Rajinder Kumar Narang vs State
2014 Latest Caselaw 962 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Judgment reserved on: 11.02.2014
                                Judgment delivered on: 21.02.2014

+                         CRL.A. 95/2006

       RAJINDER KUMAR NARANG          .... Appellant
                   Through: Mr.Vikas Pahwa, Sr. Advocate
                            along with Mr. Apurv Lal,
                            Advocate.
                   versus

       STATE                                     ..... Respondent
                          Through:    Ms.Fizani Hussain, APP.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 The appellant is aggrieved by the impugned judgment and order

of sentence dated 07.2.2006 wherein he had been convicted under

Sections 7 and 13(1)(d) read with Section 13(2)of the Corruption of

Prevention Act (hereinafter referred to as the said Act) and had been

sentenced to undergo RI for a period of 3 years and to pay a fine of

Rs.15,000/- in default of payment of fine to undergo SI for 6 months for

the offence under Section 13(1)(d) of the said Act; for the offence under

Section 7 of the said Act he has been sentenced to undergo RI for a

period of 2 years and to pay a fine of Rs.5000/- in default of payment of

fine to undergo SI for 4 months. Sentences were to run concurrently.

Benefit of Section 428 IPC was granted to the appellant.

2 The facts as emerged from the record show that on 26.7.1999 an

oral complaint was filed by Ravinder Kumar (PW-3) to the Inspector of

the Anti Corruption Branch which was to the effect that the appellant

who was working as a junior engineer (Buildings) of the Rohini Zone

of the MCD had demanded illegal gratification of Rs.10,000/- for giving

Form-C which was required by PW-3 for the construction which he was

carrying out over his plot in Maulana Azad Co-operative Group Housing

Society, Pritam Pura, Delhi. This complaint Ex.PW-3/A (scribe of

whom was not examined), stated that the complainant had applied for

his Form-C in the office of the MCD, Rohini Zone a week ago; the

Inspector had gone for site inspection; on 22.7.1999 the complainant had

gone to MCD office and enquired about his Form-C wherein he was told

that to obtain the From-C he would have to pay a sum of Rs.15000/-

which was negotiated down to Rs.10,000/-. Under pressure the

complainant agreed to pay this amount in his office on 26.7.1999;

however, since he did not wish to pay this amount he made the present

complaint.

3 Pre-trap proceedings were arranged at 2.55 p.m. on the same day.

Shadow witness Prabhunath Prashad (PW-10) was asked to join. In his

presence a demonstration was given by the raid officer ACP V.P.Singh

(PW-12). 20 GC notes in the sum of Rs.500/- each which had been

handed over by the complainant to the raid officer were coated with

phenolphthalein powder; a live demonstration by dipping the hands of

PW-10 after touching the tainted notes was conducted upon PW-10; the

solution turned pink in colour. PW-3 was explained that he was to

hand over the money only on demand.

4 The trap proceedings were conducted between 2.55 p.m. till the

evening. They were evidenced in the panchnama (Ex.PW-3/M).

Version of Pw-3 being that the demand was made by the appellant for

the bribe money and the same was handed over to him in his right hand

pocket which was in the presence of Pw-10; on the appointed signal

being given by PW-10 the trap party which comprised of Ramesh

Kaushik (PW-14) as well reached the spot.

5 In the statement of the accused recorded under Section 313

Cr.P.C., he pleaded innocence. His version was that he was falsely

implicated in the present case. Submission being that the complaint had

come alone to his office and he was standing in his room when the

complainant forcibly put some money in his pocket. The appellant

reacted and when he was in the process of returning this money the

police came and arrested him.

6 Two witnesses were examined in defence. Mahesh Kumar

(DW-1) proved a letter dated 02.8.1999 which was written by the

accused to the office of In-charge of the Building Department regarding

his false implication in a false case. B.P.Sharma (DW-2) had detailed

the procedure for obtaining the Form-C and non-obtainment of the

C-Form would lead to a penalty of Rs.200/-. These documents have

been proved as Ex.DW-2/A and Ex.DW-2/B. Submission of the learned

counsel for the appellant on this score being that the Junior Engineer

have no power to issue the Form-C and it can only be obtained by a

executive engineer.

7 On the basis of the aforenoted evidence collected by the

prosecution the accused was convicted under the aforenoted provisons

of law and sentenced accordingly.

8 On behalf of the appellant arguments have been addressed by

Mr.Vikas Pahwa, Learned Senior Counsel. Submissions have been

made in detail. It is pointed out that the version of the prosecution

suffers from inherent improbabilities and is liable to be discarded for

various reasons. Attention has been drawn to the testimony of PW-3. It

is stated that PW-3 is a hostile witness and did not support the case of

the prosecution. Panchwitness has also not supported the case of the

prosecution. Admittedly the complaint made by the complainant is oral

and not written. The scribe of the complaint has not been examined. It

is pointed out that to establish the ingredients of an offence under

Section 7 and 13(1)(d) of the said Act for which the appellant had been

convicted there must be first and foremost a demand; after the initial

demand the trap money must voluntarily accepted; in the absence of

demand and a conscious acceptance the ingredients of the offence under

Section 7 and 13(1)(d) of the said Act are not made out. Learned counsel

for the appellant has placed reliance upon the following judgments:

2013(101) Scale 211 State of Punjab Vs. Madan Mohan Lal Verma,

2012(11) Scale 255 Rakesh Kapoor Vs. State of M.P., 2010(4) SCC 450

Banarsi Dass Vs. State of Haryana, (2009) 3 SCC 779 C.M.Girish Babu

Vs. CBI to support this submission.

9 Further submission being that it is only when the foundation of

the case has been set up by the prosecution that the presumption under

Section 20 of the said Act can be invoked. To support this submission

reliance has been placed upon (2012( 11 SCC 642 Mukut Bihari and

Anr. Vs. State of Rajasthan, (2009) 15 SCC 200 State of Maharashtra

Vs. Dnyaneshwar Laxman Rao Wankhede and (2002) 5 SCC 86

Subhash parbat Sonvane Vs. State of Gujrat. It is pointed out that the

initial demand itself has not been proved as PW-3 has not supported the

version of the prosecution and neither has PW-10 done so. Reliance by

the trial judge on the sole testimony of PW-12 for convicting the

appellant is uncalled for. There are inherent improbabilities in his

version also. It is pointed out that the report of the CFSL cannot be

relied upon as the link evidence is missing. Attention has been drawn to

the testimony of PW-1 (R.K. Joshi) who had retained the exhibits in his

almirah. Submission being that they were not deposited in malkhana. It

is pointed out that there is no evidence brought forward by the

prosecution to show as to through whom the samples were sent to the

CFSL and in the absence of which a vital link is missing; possibility of

tampering of the sample could not be excluded and benefit of doubt

must accrue in favour of the appellant. Attention has also been drawn to

the seizure memo Ex.PW-3/C which had effected the seizure of the GC

notes. Submission being that how the FIR number in the same hand

writing had appeared in the top of the documents, is unexplained. This

is clearly for the reason that the documents were prepared in the office

and none of the documents were prepared at the spot. Attention has also

been drawn to Ex.PW-3/D and Ex.PW-3/E where also FIR number finds

mentioned; submission being that it is in the same hand writing and this

evidences the fact that these two documents were also not prepared at

the spot. To support this argument reliance has been placed upon the

judgments of this court reported as 200(10 AD (Delhi) Giri Raj Vs.

State, 2000(1) AD (Delhi) 1000 Ramji Singh Vs. State and Crl. Appeal

No.2 of 2008 decided on 24.01.2014 titled as Rama Kant Sharma Vs.

State of Delhi. Further submission being that ample evidence has come

on record to substantive the defence of the appellant that the issuance of

Form-C is not within the domain of the Junior Engineer; it can only be

issued by the Executive Engineer and for this purpose attention has been

drawn to the statement of DW-2 as also to the examination of PW-2,

who has admitted that issuing authority of Form-C is the Executive

Engineer and not the Junior Engineer. It is pointed out that PW-6 has

also admitted this fact in his cross-examination. On all counts benefit of

doubts accrues in favour of the appellant.

10 Arguments have been refuted by the State. It is pointed out that

on no count does the impugned judgment suffer from any infirmity. It is

pointed out that the testimony of the raid officer without corroboration is

by itself sufficient to convict the appellant and for this proposition

besides drawing attention of this court to the version of PW-12 reliance

has also been placed upon (1998) 1 SCC 557 State of U.P. Vs.

Zakuallah . It is pointed out that in this case the court had noted that

the testimony of the DSP even without corroborative and even where the

link evidence is missing and there was no report of the CFSL, the

evidence of the prosecution was relied upon to convict the appellant.

The testimony of a hostile witness can also be relied upon and to the

extent that the versions of PW-3 and PW-10 are in conformity with the

version of the prosecution the same can be looked into. To support this

proposition reliance has been placed upon (2010) 10 SCC 349

Paramjeet Singh @ Pamma Vs. State of Uttrakhand ; testimonies of

these witnesses cannot be rejected in toto. It is pointed out that the

demand had been proved in the version of PW-3 who had admitted that

he had signed the complaint Ex.PW-3/A; the prosecution was well

within its right to draw presumption under Section 20 of the said Act.

For this proposition reliance has been placed upon 2012 VIII AD

(Delhi) 466 Harish Chand Khurana Vs. State . It is pointed out that that

in this case where the demand and acceptance had been made by gesture

it was sufficient to fall within the ambit of Sections 7 and 13(1)(d) of the

said Act. On the question of FIR number being mentioned in the

seizure memo it is stated that a Bench of this Court in 2013 II AD

(Delhi) 288 Rattan @ Ratan Singh Vs. State had noted that the FIR

number is added by the investigating officer for the purpose of record

later on and the explanation of the investigating officer in that regard

was found convincing; this by itself would not sufficient to demolish the

version of the prosecution or to hold that the documents were not

prepared at the spot. Even otherwise an illegality in investigation should

not accrue for the benefit of appellant and to substantiate this

proposition reliance has been placed upon 195 SCR 1150 H.N.Rishbud

and Inder Singh Vs. The State of Delhi .

11 Arguments have been heard. Record has been perused.

12 PW-3 is the complainant. He has proved his complaint as

Ex.PW-3/A. Admittedly this complaint was not written by him. It was

written under dictation of PW-12; the scribe of the complaint was,

however, not examined. PW-3 had deposed that on the fateful day i.e.

26.7.1999 he was working as a property dealer; the appellant Junior

Engineer Narang had inspected his site; he has gone to obtain his

C-Form. The person sitting there told him that he will have to pay

Rs.10,000/- for getting the C-Form. Complaint was lodged. The pre-

trap proceedings have been deposed to by PW-3. He stated that in the

pre-trap proceedings which were conducted in the Anti-Corruption

Branch 20 GC notes Rs.500 denomination each were taken from him

and had been handed over to PW-12 who applied phenolphthalein

powder on the same in the presence of a public witness. The hand wash

of the panchwitness after touching the notes when dipped into a solution

of sodium carbonate turned pink. Raiding party was organized. PW-3

had been explained that the money has to be handed over only on

demand. On reaching the spot on inquiry they learnt that JE had not

come to his office. At 3.00 p.m. Mr.Narang came to his office. He was

identified as the accused. PW-3 asked the appellant about his C-Form.

The accused showed him his palm. The money was put by PW-3 in his

pant pocket. Meanwhile raid officials reached the spot and recovered

the tainted money from the pant pocket of the accused. Hand washes

and pant pocket wash of the accused were taken which were seized and

sealed vide memo Ex.PW-3/D in separate bottles Ex. P-21 to 24. Pant

of the accused was also taken into possession vide memo Ex.PW-

3/E. In his cross-examination PW-3 admitted that he had given his

complaint Ex.PW-3/A but the same was not allowed to be read by him.

He denied the suggestion that a demand of Rs.15000/- had been made

by the JE for solving his problem of obtaining C-Form; however, when

confronted with his complaint Ex.PW-3/A the demand of Rs.15000/-

had been mentioned. He admitted that he had been summoned in the

office of the JE along with the bribe money of Rs.10,000/-. He admitted

that he had mentioned the name of Narang in his complaint as he knew

that the JE was one Mr. Narang. In a further part of his cross-

examination he denied the suggestion that the accused had accepted the

money from him in his right hand. Voluntary version of PW-3 being

that he had put the money in the pant pocket of the accused when he had

given an indication by showing his palm. PW-3 admitted that when he

handed over the money to the accused and the money was kept by him

in his right pant pocket panchwitness (PW-10) had given the pre-

appointed signal. He admitted that his signatures on these memos were

obtained in the Anti-Corruption Branch. He admitted that raid officials

rushed to the spot within 2-3 seconds of his putting the money in the

pocket of the accused; they remained present up to 7.00 p.m.

13 The next important witness relied upon by the prosecution was

the panchwitness examined as PW-10. He deposed that in July, 1999 he

was posted as an LDC in the SDM Court Seelampur. He was asked to

report in the Anti-Corruption Branch for duty. He was informed that a

junior engineer was demanding a bribe. The pre-trap proceedings and

the demonstration of the tainted money smeared with the

phenolphthalein powder when touched with hands and on washing the

hands in solution turning pink has been explained to him. He was told

that he was to give pre appointed signal only after the payment had been

made by PW-3 to the appellant. He further deposed that at 3.30 p.m.

the accused had come his office; after about 10-15 minutes he heard a

noise of "Pakro-Pakro" from the room of the JE. On reaching the room

he saw that the Inspector of the CBI was having chemical smeared

currency notes in his hand and the accused JE was saying that he had

been falsely implicated. Members of the raiding party gathered there.

PW-10 further deposed that no hand writing work was done at the spot.

He admitted his signatures on the pre-raid report Ex.PW-3/B as also on

the seizure memo of the currency notes Ex. PW-3/C; seizure memo of

the wash bottles Ex. PW-3/D and seizure memo of pant Ex.Pw-3/E. In

his cross-examination, he denied the suggestion that in his presence the

raid had been conducted or that the demand or acceptance was made by

the appellant from PW-3 while he was present. This witness has been

declared hostile by the public prosecutor but he stuck to his stand. In his

cross-examination he admitted that the documents which were signed by

him had not been read over to him.

14 Versions of PW-3 and PW-10 have been heavily relied upon by

the learned counsel for the appellant to establish his submission that

since the demand has not been established and the demand being sine

qua non to establish the offences under Sections 7 and 13(1)(d) of the

said Act, the acceptance by the appellant also not being conscious and

voluntary, the subsequent proceedings recorded by PW-12 who had

reached the spot after the incident was over do not merit any

consideration. This argument has to be answered on the touchstone of

the testimony of PW-3, PW-10 and PW-12.

15 PW-12 was the raid officer. He deposed that the pre-raid

proceedings were organized and explained after recording the complaint

Ex.PW-3/A which had been lodged by the complainant. This complaint

was recorded by PW-3. In the pre-raid proceedings the live

demonstration on PW-5 was given and when the tainted money was

touched; hands dipped into a solution; the solution would change its

colour. He has deposed that in the raid which was conducted after 2.55

p.m. on the signal given by PW-10 he along with other members of the

party entered the room and on the pointing of the complainant he

challenged the accused that he had taken a bribe of Rs.10,000/- on

which the accused remained silent. On the search of the right pant

pocket the tainted money was recovered and the numbers of tainted

money matched with the numbers of the notes recorded in the pre-raid

proceedings. Hand wash of the appellant was also taken. In his cross-

examination he admitted that the complainant has come alone in the

Anti-Corruption Branch. He remained at the spot till 5.30 p.m.. The fan

was on when he took position; it was on full speed. The memos were

prepared by SI Suraj Parkash under his dictation. He denied the

suggestion that the accused has been falsely implicated to make the trap

successful in order that PW-12 could obtain a reward or a certificate.

16 From the version of aforenoted witnesses it is clear that PW-12

had reached the spot after the incident was over i.e. after the alleged

demand and acceptance by the appellant from Pw-3 had been answered.

PW-3 had given an oral complaint which had been recorded by PW-12

through a person who was not examined. PW-3 has admitted his

signatures on Ex.PW-3/A but in his cross-examination he has

categorically stated that the complaint Ex. PW-3/A was not read over to

him. In Ex.PW-3/A it had been recorded that initially a demand of

Rs.15,000/- was made by the appellant which was later on negotiated

down to Rs.10,000/- whereas the version of the prosecution on oath in

court is that the demand was of Rs.10,000/- and that is why 20 GC notes

in the denomination of Rs.500/- has been arranged by the complainant.

There is no mention of Rs.15,000/-. In another part of his deposition

PW-3 has stated that at the time of the raid PW-3 had put the money in

the pant pocket of the accused when the accused showed his palm.

PW-3 reiterated that he himself put the money in the pant pocket of the

appellant at that time; the panchwitness (PW-10) thereupon gave the

appointed signal. He further admitted that after he had put the money in

the pant pocket of the accused, the accused put his hand in the pant

pocket and he cannot say whether he had put his hand in the pant pocket

to return the money to PW-3 or for any other reason. He admitted that

the raid official rushed to the spot within 2-3 second of his putting the

money in the pant pocket of the accused. PW-10 another important

witness who had allegedly witnessed this incident as is the version of

the prosecution had reported that when he reached the spot along with

members of the raiding party he learnt that the JE had not come. Within

10-15 minutes he heard the noise of "Pakro-Pakro" the accused JE was

saying that he has been falsely implicated. Testimony of PW-10 on no

count supported the version of the prosecution. PW-10 has admitted his

signatures in pre-trap proceeding as also on the memos Exs.PW-3/A,

PW-3/B, PW-3/C, PW-3/D, PW-3/E and Ex.PW-3/F (seizure memos

alleged prepared at the spot) but he has gone on to state that all these

seizures were got signed by him later on; none of them were prepared at

the spot. This is also the version of PW-3 who has also categorically

denied the suggestion that his signatures were obtained on the memos at

the spot. His statement being that his signatures were obtained in the

Anti-Corruption Branch. PW-12 had joined the raid at the time when

the incident was over.

17 It is thus the versions of PW-3 and PW-10 which is relevant to

answer the submission of the learned counsel for the appellant as to

whether ingredients of Sections 7 and 13(1)(d) of the said have been

fulfilled or not. Admittedly, there has to be a demand. The demand has

to be made by a public servant. This demand was allegedly noted in

Ex.PW-3/A. PW-3 had made an oral complaint. It was written by

another person under dictation of PW-12 and was signed by PW-3.

PW-3 has admitted that that he did not know the contents of the

complaint and there being a variation in his version as to whether the

initial demand started with Rs.15,000/- and then scaled down to

Rs.10,000/- or that the initial demand was Rs.10,000/- alone supports

the version of the PW-3 that the contents of Ex.PW-3/A were not read

over to him. The initial demand has not been established. In the raid

proceedings PW-3 had deposed that the appellant had shown his palm to

PW-3. There is no doubt to the proposition that even by gesture a

demand can be made. However, the fact that PW-3 has himself put the

tainted money in the pant pocket of the appellant and the appointed

signal having been given within the next 2-3 seconds of his putting the

money in the pant pocket of the appellant and the raiding party had

reached the room of the JE within those aforesaid 2-3 seconds is also

established. The tainted money was admittedly touched by the appellant

but the version of the appellant that this money which was put forcibly

in his pocket by PW-3 was being taken out by him to return it to PW-3

is also established as PW-3 on this score has stated that he could not

state as to whether when the appellant had put his hand in his pant

pocket; whether it was to return money to PW-3 or otherwise he could

not say. This admission of PW-3 on oath leads this Court to come to a

conclusion that there is a grave doubt as to whether this acceptance of

the money in the right pant pocket of the appellant was a voluntary and a

conscious acceptance or whether it was forcibly put in his pocket by

PW-3. This is further substantiated by the fact that the raiding party had

reached the room within the next 2-3 seconds. PW-12 straightway took

the search of the right pant pocket of the appellant. It is not the version

of the prosecution that the left pant pocket of the appellant was also

searched. Submission of the learned counsel for the appellant on this

score being that this is clearly a case of false implication and how

PW-12 knew that the money has been kept by the appellant in his right

pant pocket and nowhere else also throws a doubt on the version of the

prosecution. This argument of the learned counsel for the appellant is

also not without force.

18 The seizure memos, as is the admission of PW-3 and PW-10

which includes the seizure memo of the hand wash and pant pocket

wash of the appellant were signed in the office. The FIR numbers

appearing on these documents i.e. PW-3/C, PW-3/D, PW-3/E and

Ex.PW-3/F are on the same hand writing; there is no change in the ink.

PW-12 had deposed that these memos were prepared by SI Suraj

Prakash; SI Suraj Prakash was not examined as a witness. There was

thus no scope of cross-examination of the witness on this score. To this

extent the facts of the judgment of Ratan Singh (supra) are distinct

wherein the State had explained that the FIR number was subsequently

mentioned for the purpose of record and the court found it to be

convincing and the court had noted that the witness had also not been

cross-examined on this point. There is no explanation in this case.

However, there is also no doubt to the proposition that irregularity in the

investigation should not come to the aid of the appellant. It is a

wholesome view of the case which has to be taken. In the instant case

there is also no evidence on record to show as to who had taken the

sample from the Almirah of the ACP to the CFSL. The link evidence on

this score is missing. The defence of the appellant as is evident from his

line of cross-examination, his statement under Section 313 Cr.P.C. as

also his evidence in defence is that he was not the issuing authority of

the C-Form. Attention has been drawn to byelaws of the MCD dated

23.6.1983 (DW2/C) wherein non-obtaining of C-Form would lead to a

penalty of Rs.200/-. Argument on this score being that a person who is

going to be penalized for Rs.200/- for non-production of C-Form would

not agree to pay Rs.10,000/- to obtain the said C-Form. On this count

PW-3 has been specifically cross-examined; it has been suggested to

him that the penalty for not obtaining Form-C is Rs.200/-; it has also

been suggested to him that the accused has been falsely implicated. The

raid officer PW-12 has also been suggested that the penalty of Rs.200/-

is imposed if C-Form is not obtained. PW-13 ACP R.S.Yadav was the

investigating officer. In his cross-examination, he admitted in his cross-

examination that he had not done investigation about the penalty to be

imposed if the complainant does not obtain C-Form. PW-4 (architect)

has in his cross-examination admitted that if the C-From is applied for

and after 15 days it is not obtained penalty of Rs.200/- is imposed and

the C-Form is not required in that case. PW-6 Head Clerk in the MCD

Department has also admitted in his cross-examination that the C-Form

is issued by the Executive Engineer. PW-14 has also admitted that

C-Form is issued by the Executive Engineer although it is through the

Junior Engineer.

18 It thus stands admitted that non-obtainment of the C-Form would

lead to a penalty of Rs.200/-; further in case C-Form is not obtained

within a period of 15 days it would not be required; C-Form is issued

through Executive Engineer.

20 In this background the defence of the appellant that the notes were

forcibly put in his pant pocket; that he had neither made any demand

and this sum of Rs.10,000/- had been forcibly put in his pant pocket

which notes he had touched in order to then return to PW-3

substantiated by the evidence on record that the non-obtainment of the

C-Form would lead to a penalty of Rs.200/- and if after 15 days of days

of application the same is not issued it would not be required lead this

court to hold that it would be difficult to believe that the complainant

had agreed to pay a sum of Rs.10,000/- for obtaining this C-Form.

Since the prosecution has not been able to establish even the

foundational facts of the case, Section 20 of the Act which raises a

presumption in favour of the prosecution after only the foundational

facts of the prosecution case is established, does not come to the aid of

the prosecution. Version of the prosecution is full of doubts and

credibility of the witnesses is tarnished. There versions are not

believable. Defence of the appellant has in fact created a dent in the

case of the prosecution.

21 On this evidence the conviction of the appellant is clearly an

illegality. It is liable to be set aside. Appeal is allowed. The appellant is

acquitted of the charges leveled against him. Bail bond cancelled;

surety discharged.

INDERMEET KAUR, J FEBRUARY 21, 2014 ndn