RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.128 of 2001 (Old No.3063 of 1999) Girish Chand Bhatt S/o Hari Prasad Bhatt, R/o 56/3 Dharampur, PS Dalanwala, District Dehradun ………….Appellant Versus The State …….. Respondent Dated: June 25, 2010 Sri SK Aggarwal, Sr. Advocate assisted by Sri Lokpal Singh, Adv. for the appellant Sri Arvind Vashisth, Adv. for CBI/respondent HON. DHARAM VEER, J. This appeal, preferred under Section 374(2) of Code of Criminal Procedure 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 15/16.11.1999 passed by the Special Judge, Anti Corruption/U.P. (East), Dehradun, in CBI Case No.5/96, CBI Versus G.C. Bhatt, thereby convicting and sentencing the appellant-accused under Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter to be referred as the Act) for one year’s R.I. with fine of Rs.1,500/-, and further convicting and sentencing the appellant-accused u/s 7 of the Act for six months’ R.I. with fine of Rs.1,000/-. Both the above sentences were directed to run concurrently. It was further directed that in case of default of payment of fine, the appellant-accused will have to undergo six months’ R.I. in addition to the above punishment. 2 2. I have heard learned counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution case is that P.W.1 Maharshi Kishore Yogi Raj lodged a report before the S.P., CBI, Dehradun on 6.10.1995 stating therein that on 14.11.1994, he had deposited an amount of Rs.10,000/- for obtaining a telephone connection under OYT General Scheme in the TDE Office of Telecommunications Department, whereupon a demand note was issued to him. However, after the lapse of more than 10 months, the telephone was not installed, but as per the rules, the telephone ought to have been installed within a month. On 5.10.1995 at about 1 PM, the complainant met with the appellant-accused, who was serving as Office Assistant in the Commercial Department of TDE Office, who informed the complainant that he was dealing with the matter of his telephone connection and demanded Rs.200/- as bribe to speed up the matter and asked the complainant to contact him on 6.10.1995 at 4:00 PM. Since, the complainant did not want to pay the bribe, hence he lodged the present application, i.e. Ex.Ka-3. On this application, on 6.10.1995 itself, the SP, CBI SPE, Dehradun passed the order “Let a Regular case be registered and Sri R.K. Verma, Inspector to investigate it”. Thereafter, the case was registered as Crime No.RC-28(A)/95/DAD on 6.10.1995 against the appellant- accused Girish Chand Bhatt u/s 7 of the Act and CHIK FIR accordingly was prepared, i.e. Ex.Ka-15. The application moved by the complaint for installation of telephone at Department of Telecommunications dated 14.11.1994 is Ex.Ka-1. 4. Thereafter, the pre-trap proceedings were arranged by Sri R.K. Verma, Inspector and for the pre-trap proceedings, the persons assembled on 6.10.1995 at about 3 3 PM were (1) Sri RK Verma, Inspector (2) Sri BP Bagchi, Inspector, (3) Sri Yesh Pal Singh, Inspector (4) Sri R. Chahal, Sub-Inspector (5) Sri Vidhiya Dutt, Constable (6) Sri Vijay Prakash, Constable (7) Sri Manjeet, Constable (8) Sri R.K. Malhotra, Assistant Manager, State Bank of Patiala, Haridwar (independent witness) (9) Sri V.K. Mehreja, Branch Manager, State Bank of Patiala (independent witness) and (10) Sri Kishore Yogi, complainant of the case. All the above-assembled persons were introduced to one another and the purpose of the assembling was explained. The complaint of complainant Kishore Yogi addressed to SP CBI Dehradun was read over before all the persons present over there and the complainant confirmed the contents of the said complaint. Thereafter, a demonstration of the use of phenolphthalein powder was given before all. A piece of white paper was treated with phenolphthalein powder and the same was given to PW2 RK Malhotra, Assistant Manager, State Bank of Patiala, Haridwar Road, Dehradun, who took the same in his right hand finger. The said piece of paper was then taken back from him and marked as D-1 and was kept in an envelope and sealed and signed by all. Thereafter, a fresh solution of sodium carbonate was prepared in a clean and dry glass and PW2 R.K. Malhotra was asked to wash his right hand finger in the said solution and on doing so, the colourless solution turned into pink. The said solution was transferred into a clean and dry bottle and sealed and signed by all and marked as D-2. Thereafter, PW1 Kishore Yogi, delivered Rs.200/- of the denomination of Rs.50/- each (Total 4 G.C. Notes), whose numbers are given below:- 1. 7KT 572380 2. 9 UC 576473 3. 8 EW 120190 4. 3 QF 917133 4 5. The above-mentioned G.C. notes were also treated with phenolphthalein powder and given back to the complainant Kishore Yogi with the instruction that he should hand over the same to the appellant-accused Girish Chand Bhatt only on demand. The remaining phenolphthalein powder was kept in an envelope and was sealed and signed and marked as D-3. Thereafter, personal search of all, who were present there, was conducted by one another and nothing incriminating was found with any person. Thereafter, all of them washed their hands with soap and water. The plan of the trap was chalked out and it was decided that the complainant Kishore Yogi would hand over the bribe money of Rs.200/- to the appellant- accused Girish Chand Bhatt, Office Assistant at his office chamber, in the office of TDM, Dehradun, which is located at Subhash Road. PW2 RK Malhotra was instructed to accompany the complainant and follow him closely and keenly observe the bribe transaction and overhear the conversation between them. PW4 VK Mehreja was instructed to take position and observe the incident. The other members of the trap party were also instructed to take their respective positions and observe the entire proceedings. The complainant Kishore Yogi was asked to signal the completion of the bribe transaction by touching his head with his right hand. The pre-trap proceedings concluded at 4:15 PM and a pre-trap memorandum Ex.Ka.5 was prepared by the Trap Laying Officer and that was read over to all the members of the team who had also put their signatures on this memorandum and all of them were proceeded for the spot. 6. Thereafter, on the same day on 6.10.1995 at about 4:45 PM, on receipt of the pre-appointed signal from the complainant Kishore Tyagi, Inspector RK Verma (PW6) 5 along with Inspector BP Bagchi, Inspector Yashpal Singh, SI R. Chahal, Constables Vidya Dutt, Vijay Prakash and Manjeet, rushed into the office chamber of the appellant- accused Girish Chand Bhatt along with the independent witness V.K. Mehreja (PW4). PW6 Inspector RK Verma disclosed his identity and challenged the appellant-accused for having demanded and accepted a bribe of Rs.200/- from the complainant Kishore Yogi for expeditiously processing the file relating to his telephone connection under OYT Special Scheme. The identity of the appellant- accused was disclosed by the complainant Kishore Yogi. The appellant-accused was arrested by Inspector RK Verma who caught his wrists. On being challenged, the appellant- accused looked very nervous and perplexed and did not utter anything. Under the directions of Inspector RK Verma, Constable Vidya Dutt prepared a solution of sodium carbonate in a glass of water. The appellant/ accused was asked to wash his right hand fingers in the said solution and on doing so, the colourless solution turned pink. The pink coloured solution was transferred to a clean and dry bottle and sealed and marked R-1 and signed by the members of the trap party and the independent witnesses. Thereafter, the appellant-accused was asked to produce the bribe money. Accordingly, the appellant-accused produced the bribe money of Rs.200/- from his right hand side pocket of his pant and the said bribe money was taken under custody and PW2 RK Malhotra was directed to tally the numbers and denominations of the recovered money with the numbers and denominations mentioned in the pre-trap memorandum and the bribe money of Rs.200/- was fully tallied with the pre-trap memorandum. Thereafter, the seized bribe money was kept in an envelope and sealed and 6 signed by the independent witnesses and the members of trap party and was marked as R-2. The appellant-accused was then asked to put off his pant and the right pocket of his pant was dipped into the freshly prepared solution of sodium carbonate, which was originally colourless and it had turned pink on pouring the pocket. The pink solution was preserved in a phial and after wrapping that with a cloth, was sealed and signatures of all the members of the team were obtained thereon. The pant was sealed in a cloth and marked as R-4. On personal search of the accused/appellant, some other currency notes and papers were recovered, which were returned to him. The specimen seal impressions were also taken on two plain papers, which were signed by the Trap Laying Officer and other members of the Trap Party. A recovery memo of the entire trap proceedings was prepared by Inspector BP Bagchi on the dictation of Inspector RK Verma, which was also signed by all the members of the team including the complainant and the recovery memo concluded at 6:15 PM on 6.10.1995, i.e. Ex.Ka-4. A seizure memo Ex.Ka.8, with regard to the items seized from the office of appellant- accused, was also prepared on 6.10.1995 at 5:15 PM and the following documents were seized in presence of two independent witnesses, namely PW2 RK Malhotra and PW4 VK Mehreja: - 1. OYT General File of Kishore Yogi, containing note sheet, affidavit, photo-ration card, photocopy of demand note, demand note paid copy (carbon), Application telephone connection of Kishore Yogi 2. Advise note register of Kishore Yogi, Srl. No.605081 (Advise note start from Srl No.605001 and ends Srl. No.6050100). 3. Two advise note copy (photo and carbon). 7 7. Thereafter, the house of the appellant-accused was searched for which memo Ex.Ka-9 was prepared. The site plan of the place of occurrence was also prepared on the same day, i.e. Ex.Ka-14. The I.O. also sent certain articles to the Director, CFSL, New Delhi for expert opinion vide application Ex.Ka-16. The report given by the Director, CFSL, New Delhi is on record which is Ex.Ka-17. Later, the investigation was transferred to PW8 Inspector PK Chaudhary, who obtained the sanction from PW5 A.V. Chaturvedi, D.E. Admin. Dehradun for prosecuting the appellant-accused, the sanction is Ex.Ka-13. During the course of investigation, the I.O. recorded the statements of the witnesses and on completing the investigation, he filed the charge sheet against the appellant-accused in the court, i.e. Ex.Ka-18. 8. Learned Special Judge, Anti-Corruption, U.P. (East) Dehradun framed the charges against the appellant/accused on 17.06.1996 u/s 7 and also u/s 13(1)(d) of the Act punishable under Section 13(2) of the Act. The charges were read over and explained to the appellant/accused who pleaded not guilty and claimed to be tried. 9. To prove its case, the prosecution got examined P.W.1 Kishore Yogi Raj, complainant, PW2 Ramesh Kumar Malhotra, Assistant Manager, State Bank of Patiala, Dehradun, an independent witness, PW3 RA Khan, Divisional Engineer, Telecom, PW4 Virendra Kumar Mehreja, Branch Manager, State Bank of Patiala, Dehradun, also an independent witness, PW5 A.V. Chaturvedi, Dy. GM, who accorded the sanction, PW6 Inspector R.K. Verma, Inspector and In-charge of the Trap Party, PW7 V.M. Sehgal, Retd. Director, CFSL, who had 8 given the expert report, PW8 Inspector P.K. Chaudhary, IO of the case and PW9 Sangal Mal, Section Supervisor, Telecommunications Department. 10. 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 denied the allegations made against him. However, in reply to the question No.16, he has filed his written statement. 11. After hearing counsel for the parties and appreciating the material on record, learned Special Judge, Anti-Corruption, UP (East), Dehradun vide judgment and order dated 15/16.11.1999 convicted and sentenced the appellant/accused as discussed above. Feeling aggrieved, the appellant/accused has come up in appeal. 12. To prove its case the prosecution has examined P.W.1 Yogi Raj who stated that on 14.11.1994 he moved an application under the OYT General Category for a new telephone connection in Telecommunications Department, Dehradun and also deposited Rs.10,000/- along with the application. In the application, he mentioned the address as “Dunga House, New Survey Road, Dehradun”. While moving the application, the officials of telecommunications department had assured him that the telephone would be installed in between 1-2 month and he also proved the said application as Ex.Ka-1. In April, 1995 he had shifted from Dunga House to 158 Rajpur Road, Dehradun and he also gave his application along with an affidavit for changing of his residential address. He also stated that in the affidavit he mentioned his address as Kothi No.7 Officer Enclave Jakhan, Dehradun which is also known as 158 Rajpur Road, Dehradun. Since February 1995 to August 9 1995, he met several times with the appellant-accused for installation of a new telephone. In September 1995 also, he met with the appellant in the same context, who asked him to give an affidavit and he accordingly furnished a fresh affidavit, which is Ex.Ka-2. After submitting this affidavit, he met with the appellant accused for installation of telephone, thereafter, the appellant-accused Girish Chand Bhatt demanded Rs.200/- as bribe on 5.10.1995 at 2:00 PM for doing his work. Since he did not want to pay the bribe, hence he moved an application before SP, CBI, i.e. Ex.Ka-3. Thereafter he was interrogated by Inspector RK Verma and thereafter he was introduced to Inspector BP Bagchi and S.I. R. Chahal and other persons as well as with two officers R.K. Malhotra (PW2) and V.K. Mehreja (PW4). Thereafter, his complaint was read over to all and demonstration proceedings were conducted. In demonstration, he gave Rs.200/- (4 notes of Rs.50/- each). After that a piece of white paper was treated with phenolphthalein powder and the same was given to Sri RK Malhotra, Assistant Manager, State Bank of Patiala, Haridwar Road, Dehradun, who took the same in his right hand finger. Thereafter a fresh solution of sodium carbonate was prepared in a clean and dry glass and the fingers of his right hand were poured in the said solution, on doing so, the colourless solution turned into pink. The said solution was then transferred into a phial, which is Ex.1, while the cloth in which it was sealed is Ex.2. He also proved a plain paper putting out of the envelope received from CFSL, that paper is Ex.3. The CBI personnel had applied phenolphthalein powder on the four notes delivered by him and the numbers of note were noted. Those notes were then given to him by the CBI personnel with direction to be given to the appellant-accused only on being 10 demanded bribe. Inspector RK Verma had instructed him that PW2 RK Malhotra will accompany him and will overhear the entire transaction. The remaining phenolphthalein powder was kept in an envelope and was sealed. Thereafter, personal search of all, who were present there, was conducted by one another and nothing incriminating was found with any person. Thereafter, all of them washed their hands. Later, he along with PW2 RK Malhotra proceeded on his Car No.DDQ 6998 for the office of the appellant-accused while the rest of the members of the Trap Party proceeded in another car. At about 4:35 he reached on the spot, where he along with PW2 RK Malhotra went in the room of the appellant-accused, where he told the appellant accused that he had brought Rs.200/- as demanded by him. The appellant/accused told him to deliver the money and further told him that he would send the file to the concerned clerk of Rajpur Exchange. Thereafter, he delivered 4 notes, each Rs.50/- to the appellant-accused, which he put in his right pocket of his pant. Thereafter, he signalled the Trap Party on which the Inspector RK Verma and PW4 V.K. Mehreja came inside. Inspector RK Verma caught the wrist of the appellant after giving his introduction and at that time, rest of the members of the Trap Party also arrived there. Inspector RK Verma also got prepared a solution of sodium carbonate in which the fingers of the right hand of the appellant was wash, on doing so the solution, which was colourless, turned into pink. The said solution was transferred in a phial, i.e. Ex.4, while the cloth in which it was sealed is Ex.5. On being directed by Inspector RK Verma, the appellant-accused Girish Chand Bhatt produced the bribe money of Rs.200/- from the pocket of his pant. PW2 R.K. Malhotra was directed to tally the numbers and on being 11 tallied, the numbers were found correct. He also identified the said notes, which were marked as Ex.6/1 to Ex.6/4. He also proved the envelope in which the said notes were kept as Ex.7. On the directions of CBI personnel, the appellant- accused put off his pant and when the right pocket of the pant was washed, that turned into pink and that solution was also kept and sealed in a phial, i.e. Ex.8 while the cloth was marked as Ex.9. He also proved the pant of the appellant as Ex.10. Recovery memo was prepared by Inspector BP Bagchi and he also signed and proved the same as Ex.Ka-4. He also proved the pre-trap memo as Ex.Ka-5. The proceedings concluded at about 6:20 PM and from where he went to his house. This witness was cross- examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable. 13. PW2 R.K. Malhotra stated that he was posted as Assistant Manager, State Bank of Patiala on 6.10.1995 i.e. on the date of incident. He is an independent eyewitness/ shadow witness of the case and has fully supported the prosecution case as well as fully corroborated the evidence of PW1 Yogi Raj, who is the complainant of the case. 14. PW3 RA Khan who stated that from 20.8.94 to 15.6.95 he was posted as Commercial Officer in Telecommunications Office, Dehradun. He has proved the Advise Note dated 10.2.1995 issued by him pertaining to the installation of telephone connection at the residence of Kishore Yogiraj situated at Doonga House, New Survey Road, Dehradun, which was written by the appellant- accused and bears his (this witness) signatures, that note is Ex.Ka-10. The said advise note had come back with the 12 endorsement that the applicant was not residing at the same address. On 13.9.1995, the applicant had filed an affidavit Ex.Ka-2 along with attested copy of the ration card regarding change of his address. On the basis of this affidavit and ration card, on 15.9.1995, Sri Ram Chandra had directed to make a change in the address. He has proved the note-sheet Ex.Ka-12 written by the appellant/ accused bearing the approval made by Sri Ram Chandra. He further stated that after the order of approval, this file ought to have been transmitted to the clerk concerned of Rajpur Exchange but the appellant/accused kept it pending with him and did not send it to Rajpur Exchange. He further stated that the installation of telephone could be done only after the transmission of this file to the clerk concerned of Rajpur Exchange. This witness was cross- examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable. 15. PW4 V.K. Mehreja stated that he was posted as Branch Manager on 6.10.1995 i.e. on the date of incident. He is also an independent eyewitness of the case and has fully supported the prosecution case as well as fully corroborated the evidence of PW1 Yogi Raj and PW2 R.K. Malhotra. 16. P.W.5 A.V. Chaturvedi, was posted as Divisional Engineer (Administration) in T.D.M. Office, Dehradun during 1996. He proved his competence to remove a Telecom Assistant from service and stated that the sanction to prosecute the appellant-accused Ex.Ka-13 was accorded by him after careful perusal of CBI Report, case diary and other relevant records. He further stated that prior to 13 according sanction, he had discussed the matter with Vigilance Officer of his Department and I.O. of this case and after careful consideration, this sanction was accorded by him. 17. PW6 R.K. Verma, Trap Laying Officer, who is the key witness of this case and he has supported each and every step of the pre-trap demonstration and the trap proceedings. He had procured both the independent witnesses, namely PW2 R.K. Malhotra and PW4 V.K. Mehreja and had conducted all the proceedings in their presence. In his statement, he has narrated and reiterated the entire story and each part of the transaction as has been described hereinabove. He also proved all the documents prepared during pre-trap demonstration and the trap proceedings and has also identified all the articles/phials/wrappers/envelopes exhibited in the court and were used in the proceedings. After trapping the appellant-accused, the site plan Ex.Ka-14 was prepared by Inspector Yashpal Singh at his instance. After the completion of the trap proceedings, seizure of documents and the search of the house of the appellant/accused, the investigation was entrusted to Inspector P.K. Chaudhary under the orders of SP, CBI and all the documents and articles were handed over to Inspector Chaudhary by him. He also proved the report Ex.Ka-15. This witness was cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable. 18. PW7 V.N. Sehgal was posted as Director, CFSL, New Delhi during 1996 and has experience of about 28 years as Chemical Examiner. He made the chemical 14 examination of the solution preserved in the phials as well as the currency notes, which were sent along with letter Ex.Ka-16 of SP, CBI, and in the articles sent to him, it gave positive tests of phenolphthalein. He has proved the report Ex.Ka-17 prepared on his dictation and he also signed on that report. 19. PW8 Inspector PK Chaudhary, I.O. of the case, who stated that he had obtained the sanction Ex.Ka-13 to prosecute the appellant-accused from A.V. Chaturvedi, D.E. Telecom, Dehradun. He also received the report from CFSL, New Delhi, which is Ex.Ka-17. During investigation, he recorded the statements of the witnesses and after completing the investigation, he filed the charge sheet against the appellant-accused, i.e. Ex.Ka-18. 20. PW9 Sangam Lal, who was posted as Section Supervisor in Commercial Section of Telecommunications Office. He proved the waiting list register as Ex.Ka-19 and he also proved the signatures of the appellant-accused at Sl. No.1003 as Ex.Ka-19/1 as well as the endorsement made by him as Ex.Ka-19/2. He also proved the waiting list register of Rajpur Exchange as Ex.Ka-20 which bears the entry Ex.Ka-20/1 pertaining to the telephone connection of the complainant and a true copy Ex.Ka-21 of dispatch and receipt register of Commercial Section which bears an entry of the receipt of the affidavit of the complainant at Sl. No.2 dated 12.6.1995. He also proved the note-sheet Ex.Ka-12 written by the appellant/accused under his handwriting which was prepared on the basis of complainant’s affidavit Ex.Ka-2 and the copy of the ration card annexed therewith. He further stated that this note- sheet Ex.Ka-12 was placed before him on 15.9.1995 by the appellant/accused and he (this witness) after putting his 15 initials thereon, had sent it to Sri Ram Chandra, Commercial Officer for approval. Sri Ram Chandra, after making an endorsement of approval Ex.Ka-12/1, had made his initial and he also made his initial on it. He further stated that this file ought to have been sent promptly by the appellant/accused. He also proved the true photocopies of the attendance register Ex.Ka-22/1 and Ex.Ka-22/2