Madan Lal vs The State N.C.T. Of Delhi
2010 Latest Caselaw 1581 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+                     Crl.A.No. 67/2005

%                     Reserved on:      11th March, 2010
                      Date of Decision: 22nd March, 2010

#     MADAN LAL                             ..... Appellant
!                     Through:     Mr. N.K. Sharma, Adv.


                      versus


$     THE STATE N.C.T. OF DELHI       ..... Respondent
^                  Through:    Mr. Jaideep Malik, APP

*     CORAM:
      HON'BLE MR. JUSTICE V.K. JAIN


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

      2.    To be referred to the Reporter or not?            Yes

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


: V.K. JAIN, J.

1. This is an appeal against the judgment dated 16th

December 2004 and Order on Sentence dated 24 th December

2004 whereby the appellant was convicted under Section 7

and 13(2) of Prevention of Corruption Act read with Section

13(1)(d) thereof and was sentenced to undergo R.I. for one year

and to pay fine of Rs.5,000/- on each count or to undergo R.I.

for two months in default of payment of fine.

2. On 13th December 1988, the complainant Surender Pal

Singh came to the office of Anti Corruption Branch and made a

complaint of demand of bribe by the appellant Madan Lal. He

alleged that House No.4583, Gali Natthan Singh, Pahari

Dheeraj, Delhi owned by his father Sh. Harpal Singh had been

let out to a tenant Mani Ram Gupta, who vacated the same on

28th May 1988. He claimed that Mani Ram Gupta had stopped

his business in March 1986. He further stated that electricity

meter installed in that house had been removed and all the

dues of DESU had been paid. Since they wanted a new power

and light meter in that house, he went to DESU office, Motia

Khan, to make enquiry in this regard. The appellant, who was

Head Clerk in DESU office, met him and told him that since

lesser electricity was consumed by Mani Ram Gupta between

1982-1988, another bill on average basis will be prepared for

the period since 1982, which will come to about Rs.15,000/-

and he will have to pay that amount. When the complainant

said that his was a huge amount, the appellant offered to

prepare a bill of about Rs.1500/- and told the complainant

that for this purpose, he will have to pay Rs.800/- to him as

bribe. The complainant conveyed acceptance of his demand to

the appellant and then went to the office of Anti Corruption

Branch along with the money, seeking proper action, against

the appellant. The statement of the complainant was recorded

in the presence of Panch Witness Jagdish Singh, LDC in Ward

XVIII of Sales Tax Office. The number of eight currency notes

in the denomination of Rs.100/- produced by the complainant

were noted in the Raid Report and those currency notes were

treated with Phenolphthalein Powder. Demonstration was also

given to the complainant and the Panch Witness by making

them touch the currency notes treated with Phenolphthalein

Powder, from his hand and then taking wash of his hand in

Sodium Carbonate, which changed its colour and became

pink. It was explained to the complainant and the Panch

Witness that if anyone touches the currency notes treated with

Phenolphthalein Powder or keeps them in his pocket, his hand

or pocket, as the case may be, would become pink when

washed with Sodium Carbonate solution. The currency notes

treated with Phenolphthalein Powder were then handed over to

the complainant, who kept them the left pocket of his shirt,

which was empty at that time. He was asked to strike the deal

and talk in such a manner that the Panch Witness was able to

hear the conversation. The Panch Witness was asked to give

signal by putting his hand on his head, after the bribe money

was accepted. Thereafter, all the persons cleaned their hands

and the glass used for giving demonstration was also cleaned.

At about 1.30 PM, the Investigating Officer, along with the

complainant, Panch Witness and other members of the raiding

party reached DESU office, Motia Khan, Paharganj. At about

1.35 PM, the complainant informed him that the appellant was

playing chess and had asked him to come after 2 PM. At

about 2.10 PM, the complainant and Panch Witness again

went to room No.208, where the appellant used to be on duty.

At about 2.15 PM, Panch Witness Jagdish Singh came out of

room No. 208 and gave a pre-decided signal, whereupon the

raiding party entered room No. 208 and challenged the

appellant, asking him as to whether he had taken Rs.800/- as

bribe from the complainant Surender Pal Singh. The appellant

became nervous and started apologizing for his mistake. The

complainant informed the Investigating Officer that the

appellant had kept the money in the right side inner pocket of

his coat from his left hand. The offer of the Investigating

Officer to search him was declined by the appellant. The

Investigating Officer then recovered eight currency notes in the

denomination of Rs.800/- from the inner right side pocket of

his coat and tallied their numbers with the numbers noted in

the Raid Report and found that they tallied with each other.

The currency notes were then seized. On taking wash of the

left hand of the appellant in Sodium Carbonate solution, its

colour turned pink. That solution was poured into two

separate bottles, which were duly sealed, signed and labeled

and then seized. The appellant was then made to take off his

coat and wash of the inner right pocket of the coat was then

taken in Sodium Carbonate solution, after reversing the coat.

The solution turned pink. That solution was also poured into

two separate bottles, which were duly sealed, signed and

labeled. The coat of the appellant was also seized after it had

been duly sealed. The specimen impression of the seal was

then taken and got signed from the witness and the seal was

handed over to the Panch Witness. The complainant told the

Investigating Officer that as soon as he entered the room along

with the Panch Witness, the appellant told him that he had

done his work and had prepared the bills in the name of Mani

Ram. Two bills were delivered by the appellant to the

complainant, which the complainant handed over to the

Investigating Officer and were seized by him. The Panch

Witness Jagdish Singh also corroborated the statement made

by the complainant to the Investigating Officer.

3. The prosecution examined 15 witnesses in support of its

case. One witness was examined in defence.

4. The complainant came in the witness box as PW-6 and

stated that they had applied to DESU office at Motia Khan for

installation of power and light meter at house No. 4582, Gali

Natthan Singh, Pahari Dheeraj, which was owned by his

father. He further stated that Mani Ram Gupta, a tenant in

that house had vacated the house and paid all the dues of

DESU. He further stated that when he went to enquire about

the connection, he was told that their file was with the

appellant Madan Lal, who used to sit in room No. 208 of DESU

office, Motia Khan. When he met the appellant, he told him

that since Mani Ram had been consuming less electricity from

1982-1988, a bill on average basis will have to be prepared

and they will have to pay about Rs.15,000/-. When he told the

appellant that they cannot pay that much amount, he told him

that he can prepare a bill for Rs.1500/- but, for doing that

Rs.800/- will have to be paid as bribe. The appellant wanted

payment of the bribe money by the evening of 13 th December

1988. He further said that he went to the office of Anti

Corruption Branch, lodged the complaint Ex.PW-6/A and gave

eight currency notes in the denomination of Rs.100/- to them.

A demonstration was given to them by touching the hand of

Panch Witness with the treated notes and washing it in a

colourless solution prepared from another powder. The

Solution turned pink. They were told that the hand of anyone,

who touches those notes, will turn the solution pink if the

hand was washed in the solution. The currency notes were

then given back to him and were kept by him in the left side

pocket of his shirt. The Panch Witness was asked to watch the

transaction, overhear their talks and give signal by putting his

hand over his head, after the money was accepted by the

accused as bribe. He further stated that when he, along with

the Panch Witness, went to room No.208, the appellant was

found playing chess outside the office room and asked him to

come after sometime. When he again went to room No. 208

after sometime, along with the Panch Witness, the appellant

told him that he had done his work and asked him to give the

money. The appellant also gave two bills to him. According to

the complainant, he then took out the money and gave the

same to the appellant, who kept the money in the inside

pocket of his coat. The Panch Witness then went outside the

room and gave the signal, whereupon the raiding party came

inside the room. The Inspector disclosed his identity to the

appellant and challenged him saying that he had accepted

Rs.800/- as bribe from the complainant. The appellant

became nervous. The currency notes were then recovered by

the Inspector and their numbers were tallied with the pre Raid

Report and were found to be the same. The hand of the

accused was washed in colourless solution, which turned

pink. It was the same hand with which the appellant had

accepted the money. The currency notes Ex.P-1 to P-8 as well

as the bottles, in which the solution was transferred, were

seized. The pocket of the coat of the appellant was also

washed and as a result, the solution turned pink. The coat of

the appellant as well as the bills, which he had given to the

complainant, were also seized.

5. The Panch Witness Jagdish Singh came in the witness

box as PW-4 and corroborated the deposition of the

complainant. He stated that on 13th December 1988, he was

present in the office of Anti Corruption Branch being on duty

there on that day. He further stated that the complainant

Surender Pal Singh came to Anti Corruption Branch and his

statement was recorded and read over to him in his presence.

The complainant signed the statement and produced eight

currency notes, numbers of which were noted down by the

Inspector. The notes were then treated with some powder,

which he was made to touch. His hand was then washed in

the solution of Sodium Carbonate, which turned pink. He

further stated that when he along with the complainant went

to room No. 208. Nobody was available there and they were

informed that the appellant had gone for lunch. After lunch

hour, they again went to room No. 208, where the appellant

was found sitting. On enquiry made by the complainant, the

appellant told him that his work had been done. The

complainant then took out money from the pocket of his shirt

and handed over the same to the appellant, who accepted

those notes with his left hand and kept the money in the right

side inner pocket of his coat, which he was wearing at that

time. The then gave pre arranged signal, whereupon the

raiding party came inside and took possession of the bills lying

in the drawer of the table of the appellant. In his examination-

in-chief, the Panch Witness stated that the appellant was then

brought to the office of Anti Corruption Branch in Tiz Hazari,

where the money was recovered from the pocket of his coat

and wash of the left hand of the appellant as well as that of the

pocket of his coat was taken in solution which turned red.

However, during cross-examination by the learned Addl. PP, he

stated that the tainted notes were recovered from the spot and

washes were taken on the spot and not in the office of Anti

Corruption Branch.

6. PW-9 Rameshwar Das is an officer of Delhi Vidyut Board,

who has stated that the electricity bills Ex.P-15 and P-16 were

prepared in their office He has also proved the application Ex.

PW-6/H submitted by the brother of the appellant namely

Bijender Pal Singh for electric connection. PW-10 Sh. Anand

Sarup, who was working as Superintendent in the office of

Assistant Finance Office of DESU has proved the bills Ex.PW-

10/A and PW-10/B but, has admitted that these bills do not

bear signature of Superintendent and AFO and incomplete

bills cannot be given to the consumer. PW-13 Sh. K.L. Maurya

was the Account Superintendent in DESU and the appellant

Madan Lal was working under him. He stated that

calculations on the back side of the bill Ex.P-16 are in the

hand of the appellant Madan Lal. The second copy of the bill

Ex.P-16, according to the witness, also bears the signature of

the appellant Madan Lal.

7. PW-15 ACP Abhey Ram is the Investigating Officer of this

case, who recorded the complaint Ex.PW-6/A and laid the

trap. He also corroborated the deposition of the complainant

and stated that after entering room No. 208 on seeing the

signal given by Panch Witness, he challenged the appellant,

after disclosing his identity, searched the coat, which he was

wearing and recovered currency notes Ex.P-1 to P-8 from the

inner right side pocket of his coat. According to him, he also

took wash of the left hand and right side inner pocket of the

coat of the appellant and the solution then turned pink. He

also seized two electricity bills Ex.P-15 and P-16 from the

complainant Surender Pal Singh.

8. In his statement under Section 313 of Cr.P.C., the

appellant admitted that on 13 th December 1988, he was on

duty in room No. 208 in DESU office, Motia Khan at about

2.15 PM. He denied the complainant having met him and he

having demanded bribe from him. He denied that the

complainant met him in his office on 13 th December 1988. He

denied accepting bribe from the complainant and delivering

the bills Ex.P-15 and P-16 to him. He denied the recovery of

currency notes from the pocket of his coat as also the wash of

his hand and the pocket of his coat. According to him, on 13 th

December 1988, he had hung his coat on the back of his chair

while going to toilet. He came back after about 15 minutes

and wore his coat. He was informed by some colleague that

during his absence, some friend of his came to meet him and

was enquiring about him while standing near to his seat. He

further stated that after sometime 3-4 persons came inside his

room, brought him outside the office and took him to the office

of Anti Corruption Branch in vehicle where he was asked to

take off his coat. DW-1 Daya Ram was working as LDC in

DESU office, Motia Khan. He has stated that on 13th

December 1988, the appellant Madan Lal had gone to toilet

after hanging his coat on the chair. In the meantime, one

person came to the office and wanted to meet Madan Lal,

claiming him to be his friend. That person put something in

the inner pocket of the coat of Madan Lal. He claimed that he

had objected to that person putting something in the pocket of

the coat of Madan Lal, but, that person immediately went

outside office. Madan Lal, on return from the toilet, wore his

coat. In the meantime, 3-4 persons came inside, took Madan

Lal with them and made him sit in a government vehicle

parked outside the office, claiming that they were from Anti

Corruption Branch.

9. Pointing out the contradictions/discrepancies noted

below, it was contended by the learned counsel for the

appellant that in view of these contradictions and

discrepancies, it will not be safe to rely upon the testimony of

the complainant and the Panch Witness.

(a) According to the Panch Witness Jagdish Singh, the

appellant was not present in his office when they went there

and some other person informed them that he had gone for

lunch, whereas according to the complainant, the appellant

was present there playing chess and had asked him to come

after lunch.

(b) The Panch Witness does not say that when they met

the appellant in his office, he asked the complainant for the

money whereas according to the complainant, the appellant

told him that he had done his work and asked him to give the

money.

(c) According to the Panch Witness, the statement of the

complainant in the office of Anti Corruption Branch was not

recorded in his presence, whereas according to the

complainant, the Panch Witness was present in the office of

Anti Corruption Branch when he made the complaint.

(d) According to the complainant, the two bills prepared

by the appellant were given to him by the appellant and he

handed them over to the IO whereas according to the Panch

Witness, the bills were seized by the IO from the table of the

appellant.

10. It was also contended by the learned counsel for the

appellant that since the bills prepared by the appellant were

not signed by his superior officers, the amount of bills could

not have been deposited in the office of DESU without

signatures of those officers, and hence it was not likely that

the appellant would have given those bills to the complainant.

11. I find that in the cross-examination of PW-4, Jagdish

Singh, a specific suggestion was given to him that the

appellant was playing chess inside his office when they first

visited the office during lunch hour. By giving this suggestion,

the appellant himself has admitted that he was present in his

office during lunch hour and was playing chess there as stated

by the complainant. Therefore, the contradiction in the

testimony of complainant on one hand and the Panch Witness

on the other hand, on this aspect becomes immaterial. Even

otherwise, it is unrealistic to expect an uninterested witness to

recollect with an absolute precision and accuracy, all the

details of the event witnessed by him years before he is

questioned in respect of those details.

12. As regards seizure of electricity bills, a perusal of the

seizure memo Ex.PW-6/G, which has been signed by the

complainant as a witness shows that the original bills Ex.P-15

and Ex.P-16 were handed over by the complainant to the

Investigating Officer, and were seized. Another seizure memo,

Ex.PW-4/X, which bears signature of the Panch Witness

Jagdish Singh shows that the carbon copies of the bills Ex.P-

15 & Ex.P-16, which were lying on the table of the appellant,

were seized vide this memo. The carbon copies of the bills are

Ex.PW-10/A & Ex.PW-10/B. Therefore, the complainant is

right in saying that the appellant had delivered two bills to him

and he had handed over those bills to the Investigating Officer.

The complainant is referring to the original bills Ex.P-15 and

Ex.P-16. The Panch Witness is also right in saying that the

two bills lying on the table of the appellant were seized by the

Investigating Officer. He obviously is referring to the carbon

copies Ex.PW-10/A & Ex.PW-10/B, which were seized from the

table of the appellant. Therefore, there seems no contradiction

in the testimony of the complainant and the Panch Witness

Jagdish Singh on this aspect of the case.

13. A perusal of Ex.PW-6/B, which is the endorsement on

the FIR lodged by the complainant Surender Pal Singh and

which bears signatures of the complainant as well as the

Panch Witness Jagdish Singh shows that the statement of the

complainant in the office of ACB was recorded in the presence

of Panch Witness Jagdish Singh. This document being a

contemporaneous record having been prepared at the time

statement of the complainant was recorded in the office of

ACB, there is absolutely no reason to disbelieve the version

given by the complainant which also stands corroborated by

the IO ACP Abhay Ram, who has specifically stated that the

statement of the complainant was recorded in the presence of

the Panch Witness Jagdish Singh. Even according to the

Panch Witness Jagdish Singh, the statement of complainant

was read over to the complainant in his presence and was

signed by him after admitting the same to be correct. The

deposition of the Panch Witness Jagdish Singh to the extent

that the statement of the complainant was not recorded in his

presence but was only read over to him can be safely

attributed to imperfect recollection of an event which took

place as many as 15 years before he was cross-examined in

the trial court on 24th July, 2003.

14. The Courts need to appreciate that the mind of a human

being is not like the memory of a computer or a tape recorder

where events can be fed and stored for all times to come and

later on retrieved verbatim, without any variation. Since a

human being is not a machine, some variations on issues

which do not form core part of the incident witnessed by him

are bound to occur, particularly when the witness is examined

after a considerable time. Such minor contradictions far from

destroying the credibility and reliability of the witness, would

rather show that he is a truthful and natural witness and that

is why those variations are present in his testimony. The core

part of the testimony of the complainant and Panch Witness

was the acceptance of money by the appellant from the

complainant and recovery of that money from the pocket of his

coat. There is absolutely no contradiction in the testimony of

complainant and Panch Witness on these core parts of their

testimony.

15. There is no contradiction as such in the testimony of

the Panch Witness Jagdish Singh on one hand and that of the

complainant on the other hand, on the question as to whether

the appellant had demanded money from the complainant on

13th December, 1988, or not. The Panch Witness Jagdish

Singh does not say that no money was demanded in his

presence, he does not refer to any such demand in his

deposition during trial. The omission of the Panch Witness

Jagdish Singh to refer to the demand of money cannot be said

to be material considering the considerable delay between the

date of raid and the date on which the Panch Witness Jagdish

Singh was examined in the court. In any case, even if it is

presumed that the appellant did not specifically demand

money from the complainant on 13th December, 1988 that

would make no difference to the outcome of the case, once it is

proved that the appellant had accepted gratification other than

legal remuneration from the appellant as a motive or reward

for preparing a bill on the pretext that though he was required

to pay Rs.15,000/- on account of less electricity consumed by

Mani Ram, he would be made to pay only Rs.1,500/- to Delhi

Vidyut Board, if he paid Rs.800/- to the appellant.

16. I find no merit in the contention that since the bills

prepared by the appellant were not signed by the superior

officers, there could have been no occasion for the appellant to

deliver those bills to the complainant. As noted earlier,

according to PW-13 K.L.Maurya, calculations on the back side

of the bill Ex.P-15 are in the hand of the appellant Madan Lal.

The second copy of the bill Ex.P-16, according to this witness,

also bears the signatures of the appellant Madan Lal at point

„A‟. Since the complainant came to the appellant, asked for

the work which the appellant had promised to do for him and

paid the agreed amount, the appellant could not have withheld

the bills with him. While accepting money from the

complainant, the appellant did not know that he was going to

be trapped and he must be conscious that if he does not give

bills to the complainant, he would not part with the money

promised by him or would seek to take it back. That precisely

must be the reason why the appellant delivered the bills Ex.P-

15 and Ex.P-16 to the complainant, despite the fact that they

had, by that time, not been signed by his superior officers.

The appellant knew it quite well that in the event of the

complainant not being allowed to deposit the amount of the

bills, on account of the bill not being signed by a competent

person, the complainant was bound to come back to him and

at that time he would get the bills signed by the competent

officer. What is material is that there was an application

Ex.PW-6/H submitted by Brijender Pal Singh, brother of the

applicant, seeking electricity connection and the appellant

actually prepared the bills Ex.P-15 and Ex.P-16 in the name of

Mani Ram, who was a tenant in the property in which

connection was sought by Brijender Pal Singh. The appellant

not only asked for money from the complainant on the ground

that as against Rs.15,000/- which would otherwise be payable

on account of less electricity consumed by Mani Ram, he

would prepare a bill for about Rs.1,500/- and pursuant

thereto, he actually prepared bills for about Rs.1,500/- and

also accepted cash amounting to Rs.800/- from the

complainant. Even if it is presumed that the bills Ex.P-15 and

Ex.P-16 were not delivered by the appellant to the complainant

and were only prepared by him and were lying on the table

that would be of no consequence in case the other allegations

against the appellant stand duly proved.

17. This is not in dispute that eight currency note Ex.P-1 to

Ex.P-8 were seized by the Investigating Officer from the coat of

the appellant. This is appellant‟s own case, as disclosed in the

deposition of DW-1, that these currency notes were kept by an

outsider in the pocket of his coat. Therefore, recovery of

currency notes from the coat of the appellant is not disputed

and the defence is that the appellant himself did not accept

these notes from the complainant and they were secretly kept

in his pocket by the complainant, at the time the appellant had

gone to toilet, leaving his coat hanging on his chair. Once the

appellant admits recovery of currency notes from his coat, it

was for him to satisfy the court that these notes were kept in

his pocket by the complainant. In "M.Narsinga Rao Vs. State

of Andhara Pradesh", 2001 Crl.L.J 515, the Deputy

Superintended of Police told the court that on the complainant

approaching him, he smeared the currency notes with

Phenolphthalein Powder. The case of the prosecution was that

the appellant before the Supreme Court had accepted those

currency notes from the complainant. During trial, neither the

complainant nor the Panch Witness supported the

prosecution. The Deputy Superintendent of Police who

conducted the raid told the court that when the appellant was

caught red handed with those currency notes, he never

demurred to him that those notes were received by him. The

defence taken by the appellant during trial was that the

currency notes were stuffed into his pocket. The Supreme

Court in these circumstance felt that the story of stuffing of

currency notes into the pocket of the appellant had been

concocted by him after a period of four years when he faced

trial in the court. In the present case also there is no evidence

that when the currency notes were taken out from the pocket

of the coat of the appellant he claimed that these currency

notes had been kept by some one in his pocket. DW-1 Daya

Ram is a colleague of the appellant, who claims that one

gentleman was seen by him putting something in inner pocket

of the coat of the appellant. It is per se unbelievable that any

outsider would dare to put currency notes in the pocket of the

coat of an official of Delhi Vidyut Board, in his office, during

office hours, in the presence of his colleagues. In the natural

course of human conduct, if any outsider makes such an

attempt, other officials present in the office would never allow

him to do so, unless that person is previously known to them

as a friend or relative of the person in whose pocket something

is being kept by him. The natural reaction of the colleagues of

the appellant in such circumstances would be to ask that

gentleman not to touch the coat of the appellant in his absence

and to wait for his return from the toilet.

18. Presuming that the appellant was not present in his

office and had gone to toilet as claimed by DW-1, there was no

way the complainant could have known that the appellant

would go to toilet leaving his coat hanging on his chair. Since

the complainant could not have pre-planned to stuff currency

notes in the pocket of his coat, it cannot be believed that when

the complainant went to the office of the appellant, did not find

him present on his seat and found the coat of the appellant

hanging on his chair, he, there and then, planned to stuff the

currency notes smeared with Phenolphthalein Powder in the

pocket of his coat. This is not the way human minds function.

The mandate of the Investigating Officer to the complaint was

to offer the treated currency notes to the appellant and the

Punch Witness Jagdish Singh was deputed to accompany him

at the time of handing over of currency notes to the appellant.

Therefore, there was no reasonable possibility of the

complainant having stuffed currency notes in the pocket of the

coat of the appellant and certainly had that been the case the

Panch Witness would not have corroborated the deposition of

the complainant and would have said that the currency notes

were in fact stuffed by the complainant in the pocket of the

coat of the appellant.

19. It was pointed out by the learned counsel for the

appellant that during cross-examination of DW-1, no specific

suggestion was given to him that an outsider had not put

something in the inner pocket of the coat of the appellant,

which was hanging on his chair. I find that though no specific

suggestion, as formulated by the learned counsel for the

appellant, was given to the witness, it was suggested to him

that he had not seen any such incident, as stated by him. The

only meaning, which can be given to this suggestion, is that no

outsider had kept anything in the coat of the appellant, as

stated by the witness. In any case, the case set-up by the

prosecution and the evidence produced by it cannot be

discarded merely because the learned APP cross-examining the

witness did not give a specific suggestion to the witness

controverting the narration given by him. The very case of the

prosecution is that the appellant had accepted eight currency

notes in the denomination of Rs.100/- from the complainant

Surender Pal Singh in the presence of Panch Witness Jagdish

Singh. The complainant, as well as the Panch Witness, have

specifically stated that the appellant had accepted the

currency notes smeared with phenolphthalein powder from the

complainant. Therefore, it cannot be said that by not giving a

particular specific suggestion to DW-1, the prosecution had

admitted the statement made by him. When the prosecution is

initiated, setting up a particular case and witnesses are

produced by the prosecution to prove the case set-up by it, it

cannot be said that omission to give a specific suggestion on

the part of the prosecutor by itself would amount the

admission of the defence which is contrary to the case set up

by the prosecution. No such admission on the part of the

prosecution can be inferred in the teeth of the specific

allegations in the chargesheet and in the statements, recorded

under Section 161 of Cr.P.C.

20. The learned counsel for the appellant has referred to the

decision of a Division Bench of this Court in Rakesh Kumar

vs. State 163 (2009) DLT 658 (DB) where this Court, referring

to the decision of Supreme Court in State of U.P. vs. Nahar

Singh AIR 1988 SC 1328 and Rajinder Prasad vs. Darshana

Devi AIR 2001 SC 3207, observed that where the witness is

not cross-examined on any relevant aspect, the correctness of

the statement, made by the witness, cannot be disputed. I

could not find a case titled as State of U.P. vs. Nahar Singh

reported in AIR 1988 SC 1382. However, in State of U.P. vs.

Anil Singh, AIR 1988 SC 1998, it was contended before the

Supreme Court that it was impossible for the witness to

prepare an exhaustive report and lodge the same before the

police by 9.15 pm when the murder itself took place between

7.00 pm to 8.00 pm on that day. The Supreme Court, noticing

that PW-1 was not specifically cross-examined on this matter,

was of the view that the Court cannot presume something

adverse to the witness unless his attention was specifically

drawn to. This judgment is of no help to the appellant since

this is not a case of drawing an adverse inference against a

witness without drawing his attention to the circumstance on

account of which, an inference adverse to the witness is

sought to be raised. In the case of Rajinder Prasad (supra),

the postman, who was examined as PW-2, had made

endorsement of refusal on the envelope given to him for

delivery. The contention before the Court was that the

postman was on leave on those days and, therefore, there can

be no refusal and consequently, no service of notice. Rejecting

the contention, the Court noted that it was not suggested to

the witness that he was not on duty during the period in

question and the endorsement "refused" on the envelope was

incorrect. The Court was of the view that in the absence of

cross-examination of the postman on this crucial aspect, his

statement in examination-in-chief had rightly been relied

upon. The Court went on to observe that "there is an age old

rule that if you dispute the correctness of the statement of a

witness, you must give him opportunity to explain his

statement by drawing his attention to that part of it which is

objected to as untrue, otherwise you cannot impeach his

credit." In the present case, considering the suggestion given

to DW-1 that he had not witnessed the incident, as stated by

him, coupled with the positive case set up by the prosecution,

which stands substantiated from the deposition of PW-4 and

PW-6, it cannot be said that the prosecution had not claimed

his deposition to be untrue

21. The principle of law, to be followed by the Courts in this

regard, is that if a party intends to dispute the testimony of a

witness, it needs to put such questions to him in cross-

examination as would disclose that the party, against whom

his deposition is directed, does not intend to accept his

evidence and allow it to remain unchallenged. If the testimony

of a witness is sought to be challenged, an opportunity needs

to be given to the witness to explain, by putting appropriate

questions to him, the circumstances which would indicate that

his deposition in the Court ought not to be believed or would

suggest that he was not a reliable witness. Unless this is done,

it is not permissible to use those circumstances for the

purpose of assailing the testimony of the witness. The witness

needs to be given an opportunity, while he is in the witness

box, to give such explanation, as may be open to him, in

respect of fact and circumstances sought to be used against

him, and it is not just and fair to use a circumstance against a

witness or for the purpose of assailing his testimony, without

first drawing his attention to those circumstances and giving

him an opportunity to explain them. But, in the present case,

the prosecution is not seeking to discredit the testimony of

DW-1 by using a circumstance, which was not put to him,

while he was in the witness box. In fact, according to the

complainant, when he went to the room of the appellant after

lunch, the other two clerks were not present on their seat and

during cross-examination of DW-1, a specific suggestion was

given to him that he had not seen any such incident, as stated

by him, meaning thereby, that he was not present at the time

the incident in question took place.

22. Another important aspect in this regard is that no

complaint was, at any time, made by the appellant to a senior

police officer, alleging therein that the complainant Surender

Pal Singh or some other outsider had secretly kept money in

his pocket in his absence. Admittedly, no such written

complaint was lodged by the appellant or by DW-1 to their

superior officers. Though DW-1 claims that he had informed

the Executive Engineer, the appellant has not produced the

Executive Engineer in the witness box and admittedly no

report to him was made in writing. More importantly, even

during cross-examination of the complainant no suggestion

was given to him that he had secretly put the currency notes

in the pocket of the coat of the appellant in his absence. The

version that an outsider had kept currency notes in the pocket

of the appellant has come to surface for the first time in the

deposition of DW-1 Daya Ram who was examined about 16

years after recovery of money from the coat of the appellant.

In fact, even during cross-examination of IO of this case PW-15

ACP Abhay Ram, no suggestion was given to him that at the

time of recovery of currency notes either the appellant or any

of his colleagues had claimed that an outsider had kept that

money in the pocket of the coat of the appellant in his

absence. No suggestion was given to him that DW-1 Daya

Ram was present at the time of recovery of currency notes

from the pocket of the coat of the appellant. If the defence of

the appellant was that either the complainant or some other

person had kept the treated currency notes in the pocket of his

coat, in his absence, he ought to have at least suggested so to

the complainant, Panch Witness and the IO. Bringing out a

defence of this nature, for the first time, by producing a

witness in defence, is nothing but an after thought. Therefore,

the defence taken by the appellant does not inspire confidence

and cannot be believed. Once it is found that the above

referred defence taken by the appellant is high improbable and

does not stand substantiated, there seems to be no escape

from the conclusion that the appellant had accepted the

currency notes Ex.P-1 to Ex.P-8 from the complainant Shri

Surender Pal Singh in the presence of Panch Witness Shri

Jagdish Singh.

23. Even otherwise there could have been absolutely no

reason for the complainant to implicate the appellant in a false

case of bribery taking and going to the extent of stuffing

currency notes in the pocket of his coat, in his absence.

The appellant does not claim any animosity or ill-will between

him and the complainant. No such claim is made by him even

in respect of Panch Witness Jagdish Singh, who himself was a

public servant and was otherwise on duty in the office of Anti

Corruption Branch on the day this raid was conducted. The

courts need to appreciate that the citizens in our country are

most of the times reluctant even to lodge a complaint of

demand of illegal gratification from them. Most of them pay

the illegal gratification either with a view to get done something

to which they are otherwise not entitled under the Rules or in

order to get their matter expedited or with a view not to

antagonize the public servant dealing with their matter, lest

he puts obstacle in their way by taking a view or recording a

note unfavourable to them. When a person takes the step of

going to the Anti Corruption Branch, making a complaint, and

getting a trap organized, he knows it very well that it was going

to cost him a lot of inconvenience and harassment. Firstly, he

has to visit the office of Anti Corruption Branch and pay the

bribe money from his pocket. He has to complete a number of

formalities in the office of Anti Corruption Branch and then

accompany the officials constituting the raiding party to the

place of the accused. He then has to visit the office of the Anti

Corruption Branch in connection with the investigation of the

case and thereafter he has to attend the court on a number of

occasions. While doing all this, the complainant has to

necessarily remain away from the work or business in which

he is engaged and thereby he sacrifices a lot of his precious

time and possibly also the money which he could be earning

utilizing that time. He has to withstand a grilling cross-

examination at the hands of the defence counsel and also face

the animosity of not only the public servant got trapped by

him but also of his colleagues, who will be antagonized with

him, on account of his getting a colleague of theirs trapped for

accepting bribe. A person making complaint against a public

servant knows it very well that in the department of the

accused, no one may like to deal with him in future and in fact

the colleagues of the accused are only likely to put obstacles in

the work which he may have in the department. Therefore,

most of the time, a person, from whom bribe is demanded,

either pays up the money or he simply withdraws, instead of

reporting the matter to the Anti Corruption Branch and going

to the extent of being member of a raiding party. It is only in

extreme cases where a citizen has a strong feeling of having

been wronged or where he is so much conscious of his rights

that instead of keeping silent or paying money, he wants a

bribe seeker to be punished that he goes to the Anti

Corruption Branch, make a complaint and then follows that

complaint to its logical conclusion. Ordinarily the testimony of

the complainant need to be believed unless there are strong

and compelling reasons creating serious doubt on the

truthfulness of his testimony.

24. In the present case, not only were the currency notes of

the complainant smeared with phenolphthalein powder, their

numbers were also noted in the memo prepared by Anti-

Corruption Branch. Those very currency notes were recovered

from the pocket of the coat of the appellant. The pocket of the

coat of the appellant turned pink when its wash was taken in

the solution of sodium carbonate. This is not the case even of

the appellant that these currency notes, smeared with

phenolphthalein powder, were not recovered by the appellant

from the pocket of his coat, his defence being that some

outsider, presumably the complainant, had stuffed those

currency notes in the pocket of his coat in his absence. The

testimony of the witnesses, including the complainant

Surender Pal Singh, Panch Witness Jagdish Singh and

Investigating Officer ACP Abhey Ram shows that left hand of

the appellant was also washed in the solution of sodium

carbonate there and then on the spot and it turned pink on

being washed. The fact that the hand of the appellant turned

pink on being washed in sodium carbonate solution leaves no

reasonable doubt that he had touched those currency notes

with his hand. Had the appellant not taken those currency

notes from the complainant, his hand, when washed in sodium

carbonate solution, would not have turned pink. This is

nowhere the case of the appellant that he had touched these

currency notes with his hand at any time before they were

seized by the appellants. According to DW-1, Daya Ram, as

soon as the appellant came out from the toilet, he told him

that one gentleman had come and was claiming to be his

friend, whereupon the appellant started putting up his coat

and in the meantime, 3-4 persons came inside, caught hold of

the appellant and took him outside to sit in a Government

vehicle. Nowhere does he say that after coming from the toilet,

the appellant had put his hand in the pocket of his coat in

order to check whether something had been kept in his pocket,

in his absence or not. His version is that when the appellant

was putting on his coat, he was caught by the officials of Anti-

Corruption Branch and taken outside from the office. In his

statement under Section 313 Cr.P.C. also, the appellant does

not claim that he had put his hand in the pocket of his coat in

order to check whether the visitor had kept something in his

pocket or not.

25. In Hazari Lal vs. State, (1980) 2 SCC 390, one of the

Panch Witnesses was not examined and other one was treated

as hostile. The complainant in that case also did not support

the prosecution and claimed that it was one Hawaldar and not

the appellant who had demanded bribe and that, in fact, the

appellant had refused to receive the money when offered by

him and had jerked his hand, as a result of which, notes came

to be flung across the wall into the neighbouring room from

where the notes were recovered by the Inspector. Repelling the

contention that acceptance of money by the appellant had not

been proved, it was held by the Supreme Court that it is not

necessary that the passing of money should be proved by

direct evidence and it may also be proved by circumstantial

evidence. Since the police officer had testified that the

appellant had taken out the currency notes from his pocket

and flung them across the wall, the Court held that it could be

presumed that he had obtained that money from the

complainant.

26. It has come in the deposition of the complainant that

when he met the appellant during the second visit to his room

on that day, the appellant told him that he had done his work

and asked him to give money. It is also come in his deposition

that when he had visited the office of DESU in connection with

instalment of electricity connection in their house at that time

also, the appellant had demanded Rs.800/-, as bribe, so as to

prepare a bill of Rs.1500/- as against the amount of

Rs.15000/- which will otherwise has to pay on account of less

electricity consumed by Mani Ram from 1982 to 1988. Thus,

there was demand of money firstly before the complainant

reported the matter to Anti-Corruption Branch and then on

the date the money was recovered from the pocket of the coat

of the appellant. In the present case, the testimony of the

complainant, corroborated by the testimony of Panch Witness,

proves that the appellant had accepted these currency notes

from the complainant, though such demand need not

necessarily be proved by leading direct evidence and can be

inferred even from the recovery of money from the accused.

According to the complainant, the appellant had promised to

prepare bill for Rs.1500/- if bribe was paid to him. The bills

Ex.P-15 and P-16 which admittedly the appellant had

prepared are for this very amount. This is yet another

circumstance which corroborates the case of the prosecution

that the money was demanded and accepted by the appellant

pursuant to the assurance given by the appellant to the

complainant while demanding bribe from him.

27. Presuming that there was no specific demand, as

claimed by the complainant, once it is proved that the

currency notes were recovered from the possession of the

appellant, the Court is statutorily required by Section 20 of PC

Act, 1988 to presume that the appellant had accepted this

money as a motive or reward for doing an official act or for

showing or for bearing to show, in the exercise of his official

functions, favour to the complainant or his brother, who had

applied for electricity connection from DESU.

28. In the case of M.Narsinga Rao (supra), the Supreme

Court held that it is obligatory for the Court to draw the

statutory presumption under Section 20 of Prevention of

Corruption Act and, therefore, if it is proved that the accused

had accepted or agreed to accept any gratification, the Court

must presume that the money was accepted as a motive or

reward for doing or bearing to do any official act, etc. Though

the presumption under Section 20 of Prevention of Corruption

Act is rebuttable, the appellant has not made any such

attempt. He does not claim that the currency notes were

accepted by him not as a motive or reward, but in some other

connection. His claim is that the currency notes were, in fact,

never accepted by him and were secretly stuffed by someone in

his pocket. The decision in the case of M.Narsinga Rao (supra)

was followed by the Supreme Court in B.Noha vs. State of

Kerala and Anr. (2006) 12 SCC 277.

29. In Raghubir Singh vs. State of Haryana, (1974) 4

SCC 560, the appellant, an Assistant Station Master, was

found in possession of marked currency notes given to him by

a passenger, whose bedding has been detained by them. It

was held by the Supreme Court his being caught red-handed

was a case of res ipsa loquitur as the very things speaks for

itself in such circumstances.

30. Even if it is presumed that the actual amount, which

was payable on account of less electricity consumed by Mani

Ram, was only about Rs.1500/- and no favour was actually

given by the appellant by preparing bills for that very amount,

the offences, alleged to have been committed by the appellant,

are still made out, once it is accepted that the appellant had

represented to the complaint that he would be doing a favour

to him by preparing a bill for Rs.1500/-, whereas the actual

amount payable by Mani Ram comes to about Rs.15000/-.

Accepting gratification other than legal remuneration on the

pretext that he would, in exchange thereof, extend a favour to

the person from whom gratification is taken to some other

person, would be an act coming within the purview of Section

7 of Prevention of Corruption Act, 1988 even if no favour is

actually extended by the public servant, accepting the

gratification.

31. In Madhukar Bhaskarrao Joshi vs. State of

Maharashtra, 2001 Crl.L.J. 175, the Supreme Court rejected

the contention that the presumption could be drawn only on

the prosecution, establishing that gratification was paid or

accepted by the public servant and not merely from its proving

that he was found in possession of the currency notes,

smeared with phenolphthalein powder. Rejecting the

contention, the Court, inter alia, held as under:

"The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. So the word 'gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like "gratification or any valuable thing." If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word 'gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it."

32. In Raj Rajender Singh Saith vs. State of Jharkhand

and Anr. AIR 2008 SC 3217, PW-1 told the accused that he

had brought the money as directed by him. The accused,

thereupon, asked him to take cut and give the same to him. In

these circumstances, the Court held that voluntary and

conscious acceptance of money having been proved, there was

no further burden cast on the prosecution to prove the

demand or motive by a direct evidence. In taking this view, the

Court relied upon its earlier judgment in the case of Madhukar

Bhaskarrao Joshi (supra).

33. For the reasons given in the preceding paragraphs, I

have no hesitation in holding that the appellant by demanding

bribe from the complainant on the pretext that he would

prepare a bill of Rs.1500/- for the less electricity consumed by

their tenant Mani Ram during the period 1982-1988, as

against the amount of Rs.15000/-, which they would

otherwise have to pay, and then accepting the amount of

Rs.800/- from him committed the offence under Section 7 of

Prevention of Corruption Act. The appellant is also guilty of

the offence under Section 13(1) (d) of Prevention of Corruption

Act since he obtained a pecuniary advantage in the form of

cash amounting to Rs.800/- for himself by corrupt and illegal

means and abusing his position as a public servant. He,

therefore, is liable to be punished under Section 13(2) of the

Act read with Section 13(1)(d) thereof. The conviction of the

appellant is accordingly maintained. As regards sentence, the

minimum sentence, prescribed under Section 13(2) of

Prevention of Corruption Act being one year and only the

minimum sentence having been awarded to the appellant,

there is no scope for reduction of the sentence awarded to him.

34. The appeal has no merit and is hereby dismissed.

The appellant is directed to surrender forthwith before the trial

court to undergo the remaining part of the sentence awarded

to him. If he does not surrender forthwith, the trial court will

take appropriate steps to procure his presence and commit

him to imprison to undergo the remaining sentence. The

record of the trial court be sent back forthwith alongwith a

copy of this judgment.

(V.K.JAIN) JUDGE MARCH 22, 2010 ag/rs/bg