Delhi High Court

State Through Cbi vs Satvir Singh on 7 January, 2011

Author: Mukta Gupta

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


+                  Crl. Appeal No. 337/1999

%                                          Reserved on: November 15, 2010

                                           Decided on: 7th January, 2011

STATE THROUGH CBI                                              ..... Appellant
                          Through:      Mr. Vikas Pahwa, Standing Counsel for
                                        CBI with Mr. Tarun and Mr.Saurabh
                                        Saini, Advocate

                       versus

SATVIR SINGH                                                  ..... Respondent
                          Through:      Mr. Anil Kumar Gupta with
                                        Mr. Piyush Gupta and Mr. Nishant A.
                                        Alvi, Advocates

Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA


1. Whether the Reporters of local papers may
   be allowed to see the judgment?                        Not necessary

2. To be referred to Reporter or not?                     Yes

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

MUKTA GUPTA, J.

1. This is an appeal against acquittal of the Respondent in RC No.34(A)/

89/CBI/ACB/New Delhi under Section 7 & 13(1)(d) read with 13(2) of the

Prevention of Corruption Act, 1988 (in short the "PC Act"). Briefly, the

prosecution case is that on 4th July, 1989 at around 12.00 noon the Respondent

Satvir Singh and P.S. Saini, both Inspectors in the Customs (Preventive) Delhi

visited the office-cum-godown of the Complainant and started checking goods

lying there. The Complainant was running the business of marketing and

trading of buttons, zips, hooks, fasteners, loop fasteners etc. The Respondent

and Inspector P.S. Saini stated to the Complainant that his firm was not a

notified dealer and he was illegally stocking some components of zip fasteners

i.e., side tapes, which were notified goods. The two of them even refused to

acknowledge the stay order passed by the Calcutta High Court and insisted

that they would take action against him for violating the provisions of

Customs Act, 1962. Inspector P.S. Saini demanded a bribe of `2 lakhs, one

lakh each, for himself and the Appellant, failing which he threatened that

action would be taken against him. Thereafter, the Complainant was taken to

the Customs Office at around 4.00 p.m. After a talk with Prem Nath Sudan,

Superintendent Customs (Preventive) the complainant came out. Outside his

office these two persons were again standing and they threatened and told him

that unless he paid them the bribe of `2,00,000/-, they would not leave him.

On his refusal the Complainant was threatened that they would seize the

articles from his premises and would harass him for about six months. On 7 th

July, 1989 the Respondent telephoned the Complainant and asked him to

come to his residence 234, Gagan Vihar, Near Radhu Place, Delhi along with

the demanded `2 lakhs The Complainant told him that he could arrange

`60,000/- only. To this the Respondent asked him to come to his house along

with `60,000/- on 8th July, 1989 at 8.00 A.M. and arrange for the balance

payment within 3-4 days. On the same day the Complainant went to CBI

office and gave a complaint, written in his handwriting on the letterhead of his

firm Ex. PW2/A to DSP Darshan Singh. The DSP directed him to come along

with money on 8th July, 1989 at 5 a.m. He reached the CBI office along with

the sum of `60,000/- and met the DSP in his office. Two witnesses namely

Rameshwar Nath and Manoranjan Dabar were sitting with some police

officials. The complainant was introduced to the panch witnesses. Thereafter

the chemical powder was applied to the six bundles of `10,000/- each. The

powdered currency notes were given to the complainant with the direction to

give the money in the hand of the accused on his specific demand. The notes

were kept in a rexine bag. The raiding party reached at the house of the

Respondent at around 8.00 A.M. The Respondent opened the house and the

Complainant entered in whereas the panch witness Rameshwar Nath kept

sitting in the car. After about an hour, he came out and took the panch

witness inside and handed over the money. On the panch witness giving a

signal the raiding party headed by DSP Sardar Darshan Singh caught hold of

the Respondent. His hands were dipped in the solution one after another. The

solution in which the right hand was dipped turned pink. Thereafter, the

Respondent was arrested. All legal formalities were completed at the spot. On

completion of investigation a charge sheet was filed only against the

Respondent. Inspector P.S. Saini was not charge-sheeted. The Respondent

was acquitted pursuant to the trial and this is how the CBI has come in appeal

against the said impugned judgment.

2. The learned trial court acquitted the Respondent on the ground that as

far as the initial demand on 4th July, 1989 is concerned the same was made by

P.S. Saini and the Respondent was at a distance on both the occasions. As

regards the demand made on telephone on 7th July, 1989 it is held by the

learned trial court that this demand was denied by the accused in his statement

under Section 313 Cr. P.C. and the brother-in-law of the Complainant who

was sitting when the telephone call was received has not been examined as a

witness to corroborate the version of the complainant. It is held that in the

absence of motive or occasion for demanding the bribe from the accused, it is

not safe to rely upon the sole testimony of the Complainant in this regard.

The learned trial court held that the motive of bribe set up by the prosecution

is that the godown was checked by the accused and P.S. Saini on 4th July,

1989 and there they found certain notified articles. However, after the

Complainant was taken to Sh. P.N. Sudan, Superintendent Customs who has

appeared as PW7, on checking the documents, PW7 was satisfied that the

Complainant was having valid papers for the import of the notified articles

and, thus, there was no reason or motive on the part of the accused to demand

illegal gratification and also on the part of the Complainant to part with the

demanded money. As regards the subsequent demand, it is held that the

Complainant has not stated about the demand on 8th July, 1989 at his

residence and the bag containing `60,000/- was recovered from the cot lying

in the drawing room of the accused. The money was not recovered from the

person of the accused. The learned trial court did not find it fit to rely on the

testimony of Rameshwar Nath PW3 as the Complainant PW2 had turned

hostile and also found his version improbable that the shadow witness sat

outside for an hour and in this one hour, the complainant did not pass on the

money for which he had gone.

3. Learned counsel for the Appellant contends that the demand has clearly

been proved as at the time of initial demand outside the office of the

Superintendent Customs in C.R. Building on 4th July, 1989 when P.S. Saini

demanded money for both of them and threatened that otherwise the

Complainant would be harassed for six months, the Respondent was present

in proximity at a distance of 3-4 ft and thus was also a party to the initial

demand. Thereafter, there is a specific demand on telephone made by the

Respondent on 7th July, 1989 whereafter the Complainant gave the complaint

to the CBI. This fact has been deposed by PW2 and is corroborated by the fact

that he withdrew `60,000/- from the bank. PW2 has also deposed that in his

books of accounts there is an entry of `60,000/- shown as recoverable from

CBI as trap amount. It is contended that even if PW2 has not stated in his

examination in chief that when he went with the money on 8th July, 1989 the

Respondent demanded money, that does not discredit his entire testimony

wherein he has deposed about the entire sequence of events. Though this

witness had turned hostile, however, he has categorically stated that he had

enquired from the accused that after payment whether any action will be taken

against him to which the Respondent replied in the negative. The motive of

seeking illegal gratification was not the raid conducted on that day but not to

cause harassment for the next six months. PW3 has stated about the demand

and acceptance of the money at the time of trap. The evidence of PW3 is

further corroborated by the scientific evidence of PW8 K.S. Chhabra, Senior

Scientific Officer who has reported that the hand wash solution gave positive

test for phenolphthelein and sodium carbonate and the testimony of PW4 the

DSP who recovered the money and took the hand wash of the Respondent

wherein the right hand wash of the Respondent turned pink. Relying on State

of Punjab v. Harbans Singh and another, AIR 2003 SC 2268, it is contended

that even if PW3 had appeared as a witness for CBI in other raids all that was

required was to act on his testimony with caution and the testimony of such a

witness cannot be ignored as has been done by the learned trial court. It is

contended that the testimony of PW3 is duly corroborated on material

particulars and hence reliance should be placed thereon. Relying on M.

Narsinga Rao v. State of A.P., (2001) 1 SCC 691, it is stated that once

demand and acceptance is proved from direct or circumstantial evidence then

in view of Section 20 of the P.C. Act, the Statutory presumption has to be

drawn which has not been done by the learned trial court. Learned counsel

thus contends that the learned trial court not only ignored material evidence

but also did not raise the statutory presumption, which it was legally bound to

raise and hence the impugned judgment is illegal, perverse and calls for

interference by this Court.

4. Learned counsel for the Respondent contends that PW3 is a stock

witness and in his cross examination he has admitted that he has joined the

CBI in 5-6 raid/departmental enquiries. Reliance is placed on Babudas v. State

of M.P., 2003 (9) SCC 86 to state that no reliance can be placed on the

testimony of such a witness. It is stated that there are material contradictions

in the testimony of the witnesses inasmuch as PW2, 3 and 4 say that money

was kept in a hand bag of black colour, zip of which was broken whereas the

bag which was brought in the witness box was of brown colour and thus the

bag which was allegedly seized was different from the one produced before

the Court. The acceptance of bribe amount by the Respondent has also not

been proved. The motive has also not been proved as PW7 Prem Nath Sudan

has stated that the Complainant was produced in his office on 4th July, 1989;

on checking the documents, he was satisfied that the Complainant was having

valid document for the import of the notified articles and so he allowed him to

go. Since nothing remained to be done, there was no reason or any motive for

the Respondent to demand illegal gratification. Though the entire

investigation was done by the previous I.Os, however, they have not been

examined. There being no demand by the Respondent either at the godown or

the C.R. Building, nor any demand or acceptance having been proved, thus no

presumption can be raised. Relying on Subhash Chand Chauhan v. CBI, 2005

(1) C.C. Cases (HC) 292, it is contended that for an offence under Section

13(1)(d) the statutory presumption under Section 20 is not available. Reliance

is also placed on V.Venkata Subbarao v. State represented by Inspector of

Police, A.P.,(2007) 3 SCC (Cri) 175 to contend that when the demand by the

accused is not proved the presumption under Section 20 of the PC Act

regarding acceptance of illegal gratification cannot be raised. Lastly relying

on T. Subramanian v. State of T.N., (2006) 1 SCC 401 and State of U.P. v.

Awdhesh, 2008 (12) Scale 288, State of Punjab v. Gurnam Kaur & Ors., JT

2009 (3) SC 373, State of M.P. v. Munshi Singh & Ors., Union of India & Ors.

v. Dalbir Singh & Anr.,2009 (7) Scale 69, it is contended that when two views

are possible in an appeal against acquittal the High Court will not interfere in

a judgment of acquittal.

5. I have heard learned counsel for the parties and perused the records.

Conscious of the limitations of interference in an appeal against acquittal, it

has to be seen whether there are compelling and substantial reasons for

interfering in the impugned judgment or that the Trial Court has ignored

material evidence or misread the material evidence or ignored statutory

provisions. On marshalling the entire evidence, I find that the factum of

initial demand has been proved from the testimony of PW2 Ramesh Kumar

Suri, the Complainant himself. PW2 in his testimony states that when he was

coming out of the office of PW7 on the 4th July, 1989, Shri P.S. Saini and the

Respondent were standing outside the office. Shri P.S. Saini again demanded

money from him and on his refusal he threatened that they would seize the

articles from his premises and that he would be harassed for about six months.

The Respondent was present at that time along with Shri Saini and both Shri

Saini and the Respondent asked him that it would be better if he paid the

amount. On the Complainant keeping quiet, they directed him to arrange the

money. On 7th July, 1989 the Complainant received a telephone call from the

Respondent asking him to make the payment otherwise they would seize the

goods from his premises. The Respondent asked him to make the payment at

the Respondent's Gagan Vihar residence, The Complainant stated that he

could arrange only `60,000/-. The Respondent asked him to pay `60,000/- on

8th July, 1989 at 8 a.m. and make the payment of balance amount within 3-4

days. The learned Trial Court rejected this testimony of PW2, the

Complainant on the ground that when he received the telephone call,

according to him, his brother-in-law Ram Malhotra was sitting with him and it

is not clear from the testimony whether the Complainant told about the

demand of illegal gratification to his brother-in-law or not and as the

prosecution has failed to examine Ram Malhotra, the brother-in-law of the

Complainant, to corroborate his version, it was held unsafe to rely on the sole

testimony of the Complainant in this regard, specially because there was no

motive or occasion for demanding the bribe. Both these reasons of the learned

Special Court are erroneous as at the time of demand, normally, nobody else

except the complainant would be present, and especially on the telephone the

complainant would be all alone and thus, to reject that testimony for want of

corroboration and that it was unsafe to rely, would be contrary to the settled

principles of appreciation of evidence. Once the learned Special Judge comes

to the conclusion that it is not clear whether the demand of illegal gratification

was informed to the brother-in-law or not, his non-examination as a witness is

of no consequence. Moreover, the testimony of the brother-in-law even if

produced in the Court would have been hearsay evidence.

6. The finding of the learned Trial Court that there was no motive to

demand money as the Superintendent had satisfied himself that the

complainant had valid documents for the import of zip fasteners is also

perverse. The Complainant in his testimony has clearly stated that this money

was demanded so that no harassment is caused to the Complainant in future.

Moreover the learned trial court has ignored the statement of PW2 that after

Mr. Sudan checked the papers he advised the complainant to keep cordial

relations with his subordinates. Thus the learned Trial Court while coming to

this conclusion has ignored material evidence on record.

7. The learned Trial Court has further disbelieved the subsequent demand

and acceptance on the ground that the Complainant PW2 has turned hostile in

this regard and PW3, the shadow witness being a stock witness, his testimony

is not reliable. There is serious infirmity in this finding of the learned trial

court. The learned trial court failed to apply the settled legal principles that the

testimony of a hostile witness cannot be treated as effaced or washed off the

record altogether; part of his evidence which is otherwise acceptable can be

acted upon. Reliance has been placed on [email protected] Surendra Tiwari vs. State

of Madhya Pradesh AIR 1991 1853. Before discussing the testimony of PW3

and other witnesses in this regard, it would be relevant to note an important

aspect. The testimony of PW2 commenced on 17 th September, 1993 when his

examination in chief was being recorded. He fully supported the prosecution

case on that date. While narrating the sequence of events he had deposed

about facts uptil entering the house of the Respondent at about 8 a.m. on 8th

July, 1989. However, at this stage further statement of PW2 was deferred.

When his further statement was recorded on 24th November, 1993, he showed

a volte-face. On 24th November, 1993, he did not support the prosecution

version and thus was cross examined by the learned APP. PW2 in his

testimony though has not alleged specific demand at the time when he took

money and went to his house however, he states that he kept the bag

containing money on the Sofa and when he said that his uncle is sitting in the

car, the Respondent asked him to call his uncle whereupon he called PW3

posing him as his uncle inside the drawing room of the Appellant. At that

time he kept the money from the seat of the sofa onto the charpai lying

nearby. The learned Trial court held that the money has not been recovered

from the person of the accused. It may be noted that when illegal gratification

amount is large the same cannot be accepted as cash in hand. They can only

be handed over and accepted by keeping in bags, suitcases or packets etc.

which can never be recovered from the person of an accused. The sequence

of events at that time has been deposed by PW3 Rameshwar Nath. According

to him, when the Complainant came to call him from the car at about 9.00

A.M., the Respondent was standing in the corridor of the entrance. When he

entered the residence of the Respondent along with the Complainant, the

Complainant PW2 was carrying the bag with him containing the money.

When PW3 went inside, the Respondent enquired from the Complainant if he

had brought the money. He further inquired about PW3 whom PW2

introduced as his uncle. PW2 thereafter asked if there was anything to worry

about and whether his work would be done. The Respondent took the money.

PW2 handed over the handbag containing the notes to the Respondent. The

Respondent touched the notes with his right hand and placed the hand bag

containing the money on the cot made of steel. Thus, there is a demand and

acceptance which is duly proved by PW3. The testimony of this witness

cannot be discredited merely because he has appeared as a witness in 3-4

other cases of CBI. As is the practice, the CBI calls for independent witness

from various offices and thus chances of these officials appearing as shadow

witnesses in CBI cases on more than one occasion cannot be ruled out. They

can be not termed as stock witnesses. The learned trial court erred in

discarding the testimony of this witness on the ground firstly, because the

complainant did not support this version and secondly, it was highly

improbable that within the period of one hour during which the complainant

alone was sitting with the accused, he did not pass on the money to the

accused or that the accused did not even demand the money. The testimony of

PW3 is corroborated by the testimony of PW4 R.S. Manku, Deputy S.P. who

had laid the trap and also PW8 A.S. Chhabra, Senior Scientific Officer who

gave the report that the right-hand wash solution gave positive test for

Phenolphthelin and Sodium. The factum that money was demanded and given

for illegal gratification to the Appellant is further corroborated by the fact that

money was withdrawn from the bank account of PW2 who has clearly

deposed about it.

8. I also find force in the contention of the learned counsel for the

Appellant that once demand and acceptance is proved then the statutory

presumption under section 20 arises and onus shifts to the Respondents to

rebut the said presumption. In M. Narsinga Rao vs. State of Andhra Pradesh,

2001 (1) SCC 691 it was held that where receipt of illegal gratification was

proved the Court was under a legal obligation to presume that such

gratification was accepted as reward for doing a public duty. In the report it

was held:

"13. Before proceeding further, we may point out that the expressions "may presume" and "shall presume" are defined in Section 4 of the Evidence Act. The presumptions falling under the former category are compendiously known as "factual presumptions" or "discretionary presumptions" and those falling under the latter as "legal presumptions" or "compulsory presumptions". When the expression "shall be presumed" is employed in Section 20(1) of the Act it must have the same import of compulsion.

14. When the sub-section deals with legal presumption it is to be understood as in terrarium i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act.

15. The word "proof need be understood in the sense in which it is defined in the Evidence Act because proof depends upon the admissibility of evidence. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or consider its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This is the definition given for the word "proved" in the Evidence Act. What is required is production

of such materials on which the court can reasonably act to reach the supposition that a fact exists. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Fletcher Moulton L.J. in Hawkins v. Powells Tillery Steam Coal Company, Ltd. 1911 (1) K.B. 988 observed like this:

"Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion."

16. The said observation has stood the test of time and can now be followed as the standard of proof. In reaching the conclusion the court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. Law gives absolute discretion to the court to presume the existence of any fact which it thinks likely to have happened. In that process the court may have regard to common course of natural events, human conduct, public or private business vis-a- viz the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence Act.

17. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in Law of Evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the court can draw an inference and that would remain until such inference is either disproved or dispelled.

18. For the purpose of reaching one conclusion the court can rely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted, the court can treat the presumption as tantamounting to proof. However, as a caution of prudence we have to observe that it may be unsafe to use that presumption to

draw yet another discretionary presumption unless there is a statutory compulsion. This Court has indicated so in Suresh Budharmal Kalani v. State of Maharashtra MANU/SC/0608/1998 : 1998CriLJ4592 . "A presumption can be drawn only from facts - and not from other presumptions - by a process of probable and logical reasoning."

19. Illustration (a) to Section 114 of the Evidence Act says that the court may presume that "a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession." That illustration can profitably be used in the present context as well when prosecution brought reliable materials that appellant's pocket contained phenolphthalein smeared currency notes for Rs. 500/- when he was searched by PW-7 DSP of the Anti Corruption Bureau. That by itself may not or need not necessarily lead to a presumption that he accepted that amount from somebody else because there is a possibility of somebody else either stuffing those currency notes into his pocket or stealthily inserting the same therein. But the other circumstances which have been proved in this case and those preceding and succeeding the searching out of the tainted currency notes, are relevant and useful to help the court to draw a factual presumption that appellant had willingly received the currency notes."

9. Thus this Court is legally bound to raise presumption. Indubitably this

presumption is rebuttable. The defence of the Respondent in his statement

under Section 313 Cr. P.C. is that he conducted search at the premises of

PW2, he offered to act as an informer and thus the Rspondent was duty bound

to entertain the informer. According to the Respondent, PW2 had come to

him in that very connection. In this regard, it may be noted that PW2 has

supported the entire prosecution case except to the extent of demand

and acceptance at the time of raid. No suggestion has been given to PW2 that

the money brought to the house of the Respondent was earnest money. In

view of the legal presumption as envisaged under Section 20, it was the duty

of the Respondent to have rebutted the same by cogent evidence. The

Respondent has failed to discharge that onus. No doubt as held in Subash