Criminal Appeal No.414-SB of 1996 1 In the High Court of Punjab and Haryana at Chandigarh Criminal Appeal No.414-SB of 1996 Date of decision: 3.3.2009 Madan Mohan Lal Verma ......appellant Versus State of Punjab .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Appellant in person Mr.Aman Deep Singh Rai, AAG, Punjab. Mr.Anmol Rattan Singh Sidhu, Sr.Standing Counsel with Mr.Ajay Kaushik, Advocate for CBI. **** SABINA, J. Appellant-Madan Mohan Lal Verma was tried for an offence under Sections 7,13 (1) (d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act'). Vide judgment dated 28.5.1996, he was held guilty for the said offence and was convicted thereunder by the Special Judge, Central Bureau of Investigation, Punjab, Patiala. Vide order of the even date, the appellant was sentenced to undergo rigorous imprisonment for one year and a fine of Rs.2,500/- under Section 7 of the Act and rigorous Criminal Appeal No.414-SB of 1996 2 imprisonment for one year and a fine of Rs.2,500/- under Sections 7,13 (1) (d) read with Section 13(2) of the Act. Aggrieved by the same, the appellant has filed the present appeal. Prosecution story, as noticed by the Special Judge, CBI, Patiala in para 2 of his judgment, is as under:- “The facts of the prosecution case are that accused was an inspector of Income tax in Ward No.2 (6) at Jalandhar. Smt. Neeru Kapoor is the wife of complainant Naresh Kumar Kapoor. They lived in House No.456-L Model Town, Jalandhar. This house is owned by Smt. Neeru Kapoor. It was purchased in her name in the year 1990- 91. Both Naresh Kumar Kapoor and Smt.Neeru Kapoor were assesses of Income tax. According to the complainant the house was mentioned in the return for the year 1991-92, and the income tax department had accepted the assessment. The accused was inspector of income tax in Ward No.2(6) Jalandhar in which this house is located. About a month earlier to 1.6.1994, the accused met the complainant and told him that his house was to be assessed and enquiry was to be made regarding the purchase of the Car by him which was not brought to the notice of the Income Tax department. The complainant told the accused that his house had already been assessed for the assessment year 1991-92 and that Criminal Appeal No.414-SB of 1996 3 he had purchased no car. Despite that the accused visited the house of the complainant time and again and contacted him on telephone asking him to meet him and to pay him gratification, otherwise he would re-open the assessment file of his house. Telephone call was also made by the accused to the complainant in the morning of 1.6.94 to this effect. He invited the complainant and said that the notice was with him which he would serve on the complainant when he would meet him. The complainant accompanied by Raj Kumar then on 1.6.94 went to the house of the accused No.638 in Mota Singh Nagar, Jalandhar. The complainant requested the accused not to get his house re-assessed. The accused said to the complainant that he would not get his house re-assessed provided he (the complainant) would give him Rs.25,000/- as illegal gratification. The complainant protested that the amount was excessive. The accused then agreed to accept Rs.10,000/- as part payment of the illegal gratification and Rs.15,000/- to be paid to him later on for not getting the house re-assessed. The complainant made false promise to the accused to pay him Rs.10,000/- the same day i.e. 1.6.1994. In fact he did not want to give the illegal gratification to the accused. He accompanied by Raj Kumar went to the office of the Criminal Appeal No.414-SB of 1996 4 vigilance Bureau, Jalandhar Harish Kumar Sharma DSP Vigilance, Jalandhar met them in his office. Naresh Kumar Kapoor complainant disclosed to Harish Kumar Sharma DSP that the accused Madan Mohan Lal Verma, Income Tax Inspector, was demanding from him Rs.25,000/- as illegal gratification for not re-opening the assessment file regarding his house. The complainant further told that the accused had agreed to accept Rs.10,000/- as part payment of the bribe on 1.6.94. The statement of the complainant Ex.PW 1/1 was recorded by Harish Kumar Sharma DSP Vigilance. The complainant produced currency notes of Rs.10,000/- before the DSP Vigilance. The amount was comprised of 20 currency notes each of the denomination of Rs.500/-. The endorsement Ex.PW 12/1 was made under the statement of the complainant in which the numbers of the currency notes were written. Harish Kumar DSP applied phenolphthalein powder to the currency notes. The tainted currency notes were entrusted to the complainant after satisfying that he had no other money with him. Fard Ex.PW 3/1 was prepared in this respect. It was attested by the complainant Naresh Kumar Kapoor, and Raj Kumar Shadow witness. Demonstration was given before them. A glass of water was arranged in which Criminal Appeal No.414-SB of 1996 5 sodium carbonate was added. The colour did not change. Then some Phenolphthalein powder was put with the chit of paper. The colour turned pink. The colution was destroyed, DSP Vigilance washed his hands. The hands of the complainant Naresh Kumar Kapoor were also washed. DSP vigilance then gave the instructions to the complainant that he should hand over the tainted currency notes to the accused on his demand. PW Raj Kumar shadow witness was instructed to follow the complainant to hear the conversation between the complainant and the accused and to give signal to the police party after the accused had demanded and accepted the bribe money from the complainant. They were instructed not to hand with the accused. Ruqa was sent to the police station Division No.6, Jalandhar for the registration of the case. FIR was registered there. Ex.PW ½ is the copy of the FIR. Harish Kumar DSP Vigilance moved an application in the office of the Deputy Commissioner, Jalandhar requesting him to depute an official to join the said party. The Deputy Commissioner, Jalandhar deputed Gurlavleen Singh, Executive Magistrate to join the raid party. He came to the office of the DSP Vigilance and was apprised of the whole affair. Raid party was formed. The raid was to be conducted at Criminal Appeal No.414-SB of 1996 6 the house of the accused. So, they went in Govt. jeep. It was parked at some distance from the house of the accused. From there the complainant Naresh Kumar Kapoor and shadow witness Raj Kumar were sent in advance. The remaining members of the raid party stood scattered at some distance for the wait of the signal from the shadow witness. The complainant Naresh Kumar Kapoor and shadow witness Raj Kumar entered the house of the accused. He was present in the drawing room of his house. He told the complainant to sit. He further told that he was not feeling well and was to consult a doctor and as such the complainant should do whatever he was to do as early as possible. The complainant handed over the tainted currency notes of Rs.10,000/- to the accused. The accused said that the amount was very less and asked the complainant to pay Rs.25,000/-. The complainant told him that he was having only Rs.10,000/- with him. The accused took the currency notes and asked the complainant to pay the balance on the next day. After taking the bribe money from the complainant, the accused placed the same under a newspaper which was lying on the table. The accused then took out the notice and got the signatures of the complainant on one copy of the notice and kept the Criminal Appeal No.414-SB of 1996 7 same with him. One copy of the notice was given to the complainant. Raj Kumar shadow witness watched all these transactions. He then gave the appointed signal to the raid party. Harish Kumar DSP Vigilance, Gurlavleen Singh Executive Magistrate and other members of the raid party then came in the drawing room of the house of the accused. Raj Kumar shadow witness also entered along with them. The accused and the complainant were found sitting on a sofa in the drawing room. Harish Kumar DSP disclosed his identity to the accused and held him fro his wrists. DSP Vigilance asked the accused as to whether he had taken the bribe money from the complainant Naresh Kumar Kapoor. He denied it. DSP Vigilance asked again about the bribe money. The accused then got perplexed. A table was lying in front of the accused. The bribe money was lying under a newspaper on that table. DSP Vigilance asked Gurlavleen Singh Executive Magistrate to count the recovered money and to compare their numbers with the numbers already written in the memo. The currency notes were counted and were found Rs.10,000/-. Their numbers were compared. They tallied with the numbers already written in the memo. The currency notes were each of the denomination of Rs.500/-. The recovered Criminal Appeal No.414-SB of 1996 8 currency notes Ex.P2 to P21 were taken into possession vide recovery memo Ex.PW2/1. PW Jit Kumar perchance came there. He was joined in the proceedings. This memo was got attested from him and from the complainant Naresh Kumar Kapoor. Raj Kumar shadow witness and Gurlavleen Singh, Executive Magistrate. A glass of water was then arranged. Sodium carbonate was put in it. Then the hands of the accused were got washed in that solution turn by turn. The colour turned pink. That solution was preserved in nip which is Ex.P-1. Same was sealed by the DSP Vigilnce. It was seized vide seizure memo Ex.PW2/2 which was attested by the aforesaid witnesses. Further personal search of the accused was conducted. Wrist watch was recovered from him. Ex.Pw 2/3 is the memo of personal search. The complainant produced the notice. Ex.PW 5/3 which the accused had already issued to him. This notice was taken into possession vide recovery memo Ex.PW 7/1. The site plan Ex.PW 12/1 was prepared showing the place of recovery. The nip Ex.P1 containing the hand wash was later on sent to the Forensic Science Laboratory, Chandigarh. Report Ex.PA was received from there which showed that solution contained water, sodium carbonate and Phenolphthalein powder. The Criminal Appeal No.414-SB of 1996 9 investigation of the case was handed over to the CBI, the accused being Central Govt. Employee. Sanction to prosecute the accused in this case was obtained from the Commissioner of Income Tax, Jalandhar, who was the competent Authority. On completion of the investigation, final report was prepared by S.S.Gurm CBI, Inspector under Section 173 Cr.P.C. for trial of the accused for the offence punishable under Section 7 and 13 (1) (d) read with 13(2) of the Prevention of Corruption Act, 1988” The appellant, who has appeared in person, has submitted that the prosecution had failed to prove its case and he had been falsely involved in this case. The complainant with a view to falsely involve him in this case came to his house and kept the money under the newspaper, while he had gone to bring a glass of water at the request of the complainant. The newspaper under which the money was lying was not taken in possession to establish whether the money had been kept under the newspaper by him or by the complainant himself. He was only required to serve a notice on the complainant with regard to tax evasion done by him. The complainant was a man of criminal background. He was involved in a murder case and fraud relating to crores of rupees. He was arrested in the said criminal case and had remained in jail. Appellant further submitted that the colour of the solution in which his hands were washed turned into pink because the complainant on reaching Criminal Appeal No.414-SB of 1996 10 his house had shaken hands with him. Learned counsel for CBI has submitted that the prosecution had been successful in proving its case. The appellant had met the complainant on 2-3 occasions to strike a deal with him. Ultimately, the appellant had accepted Rs.10,000/- as bribe money from the complainant and the same was recovered during raid. The story put forth by the appellant that the complainant had shaken hands with him was falsified as the same was denied by the complainant in his cross-examination. Prosecution in order to prove its case examined Jarnail Singh (PW-1), Gurlabdin Singh (PW-2), Raj Kumar Sharma (PW-3), Ajit Kumar (PW-4), C.L.Aggarwal (PW-5), Surjit Singh (PW-6), Naresh Kumar Kapoor (PW-7), S.S.Gurm (PW-8), Surinder Kumar (PW-9), S.C.Grover (PW-10) and Harish Kumar (PW-12). After close of prosecution evidence, the appellant when examined under Section 313 Cr.P.C. prayed as under:- “The case is false. The witnesses are deposing falsely. I am innocent. I was posted with O.P.Sood the then Income Tax Officer Ward No.2 (6) Jalandhar. Report was received in the Income Tax Office of the Income tax Officer Ward No.2 (6) Jalandhar from the Assistant Director Investigation, Jalandhar against Naresh Kumar complainant for evasion of taxes of lacs of rupees by him. The enquiry was entrusted to me. The address of the Criminal Appeal No.414-SB of 1996 11 business premises given by Naresh Kumar complainant were found false. I had met him regarding the complaint against him. He and his counsel A.K.Datta did not cooperate me in the enquiry. I reported the same to my officer. I was also entrusted with the job of serving notice under Section 148 of the Income Tax Act on the complainant for the year 1992-93. The complainant first avoided to accept the notice. Ultimately he agreed to receive the notice after consulting with his counsel A.K.Datta. Then on 1.6.94 at 5 p.m. Naresh Kumar Kapoor complainant along with man came to my residence. He told me that he had come to receive the notice from me. That man accompanying Naresh Kumar complainant slipped away. Naresh Kumar Kapoor complainant came inside my drawing room to take delivery of the notice from me. There I served him notice and took his signatures on my office copy. Thereafter, he asked me for glass of water for taking some medicines. I brought glass of water from the kitchen. He took the water and thereafter shake hand with me and left my drawing room feeling sorry for the trouble. Immediately some police officials entered my drawing room. They shouted at me saying that I had received bribe money from Naresh Kumar complainant. I denied that I had not Criminal Appeal No.414-SB of 1996 12 accepted the bribe money. The police offials then searched my bag and pocket but they could not find any money. Then at the instance of Naresh Kumar Kapoor complainant the money was recovered lying under the newspaper lying on the table. The served copy of the notice was taken from Naresh Kumar Kapoor and office copy of the notice was taken from me. The Executive Magistrate recorded my statement. I gave the entire version to him that I was implicated in false case. Naresh Kumar Kapoor in order to avoid the tax worth lacs of rupees got planted this false case against me in connivance with Anti Corruption Society Members and police officials. Naresh Kumar complainant also threatened me on 11.8.94 to deter me through proceedings with the enquiry against him. I then wrote letter to DIG, Jalandhar Range through my Income Tax Commissioner. Then on 14.10.94 after I was returning from reception party, the complainant Naresh Kumar Kapoor attacked me and gave injuries. I got myself medically examined in Civil Hospital, Jalandhar. I went to police station Division N o.4 to lodge the report but the police did not register the case on complainant. Naresh Kumar Kapoor is chairman of the Anti Corruption Society. J.K.Anand is President of the said society. They joined Criminal Appeal No.414-SB of 1996 13 hands with each other. J.K.Anand also made out false case against my sons. The case is false.” The appellant had examined in his defence R.K.Kochar (DW-1), Inder Mohan (DW-2), Rajinder Mohan Chopra (DW-3), Sarishtri Kumar (DW-4), Rakesh Vasudev (DW-5), Kartar Chand (DW-6), Bakshish Singh (DW-7) and Harnarian Singh (DW-8). Complainant Naresh Kumar Kapoor, while appearing in the witness box as PW-7, has deposed that on 1.6.1994 he had gone to the vigilance department, Jalandhar on account of demand of illegal gratification by the appellant. The appellant had told him that he had paid less tax with regard to the house in the name of his wife Neeru Kapoor. The appellant raised a demand of Rs.50,000/- from him and had visited his house about three times and he had told the appellant that he was not ready to pay any illegal gratification. The appellant told him that he had brought a notice issued by Income Tax Officer and he should take the notice but the same was not shown to him. Ultimately, the appellant agreed to accept an amount of Rs.25,000/- and he told him that he was having only Rs.10,000/- and the appellant told him that he should bring the amount to his house on the next day. Thereafter, he approached the vigilance department and the raid was organised. He was shown demonstration of working of Phenolphthalein powder (for short 'P-Powder). Then they proceeded for the raid. He along with Raj Kumar Sharma, shadow witness, went to the house of the appellant. He handed over 20 Criminal Appeal No.414-SB of 1996 14 currency notes of Rs.500/- each to the appellant. After taking the money, appellant kept the same under the newspaper which was lying on the table. Then the appellant took his signature on a copy of the notice and kept the same with him. On receipt of signal, the vigilance staff reached there. When hands of the appellant were washed in the solution of sodium carbonate, the colour of the same turned pink. Currency notes were recovered from under the newspaper and their numbers were tallied and they were taken in possession. Raj Kumar Sharma (PW-3) has corroborated the statement of the complainant. Gurlabdin Singh (PW-2) and Ajit Kumar (PW-4) have also corroborated the statements of the complainant with regard to recovery of tainted currency notices. DSP Harish Kumar (PW-12) has also corroborated the statements of the complainant and the other witnesses. Thus, the present case is yet another case where a trap was led by the vigilance department and as per the prosecution case, the appellant was caught red handed. The menace of corruption is on the rise. A corrupt officer has to be dealt with a heavy hand. However, the prosecution is required to establish its case against the said officer beyond the shadow of reasonable doubt. In the present case, although all the prosecution witnesses have supported the prosecution case, yet the case requires careful examination in view of the defence taken by the appellant. A suspicion, howsoever strong cannot take the substitute of proof. Criminal Appeal No.414-SB of 1996 15 As per C.L.Aggarwal (PW-5), notice was for filing the return for the assessment year 1992-93. Thus, the appellant was to serve a notice on the complainant for filing the return for the assessment year 1992-93. The complainant, in his cross- examination, deposed that his statement was not recorded by S.S.Gurm, CBI Inspector. He did not state in his statement that the accused had told him that he had paid less income tax and his assessment of house had not been done. He did not even state that the accused had demanded Rs.50,000/- He did not state before the CBI that the accused had told that the amount of Rs.10,000/- was lying on the table under the newspaper. He did not state in his statement before the CBI that thereafter, he disclosed to the CBI that the appellant had received Rs.10,000/- from him and had kept the same under the newspaper lying on the table in the drawing room. He was arrested by the Delhi police on 1.1.1995 on the allegation that he had sold the share worth Rs.52,00,000/- concerning some other person. Thereafter a written compromise was effected with the said party. In the year 1989, he was challaned in a murder case but was later acquitted in the said case. He had not read the notice in question till date. Raj Kumar Sharma (PW-3) in his cross-examination, deposed that he was a journalist and press reporter. He had not seen the notice in question. The complainant had told him that the appellant was re-opening the assessment regarding his house and Criminal Appeal No.414-SB of 1996 16 car. The complainant was a property dealer and had remained in the Central Jail, Jalandhar in connection with a murder case but was acquitted by the High Court. He had also read in the newspaper that the complainant had been caught in Delhi while selling stolen shares and a case was registered against him in which he was acquitted later on. R.K. Kochhar (DW-1) deposed that the file of Neeru Kapoor was received by transfer from Income Tax Office Ward No.2 (3), Jalandhar. She had filed return for the first time for the year 1990-91 on 16.6.1993. Thereafter, also she had filed her income tax returns. Naresh Kumar Kapoor-complainant had filed his first return for the year 1990-91 on 2.6.1994. A notice was received from S.S.Gurm, CBI Inspector requiring them to produce income tax report of Smt. Neeru Kappor but the said letter was not available on record brought by him. Information was called from the banks regarding the transactions made by the complainant. Inquiry was made regarding the transaction of bogus shares of the complainant from brokers of Delhi and Ludhiana. After going through the evidence on record, it appears that the possibility that the appellant has been falsely involved in this case at the instance of the complainant cannot be ruled out. Wife of the complainant had constructed a house. Appellant was entrusted with the enquiry of the tax evasion made by complainant Naresh Kumar Kapoor. As per the appellant, complainant avoided to accept Criminal Appeal No.414-SB of 1996 17 the notice. Ultimately, complainant agreed to receive the notice in the presence of his counsel. The case of the complainant, on the other hand, is that the appellant was demanding money from him. The complainant, while appearing in the witness box as PW-7, has deposed that the appellant had met him at his house for about three times for service of notice but he had not seen the said notice. However, in his cross-examination, he deposed that he had not stated before the CBI that the appellant had told him that he had paid less income tax and his assessment of house has to be done or that Rs.50,000/- had been demanded by the appellant. This part of the statement of the complainant/PW-7 makes the prosecution story doubtful especially in the facts of the present case. In this case a raid was organised. Complainant went to the house of the appellant along with the shadow witness. The possibility that the complainant or the shadow witness had shaken hands with the appellant cannot be ruled out because it is a normal practice that when a person visits the house of another then as a matter of courtesy hands are shaken. Money in question was not recovered from the person of the appellant but was recovered from underneath the newspaper. The possibility that the said amount had been kept there by the complainant himself without the knowledge of the appellant cannot be ruled out. There is no doubt that Rs.10,000/- were recovered by the DSP in the presence of other witnesses from underneath the newspaper but it is doubtful whether the same had been kept by the Criminal Appeal No.414-SB of 1996 18 appellant after acceptance of bribe money. The colour of the solution of sodium carbonate turned pink when the hands of the appellant were washed in it but this, in the facts of the present case, does not lead to the inference that the appellant had handled the tainted money.