IN THE HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 206 of 2005 Tungal Singh Tomar S/o Late Sri Chet Ram Tomar ………… Appellant Versus State of Uttarakhand ………… Respondent Mr. Rakesh Thapliyal, Advocate assisted by Mr. Atul Bhatt, Advocate for the appellant. Mr. Amit Bhatt, Addl. G.A.with Mr. B. S. Parihar, Brief Holder for the State. Judgment Hon’ble J.C.S. Rawat, J. This criminal appeal has been filed against the judgment and order dated 07.11.2005 passed by the then Addl. Sessions Judge/2nd F.T.C., Nainital in S.T. No.7/2000, whereby the Addl. Sessions Judge has convicted the accused/ appellant and sentenced him to undergo rigorous imprisonment for a period of two years and a fine of Rs.5,000/- u/s 7 of Prevention of Corruption Act, 1988. It was further directed that in default of payment of fine, the accused/appellant would further undergo simple imprisonment for a period of three months. The accused/appellant was also convicted & sentenced to undergo rigorous imprisonment for two years and a fine of Rs.5,000/- u/s 13 (1) (D) read with 13 (2) of the Prevention of Corruption Act, 1988. It was further directed that in default of payment of fine, the accused/appellant would further undergo simple imprisonment for a period of three months. Both the sentences would run concurrently. 2. Brief facts for the disposal of this appeal are that Jagmohan Jaiswal, father of the complainant Rajesh Mohan purchased a plot in Dehradun and took a loan of Rs. 80,000/- 2 from the Co-operative Society in the year 1989-90 for the construction of a house over the plot. When loan was sanctioned by the Co-operative Society, the documents of the said plot were pledged with the Society and the insurance of the father of the complainant was made with the Life Insurance Corporation. The father of the complainant Jagmohan Jaiswal died on 16/10/1996 and the amount of Rs.60,575/- was received by the Society from the Life Insurance Corporation whereas the rest amount of Rs.3087.20 was deposited by the complainant to the Society on 20/11/1996. The complainant made several requests to return the original documents which were pledged with the Society. He also deposited the amount of Rs.135/- which was said to have been due against him towards his entire dues. On 25/06/1998 the complainant went to the office of the accused/appellant alongwith Sarvjeet Singh Sethi. The accused/appellant demanded a sum of Rs. 2,000/- for the return of the said registered sale deed. At last, the accused/appellant agreed to return the said papers on the payment of Rs.500/- only. The complainant instead of paying the illegal gratification, gave an application to the Superintendent of Police, Vigilance and the S.P. Vigilance made an enquiry through an Inspector. When it is revealed that the facts narrated in the application are true, trap was arranged. On 29/06/1998 the trap party including two independent witnesses Prem Singh and Nanak Chandra were taken. Thereafter, the Inspector who conducted the trap asked the complainant to go to the office of the accused/appellant to see whether he is sitting in the office or not. When the complainant informed the Inspector that the accused/appellant is sitting in the office, the trap was conducted on 29/06/1998 at about 11.00 a.m. in the office of the accused/appellant. The currency notes of Rs.500/- consisting of five notes of Rs.100/- each 3 which were treated with phenolphthalein powder in presence of the witnesses prior to the conducting of the raid, were recovered from the possession of the accused/appellant. Thereafter, hands of the accused/appellant were washed and the colour of the water turned to pink. After completing the necessary formalities, the police submitted the chargesheet u/s 7/13 (1) (d) read with 13 (2) of Prevention of Corruption Act, 1988 against the accused/appellant. 3. After submission of chargesheet, the trial court framed charges against the accused/appellant. The accused/appellant denied the charges levelled against him and claimed to be tried. 4. The prosecution in support of its case examined complainant PW1 Rajesh Mohan; PW2 S.P.S. Negi, leader of the trap party; PW3 Nanak Chandra, an independent witness who turned hostile; PW4 Bhupendra Singh, a formal witness; PW5 Nand Kishore Tyagi, Investigating Officer of the case; and PW6 Head Constable Sheel Gange, Head Moharrir of the Police Station, Dalanwala. 5. The accused/appellant in his statement recorded under Section 313 Cr.P.C. has denied all the averments made in the evidence. The accused/appellant has stated that he has been arrested pursuant to a conspiracy hatched against him. The accused/appellant stated that the distance between his house and the office was about 100 meters. On 29/09/1998 when he was coming from his office to his home for taking the lunch and as soon as he reached near the office of the Vigilance which is situated twenty steps from his office, he was called by a person. When he entered into the office, 4-5 persons were sitting there. They took him to the office of Vigilance Deptt. and asked him to sit in the office. They also asked him why he 4 was not returning the sale deed to the complainant Rajesh Mohan which is pledged with him. The accused/appellant replied that he has sent a letter to the Head Office on 23/01/1998 for the release of the said sale deed and an objection was received that a sum of Rs. 135/- is due against the complainant. He has further stated that the said objection was removed by depositing Rs.135/- by the complainant. Again a letter has been sent to the Head Office, Lucknow for the release of the said sale deed. He has further stated that on 22/06/1998 the complainant came to him and said that he has disposed of his house and demanded no objection certificate from the accused. The said certificate was given to him and he was also asked to take the duplicate copy of the registered sale deed from the Sub-Registrar. He has further stated that he was nominated as Inquiry Officer for the mis-conduct of Hari Shankar, the then Branch Manager. Both Hari Shankar as well as the leader of the Vigilance team Mr. S.P.S. Negi were known to each other and the used to take tea together. So, they have falsely implicated him. 6. The defence has also adduced the evidence of DW1 Naresh Kumar Yadav who is the Bank Manager at the time of the deposition before the Court. DW2 Mohd. Sabir is also produced before the Court who is an officer of U.P. Awas Vikas Parishad, Meerut having the jurisdiction over Garhwal Division at the relevant time including Meerut. He has stated that Hari Shankar Purohit had committed certain financial irregularities. He produced Ex.Kha-4 in his evidence and he was given notice for the said irregularities in the year 1998. Copy of the notice was also filed before the Court. The accused has also volunteered himself before the Court and he has been examined as DW3. He has stated that there was inquiry 5 pending against Hari Shankar Purohit, the then Branch Manager of the society and he made available all the documents to the inquiry officer. On the basis of the said document, notice was issued to him u/s 68 of U.P. Awas Samiti Adhiniam. Hari Shankar Purohit used to ask him not to make available the document against him. When the said request was not conceded by him, he started getting enmity with him. 7. The learned Special Judge on appreciation of the evidence, held accused/appellant guilty to the offences charged against him and convicted & sentenced him as mentioned above. 8. I have heard Mr. Rakesh Thapliyal, Advocate assisted by Mr. Atul Bhatt, Advocate for the accused/appellant; Mr. Amit Bhatt, learned Addl. G.A. with Mr. B.S. Parihar, Brief Holder for the respondent/State; and perused the record. 9. Now it is to be seen as to whether the trap was conducted and the accused/appellant was caught red handed taking a sum of Rs.500/- as illegal gratification in lieu of the return of the sale deed pledged to the society which was to be returned to the informant PW1 Rajesh Mohan by the accused/appellant. The prosecution in support of its case examined informant PW1 Rajesh Mohan. He has stated in his deposition that his father had a plot in Dehradun where he wanted to construct a house over the said plot. For this reason, he took a loan of Rs.80,000/- from the Cooperative Society where the accused/appellant was working. His father pledged his original document with the society. He has further stated that his father died on 16/10/1996 and an amount of Rs.60,575/- was received by the society from Life Insurance Corporation which was made by his father at the time of taking the loan. Rest of 6 the amount, i.e. Rs.3,087.20 was paid through a cheque by him. Later on a sum of Rs.135/- was claimed to be due by the Headquarter, Lucknow before releasing or returning the sale deed and the same was also deposited by him in the society. On 22/06/1998 a no dues certificate Ex.Ka.-1 was issued to him by the accused/appellant. He has further stated that he visited several times to the office of the Secretary/Branch Manager of the society but the original document pledged with the society was not returned to him. He has further stated that when he visited in the office of the accused/appellant alongwith Sarvjeet Singh Sethi on 25/06/1998, the accused/appellant demanded a sum of Rs.2,000/-. Later on after bargaining, the amount was reduced to Rs.500/- instead of 2,000/-. The accused/appellant agreed to return the said document on the payment of Rs.500/- as illegal gratification. Instead of paying the said amount, he submitted an application Ex.Ka.-2 to the S.P., Vigilance alongwith Rs.500/- containing five currency notes of Rs.100/- each and the S.P., Vigilance got it inquired through PW2 S.P.S. Negi. After submitting his report and being satisfied that the contents of the application are true, raid was arranged. The notes were treated with phenolphthalein powder and the informant was asked to go to the office of the accused/appellant before conducting the trap to see as to whether the accused/appellant was sitting in the office or not. When he informed to PW2 S.P.S. Negi that the accused/appellant is sitting in his office, raid was conducted at about 11:00 a.m. on 29/06/1998. Before conducting the raid, two independent witnesses PW3 Nanak Chandra and Prem Singh were taken who went in the office of the accused/appellant alongwith the complainant PW1 Rajesh Mohan. The said amount was handed over to the accused/appellant. The conversations which have taken place 7 in between the accused/appellant and the complainant was heard by the witnesses as well as the raiding party. The informant said to the accused/appellant that the amount which he has demanded was being paid to him in lieu of being return of the sale deed pledged in the name of his father. The accused/appellant took the money and kept in his pocket. When the trap party became confident that the money has been passed as an illegal gratification, they entered in the room and recovered the said notes from the accused/appellant. When the hands of the accused/appellant were washed by clean water, colour of the water turned to pink. Thereafter, the accused/appellant was arrested. 10. The prosecution also examined PW2 S.P.S. Negi, leader of the trap party and Inspector of the Vigilance Department. He has stated that he received application Ex.Ka.-2 of the informant PW1 Rajesh Mohan from the S.P., Vigilance wherein he was directed to inquire about the matter. After inquiring the matter, he found the facts to be true. Thereafter, he was ordered to organize the trap. He took the witnesses for conducting the raid and conducted the raid. He has corroborated the evidence of informant PW1 Rajesh Mohan. He prepared the necessary documents at the spot. PW3 Nanak Chandra is an independent witness. He has not supported the prosecution version and he was declared hostile by the prosecution. Constable PW4 Bhupendra Singh is the formal witness. He has stated in his evidence that 31/07/1998, he took the case property to the F.S.L., Agra. He handed over the said articles to the F.S.L., Agra on 01/08/1998. The articles were containing four bundles and five currency notes of Rs.100/- each amounting to Rs.500/-. On 13/08/1998, he brought the said case property and deposited in the Malkhana 8 and the report was submitted before the Court. PW5 Nand Kishore Tyagi is the Investigating Officer of the case. PW6 Sheel Gange is the Head Moharrir in the police station Dalanwala on 29/06/1998. He lodged the report on the basis of the recovery memo Ex.Ka.-4 and necessary entries were made in the case diary. He is a formal witness. 11. Learned counsel for the accused/appellant contended that the evidence of raid is not reliable, as such, conviction of the accused/appellant cannot be based on such evidence; there is no evidence on record to establish the date, time and place for giving and taking of the bribe; if the date, time and place for giving and taking of illegal gratification was not fixed in between the complainant and the accused/appellant how the secrecy of the trap can be sustained; learned counsel for the accused/appellant contended that certain guidelines for the arrangement of the trap are contained u/s 3 of the U.P. Vigilance Establishment Act, 1965; the power to conduct the trap in respect of the accused/appellant has been conferred u/s 3 of the U.P. Vigilance Establishment Act, 1965 by virtue of a Notification issued by the Government of U.P. in the year 1965 which is also applicable in the state of Uttarakhand; one of the shadow witness PW3 Nanak Chandra had not supported the prosecution version and he has been declared hostile; the shadow witness Nanak Chandra was tenant of the complainant and other shadow witness Prem Singh was a driver of the complainant and they were not the independent witnesses; one of the shadow witness, i.e. Prem Singh has died and his evidence cannot be procured during the trial; there is no independent eyewitness of the trap; the evidence of the trap is contradictory and it cannot be believed; it was also contended that the sale deed which is said to have been mortgaged was 9 not in the possession of the accused/appellant and it is to be released by the Head Office, Lucknow and the accused/appellant has merely to take steps and he has to comply the direction of the Head Quarter; the accused/appellant has to send the communication to the Head Quarter for seeking the said document for handing over it to the complainant; the accused/appellant sent a letter in the month of January, 1998 to release the sale deed to the Office Head Quarter, Lucknow; pursuant to this, communication was received from the Head quarter on 02/04/1998 that a sum of Rs. 135/- is still due against the complainant which is to be deposited with the society; and thereafter his papers can be released. Pursuant to the said demand of the head quarter; a communication was made to the complainant and he deposited the said amount on 07/04/1998; thereafter no dues certificate was issued by the accused/appellant on 26/06/1998 and thereafter he also wrote a letter on 26/06/1998 to release the said sale deed to the complainant alongwith other sale deeds; thus the act has already been acted upon, as such, the evidence is not reliable and believable. The learned Addl. G.A. refuted the contention and contended that the prosecution versions has been supported by the informant PW1 Rajesh Mohan and PW2 S.P.S. Negi. Evidence of both the witnesses is credible and cogent. The evidence of the independent witness who has been declared hostile did not affect the credibility of the evidence adduced by the prosecution and the prosecution has established the case beyond reasonable doubt against the accused/appellant. 12. Now, I would like to scrutinize the evidence in the light of the submissions of the learned counsel for the parties. PW1 Rajesh Mohan who is the complainant of this case has stated in 10 his evidence in para 4 that he gave a complaint to the Vigilance office on 29/06/1998. He has also stated that he has submitted five currency notes of Rs.100/-each alongwith the application. Pre-trap was written on the complaint. The said complaint was written by him which is Ex.Ka.2 on the record. This application was addressed to the Superintendent of Police, Vigilance Deptt., Dehradun. He went to the Vigilance Office at about 11:00 a.m. and he was called inside the office where 8-9 persons were already sitting there. After taking the complaint and currency notes, pre-tap inquiry was made. The notes were treated with phenolphthalein powder and the process of treating was conducted. 13. During the cross examination he has stated that on the date of the incident, the said application was given at about 9:00 am in the morning in the Vigilance Office where he met one Inspector of police. The Inspector asked him to come to office at 10:00 a.m. when all the persons would come in the office. When he went again at 10:00 am, the same inspector met him and he inquired about the purpose of the visit and he told him everything. He gave the complaint alongwith the currency notes as alleged above and pre-trap was written on the said application. Thereafter, the notes were treated with the phenolphthalein powder. PW1 Rajesh Mohan has not stated that the said complaint was given to the S.P. and the S.P. inquired about the facts and thereafter he was called. According to the PW1 Rajesh Mohan, the inspector whom he handed over the complaint inquired about the matter and thereafter pre-trap proceedings were immediately conducted. 14. When PW2 S.P.S. Negi appeared before the Court, he has stated in his evidence that S.P., Vigilance referred a complaint 11 of the informant PW1 Rajesh Mohan and asked him to conduct the inquiry. When he conducted the inquiry, the facts as contained in the complaint were found to be correct. Thereafter, S.P. Vigilance directed him to take the trap as directed in Ex.Ka-2. Then he arranged the team of the trap party. He asked Arun Kumar Pandey and other Inspector of Vigilance to bring the witnesses and they brought Prem Singh and Nanak Chand, R/o Jakhan, Dehradun as witnesses of the trap. Thereafter the witnesses; trap party and the complainant were taken in a room of the Vigilance Office and pre-trap proceedings were conducted. Memo of such proceedings Ex.Ka-3 was prepared at the spot. Thereafter, the trap party proceeded to the place of the incident. During the cross examination he has stated PW1 Rajesh Mohan gave an application directly to the S.P. Vigilance and thereafter, the S.P. Vigilance directed him to make the inquiry about the correctness of the allegations made in the complaint. He made the inquiry and thereafter submitted his report. Thus, this witness has categorically denied the fact that the application was given and immediately thereafter he started pre-trap proceedings as stated by PW1 Rajesh Mohan. 15. It is also transpired from the record that on 25/06/1997 the complainant went to the office of the Cooperative Society where the accused/appellant was working as a Branch Manager. The complainant went there alongwith Sarvjeet Singh Sethi before whom the accused/appellant demanded illegal gratification of Rs. 2,000/- for processing to return the registered sale deed which was mortgaged to the Society. PW1 Rajesh Mohan has stated in his evidence that he gave an application to get his sale deed released in Dehradun office of the Society but this fact was never told to the Investigating 12 Officer. He has stated in his cross examination, he informed about the death of his father and the NOC was issued by the office of the Society to whom he had given the information about the death of his father. He could not state this fact at the time of evidence. After giving the application to the clerk concerned, he met to the accused-appellant in his office and he was informed about the death of his father. He has further stated that he gave the information about the death of his father in the office in the year 1996. He has also informed the accused/appellant about the death of his father. According to the prosecution case, the father of the complainant died on 16- 10-1996 and in his evidence he has categorically stated that the said information was given to the accused/appellant on 16- 11-1996. It is also revealed from the record that the accused/appellant was appointed on deputation as Branch Manager of the Society on 09-10-1997 vide Ex.Kha-3. Ex.Kha-3 is the order of the appointment of the accused/appellant. Thus, the version which has been put forward by the PW1 Rajesh Mohan seems to be quite unbelievable. 16. PW1 Rajesh Mohan has stated in his cross examination that the Society has given information that the money of the insurance of his father’s loan has been released in the year 1997. After receiving the said information, he visited the office of the Society from where he came to know that there are dues of Rs.135/-. He has deposited the said amount. He has further stated that the accused/appellant has issued a No Dues Certificate to him. After receiving the No Dues Certificate he had not given any application either at Dehradun or Luknow for the release of the said sale deed. He had only made an oral request to the office. After getting the No Objection Certificate, 30-40 visits were made by him to the office of the Society. It is 13 pertinent to mention here that the NOC was issued on 22-06- 1998 and the trap was conducted on 29-06-1998 about five days after the issuance of the no dues certificate. The no dues certificate has been issued by the accused/appellant to PW1 Rajesh Mohan which is Ex.Ka-1 on the record. Thus, it cannot be reasoned to believe how he has visited 30-40 times within a short span of five days when the talks of taking illegal gratification had already been settled on 25-06-1998. 17. The manner as to how the trap was arranged, it has been stated by PW1 Rajesh Mohan in his evidence. He has stated that when he went inside the room of the accused/appellant, the other members of the team remained standing at the window and the trap party concealed themselves out side the room. He entered into the room and wished the accused/appellant. The accused/appellant extended his smile and asked him to sit. The informant also asked the accused/appellant that he has brought Rs.500/- which has been demanded by him for returning the sale deed. He took out the money and handed it over to the accused/appellant. The accused/appellant started counting the currency notes by his right hand and stated that he would bring his registered document very soon. The vigilance trap team entered into the room and the accused/appellant was caught and the said currency notes were recovered from his hand. During the cross examination, he has stated that when he gave the illegal gratification to the accused/appellant, two police personnel entered into the room with him and two police personnel remained out side standing near the window. A contradiction was put to him that he has stated in his examination-in-chief that he went inside his room all alone and the trap party remained out side the room standing near the window. During 14 the cross examination, he has stated a different version as stated above. He has stated that his both statements are correct. He has further clarified that the statement which he has given in the cross examination is correct that the two police personnel entered into the room with him. They remained standing on the door. When he handed over the money to the accused-appellant, both the persons of the trap party caught the accused-appellant. He further clarified that the two members of the trap party which he has stated entered into the room meant