Niranjan Singh vs State
2014 Latest Caselaw 1650 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Judgment reserved on:24.03.2014.
                                   Judgment delivered on:27.03.2014

+      CRL.A. 189/2006
       NIRANJAN SINGH
                                                         ..... Appellant
                          Through       Ms. Rebecca M. John, Sr. Adv.
                                        with Mr. Vishal Gosain, Mr.
                                        Kuldeep Gaur and Mr. Harsh
                                        Bora, Advs.
                          versus
       STATE
                                                       ..... Respondent
                          Through       Mr. Varun Goswami, APP

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This appeal has been directed against the impugned judgment and

order of sentence dated 04.03.2006 & 06.03.2006 respectively wherein

the appellant Niranjan Singh has been convicted under Sections 7 and

13 (1)(d) read with Section 13 (1)(2) of the Prevention of Corruption

Act, 1988 (hereinafter referred to as the 'said Act') and has been

sentenced to undergo RI for a period of 1 year and to pay a fine of

Rs.3,000/- and in default of payment of fine to undergo SI for three

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 6 months and to pay a fine of Rs.1,000/- and

in default of payment of fine, to undergo SI for 1 month.

2      The case of the prosecution is as follows:-

(i)    Complainant Ashok Puri (PW-9) had made a complaint in the

Anti-Corruption Branch on 10.05.1999 (Ex.PW-9/A). In this complaint,

it was stated that the complainant had applied for a telephone connection

at his residence i.e. at house No.44, second floor, West Patel Nagar,

New Delhi on 04.02.1999; the telephone fittings had been installed but

the line was not made operative; on 23.04.1999, he had made an

application in the telephone department at Karol Bagh asking them to

activate his telephone connection; he met the DGM. He was advised to

meet the JTO i.e. the appellant whom he met on 07.05.1999 and who

had made a demand of Rs.500/- for getting his phone activated. On

negotiations, the demand was reduced to Rs.400/-; Rs.100/- was given

on the same day and it was agreed that Rs.300/- will be paid on

10.05.1999. Since the complainant did not wish to pay the bribe amount,

he had made this complaint in the Anti-Corruption Branch.

(ii) On receipt of this complaint, V.P. Singh (PW-11) organized a pre-

raid team. The three currency notes of Rs.100/- each (Rs.300/-) which

the complainant had to pay as bribe money to the appellant were

produced before PW-11; their numbers were noted; a live demonstration

was given in front of the panch witness Dinesh Kanwar (PW-10) that

these notes have been coated with phenolphthalein powder and when

dipped into solution of sodium carbonate would turn pink; PW-11

directed PW-9 to handover the bribe money to the appellant only when a

demand was made; PW-10 had been advised that after the bribe money

had been accepted by the appellant, he would give the pre-appointed

signal to the raiding party.

(iii) Accordingly in the raid from the left fist of the appellant, a sum of

Rs.300/- was recovered; the number of GC notes were tallied. Left hand

wash of the appellant was taken which was sent for scientific analysis

and the CFSL vide its report (Ex.PW-11/D), tested this exhibit positive

for phenolphthalein.

(iv) Apart from the aforenoted witnesses, Bishan Singh (PW-1), P.J.

Pandey (PW-5) and Anup Singh (PW-6) who were working in the

MTNL had also been examined. PW-1 had produced documents

Ex.PW-1/A-1 to A-5 relating to the application of the telephone

connection made by the complainant to the Department. PW-5 was the

SDO at the relevant time; the appellant was working under him; his

version is that on 07/08.05.1999, the complainant had come to his office

in connection with telephone No.5714125; PW-5 gave instructions to

the appellant to look into the complaint of PW-9. PW-6 was a telephone

operator; as per his version, the telephone connection of the subscriber

i.e. Ashok Puri was okayed on 11.05.1999.

(v) This was the sum total of evidence collected by the prosecution.

(vi) In the statement of the appellant recorded under Section 313 of

the Cr.PC, he pleaded innocence; his version being that he has been

falsely implication in the present case.

(vii) No evidence was led in defence.

(viii) In view of the aforenoted evidence collected by the prosecution

both oral and documentary, the appellant was convicted and sentenced

as noted supra.

3 Arguments had been addressed in detail by learned senior counsel

Ms. Rebecca M. John assisted by Mr. Vishal Gosain, Advocate. It is

pointed out that the version of the complainant is inherently improbable;

his version that the demand was made on 07.05.1999 is demolished by

his admission in his cross-examination that admittedly no person was

present at the time when this demand was made from PW-9. It is pointed

out that there is no explanation as to why the complainant remained

silent and then finally made a complaint on 10.05.1999. The version of

PW-9 qua the second demand is full of infirmities and attention has been

drawn to the confrontation of the witnesses wherein certain parts of the

statement made on oath does not find mention in his earlier complaint

Ex.PW-9/A. It is pointed out that the testimony of the complainant is in

the nature of an evidence of an accomplice and rule of caution demands

that it must be corroborated. To support this submission, reliance has

been placed upon (1979) 4 SCC 526 Panalal Damodar Rathi Vs. State

of Maharashtra. Reliance has also been placed upon AIR 2000 SC 3377

Smt. Meena Balwant Hemke Vs. State of Maharashtra as also another

judgment of the Apex Court reported in (1996) 11 SCC 720 M.K.

Harshan Vs. State of Kerala. It is pointed out that in these cases where

the testimony of the complainant was not supported by other

corroborative evidence, benefit of doubt had accrued in favour of the

accused and he was entitled to an acquittal; it is pointed out that in this

case also, the panch witness (PW-10) is hostile; he has not advanced the

version of the prosecution; the testimony of PW-9 is also full of

infirmities; in the absence of any independent corroboration, the trial

Judge convicting the appellant has committed an illegality. Reliance has

been placed upon (2009) 3 SCC 779 C.M. Girish Babu Vs. CBI, Cochin

to support a submission that mere recovery of money is not sufficient to

convict an accused for the offence under Section 7 of the said Act;

presumption contained in Section 20 also cannot be drawn unless the

prosecution has crossed the initial threshold which it has failed to do so

in the instant case. It is pointed out that in this case, the version built up

by the prosecution in two parts; as per the complaint, the initial demand

of Rs.100/- was made on 07.05.1999 and the second amount of Rs.300/-

was paid on 10.05.1999; where the first part of the incident i.e. of

07.05.1999 has been disbelieved, reliance on the second incident of

10.05.1999 which is only continuation of the first incident of 0-

7.05.1999 is also an illegality and to support this submission reliance

has been placed upon a judgment of the Apex Court in (1977) 3 SCC

352 Hari Dev Sharma Vs. State (Delhi Administration). Attention has

also been drawn to Ex.PW-1/A as also the version of PW-1 and PW-6

on this score; submission being that this document is per-se inadmissible

as it was only a photocopy of the original and this document cannot be

read in evidence. To support this submission, reliance has been placed

upon (2009) 6 SCC 681 Ram Suresh Singh Vs. Prabhat Singh @ Chhotu

Singh and Another as also another judgment of a single Bench of this

Court in 1995 (34) DRJ Sudir Engineering Company Vs. Nitco

Raodways Ltd.. On all counts, the appellant is entitled to a benefit of

doubt and a consequent acquittal.

4 Learned APP for the State has refuted these submissions. It is

pointed out that the judgment of the Apex Court reported in AIR 2003

SC 4548 R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami

and V.P. Temple and another has settled the issue of admissibility of a

document; it is pointed out that unless and until such an objection had

been raised by the appellant before the trial Judge, it cannot be

entertained before this Court. It is pointed out that neither any objection

about the admissibility of the document nor any objection about its

mode of proof had been raised before the trial Court. On merits, it is

pointed out that the version of PW-9 is credible and coherent; on no

count, can it be disbelieved. It is pointed out that the Supreme Court in

(1979) 3 SCC 90 Prakash Chand Vs. State (Delhi Administration) had

noted that the testimony of a raid officer even by itself de-hors the

version of the complainant may also in a given case be sufficient to

convict the appellant as the Courts cannot overlook the hard realities

that the witnesses are won over by the accused. Reliance has also been

placed upon 2012 VIII AD (Delhi) 466 Harish Chand Khurana Vs.

State to support a submission that a demand can be made even by a

gesticulation which was so in the instant case. Last submission of the

learned APP for the State being that the judgment of Hari Dev Sharma

(supra) has been distinguished by the Supreme Court in (2009) 5 SCC

117 State of Andhra Pradesh Vs. M. Radha Krishna Murthy and even

presuming that the incident of 07.05.1999 is to be disbelieved, it cannot

take away the authenticity of the incident of 10.05.1999.

5 Arguments have been heard. Record has been perused.

6 PW-9 is the complainant. He had filed his complaint Ex.PW-9/A

before the Anti-Corruption Branch on 10.05.1999. It was this complaint

which had initiated the investigation in this case. The complainant had

averred that he had applied for a telephone connection for his residence

i.e. H-44, West Patel Nagar, New Delhi. On 04.02.1999 the telephone

fittings were installed along with the instrument but the current in the

telephone was not activated for which purpose he had filed an

application before the Department on 23.04.1999. He had visited the

Rajender Bhawan Telephone Exchange on 07.05.1999 in connection

with this complaint where he had met the JTO Niranjan Singh who

demanded a bribe of Rs.500/- to activate his connection which was

scaled down on negotiation to Rs.400/-. At that point of time, he had

Rs.100/- which he had paid in two notes in the denomination of Rs.50/-

each to the appellant and the balance Rs.300/- was agreed to be paid

between 03:00-05:00 PM on 10.05.1999. Since PW-9 did not wish to

pay this money, he lodged a complaint. The version in this complaint

(Ex.PW-9/A) has been reiterated on oath by the witness stating that he

had applied for a telephone connection and although the telephone

fittings and instrument had been fixed in the house but the telephone line

had not been activated; he met the DJM who advised him to go to

Rajender Place Rajender Bhawan; on 07.05.1999, he had gone to the

SDO where JTO Niranjan Singh was also sitting; SDO instructed

Niranjan Singh to look into the complaint of the complainant. The

appellant however threatened him that his connection would not be

activated unless he paid Rs.500/- which was brought down to Rs.400/-

and Rs.100/- was paid at that time. Pursuant to the complaint made by

PW-9, the pre-raid proceedings were conducted. PW-9 has further

deposed that three currency notes of Rs.100/- each were handed over to

ACP Vijay Pal Singh (PW-12) and a live demonstration was given in

front of him and the panch witness (PW-10) demonstrating how the

notes coated with phenolphthalein powder when dipped into a solution

of sodium carbonate would change colour and become pink. PW-9 had

been instructed to handover the money to the appellant on his demand

whereupon PW-10 would give the signal.

7 The raid proceedings have also been described in detail to PW-9.

He has deposed that the raid team had reached the office at Rajender

Bhawan by 03:00 pm. PW-9 along with PW-10 went into the room of

the appellant; public dealing was going on. PW-9 requested the

appellant to do his work about which he had informed him on Friday

(07.05.1999). On query by the appellant, the panch witness was

introduced as the elder brother of PW-9. The appellant opened his

drawer and by indication with the movement of his eyes, he asked the

complainant to keep the bribe money in the drawer. The complainant did

not do so and went outside. The appellant followed him. With a gesture

from the fingers of his left hand, the appellant again demanded the bribe

amount; accordingly three notes of Rs.100/- each were handed over to

the accused who accepted them in his left hand. On the appointed signal,

the raiding party reached the spot. The appellant was challenged; from

his left fist, the money was recovered. In one part of his examination,

PW-9 has stated that the appellant kept saying that he had not taken the

money. This line was highlighted by the learned senior defence counsel.

The money was thereafter recovered from the left fist of the accused.

The numbers of the GC notes matched with the numbers which had been

noted in the pre-raid proceedings.

8 PW-9 was subject to a lengthy cross-examination. He admitted

that the telephone line and the telephone instrument had been installed at

his residence on 04.02.1999 but inspite of requests, the line was not

activated. He reiterated that he had met the SDO on 23.04.1999 in

connection with the complaint and thereafter on 07.05.1999 where the

appellant was present in the office of SDO and he had been instructed to

look into the complaint of the complainant. Certain portions in the

earlier version of the complainant (Ex.PW-9/A) had been confronted to

the appellant and the following lines have been highlighted by the

learned defence counsel to support a submission that there is an

improvement in the version of PW-9. These lines read herein as under:-

"I then came out of the room of the SDO and the accused also came out of the SDO. Thereafter, the accused became angry with me and said that I made complaints against him to his senior officers. The accused also told me that my telephone will not be activated like that despite my complaints to senior officers as the connection is to be activated by him only."

9 Submission of the learned defence counsel on this score being

that the credibility of this witness is tarnished.

10 Version of PW-9 that he had gone to the Rajender Place on

07.05.1999 where he had met the SDO and the SDO had instructed the

appellant to look into the complaint of the complainant is supported by

the version on oath by the SDO who had been examined as PW-5. He

had deposed that on 07/08.05.1999, the complainant had come to his

office; he was the subscriber of telephone No.5714125; on this

application of the complainant, the appellant Niranjan Singh who was

per chance sitting in his office was instructed to start the telephone of

the subscriber immediately. In cross-examination, it was reiterated that

the complainant had come to his office between 03:00 to 05:00 pm to

tell him about his grievance.

11 Another part of the version of PW-9 i.e. about the pre-raid

proceedings and the actual raid has been corroborated by PW-10.

PW-10 was the panch witness. He has been declared a hostile witness by

the learned prosecutor as he did not toe the line of prosecution in

totality. However the testimony of a hostile witness as has been

reiterated by the Supreme Court time and again is not washed off the

record completely; so much as the version of such a witness which

supports the line of the prosecution and conforms to it can be read;

bounded duty of the Courts being to sift the grain from the chaff and to

find out the truth. In this context, the observations of the Supreme in

AIR 2011 SC 3753 Mrinal Das & Others Vs. The State of Tripura are

relevant and read herein as under:-

"In the case on hand Ganesh Kol (PW-2), Satyendra Tanti (PW-9), Ramakanta Paul (PW-10) and Prabhir Biswas (PW-12) were declared as hostile witnesses. It is settled law that corroborated part of evidence of hostile witness regarding commission of offence is admissible. The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross-examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the Court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The Court should be slow to act on the testimony of such a

witness, normally, it should look for corroboration with other witnesses. Merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. To make it clear that evidence of hostile witness can be relied upon at least up to the extent, he supported the case of prosecution. The evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution."

12 On this touchstone, the testimony of PW-10 has been

rescrutinized. He has admitted that the complaint of the complainant

(Ex.PW-9/A) bears his signatures at point 'B'; he has admitted the

report Ex.PW-10/A which bore his signatures at points 'A' and 'B'.

Ex.PW-10/A had recorded the proceedings of 10.05.1999 commencing

from 02:00 pm up to 02:45 pm i.e. the pre-raid proceedings and the

point when the raiding party reached the spot. The other documentary

evidence in this regard i.e. Ex.PW-9/E was also admittedly signed at

point 'B' by PW-10. Ex.PW-9E is the record of the raid proceedings.

PW-10 has also admitted that he is an educated person holding a degree

of B.E. Mechanical; further deposition being that at the time when he

had appended his signatures on these papers; they were not blank; he

was not under pressure for signing these documents. He has also

admitted that he was with the complainant at the time of the raid and one

Sardarji had come out of the room (the appellant is a Sikh gentleman).

13 This deposition of PW-10 is fully corroborative of the version of

the prosecution i.e. not only the version of PW-9 but also by the

documentary evidence of the prosecution which includes Ex.PW-9/A,

Ex.PW-10/A and Ex.PW-9/E.

14 The raid officer ACP Vijay Pal Singh (PW-12) has also reiterated

these versions of PW-9 and PW-10. He has on oath described the pre-

raid proceedings where he had given a live demonstration of

phenolphthalein powder to PW-9 and PW-10; instructing PW-9 to hand

over the bribe money to the appellant only on demand wherein PW-10

would give the pre-appointed signal; he has reiterated that the accused

had got perplexed and started apologizing; this has been corroborated by

PW-1 as well. In cross-examination, this witness has stuck to his stand.

15 Apart from the aforenoted versions, testimony of PW-6 is also

relevant. He was working as telephone operator at the relevant time. He

has reiterated that Ex.PW-1/A is the photocopy of the jumper letter

which relates to the application for the telephone connection made by

the complainant Ashok Puri. He has deposed that this was received by

him in the office on 27.04.1999 which he had sent to the switch room on

29.04.1999. In a further part of his examination-in-chief, he has stated

that the line of the subscriber was finally okayed on 11.05.1999 and the

complainant was satisfied. This has been reiterated again in his cross-

examination.

16 PW-1 was a summoned witness. He had come from the

Telephone Exchange Department; he had produced photocopy of the

jumper letter No.025339 dated 23.04.1999 along with certain other

documents which had been proved as Ex.PW-1/A1 to A-5. He has

deposed that these documents had been taken into possession by the

Investigating Officer vide seizure memo Ex.PW-1/B. In his cross-

examination, he explained that in their office, at the relevant time, there

used to be a JTO Outdoor, a JTO, MDF (Main Distribution Frame) and

in the inside section, there was one more post of JTO switch room. It

was the duty of JTO Outdoor to get the telephone wires and instrument

installed at the premises of the consumer and after installation,

compliance report would be sent by the JTO Outdoor; he reiterated that

the JTO outdoor (the appellant) had sent the documents on 24.04.1999

after installation of line and instrument of the consumer; it was the

switch room operator who was then to energize the connection.

17 Two arguments have been propounded by the learned senior

defence counsel on this deposition of PW-1. The first argument is that

the Ex.PW-1/A cannot be read in evidence; it is per-se inadmissible; it

was only a photocopy of the original; there is nothing on record to show

that the original had been produced.

18 Record shows that PW-1 had been examined as the first witness;

this was on 29.08.2003. The summons sent to PW-1 have also been

perused. This witness is admittedly a witness who was appearing in his

official capacity. Although in the deposition of PW-1 it has not been

specifically recorded that while exhibiting Ex.PW-1/A-1 to A-5, the

original file had been brought by the witness yet this Court is fully

conscious of the fact that a summoned witness does not bring loose

papers for purpose of proof in the Court; they have to be a part of the

file which would be the file of the Department. More so in this case

there were five documents which were exhibited i.e. Ex.PW-1/A-1 to A-

5. PW-1 in his official capacity obviously must have brought the

original file and the photocopy was exhibited in the Court. This position

is also fortified by the seizure memo (Ex.PW-1/B) which also shows

that photocopies of the aforenoted documents had been seized by the

Investigating Officer. This seizure memo (Ex.PW-1/B) records that five

documents i.e. the following five documents have been seized in the

presence of O.P. Gautam who was working as D.E. (FRS), Karol Bagh

Telephone Exchange.

"1. Jumper letter No.025339 dated 23.04.1999.

2. O.B. Letter No.101-571-013921 dated 06.02.1999.

3      Annexure A. Ashok Puri, R/o, H-44, IInd floor, West Patel Nagar, New Delhi
4      Switch room compliance report.
       Jumper letter No. 587 dated 29.04.1999.
5      MDF compliance report jumber letter No. 36 dated 01.05.1999 "



19     Investigating Officer (PW-11) has proved this seizure memo in

his version on oath. Not a single question has been put to this witness

about the originals. So also in the version of PW-1; it is thus clear that

the photocopies (Ex.PW-1/A-1 to A-5) were permitted to be exhibited as

the original must have been seen by the Presiding Officer and returned

which is the normal practice in the trial Court although this has not been

specifically so recorded. If the originals had not been produced, it was at

that point of time the duty of the defence counsel to have objected to the

exhibition of a photocopy. Not a single question has been put to PW-1

either on this score.

20 Relevant would it be to also note that on 29.08.2003, three

witnesses had in fact been examined by the trial Court. HC Surinder

Singh (PW-3) was MHCM; he had also produced photocopy of the

malkhana register and proved it as Ex.PW-3/A. This deposition of PW-3

also does not reflect that he had brought the original record.

21 Thus it was only due to inadvertence that it has not been recorded

in the deposition of PW-1 or PW-3 that the original record had been

perused and returned. Neither the Presiding Officer and nor the defence

counsel would allow a photocopy of a document to be exhibited unless

the original was produced. Moreover, PW-1 was summoned in his

official capacity; he had no personal knowledge of the case; an official

witness cannot depose as per memory; he has to depose as per the

record. It is thus clear that neither the admissibility and nor the mode of

proof of Ex.PW-1/A-1 was ever challenged either in the version of

PW-1 or in the testimony of PW-11. The judgment of Sudhir

Engineering (Supra) permits a party to challenge the admissibility of a

document at the appellate stage but in the facts of the instant case it is

clear that the photocopy of document Ex.PW-1/A-1 was admitted on the

basis of the record. The judgment of Sudhir Engineering is even

otherwise distinct on its facts. Apart from the fact that the provisions of

Order 13 Rule 4 of the CPC and the Delhi High (Original Side) Rules

had been examined, the Court had only enunciated the thumb rule that

admission of a document in evidence is not to be confused with the

proof of a document. The judgment of Ram Suresh Singh (Supra) in this

context is also inapplicable as in that case the Apex Court had rightly

noted that a Xerox copy in the absence of the original was inadmissible

in evidence. This Court has already noted that PW-1 having come in his

capacity as an officially summoned witness could not have deposed on

memory; it had necessarily to be on the basis of the record. Thus the

objection of the learned senior defence counsel that Ex.PW-1/A cannot

be read in evidence is rejected.

22 The second submission of the learned senior defence counsel on

the version of PW-1 is that the energizing of the telephone connection

had to be done by the switch room operator and once the documents

relating to the connection of PW-9 had been forwarded to the switch

room operator on 24.04.1999, he had no role left. This submission of the

learned senior defence counsel is again ill-founded. Testimony of PW-1,

PW-5, PW-6 & PW-9 has to be read as a whole. As noted supra, PW-1,

PW-5 and PW-6 are official witnesses from the Telephone Exchange

Department. PW-5 was the SDO at the relevant time and he confirmed

the fact that on 07.05.1999, the complainant had visited his office in

connection with his complaint that his telephone had not been energized

inspite of the fact that the telephone line and instrument had stood

installed. This complaint had been marked to the appellant. Testimony

of PW-5 is clear on this aspect. He has categorically stated that he had

given instructions to the appellant on this score; additional submission

of the learned senior defence counsel that there is no marking of this

complaint to the appellant is thus an argument without force; it was well

within the powers of PW-5 to have orally instructed his junior (the

appellant) to look into the complaint of PW-9. The presence of PW-9 in

the Rajender Bhawan Telephone Exchange Department on 07.05.1999

was confirmed. It was for no other reason but for the fact that he

continued to nurse a grievance against the Department for not energizing

his telephone connection. In this background, testimony of PW-9 has

been rescrutinized. He has on oath affirmed that when he come out of

the office of the SDO, the appellant asked him for a bribe of Rs.500/- for

starting his telephone which was scaled down to Rs.400/- and since he

had received Rs.100/-, he had given it to the appellant at that time. He

admitted that there was no person present at that time. The highlight of

the argument of the learned senior defence counsel that version of PW-9

remains uncorroborated on this score is again an argument which has to

be necessarily negatived as presence of PW-9 in the telephone

department on 07.05.1999 as noted supra stands proved; this was for no

other reason but for the grievance that he was nursing against the

department. At that point of time when the appellant asked him for a

bribe, it would have been highly unnatural on the part of PW-9 to have

rushed back to the SDO as the situation would have worsened further as

part of the deposition of PW-9 is that when he came out of the office of

the SDO, the appellant was very angry with him and asked him as to

why he had made the complaint to his senior. It is in this background

that PW-9 parted with the initial amount of Rs.100/-; obviously this

illegal gratification had to be given in secrecy and that is why no person

was present at the time when this money was handed over by PW-9 to

the appellant.

23 There is no reason whatsoever as to why these versions of PW-9

and PW-5 should be disbelieved. The incident of 07.05.1999 stands

proved.

24 The incident of 10.05.1999 was a continuation of the first incident

of 07.05.1999. This also stands fully proved not only by the oral

depositions of PW-9 and PW-11 but also by PW-10 who even though

was hostile had admitted his signatures on the documents both in the

pre-raid as also in the post-raid. The number of the GC notes which had

been handed over by the complainant in the pre-raid proceedings tallied

with the notes recovered from the left hand of the appellant; the

scientific report Ex.PW-11/D had also test the hand-wash of the

appellant positive for phenolphthalein. This could be for no other reason

but for the fact that these notes had been accepted by the appellant in his

left palm.

25 The judgment of Hari Dev Sharma (supra) thus has no

application. In this background, the trial Judge was also right in drawing

the presumption under Section 20 of the said Act for the offence under

Section 7. In the statement of the appellant recorded under Section 313

of the Cr.PC, he has pleaded innocence but the evidence gathered before

the trial Court both oral and documentary does not in any manner

establish this version.

26 At the cost of repetition, presence of PW-9 on 07.05.1999 and

10.05.1999 in the Telephone Exchange Department stands proved. He

had gone there for no other reason but for the grievance which he was

still nursing against the Department; although the telephone instrument

and line had been installed at his residence but the telephone connection

had not been activated. PW-6 and Ex.PW-1/A1 are both categorical; this

telephone connection had been okayed only on 11.05.1999. This was

after the complainant had made his grievance to PW-5 who had

instructed the appellant to look into this complaint.

27 The prosecution has thus successfully established that the

appellant had taken a bribe of Rs.400/- from PW-9 for a job which was

otherwise his bounded duty to perform being the JTO Outdoor; the

activation of the telephone connection was withheld and it was finally

activated only after PW-9 had agreed to pay the illegal gratification to

the appellant. He was caught red handed on 10.05.1999. There was also

no reason whatsoever for the complainant or for the Raid Officer to have

built up a false case against the appellant. This is also not the suggestion

given by the learned defence counsel to any of these PWs.

28 The conviction of the appellant does not call for any interference.

29 Even on sentence, this Court is not inclined to interfere as the

unhealthy practise of corruption is probably the worst vice in our

society. The trial Judge has even otherwise awarded the minimum

sentence under Section 13 (1) (d) read with Section 13 (1)(2) which

prescribes a minimum of one year and also for the offence under Section

7 of the said Act which prescribes a minimum of six months. On no

count, does the appellant deserve any sympathy.

30 Appeal is without any merit. Dismissed. Bail bonds of the

appellant are cancelled. He be taken into custody to serve the remaining

sentence.

INDERMEET KAUR, J MARCH 27, 2014 A