IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 545 of 2002 Reserved on: 23.02.2010 Date of decision: 10.03.2010 State of H.P. ... Appellant Versus Chandermani … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the appellant: Mr. J.S. Guleria, Assistant Advocate General. For the respondent: Mr. Rajeev Jeewan, Advocate. V.K. Ahuja , J. : This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the acquittal dated 14.3.2002 passed by the learned Special Judge, Una, District Una, in a Corruption case under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988. Briefly stated, the facts of the case are that on 7.11.2000 Baldev Raj, complainant, accompanied by one Lal Chand came to A.C. Zone Una office and informed that he is working as a carpenter and he alongwith Lal Chand had worked in the house of 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 one Dr. Pawan Kumar for fixing doors and windows from February, 2000 to July, 2000. He further alleged that a sum of Rs.17,595/- is due to him and Rs.14875/- is due to Lal Chand from the said Doctor, who has only made a part payment to them of Rs.6400/- and Rs.5,900/- respectively, but still Rs.11,195/- and Rs.8975/- is due to them, which he has refused to pay inspite of demand. He further stated that he had filed an application before the Labour Inspector (C.M. Sharma), respondent herein, but he has not taken any action. It was further alleged that on 4.11.2000 he alongwith Lal Chand had met said Labour Inspector, who stated that summons will have to be issued, for which they have to pay the expenses. He asked about the amount and it was told by the respondent that they can pay some money and complainant volunteered that he will pay Rs.500/-. Thereafter, the Labour Inspector asked the complainant and Lal Chand to come to his office alongwith money on 7.11.2000. Complainant alleged that he is not ready to get work done by paying money and, therefore, on his statement a case was registered by A.C.Z. Unit Una. It is further the case of the prosecution that PW-7 Smt. Rani Devi posted in the Anti Corruption Zone, Una, registered FIR Ext. PB in this regard and requested the Deputy Commissioner, Una, to depute a Tehsildar before recording FIR to conduct the raid. The FIR was lodged in presence of Tehsildar S.K. Prashar PW-3. The complainant gave currency notes of Rs.500/- to PW-7, who recorded their numbers in Memo, treated them with phenolphethalein powder and demonstrated about the working of the powder. The currency notes were put in the pocket of the complainant with a direction 3 to hand over the amount to the accused on demand. PW-2 Lal Chand was made a shadow witness to the police when the money was given. Both the complainant Baldev Raj accompanied Lal Chand PW-2 were sent to the office of accused and other persons were present at another place in the bazaar. It is further the prosecution case that at 1.30 or 1.45 P.M. PW-2 Lal Chand came and told them that the accused had asked them to go for lunch and to come again after lunch. They went to the office of the accused at 2.30 P.M. The respondent came out of his office and after he had accepted the money he was caught hold of by the police party and his hand wash was taken according to the procedure and recovery was effected. After investigation the challan was filed in the Court and the case was tried by the learned Special Judge, Una, who framed the charge as detailed above and tried the respondent, leading to his acquittal. I have heard the learned counsel for the parties and have gone through the record of the case. The first point and the main point taken by the learned trial Court in acquitting the respondent is that the Investigating Officer had not associated any independent witness before conducting a raid on the person of the respondent. It was submitted that according to law, an independent witness was required to be associated in such a raid, but the Investigating Officer only associated the second complainant and aggrieved party PW-2 Lal Chand and he cannot be termed as an independent witness and his statement cannot be said to have corroborated the statement of the complainant since he was himself a complainant alongwith complainant PW-1 Baldev Raj. 4 In disbelieving the prosecution story and holding that non-joining of the independent witness by the Investigating Officer does not prove the case of the prosecution, the learned trial Court had referred to two decisions of this Court. The first decision referred to is Ved Parkash Vs. State of H.P., 1998(1) Sim. L.C. 392. a perusal of this decision given the learned Single Judge of this Court shows that it was observed that prosecution case suffers from a serious infirmity inasmuch as no independent witness was joined during the course of trap, raid and recovery. The case of the prosecution rests entirely on the evidence of witnesses who are either interested witnesses or police witnesses. It was held that the prosecution has not been able to establish its case against the appellant beyond a reasonable doubt. The said case also under Section 7 and 13 of the Prevention of Corruption Act as in the present case. The other decision referred to by the learned trial Court is State of Himachal Pradesh Vs. Tej Ram, 1989(2) Sim. L.C. 9. In that case it was also under Section 5(2) of the Prevention of Corruption Act read with Section 161 I.P.C. No reasons have been given by the prosecution for not including the independent, disinterested and reputed witnesses while conducting trap. The observations made in Paras 17 and 19 may be reproduced below:- “It is the duty of the prosecution, to join independent and disinterested persons in the raiding party. The prosecution could have easily, while on way to the place of the accused, included independent, 5 disinterested and reputable persons of the area and locality for evidencing the trap. In the absence of any reason by the prosecution for not including independent, disinterested and reputed witnesses in the raiding party, therefore, indicate that the incident has not taken place in the manner as the prosecution has contended. It further throws doubt on the whole case and the result is that the explanation given by the accused appears to be more sound and convincing.” Both these decisions have been rightly relied upon by the learned trial Court since the facts of both these cases were similar to the facts of the present case. There is no dispute that the complainant PW-1 Baldev Raj has specifically alleged that he alongwith PW-2 Lal Chand has to take money from the Doctor, for which a complaint was made to the Labour Inspector i.e. the respondent. Therefore, both PW-1 Baldev Raj and PW-2 Lal Chand who were associated in the raid can be said to be complainant and aggrieved persons and not independent witnesses. PW-7 or these two witness have never stated that any independent witness was associated at the time of delivery of money and the trap laid to apprehend the respondent. PW-7 Rani Devi, Inspector, is specific that PW-2 Lal Chand was made a shadow witness to give signal to the police on passing over of amount by moving his hand on his face. It is only in the cross-examination that she stated that one Mohan Lal in front of whose shop the recovery had been effected was called to the office of the accused/respondent through constable Dharam Pal, who reached there and thereafter he was 6 associated by the police, but the recovery had already been made and money was paid outside the office of the respondent has come up in evidence. He was, therefore, not associated as a witness in the trap laid to apprehend the respondent and he was also not examined by the prosecution for the reasons best known to them. In view of the law laid down in the above decisions that no independent witness was associated at the time of raid, the learned trial Court had rightly not believed the prosecution story. Apart from the above, it is also clear from the statements of PW-1 Baldev Raj and PW-2 Lal Chand that no money had been demanded ever by the respondent who had simply asked them to pay the expenses and PW-1 Baldev Raj had himself volunteered as per the allegations made in the complaint and as per his statement that he volunteered to pay Rs.500/- to the respondent. The essential ingredients of the offence in question are the demand made by the accused, the payment of money to the accused, acceptance of the money by the accused. One of the essential feature of the section i.e. demand is missing in the present case. In the State of Himahcal Pradesh Vs. Tej Ram (supra) also, the facts were similar since in that case also there was nothing in the statements of the witnesses of the prosecution to state that the accused had demanded any such amount at that stage. The only thing stated by the witness was that the currency notes were handed over to the accused and he put them in his pocket. It was held by the learned Single Judge that it is necessary to prove that it was a result of demand that the money was passed on. Passing of money is a sequence of demand, but in that case as well as in the 7 present case, the demand is missing. Therefore, also the prosecution story cannot be relied upon. Apart from the above, the learned trial Court while giving a well reasoned judgment had observed that the facts of the case will show that in the complaint filed by the complainant, the notice had already been issued to the respondent, who on the date of the hearing was not present as is also clear from the copy of the order sheet proved in evidence as Ext. DA. It was observed that the respondent is not present and the next date was being given. The accused had allegedly demanded money for issuance of the summons, but the facts of the case will show that the summons had already been issued on the date of hearing and both the complainants had also signed the order sheet, which clearly shows that it was mentioned therein that the accused had not put up appearance and thus, it was clear to them that the summons have already been issued and the money was being demanded for issuance of the summons. Once the summon have already been issued to the respondent, there was no occasion for the respondent to demand money and, therefore, the prosecution story cannot be relied upon. The sum total of the discussion is that the findings recorded by the learned trial Court acquitting the respondent of the charge framed against him cannot be termed as perverse calling for an interference by this Court. 8 In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged. ( V.K. Ahuja ), March 10, 2010 Judge (BSS) 9