Delhi High Court

Prem Singh Yadav vs Central Bureau Of Investigation on 25 March, 2011

Author: M. L. Mehta

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               CRL. APPEAL NO. 206/2002

                           Judgment reserved on: 14th March, 2011
%                          Judgment delivered on : 25th March, 2011


PREM SINGH YADAV                                             ...APPELLANT

                                Through: Mr.      Arjun Bhandari         and
                                Mr. Varun Bhandari, Advocates.

                     Versus


CENTRAL BUREAU OF INVESTIGATION                             ...RESPONDENT

                                Through:    Mr. Narinder Mann, Advocate


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


1. Whether the Reporters of local papers                      YES
   may be allowed to see the judgment?
2. To be referred to Reporter or not?                         YES

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

M.L. MEHTA, J.

1. This appeal is directed against the Judgment dated

27th February, 2002 and Order dated 28th February, 2002,

whereby, the appellant/accused was convicted by learned

Special Judge under Sections 7 and 13(1)(d) of the Prevention

of Corruption Act, 1988 (hereinafter, referred to as „the Act‟)

and was sentenced to undergo rigorous imprisonment of one

year for each offence. He was also ordered to pay fine of

`300/- on each count. In case of default of payment of fines,

he was to undergo further simple imprisonment of one month

each. Both the sentences were ordered to run concurrently.

2. The prosecution‟s case, as unfolded at the trial, is that

PW2/complainant Ajaib Singh lodged a complaint Ex. PW2/A

with CBI, Anti Corruption Branch on 25th April, 1989 alleging

that he was keeping three cows at his residence and was

making his livelihood by selling the milk. Appellant/accused

Prem Singh Yadav, posted as a Milk Tax Inspector, MCD,

Green Park used to harass him on one pretext or the other

and had also challaned him twice before. On 24th April, 1989,

the accused came to the complainant with a demand of

`1,000/- as bribe, failing which, he threatened to challan him

and detain his cows. The complainant agreed to pay `500/- on

26th April, 1989 at 10:00 am near his house at Green Park and

the balance was agreed to be paid after the marriage of his

brother.

3. On the basis of his complaint, FIR Ex. PW6/A was registered.

The said case was entrusted to Sh. Mehar Singh Inspector, CBI

(PW6). On the same day, he constituted a raiding party

consisting of complainant and two independent witnesses,

namely, PW3/Sh.P.K. Jain and PW5/Sh.T.M. Kumar. The

complainant produced four Government Currency notes in the

denomination of `100/- each and two Government Currency

notes of `50/- each to the raiding officer. The numbers of the

notes were noted down in the handing over memo Ex.PW2/B.

Pre-raid proceedings involving spraying of phenolphthalein

powder on the currency notes and explaining the witnesses

about the characteristics of the powder by giving practical

demonstration about the procedure were conducted. The

tainted money was handed over to the complainant with the

directions to hand it over to the accused on specific demand.

PW3/P.K.Jain was to remain as shadow witness and was

directed to remain close to the complainant. Both,

complainant and PW3 together reached near the house of the

accused. The other members of the raiding party also arrived

there. Complainant/PW2 contacted the accused at his

residence at the second floor and told the accused that

P.K.Jain/PW3 was his close relative. Thereafter, Mr. Jain/PW3

also came upstairs. The accused allegedly asked the

complainant to give the money which he had asked for. The

complainant told him about having brought `500/-. At this the

accused asked him to give `500/- and the balance of `500/-,

after the marriage of his brother. The money was given to the

accused, who accepted the same with his right hand and

counted the same with his left hand. Then, the complainant

requested him to return some money as he was in need of the

same for the marriage of his brother. At his request, the

accused returned him `200/- and kept `300/- with him and

asked PW2 to give him `700/- after the marriage of his

brother. The tainted money was kept by the accused under

the sofa cushion. PW3/Mr. Jain gave a signal to the raiding

party, which arrived at the spot. The accused became mum

and perplexed. After some time, the accused told the raiding

party about the money kept under the sofa cushion. The

tainted Government Currency notes were recovered by PW3,

from under the sofa cushion, at the instance of Investigation

Officer (PW6). The numbers tallied with the handing over

memo. The washes of both hands of the accused and that of

the sofa cushion were taken separately which turned the

solutions pink. After the completion of the formalities, the

accused was arrested. On the completion of investigation he

was challaned under Section 7 read with Section 13(1)(d) of

the Act. The accused denied the charges and pleaded not

guilty. At the trial, the prosecution examined as many as six

witnesses. The accused was also examined under Section 313

Cr.P.C, wherein he denied all incriminating evidence. He

alleged false implication and claimed innocence. He did not

lead any evidence in defence.

4. The learned defence counsel Mr. Arjun Bhandari has assailed

the impugned judgment and order. He submitted that the

accused was falsely implicated since he had challaned the

complainant many times for unauthorisedly keeping cows. He

also submitted that the version as presented by the

complainant regarding alleged demand of `1000/- by the

accused, but his giving of `500/- to the accused and then

taking back `200/- from him, was concocted and unbelievable.

He also submitted that it was unbelievable that the accused

would keep the money under the sofa cushion. He contended

that the complainant under the pretext of giving invitation

card of marriage of his brother came and cleverly kept the

tainted money along with the card. He pointed to a few

discrepancies in the statements of witnesses and submitted

that there were also contradictions about the preparation of

recovery memo Ex.PW2/C as the complainant Ajaib Singh was

seen to have signed it on 24th April, 1989 whereas all others

on 26th April, 1989. He submitted that in view of various

material discrepancies the burden of proof laid on the accused

was satisfactorily discharged. He also submitted that when

there are two possible views coming out of the evidence of the

witnesses, the one favouring the accused was to be accepted.

He relied upon the judgments titled as State of

Maharashtra v. Dnyaneshwar Laxman Rao Wankhede

(2009) 15 SCC 200 and C.M. Girish Babu v. CBI, Cochin,

High Court of Kerala (2009) 3 SCC 779.

5. Mr. Narender Mann, learned counsel appearing for the CBI

submitted that the discrepancies in the statements of

witnesses are insignificant and otherwise natural due to long

time gap. He submitted that the accused demanded `1000/-

from the complainant and on his informing him about the

marriage of his brother, he agreed to take `500/- from the

complainant after his brother‟s marriage. Further, on the

complainant expressing need, the accused returned `200/- on

the understanding that he will be given `700/- after the

marriage. He further submitted that there could not be any

reason for the accused keeping the money under the cushion

instead of keeping it in his pocket.

6. Though, the learned Special Judge has analyzed the evidence

of the witnesses PW2, PW3 and PW5, I have also chosen

myself to re-appreciate the testimony of these witnesses. The

testimony of PW2 is to be seen in the background of the fact

that accused had admittedly challaned him twice and may be,

as alleged by the accused, the complainant was carrying some

grudge against him. However, that alone cannot be the

reason to discard the testimony of the complainant, though, it

will make one cautious to scrutinize his testimony. He stated

that the accused had demanded `1000/- otherwise he would

be challaned again. The accused told him to make payment

on 26th April, 1989 near Jain School, Green Park at 10 am,

which was at a distance of about five minutes from the

accused‟s house. When the complainant told the accused that

he was not in a position to make payment since the marriage

of his brother is to take place, the accused directed him to

make payment of `500/- and the balance to be paid

afterwards. The complainant stated that he along with

PW3/Mr. Jain went to the house of the accused. He went on

the second floor while PW3 kept standing downstairs at the

ground floor. He told the accused that PW3 was his relative.

The accused asked him whether he had brought the agreed

amount of `500/-? When he said that he has brought the

money, accused asked him to hurry up. The complainant

gave the money to the accused and while accepting the same

with the right hand, he told him that after the marriage of his

brother, he should pay the balance of `500/-. PW2 requested

the accused to return him some money, since the marriage of

his brother was to be solemnized. The accused at this

request, returned `200/- and said that he should pay balance

`700/- after the marriage. After counting the money, the

accused kept the same under the cushion of sofa. Mr. Jain

gave signal to the members of the raiding party, which arrived

at the spot and after challenging him apprehended the

accused and recovered the tainted money of `300/- from

below the cushion of the sofa.

7. Before proceeding to see the veracity of the testimony of this

witness, in the light of the testimonies of other witnesses,

namely PW3, PW5 and PW6 and to see as to whether the

discrepancies as pointed out by learned counsel were material

as alleged by him or insignificant as submitted by learned

counsel for the prosecution, it may be appropriate to refer to

the judgment in the case of Zamir Ahmed v. The State,

1996 Crl. Law Journal 2354. With regard to the discrepancies,

it was observed by the Division Bench of this court that:-

"It would be a hard not to crack to find out a case which is bereft of embellishment, exaggeration, contradictions and inconsistencies. The said things are natural. Such contradictions and inconsistencies are bound to creep in with the passage of time. If the witnesses are not tutored they would come out with a natural and spontaneous version on their own. The two persons on being asked to reproduce a particular incident which they have witnessed with their own eyes would be unable to do so in like manner. Each one of them will narrate the same in his own words, according to his own perception and in proportion to his intelligence power of observation."

8. In the present case, the testimony of the complainant and also

that of the other material witnesses viz PW3, PW5 and PW6

have been analyzed in the background of the fact that the

complainant was earlier challaned by the accused. The

accused in his statement under Section 313 Cr.P.C. stated that

the complainant and other gawalas used to supply milk to the

CBI officials free of cost and they were in the habit of getting

MCD officials trapped. In the cross-examination of the

complainant also, various instances were put to him regarding

traps laid on number of other MCD Inspectors, who had

challaned other gawalas.

9. Some of the discrepancies which have been noted seem to be

material. It is noted that with regard to the payment of

`1000/-, PW5 said that he had heard from CBI officials that

accused was demanding `1000/- from the complainant, but

the complainant was unable to bring the same. Even learned

Special Judge has termed this discrepancy in the statement of

complainant and PW3 as the material one by noting as under:-

"...The version of the conversation between the accused and the complainant given by PW2 and PW3 is discrepant to the extent that complainant PW2 did not state that accused demanded Rs.1000/- whereas PW3 shadow witness has not stated so but he stated that the accused demanded Rs.1000/-. Complainant has not stated that he demanded Rs.1000/- and the accused asked him whether he brought the settled amount but PW3 stated that the accused asked the complainant whether he had brought Rs.1000/-. He has himself not told that he had brought Rs.500/-. PW3 has not stated in his previous statement that the accused demanded Rs.1000/- at the time of talks..."

10. Another discrepancy which has been taken note of by learned

Special Judge as material is with regard to the time of return

of `200/- by the accused to the complainant in the following

manner:-

"...Besides this, there is another discrepancy in this statement that as per complainant, the accused returned Rs.200/- when he was counting the money to the complainant PW2 prior to keeping the money beneath the cushion of sofa and not after he kept the same. But according to PW3, after receipt of the tainted money from PW2,

the accused kept the same under the cushion of the sofa and then PW2 asked the accused to return the money and thereafter he returned the money to the complainant after taking from sofa. The above discrepancies in their testimonies regarding demand of money and return of Rs.200/- to PW2 complainant go to show that the testimonies of these PWs have not received corroboration from each other on the point of demand of bribe..."

11. In addition to above, it may be noted that regarding post raid

proceedings and recovery memo Ex.PW2/C, there arises

suspicion, inasmuch as, this is signed by complainant on 24th

April, 1989 whereas by all other witnesses on 26th April, 1989.

No explanation has been put forward with regard to the

discrepancy regarding this date. PW5 has stated that he does

not remember as to who prepared the post raid proceedings

i.e. recovery memo. It is also observed that in about 3/4th part

of this document Ex.PW2/C the spacing is much more than the

spacing in the last few lines. This gives an impression that the

said document was already signed and due to shortage of

space, the content was subsequently squeezed to fit the

space available. It was also put to all witnesses in their cross-

examinations that no post raid proceedings Ex. PW2/C was

prepared at the spot but was prepared in the office of CBI.

12. With regard to the recovery of the tainted money from under

the cushion, it was said by PW2, that the same was recovered

by PW3, whereas PW3 said that he did not remember as to

who recovered the same. Then he said may be possibly he

recovered. PW6 said that it was on his direction that PW3

recovered money from under the cushion. PW5 stated that he

did not remember as to who recovered the same.

12.1 PW2 said that he along with PW3 went to the

house of the accused and that PW3 remained

sitting on the scooter at ground floor. PW2 said

he went upstairs to the house of the accused on

second floor and after 5-10 minutes he came

down to bring PW3 to the room of the accused. As

against this, PW3 said that after few minutes he

also went to the second floor house of the

accused, while PW2 remained standing upstairs.

12.2 There is also a doubt with regard to the position of

the accused at the time of trap and apprehension.

PW2 said that he and the accused were sitting on

the sofa when the raiding party came and

apprehended the accused. He stated that the

accused was apprehended from inside the room

and not from outside. PW6, on the other hand

said that the accused was apprehended when he

was talking with the complainant/PW2 outside the

room.

12.3 PW2 had also said that the accused was alone in

the room when he went there. PW3 said that he

did not remember if he had stated in his

statement Ex.PW3/DA that when he went to the

house of the accused he was sitting with his wife.

He was confronted with his statement Ex.PW3/DA

where it was so recorded.

12.4 With regard to the pre raid proceedings also there

was some doubt inasmuch as PW2 said that the

pre raid proceedings Ex.PW2/B were recorded in

Hindi which he had read and signed. He, however,

admitted that Ex. PW2/B was in English. On this,

PW3 also said that he did not remember in whose

hand writing it was. It was suggested to him in his

cross-examination that no pre raid proceedings

was held in his presence and that his signatures

were obtained subsequently on plain papers.

12.5 With regard to hand wash also there were

discrepancies inasmuch as PW2 did not know as to

who had taken hand washes of the accused or

that of the cushion. PW5 also did not remember as

to who had taken hand wash of the accused or of

the cushion. PW6, who was the IO, also did not

remember as to who had taken hand wash. Later

on he said that he might have taken the hand

wash of the accused, but he had not mentioned it

either in his statement or in the recovery memo

that he had taken hand wash of the accused or

that of the cushion. It was suggested to him that

no washes were taken by him at the spot.

12.6 Though, not very glaring it is also noticed that

PW3 said that he along with PW2 had taken tea

with the accused while they were talking.

However, he did not remember if tea was taken

before or after the talks, but he confirmed having

taken tea when they were transacting. As against

this, the complainant/PW2 did not remember

having taken any tea or water at any point of

time. It is also seen that the complainant has also

nowhere said in his examination in chief about

having given marriage invitation card to the

accused. However, in his cross-examination he

said that he had given the invitation card along

with envelope Mark „A‟ and Mark „B‟ to the

accused. PW3 did not say anything with regard to

the marriage/invitation card or the envelope

having been given by the complainant to the

accused. PW5 also does not recollect if any card

was lying under the sofa cushion. PW6, on the

other hand, said that there was no card or

envelope in the room at that time.

13. In the light of the abovementioned discrepancies, the defence

has created some doubt in the prosecution case. It is more so

in view of specific suggestion to the complainant in cross-

examination that he had placed the invitation card along with

the tainted money cleverly under the cushion of the sofa

where he was sitting and that the accused did not demand or

accept any money from him.

14. In view of the above, it may not be safe to rely upon the

testimonies of PW2, PW3, PW5 and PW6 regarding demand

and acceptance of money by the accused. The recovery of

tainted money alone is not sufficient to record the conviction.

In the case of Suraj Mal v. State (Delhi Administration)

(1979) 4 SCC 725 it was held that mere recovery of money,

divorced from the circumstances under which it is paid, is not

sufficient to convict the accused when the substantive

evidence in the case is not reliable. Mere recovery of money

cannot prove the case of the prosecution against the accused

in the absence of any instance to prove the payment of bribe

or to show that the accused voluntarily accepted the money

knowing it to be bribe. In the case of C.M. Girish Babu

(supra). The Supreme Court held that mere recovery of

money from the accused by itself is not enough in the

absence of substantive evidence of demand and acceptance.

In this case the reliance was placed on a three-Judge Bench

judgment in M. Narsinga Rao v. State of A.P. wherein it

was held as under:-

"20. A three-Judge Bench in M. Narsinga Rao v. State of A.P. while dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification, observed: (SCC p.700, para 24)

24. ...we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length. (Vide Madhukar Bhaskarrao Joshi v. State of Maharashtra) The following statement made by us in the said decision would be the

answer to the aforesaid contention raised by the learned Counsel: (SCC p.577, para 12)

„12. The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted `as motive or reward' for doing or forbearing to do any official act. So the word `gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like `gratification or any valuable thing'. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word `gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it.

22. It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under Section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt.

"4. ...It is well established that where the burden of an issue lies upon the accused he is not required to discharge that burden by leading evidence of proof his case beyond a reasonable doubt. That is, of course, the test prescribed in deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him under Section 4 under the Prevention of Corruption Act. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur verdict of guilt. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden shifts to prosecution which still has to discharge its original onus that never shifts, i.e.; that of establishing on the whole case the guilt of the accused beyond a reasonable doubt." (See V.D.Jhangan v. State of U.P. at AIR p. 1764, para 4). (Emphasis supplied)"

15. In the case of Dnyaneshwar Laxman (supra) also the

Supreme Court held as under:-

"16. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence, viz., demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably, the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-`-vis the standard of burden of proof on the prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt."

16. Though, the accused has led no evidence in defence, but from

the cross-examinations of prosecution witnesses he has

satisfactorily discharged the onus laid upon him. By

preponderance of probability the accused has been able to

create doubt in the prosecution case. From the evidence as

noticed above, a suspicion arises against the prosecution

case, more so, in view of the fact that the complainant might

be having a grudge against the accused for challaning him on

previous occasions. Even otherwise, in view of all this it is

difficult to hold that prosecution has proved its case beyond

reasonable doubt. It is also well settled principle of law that

where it is possible to have both the views, one in favour of

the prosecution and the other in favour of the accused, the

latter should prevail (see Dilip v. State of M.P. [2009] 1 SCC

450 and Gagan Kanejia v. State of Punjab [2006] 13 SCC