Kamal Singh vs The State (Cbi)
2009 Latest Caselaw 331 Del

*                     HIGH COURT OF DELHI : NEW DELHI

                  Judgment reserved on : January 27, 2009
                 Judgment delivered on : February 02, 2009

+                          Crl. A. No. 194/1999

%      Kamal Singh                                      ...   Appellant

                     Through:   Mr. P.K. Sharma, Advocate

                                   versus

       The State (CBI)                                 ...  Respondent
                  Through:      Mr. Ashish Kumar, Advocate.

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

1. Whether the Reporters of local papers may
   be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported
   in the Digest?

SUNIL GAUR, J.

1. In this appeal, challenge is to impugned judgment/order of 22 nd and

23rd March, 1999 of the learned Special Judge, Delhi, who has convicted

and sentenced the Appellant, who was Phone Inspector with MTNL, for

having accepted bribe of Rs.3,000/- on 10th day of January, 1994, from the

complainant (PW-2) for providing new telephone connection.

2. Prosecution version, emerging from the record of this case, is that

on 7th January, 1994, complainant (PW-2) of this case had contacted SDO

(PW-9) of MTNL Exchange at Okhla to expedite the installation of a new

telephone connection and he had told the complainant to contact

Appellant/accused who was the Phone Inspector and on the next day,

Crl. A. No. 194/99 Page 1 complainant contacted the Appellant/accused at MTNL Okhla Exchange

and he was told by the Appellant/accused that he would have to pay

Rs.3,000/- for ensuring early installation of the new telephone connection

at the said residence and for the purpose of paying the bribe, complainant

was called by the Appellant/accused at his office on 10th January, 1994, at

about 11.30 AM.

3. On the aforesaid date, a trap was laid by the CBI upon the complaint

made by the complainant (PW-2) regarding demand of bribe by the

Appellant/accused. Before conducting the raid, the bribe money consisting

of 30 GC notes of Rs.100/- each were treated with phenolphthalein powder

and thereafter a demonstration was given to the shadow witnesses. Then,

the raiding team left the team for the MTNL Exchange at Okhla, Delhi and

the trap team took their position outside the aforesaid office and

complainant alongwith shadow witness (PW-3) proceeded to the office of

the Appellant/accused and the shadow witness was told to give pre-

appointed signal, when the bribe money is demanded and accepted by the

Appellant/accused. In his office, Appellant/accused demanded the bribe

from the complainant and had accepted it outside his office, near the

staircase, and upon receiving of the pre-determined signal, the Trap

Laying Officer (PW-8) with his team came at the spot and had disclosed

his identity and had challenged the Appellant/accused that he had

demanded and accepted the bribe from the complainant and

Appellant/accused became confused and kept mum. Thereafter, shadow

witness (PW-3) told the Trap Laying Officer (PW-8) that the

Appellant/accused had accepted the bribe money with his left hand and

had kept it in the left side pant pocket and the complainant (PW-2) also

Crl. A. No. 194/99 Page 2 confirmed it. Then on the directions of Trap Laying Officer (PW-8), shadow

witness (PW-3) recovered the bribe money from the pant pocket of the

Appellant/accused and the serial number of the recovered GC notes were

tallied by the shadow witness (PW-3) with the serial numbers of the GC

notes mentioned in the handing over memo and they had tallied.

Colourless solution of sodium carbonate was prepared and

Appellant/accused was asked to dip his left hand fingers in it and on doing

so, the colour of the solution turned into pink. Similarly, left side pant

pocket was also dipped into such solution and its colour also turned into

pink and the said solution were transferred into bottles and were seized

and sealed with the seal of CBI. Recovery memos, site plan of the spot,

etc. were prepared. The exhibits, i.e., the sealed and seized bottles were

kept in safe custody and were sent for analysis and they tested positive.

Sanction for the prosecution of the Appellant/accused was obtained. After

completion of investigation, Appellant was charge sheeted for the offences

under Section 7 and 13(1)(d) of read with section 13(2) of Prevention of

Corruption Act, 1988.

4. Trial commenced, as Appellant/accused did not plead guilty to the

charges framed against him under the aforesaid provisions of law. Out of

ten witnesses, examined in this case, the star witnesses are the

complainant (PW-2); shadow witness (PW-3); SDO (PW-9) of MTNL; and

the Trap Laying Officer (PW-8). Appellant/accused in his statement under

Section 313 Cr. P.C. before the trial court took the following stand:-

"Actually I was sitting in the cabin of JE R.S. Negi alongwith him. Complainant Shan-E-Ilahi who was not known to him at that time came and enquired as to who was Kamal Singh from

Crl. A. No. 194/99 Page 3 the person sitting in Fault Control Cabin which was adjacent to the room of JE. Said person pointed towards me and on this complainant came to me and enquired about Singhal, SDO. I told him that Mr. Singhal has his office after 2-3 cabins. On his request to show the cabin of Mr. Singhal, I got up and proceeded out of cabin and as soon as I came out and turned towards cabin of Mr. Singhal, complainant forced tainted currency notes in the left pocket of my pant from behind and as soon as he pushed the money into my pocket, I took out the same and held it in both the hands saying "MERE PAISE NAHIN HAI"."

5. Although the Appellant/accused did not lead any evidence in his

defence, but further elaborated in the following words:-

"I being Inspector was subordinate to JE. It was the duty of the JE to install the new connection. However, in the absence of JE on specific date, Inspector is supposed to look after his work. On 10.1.94 at the relevant time, I was sitting in the cabin alongwith JE Shri RS Negi. At that time complainant came in the cabin and went to the seat of fault control cabin which was also situated there.

From that person he enquired about me and when that person pointed out towards me as Kamal Singh, he came to me and enquired about the Office of SDO Shri Singhal. I enquired from the complainant about his work and he told that he had work regarding telephone connection with Mr. Singhal. He also requested me to guide him upto the room of Singhal. He also requested me to guide him upto the room of Singhal. On this I got up from my seat and came out of cabin. When I turned towards the office of Shri Singhal, complainant was behind me and he taking advantage of opportunity forced tainted money in the left side pocket of my pant. I immediately took out that money with my left hand and

Crl. A. No. 194/99 Page 4 held it in both my hands and shouted that it was not my money and in the meanwhile CBI came there and apprehended me. At that time 2 or 3 persons were present nearby me. After apprehending, I was taken to the office of SDO Shri Singhal who was present on his seat. In the office of Singhal, I was made to sign on papers and also made to append my thumb impression on some papers. They threatened me that if I refused to append thumb mark and sign blank papers they would parade me naked in the telephone exchange. On 11.1.94 after being released on bail, when I visited telephone exchange I was told by JE that he had installed the telephone at the residence of the complainant‟s brother."

6. After the trial, Appellant/accused has been convicted and awarded

sentence of rigorous imprisonment of for three years and four months with

fine of Rs.2,000/- for the offence under Section 13(2) of the Prevention of

Corruption Act, 1988 and for the offence under Section 7 of the Prevention

of Corruption Act, 1988, he has been sentenced to rigorous imprisonment

for a period of two years and to a fine of Rs.2,000/- and in default of

payment of fine, further sentence has been also imposed. Both these

sentences have been ordered by the trial court to run concurrently.

7. Learned counsel for the parties were heard and the record of this

case has been perused.

8. To assail the conviction imposed upon the Appellant/accused by the

trial court, it was contended that the prosecution version is patently false

as the story of the complainant of having met the Appellant/accused on 8th

January, 1994, falls flat on the ground as 8th January being second

Saturday, was a holiday and the office of the Appellant/accused was Crl. A. No. 194/99 Page 5 closed on that day. Learned counsel for appellant contends that there was

no occasion for the Appellant/accused to have demanded or accepted any

bribe because the duty to install a new telephone connection was of Junior

Engineer (PW-7) and not of the Appellant/accused. It is pointed out that

another shadow witness (PW-5) after his retirement from Government

service, has stated in his evidence that the Appellant/accused had not

accepted any bribe and the money was forcibly put into the pocket of the

Appellant/accused by the complainant (PW-2). The discrepancy pointed

out in the prosecution case by the defence is that shadow witness (PW-5)

as stated in his evidence that the Appellant/accused was trapped inside his

office, whereas, complainant has stated in his evidence that he was caught

in the balcony outside of his office, whereas, another shadow witness (PW-

3) has stated that Appellant/accused was caught in the stairs outside his

office. Another contradiction pointed out by the defence in the prosecution

case is that the complainant has stated in his evidence that the

Appellant/accused had told that 'let us go out‟, whereas, shadow witness

(PW-3) has stated in his evidence that the Appellant/accused had asked if

the complainant had 'brought something‟. It is also pointed out that the

complainant Ex. PW-2/A does not bear any diary number, which shows

that it has been ante-dated.

9. According to the learned counsel for appellant, aforesaid

contradictions are material one, which casts serious doubts about the

veracity of the entire prosecution case. In the additional grounds of appeal,

it has been asserted that the complainant (PW-2) had kept the bribe

money in a packet and had put it in the pocket of the accused and had told

him to deliver the same to SDO. It is also contended on behalf of the

Crl. A. No. 194/99 Page 6 Appellant/accused that non-joining of independent witnesses renders the

prosecution case suspect and entitles the Appellant/accused to benefit of

doubt. In the end, it is submitted on behalf of the Appellant/accused that

the conviction of the Appellant/accused by the trial court is bad in law as

the prosecution has miserably failed to prove that the Appellant/accused

had any reason or occasion to demand any bribe and therefore the

Appellant/accused deserves to be acquitted. Reliance has been also

placed upon two decisions of this court reported in 2007 (4) AD (Del) 417

and 2008 (4) (Crimes) 137. Nothing else has been urged on behalf of the

Appellant.

10. Learned Additional Public Prosecutor for the State submits that the

presence of the Appellant/accused at the spot and of the recovery of the

bribe money from the pant pocket of the Appellant/accused stands proved,

not only from the evidence of the complainant (PW-2) but also from the

evidence of shadow witness (PW-3) and the testimony of the Trap Laying

Officer (PW-8) firmly establishes the prosecution case, which is really not

disputed by the Appellant/accused, who has taken a lame stand of

Appellant/accused having no reason to demand the bribe and of

complainant (PW-2) forcibly putting the bribe money in the pant pocket of

the accused to be given to the SDO, MTNL, which is highly implausible. It

is submitted that the two decisions relied upon by the Appellant/accused

are distinguishable on facts and the conviction and the sentence imposed

upon the Appellant/accused is perfectly justified and deserves to be

upheld.

11. There is evidence of SDO, (PW-9) of MTNL, which establishes that

the complainant (PW-2) was told by this witness to meet the Crl. A. No. 194/99 Page 7 Appellant/accused who has been correctly identified by this witness (PW-

9). A bare reading of the evidence of the aforesaid witness (PW-9) reveals

that it has not been suggested to this witness that he had not asked the

complainant (PW-2) to meet the Appellant/accused or that the bribe money

recovered from the pant pocket of the Appellant was meant to be given to

this witness. This witness (PW-9) has generally stated in his evidence that

second Saturdays are holidays for the officials of MTNL who are in the

rank of SDO and above. Appellant/accused was of Inspector level and

even if it is taken that 8th January, 1994 was a second Saturday, still the

prosecution version of complainant having met Appellant/accused on that

day, cannot be negatived. It has come in the evidence of the Junior

Telecom Officer (PW-7) that on the day of the raid, he had come to the

office and had marked his attendance but had left within ten minutes of

reaching his office because of the illness of his wife and therefore, his

attendance was scored off. However, it has come in his evidence that he

and the Appellant/accused have used to sit in the same office room but the

complainant (PW-2) had never met him in respect of the telephone

connection. Anyhow, it has not been suggested to this witness (PW-7) that

the bribe money allegedly forcibly put in the pant pocket of the

Appellant/accused was meant for him.

12. An act does not cease to become official act, even if it does not

come within the scope of the function of the office. It has been so said in

the case of 'Dr. V. Sebastian vs. State‟ 1998 Crl. LJ 1150. In the instant

case, what cannot be ignored is that there is unchallenged evidence of the

SDO (PW-9) of MTNL that in the absence of Junior Telecom Officer (PW-

7), it was the Appellant/accused who used to look after his work.

Crl. A. No. 194/99 Page 8

13. In view of the aforesaid, Appellant/accused cannot be heard to say

that he had no occasion or reason to demand or accept any bribe from the

complainant (PW-2).

14. Once it is established that the bribe money is recovered from the

accused, the inference to be drawn is that the illegal gratification was

accepted as a motive or reward for doing an official act. Decision of the

Apex Court in the case of „Madhukar Bhaskararao v. State of

Maharashtra‟, AIR 2001 SC 147 can be referred to with advantage in this

regard.

15. Apex Court in the case of „B. Hanumantha Rao v. State of Andhra

Pradesh‟, AIR 1992 SC 1201 has dealt with the statutory presumption, as

envisaged by section 20 of the Prevention of Corruption Act, 1988, which

shifts the burden upon the accused, after the prosecution proves that the

bribe money was recovered from the accused. However, the aforesaid

presumption is rebuttable one.

16. In the decision reported in 2007 (4) AD (Del) 417, relied upon by the

Appellant/accused, it was found that the consideration for which the bribe

was allegedly demanded, was completely non-existent. It is not so in the

instant case.

17. The next decision reported in 2008 (4) (Crimes) 137, relied upon by

the Appellant/accused, is on its own facts, as it was found in that case that

the false implication of the Appellant could not be ruled out and the tainted

bribe money was kept by the complainant in Appellant's diary, when he

had gone for fetching water for the complainant and the punch witness was

not found to be independent witness, whereas in the present case, the

Crl. A. No. 194/99 Page 9 testimony of shadow witness (PW-3) remains unassailable and it fully

corroborates the version of the complainant. Therefore, aforesaid

decisions are of no avail.

18. Otherwise also, the Apex Court has declared a decade ago in the

case of „State of U.P. v. Zakaullah‟, 1998 SCC (Cri) 456 that conviction

can be based upon the reliable evidence of trap laying officer alone,

dehors other evidence on record.

19. Aforesaid is a consistent view taken by the courts and there is no

divergent or contrary view taken regarding the acceptability of the evidence

of Trap Laying Officer or the Raid Officer with a rider that it must inspire

utmost confidence of the court. In fact, in present case testimony of Trap

Laying Officer (PW-8) is indeed worthy of acceptance.

20. In the present case, Appellant/accused had not led any evidence to

rebut the aforesaid statutory presumption, nor the plea taken by him of

complainant (PW-2) forcibly putting the bribe money in his pocket for being

given to the SDO seems to be plausible one. No reason is forthcoming as

to why the complainant (PW-2) would forcibly put the bribe money in the

pant pocket of the Appellant/accused for being given to the SDO. In my

considered view, Appellant/accused fails to rebut the statutory presumption

under Section 20 of the Prevention of Corruption Act, 1988 raised against

him.

21. Resultantly, no fault can be found with the impugned judgment

convicting the Appellant. However, on the quantum of sentence, some

leniency can be shown as Appellant is said to be a poor person and a sole

bread earner of his family consisting of his widowed mother and sister, his

Crl. A. No. 194/99 Page 10 wife, two daughters and a son, as reflected in impugned order on sentence

and in view of the fact that he has already faced the agony of the trial and

appeal proceedings in this case, since the year 1994. In the given facts

and circumstances of this case, the substantive sentence imposed upon

the Appellant/accused for the offence under Section 7 of the Prevention of

Corruption Act, 1988, is reduced from two years to one year, with

corresponding enhancement in fine from Rs.2,000/- to Rs.10,000/-. In

default of the payment of enhanced fine, Appellant shall undergo SI for

three months.

22. Likewise, substantive sentence of three years imposed upon the

Appellant/accused for the offence under Section 13(2) of Prevention of

Corruption Act, 1988, is reduced from three years to one and half years,

with corresponding enhancement in fine from Rs.2,000/- to Rs.10,000/-. In

default of the payment of enhanced fine, Appellant shall undergo SI for

three months. Both these altered substantive sentences shall run

concurrently.

23. This appeal stands partly allowed to the extent indicated above.

Appellant is on bail. Trial court is directed to take the Appellant into

custody, to serve out the sentence as modified above.

24. With aforesaid directions, the appeal stands disposed of.

                                                  SUNIL GAUR, J
February 02, 2009
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Crl. A. No. 194/99                                                   Page 11