Bijender Kumar vs State Of Delhi
2010 Latest Caselaw 5393 Del

                   * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                    Date of Reserve: 1st October, 2010
                                                    Date of Order: 29th November, 2010
+Crl. Appeal No. 110 of 2004
%
                                                                              29.11.2010

BRAHMA NAND                                                              ... Appellant
                         Through: Mr. Jayant Nath, Sr. Advocate with Mr. Krishna
                         Muraree Singh, Advocate

                Versus

THE STATE OF NCT OF DELHI                                   ... Respondents
                 Through: Mr. O.P. Saxena, Addl. PP for the State

                                            And
+Crl. Appeal No. 126 of 2004
%

BIJENDER KUMAR                                                           ... Appellant
                         Through: Mr. K.B. Andley, Sr. Advocate with Mr. M.L. Yadav,
                         Advocate

                Versus

STATE OF DELHI                                                       ... Respondent
                         Through: Mr. O.P. Saxena, Addl. PP for the State

JUSTICE SHIV NARAYAN DHINGRA

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

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

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

JUDGMENT

1. These two Appeals have been preferred against a common Judgment dated

3rd February, 2004, whereby the Appellants were convicted under Section 7 and

13(1) (d) read with Section 13(2) of Prevention of Corruption Act, 1988 (hereinafter

referred to as "P.C. Act" for short) and Order on the Point of Sentence dated 7 th

February, 2004, whereby they were sentenced to undergo 18 months Rigorous

Imprisonment on each count and to pay a fine of ` 5,000/- on each count.

2. Facts leading to conviction of the two appellants are that Smt. Jaipali was

working as a safai karamchari (Sweeper) in M.C.D. She retired on 30th September,

1993. Her dues after her retirement were to be paid to her. Appellant Brahma Nand

was U.D.C. working in Shahdara Zone, MCD, where Jaipali used to work as

Sweeper. In her complaint she reported that Brahma Nand was responsible for

payment of post retirement dues to her. She was forced to lodge a complaint Ex.

PW2/A with CBI when appellant Brahma Nand persisted that she cannot get cheques

of post retirement dues "free" and she would have to pay bribe for these cheques.

She was given a cheque of ` 15,000/- about 15-20 days prior to making of complaint

and for giving that cheque of ` 15,000/-, Brahma Nand had already taken from her `

1500/-. Since she had to receive more amount against her retirement dues and more

cheques were to be handed over to her, Brahma Nand was asking bribe. She had

visited office several times and every time Brahma Nand would tell her that she

should being money and then take cheques. On 25th November, 1993, she went to

Brahma Nand with her grandson Bhagat Singh (in distant relation) and Brahma Nand

asked her to come on 26th November, 1993 at 9.30 am with ` 1,000/- and told her

that he would issue cheques only thereafter. She was compelled to lodge the report

because of this. She had no enmity with Brahma Nand or any of his colleagues nor

she had any other financial transaction with Brahma Nand. She had approached

police with her grandson as she was weak and aged, and was not able to talk

properly. At the time of lodging report, she had taken ` 1,000/- with her.

3. After recording this report, an Inspector of Anti Corruption Branch (ACB)

prepared pre-raid proceedings, called a punch witness, noted the „number‟ of

currency notes brought by the complainant and applied phenolphthalein powder on

them, demonstrated to the witness how phenolphthalein powder worked and sent the

punch witness along with complainant and her grandson to the office of accused.

Punch witness was told to give signal after the bribe was accepted. Jaipali went to

the office of appellant Brahma Nand. Appellant Bijender Kumar was sitting opposite

him and the amount of ` 1,000/-, at the instance of Brahma Nand, was taken by

Bijender Kumar from Jaipali. Immediately signal was given to the raiding party and

both the appellants were apprehended and post raid proceedings were carried out.

Hand wash to Bijender Kumar was taken by the Inspector and was sealed. After

completion of investigation, the accused persons were sent for trial.

4. Jaipali appeared as PW-2. In her testimony in the Court she again reiterated

that she had received earlier cheque of ` 15,000/- from accused Brahma Nand, who

was posted as UDC in the department and she had visited several times in the office

of Brahma Nand. Accused had demanded bribe of ` 1500/- for the amount of

cheque of ` 15,000/-. She had tried to persuade the accused not to demand bribe

but the accused did not desist and told that she could not receive cheque of `

15,000/- for „free‟ (without paying bribe). Bhagat Singh was a grandson in distant

relation of complainant Jaipali. He went along with Jaipali to Brahma Nand and in his

presence Brahma Nand settled the matter for ` 1,000/-. Thereafter, Jaipali went to

Anti Corruption Branch (ACB) along with her grandson. However, A.C.B. initially sent

her back telling to settle the matter herself with Brahma Nand. She then again went

to ACB with ` 1,000/- and lodged report Ex. PW2/A and produced 10 notes of ` 100/-

denomination. In her presence phenolphthalein powder was applied on those

currency notes and the characteristics of powder was explained to her and punch

witness, another person called by ACB. She was then sent to the appellant Brahma

Nand and instructed to give signal after the money was accepted. She stated that

after she went to office of Brahma Nand, Bijender Kumar was sitting opposite him.

Brahma Nand, on seeing her asked if she had brought the money (paisa laayee hai

?) and thereafter he asked her to give the money. She took out the tainted money

from her purse to give it to Brahma Nand. On this Brahma Nand asked her to give

money to appellant Bijender Kumar, who was sitting opposite him. So she gave

money to Bijender Kumar. Bijender Kumar took the currency notes in his right hand

and as he took currency notes in his hand, he inquired as to what flour type material

was on the notes. Jaipali told him „take the money and you will come to know

everything‟ (pakar lo beta, sab pata lag jayeega). She then gave signal to the raiding

party waiting outside. Police came in and on seeing the police, Bijender Kumar threw

those notes towards Brahma Nand. The police caught hold hands of Bijender Kumar

and his hand wash was taken. Both the appellants were apprehended and post raid

proceedings were completed.

5. PW-2 was cross examined at length on behalf of both the accused persons.

She stood the test of cross examination well and reiterated even during her cross

examination that the demand of bribe was made by Brahma Nand and accused

Bijender Kumar, sitting opposite Brahma Nand, had accepted the amount of ` 1,000/-

at the instance of Brahma Nand. During cross examination she also stated that

when she initially went to ACB for lodging her report, she was turned out from there

and it was suggested that she should settle the matter mutually with accused after

giving some money. Her complaint was lodged by ACB only after she again went

there. Although, in her complaint she stated that Brahma Nand, after giving initial

cheque of ` 15,000/- to her, had been demanding ` 1500/- as bribe money, no

suggestion was put to her on behalf of accused Brahma Nand that this demand was

not made and the cheque of ` 15,000/- was handed over to her without taking bribe.

The prosecution case was further fortified by PW-3 who had accompanied PW-2

Jaipali as punch witness and had witnessed the entire proceedings of raid. He had

testified about the pre-raid proceedings and thereafter as to what happened in the

office of Brahma Nand. He supported the prosecution version of facts and testified

that complainant had asked Brahma Nand if her cheque was ready in reply to which

Brahma Nand told her that it was not ready. On this Bhagat Singh asked Brahma

Nand as to why he was harassing her and told him that they had brought money

demanded by him. On this Brahma Nand asked them to give money to Bijender

Kumar and on his saying so, money was handed over to accused Bijender Kumar

and thereafter pre-arranged signal was given to the police and the police party came

into the room of the accused persons and apprehended both the accused persons

and conducted post raid proceedings which were signed by him. This witness was

also cross examined at length and nothing contrary, to his testimony in his

examination in chief, came in cross examination. He testified that he could hear the

talks between complainant and Brahma Nand and accused Brahma Nand did tell the

complainant that her cheques were not ready. Both PWs, PW-2 and PW-3 had

stated that in the office room of accused Bijender Kumar and Brahma Nand, there

were many other employees sitting and working when the raid was conducted.

Bhagat Singh appeared as PW-14. He also supported the prosecution evidence and

reiterated the facts as stated by PW-2 and PW-3.

6. Sanction in this case was proved by the Sanctioning Authority. The other

witnesses proved various memos prepared before and after conducting raid. The

learned Trial Court after appreciating the entire evidence convicted both the

appellants as stated above.

7. It is argued on behalf of accused Bijender Kumar that Bijender Kumar was

neither involved in demand of bribe nor involved in acceptance of it. He happened to

sit opposite Brahma Nand and even if it is presumed that he had taken bribe money

in his hand at the instance of Brahma Nand, that does show that Bijender Kumar was

guilty either under Section 7 or under Section 13 (1) (d) of the P.C. Act.

8. Reliance has been placed by the appellant on SADASHIV MAHADEO

YAVALUJE AND GAJANAN SHRIPATRAO SALOKHE VS. STATE OF

MAHARASHTRA (1990) 1 SCC 299 wherein the Supreme Court, while considering

a case under Section 161, 165 and 156-A of IPC and under Section 5(2) read with

Section 5 (1) (d) of P.C. Act observed that merely because accused No. 2 was

entrusted with some money to be passed on to accused no. 1 it could not be held

that he was guilty of any one of these offences unless it is established that he was a

party to the arrangement and the arrangement arrived at was that the money would

be handed over to accused No. 2 to be given over to accused No. 1. It was also

observed that settlement between complainant and accused no. 1 had taken place at

the house of accused No. 1 and accused No. 2 was not there and he had no

knowledge about the settlement.

9. The facts of the present case are altogether different and case of Sadashiv

Mahadeo Yavaluje and Gajanan Shrip Atrao Salokhe is of no help to the appellant.

In the present case both the appellants were sharing same table and were very well

aware of each other‟s acts and omissions. In the presence of appellant Bijender

Kumar, Jaipali had gone and inquired about her cheques from accused Brahma

Nand and Brahma Nand told her that her cheques were not ready. In his presence

Jaipali‟s grandson PW-14 told Brahma Nand as to why he was harassing and they

had brought the money demanded and in his presence Brahma Nand had told that if

she had brought the money demanded, the same should be given. After Jaipali took

out money from her purse for giving to Brahma Nand, it was at that stage that

Brahma Nand asked that money should be given to Bijender Kumar. This only

shows that Brahma Nand and Bijender Kumar were shareholders in the booty.

Bijender Kumar was well aware that money being accepted by him was bribe money.

Both used to work on the same table and were well aware of each other‟s affairs and

Brahma Nand knowing well that the money being demanded was a bribe, accepted

the same from Jaipali. Section 7 and Section 13(1) (d) of P.C. Act make it clear that

even if money is accepted by a person on behalf of other, he commits offences under

Section 7 and 13 (1) (d) of P.C. Act. Words used by the statute in Section 7 of P.C.

Act are "acceptance from any person for himself or for any other person any

gratification". Similarly, words used by the statute in Section 13 (1) (d) are "if he

obtains by corrupt or illegal means for himself or for any other person any valuable

thing or pecuniary advantage". A reading of Section 13 and 7 of the P.C. Act makes

it clear that if a person has knowledge that money being accepted by him was bribe

money for someone else, the offence is complete. In this case, Bijender Kumar had

knowledge that the money being paid by Jaipali was bribe and he accepted bribe,

though, for Brahma Nand. I, therefore, consider that the above judgment relied upon

is not applicable in the present case. The appellant also relied upon A Subair Vs.

State of Kerala, (2009) 6 SCC 587 to press the point that the Trial Court wrongly

drew presumption under Section 20 (1) and in view of Section 20(3), the amount

being a trivial amount of ` 1,000/-, the Trial Court should not have drawn any

presumption. I consider that this argument is totally irrational, and vague. Jaipali

had worked in MCD as safai karamchari. She was given a cheque of ` 15,000/-

towards her retirement dues and the amount demanded from her was 10 per cent of

this cheque amount. This was not a trivial amount. ` 1,000/- today may look a trivial

amount but in 1993, when this amount was demanded from Jaipali, it was not a trivial

amount, moreover, it was not a trivial amount for a person who was working as Safai

Karamchari. Word "trivial" is to be interpreted in the context of time and quantum in

relation to income of complainant. If a person for handing over a cheque of `

15,000/- demands ` 1500/- as bribe, this cannot be considered as trivial amount at

any time because it is 10% of the amount. This amount may look trivial with passage

of time but the Court has to travel back in the year when incident took place and

consider whether at that time the amount recovered from the appellant was trivial in

nature or not. I consider, by any standard the amount of bribe recovered from the

appellant was not trivial.

10. The appellant has placed reliance on Madan Mohan Singh Vs. State of

U.P., AIR 1954 SC 637 to argue that there was no motive for acceptance of bribe at

all for appellant Bijender Kumar. This judgment is also of no help to the appellant.

The bribe culture in this country has increased so much over the time that it is hard to

imagine if any work gets down in Government offices and in the offices of various

public authorities without payment of bribe money. If you have to receive payment

from any official of any public authorities you give speed money or bribe money. The

situation is that even if an ordinary employee has to withdraw money from his own

Provident Fund for some necessity, he will find it difficult to withdraw from his

Provident Fund unless he bribes the concerned babus. It is not strange that in this

case bribe was demanded in presence of all other employees who were sitting in the

office because bribe has become an accepted norm in public offices. Everybody

knows that no work is done without paying bribe that is why no voice of resistance or

objection is raised by co-employees in such cases. No co-employee comes to help

of such harassed person either because of indifference or because they themselves

indulge into similar practices and it is for the same reason that none of the co-

employees of the appellant appeared in the witness box to say that Jaipali had

wrongly implicated the accused persons. It is true that onus of proving an offence

lies greatly on the prosecution, but, once it is proved that tainted money was

recovered from the accused, the onus shifts on the accused to show that money

recovered from him was not bribe money. He could have proved this by examining

any of his co-employees as the room was full of co-employees. Non-examination of

anybody from the co employees shows that the appellants defense was not tenable.

11. The plea taken by appellant Brahma Nand is that he had not accepted the

bribe money and the bribe money was accepted by accused Bijender Kumar. The

other argument is that earlier cheque of ` 15,000/- was handed over to the

complainant within few days of her retirement and further cheques were not ready

and Brahma Nand could not have demanded bribe money for remaining cheques.

However, no suggestion was given to the complainant during cross examination that

the appellant had not told her that she cannot get cheque of ` 15,000/- for free. No

motive of the complainant to falsely implicate Brahma Nand has been proved. All

suggestions, given to the complainant, are such about which complainant had no

knowledge and the plea raised by the appellant that he was falsely implicated

because of union activities was not proved by the appellant by cogent evidence.

Merely by giving suggestion to the complainant of such facts with which she was not

concerned, defence would not stand proved neither doubt is raised on the veracity of

the evidence of the complainant. The complainant in this case amply proved demand

of bribe by appellant Brahma Nand. This was further corroborated by two more

witnesses. it is not denied that it was Brahma Nand who was to hand over cheques

of retirement dues to the complainant. The complainant, perhaps, was left with no

option when she was harassed at the hands of Brahma Nand but to make complaint.

In fact, the harassment was such that despite suggestion of ACB that she should

settle with Brahma Nand by payment of money, she persisted that no she would

complaint against Brahma Nand and she again came to the office of ACB and lodged

the report.

12. I find that trial court rightly convicted the appellants. It makes no difference

that appellant Brahma Nand himself did not accept the bribe money and asked his

colleague Bijender Kumar to accept it on his behalf. There must have been an

arrangement between the two and both would have been accepting bribe money on

behalf of each other and that does not lessen the crime of Brahma Nand.

13. I find no force in the appeals. The appeals are dismissed.

14. Appellants are directed to surrender before the Court and undergo remaining

sentence. In case they do not surrender, the police is directed to arrest them and

lodge them in jail.

NOVEMBER 29, 2010                                    SHIV NARAYAN DHINGRA, J.
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