RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.146 OF 2006 (OLD NO. 970/1991) R.S. Siromani S/o Sri Bankey Lal R/o 10/3 Labour Colony, Collectorganj District Bareilly ……… Appellant Versus C.B.I ……… Respondent Dated: January 9, 2009 Sri D.S. Mehta, learned counsel for the appellant Sri Arvind Vashistha, learned counsel for the respondent/C.B.I. HON. DHARAM VEER, J. This appeal, preferred by the appellant u/s 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 29.4.1991 passed by Special Judge, Anti-Corruption U.P. (East), Dehradun in C.B.I. Case No.8/1987, C.B.I. Vs. R.S. Siromani, whereby the learned Special Judge convicted the appellant/accused R.S. Siromani under Section 161 of the Indian Penal Code, 1860 (hereinafter to be referred as IPC) and was sentenced to undergo S.I. for six months with a fine of Rs.500/- and in default of payment of fine, to undergo S.I. for one month. The appellant/accused was further convicted u/s 5(2) r/w 5(1)(d) of the Prevention of Corruption Act, 1947 (hereinafter to be referred as the Act) and was sentenced to undergo S.I. for one year and a fine of Rs.1,000/- and in default of payment of fine, to undergo further S.I. for three months. Both the sentences of the appellant/accused were directed to run concurrently. 2. I have heard Sri D.S. Mehta, learned counsel for the appellant/accused as well as Sri Arvind 2 Vashistha, learned counsel for C.B.I and perused the entire material available on record. 3. In brief, the prosecution case is that the complainant Smt. Omana P. Mathew (P.W.1) moved an application before the Superintendent of Police, C.B.I., Dehradun on 21.04.1987 with the averments that she is an employee in Noida Industrial Area and working in H.C.L., A-10, Sector III, Noida. She further stated that she is an insured person in E.S.I.C. under Noida Local Office. She applied for her maternity benefits on 14.04.1987 and the officer I/C R.S. Siromani, L.D.C., E.S.I.C. Local Office Noida asked her to give a sum of Rs.250/- for early issuing the cheque of her benefit. She further stated that she is not willing to give bribe. With the same request she moved the application Ext.Ka-6. On the basis of this application, First Information Report was registered as Crime No.RC-25/87-DAD on 22.04.1987 at 9:30 A:M. Thereafter the Chik F.I.R. Ext.Ka-15 was prepared on the basis of the F.I.R. That Chik F.I.R. is Ext.Ka-15. 4. On 23.4.1987 at about 7:40 A:M, P.W.5 Sri H.C. Bisht, Dy. SP, SPE, Dehradun, Sri S.P. Gupta, Inspector, SPE, Dehradun, Smt. Omana P. Mathew, Sri M.K. Mathew, Ms. Ravi Shri Bala, Sri V. Gurumurthi, Sri Bhairab Datt and Sri Vidya Datt assembled in Suite No.4, Pragati Vihar, E Block, Lodhi Road, New Delhi. All the above mentioned persons were introduced with each other. The complaint dated 21.4.1987 of Smt. Omana P. Mathew in which it was alleged that one Sri R.S. Siromani, LDC of ESIC, Local Office Noida, is demanding an illegal gratification of Rs.250/- from her as a motive or reward for getting issued a cheque towards maternity benefit, was read over and explained to all the above 3 mentioned persons. Smt. Omana P. Mathew produced a sum of Rs.250/- in the form of three G.C. notes of the following denomination for offering the same as bribe to the accused R.S. Siromani on the demand of the accused:- (i) G.C. Note of Rs.50/- denomination bearing no. 1 ES 788730 (ii) No.3 ES 425220 G.C. note of the denomination of Rs.100/- (iii) G.C. Note of Rs.100/- denomination bearing no.4 DH 389652 A practical demonstration of the use and utility of phenolphthalein powder was given to all the aforesaid person. A piece of paper was treated with phenolphthalein powder and was given to Sri V. Gurumurthi, who held the same in his right hand. A solution of sodium carbonate was prepared in a glass of water. The said piece of paper was taken back from Sri V. Gurumuthi, kept in an envelop, sealed and marked D-1. Sri V. Gurumuthi was asked to dip his right hand fingers in the said solution of soda. As soon Sri Gurumuthi dipped his right hand fingers in the said solution the colour of the solution turned into pink. The pink coloured solution was kept in phial which was duly wrapped with cloth and sealed and marked D-2. The personal search of all the above mentioned members of the trap party including Sri H.C. Bisht, Dy. SP, SPE, Dehradun was conducted and nothing incriminating was found. The above mentioned G.C. notes totalling to Rs.250/- were also treated with phenolphthalein powder and handed over to Smt. Omana P. Mathew with the instructions to give the same to the accused Siromani on the demand of the accused. 4 The remaining phenolphthalein powder has been sealed in an envelop marked D-3. All the sealed articles were got signed by the witnesses and members of the trap party. All the members washed their hands to ensure that no particles of phenolphthalein powder remain in their hands. The plan of trap was chalked out and it was decided that, Smt. Omana P. Mathew accompanied by Ms. Ravi Shri Bala would approach the accused in the office of the accused at Noida. Ms. Ravi Shri Bala would overhear the conversation between the accused and Smt. Omana P. Mathew and will also see the transaction of bribe between the complainant and the accused. The other members of the trap party have been asked to suitably position themselves on the spot and to watch the developments. As soon as the transaction of bribe would be over Ms. Ravi Shri Bala or Smt. Omana, who ever be in a position then, would give a signal by touching her head with her right hand, to the members of the trap party. The memo of this proceeding was prepared in Suit No.4, E Block, Pragati Vihar, New Delhi and was read over and explained to all the aforesaid persons. The memo completed at about 8:55 A:M on 23.4.1987 including the specimen seal preparation. That memorandum is Ext.Ka-7. 5. Thereafter on 23.4.1987 at about 11 A:M, Sri H.C. Bisht, Dy. SP, SPE, CBI, Dehradun, Sri S.P. Gupta, Inspector, SPE, Dehradun, M.K. Mathew, V. Gurumurthi, Bhairab Datt, Vidya Datt entered the office room occupied by the accused R.S. Siromani, LDC, in the office of ESIC, local office situated in B-130 Sector XV, Noida, Distt. Ghaziabad. Smt. Omana P. Mathew and Ms. Ravi Shri Bala were already present in the said office room 5 along with the accused R.S. Siromani, when on receipt of the appointed signal from both these ladies, all the aforesaid persons entered the said office room. On being given over introduction and challenged to produce the bribe sum, the accused R.S. Siromani got perplexed and kept mum. However, R.S. Siromani pointed towards his left hand side pocket of the pant he was wearing. Both the hands of R.S. Siromani accused were caught by wrists. A solution of sodium carbonate was got prepared in a glass of water and on being asked to do so, the accused dipped the fingers of both his hands one after the other in the said solution and the solution of sodium carbonate turned into pink, which pink coloured solution was put in a phial which was then wrapped with cloth and sealed on the spot and marked R-1. The personal search of the accused R.S. Siromani was conducted after observing the due formality of offering the personal search of all the members of the party. From the left side thigh pant pocket of the accused the following G.C. notes amounting to Rs.250/- were recovered:- (i) G.C. Note of the denomination of Rs.50/- bearing No.1 ES 788730. (ii) G.C. Note of the denomination of Rs.100/- bearing No.3 ES 425 220. (iii) G.C. Note of the denomination of Rs.100/- bearing no.4 DH 389652. All the aforesaid G.C. notes tallied with the particulars of G.C. Notes mentioned in the memo prepared earlier on date. The aforesaid G.C. Notes comprising the bribe sum of Rs.250/- were kept in an envelop marked R-2 which envelop was also sealed on the spot. Besides coins worth Rs.6/- were recovered from the right hand side thigh pant pocket. A total sum of Rs. 367/- (Rs. three hundred & sixty seven) was also recovered from the left hand side pocket of the Shafari 6 Shirt worn by the accused R.S. Siromani. This sum of Rs.367/- was also sealed in an envelop marked R-3 on the spot. The coins amounting to Rs.6/- so recovered were not taken into possession and were returned to the accused. A fresh solution of sodium carbonate was prepared in another glass of water and the left side pant pocket was dipped in the said solution and the said solution also turned pink. This pink colored solution containing pant pocket wash was put in a phial, duly wrapped with cloth and sealed and marked R-4. The grey colored pant (terecot) which the accused was wearing was also sealed in an envelop marked R-5. During the personal search of the accused the following articles were also recovered:- (i) One wrist watch HMT Hora 17 jewels (ii) One gold ring with stone (iii) Two Bronze rings, which articles were sealed in a plastic cover marked R-6. The personal search of Smt. Omana P. Mathew was conducted by Ms. Ravi Shri Bala and an A/C payee cheque bearing No.632538 of 23.4.1987 issued by Manager, ESIC, Noida for Rs.2,520/- favouring Smt. Omana P. Mathew was recovered. No other incriminating articles were recovered from her. A photostat copy of this cheque was got prepared and the attestation of the Manager, Local Office, ESIC, Noida was obtained on the same and the said cheque in original was returned to Smt. Omana P. Mathew to enable her to receive the proceeds of the said cheque from the bank. The ledger sheet of Smt. Omana P. Mathew bearing nos.2470390/4790927 maintained in the local ESIC Noida Office was got detached and taken into custody. The said ledger was being maintained by the accused. 7 The following documents which were with Sri S.C. Kulshrestha, Manager, local office, ESIC, Noida were also seized:- (i) Benefit payment docket on form ESIC-16 for Rs.2,520/- dt.23.4.1987 in the name of Smt. Omana P. Mathew. (ii) Form No.28 issued by local office ESIC, Noida favouring Smt. Omana P. Mathew. (iii) Certificate bearing book No.43 Serial No.1062 of 6.1.1987 of expected conferment issued from ESI Dispensary, Factory Road, New Delhi issued on old insurance no.2470390. (iv) Certificate of pregnancy on form No.20, S.No.55451 dt.6.11.1986 issued by ESI Dispensary, Factory Road, New Delhi in favour of insurance no.11-2470390. (v) Form No.24 dt.23.4.1987 of ESIC Noida submitted by Smt. Omana P. Mathew. (vi) Birth certificate dt. 19.2.1987 issued by St. Luke’s Hospital, Pathanamthitta. (vii) Form No.23, book No.303, S.No.3028 bearing certificate of conferment dt.5.3.1987. (viii) Form ESIC-71 of Smt. Omana P. Mathew issued by ESIC local office Noida for contribution period endue of Sept. 1986. All the sealed articles were taken into custody after obtaining the signature of the members of the trap party. A specimen of seal used in the proceeding was also prepared on the spot in duplicate and signed by all the members of the trap party. The recovery memo of the above proceedings was prepared on the spot, which was read over and explained to all the members of the trap party. The recovery memo is Ext.Ka-8. 8 6. Thereafter the investigation of this case was entrusted to P.W.6 Om Prakash Sharma, Inspector, who during the course of investigation, collected the documents Ext.Ka-1, 2, 3, 4, 5, 9, 10, 11, 12 and 19. He also prepared the site-plan of the place of incident, that site-plan is Ext.Ka-16. The sanction for the prosecution was granted by the Regional Director, E.S.I. Corporation, Sarvodaya Nagar, Kanpur, that sanction is Ext.Ka-17. The I.O. also recorded the statements of the witnesses and after completing the investigation he submitted the charge sheet against the appellant/accused u/s 161 IPC and 5(2) r/w 5(1)(d) of the Act. That charge sheet is Ext.Ka-18. 7. Learned Special Judge, Anti-Corruption, U.P. (East) framed the charge of offence punishable u/s 161 IPC and 5(2) r/w 5(1)(d) of the Act against the appellant/accused on 17.2.1988. The charge was read over and explained to the appellant/accused who pleaded not guilty and claimed to be tried. 8. In order to prove its case, the prosecution has examined P.W.1 Smt. Omana P. Mathew-complainant of the case, P.W.2 M.K. Mathew, P.W.3 Smt. Ravi Shri Bala, P.W.4 Gurumuthi, P.W.5 H.C. Bisht, Deputy SP, P.W.6 S.I. Om Prakash Sharma, Investigating Officer of this case and P.W.7 Suresh Chandra Kulshrestha. 9. After that the statement of the appellant/accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who has denied the allegations made against him. However, in defence, he has not produced any oral or documentary evidence. 9 10. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned Special Judge, Anti-corruption, Dehradun vide his judgment and order dated 29.4.1991 convicted and sentenced the appellant/accused as above. Feeling aggrieved by the said judgment and order dated 29.4.1991, the appellant/accused has preferred the present appeal. 11. Further to prove its case, the prosecution has examined P.W.1 Smt. Omana P. Mathew, who has stated that in the year 1979 she was working in Hindustan Computer at Noida and the factory in which she was working comes under ESI Scheme. She was insured under the ESI Scheme and she was having a card bearing No.214790927. Under the ESI Scheme she was entitled for the maternity benefit. The claim of the ESI Scheme was scheduled to pass from the local head office at Noida and in the office at Noida the appellant/accused R.S. Siromani used to deal with the above-said claim. She was entitled to get maternity benefit for 84 days. She was on maternity leave from 6.1.1987 to 30.3.1987. On 30.3.1987 she has submitted the claim along with the papers 15A, 16A, 17A and 18A, that are Ext.Ka-1 to Ka- 4. On 6.4.1987 she met the appellant/accused who told her that she will get her check very soon and asked her to come after a week. Then on 14.4.1987 she went to the ESI local head office to meet the appellant/accused and there she submitted paper no.19A i.e. Ext.Ka-5. When she asked for the cheque then the appellant/accused demanded Rs.250/- in lieu of handing over the cheque. After that she came back to her office. Then she told the fact of the demand of money by the appellant/accused to her husband. Then her husband suggested her to go again and asked for the check perhaps he would give her 10 the cheque. After that she went to the appellant/accused two times for getting her cheque but the appellant/accused again demanded Rs.250/- and also told her that upto when she would not give him (appellant/accused) money he would not give her cheque. She told this fact to her husband. On 21.4.1987 her husband wrote a complaint letter and after reading it she signed on it. That complaint letter is Ext.Ka-6. On the same day i.e. 21.4.1987 her husband with that complaint letter came Dehradun along with one officer of ESI Vigilance, Dehradun and her husband gave that letter to S.P., C.B.I. on 22.4.1987. On 22.4.1987 her husband returned to home and Mr. Bisht and Inspector Gupta were also with him. These people (Mr. Bisht and Inspector Gupta) enquired from her about the sign. They further enquired from her that whether the contents of the application are correct and also enquired about the sign. She verified her signature and also told them that contents of the application are correct. Then these people asked her to come at CBI Hostel in Room No.4 on 23.4.1987 at 7 A:M. On 23.4.1987 in the morning, she along with her husband reached in Room No.4 of CBI Hostel where she met Ms. Sribala, Sri Gurumurthi, Mr. Bisht, Mr. Gupta and two constables. Firstly, all the above persons were introduced with each other. Thereafter the complaint letter was read over and explained to all the persons. She gave two notes of Rs.100/- and one note of Rs.50/- to Mr. Bisht. The memorandum was prepared there and the number of the notes were also written in the memorandum. Then a practical demonstration of the use and utility of phenolphthalein powder was given by Mr. Bisht. A piece of paper was treated with Phenolphthalein powder and was given to Gurumurthi, who held the same in his right hand. A solution of soda was prepared in a glass. 11 Gurumurthi washed his fingers in that solution then the colour of the solution turned into pink from white. That pink solution was sealed in an empty phial and the piece of paper was sealed in an envelope. That piece of paper is Ext.1, envelope is Ext.2 and the solution which was in the phial is Ext.3. Rs.250/- which was given by her were also treated with the phenolphthalein powder and were given to her with the instructions to give the same to the accused on the demand of the accused. The remaining phenolphthalein powder was sealed in an envelope. She has signed on that envelope, that envelope is Ext.4. Then Mr. Bisht told the trap plan and also told that Ms. Bala was also remain present with her and whatever transaction and conversation will take place Ms. Bala will see and overhear the same. It was also told to her that as soon as the transaction of bribe would be over Ms. Ravi Shri Bala, would give a signal by touching her head with her right hand. For the same procedure the memorandum was prepared, that memorandum is Ext.Ka-7. After that she along with the trap party went to the office of the appellant/accused. She went inside the office of the appellant/accused along with Ms. Bala and they have gone near the seat of the appellant/accused. Then she asked about her cheque from the appellant/accused. The appellant/accused came in the verandah. Then she along with Ms. Sribala also came in the verandah. There the appellant/accused asked about the money. She told him that she has come with money. She asked him to first prepare the cheque then she will give the money. On this the appellant/accused asked her first to give money. Then she has taken the money from her bag and has given it to the appellant/accused. The appellant/accused took the above-said money in his right hand, counted it with both the hands and kept the money in the left pocket of his pant. After that the 12 appellant/accused came to his seat and started preparing the documents. The appellant/accused after preparing the cheque handed it to her and asked her to obtain the sign from the Manager on the cheque. Then she went to the Manager and obtained his signature. After that she again came back to the appellant/accused. On the receipt of the signal given by Ms. Bala, Mr. Bisht and other people entered into the room. When Mr. Bisht showed his identity card to the appellant/accused and told him that she has registered a case of bribe against him, the accused got perplexed. Both the hands of the accused were caught by wrists by Mr. Bisht and Mr. Gupta. On being asked to produce the bribe, the appellant/accused pointed towards his left side pocket. After that the solution of soda was got prepared in a glass and both the hands of the appellant/accused were washed from that solution. Before washing the hands the colour of the solution was white but after washing the hands the colour turned into pink. Then this solution was sealed in a phial, that bottle is Ext.5. After that Mr. Bisht asked the appellant/accused to hand over the money then the appellant/accused has taken out the money from his pocket in which there were two hundred rupee notes and one fifty rupee note. The number in these notes were compared with the number mentioned in the memorandum and it was found same. These notes are Ext.6, 7 & 8. These notes were sealed on the spot in an envelope, that envelope is Ext.9. The pocket from which Rs.250/- were recovered was also washed from another solution of soda. The colour of that solution also turned into pink from white. That pink solution was also sealed in a phial. That phial is Ext.10. The pant was also sealed on the spot in an envelope, pant is Ext.11 and envelope is Ext.12. The specimen of seal was prepared on the spot i.e. Ext.13 and 14. The recovery memo was also 13 prepared on the spot and she and other witnesses have signed on it. Recovery memo is Ext.Ka-8. Receipt of the cheque which was issued to her is Ext.Ka-9. Before preparing the recovery memo her personal search was conducted by Ms. Bala and the cheque was recovered. Photostat copy of that cheque was got prepared by Mr. Bisht and the attestation of the Manager was obtained on the same. The said cheque in original was returned to her. Photostat copy of the cheque is Ext.Ka-10. In the ledger sheet i.e. Ext.Ka-11, entry was made in front of her by the appellant/accused which was seized by Mr. Bisht in the local office. This witness was cross-examined at length by the defence counsel but nothing has come out from her evidence which may create any doubt in her evidence. The statement of this witness is reliable, believable and inspires a confidence. 12. P.W.2 is M.K. Mathew, who has stated that Smt. Omana P. Mathew (PW1) is his wife and she was working in HCL, Noida since 23.6.1986. His wife was on the maternity leave from 6.1.1987 to 30.3.1987. HCL, Noida comes under the ESIC Scheme. His wife was having ESI Card and for getting the benefit of the maternity leave she has submitted the papers at ESIC Local office, Noida. The appellant/accused R.S. Siromani, LDC deals with the cases of maternity leave. On 6.4.1987 his wife has gone to local office ESIC. After that she again went there on 14.4.1987. His wife told him that for getting the claim of maternity leave she has to pay money. Appellant/accused Siromani, L.D.C. had demanded Rs.250/-. On 30.3.1987 his wife had submitted papers which are Ext.Ka-1 to Ext.Ka-4 at the local office, ESIC, Noida. He suggested his wife to go there at least one or two times might be she got the money without giving bribe. On this his wife went to local office two times. On 14.4.1987 his wife submitted 14 the paper Ext.Ka-5 to the appellant/accused. After going there for one or two times his wife told him that without giving the bribe she will not be able to get the money. Then he made the complaint against this to Inspector, Vigilance, ESIC. Inspector, Vigilance, ESIC directed him to write a complaint in the name of S.P., C.BI, Dehradun. On 21.04.1987, he wrote the complaint to S.P., C.B.I., Dehradun. He has further stated that whatever his wife has told him he has written the same in that complaint letter, that letter is Ext.Ka-6. That letter was written by him and his wife has signed on it and he has also signed on it. After taking the complaint letter, he met the Director, Vigilance, ESIC who send him to Dehradun in the departmental jeep with Sri C.S. Bala Krishnan, Asstt./Dy. Director. On 22.4.1987, he along with Dy. Director met S.P., CBI in his office and handed the application to him. Then Mr. Bisht was introduced with him and Mr. Bisht has recorded his statement. After that he along with Mr. Bisht and C.B.I. party reached Delhi at his home. Mr. Bisht and Mr. Gupta, Inspector were gone with him. Then Mr. Bisht enquired about the complaint letter from his wife. His wife