* IN THE HIGH COURT OF DELHI AT NEW DELHI. versus.... Respondent

Transcription

1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.A. 15/2000 Delivered on: 21 st September, 2015 RANDHIR SINGH Represented by: versus C.B.I. Represented by:... Appellant Mr.V.K.Malik, Adv with appellant in person.... Respondent Mr. Narender Mann, Spl. PP with Mr.Manoj Pant and Ms. Utkarsha Kohli, Advs. CORAM: HON'BLE MR. JUSTICE SURESH KAIT SURESH KAIT, J. 1. The present Appeal is directed against the judgment dated whereby ld. Special Judge, CBI, Delhi, held the appellant guilty for the offences punishable under Sections 7 and 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988 (hereinafter referred as the PC Act ). 2. Further challenge the order on sentence dated whereby the appellant was sentenced to undergo RI for a period of two years with fine of Rs.5,000/- for the offence punishable under Section 7 of the PC Act and in default of payment of fine he was further sentenced to undergo SI for a period of six months. Also challenge the order on sentence dated whereby he was sentenced to undergo RI for a period of two years with fine of Rs.5,000/- for the Crl.A.15/2000 Page 1 of 19

2 offence punishable under Section 13 (2) read with Section 13 (1)(d) of the PC Act and in default of payment of fine he was further sentenced to undergo SI for a period of six months. 3. Both the aforesaid sentences were directed to run concurrently and benefit of Section 428 Cr.P.C. was also given to the appellant. 4. The case of the prosecution was that one Mr.Mahesh Sharma, complainant in the present case was facing proceedings under Sections 107 /151 Cr.P.C. in the Court of Special Executive Magistrate (East District) in the case titled as State v. Mahesh Sharma (1 st Party) and Sunil Kumar (2 nd Party). However, due to non-appearance in the Court non-bailable warrants were ordered to be issued against the Complainant Mahesh Sharma vide order dated On , he filed an application for cancellation of NBWs issued against him. However, the concerned Magistrate did not cancel the same and rather posted it for the date already fixed on It was alleged that appellant who was working as a Reader in the Court of the aforementioned Magistrate demanded illegal gratification of Rs.1,000/- from the complainant for getting the cancellation order of NBW and told him to bring the demanded money by Monday, i.e., Since, the complainant was not interested in payment of bribe, he submitted his written complaint Ex.PW1/A with S.P., CBI/ ACB/Delhi. On the basis of the said complaint, RC No.76(A) /95-CBI / CB/DLI under the provisions mentioned above was registered against the appellant. Accordingly, investigation of the case was entrusted to Inspector A.K. Kapur, who organized a raiding party consisting of CBI Crl.A.15/2000 Page 2 of 19

3 Officials, complainant and two independent panch witnesses, namely, Sh. Subhash Chander Sharma and Rajinder Kumar, who were requisitioned from the Food Corporation of India, Headquarters, New Delhi. Pre-raid formalities were completed in the presence of the members of the trap party and handing over memo in this regard was also prepared. During pre-raid proceedings, complainant produced a sum of Rs.1,000/- consisting of 10 GC Notes of Rs.100/- denomination for trap. The numbers of these GC Notes were recorded in the handing over memo and the same were treated with Phenolphthalein Powder. A demonstration was also given before the witnesses to explain the purpose of application of Phenolphthalein Powder on the GC Notes. Thereafter, powder treated GC Notes were handed over to the complainant with the direction to pass on the same to the accused in the event of his specific demand. Rajinder Kumar, independent witness was directed to act as a shadow witness and remain with the complainant with a view to overhear the conversation which may take place between the complainant and the accused and also to see the transaction of money. He was also directed to give signal to the trap party in the event of acceptance of bribe by the appellant by scratching his head by both of his hands. 6. After the pre-trap proceedings, the trap party left the CBI office in an official vehicle and reached at 1.45PM at the Office of the Special Executive Magistrate, Seelampur, Delhi. The complainant and shadow witness Rajinder Kumar were sent to contact the accused in the Court Room and other members of the trap party took suitable position outside. Crl.A.15/2000 Page 3 of 19

4 7. It is alleged that appellant Randhir Singh was present at his seat and noted down the previous as well as the next date of hearing of the case of the complainant on a slip of paper and told him to come back at around 4.30 PM with the money and in the meanwhile, he will prepare the NBW cancellation orders. It is further alleged that at around 4.30 PM, complainant Mahesh Sharma and panch witness Rajinder Kumar again contacted the appellant in the Office mentioned above and a conversation took place between the complainant and the accused. In the conversation, accused enquired from the complainant, if he has brought the money and when the complainant replied in affirmative. Accordingly, accused told him to go and wait for him outside at the tea shop and he would be coming in a short while along with the cancellation order. Thereafter, complainant and shadow witness came at the aforesaid tea shop described by the appellant and started waiting for him. 8. Accordingly, accused Randhir Singh also came at the aforesaid tea shop situated under the tree and told the complainant that his cancellation order is ready. On this, the complainant sought assurance from the accused, if he will not be harassed by police officials, accordingly, the accused Randhir Singh responded by saying that had he initially spent Rs.1,000/-, there would not have been any harassment. Thereafter, he demanded the money. In furtherance of said demand, the complainant passed on the money to the accused, who accepted it with his left hand and kept it in the left side pocket of his pant. In the meanwhile, shadow witness Rajinder Kumar gave preappointed signal to the trap party, accordingly, members of the trap Crl.A.15/2000 Page 4 of 19

5 party rushed to the spot and apprehended the accused. 9. It is further alleged that PW Rajinder Kumar narrated all the facts to the Trap Officer Inspr. A.K. Kapur and thereafter, the appellant was taken to the office of the Executive Magistrate in the same position. In said office, the other panch witness Subhash Chander Sharma was directed to search the accused. He recovered those tainted notes of Rs.1,000/- from his left pocket of pant. On comparison the numbers of those GC Notes, tallied with the numbers noted down in the handing over memo. It is further alleged that left hand wash as well as the wash of the left side pocket of the pant of the appellant were taken in a separate colourless solution of Sodium Carbonate. Both the washes turned pink, thereby suggesting that there were traces of Phenolphthalein Powder on the left hand as well as in the left side pocket of the pant of the appellant. Accordingly, he was charged having committed the offence punishable under Sections 7 and 13 (2) read with Section 13 (1)(d) of the PC Act. He pleaded not guilty to both the charges and claimed trial. 10. Mr.V.K.Malik, learned counsel appearing on behalf of the appellant submitted that the prosecution has not been able to establish its case through its witnesses and none of the prosecution witness has supported the prosecution case. 11. PW1 Mahesh Kr. Sharma, complainant deposed in examination in chief that on the next date of hearing, he went to Court of SDM and Reader of the Court deposed him to contact to some lawyer. Thereafter, one person met him in the Court and told him that Crl.A.15/2000 Page 5 of 19

6 Magistrate may not cancel his warrant, however if he wishes that his warrants should be cancelled, he should come in the evening with Rs.1,000/- and contact him or the Reader. The Reader of the Magistrate was not present in the Court. Thus, it is established that the appellant did not demand any money from the complainant. 12. On being declared hostile, in the Cross-examination by ld. APP, PW1 denied the suggestion that appellant present in the court was the same who demanded Rs.1,000/-. He mentioned the name of the appellant in his complaint at the instance of CBI official. He further deposed that at about 3 or 4 PM, the appellant was not present in the Court. The person who demanded the money from him was not there. He specifically deposed under the fear of CBI, he forced the money in the pocket of one person present in the Court. The person who demanded the money, however, was not present in the Court. Thus, the complainant himself demolished the case of the prosecution. 13. PW1 further deposed that on his second visit to the Court of the Magistrate at 4.30 PM, he had talked with the appellant Randhir Singh and enquired from him when the tall thin man would be available. To which the appellant replied that he was not aware as to when the said person would come. PW1 specifically stated that the said Randhir Singh was not present in the Court. However, he denied to the suggestion that the appellant Randhir Singh noted down the name of Mahesh Kumar as well as particulars of the case and the date of hearing on a slip and told the complainant to come at 4.30 PM with money. Learned counsel for the appellant submitted, thus, it is Crl.A.15/2000 Page 6 of 19

7 established that the complainant was talking qua some other person and not referring to the appellant. 14. PW3 Rajinder Kumar specifically stated that he could not hear the conversation between the complainant and appellant Randhir Singh. He denied to the suggestion that money was passed on to the appellant and thereafter he gave slip of cancellation order to the complainant Mahesh Kumar. 15. PW4 Subhash Chand Sharma deposed that appellant Randhir Singh had refused to take money and denied to the suggestion that from personal search of Mahesh Kumar, cancellation order Ex.PW1/E was recovered and he did not see the cancellation order. 16. PW6 Inspr. A.K. Kapur deposed that he seized paper slip Ex.PW6/A besides recovery of money. However, did not remember from where he seized the same. He denied to the suggestion that he had planted said two documents subsequently with a view to falsely implicate the appellant. 17. PW7 Constable Vijender Kumar deposed that he used to do writing work pertaining to the Court as per the directions of the Reader. He had seen the Robkar Ex.PW1/E written in his own handwriting. 18. Ld. Counsel appearing on behalf of the appellant submits that there is no explanation as to why PW7 has not been arrayed as an accused or why no TIP of this witness has been conducted in the presence of PW1, PW3 and PW4 to rule out the possibility of tall thin Crl.A.15/2000 Page 7 of 19

8 person being PW7 himself. 19. Ld. Counsel further submitted that in the Statement recorded under Section 313 Cr.P.C., the appellant replied to question 45 It is incorrect. Robkar was not prepared on his instruction. He was authorized to sign at Point A on this Robkar in CBI Office after his arrest. 20. Ld. Counsel further submitted that neither the complainant PW1 nor PW3 and PW4, shadow witness and recovery witness respectively have supported the case of the case of the prosecution despite, ld. Trial Judge has convicted the appellant. 21. To strengthen his arguments, ld. Counsel for the appellant has relied upon a case of S.V. Kameshwar Rao and Anr. v. The State (A.C.B. Police), Karnool Dist., Andhra Pradesh 1 wherein the Apex Court has held as under: 9. After going through the entire evidence, we are of the view that there is no acceptable evidence about the demand of the bribe. PW-1 has admitted in the cross-examination that he could not give anyone of the names of the villagers from whom he collected mamools. Further, he states that there were some charges against him in 1952, but he did not remember whether his service was terminated and thereafter reinstated by an order on his appeal and that he did not report to the Conservator, D.F.O. that appellants were demanding mamools Suppl. (1) SCC 377 Crl.A.15/2000 Page 8 of 19

9 10. The prosecution has not made any attempt to secure any witness among the ryots from the village to prove the factum of collection of the alleged mamools. In the absence of such evidence, it cannot be safely concluded that the appellant demanded PW-1 to collect mamools and pay the same to him as a motive or reward for allowing the farmers to graze their cattle in the forest. 22. On the other hand, ld. Counsel appearing on behalf of the respondent CBI submitted that the PW1 complainant has proved his complaint Ex.PW2/A, wherein he categorically gave events leading to filing of the complaint and demand of bribe money by the appellant. 23. He has proved the pre-raid proceedings and handing over memo Ex.PW2/B. He deposed that the trap was led and money was recovered by PW4 Subhash Chand, which comprised of 10 GC Notes of Rs.100/- denomination and on comparison it tallied with the number of GC noted mentioned in Ex.PW2/B. PW1 also proved the post raid proceedings / recovery vide Ex.PW2/C and identified the GC Notes as Ex.P1 to P10 as the same GC Notes were used for the trap and recovered from the appellant. He admitted his signatures on search memo Ex.PW1/D and on recovery slip Robkar bearing the signature of appellant Ex.PW1/E. He also admitted the application for cancellation of warrants Ex.PW1/F. 24. PW1 has proved the handwash of the appellant taken by the raiding party which turned pink. This fact further corroborated by the testimony of PW2, Sr. Scientific Officer vide report Ex.PW2/A, which gave positive test for the presence of Phenolphthalein Powder of both Crl.A.15/2000 Page 9 of 19

10 of the hands of the appellant and the left pocket of his pant. 25. Ld. Counsel further submitted that the aspect of demand, acceptance and recovery of money can be inferred from the statement of PW1 pointing out the complicity of the appellant in crime. 26. Ld. Counsel further submitted that PW3 Rajinder Kumar (Shadow witness) and PW4 Subhash Chand Sharma (Recovery witness) have deposed and proved that on they visited the Office of CBI and participated in the trap proceedings. They have proved the pre-raid proceedings and the preparation of the same vide memo Ex.PW1/B and also proved the trap, acceptance of illegal gratification of Rs.1,000/- by the appellant and recovery of same by the independent witnesses. 27. Learned counsel for CBI submitted that voluntary and conscious acceptance of the bribe and its recovery from the appellant has been proved by the circumstances appearing just before and after the incident of acceptance of bribe money and proved by the testimony of PWs. Further it has been corroborated by the testimony of PW2 Sh K S Chhabra, Chemical Examiner s report Ex.PW2/A which give positive test for the presence of phynoplthline and sodium carbonate. They have proved arrest memo and bottle washes Ex.P11 and Ex.P12, clothe wrappers Ex.P13 and Ex.P14 and pant of appellant as Ex.P PW1, PW3 and PW4 though declared hostile, however during cross examination by learned Prosecutor they have fully corroborated all the material particulars. The testimony of PW1 has been Crl.A.15/2000 Page 10 of 19

11 corroborated on all material counts by the independent witnesses PW3, PW4 and PW6. PW7 the Naib Court of the Special Executive Magistrate has proved robkar Ex.PW1/7 showing cancellation of warrants having been prepared by him and the same was signed by appellant in his presence. However, PW5, the then Special Executive Magistrate did not pass any order cancelling the warrants. 29. He further submitted that even when it is proved that there was voluntary and conscious acceptance of money by the convict, there is no further burden casted upon the prosecution to prove by direct evidence the demand or motive. It has only to be taken from the facts and circumstances of the particular cases. 30. To strengthen his arguments on this issue, he has relied upon the decision in Hazari Lal Vs State (Delhi Administration) 2 wherein it is held that it is not necessary that passing of money should be proved by direct evidence. The event which followed in quick succession lead to the only inference that the money was obtained by the convict. It is further held that the Court may presume that the accused to who took out the currency notes from his pocket and flung them across the wall had obtained them from the witness, who a few minutes earlier was shown to have been in possession thereof. Once the finding that the accused has opened the money, the presumption under Section 4 (1) of the PC Act is immediately attracted. 31. Learned counsel further submitted that the evidence of a hostile witness can be relied upon to the extent which supports the prosecution 2 (1980) 2 SCC 390 Crl.A.15/2000 Page 11 of 19

12 case. Merely declaring the witness as hostile does not affect the testimony of witness, which is otherwise credible, natural and reliable. Under the Indian law, no nomenclature such as hostile witness reliable witness or unreliable witness exists. 32. Learned counsel submitted that there are specific deposition that appellant voluntary and consciously accepted the bribe amount of Rs.1,000/-. In case of D.Velayutham Vs State Represented by Inspector of Police, Salem Town, Chennai 3, the Apex Court has observed as under: Crl L J Though this Court has stressed the need and significance of phenolphthalein as a trap device in corruption cases, so as to allay doubts about the actual receiving of bribes by accused persons, there may be cases where there are multiple demanders in a common or conjoint bribe demand, and for whatsoever reason, only one receives the sum on their behalf, and is entrapped in consequence. Depending on strength of the remainder of evidence, in these cases, constructive receipt by co-accused persons is open to establishment by the prosecution, in order that those who intermediately obtain bribes be latched with equal culpability as their coaccused and entrapped receivers. This will, of course, discount those cases where the trap is successful only against one and not the other official, the latter having refused to accept the bribe tendered. In this case, the trap would have clearly failed against such an official, and there could be no question of the application of constructive receipt. If the receipt and Crl.A.15/2000 Page 12 of 19

13 handling of bribe money by Accused 2 so convincingly and inexorably points towards his custodianship of part of the same bribe amount on behalf of his superior officer, namely Accused 1, then Accused 1 cannot rely on mere non-handling/ non-receipt of the bribe money, as his path to exculpation. This Court's construal of anti-corruption cases is sensitive even to these byzantine methods of bribetaking, and where an evader escapes a trap, constructive receipt has to be an alternate means of fastening criminal culpability. 33. Summing up his arguments, learned counsel appearing on behalf of CBI submitted that the appellant has failed to give any satisfactory explanation either for the recovery of the trap money or recovery of the robkar bearing his signatures from his personal search. Therefore, taking into consideration the entire circumstances and the proved facts, prosecution has proved its case beyond reasonable doubts that appellant demanded and accepted the illegal gratification from the complainant. 34. I have heard learned counsel for the parties. 35. In order to bring the guilt of appellant under Section 7 of the P C Act, prosecution was required to prove that:- (i) The accused was a public servant when the offence was committed; (ii) The accused accepted or obtained or agreed to accept or attempt to obtain illegal gratification from some purpose; (iii) Such gratification was not a legal remuneration to which the accused was legally entitled; Crl.A.15/2000 Page 13 of 19

14 (iv) The accused accepted such gratification as a motive or reward for doing or forbearing to any official act or doing or forbearing to show favour or disfavour to someone in the exercise of his official function; or rendering or attempting to render any service or disservice to someone with the Central or any State Government or Parliament or the Legislature of any State, of with only local authority, Corporation or Government Company referred to under Section 2 (C) or any public servant, whether named or otherwise. In order to prove the guilt under Section 13 (1) (d) of the Act, the convict was holding office as public servant and obtained any valuable thing or pecuniary advantage from the complainant. 36. There is no dispute that the appellant was working as Head Constable in Delhi Police and posted as Reader to the Court of Special Executive Magistrate, East District, Seelampur, Delhi. Thus, he was a government servant. The sanction for his prosecution has also been accorded vide Ex.PW7/A by the competent authority. 37. PW4 is a recovery witness, who towed the line of PW3 and PW1. But the fact cannot be brushed aside that complainant PW1 himself made a complaint that Randhir Singh, Reader of the Special Executive Magistrate had demanded an amount of Rs.1,000/- for cancellation of NBWs, which he never wanted to pay and accordingly, approached the CBI. On his written complaint, trap was led and money was recovered from the appellant. 38. For sustaining the finding of learned Trial Court against appellant, it is imperative upon the prosecution that convict Crl.A.15/2000 Page 14 of 19

15 demanded and accepted the money for any favour to anyone directly or indirectly. In the instant case, no doubt, the deal was to get the order of cancellation of NBW and for that purpose, PW1 complainant had to pay an amount of Rs.1,000/-. It is nowhere disputed that appellant was working as Reader in the SEM Court and some proceedings under Section 107/151 Cr P C were pending in the said Court against complainant and warrants Ex.PW5/A were issued and were in force against the complainant. 39. PW1 has also admitted to have moved an application Ex.PW1/F for cancellation of said warrants and thereon, the endorsement of the Executive Magistrate Ex.PW5/B Put up on the date fixed and no order for cancellation of warrants was passed thereon. The personal search memo Ex.PW1/D shows that paper slip bearing the order of the cancellation of NBW of the complainant signed by the appellant with seal of Special Executive Magistrate, East District, Delhi was recovered. The said slip pertains to the cancellation of NBW Ex.PW1/E. PW9 Inspector R.V.S.Lohmer, the subsequent Investigating Officer deposed about the manner of obtaining the specimen handwriting and signatures of the appellant during course of investigation and obtaining the expert report as Ex.PW8/A from GEQD, Shimla. The expert witness has opined that the questioned handwriting and signatures were of appellant. Even otherwise, it is admitted case that appellant has signed the robkar Ex.PW1/E in his official capacity as Reader to the Special Executive Magistrate, Seelampur, Delhi. Crl.A.15/2000 Page 15 of 19

16 40. However, as per the deposition of PW5 Sh S S Mehta, the then Special Executive Magistrate, he did not pass any order for cancellation of NBWs against the complainant - Mahesh Kumar Sharma. From the report of PW8 Sh N C. Sood hand writing expert, it is established that it is the appellant who had signed the robkar Ex.PW1/E. Accordingly, as opined by learned Trial Court that under normal course of circumstances, no Reader to the Court would have done it without ulterior motive. The mere fact that appellant had signed the aforesaid robkar for cancellation of warrants without there being any order from the Special Executive Magistrate, established that the appellant had demanded and accepted the bribe from the complainant. 41. PW3 Sh Rajinder Kumar, shadow witness, categorically in his deposition has deposed that as soon as they reached tea shop, the complainant took out the tainted money and pass on the same to the appellant, who after accepting it kept in his right side pocket of his pant. This version makes it clear that the tainted money was accepted by the appellant. It further corroborates the fact that as per the statement of PW3 Sh Rajender Kumar, PW4 Sh Subhash Chand Sharma and trap officer Inspector A K Kapoor, trap money was actually recovered from the pant of the appellant. Thus, the recovery of tainted money from the possession of the appellant after he accepted the same stands established. The supporting fact from the circumstances that hand wash, pant pocket wash were taken at the spot, as per version of the complainant, shadow witness Rajender Crl.A.15/2000 Page 16 of 19

17 Kumar and other panch witness Subhash Sharma and inspector A K Kapoor, who deposed that the aforesaid washes turned pink. 42. PW7 Constable Vijender Kumar has categorically deposed that at the relevant time he was posted in the Court of Special Executive Magistrate, East District, Seelampur, Delhi and he used to do the writing work relating to the Court, on the instructions of the appellant. He further deposed that he wrote robkar Ex.PW1/E on the instructions of the appellant and it was signed by the appellant in his presence. 43. The complainant has not disputed the pre-trap proceedings and reaching to the office of Special Executive Magistrate at 01.45PM on After getting from the vehicle, the complainant, shadow witness Rajender Kumar were sent to contact the appellant in the court room. Accordingly, they interacted with the appellant, who told them to come again with money. Accordingly, complainant and Rajender Kumar again contacted the appellant in his office. In turn, the appellant told the complainant to come around 04.30PM at tea shop situated under tree to collect the warrant cancellation order. There the money was put in the pocket of appellant. Thus, if the version of the complainant is believed that he (accused) was not Randhir Singh, then why the complainant contacted the appellant/accused. He should have contacted the other tall and thin person. At the initial stage he went with CBI official, to the appellant and thereafter, he meet the appellant at the tea shop is sufficient to establish that there was no other person except the appellant, who Crl.A.15/2000 Page 17 of 19

18 demanded the money for the purpose, noted above and accepted it and allowed the complainant to put in his pocket. The appellant failed to produce any witness contrary to the facts noted above or to come with any specific explanation under Section 313 Cr P C whereby it can be established that he is innocent. 44. In view of above discussion and in the light of legal propositions, I find no discrepancy in the impugned judgment dated whereby the appellant was held guilty for the charged offences. 45. The appellant was arrested in this case on and released on bail by learned Trial Court vide order dated Thereafter, vide order dated itself, the sentence was suspended due to the reason that appellant remained on bail during trial. He has already suffered for more than 20 years. Moreover, he has lost his service due to this case. 46. Keeping in view the facts and circumstances of this case, I modify the order on sentence dated Accordingly, appellant shall undergone RI for a period of one year with fine of Rs.5,000/- for the offence punishable under Section 7 of the PC Act and in default of payment of fine, further sentenced to undergo SI for a period of three months. He is also sentenced to undergo RI for one year with fine of Rs.5,000/- for the offences punishable under Section 13 (2) read with Section 13 (1) (d) of the PC Act and in default of payment of fine, he shall undergo SI for a period of three months. Crl.A.15/2000 Page 18 of 19

19 Both the abovesaid sentences shall run concurrently and benefit of Section 428 of the Cr P C shall remain available to the appellant. 47. Accordingly, the judgment dated is confirmed and the order on sentence dated is modified to the extent as indicated above. 48. The appellant is directed to surrender before learned Trial Court/Successor Court/Sessions Judge (HQ) within a period of two weeks from the date of the judgment for serving the remaining part of the sentence. 49. In above terms, instant appeal stands disposed of. 50. Order dasti. 51. The Trial Court Record be remitted to learned Trial Court concerned/successor Court/Sessions Judge (HQ) forthwith. SEPTEMBER 21, 2015 jg/m SURESH KAIT (JUDGE) Crl.A.15/2000 Page 19 of 19