IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.613 of 2008 Date of decision : June 1, 2011 State of H.P. ….Appellant Versus Roshan Lal …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the Respondent : Mr. M.S. Guleria, Advocate. Surjit Singh, Judge(Oral) State has appealed against the judgment dated 10th June, 2008 of learned Special Judge, Hamirpur, whereby respondent Roshan Lal, who was tried for offences, under Sections 7 & 13(2) of the Prevention of Corruption Act, 1988, stands acquitted. 2. Respondent Roshan Lal was employed as WDT Member (Agriculture/Horticulture), in the Office of Block Development Officer, Bamsan, on contract basis, in the year 2005. One of the jobs of the respondent, in his capacity as WDT Member, was to co-ordinate between plant nurseries and Micro Water Shed Societies, for supply of nursery plants to such societies. He got supplied plants worth `1,64,181/- to various societies, from PW-1 Whether reporters of the local papers may be allowed to see the judgment? …2… Rajesh Kumar. Out of the aforesaid amount of `1,64,181/-, a sum of `94,994/- was paid in cash and a sum of `12,600/- was paid by means of a cheque to PW-1 Rajesh Kumar. Remaining amount of `56,587/- was, however, not paid by the respondent. 3. PW-1 Rajesh Kumar made demands for the aforesaid remaining amount, on different occasions. Respondent allegedly demanded bribe, at the rate of `1/- per plant supplied. Total number of the plants supplied was 32200. It appears from the testimony of PW-1 Rajesh Kumar that before the orders were placed with him, for supply of plants, there was some settlement between him (PW-1 Rajesh Kumar) and the respondent that the latter would be paid commission at the rate of `1/- per plant. 4. On 24th October, 2005, PW-1 Rajesh Kumar, accompanied by his mother’s sister’s husband, PW-3 Bihari Lal, went to the office of PW-19 Hardesh Bisht, then working as Additional Superintendent of Police, Anti Corruption at Hamirpur and lodged FIR Ex. PW-1/A that the respondent had been demanding bribe of `32,200/-, for releasing the remaining amount of `56,587/-, which was due to him, on account of balance price of plants supplied by him to various Micro Water Shed Societies, on the asking of the respondent. It was also complained that the respondent had already received `26,100/- from two societies for payment to him, but was insisting that he …3… retained the said amount against the amount of `32,200/- and demanded additional amount of `5,000/-. 5. PW-19 Hardesh Bisht, after registering the FIR, directed PW-1 Rajesh Kumar to produce currency notes of `5,000/-, on the very next day, in his office, at 7 a.m. PW-1 Rajesh Kumar, again accompanied by his mother’s sister’s husband, PW-3 Bihari Lal, went to the office of PW-19 Hardesh Bisht, on the next day, at the aforesaid time, with currency notes of `5,000/-. Those currency notes were of the denomination of `500/- each. They numbered ten. Those currency notes were treated with phenolphthalein powder by PW-19 Hardesh Bisht and returned to PW-1 Rajesh Kumar, with instructions not to fiddle with them until the same were handed over to the respondent, on demand. It was demonstrated to PW-1 Rajesh Kumar and PW-3 Bihari Lal, how solutions of phenolphthalein powder and sodium carbonate, on being mixed, turned pink. PW-1 Rajesh Kumar was then directed to go to the shop of PW-3 Bihari Lal, because the respondent had allegedly demanded that the money be paid to him at the shop of PW-3 Bihari Lal. PW-3 Bihari Lal was required to accompany PW-1 Rajesh Kumar and to act as shadow witness. He (PW-3 Bihari Lal) was directed to signal, on payment of bribe money by PW-1 Rajesh Kumar to the respondent, by giving a knock at the …4… door of the room, in the building of PW-3 Bihari Lal, where the Police Party was to wait. 6. As per instructions of PW-19 Hardesh Bisht, PW-1 Rajesh Kumar, accompanied by PW-3 Bihari Lal, went to the latter’s shop at Hamirpur. The Police Party, accompanied by PW-2 B.D. Sharma, District Revenue Officer, went to one of the residential rooms, forming part of the building, in which the aforesaid shop is located. Around 9.15 a.m., respondent allegedly went to the shop of PW-3 Bihari Lal. He took PW-1 Rajesh Kumar to a room, forming part of the same building. There he demanded the bribe money. He was paid the tainted currency notes of `5,000/-. Respondent allegedly put those currency notes in a bag Ex. P-8, which he was carrying with him. When the respondent accepted the bribe money, prefixed signal was given to the waiting Police Party. PW-19 Hardesh Bisht accompanied by PW-2 B.D. Sharma, District Revenue Officer, went to the room, where the respondent and PW-1 Rajesh Kumar were present. PW-3 Bihari Lal also went with them to that room. Respondent was caught hold of by his wrists and was made to wash his hands. Hand-wash was collected in a container. Solution of sodium carbonate was added to the hand-wash. It turned pink. The hand-wash was secured in a nip Ex. P-5 and sealed. Respondent was then asked to produce the currency notes, which he had …5… received from PW-1 Rajesh Kumar. He told that the money was in the bag Ex. P-8, which he was holding. Zip of that bag was opened and the tainted currency notes, numbering ten, were recovered therefrom. In addition to that fifty currency notes of the denomination of `100/- each were also found in that bag. Ration card and an identity card of the respondent were also recovered from that bag. 7. Respondent was arrested. Learned Special Judge was approached to seek his police remand. He was remanded in police custody. On 27th October, 2005, while in police custody, respondent made a statement that he had kept a sum of `21,600/- in an almirah, in his house, wrapped in a white paper-sheet, on which it was written that the money was meant to be paid to PW-1 Rajesh Kumar, on account of the price of plants supplied by him to two named Micro Water Shed Societies. That statement was reduced into writing. That writing is Ex. PW-16/C. Pursuant to that statement, currency notes of `21,600/-, wrapped in a white paper, were recovered from an almirah, lying in the house of the respondent. On that white paper, it was written that the money was payable to PW-1 Rajesh Kumar, on account of the price of the plants supplied by him to two Societies, named Micro Water Shed Societies Salakhar and Dashmal. `18,225/- …6… were payable by the Dashmal society and `3,775/- by Salakhar society. 8. On completion of investigation, report, under Section 173 of the Code of Criminal Procedure, alongwith relevant papers, was filed in the Court of learned Special Judge, who, after complying with the requirement of Section 207 of the Code of Criminal Procedure, and hearing both the sides and perusing the record, felt that a prima facie case, under the aforesaid provisions of Prevention of Corruption Act, 1988, was made out against the respondent and charged him accordingly. Respondent pleaded not guilty to the charge and was, therefore, tried. 9. Prosecution examined 19 witnesses to bring the charge home to the respondent. Respondent took the plea of denial simplisiter. He stated that PW-1 Rajesh Kumar happened to quarrel with him, with respect to the price of the plants and because of that he got him falsely implicated in this case. 10. Learned trial Court concluded that the case of the prosecution did not stand established, beyond reasonable doubt, and acquitted the respondent. 11. I have heard learned Assistant Advocate General, as also learned counsel representing the respondent and gone through the entire record. …7… 12. PW-3 Bihari Lal did not support the prosecution story. He denied that PW-1 Rajesh Kumar ever complained to him that the respondent had demanded bribe or that the bribe money was paid to the respondent by PW-1 Rajesh Kumar and recovered from bag Ex.P-8 of the respondent. He stated that the money was lying on a bed, in one of the rooms of his building, in which the respondent and PW-1 Rajesh Kumar had gone and that the police recovered that money from the bed. Prosecution cross-examined the witness, with the leave of the Court. In the cross-examination, he stated that he accompanied PW-1 Rajesh Kumar to the office of Anti Corruption at Hamirpur and FIR was lodged in his presence. Also, he admitted that currency notes of `5,000/- were tainted with phenolphthalein powder in the office of Vigilance people, in his presence. He, however, denied the suggestion that bribe money was paid by PW-1 Rajesh Kumar to the respondent and it was recovered from bag Ex. P-8, which the respondent was holding. 13. PW-1 Rajesh Kumar and PW-19 Hardesh Bisht, however, testified the aforesaid version of the prosecution. PW-2 B.D. Sharma, District Revenue Officer, who was associated as an independent witness, also testified that currency notes were recovered from bag Ex. P-8 and that alongwith the currency notes, a ration …8… card and an identity card of the respondent were also recovered. 14. Prosecution examined the witnesses of the alleged disclosure statement, made by the respondent, leading to discovery of currency notes of `21,600/-, wrapped in a white paper-sheet, with scription that the money had been received from the two Societies for being paid to PW-1 Rajesh Kumar. They are PW-16 Rajesh Kumar and PW-17 Manoj Kumar. Both of them stated that the respondent had made a statement that he had kept, in an almirah in his house, currency notes of `21,600/-, wrapped in a paper, on which he had written that the money was payable to PW-1 Rajesh Kumar, on account of the price of plants supplied by him to two societies. He stated that the said statement had been reduced into writing, vide Memo Ex. PW-16/C. PW-19 Hardesh Bisht stated that the said disclosure statement had been made by the respondent on 27th October, 2005, in the presence of the above-named two independent witnesses. PW-16 Rajesh Kumar and PW-5 Pankaj Kaura stated that currency notes, wrapped in a paper, had been recovered from an almirah, in their presence, and were taken into possession vide Memo Ex. PW-5/A. 15. Currency notes of `21,600/-, allegedly recovered from the residence of the respondent, were …9… released to PW-1 Rajesh Kumar, before the start of the trial. However, the paper-sheet, in which those currency notes were wrapped and on which there was the alleged writing of the respondent, that the money had been received by him from two societies, on account of the price of the plants supplied by PW-1 Rajesh Kumar, was supposed to have remained with the police. That paper was not produced during the trial nor was any explanation put forward for withholding the same. Therefore, the prosecution is liable for an adverse inference that there was no paper-sheet, bearing a writing that the money pertained to the price of plants supplied to two societies and was payable to PW-1 Rajesh Kumar. 16. Prosecution has also not led any other evidence to connect the money, allegedly recovered from the residence of the respondent, with the price of plants due to PW-1 Rajesh Kumar, from the two societies, mentioned in recovery Memo Ex. PW-5/A. According to the prosecution, the money had been received by the respondent from Dashmal and Salakhar societies. Prosecution examined the Secretaries of the two societies. Secretary of Dashmal society is PW-17 Manoj Kumar. The witness stated that he had handed over `20,000/- to the respondent, for being paid to PW-1 Rajesh Kumar. However, Memo Ex. PW-5/A indicates that …10… on the paper, in which the currency notes were wrapped, it was written that out of the total money wrapped in the paper, `18,225/- pertained to the plants supplied to Dashmal society. This alleged scription on the paper- sheet is contradictory to the testimony of PW-17 Manoj Kumar, so far as the amount is concerned. So is the case with respect to the other society, namely Salakhar. Secretary of that society is PW-11 Sarvansh Singh. This witness stated that he handed over a sum of `5,451/- to the respondent, but as per Memo Ex. PW-5/A, amount received from Salakhar society, by the respondent, was `3,375/-. 17. Evidence of the prosecution, with regard to trap and the recovery of tainted money from the respondent, is also doubtful. As already noticed, PW-3 Bihari Lal, though a close relative of PW-1 Rajesh Kumar, has not supported the prosecution version, especially with respect to the recovery of tainted money from the bag of the respondent. Testimony of complainant PW-1 Rajesh Kumar is contradictory to the testimony of PW-2 B.D. Sharma, District Revenue Officer and PW-19 Hardesh Bisht, with respect to the place, where the Police Party waited for the signal, regarding the acceptance of bribe money. According to PW-1 Rajesh Kumar, Police Party, headed by PW-19 Hardesh Bisht, Police Officer, waited in the shop of Bihari Lal, but PW-19 Hardesh Bisht and PW-2 …11… B.D. Sharma, District Revenue Officer, stated that they were in one of the bed rooms of the building of PW-3 Bihari Lal. In view of the above discussion, I do not think this is a fit case for interfering with the judgment of acquittal recorded by the trial Court. Hence, the appeal is dismissed. June 1, 2011(sd) ( Surjit Singh ), J