IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.713 of 2008 Decided on: September 8, 2011 Rakesh Kapoor .. Appellant. Versus State of HP .. Respondent Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : M/s Shrawan Dogra and Ashok Sharma, Advocate. For the Respondent : Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, Judge (oral) This appeal by Rakesh Kapoor, who at the relevant time was a member of one of the State Premier Services, i.e. H.P. State Administrative Service, is directed against the judgment, dated 16.10.2008, of learned Special Judge, Kangra at Dharamshala, whereby he has been convicted of offences, under Sections 7 and 13(2) of the Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for two years and to pay a fine of `10,000/-, for both the offences (compositely) and in default Whet her report ers of t he l ocal papers may be al l owed t o see t he j udgment ? É2É of payment of fine to undergo simple imprisonment for a further period of six months. 2. Prosecution case, which led to the trial of the appellant, as it emerges from the evidence adduced during the course of trial, may be noticed. In January, 2003, appellant had been posted as Divisional Tourism Development Officer, Dharamshala. One of the duties of Divisional Tourism Officer was to permit the running of buildings as guest houses/hotels, by registering them as such and fixing the tariff for different type of rooms/accommodation in the buildings. One Nirwan Singh constructed a building at Cheelgari. He appointed PW-1 Sukhjit Singh Sidhu as his Attorney for running a guest house in that building, after obtaining necessary permission from the Tourism Development Office. A Power of Attorney was executed in favour of PW-1 S.S. Sidhu by said Nirwan Singh, copy of which is Ext. P26. PW-1 S.S. Sidhu made an application Ext. P1 on 31.3.2003 for registration of the building as guest house and for fixing of tariff. He deposited the necessary fee of `100/- on 10.4.2003. Building was inspected by the appellant, in his capacity as Divisional Tourism Development Officer, on 28.4.2003. He told PW-1 S.S. Sidhu, at the time of inspection that the building was in order and that he could start running guest house in that building, immediately. É3É 3. On 2.5.2003, appellant recorded a note Ext. PW13/K (on the reverse of Ext. PW1/A, a handwritten application of PW1 S.S. Sidhu), for registration of the building as guest house and also fixed tariff, for different rooms, at different rates. Formal letter of registration and order of fixation of tariff had, however, not been issued. 4. On 5.5.2003, PW-1 S.S. Sidhu, accompanied by PW-3 Ashwani Bhatia (shadow witness) went to Police Station, A.C. Zone, Dharamshala, in the evening and lodged a report that on the previous day, i.e. 4.5.2003, he had received a telephonic call from the appellant, informing him that his case for registration of guest house and for fixation of tariff had been cleared and that he could collect registration certificate and order of fixation of tariff from him, on the next following day, by paying him `10,000/-. This amount was demanded by way of bribe. PW-1 S.S. Sidhu took PW3 Ashwani Bhatia into confidence, who happened to be his friend, and both of them decided to report the matter to the police. They carried with them ten currency notes of the denomination of `1000/- each. On the basis of the report made by PW-1 S.S. Sidhu, FIR Ext. PW1/B was registered by PW-18 Inspector Dharam Chand. PW1 S.S. Sidhu was required to produce currency notes of `10,000/-. He produced ten currency notes of the denomination of `1000/- each, which he carried along. Those were treated with phenolphthalein powder and their É4É numbers were noted down in a memo. which is Ext. PW1/D. It was demonstrated to PW-1 S.S. Sidhu as also his companion PW-3 Ashwani Bhatia how the solutions of phenolphthalein powder and sodium carbonate, when mixed, turned pink. Currency notes, treated with phenolphthalein powder, were returned to PW-1 S.S. Sidhu, with a direction not to fiddle with them until they were paid to the appellant, on demand. PW-1 S.S. Sidhu and PW-3 Ashwani Bhatia were then directed to go to the office of appellant. PW-3 Ashwani Bhatia was instructed to act as shadow witness. He was instructed to inform the waiting police inspector and other members of the party, by a pre- fixed signal, as soon as appellant accepted the money from PW-1 S.S. Sidhu. 5. Police Station A.C. Zone, Dharamshala, is situated in Kotwali Bazaar at a distance of about 9 kilometres from Mcleodganj, where the office of appellant was situated those days. PW-1 S.S. Sidhu and PW-3 Ashwani Bhatia left for Mcleodganj by a separate vehicle. They were followed by PW-18 Dharam Chand, Inspector, and some other officials of Anti-Corruption Zone. On the way, they carried with them PW-8 Santosh Patial, Additional S.P. At Mcleoldganj, they associated with them PW-14 Madan Singh, a Municipal Councillor, as an independent witness. PW-1 S.S. Sidhu and PW-3 Ashwani Bhatia also met them at Mcleodganj Chowk, from where they proceeded to the office É5É of the appellant, which is situated close to that Chowk. PW-18 Dharam Chand, Inspector and other members of the party, dispersed at the Chowk, in different directions. The time was around 6.45 p.m. At about 7 p.m., PW-3 shadow witness Ashwani Bhatia gave the prefixed signal, upon which PW-8 Santosh Patial, Additional S.P., PW-18 Dharam Chand Inspector, PW-14 Madan Singh, Municipal Councillor, PW-9 Krishan Ji Raina H.C. and PW-17 Kishori Lal also an H.C. entered the office of the appellant. PW-8 Santosh Patial, Addl. SP and PW-18 Dharam Chand, Inspector disclosed their indentity to the appellant and directed PW9 Krishan Ji Raina and PW-17 Kishori Lal to hold the appellant by his wrists. Appellant was then required to wash his hands with plain water. Hand wash was collected in a container. Solution of sodium carbonate was prepared in a tumbler and added to the hand wash, which turned punk. 6. Appellant was then required to produce currency notes, which he had accepted from PW-1 S.S. Sidhu. He produced 10 currency notes Exts. P-14 to P-23. Their numbers tallied with the numbers of the currency notes, which had earlier been noted down in the memo. Ext. PW1/D, prepared at the time of their treatment with phenolphthalein powder. The same were taken into possession. Appellant produced the currency notes from one of the pockets of the pants which he was wearing. He was required to take off the pants. Its pocket, from which É6É currency notes were produced, was washed with plain water and to that wash also, solution of sodium carbonate, which was prepared in another tumbler, was added and that too turned pink. It was also secured in a nip. 7. Appellant was arrested and grounds of arrest intimated to him. Nips, containing hand-wash and pocket wash, which had turned pink, were sent to Chemical Examiner, namely PW-11 Dr. Vijay Singh, who opined that contents of the two nips had traces of phenolphthalein and sodium carbonate. Sanction to prosecute the appellant was applied for and on receipt thereof, report under Section 173 Cr. P.C., alongwith relevant papers, was filed in the Court of Special Judge, who after complying with the requirement of Section 207 Cr. P.C., and hearing the learned counsel for the appellant as also the learned Public Prosecutor and perusing the record, felt that a prima-facie case, under Sections 7 and 13 of the Prevention of Corruption Act, had been made out against the appellant. Charge was framed accordingly. Appellant pleaded not guilty to the charge and was, therefore, put on trial. 8. Prosecution examined 18 witnesses, besides proving certain documents, to substantiate its version. Witnesses examined by the prosecution, included PW-1 S.S. Sidhu, the complainant, PW-3 Ashwani Bhatia, shadow witness, PW-8 Santosh Patial, Addl. S.P. , PW-9 Krishan Ji Raina, Police Head Contable, PW-13 Purshotam Chand, a É7É clerk from the office of the appellant, PW-14 Madan Singh, Municipal Councillor, PW-17 Kishori Lal, Head Constable and PW-18 Dharam Chand, Inspector, who headed the party. 9. PW-13 Purshotam Chand, who had allegedly seen complainant PW-1 S.S. Sidhu in the office of appellant late in the evening of 5.5.2003 and was followed by vigilance people, forming raiding party, and PW-14 Madan Singh, the alleged independent witness of raid and recovery of tainted money from the appellant, turned hostile. PW-1 Complainant S.S. Sidhu, PW-3 Ashwani Bhatia, shadow witness, PW-8 Santosh Patial, Addl. S.P., PW-9 Krishan Ji Raina, PW-17 HC Kishori Lal and PW-18 Dharam Chand, Inspector, however, supported the prosecution case. 10. Appellant took the plea, as per suggestions thrown to the prosecution witness and his own examination, under Section 313 Cr. P.C., that he had been challaning a large number of persons, who had been running guest houses, unauthorizedly (without registration) and that all those persons ganged up and falsely implicated him in the present case, under the leadership of PW-1 S.S. Sidhu and the police people assisted those persons and PW-1 S.S. Sidhu, in their nefarious design. 11. Learned trial Court disbelieved the defence version. Submission made on behalf of the appellant that the prosecution evidence was full of contradictions and É8É flaws, which rendered the prosecution story highly doubtful, also did not find favour with the trial Court. Consequently, appellant was convicted and sentenced, as aforesaid, by the impugned judgment. 12. I have heard learned counsel for the appellant as also learned Assistant Advocate General and perused the entire evidence. 13. It is submitted on behalf of the appellant that there is no evidence of the alleged demand of bribe money, by the appellant, and that on the basis of bald testimony of PW-1 S.S. Sidhu, which could have been corroborated by scientific evidence, had it been a fact, it cannot be said that appellant had demanded bribe telephonically on 4.5.2003, especially when this fact had not been brought to the notice of police, promptly, but after a long delay of 24 hours. Submission made by the learned counsel for the appellant is that evidence of telephonic call could have been collected from the telephone service providers, but the investigating agency did not produce any such evidence, which leads to a presumption that no such telephonic call had been made. 14. A suggestion had been thrown to PW-18 Dharam Chand, Inspector, as to why he had not collected evidence from the telephone service provider, particularly when call was alleged to have been made to PW-1 S.S. Sidhu on his cell phone. Explanation offered by PW-18 Dharam Chand, É9É Inspector was that the call had been made by the appellant from landline and, so, the evidence could not have been available. Though the explanation is not convincing, that by itself would not demolish the prosecution case. This is particularly so when from the oral evidence, which is going to be discussed hereinafter, it is made out that the tainted money was recovered from the appellant and chances of his false implication were too remote, looking to the fact that he belonged to a Premier State Service and the police people had no motive to falsely implicate him and the defence plea that PW-1 S.S. Sidhu acted as a leader of a large number of persons, who had ganged up against the appellant for his allegedly having challaned them, for unauthorized use of their buildings as guest houses, having not been proved. 15. It is also submitted on behalf of the appellant that there was delay of 24 hours in lodging the FIR. Delay in this kind of cases is bound to be there. A person, from whom bribe is demanded, has to arrange the money and he has to decide whether to lodge a report or not, because lodging of report usually affects the source of livelihood of the person concerned, as in the event of making a report to the police, complainant has the fear of being harassed by the accused, if trap does not succeed or by the colleagues of the accused, even if trap is successful. É10É 16. In any case, as already notice hereinabove, when the evidence, being discussed hereinafter, suggests that tainted money was recovered from the appellant, delay in lodging the FIR becomes irrelevant. 17. Defence plea also does not stand proved nor probabilized from the evidence on record. During the course of trial, a request was made on behalf of the appellant for summoning certain record from his office through PW-13 Purshotam Chand, to prove that he had challaned several persons including complainant PW-1 S.S. Sidhu for using unregistered buildings as guest houses, unauthorizedly and that those persons ganged up and conspired to falsely implicate him in a trap case. PW13 appeared with the record, but he was not put any question, with respect to that record, in the cross-examination. Thus, there is absolutely no evidence except the bald statement of the appellant, in his examination, under Section 313 Cr. P.C. qua the aforesaid defence. 18. Also, there is nothing on the record, indicating that the police officials, who formed the raiding party, had any motive to falsely implicate the appellant. Appellant, as already stated, belongs to State Premier Service, known as H.P. Administrative Service. Members of the Service function as Executive Magistrates and often they are posted as Sub Divisional Magistrates and at times even District É11É Magistrates. It is not believable that police officials would have dared falsely implicate him and that too at the instance of a businessman, like PW-1 S.S. Sidhu. This apart, evidence on record shows that police have no closeness or nexus with PW-1 S.S. Sidhu. 19. A suggestion was thrown to PW-1 S.S. Sidhu, on behalf of the appellant that he had been an accused in a case, under Narcotic and Psychotropic Substances Act, on account of recovery of some narcotic substance from his house, in a locality of Dharamshala. He admitted the suggestion and stated that the case had been registered against him, after the registration of the present case, at the instance of one Om Parkash with whom he had some civil litigation. The fact that PW-1 S.S. Sidhu himself had been booked in a serious case of possessing some narcotic substance, in which even bail is not granted, negates the defence plea that the police were acting in league with PW-1 S.S. Sidhu, to falsely implicate the appellant. 20. It is also submitted on behalf of the appellant that no independent witness was associated in the raid and that the only witness, who had allegedly been associated, namely PW-14 Madan Singh, did not support the prosecution version. According to learned counsel, representing the appellant, PW3 Ashwani Bhatia, shadow witness, per his own cross-examination, as also the cross-examination of É12É PW-1 S.S. Sidhu, is a close friend of PW1 S.S. Sidhu and, therefore, he cannot be said to be an independent witness. 21. True it is that PW-3 Ashwani Bhatia is a friend of PW-1 S.S. Sidhu and he had been his witness in another case, as admitted by him, but there is un-impeached testimony of PW8 Santosh Patial, an IPS Officer as also of PW-18 Dharam Chand, Inspector, to the effect that tainted money was produced by the appellant from one of the pockets of the pants, which he was wearing at the time of raid and that the water with which his hands were washed had turned pink, when solution of sodium carbonate was added to it. No suggestion was thrown to either of these two witnesses that they had any motive to falsely implicate the appellant or to make false depositions against him. Testimony of these two witnesses as also two other witnesses, namely PW-9 Krishan Ji Raina and PW-17 Kishori Lal, Head Constables, leave little doubt that tainted money had been produced by the appellant from his pocket, when his office was raided by PW-18 Dharam Chand, Inspector, and members of his party, including PW-8 Santosh Patial, Addl. S.P. 22. It is also submitted on behalf of the appellant that there is no evidence of demand of bribe by the appellant. Submission cannot be accepted in view of the categorical statement of PW-1 S.S. Sidhu that he had É13É received a telephonic call on 4.5.2003, in the evening from the appellant, demanding bribe of `10,000/-, to be paid at the time of taking the delivery of registration certificate and order of tariff of rooms. This statement is corroborated by PW-3 Ashwani Bhatia, who stated that he overheard PW-1 S.S. Sidhu, saying that he had brought the money, when the latter went to the office of appellant in the evening of 5.5.2003. Testimony of PW-1 S.S. Sidhu to this effect is further corroborated by the fact that tainted money was recovered from the appellant, which he himself produced from one of the pockets of his pants, which he was wearing, at the relevant time. 23. Further, it is submitted by the learned counsel for the appellant that case of PW-1 S.S. Sidhu, having been cleared by the appellant on 2.5.2003, when he wrote note Ext. PW13/A, and certificate Ext. P10 and tariff Order Ext. P-11 having been issued by the office and despatch numbers also having been put on them by PW-13 Purshotam Chand, there was hardly any occasion for the appellant to demand bribe and compulsion for PW-1 S.S. Sidhu to pay bribe. 24. It is true that note Ext. PW13/A had been written on 2.5.2003, but this note was on a loose paper, on the back side of an application, on a plain paper, submitted by PW-1 S.S. Sidhu. This application was different from the application on prescribed form, which is Ext. P1. Also, PW-1 S.S. Sidhu was not knowing about the recording of this note É14É by the appellant. Demand for bribe was made on 4.5.2003, before documents Exts. P10 and P11 were prepared. These two documents were prepared on 5.3.2003, per testimony of PW-13 Purshotam Chand, a clerk in the office of the appellant. These documents were supposed to have been despatched to PW-1 S.S. Sidhu, by the Despatch Clerk, i.e. PW-13 Purshotam Chand, but the appellant required him (PW-13 Purshotam Chand) to hand over the same to him for being passed on to PW-1 S.S. Sidhu. Why should have the appellant departed from this normal and usual practice of despatching of documents by despatch clerk. The fact corroborates the testimony of PW-1 S.S. Sidhu, regarding demand of bribe money by the appellant. 25. Another submission made on behalf of the appellant is that the story that certificate Ext. P-10 and tariff order Ext. P-11 had been delivered to PW-1 S.S. Sidhu on 5.5.2003, after he paid the bribe money, in the evening around 7 p.m., is falsified or at least rendered highly doubtful by the fact that these documents were not seized from PW-1 S.S. Sidhu at the time of the raid, but their copies were taken into possession on the next following day. 26. It is prosecution’s own case that original documents were not taken into possession on the spot at the time of raid and that only their coloured photostat copies were collected on the next following day, but there is explanation for the same. PW-18 Dharam Chand, Inspector É15É stated that PW-1 S.S. Sidhu wanted the original documents to be retained by him, for running his business and, so, the documents were not seized and he was permitted to produce their photostat copies (coloured copies), on the next following day. This explanation given by PW-18 in the cross- examination is, of course, different from the explanation, which he gave in the examination-in-chief, wherein he stated that because it had got very late in the night and for that reason he did not seize the documents. However, these two explanations cannot be said to be self contradictory. It is quite likely that both the explanations are true. 27. In any case, when there is definite and positive evidence that tainted money was recovered from the appellant, during the course of raid, in the presence of senior police officer, who happened to be a member of another premier police service of all India level, i.e. IPS, non- recovery of documents Exts. P10 and P11 on the spot from PW-1 S.S. Sidhu, in my considered view, would not make much difference. This is particularly so when no motive is attributed for the alleged false implication of the appellant by the police. 28. Further submission made on behalf of the appellant is that Head Constable Suresh Kumar, who was deputed to fetch container, for washing hands and pants of the appellant, had not been examined. His non-examination is of no significance. É16É 29. Another submission made by the learned counsel for the appellant is that possibility of traces of phenolphthalein powder having appeared on the hands of the appellant, when he was held by his wrists by PW-9 Krishan Ji Raina and PW-17 Kishori Lal, cannot be ruled out. This submission is also without merit. There is nothing on the record, indicating if these two witnesses had, at any stage, handled phenolphthalein powder and, therefore, there was no chance of any traces of the powder being there on their hands, when they caught hold of the appellant. 30. Further submission made by the learned counsel for the appellant is that the case property had been deposited by PW-18 Dharam Chand, Inspector, with PW-17 MHC Kishori Lal, on the next following day and that it remained with him for the night, intervening 5th and 6th May, 2003, alongwith the seal, with which the case property, particularly the nips, containing hand wash and the pocket wash, were sealed. 31. It is true that PW-17 Kishori Lal did state in his cross-examination that the case property alongwith seal remained with PW-18 Dharam Chand, Inspector, but Inspector Dharam Chand himself stated that he had handed over the seal, after use, to PW-14 Madan Singh, a Municipal Councillor and this fact finds mention in the memo., É17É regarding proceedings taken on the spot, which is Ext. PW1/E. 32. Learned counsel further submits that as a matter of fact documents Exts. P-10 and P-11 had been collected by PW-1 S.S. Sood much before the alleged raid. In support of this submission, he places reliance upon the testimony of PW-13 Purshotam Chand, who stated that he was called to his office by the appellant between 2 p.m. and 4 p.m. with the registration certificate and the order of tariff and that when he went to deliver those papers to the appellant, PW-1 S.S. Sood was already present in appellant’s office. PW-13 Madan Singh is contradicted with respect to the aforesaid fact by his statement, under Section 161 Cr. P.C., with which he was duly confronted. The said statement is Mark PA. 33. Learned counsel further submits that tainted money was sought to be forced into the pocket of the pants worn by the appellant and this fact stands proved by the testimony of PW-14 Madan Singh, the sole independent witness examined by the prosecution and that when the appellant repulsed this attempt, PW-14 Madan Singh had been asked to leave the office of the appellant. No doubt, PW-14 testified these facts, but he stands contradicted by his statement to the police, under Section 161 Cr. P.C., with which he was duly confronted by the prosecution, after É18É obtaining the leave of the Court. Also, the witness is contradicted by his signatures on the memo. Ext. PW1/E, with respect to these facts. He admitted that memo. is signed by him. Also, he admitted that there was no coercion or force used for obtaining his signatures on this memo. Ext. PW1/E. It is specifically stated in the memo. that tainted money had been produced by the appellant from the right side front pocket of the pants, which he was wearing at the relevant time. The