Anand Prakash vs C.B.I.
2009 Latest Caselaw 842 Del

                                                                 R-7
*             HIGH COURT OF DELHI : NEW DELHI

            Judgment reserved on : March 02, 2009
            Judgment delivered on : March 17, 2009

+             Criminal Appeal No. 539 of 1999

%             Anand Prakash                  ...     Appellant
                              Through: Mr. K.B. Andley, Senior
                              Counsel with Mr. M. Shamikh, Advocate

                                    versus

              C.B.I.               ..              Respondent
                              Through: Mr. Ashish Kumar, Additional
                              Standing Counsel for CBI.

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 the present appeal, appellant- Anand Prakash has

challenged the impugned order of 30th September, 2009,

passed by the trial court, whereby appellant has been held

guilty and convicted for the offence under Section 7 of the

Prevention of Corruption Act, 1988, to undergo RI for a period

of two years and to pay fine of Rupees five thousand and in

Crl. Appeal No. 539 of 1999 Page 1 default of payment of fine, to undergo SI for six months.

Further, the appellant has also been held guilty and convicted

under Section 13(1) (d) of the Prevention of Corruption Act,

1988, and has been ordered to undergo RI for two years and

fine of Rupees five thousand and in default of payment of fine,

to undergo SI for six months. However, both the sentences of

the appellant have been ordered to run concurrently.

2. The brief facts, as emerging from the record of this case,

are as follows:-

As on 2nd March, 1995, while the appellant/accused- Anand Prakash was working as Reader, in the Court of Sh. Dharmesh Sharma, Civil Judge, Tis Hazari Courts, Delhi, the learned ADJ, in a case bearing Civil Suit No. 844/1993, titled as Raj Kumar vs. Saroop Singh, on an application under Order XXXIX R 2-A CPC, observed that the said application could be disposed of only after completion of recording of evidence in the matter. On 4th March, 1995, the complainant- Raj Kumar, applied for the certified copy of the same order and on 6th March, 1995, complainant- Raj Kumar moved a written application with the C.B.I. that the Reader of the aforesaid court was demanding Rs.50/- for supplying him the copy of the order and has asked him to bring money on 6th March, 1995, at 3:00 p.m.

Crl. Appeal No. 539 of 1999 Page 2 On the basis of the written complaint made by Complainant- Raj Kumar, a case was registered by the C.B.I. and a trap was laid. Inspector Azad Singh, Investigating Officer of this case, organized a raiding team which comprised of C.B.I. officials and two panch witnesses. After the completion of the pre-raid formalities, which comprised of introducing the complainant to the witnesses, arranging five G.C. Notes in the denomination of Rupees 10 each and treating them with phenolphthalein powder and live demonstration of its reaction, complainant was asked to handover the said G.C. Notes only on demand made by the appellant/accused. Pre-trap Memo Ex. PW1/B was got prepared. Thereafter, at about 3:50 p.m., the trap party reached court room No. 234, Tis Hazari Courts, and during the conversation when complainant-Raj Kumar demanded copy of the order dated 2nd March, 1995, the appellant/accused demanded bribe of Rs.50/-. The complainant offered the money to appellant/accused, which were infact G.C. Notes, and he accepted the same in his right hand and counted with both the hands. On the request of the complainant, the appellant/accused, out of Rs.50/-, in the denomination of Rs.10 each, returned Rs.10/- to the complainant and kept the balance amount in his pocket. In the meanwhile, shadow witness- Mahinder Kumar gave pre-decided signal to the trap party and appellant/accused was apprehended. During the personal search of the appellant /accused, the G.C.

Notes were recovered and wash of right hand, left hand

Crl. Appeal No. 539 of 1999 Page 3 and pant pocket of the appellant/accused was done and since the solution of sodium carbonate turned pink, those washes were transferred into separate bottles, sealed, labeled and were sent to C.F.S.L. for analysis. After completion of the investigation, C.B.I. filed charge sheet under Section 7 and 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988, against the appellant/accused".

3. The trial court framed charges against the accused under

the aforementioned Sections and since the appellant/accused

did not plead guilty to the same, the trial court proceeded

with the trial of the case .

4. During trial, in support of its evidence, prosecution

examined nine witnesses which were Complainant-Raj Kumar

(PW1), Mahinder Kumar(PW-2), Sh. Dharmesh Sharma,

Metropolitan Magistrate (PW-3), Rajinder Singh (PW-4), Manjit

Singh (PW-5), V.S. Bisaria, (PW-6), Inspector Azad Singh (PW-

7) and Hukum Chand (PW-8). Inspector Ved Prakash was

examined as PW-9, being the Investigating Officer of this case.

5. Thereafter, statement of appellant/accused, under

Section 313 of the Cr.P.C., was recorded by trial court, of

denial of prosecution case. Sole defence witness is co-worker

of the appellant/accused.

Crl. Appeal No. 539 of 1999 Page 4

6. After conclusion of the trial, appellant/accused has been

held guilty for the offences under Section 7 and 13(2) read

with Section 13(1) (d) of the Prevention of Corruption Act,

1988, and vide impugned judgment, he is sentenced, as

mentioned in the opening paragraph of this order.

7. Being aggrieved by the order of the learned Special

Judge, CBI Court, Delhi, the present appeal has been preferred

by the appellant/accused.

8. Both the sides have been heard and with their assistance,

evidence on record has been scrutinised.

9. Learned senior counsel for Appellant contends that

Appellant was a Court Reader and was not competent to give

the certified copy of the order to the complainant (PW-1) who

is a person of shaddy character and is involved in number of

criminal cases. It is pointed out that in the complaint Ex. PW-

1/A, the alleged demand of bribe by Appellant was for giving of

certified copy of the order sought by the complainant, whereas

in the evidence before the court, complainant (PW-1) has

stated that the alleged demand of bribe by the Appellant was

to give photocopy of the order dated 2nd March 1995. It is

further pointed out that the Complainant (PW-1) is involved in Crl. Appeal No. 539 of 1999 Page 5 six criminal cases and is a bad character of Police Station Subzi

Mandi and he has remained behind bars in FIR No. 110/97 and

he has stated in his evidence that he was interested in giving

bribe to the Appellant and therefore, he is not a reliable

witness.

10. It has also been contended on behalf of the Appellant

that the prosecution story of the Appellant allegedly returning

Rs.10/- is not at all probable and the application Ex. PW-3/A for

the certified copy of the order in question was neither written

nor signed by the Complainant (PW-1) and it was written by

Shri O.P. Sharma, Advocate, who is not a witness in this case.

11. Attention of this court has been drawn to the evidence of

the Raid Officer (PW-7), to point out that he has admitted that

the hand wash and pocket wash of the Appellant/accused was

not taken at the spot and shadow witness (PW-5) has admitted

that he had not given a search to anyone present at the spot,

before he had allegedly taken out the tainted money from the

pocket of the Appellant/accused and therefore, possibility of

tainted money being put in the pocket of the

Appellant/accused cannot be ruled out.

Crl. Appeal No. 539 of 1999 Page 6

12. A doubt is sought to be cast upon the prosecution case

by learned senior counsel for Appellant by contending that

neither the Presiding Officer was informed about the raid nor

he was called from his chamber after the alleged apprehension

of the Appellant/accused in the court room and the court's staff

present at the spot have not been made witness to the spot

proceedings and all this renders the entire raid proceedings

and the alleged recovery highly doubtful and the conviction of

the Appellant/accused is illegal and in the last, it is contended

that in view of the aforesaid infirmities in the prosecution case,

Appellant/accused deserves to be given benefit of doubt and is

thus, entitled to an acquittal in this case.

13. On behalf of the Respondent, it has been stated that from

the evidence on record, it stands firmly established that the

Appellant/accused had demanded and accepted the bribe of

Rs.40/- from the Complainant (PW-1) of this case and the

recovery of the bribe money from the Appellant/accused also

stands proved, which gives rise to a statutory presumption

under Section 20 of Prevention of Corruption Act, 1988. It is

submitted that the Appellant/accused has failed to rebut the

Crl. Appeal No. 539 of 1999 Page 7 aforesaid statutory presumption raised against him. Reliance

has been placed upon explanation (e) to Section 7 of the

Prevention of Corruption Act, 1988 and upon a decision of the

Bombay High Court, reported in AIR 1952 Bombay 58, to

contend that a public servant may not be in a position to

himself do the work for which he had taken bribe, but he

makes a representation that the work would be done, then the

offence committed would come within the mischief of section

161 of Indian Penal Code, which is para materia with section 7

of the Prevention of Corruption Act, 1988. Thus, it is submitted

that the conviction and the sentence imposed upon the

Appellant/accused is just and proper and there is no merit in

this appeal.

14. Upon hearing both the sides and on scrutiny of the

evidence on record, I find that it would not be fair to read a

part of the sentence in piece meal, to draw an inference

against a witness. It is true that it has come in the evidence of

Complainant (PW-1) that „he was interested in paying the

bribe‟, but this sentence has to be read as a whole, to

understand its true import and this sentence reads as under:-

Crl. Appeal No. 539 of 1999 Page 8 "I was interested in paying the bribe and therefore, I went to CBI office in the morning at around 12 Noon and lodged the complaint."

15. Upon reading of the aforesaid sentence, it becomes clear

that due to typographical error, the word „not‟ before

„interested‟ is missing in the sentence and even if this

sentence is read as it is, it makes no sense in complainant

going to the CBI office, if he was interesting in giving the bribe.

16. On hyper technicalities, substantial justice cannot be

sacrificed and benefit of sheer typographical error cannot be

given to the Appellant/accused. To do so, would be highly

unfair. Law is based on common sense and its application has

to be in the right perspective. A bare reading of the complaint

Ex. PW-1/A makes it clear that the demand of bribe by the

Appellant/accused was for supply of the copy of the order in

question. There is no whisper in the complaint that the demand

of bribe was made for supply of certified copy of the said order.

Therefore, there is no apparent contradiction between the

aforesaid complaint and the evidence of Complainant (PW-1)

regarding bribe being demanded by the Appellant/accused for

supply of photocopy of the order mentioned in the application

for supply of certified copy. It is a matter of record that the

Crl. Appeal No. 539 of 1999 Page 9 Appellant/accused had got the application for certified copy

tendered by the Complainant (PW-1) to the Appellant/accused,

allowed from the Presiding Officer (PW-3) but the said

application was recovered, after the raid, from the office table

of the Appellant/accused.

17. To my mind, it would be nothing more than hair splitting,

to contend that in the Complaint Ex. PW-1/A the demand of

bribe was made for supply of certified copy of order, whereas

in the evidence, the Complainant (PW-1) has improved upon,

by stating that it was for providing with a photocopy of the

order in question. I am of the considered opinion that nothing

turns on this fine hair splitting. Complainant (PW-1) may have

been involved in number of criminal cases, but that by itself

cannot be a ground to presume against him that he would

falsely implicate the Appellant/accused. No reason is

forthcoming as to why the Complainant (PW-1) would falsely

implicate the Appellant/accused in this case.

18. There is clinching evidence on record to establish that

the Complainant (PW-1) on meeting the Appellant/accused had

exchanged greetings and the Complainant (PW-1) had told the

Appellant/accused „hamari copy de do‟ and the

Crl. Appeal No. 539 of 1999 Page 10 Appellant/accused responded by saying „pehle pachas rupaye

do‟ and the complainant (PW-1) retorted by saying „kuch kam

kar lo‟ and then Appellant/accused stated that „chalis rupaye

de do‟.

19. Prosecution case cannot be doubted merely on the

ground that the Appellant/accused had returned Rs.10/-to the

Complainant (PW-1) because it has come in the evidence that

after bargain, the bribe amount was settled at Rs.40/- and

since the treated G.C. Note of Rs.50/- was given by

Complainant (PW-1) to the Appellant/accused, therefore in

normal course, he had returned Rs.10/- to the Complainant

(PW-1) and there is nothing unusual about it.

20. Application for certified copy Ex. PW-3/A, with

endorsement of Presiding Officer on it, was seized by the Trap

Laying Officer (PW-7) from the office table of the

Appellant/accused. How does it matter that it was written by

the counsel of the Complainant (PW-1) and was bearing the

signature of the counsel and was having court fee stamp of

Rs.10.50 p. instead of Rs.11/-. The seizure of the aforesaid

application from the office table of the Appellant/accused, by

itself incriminates the Appellant/accused as it provides a cause

Crl. Appeal No. 539 of 1999 Page 11 for the Appellant/accused to demand and accept the bribe

from the complainant of this case. The recovery of the bribe

amount from the pant pocket of the Appellant/accused, not

only stands proved from the evidence of Complainant (PW-1)

but also from the evidence of shadow witnesses (PW-2) and

(PW-5). The evidence of Trap Laying Officer (PW-7) clinches

the whole case as the colorless chemical solution in which the

hands of the Appellant/accused were dipped, had turned into

pink and as per CFSL report, Ex. PW-6/A on record, it had

tested positive for phenolphthalein and sodium carbonate,

with which the bribe amount was treated with.

21. Aforesaid scientific evidence in the form of CFSL report,

Ex. PW-6/A conclusively connects the Appellant/accused with

the offence in question and raises a rebuttable statutory

presumption under Section 20 of the Prevention of Corruption

Act, 1988 against the Appellant/accused. For drawing the

aforesaid statutory presumption against the

Appellant/accused, the apt observations made by the Apex

Court in the case of T. Shankar Prasad vs. State of Andhra

Pradesh (2004) 3 SCC 753 deserves to be noticed and they

read as under:-

Crl. Appeal No. 539 of 1999 Page 12 "When money was recovered from the pocket of one of the accused persons, a presumption under Section 20 of the Act is obligatory. It is a presumption of law and casts an obligation on the court to operate it in every case brought in Section 7. The presumption is a rebuttable presumption and it is by proof and not by an explanation which may seem to be plausible."

22. To rebut the aforesaid statutory presumption raised

against the Appellant/accused, he has not lead any evidence in

defence and the stand taken by him in his statement under

Section 313 Cr. P.C. before the trial court is as under:-

"This is a false case. PW-1 Raj Kumar is the complainant. He is an accomplice in the eyes of law. He has criminal background. He is in the habit of making false complaints against public servants. He also leveled allegations against the Presiding Officer of the trial court. He is a bad character of the area. PW2 Mahinder Kumar and Manjit Singh PW5 are government servants, and are not independent witnesses. They have deposed out of fear of departmental action. I was not competent to issue certified copy of any order or judgment and there was no occasion for me to demand or accept the bribe from the complainant. It is pertinent to note that application Mark A is not even signed by the complainant nor it is filled up by him, I am innocent in the entire matter, I neither demanded nor accepted any money from him. Raid is illegal and motivated because it was laid inside the court premises without the permission either of the presiding officer or of the Hon‟ble District & Sessions Judge, Delhi."

Crl. Appeal No. 539 of 1999                                 Page 13
 23.    To    say     the      least,   the   aforesaid   stand   of   the

Appellant/accused does not in any manner rebut the statutory

presumption raised against the Appellant/accused. Since two

shadow witnesses were with the raiding team, therefore, there

was no requirement of joining any other public witness at the

time, the spot proceedings were conducted by the Trap Laying

Officer. This is so said because nothing has been brought out in

the cross-examination of the shadow witnesses (PW-2) and

(PW-5) to show that they were in any way interested in falsely

implicating the Appellant/accused in this case or that they

were under any undue influence of the Trap Laying Officer of

this case. The pertinent observation made on this aspect, by

the Apex Court in the case of State of U.P. vs. Zakaullah, 1998

SCC (Cri) 456, are as under:-

"The necessity for "independent witness" in cases involving police raid or police search is incorporated in the statute not for the purpose of helping the indicated person to bypass the evidence of those panch witnesses who have had some acquaintance with the police or officers conducting the search at some time or the other.

Acquaintance with the police by itself would not destroy a man‟s independent outlook. In a society where police involvement is a regular phenomenon many people would get acquainted with the police. But as long as they are not dependent on the police for their living or liberty or for any other matter, it cannot be said that those are not independent persons. If the police Crl. Appeal No. 539 of 1999 Page 14 in order to carry out official duties, have sought the help of any other person he would not forfeit his independent character by giving help to police action. The requirement to have independent witness to corroborate the evidence of the police is to be viewed from a realistic angle. Every citizen of India must be presumed to be an independent person until it is proved that he was a dependant of the police or other officials for any purpose whatsoever."

24. In any case, there is no cross-examination of the Trap

Laying Officer (PW-7) as to why the witnesses present on the

spot were not joined at the time of conducting the spot

proceedings. Much emphasis has been laid by the defence on

one line in cross-examination of the Trap Laying Officer (PW-7)

to show that the hand wash and pant pocket wash of the

Appellant/accused were not taken at the spot.

25. The evidence of the Trap Laying Officer (PW-7) on this

aspect, reads as under:-

"It is correct that neither the hand wash nor the pocket wash or the accused were taken at the spot. ...."

26. It is the prosecution case that the hand wash and pocket

wash of the Appellant/accused was taken at the spot and the

aforesaid admission made by the Trap Laying Officer (PW-7) to

the detriment of the prosecution case can be said to be a

Crl. Appeal No. 539 of 1999 Page 15 typographical error and even if, it is read as it is, still it would

mean that it was taken elsewhere. But this by itself would not

be sufficient to exonerate the appellant/accused, because it is

not the case of appellant/accused that the hand and pocket

washes of appellant/accused were tampered with, nor it can be

so inferred from the evidence on record. As per the evidence of

CFSL expert (PW-6), exhibits of this case i.e. bottles containing

hand and pocket washes of appellant/accused were intact,

which conclusively rules out the tampering of these exhibits.

Thus, so-called aforesaid lacunae does not demolish the cogent

evidence of acceptance of bribe money by the appellant and of

the hand/pocket wash of the appellant/accused testing

positive. Furthermore, it is not the case of appellant/accused,

as to where else these washes were taken, and appellant does

not assert that they were tampered with.

27. In the final analysis, notwithstanding the inadvertent

omission or otherwise, so-called lacunae in evidence of trap

laying officer, the prosecution case of demand, acceptance and

recovery of bribe money from the appellant, stands firmly

proved from the cogent evidence on record. As a consequence,

Crl. Appeal No. 539 of 1999 Page 16 impugned judgment, holding appellant guilty of accepting

bribe of Rs.40/- from the complainant, is accordingly upheld.

28. In the facts and circumstances of this case, the

substantive sentence awarded to appellant by trial court is

reduced to R.I. for six months for the offence under Section 7

of the Prevention of Corruption Act, 1988, and to R.I. for one

year for the offence under Section 13(2) of Prevention of

Corruption Act, 1988. Appellant is on bail. His bail bonds are

cancelled. He is directed to surrender forthwith, failing which,

trial court is directed to take him into custody to serve out the

modified sentence, as awarded above.

29. Before parting with this order, I would like to remind the

trial Judges that recording of evidence is the most crucial part

of the trial, especially, criminal trial and that too at sessions

level. Trial courts have to be quite alert while the evidence in

sessions trial cases is being recorded, so that inadvertent

lapses do not occur in the evidence, as it has happened in this

case. The District and Sessions Judge-I, Delhi is called upon to

impress upon the learned Additional District and Sessions

Judges about the need to record evidence with a greater

sensitivity.

Crl. Appeal No. 539 of 1999 Page 17

30. Copy of this order be sent to the District and Sessions

Judge-I, Delhi, for doing the needful.

31. With aforesaid directions, this appeal is accordingly

disposed of.

Sunil Gaur, J.

March 17, 2009
rs




Crl. Appeal No. 539 of 1999                             Page 18
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