Satish Kumar vs C.B.I.
2009 Latest Caselaw 392 Del

                "REPORTABLE"
*     HIGH COURT OF DELHI AT NEW DELHI

+            CRL. APPEAL No. 163/2004

                          Date of decision : February 06, 2009

#     SATISH KUMAR                                ..... Appellant
!                     Through : Mr.   Padam Singh, Adv. with
                               Mr.    Bhanu Pratap Singh, Adv.
                               Mr.    Prem Pratap Singh,Adv.
                               Mr.    S.Lal, Adv.

                              Versus

$     C.B.I.                                  ... Respondent
^                     Through : Mr. R.M. Tewari,Adv.

%
      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

     (1) Whether reporters of local paper may be
         allowed to see the judgment?

     (2) To be referred to the reporter or not?               Yes

     (3) Whether the judgment should be reported
         in the Digest ?                                      Yes

                         JUDGMENT

ARUNA SURESH, J.

1. Under challenge in this appeal is the judgment of

conviction and order on sentence of the Special Judge

dated 12.02.2004 and 13.02.2004 respectively whereby

the appellant was convicted for offences under Sections

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

of Corruption Act,1988 (hereinafter referred to as „the

Act‟) and was sentenced to undergo Rigorous

Imprisonment for one year and pay a fine of Rs. 5,000/-

in default to further undergo Rigorous Imprisonment

for three months for offence under Section 7 of the Act

and was further sentenced to undergo Rigorous

imprisonment for one year and six months and pay a

fine of Rs. 10,000/- in default to further undergo

Rigorous Imprisonment for six months for offence

under Section 13(2) of the Act. Substantive sentences

were ordered to run concurrently.

2. Appellant was posted as Sub-Inspector at Police Station

Nand Nagri in March, 1998. Appellant had arrested

Rajesh Kumar in some case registered at Police Station

Nand Nagri. Rajesh Kumar happened to be the son of

complainant; Smt. Anaro Devi. Complainant had filed a

written complaint on 24.03.1998 with C.B.I. alleging

that appellant had demanded a bribe of Rs.4,000/- from

her on 23.03.1998 for getting her son released on bail

when she had gone to Karkardooma Courts, Shahdara,

Delhi on 23.03.1998. She was required to pay bribe

money before 30.03.1998. Since she did not want to

pay bribe money, she filed the complaint. Accordingly,

a case was registered against the appellant and

Inspector K. Babu was entrusted with the investigation

of the case. A trap was laid at the Police Station Nand

Nagri. Appellant received the bribe money of Rs.

4,000/- from the complainant. The currency notes

treated with phenolphthalein powder, when washed

with solution of Sodium Carbonate, changed their

colour to pink. The appellant was arrested after his

hand wash and left side pocket of the pant wash also

turned into pink. After completion of the investigation,

charge-sheet was filed against him.

3. The Special Judge framed charges under Section 7 and

13(2) read with Section 13(1)(d) of the Act against the

appellant and conducted the trial of the case. He found

sufficient evidence against the appellant and convicted

him for the said offences vide his detailed judgment

dated 12.02.2004. Aggrieved by the said judgment and

order on sentence, the present appeal has been filed.

4. Learned counsel for the appellant, Mr. Padam Singh,

has argued that the trial court erred gravely in not

considering the fact that the sanction was not proper

and legal as sanctioning authority did not give the

grounds of satisfaction, sanction is not a simple

formality but is a safeguard to the interest of the public

servant against frivolous and vexatious prosecution.

The trial court failed to consider that statement under

Section 161 Cr.P.C. and report under Section 173

Cr.P.C. were not put up before the sanctioning

authority and the sanctioning authority had not

scrutinized them nor did he apply his mind before

granting sanction and therefore the sanction order

being bad in law, the trial court had no jurisdiction to

take cognizance of the offence and proceed with the

trial of the case.

5. It is submitted by the learned counsel for the appellant

that the validity of the sanction was challenged by the

learned defence counsel appearing before the trial

court but, the trial court failed to consider the same.

6. Mr. R.M. Tewari, learned APP for the State argued that

the sanction order was never challenged by the

appellant before the trial court and therefore, appellant

cannot be allowed to agitate this issue for the first time

in appeal.

7. In para 12 of the judgment, the trial court dealt with

the sanction order Exhibit PW-7/A, and observed as

follows:

"The sanction for prosecution of the accused was granted by P.W.7 Shri S.B.K. Singh, who was posted as D.C.P.,

North-East District, Delhi. He has proved the order of sanction Ex. PW7/A which he had communicated to S.P., C.B.I., vide his letter E. PW 7/B. The validity of this sanction order has not been challenged during the course of arguments."

8. In para 16 of the judgment, the trial court again

observed that appellant had not challenged the factum

or validity of sanction for prosecution of the appellant.

Thus, it is clear that the appellant did not challenge the

validity of the sanction order at any stage before the

trial court, not even at the stage of addressing final

arguments. He accepted the validity. Therefore the

trial court had no occasion to deal with the objections

as raised by the appellant in this appeal. Besides,

having conceded to the validity of the sanction, the

appellant cannot be permitted to agitate this issue for

the first time in appeal.

9. Learned counsel for the appellant has submitted that

even if validity of the sanction order was not challenged

before the trial court, the appellant has every right to

challenge it in appeal.

10. I do not find much force in these submissions as,

Section 19(3)(a) and Section 19(4) of the Act puts

restriction on the powers of the appellate court to set

aside the conviction on the grounds of absence of, or

any error, omission, or irregularity in the sanction

required under sub-Section 1 of the said Section, unless

the Court is of the opinion that a failure of justice has in

fact been occasioned thereby. For determining

whether the absence of or any error, omission or

irregularity in such sanction has occasioned or resulted

in a failure of justice, the court has to have regard to

the fact whether the objection could and should have

been raised at any earlier stage in the proceedings.

11. Section 19(3)(a) and 19(4) read as follows:

"19. Previous sanction necessary for prosecution

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-

(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence or, or any error, omission or irregularity in, the sanction required under sub-section(1) unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;

             (b) xxx            xxx        xxx
                   xxx
             (c)   xxx          xxx        xxx
                   xxx

                   (4) In determining under sub-

section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at

any earlier stage in the proceedings."

12. A combined reading of sub-sections 3 and 4 of Section

19 of the Act makes it clear that Section 19 of the Act

has an overriding effect on the provision of the Criminal

Procedure Code, and hence no finding sentence and

order passed by a Special Judge can be reversed or

altered by a court in appeal, confirmation or revision on

the ground of the absence of, or any error, omission or

irregularity in the sanction required under sub-section

(1), except when in the opinion of that court a failure of

justice has in fact been occasioned thereby.

Explanation to the Section also becomes relevant and

also is of significance as it provides that for the

purposes of Section 19, error includes competency of

the authority to grant sanction.

13. Coming to the facts of this case, this court has to take

into consideration the fact that the objection to the

validity of the sanction was not raised by the appellant

in the trial court i.e. at any earlier stage in the

proceedings, which is a major factor and therefore puts

restriction on this court to consider the validity of the

sanction as challenged. Failure of justice has to be

ascertained by the criminal court particularly the

superior court by close examination to ascertain

whether there was really a failure of justice or it is only

a camouflage. Merely because there is an omission,

error or irregularity in the matter of according sanction

that does not affect the validity of the proceedings

unless the court records the satisfaction that such

error, omission or irregularity has resulted in failure of

justice. Reference is made to State by Police

Inspector v. T. Venkatesh Murthy - 2004(7) SCC

763.

14. In this case as pointed out above, no such objection to

the validity of the sanction was raised in the trial court.

When the appellant failed to raise the question of valid

sanction, the trial proceeded to its logical end by

making judicial scrutiny of the entire material and since

the case has ended in conviction, there is no question of

failure of justice on the mere premise that no valid

sanction was accorded for prosecuting the public

servant because the very purpose of providing such a

check under Section 19 of the Act is to safeguard public

servants from frivolous or mala fide or vindictive

prosecution was frustrated. Once, the judicial filtering

process is over on completion of the trial, the purpose

of providing for the initial sanction would bog down to a

surplusage. An appellant who did not raise such an

objection at the trial stage cannot possibly sustain such

a plea made for the first time in the appellate court.

15. In Central Bureau of Investigation v. V.K. Sehgal &

Anr. - (1999) 8 SCC 501 where no such objection was

raised by the respondents at the trial stage and the

issue was raised for the first time in appeal and

accepted by the appellate court and the order of the

appellate court was challenged by the Central Bureau

of Investigation by filing this special leave petition, it

was observed:

"A court of appeal or revision is debarred from reversing a finding (or even an order of conviction and sentence) on account of any error or irregularity in the sanction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity. For determining whether want of valid sanction had in fact occasioned failure of justice the aforesaid sub-section (2) enjoins on the court a duty to consider whether the accused had raised any objection on that score at the trial stage. Even if he had raised any such objection at the early stage it is hardly sufficient to conclude that there was failure of justice. It has to be determined on the fact of each case. But an accused who did not raise it at the trial stage cannot possibly sustain such a plea made for the first time in the appellate court. In Kalpnath Rai v. State (through CBI) this Court has observed in para 29 thus:

"29. Sub-section (2) of Section 465 of the Code is

not a carte blanche for rendering all trials vitiated on the ground of the irregularity of sanction if objection thereto was raised at the first instance itself. The objection has been raised at the earlier stage in the proceedings. It is only one of the consideration to be weighed but it does not mean that if irregularity in the sanction would spoil the prosecution and transmute the proceedings into a void trial."

11. In a case where the accused failed to raise the question of valid sanction the trial could normally proceed to its logical end by making a judicial scrutiny of the entire materials. If that case ends in conviction there is no question of failure of justice on the mere premise that no valid sanction was accorded for prosecuting the public servant because the very purpose of providing such a filtering check is to safeguard public servants from frivolous or mala fide or vindictive prosecution on the allegation that they have committed offence in the discharge of their official duties. But once the judicial filtering process is over on completion of the trial the purpose of providing for the initial sanction would bog down to a surplusage. This could be the reason for providing a bridle upon the appellate and revisional forums as envisaged in Section 465 of the Code of Criminal Procedure."

16. In the instant case, the Supreme Court also took into

consideration, the fact that the Prevention of

Corruption Act, 1947 was repealed by the Prevention of

Corruption Act, 1988. Under the old Act, the need for a

valid sanction for prosecution was incorporated in

Section 6 whereas in the new Act of 1988, Section 19

was incorporated and Section 19 of the new Act

specifically made provision regarding appeal and

revision. Hence, the appeal and revision which were

entirely being governed by the provisions of the Code of

Criminal Procedure are now being governed by Section

19 of the new Act which contains such provision

regarding appeal and revision which is incorporated in

Section 27. Section 19(3)(a) of the Act was also

interpreted in the following manner :

"It is a further inroad into the powers of the appellate court over and above the trammel contained in Section 465 of the Code which has been dealt with supra. Under Section 19(3)(a) no order of conviction and sentence can be reversed or altered by a court of appeal or revision even "on the ground of the absence of sanction" unless in the opinion of that court a failure of justice has been occasioned thereby. By adding the explanation the said embargo is further widened to the effect that even if the sanction was granted by an authority who was not strictly competent to accord such sanction, then also the appellate as well as revisional courts are debarred from interfering with the conviction and sentence merely on that ground."

17. In view of the proposition of law as discussed above, the

appellant cannot be allowed to raise the plea of invalid

sanction for the first time in appeal nor this court is

empowered to consider the objection to the validity of

sanction raised for the first time in appeal, especially

when, the appellant who ought to have raised this plea

before the trial court did not raise any such objection at

any stage of the proceedings before the trial court. The

appellant, therefore, cannot be allowed to agitate that

the sanction was improper before this court especially

when, he has failed to show that improper sanction has

resulted into failure of justice.

18. Much has been argued by the learned counsel for the

appellant that the sanction was granted in a mechanical

manner and the sanctioning authority Shri B.K. Singh

(PW-7) had not applied his mind to his satisfaction that

there was no evidence and material on the record

which made out an offence under Section 7 and 13(2)

read with Section 13(1)(d) of the Act while granting

sanction to C.B.I. to prosecute the appellant. He has

also argued that since witness had not brought the

sanction file before the Court, the sanctioning authority

had no material before it for grant of sanction and he

signed the draft proforma of sanction as produced

before him by SP, CBI, along with the letter of request.

19. All these submissions are based on presumptions,

supposition and conjunctures and are not born out from

the record. Shri B.K. Singh, specifically deposed that

he had perused the material submitted before him and

after having applied his mind, he granted the sanction

for prosecution as per order Exhibit PW-7/A under his

signatures. He had denied the suggestion that he had

signed the draft proforma of sanction sent to him by

S.P., C.B.I. along with the letter of request. Simply

because, the witness did not bring the file to the Court

on the basis of which he had issued the sanction order

does not in any manner mean that he had not gone

through the material, which of course, included the

statement of the witness, the documents collected

during the investigation and other material which was

necessary to be scrutinized to grant sanction for

prosecution.

20. Reference of the learned counsel for the appellant on

Mansukhlal Vitthaldas Chauhan vs. State of

Gujarat - (1997) 7 SCC 622 to support his submission

is of not much help to him. In the said case also, it was

held that validity of the sanction would depend upon

the material placed before the sanctioning authority

and the fact that all the relevant facts, materials and

evidence have been considered by the sanctioning

authority. Consideration implies application of mind.

What is required is the order of sanction must ex facie

disclose that the sanctioning authority had considered

the evidence and other material placed before it. This

fact can also be established by extrinsic evidence by

placing the relevant files before the court to show that

all the relevant files were considered but it is not a

must that such file should be placed before the court. It

is pertinent to mention here that there was never any

request made by the appellant before the trial court to

insist upon the sanctioning authority to produce the file

which was the basis of grant of sanction for prosecution

of the appellant. Rather it is agitated by the counsel for

the appellant that since the file was not produced

before the court, there was no file before the

sanctioning authority when the sanction was accorded.

Mansukhlal case, therefore belies the submissions

made on behalf of the appellant. It cannot be presumed

that since the file was not produced before the court, it

was not produced before the sanctioning authority, the

sanction was not valid.

21. Learned counsel for the appellant has referred to

V.Venkata Subbarao v. State 2007 - Cr.L.J. (S.C.)

Page 754 to support his submissions that since vital

documents showing involvement of the appellant had

not been produced before the sanctioning authority,

the sanctioning authority had no occasion to apply his

mind to the entire material on record and therefore the

sanction was invalid. Para No. 23 of the said judgment

reads as follows:

"It is also accepted that before the sanctioning authority the vital documents showing involvement of MRO had not been produced, the sanctioning authority, therefore, did not have any occasion to apply their mind to the entire material on record and in that view of the matter, the sanction is, therefore, vitiated in law. Conduct of the officers of the respondent who had taken recourse to suppression very de-serves serious condemnation."

22. Thus, it is clear that in the said case, it was accepted in

the evidence by the sanctioning authority that vital

documents showing involvement of MRO had not been

produced and therefore, the court held that sanctioning

authority had no occasion to apply its mind to the entire

material on record as the same was not before it. The

facts before this court are different. PW-7 has

categorically stated that material including the

statement of the witnesses under Section 161 Cr.P.C.

were read and considered by him and therefore, it was

only after applying his mind that he granted sanction to

the prosecution to prosecute the appellant under the

Act.

23. Learned counsel has also tried to emphasize that where

two views are possible in the prosecution case then the

version favourable to the accused should be adopted

and since sanction in this case becomes doubtful, the

benefit of doubt should be given to the appellant. To

support his submissions he has referred to Sharad

Birdhi Chand Sharda v. State of Maharashtra -

1984 Cr.L.J. SC 1738. This case has no relevance to

the present case as it does not relate to sanction. It is a

decision on merits of the case where a married woman

had committed suicide by taking potassium cyanide and

the evidence of the witnesses examined by the

prosecution was assessed, sifted and weighed on merits

by the court while giving benefit of doubt to the

appellant.

24. Under these circumstances, the challenge to the

validity of sanction order is not sustainable especially

when there is nothing to show that the alleged defect or

irregularity in sanction caused failure of justice to the

appellant. In Shankerbhai Laljibhai Rot v. State of

Gujarat (2004) 13 SCC 487, it was held that in the

absence of anything to show that any defect or

irregularity in sanction caused failure of justice, the

plea of irregular sanction was without substance.

25. Perusal of the sanction order Exhibit PW-7/A makes it

clear that the sanctioning authority took into

consideration the statement of the witnesses recorded

under Section 161 Cr.P.C. by the Investigating Officer

and other material placed before him while granting

sanction to C.B.I to prosecute the appellant for offences

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

the Act. Therefore, it cannot be said that the sanction

order was unmindful, mechanical and without

application of mind. The sanctioning authority had only

to see whether the facts stated in the complaint prima

facie disclosed the commission of an offence or not.

Hence, the sanction order was valid and did not lead to

any grave injustice to the appellant even if it suffered

from any irregularity or error or omission as alleged.

26. Second limb of the arguments of the learned counsel

for the appellant is that prosecution witnesses have

made contradictory statement before the learned trial

judge and therefore on the basis of contradictory

statements, the trial judge should not have concluded

and based its judgment for conviction and sentence of

the appellant. The prosecution case does not stand as

it failed to prove that there was demand made by the

appellant from the complainant for Rs. 4,000/- as

gratification for ensuring the release of complainant‟s

son Rajesh Kumar on bail; the trial court also failed to

appreciate that the money was lifted by some CBI staff

from behind the trunk kept in the room of the appellant

and was not recovered from the possession of the

appellant and that the money was kept by the

complainant behind the trunk from where it was

recovered during the period appellant left his room

after talking to the complainant and came back to his

room after 10-15 minutes, leaving complainant and Anil

Kumar in his room and that therefore, it is a clear case

of plantation.

27. Learned counsel for the CBI has submitted that Section

7 of the Act does not speak of demand as a pre-requisite

for its applicability to an offence of gratification

committed by a public servant and therefore, no

demand was required to be proved by the prosecution

and that the ingredients of Section 7 are complete in

this case when read with Section 13(1)(d) of the Act.

The prosecution has been able to prove complete

acceptance of the gratification of Rs.4,000/- which in

itself included and pre-supposed that there was a

demand for illegal gratification.

28. Section 7 of the Act makes a public servant punishable

for imprisonment and fine as prescribed therein, if such

public servant accepts, or agrees to accept, or attempts

to obtain from any person for himself, or for any other

person any gratification whatever, other than legal

remuneration, as a motive or reward for doing or

forbearing to do any official act or for showing or

forbearing to show, in the exercise of his official

functions, favour or disfavour to any person or for

rendering or attempting to render any service or

disservice to any person, with the Central Government

or any State Government or Parliament or the

Legislature of any State or with any local authority,

corporation or Government Company referred to in

clause (c) of section 2, or with any public servant,

whether named or otherwise. Gratification within the

meaning of this section is not restricted to pecuniary

gratification or to gratification estimable in money.

29. Section 13 of the Act speaks of acts of a Government

Servant which can be said to be criminal misconduct by

a public servant. Under section 13(1)(d) of the Act, if a

Government servant by corrupt or illegal means,

obtains for himself or for any other person any valuable

thing or pecuniary advantage is stated to have

committed criminal misconduct and is liable for

punishment with imprisonment and also fine as

prescribed under the said section. Thus, it is clear that

prosecution was not required to prove any demand

made by the appellant as gratification for ensuring the

release of Rajesh Kumar, an accused arrested by him,

on bail as his bail application was to come up for

hearing on 30.03.1998.

30. Prosecution has led evidence to prove that appellant

had made demand for Rs. 4,000/- on 23.03.1998 when

he met the complainant in Karkardooma Court. To

prove the presence of the appellant in Karkardooma

court, prosecution proved in evidence DD entries dated

23.03.1998 (Ex. PW-5/C and PW-8/D3) of Police Station

Nand Nagri. Might be that, the case of the complainant

was not listed for hearing on 23.3.1998 but, it was

listed for hearing on 24.03.1998. The fact remains,

appellant had visited Karkardooma court on

23.03.1998. Complainant would not have known that

appellant would go to Karkardooma court on

23.03.1998, unless she herself went to Karkardooma

courts for pursuing bail application of her son and met

the appellant there. The trial court rightly assessed the

presence of the complainant and the appellant at

Karkardooma courts on 23.3.1998 in para 21 wherein it

observed:-

"It may be that the complainant has forgotten the purpose for which she had gone to Karkardooma courts on 23 rd March, 1998 but from Ex.PW 5/C and Ex. PW 8/D-3, the copies of daily diaries of Police Station Nand Nagri. It is clear that the accused had gone to rd Karkardooma courts on 23 March, 1998. When the complainant moved the complaint before the C.B.I. on 24th March, 1998, she could not have known about the movement of the accused unless she had met him on 23rd March, 1998."

31. Therefore to say that prosecution failed to prove any

demand made by the appellant is without any

substance. As already pointed out above, the

prosecution was not required to prove demand of

gratification by the appellant before proving the

payment of Rs. 4,000/- as gratification.

32. Complaint was lodged by the complainant with CBI on

24.03.1998. As PW-1, complainant has fully supported

the prosecution case, minor discrepancies which have

been pointed by the learned counsel for the appellant

are of no consequence and do not in any manner

adversely affect the prosecution case. PW-2, Hazara

Singh was working as peon in Electric Branch, NDMC

and was present at the time of the raid and proceedings

conducted thereafter. Though he was declared hostile

as he did not fully support the prosecution case he did

identify the currency notes which were treated with a

chemical powder (he did not disclose the name of the

chemical used) and a demonstration having been given

by the CBI Inspector to explain the purpose of treating

g.c. notes with powder. To some extent he has

explained the procedure so demonstrated. He has

supported the prosecution case when cross-examined

by the learned counsel for the CBI to the extent of

identifying the currency notes which were recovered

from the spot. He also admitted that appellant had

taken out the piece of cloth in which the currency notes

were wrapped from behind the box lying in his office.

He also supported the prosecution case that left side

pocket of the pant of the appellant and his hands were

washed in a fresh water solution of sodium carbonate

and also that the recovered money was also dipped in

the said solution and the solution turned pink. He also

admitted that the currency notes, piece of cloth in

which the currency notes were found wrapped when

appellant produced them before the CBI Inspector, the

hand wash of the appellant and the left side pocket of

his pant were treated separately.

33. Similarly, PW-3 Anil Kumar, Electric Khalasi, NDMC,

who was also joined as a witness in the pre-raid

proceedings as well as during the raid and thereafter

partly turned hostile, but has supported the prosecution

case on material particulars in his examination in chief.

He is hostile only regarding washes which were taken

after the recovery of the currency notes, the piece of

cloth in which the currency notes were found wrapped,

the hand wash of the appellant and also the left side

pocket of his pant. He was present at the time when

the money was paid by the complainant, Smt. Anaro

Devi to the appellant. He has supported the

prosecution case to the fact that some conversation had

taken place between the complainant and the appellant

in his presence and also that complainant took out GC

notes of Rs. 4,000/- from her purse and handed them

over to the appellant.

34. These two witnesses though did not fully support the

prosecution regarding the proceedings, did support the

prosecution case on material particulars regarding

acceptance of bribe by the appellant and other

connected proceedings and therefore, the testimony of

these witnesses could be considered and was rightly

considered by the trial court when it found

corroboration from the testimony of the complainant

and other witnesses (members of the raiding party).

The Trial court had considered the observations made

in Sat Paul v. Delhi Administration - AIR 1976 SC

294 to reach to a conclusion that the credibility of

witnesses 2 and 3 had not been completely shaken and

after considering the evidence of these witnesses as a

whole with due caution and care in the light of evidence

of other witnesses available on the record, validly

accepted only that part of the testimony which it found

to be creditworthy of being acted upon.

35. Learned counsel for the appellant has tried to submit

that PW-2 and 3 namely Hazara Singh and Anil Kumar

are stock witnesses of the police but there is no such

suggestion to the witnesses in their cross-examination

that they were stock witnesses for the prosecution and

therefore were interested witnesses. It is pertinent to

keep in mind that both these witnesses did not fully

support the prosecution case and had to be cross-

examined by the learned counsel for the CBI on certain

aspects of the pre-raid and post-raid proceedings which

were conducted in their presence. The trial court did

look for independent corroboration before convicting

the appellant in this case. The witnesses of the raiding

party included Hazara Singh and Anil Kumar, two

independent witnesses, the rest were all police officials.

Under these circumstances, it cannot be said that

prosecution has not been able to produce enough

evidence to prove that Rs. 4,000/- were handed over to

the appellant and the conviction of the appellant was

not sustainable.

36. Proposition of law as laid in Ram Prakash Arora v.

The State of Punjab - AIR 1973 SC 498 and Som

Prakash v. State of Punjab - 1992 Cr.L.J.(SC) 490

as referred to by the learned counsel for the appellant

is not in dispute.

37. As regards submission of the learned counsel for the

appellant that the recovery of money was planted upon

the appellant by the complainant, the trial court had

called for the piece of cloth (Ex. P 58), described as

handkerchief by some witnesses and examined it. It

observed in para 15 of the judgment:

"During the course of arguments, I also called for the piece of cloth which has been described by some witnesses as „handkerchief‟. The said piece of cloth in which the currency notes were recovered and which is Ex. P-58 is a cream coloured cloth measuring about 2½ ft. X 1 ft. having white flowers printed on it. It is certainly not a

handkerchief. It appears to be a piece of cloth torn from a larger piece."

38. The trial court assessed the evidence of the witnesses

before it came to the conclusion that a doubt was raised

by the appellant by introducing the handkerchief with

the complainant but could not successfully prove it

especially when once it was proved that the money had

been accepted by the accused, there could be no

occasion for the complainant to put the money behind

the box. It is pertinent that no suggestion was made to

the witnesses that the currency notes were kept behind

the trunk in the absence of the appellant by the

complainant.

39. Testimony of the witnesses indicate that GC notes were

wrapped in a green colour handkerchief and the said

packet was kept in a purse and was handed over to the

complainant and complainant was not allowed to take

any other thing with her. In other words, complainant

was allowed to carry with her the purse, GC notes and

the green handkerchief containing said notes. The

cloth in which GC notes were recovered and was

produced by the appellant himself from behind the

trunk was found to be a piece of cloth which measured

2½ ft. X 1 ft. It was found to be of cream colour having

white flowers printed on it and it certainly was not a

handkerchief. The trial court observed that it appeared

to a piece of cloth torn from a larger piece. Therefore

the doubt raised by the appellant that the currency was

planted upon him by the prosecution, especially by the

complainant, when he had left his office after having

conversed with the complainant leaving her and PW-3,

Anil Kumar and came back after 10-15 minutes stood

demolished from the evidence as adduced on the

record. The green colour handkerchief along with

other cloth wrappers was exhibited in evidence as P-54

to P-57. The piece of cloth in which the tainted money

was found wrapped is Ex. P-58. The trial court dealt

with this issue in para 28 of its judgment in detail :

"The cloth in which the money was found wrapped at the time of recovery, is a cloth measuring 2½‟X 1‟. It cannot be described as a handkerchief by any stretch of imagination. The said piece of cloth appears to be a piece torn out from a bed sheet. The purse, in which the complainant carried the currency notes, has been described in the handing over memo Ex. PW 1/B as "a small leather lady‟s hand-purse". Apparently, it was a small purse of the type of the ladies which they usually carry in their hands and not a shoulder- bag or a large purse. It would not have been possible to keep the cloth in which the money was recovered in that purse. Even otherwise, we find that the cloth, from which the money was recovered,

was shown to P.W.1 Smt. Anaro Devi (complainant), P.W. 2 Hazara Singh, P.W.3 Anil Kumar and P.W. 8 Inspector K. Babu by the accused during cross-

examination, and none of these witnesses stated that this was the same cloth in which the money was wrapped and kept by the complainant in her purse. None of these witnesses have said that this cloth was carried by the complainant with her at the time of the trap. No such specific question has been put to any of these witnesses by the accused. Apparently, the cloth Ex.

P-58 was not in possession of the complainant at any time and she could not have kept the money behind the box wrapped in that cloth. P.W. 3 Anil Kumar remained with the complainant till the money was accepted by the accused. He has not stated anywhere that the complainant had any occasion to put the money behind the box. Once it is proved that the money had been accepted by the accused, there could be no occasion for the complainant to put the money behind the box. The accused has tried to raise some doubts by introducing a handkerchief with the complainant. It is now well-settled that the accused is not entitled to the benefit of every doubt raised by the accused. The doubts have to be reasonable and substantial to give the benefit to the accused."

40. The trial court therefore assessed the evidence adduced

on the record in the right perspective when it observed

that cloth Ex. P-58 was not in possession of the

complainant any time and she could not have kept the

money behind the box wrapped in that cloth.

41. Learned counsel for the appellant has submitted that

appellant is entitled to benefit of doubt because the

tape-recorded version could not be played before the

court. These submissions are without any force. It has

come in evidence that the tape recorder version could

not be played before the court because no such version

could be recorded at the spot due to some system

failure. This fact also found corroboration from the

documents prepared at the spot by the Investigating

Officer. Under these circumstances, appellant cannot

claim any benefit of doubt simply to seek his acquittal.

No adverse inference can be drawn against the

prosecution because of the failure of the recording

system.

42. Learned counsel for the appellant submitted that V.A.

Mittal, the Investigating Officer was not examined and

his non-examination is fatal to the prosecution case.

Therefore he has argued that appellant is entitled to

benefit of doubt and acquittal especially when CBI

Inspector, Shri K. Babu was trap laying officer and was

a member of the trap party and therefore, was the

complainant in this case and he could not be the

investigating officer.

43. Learned counsel for the CBI has submitted that

complainant in this case was Smt. Anaro Devi and not

the Investigating Officer. PW-8, Shri K.Babu was also

the Investigating officer of this case, being the head of

the raiding party. Therefore, non-examination of V.A.

Mittal is not fatal to the prosecution case in any

manner.

44. I fully agree with the contentions of the learned counsel

for the State. Mr. V.A. Mittal, the Investigating Officer

had only completed the left over formalities of the

investigation whereas, Inspector K. Babu, P.W. 8 had

conducted the pre-raid as well as the post-raid

proceedings. It was he, who heard the cassette and

found nothing recorded therein due to system failure,

prepared the site plan under his signatures, prepared

all the recovery memos and other related memos of pre-

trap and post-trap proceedings, recorded the statement

of the complainant and other independent witnesses,

took into possession the photocopies of the extracts of

daily dairy dated 23.03.1998 to 24.03.1998. It was only

thereafter that the investigation was transferred to

Inspector Mr. V.A. Mittal. Inspector K. Babu as PW-8

also proved the supplementary statement of the

witnesses recorded by Mr. V.A. Mittal, his own

statement and other police officials and receipt memo

Ex. PW-8/C. Mr. V.A. Mittal could not be examined by

the prosecution because he was posted in Bosnia and

the court had accorded permission to the prosecution to

re-examine K. Babu, PW-8 to prove on record the

evidence collected by Mr. V.A. Mittal, vide its order

dated 26.03.2003. I must also state here that no such

objection was raised by the appellant before the trial

court and this line of argument has been adopted for

the first time in the appeal.

45. Learned counsel for the appellant has also challenged

the legality and validity of the judgment on the ground

that there was previous enmity between the

complainant and the appellant and therefore, the

complainant falsely implicated him in this case and this

fact was not taken into consideration by the trial court.

Pertinently no such defence was raised by the appellant

nor any such argument was put forth by the counsel for

the appellant before the trial court. Even in his

statement, under Section 313 Cr.P.C., the appellant has

not uttered a single word about any previous enmity

between him and the complainant for his false

implication in this case.

46. Appellant had examined himself as his own witness and

tendered in evidence documents Ex. D-1 to D-4

pertaining to case FIR No. 478/1996 Police Station

Nand Nagri. Rajesh, son of the complainant was one of

the accused and the appellant was the Investigating

Officer of the said case. Perusal of these proceedings

indicate that appellant was examined on 24.02.1998 in

the said case and was cross-examined on 10.03.1998

i.e. prior in time of the meeting of the complainant with

the appellant when demand for Rs. 4,000/- was made.

Since she was not ready to pay the demanded money

she made a complaint on 24.03.1998 to the CBI.

Besides these documents, there is no evidence to

indicate that complainant harboured any grudge or ill-

will against the appellant because of his being

Investigating Officer in another case of 1996, in which

her son was facing trial and it was with vengeance that

she filed a complaint before the CBI with the

allegations of demand of gratification by the appellant

to ensure the release of her son on bail. Since the said

case was pending trial and complainant had already

been examined and the case was to be decided by the

trial court after conclusion of the trial on merits

appellant attributed malice and animus against the

complainant for his impleadment in this case. In such

like cases, there cannot be any malice or animus.

Therefore, the plea of the appellant that complainant

had a malice or animus against him to involve him

falsely in this case is not sustainable. In State of

Maharasthra v. Ishwar Piraji Kalpatri and Ors. -

(1996) 1 SCC 542 where a petition under Section 482

Cr.P.C. was filed seeking quashing of criminal

proceedings at the initial stage on the ground of mala

fides or animus of complainant or prosecution on the

basis of previous criminal cases pending adjudication

against the respondents, it was observed :

"In fact, the question of mala fides in a case like the present is not at all relevant. If the complaint which is made is correct and an offence had been committed which will have to be established in a court of law, it is of no consequence that the complainant was a person who was inimical or that he was guilty of mala fides. If the ingredients which establish the commission of the offence or misconduct exist then, the prosecution cannot fail merely because there was an animus of the complainant or the prosecution against the accused. Allegations of mala fides may be relevant while judging the correctness of the allegations or while examining the evidence. But the mere fact that the complainant is guilty of mala fides, would be no ground for quashing the prosecution. In the instant case, specific averments of facts have been made whereby it was alleged that the respondent had disproportionately large assets. Mala fide intention of the appellant in launching prosecution against the respondent with a view to punish him cannot be a reason for preventing the court of competent

jurisdiction from examining the evidence which may be led before it, for coming to the conclusion whether an offence had been committed or not. Allegations of mala fides were also made in P.P. Sharma case against the informer. It was held by this Court that when an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot be itself be the basis for quashing the proceedings."

47. Since appellant has failed to place any evidence on the

record to show any animus or mala fides on the part of

the complainant in filing this complaint against him

except the pendency of trial of a case registered two

years prior to the filing of this complaint involving her

son, would not make out a ground for setting aside the

conviction of the appellant.

48. The menace of corruption has enormously increased in

various departments of the Government. Corruption in

a civilized society is a serious disease like cancer which

if not detected or checked in time is sure to maliganise

the polity of the country leading to disastrous

consequences. Corruption not only adversely affects

the public but it also affects the economy of the country

and destroys the cultural heritage. Therefore it is the

need of the day that corruption is nipped in the bud at

the earliest to ensure and maintain healthy, effective

and vibrating socio-economic political system.

49. The prosecution has been able to bring home the guilt

of the appellant that, he accepted Rs.4,000/- as

gratification from the complainant as a bargain to

ensure the release of the complainant‟s son Rajesh

Kumar on bail as his bail application was likely to come

up for hearing before the concerned court on

30.03.1998. The ingredients of Section 7 and 13(2)

read with Section 13(1)(d) of the Act are complete in

this case and acceptance of gratification included the

demand for the said amount of Rs. 4,000/-. I do not find

any illegality or infirmity in the impugned judgment and

order on sentence of the trial court. The trial court has

assessed the entire evidence on record in the right

perspective and upon proper analysis has given a

rational and sound reasoning while convicting the

appellant of the offences charged with. Hence, I find no

merit in this appeal. The same is accordingly

dismissed.

50. The appellant shall surrender himself before the trial

court within a week from the date of this order to

undergo substantive sentences of imprisonment as

imposed upon him. The fine of Rs. 15,000/- has already

been paid in the trial court on 13.02.2004 vide receipt

No. 706323 as per the proceedings recorded by trial

court in its order dated 13.02.2004.

51. The Trial court record be sent back immediately.

(ARUNA SURESH) JUDGE February 06, 2009 rd