Reserved Judgment HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1247 OF 2001 (OLD NO.462 OF 1990) H.L. Khanna S/o Sri Uttam Chand Khanna, Resident of 462, Gadhi, Dehradun Cantonment, Dehradun. ……… Appellant, Versus State ……… Respondent Sri Sandeep Tandon, learned counsel for the appellant. Sri Arvind Vashishtha, learned Advocate for the respondent. Dated: September 30, 2008 HON. DHARAM VEER, J. This appeal preferred, under section 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 21.02.1990 passed by learned Special Judge Anti Corruption U.P. (East), Dehradun, in C.B.I. case no. 10/1985 C.B.I. vs. H.L. Khanna, whereby the learned Special Judge has convicted the appellant-accused H.L. Khanna u/s 161 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and under Section 5(2) r/w Section 5(1) (d) of The Prevention of Corruption Act, 1947 (hereinafter referred to as the Act) and sentenced him to undergo one year’s R.I. u/s 161 I.P.C. and a fine of Rs. 5,000/-, in default of payment of fine 3 month’s imprisonment was awarded and he was further sentenced to undergo one year’s R.I. under Section 5(2) r/w Section 5(1) (d) of the Act and a fine of Rs. 5,000/- and in default of payment of fine further three month’s imprisonment was awarded. It was directed that both the sentences shall run concurrently. 2 2. I have heard Sri Sandeep Tondan, learned counsel for appellant and Sri Arvind Vashishtha, learned Advocate for the State and perused the entire material available on the record. 3. In brief the prosecution case is that the accused/appellant H.L. Khanna was Assistant Manager, In-charge of New India Assurance Company, Branch No. II Astlay Hall, Dehradun. On 11.05.1985, Sri V.K. Mittal (PW-1) Surveyor lodged a written report with C.B.I., Dehradun alleging therein that the accused/appellant H.L. Khanna demanded bribe by way of commission against the survey fee bills and he had been declining to do so. On 11.05.1985, the accused/appellant H.L. Khanna telephoned him in the morning at his residential telephone no. 26660 asking him to pay him a bribe of Rs. 250/- only towards his commission on the payment received by him since 01.04.1985 and also on all outstanding survey fee bills. The accused/appellant further told him that if he would pay the said bribe of Rs. 250/- on the same day, he would pay his most of his outstanding bills. It was further mentioned in the written complaint that no commission whatsoever was payable to the Branch Manager on the bills of the Surveyor and he had to agree to the demand of the bribe of the accused/appellant as he had also threatened to complainant on the telephone that if he did not pay the bribe of Rs. 250/-, he would not pass on any business in future. This written report is Ext. Ka- 10. On this written complaint of Sri V.K. Mittal, Surveyor, Sri S.C. Sinha, the then S.P., C.B.I. registered a case against the accused/ appellant H.L. Khanna and deputed Sri H.C. Bisht (PW-5) Deputy S.P., C.B.I. to investigate the matter. Accordingly, a trap was laid by Sri H.C. Bisht, Dy. S.P.-CBI on 11.05.1985 wherein the accused/appellant H.L. Khanna was caught red-handed at about 1:30 p.m. while demanding and accepting an illegal gratification of Rs. 250/- from PW-1 Sri V.K. Mittal, complainant for passing his survey bills. The said bribe money of Rs. 250/- was recovered from the possession of the 3 accused/appellant H.L. Khanna at the time of the trap. The accused/appellant H.L. Khanna Assistant Branch Manager was posted and functioning as In-charge of the New India Assurance Company and demanded an illegal gratification of Rs. 250/- in his said capacity from Sri Mittal as a motive or reward for doing an official act i.e. for getting the payments of his pending bills expedited and for continuing to allot him the business of survey and was also caught red-handed while receiving the said bribe money. The accused/appellant H.L. Khanna by corrupt or illegal means or by otherwise abusing his official position as a public servant obtained pecuniary advantage to the tune of Rs. 250/- for himself on account of which, he was charged u/s 161 I.P.C. and u/s 5(2) r/w Section 5(1) (d) of the Act. Investigation of the case was entrusted to PW-7 Sri. S.P. Gupta-Inspector C.B.I. who commenced the investigation and also seized the relevant documents. Subsequently the investigation was transferred to PW-6 Sr. S.S. Ali-Inspector-CBI who during the course of investigation recorded statement of the witnesses and also collected the necessary documents and after completing the investigation submitted charge sheet against the accused/appellant u/s 161 I.P.C. and u/s 5(2) r/w Section 5(1) (d) of the Act. The charge sheet is on the record. 4. Learned Special Judge, Anti Corruption U.P. (E) Dehradun on 29.07.1986 framed the charge u/s 161 I.P.C. and u/s 5(1) (d) of the Act (Act II of 1947) punishable u/s 5(2) of the Act against the accused/appellant H.L. Khanna. The charge was read over and explained to the appellant-accused, who pleaded not guilty and claimed to be tried. 5. In support of its case, the prosecution examined as many as 8 witnesses. PW-1 Sri V.K. Mittal-the complainant, who lodged the F.I.R. with the CBI on the basis of which the trap was laid and the accused/appellant was caught red-handed while 4 receiving the bribe money of Rs. 250/-. PW-2 Ramesh Chandra Singh is the independent eye witness who had taken part in the pre-trap proceedings and was a member of the trap party. He was directed to be present at the time of the actual transaction of bribe being taken and the bribe money was recovered by the CBI staff in the presence of this witness. PW-3 Vimal Ray is a formal witness relating to the sanction. PW-4 Mahanand Mishra was a Senior Assistant in the Assurance Company when the alleged trap was laid and he has been produced to prove that the survey bills relating to the complainant V.K. Mittal were pending and cheques were prepared on the direction of accused/appellant which were to be paid to the complainant Sri V.K. Mittal by the accused. PW-5 H.C. Bisht, Dy. S.P. CBI was the leader of the trap party who had arranged the trap and the accused/appellant was caught red-handed while accepting the bribe money of Rs. 250/-. PW-6 S.S. Ali, Inspector CBI had completed the investigation and submitted the charge sheet. PW-7 Sr. S.P. Gupta, Inspector-CBI had started the investigation which was subsequently transferred to PW-6 Sri S.S. Ali-Inspector CBI. Both these witnesses were the Investigating Officer of this case. PW-8 B.S. Kandura was Assistant Administrative Officer in the Assurance Company and he handed over some documents to the prosecution. 6. After that the statements of the accused/appellant 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 and stated that he has been falsely implicated in the crime. But he admitted that the CBI staff had recovered Rs. 250/- from his drawer which was open and stated that this amount of money of Rs. 250/- was not a bribe money. He has also filed his written statement claiming that on 06.05.1985 he got a telephone call from Sri V.K. Mittal-complainant that he alongwith his wife would like to come to his residence to congratulate his family on his promotion. At the same time Sri. 5 V.K. Mittal said on telephone that he wanted a small loan of Rs. 250/- which he would return tomorrow, in reply to which he told to Sri. V.K. Mittal that for a temporary loan he would need a small note from him in writing. Sri V.K. Mittal came with his wife alongwith two grand children at about 7:00 p.m. and had a dinner with him and stayed till 9:30 p.m. Sri V.K. Mittal and the grand children were known since childhood, therefore they were given Rs. 21/- by his wife and at that time V.K. Mittal asked for Rs. 250/- and at that time V.K. Mittal gave him a typed note bearing his signatures which written note was accepted by him and gave Rs. 250/- to Sri V.K. Mittal. Sri V.K. Mittal returned Rs. 250/- borrowed from him expressing his regret for not being able to return the borrowed money taken for one day only. The accused/appellant H.L. Khanna has stated that he took money amounting of Rs. 250/- from Sri V.K. Mittal and kept in the drawer and left the drawer open. When this amount of Rs. 250/- was recovered by the CBI staff, Mr. H.C. Bisht, Dy. S.P.-CBI came and caught hold of him and told him not to speak and not to move. The CBI people took him to their office and from there they came to his residence and made search till 11:00 p.m. Submission of the accused/appellant H.L. Khanna is that Mr. V.K. Mittal had paid this sum of Rs. 250/- which was borrowed from him and he received this amount of Rs. 250/- from the complainant V.K. Mittal on 11.05.1985 at about 1:30 p.m. This money was related to the loan taken by V.K. Mittal and was not a bribe money as alleged by the prosecution. He adduced the evidence of DW-1 Raj Kumar Jain and DW2 Veer Kumar Sakuja in his defence. 7. DW-1 Raj Kumar Jain has stated that in the month of April 1984 he was posted as Assistant Branch Manager and he took the said charge from H.L. Khanna who was transferred to Dehradun. He took the original charge list alongwith him in the trial court. He identified the signatures of himself and that of Mr. Khanna on the charge list a copy of which is Ext.Kha-56. On 6 seeing Paper no. 117Ka, he said that it bears the Rules regarding taking and handing over the charge. He further stated that it is necessary to put signatures on disbursement voucher. When any paper is received in the office, then a seal bearing name of the person is affixed with the date. He has further stated that without signing by two persons, no cheque would be passed. When Mr. Khanna was posted at Haridwar at that time he had the charge to conduct the business relating to IDPL and after his transfer to Dehradun, the same charge was with him. After making scrutiny, the survey fee is released. The claims relating to the riots of 1984 were dealt with by the Divisional Office. Sri S.M.I, Azim was the Divisional Manager in the year 1984. Paper no. 69A/3 is on his handwriting which is the confidential letter in regard to V.K. Mittal, to the Divisional Office. He identified his signatures on Ext. Kha-57. He identified the signatures of Mr. V.K. Jain on Paper no. 14 of file no. 84A (Ext. Kha-58) as he was Surveyor and regularly sent his reports. He identified the signatures of Sri A.S. Khera the then Divisional Manager on paper no. 211Ka/1 and 211Ka/2 (Ext.Kha-59) He also identified signatures of Sr. A.K. Khera on paper no. 212Ka/2, 213Ka/2 (Ext. Ka-60 & Kha-61). He also identified signatures of S.M.I. Quagera, Divisional Manager on paper no. 214Ka/2 (Ext. Kha- 62). He also identified signatures of B.P.Garg, Area Manager on the reverse sides of paper no. 211Ka/3 and 212Ka/3. Both these papers (Ext. Kha-63 and Kha-66) bears signatures of Sri. S.C.Gaur, Senior Area Manager. He also identified signatures of Sri. H.S. Khosla and R.K. Traham on the reverse sides of paper no. 213Ka/3 and 214Ka/3 (Ext.Kha-67 and Kha-70). He also identified signatures of Sri. S.K. Nag, Administrative Officer on paper no. 87Ka, 88Ka, 112Ka (Ext.Kha-71 to Kha-73). The paper no. 89Ka (Ext. Kha-1) is a letter of Area Manager Sri K.C.Aggarwal. He also identified signatures of Sri H.L. Khanna on paper nos. 107Ka, 115Ka, 129Ka, 131Ka, 134Ka, 137Ka, 142Ka, 145Ka, 147Ka, 149Ka, 151Ka, 154Ka, 156Ka, 159Ka, 161Ka, 163Ka, 166Ka, 168Ka, 170Ka, 173Ka, and no. 182Ka 7 which are Ext. Kha-74 to Kha-94. He also identified signatures of Sri H.L. Khanna on paper no. 70A/1 Ext.Kha-95. He also identified signatures of Sri G.K. Kapoor on paper no. 104Ka (Ext.Kha-96). He also identified signatures of Sri S.M.I. Quagera on paper nos. 148Ka, 150Ka, 152Ka, 153Ka and 182Ka which are in red ink (Ext.Kha-97 to Kha-101). He also identified signatures of Sri P.N. Saxena, Administrative Manager on paper no. 160Ka. He also identified signatures of Sri V.K. Jain- Surveyor on paper no. 144Ka (Ext.Kha-103). He also identified signatures of Sri B.S. Kanthura, Assistant Administrative Officer on paper no. 218Ka (Ext.Kha-104). DW-2 is Veer Kumar Sakuja-Handwriting Expert, who on being examining after describing his expertise and experience, has stated that he examined the paper no. D-I dated 06.05.1985 a receipt of Rs. 250/-which is said to be signed by Sri V.K. Mittal. He compared the signature from A-I to A-6, which are in paper no. 19A/2 & paper no. 21A/2 Ext. Ka- 10/1, Ka-11, Ka-12, Ka-24. He prepared a report, which is paper no. 223Ka/1 to 7. He had shown the details after enlargement of the photos of the disputed and undisputed signatures. The photos are paper no. 224Ka/1 to 224Ka/4. He further stated that the signature in paper no. D-I which is said to be the signature of V.K. Mittal, is in the same writing of undisputed signatures, which is described in the report paper no. 223Ka below the heading comparative signatures. The disputed signature and the signature taken for comparison are one and written by one person. He can say that the person who has made the accepted signatures is a skilled writer, who can change his signatures to a little extent according to his wish. This fact is also proved from the examination of signature A-3 in comparison to any accepted signatures. He has mentioned the detailed reasons of his opinion in the report dated 24.01.1989 and the details of individual characteristics are shown in the corresponding photos by marking them. He proved his report Ext. Kha-105. 8 8. After appreciating the entire material available on record and after hearing the learned counsel for the parties, the learned Special Judge, vide his judgment and order dated 21.02.1990 has convicted and sentenced the accused/appellant H.L.Khanna as discussed above. Feeling aggrieved with the said judgment and order dated 21.02.1990, the accused-appellant has preferred the present appeal. 9. The accused/appellant H.L. Khanna did not deny that he had received Rs. 250/- from V.K. Mittal, Surveyor on 11.05.1985 at about 1:30 p.m. and the said amount was recovered from the drawer by the CBI staff, however his defence is that this money was returned by V.K. Mittal-Surveyor as he had borrowed the said money from him when he had come at his residence with his wife and grand children on 06.05.1985 to congratulate him on his promotion. Mr. V.K. Mital-Surveyor had also dinner with him and the grand children of whom who had also come, were given Rs. 21/- by the wife of the accused/appellant H.L. Khanna. Mr. V.K. Khanna-Surveyor had given a typed note bearing his signature showing that he had received Rs. 250/- as a loan from the accused/appellant, to prove that the said typed note which was the receipt of Rs. 250/- (paper Ext. D-I) was signed by Mr. V.K. Mittal-Surveyor. The accused/appellant produced an Expert witness DW-2 Veer Kumar Sakuja. This Expert witness has stated on oath before the Court that the paper (Ext. D-I) bears the signature of Mr. V.K. Mittal-Surveyor and the said signature is genuine signature and has not been forged by the accused/appellant or by any body else. Thus, the evidence of DW-2 Vir Kumar Sakuja relates to the said typed note (Ext. D-I) proving that it bears the genuine signatures of Mr. V.K. Mittal wherein it has been shown Rs. 250/- was taken by Mr. V.K. Mittal-Surveyor from accused/appellant H.L. Khanna and this typed receipt reads as follows:- 9 “My Dear Khanna Ji, The sum of Rs. 250/- taken by me from you today shall be returned tomorrow.” Dated 6.5.85. Sd. V.K. Mittal, Sh. H.L. Khanna. Surveyor.” ABM 10. It shall now be seen whether the prosecution has succeeded to prove the guilt against the accused/appellant that he had received Rs. 250/- as a bribe on 11.05.1985 at 1:30 p.m. and the money received by the accused/appellant H.L. Khanna was not repayment of any loan by Mr. V.K. Mittal-Surveyor as alleged by the accused/appellant in his defence. 11. PW-1 V.K. Mittal-complainant was doing survey work of New India Assurance Company-Astley Hall and the accused/appellant H.L. Khanna was the Assistant manager and In-charge of this Branch. He has deposed that in the year 1985 six bills were pending with the accused/appellant for payment. And out of these six bills, he had already given pre-receipt in three bills. These six bills were Ext. Ka-1 to Ka-6 and in three bills in which pre-receipts had already been obtained from him which were Ext. Ka-1 to Ka-3 (Paper nos. 19-A1, 20-A1 & 23-A1) He had already filed his survey reports in these three bills (Ext. Ka-7 to Ka-9). This witness has further stated that on 11.05.1985 at about 7:00 a.m. he had received a telephone call from the accused/appellant stating that all pending bills would be cleared and payment be made if the sum of Rs. 250/- is given in the form of a commission on the six pending bills as well as the payments of the bills which had already been made on 01.04.1985. He has further stated that the accused/appellant had threatened him that if this amount of Rs. 250/- would not be paid to him he would not be given any business in future and if this amount of Rs. 250/- is paid, payments of all these pending bills would be made. He has also stated that he agreed to pay this illegal amount of Rs. 250/- to the accused/appellant but made up his mind to take legal action against the 10 accused/appellant for making this illegal demand. On 11.05.1985, he went to the CBI Office and met to the S.P. and written a report (Ext. Ka-10) which was handed over to the S.P.- CBI and Sri. H.C. Bisht (PW-5) was deputed by the S.P.-CBI to investigate the case and he went to the room of Sri H.C. Bisht- Dy. S.P.-CBI where a plan was made for arranging the trap. At about 12:00 in the noon, Lakhi Ram-an employee of the Post Office and Ramesh Chandra Singh (PW-2)-from the Railway Department were procured for this trap. The pre-trap proceedings were held in the presence of Panch witnesses Lakhi Ram and Ramesh Chandra Singh and demonstration was held. Mr. H.C. Bisht-the leader of the trap party explained the procedure of the trap and sum of Rs. 250/- containing two notes of 100/- denominating and one not of Rs. 50/- denominating (Ext.-1 to 3) were taken by Sri Bisht and written report (Ext. Ka-10) was read over to the Panch witnesses and they were told about the purpose of the trap. After pre-trap proceedings and demonstration three notes costing Rs. 250/- were smeared with powder which were to be given to the accused/appellant on his making of demand of bribe. According to the plan, Mr. Ramesh Chandra Singh (PW-2) was directed to go to the accused H.L. Khanna and met with him in his cabin and wait for the complainant and when conversation starts, he will have to hear the conversation and also witness the passing of the bribe money and will also give a signal by touching his head. He proved Memo (Ext. Ka-11) which was prepared at the time of the pre-trap proceedings in the room of Sri Bisht-Dy. S.P. He has further stated that he started from the office of CBI around 1:00 or 1:30 p.m. with Mr. Bisht on his scooter and rest of the witnesses and CBI people went by CBI vehicle. That he left his scooter and CBI people left the vehicle in the Parade Ground and thereafter(PW-2) Ramesh Chandra Singh left for the office of accused/appellant and when he reached the cabin of the accused/appellant H.L. Khanna, he found that Ramesh Chandra Singh was already sitting with the accused/appellant 11 on a chair in the cabin and in the presence of Ramesh Chandra Singh (PW-2), he said to the accused/appellant H.L. Khanna about the payment of the pending bills on which the accused/appellant H.L. Khanna asked about the money of Rs. 250/- and when he made payment of the said money of Rs. 250/- (Ext.-1 to 3), the accused/appellant received these notes with his right hand and kept in the drawer towards right side. That soon-after Mr. Ramesh Chandra Singh gave the pre- decided signal, on which CBI people, including Mr. Bisht entered the cabin and caught hold the right hand of the accused/appellant H.L. Khanna. The right hand of the accused was dipped in the glass of water made of solution as a result of which, the water turned pink and the said water was subsequently sealed in a bottle (Ext.-8). Mr. Bisht, the leader of the trap party asked the accused/appellant about the bribe money on which the accused H.L. Khanna indicated towards the drawer and Mr. Bisht recovered the three notes Ext. 1 to 3 and these three notes total Rs. 250/- were subsequently sealed in an envelop (Ext.-9). The memo of the proceedings were prepared on the spot which was proved as Ext. Ka-12, a copy of the memo was received by the accused H.L. Khanna and the accused had put his signatures in receipt of the memo. This witness was cross-examined by the defence counsel at length but nothing has come out in his evidence, which may create any doubt. The evidence of this witness on each and every aspect is reliable, believable and trustworthy. 12. PW-2 is Ramesh Chandra Singh, who has stated that on 11.05.1985, he was a Ticket Collector at the Railway station and was called by the CBI. He went to the CBI Office and met to Mr. Bisht, Dy. S.P. in his room where Mr. V.K. Mittal and one person Lakhi Ram was also sitting. There were 9 persons and all were introduced with each other. He has further stated that Mr. V.K. Mittal gave Rs. 250/- (Ext. 1 to 3) to Sri Bisht, Dy. S.P. and these notes were smeared with a powder and thereafter 12 returned to Mr. V.K. Mittal by Mr. H.C. Bisht. He has further stated that it was decided that he would go to the office of the accused/appellant and would begin talk in connection with Insurance and thereafter Mr. V.K. Mittal would come over there and he would hear the conversations. He has further stated that it was decided that he would seen the whole transaction and when the bribe money would be passed, he would give signal by touching his head. The pre-trap proceedings were held in the room of Mr. H.C. Bisht-Dy. S.P. which he proved (Ext. Ka-11) and thereafter at about 1:30 p.m. Sri V.K. Mittal and Mr. Bisht left for the spot on the scooter and he alongwith the CBI party left by car separately. Then he went to the chamber of the accused/appellant H.L. Khanna and started talking about the insurance and thereafter Mr. V.K. Mittal came over there and asked from accused/appellant about the pending bills. The accused/appellant H.L. Khanna told Mr. V.K. Mittal that one bill is ready and further asked about the money whether he had brought the money, on which Mr. V.K. Mittal paid Rs. 250/- in his presence which was received by the accused/appellant H.L. Khanna with his right hand and kept the same in the drawer of the table and thereafter he gave the signal by touching his head through a window nearby a side on which Mr. H.C. Bisht and other people of the CBI and Lakhi Ram came there. Then Mr. H.C. Bisht caught the right hand of the accused/appellant