Satish Kumar Gupta vs State
2014 Latest Caselaw 4305 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Judgment reserved on : 03.09.2014
                                Judgment delivered on : 10.09.2014

+      CRL.A. 126/2006
       SATISH KUMAR GUPTA
                                                        ..... Appellant
                           Through    Mr. Karunesh Tandon, Adv.
                           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 27.01.2006 and 28.01.2006 respectively wherein he

was convicted under Section 13 (2) and Section 7 of the Prevention of

Corruption Act, 1988 (hereinafter referred to as the „said Act‟). He was

sentenced to undergo RI for a period of 18 months and to pay a fine of

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

for the offence under Section 13 (2) of the said Act; for the offence

under Section 7 of the said Act, he was sentenced to undergo RI for a

period of one year and to pay a fine of Rs.2,000/- and in default of

payment of fine, to undergo SI for two months.

2 The version of the prosecution is that a complaint was made by

Babu Lal (PW-7) which was to the effect that on 10.02.1997 the

appellant who was working as a Superintendent in the Delhi Electric

Supply Undertaking (DESU) at Shalimar Bagh had demanded bribe of

Rs.400/- from the complainant for the purpose of passing his electricity

bill. The complainant in his complaint had explained that the electricity

bill of their factory used to be deposited under a Court order for which

they had to get endorsement of the bill from the concerned

Superintendent. On 10.02.1997, he had visited the DESU office at

Shalimar Bagh wherein the appellant, working in his capacity as

Superintendent, had agreed to get the bill of the complainant deposited

(for the month of January, 1997) only if a bribe of Rs.400/- was paid to

him. This bill was for Rs.22,350/-. Not willing to pay this amount as

bribe, a complaint was lodged by the complainant on the following day.

3 Pre-raid proceedings were drawn. Raid was conducted in which

as per the version of the prosecution, the appellant was caught red-

handed by the raiding party with the bribe money of Rs.400/-. After the

registration of the FIR, the challan was filed. Charges under Section 7

read with Section 13 (1)(d) punishable under Section 13 (2) of the said

Act were framed against the appellant.

4 The prosecution in support of its case had examined nine

witnesses; the complainant Babu Lal was examined as PW-7. The

shadow witness who was present along with PW-7 at the time of raid

was D.N. Mehto examined as PW-6. The Raid Officer ACP Ramesh

Singh was examined as PW-8, and the Investigating Officer Inspector

Bir Singh was examined as PW-9. The hand washes of the appellant and

his left pant pocket wash (from where the money was allegedly

recovered) after sealing had been deposited in the malkhana and the

entries in the register No. 19 was proved through HC Sewak Singh (PW-

3); the CFSL, Chandigarh had opined that these hand washes had tested

positive for phenolphthalein, thus advancing the version of the

prosecution that this tainted money had been touched by the appellant.

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

Code of Criminal Procedure, 1973 (Cr.PC), he had pleaded innocence.

His submission was that this money was forced into his pocket by the

complainant at the time when the electricity bill was purportedly being

paid by the complainant; the appellant was in the course of returning this

money to the complainant when all of a sudden he was apprehended by

the Anti-Corruption Branch.

6 In defence, Suresh Chand Aggarwal (DW-1) had come into the

witness box substantiating this defence on oath.

7 On the basis of oral and documentary evidence collected by the

prosecution, the appellant had been convicted and sentenced as

aforenoted.

8 On behalf of the appellant, arguments have been addressed in

detail. At the outset, it is pointed out that the provisions of Section 17 of

the said Act have not been complied with. Section 17 mandates that no

person below the rank of ACP shall carry out the investigation in a

matter pertaining to the said Act until and unless he has delegated this

authority. Submission being that the notification relied upon by the

Department was dated 19.03.1999 which was later in time to the offence

which was dated 11.02.1997, and as such the entire investigation being

without any authority is void. Second submission of the learned counsel

for the appellant is based on the version of panch witness (examined as

PW-6). Attention has been drawn to his testimony. Submission is that in

this version, the panch witness has not spoken a word about the

appellant having made a demand upon the complainant in the absence of

which conviction of the appellant is clearly not sustainable. It is pointed

out that the complainant is admittedly an interested witness and his

version alone, uncorroborated by the version of the panch witness could

not have been the basis of convicting the appellant. Additional

submission being that the version of the prosecution is even otherwise

confused as PW-6 in his cross-examination had admitted that there were

two bills wherein he has stated in his examination-in-chief that the

complainant had given two bills to the appellant and the appellant had

returned one bill and had also begun to write on the other bill. This

admission of PW-6 is contrary to the version set up by the prosecution

who has otherwise relied upon only one bill (Ex.P-1). The case of the

prosecution is in fact ambiguous; PW-6 has also not corroborated the

version of the complainant. The version of the prosecution is full of

inherent contradictions and infirmities. Accordingly, the appellant is

entitled to a benefit of doubt. The last submission of the learned counsel

for the appellant is on the quantum of sentence. For this proposition, he

has placed reliance upon a judgment of the Apex Court in V.K. Verma

Vs. CBI in Criminal Appeal No.404/2014, reported as (2014) 3 SCC

485. Submission being that in this case also, the appellant had been

convicted under Section 5 (1)(d) of the Prevention of Corruption Act,

1947 (old Act) and the allegations against him were that he had accepted

a bribe of Rs.265/-. The Court, noting the fact that he had suffered a

mental trial of more than 30 years as the offence was more than 30 years

old and the appellant at that stage was a senior citizen being 76 years of

age, sentence already undergone i.e. period of three months was treated

as the sentence which would be suffered by him and the period of

incarceration of one year was reduced to the period already undergone.

Submission of the learned counsel for the appellant being that in this

case also, out of 18 months of incarceration which has been ordered

against him, he has suffered incarceration of about six days.

9 Needless to state, these submissions have been refuted by the

State.

10 Arguments have been heard. Record has been perused.

11 Charges have been framed against the appellant on two counts i.e.

for the offence under Section 7 of the said Act as also for the offence

under Section 13 (2) read with Section 13 (1)(d).

12 The complainant Babu Lal examined as PW-7 was the star

witness of the prosecution. The incident as per the complaint was dated

10.02.1997. The complaint was filed in the CBI office on 11.02.1997.

This was in his own hand-writing running into 1- ½ pages and has been

proved as Ex.PW-6/A. In this complaint, while explaining the procedure

vide which the complainant was paying his factory bills for electricity

before the DESU, he had explained that on the fateful day i.e. on

10.02.1997 when he had gone to the office of DESU at Shalimar Bagh,

the Superintendent Gupta Ji i.e. the appellant had, for the purpose of

accepting his bill of Rs.22,350/-, made a demand of Rs.400/- stating that

that bill would be accepted only if the demand was fulfilled. This

complaint was accordingly filed on 11.02.1997. The pre trap

proceedings were proved as Ex.PW-6/B and panchnama which was

drawn at the spot i.e. at the time of raid was proved as Ex.PW-6/H.

These documents were proved in the version of the panch witness D.N.

Mehto.

13 Before adverting to the testimony of the panch witness, the

testimony of PW-7 is to be examined. PW-7 has in his version fully

corroborated his complaint and explained the manner and the procedure

as to how his bills were being paid at the DESU office at Shalimar

Bagh, as well as the incident of 10.02.1997 i.e. when he had gone to the

DESU Office and he met the appellant Satish Kumar Gupta who was

working as a Superintendent in that office. The appellant had made a

demand of Rs.400/- for accepting payment of the bill of approximately

Rs.22,000/- which the complainant had to pay. The complainant

informed the appellant that he did not have the money at that time but

this amount of approximately Rs.22,000/- was being tendered by him

under the orders of the Court. He had made his police complaint to the

CBI.

14 PW-7 has thereafter gone on to explain on oath the pre-raid

proceedings where in the CBI office apart from the CBI Officer, they

were joined by the panch witness namely D.N. Mehto examined as PW-

6. A sum of Rs.400/- had been handed over by raid officer to the

complainant. In the presence of PW-7, PW-6 as also the other members

of the raiding party, the raid officer explained that the money was being

treated with phenolphthalein and as a consequence of this, if any person

touched this treated money and his hand was dipped in a solution of

sodium carbonate, the solution would turn pink. After this live

demonstration, the complainant was informed that the treated money

was to be handed over to the appellant only on demand. The raid

proceedings had also been explained. These have been proved through

document Ex.PW-6/H which was drawn after the raid was completed

and duly signed by PW-7, PW-6 and ACP Ramesh Singh (PW-8) who

was the Raid Officer.

15 PW-7 in this context has deposed that on 11.02.1997 when he

entered the office of the appellant and handed over the bill to him for

payment, the appellant inquired if he had brought the bribe money to

which the complainant told him that he would give the money after his

bill was accepted. The appellant thereupon threw the bill on the table.

The complainant again put it on the table and took out the treated money

and handed it over to the appellant who accepted the money in his left

hand and after counting with both hands, he had put it in the front

pocket of his coat. PW-6 had given the appointed signal to the members

of the raiding party who reached the spot and money was recovered

from the front pocket of the coat of the appellant. Both the hand washes

i.e. left and right hand washes were taken, besides the pocket wash of

his coat. They were prepared in six small bottles and slips were pasted

on them for the purposes of identification; the panch witness had also

signed on these slips. The coat of the appellant was also taken into

possession.

16 In his lengthy cross-examination, PW-7 stuck to his stand. He

reiterated that there was only one bill and the appellant had not accepted

the payment on the bill stating that he would accept it only if the bribe

money of Rs.400/- was paid to him. It was reiterated that the bribe was

demanded on the previous day and on 11.02.1997, he had gone to the

office to pay this bribe money along with the raiding party.

17 PW-6 D.N. Mehto, the panch witness has also deposed on the

same lines. His version read in entirety negatived the submission of the

appellant that there was no demand made by the appellant in the

presence of the panch witness. PW-6 has deposed that he accompanied

the appellant to the DESU Office. The complainant showed the

electricity bill to the Superintendent who was sitting in the room i.e. the

appellant. The appellant kept the bill of the complainant separately. The

complainant at that point of time asked the appellant to sign the bill as

they were getting late and he gave it to the appellant. The appellant

asked the complainant, "kal jo bat hui thee wo tum laye ho" to which the

complainant replied in the affirmative and told the appellant, "pahley

aap sign kar do". This version of PW-6 corroborates and is in

affirmation of the version of PW-7.

18 The words of the appellant "kal jo bat hui thee wo tum laye ho"

contain the implicit demand. The appellant at that point of time was

referring to the conversion of the previous day wherein the appellant had

categorically told the complainant that his bill would be accepted only if

the bribe money of Rs.400/- was paid to him. Submission of the learned

counsel for the appellant that no demand was made by the appellant is

thus wholly negatived.

19 PW-6 was also subjected to a lengthy cross-examination but he

stuck to his stand. In one part of his cross-examination, he stated that

there were two bills, stating that the accused had returned one bill and

had also begun to write on the other bill. This could only be an

inadvertence as admittedly there was only one bill which the

complainant had gone to pay and which had been proved as Ex.P-1 and

upon which there was an endorsement of Rs.22,350/- having been

accepted by the appellant. This was specifically brought to the notice of

the appellant who has admitted that this endorsement of acceptance on

Ex.P-1 is in his own hand-writing.

20 This confusion of two bills as is appearing in one part of the

cross-examination of PW-6 appears to be on the count that both PW-6

and PW-7 have admitted that when the bill was handed over to the

appellant for acceptance, he had returned it stating that unless and until

the bribe money was paid, he would not accept it. At that point of time,

PW-7 had again presented the bill to the appellant. It is probably for this

reason that in this cross-examination of PW-6 there is a reference to two

bills. PW-6 being doubtful about the identity of the coat which had been

worn by the appellant on the date of the offence also does not dent the

version of the prosecution as this in fact reflects the veracity and

truthfulness of the witness. It is not as if PW-6 was blindly toeing the

version of PW-7. He was deposing as per memory and this Court notes

the fact that the witness had entered the witness box in May, 2005 when

the incident relates to the month of February, 1997.

21 The Raid Officer ACP Ramesh Singh (PW-8) had participated in

the pre-raid proceedings and had explained the manner in which the

currency notes were treated with phenolphthalein powder. This was in

the presence of both the complainant and the panch witness. He

reiterated the deposition as detailed by PW-6 and PW-7 qua the raid

proceedings.

22 The Investigating Officer Inspector Bir Singh, examined as PW-9,

had prepared the site plan Ex.PW-9/A; he had taken possession of the

documents i.e. the electricity bill Ex.P-1; the accused was also arrested

by him vide memo Ex.PW-6/G. He had sent the exhibits i.e. two hand

washes of the appellant and his left hand pocket wash to the CFSL,

Chandigarh, which had opined these hand washes to be positive for

phenolphthalein and sodium carbonate again advancing the version of

the prosecution, meaning thereby that the tainted money had touched the

hands of the appellant as also his coat pocket. The sanction for

prosecution of the appellant was proved as Ex.PW-1/A.

23 The defence of the appellant as appearing in the statement under

Section 313 of the Cr.PC was that this money was forced into the pocket

of his coat; before he could return it to the complainant, he was caught

red-handed.

24 The defence witness DW-1 not being a summoned witness, had

stated that on the fateful day, he was standing in queue in the DESU

office at Shalimar Bagh for payment of his electricity bill. He had

handed over his bill to the appellant for payment. He had seen one

person forcibly putting money into the pocket of the appellant. In his

cross-examination, he admitted that the bill which he had handed over to

the appellant (Ex.DW-1/A) for payment neither contained his name and

nor his address. It was in the name of one Bimla Devi. The trial Judge

had rightly disbelieved this witness noting that the document which the

witness had sought to produce was wholly disproved. Moreover there

was no reason whatsoever on the part of the members of the raiding

party or for that matter even for the complainant to falsely implicate the

appellant. Apart from the oral deposition, the documentary evidence

which included the hand washes and pocket wash of the appellant also

cannot be ignored.

25 The prosecution on all counts has been able to prove its case to

the hilt.

26 Argument of the learned counsel for the appellant that an

Inspector of Anti-Corruption Branch is not competent to lay the trap and

until and unless there is a specific delegation of power, no officer below

the rank of Assistant Commissioner of Police or a person of equivalent

rank can investigate into an offence into this section and the present case

having been investigated by an Inspector; being an investigation without

any authority is also an argument without any merit.

27 Before the trial Court and even before this Court, a notification

dated 15.03.1999 has been placed on record. This notification is by the

Government of NCT of Delhi authorizing an Inspector of the Anti-

Corruption Branch to investigate the offence under the said Act. There is

no doubt that this notification is later in time to the offence which is

dated 11.02.1997 yet the admitted fact being that this notification which

came into effect in March, 1999 had replaced the earlier notification

(which was a notification under the old Prevention of Corruption Act,

1947) and having not been rescinded till that date (March, 1999), it

continued in operation.

28 Section 30 of the said Act is the Repeal and Saving clause. It

saves all actions done under the previous Act; Section 30 (2) of the said

Act clearly states that anything done or any action taken or purported to

have been taken under or in pursuance of the Prevention of Corruption

Act, 1947 shall be deemed to have been taken under or in pursuance of

the corresponding provisions of Act of 1988. As such the action taken

on an earlier notification which was in operation up to March, 1999

enabled an Inspector to investigate the offences under this Act. Under

this legal fiction, anything done or action taken in pursuance of the

earlier Act of 1947 was deemed to have been taken under or in

pursuance of the corresponding provisions of Act of 1988; this fiction is

to the effect that 1988 Act had come into force when such a thing was

done or action was taken.

29 There is also no dispute to the fact that when an Act is repealed

but re-enacted, it is inevitable that there will be some time lag between

the re-enacted statute coming into force and regulations being framed

under the re-enacted statute. The Apex Court, in this context, in AIR

1961 SC 838 Chief Inspector of Mines Vs. Karam Chand Thapar has

held as under:-

"It is conceivable that any legislature, in providing that regulations made under its statute will have effect as if enacted in the Act, could have intended by those words to say that if ever the Act is repealed and re-enacted (as is more than likely to happen sooner or later), the regulations will have no existence for the purpose of the re- enacted statute, and thus the re-enacted statute for some time at least, will be in many respects, a dead letter. The answer must be in the

negative. Whatever the purpose be which induced the draftsmen to adopt this legislative form as regards the rules and regulations that they will have effect „as if enacted in the Act‟, it will be strange indeed if the result of the language used, be that by becoming part of the Act, they would stand repealed, when the Act is repealed. One can be certain that could not have been the intention of the legislature. It is satisfactory that the words used do not produce that result."

30 Even otherwise where there has been no mis-carriage of justice by

such an investigation and no prejudice has been suffered by the

appellant, the investigation cannot be said to be vitiated. It is also not the

argument of the learned counsel for the appellant that there has been any

miscarriage of justice.

31 In this context, the Supreme Court in (1997) 10 SCC 567 Central

Bureau of Investigation Vs. Subodh Kumar Dutta had observed that after

the cognizance of the offence had been taken by the Special Court

constituted under the West Bengal Special Courts Act, the Prevention of

Corruption Act, 1947 came to be repealed by the Prevention of

Corruption Act, 1988; the matter reached the High Court and thereafter

to the Supreme Court and on the question of jurisdiction, the Supreme

Court held that the cognizance of the offence taken by the Special Court

stood saved by virtue of Section 30 of the said Act.

32     On all counts, the appeal fails.

33     On the quantum of sentence this Court notes that the appellant

has undergone incarceration of less than one week. For his conviction

under Section 13(2) read with Section 13(1)(d) of the said the minimum

sentence prescribed is 1 year. It may in certain cases even extend up to

7 years. The minimum sentence prescribed for the second conviction of

the appellant which is under Section 7 of the said Act is 6 months.

34 The appellant before this Court is stated to be about 71 years of

age. The offence relates to the year 1997 i.e. almost two decades old.

It is pointed out by learned counsel for the appellant that the amount

involved is a paltry sum of Rs.400/-. However, no other special

circumstance had been pleaded by the appellant for the reduction of his

sentence.

35 Noting the aforenoted facts this Court is of the view that the

interest of justice would be met if the sentence is reduced.

36 The Supreme Court in AIR 1980 SC 1141 Meet Singh Vs. State of

Punjab had noted that the Appellate Court while reviewing/modifying a

sentence is no doubt conferred with vide discretion but the sentences

should, however, be adequate and within the limits prescribed by the

Legislature. Misplaced sentencing should be avoided; the Courts‟

exercising discretion by passing an order on sentence below the

minimum should only do so when there are special reasons for doing

so.

37 The offence of a nature committed by the present appellant is an

offence against society. There is no doubt that the offence is almost two

decades old and the bribe money is also a small amount but the Court

while upholding the conviction notes that the appellant has undergone

incarceration of only about 5 days; there is no other special reason

deducible from the record which may persuade the Court to impose a

sentence lesser than the minimum except the fact that the appellant is 71

years of age (but otherwise in good health). This Court therefore does

not think it proper to pass a sentence below the minimum which has

been prescribed by the Legislature.

38 Accordingly, the sentence imposed upon the appellant under

Section 13(2) read with Section 13(1)(d) of the said Act is RI for 12

months; fine is unaltered. The sentence under Section 7 of the said Act

which is RI 1 year is reduced to RI 6 months; fine is unaltered. Both the

sentences will run concurrently. Benefit of Section 428 of the Cr.P.C.

granted to the appellant. Appeal is disposed of in the above terms.

39 Bail bond and surety bond are cancelled. Appellant be taken into

custody to serve remaining sentence.

INDERMEET KAUR, J SEPTEMBER 10, 2014 A/ndn