Crl.A.No. 67/2005 Page 1 of 43 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.A.No. 67/2005 % Reserved on: 11th March, 2010 Date of Decision: 22nd March, 2010 # MADAN LAL ..... Appellant ! Through: Mr. N.K. Sharma, Adv. versus $ THE STATE N.C.T. OF DELHI ..... Respondent ^ Through: Mr. Jaideep Malik, APP * CORAM: HON'BLE MR. JUSTICE V.K. JAIN 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes : V.K. JAIN, J. 1. This is an appeal against the judgment dated 16th December 2004 and Order on Sentence dated 24th December 2004 whereby the appellant was convicted under Section 7 and 13(2) of Prevention of Corruption Act read with Section Crl.A.No. 67/2005 Page 2 of 43 13(1)(d) thereof and was sentenced to undergo R.I. for one year and to pay fine of Rs.5,000/- on each count or to undergo R.I. for two months in default of payment of fine. 2. On 13th December 1988, the complainant Surender Pal Singh came to the office of Anti Corruption Branch and made a complaint of demand of bribe by the appellant Madan Lal. He alleged that House No.4583, Gali Natthan Singh, Pahari Dheeraj, Delhi owned by his father Sh. Harpal Singh had been let out to a tenant Mani Ram Gupta, who vacated the same on 28th May 1988. He claimed that Mani Ram Gupta had stopped his business in March 1986. He further stated that electricity meter installed in that house had been removed and all the dues of DESU had been paid. Since they wanted a new power and light meter in that house, he went to DESU office, Motia Khan, to make enquiry in this regard. The appellant, who was Head Clerk in DESU office, met him and told him that since lesser electricity was consumed by Mani Ram Gupta between 1982-1988, another bill on average basis will be prepared for the period since 1982, which will come to about Rs.15,000/- and he will have to pay that amount. When the complainant said that his was a huge amount, the appellant offered to Crl.A.No. 67/2005 Page 3 of 43 prepare a bill of about Rs.1500/- and told the complainant that for this purpose, he will have to pay Rs.800/- to him as bribe. The complainant conveyed acceptance of his demand to the appellant and then went to the office of Anti Corruption Branch along with the money, seeking proper action, against the appellant. The statement of the complainant was recorded in the presence of Panch Witness Jagdish Singh, LDC in Ward XVIII of Sales Tax Office. The number of eight currency notes in the denomination of Rs.100/- produced by the complainant were noted in the Raid Report and those currency notes were treated with Phenolphthalein Powder. Demonstration was also given to the complainant and the Panch Witness by making them touch the currency notes treated with Phenolphthalein Powder, from his hand and then taking wash of his hand in Sodium Carbonate, which changed its colour and became pink. It was explained to the complainant and the Panch Witness that if anyone touches the currency notes treated with Phenolphthalein Powder or keeps them in his pocket, his hand or pocket, as the case may be, would become pink when washed with Sodium Carbonate solution. The currency notes treated with Phenolphthalein Powder were then handed over to Crl.A.No. 67/2005 Page 4 of 43 the complainant, who kept them the left pocket of his shirt, which was empty at that time. He was asked to strike the deal and talk in such a manner that the Panch Witness was able to hear the conversation. The Panch Witness was asked to give signal by putting his hand on his head, after the bribe money was accepted. Thereafter, all the persons cleaned their hands and the glass used for giving demonstration was also cleaned. At about 1.30 PM, the Investigating Officer, along with the complainant, Panch Witness and other members of the raiding party reached DESU office, Motia Khan, Paharganj. At about 1.35 PM, the complainant informed him that the appellant was playing chess and had asked him to come after 2 PM. At about 2.10 PM, the complainant and Panch Witness again went to room No.208, where the appellant used to be on duty. At about 2.15 PM, Panch Witness Jagdish Singh came out of room No. 208 and gave a pre-decided signal, whereupon the raiding party entered room No. 208 and challenged the appellant, asking him as to whether he had taken Rs.800/- as bribe from the complainant Surender Pal Singh. The appellant became nervous and started apologizing for his mistake. The complainant informed the Investigating Officer that the Crl.A.No. 67/2005 Page 5 of 43 appellant had kept the money in the right side inner pocket of his coat from his left hand. The offer of the Investigating Officer to search him was declined by the appellant. The Investigating Officer then recovered eight currency notes in the denomination of Rs.800/- from the inner right side pocket of his coat and tallied their numbers with the numbers noted in the Raid Report and found that they tallied with each other. The currency notes were then seized. On taking wash of the left hand of the appellant in Sodium Carbonate solution, its colour turned pink. That solution was poured into two separate bottles, which were duly sealed, signed and labeled and then seized. The appellant was then made to take off his coat and wash of the inner right pocket of the coat was then taken in Sodium Carbonate solution, after reversing the coat. The solution turned pink. That solution was also poured into two separate bottles, which were duly sealed, signed and labeled. The coat of the appellant was also seized after it had been duly sealed. The specimen impression of the seal was then taken and got signed from the witness and the seal was handed over to the Panch Witness. The complainant told the Investigating Officer that as soon as he entered the room along Crl.A.No. 67/2005 Page 6 of 43 with the Panch Witness, the appellant told him that he had done his work and had prepared the bills in the name of Mani Ram. Two bills were delivered by the appellant to the complainant, which the complainant handed over to the Investigating Officer and were seized by him. The Panch Witness Jagdish Singh also corroborated the statement made by the complainant to the Investigating Officer. 3. The prosecution examined 15 witnesses in support of its case. One witness was examined in defence. 4. The complainant came in the witness box as PW-6 and stated that they had applied to DESU office at Motia Khan for installation of power and light meter at house No. 4582, Gali Natthan Singh, Pahari Dheeraj, which was owned by his father. He further stated that Mani Ram Gupta, a tenant in that house had vacated the house and paid all the dues of DESU. He further stated that when he went to enquire about the connection, he was told that their file was with the appellant Madan Lal, who used to sit in room No. 208 of DESU office, Motia Khan. When he met the appellant, he told him that since Mani Ram had been consuming less electricity from 1982-1988, a bill on average basis will have to be prepared Crl.A.No. 67/2005 Page 7 of 43 and they will have to pay about Rs.15,000/-. When he told the appellant that they cannot pay that much amount, he told him that he can prepare a bill for Rs.1500/- but, for doing that Rs.800/- will have to be paid as bribe. The appellant wanted payment of the bribe money by the evening of 13th December 1988. He further said that he went to the office of Anti Corruption Branch, lodged the complaint Ex.PW-6/A and gave eight currency notes in the denomination of Rs.100/- to them. A demonstration was given to them by touching the hand of Panch Witness with the treated notes and washing it in a colourless solution prepared from another powder. The Solution turned pink. They were told that the hand of anyone, who touches those notes, will turn the solution pink if the hand was washed in the solution. The currency notes were then given back to him and were kept by him in the left side pocket of his shirt. The Panch Witness was asked to watch the transaction, overhear their talks and give signal by putting his hand over his head, after the money was accepted by the accused as bribe. He further stated that when he, along with the Panch Witness, went to room No.208, the appellant was found playing chess outside the office room and asked him to Crl.A.No. 67/2005 Page 8 of 43 come after sometime. When he again went to room No. 208 after sometime, along with the Panch Witness, the appellant told him that he had done his work and asked him to give the money. The appellant also gave two bills to him. According to the complainant, he then took out the money and gave the same to the appellant, who kept the money in the inside pocket of his coat. The Panch Witness then went outside the room and gave the signal, whereupon the raiding party came inside the room. The Inspector disclosed his identity to the appellant and challenged him saying that he had accepted Rs.800/- as bribe from the complainant. The appellant became nervous. The currency notes were then recovered by the Inspector and their numbers were tallied with the pre Raid Report and were found to be the same. The hand of the accused was washed in colourless solution, which turned pink. It was the same hand with which the appellant had accepted the money. The currency notes Ex.P-1 to P-8 as well as the bottles, in which the solution was transferred, were seized. The pocket of the coat of the appellant was also washed and as a result, the solution turned pink. The coat of the appellant as well as the bills, which he had given to the Crl.A.No. 67/2005 Page 9 of 43 complainant, were also seized. 5. The Panch Witness Jagdish Singh came in the witness box as PW-4 and corroborated the deposition of the complainant. He stated that on 13th December 1988, he was present in the office of Anti Corruption Branch being on duty there on that day. He further stated that the complainant Surender Pal Singh came to Anti Corruption Branch and his statement was recorded and read over to him in his presence. The complainant signed the statement and produced eight currency notes, numbers of which were noted down by the Inspector. The notes were then treated with some powder, which he was made to touch. His hand was then washed in the solution of Sodium Carbonate, which turned pink. He further stated that when he along with the complainant went to room No. 208. Nobody was available there and they were informed that the appellant had gone for lunch. After lunch hour, they again went to room No. 208, where the appellant was found sitting. On enquiry made by the complainant, the appellant told him that his work had been done. The complainant then took out money from the pocket of his shirt and handed over the same to the appellant, who accepted Crl.A.No. 67/2005 Page 10 of 43 those notes with his left hand and kept the money in the right side inner pocket of his coat, which he was wearing at that time. The then gave pre arranged signal, whereupon the raiding party came inside and took possession of the bills lying in the drawer of the table of the appellant. In his examination- in-chief, the Panch Witness stated that the appellant was then brought to the office of Anti Corruption Branch in Tiz Hazari, where the money was recovered from the pocket of his coat and wash of the left hand of the appellant as well as that of the pocket of his coat was taken in solution which turned red. However, during cross-examination by the learned Addl. PP, he stated that the tainted notes were recovered from the spot and washes were taken on the spot and not in the office of Anti Corruption Branch. 6. PW-9 Rameshwar Das is an officer of Delhi Vidyut Board, who has stated that the electricity bills Ex.P-15 and P-16 were prepared in their office He has also proved the application Ex. PW-6/H submitted by the brother of the appellant namely Bijender Pal Singh for electric connection. PW-10 Sh. Anand Sarup, who was working as Superintendent in the office of Assistant Finance Office of DESU has proved the bills Ex.PW- Crl.A.No. 67/2005 Page 11 of 43 10/A and PW-10/B but, has admitted that these bills do not bear signature of Superintendent and AFO and incomplete bills cannot be given to the consumer. PW-13 Sh. K.L. Maurya was the Account Superintendent in DESU and the appellant Madan Lal was working under him. He stated that calculations on the back side of the bill Ex.P-16 are in the hand of the appellant Madan Lal. The second copy of the bill Ex.P-16, according to the witness, also bears the signature of the appellant Madan Lal. 7. PW-15 ACP Abhey Ram is the Investigating Officer of this case, who recorded the complaint Ex.PW-6/A and laid the trap. He also corroborated the deposition of the complainant and stated that after entering room No. 208 on seeing the signal given by Panch Witness, he challenged the appellant, after disclosing his identity, searched the coat, which he was wearing and recovered currency notes Ex.P-1 to P-8 from the inner right side pocket of his coat. According to him, he also took wash of the left hand and right side inner pocket of the coat of the appellant and the solution then turned pink. He also seized two electricity bills Ex.P-15 and P-16 from the complainant Surender Pal Singh. Crl.A.No. 67/2005 Page 12 of 43 8. In his statement under Section 313 of Cr.P.C., the appellant admitted that on 13th December 1988, he was on duty in room No. 208 in DESU office, Motia Khan at about 2.15 PM. He denied the complainant having met him and he having demanded bribe from him. He denied that the complainant met him in his office on 13th December 1988. He denied accepting bribe from the complainant and delivering the bills Ex.P-15 and P-16 to him. He denied the recovery of currency notes from the pocket of his coat as also the wash of his hand and the pocket of his coat. According to him, on 13th December 1988, he had hung his coat on the back of his chair while going to toilet. He came back after about 15 minutes and wore his coat. He was informed by some colleague that during his absence, some friend of his came to meet him and was enquiring about him while standing near to his seat. He further stated that after sometime 3-4 persons came inside his room, brought him outside the office and took him to the office of Anti Corruption Branch in vehicle where he was asked to take off his coat. DW-1 Daya Ram was working as LDC in DESU office, Motia Khan. He has stated that on 13th December 1988, the appellant Madan Lal had gone to toilet Crl.A.No. 67/2005 Page 13 of 43 after hanging his coat on the chair. In the meantime, one person came to the office and wanted to meet Madan Lal, claiming him to be his friend. That person put something in the inner pocket of the coat of Madan Lal. He claimed that he had objected to that person putting something in the pocket of the coat of Madan Lal, but, that person immediately went outside office. Madan Lal, on return from the toilet, wore his coat. In the meantime, 3-4 persons came inside, took Madan Lal with them and made him sit in a government vehicle parked outside the office, claiming that they were from Anti Corruption Branch. 9. Pointing out the contradictions/discrepancies noted below, it was contended by the learned counsel for the appellant that in view of these contradictions and discrepancies, it will not be safe to rely upon the testimony of the complainant and the Panch Witness. (a) According to the Panch Witness Jagdish Singh, the appellant was not present in his office when they went there and some other person informed them that he had gone for lunch, whereas according to the complainant, the appellant was present there playing chess and had asked him to come Crl.A.No. 67/2005 Page 14 of 43 after lunch. (b) The Panch Witness does not say that when they met the appellant in his office, he asked the complainant for the money whereas according to the complainant, the appellant told him that he had done his work and asked him to give the money. (c) According to the Panch Witness, the statement of the complainant in the office of Anti Corruption Branch was not recorded in his presence, whereas according to the complainant, the Panch Witness was present in the office of Anti Corruption Branch when he made the complaint. (d) According to the complainant, the two bills prepared by the appellant were given to him by the appellant and he handed them over to the IO whereas according to the Panch Witness, the bills were seized by the IO from the table of the appellant. 10. It was also contended by the learned counsel for the appellant that since the bills prepared by the appellant were not signed by his superior officers, the amount of bills could not have been deposited in the office of DESU without signatures of those officers, and hence it was not likely that Crl.A.No. 67/2005 Page 15 of 43 the appellant would have given those bills to the complainant. 11. I find that in the cross-examination of PW-4, Jagdish Singh, a specific suggestion was given to him that the appellant was playing chess inside his office when they first visited the office during lunch hour. By giving this suggestion, the appellant himself has admitted that he was present in his office during lunch hour and was playing chess there as stated by the complainant. Therefore, the contradiction in the testimony of complainant on one hand and the Panch Witness on the other hand, on this aspect becomes immaterial. Even otherwise, it is unrealistic to expect an uninterested witness to recollect with an absolute precision and accuracy, all the details of the event witnessed by him years before he is questioned in respect of those details. 12. As regards seizure of electricity bills, a perusal of the seizure memo Ex.PW-6/G, which has been signed by the complainant as a witness shows that the original bills Ex.P-15 and Ex.P-16 were handed over by the complainant to the Investigating Officer, and were seized. Another seizure memo, Ex.PW-4/X, which bears signature of the Panch Witness Jagdish Singh shows that the carbon copies of the bills Ex.P- Crl.A.No. 67/2005 Page 16 of 43 15 & Ex.P-16, which were lying on the table of the appellant, were seized vide this memo. The carbon copies of the bills are Ex.PW-10/A & Ex.PW-10/B. Therefore, the complainant is right in saying that the appellant had delivered two bills to him and he had handed over those bills to the Investigating Officer. The complainant is referring to the original bills Ex.P-15 and Ex.P-16. The Panch Witness is also right in saying that the two bills lying on the table of the appellant were seized by the Investigating Officer. He obviously is referring to the carbon copies Ex.PW-10/A & Ex.PW-10/B, which were seized from the table of the appellant. Therefore, there seems no contradiction in the testimony of the complainant and the Panch Witness Jagdish Singh on this aspect of the case. 13. A perusal of Ex.PW-6/B, which is the endorsement on the FIR lodged by the complainant Surender Pal Singh and which bears signatures of the complainant as well as the Panch Witness Jagdish Singh shows that the statement of the complainant in the office of ACB was recorded in the presence of Panch Witness Jagdish Singh. This document being a contemporaneous record having been prepared at the time statement of the complainant was recorded in the office of Crl.A.No. 67/2005 Page 17 of 43 ACB, there is absolutely no reason to disbelieve the version given by the complainant which also stands corroborated by the IO ACP Abhay Ram, who has specifically stated that the statement of the complainant was recorded in the presence of the Panch Witness Jagdish Singh. Even according to the Panch Witness Jagdish Singh, the statement of complainant was read over to the complainant in his presence and was signed by him after admitting the same to be correct. The deposition of the Panch Witness Jagdish Singh to the extent that the statement of the complainant was not recorded in his presence but was only read over to him can be safely attributed to imperfect recollection of an event which took place as many as 15 years before he was cross-examined in the trial court on 24th July, 2003. 14. The Courts need to appreciate that the mind of a human being is not like the memory of a computer or a tape recorder where events can be fed and stored for all times to come and later on retrieved verbatim, without any variation. Since a human being is not a machine, some variations on issues which do not form core part of the incident witnessed by him are bound to occur, particularly when the witness is examined Crl.A.No. 67/2005 Page 18 of 43 after a considerable time. Such minor contradictions far from destroying the credibility and reliability of the witness, would rather show that he is a truthful and natural witness and that is why those variations are present in his testimony. The core part of the testimony of the complainant and Panch Witness was the acceptance of money by the appellant from the complainant and recovery of that money from the pocket of his coat. There is absolutely no contradiction in the testimony of complainant and Panch Witness on these core parts of their testimony. 15. There is no contradiction as such in the testimony of the Panch Witness Jagdish Singh on one hand and that of the complainant on the other hand, on the question as to whether the appellant had demanded money from the complainant on 13th December, 1988, or not. The Panch Witness Jagdish Singh does not say that no money was demanded in his presence, he does not refer to any such demand in his deposition during trial. The omission of the Panch Witness Jagdish Singh to refer to the demand of money cannot be said to be material considering the considerable delay between the date of raid and the date on which the Panch Witness Jagdish Crl.A.No. 67/2005 Page 19 of 43 Singh was examined in the court. In any case, even if it is presumed that the appellant did not specifically demand money from the complainant on 13th December, 1988 that would make no difference to the outcome of the case, once it is proved that the appellant had accepted gratification other than legal remuneration from the appellant as a motive or reward for preparing a bill on the pretext that though he was required to pay Rs.15,000/- on account of less electricity consumed by Mani Ram, he would be made to pay only Rs.1,500/- to Delhi Vidyut Board, if he paid Rs.800/- to the appellant. 16. I find no merit in the contention that since the