Delhi High Court
Roshan Lal Saini vs C.B.I. on 8 October, 2010
Author: Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: October 01, 2010
Judgment delivered on: October 08, 2010
+ CRIMINAL APPEAL NO. 809/2005
ROSHAN LAL SAINI ....APPELLANT
Through: Mr. Sandeep Sethi, Sr. Advocate with
Mr.Anurag Jain, Advocate
Versus
C.B.I. .....RESPONDENT
Through: Ms. Sonia Mathur, Advocate with Mr.
Sushil Kumar Dubey, Advocate.
WITH
CRIMINAL APPEAL NO. 813/2005
M.N.SHARMA ....APPELLANT
Through: Mr. K.B.Andley, Sr. Advocate with Mr.
M.Shamikh, Advocate
Versus
C.B.I. .....RESPONDENT
Through: Ms. Sonia Mathur, Advocate with Mr.
Sushil Kumar Dubey, Advocate.
CORAM:
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers
may be allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be
reported in Digest ?
Crl.A.Nos. 809/2005 & 813/2005 Page 1 of 17
AJIT BHARIHOKE, J.
1. M.N. Sharma and Roshan Lal Saini, the appellants herein have
preferred above referred separate appeals against the impugned
judgment dated 28.09.2005 of learned Special Judge, Delhi holding
them guilty of the offences punishable under Section 120B IPC read
with Section 7 and 13(2) read with Section 13(1)(d) of P.C. Act and the
consequent order on sentence dated 30.09.2005 in terms of which
both the appellants were sentenced.
2. Briefly stated, the facts relevant for disposal of these appeals are
that Vijay Kumar, a Document Writer, having a seat at the office of
Sub-Registrar visited the office of CBI and submitted a written
complaint (Ex.PW6/A) alleging that he had presented three sale deeds
vide receipts dated 30th July, 1998, 06th August, 1998, 12th August,
1998 and a partition deed vide receipt dated 29th July, 1998 at the
office of Sub-Registrar/Tehsildar, VI-C, Rampura, Delhi for registration.
The concerned Sub-Registrar i.e. the appellant M.N.Sharma stopped
the registration process of those documents and verbally asked him to
bring 'No Objection Certificate' for the registration of the documents
whereas there was no requirement of 'No Objection Certificate' in
respect of transactions of properties situated in Old Gupta Colony and
New Gupta Colony and that the appellant M.N.Sharma had earlier
registered several documents/sale deeds of that area without insisting
for NOC. Vijay Kumar, complainant further claimed in his complaint
that on 20th August, 1998, appellant M.N.Sharma demanded a bribe of
` 6500/- @ ` 2000/- per sale deed and ` 500/- for the partition deed for
registering those documents and he made it clear that he would not
register the documents till the money asked by him was paid to him.
On the basis of said complaint, formal FIR RC/DA I/0047/98 47(A)/98
(Ex.PW7/A) was registered on 27th August, 1998 at about 11.30 a.m.
and the investigation was entrusted to Inspector P.Balachandran (PW7)
of Anti-Corruption Branch, CBI.
3. Inspector P.Balachandran, on receipt of the FIR, organised a raid
and he went through the formalities of pre-raid proceedings in which
the complainant produced Rs. 6500/- to be used for the bribe money.
After making preparation for the raid, the trap party proceeded to
office of Sub-Registrar Rampura. There they came to know that Sub-
Registrar had left the office at 2.30 p.m. and he was expected to return
to the office at 5.30 p.m. For that reason, the raid was called off and
complainant Vijay Kumar and the witnesses Devender and Arshad Ali
were asked to come again to the CBI office on the next day.
4. On 28th August, 1998, pre-trap proceedings were again
conducted and respective handing over memos were prepared,
detailing the proceedings conducted in the CBI office. After the
necessary arrangements, the trap party reached at the office of Sub-
Registrar, Ram Pura at about 1.30 p.m. The complainant Vijay Kumar
along with the shadow witness Devender was then sent to the room of
Sub-Registrar to contact him. Other members of the trap party took
position in the office compound on the side opposite to Room No. 12.
Complainant and shadow witness were seen going to the Room No. 12
and coming out of the room. After about 10 minutes, one person
approached the complainant Vijay Kumar and talked with him for about
5 minutes and aforesaid person and the complainant went to the Sub-
Registrar's office in Room No. 12 and returned back within 15 minutes.
Then, they came to the main gate of the office complex and the
complainant informed the Trapping Officer that the other person was
Jugal Kishore, who had come to him for registration of a sale deed
which has been submitted in the office of Sub-Registrar. He also
informed that the Sub-Registrar M.N.Sharma (appellant) had told him
to meet him again at 2.45 p.m. in connection with the pending
document. At about 2.45 p.m., the complainant and the shadow
witness Devender were again sent to the office of the appellant and 5
minutes later, shadow witness Devender came out of the room. He
approached Inspector P. Balachandran and informed that Sub-Registrar
was bargaining with the complainant and he was directed to go outside
to wait. At about 3.00 p.m., complainant Vijay Kumar came out of the
office and informed Inspector Balachandran that the Sub-Registrar had
reduced his demand to Rs. 6000/- and directed him to hand over the
money to Roshan Lal, the other appellant. He also informed that LDC
Jagbir Singh was also present in the office and he had kept the bribe
amount of Rs. 6000/- on the table of the LDC and on receiving the
instructions from the appellant M.N.Sharma, the other appellant
Roshan Lal, Peon had picked up money from the table and counted it
with both his hands and kept it in his pocket. On this trap party rushed
to the office of the appellant M.N.Sharma and apprehended Roshan Lal.
Roshan Lal got perplexed and he asked for forgiveness and stated that
he had accepted Rs. 6000/- from the complainant Vijay Kumar Monga
on the directions of M.N.Sharma and kept the money is in his pocket.
The money was recovered from the pocket of Roshan Lal Sharma.
Thereafter, Roshan Lal was made to dip fingers of his respective hands
in freshly made colourless solution of Sodium Carbonate and his
respective hand washes turned pink. Same process was repeated with
the pocket of shirt of appellant Roshan Lal and pocket wash also turned
pink. Hand washes as well as pocket washes were transferred into
clean bottles and bottles containing washes were sealed and taken into
possession. Appellants were arrested.
5. On completion of formalities of investigation, both the appellants
M.N.Sharma and Roshan Lal were challaned and sent to court for trial.
Learned Special Judge charged both of them for the offences
punishable under Section 120B IPC read with Section 7 and Section
13(2) read with Section 13(1)(d) of P.C. Act, 1988. Both the appellants
pleaded innocence and claimed to be tried.
6. In order to bring home the guilt of the appellants, prosecution has
examined 9 witnesses including complainant Vijay Kumar (PW6),
shadow witness Devender Kumar (PW3), recovery witness Arshad Ali
(PW4) and Jagbir Singh, LDC (PW8) besides the Trap Laying Officer
P.Balachandran (PW7).
7. The appellants were examined under Section 313 Cr.P.C. to
afford them an opportunity to explain the incriminating evidence
against them. Both of them in their respective statements under
Section 313 Cr.P.C, denied the prosecution version in totality. They
claimed that they neither demanded nor accepted bribe money from
the complainant and they have been falsely implicated in this case.
None of them preferred to produce evidence in defence.
8. The learned Special Judge, on consideration of the evidence
found the appellants guilty of the charges and convicted them
accordingly for the offences punishable under Section 7 as well as
Section 13(2) read with Section 13(1)(d) of the P.C.Act read with
Section 120B IPC.
9. Learned Sh. K.B.Andley, Sr. Advocate appearing for the appellant
M.N.Sharma and learned Sh. Sandeep Sethi, Sr. Advocate appearing
for the appellant Roshan Lal have assailed the impugned judgment of
conviction on the ground that it is based upon surmises and
conjectures, ignoring the fact that the prosecution has miserably failed
to establish either the demand for illegal gratification by the appellant
M.N.Sharma or acceptance of bribe money by the appellant
M.N.Sharma indirectly through the appellant Roshan Lal in furtherance
of a conspiracy between them.
10. As regards the demand for illegal gratification, it is submitted on
behalf of the appellant that as per the case of prosecution, initial
demand was made by the appellant M.N.Sharma on 20.08.1998, in
respect of which the complainant Vijay Kumar (PW6) filed a hand-
written complaint Ex.PW6/A with CBI. There is no mention of presence
of any other witness at the time of initial demand in the complaint
Ex.PW6/A. PW6 Vijay Kumar (complainant), in his testimony, has not
testified that on 20.08.1998, appellant M.N.Sharma demanded illegal
gratification of ` 6500/- from him for clearing the three sale deeds and
one partition deed submitted by him in his capacity as Deed Writer for
registration. Learned senior counsels submitted that in absence of
categoric evidence in this regard, it cannot be said that the initial
demand for bribe, which led to filing of complaint is established.
11. Learned counsel for CBI, countering the argument, submitted that
the fact that complainant Vijay Kumar had himself gone to CBI office to
his lodge his hand-written complaint Ex.PW6/A by itself is sufficient
proof of initial demand for illegal gratification made by the appellant
M.N.Sharma. She submitted that if there was no demand, there was no
occasion for the complainant to file a complaint against the appellant
M.N.Sharma, particularly when the complainant was working as Deed
Writer in the Sub-Registrar office and he could not have taken a risk to
file a false complaint against the Sub-Registrar to the detriment of his
career. Learned counsel for the CBI further submitted that correctness
of allegation in the complaint Ex.PW6/A cannot be doubted for the
reason that there is nothing on the record to suggest any motive or
reason on the part of the complainant to lodge a false report against
appellant M.N.Sharma.
12. There is no merit in the submission of the learned Prosecutor.
Filing of complaint with CBI by the complainant cannot be taken as a
substitute for the evidence of proof of allegations contained therein.
The complaint Ex.PW6/A is a document containing allegation of
demand of illegal gratification made by the appellant M.N.Sharma.
Prosecution was required to prove the allegation made in the complaint
by convincing evidence, which the prosecution has failed to do.
Therefore, I find it difficult to accept that the prosecution has been able
to establish the initial demand.
13. Next question for determination is whether or not prosecution
has been able to establish the subsequent demand for illegal
gratification by the appellant M.N.Sharma. The case of the
prosecution, as per the charge sheet is that at the time of the raid,
complainant Vijay Kumar negotiated the bribe amount with the
appellant M.N.Sharma, who ultimately reduced the demand from `
6500/- to ` 6000/- and directed him to pay the demanded money to his
Peon Roshan Lal (other appellant). To prove this, prosecution
examined the complainant Vijay Kumar (PW6), Shadow Witness Arshad
Ali (PW4) and Jagbir Singh, LDC (PW8).
14. Complainant Vijay Kumar has deposed that on 28.08.1998, on
reaching of office of Sub-Registrar Rampura, he met one of his clients
who requested him to help him for some work. He got his work done
and thereafter, he met the Sub-Registrar M.N.Sharma (appellant) and
told him that certain documents submitted by him with the office were
pending for registration. Appellant M.N.Sharma told him to come after
lunch. Thereafter, at 3.30 p.m., he along with the shadow witness
again went inside the office of Sub-Registrar and enquired from him
about his documents pending registration. The Sub-Registrar enquired
about the identity of the shadow witness, whom he introduced as his
employee and thereafter the Sub-Registrar asked him, shadow witness
and others to go out of the office and come one by one for their work.
Five/Seven minutes later, when those people left, he again entered the
office of Sub-Registrar and insisted that the shadow witness may be
allowed to be present in the room but the Sub-Registrar did not agree.
Vijay Kumar (complainant) further stated that since 2/3 persons were
sitting at the table of Sub-Registrar, he directed him to go and talk with
the dealing clerk. Thus, he went to the seat of dealing clerk and
enquired about his documents. On this, the dealing clerk asked him if
he had brought the money to which he replied in the affirmative.
Thereafter he showed the slips pertaining to those documents and the
money to the dealing clerk, who told him to put the currency notes on
the table. He accordingly placed the tainted ` 6000/- on the table and
the dealing clerk, after verification of the slips handed over by him took
out his documents. Jagbir Singh, LDC (dealing clerk) was examined as
PW8. According to him, on 28.08.1998, complainant Vijay Kumar
Monga came to Sub-Registrar office for registration of documents and
after depositing the registration fee, he took the receipt and left after
leaving the documents which were to be registered. Complainant
came again to the office of Sub-Registrar after 2 or 2½ hours and he
took out some receipts from his pocket pertaining to some documents
earlier submitted by him for registration. Along with those receipts, he
took out the shadow money and placed it on the table. Thereafter, he
handed over receipts to him and on the basis of those receipts, he took
out the relevant documents and directed Roshan Lal, appellant to
stamp those documents.
15. There is a marked contradiction in the testimonies of complainant
Vijay Kumar and PW8 Jagbir Singh in respect of the manner in which
the transaction took place. Therefore, I do not find it safe to rely upon
the testimony of either one. Otherwise also, neither complainant Vijay
Kumar nor PW8 Jagbir Singh has stated that M.N.Sharma negotiated
the amount of bribe with the complainant and reduced his demand
from ` 6500 to ` 6000/-, nor anyone of them has stated in so many
words that he had directed the complainant to go and pay money
either to PW8 or to the appellant Roshan Lal. So far as shadow witness
is concerned, his stand is that he was not allowed to remain in the
room, therefore, he could not witness the transaction of subsequent
demand at the time of raid, if at all, it was made.
16. The learned Special Judge has raised an inference of the demand
made by appellant M.N.Sharma on the strength of testimony of TLO
and the evidence regarding the hand wash and pocket wash of
appellant Roshan Lal having turned pink, as also the CFSL report which
certified that the samples of hand washes tested positive for the
presence of phenolphthalein and sodium carbonate.
17. While dealing with the issue of subsequent demand, the learned
Special Judge arrived at a conclusion favourable to the prosecution and
observed as under:-
"32. .......In respect of the post trap proceedings, the complainant has
stated before this court that when he first contacted the accused No. 1
i.e. the Sub-Registrar, accused No. 1 asked him to come after lunch as
it was public dealing time and when he went after lunch at about 3.00
or 3.30 pm alongwith the shadow witness and inquired about the
registration of the documents from accused No. 1, the Sub-Registrar
inquired about the identity of the shadow witness and though he
introduced the shadow witness as his employee, the accused No.1
asked shadow witness to go outside despite the fact that he insisted to
let him be present, the Sub-Registrar did not agree and sent the
shadow witness out. This conduct of accused No. 1 in asking the
complainant first to come after lunch and then insisting for shadow
witness to go out despite being insisted by the complainant that he is
his employee, is a strong circumstance to infer that there was some
secret deal to be conducted between accused No. 1 and the
complainant and presence of shadow witness was considered
unwanted at that time by accused No. 1. Further the statement of the
complainant that as directed by Sub-Registrar i.e. accused no. 1, he
contacted the Dealing Clerk who inquired if he had brought the money
to which he replied in affirmative and Dealing Clerk gesticulated with
his hand asking him to put the notes on the table and then he put the
notes on the table and thereafter the Dealing Clerk took out the
respective documents, is sufficient to indicate that purpose of asking
for the GC notes was to fulfil the demand of bribe and not otherwise.
Here the improvement made by the complainant in the initial case of
the prosecution is only to the extent that instead of naming the accused
No. 2 to be the person who lifted the bribe money and kept in his shirt
pocket, he has named Jagbir Singh, the Dealing Clerk who has been
examined as PW-6 in this case. Here the question arises that who has
received the bribe and whether that person has received the bribe at the
instructions of accused No.1. The washes of hand and left side shirt
pocket of accused Roshan Lal have given positive test for presence of
phenolphthalein and sodium carbonate. The presence of PW-6
Sh.Jagbir Singh at the time of trap has been admitted by the panch
witnesses and he has also signed the recovery memo Ex.PW 3/f.
Obviously the complainant has named Jagbir Singh to be the person
who asked for the bribe for the reason that he wanted to show favour
to the accused persons. In the complaint Ex.PW6/A, the demand was
allegedly made only be accused no.1 and there was no occasion for the
prosecution to arrest the Peon, Roshan Lal(A2) in this case had the
recovery not been effected from him. So far as statement of Jagbir
Singh is concerned, he has nowhere stated that he asked from the
complainant whether he has brought the money or gesticulated with
hand to demand the bribe. The statement of the complainant that he
was under instructions and the Dealing Clerk was in the process of
taking the documents and he had put the notes on the table, he gave
signal to the witnesses who further transmitted the same to the raiding
party, is sufficient to prove that the bribe money has been given by the
complainant only on the instructions of accused no.1 and on
completion of transaction, the signal was given. So the improvement
in this regard by the complainant by replacing Jagbir Singh with
Roshan Lal seems to be with a view to help the accused persons,
otherwise the complainant would have raised objection at the spot
itself as to why a Class-IV employee ie. Roshan Lal, Peon is being
arrested when he had no role to play in the matter and why the real
culprit i.e. the Dealing Clerk Sh.Jagbir Singh is not being arrested
though he was demanding the bribe under instructions from accused
No.1. The trap was laid in August, 1998, but till his examination as a
witness before this Court on 11.8.2003, the complainant has not
brought either to the notice of department of the accused persons or to
this Court that PW8 Jagbir had demanded and accepted the bribe who
has been let of by CBI and accused No.1 has been falsely implicated."
18. The above observations of the learned Special Judge are based
upon surmises and conjectures. Learned Special Judge has ignored the
fact that neither the complainant nor PW8 Jagbir Singh has supported
the theory of subsequent demand at the time of raid. The Trial Judge
has tried to build up a theory on the basis of certain incriminating
circumstances which fall short of proof beyond the shadow of
reasonable doubt. Merely for the reason that the appellant
M.N.Sharma had asked the shadow witness and other persons to go out
of the room, it cannot be inferred that he had guilty intent, particularly
when according to the complainant there were 2 or 3 persons sitting in
the same room at the relevant time. A possibility cannot be ruled out
that the appellant asked the shadow witness to go out of the room as
he did not want unnecessary rush of people in his office at the time of
work. Further, according to the complainant, when he asked about his
documents pending registration, the appellant M.N.Sharma directed
him to contact the dealing clerk. This circumstance by no logic can
give a rise to an inference that the complainant was forwarded to the
dealing clerk with an ulterior motive. Admittedly, the documents in
question were submitted for registration much earlier and as per the
complainant, he had been given receipts for deposit of those
documents so that after the completion of registration work, he may
come and collect those documents. Since the complainant asked the
appellant M.N.Sharma about his documents submitted for registration,
it was natural for him to direct the complainant to go and contact the
dealing clerk and take his documents, if those were ready, after giving
the receipts. Thus, in my view, the prosecution has failed to establish
subsequent demand beyond reasonable doubt.
19. Learned Prosecutor has contended that the complainant was
working as a Deed Writer in the office of Sub-Registrar and his
profession depended upon the goodwill and amicable relationship with
the staff working at the Office of Sub-Registrar. Therefore, it is highly
improbable that the complainant would have filed a false complaint
against the appellant M.N.Sharma unless a demand for illegal
gratification was made. The argument of learned Prosecutor, at the
first blush, appears to be attractive but there is a flip side to this
argument. A possibility cannot be ruled out that the complainant was
nursing some grudge against the appellant M.N.Sharma in respect of
some previous official dealing and for that reason, in order to teach a
lesson to the appellant, he lodged a false complaint against the
appellant. Thus, filing of complaint Ex.PW6/A by the complainant
cannot be taken as a proof of demand of illegal gratification by the
appellant M.N.Sharma in absence of any evidence for demand of illegal
gratification made by the appellant M.N.Sharma or the other appellant.
20. Coming to the recovery of tainted money, case of the prosecution
is that when the raiding party entered the office of the appellant
M.N.Sharma on the receipt of signal, the appellants got perplexed and
appellant Roshan Lal asked for forgiveness, saying that he had
accepted the money on the directions of appellant M.N.Sharma.
Aforesaid statement of Roshan Lal, if at all he made it, is inadmissible
in evidence being the confessional statement made in presence of a
police officer. Coming to evidence of recovery, neither the
complainant Vijay Kumar nor panch witnesses Devender Kumar and
Arshad Ali nor PW8 Jagbir Singh, LDC have supported the case of
prosecution regarding the recovery of tainted money from the
possession of Roshan Lal. The case of the prosecution thus rests on
solitary testimony of Trap Laying Officer, which remains
uncorroborated. Perusal of the recovery memo Ex.PW3/F reveals that
besides the aforesaid four public witnesses, other members of the
raiding party, namely, Inspector P.K.Gunwant, SI Alok Kumar, Inspector
Virender Trehan and Madhusudan Singhal, DSP are also signatories of
the recovery memo. Though, as per the case of prosecution, they were
present at the time of recovery of tainted money, none of them have
been examined by the prosecution to corroborate the version of Trap
Laying Officer P. Balachandran. Prosecution has not been able to give
any cogent reason for non-production of above referred trap team
officers to corroborate the version of PW7 P.Balachandran, particularly
when all the public witnesses had failed to support the prosecution
case. In absence of any explanation in this regard, I find it unsafe to
rely upon the solitary testimony of Inspector P.Balachandran (PW7)
particularly when he also has not categorically stated in his testimony
that tainted money was recovered from the possession of appellant
Roshan Lal nor has he stated the name of the person who recovered
the tainted money from the possession of the appellant Roshan Lal.
21. Learned Special Judge found the testimony of Trap Laying Officer
reliable as it found corroboration from the fact that the respective hand
washes and shirt pocket wash of the appellant, when taken in sodium
carbonate solution, turned pink and those washes on chemical
analysis, as per the CFSL report, gave positive test for presence of
phenolphthalein and sodium carbonate. Thus, it appears that from this
learned Special Judge inferred that the prosecution has been able to
establish the presence of phenolphthalein on the hands as well as
pocket of the shirt of appellant Roshan Lal, which could be possible
only if Roshan Lal had handled the tainted money and kept in his
pocket. No doubt, this circumstance gives rise to a suspicion that
appellant Roshan Lal might have accepted the tainted money from the
complainant, however, suspicion by no means is a substitute for proof.
Thus, in absence of any definite evidence of acceptance of tainted
money by the appellant Roshan Lal, I find that the prosecution has
failed to even prove the recovery and acceptance of tainted money by
the appellant Roshan Lal.
22. In view of the above, I find that the prosecution has failed to
establish either the demand of illegal gratification by the appellant
M.N.Sharma or acceptance of illegal gratification by the appellant
Roshan Lal on the direction of the appellant M.N.Sharma. Thus, I find it
difficult to sustain the impugned judgment of conviction and order on
sentence. Both the appeals are allowed. The impugned judgment of
conviction and order on sentence are set aside and the appellants are
acquitted of the charges under Section 7 and 13(2) read with Section
13(1)(d) of the P.C.Act as well as Section 120B IPC, giving them benefit
of doubt.
23. Appeals are disposed of accordingly.
(AJIT BHARIHOKE)
JUDGE
OCTOBER 08, 2010
akb/pst/ks
