SUNITA KUMAR GHOSH Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard. The Appellants have been convicted under Section 120B read with Section 161 of the Indian Penal Code and Section 5(2) read with Section 5 (1)(d) of the Prevention of Corruption Act, 1947 and sentenced to rigorous imprisonment for one year and a fine of Rs. 5,000/ - in default of which a further rigorous imprisonment for three months by a Judgment dated 14.6.1994 passed in Special Case No. 23 of 1984 by Special Judge, C.B.I., South Bihar, Patna. The case of the Complainant (PW -5) is that he was a carriage fitter in the Railway department and he had fallen ill in a certain period of time and he needed unfit certificate from the Doctor of the department who happened to be the Appellant, Dr. S.K. Ghosh. The further allegation is that Dr. S.K. Ghosh demanded an illegal gratification @ Rs. 2/ - per day for issuance of such a certificate. Since the Complainant did not want to pay this illegal gratification, he made a complaint to the C.B.I. Patna. This fact was verified on 24.7.1984 by PW -10. Thereafter, the case was instituted on 25.7.1984 and a trap team was constituted which arrived at the scene of the occurrence on 27.7.1984 at 10.15 A.M. On the said date, PW -5 approached Dr. S.K. Ghosh who then asked him whether he had brought the money and on his reply in the affirmative, he demanded the same and also accepted it whereafter he was sent to the Appellant Pratap Nayak who was a 4th grade employee. When the Complainant approached Appellant Pratap Nayak, he also demanded his share and when he was given a sum of Rs. 8/ -, he gave a medical unfit certificate which was required by the Complainant.

(2.) DURING trial, the prosecution in all examined fifteen witnesses and examined as many as 44 documents. PW -1 is the Investigating Officer. PW -2 is the witness who proved the sanction whereas PW -3, PW -10, PW -11 and PW -12 are Inspectors of the C.B.I. PW -13 is Part Investigating Officer whereas PW -14 and 15 are formal witnesses. PW -4, PW -6 and PW -7 are independent witnesses on the point of alleged demand and recovery. PW -5 is the Complainant itself. PW -8 and 9 are on relevant to the prosecution case but have been said to a large extent substantiated the plea of the defence.

(3.) THE learned counsel for the C.B.I. contends that the Court must be strict in cases of corruption and has cited a decision reported in 2000(1) Supreme Court Case, 398 wherein it was held that the burden is on the accused to explain as to how the amount came in his possession. This evidently is not applicable to the present case since the Appellants of the present case have not only discharged duty but even the Complainant has explained as to how the amount came in possession of the Appellants. Similarly, the decision reported in 2011 Supreme Court (Cr.) 237 AIR 2011 Supreme Court (Cr.) 23 it has been held that demand for illegal gratification is a sine - qua -non for acceptance of bribe money and one without the other has no meaning which further validates this Court's view in the facts of the case and does not support the prosecution case at all.