P.K. Gupta vs C.B.I
2011 Latest Caselaw 3718 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            CRL. APPEAL NO.90/2002

                                             RESERVED ON: JULY 08, 2011
%                                     DATE OF DECISION: August 04, 2011

P.K. GUPTA                                                ....APPELLANT
               THROUGH:    Mr. Sidharth Luthra, Sr. Advocate with Mr. Pramod
                           Kumar Dubey, Mr. Nitesh Mehra, Mr. Ankur Garg,
                           Mr. Yashpreet Singh & Mr. Ashish Dixit, Advocates

               VERSUS

C.B.I                                                     ....RESPONDENT
               THROUGH:    Mr. Narender Mann, Special Public Prosecutor for
                           CBI.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

1.      Whether reporters of Local papers be -Yes
        allowed to see the judgment?

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

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


M.L. MEHTA, J.

*

1. The appellant, a Junior Engineer, working with MCD at the relevant

time, was convicted by learned Special Judge Shri R.K. Gauba under Section

120B, 161 of IPC and under Section 5(1) (d) read with Section 5(2) of

Prevention of Corruption Act, 1947 (for short, "the Act"). He has been

sentenced to undergo RI for three years with fine of `5,00/- under Section 161

IPC and RI for four years with fine of `500/- under Section 5(2) of the Act. The

substantive sentences were to run concurrently. In default of payment of fine,

he was to undergo additional RI for a period of three months on each count.

The appeal is directed against the impugned order of conviction and

sentence respectively dated 30th January 2002 and 31st January 2002. The co-

accused Phool Singh (PS), who was working as Beldar in the MCD at the

relevant time has since expired and the proceedings qua him stood abated in

the trial court.

2. The prosecution case as set out in the charge-sheet is that on 26th

November 1986, a complaint dated 26th November 1988 was made by

complainant Amarnath Babbar (PW2). It was alleged therein that at about 4

pm on 22nd November 1986, when he was carrying out repairs in his shop at

Kishan Ganj Market, the appellant came along with Beldar Phool Singh (PS)

and demanded `1,000/- to permit him to carry repairs and he also directed

the money to be handed over to co-accused PS. On 25th November 1986, the

appellant again along with PS came to his shop in the evening and asked for

the money. Though, at the request made by the complainant, the appellant

agreed to accept `700/- to be paid by next evening to PS, however,

complainant could arrange only `500/- at the time of making the complaint.

On the basis of this complaint, an FIR No. RC 73/86 (Ex.PW7/A) was

registered. Inspector R.S. Jaggi (PW7), who was entrusted the same, decided

to lay a trap. Two independent witnesses R. Murli (PW4) and BS Dahiya

(PW6), both employees of L&DO, Nirman Bhawan were associated. In

addition, the trap party included Inspectors P. Lal and R.N. Azad and SI Syed

Wazaullah of CBI. PW4 R. Murali was to act as a shadow witness. A micro

tape recorder was given to PW2 to record the conversation between him and

the accused persons. The complainant (PW2), as directed, had arranged five

notes of `100/- each. The number of these currency notes were noted down

in the handing over memo (Ex.PW2/B). The currency notes were given

phenolphthalein powder treatment. The usual demonstration as to how the

powder will react with sodium carbonate solution was given by Inspector

Azad. The trap party reached at the shop of complainant (PW2) and at about

4.45 pm, co-accused PS came to the shop and asked the complainant for the

money `500/- which was passed onto him by the complainant (PW2) who also

told him that the remaining `200/- shall be given after one or two days.

Thereafter, the complainant gave pre-determined signal, whereupon

members of the trap party reached there and PW7 caught hold of PS, who

immediately dropped the currency notes. The procedure regarding taking of

hand wash of co-accused PS and the rest of the post-trap proceedings like

taking hand wash, seizure of the tainted money, preparation of recovery

memo etc. formed part of the post-trap recovery memo (Ex.PW2/D). The

hand wash of both the hands of co-accused PS turned pink. From the

personal search of PS, another sum of `500/- was also recovered. Micro-

cassette tape recorder was also recovered from PW2. Since the money was

allegedly to be passed on to the appellant, another handing over memo

(Ex.PW4/D) was prepared for `1000/-, with `500/- given to PS by the

complainant (PW2) and `500/- collected by co-accused PS from another

person. Thereafter, the trap party left for the office of the appellant and

reached there at about 6 pm. Co-accused PS went to the office of appellant

followed by Inspector P. Lal. The shadow witnesses PW4 R. Murli waited near

the door of the office. It is alleged that the appellant accepted `1000/- from

PS with his right hand and put the same in his shirt pocket. Thereafter PW4 R.

Murli gave a pre-arranged signal and the appellant was caught hold by PW7

Inspector Jaggi and Inspector P. Lal. On the directions of Inspector Jaggi,

Inspector Azad recovered bribe money from left pocket of appellant and the

same was handed over to PW6 B.S. Dahiya for tallying the numbers with

currency notes already noted. Hand washes were taken which gave positive

result. The rest of the formalities relating to preparation of recovery memo,

personal search memo, site plan, etc. were conducted and thereafter both,

the appellant and co-accused PS were arrested. However, co-accused PS was

released there on bail. After obtaining sanction for prosecution of the

appellant as also of PS, they were sent to face prosecution.

3. Both the accused persons (i.e. the appellant and the co-accused PS)

were charged under Section 120B, 161 IPC and under Section 5((1) (d)

punishable under Section 5 (2) of the Act, to which they pleaded not guilty.

4. The prosecution to prove its case examined 7 witnesses. However,

Inspectors P. Lal, R.N. Azad and SI Syed were not examined.

5. Thereafter the statements of both accused persons (appellant and co-

accused PS) were recorded separately under Section 313 Cr.P.C. The

appellant admitted to be working as JE in the MCD at the relevant date. He

expressed his ignorance about evidence concerning complaint by PW2 to CBI

and the pre-trap proceedings as also the recovery of `500/- from PS. He

admitted that co-accused PS had come to his room. He stated that he was

going to the office of Zonal Engineer to deliver certain documents when he

was caught hold of by CBI officials in the gallery and that his shirt was

removed near CBI office, CGO Complex. He denied the validity of the

sanction, terming the same to be illegal and accorded without application of

mind. He also stated that co-accused PS was not working directly under his

control, but had been deputed with other Beldar on demolition vehicle under

the supervision of Zonal Engineer. He led no evidence in defence. Co-accused

PS in his statement under Section 313 Cr.P.C also admitted that he was

posted as Beldar with MCD at the relevant time. He admitted the evidence

about his visit to the shop of complainant on 22nd November in the company

of appellant, but added that he had been asked by the appellant to stand

near the scooter. He denied evidence about demand of bribe or haggling over

the amount of money. He showed ignorance about the complaint of PW2 to

CBI and the preparations for laying trap. He also admitted visit to the shop of

complainant on 26th November at about 4.45 pm, but stated that he had been

sent there by the appellant. He also admitted evidence about he having

received the currency notes (Ex. P1 to P5) worth `500/- from PW2 and also he

having thrown the same on the ground. He admitted evidence about he

having confirmed, to come to collect the money at the instance of Mr. Gupta,

who was waiting in the office. He claimed that he had informed the CBI

officials at that very stage that he had come to collect the money on the

instructions of the appellant. He admitted that five other currency notes of

`100/- were recovered from his personal search. He further admitted giving of

`1,000/- by CBI to him with instructions to pass on the same to the appellant

in the event of specific demand and having gone with other members of the

trap party to the office of appellant at about 6 pm. He stated the manner as

to how he passed on the said money to appellant, who accepted the same

and kept in his pocket, followed by CBI officials, catching hold of appellant.

He did not admit the evidence about conversation between him and the

appellant at that stage and showed ignorance about remaining evidence. He

claimed that he had been falsely implicated by the complainant who was

mixed up with the appellant. He referred to his earlier visits to the shop of

complainant PW2 in the company of appellant on 22-11-1986 and 25-11-1986

when appellant had taken him along on his scooter, but claimed that he had

been asked by the appellant to stand on a road side, while the appellant had

gone on the pretext of talking with someone. He stated that he did not know

with whom the appellant met or talked. He stated that on 25th November,

1986 on return from Kishan Ganj when he was standing near the scooter, the

appellant had told him that he would be sending him to the shop of

complainant (PW2) to collect money. He stated that he after having collected

`500/- from a scooter repair shop in Pratap Nagar, had gone to the shop of

complainant (PW2) and collected the money. He stated that he did not know

as to what was the purpose of collecting money and he denied that he had

any conversation with the complainant (PW2) and pleaded ignorance if

conversation had been recorded in any cassette. He also questioned the

correctness of conversation, stating that no such talks ever took place

between him and the complainant (PW2) and the tape had been tampered

with. He stated that the cassette (Ex.P11) did not contain his voice. He

declined to lead any evidence in defence.

6. I have heard learned Senior Counsel Shri Siddharth Luthra for the

appellant as well as Mr. Narender Mann learned Senior Public Prosecutor for

CBI and perused the record.

7. Learned Senior Counsel Mr. Luthra at the outset submits that there

was no demand of bribe ever made by the appellant and so there was no

question of acceptance thereof by him. He submits that the recovery of

tainted money from the appellant was planted and in any case, that alone in

the facts and circumstances, was not enough to prove the guilt of the

appellant. In this regard, he also submits that the giving of `1,000/- by co-

accused PS to the appellant would not amount to demand or acceptance of

bribe money by the appellant.

8. He further submits that even otherwise the prosecution has failed to

prove any motive or the reason for demand, nor there was any reason or

occasion for the complainant to pay the bribe to the appellant. However, the

learned Prosecutor submits that the appellant had made demand of bribe

money from the complainant through his co-accused PS. This fact was so

specifically stated and maintained by the complainant, PW-2 and so admitted

by co-accused PS in his statement under Section 313 Cr.P.C. He submits that

the recovery of tainted money from the appellant immediately after the same

was accepted by co-accused PS from the complainant, would raise a

presumption of guilt of the accused/appellant.

9. I have given my considered thought to the submissions made by

learned counsel for the parties and perused the record.

10. Before proceeding to advert to the submissions of the learned counsel

for the parties, it may be useful to see the ingredients of Section 161 IPC and

also Section 5(1) (d) of the Act. Section 161 IPC has since repealed by Section

7 of the Act. The essential ingredients of Section 7 are:

(i) that the person accepting the gratification should be a public

servant;

(ii) that he should accept the gratification for himself and the

gratification should be as a motive or reward for doing or

forbearing to do any official act or for showing or forbearing to

show, in the exercise of his official function, favour or disfavour to

any person.

Section 5(1)(d) of the Act of 1947 being pari materia to Section 13(1)

(d) of the Act of 1988, the essential ingredients of Section 13(1) (d) of the Act

are:

       (i)     that he should have been a public servant;

       (ii)    that he should have used corrupt or illegal means or otherwise

               abused his position as such public servant; and

(iii) that he should have obtained a valuable thing or pecuniary

advantage for himself or for any other person.

11. There is no dispute that the appellant was a public servant at the

relevant time. The question for determination would be as to whether he had

accepted the gratification for doing favour to complainant in exercise of his

official function or that he has used illegal means or otherwise abused his

position as such public servant and obtained valuable thing or pecuniary

advantage.

12. In the case of C.K. Damodaran Nair v Govt. of India 1997 Crl.L.J. 739,

the Supreme Court considered the word "obtain" used in Section 5(1)(d) and

held as under:

"12. The position will, however, be different so far as an offence under Section 5(1)(d) read with Section 5(2) of the Act is concerned. For such an offence, prosecution has to prove that the accused "obtained the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption under Section 4(1) of the Act as it is available only in respect of offences under Section 5(1)(a) and (b)--and not under Section 5(1)(c), (d) or

(e) of the Act, "Obtain" means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under Section 5(1)(d) of the Act unlike an offence under Section 161 IPC, which as noticed above

can be, established by proof of either "acceptance" or "obtainment".

13. In the case of M.W. Mohiuddin v State of Maharashtra 1995 (2) SCR

864, the Supreme Court referring to the case of Ram Krishan and another

v State of Delhi (1956) SCR 183 as well as dictionary meaning of the word

"obtain" observed as under:

"...whether there was an acceptance of what is given as a bribe and whether there was an effort on the part of the receiver to obtain the pecuniary advantage by way of acceptance of the bribe depends on the facts and circumstances of each case. In that case, the Court held that it was proved that accused made a demand and also got the affirmation from the complainant that he had brought the demanded money and at his instance, the complainant wrapped the money in the handkerchief given by the accused and placed the same in the bag which was brought by the accused and as asked by him, these steps have been taken into consideration in arriving at the conclusion that the accused had in fact "obtained" the pecuniary advantage, namely, that he received the illegal gratification. Therefore, the Court upheld the conviction under Section 13(1)(d).

14. In A. Subair v State of Kerala, (2009) 6 SCC 587, the Supreme

Court held as under:

"The legal position is no more res integra that primary requisite of an offence under Section 13(1)(d) of the Act is

proof of a demand or request of a valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be established."

15. It is settled law that mere recovery of bribe money, divorced from the

circumstances under which it is paid, is not sufficient to convict the accused

when the substantial evidence of demand and acceptance in the case is not

reliable. (See M. Narsinga Rao v. State of AP 2001(1) SCC 691. In view of

above propositions of law, it is recapitulated that the statutory presumption

under Section 20 of the Act is available for the offence punishable under

Section 7 or Section 11 and not for Clause (d) of Section 13(1). For offence

under Section 13(1)(d), it will be required to be proved that some initiative

was taken by a person who receives and in that context demand or request

from him will be a pre-requisite.

16. In view of above proposition of law, it may be reiterated that for an

offence under Section 161 IPC and Section 5(1)(d) of the Act of 1947, it will

be required to be proved that some initiative was taken by the receiver

namely the appellant. A demand or request emanating from the appellant

and his accepting the tainted money would be a prerequisite for establishing

the guilt under Section 161 IPC and Section 5(1) (d) of the Act or Section 7

and 13(1) (d) of the Act of 1988.

16. According to complainant PW2, it was PS who came to demand the

money on 22nd November 1986 and 25th November, 1986. He in clear terms

not stated that either appellant himself demanded or was present at the time

of demand by PS. As per the complaint, appellant had come to his shop with

PS on 22nd November 1986 demanding `1000/- and had also come on 25th

November 1986 on which date the complainant, PW-2 stated that he was

unable to pay `1000/- and the appellant allegedly reduced the amount to

`700/-. During his statement in the Court, PW2, however, failed to identify the

appellant as the person who had allegedly come to his shop on 22 nd

November 1986 and 25th November 1986. He stated that the demand of

`1000/- on 22nd November 1986 was made by PS and not by the appellant. He

also stated that on 25th November 1986, it was PS who had come and

demanded `1,000/- and the other person accompanying him was sitting on

the scooter at a distance from his shop. When he stated to PS that the

amount was excessive, he, on the asking of PS, went to talk to that person

sitting on the scooter with his helmet on his head. PW2 stated that he could

not say whether that person who was sitting on the scooter with the helmet

was the appellant. He failed to identify the appellant even after he was made

to wear helmet in the court.

17. Further PW2 in his cross-examination by the counsel for PS, in reply to

a question regarding inconsistencies between his complaint dated 26 th

November 1986 and the statement made in the court, stated that he had

informed the CBI all the actual facts, but he had been asked to write the

complaint in the manner dictated by CBI. He maintained that it was on the

dictate of CBI that it was mentioned by him in the complaint that J.E. Mr. P.K.

Gupta (the appellant) demanded money from him. He maintained that

complaint Ex.PW2/A had been dictated to him by CBI Inspector Jaggi (PW7) on

26th November 1986.

18. PW2 also in his cross examination stated that he came to know of the

appellant from persons sitting in his shop on 25th November 1986 and his

neighbour, Mr. Batra who told him the name of J.E. of the area as P.K. Gupta.

This fact would show that the complainant was not aware as to who Mr. P.K.

Gupta was, but it was on the saying of persons present in his shop and also

one neighbour Mr. Batra that P.K. Gupta was the J.E. of the area and

thereupon he wrote his name in the complaint given to CBI. The fact that he

did not know the other person as P.K. Gupta and also that he could not

identify him would also be borne from his statement when he stated that he

could not recognize him and that he had come to know in the court only that

the other accused who was sitting on the scooter was P.K. Gupta. He stated

that it was accused PS who had come to him and objected to his carrying out

the repairs. In a question by learned Senior Public Prosecutor, PW2 stated

that since P.K. Gupta is present in the Court so he could identify him, but as

per the incident, he could not say if he was the one who had accompanied co-

accused PS. He maintained in cross examination that he had mentioned the

name of P.K. Gupta because he had been told by the people of the area that

J.E. of MCD of that area was P.K. Gupta. Again in an answer to a question he

could not say whether the man who accompanied co-accused PS on 22nd

November 1986 and 25th November 1986 was the one who was present in the

Court namely P.K. Gupta, the appellant. He specifically denied the suggestion

that it was the appellant who had come with PS on 22nd November 1986 and

25th November 1986. He admitted that it was accused PS who had come to

his shop on 25th November 1986 at about 4.45 pm and he had enquired from

him as to who he was. On this PS told him that he was sent by J.E. P.K Gupta.

In his cross examination by the learned Prosecutor, in an answer to a

suggestion that he had admitted that he had mentioned in the complaint

Ex.PW2/A that on 22nd November 1986 when he was getting his shop

repaired, J.E. P.K. Gupta along with PS had arrived there and told him that he

could not carry the repairs and that this fact was recorded by him in his

complaint. This admission would have no relevance in view of the fact that he

had stated that he did not know the name of J.E. as P.K. Gupta, which he had

learnt from the customers and also his neighbour and further that the name

of P.K. Gupta was made in the complaint on the dictation by CBI official and

also that he came to know his name during the court proceedings.

19. With regard to the incident of 26th November 1986, PW2 categorically

stated that it was PS who had demanded the money and he gave `500/- to

him which he accepted in his right hand and kept the same in his left hand.

He also told him that the balance of `200/- would be given in a day or two. He

also admitted that it was accused PS who gave him the assurance that he

would not be in a problem in carrying repairs/ construction work. In the cross

examination on behalf of accused PS, it was suggested to him that on 22nd

November 1986, he did not have any talk whatsoever with other person who

continued to remain sitting throughout on the parked scooter, PW2 admitted

the same to be correct. In an answer to another question that the said person

who was sitting on the scooter asked him "Paiso Ka Intjam Ho Gaya Hain PS

Ka De Dena", to which PW2 stated that this was not stated in the complaint

Ex.PW2/A, though it was found recorded therein. He explained that he had

himself not stated so even on 26th November 1986, but it was dictated to

him. PW2 stated that there are certain changes in complaint Ex.PW2/A

regarding the facts narrated by him to CBI, which he categorically stated was

as per dictation by CBI official. He stated that CBI officials told him that the

complaint has to be written in this manner that P.K. Gupta had demanded

money from him.

20. In his cross examination on behalf of co-accused PS, it was suggested

to him that the person with whom he had talked on 25th November 1986, was

the appellant, now present in the Court and that he had no talks whatsoever

with accused PS on those dates. He denied these suggestions to be correct.

He also denied that he knew the appellant from even prior to 22nd November

1986 as the J.E. of the area. It is noted that the plea sought to be taken by

the co-accused PS in this regard was inconsistent inasmuch as on the one

hand his case was that he had been sent by the appellant and it was at the

instance of the appellant that he had demanded and accepted the money

from the complainant, PW2. On the other hand it was sought to be put to

PW2 that PS had no talks with appellant on these dates. It was also admitted

by PW2 in his version that there was no reference to the name of the

appellant as P.K. Gupta, but there was only reference to one "Guptaji". It was

stated and maintained by PW2 that accused PS was told by CBI that when he

will give money to the appellant, he would be released. From the lengthy

testimony of PW2 which continued for several dates, nothing could be elicited

by learned Prosecutor or learned counsel for the accused PS that any demand

of bribe was made by the appellant. Throughout he maintained the demand

of bribe money having emanated from co-accused PS, though the latter had

been claiming the same to be at the instance of "Guptaji". It was at the fag

end of his having undergone lengthy cross examination that PW2 in his re-

examination by learned Prosecutor stated that by "Guptaji" he meant "P.K.

Gupta", but that was of no consequence in the light of his entire testimony as

discussed above.

21. The fact that PW2 stated and maintained that CBI official told co-

accused PS to give the money to the appellant and in that event he would be

released, and in fact was released, would have prompted co-accused PS to

hand over the bribe money to the appellant to save himself. It was also the

case of the prosecution and so deposed by PW2, PW4, PW6 and PW7 that the

money was to be paid by co-accused PS to the appellant on a specific

demand. It is gathered from the evidence of these witnesses that PW4 R.

Murali who was to act as a shadow witness in the transaction of giving of

money by the co-accused PS to the appellant, did not go inside the room, but

remained standing outside the door of the room. It was the co-accused PS

alone who had gone inside the room and gave money to the appellant.

Admittedly at the time of giving of money by the co-accused PS to the

appellant, no conversation took place between them. As per PW4 R. Murali,

the money given by co-accused PS was taken by the appellant and kept in his

pocket. There was nothing on record to suggest that there was any demand

by appellant. There is no evidence relating to demand emanating from the

appellant at this stage as well. There was no conversation between the two at

this stage. It is entirely improbable that accused PS while giving money to

appellant would not speak with him and tell him that he has made collections

instructed or that appellant would not inquire from him about the details of

the manner of collections. Accused PS knew that PW-4 is present near the

door. He would have spoken with the appellant to impress upon PW-4 that he

actually collected money at the instance of the appellant. He was instructed

by the CBI to pass on the money to appellant on specific demand, but he

without speaking with the appellant or any act demonstrating that he had

actually collected the money on his behalf gave money to him. It all casts

serious doubt on his version that he demanded and accepted the money on

behalf of the appellant. In these circumstances the taking of money by the

appellant cannot be acceptance of bribe money in pursuance of any demand

by appellant. Accused PS in answer to a question in his statement under

Section 313 Cr.P.C also indicated that no such demand at that time was made

by the appellant. In the background of the fact that there was no reliable

evidence regarding initial demand made by the appellant from the

complainant, PW2, and there being no evidence of any demand being made

by the appellant from accused PS, the mere giving of money by PS to the

appellant cannot be taken as acceptance of bribe by the appellant from co-

accused PS. Neither from his action in accepting the money from accused PS

nor from his conduct, it could be said with certainty that the appellant had

accepted the money to be as bribe money. In the circumstances, it could not

be ruled out that accused PS had demanded and accepted the money from

the complainant in the name of the appellant. The entire evidence as led by

the prosecution in this regard was shaky and thus unreliable.

22. In view of such evidence, the recovery of tainted money from the

appellant alone could not be said to be sufficient to hold him guilty of the

offences under Section 161 IPC and Section 5(1)(d) of the Act. On this ground

alone, the appellant was entitled to acquittal on account of benefit of doubt.

23. In addition to above, In my view there are inherent and unexplained

discrepancies and contradictions which appeared in the versions set up by

different witnesses examined by the prosecution;

(i) the complainant PW2 stated that from CBI Office they went to Nirman

Bhawan from where PW4 R. Murali and PW6 Dahiya were picked up on the

way to his shop. He stated that the pre-raid proceedings were completed

before leaving for Nirman Bhawan. If that was so, these proceedings were

completed in the CBI office in the absence of PW4 and PW6;

(ii) PW4 R. Murali stated that he had gone to the office of CBI one day

prior to the present raid i.e. 26th November 1986. He stated that on 25th

November 1986 in respect to the same complaint a raid was organized by the

same Inspector, but it could not materialize because the appellant Mr. P.K.

Gupta was not present in his office. He stated that before proceeding on 25th

November 1986, he was shown the written complaint of PW2 Amarnath, but

he could not say if it was dated 25th November 1986 or any other date. He

stated that on 25th November 1986, complainant, PW2 did not accompany the

raiding party to the office of P.K. Gupta and he did not know where he was at

that time. He further stated that the demonstration was given to them at CBI

office on 25th November 1986 and handing over memo was also prepared on

25th November 1986 and that these proceedings were not repeated on 26th

November 1986. He maintained that on 25th November 1986 there were 5-6

persons forming part of the raiding party, who went to the office of the

appellant P.K. Gupta. In his cross examination also he maintained about the

raiding party visiting the office of the appellant on 25 th November 1986 for

raid and that demonstration was given to them in CBI office on 25th

November 1986 i.e. one day prior to the arrest of the accused persons. He

did not remember as to when he saw the complainant, PW2 for the first time

on 26th November 1986 and where it was. He did not remember from where

he had gone to the shop of complainant, PW-2 on 26th November 1986. In

answer to a specific question, he stated that he could not admit or deny that

he went to the CBI office in connection with this case on 26 th November 1986

and not on 25th November 1986. He categorically denied that he did not visit

the CBI office one day prior to the arrest of the accused persons or that no

proceedings pertaining to investigation of this case took place one day prior

to the date of arrest of the accused persons. He maintained that he was sure

that he visited CBI office one day prior to the arrest of the accused persons.

This part of the testimony of PW4 remained unexplained by the prosecution

and creates a serious doubt in the case. This could not be overlooked in view

of the fact that PW2 had stated that the complaint was dictated by the CBI

officer and that it was at his instance that the name of the appellant was

mentioned therein as P.K. Gupta and further that co-accused PS was not only

assured to be released, but actually released forthwith after arrest of the

appellant. This all would lend credence to the defence of the appellant that

the trap against the appellant was motivated at the instance of CBI;

(iii) PW4 stated that the statement of co-accused PS was recorded at the

shop of the complainant Amarnath before he was taken to the office of the

appellant, whereas PW6 stated that no such statement was recorded. If

statement of co-accused PS was so recorded, as stated, the non-production of

the same has not been explained;

(iv) Inconsistent to others, PW4 stated that it was one note of `500/-

recovered from the personal search of co-accused PS. The story set up by the

prosecution that `500/- recovered from the personal search of co-accused PS

had been received by him from some other shopkeeper at the behest of the

appellant, is unbelievable due to lack of evidence in this regard. No effort

seems to have been made by the Investigating Officer in making further

investigation in this regard. Instead IO straight away proceeded to presume

the same to be correct.

(v) It was the case of the prosecution that the practical demonstration of

phenolphthalein powder and sodium carbonate was given by Inspector R.N.

Azad and that the recovery of `1000/- was also effected from the pant pocket

of the appellant by Inspector Azad. The prosecution has not chosen to

examine this material witness for unexplained reasons. However, PW6 had

stated that the recovery was effected from the appellant by him and

Inspector P. Lal and it was also found recorded in his statement made to the

police (Ex.PW6/A) that it was he who searched the shirt pocket of P.K. Gupta

and recovered `1000/-. Likewise, Inspector P. Lal has also not been examined

by the prosecution for unexplained reasons;

(vi) When PW2 admitted that he did not know as to who the other person

sitting on the scooter was and was informed by his customers and neighbour

Mr. Batra, not only that none of them was examined, but no effort was made

to carry investigation in this regard.

24. In view of my foregoing discussion, I am of the considered view that

the prosecution has not been able to prove its case against the appellant

beyond reasonable doubt. As such the appellant/accused deserves acquittal

and accordingly acquitted of the offence for which he was charged.

25. The appeal stands disposed of.

(M.L.MEHTA) JUDGE AUGUST 04, 2011 rd