R.P. Puri vs The State (Delhi Administration)
1999 Latest Caselaw 1017 Del

ORDER

Madan B. Lokur, J.

1. The Appellant has preferred an Appeal under Section 374 of the Code of Criminal Procedure, 1973 directed against the order of conviction dated 30th November, 1977 passed by the learned Special Judge, Delhi in C.C. No. 18 of 1976. An appeal has also been preferred against the sentence awarded to the Appellant on 9th December, 1977.

2. The Appellant was convicted of an offence under Section 161 of the Indian Penal Code and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 for having demanded a sum of Rs. 100/- as gratification other than legal remuneration for getting a power connection sanctioned in favour of the Complainant and the acceptance of a sum of Rs. 30/- in this regard. The Appellant was a public servant at the time he made the demand and when he accepted the gratification. By corrupt or illegal means or otherwise, the Appellant abused his position as a public servant.

3. The Appellant was sentenced to undergo rigorous imprisonment for one year for the offence under Section 161 IPC and rigorous imprisonment for one year and fine in the sum of Rs. 200/- and in default of payment of fine, further rigorous imprisonment for one month under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947. The learned Special Judge directed that both the substantive sentences shall run concurrently.

4. The case arose as a result of a complaint made by Sudesh Chand Vohra who was carrying on the business of sale of furniture. He desired the installation of a power connection at his shop in Panchkuian Road, New Delhi. On 17th March, 1976, Vohra went to the office of the Delhi Electricity Supply Undertaking (for short the DESU ) to procure the necessary application form but the same was not available. He was told by a Karamchari near the counter that power connections were not being sanctioned and it would be futile to apply for such a connection.

5. Vohra came out of the DESU office and was about to start his scooter when he met Chaman Lal. On the asking of Chaman Lal, Vohra told him the purpose of his visit at which point Chaman Lal represented that he could get him a power connection sanctioned through the Appellant who was employed with the DESU, but upon payment. A bargain was struck at Rs. 100/-. The subsequent events that transpired on 17th March, 1976 are not quite relevant for the decision of this appeal.

6. On 18th March, 1976, Vohra approached the Central Bureau of Investigation (for short CBI) and gave a written complaint Exhibit PW1/B. On the basis of this complaint, a trap was laid to nab Chaman Lal and the Appellant. The CBI enlisted the services of M.L. Saha PW-1 who was a Stenographer with the Central Electricity Authority and J.S. Sahani, Section Officer, Department of Rehabilitation, as independent witnesses. The procedure to be followed (what is popularly known as the phenolphthalein test) was explained to Vohra and the two independent witnesses. After completing the necessary formalities with regard to the treatment of the currency notes to be given to the Appellant as bribe, the raiding party reached the office of the DESU around noon time. M.L. Saha PW-1 was to pretend being the brother of Vohra and was required to be in his close proximity.

7. After reaching the office of the DESU, Vohra handed over certain documents to Chaman Lal and asked him to call the Appellant. Chaman Lal went into the office of the DESU and came out alone and informed Vohra that the Appellant would be coming out during the lunch recess. There were some discussions between Chaman Lal and Vohra with regard to the demand of Rs. 100/- being excessive and after some haggling it was agreed that a sum of Rs. 60/- would be adequate for arranging the electricity connection. Out of this amount Rs. 30/- was to be given to the Appellant.

8. At about 1 PM, during the lunch recess, the Appellant came out of the DESU office and there was some conversation between the Appellant, Chaman Lal and Vohra whereafter Vohra handed over three Rs. 10/- currency notes to the Appellant who took them in his left hand and put them in the back pocket of his trousers via the right hand. On the pre-arranged signal being given, and as per the agreed plan, the other members of the raiding party immediately came and the Appellant was apprehended. A small crowd of about 10 to 15 people gathered at the spot. The raiding party then took the Appellant to the office room of R.C. Bhatia, Executive Engineer working in the DESU.

9. After R.C. Bhatia was apprised of the occurrence, a hand wash was taken of the Appellant's right and left hands in two separate glasses of water and the solution turned pink. A search was also carried out of the Appellant's trousers and the three treated currency notes were recovered from the back pocket. A wash was also taken of the back portion of the Appellant's trousers and the solution turned pink. According to the prosecution, this showed that the Appellant had physical contact with the treated currency notes which he put in his trouser pocket. A recovery memo was drawn up which was duly attested by witnesses and the three coloured solutions were also sealed and attested by witnesses.

10. Investigations into the case were conducted by Inspector S.N. Tiwari and a charge-sheet was submitted on 31st August, 1976 against the Appellant and Chaman Lal.

11. The prosecution examined as many as eight witnesses. R.C. Bhatia, in whose office room the search of the Appellant had been conducted was cited as a witness but subsequently, on 12th October, 1977 the Public Prosecutor give him up as a witness as he was said to have been won over by the Accused for the reasons mentioned in the application filed by the Public Prosecutor. During the trial of the case Vohra turned hostile and he was thereupon cross-examined by the Public Prosecutor.

12. As mentioned above, the Appellant was convicted of the charge against him.

13. Learned counsel for the Appellant addressed arguments on 8th October, 1999 when judgment was reserved. Despite the fact that the appeal was shown in the cause list for quite sometime, no one put in appearance on behalf of the State. Consequently, I had the benefit of hearing only learned counsel for the Appellant.

14. Learned counsel for the Appellant submitted that from the evidence of Vohra it is quite clear that he did not directly interact with the Appellant and that the amount that was said to have been settled for payment to the Appellant was actually settled between Vohra and Chaman Lal and the Appellant had nothing to do with this settlement. Admittedly, the first time that Vohra came into contact with the Appellant was during the lunch break on 18th March, 1976 and even on that occasion the currency notes were handed over by Vohra to Chaman Lal and not directly to the Appellant.

15. In this regard, it is necessary to state that the stand taken by Vohra during the trial of the case was that he did not hand over the three treated currency notes to the Appellant and that he had in fact handed over the currency notes to Chaman Lal for being given to the Appellant. During his cross-examination, Vohra stated that when the trousers of the Appellant were first searched in the office rook of R.C. Bhatia nothing was recovered therefrom and when a second search was conducted, after about one or two minutes, the recovery of currency notes was effected. In response to a question, Vohra stated that at the time of the first search, Inspector Khan of the raiding party had put his hands in the trouser pockets of the Appellant.

16. The evidence given by Vohra in this regard is rather revealing. Vohra was asked the following question, and the answer given by him is reproduced as under:

Q. Where from recovery of Rs. 30/- was made in the office room of Executive Engineer?

Ans. Inspector Khan searched the person of R.P. Puri but nothing was found. Thereafter, he searched again and recovered Rs. 30/- from the back pocket of pants of R.P. Puri. I do not remember if I stated in my statement to the police that nothing was recovered when the person of R.P. Puri was searched in the first instance. (Confronted with statement copy Ex. PW.3/F where it is not so recorded).

17. Subsequently, when he was cross-examined by learned counsel appearing on behalf of the Appellant, he stated as follows:

Q. At the time of the first search Inspector Khan searched the back pocket and other pockets?

Ans. I do not remember. All I remember is that he conducted the search.

Q. I put to you that at the time of first search, Inspector Khan was putting his hand in pockets?

Ans. He was putting his hand in pockets.

Q. I put to you that when nothing was recovered during the first search, Sh. Bhatia said that R.P. Puri should be released>

Ans. It is incorrect.

Q. Was the second search conducted after 7 or 8 minutes of the first search?

Ans. I have no idea on time. The second search was conducted while R.P. Puri was still held by the fore-arms and it might have been conducted after one or two minutes.

And later.

Q. I put to you that Rs. 30/- were taken from you by the police and false recovery was foisted on R.P. Puri?

Ans. It is incorrect.

18. It is true that Vohra turned hostile and did not support the prosecution version with regard to the handing over of the currency notes to the Appellant. However, Vohra does support the other essential facts in the prosecution case such as the giving of a signal to the raiding party, the fact that a small crowd had gathered at the spot when the Appellant was apprehended, the fact that the Appellant was taken to the office room of R.C. Bhatia and that a wash of both his hands and the back portion of the trousers of the Appellant was taken which resulted in the collection of three separate pink solutions. Vohra also supports the recovery of the three treated currency notes of Rs. 10/- each from the Appellant (even though in the second search).

19. The question is whether Vohra should be believed in respect of the essential details given by him or not at all. The facts disclosed by Vohra during investigations with regard to the handing over of the currency notes to the Appellant were confirmed during the trial by M.L. Saha PW-1 who was in the close proximity of Vohra. When the Public Prosecutor put to Vohra that he had stated during the investigations that the Appellant accepted the currency notes in his left hand and passed them on to the back pocket of his trousers with the assistance of his right hand, Vohra stated that he had no recollection; when he was confronted with that portion of his statement recorded during the investigations, he said that he had no comment to make.

20. In so far as the recovery of the currency notes from the trousers of the Appellant in the office room of R.C. Bhatia is concerned, the prosecution version is to the effect that only one search was carried out and during that search the currency notes were recovered. The case of the prosecution in this regard is supported by M.L. Saha PW-1, J.S. Sahani PW-2 (both being independent witnesses), Inspector Satinder Nath of the CBI PW-4 and the Deputy Superintendent of Police, A.A. Khan PW-7.

21. The basis of this overwhelming evidence, I am in agreement with the learned Special Judge that Vohra evaricated with a view to help the Appellant. The fact any of the independent witnesses and the police officers clearly shows that upon the search of the trousers of the Appellant, there was a recovery of three currency notes from the pocket of the Appellant's trousers and that no second search as suggested by Vohra was carried out.

22. Learned counsel for the Appellant placed reliance on Kehar Singh and Ors. Vs. State (Delhi Administration) to contend that in the absence of a public witness, the recovery of the three currency notes should be taken with a pinch of salt. Reliance was place on paragraph 54 of the Report. I am afraid that the facts in Kehar Singh were different and are completely inapposite. The Supreme Court found that the release of the accused Balbir Singh after his earlier arrest was not established and his abscondence was also not proved; therefore, the arrest of the accused Balbir Singh from a bus stand could be believed only if independent witnesses were available. In the present case, there is no controversy about the recovery of the currency notes but only whether the recovery was made during the first search or during the second search.

23. Learned counsel for the Appellant also placed reliance on Major E.G. Barsay Vs. State of Bombay to contend that the evidence of an interested witness should not be relied upon without corroboration (paragraphs 38 to 41 of the Report). I am unable to see the relevance of this case because the witness therein, namely, Lawrence was interested in seeing the success of the trap laid by him. In the present case, there are two independent witnesses, namely, M.L. Saha PW-1 and J.S. Sahani PW-2, neither of whom had any interest in seeing that the trap laid by Vohra succeeds. Consequently, the judgment relied upon by learned counsel for the Appellant is not at all relevant to this case.

24. Learned counsel for the Appellant contended that it was rather odd that R.C. Bhatia was not examined at all. It was also submitted that apart from R.C. Bhatia there were two other persons in his office room and they were not examined even at the stage of investigations. Learned counsel relied upon Khatri Hemraj Amulakh Vs. The State of Gujarat, (1972) 3 SCC 671 to contend that "the non-examination.........of a very material witness would give rise.......to an inference that, if examined, he would not have supported the prosecution evidence".

25. Learned counsel for the Appellant also sought to make a point that while the recovery memo Exhibit PW-1/C was not signed by R.C. Bhatia as one of the attesting witnesses, he did sign the pink solutions Exhibits P-5, P-6 and P-7. According to learned counsel this was because the currency notes were planted on the Appellant and R.C. Bhatia did not want to be a party to this and that was the real reason why R.C. Bhatia was not called as a witness.

26. I am not inclined to draw any adverse inference due to the non-examination of R.C. Bhatia or any other person in his office room. There is no doubt that two independent witnesses were associated with the raid, but nothing has been brought out to impeach their credibility. Once the independent witnesses appeared in the witness box and both of them confirmed the events that transpired, there was no need to go on multiplying the witnesses. Apart from that, it appears that R.C. Bhatia was over-anxious to enter the witness box. As per the application filed by the Public Prosecutor on 12th October, 1977 it appears that R.C. Bhatia had attended the Court on the previous day without even being summoned and had requested for being examined. Such over-anxiety raised some doubts in the mind of the Public Prosecutor with regard to the ability of R.C. Bhatia to tell the truth. It was for this reason that the Public Prosecutor dropped him as a witness. Under these circumstances, no adverse inference can be drawn because of the non production of R.C. Bhatia as a witness.

27. As regards the question as to why R.C. Bhatia was a witness to the pink solutions Exhibits P-5, P-6 and P-7 but not to the recovery memo Exhibit PW.1/C, no inference can be drawn either way in the absence of any question having been put to any of the witnesses in this respect.

28. Learned counsel for the Appellant then submitted that of the three clear solutions which were said to have turned pink as a result of the hand and trouser wash of the Appellant, only two of them were found to be pink in colour (namely, Exhibits P-6 and P-7) while the third solution, that is, Exhibit P-5 had no colour on the date when J.S. Sahani PW-2 was examined on 10th October, 1977.

29. I am not inclined to read much into this for the simple reason that it is not known why one of the solutions (Exhibit P-5) lost its colour. It was nobody's case that soon after the apprehension of the Appellant there were only two pink solutions and not three. The loss of colour in Exhibit P-5 could be as a result of passage of time but it is not possible to say anything one way or the other in this regard.

30. Relying on Kali Ram Vs. State of Himachal Pradesh , learned counsel for the Appellant submitted that "......if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted." and that "......there has to be clear evidence of the guilt of the accused and in the absence of that it is not possible to record a finding of his guilt....." (Paragraphs 25 and 28 of the Report). Learned counsel relied upon Balaka Singh & Ors. Vs. The State of Punjab, 1975 Crl.L.J. 1734 to the same effect. While this is so, I have no doubt in my mind that on the basis of the evidence adduced in the case, and discussed by me above, the evidence points to the guilt of the Appellant and there is really nothing to suggest his innocence.

31. Learned counsel for the Appellant contended that Vohra had ten Rs. 10/- currency notes but, assuming he gave three of them to the Appellant, he should have been left with seven but actually he had only four currency notes. In other words, three of the currency notes mysteriously disappeared. Frankly, I am not concerned with the mystery of the missing currency notes and it hardly matters where they disappeared. The absence of three currency notes does not entitle the Appellant to any benefit nor does it show that the Appellant is not guilty of the charge made against him.

32. Learned counsel for the Appellant finally contended that no sanction had been taken to prosecute the Appellant. This contention does not merit any serious consideration in view of the fact that the services of the Appellant were terminated on 20th April, 1976 while the charge-sheet was submitted on 31st August, 1976. It is true that the Appellant was reinstated on 10th August, 1977 by the General Manager, DESU. The reinstatement would not wipe out the fact that the charge-sheet was filed against the Appellant when he was not a public servant. Consequently, there was no need to obtain any sanction under Section 6(1) of the Prevention of Corruption Act, 1947.

33. Learned counsel for the Appellant addressed me at length on the quantum of sentence to be awarded to the Appellant. There is no doubt that corruption is an extremely serious offence. This is also recognised by Section 5(2) of the Act which provides that upon conviction, imprisonment shall be for a period of not less than one year and that a fine shall also be liable to be paid. However, the proviso to Section 5(2) of the Act provides that a Court may, for any special reason to be recorded in writing, impose a sentence of imprisonment of less than one year.

34. The Supreme Court has considered the meaning of "special reasons" in Meet Singh Vs. The State of Punjab The word "special" was contradistinguished by the Supreme Court to the word "general" or "ordinary". Learned counsel for the Appellant relied upon the case of B.G. Goswami Vs. Delhi Administration and submitted that "special reasons" are within the judicial discretion of the Courts and such discretion is as wide as the demand of the cause of substantial justice. In B.G. Goswami, the Supreme Court was not inclined to send the Appellant therein behind bars because of the years of agony and harassment suffered by the Appellant therein during the course of the proceedings, alongwith the fact that the Appellant therein was going to lose his job. Similarly, reliance was placed on Shri Baradkanta Mishra Vs. The Registrar of Orissa High Court and Another to Submit that it is not always advisable to send a convict behind bars when a fine would meet the ends of justice.

35. In so far as the presence case is concerned, I am of the view that the amount of bribe was not a huge amount: it was only Rs. 30/- but it was worth much more then, than what it is today. However, since this case is being decided in October, 1999, I think it would be appropriate to go by the standards which are in existence today rather than the standards of the mid 1970s. Taking today's value of money, a sum of Rs. 30/- is a paltry amount. Further more, the offence is alleged to have been committed in March 1976 which is more than 23 years ago. I do not think it appropriate to send the Appellant behind bars for taking a bribe of Rs. 30/- more than 23 years ago. It appears inequitable to me.

36. Additionally, I am a little intrigued by the fact that the Appellant was reinstated in service while the criminal trial was pending against him. With my little experience in matters pertaining to service law, this is perhaps the first instance that I have come across where a person who is accused of having committed a criminal offence is reinstated in service while the criminal trial is pending; more so, in a case concerning corruption. Since the Government itself did not find the offence to be very serious, as evident by the fact that the Appellant was reinstated in service as also by the fact that on one appeared on behalf of the State in this appeal, I think it would be appropriate to let the matter rest as it is.

37. Under the circumstances, I dismiss the appeal and uphold the conviction of the Appellant. He is sentenced to undergo imprisonment till the rising of the Court. The Appellant shall, in addition, pay a fine of Rs. 1000/- and in default of payment of fine he shall undergo rigorous imprisonment for a period of one year. The amount of fine is being increased keeping in view the value of the amount of fine imposed in 1977 and what it may be worth today.