Delhi High Court
Hari Kishan Bansal vs C.B.I. on 17 May, 2013
Author: R.V. Easwar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on:1st May, 2013
% Date of Decision:17th May, 2013
+ CRL. A. 698/2002
HARI KISHAN BANSAL ..... Appellant
Through: Mr. Neeraj Yadav, Advocate.
versus
C.B.I. ..... Respondent
Through: Mr. R. V. Sinha, Standing Counsel.
CORAM:
MR. JUSTICE R.V. EASWAR
JUDGMENT
R.V. EASWAR, J.:
This is an appeal under section 27 of the Prevention of Corruption Act,
1988, hereinafter referred to as the PC Act, read with section 374 of the
Cr.P.C., 1973. It is directed against the judgment and order dated 31.08.2002
passed by the Special Judge, Delhi by which the appellant, Hari Kishan
Bansal was convicted of the offence under section 12 of the PC Act. The
appeal is also directed against the order dated 02.09.2002 by which the
Special Judge sentenced the appellant to RI for four years and to pay a fine of
`20,000/- and in default to undergo further RI for six months.
2. The appeal arises in the following circumstances. One Subhash
Chander was employed as Assistant Manager (Vigilance and Security) in the
India Tourism Development Corporation (ITDC) and was posted in Hotel
Samrat, Delhi. He also held the additional charge of vigilance and security of
Ashok Travels and Tours (ATT) a unit of ITDC. ATT had a panel of tour
operators for running LTC (Leave Travel Concession) tours on behalf of
ITDC. M/s. R. K. Tourist of Fatehpuri, Delhi of which the appellant herein
was the proprietor, was in the said panel. The employees of Bharat Heavy
Electricals Ltd. (BHEL), Haridwar, had engaged the coaches belonging to
R.K. Tourist for their LTC Tours. There was information received by
Subhash Chander, who is the complainant in this case, on 12.08.1994 that the
employees of BHEL were claiming false LTC showing documents that they
had travelled in ITDC coaches without actually travelling and this was done
with the connivance of the appellant herein.
3. Acting on the complaint, Subhash Chander, the complainant, left Delhi
and reached Haridwar for a surprise check on the night intervening
13.08.1994 and 14.08.1994. It would appear that he found only 8 buses out of
15 buses scheduled to leave Haridwar on LTC tours for different places; he
made a check of the passengers in the 8 coaches with the help of the list of
passengers provided by ATT and found that 128 passengers who were
supposed to be in those 8 buses were not present, though listed to travel.
4. On the basis of above surprise check, the complainant submitted a
report on 16.08.1994 on his return to Delhi, to the Vice President (Security)
and Executive Director (Vigilance).
5. On 26th or 27th August, 1994, the appellant-accused is alleged to have
made a telephonic call to the complainant that the irregularity in the matter of
LTC of BHEL employees can be hushed up and that he would pay a bribe of
`7,500/- to the complainant for hushing up the same @ `500/- per coach for
15 coaches which were involved. It is alleged that in spite of the repeated
refusal of the complainant, the appellant-accused was trying hard to persuade
him to accept the bribe. The appellant-accused also informed the complainant
on 01.09.1994 over telephone that he would meet the complainant at the
complainant's office at about 12:30 hrs. on 02.09.1994. The complainant
spurned the offer of bribe, but told the appellant that he may come to his
office on 02.09.1994 to meet him.
6. On 02.09.1994 the complainant, who is PW-1, lodged a complaint with
the SP, CBI narrating the aforesaid facts. The FIR was registered on the basis
of the complaint and the case was handed over to R.S. Tokas, Inspector (PW-
6) for the purpose of laying a trap. Inspector Tokas, who was the Trap Laying
Officer (TLO) requisitioned the services of two independent witnesses
namely Swami Nath Sah (PW-2) and Deep Pant (PW-3), Peon and Assistant
respectively in the vigilance section of the Ministry of Health and Family
Welfare, Nirman Bhawan, New Delhi. They were informed about the
complaint. PW-3 i.e. Deep Pant was to act as the shadow witness to hear and
see the conversation/ transaction. All the formalities of the trap laying
procedure were finalised. It was arranged that the complainant was to give
the pre-appointed signal as soon as the transaction of giving the bribe money
was completed.
7. The trap party of the CBI reached Samrat Hotel where the office of the
complainant was located at the ground floor. The complainant Subhash
Chander along with the shadow witness Deep Pant went into the room of the
complainant and the other members of the trap party took suitable positions
nearby. At around 1:15 p.m. the appointed signal - a double ring of the call
bell - was given at which the TLO and the other members of the trap party
rushed into the room of the complainant where the accused was found sitting
on the third chair from the side of the entry and across the table of the
complainant, with the shadow witness occupying another chair. A bundle of
currency notes were found lying on the table. The complainant and the
shadow witness allegedly told the TLO that the accused (appellant herein) had
offered the amount of `7,000/- by referring to the fact that one vehicle (out of
15) was in the clear since the passengers of that vehicle included the family of
one Mr. Sharma, who were apparently scheduled to travel in that bus.
Allegedly, the accused had placed the money on the table, whereupon the
complainant gave the pre-arranged signal.
8. The TLO had the currency notes counted by the independent witnesses
who reported that the notes totalled to `7,000/-. The notes were seized and
proceedings were recorded in the recovery memo (Ex. PW-1/B). A personal
search of the accused was conducted thereafter, after which he was arrested
by the CBI.
9. Investigation followed, requisite records were seized, statement of
witnesses were recorded and a chargesheet was laid on 05.01.1995 seeking
trial of the accused Hari Kishan Bansal for the offence under section 12 of the
PC Act. According to this section, whoever abets any offence punishable
under section 7 or section 11, whether or not that offence is committed in
consequence of that abetment, shall be punishable with imprisonment for a
term which shall be not less than six months but which may extend to 5 years
and shall also be liable to fine. Charges were framed under this section on
10.10.1995. The accused pleaded not guilty and claimed trial. During the
trial 7 witnesses were examined by the prosecution and one witness was
examined for the defence. For the prosecution, the witnesses examined
included Subhash Chander, the complainant (PW-1), the two independent
witnesses (PW-2 and PW-3), Anis Ali Khan, Assistant Manager, ATT (PW-
4), J.P. Sharma, Vice President, ATT (PW-5), the TLO (PW-6) and Inspector
Khari, who was the Investigating Officer (PW-7).
10. The accused was examined under section 313 of the Cr.P.C. and a
statement was recorded from him. He denied having offered or tendered any
bribe to the complainant. He alleged that it was a false complaint initiated to
settle a grudge against him. He admitted that he was the proprietor of R.K.
Tourist, which was in the panel of ITDC. The tour in question was to
commence on 13.08.1994 and end on 16.08.1994, with 15 coaches.
According to the accused, on the completion of the tour the transporter would
submit the bill which would be paid by the ITDC after deducting its
commission. He stated that the complainant was in the habit of making false
complaints and used to pressurise him (the accused) to file complaint against
other officials of the department and also pressurise the accused to pay money
on each and every tour programme to which he (the accused) was not
agreeable. The accused further stated that he was not present at the time the
surprise check was said to have been undertaken by the complainant in
Haridwar. He also stated that his bill in respect of the 7 buses which did not
leave Haridwar on the night on 13.08.1994 was withheld only because the
complainant wanted to extort money from him. According to the accused
when he visited the office of the ITDC routinely on 02.09.1994, the
complainant took him to his office and gheroed, manhandled and falsely
implicated him. The seized money, according to the accused, did not belong
to him.
11. In support of the statement made as above, the accused led evidence in
defence by examining one Pehlwan Sagar, a counter clerk in ATT.
12. On the aforesaid facts and after elaborately examining the evidence the
trial court believed the evidence of the complainant Subhash Chander (PW-1).
He referred to the evidence of a clerk in ATT who referred to the submission
of the bills by R.K. Tourist and the fact that they were all checked and
cleared, though he was not clear whether final payment was made or not. He
also referred to the fact that the bill was under objection because the list of
passengers submitted by R.K. Tourist was found not tallying with the list of
passengers submitted with the bill. During cross-examination he admitted
that out of 15 files relating to 15 coaches there was vigilance objection with
regard to 8 of them. He also admitted that he did not have any knowledge
whether LTC tours in question were actually conducted or not. He however,
confirmed the fact of the complainant having gone to Haridwar along with the
two guards for verification and checking the tours.
13. The trial court also referred to the testimony of PW-1 (the
complainant) that the accused approached him against the above backdrop
and made telephone calls and also contacted him at his office on 26th or 27th
August, 1994 and requested him to hush up the matter saying that the officials
of Garhwal Mandal ignore such instances by accepting money. PW-1 refused
to help the accused and told him to conduct the tours honestly. On
01.09.1994, the accused contacted the complainant over phone and tell him
that he would visit the office of the complainant the next day i.e. 02.09.1994
and bring `7,500/- to be paid as the complainant's cut @ `500/- per bus. PW-
1 stated that he declined to accept the bribe, but had told the accused that he
may come to his office. He also deposed that he narrated these facts to his
Executive Director (Vigilence) and on his direction reported the matter to the
CBI and lodged a complaint to the CBI at around 10:00 a.m. on 02.09.1994.
14. In the course of the cross-examination, PW-1 would appear to have
conceded that he had not reported the telephonic conversation with the
accused or the fact that the accused offered to bribe him. These facts,
according to PW-1, were not recorded in writing in any file. The trial court
has referred to this aspect but has stated that this did not adversely affect the
case of the prosecution since PW-1 had lodged the complaint to the CBI
which was the proper authority. In the opinion of the trial court, the non-
mention of the detailed facts relating to the conversation between the accused
and PW-1 and the offer of bribe in the report submitted by PW-1 to his
superiors was inconsequential because the complainant had taken his superior
officer into confidence and the absence of a formal report in writing cannot
create any doubt or weaken the case of the prosecution.
15. The TLO (PW-6) was found by the trial court to corroborate the
complaint made by PW-1, the endorsement of the same to him (TLO) by the
SP, CBI and the handing over of the case to him (TLO). The TLO also
confirmed that he had organised the trap party which included himself and
other officers of CBI. He also deposed that they proceeded to Nirman
Bhawan from where Swami Nath Sah (PW-2) and Deep Pant (PW-3) - both
independent witnesses - were inducted.
16. The version of the TLO was found to have been corroborated by the
deposition of the independent witnesses. It would appear that an attempt was
made before the trial court to show that they were not independent witnesses
but were witnesses of choice, but the trial court found no evidence to
substantiate the plea even remotely. The trial court noticed that in the
requisition letter given under the signature of the SP, CBI, there was no
requisition by any witness by name to be spared for the purposes of trap. No
other irregularity was found by the trial court in the induction of the
independent witnesses.
17. The trial court found that all the witnesses-PW-1 to PW-3 and PW-6 -
confirmed and corroborated each other and had cogently testified to the
sequence of events which took place once the trap party reached Hotel
Samrat. The trial court further found from the evidence that it consistently
showed that the complainant Subhash Chander had not touched the money in
question at any stage. The time of arrival of the accused at the office of the
complainant was also found to have been mutually corroborated by the
evidence of PW-1, PW-3 and PW-6. It may be added that the accused did not
dispute that he visited the office of the complainant on the date and time
stated in the prosecution case nor did he dispute his presence in the
complainant's room.
18. The trial court scrutinised the depositions of PW-1 and PW-3 relating
to what actually transpired in the office of the complainant when the accused
entered the same and found that though there were some differences, they
were not material and that both the testimonies were substantially the same.
According to PW-1, the accused occupied the chair and requested the
complainant to clear his case and thereafter pulled out the money from his
pocket and placed it on the table. The accused did not mention the amount of
money brought by him. Thereafter the pre-arranged signal was given by the
complainant and the TLO and other members of the trap party rushed into the
room. On being asked why he gave the money, the accused expressed regret.
On the instructions of the TLO, the money was picked up by the independent
witnesses and counted: there were 4 notes of `500/- each, 29 notes of `100/-
each and 42 notes of `50/- each aggregating to `7,000/-. The numbers of
these notes were noted down in the recovery memo (Ex. PW-1/B). After
confirming the description of the notes from the recovery memo the witness
identified the notes (exhibits P-1 to P-75) to be the currency notes which were
tendered by the accused by placing them on the table.
19. The evidence of PW-3 is slightly different. According to him, the
accused exchanged greetings with the complainant and then told the latter that
he had brought only ―this much‖ and would be paying the rest later. He then
offered the money which according to PW-1 was around `5,000/-. In cross-
examination, PW-3 stated that he was unable to confirm or deny whether the
accused had stated that he had brought `7,000/-. Such utterance was
attributed by PW-3 in his statement made under section 161 Cr.P.C.; when he
was confronted with this, he conceded that the accused had told the
complainant that he might take `7,000/- and clear the matter. However, PW-3
was not sure about the amount of money that was offered.
20. The minor differences between the depositions of PW-1 and PW-3
were not considered material by the trial court. Apparently the trial court
considered them to be futile attempts made on behalf of the accused to throw
doubts upon the exact amount of money offered by the accused in an attempt
to clear himself from charge. Another difference between the depositions of
PW-1 and PW-3 was as to whether the money was kept in an envelope or not.
According to PW-1 the notes offered by the accused were not placed in any
envelope, whereas PW-3 stated during cross-examination that the accused had
brought the money in an envelope but was unable to confirm whether it was
the envelope which was lying on the table under the hand of the accused,
when the CBI team entered. He was also unable to precisely remember at
which part of his office table the money was found to have been placed.
21. The evidence of PW-2 and PW-6 was also examined by the trial court.
It emerged during the cross-examination of these two witnesses that no finger
prints were lifted from the currency notes. The trial court, however, did not
find any merit in the suggested need for lifting the finger prints from the wad
of currency notes in the face of the fact that the investigating agency had
direct evidence of transaction available to it. The trial court, therefore,
observed that even if the complainant had not been searched - about which
there was some controversy - that will not change the situation for the better
for the defence in the teeth of the direct evidence of the accused having
brought the money and placed it on the office table of the complainant. Both
PW-1 and PW-3 (shadow witness) have categorically stated that the accused
had brought the money and offered it to the complainant.
22. The trial court also rejected the suggestion that there was ill-will
between the complainant PW-1 and the accused.
23. In the course of the trial, PW-2 and PW-3, the two independent
witnesses, were declared hostile and, therefore, were subjected to cross-
examination by the prosecution. Adverting to this fact, the trial court held
that the evidence of the hostile witnesses, to the extent it supports the
prosecution version can still be relied and acted upon in order to find out if
the evidence led through other relevant witnesses is believable. In support of
this position in law, the trial court relied upon the following judgments:
(i) K.L. Chana Bhai vs. State of Gujarat : 2000 Crl.L.J. 408 (SC)
(ii) Bhagwan Singh vs. State of Haryana : AIR 1976 SC 202.
(iii) Sat Paul vs. Delhi Administration : AIR 1976 SC 294.
(iv) Dharam Raj vs. State of MP : 1989 (1) Crimes 265.
24. The trial court, therefore, proceeded to act upon the evidence of PW-2
and PW-3 since it lent assurance to the evidence of the other witnesses,
particularly the complainant and the TLO.
25. It appears that the defence had argued before the trial court that the
FIR does not mention anything about the information having come from S.C.
Nangia, DGM of BHEL or about the statement of the complainant that the
accused offered bribe on 27.08.1994. This argument was rejected by the trial
court, which observed that the FIR is not expected to be a compendium of the
entire set of facts. According to the trial court there were contacts made by
the accused at several places and in different modes and on different dates and
in this view of the matter the omission to mention the bribe - offer on phone
on 27.08.1994 was not relevant, nor can it be said to be a contradiction. The
other minor arguments were also rejected by the trial court. For example it
was argued by the defence that at the rate of `500/- per bus the bribe offer
would amount to `7,500/- whereas the money actually recovered by the trap
party is only `7,000/- which renders the entire prosecution story doubtful.
The trial court has rejected this argument on the ground that there was
evidence that the accused himself had stated that since one of the 15 buses
was in the clear, therefore the amount he would pay as bribe would be only at
the rate of `500/- for 14 buses which came to `7,000/- which was also the
amount recovered by the trap party. The trial court also rejected the argument
that it was not clear whether the money was placed in an envelope or not
when it was alleged to have been offered to the complainant. According to
the trial court the very fact of the accused coming to the office of the
complainant around the time indicated in the FIR and the act of his taking out
the amount of `7,000/- and placing it on the office table itself is highly
incriminating. There was, according to the trial court, no explanation as to
why the accused came to the complainant's office with such an amount of
money and put it on the table of the complainant. These acts were themselves
sufficient to constitute an offer of bribe. The trial court thus rejected the
argument of the defence that this is a case only of preparation for the offer of
bribe and there was no actual offer of bribe because the money was never
proffered to the complainant by the accused by holding the money and
extending the same to the complainant. The trial court considered it sufficient
to constitute the offence under section 7 of the PC Act that the accused placed
the money in the office table of the complainant.
26. For the above reasons the trial court held that the prosecution has
successfully proved that the accused was guilty of the offence mentioned in
section 7 of the PC Act. It accordingly sentenced the accused Hari Kishan
Bansal to 4 years RI and fine of `20,000/- and in default of payment of fine
for a further RI for a period of 6 months.
27. Assailing the judgment of the trial court, counsel for the appellant
contended that it is duty of the appellate court to reappraise the evidence
scrutinised by the trail court since a first appeal is a continuation of the trial
and such an exercise would reveal that there is no evidence against the
appellant justifying the conviction under Section 12 of the P.C. Act which
provides for punishment for abetment of offences defined in Sections 7 and
11 of the said Act. He has taken me through the entire evidence of PW1,
including the cross-examination. It has been pointed that the evidence of
PW2, one of the independent witnesses, is full of contradictions the benefit of
which should be given to the accused. Referring to the evidence of PW3, who
is the shadow witness, it is submitted that it was not clear from the evidence
whether the amount alleged to have been offered to the complainant as bribe
by the accused was `5,000/- or `7,000/- and it is the duty of the prosecution
to be precise as to how much was offered as bribe, in which it has miserably
failed. It is pointed out that PW3 has stated in his evidence that there was
exchange of greetings between the accused and the complainant when the
accused entered the room of the complainant on 2.9.1994, which actually
would implicate the complainant Subhash Chander. So far as the evidence of
the TLO (PW6) is concerned, it is contended that there is no scientific
evidence to connect the currency notes with the accused. Moreover, it is not
also clear from the evidence of the TLO whether the currency notes were
lying in the centre of the table or closer to the accused. It is contended that if
the currency notes were found lying in the centre of the table and not closer to
the accused, that would be ambiguous evidence and it cannot be said that the
money was offered to the complainant as bribe. On the other hand, if the
money was lying closer to the accused, then it cannot be stated at all that it
was offered to the complainant as bribe. It is also pointed out that there is no
evidence to show clearly as to whether the notes were placed in an envelope
or they were lying as a bundle. According to the learned counsel, there were
different versions of this in the evidence, the benefit of which should go to the
appellant. Referring to the question Nos.25 to 27 and the answers thereto by
the accused in his statement recorded under Section 313 of the Cr.P.C., it was
contended on behalf of the appellant that the question which would arise in
this case would be whether the placing of the money in the table amounts to
offering a bribe, and the obvious answer would be in the negative because in
order to attract Section 12 of the P.C.Act read with Section 7 of the said Act,
it is incumbent upon the prosecution to show that there was a clear offer of
the illegal gratification to the public servant and mere readiness or willingness
or even preparedness to offer a bribe would not amount to abetment of the
offence punishable under Section 7 of the Act.
28. Mr Sandeep Sethi, the learned senior counsel appearing for the
appellant, who addressed arguments on the scope and ambit of Section 12 of
the P.C.Act contended that there was no abetment in this case since there was
no instigation of a public servant to accept the bribe within the meaning of
Section 12 of the P.C.Act read with Section 107 of the IPC. According to
him, paragraphs 5 and 9 of the statement of the PW1 (the complainant) reveal
that the accused merely placed the money on the table which would not
amount to instigation within the meaning of Section 107, IPC. Mr Sethi
extended his argument to contend that Section 12 of the P.C.Act did not cover
a mere offer to bribe since a mere offer to bribe would not become abetment
of an offence punishable under Section 7 since the offer did not result in the
acceptance of the same, in which case alone it can be said that there an
abetment of an offence. It is pointed out that where the bribe was not
accepted then no offence was committed by the public servant and in that case
there can be no abetment of any offence. Mr Sethi submitted that in the
ultimate analysis, the purpose and aim of the P.C.Act is to get at corruption by
a public servant and if the public servant is unwilling to accept the bribe, there
is no question of either Section 7 or Section 11 of the P.C. Act being
applicable.
29. The learned Special Public Prosecutor for the CBI, controverting the
factual as well the legal submissions advanced on behalf of the appellant,
contended that the evidence in this case read fairly and reasonably pointed to
the conclusion that the appellant was guilty of abetment of an offence
punishable under Section 7 of the Act and in the light of the language of
Section 12, it was irrelevant that the offence was not committed, in the sense
that the public servant did not accept the bribe. He pointed out that Section
12 was applicable ―whether or not that offence is committed in consequence
of that abetment‖. Mere offer of the bribe amounted to instigation,
particularly in the present case, because there is evidence on record to show
that the accused repeatedly made bribe-offers to the complainant, which
amounted to ―instigation‖ within the meaning of Section 107 of IPC. He also
drew support from Section 20 of the P.C.Act which provided for a
presumption, where a public servant accepts illegal gratification, that it was
accepted as a notice or reward such as is mentioned in Section 7.
30. In support of his contentions, the Special PP for the CBI placed
reliance on the following judgments, copies of which were filed before me:
(a) N P Prabhu vs. UOI : (2003) Cri.L.J. 2261 (Kerala).
(b) Roop Chand vs. State : (CBI) 2011 (1) JCC 386 (Delhi).
(c) Damodar Krishna Kamli vs. State : AIR 1955 Bom 61.
31. I have carefully considered the rival contentions, the evidence and
material on record and the reasoning of the trial court. I do not find any
ground for interfering with the judgment of the trial court for reasons given
hereinafter.
32. There is in this case no dispute that the accused Hari Kishan Bansal,
who was the proprietor of M/s R K Tourists Fatehpuri, Delhi was in the panel
of the ITDC for operating LTC tours, inter alia, for employees BHEL,
Haridwar. There is evidence to show that on the basis of information that
there were irregularities in the LTC claims with the connivance of the
accused, the complainant Subhash Chander, who was employed as Assistant
Manager (Vigilance and Security) in ITDC, went on a surprise check to
Haridwar on 13.8.1994. Irregularities were noticed by him in the tours
operated for BHEL employees by the coaches belonging to the appellant
(proprietor of M/s R K Tourists). Only 8 buses out of the 15 buses which
were to leave Haridwar on the night intervening 13.8.1994 and 14.8.1994
actually left and even those buses, did not carry any of the BHEL employees,
except one bus in which the family of Mr Sharma, an employee of the BHEL
did travel. Thus 14 of the buses belonging to the appellant which was
supposed to carry the BHEL employees did not so carry them; nevertheless,
bills had been raised by the accused-appellant as if they had carried BHEL
employees on LTC travel and claims were raised from ITDC on that basis.
33. It is thus established that 14 out of 15 buses did not carry any
employee of BHEL, Haridwar. However, a claim had been made by the
accused appellant upon ITDC for payment in respect of those 14 buses. This
was a gross irregularity which affords sufficient motive or reason for the
accused to contact the complainant on several occasions, including through
telephone on certain occasions, to request the complainant to hush up the
irregularity. The complainant was undisputedly a public servant, being
employed as Assistant Manager (Vigilance) in ITDC, a government
undertaking. He however, did not accept the offer of bribe. It has clearly
emerged from the evidence on record that the accused-appellant had contacted
the complainant by phone on 26th or 27th of August, 1994 and had made an
offer of bribe of `7,000/- @ `500/- per bus, for 14 buses. The offer was
repeated on 1.9.1994 on which date the accused appellant also told the
complainant over phone that he will bring the money the next day i.e.
2.9.1994 to the office of the complainant at around 12.30 pm. The
complainant promptly reported this to his superiors who advised him to lodge
a complaint with the CBI. Accordingly, the complainant filed a complaint on
2.9.1994, in the morning, with the SP, CBI. It is not necessary to recapitulate
what happened thereafter since I have already referred to the chain of events
leading up to the arrest of the accused.
34. The arguments of the learned counsel for the appellant with regard to
the unreliability of the evidence implicating the accused do not appeal to me.
It is true that due to certain contradictions in their statements, PW2 and PW3,
who had been inducted as independent witnesses, were declared hostile. But
their evidence, in so far as it supports the prosecution version, can still be
relied and acted upon so as to find out if the evidence led through other
relevant witnesses is believable. The entire case of the prosecution is that the
accused, by offering the bribe to a public servant (PW1), abetted the offence
punishable under Section 7 of the P.C. Act. Section 7 punishes the public
servant if he accepts or obtains or agrees to accept illegal gratification as a
motive or reward for doing or forbearing to do any official act or for showing
or forbearing to show, in the exercise of his official functions, favour or
disfavour to any person. In the case on hand the accused had, before
2.9.1994, contacted the complainant over phone on 26/27.8.1994 and again on
1.9.1994 and had offered to bribe the complainant as a reward or motive for
the complainant to hush up the irregularity committed by the accused by
making monetary claims, on ITDC in respect of 14 buses which did not carry
any BHEL employee on LTC tour. The accused thus made repeated offers of
bribe to the complainant and even mentioned the amount of the bribe and also
gave the calculation, i.e. @ `500/- per bus for 14 buses. He even told the
complainant that such irregularities were hushed up by the Garhwal Mandal.
The complainant, it is in evidence, had rejected the offer of bribe categorically
despite insistence by the accused. On 1.9.1994, the accused had informed the
complainant that he would be visiting the complainant's office on 2.9.1994
with the money. The complainant, though he refused the offer of bribe, did
not ask the accused not to come to his office. He actually told the accused
that he may come to his office the next day. No adverse inference can be
drawn from this against the complainant because though it is well within his
power and will to reject the offer of bribe, I am unable to find any reason why
he should also have asked the accused not to come to his office. As one of the
tour operators in the panel of ITDC it was within the rights of the accused to
visit the office of the complainant. That is apparently why the complainant,
while rejecting the bribe offer, also informed the accused that he may come to
his office the next day.
35. There is no merit in the submission of the counsel for the appellant that
it was not clear as to how much money was being offered as bribe - whether
it is `5,000/- or it was `7,000/-. The money lying on the table was counted
and it was found to contain `7,000/- in different denominations. The money
had been counted by independent witnesses as soon as the trap was executed.
He also confirmed the description of the notes from the recovery memo and
had identified the said notes to be the currency notes tendered by the accused
by placing the same on the table. It is thus clear that the accused had brought
`7,000/- with him. The calculations given by him earlier as to how the
amount of `7,000/- was arrived at leave no doubt that the accused actually
offered a bribe of `7,000/- to the complainant. This amount also tallies with
the recovery made from the accused at the time when the trap was executed.
36. The submissions based on the alleged ambiguity as to whether the
money was placed in an envelope and whether it was found in the centre of
the table or closer to the side of the accused are, in my opinion, irrelevant, as
rightly held by the trial court. The trial court has referred to the categorical
statement of PW1 during cross-examination that the currency notes were not
in any envelope. PW3 who had stated that the currency notes were kept in an
envelope was unable to confirm whether it was the envelop lying on the table
under the hand of the accused when the CBI tem entered the room. He
conceded that the envelope had not been brought in evidence. On the basis of
the evidence of PW1 and PW3, the trial court had no difficulty in holding that
the currency notes were not placed in any envelope.
37. Similarly, I do not think anything turns on the actual place where the
currency notes were found kept when the CBI team entered the room. The
accused had talked of the bribe to the complainant, he had also specified the
amount which he would pay which tallied with the amount recovered from
him and the currency notes were also found placed on the table. Taking the
chain and sequence of the events, it appears clear to me that the money was
offered to the complainant in the sense that it was intended by the accused to
be paid to the complainant. It was not a question of the accused being merely
willing or prepared to offer a bribe to the complainant. He went beyond the
stage of willingness and preparedness and when he took out the money from
his pocket and placed it on the table, it must be treated as an offer of the bribe
to the complainant. It is in the evidence of PW1 that after occupying the seat,
the accused requested him (PW1) to clear his claim and also stated that there
was no irregularity in one bus and thereafter took out the money from his
pocket and placed it on the table. As soon as the money was placed on the
table the complainant gave the pre-arranged signal at which the trap party
rushed into the room. The accused thus intended to give the money to the
complainant and had actually taken out the money and placed it on the table
which clearly amounted to offer of the bribe amount.
38. I now turn to Mr. Sethi's argument based on section 12 of the P.C.Act.
The section says that whoever abets an offence punishable under Section 7,
whether or not that offence is committed in consequence of the abetment,
shall be punishable with imprisonment for a term which shall be not less than
6 months but which may extend to 5 years and shall also be liable to fine.
The argument of the learned senior counsel for the appellant is that the section
does not cover a mere offer of bribe and having regard to the purpose of the
P.C.Act, the offence of accepting illegal gratification is not complete if the
public servant is unwilling and in such a situation there can be no question of
any abetment of an offence. The argument overlooks the fact that Section 12
applies irrespective of the fact whether the offence is committed or not
committed in consequence of the abetment. The word ―abetment‖ is not
defined in the P.C.Act but by virtue of Section 28 of the said Act, it is
permissible to look into the definition of ―abetment‖ appearing under Section
107 of the IPC. Section 107 of the IPC is as under :
―Section 107 - Abetment of a thing
A person abets the doing of a thing, who--
First.--Instigates any person to do that thing; or
Secondly.--Engages with one or more other person or persons
in any conspiracy for the doing of that thing, if an act or illegal
omission lakes place in pursuance of that conspiracy, and in
order to the doing of that thing; or
Thirdly.--Intentionally aids, by any act or illegal omission, the
doing of that thing.
Explanation 1.--A person who by wilful misrepresentation, or
by wilful concealment of a material fact which he is bound to
disclose, voluntarily causes or procures, or attempts to cause or
procure, a thing to be done, is said to instigate the doing of that
thing.
Illustration
A, a public officer, is authorized by a warrant from a Court of
Justice to apprehend Z. B, knowing that fact and also that C is
not Z, wilfully represents to A that C is Z, and thereby
intentionally causes A to apprehend C. Here B abets by
instigation the apprehension of C.
Explanation 2.--Whoever, either prior to or at the time of the
commission of an act, does anything in order to facilitate the
commission of that act, and thereby facilitate the commission
thereof, is said to aid the doing of that act.‖
It is also relevant to notice Section 116 of the IPC which speaks of abetment
of an offence punishable with imprisonment, if the offence is not committed.
The relevant part of the Section is as under :
―Section 116 - Abetment of offence punishable with
imprisonment--if offence be not committed
Whoever abets an offence punishable with imprisonment shall,
if that offence be not committed in consequence of the
abetment, and no express provision is made by this Code for the
punishment of such abetment, be punished with imprisonment
of any description provided for that offence for a term which
may extend to one-fourth part of the longest term provided for
that offence; or with such fine as is provided for that offence, or
with both;
XXXXXX
Illustration (a) to section 116, IPC reads as under :
(a) A offers a bribe to B, a public servant, as a reward for
showing A some favour in the exercise of B's official functions.
B refuses to accept the bribe. A is punishable under this section.
(b) A instigates B to give false evidence. Here, if B does not
give false evidence, A has nevertheless committed the offence
defined in this section, and is punishable accordingly.
(c) A, a police-officer, whose duty it is to prevent robbery, abets
the commission of robbery. Here, though the robbery be not
committed, A is liable to one-half of the longest term of
imprisonment provided for that offence, and also to fine.
(d) B abets the commission of a robbery by A, a police-officer,
whose duty it is to prevent that offence. Here, though the
robbery be not committed, B is liable to one-half of the longest
term of imprisonment provided for the offence of robbery, and
also to fine.‖
The question for consideration, in the light of the submissions made on this
point before me, is whether there was abetment by the accused of an offence
for which the complainant would have been punishable under Section 7.
Section 12 clearly says that abetment does not depend upon the successful
commission of the offence which is abetted. Even if the offence is not
committed, abetment can take place in the light of the language of Section 12.
39. A perusal of Section 107 IPC says that the present case can be brought
under the first part which defines abetment as including instigation of a
person to do a particular thing. The accused in the present case by informing
the complainant that he would pay him a bribe if the irregularity in the matter
of the LTC tours can be hushed up by the complainant, who was a public
servant, certainly is guilty of instigating the public servant to accept a bribe as
motive or reward for doing an official act or for showing a favour to the
accused within the meaning of Section 7 of the P.C. Act. Section 116 of the
IPC puts the matter beyond doubt. Illustration (a) of the section, which I have
extracted hereinabove, says that if A offers a bribe to B who is a public
servant, as a reward for showing A some favour in the exercise of B's official
functions and even if B refused to accept the bribe A would be punishable
under Section 116, IPC. It is the same idea which is conveyed by section 12
of the P.C. Act. It is irrelevant that the complainant in the present case,
Subhash Chander, did not accept the bribe and actually refused to accept it.
He promptly reported the matter to his superior and at the latter's suggestion
also lodged a complaint with the SP, CBI. The accused-appellant is thus
guilty of abetment of the offence punishable under Section 7. Section 12 of
the P.C.Act is clearly attracted.
40. I may refer only to a few authorities. In Damodar Krishna Kamli
(supra) it was held that the offer to pay bribe to a public servant even without
actually producing the money amounts to an offence under Section 165A of
the IPC. Section 165A of the IPC says that whoever abets an offence
punishable under Section 161 or Section 165, whether or not the offence is
committed in consequence of the abetment, shall be punished with
imprisonment of either description for a term which may extend to three years
or with fine or with both.
41. In this case the argument raised on behalf of the accused before the
Bombay High Court was that his conduct amounted only to preparation to
offer the bribe to the public servant and nothing more and that it did not even
amount to an offer to bribe; at best it may be regarded as an invitation to make
an offer. This contention was not accepted. Referring to Section 161, it was
observed that it would be clear that a public servant would be guilty of taking
illegal gratification under that section even if he agrees to accept the
prohibited gratification. Therefore, observed the Court it was not necessary in
order to bring home the charge under section 161 to prove that the public
servant has actually accepted or obtained illegal gratification. It would be
enough if it be shown that he had agreed to accept the illegal gratification. In
the words of the Court, the following would be position:
"It would be enough if it be shown that he had agreed to accept
the said illegal gratification. In other words, if a proposal is
made to the public servant in respect of payment of illegal
gratification and the proposal is accepted by the public servant,
he would be guilty under Section 161, Penal Code. If that be the
true position, it must follow that the making of the offer would
itself constitute an offence under Section 165-A in regard to the
payment of illegal gratification. If a person who offers to pay
the amount makes his proposal, that constitutes an offence
under Section 165-A. If the proposal is accepted, that
constitutes an offence under Section 161, Penal Code.
In this connection it may be relevant to refer to ill. (a) under
Section 116 of the Code. Section 116 deals with an abetment of
the offence where the offence abetted is not ultimately
committed. Illustration (a) to this section deals with the case of
an offer of a bribe by A to B, a public servant, as a reward for
showing A some favour in the exercise of B's official functions.
A is punishable under Section 116 even though B may refuse to
accept the bribe. It would thus be clear that the offer of the
bribe would amount to an abetment under Section 116 and
would necessarily constitute an offence under Section 165A.
The definition of the word "instigation" contained in Section
107 leads to the same result. Any act committed by a person
which amounts to instigation as defined in Section 107 would
attract the provisions of Section 165-A, Penal Code."
It must be noted that even under Section 7 of the P.C.Act, mere agreeing to
accept illegal gratification would be an offence punishable under that section.
Therefore, whatever was stated by the Bombay High Court with regard to
section 161 of the Indian Penal Code (omitted by Section 31 of the P.C.Act)
would equally apply to the interpretation of section 7 of the P.C.Act. The
language is in substance the same. Moreover, in an earlier judgment in
Emperor Vs. Amiruddin AIR 1923 Bom 44, a judgment which was referred
to in the case of Damodar Krishna Kamli (supra) Macloud, C.J. observed that
"......a person is said to instigate another to an act when he
actively suggests or stimulates him to the act by any means or
language direct or indirect, whether it takes the form of express
solicitation or of hints, insinuation or encouragement."
The actual offer in the sense of the production of money before the public
servant was not considered by the Bombay High Court to be sine qua non of
the offence under section 161 of the IPC read with section 107.
42. The next decision is that of the Allahabad High Court in Padam Sen
and Anr. Vs. State AIR 1959 ALL 707. In this case the learned Single Judge
of the Allahabad High Court held as under :
"10. As to the first question of law that money had not actually
passed from Padam Sen to Sri Raghubir Prasad, that is
immaterial inasmuch as Section 165A, I. P. C., penalises
abetment of the offence punishable under Section 161 or section
165 "whether or not that offence is committed in consequence of
the abetment." Now, of the various ways of abetment given in
Section 107, I. P. C. the one applicable to the facts of the
present case would be the first, namely, instigating any person
to do the thing (here, to commit the offence punishable under
Section 161 or Section 165). For this form of abetment, unlike
the other two mentioned in Section 107, merely instigating
another to commit the offence would render the instigator liable
as abettor irrespective of whether that of her committed, or even
consented to commit, the offence.
For this form of abetment, therefore, the words "whether or not
that offence is committed in consequence of the abetment"
occurring in Section 165A are redundant. It follows therefore
that as soon as the appellants had instigated Sri Raghubir
Prasad to let them change the book of account in question by
offering Rs. 900/- to him, the offence of abetment of the offence
under Section 161 was complete within the intendment of
Section 165A quite irrespective of the fact that Sri Kaghubir
Prasad did not accept, or even consent to accept, the money.
The first question of law raised therefore fails."
It is important to note that the Allahabad High Court held that as soon as the
accused had instigated the complainant to let him (accused) change the books
of account in question by offering a bribe of `900/- to him, the offence of
abetment of the offence under section 161 was complete within the
intendment of section 165A.
43. The issue has been decided by Sanjay Kishan Kaul, J of this Court in
the case reported as Bhupinder Singh Patel Vs. CBI. The judgment is dated
30.08.2008. The following observations of the learned Judge are relevant to
the present case :
"Thus, a person may be charged of an offence of abetment if he
instigates a person to commit an offence; or engages in a
conspiracy to commit such an offence or intentionally aides a
person to commit an offence. Section 109 IPC provides
punishment for abetment, if the offence is committed in
consequence to such abetment and where no express provision
is made for its punishment. Such offence of abetment will be
constituted, even when the person refuses to commit such an
offence. Mens rea is an essential ingredient of a criminal
offence unless the statues expressly or by necessary implication
exclude the same."
44. The aforesaid authorities, including the judgment of this Court are
clear to the effect that (a) an offer of a bribe amounts to instigation of an
offence within the meaning of section 107 IPC read with section 12 of the
P.C.Act and (b) that it is not necessary to attract Section 12 of the P.C.Act
that the bribe money should be actually offered or produced before the public
servant and that it is sufficient that the person who offers to pay the bribe
merely makes his proposal, which would constitute an offence of abetment. It
is needless to add that section 12 expressly states that the offence of abetment
is complete even if the public servant does not or refuses to accept the bribe.
These decisions clinch the issue against the appellant.
45. For the aforesaid reasons I uphold the conviction of the appellant Hari
Kishan Bansal under section 12 of the P.C.Act.
46. With regard to the sentence of 4 years and fine of `20,000/-, it is
submitted that the fine has been deposited and that the appellant was admitted
to bail by orders of this Court on 23.9.2002. A perusal of this order shows
that the appellant was on bail throughout the trial. As far as the sentence of 4
years' RI is concerned, it is submitted on behalf of the appellant that the
incident took place in 1994 which is about 19 years back, that the appellant is
aged 78 now, that there are other mitigating facts such as the business of the
appellant is now defunct, he has no regular sources of income, that he had lost
his only son and has to support his wife, daughter-in-law and two grand
children and therefore, sending him to jail at this stage of his life would be
harsh. My attention was drawn to a judgment of this Court (Mukta Gupta, J)
in Roop Chand Vs. State (CBI) (supra) where in paragraph 8 it has been
observed that having regard to the fact that the appellant (in that case) was 88
years' old and that he had undergone a sentence of imprisonment for 10 days
and also deposited the fine amount, the sentence awarded by the trial court
was modified to the period of RI for 6 months. It is submitted that in that case
also the conviction was under section 12 of the P.C.Act and that the
circumstances in which the present appellant is now placed being similar to
that extent, the minimum sentence may be awarded.
47. I have carefully examined the submissions. The appellant had
attempted to bribe a public servant who, true to his conscience had refused to
succumb to the temptation. Several attempts were made by the appellant to
bribe the public servant, all of which were successfully resisted by the latter.
Having said that, the submissions made by the learned counsel for the
appellant on the harshness of the sentence of 4 years' RI cannot also be
ignored totally. The appellant has undergone the travails of a trial for about
19 years. He is now close to 80 years without any regular source of income,
as stated by his counsel, and has not only his wife to look after but also the
wife and children of his deceased son. There is also no record of his having
committed any offence during this period of 19 years. Having regard to all
these mitigating circumstances I reduce the sentence to six months.
48. The appeal is disposed of as above. The appellant shall surrender
within 15 days to the Court failing which the police authorities are at liberty
to take him into custody at the end of the aforesaid period. The trial court be
apprised of this judgment forthwith to ensure its compliance.
(R.V. EASWAR)
JUDGE
MAY 17, 2013
hs/vld
