Judgment:
Anjana Prakash, J.
1. The appellant has been convicted for the offence under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and sentenced to rigorous imprisonment for a period of six months and one year respectively by judgment dated 31.7.2001 by the Special Judge, GBI, North Bihar, Patna, in Special Case No. 14/96/R.C. case No. 13(A) of 1996.
2. The facts of the case are that on 15.6,1994 the complainant had given an application to the District Industry Centre, Madhubnai, for loan of Rs. 80,000/- for setting up an ice factory. The District Industry Centre after having processed the application sanctioned the same and sent it to the Allahabad Bank for releasing the said loan amount. On 28.8.1995, Rs. 4,000/- i.e. 5% was paid to the complainant and the same was deposited in the bank. The bank also disbursed additionally a sum of Rs. 10,000/- for the foundation. On 20.10.1995, the quotation was filed by the complainant and thereafter on 23.12.1995, the bank passed the delivery order to the Orient Refrigeration Company. On 8.1.1996, all the articles allegedly were delivered to the complainant. The complainant's grouse was that after he received the articles concerned, he submitted the bill to the Appellant - the Branch Manager for release of the further amount but instead of making payments he deferred payment of the same and instead demanded Rs. 4,000/- as bribe.
3. The appellant being the Branch Manager, Allahabad Bank, Laukahi Branch, Madhubani, was charged for having accepted rupees four thousand as bribe money for releasing the balance loan amount of Rs. 17,000/- payable to the complainant. The charge reads as follows:
Firstly,- That you, being a public servant employed as Branch Manager, Allahabad, Laukahi Branch, District - Madhuani (Bihar) on 23.2.96 at Laukahi Branch, Allahabad Bank demanded and accepted an amount of Rs. 4000/- from Shri Ram Nath Sah for yourself, as gratification other than legal remuneration as a motive or reward for releasing the loan instalments to him under Prime Minister Rojgar Yojna and thereby committed an offence punishable under Section 7 of the P.C. Act and within my cognizance.
Secondly- That you, being a public servant employed as Branch Manager, Allahabad Bank, Laukahi Branch, District - Madhubani (Bihar) on 23.2.96 at Laukahi Branch, Allahabad Bank by corrupt or illegal means or by otherwise abusing your position as such public servant obtained for yourself pecuniary advantage to the extent of Rs. 4000/- from Shri Ram Nath Sah and Specified in Section 13(1)(d) of the P.C. Act, 1988 And thereby committed an offence punishable under Section 13(2) of that Act and within my cognizance.
4. To prove its case the prosecution examined 14 witnesses out of whom PW 1 Anil Kumar Sinha is the employee of the bank, who has certified the sanction order and is, therefore, formal in nature. PW 2 Chitranjan Singh, an employee of the Industry Department is also formal in nature, who has explained procedure of disbursement of loan. PW 3 Shashi Shekhar Pandey was the Branch Manager of the Allahabad Bank and he also explained the procedure of loan disbursement.
5. The salient features of disbursement of loan is that once an application was made by the loanee the same was processed either at the District Industry Office or at the bank and if the project was found feasible the project was sanctioned. Once the project was sanctioned, the bank issues a delivery order to the company which was supposed to deliver the goods to the loanee. After the supply of goods, the company concerned was supposed to furnish a copy of the bill to the bank for payment in lieu of articles supplied. Thereafter the payments were made to the supplier company but it was only done after the bank was satisfied at its end that the articles had actually been supplied to the loanee.
6. PW 4 Jivachh Jha is an employee of the bank who also substantiated the procedure of loan disbursement. PW 5 Surendra Kumar Duggar is the supplier of the goods, who testified that he had in fact, supplied the goods to the loanee concerned and also issued a bill but importantly does not testify that he raised a bill on the bank. PW 6 Raj Kumar Rai and PW 7 Vinay Kumar Lai Das are shadow witnesses on the point of demand of bribe by the appellant. PW 8 Anil Singh, PW 9 Abhay Kumar Mishra and PW 10 Ram Jee Roy are the members of the raiding party. PW 11 Ram Nath Sah is the complainant and PW 12 Pankaj Mishra is the General Manager of Allahabad Bank, who sanctioned the prosecution. PW 13 Bimlendu Das is the senior Officer at the FSL, Kolkata on the point of phenolphthalein solution sent for testing. PW 14 Prashan Kumar Pandey is the Inspector of the CBI and member of the raiding party and also part Investigating Officer and submitted chargesheet.
7. Counsel for the appellant has contended that as per the procedure enumerated by the prosecution witnesses there was no question of the complainant demanding payment of money against the supply of goods to him by the company. Since if at all there was an occasion for demand for payment of goods supplied, it would be by the Company and not by the loanee. Under the circumstances, there was no justification for the complainant to approach the appellant for disbursal of the balance amount of the loan money and consequently, there was no question of demand of bribe from him for such disbursal. He further contended that in fact the appellant had been trapped by the complainant and the supplier company since the appellant had refused to make payments without due verification of articles supplied. In view of the failure of the prosecution to adduce any evidence that the articles in fact had been supplied to the loanee, it had failed in its primary duty to prove that the appellant was deferring payment of the balance loan amount since he was well within the powers to do so had the articles not been supplied and the refusal was for this reason and not on account of failure to pay bribe money. The next contention of the appellant is that the Investigating Officer was a party to the trap procedure and therefore, he was a biased officer and should not have acted as the Investigating Officer, who alone can be expected to be objective in his approach in the scheme of things the rest of them being interested witnesses. Further contention of the appellant is that as per Section 17 of the Prevention of Corruption Act, an inspector rank officer could not have investigated the case. In support of this contention, the appellant has placed reliance on 1981 PLJR 221 (Ram Dayal Ram v. The State of Bihar), : (2006) 7 SCC 172 (State Inspector of Police, Vishakhapatnam v. Surya Sankaram Karri). The appellant lastly submitted that the shadow witnesses were not independent and in fact, the whole case had been set up by the supplier of the goods in collusion with the complainant to exert undue pressure upon the appellant to make payment against the articles which had not been in fact supplied by the company in question. The last contention of the appellant is that on facts PW 6, PW 9 and PW 11, who are on the point of demand, acceptance and recovery of the bribe, have given contradictory statements with regard to the place of occurrence.
8. On the other hand, counsel for the CBI has contended that all these points had not been raised by the appellants in the trial court and, therefore, he was not entitled to raise these points at the appellate stage. In his understanding, once the recovery of the tainted money was fully corroborated by all the witnesses this Court could not go into the justification or the factual aspect belying the factum of demand of bribe. He, however, contended that as per the law of presumption a police officer could not be discredited merely because he was a police officer and the statement under Section 313 Cr.P.C. was important since the appellant did not deny Ext. 7 which is the list of articles supplied.
9. In the background of the procedure enumerated and the prosecution case as it stands, a duty, in my opinion, had been cast upon the prosecution to prove both through documentary as well as oral evidence two vital points (i) firstly, that a Bill had been raised upon the Bank and (ii) secondly, the appellant had deferred the payment of money for the reasons of payment of bribe.
10. Where the first part is concerned, interestingly, it is the complainant, who produced Bill No. J.37 dated 8.1.1996 for Rs. 46,175/- of M/s Orient Refrigeration Company, Laxmi Narayan Road, Muzaffarpur, before Sri P.K. Pandey, Inspector CBI, whereas, the carbon copy of Bill No. J-37 dated 8.1.96 for Rs. 46,175/- issued by M/s Orient Refrigeration Company, Muzaffarpur, has been produced by PW 5 Surendra Kumar Daggar, supplier himself at his office. Such being the position, the prosecution in fact has demolished its case that the appellant was deferring payments despite presentation of the Bill by bringing on record the fact that the two bills were still lying in possession of the complainant and supplier and produced by them before the I.O. So, the inevitable conclusion is that the Bills were never raised on the Bank. Under the circumstances, there was no occasion for the appellant to have demanded bribe for disbursal of the said amount.
11. Secondly, the positive case of the prosecution is that despite the established procedure PW 5, who was the supplier of goods, did not in fact demand any payment in lieu of the supply of goods to the complainant. If this is considered in the background of evidence of PW 4 Jivachh Jha, an employee of Allahabad Bank, who stated that it is the supplier firm which raises a bill on the bank and the payment against the supplied goods is to be made directly to him and if the amount against the same is not disbursed, it is the supplier and not the borrower, who is aggrieved, it clinches the issue that there was no justification for the complainant to have demanded disbursal of the balance loan amount. In fact, PW 4 has gone even further to say that it was wrong on the part of the complainant to ask the bank directly and it was not the responsibility of the bank to pay to the borrower (the complainant in this case) the balance amount against supply of articles.
12. Under the circumstances, the veracity of the prosecution case that the appellant had demanded bribe for disbursal of the balance amount despite presentation of Bill by the complainant has not been proved beyond all reasonable doubts. The natural deductions from this logic would mean that since there was no reason or justification or basis upon which demands were made, any recovery thereafter of alleged tainted money would not constitute the offence punishable under Section 7 or 13 of the Prevention of Corruption Act. The complainant merely saying that despite presentation of the bill, the appellant had not disbursed the balance amount runs contrary to the documentary evidence produced in the case. Here a recent decision of the Hon'ble Supreme Court reported in (2009) 6 Supreme Court Cases 444 (State of Punjab v. Sohan Singh) comes to my mind, wherein, in similar trap case the Hon'ble Supreme Court considered that the appellant had no role to play in grant out of turn electric connection and, therefore, there was no question of his having demanded bribe for the same and considering this as one of the points maintained the acquittal of the appellant.
13. Moreover, the supplier has conceded that there were cuttings in the articles mentioned in the Bill which were allegedly supplied to the complainant which assumes importance in view of the suggestion of the defence that despite non-supply of goods to the complainant, the supplier in collusion with the complainant had attempted to manipulate disbursal of the balance amount.
14. So far the contention of the appellant as to whether the officers of the inspector rank could make investigation in cases falling within Prevention of Corruption Act, it is noticed that PW 8 has not stated that he was ever directed by the Superintendent of Police to make investigation but I am informed that the State Government has notified that an officer of Inspector rank can investigate such cases.
15. There cannot be any doubt that in a criminal trial, to observe objectivity and to prevent bias, the investigation should be completely fair and devoid of any partisan attitude. For this reason, the courts have consistently demanded investigation through independent agencies since the objective of the court is to do justice upon the evidence adduced by the parties. In the present case, it is noticed that PW 8 and PW 14, both Investigating Officers were also members of the raiding party. In my opinion, the end of each trial is not to somehow or other to bring about the conviction of the accused but it is to see whether the accused has been justifiably charged or not. In the present case, once the investigating officers themselves become party to the factum of verification of demand and acceptance, I have no hesitation in concluding that such officers are bound to lean in favour of the party of which they also constitute a part. Under the circumstances, in my opinion, the Investigating Officers in the present case on the factum of verification of demand and recovery can not be relied upon. In this background, when I evaluate the evidence of PW6 Raj Kumar Roy, the shadow witness, PW 11 Ram Nath Sah, the complainant and PW 9 Abhay Kumar Mishra, an inspector of raiding party, I find that there is factual contradiction in the place where the demand was made as well as where the bribe money was recovered. In the background of partisan nature of witnesses and contradictions in the evidence, a very important aspect of the case vide Exhibit- A, A/1 and B is worth highlighting. These documents reveal that the appellant had conducted his official work on 23.02.1996, which is not possible if the occurrence of demand, acceptance and recovery of bribe had actually taken place on 21.02.1996. Had the First Information Report been instituted on 21.2.96 itself and the appellant remanded on the said date, this Court could have concluded that the defence documents were procured but in the present case, I find that First Information Report reached the Court along with the present Appellant only on 24.02.1996, which probablizes the defence that the appellant could have been working on 23.2.96, thus demolishing the prosecution case that the occurrence had taken place on 21.2.96.
16. For the reasons stated above, I am of the view that the appellant deserves to be acquitted and in the result, the appeal is allowed and the appellant is discharged from the liabilities of his bail bond.