RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.936 of 2001 (Old No.1118 of 1999) Amar Singh S/o Late S.D. Singh R/o 10 Shivlok Colony, BHEL Rampur, District Haridwar, At present residing at C/o Sri R.N. Singh, K-400, Nirala Nagar, District Raibareilly ………….Appellant Versus The State …….. Respondent Dated: May 20, 2010 Sri Harpal Singh & Sri Lokendra Dobhal, Advocates for appellant Sri U.K. Uniyal, Sr. Adv. assisted by Sri Sandeep Kothari, Adv. for CBI/respondent HON. DHARAM VEER, J. This appeal, preferred under Section 374(2) of Code of Criminal Procedure 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 4.5.1999 passed by the Special Judge, Anti Corruption/U.P. (East), Dehradun, in Case No.1/94, CBI Versus Amar Singh, thereby convicting and sentencing the appellant-accused under Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter to be referred as the Act) for one year’s R.I. with fine of Rs.2,500/-, and further convicting and sentencing the appellant-accused u/s 7 of the Act for six months’ R.I. with fine of Rs.1,500/-. Both the sentences were directed to run concurrently. It was further directed that in case of default of payment of fine, the appellant-accused will have to undergo six months’ R.I. in addition to the above punishment. 2 2. I have heard learned counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution case is that P.W.3 Hari Om Singh Chauhan lodged a report before the S.P., CBI, Dehradun on 25.10.1993 stating therein that since the last 3-4 years, he was doing the work of civil construction on contract at BHEL, Haridwar. In the year 1992-93, he received the work of cleaning the rivulet vide agreement No.21/CF/II/CA 92-93 and in the month of April, 1993, he received the payment of final bill after completing the work. After completion of six months, he requested the appellant- accused Amar Singh to release his security amount of Rs.1,500/-, however, the appellant-accused demanded Rs.500/- for doing this work. He further stated that the appellant-accused told him that if the bribe of Rs.500/- would not be paid, then he would not let the payment of security released. It was further stated by the complainant that the appellant-accused had asked him to come on 26.10.1993 in between 10 AM to 5 PM, to pay Rs.500/- as illegal gratification at BHEL Convention Center, Haridwar. Since, the complainant did not want to pay the bribe, hence he moved the present application on 25.10.1993 at 3:00 PM, i.e. Ex.Ka-13. On the basis of that report, CHIK FIR was prepared, i.e. Ex.Ka-25 and initially, the investigation was entrusted to PW5 Inspector B.P. Bagchi, SPE, CBI, Dehradun and the case was registered u/s 7 of the Act. The I.O. then interrogated the complainant to verify the genuineness of the allegations and on being satisfied, he directed the complainant to be available at the Retiring Room of Railway Station, Haridwar on 26.10.1993 at 7:00 AM. The I.O. also contacted the Income Tax Authorities and the Officers of the Regional Office, Punjab National Bank and asked them to make available one 3 officer from their departments at the same retiring room and at the same time and place as was directed to the complainant. The I.O. also sent Constable Kishori Lal of his department to Haridwar on 25.10.1993 for making necessary arrangements at the retiring room. A trap party was also arranged on 25.10.1993 itself consisting of the B.P. Bagchi, Trap Laying Officer, Inspector R.K. Verma, Inspector P.K. Chowdhary, Inspector S.S. Patwal, one Head Constable and two Constables of CBI. All of them were directed to be available in CBI Office at Dehradun on 26.10.93 at 5 AM wherefrom they had to proceed by their official Maruti Van for Haridwar Railway Station. On 26.10.1993 at 7 AM, all the members of CBI arrived at the retiring room, Railway Station, Haridwar where Constable Kishori Lal was also present. At about 8:00 AM, complainant Hari Om Singh Chauhan along with PW2 Rakesh Jethwani, Assistant Manager, Punjab National Bank and PW6 Lakhan Lal Awasthi, Head Clerk, Income Tax Department also arrived there. The Trap Laying Officer apprised of the purpose of being assembled there and contents of the complaint were also read over by him in presence of all. Thereafter a pre-trap demonstration was conducted and the members of the trap party were made known as to how the person is trapped and what precautions are to be adopted to eliminate the possibility of false implication. A memo of pre-trap demonstration was also prepared by Trap Laying Officer B.P. Bagchi and got signed the same by the witnesses present there, i.e. Ex.Ka- 4. Necessary directions were also issued to all concerned by the Trap Laying Officer and PW6 Lakhan Lal Awasthi was directed to accompany the complainant as a shadow witness, who was to hear the conversation to be held between the appellant-accused and the complainant and further to witness the entire transaction of demand, 4 delivery and acceptance of the bribe. After that all of them were proceeding from retiring room while the complainant and the shadow witness Lakhan Lal Awasthi proceeded together on a scooter and they were being followed by other members of the trap party in official Maruti Van. On reaching there, they did not find the appellant-accused there and came back at about 11 AM in the same retiring room. None of them was allowed to leave the retiring room between 11 AM to 4 PM and a fresh memo to this halt was prepared, i.e. Ex.Ka-5. The trap party again proceeded at 4 PM for the Auditorium in the same manner as adopted in the morning and took their position there at suitable points. At 4:28 PM, the complainant beckoned of acceptance of bribe whereupon, all the members of the trap party arrived at the spot and nabbed the accused red- handed and recovered the same currency treated with phenolphthalein powder of Rs.500/- from the possession of the appellant-accused which were delivered by the complainant to him. Other necessary formalities of noting down the numbers, washing the hands and pocket of the pant of the appellant-accused in the freshly prepared solution of Sodium Carbonate etc., were also done at the spot. The solution of the sodium carbonate, which had turned from colourless to pink on washing hands, were also sealed in different phials and a memorandum of the entire proceedings conduct at the spot was prepared by the Trap Laying Officer and each page thereof was signed by all the members of the Trap Party. A copy of this memo was also made available to the accused at the spot who also made his endorsement of its receipt thereon, that memo is Ex.Ka-6. The Trap Laying Officer released the appellant- accused on bail on the spot. After the above proceedings, a search of the office of the appellant-accused was conducted and recovered therefrom the application form of the 5 complainant regarding the release of the security for which search memo Ex.Ka-7 was prepared. The residence of the house of the appellant-accused was also searched but nothing incriminating was recovered from there and for that search memo Ex.Ka-8 was prepared. After trapping the accused, the investigation was transferred to PW8 Inspector Bhagwan Singh, who during the course of investigation, obtained the sanction for prosecution against the appellant-accused from PW1 Subhash Chandra, General Manager (BHEL), i.e. Ex.Ka-1. The I.O. also prepared the site plan of the scene of crime, i.e. Ex.Ka-22. During the course of investigation, the I.O. recorded the statements of the witnesses and on completing the investigation, he filed the charge sheet against the appellant-accused in the court, i.e. Ex.Ka-27. 4. Learned Special Judge, Anti-Corruption, U.P. (East) Dehradun framed the charges against the appellant/accused on 23.03.1995 u/s 7 and also u/s 13(1)(d) r/w Section 13(2) of the Act. The charges were read over and explained to the appellant/accused who pleaded not guilty and claimed to be tried. 5. The statement of the appellant-accused was also recorded on the same day at the time of framing of the charge in which he stated that the contractor/complainant had borrowed Rs.500/- from him. He had given that amount to the contractor out of the funds collected as donation for playing Ram Leela. The borrowed money was refunded by the contractor to him. He further stated that the complainant was having enmity against him because he was usually scolded by him in relation to the contract work. 6 6. To prove its case, the prosecution got examined P.W.1 Subhash Chandra, General Manager BHEL, who accorded the sanction; PW2 Rakesh Jethwani, Assistant Manager, Punjab National Bank, independent eyewitness; PW3 Hari Om Singh Chauhan, complainant; PW4 M.B. Varshney, the then Sr. Manager (Civil), BHEL; PW5 Inspector B.P. Bagchi, Trap Laying Officer; PW6 Lakhan Lal Awasthi, the then Head Clerk, Income Tax Office, also an independent eyewitness; PW7 V.S. Visaria, the then SSO, Gd. I, CFSL, who conducted the chemical examination, PW8 Inspector Bhagwan Singh, IO of the case and PW9 R.C. Sharma, Sr. Accounts Officer, BHEL. 7. After that the statement of the appellant/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form who denied the allegations made against him. He had admitted the recovery of Rs.500/- made from his possession during the trap proceedings and further admitted that those notes were delivered to him by complainant Hari Om Singh Chauhan and those notes were in lieu of the money taken by the complainant from him. 8. After hearing counsel for the parties and appreciating the material on record, learned Special Judge, Anti-Corruption, UP (East), Dehradun vide judgment and order dated 4.5.1999 convicted and sentenced the appellant/accused as discussed above. Feeling aggrieved, the appellant/accused has come up in appeal. 9. To prove its case the prosecution has examined P.W.1 Subhash Chandra, who was posted as General Manager, BHEL, Haridwar. He stated that he had accorded the sanction to prosecute the appellant-accused, i.e. Ex.Ka- 1. He also stated that he was competent to remove the 7 appellant-accused from the service and as such, he was competent to accord the sanction for his prosecution. He also stated that on perusal of the relevant documents pertaining to this case, he was satisfied that sufficient grounds were there to accord the sanction. 10. PW2 Rakesh Jethmalani stated that on 25.10.1993, he was directed by his Department to be present at Railway Guest House, Haridwar and to report to CBI Inspector B.P. Bagchi, which he received and reported to him at 26.10.93 at 8 AM. There he found four Inspectors, one Head Constable and Two Constables of CBI Department. Besides, Hari Om Singh Chauhan (PW3) and Lakhan Lal Awasthi (PW6) of Income Tax Office were also present. All the persons were introduced with each other by Inspector B.P. Bagchi and were apprised of the purpose of assembling there. The written complaint of the complainant Hari Om Singh Chauhan was shown and read over to all and the genuineness of the complaint was verified by the complainant. Thereafter, Inspector B.P. Bagchi took a piece of white paper and treated that with phenolphthalein powder and on being directed, he touched that paper, that was sealed in an envelope which was got signed by the persons present, i.e. Ex.1. Thereafter, a solution was prepared which was initially colourless and on being directed, when he poured his fingers in that solution, that became turned pink. This pink solution was preserved in a phial and wrapped with a piece of cloth and the phial was sealed there, which was also signed by all the persons present, that phial is Ex.2. After that on the directions of Inspector B.P. Bagchi, the complainant Hari Om delivered five currency notes each of Rs.100/-. The phenolphthalein powder was also applied on those notes and asked the complainant to keep that in the back pocket of the 8 complainant and directed him to touch these notes only on demand by the appellant-accused as bribe. The residual phenolphthalein powder was sealed in an envelope and he along with other persons also signed on that envelope, i.e. Ex.3. He further stated that Inspector B.P. Bagchi directed PW6 Lakhan Lal Awasthi to remain present with the complainant Hari Om Singh Chauhan as a shadow witness to hear their conversation and witness the entire transaction. The complainant was further directed to give signal to the other members of the trap party as soon as the money of bribe is delivered to the appellant-accused by scratching his forehead. A memo of these proceedings was also prepared, i.e. Ex.Ka.4. As per the directions of Inspector B.P. Bagchi, he recovered the same currency notes of Rs.100/- each from the right back pocket of the pant of the appellant-accused, which were sealed in an envelope and that was signed by all the witnesses, i.e. Ex.4. Inspector BP Bagchi was directed to put off his pant and dipped its right back pocket into freshly prepared solution of sodium carbonate, which had also turned pink. This solution was sealed in a phial, i.e. Ex.7. He also proved the pant of the appellant-accused, i.e. Ex.8. He also identified the piece of cloth wherein the pant was sealed, i.e. Ex.9. He further stated that a recovery memo was prepared by Inspector BP Bagchi at the spot containing description of the trap proceedings, i.e. Ex.Ka-6. Thereafter, all of them went at the office of the appellant-accused and recovered three documents from his office which were got signed him and a recovery memo was also prepared, i.e. Ex.Ka.7. Thereafter, the residential premises of the appellant- accused was also searched but nothing incriminating was found and memo Ex.Ka-8 was prepared. The appellant- accused was released on bail on the spot. He also stated that a site plan was also prepared by Inspector BP Bachi 9 indicating the position of the trap party. This witness was cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable. 11. PW3 Hari Om Singh Chauhan, complainant of the case, who has stated that a contract for cleaning the rivulet was awarded to him in 1992-93 by BHEL and the work was to be completed by April, 1993. He proved the agreement Ex.Ka-9 bearing his signatures and that of the Senior Manager. The completion of work was reported by him in the first week of April, 1993 and the entries to that effect were also made in the measurement book, Ex.Ka.10. The date 5.4.1993 was entered as the date of completion of work in the measurement book when it was signed by him and K.C. Verma, Junior Engineer, but subsequently by overwriting/cutting, it was made as 5.5.1993 by someone. He had received the payment of his final bill as well as half of the security deposit but the remaining half amount i.e. Rs.1500/- was yet to be refunded by BHEL. After doing the necessary formalities, he delivered the application to the appellant-accused. He requested the appellant-accused to release his security. On 25.10.1993 at 7-7:30 AM, he requested the appellant- accused for his security release but the appellant-accused demanded Rs.500/- from him as illegal gratification for releasing his security. Since he did not want to pay bribe, he met with the CBI authorities and lodged a written complaint, Ex.Ka-13. The genuineness of the complaint was initially verified by the CBI authorities and thereafter he was directed by Inspector Bagchi to be present at the retiring room at Railway Station, Haridwar on 26.10.93 in the morning along with the currency notes 10 which were to be delivered to the appellant-accused on demand. When he reached at Railway Station, Haridwar, the members of the Trap Laying Team along with two witnesses of different departments namely, Mr. Rakesh Jethwani and Mr. Lalkhan Lal Awasthi were present there. They all were introduced with each other and the written complaint was read over by Inspector BP Bagchi before all whereupon the independent witnesses had interrogated the complainant. He has also reiterated the entire proceedings of the trap as described hereinabove and proved his signatures on the various documents. He also identified those currency notes in the court which were given by him to the appellant-accused as bribe and he proved the envelope in which the said notes were kept, i.e. Ex.6. He also proved the recovery memo prepared on the spot, i.e. Ex.Ka.6. This witness was cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable. 12. PW4 M.B. Varshney, who stated that in 1993 he was posted as Senior Manager (Civil) BHEL Haridwar. He proved the contract awarded to the complainant, the agreement is Ex.Ka-14. He also proved the notice inviting tender Ex.ka-15, indemnity bond of the work order Ex.Ka- 16 and relevant measurement book bearing his signatures as Ex.Ka-17. He also stated that at the time of checking the measurement, the date of completion was reported as 5.4.1993. Maintenance period was fixed for six months in this contract which commences from the date of completion. 13. PW5 Inspector BP Bagchi, Trap Laying Officer and PW6 Lakhan Singh Awasthi, who is an independent witness of the case, both have fully corroborated the entire 11 trap proceedings and also completely supported the prosecution case. 14. PW7 V.S. Viscariya, who stated that in March, 1994 he was posted as S.S.O. Grade-I Chemistry in CFSL. He stated that six sealed articles were sent to him by SPE, CBI Dehradun, in properly sealed condition and those articles were chemically examined under his supervision and in all the articles, on chemical examination, presence of phenolphthalein was found. He also prepared a report Ex.Ka-23 in this regard and the residual samples were sent back to the CBI Office, Dehradun. 15. PW8 Dy. SP Bhagwan Singh, IO of the case, who stated that he conducted the investigation of this case after the appellant-accused was trapped. He proved the FIR Ex.Ka-24 and disclosed the proceedings conducted during investigation. He also seized certain documents from BHEL Office. He also proved the seizure memos Ex.Ka-25 and Ka-26. After completing the investigation, he submitted the charge sheet, i.e. Ex.Ka.27. 16. PW9 R.C. Sharma, who stated that he was the Accounts Officer, BHEL Haridwar in July 1993. Final bill of complainant Hari Om Singh Chauhan was received in his office for the first time on 14.7.1993 which was returned to the concerned Division for making clarification as to the actual date of completion. The bill was again received on 20.7.1993 for Rs.4612.53 after processing by the Accounts Section which was sent to the Cash Section for making payment of Rs.4595.13. At the time of passing the final bill, Rs.1523/- were refundable to Hari Om Singh Chauhan, Contractor after the expiry of maintenance period of six months which is to be calculated from the date of completion of work. He also admitted that in Final 12 Deviation Statement the date “5.4.1993” has been shown as actual date of completion. 17. After that the statement of the appellant/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form who denied the allegations made against him. He had admitted the recovery of Rs.500/- made from his possession during the trap proceedings and further admitted that those notes were delivered to him by complainant Hari Om Singh Chauhan and those notes were in lieu of the money taken by the complainant from him. He also proved two documents Ex.Kha-1 payment voucher and two receipts vix. Ex.Kha-2 and Kha-3. 18. Sri Harpal Singh and Sri Lokendra Dobhal, Advocates for the appellants/accused argued that as per the above said evidence, the prosecution could not prove its case against the appellant/accused beyond reasonable doubt. Per contra, Sri U.K. Uniyal, Senior Advocate for the CBI argued that the case against the appellant/accused, as per the evidence discussed above, is clearly made out. I find force in the argument put forth by Mr. U.K. Uniyal, Sr. Adv. for CBI as PW3 Hari Om Singh Chauhan, who is the complainant of the case, has stated that a contract for cleaning the rivulet was awarded to him in 1992-93 by BHEL. The completion of work was reported by him in the first week of April, 1993 and the entries to that effect were also made in the measurement book, Ex.Ka.10. The date 5.4.1993 was entered as the date of completion of work in the measurement book when it was signed by him and K.C. Verma, Junior Engineer, but subsequently by overwriting/ cutting, it was made as 5.5.1993 by someone. He had received the payment of his final bill as well as half of the security deposit but the remaining half amount i.e. 13 Rs.1500/- was yet to be refunded by BHEL. After doing the necessary formalities, he delivered the application to the appellant-accused and he requested the appellant-accused Amar Singh to release his security. On 25.10.1993 at 7- 7:30 AM, he requested the appellant-accused for his security release but the appellant-accused demanded Rs.500/- from him as illegal gratification for security release. Since he did not want to pay bribe, he met with the CBI authorities and lodged a written complaint, Ex.Ka- 13. The genuineness of the complaint was initially verified by the CBI authorities and thereafter, he was directed by Inspector Bagchi to be present at the retiring room at Railway Station, Haridwar on 26.10.93 in the morning along with the currency notes which were to be delivered to the appellant-accused on demand. When he reached at Railway Station, Haridwar, the members of the Trap Laying Team along with two witnesses of different departments namely, Mr. Rakesh Jethwani (PW2) and Mr. Lakhan Lal Awasthi (PW6) were present there. They all were introduced with each other and his written complaint was read over by Inspector BP Bagchi before all whereupon the independent witnesses had interrogated him. All the members of the Trap Laying Party proceeded from the railway station for the office of the appellant-accused. He along with Lakhan Lal Awashti (PW6) proceeded in a scooter while the others proceeded in an official Maruti Van. At around 4:28 PM, he came out of the Auditorium, stood at the entrance and beckoned the Trap Party by touching his head with right hand. Immediately, on receiving the signal, all the members of the Trap Laying Party rushed into the Auditorium where the appellant-accused Amar Singh was sitting at his table located near the entrance of the Auditorium. PW5 Inspector BP Bagchi disclosed his identity to the appellant-accused and informed him for having 14 demanded and accepted Rs.500/- as illegal gratification from the complainant Hari Om Singh Chauhan. After that a solution of Sodium Carbonate was prepared in water in glass, in which the appellant-accused was asked to wash his right hand fingers in solution of Sodium Carbonate. As soon as the appellant-accused Amar Singh washed his fingers in the solution, colourless solution turned into pink colour. The right hand wash was transferred into a clean phial. A Security Release Order proforma was recovered for which memo Ex.Ka-7 was prepared. He also identified those currency notes in the court which were given by him to the appellant-accused as illegal gratification and he proved the envelope in which the said notes were kept, i.e. Ex.6. He also proved the recovery memo prepared on the spot, i.e. Ex.Ka.6. The statement of this witness is reliable and believable and the same gets full corroboration from the statements of PW2 Rakesh Jethwani, an independent witness, PW4 M.B. Varshney, PW5 Inspector B.P. Bagchi, Trap Laying Officer, PW6 Lakhan Lal Awasthi, independent witness, PW7 V.S. Visariya, scientific officer, who found that on the sealed articles, phenolphthalein powder was found and PW9 R.C. Sharma, who has proved the date of completion of work as 5.4.1993 and