DINESH BOHRA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 30-4-2001 passed by the learned Special Judge, sessions Court (Prevention of Corruption act), Jodhpur in Criminal Case No. 98/97 (2/94), whereby, the learned trial judge has convicted accused appellant Dinesh Bohra for offence under Sections 7 and 13 (l) (d) (ii)of the Prevention of Corruption Act, 1988 (hereinafter referred to as the Act of 1988)and sentenced him to six months' rigorous imprisonment and to pay a fine of Rs. 500/-, in default of payment of fine to further undergo 15 days' simple imprisonment and also convicted for one year's rigorous imprisonment and to pay a fine of Rs. 1000/-in default of payment of fine to further undergo one month's simple imprisonment respectively. The learned trial judge has convicted the accused appellant as indicated above, who said to have been the Cashier in the office of the Rajasthan Financial Corporation (Rural), Jodhpur (hereinafter referred to as the Corporation), as he accepted the bribe of Rs. 500/- from complainant ramdeen, whose loan was sanctioned by the corporation on 25-5-92, but acquitted accused narendra Mal Daga, the then Manager of the Corporation on account of alleged acceptance of bribe of Rs. 5,000/- from the said complainant in the same transaction of loan. It is alleged by the prosecution that on 8-2-93, complainant Ramdeen filed a report before the Deputy Superintendent of Police, Rajasthan State Investigation Bureau, jodhpur that the Manager of the Corporation is not issuing the cheque of sanctioned loan and calling him again and again and demanded Rs. 5,000/- as illegal gratification for each installment. The said demand was made on the previous day i:e. on 7-2-93. When he declined to, fulfill the demand, the Manager of the Corporation called him in the office and asked for taking cheque and told him to reach at his house at 6 p. m. with an amount of Rs. 5,000/-, else his next installment will not be disbursed. The complainant was called in the morning at 10. 30 a. m. on 8-2-93 in the office of the Corporation at Jodhpur, whereas, report was given to the Deputy Superintendent of Police at 10. 15 A. M. on the same day. At 12. 30 pm, when complainant reached the office, the manager of the Corporation called one employee and asked him to hand over the cheque and that employee also demanded rs. 500/- to be handed over to him between 6 to 8 pm at Garg and Company, outside jalori Gate, Jodhpur. Thereafter, the trap was arranged by the Anti Corruption Party. A sum of Rs. 5,000/- was recovered from the sofa cushion of the room of the Man-ager-Narendra Mal Daga at 7. 40 pm and a sum of Rs. 500/- was recovered from the shirt's pocket of accused appellant-Dinesh bohra near Jalori Gate, Jodhpur at 8. 30 pm. After obtaining sanction, the challan was filed against both the accused. Both the accused were charged under Sections 7 and 13 (l) (d)II of the Act of 1988, to which they pleaded not guilty and claimed trial. The prosecution examined nine witnesses along with documents Ex. P-1 to Ex. P-30. The statements of both the accused were recorded under section 313, Cr. P. C. They produced one Ravindra Kumar Jain in defence and proved documents Ex. D-1 to Ex. D-9. After hearing the arguments, the learned trial judge acquitted the Manager of the corporation namely Narendra Mal Daga, who said to have accepted bribe of Rs. 5,000/- but convicted accused appellant dinesh Bohra for accepting bribe of Rs 500/-for the same transaction of loan.

(2.) I have heard learned counsel for the accused appellant and the learned Public prosecutor and gone through the record of the case. It has been vehemently argued by the learned counsel Mr. Vyas appearing on behalf of accused appellant that the learned trial Judge has made a hostile discrimination in convicting the accused appellant who was merely a clerk in the office of the Corporation and who handed over the cheque at the instance of Narendra Mal Daga-the manager of the Corporation, who has been acquitted for the charges levelled against him, specially when the demand of the alleged illegal gratification is said to have been made by the Manager of the Corporation. According to the learned counsel, neither there was any demand from the side of accused appellant Dinesh Bohra in running note Ex. P-1 nor any work was pending with the accused appellant, who was merely a clerk (Assistant) as no documentary evidence of he being cashier has come, and handed over the cheque at the instance of the Manager of the Corporation. Learned counsel has also drawn my attention towards the statement of complainant Ramdeen, who has specifically stated in his examination in chief that accused appellant Dinesh Bohra simply told him to make the payment of Rs. 500/-for Ex-servicemen Relief Fund and in cross, where he has. denied having paid this amount as illegal gratification. On the issue of alleged payment towards flag, ample evidence has been led in defence, but the learned trial judge has ignored this version of the accused appellant in a casual manner. According to the learned counsel, in the running note, there is no reference of demand from the side of the accused appellant Dinesh Bohra which has been admitted by the investigating officer PW-9 Nawal Kishore. This has also been proved from the evidence of PW-3 Chetan Ram, who was a constable in the Anti Corruption Department, Jodhpur, who prepared the running note. In the last line of his cross examination, this witness has stated that the memos were prepared earlier and running note was dictated later on. Learned counsel further argued that apart from the complainant ramdeen, independent witnesses of panchanama namely PW-6 Vasudeo Singh and PW-7 Lumba Ram have not supported the prosecution case and they have been declared hostile. Likewise, PW-4 Ghewar chand Jain and PW- Navneet Kumar sharma have also not supported the site plan Ex. P-8, said to have been shown by accused appellant to the complainant. According to the learned counsel, the conviction of the accused appellant has been based solitary on the evidence of PW-9 Nawal kishore, who has admitted in his cross examination that there is no entry in the running note that accused appellant Dinesh bohra told that he is a Cashier and asked the complainant to pay Rs. 500/- for illegal gratification. In support of his contention, learned counsel has placed reliance on the various judgments i. e. (1) V. Venkata subbarao v. State represented by Inspector of Police, A. P. , reported in 2007 Cri LJ 754; (2) Union of India through Inspector, CBI v. Purnandu Biswas, reported in 2005 (2) WLC (SC) Criminal 715; (3) T. Subramaniam v. State of Tamil Nadu, reported in 2006 (1)WLC (SC) Criminal 448 : (2006 Cri LJ 804); (4) Punjabrao v. State of Maharashtra, reported in (2002) 10 SCC 371 : (AIR 2002 SC 486) and (5) Duraisami v. State of T. N. , reported in 2005 (2) WLC (SC) Criminal 570.

(3.) ON the contrary, learned Public Prosecutor has supported the judgment of the learned trial Court. Learned Public Prosecutor has submitted that state has not preferred any appeal against the judgment of acquittal of Narendra Mal Daga, the then manager of the Corporation because the amount of Rs. 5000/- was recovered not from his pocket but from the sofa cushion of his house, whereas, the amount of Rs. 500/- was recovered from the pocket of accused appellant Dinesh Bohra from the place ex. P-8, where he demanded the amount.