Roshan Lal vs State Govt. Of Nct Of Delhi
2011 Latest Caselaw 3143 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       CRL.A. 801/2010 & Crl. M.A. No. 955/2010 (Bail)

%                                                      Decided on: 6th July, 2011

ROSHAN LAL                                                     ..... Appellant
                                    Through:   Mr. Yogesh Kumar Dahiya, Advocate.

                           versus

STATE GOVT. OF NCT OF DELHI                 ..... Respondent
                  Through: Mr. Pawan Bahl, APP.

Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA


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

2. To be referred to Reporter or not?                     Yes

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

MUKTA GUPTA, J.

1. Briefly the prosecution case is that the Complainant Satish Kumar took

the file, relating to the appointment of his sister Mamta on compassionate

ground as her husband Sanjay who was working as safai karamchari with the

MCD expired on 14th August, 2007, to the Appellant who was looking after

the work of Dak Clerk. On seeing the file the Appellant/Roshan Lal took the

Complainant Satish Kumar PW3 on one side and stated that he would get his

work done and he would not have to spend much if he gave him `2,000/-, he

will get rest of the work done. The Complainant showed inability and stated

that he could only give `1,000/-. As he did not want to pay the bribe he gave a

written complaint to the Anti Corruption Branch on 23rd November, 2007

Ex.PW3/A. On the basis of the complaint a raiding party was constituted and

the PW3 along with PW4 Rajinder Singh Rana, the panch witness with the

treated GC notes went to meet the Appellant. The Appellant asked for the

money to which PW3 and PW4 replied in the affirmative. Thereafter the

Appellant took them to the varanda and demanded the money which was

given to him by PW3. On the signal being given by PW4 the raiding team

caught hold of the Appellant. His hand wash solution turned pink and gave

positive test of phenolphthalein. On the basis of this trap, the Appellant was

arrested. After investigation the charge sheet was filed along with the

sanction under section 19 of the Prevention of Corruption Act, 1988 (in short „

the PC Act‟). On examination of the prosecution witnesses, the Appellant

under Section 313 Cr.P.C. and the defence witness, the learned Trial Court

convicted the Appellant for offences punishable under Section 7 and 13 (1)

(d) read with Section 13 (2) of the PC Act and awarded the sentence of

Rigorous Imprisonment for a period of three years and a fine of `5,000/- and

in default of payment of fine to further undergo Simple Imprisonment for a

period of three months on both the counts that is under Section 7 and 13 (2) of

the PC Act. This judgment of conviction dated 4th June, 2010 and the order

on sentence dated 5th June, 2010 is impugned in the present appeal.

2. Learned counsel for the Appellant contends that PW3 Satish Kumar in

his statement before the Court has made material improvements. Though in

the complaint it is alleged that the Appellant demanded `2,000/- however,

before the Court it is stated that `5,000/- was demanded from him. The

version of PW3 that he had gone to move an application is also incorrect as

the report regarding the compassionate appointment of the PW2 Smt. Mamta

had already being prepared by Inspector Mohan and the Appellant was only a

dispatch clerk and thus, was incompetent to take any action in the matter.

Moreover, even as per the evidence on record the file had already been put up

to the competent authority vide endorsement Ex.PW3/H1 and Ex.PW3/H2,

which shows that the file was received on 16th November and dispatched on

19th November and thereafter on 23rd November as well. PW3 has not given

any specific date of the initial demand made by the Appellant. No

independent witness has been associated with the initial demand. There are

contradictions in the testimony of the witnesses as to the time for which they

stayed at the office of the Appellant at the time of raid. PW3 states that they

remained at the sport for about an hour. Raiding inspector PW15 Hira Lal

states that it took them around 2 hours to complete pre-raid proceedings

whereas PW4 Shri Rajinder Singh stated that they remained at the spot only

for ten minutes. This version of PW4 corroborates the defence of the

Appellant which he has taken in his statement under Section 313 Cr.P.C. that

he has been falsely implicated and on that date one person came to his seat

and told him that three four persons are standing on the ground floor and they

had called him. Thereafter he went down stairs and those persons disclosed

their identity as police officials and stated that he had taken money from the

Complainant Satish Kumar and on his denial, they slapped the Appellant and

took him to the Anti Corruption Branch in Gypsy where the money was

planted in the pocket and thereafter the washes were taken. The learned Trial

Court has convicted the Appellant merely on the ground that no suggestion of

false implication has been given to the prosecution witnesses. The call

records used against the Appellant are of no consequence as no conversation

between the complainant and the Appellant have been recorded. The defence

of the Appellant has been totally ignored by the learned Trial Court. It is thus,

prayed that the impugned judgment be set aside and the Appellant be

acquitted of the charges framed.

3. Per contra learned APP for the State submits that from the testimony of

PW3 the initial demand has been proved. Mere variations in amount of

money demanded will not discredit the version of the PW3 Satish Kumar.

PW3 and PW4 have proved the demand at the time of the trap and the

acceptance of bribe amount by the Appellant. Once the acceptance has been

proved by the prosecution the Court is duty bound to raise the presumption

under Section 20 of the PC Act. The defence of the Appellant has not been

put to the witnesses as no such suggestion has been given and in the absence

of any explanation for false implication being sought from the prosecution

witness their testimony cannot be discredited merely because the Appellant in

his statement under Section 313 Cr.P.C. has taken a particular defence. The

call details of the Complainant were proved by PW11 M.N. Vijyan vide

Ex.PW11/A and that of the Appellant Roshan Lal vide Ex. PW11/C show that

the Appellant was in constant touch with the Complainant from 16th to 23rd

November, and thus, an inference has to be drawn that he demanded the

money as alleged because the Complainant and the Appellant were otherwise

strangers to each other. Mere contradictions in regard to the time spent on the

spot will not belie the otherwise credible and cogent testimony of the

prosecution witnesses. Thus, there being no merit in the appeal the same

deserves to be dismissed.

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

From the perusal of the evidence on record it is apparent that the prosecution

has been able to prove beyond reasonable doubt the initial demand, the

demand at the time of the trap, the acceptance of the bribe of `1,000/- and the

motive for the demand. PW3 has stated that four days prior to the raid, he had

met the Appellant. PW3 met the Appellant in his office, who was working as

diary dispatch clerk, on his seat and was told that he would arrange the job for

his sister and demanded `5000/- from the Complainant. He told him that at

that time, he could only arrange `1000/- to which he agreed and asked him to

pay the balance amount after the work was done. He was asked to bring

`1000/- on 23rd November, 2007 in the office of the Appellant. In his cross-

examination, this witness has stated that the Appellant met him about 4 days

prior to the raid in his office on his seat. He further stated that he did not

know whether he put the dispatch number on the file however, he kept the file

with him. When PW3 handed over the file to the Appellant he told him that

this work cannot not be done without spending money and while coming out

of his office, the Appellant demanded the bribe of `5,000/-. When PW3

stated that he could not pay that much amount in lump sum, the Appellant

asked him to pay an amount of `1,000/- initially. Thus, there is no merit in

the contention that PW3 in his testimony has not stated the date of initial

demand. The testimony of PW3 clearly proves the initial demand due to

which he was constrained to file the complaint Ex. PW3/A before the Anti

Corruption Branch. There is no merit even in the contention that there is no

independent witness to the initial demand. Only after the initial demand, the

complaint is lodged. No complainant can comprehend a demand and thus,

take a person along.

5. The demand and acceptance at the time of trap has also been proved by

the testimony of PW3 and PW4. PW3 in his testimony has stated that on 23 rd

November, 2007 when he went with the panch witnesses to the MCD office,

Rohini inside the room of the Appellant, the Appellant inquired from him

whether he had brought the bribe amount to which he replied in the

affirmative. Thereafter he along with the Appellant and with one panch

witness went to downstairs where the Appellant demanded money from him.

PW3 Satish Kumar took out the treated GC notes from his pocket and handed

over the same to the Appellant, who took them with his right hand and kept

them in the left pocket of his shirt. On the pre determined signal given by the

panch witness the raiding party came there and the raid officer disclosed his

identity and challenged the Appellant on acceptance of bribe. On this, the

Appellant became perplexed. This conduct of the Appellant is relevant under

Section 8 of the Evidence Act being post event conduct. On the search of the

Appellant the GC notes were recovered from the left pocket of the shirt. The

numbers tallied with those mentioned in the pre raid report. They were taken

into possession vide seizure memo Ex.PW3/C. The hand wash and the pocket

wash was taken which turned the solution into pink colour.

6. This testimony of PW3 is corroborated by PW4 Rajinder Singh Rana,

the panch witness who had joined the pre-raiding proceedings and

accompanied PW3 to the room No. 316 where the Appellant was present. The

Complainant inquired from the Appellant about the work of his sister on

which the Appellant told that he would get his work done and asked the

Complainant to pay `5,000/- the amount settled earlier. The Complainant told

that his sister was very poor and she has arranged only `1,000/- as per the

talks which took place between the Complainant and the Appellant.

Thereafter the Appellant took the Complainant out and he followed them.

There the Appellant demanded the bribe from the Complainant who thereafter

gave the treated GC notes from his pocket on his shirt. The Appellant took

the notes in the right hand and kept them in his left side pocket. On this he

gave the pre-determined signal and immediately the raiding party came and

the raid officer enquired from him about the incident on this the Appellant

became perplexed. Thereafter PW4 took the search of the Appellant and the

treated GC notes were recovered. The wash of the right hand and the left

pocket of the Appellant turned the solution into pink which was thereafter

converted to bottles and sealed. The shirt converted into the Pulanda and the

bottles were taken into possession vide seizure memo Ex.PW3/D besides

diary registers Ex. PW3/H1 and another register Ex.PW3/H2. All these

documents bear the signature of PW4. Thus, the testimony of these two

witnesses proves the demand and acceptance at the time of raid and also the

post event conduct of the Appellant.

7. Since the prosecution has proved the demand and acceptance of the

bribe amount, this Court is duty bound under Section 20 of the PC Act to raise

statutory presumption for commission of offence under Section 7 of the PC

Act as held by the Hon‟ble Supreme Court in M. Narsingha Rao vs. State of

Andhra Pradesh 2001(1) SCC 691:

"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".

8. Learned counsel for the Appellant has laid great emphasis on certain

contradictions like the fact that in the complaint `2,000/- have been

mentioned whereas both the witnesses PW3 Satish Kumar and PW4 Rajinder

Singh Rana in their testimony, that is, in their examination in chief and cross

examination have stated that `5,000/- was demanded. Thus, these witnesses

are not reliable witnesses. This contention of the Appellant cannot be

considered as PW3 has not been confronted with his previous statement

recorded vide Ex.PW3/A wherein demand of `2,000/- has been mentioned,

nor has PW4 been confronted that this document was written down in his

presence and he had identified the said complaint. In State of U.P. vs. Nahar

Singh 1998 (3) SCC 561 it was held:

"13. It may be noted here that part of the statement of PW-1 was not cross-examined by the accused. In the absence of cross- examination on the explanation of delay, the evidence PW-1 remained unchallenged and ought to have been believed by the High Court. Section 138 of the Evidence Act confers a valuable right of cross-examining the witness tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by allowing a witness to be questioned:

(1) to test his veracity.

(2) to discover who he is and what is his position in life, or

(3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to

criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.

14. The oft quoted observation of Lord Herschell, L.C. in Browne v. Dunn, (1893) 6. The Reports 67 clearly elucidates the principle underlying those provisions. It reads thus:

"I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses. This aspect was unfortunately missed by the High Court when it came to the conclusion that explanation for the delay is not at all convincing. This reason is, therefore, far from convincing".

9. Similarly, the Appellant has taken the defence in his statement recorded

under Section 313 Cr.P.C. that on 23rd November, 2007 one person came to

his seat and told him that three four persons were standing on the ground floor

and they had called him. When he went down stairs those persons disclosed

their identity as police officers and further told him that he had taken money

from the Complainant Satish Kumar. On his denying the same he was

slapped and taken to the Anti Corruption Branch and the money was planted

in his pocket whereafter the wash was taken. When he was being taken from

his office at about 4.20 P.M. one Shyam Lal and one Rajesh of his office were

standing on the gate and saw the police officials taking him. The Appellant

has examined Shyam Lal, who was working as a Bill Clerk, Rohini Zone,

MCD as DW1. This witness in his testimony does not say that on 23 rd

November, 2007 the Appellant was taken away by the police officials while

he was standing at the gate at about 4.20 p.m. According to this witness he

came to know through the newspaper that the Appellant Roshal Lal was

trapped in a bribe case. Secondly no such suggestion has been given to the

prosecution witnesses witness especially the Trap Officer PW15 ACP Hira

Lal and PW6 nor to any member of the raiding party nor to the Investigating

Officer PW7 ACP Jagdish Chand nor even to PW3 complainant and PW4

panch witness, who all have clearly deposed against the Appellant by

narrating the events as they unfolded. Thirdly the prosecution has proved by

the testimony of PW11 M.N. Vijyan, the call details of PW3 and the

Appellant. From the call details it is clear that from 16th to 23rd November

phone calls were made by the Appellant to the complainant. Also the

Complainant made phone call to the Appellant at around 1.30 p.m. on 23rd

November which he had also deposed in his testimony informing the

Appellant that he was coming to the office to deliver money. This testimony

of this witness has gone unchallenged and there is no denial to the fact that the

Appellant had made phone calls to the PW3. The contention of the Appellant

that there is no intercepted version is of no consequence as even though there

is no intercepted conversation, admittedly PW3 was not known to the

Appellant as per his defence prior to the incidents. Nobody would call up a

stranger, a number of times and talk for few minutes. Moreover, no

explanation has been rendered by the Appellant in his statement under Section

313 Cr.P.C. regarding these phone call details.

10. I also do not find any merit in the contention of learned counsel for the

Appellant that the Appellant was under no authority to influence the decision

in the file and thus there was no motive. The Appellant was though under no

authority to influence the decision but was definitely responsible for moving

the file of the Complainant„s sister for appointment to the various departments

and thus his having kept the file and not moving the same even as per the

record which has been seized shows the motive. Much emphasis has been

laid on the contradictions between the statements of the various witnesses as

to the time which has been spent at the spot. I do not find any merit because

these variations in the timings spent at the spot are minor variations, because

each witness has described the entire sequence of events which has taken

place at the spot. Merely because PW4 stated that they stayed at the spot for

ten minutes would not belie the testimony of all other witnesses who have

given detailed sequence of events relating to the actions taken on the spot.

Moreover PW4 has also stated about the entire sequence of events and the

actions which took place at the spot. Learned counsel has laid emphasis on

the fact that PW4 has planted witnesses and he was not present at the spot

because he had arrived after 5.45 PM. PW13 SI K.L. Meena who was the

duty officer has stated that he was working as duty officer from 5.45 PM to 8

P.M. on that date. It may be noted that PW13 has clearly stated that he

recorded the DD No.8 Ex. PW13/A regarding the arrival of the panch witness

in Anti Corruption Branch at 9.45 A.M. and thus inference sought to be

drawn from the fact that his duty hours of the work were from 5.45 to

8.00P.M. and PW 4 came thereafter is incorrect. Moreover, even this witness

has not been cross-examined and his testimony has, thus, gone unchallenged.

11. I do not find any merit in the present appeal. The appeal and the

application are accordingly dismissed. The sentence of the Appellant was

suspended by the learned Trial Court for filing the present appeal, which order

was extended by this Court, which stands vacated. The Appellant be taken

into custody to undergo the remaining sentence. His bail bond and the surety

bond are discharged. The Appellant be taken into custody to undergo the

remaining sentence.

(MUKTA GUPTA) JUDGE

JULY 06, 2011 vn