Manoj Kumar vs State
2014 Latest Caselaw 2682 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Judgment reserved on :20.05.2014.
                            Judgment delivered on:26.05.2014.
+      CRL.APPEL No. 266/2006
       MANOJ KUMAR                                  ..... Appellant
                      Through    Mr. K.B. Andley, Sr.Adv.with
                                 Mr. M. Shamikh, Adv.

                             versus
       STATE                                 ..... Respondent
                      Through    Mr. Varun Goswami, APP
+      CRL.APPEL No. 282/2006 & Crl. M.A. Nos.5471-72/2014
       KHAZAN SINGH                                  ..... Appellant
                      Through    Mr. K.B. Andley, Sr.Adv.with
                                 Mr. M. Shamikh, Adv.

                             versus
       STATE                                      ..... Respondent
                             Through   Mr. Varun Goswami, APP

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 Appellants Manoj Kumar and Khazan Singh are aggrieved by the

impugned judgment and order of sentence dated 24.04.2006 &

25.04.2006 respectively wherein accused Manoj Kumar has been

convicted under Sections 7 & 8 read with Section 13 (1)(d) and Section

13 (2) of the Prevention of Corruption Act, 1988 (hereinafter referred to

as the 'said Act') read with Section 120-B of the IPC. Co-accused

Khazan Singh has been convicted for the offence under Sections 7 and

13 (1)(d) read with Section 13 (2) of the said Act read with Section 120-

B of the IPC. Both the accused persons have been sentenced to undergo

RI for a period of 1 year and to pay a fine of Rs.1,000/- and in default of

payment of fine to undergo SI for 1 month for the offence under Section

13 (2) of the said Act read with Section 120-B of the IPC; each of the

convicts have also been sentenced to undergo RI for a period of 6

months and to pay a fine of Rs.500/- and in default of payment of fine to

undergo SI for 15 days for the offence under Section 7 of the said Act

read with Section 120-B of the IPC. The convict Manoj has been further

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

Rs.1,000/- and in default of payment of fine, to undergo SI for 1 month

for the offence under Section 8 of the said Act. The sentences were to

run concurrently. Benefit of Section 428 of the Cr.PC had been granted

to the convicts.

2 Nominal rolls of the appellants have been requisitioned. They

reflect that as on the date of grant of bail accused Manoj had suffered

incarceration of about 3- ½ months and accused Khazan Singh had

suffered incarceration of about 3- ½ months.

3 The version of the prosecution was unfolded in the complaint

made by the complainant Suman Prakash examined as PW-4. In this

complaint (Ex.PW-4/A), it was alleged that on 12.05.1993 accused

Manoj Kumar, proprietor of M/s Sefali Scale Corporation (authorized to

repair weights and measurements) along with co-accused Khazan Singh

(Inspector in the Department of Weights and Measurements, Public

Servant Department) visited the shop of the complainant; Khazan Singh

booked the complainant for not keeping proper weights; challan was

issued. After sometime, Manoj Kumar returned to the shop of the

complainant and demanded a bribe of Rs.200/- promising him that the

challan would be torn if this bribe money is paid. PW-4 refused.

Accused Manoj got annoyed and told the complainant that he wanted to

get rid of this problem, he would now have to pay Rs.500/-. Rs.300/-

would be paid to the co-accused Khazan Singh and balance Rs.200/-

would be kept by Manoj Kumar. On 26.05.1993, accused Manoj again

visited the shop of the complainant demanding a sum of Rs.500/-. PW-4

agreed to pay the amount on 27.05.1993. However he did not wish to

pay the bribe money, he made a complaint before the CBI. Pre-raid

proceedings were organized and the panch witness Mohan Singh Shah

(PW-12) was asked to join the raid. A live demonstration was given by

the CBI officer ACP Ramesh Singh (PW-16) wherein it was shown that

the bribe money (Rs.500/- in the denomination of Rs.100/- each) if

coated with phenolphthalein powder and dipped into a colourless

solution would turn pink. In the pre-raid proceedings, the complainant

was informed that this money was to be handed over to the accused only

on his demand.

4 Thereafter, the raid team reached the shop of PW-4. At about

01:00 PM, accused Manoj Kumar came to the shop of PW-4 and

showed him the challan and accordingly PW-4 handed over the tainted

money to Manoj Kumar which was kept by him in his left side shirt

pocket. PW-12 gave the appointed signal. Raiding party reached the

spot. From the personal search of Manoj Kumar, the tainted money was

recovered from his shirt pocket and from his search, slip Ex.PW-4/H

purported to be in the hand-writing of Khazan Singh was recovered. His

right hand wash was also taken. The washes were seized and sealed into

6 separate bottles marked as Ex.RHW-1, Ex.RHW-2, Ex.LHW-1,

Ex.LHW-2, Ex.SPW-1 and Ex.SPW-2. Seal was handed over to PW-12.

Recovery memo Ex.PW-4/C was prepared. Panchnama (Ex.PW-12/A)

was prepared.

5 Investigation was then marked to D.D. Sharma (PW-15). Site plan

(Ex.PW-15/A) was prepared. Accused Manoj was arrested. Pursuant to

the disclosure statement of accused Manoj, role of co-accused Khazan

Singh was revealed and on 28.05.1993, he was arrested vide memo

Ex.PW-14/A. Specimen handwriting of accused Khazan Singh (S-15 to

S-34) was taken. The admitted hand-writing of accused Khazan Singh

was also taken vide memo Ex.PW-9/A and Ex.PW-9/B. The report of

the hand-writing expert (Ex.PW-17/A) had evidenced the specimen,

admitted and questioned hand-writing to be of the same person i.e. of

Khazan Singh. The hand washes in the pocket pant wash of Manoj had

also tested positive for phenolphthalein.

6 In the statement of the accused recorded under Section 313 of the

Cr.PC, both of them have pleaded innocence; accused Manoj had stated

that the complainant was his distant relative and because of a family

rivalry, he has been falsely implicated in the present case. Co-accused

Khazan Singh had also pleaded innocence stating it to be a case of false

implication.

 7      No evidence was led in defence.

8      On behalf of the appellants arguments have been addressed in

detail. The first argument of the learned counsel for the appellants is qua

the sanction (Ex.PW-8/A) which has been assailed qua the public

servant. Attention has been drawn to this document. It is pointed out that

at three places i.e. at points 'X' 'Y' and 'Z', there are question marks;

no date has been mentioned in the sanction order; it had not been typed

in the presence of PW-5. It also does not bear the slip of the department.

The sanction is clearly suspicious; the trial would be vitiated on this

ground alone. It is pointed out that this is a clear case of false

implication as accused Manoj is admittedly related to the complainant

and because of a family dispute, this false case has been set up against

him. There is no evidence to show that Khazan Singh was ever present

at the spot and merely a disclosure statement of co-accused Manoj

implicating Khazan Singh is no evidence in the eyes of law. The panch

witness (PW-12) had also been declared hostile. Attention has also been

drawn to the testimony of PW-1. Submission being that the possibility

of tampering cannot be excluded as PW-1 in his cross-examination has

admitted that there is no notified malkhana in the Anti-Corruption

Branch. It is pointed out that accused Khazan Singh has been arrested

after five years for which there is no explanation and in this intervening

period, a vigilance clearance had been given to Khazan Singh. All these

clearly show that Khazan Singh has been falsely implicated in the

present case. Accused persons are entitled to a benefit of doubt and a

consequent acquittal.

9 Arguments have been refuted. It is pointed out that on no count

does the impugned judgment suffer from any infirmity. Not only is the

testimony of the complainant (PW-4) cogent and coherent but even the

documentary evidence which includes the report of hand-washes, the

hand-writing on the challan which was in the hand of Khazan Singh and

which was recovered from the pocket of accused Manoj clearly

establishes the connectivity and complicity between the accused

persons.

10 Arguments have been heard. Record has been perused.

11 The sanction Ex.PW-8/A is also clear and categorical. This

document bears a date of 17.02.1999. It is running into one complete

page and has clearly delineated the brief facts of the case; S.C. Poddar

(PW-8) is the Director of Education and the person who was originally

authorized and empowered to accord sanction for the prosecution of his

employee Khazan Singh who was at the relevant time posted as a Head

Clerk in the department of PW-8. This document further recites that

after carefully examining the material placed before PW-8, sanction for

prosecution is being accorded.

12 A sanction order is not required to be a detailed one; the sanction

order should speak for itself. The Constitution Bench of the Supreme

Court in 1963 Supp (2) SCR 652 R.S. Pandit V.State of Bihar referring

to a decision of the Privy Council reported in AIR 1948 P.C. 82

Gokulchand Dwarkadas Mararka Vs. R. had in this context noted as

follows:

"Section 6 of the Act (old Act) does not require the sanction to be given in a particular form. The principle expressed by the Privy Council, namely, that the sanction should be given in respect of the facts constituting the offence charged equally applies to the sanction under Section 6 of the Act. In the present case all the facts constituting the offence of misconduct with which the appellant was charged were placed before the Government. The second principle, namely, that the facts should be referred to on the face of the sanction and if they do not so appear, the prosecution must prove them by extraneous evidence, is certainly sound having regard to the purpose of the requirements of a sanction."

13     The sanction was valid.

 14     PW-4 is the complainant. He is the star witness of the

prosecution. He has reiterated the averments made in the complaint. On

oath, he has deposed that on 12.05.1993, two officials from the Weight

and Measurement Department i.e. Khazan Singh who is an Inspector

and Manoj Kumar who is a private person has a shop of weight has

visited his shop; they checked the weight lying in the shop and the

challan was issued to him. After sometime, Manoj Kumar returned back

to the shop. He demanded Rs.200/- from PW-4. PW-4 refused to pay the

money. On 22.05.1993, accused Manoj Kumar again came to his shop

and told him that the challan had been deposited in the office and in case

he wanted to get that challan cancelled, he would have to pay Rs.500/-

of which Rs.300/- would be paid to Khazan Singh and balance Rs.200/-

would be kept by him. On 26.05.1993, Manoj Kumar again visited his

shop; at this point of time, he had challan with him. PW-4 told him that

he did not have any money and he would pay the money on 27.05.1993.

On 27.05.1993, the complaint was lodged by PW-4 as he was not

willing to pay this bribe amount. He reiterated that the pre-raid

proceedings had taken place in which the panch witness (PW-12) had

been asked to join the raid and in their presence a live demonstration

was given as to how the tainted money if coated with phenolphthalein

powder and dipped into a colourless solution would turn pink. The raid

proceedings had also been reiterated. PW-4 on oath reiterated that the

tainted money of Rs.500/- was recovered from the shirt pocket of

accused Manoj Kumar and hand washes were prepared in his presence

as also in the presence of PW-12.

15 PW-4 was subjected to a lengthy cross-examination but nothing

could be elicited in his cross-examination which could discredit him. He

admitted that he knew accused Manoj Kumar for last 2 years but he

denied the suggestion that Manoj is related to him. The defence sought

to be projected on behalf of appellant Manoj that accused Manoj has

been falsely implicated because of a family rivalry did not find mention

in the cross-examination of PW-4 as no such suggestion has been given

to him. This has emanated for the first time in the statement of accused

Manoj recorded under Section 313 of the Cr.PC; it is clearly an

afterthought.

16 PW-12 was the panch witness. He has also fully supported the

case of the prosecution toeing the line of PW-4. However in one part of

his testimony, since the offence related to the year 1993 and the witness

had come into the witness box in the year 2005 which was more than 12

years later due to some memory lapse, the witness was permitted to be

cross-examined by the public prosecution. PW-12 admitted his

signatures on all the documents i.e. pre-raid proceedings and post-raid

proceedings as also in the seizure memo of the GC notes which tallied

with the notes number noted in the pre-raid proceedings.

17 Dharam Pal Mata (PW-6) and Jai Bhagwan (PW-7) were both

Zonal Inspectors who were working in the department of Khazan Singh.

PW-6 was posted as Zonal Officer at the relevant time between April,

1992 to May, 1993. PW-6, PW-7 and L.N. Chawla (PW-10) have on

oath detailed the procedure i.e. the manner in which an Inspector goes to

the shop to make inspection; the Inspector is also empowered to prepare

challan against that person. These challans are then forwarded by the

Inspector and sent to the Head Quarter and they are also entered in the

prosecution register. They are normally sent once in a week. It is

admitted by PW-6 that he had seen the challan in the name of PW-4. He

admitted that in Ex.PW-2/B, there is a cutting on the date and the earlier

date of 20.05.1993 reads as 12.05.1993. He also admitted that when he

had forwarded Ex.PW-2/B, there was no such cutting. He admitted that

he had forwarded his note on 21.05.1993. PW-7 in the same context had

deposed that the private person is not permitted to accompany an

Inspector at the time when he goes for inspection; this is not the

procedure.

18 Accused Khazan Singh was admittedly arrested five years after

the date of the offence i.e. in the year 1998; his admitted signatures i.e.

record of his leave application had been obtained from Sushma Tigga

(PW-9) vide memo Ex.PW-9/A; three questioned documents had been

sent to the hand-writing expert i.e. Ex.PW-4/H, Ex.PW-2/B and Ex.PW-

10/B; the hand-writing expert Harshvardhan (PW-17) has submitted its

report (Ex.PW-17/A) and noted that the specimen, admitted and

questioned signatures were all in the hand-writing of Khazan Singh.

19 The evidence thus collected clearly clinches the version of the

prosecution. Not only are the oral testimonies of PW-4 and PW-12 in

conformity with the documentary evidence i.e. Ex.PW-4/H, Ex.PW-2/B

and Ex.PW-10/B (all of which are in the hand-writing of co-accused

Khazan Singh), all these pieces of evidence show that on 12.05.1993

Inspector Khazan Singh along with co-accused Manoj Kumar had

visited the shop of PW-4 and had challaned him. Thereafter Manoj

Kumar returned back to the shop of PW-4 asking for bribe money. PW-

4 did not pay the amount. Manoj Kumar again returned to the shop of

PW-4 on 22.05.1993 on which date he issued a challan informing PW-4

that in case he wanted this challan to be cancelled, he would have to pay

a bribe of Rs.500/- of which Rs.300/- would be kept by Khazan Singh

and Rs.200/- would be taken by Manoj Kumar. PW-4 had agreed to pay

this amount on 27.05.1993. The challan which was issued on 20.05.1993

is Ex.PW-2/B. The photocopy of this document is Ex.PW-10/B and one

is verbatim other. This shows that there is an overwriting at point 'X'

and 20.05.1993 has been cut and upon it, there is overwriting of

12.05.1993. This cutting is clear and apparent. This clearly shows that

the challan was prepared only on 20.05.1993 but the date was thereafter

cut out to make it read out as if it was prepared on 12.05.1993. This is in

the hand-writing of accused Khazan Singh. That is how on 21.05.1993,

PW-7 had forwarded this challan. The story does not end here. Ex.PW-

4/H which was supposed to accompany Ex.PW-2/B as is evident from

the statement of PW-10 who has on oath while explaining the procedure

stated that Ex.PW-10/B had not accompanied by the statement of the

complainant (Ex.PW-4/H) and that is how co-accused Manoj Kumar had

taken Ex.PW-4/H to the complainant again on 26.05.1993 informing

him that if he wanted his challan to be cancelled, he would have to pay

the bribe money. PW-4 had agreed to pay the bribe money on

27.05.1993. On 27.05.1993, in the raid proceedings Ex.PW-4/H was

recovered from the right shirt pocket of Manoj Kumar. This was at the

spot.

20 How this document which was admittedly in the hand-writing of

Khazan Singh came into the pocket of Manoj has remained unanswered

and unexplained? Efforts had been made by the learned counsel for the

appellants on this score trying to built up some explanation but no such

explanation is forthcoming. Submission of the learned counsel for the

appellants that this document was planted into the pocket of accused

Manoj Kumar is an argument totally bereft of force as had this been the

position, this would have been reflected in the cross-examination of the

witnesses or in the first line of defence which was projected by the

appellants but no such defence had emerged.

21 The connectivity and complicity of accused Manoj Kumar and

accused Khazan Singh is writ large as a document written by the

Inspector i.e. by public servant Khazan Singh was found in the pocket of

a private man i.e. Manoj Kumar at the time when the raid was

conducted. Conspiracy between both the accused persons was evident.

Manoj Kumar was caught red handed. His hand and pocket washes had

tested positive for phenolphthalein; money was kept by him in his

pocket after touching his hand. This further advances the version of the

prosecution qua Khazan Singh. Qua Khazan Singh, not only Ex.PW-

4/H, Ex.PW-2/B and Ex.PW-10/B are in the hand-writing of accused

Khazan Singh evidencing the fact that he had gone to the shop of PW-4

and had prepared a challan qua him, the further crucial piece of evidence

against Khazan Singh is Ex.PW-4/H which was found in the pocket of

his accomplice Manoj Kumar. Both the accused persons are clearly

guilty of the offence for which they have been charged.

22 Section 8 of the said Act speaks of gratification by corrupt or

illegal means to influence a public servant; this Section speaks of receipt

of gratification as a 'motive' or 'reward' for the purpose of inducing a

public servant by corrupt or illegal means to complete the offence. It is a

proposition of law qua a person who is not a public servant. The

presumption under Section 20 of the Evidence Act also arises. It is no

doubt a rebuttable presumption and the accused persons are given a

chance to rebut it but in this case they have failed to do so. The

statement of the accused Manoj Kumar stating that he is a relative of the

accused and there is a family rivalry between the parties has not been

borne out from the record. Accused Khazan Singh has projected no

defence.

23 On no count, does the impugned judgment call for any

interference. Both the appellants have already been granted minimum

sentence.

24 At this stage, this Court has been informed that appellant Khazan

Singh has expired. The appeal qua Khazan Singh is accordingly abated.

Learned counsel for the appellants who has filed an application seeking

permission to bring on record his legal representatives no-longer presses

this application. It is permitted to be withdrawn. Accused Manoj be

taken into custody to serve the remaining sentence.

25     Appeals disposed off in the above terms.



                                       INDERMEET KAUR, J
MAY 26, 2014
A