Criminal Appeal No.983-SBA of 1998 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Criminal Appeal No. 983-SBA of 1998 Date of Decision: January 22,2010 State of Haryana ...........Appellant Versus Ms.Mandalsa Rani ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Harinder S.Benniwal,Deputy Advocate General,Haryana for the appellant. Mr.R.S.Mamli,Advocate for the respondent Sabina, J. Respondent-Mandalsa Rani was put to trial for an offence under Section 7 read with Section 13 of the Prevention of Corruption Act, 1988 in the Court of Special Judge, Faridabad . Vide order dated 18.7.1998, respondent was acquitted by the Special Judge, Faridabad. Hence, the State has filed the present appeal against the acquittal of the respondent. The case of the prosecution, as noticed by the trial Court in paras 2 to 10 of its judgment, is reproduced here in below:- “2. On 11.1.1993 at about 7.30 p.m. Surender Kumar Verma(PW- 9) came to Shri Mahender Singh Malik (PW8), who was then posted as Deputy Superintendent of Police in Ballabgarh City, Criminal Appeal No.983-SBA of 1998 2 and presented a complaint in writing before him vide Ex.PL. It was stated in the said complaint that he (Surender Kumar Verma) was a social worker and that one Ravi Kumar (PW5) a resident of Delhi wanted to construct some residential quarters on a piece of about half acre of land which he had purchased in the area of village Sehatpur. It was then alleged that Ravi Kumar had told him that houses constructed by several persons in that area had been demolished by the accused Ms. Mandalsa who was posted as District Town Planner (Enforcement) Faridabad whereas some houses were still in existence and further that the accused was giving permission to raise construction only to those who were bribing her and not others. It was further stated that upon the asking of his friend Ravi Kumar he met the accused with a request to accord permission to Ravi Kumar for raising constructions but she was not ready to relent unless illegal gratification was offered to her. Surender Kumar then alleged that after consulting his friend Ravi Kumar he took a decision to get the accused trapped red-handed while accepting illegal gratification. He accordingly approached her again and it was settled that an amount of Rs.30,000/- was to be given to her as illegal gratification for permitting to raise residential quarters. It was further stated by the complainant that he had brought an amount of Rs.30,000/- in cash so that the accused could be got trapped red-handed. The complainant finally stated that the accused had settled the timing of 8-9 p.m. on that date for delivering the said amount to her. 3. Upon the receipt of the aforesaid complaint Ex.PL the Deputy Criminal Appeal No.983-SBA of 1998 3 Superintendent of Police Shri Mahender Singh decided to constitute a raiding party and he accordingly took the complainant Surender Kumar with him at the residence of Shri M.Ram Shekhar IAS (PW7) who was then posted as Additional Deputy Commissioner at Faridabad. There he also called Sub Inspector of Police, namely, Bhoop Singh, Assistant Sub Inspector of Police Sushila Devi and some constabulary. Two wads of currency notes of Rs.100 each amounting to Rs.20,000/- and two wads of currency notes of Rs.50/- each amounting to Rs.10,000/- were presented by Surender Kumar complainant vide memo Ex.PG. The said four wads of currency notes total amounting to Rs.30,000/- were then initiated by Shri M.Ram Shekhar and the same were smeared with phenolphthalein powder by the DSP. Thereafter, the same were handed over to the complainant Surender Kumar with the direction that he will go to the Kothi No.1604 situated in Sector 9, Faridabad where the accused was residing and pass on the said currency notes to her as bribe. SI Bhoop Singh was asked to follow him in plain clothes as a shadow witness with the instructions that he will issue signal to the other members of the raiding party who were to hide themselves at some distance in front of the residence of the accused 4. Then as per plan, Surender Kumar (PW-9) reached the house of the accused at about 8.30/9 p.m. and handed over the tainted currency notes in the sum of Rs.30,000/- to her. After he did the needful, signal was flashed to the remaining members of the Criminal Appeal No.983-SBA of 1998 4 raiding party by SI Bhoop Singh. 5. On receipt of signal from SI Bhoop Singh, the remaining members of the anti-corruption squad who were hiding themselves came to the house of the accused. Upon seeing them, the accused at once threw away the bundles of the tainted currency notes through the grill gate which fell in the court yard of the house. The accused was then made to open the gate of the house by Shri M.Ram Shekhar. Her right hand wash was taken in the solution of sodium carbonate which turned pinkish. This pink solution was then put in a pint and sealed with the seals of MS and was seized under memo Ex.PK and the seal after use was handed over to Shri M.Ram Shekhar IAS. The four bundles of the tainted currency notes were also picked up from the spot by the Deputy Superintendent of Police and were seized vide memo Ex.PJ. A rough site plan Ex.PM was also prepared by the DSP depicting the place of incident. 6. DSP Mahender Singh then made his detailed endorsement Ex.PN below the complaint Ex.PL of Surender Kumar in which the aforesaid details of the proceedings of raid were incorporated and forwarded the same for registration of a case through constable Milkh Raj on which first information report No.34 dated 11.1.1993 was recorded under Sections 7 and 13 of the Act at police station Central Faridabad by SI Raghbir Singh at 10.45 p.m. on the same day a copy thereof is Ex.PN/1. 7.DSP then put the accused Ms.Manalsa under arrest and recorded statements of the witnesses under Section 161 Cr.P.C. Criminal Appeal No.983-SBA of 1998 5 On return to the police station, the case property was deposited duly intact with MHC Raghbir Singh (PW4) who handed over the pint containing the hand-wash of the accused on 14.1.1993 to constable Jagdish Chand (PW3) for being delivered at the FSL and the said constable delivered the same there duly intact on the same date. Subsequently report dated 4.2.1993 was received from the FSL Madhuban vide Ex.PO from which it was established that phenolphthalein and sodium carbonate were detected in this exhibit. 8. On 19.1.1993 DSP Mahender Singh collected order Ex.PB dated 18.3.1992 as per which the accused was promoted as District Town Planner and the letter Ex.PC written by the accused to the Commissioner and Secretary to Government of Haryana, Town and Country Planning Department, Chandigah showing that she had taken over charge of this post on 20.3.1992 forenoon. Both these documents were seized under memo Ex.PD. 9. On 29.7.1993 the Governor of Haryana accorded sanction for prosecution of the accused for the offence under Section 7 of the Act read with Section 13 of the Act vide Ex.PG. 10. Broadly, on these facts after the completion of investigation, the accused was booked for trial under Section 7 read with Section 13 of the Act ad this is how this case is before this court." After hearing the learned counsel for the parties, I am of the opinion that this appeal deserves dismissal . Criminal Appeal No.983-SBA of 1998 6 Learned Special Judge in the impugned judgment has held as under:- "19.First coming to the point as to the raising of demand of illegal gratification by the accused it may be mentioned here that in the complaint Ex.PL it is not mentioned by Surender (PW9) that his friend Ravi Kumar had told him that the accused had demanded bribe fom him for permitting him to raise unauthorised constructions. All that was stated in the said complaint was that Ravi Kumar had told him that the accused was not giving permission to raise constructions without getting bribe. Then Ravi Kumar himself appeared in the witness box as PW5. In his examination-in-chief he did not state that he had met the accused at any time and that she had demanded illegal gratification from him. He has simply stated that he wanted to raise some residential quarters on the land purchased by him and in this connection he had a talk with Surender Kumar and Surender Kumar lateron told him that the accused had demanded a sum of Rs.30,000/- whereupon he had handed over the said amount to Surender Kumar. In his cross-exmination this witness first stated that he never met the accused but then added that he had met the accused on 27th or 28th of December,1992 along with Surender Kumar and that at that stage the accused had demanded money. This allegation again does not inspire any confidence as this witness was duly confronted with his statement under Section 161 Cr.P.C. Vide Ex.DC in which the said allegation was not at all there. Moreover, Surender Kumar (PW9) in his cross-examination has Criminal Appeal No.983-SBA of 1998 7 stated categorically that at no stage he met the accused alongwith his friend Ravi Kumar. Surender Kumar (PW9) has, of course, stated that the accused had demanded Rs.30,000/- from him for this purpose but his statement has to be taken with a pinch of salt. In his complaint Ex.PL he has not disclosed as to when this demand was raised by the accused. In the said complaint it is mentioned that when he met te accused then she was adament against according permission for raising construction without bribe and that when he met her second time then the amount of Rs.30,000/- was agreed to be paid to the accused as bribe. It is not disclosed as to when this witness had met the accused for the first time and when he had met her the second time. During the trial before this court he disclosed in his cross-examination that he had met the accused for the first time on 28th or 29th of December,1992. He further added that the accused raised the demand of bribe when he had met her on second or third time on 10.1.1993. He has further stated that at that time Ravi Kumar was not with him. This statement does not inspire much confidence particularly when Ravi Kuma has stated that he was also present when this demand was raised by the accused. This demand was then not raised by the accused even at the time of raid as Surender Kumar (PW9) himself admits that he had no conversation with the accused. PW7 M.Ram Shekhar and DSP Mahender Kumar (PW8) also admit that they had not over heard any conversation between the accused and Surender Kumar. Thus, the element of demand in this case is not firmly established which weakens the prosecution Criminal Appeal No.983-SBA of 1998 8 story considerably. 20.Further the defence plea that the tainted amount of Rs.30,000/- was passed on to the accused by Surender Kumar (PW9) in a deceitful manner cannot be ruled out. The accused has taken the stand that at the time of incident the complainant talked to her through the grill gate and passed on a paper-box by stating that the same was containing parshad of Bhandara. She has then stated that when she opened the said sweet box then she discovered that the same contained currency notes and she immediately threw away the same where upon the police party came and apprehended her. Surender Kumar (PW9) and DSP Mahender Singh (PW8) do not admit the fact that the said currency notes were contained in any box. They have rather taken the stand that these were bars wads of currency notes. However, PW7 Shri M.Ram Shekhar IAS has categorically admitted in his cross-examination that the said currency notes were placed in a sweet box by Surender Kumar and that when the accused had thrown the wads of currency notes then the paper sweet box was also thrown and lifted by the police party. He further admitted that he could not say if the complainant had passed on the said currency notes in a deceitful manner. This admission of Shri M.Ram Shekhar (PW7) has to be given considerable weight as against the depositions of PW8 DSP Mahender Singh and PW9 Surender Kumar. Being a senior officer he should not be telling a lie for favouring the accused. Surender Kuamr (PW9) being the complainant and DSP Criminal Appeal No.983-SBA of 1998 9 Mahender Singh being the investigating officer my have bias towards the success of the case but Shri M.Ram Shekhar IAS is a neutral person and a senior officer. Moreover, if two views are possible, then the one favourable to the accused has to be adopted. It has also to be kept into mind that while the prosecution has to prove its case beyond reasonable doubts, a defence plea has to be taken to a degree of probability only and the accused has been able to take this defence plea to a high degree of probability. 21. Faced with this difficulty, the learned Public Prosecutor contended that even hand wash of the accused taken in sodium carbonate solution turned pink and thus her complicity in accepting the bribe amount was established. This fact has,however, no significance when the defence plea is that after opening the sweet box the accused touched the wads of tainted currency notes while throwing the same out through the grill gate of her house. 22. The defence plea is further probable as the accused was carrying out demolition work in that area as is apparent from the complainant itself as also from the letters Ex.DE, DF and DG addressed by te accused to the Administrator, HUDA in those days. Possibility of the builders of that area having turned against he thus cannot be ruled out and there may be a plan to get her trapped in this case. Surender Kumar (PW9) appears to be a self styled social worker. In his deposition before this court he denied that he was associated in any manner with Shri Avtar Singh Bhadana, then a Member Parliament, and that he was a member of Criminal Appeal No.983-SBA of 1998 10 the District Grievances Committee. On the other hand Ravi Kuamr (PW5) has admitted that Surender Kumar was well connected with Shri Avtar Singh Bhadana and that he was also a property dealer. May it be noted, that PW7 Shri M.Ram Shekhar IAS has admitted that he had seen the complainant in the meetings of the District Grievances Committee several times. Attempt of Surender Kumar (PW9) to hide this background is something which is disquieting. 23.Moreover, from the complaint Ex.PL it is clear that Suerender Kumar had settled the timing of 8-9 p.m. on 11.1.1993 for delivering the bribe amount. In normal course the lights of the house of the accused should have been on for awaiting him at that time. However, PW8 Mahender Singh DSP has admitted in his cross-examination that lights of the house of the accused were off when Surender Kumar went inside. Same is the admission of Shri M.Ram Shekhar (PW7). This conduct of the accused also shows that perhaps there was no prior agreement between her and Surender Kumar regarding the passing of the bribe amount." The reasons given by the learned Special Judge, while acquitting the accused, are sound reasons. Complainant,allegedly, wanted to raise unauthorised construction. The case of the complainant is that on this account the bribe money was being accepted from him. The bribe money was taken in a sweet box at the time of raid. It does not appeal to reason as to why the bribe money was given in a sweet box. In these circumstances, the plea taken by the respondent-accused that she had been handed over the sweet box on the pretext that it was parsad appears to be probable. On Criminal Appeal No.983-SBA of 1998 11 finding money in the sweet box, the respondent-accused threw the box and consequently, phenolphthalein powder which had been applied on the currency notes came on the hands of the accused and when the hand of accused were washed in a solution of sodium carbonate, the colour of the solution turned pink. Moreover, the possibility of handing over the tainted money to the accused to get her falsely involved in this case can not be ruled out. Their Lordships of the Supreme Court in Allarakha K.Mansuri vs. State of Gujarat 2002(1)RCR(Criminal) 748, held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court. A Division Bench of this Court in State of Punjab v. Hansa Singh 2001(1) RCR (Criminal) 775, while dealing with an appeal against acquittal, has opined as under:- “We are of the opinion that the matter would have to be examined in the light of the observations of the Hon'ble Supreme Court in Ashok Kumar vs. State of Rajasthan, 1991 (1)scc 166, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis-reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference. No ground for interference is made out. Dismissed. (Sabina) Judge January 22, 2010 arya Criminal Appeal No.983-SBA of 1998 12