RAJ RAJENDRA SINGH SETH @ R.R.S. SETH versus THE STATE OF JHARKHAND AND ANR.

[2008] 11 S.C.R. 66

RAJ RAJENDRA SINGH SETH @ R.R.S. SETH v.

THE STATE OF JHARKHAND AND ANR. (Criminal Appeal No.1135 of 2008) JULY 22, 2008

[DR. ARIJIT PASAYAT AND S.H. KAPADIA, JJ.]

Prevention of r:Jorruption Act, 194 7: s. 5(2) read with s. 5(1 )(d) - Conviction under, on the ground that doctor de-c manded bribe for giving proper medical treatment - Justifica-tion of - Held: Justified...,... Evidence establish that the doctor asked money to be passed on to ward boy who in turn handed over money to doctor -All requisites for proving demand and acceptance of btibe established - Penal Code, 1860 - ss.

[1208 and ][161. ]

Prosecution case .was that father of PW-3-complain-ant was admitted in hospital where appellant was doctor an.d ac~used no.2· was ward boy. Father of PW-3 com-plained to him about lack of proper treatment. PW-3 re-E quested accused no.2 to allow him to meet appellant. PW-3 met appellant who demanded Rs .. 500 from him for giv-ing proper treatment to his father and also insisted to pay the amount on 1.9.1985. The doctor also told PW-3-that in case he was not available in the hospital, he would pay the am·ount to his ward boy,· who would pass the amount to him.

PW-3 filed complaint. Trap was laid and on the day

fixed for paying the bribe money, appellant and accused no.2 were caught red handed. Special Judge held the appellant and accused no.2 guilty of offence punishable under ss. 1208 and 161 IPC and also under s.5(2) read with s.5(1)(d) of the Prevention of Corruption Act, 1947. Each of them was sentenced to undergo rigorous impris-onment for one year and to pay fine. On appeal, High Court

>-1-...

held that the accusations were established but consider·

ing passage of time reduced the sentence to the period already undergone. Hence the present appeal.

Dismissing the appeal, the Court

HELD: 1. The evidence is to the effect that the appel-B lant had asked PW-3 to pay money to co-accused who was to pass the money to him. PW-2 in his evidence has categorically stated that the decision was taken in CBI office that money is to be paid to accused no.2 who has made payment to the accused. Similarly, PW-10 while making verification about the genuineness of the allega-tions made by PW-3 has stated that he went to the resi-dence of the appellant and he hid himself behind the bush and from there he heard talks between PW-3 and appel-lant. He has stated that the appellant asked PW-3 to make o payment to accused no.2. PW-3 corroborated this part of the statement of PW-10 who is constable. He was en-trusted with the job to verify the genuineness of the alle-gations made by PW-3. He went to his Chamber and ac-cused no.2 was present there. PWs 1 and 2 were inde-E pendent witnesses and in their presence money was de-livered to accused no.2 by PW-3. This was done because when PW-3 and others reached the hospital, the cham-ber was found locked. PW-3 met accused no.2 and paid money to him and proceeded to residence of the appel-F lant. After reaching there PW-3 and accused no.2 went inside the gate and PW-2 and others remained at the gate. It is clear from the evidence that the appellant came out after the call bell was pressed and accused no.2 passed the money to him. PW-2 who saw passing of money to the appellant, gave signal and immediately thereafter accused no.2 and the appellant were arrested and money was recovered from the right hand of the appellant and both the hands of the accused persons were washed in separate solution and they turned pink. The currency notes were also recovered and the requisite formalities

were followed. The plea that there is no demand made by

the appellant is clearly belied by the evidence on record. The evidence clearly establishes that the appellant had asked the money to be passed on to accused no.2 who in turn handed over the money to the appellant. All the requisites for proving the demand and acceptance of bribe have been established. [Paras 8, 10] [72-C,D,E,F,G,H; 73-A & B; 7 4-D]

B. Noha v, State of Kera/a and Anr. (2006) 12 SCC 277 -relied on.

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 1135 of .2008

From the Judgment and Order dated 10/9/2003 of the High Court of Jharkhand at Ranchi in Crl. Appeal No. 7 of 1998 (R)

C.D. Singh and Merusagar Samantaray for the Appellant.

Rajiv Dutta, Saket Singh and P. Parmeswaran for the Re-spondent No. 2

The Judgment of the Court was delivered by

Dr. ARIJIT PASAYAT, J. 1. Leave granted.

2. Challenge in this appeal is to the judgment rendered by

learned Single Judge of the Jharkhand High Court. Two ap-peals were filed by the present appellant and one Nag Narain who was accused no.2 questioning correctness of the judgment dated 4th December, 1997 and order of sentence dated 16.12.1997 passed by the Special Judge, CBI, Ranchi in R.C. case No.15 of 1998. Learned Special Judge held the appel-lants guilty of offence punishable under Sections 1208 and 161 of the Indian Penal Code, 1860 (in short the 'IPC') and also under Section 5(2) read with Section 5(1 )(d) of the Prevention of Corruption Act, 1947 (in short the 'Act'). Each of them was sentenced to undergo RI for one year and to pay fine of Rs.5,00/- with default stipulation.

3. Prosecution version as unfolded during trial is as follows:

written complaint was made to S.P. CBI, Dhanbad on 1.9.1985 by one Raju Hadi, Safayi Mazdoor of Pathological Laboratory Area-9, BCCL, Dhanbad alleging therein that he had visited Chamodih Dispensary in connection with treatment of his father Sri Hublal Hadi who was examined by Doctor L.B. Sah, who referred him to Central Hospital, Dhanbad. Hublal Hadi was admitted in Bed No.16 ENT Department of Central Hospi-tal on 29.8.1985. Raju Hadi had been to the hospital on 31.8.1985 to see his ailing father and his ailing father com-plained of lack of proper treatment and he requested htm to meet the concerned doctor, Raju Hadi ascertained that his fa- ther was under the treatment of Dr. R.R.S. Seth, the appellant. He requested Nag Narain to allow him to meet Dr. R.R.S. Seth and met Dr. R.R.S. Seth, who demanded sum of Rs.500/-from him for giving proper medical treatment to his father and also insisted that the amount be paid on 1.9.1985. The doctor o also told Raju Hadi that in case he was not available in the hos-pital, he would pay the amount to his ward boy Nag Narain, who would pass the amount to him. Since Raju Hadi was not willing to make the payment of bribe amount to the doctor and ward boy, he lodged complaint to the S.P. CBI, Dhanbad for taking necessary action.

On the basis of complaint; verification was made and on getting confirmation report, Sri R.C. Choudhary, Inspector, reg-istered the complaint on 1.9.1985 and took up the investiga-tion. The 1.0. obtained the services of the two independent wit-F nesses Devraj Prasad Sinha (PW-2) and Ved Prakash Pahuja (PW-1 ). These two independent witnesses reported before Shri R.C. Choudhary in the office of the CBI. Thereafter members of the CBI.formed raiding party and this party also assembled before him. After formal introduction of each other, the purpose of assembly was explained and practical demonstration regard-ing the purpose and use of phenolphthalein powder and chemi-cal reaction with sodium carbonate was given in the immediate presence of two independent witnesses and the members of raiding party. After demonstration was over, the informant Raju

Hadi was asked to produce sum of Rs.500/- (five G.C.C. notes of rupees one hundred denomination each) and he produced the same and numbers of these notes were noted down and these G.C.C. notes were tai:ited with phenolphthalein powder and handed over to Raju Hadi. The informant was directed to pay the amount to the accused only on demand. Instructions were also issued to the witnesses and the members of the raid-ing party to play their respective parts before and after trap. All these practical demonstrations were noted down and demon-stration chart was prepared on which all the members of the raiding party made their respective signatures.

After pre-trap formalities, PW3 and others members of the team including independe~t witnesses proceeded towards Central Hospital and PW2 was directed to shadow PW3 and to hear conversation in between the PW3 and the appellants. When they reached Central Hospital and went to the charnbe:-of appellant Dr. Seth, chamber was found locked but informant met other appellant Nag Narain and PVV3 paid the tainted money amounting to Rs.500/- to Nag Narain who kept the same in his right pocket of his shirt and asked PW3 to proceed with him to the residence of Dr. Seth as he will give money in his presence and PW3 appellant Nag Narain proceeded from Central Hos-pital to the residence of Dr. Seth and PW2 and other members of the team were following them. When PW3 remained near the gate, other persons of the team remained outside the gate. On reaching burand of the house, appellant Nag Narain pressed call bell whereupon appellant Dr. Seth opened the door and came out and he gave money to him. ln the meantime, PVV2 who saw this came out of the gate and gave signal and thereaf-ter members of the team pcur:ced upon them introducir.g them-G selves as CBI officials and they c~~ught Dr. Seth and recovered money from his possession, Nag Narain was also caught. Thereafter right hand of Cr. Seth was dipped in solution which turned pink and this solution was kept in bottle and sealed. Similarly, left hand of Dr. Seth was aiso dipped in another solLI·· tion which also turned pink and this 5olution was a:so Kept !n

separate bottle and sealed. At the same time, right hand of

appellant Nag Narain was dipped in similar solution which also turned pink and was kept in bottle and sealed. Similarly left hand of Nag Narain was also dipped in another solution which also turned pink and this solution was also kept in bottle and sealed. His shirt was also dipped in solution and that solution turned pink and that solution was kept in bottle and sealed. Thereafter members of the team put their respective signatures on all the bottles which were sealed. Thereafter post-trap for-malities were carried out at the premises of Dr. Seth, upon which all the members of the team put their respective signatures. Both Nag Narain and Dr. Seth were later arrested soon after recovery of money. After investigation of the case charge sheet in the case was submitted and cognizance of the case was taken and learned court below in course of trial recorded evi-dence of witnesses of both sides and marked exhibits of docu- o ments produced on behalf of both sides and ultimately came to conclusion and held both the appellants guilty and accord-ingly, convicted them and sentenced them.

4. The two accused persons filed appeals before the High

Court. Their stand was that there are lot of contradictions in the evidence of witnesses. It was submitted that everything was pre-planned and conspiracy was hatched to falsely implicate the appellant. It was highlighted that so much preparations were made before trap, but it is not clear as to who recovered the money from the hands of the appellant. It was stated that PW8 was the brain behind the so-called trap.

5. After considering the rival stands the High Court held

that the accusations were established but considering passage of time reduced the sentence to the period already undergone.

6. In support of the appeal learned counsel for the appel-

lant submitted that both the Trial Court as well as the High Court lost sight of the following features:

(1) No demand was established;

(2) Role of PW.:.8 is highly suspicious and his evidence lacks of.

(3) There were no independent witnesses;

(4) There was no positive evidence as fo who had recovered the money as Claimed by the prosecution from the appellant.

7. Learned counsel for the respondent, on the other hand

submitted that both the Trial Court as well as the High Court have analyzed the evidence in great detail and there is no infir-mity in the impugned judgment.

8. Much has been made of the fact that most of the wit-

nesses were in the same office. The evidence is to the effect that the appellant had asked PW-3 to pay money t6 co-accused o Nag Narain who was to pass the money to him. PW-2 in his evidence has categorically stated that the decision was taken in CBI office that money is to be paid to Nag Narain who has made payment to the accused. Similarly, PW-10 while making verification about the genuineness of the allegations made by PW-3 has stated that he went to the residence of the appellant and he hid himself behind the bush and from there he heard talks between PW-3 and appellant. He has stated that the ap-pellant asked PW-3 to make payment fo Nag Narain. PW-3 corroborated this part of the statement of PW-10 who is con-F stable. He was entrusted with the job to verify the genuineness of the allegations made by PW-3. He went to his Chamber and Nag Narain was present there. PWs 1 and 2 were independent witnesses and in their presence money was delivered to Nag Narain by PW-3. This was done because when PW-3 and oth·-ers reached at the hospital, the chamberwasfound·locked. PW-G 3 met Nag Narain and paid money to him and proceeded to residence of the appellant. After reaching there PW-3 and Nag Narain went inside the gate and PW-2 and others remained at the gate. It is clear from the evidence that the appellant came out after the call bell was pressed and Nag Narain passed the money to him. PW-2 who saw passing of money to the appel-

lant, gave signal and immediately thereafter Nag Narain and [A ]

the appellant were arrested and money was recovered from the right hand of the appellant and both the hands of the ac-cused persons were washed in separate solution and they turned pink. The currency notes were also recovered and the requisite formalities were followed. The plea that there is no demand made by the appellant is clearly belied by the evidence on record. The evidence clearly establishes that the appellant had asked the money to be passed on to Nag Narain who in turn handed _over the money to the appellant.

9. In B. Noha v. State of Kera/a and Anr (2006 (12) SCC [c ]

277) it was, inter alia, observed by this Court as follows:

"10. The evidence shows that when PW-1 told the accused that he had brought the money as directed by the accused, the accused asked PW-1 to take cut and give the same to him. When it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deduced from the facts and circumstances obtained in the particular case. It was held by this Court in Madhukar Bhaskarrao Joshi

v. State of Maharashtra (2000 (8) SCC 571) as follows:

"12. The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted 'as motive or reward' for doing or forbearing to do any official act. So the word 'gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premises that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like 'gratification or any valuable thing'. If

acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word 'gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it."

11. This decision was followed by this Court in M. Narsinga Rao v. State of A.P (2001 (1) SCC 691 ). There is no case of the accused that the said amount was received by him .as the amount which he was legally entitled to receive or collect from PW-1. It was held in the decision in. State of A. P v. Kommaraju Gopala Krishna Murthy (2000 (9) SCC 752), that when amount is found to have been passed to the public servant the .burden is on public servant to establish that it was not by way of illegal gratification. That burden was not discharged by the accused."

10. In the case at hand all the requisites for proving the demand and acceptance of bribe have been established.

11. There is, therefore, no merit in this appeal which is accordingly dismissed.

Appeal dismissed.