RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.90 of 2006 (Old No.731 of 1994) K.K. Tripathi S/o B.P. Tripathi R/o Village and P.O. Tamarsepur, P.S. Chanda, District Sultanpur At present residing at Mahanagar, Post office compound Mahanagar, P.S. Mahanagar, Lucknow ………….Appellant Versus C.B.I. …….. Respondent Dated: August 13, 2010 Mr. S.K. Agarwal, Senior Advocate with Mr. S.S. Bhandari, Advocate for the appellant Mr. Arvind Vashitha, Advocate for C.B.I./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 21.4.1994 passed by Additional Sessions Judge/Special Judge, Anti Corruption, Dehradun, in CBI Case No.6/87, CBI Versus K.K. Tripathi, whereby the learned Additional Sessions Judge/Special Judge convicted the appellant-accused under Section 161 of The Indian Penal Code, 1860 (hereinafter to be referred as the IPC) and sentenced him to undergo rigorous imprisonment for a period of six months. The appellant-accused was further convicted u/s 5(2) r/w 5(1)(d) of Prevention of Corruption Act, 1947 (Act II of 1947) (hereinafter to be referred as Act) and was sentenced to one year’s R.I. with fine of Rs.5,000/- and in default of payment of payment of fine, three months’ simple imprisonment was further awarded. All the sentences were directed to run concurrently. 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 Anil Kumar Bansal S/o Kalu Ram Bansal lodged a report before Superintendent of Police, CBI, Dehradun on 24.3.1987 stating therein that on 10.2.1987 he had sent an application to S.S.P.O. Meerut regarding his recruitment in the post of Extra Departmental Post Master, Branch Post Office Sathla, District Meerut. In this regard, he had met with the appellant-accused K.K. Tripathi, IPO (North), who was working under S.S.P.O. Meerut. It is alleged that on 22.3.1987, as per the instructions of the appellant- accused, when the complainant along with his younger brother Sunil Kumar Bansal met the appellant-accused in his residence then the appellant-accused told him that if wants his appointment in the aforesaid post then he will have to pay Rs.5000/-. When the complainant showed his inability to pay the aforesaid amount, the appellant- accused agreed to accept Rs.2500/- and asked him to pay Rs.2500 by 26.3.1987. Since, the complainant did not want to pay the bribe, hence he lodged the present application, i.e. Ex.Ka-2. On this application, Sri S.C. Sinha, SP, CBI SPE, Dehradun passed an order to register the case and the investigation was entrusted to Sri H.C. Bisht, Dy. S.P. Thereafter, the case was registered as Crime No.RC-19/87- DAD against the appellant-accused K.K. Tripathi u/s 161 of IPC and Chik FIR was subsequently prepared, i.e. Ex.Ka- 18. 2 4. Thereafter, on 26.3.1987 at 6 AM, Sri H.C. Bisht, I.O., Sri O.P. Sharma, Inspector, SPE CBI, Pratap Singh and Lal Bahadur, Constables, CBI, Anil Kumar Bansal, complainant of the case, Sunil Kumar Bansal, brother of the complainant, Anand Prakash Vishnoi, Officer, SBI, Meerut (independent witness) and A.P. Tiwari, Clerk, Income Tax, Meerut (independent witness) were assembled in SBI Guest House at G-35, Shastri Nagar, Meerut for pre- trap proceedings. All the above-assembled persons were introduced with each other and the purpose of assembling was explained. The complaint of the complainant A.K. Bansal addressed to SP CBI Dehradun was read over to all the above-mentioned persons and the complainant confirmed the contents of the said complaint. Thereafter, a practical demonstration of the use and utility of phenolphthalein powder was given to all the aforesaid persons. A piece of paper was treated with phenolphthalein powder and was given to PW4 A.P. Tiwari, who hold the same in his right hand. The said piece of paper was then taken back from him and was kept in an envelope, sealed and marked as D-1. Thereafter, a solution of sodium carbonate was prepared in a glass of water and PW4 A.P. Tiwari was asked to dip his right hand fingers in the said solution of soda. As soon as PW4 A.P. Tiwari dipped his right hand fingers in the said solution, the colour of the solution turned into pink. This pink coloured solution was kept in a phial and sealed and marked as D-2. Thereafter, personal search of all the above mentioned members of the trap party including H.C. Bisht, I.O. was conducted and nothing incriminating was found with them. Thereafter, PW1 A.K. Bansal, produced Rs.2500/- in the form of 25 3 G.C. Notes, each of denomination of Rs.100/- whose numbers are given below:- 1. 3ES 535046 2. 8GF 540036 3. 3EW 130589 4. 2C4 500974 5. 05L 725333 6. 7LS 227975 7. 8HV 843981 8. 9CN 367009 9. 8HL 356005 10. 5KM 044310 11. 2LQ 984476 12. 3DQ 658841 13. 4EL 584000 14. 5FC 750894 15. 3FA 340522 16. 0EM 405467 17. CT 939960 18. 5GH 150221 19. 6LS 605827 20. 5KB 527054 21. 8KF 609261 22. 7 KW 520106 23. 7 LC 661110 24. 3GL 717276 25. 1GN 703860 5. The above-mentioned G.C. notes were also treated with phenolphthalein powder and handed to the complainant with the instructions to give the same to the appellant-accused K.K. Tripathi on his demand. The remaining phenolphthalein powder was kept in an envelope and was sealed and marked as D-3. All the sealed articles were got signed by the witnesses and members of the trap party. Thereafter, all of them washed their hands with soap and water and ensured that no particle of phenolphthalein powder remain in their hands. The plan of the trap was chalked out and it was decided that the complainant A.K. Bansal would approach the appellant-accused and A.P. Vishnoi would accompany the complainant along with PW6 4 Sunil Kumar Bansal and they would act according to the circumstances. PW2 A.P. Vishnoi and PW6 S.K. Bansal were asked to hear the conversation between the complainant and the appellant-accused and to see the transaction of bribe between them. Other members of the trap party were also asked to take suitable positions nearby and to watch the developments. The complainant was asked to give signal of completion of the bribe transaction by touching his head with his right hand. The pre-trap proceedings were concluded at 7:30 AM and the memorandum of the proceedings was prepared, which is Ext.Ka-3 and the same was read over and explained to all the members of the trap party who had also put their signatures on the memorandum. 6. Thereafter, on the same day viz. 26.3.87 at about 9:45 AM, on receiving the pre-appointed signal from the complainant, PW7 H.C. Bisht, I.O., O.P. Sharma, Inspector, PW4 A.P. Tiwari, Pratap Singh and Lal Bahadur Singh, Constables, entered into the office-cum-residence of the appellant-accused K.K. Tripathi, Sub Divisional Inspector (North) Meerut, P & T Department, Meerut, situated in P&T Colony, Type III, Quarter No.1, Mavana Road, Meerut. PW2 A.P. Vishnoi, PW6 S.K. Bansal and PW1 A.K. Bansal were already present in the office-cum-residence of the appellant-accused before the entry of the rest of the members of the trap party. On being challenged to produce the bribe sum of Rs.2500/-, the accused became nervous and kept mum. It was pointed by PW2 Anand Prakash Vishnoi that the appellant-accused, at the time of demand of bribe sum of Rs.2500/- from the complainant, had asked the complainant to put the said sum of Rs.2500/- in a government envelope of P&T 5 Department supplied by the appellant-accused to the complainant. On search of the table of the accused, the aforesaid envelope was recovered from the table of the office-cum-residence of the appellant-accused. Since bribe sum was not touched by the appellant-accused, therefore, the hand wash of any of the fingers of the accused was not obtained in the solution of sodium carbonate solution. In the presence of all the aforesaid members of the trap party, the bribe sum, kept in the envelope, was taken out and the aforementioned 25 G.C. Notes, each of denomination of Rs.100, were recovered. Thereafter, the appellant-accused was taken into custody. After observing all the legal formalities, the personal search of the appellant-accused was taken who was found wearing pyajama and shirt and nothing was recovered from his person. Further, search of the wooden office table kept in the office-cum-residence of the accused, was taken and the following papers were recovered from the table drawer:- i) File containing fortnightly diaries of the appellant- accused and other misc. papers containing page 1 to 18. ii) Bunch of papers, page marked from page 1 to 36 containing application of Amar Singh, Anil Kumar Bansal (PW1) and Masood Khan for the post of EOBPM Sathla and their certificates. 7. Above documents were taken into possession. The bribe sum of Rs.2500/- recovered from the office table of the appellant-accused mentioned above was put back in the aforesaid envelope of P&T Deptt. in which the bribe money was found kept initially and the said envelope was sealed and signed by all the members of the trap party on 6 the spot. This envelope containing the bribe sum was kept in another envelope marked as R-1, which was also sealed on the spot and signed by all. Further, search of the office portion of said residential premises was conducted. Various officials papers, files, office hand books, P&T envelopes, P&T rule books etc. were recovered, which were not taken into custody. However, from the office steel almirah, one bunch of papers containing page 1 to 12, which was the inspection report of the appellant-accused dated 15.12.86 regarding inspection BO, Sathla, was recovered and was taken into custody along with receipt of registered letter. All the seized documents were duly signed by the members of trap party on the spot. The specimen of seal used in the trap proceeding mentioned above was also prepared on the spot in duplicate duly signed by the members of the trap party. The recovery memo of the entire trap proceedings was prepared on the spot, i.e. Ext.Ka-6 and the same was read over and explained to all the members of the trap party. 8. The site plan of the place of occurrence was also prepared on the same day, i.e. Ex.Ka-21. Later on the investigation of the case was entrusted to PW8 Sajid Ali, who obtained the sanction from PW5 Smt. Sunita Dwivedi, Director Postal Services, Dehradun for prosecuting the appellant-accused, the sanction order is Ex.Ka-17. During the course of investigation, the I.O. recorded the statements of the witnesses and collected documentary and oral evidence and on completion of investigation, he filed the charge sheet against the appellant-accused in the court under Sections 161 of IPC and Section 5(2) r/w 5(1)(d) of the Act. That charge sheet is Ex.Ka-22. 7 9. On 6.5.1988, after receiving the charge sheet, learned Special Judge, Anti-Corruption, Dehradun framed the charge against the appellant/accused u/s 161 of IPC and Section 5(1)(d) of the Act punishable under Section 5(2) of the Act. The charge was read over and explained to the appellant/accused who pleaded not guilty and claimed to be tried. 10. In order to prove its case, the prosecution examined P.W.1 Anil Kumar Bansal, complainant of the case, PW2 Anand Prakash, independent witness, PW3 Babu Lal, P.W.4 A.P. Tiwari, P.W.5 Smt. Sunita Dwivedi, who granted sanction for prosecuting the appellant- accused, P.W.6 Sunil Kumar Bansal, brother of the complainant, P.W.7 H.C. Bisht and P.W.8 Sazid Ali, Investigating Officers of the case. 11. Thereafter the statement of the appellant/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form who denied the allegations made against him. In defence, the appellant-accused has filed certain papers as documentary evidence and in oral evidence, he got examined Brij Mohan as DW1 and Rahul as DW2. 12. H.K. Sharma was also examined as court witness-1. After that the statement of the appellant- accused was again 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. 8 13. After hearing counsel for the parties and appreciating the material on record, learned Special Judge, Anti-Corruption, Dehradun vide judgment and order dated 21.4.1994 convicted and sentenced the appellant/accused as discussed above. Feeling aggrieved by the said judgment and order, the appellant/accused has preferred the present appeal before this Court. 14. To prove its case, the prosecution has examined the complainant Anil Kumar Bansal (P.W.1), who has stated that his father Kalu Ram was Sub Post Master at Sathla Post Office since last 40 years. On 15.12.1986, the appellant-accused had gone for inspection at Sathla Post Office and, on his dictation, his father had written the resignation letter. On the same letter, he was also asked to write that he is ready to work in the post office in place of his father. The appellant-accused had told his father that he would provide him job in place of his father. Thereafter, the resignation of his father was accepted and applications were invited for the vacant post. On 10.2.1987, he had also given an application for the said post. He further stated that the appellant-accused was enquiring the said matter and regarding the appointment the appellant had called him in his residence at P&T Colony, Meerut. On 22.3.1987, he along with his brother Sunil Kumar Bansal had gone in the house of the appellant-accused, which was office-cum- residence. It is further stated that when he made request for his appointment in the said post, the appellant-accused demanded Rs.5,000/- as bribe for showing favour to him in his appointment. When he showed his inability to give Rs.5,000/-, the appellant-accused asked to give Rs.2500/-. Since, he did not want to pay the bribe, hence he lodged a report at S.P., CBI, Dehradun on 24.3.1987. That report is Ex.Ka-2. Thereafter, SP, CBI enquired the matter from him 9 and send him to PW7 Sri H.C. Bisht, Dy. SP, who also enquired the matter from him. H.C. Bisht asked him to come at SBI Guest House on 26.3.1987 at 5-6 AM and also asked to bring bribe money with him. As per the instructions of H.C. Bisht, he along with his younger brother reached at SBI Guest House on 26.3.1987 at 6 AM. When he reached in the Guest House, four other persons of CBI and one another person named A.P. Tiwari (PW4) were already present there. After few minutes, one other person named A.P. Vishnoi (PW2) also arrived there. All the persons were introduced with each other and the purpose of assembling was explained. The report lodged by him was read over to all the persons present there. Thereafter, a piece of paper was treated with phenolphthalein powder and was given to PW4 A.P. Tiwari, who hold the same in his right hand. The said piece of paper was then taken back from him and was kept in an envelope. Thereafter, AP Tiwari dipped his fingers in the solution of soda and the colour of the solution turned into pink. The said piece of paper was sealed in an envelope marked as Ext.1 and the said paper was marked as Ext.2. The said solution was also kept in a phial and sealed, which is Ext.3. Thereafter, as per the instructions of PW7 H.C. Bisht, he produced Rs.2500/- in the form of 25 G.C. Notes. Numbers of the currency notes were note down by H.C. Bisht on a paper, which are Ext.4 to Ext.28. The above-mentioned G.C. notes were then treated with phenolphthalein powder and were handed to him with the instructions to give the same to the appellant-accused K.K. Tripathi on his demand. The remaining phenolphthalein powder was kept in an envelope and was sealed and marked as Ext.29. Thereafter all of them washed their hands with soap and water and personal search of each and every person of the trap party 10 was conducted. Thereafter, the plan of the trap was prepared and it was decided that A.P. Vishnoi (PW2) and his brother S.K. Bansal (PW6) would reach P&T Colony by scooter and rest of the persons would go by car. PW2 A.P. Vishnoi and PW6 S.K. Bansal were asked to hear the conversation between the complainant and the appellant- accused and to see the transaction of bribe between them. A memorandum of the trap proceedings was prepared, which is Ext.Ka-3 and the same was read over and explained to all the members of the trap party who also put their signatures on this memorandum. At 9 AM, he along with brother and A.P. Vishnoi reached in the office-cum- residence of the appellant-accused, who asked about A.P. Vishnoi. He introduced A.P. Vishnoi to the appellant- accused as his relative. It is further stated that the appellant-accused demanded bribe sum of Rs.2500/- from him and told that he does not take the bribe money on hand and asked him to put the said money in an envelope which was supplied by the appellant- accused. The appellant-accused further asked him to put the envelope containing bribe money in the table and told him that he will get it later on. He has proved the envelope Ext.30 supplied by the appellant-accused to him. After that his younger brother gave pre-appointed signal by touching his head with his hand. He further stated that after getting the money, the appellant-accused assured him that he will get appointment letter on 1.4.1987. On receiving the pre-appointed signal, PW6 H.C. Bisht along with other members of the trap party, entered into the office of the appellant-accused. On being challenged to produce the bribe money, PW2 A.P. Vishnoi told that the bribe money is on table. When the envelope Ext.30 was opened, the same 25 G.C. Notes, which were 11 mentioned in memorandum Ext.3 were recovered. Thereafter, the bribe money was kept and sealed in the same envelope Ext.30, which was got signed by all the members of the trap party. Thereafter, the search of the table was conducted from where the applications related to EDBPM and certain other papers were recovered and the same papers were taken into possession by PW7 H.C. Bisht. He has proved the application Ext.Ka-4 given by him for the aforesaid post. This witness was cross-examined at length by the defence counsel but nothing has come out from his evidence, which may create any doubt in his evidence. The evidence of this witness is reliable, believable and inspires confidence. 15. PW2 Anand Prakash, Retired Bank Officer was the member of the trap party. He is an independent eyewitness of the case and has fully supported the prosecution case as well as fully corroborated the evidence of PW1 A.K. Bansal, who is the complainant of the case. 16. PW3 Babu Lal has stated that he was posted as Office Supervisor at S.S.P.O. Meerut during the period January 1986 to June 1986. He stated that, during the aforesaid period, the appellant-accused was posted as Sub Divisional Inspector. He is well acquainted with the signatures of the appellant-accused. He has proved the forwarding letter Ext.Ka-11, endorsement Ext.Ka-11/1, acceptance note Ext.Ka-11/2, requisition letter Ext.Ka-12, notice Ext.Ka-13, letter Ext.Ka-14, paper Ext.Ka-15, reminder letter Ext.Ka-16. 17. PW4 A.P. Tiwari, Upper Division Clerk, Income Tax is an independent eyewitness of the case and has fully 12 supported the prosecution case as well as fully corroborated the evidence of PW1 A.K. Bansal, who is the complainant of the case. 18. PW5 Smt. Sunita Diwedi was posted as Director Postal Service in Dehradun in April 1987. She further stated that after examining all the relevant documents she granted sanction for prosecuting the appellant-accused. She has proved the sanction order Ext.Ka-17. In cross- examination, she stated that before granting sanction, she had perused the case diary, relevant documents, memo, etc. 19. PW6 Sunil Kumar Bansal is the brother of PW1 Anil Kumar Bansal. He has corroborated the statement of PW1 Anil Kumar Bansal. 20. PW7 H.C. Bisht, Deputy S.P. is the Investigating Officer of the case. He has stated that on 24.3.87 he was posted as Deputy S.P. at CBI/SPE. The investigation of the case was entrusted to him by the order of SP CBI Sri S.C. Sinha. He has proved the complaint Ext.Ka-2 lodged by PW1 Anil Kumar Bansal and the First Information Report Ext.Ka-18 lodged on the basis of this complaint. He has supported each and every step of the pre-trap demonstration and the trap proceedings. He had procured two independent witnesses, namely PW2 A.P. Bishnoi and PW4 A.P. Tiwari and had conducted all the proceedings in their presence. In his statement, he has narrated and reiterated the entire story and each and every 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 13 identified all the articles/phials/envelopes exhibited in the court and were used in the proceedings. 21. PW8 Sajid Ali is the Investigating Officer of the case. He has stated that in the year 1987 he was posted as Inspector in CBI. After the completion of the trap, the investigation of the case was entrusted to him. During the course of investigation, he recorded the statement of the witnesses, took into his possession all the documents which were in the possession of previous I.O., inspected the place of occurrence and obtained sanction Ext.Ka-17 for prosecuting the appellant-accused and on completion of the investigation, he filed the charge sheet in the court, which is Ext.Ka-22. 22. Thereafter the statement of the appellant/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form who denied the allegations made against him. In defence, the appellant-accused has filed certain papers as documentary evidence and in oral evidence, he got examined Brij Mohan as DW1 and Rahul as DW2. 23. D.W.1 Brij Mohan has stated that he was posted as E.D.R. at Post Office Alipur, Morana, District Meerut from the period 1970 to May 1992 and in 1992 he came in Morana Post Office on promotion. He further stated that at that time Anil Kumar Bansal was posted as Sub Postmaster in Post Office Sathla and before him Kaluram Bansal was posted as Sub Postmaster. He further stated that the appellant-accused was also known to him. He (appellant-accused) was posted as Inspector in his department in Meerut. He further stated that the appellant- accused had never called the complainant A.K. Bansal 14 through him in Morana or in any other place. In cross- examination, he stated that the appellant-accused was his Inspector and Alipur Morana was under his work jurisdiction. He further stated that the appellant-accused was the competent authority to take action in case of any mistake found in Alipur. The appellant-accused used to come in Alipur Morana for inspection. He further stated that whatever the appellant-accused had told him, he does not remember. 24. DW2 is Rahul, Sub Divisional Inspector, Post Office Meerut. He has stated that the appellant-accused was posted as S.D.I. in his department till the end of March 1987. He further stated that SDI, Postal Branch, used to conduct inspection of the post office area and four copies of the inspection report used to prepare. One report used to give to the post office of the concerned branch, two copies to S.S.P. Post Office, Meerut and fourth copy was kept with the Inspector. In the court below, this witness produced inspection report dated 15.12.1986 which was related to Shakha Dakpal. At that time, Kalu Ram Bansal was Shakha Dakpal. According to this report, Kalu Ram Bansal was 63 years of age and he was found unfit for this post. He filed the copy of inspection report Ext.Kha-3 and a letter Ext.Kha-4 regarding age of concerned Shakha Dakpal. He has proved the explanation Ext.Kha-5 given by Kalu Ram Bansal. He further stated that SSPO Meerut had accepted the resignation of Kalu Ram Bansal on 12.3.87, copy of which is Ext.Kha-6. He further stated that vide letter dated 20.3.87 (Ext.Kha-7) of SSPO