Vinod Kumar Garg vs State (Govt. Of National Capi.T. Of Delh

2. Challenging the conviction, the learned senior advocate for the appellant submits that there are major contradictions on material aspects in the testimonies of the complainant Nand Lal (PW-2) and the panch witness Hemant Kumar (PW-3). Nand Lal (PW-2) in his court testimony recorded on 9th July 1999 had denied to having paid any money to the appellant prior to lodging of the complaint, but in his complaint (Exhibit PW-2/A) dated 2nd August 1994, Nand Lal (PW-2) had alleged that he had fifteen days back paid Rs. 500/- to the appellant. Further, Nand Lal (PW-2) in his examination-in-chief on hand-wash had claimed that it was taken and perhaps polythene bag was also washed, but in his cross- examination PW-2 had accepted that hand-wash of the appellant was not taken. Similarly, Hemant Kumar (PW-3) had contradicted the version in his examination that the pant wash of the accused was taken at the Anti-Corruption Branch, as in his cross- examination Hemant Kumar (PW-3) had accepted the suggestion that the hand-wash and pocket wash were not taken after the appellant was apprehended. Inspector Rohtash Singh (PW-5) who had conducted the raid has admitted that he had not taken the hand-wash or the pant wash of the appellant from which the polythene packet containing the bribe money was allegedly seized. Further, the testimonies of Nand Lal (PW-2) and Hemant Criminal Appeal No. 1781 of 2009 Page 2 of 24 Kumar (PW-3) reveal a major dichotomy on the amount that the appellant had allegedly demanded as bribe. In his cross- examination Nand Lal (PW-2) had denied the suggestion that the appellant had asked for Rs. 2,000/- to be paid separately by Nand Lal (PW-2) and Hemant Kumar (PW-3) as the two were partners, contrary to the version given by Hemant Kumar (PW-3) who had deposed that the appellant had told them in the gallery that each of them should pay Rs. 2,000/-. There is a contradiction in the testimony of Nand Lal (PW-2) and Hemant Kumar (PW-3) as to the place where the allegedly bribe money was asked and paid to the appellant. As per Nand Lal (PW-2) the bribe was asked and paid in the garment shop, whereas Hemant Kumar (PW-3) has denied that the payment took place inside the cloth shop. Drawing our attention to the version of Nand Lal (PW-2), it was submitted that Hemant Kumar (PW-3) was not an eyewitness or a panch witness to the demand and payment of alleged bribe money. In view of the irreconcilable versions of the two witnesses, the appellant is entitled to benefit of doubt. Further, there is no evidence or document to show that Nand Lal (PW-2) was the tenant in the shed for which the appellant had statedly asked for bribe money to provide the electricity meter. Anil Ahuja (PW-6), the owner of the shed has not supported the case of the prosecution Criminal Appeal No. 1781 of 2009 Page 3 of 24 and had contradicted the claim made by Nand Lal (PW-2) in his complaint (Exhibit PW-2/A).

3. On the question of demand and payment of bribe for performance of public duty or forbearance to perform such duty, we would read the testimonies of the complainant – Nand Lal (PW-2), panch witness – Hemant Kumar (PW-3), and the Inspector of Anti- Corruption Branch – Rohtash Singh (PW-5) in unison. Nand Lal (PW-2) has deposed having visited the DESU office and his meeting with Inspector Yadav for installation of electricity meter in the shed for a fan and a light. Nand Lal (PW-2) after shifting his goods etc. to the shed had again visited the DESU Office and learnt that Inspector Yadav had been transferred. Nand Lal (PW-2) had met his successor-the appellant, who had asked him to move an application for providing a meter for the electricity connection. The appellant had also stated that electricity could be provided without meter for which Nand Lal (PW-2) was asked to pay bribe of Rs.2,000/-. Thereupon, Nand Lal (PW-2) had expressed his inability to pay Rs.2,000/- in lumpsum but he could pay the bribe amount in instalments of Rs.500/- each, which the appellant had agreed and accepted. Thereafter, Nand Lal (PW-2) had visited the Anti-Corruption Branch and lodged his complaint on 2 nd August 1994 vide Exhibit PW-2/A that was signed by him at Point A. Both Criminal Appeal No. 1781 of 2009 Page 4 of 24 Hemant Kumar (PW-3) and Inspector Rohtash Singh (PW-5) have in seriatim confirmed the relevant ensuing events. Nand Lal (PW-

2), Hemant Kumar (PW-3) and Rohtash Singh (PW-5) have affirmed that Nand Lal (PW-2) had produced five currency notes of Rs.100/- each, the serial numbers of which were duly recorded and the notes were sprinkled with powder. The three had then along with other members of the raiding team proceeded to the DESU office but the appellant had asked Nand Lal (PW-2) to come on the next day, as the work would not be done on 2 nd August 1994. On 3rd August 1994, Nand Lal (PW-2) had again visited the Anti-Corruption Branch office where Hemant Kumar (PW-3) and Rohtash Singh (PW-5) were present. The currency notes were again subjected to chemical treatment and the raiding party had proceeded to the DESU office. Nand Lal (PW-2) and Hemant Kumar (PW-3) had met the appellant, who had then asked Nand Lal (PW-2) to wait on the appellant’s scooter parked outside the office. After some time, the appellant came out of the office. He started the scooter and they drove for about 50 yards with Nand Lal (PW-2) sitting on the pillion seat. Nand Lal (PW-2) in his deposition has stated that he had asked the appellant to stop the scooter as the third person – Hemant Kumar (PW-3) was also accompanying them.

3) and Rohtash Singh (PW-5). Nand Lal (PW-2) has testified that the appellant after stopping the scooter went inside a garment shop. He had then asked Nand Lal (PW-2) to come inside. Nand Lal (PW-2) proceeded inside. The appellant had then demanded money from Nand Lal (PW-2) – “lao, paise do”. The appellant had procured one polythene bag and Nand Lal (PW-2) was asked to put the money in the polythene bag and thereafter put the polythene bag in the appellant’s pocket. Nand Lal (PW-2) had suggested that he would give money in the presence of the other person, i.e., Hemant Kumar (PW-3), which suggestion was not accepted by the appellant. Nand Lal (PW-2) is, however, categoric that he had as directed put the money in the pocket of the pant of the appellant. Thereafter, Nand Lal (PW-2) went outside and gave signal to the witness Hemant Kumar (PW-3) who started to move towards him. The appellant came out of the shop. Nand Lal (PW-

2) also accepts that Hemant Kumar (PW-3) had given signal to the raiding team who reached the spot and had caught hold of the appellant. From the pant pocket of the appellant, a polythene bag containing the currency notes was seized. Thus, Nand Lal (PW-2) accepts that bribe was demanded and paid and that the tainted bribe money was recovered from the appellant by Rohtash Singh Criminal Appeal No. 1781 of 2009 Page 6 of 24 (PW-5) in his presence and in the presence of Hemant Kumar (PW-3).

5. Hemant Kumar (PW-3) has on the other hand unfailingly affirmed that he had joined the raiding team as panch witness and that Nand Lal (PW-2) had recorded his statement/complaint vide Exhibit PW-2/A. Hemant Kumar (PW-3) has deposed as to the five currency notes of Rs. 100/- each given by the complainant to the Anti-Corruption Branch office on which phenolphthalein powder was coated. Instructions were given. On 2 nd August 1994 at about 10:00 -10:30 a.m., the raiding team had visited the DESU office but the appellant had asked Nand Lal (PW-2) to come on the next day. On 3rd August 1994 at 9:30 a.m. Hemant Kumar (PW-3) had visited the Anti-Corruption Branch office. Nand Lal (PW-2) was present and the entire exercise of powdering the currency notes etc. was repeated. Hemant Kumar (PW-3) and Nand Lal (PW-2) along with the raiding team had reached the DESU office at about 10:00 a.m. The appellant took Nand Lal (PW-2) outside the DESU office and they drove away on the scooter. Hemant Kumar (PW-3) had followed them on foot. The scooter was driven to a distance of about 50 yards from the DESU office. Thereupon, the appellant and Nand Lal (PW-2) had proceeded near a cloth shop where Nand Lal (PW-2) had handed over the tainted money to the Criminal Appeal No. 1781 of 2009 Page 7 of 24 appellant after placing it in a polythene bag in his presence. The appellant had kept the polythene bag with the currency notes in the right-side pant pocket of the appellant. The raiding party arrived at the spot and recovered the notes from the right-side pocket of the pant of the appellant. The notes were tallied with the numbers already noted and the same were seized by Exhibit PW- 2/C. Thereupon, the appellant-accused was taken to the Anti- Corruption Branch.

3) on visit by the raiding team to the DESU office on 2 nd August 1994 when the appellant had asked Nand Lal (PW-2) to come on the next day; that on 3rd August 1994 Nand Lal (PW-2) and Hemant Kumar (PW-3) along with the raiding team had accordingly again visited the DESU office; that the appellant and Nand Lal (PW-2) had travelled on the scooter for a short distance; and that Hemant Kumar (PW-3) had followed them on foot, are affirmed by Inspector Rohtash Singh (PW-5) who has also identically deposed, albeit he was not the person who had initially interacted with the appellant at the DESU office.

7. On the succeeding events, Rohtash Singh (PW-5) in his testimony has affirmed the narration of facts as stated by Hemant Kumar Criminal Appeal No. 1781 of 2009 Page 8 of 24 (PW-3). Hemant Kumar (PW-3) gave a signal and accordingly members of the raiding team had reached the spot and apprehended the appellant. Rohtash Singh (PW-5) had then disclosed his identity to the appellant and had challenged him that the appellant had accepted the bribe money from Nand Lal (PW-

2). Rohtash Singh (PW-5) had offered for his search, but it was refused by the appellant. The appellant was searched and polythene bag containing five Rs.100/- currency notes was recovered from the right-side pant pocket of the appellant. The five notes were marked P-3 to P-7 and were seized vide seizure memo PW-2/C. The numbers on the currency notes were tallied with the pre-raid report and were found to be the same.

8. Even if we are to accept the version of Nand Lal (PW-2), the appellant had asked for the bribe money that was paid to the appellant and at best at that time Hemant Kumar (PW-3) was not physically present inside the shop and was standing outside the shop. Nand Lal (PW-2) in his examination-in-chief has stated that the appellant had demanded money from him saying – “Lao paise do”. Thereafter, Rs. 500/- were paid as bribe by Nand Lal (PW-2) to the appellant in a polythene bag which was put in the appellant’s pant pocket as was directed by the appellant. The presence of Hemant Kumar (PW-3) in the immediate vicinity Criminal Appeal No. 1781 of 2009 Page 9 of 24 remains unchallenged. In either case, we do not think that this deviation and incongruity between the depositions by Nand Lal (PW-2) and Hemant Kumar (PW-3) should result in the acquittal of the appellant. These deviations between the testimonies of Nand Lal (PW-2) and Hemant Kumar (PW-3) does not mean that the demand and payment of bribe, the trap and seizure of the bribe paid is not proved. The testimony of Rohtash Singh (PW-5) bolsters our findings. Rohtash Singh (PW-5) has deposed about the recovery of bribe money on lines similar to the version of Nand Lal (PW-2) and Hemant Kumar (PW-3). It appears that Nand Lal (PW-2) had either tried to help the appellant but was unable do so in view of the documentary evidence in the form of his written complaint – Exhibit PW-2/A signed by him at point A and other documents prepared at the spot with his signature, or because of the time gap had forgotten some facts. On the first aspect relating to the contemporaneous documents, we would refer to the cross- examination of Nand Lal (PW-2) by the Additional Public Prosecutor on 14th September 1999 which reads as under:

wash and the pant wash of the appellant, Rohtash Singh (PW-5) has stated that phenolphthalein powder was applied to the currency notes and after the appellant was detained the polythene packet was washed and the wash was transferred to the bottles marked P1 and P2 which were taken into possession vide Exhibit PW-2/D. The polythene bag was also seized vide Exhibit PW-2/E. Raid memo proceedings were marked as Exhibit PW-2/G and post-raid proceedings as Exhibit PW-2/K. The aforesaid exhibits, i.e. P1 and P2 and the papers prepared have been accepted and proved in evidence by Nand Lal (PW-2) and Hemant Kumar (PW-

14.7. The order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity.” The contention of the appellant, therefore, fails and is rejected.

21. For the foregoing reasons, we dismiss the present appeal and uphold the conviction of the appellant under Sections 7 and 13 of the Act and the sentences as imposed. The appellant would surrender within a period of four weeks from today to undergo the remaining sentence. On failure to surrender, coercive steps would 5 (2011) 4 SCC 402 Criminal Appeal No. 1781 of 2009 Page 23 of 24 be taken by the trial court. All pending applications are also disposed of.

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