IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 463 of 2004 Reserved on: 19.04.2011 Date of Decision: 13.06.2011 Sadh Ram …Appellant. Versus. State of H.P. …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No. For the Appellant: Mr. Ramakant Sharma & Ms. Devyani Sharma, Advocate. For the Respondent: Mr. Vivek Thakur, Addl. A.G. Deepak Gupta, J. 1. By means of this appeal the appellant has challenged the judgement dated 11.10.2004 whereby he was convicted of having committed an offence punishable under Section 13(2) read with Section 13(1)(d)(ii) of the Prevention of Corruption Act, 1988 and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1000/-. 2. The prosecution story is that appellant Sadh Ram was posted as Patwari in Patwar Circle, Barotiwala during August/September, 2003. One Shri Jeet Ram resident of village Barotiwala, Tehsil Kasauli had 2 purchased six biswas of land vide sale deed 18.08.2003. According to the prosecution, Jeet Ram handed over the sale deed to the accused in order to get the mutation of the land entered and attested in his favour. The accused allegedly demanded a bribe of Rs.200/- for making such entry. Jeet Ram visited the office of the accused on two or three occasions but was told that the entry would be made only after he paid a sum of Rs.200/-. 3. Jeet Ram told his co-villagers including Mahavir Singh, Police Inspector, about this illegal demand made by the accused. He was advised to report the matter to the Dy. S.P.(Enforcement), Solan by Shri Mahavir Singh, who also gave him the telephone number of Dy. S.P. On 15.09.2003 Jeet Ram made a telephonic call to the Dy.S.P.(Vigilance), Solan namely Shri Hari Chand and informed him about the illegal demand of gratification made by the accused. Shri Hari Chand, Dy. S.P. asked Jeet Ram to meet him the following day at PWD Rest House, Majethoo at 11.00 a.m. On the next day i.e. 16.08.2003 Jeet Ram went to PWD Rest House, Majethoo. Hari Chand, Dy.S.P. was already there. Jeet Ram submitted a written complaint to the Dy.S.P. Shri Hari Chand, who directed Inspector 3 Anant Ram, who was accompanying him to arrange independent witnesses from the area. One Shri Gopal Chand, co-villager of Jeet Ram was associated thereafter. Jeet Ram was asked to produce currency notes of Rs.200/- and he accordingly produced two currency notes of the denomination of Rs.100/- each. Dy.S.P. applied phenolphthalein powder to these currency notes. Then he washed his hands in the solution of Sodium Carbonate and the solution turned pink. In this manner a demonstration was given to Jeet Ram and witness Gopal Chand about the use of phenolphthalein powder. They were told that when anybody touches phenolphthalein powder or any item treated with that powder the traces of phenolphthalein powder would appear on that person’s hand and when the hands of such person were washed with the solution of Sodium Carbonate the solution would turn pink. This would show that such person had touched with his hands phenolphthalein powder or something treated with that powder. 4. After the demonstration, the currency notes of Rs. hundred each, which had been treated with phenolphthalein powder, were placed in the pocket of the shirt, which Jeet Ram was wearing. He was 4 instructed to hand over the notes to the accused on his demanding the bribe. Jeet Ram was also told that if the accused accepted the currency notes he should give a signal to the shadow witness Gopal Chand, who was required to position himself just outside the Patwarkhana in such a manner that he could see Jeet Ram giving the signal. Gopal Chand was also instructed that on getting the signal from Jeet Ram about payment of bribe to the accused he should give a similar signal to the police officials who were to position themselves at some distance so that nobody could know that a trap had been laid. 5. Thereafter, Dy.S.P. accompanied by other police officials, complainant Jeet Ram and shadow witness Gopal Chand proceeded towards the Patwarkhana in a Gypsy. On the way Ajmer Singh, Secretary, Cooperative Society was also associated as a witness at village Sattiwala. When this party reached Barotiwala, the Gypsy was parked near the dispensary. Jeet Ram and Gopal Chand were directed to proceed towards Patwarkhana. The Dy. S.P. Hari Chand, his subordinates and Ajmer Singh followed the complainant and Gopal Chand. The Police Officials and Ajmer Singh positioned themselves at some distance from 5 Patwarkhana. Jeet Ram went to the Patwarkhana and Gopal Chand stood by the side of the road. 6. After entering the Patwarkhana, Jeet Ram asked the accused if mutation had been entered in his favour. The accused then allegedly told Jeet Ram that the entry had been made and asked if he (Jeet Ram) had brought the fees. Jeet Ram told him that he had brought Rs.200/- and gave the same to the accused, which the accused placed in the drawer of his table. Jeet Ram also gave the pre-fixed signal to Gopal Chand who in turn passed the same signal to the police party. Immediately, thereafter the Dy. S.P. and other members of the police party and Gopal Chand entered the Patwarkhana. The Dy. S.P. disclosed his identity to the accused and asked if he had accepted bribe from the accused. The accused was made to wash his hands in the solution of Sodium Carbonate and that solution turned pink. This solution was poured into a small bottle. The accused was asked where he had kept the bribe money. He told the police officials that the same was in the drawer of his table. On opening the drawer the money was found. Numbers of the recovered currency notes tallied with the numbers of the notes which the complainant produced with the Dy. S.P. and 6 on which the Dy.S.P. had applied phenolphthalein powder. On search of the record it was found that the accused had already entered a mutation in favour of the complainant. Two bottles containing hand wash were sent to the Chemical Examiner, who opined that they contain traces of phenolphthalein powder. Thereafter, sanction to prosecute was obtained and challan was filed against him. The accused pleaded not guilty and claimed trial. After trial he has been convicted and sentenced as above. Hence the present appeal. 7. Shri Ramakant Sharma, learned counsel for the appellant has strenuously contended that the learned trial Court has totally misread the evidence in convicting the accused. According to him, no demand for bribe was made. He further submits that admittedly the entry in the mutation register had already been made before the bribe was paid and therefore, no case is made out under the Prevention of Corruption Act. 8. PW-1 Jeet Ram has totally supported the prosecution version and according to him, the accused demanded bribe from him about which he complained and thereafter demonstration of the application of phenolphthalein powder was made and then he went to the Patwarkhana with the police party along with 7 witnesses Gopal Chand and Ajmer Singh. When he asked the accused if his work had been done the accused told him that the work had been done and asked if he (Jeet Ram) had brought the fees. Thereafter, he paid Rs.200/- to the accused who took the money in his hand. The complainant then gave a signal to Gopal Chand who then called the policemen. Thereafter, the Dy.S.P and other police officials came inside the Patwarkhana and the accused then admitted that he had taken Rs.200/- from the complainant and had kept the money in a drawer after recovering the money. The accused was made to wash his hands with a solution which turned pink. This solution was then sealed. He also states that the number of currency notes tallied with one which produced before the Dy.S.P. and which were treated with powder. 9. PW-2 Gopal Chand, who was to position himself near the Patwarkhana at a place from where he could hear conversation and see the exchange of money, has not heard anything. It appears that he had positioned himself at a distance from the Patwarkhana, where he could not hear the conversation. He, however, admits that he saw the signal given by Jeet Ram and then he gave a similar signal to the police officials. He also 8 states that when the Dy.S.P. asked the accused as to how much bribe he had taken the accused first denied having taken money but when questioned again the accused told him that he had taken Rs.200/- and kept the same in the drawer. Therefore, this witness supported the prosecution case in so far as the complaint of Jeet Ram, the demonstration of phenolphthalein powder, recovery of Rs.200/- and the hands of the accused turning red, are concerned. Though there may be minor variation the fact remains that in sum and substance he supported the prosecution version. 10. Even if the other evidence is not taken into consideration the testimony of Jeet Ram duly corroborated by the other witnesses is sufficient to convict the accused. Jeet Ram had no enmity with the accused and had no reason to file a false complaint. The Police officials have also supported the prosecution version. Statements of PW-3 Anant Ram and PW-9 Dy.S.P. Hari Chand corroborated the statement of Jeet Ram to the hilt. It stands proved that the accused had accepted Rs.200/- from Jeet Ram. 11. The argument of Shri Ramakant Sharma, learned counsel for the appellant, is that the work had already 9 been done and thereafter the amount was paid and therefore, it does not amount to a bribe is without any force. Bribe is an illegal gratification sought for doing a work which a Government official is bound to do in a normal course of duty. If an official asks for some money to do some work, then regardless of the fact whether such gratification is paid before or after the work is done the receipt of such amount would amount to accepting a bribe and is an offence under the Act. 12. As held by the learned trail Court it stands proved that two currency notes of hundred each were treated with phenolphthalein powder by the Dy.S.P at Rest House, Majethoo and placed in the pocket of the complainant Jeet Ram after the demonstration. Jeet Ram states that when the accused asked for his fees he handed over these two notes to the accused. According to the prosecution case and as stated by all the witnesses the two notes were recovered from the drawer of the table of the accused. The accused in reply to question No.33 has admitted that two currency notes of the denomination of Rs.100/- each were recovered from the drawer of his table. His only explanation is that he was busy in his work and he does not know who placed these currency notes in the 10 drawer of his table. This version cannot be believed. It is also important to note that the accused does not deny that when his hands were washed with the solution of sodium carbonate the same turned pink. His explanation is that the Dy. S.P. and one constable held him by his arms and while other person forcibly applied some powder on his hands and thereafter he was made to wash his hands. This explanation on the face of it appears to be false. No such suggestion was made to any of the four witnesses who testified in this regard. In fact the suggestion made to PW-9 Hari Chand, Dy. S.P. is that the accused was directed to take out the currency notes from the drawer of his table. 13. Shri Ramakant Sharma, learned counsel for the appellant, has placed reliance on the judgements of the Apex Court in Sita Ram vs. The State of Rajasthan, AIR 1975 SC 1432, Babu Lal Bajpai vs. State of U.P., AIR 1994 SC 1538, State of H.P. vs. Ram Krishan, 2002(2) C.L.R. 178, C.M.Girish Babu vs. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779 and Banarsi Dass vs. State of Haryana, (2010) 4 SCC 450. In my view these judgements have no application to the facts of this case. 11 14. In view of the above discussion, I find no merit in the appeal, which is accordingly dismissed. Bail bonds of the accused are cancelled and he is directed to undergo the sentence imposed upon him. The Registry is directed to take necessary steps in this regard. 13th June, 2011 ( Deepak Gupta ) ™ Judge.