A.C.Midha(Dead)Through His Lrs vs State
2013 Latest Caselaw 1666 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

%                      CRL.A. 183/1978

+                                  Date of Decision: 12th April, 2013

#      A.C. MIDHA( Dead)through his LRs            ......Appellant
                           Through: Mr. Ranjit Sharma, Advocate

                                 versus

$      STATE                                       ......Respondent
                                     Through: Mr. M.N. Dudeja, APP

       CORAM:
*      HON'BLE MR. JUSTICE P.K.BHASIN

                             JUDGMENT

P.K.BHASIN, J:

This appeal was preferred by the convicted accused, who had died during the pendency of the appeal and his widow and two sons were permitted to continue the same and reference to whom shall hereinafter be made as 'the accused', against the judgment dated 30th September, 1978 passed by the learned Special Judge whereby he was held guilty of the commission of offences punishable under Section 161 of the Indian Penal Code and Section 5(2) read with 5(1)(d) of the Prevention of

Corruption Act,1947 and also the separate order of the same date whereby he was sentenced to undergo rigorous imprisonment for one year and fine of ` 100/- under Section 5(2) read with Section 5(1)(d) of the said Act and under Section 161 IPC also he was sentenced to undergo rigorous imprisonment of one year .

2. Facts which led to the prosecution and conviction of the accused have been noticed by the trial Court in the impugned judgment and are extracted below:

"Ram Gopal son of Lal Chand was employed as Dispatcher with Daily Pratap Newspaper He had obtained a decree for Rs.1155/40 P. on 15.07.1977 against Daily Pratap from Shri G.C. Jain, Presiding Officer, Industrial Tribunal No.2. The accused was working as Ahlmad in the Court of Shri ML Kakkar, Presiding Officer, Industrial Tribunal No 2.

On 18.11.1977, Ram Gopal came to Anti Corruption Branch and made a report Ex.PW6/A.

A resume of the report is as under -

The Management of Daily Pratap had placed him under suspension in the year 1976 and after some enquiry, he was removed from service in October, 1977. So, he filed a case against Daily Pratap in the Labour Court al Tis Hazari. A decree for Rs.1155/40 P. was passed against the proprietors of Daily Pratap in July, 1977. An application for stay of the execution of the decree was moved by the management of the Daily Pratap, but the decision was given in favour of Ram Gopal, decree holder.

On 18.11.1977 at about 11 a.m., Ram Gopal came to the Labour

Office at 15, Rajpur Road and enquired if a copy of' the order in his case had reached there or not. He was told that the copy of the order had not reached their office and as such, no further proceedings were possible. On the same day, at about 12 O'clock, he came to Tis Hazari Courts and met Midha Sahib (the accused). Ram Gopal requested Mr. Midha that the copy of the order be sent to the Labour Office, but the latter demanded a bribe of Rs.25/- saying that he would then send the copy of the order very soon to the Labour Office. Ram Gopal agreed to pay Rs.25/- as bribe, but told him that he was not possessed of the amount of Rs.25/- and that he would make arrangement for the same and pay up. Not willing to pay the bribe, he resorted to the Anti Corruption Branch.

Ram Gopal (hereinafter referred to as the complainant) was referred to Shri K.L Sethi, Inspector, Anti Corruption (hereinafter called the Investigating Officer). After recording the statement of the complainant, Mr. Sethi arranged for two punch witnesses of the Govt. departments. PW-7 Pargat Singh, Laboratory Attendant, Institute of Commercial Practice, Mori Gate and Rameshwar Parkash Sharma, L. D. C , Directorate of Industries, Delhi Administration were sent to the Anti Corruption Branch at about 1 50 p.m. In their presence, the complaining statement Ex.PW6/A was read over. The complainant supplied currency notes of Rs.25/- consisting of two ten rupee notes and one five rupee note and number whereof were recorded in the memo Ex.PW/B. Powder Phenol Phthalein was applied on these currency notes The effect thereof was explained and in order to give a demonstration as to the effect thereof, Rameshwar Parkash Sharma PW was asked to touch the tainted currency note with his right hand and then dip it in a colourless solution of sodium corhonate. That solution became pink So, the pink solution was thrown away and the tainted currency notes were returned to Ram Gopal with instructions that he should pass on the same to the clerk Mr. Midha during the course of such a conversation as to indicate that the money was being paid as bribe and that the same should be done in the presence and hearing of the panch witnesses. The punch witnesses were also instructed likewise. Mr. Sethi, Inspector and Ramesh Parkash PW

washed their hands.

The raiding party then proceeded towards Court room No.10 on the ground floor of the Tis Hazari building. The accused was not present on the seat at that time and Mr. Sethi, Inspector was informed accordingly by the complainant. So, the complainant and both the punch witnesses kept waiting for him. At about 3 p.m., the accused entered the Court room and came on his seat. It is said that these panch witnesses engaged the accused in some dialogue concerning the filing of a case as to which lawyer should be engaged. The complainant in their presence talked to the accused in regard to his work and interjecting that if the same could not be done on that very day, would it be done on the next day. The accused then enquired from the complainant if he had brought Rs. 25/-. The accused then took out the complainant aside towards the Central Table and there accepted the tainted currency notes of the amount of Rs.25/- in his right hand and then put the same in the typed papers which he was carrying in his hand. The complainant then came out and gave the agreed upon signal whereupon, the Investigating Officer with the members of the raiding party and the complainant entered the Court room. Mr. Sethi disclosed his identity to the accused and challenged him that he had taken bribe .from Ram Gopal, but it is said that he kept mum. So, in accordance with the information given to him by the complainant, the tainted currency notes of Rs.25/- were recovered from the papers which the accused was holding in his hand. The numbers of the currency notes tallied with the numbers already recorded in raid menu) Ex. PW6/B. So, the same were reduced into possession vide memo Ex.PW6/C. Solutions of sodium Corbonate were prepared and in one solution, right hand of the accused was got dipped thereby became pink. So, it was .filled in bottle. The other solution of sodium carbonate was poured on the papers .from which these currency notes had been recovered. That solution also thereby became pink. So, it was filled in bottle Ex.P.5. Both these bottles were labeled and sealed. These were reduced into possession vide memo Ex. PW6/D and E1.PW6/E respectively. The typed papers Ex.P.6 and P.8 which the accused was holding in his hand were also taken into

possession vide memo Ex PW6/F. Report Ex PW 10/A was prepared and the same was sent to Anti Corruption Branch for registration of a case against the accused on which FIR No 30 was recorded by PW.1 Mehar Chand, H.C. Site plan Ex.PW/10/B was prepared The case property was deposited in the Mal Khana of P.S Sabzi Mandi. Later, both the bottles were sent to C.F.S.L. and according to report Ex.PX, the contents of both the bottles gave positive test for Phenol- phthalein."

3. On the aforesaid allegations the accused was charged and tried for the commission of offences noted already. The prosecution had sought to establish these allegations by examining ten witnesses including the complainant Ram Gopal(PW-6), two panch witnesses Pargat Singh(PW-

7) and Rameshwar Parkash Sharma(PW-8) and the raiding officer Inspector K.L. Sethi (PW-10 )

4. All the incriminating evidence was put to the accused during his statement recorded under Section 313 Cr.P.C. He had denied having demanded and accepted any bribe from the complainant and also denied the alleged recovery of money from him. He pleaded false implication at the instance of the complainant in league with the raid officer(PW-10) as he was known to the complainant.

5. The learned Special Judge upon appreciation of the evidence adduced by the prosecution held the accused guilty. Aggrieved by his

conviction, the accused had then approached this Court by way of this appeal. As noticed already, the accused-appellant died during the pendency of this appeal and his widow and were permitted to continue the appeal.

6. Learned Counsel for the accused had submitted that the evidence of demand and acceptance of bribe by the deceased appellant was highly vulnerable and not trustworthy at all. He also submitted that the recovery of tainted money from the accused was also doubtful and in fact it is a case of planting of money which is evident from the statement of PW-7, one of the two panch witnesses, during his cross-examination to the effect that money was recovered from inside folded papers which were lying on the table of the accused at the time of the raid and not from his hand.

7. On the other hand, learned Additional Public Prosecutor for the State fully supported the trial Court's judgment.

8. During the course of hearing I was taken through the relevant prosecution evidence. The complainant Ram Gopal was examined as PW-6. In his examination-in-chief he deposed about the accused having demanded from him bribe of Rs.25/- and his having gone to the office of

the Anti Corruption Branch to lodge a complaint against the accused and also about the pre-raid proceedings conducted there by PW-10 Inspector K.L. Sethi. Thereafter he deposed about the actual raid proceedings in the court room where the accused was having his seat those days. The relevant of that statement is as under:

".............After 2.30p.m., the accd. came. Those two panch witnesses began discussing with the accd. that they had to file a suit and which lawyer should he engaged by them. During this talk, I also reach there. In the presence of both the punch witnesses, I asked the accd. "Midha Sahib, has my work been done or not". The accd. did not pay any heed to what I said and he went to meet the Reader. Then, he came back Again, I spoke out addressing him 'Sir, has my work been done or not'. The accd. took out some typed papers and said that he was doing my work. I said to him however that my work had not been done and told him that if my work would not be done that very day (i.e. 18.11.197), would it be done by the next day. The accd. did not give any reply, but only asked me if I had brought Rs.25/-. He did not ask this thing, from me on his seat, but had taken me aside. The panch witnesses however, were able to see this from where they were standing. The place where I was taken aside was in the room itself near the other table which was kept lying in the centre. Mr. N.L Kakkar was not present in the Court room at that time after lunch interval. The seat of the accd. was in the courtroom itself towards the right side of the Presiding Officer's table alongside the wall. I gave him those tainted notes consisting of 2 ten rupees notes and one five rupee note. He accepted the same in his right hand. The accd. then wrapped those currency notes in the typed papers which he was carrying in his hand. Then, he stood with his hands stretched backwards. I went outside the room and told Mr. Sethi that the work had been accomplished and the money had been given. Mr. Sethi with his staff came inside the room. I also came along with them. The

two panch witnesses were present in the room. Mr. Sethi told the accd. that he was Inspector, Anti Corruption and told him (Pointing towards me) that he was saying that he (accd.) had accepted Rs. 25/- as bribe. The accd. did not give any reply and kept mum. On being told by me that the currency notes had been wrapped in the papers which he was carrying, the Inspector carried out search and the bribe money consisting of 2 ten rupee currency notes and one five rupee note were recovered amongst the folds of the papers. The number of these notes were compared with the recorded numbers in the presence of witnesses. The numbers tallied there on Ex.P1 to P3..... A solution was prepared by adding a powder in glass of water and the right hand of the accd. was got dipped in that solution. The solution became light pink. In another solution, the papers in which the currency notes had been wrapped were dipped. That solution also became light pink................ Mr. Sethi had taken into possession the typed papers as well in which the accd. had wrapped the currency notes. I had put my signatures on those typed papers. These are Ex.P.6, P.7 and P.8.................................................................."

9. During cross-examination of PW-6 it was not suggested to him by the accused's counsel that the accused had not demanded Rs.25/- from him on 18th November,1977 before the raid when he had come to inform him that copy of the court's order had not reached labour office. A suggestion was given that when he gave money to the accused some typed papers were lying on the table of the accused under a file. His answer was:

" It is incorrect to suggest that when I gave the money to the accd. The typed papers were lying on the table under the file."

10. Then another suggestion was given to the complainant that he had put the tainted notes in those papers when the accused had gone to talk to the Reader and that the notes were recovered from those papers lying on the table by the Inspector. The witness denied that suggestion.

11. From these suggestions put to PW-6 it becomes clear that the accused wanted to convey that though PW-6 had offered him the money but he did not take and when he went to the Reader's seat the notes were kept in the papers lying on his table in his absence. Same pleas taken by him at the time of his statement under Section 313 Cr.P.C. However, this defence of the accused cannot be accepted since when the concerned Reader was examined by the prosecution as PW-5 it was not even put to him in cross-examination that at the time of the raid the accused had come to talk to him in connection with some file which the accused was searching. In fact, it was claimed by him in cross- examination that when he was busy doing his work on his seat he had seen that anti-corruption branch people had caught hold of the accused. So, the plea taken by the accused that for sometime he had gone to the Reader's seat and in the meanwhile tainted notes might have been kept inside the papers lying on his table taken for the first time in

the cross-examination of the complainant and other witnesses examined after him is even otherwise also to be rejected as an afterthought. It was also not put to the complainant that he was not taken to one side in the room away from his seat and had given him the money there, as was claimed by him in his chief-examination.

12. The only criticism against the evidence of the complainant made by the learned counsel for the accused was that if actually the accused had demanded bribe from him he would have definitely complained to the Judge in whose Court the accused was posted but he did not complain to the Judge and instead straightway approached to the anti corruption branch which conduct of his casts a doubt about his truthfulness. However, in my view this criticism is without any merit. If the complainant had felt that he should report the matter to the police instead of complaining to the Judge concerned no fault can be found with his decision and he cannot be disbelieved for that reason. It was the case of the accused himself that the complainant knew the raid officer of the present case. I shall deal with the grievance of the accused a little later that this was a false case made against him since the raid officer knew the complainant. The prior acquaintance between the complainant and the raid officer could in fact be a good reason for the

complainant to go the anti-corruption branch straightway instead of first complaining to the Judge concerned thinking that the Judge would also have told him to report the matter to the police. There could be many such reasons which might have prompted the complainant not to approach the Judge at first instance. He could have been cross- examined by the defence counsel to find out the reason for his having not complained to the Judge. That was not done. So, now no grievance can be raised on behalf of the accused as to why the complainant had not complained to the Judge.

13. Now I come to the evidence of the panch witnesses. PW-7 Pargat Singh, after narrating the pre-raid proceedings in the office of anti corruption branch deposed about the actual raid proceedings in the labour court room and the relevant portions from that part of his statement are as under:

"...............The accd. was not present on his seal at that time. We then took seats on the bench there. After about 10 minutes, the accd. came there. The complainant gave a signal to us that this was the accd. who had to take the bribe and he had come. We asked him that we had a case in the labour Court and whom we should meet. The accd. had not so far given any reply to the complainant also came there. The complainant asked the accd. „what has been done regarding his case'. The accd. then began looking .for files in the almirah. Then, the accd. took the complainant aside towards the dais. We were standing at some distance. I cannot say what talk had taken

place between them. I was not able to notice the giving and taking of money, but the complainant told us that he had passed on the money to the accd. Then, the complainant went outside and 1 think, Mr. Sharma had also given a signal. I remained present there in the room. In the meantime, Mr. Sethi, Inspector came in. The Inspector told the accd. that he was Inspector, Anti Corruption and he took away the papers from the hands of the accd. The Inspector had not said anything else except that he was Inspector, Anti Corruption. The currency notes emerged from that paper. The numbers of the notes were compared with the recorded numbers. These are Ex.P.1 to P.3. These were taken into possession vide memo Ex.PW6/C. The hand of the accd. i.e. his right hand was washed in a solution. That solution became slightly pink. It was, filled in bottle P.4. The paper was also washed in another solution. That solution also became pink and was filled in bottle Ex.P.5..........."

14. This witness thus also supported the version of the complainant that the tainted notes were recovered from inside the papers which the accused was holding in his hand. The evidence of this witness was sought to be rejected by the learned counsel for the accused on the ground that in his cross-examination he had demolished the prosecution case about the recovery of the tainted notes from the papers which he was holding in his hands by accepting that those papers were in fact recovered by the raid officer from the table and that answer, according to the counsel, probabalised the plea of the accused that he had left his seat for a while and gone to the Reader's seat and in the meanwhile the notes might have been kept in those papers lying on the table. This

argument was raised before the trial Court also and the learned Special Judge had dealt with the same in the impugned judgment and rejected the same on the ground that cross-examination of the witness was recorded not on the day when examination-in-chief was recorded but on the next day and so there was a possibility of the witness having decided to help the accused to some extent by making such a statement in deferred cross-examination. This Court also is of the same view. In any case, the learned Special Judge had also rightly observed that even if evidence of this witness were to be excluded from consideration the prosecution case stood proved from the evidence of the complainant, the other panch witness and the raid officer.

15. PW-8 Rameshwar Prakash Sharma, LDC in the Directorate of Industries, Delhi Administration was the second panch witness examined by the prosecution. The relevant portions from his examination-in-chief in respect of the raid proceedings at the spot are as under:

"We came to room No.10 near about 2.15 or 2.20 p.m. The complainant who was ahead of us had pointed out the room No.10. The accd. was not present on his seat at that time. The accd. came there at about 3 pm. He began looking for some papers in his almirah We talked to him in regard to a sham case saving that some lawyer was to be engaged for a man who had been turned out from

service. In the meantime, the complainant reached there. The complainant asked the accd. 'My case has been done or not'. The accd. did not give any reply. The complainant again asked him, the accd. then replied to him 'Aaj Kya Jaldi Hai, Thehro Main Tumahari Hi File Nikaal Raha Hoon'. Then, both the accd. and the complainant moved towards the table of the Presiding Officer. The complainant asked the accd. if his work would be done next day while moving with the accd. towards the table of Presiding Officer They then returned from near the table of Presiding Officer and stood near the central table in the Court room. The talk was not audible, because I was at some distance from there. The complainant had taken out Rs.25/- from the pocket of his pants. The accd. accepted those notes with his right hand. In the left hand, he was carrying some papers. The accd. then put those notes in the papers which he was carrying. and he held those papers in his right hand. Ram Gopal went outside. Then, Mr. Sethi came inside. The Inspector told the accd. that he was Inspector, Anti Corruption and that he had taken Rs.25/- as bribe, but the accd. remained mum. The papers were taken away from the hands of the accd. by Mr. Sethi. The currency notes of Rs.25/- emerged from the papers. The numbers of the notes were compared with the recorded numbers in raid memo and the same tallied. The same are P.1 to P. 3 and were taken into possession vide memo Ex.PW6/C. The solutions were prepared in glasses. The right hand of the accd. was dipped in one solution as a result of which it became pink. The other solution was poured over the papers and then repoured in the glass. That solution also became pink........................................................................."

16. PW-10 Inspector K.L. Sethi, was the raid officer. The relevant part of his statement relating to the actual raid proceedings, which only was highlighted before this Court from both sides, is as under:

"On 18 11.1977, while I was working as Inspector in A.C. Branch, Ram Gopal complainant approached me in the A C. Branch and made a statement which 1 recorded and is Ex. PW6/A. It was read over to him and he signed the same after admitting the same to be correct. The services of Pargat Singh and Ramesh Parkash Sharma were requisitioned from their respective departments. His already recorded statement Ex.PW6/A was read over to the complainant in the presence of the witnesses.....................

We then started from A.C. Branch and reached near Court room No.10 at about 2.23 p.m. The complainant and both the panch witnesses went inside the Court room, while myself and other members of raiding party took our positions. After sometime, the complainant came back and informed me that Avnash Chander Midha was not on his seat. I directed him to wait for the accd. in the Court room itself. At about 3.10 p.m., Ram Gopal complainant came out and gave the agreed upon signal on which I along with the complainant and my staff i.e. Inderjit Inspector went inside the room. The other members of the staff included constables. I disclosed my identity to the accd. and challenged him if he had taken bribe from the complainant, but he kept mum. On the information received from Ram Gopal as to where the tainted money was, I recovered the currency notes from the papers which the accd. was holding in his hand. These were 2 currency notes of Rs. 10 each and one of Rs.5/-. The numbers of the currency notes tallied with the numbers recorded in memo Ex.PW-6/B........ A solution of sodium carbonate was got prepared and right hand of the accd. was got dipped in that solution. The solution became pink and was filled in bottle P.4. "

17. These two material witnesses could not be discredited during their cross-examination as far as the recovery of the tainted money from the papers in the hand of the accused is concerned. PW-8 supports the

complainant's version about the acceptance of the tainted money by the accused from him. In the acceptance of the tainted money by the accused from the complainant its prior demand is implicit even though the panch witnesses claim that they did not hear the conversation between the accused and the complainant.

18. Learned counsel for the accused had submitted that the raid officer K.L. Sethi(PW-10) was known to the complainant from before and so his services had been utilized by the complainant specially to trap the accused, and therefore, his evidence should be totally rejected and as a fall out of that rejection the entire edifice of the prosecution case would fall to the ground since the trap was not a genuine trap and a farce. In my view, even if the complainant knew the raid officer from before that would not be a ground to hold that the accused was falsely implicated. If any victim of demand of bribe by a public servant for doing his work which he otherwise is supposed to do, like in the present case the accused was required to send the copy of the stay rejection order passed by the labour court against the employer of the complainant to the labour office so that he could execute the earlier order directing payment of wages of the complainant but he had not sent the order within a reasonable time of the passing of the order, approaches the

police official known to him that would not show that some false case would be foisted upon the public servant concerned. In the present case nothing has been brought on record that the complainant and Inspector K.L. Sethi had any reason to falsely implicate the accused.

19. No other submissions were made from the side of the deceased accused-appellant.

20. There is no merit in this appeal and, therefore, the same is dismissed.

P.K.BHASIN, J APRIL 12, 2013