said Nirmalendu Dey on the ground of the union rivalry. She also supported the conclusion of innocence of the respondent no.1 arrived at by the Ld. Special Court on the score that the salary bills of PW5 -de facto complainant do not bear the signature of the respondent no.1. She relies upon the following decisions: (i) (2008) 17 SCC 13 (Para 21 to 25); (ii) (1998) 2 JT 563 (Para5) or CDJ 1998 SC 447; (iii) (1990) 3 JT 317 (Para 4 to 7) or CDJ 1990 SC 507; (iv) AIR 1934 PC 227; (v) AIR 1954 SC 15 (Para 5 to 9); (vi) (1992) 1 CHN 60; Heard the parties. Considered the materials on record. This Court is unable to agree with the findings of the Ld. Special Court with regard to the acquittal of the respondent no.1 on the following grounds: - a. That the evidence of PW5 -de facto is clear and unambiguous. The PW5 -de facto complainant has given a clear stream of evidence on the sequence of events prior to and on 22nd January, 1996 pertaining to the acceptance of the illegal gratification by the respondent no.1. In the opinion of this Court PW5 -de facto complainant has been able to make out the circumstances in which the said illegal gratification was demanded and taken by the respondent no.1. b. The fact of taking of the said illegal gratification stood clearly established by the sequence of events of 22nd January, 1996. The trap and the seizure of the money in presence of independent witnesses by the CBI officials stands proved. As rightly argued by Sri Ali neither the taking of the money nor the trap could be denied by the respondent no.1. c.It is an admitted position that both the respondent no.1 and the PW8, the said Arun Mallik were working together in the Mooring Master's office. It is further an admitted position that the respondent no.1 was senior to the said Arun Mallik in the bill office. It is also admitted in the evidence of PW5 -de facto complainant that he signed the pay orders in presence of the respondent no.1 alone. Therefore, in the opinion of this Court the attempt on the part of the respondent no.1 -defence to explain away the role of the respondent no.1 on the specious ground that the respondent no.1 was only responsible for preparing the bills for Class III staff and not Class IV staff cannot be considered to be foolproof. The fact that the respondent no.1 as a senior to PW8, Arun Mallik in the same bill office could have a hand and/or a role to play and/or influence to exert in the preparation of the bill of PW5 -de facto complainant cannot be discounted. PW5 -de facto complainant is unambiguous in his evidence that the terms of release of his salaries on payment of the said illegal gratification was made by the respondent no.1 with the expectation that on that particular date i.e. 22nd January, 1996 the pay orders of the PW5 -de facto complainant will be ready and such pay orders were, indeed ready and signed by the PW5 -de facto complainant in the presence of the respondent no.1; d. The other argument advanced by the respondent no.1 -defence that the money handed over outside at the canteen by PW5 -de facto complainant to respondent no.1, who then gave it to the respondent no.2 was intended as the return of loan borrowed from PW8, Arun Mallik by the PW5 -de facto complainant is difficult to accept. In the likely event that such money was to be returned to PW8 -Arun Mallik by the borrower, PW5 -de facto complainant, the return of the borrowed money could have easily taken place directly between the two transacting parties, viz. borrower and the lender. There could have been no occasion for either the respondent nos.1 and 2 to step in as intermediaries in a simple loan transaction between the actual borrower and the actual lender. e. Suspicion that the said money was taken by the respondent no.1 by way of illegal gratification is strengthened by the fact that immediately after signing of the pay orders the PW5 -de facto complainant was asked by the respondent no.1 in the presence of two independent witnesses to wait for him outside at the canteen. Thereafter, the respondent no.1 took the money outside the office creating a nexus between the signature obtained by him of the PW5 -de facto complainant on the pay orders on the arranged date,i.e. 22nd January, 1996 and the acceptance of money by him as per pre -arranged plan at the canteen outside the office. f. The version of the respondent no.1 -defence that the money was returned as a loan by PW5 -de facto complainant is again difficult to accept on the ground that the PW5 -de facto complainant was admittedly heavily out of pocket due to non -receipt of his regular and outstanding salaries. The PW5 -de facto complainant had approached the respondent no.1 for release of his regular and outstanding salaries amounting to around Rs.7,000. Also, the PW5 -de facto complainant had to spend a substantial sum of money for the treatment of his wife during which he had to remain absent from his office. There is no whisper in the evidence of the PW5 -de facto complainant that on the signing of the pay orders he was immediately handed over his regular and outstanding salaries amounting to Rs.7,000. In the above premises it is hard to believe that an individual being heavily out of pocket and expecting payment of his regular and outstanding salaries with anxiety shall at the first instance, even before being paid his dues shall be in a position to return the sum of Rs.1,000 towards repayment of loan. The presumed course of human behaviour is that in the event the said amount was a loan amount the sum would have been returned by the PW5 -de facto complainant directly to the alleged lender, PW8 -Arun Mallik immediately on actual receipt of his regular and outstanding salaries and not prior to that. In such view of the matter there cannot be two conclusions that the money handed over at the canteen outside was in the nature of an illegal gratification having a nexus to the signature obtained on the pay orders by the respondent no.1. g. The conclusion of the Ld. Special Court that the complaint was an outcome of an union rivalry cannot be accepted for the reason that there is nothing on record to show that PW5 - de facto complainant alongwith his colleague, Nirmalendu Dey had any past animosity with the respondent no.1 on account of their respective union loyalties. No details of such past animosity have emerged from the evidence on record to suggest that the complaint could be a culminating point of such animosity and therefore the respondent no.1 could deserve the benefit of doubt on that score. h. With regard to the story of the loan transaction between PW8 -Arun Mallik and PW5 -de facto complainant as put forth by the respondent no.1 -defence, no particulars of such loan transaction appear from the evidence of PW8 -Arun Mallik. In the absence of such particulars the story of loan is again difficult to believe. i. Upon perusal of the order granting sanction it does not appear to this Court that such order suffers from any infirmity and/or irregularity. The sanction order is replete with the facts pertaining to the complaint and such facts, in the opinion of this Court do construe adequate materials showing application of mind by the sanctioning authority to launch prosecution against the respondent nos. 1 and 2. The conclusion of the Ld. Special Court that over and above the complaint, the sanctioning authority was required to make an independent examination of the charge cannot be construed to be a rigid requirement and, to the mind of this Court due process has been followed prior to granting sanction order. The judgments cited by Ms. Sanyal pertaining to the power of the Court to review evidence in an appeal against acquittal and on the aspect of granting benefit of doubt as well as on the point of sanction are not found to be of particular applicability to the facts of this case. The Hon'ble Apex Court in several decisions has been pleased to settle the law in respect of an appeal against the order of acquittal. In 2009 (10) SCC 362 in the matter of Raj Narayan Singh Vs. State of Uttar Pradesh and Ors. the Hon'ble Apex Court was pleased to hold as follows at paragraphs 17, 18 and 19 thereof on the role of the Appellate Court to reappreciate and/or review the evidence on appeal and to interfere with a judgment and order of acquittal if the same is perverse. The relevant paragraphs (supra) are set out herein below: - "17. The scope of appeals under Article 136 of the Constitution is undisputedly very much limited. This Court does not exercise its overriding powers under Article 136 to reweigh the evidence. The Court does not disturb the concurrent finding of facts reached upon proper appreciation. Even if two views are reasonably possible, one indicating conviction and other acquittal, this Court will not interfere with the order of acquittal is perverse in the sense that no reasonable person would have come to that conclusion, or if the acquittal is manifestly illegal or grossly unjust. 18. Recently, in Chandrappa v. State of Karnataka, this court (per Thakker,J.), after elaborately discussion the previous decisions on this point, has aptly summarised the law as follows: (SCC p.432, para 42) "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." 19. The same view has been reiterated by this Court in Ghurey Lal v. State of U.P., SCC at p.477, in which one of us (Hon'ble Dalveer Bhandari, J.) after discussing a number of authorities on this issue summarised the law as follows: (SCC para 69) "69. The following principles emerge from the cases above: 1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.

(2.) THE accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.