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2014 DAILYLAW 3570 (DEL)

Vinod Kumar v. State (GNCT of Delhi)

2014-09-11

S Muralidhar

body2014
1. This appeal is directed against the judgment dated 27th May, 2008 passed by the learned Special Judge, Delhi in CC No. 205/07 convicting the Appellant for the offences under Sections 7 and 13 (l)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (‘PC Act’) as well as the order on sentence dated 29th May, 2008 whereby for the offence under Section 7 of the PC Act, the Appellant was sentenced to undergo rigorous imprisonment (?RI?) for one year along with fine of Rs. 2,000, and in default, to undergo simple imprisonment (‘SI’) for two months. For the offence under Section 13(2), PC Act, the Appellant was sentenced to undergo RI for 11 /2 years along with fine of Rs. 3,000, and in default, to undergo SI for three months. Both the sentences were directed to run concurrently. 2. The case of the prosecution is that the Complainant, Ramesh Suri (PW-4) came to the office of the Anti Corruption Branch (‘ACB’) on 10th July, 2001 and got recorded his complaint (Ex. PW-4/A) in which it was stated that summons had been received in some case from the Tis Hazari Courts for the appearance of himself and his mother. His mother had expired on 16th June, 2000. In that connection, he was required to produce the death certificate. He accordingly approached the office of the Municipal Corporation of Delhi (‘MCD’) at Uttam Nagar on 4th June, 2001. There, he met the Appellant, who stated that for issuance of a death certificate on application, an affidavit, a copy of the ration card and certain other documents were required. PW-4 further stated that the Appellant demanded Rs. 500 for furnishing the death certificate and when he expressed his inability to pay that sum, the Appellant agreed to receive Rs. 250. The Appellant then took Rs. 50 and gave him a form. According to PW-4, the Appellant asked him to come again on 10th July, 2001 with the balance sum of Rs. 200. Since PW-4 was not prepared to pay the bribe, he went to the ACB and made the complaint. 3. The complaint was recorded in the presence of a Panch witness, A.K. Tripathi (PW-5). The pre-raid proceedings (Ex. PW-4/B) show that PW-4 had reached the ACB office at 7:45 a.m., by which time PW-5 was already present. PW-4 produced two Government currency (‘GC’) notes of Rs. 3. The complaint was recorded in the presence of a Panch witness, A.K. Tripathi (PW-5). The pre-raid proceedings (Ex. PW-4/B) show that PW-4 had reached the ACB office at 7:45 a.m., by which time PW-5 was already present. PW-4 produced two Government currency (‘GC’) notes of Rs. 100 each the numbers of which were noted down by the Raid Officer (‘RO’)/ Inspector M. A. Salam (PW-7), in the pre-raid proceedings. The GC notes were then treated with phenolphthalein powder by PW-6 and a demonstration of its effects was given. The treated GC notes were handed over to PW-4 for being handed over to the Appellant. PW-5 was asked to remain close to PW-4 so he could hear and observe the transaction. The raiding party comprising the RO, (PW-7), Inspector Ranveer Singh, the Investigating Officer (PW-6), PW-4, PW-5 and certain others left for the spot. After PW-5 gave the pre-determined signal, the RO entered and he was informed by PW-5 that the Appellant had demanded and accepted the bribe of Rs. 200 with his right hand and kept it in his left hand. On the direction of the RO, the panch witness recovered two GC notes of Rs. 100 each from the left hand of the Appellant. These GC notes were tallied with the numbers noted in the Rukka. The washes of both hands of the Appellant turned pink and were preserved in four empty clean bottles which were then sealed and labelled. 4. At the trial, 8 prosecution witnesses were examined. 5. The plea of the Appellant in his statement under Section 313, Cr.P.C. was that he had been falsely implicated. He claimed that the death certificate had been received by PW-4 on 5th July, 2001 and there was no occasion for demanding any bribe. According to him, PW-4 wanted extra copies of the death certificate for which the prescribed fee was Rs. 5 per copy. The Appellant stated that on 10th July 2001, PW-4 had come to his office and demanded extra copies of the death certificate and had offered some money in a folded condition for that purpose. 6. During the trial, PW-4 did not support the case of the prosecution. Although PW-4 confirmed having given a complaint to the ACB, he did not state that any bribe was demanded from him for preparing the death certificate. PW-4 was examined by the learned APP on this aspect. 6. During the trial, PW-4 did not support the case of the prosecution. Although PW-4 confirmed having given a complaint to the ACB, he did not state that any bribe was demanded from him for preparing the death certificate. PW-4 was examined by the learned APP on this aspect. In his cross-examination by Counsel for the Appellant, PW-4 stated that even on 4th June, 2001, the Appellant had not demanded any money and that on 5th July, 2001, the Appellant had handed over to him the death certificate. He stated that he had demanded 20 to 25 extra copies of the death certificate and that the Appellant had demanded Rs. 5 for furnishing each copy. He further stated that on 10th July, 2001, he asked for 25 copies of the death certificate and gave Rs. 200 to the Appellant. Since the GC notes were folded, it was not possible to note whether the amount was Rs. 100 or Rs. 200. 6A. The learned trial Court observed that there was nothing on record to show if the Appellant had asked PW-4 to pay the prescribed fee of Rs. 5 for each extra copy. There was also nothing to show whether the Appellant had recorded in the register maintained in the office, regarding deposit of any such prescribed fee for getting the extra copies. Further, the Appellant had not led any evidence to show that he was authorised to issue the extra copies. Since the contents of the complaint (Ex. PW-4/A) were not challenged, the material facts asserted by PW-4 in the trial Court were taken as uncontroverted. There was no prior enmity or ill-will towards the Appellant by PW-4. The learned trial Court also found that PW-5 had supported the case of the prosecution and that his cross-examination had not brought forth any material contradictions to discard his testimony. With the Forensic Science Laboratory (‘FSL’) confirming the presence of the phenolphthalein powder on the tainted notes and the washes of both the hands of Appellant turning pink, the case against the Appellant was held to be proved beyond reasonable doubt. 7. This Court has heard the submissions of learned Counsel for the parties and has also perused the trial Court record. 8. The starting point of the case is Ex. PW-4 /A where two dates are mentioned by PW-4. 7. This Court has heard the submissions of learned Counsel for the parties and has also perused the trial Court record. 8. The starting point of the case is Ex. PW-4 /A where two dates are mentioned by PW-4. The first date is 4th June, 2001, when he is supposed to have gone to the office of the MCD for the purpose of obtaining the death certificate of his mother. The next date mentioned is 10th July, 2001/ the date on which he was to again visit the office of the MCD regarding the balance sum of Rs. 200 to be paid to the Appellant. 9. A perusal of the first information report (‘FIR’) registered in this case shows that against the column ‘information received by PS’, the date given is 6th July, 2001. Why this date was filled-up has not been explained by the prosecution. If one compares the statement made by PW-4 for the first time before the ACB to what he deposed in the trial Court, the difference becomes apparent. While he maintained that on 4th June, 2001, he went to the ACB office and met the Appellant, he stated that on 12th June, 2001, he went again to the MCD office and submitted the application form along with the requisite documents. This statement appears to be corroborated by certain documents on the judicial record marked as Exhibits PW-4/H1, PW-4/H2, PW-4/H3 and PW-4/H4. These documents were tendered to the MCD by PW-4 with a covering letter dated 7th June, 2001. The covering letter has an endorsement on its reverse signed by SR, Uttam Nagar and forwarded to the Registrar (B and D) who had initialled it. 10. If these documents were given on 12th June, 2001, as spoken to by PW-4, then clearly they were not given on 10th July, 2001, as stated by PW-5. This is a material aspect of the matter which has been completely missed by the learned trial Court. 11. In his deposition PW-4 further stated that on 5th July, 2001, he again went to the MCD office and met the Appellant there and the Appellant ‘demanded Rs. 200 for extra copies of death certificate.’ This statement is not found in Ex. PW-4/ A at all. 11. In his deposition PW-4 further stated that on 5th July, 2001, he again went to the MCD office and met the Appellant there and the Appellant ‘demanded Rs. 200 for extra copies of death certificate.’ This statement is not found in Ex. PW-4/ A at all. Further, it substantiates the plea of the Appellant that PW-4 had come to the MCD office on 5th July, 2001 for obtaining the extra copies of the death certificate of his mother. 12. Learned Counsel for the Appellant has referred to the Certificates issuing register (Ex. PW-2 /C), which forms part of the trial Court record. It contains entries ending at 6th July, 2001 .There are a total of 21 entries in this register. Column 10 refers to the number of copies and column 11 to the amount of fee. For instance, at SI. No. 2, the number of copies is 5 and the fee is Rs. 25; at SI. No. 4, the number of copies is 1 and the fee is Rs. 5; at SI. No. 6, the number of copies is 10 and the fee is Rs. 50; at SI. No. 7, the number of copies is 9 and the fee is Rs. 10 and at SI. No. 8, the number of copies is 20 and the fee is Rs. 100. Clearly, it is not the prosecution’s case that these entries were not genuine. It does reveal a systematic pattern of charging a fee of Rs. 5/- for a copy. It is quite likely that the Appellant was demanding the sum for the extra copies of the death certificate to be issued to PW-4. 13. The learned trial Court does not appear to have perused Ex. PW-2/C at all. The conclusion that the Appellant had failed to show that there was any register maintained for extra copies or that any extra money was being charged for those extra copies is contrary to the record which shows that Rs. 5 was being charged for an extra copy of death certificates being issued. 14. The other aspect of the matter is that the above statements were made by PW-4 in his examination-in-chief and he was not contradicted on these statements, when he was cross-examined by the learned APP. 5 was being charged for an extra copy of death certificates being issued. 14. The other aspect of the matter is that the above statements were made by PW-4 in his examination-in-chief and he was not contradicted on these statements, when he was cross-examined by the learned APP. A perusal of the examination-in-chief of PW-4 does not reveal that the Appellant ever asked for any bribe amount, but only asked for an amount for an extra copy. PW-4 was consistent on this aspect even when he was cross-examined by the learned APP. Even at the spot, according to PW-4, the Appellant asked him to file an application for extra copies, and when he was preparing the application, the Appellant asked him whether he had brought the money. The learned APP referred to the sentence spoken to by PW-4 to the following effect: “I asked the accused about the death certificate and copies and accused asked me to file an application for the copies.” It was suggested that no death certificate has been issued prior to 10th July 2001. However, this sentence has to be read in the context of the earlier statement made by PW-4 in his examination-in-chief that when he went again on 5th July, 2001 to the MCD and met the Appellant, he demanded Rs. 200 “for extra copies of the death certificate”. When the following sentence is read about PW-4 preparing the application for the copies, it is clear that, even according to PW-4, he was going to the MCD office on’ 10th July, 2001 only for the extra copies. 15. It is likely that PW-4 did not understand that he was in fact required to pay Rs. 5 for an extra copy and thought it to be a bribe amount. In his cross-examination, PW-4 stated “It is correct that I had demanded extra 20-25 copies from the accused of that death certificate as my advocate suggested me to collect the same. It is correct that accused had demanded Rs. 5 for each extra copy but I insisted that the copies are given free of cost. It is correct that there were some hot words exchanged between us. It is correct that as I know that the extra copies are given free of cost but accused demanded Rs. 5 for extra each copies so I went to Anti Corruption Branch”. 16. It is correct that there were some hot words exchanged between us. It is correct that as I know that the extra copies are given free of cost but accused demanded Rs. 5 for extra each copies so I went to Anti Corruption Branch”. 16. When one peruses the above deposition in the context of the certificate issuing register (Ex. PW2/C), it seems highly probable that the incident took place in the manner indicated by PW-4 in the trial Court and that mistaking the demand to be one of bribe, he went to the ACB. 17. Turning to the deposition of PW-5, the first curious aspect is that although PW-4 went to the ACB for the first time on the morning of 10th July, 2001, according to prosecution, PW-5 had been intimated even on the previous date that he should report to the ACB on 10th July, 2001 at 7 a.m. In his cross-examination, he stated “Normally we are required to report AC Branch at 9:30 a.m.” The second aspect is that PWs 4 and 5 stated, in the first instance, that after accepting the treated GC notes, the Appellant kept the notes on the table, in his examination-in-chief, PW-5 stated that after the RO challenged the Appellant, he “then lifted those GC notes of Rs. 100 each from the table and held them in the fist of his hand”. This is highly improbable if one compares this with what was stated by PW-4 and the statement given by PW-5 himself in his cross- examination that “The notes were recovered from the table of the raid officer”. In his cross-examination, PW-5 stated “It is correct that I am aware of the fact that if I do not depose according to the statement recorded under Section 161, Cr.P.C. by the police, a departmental action would be initiated against me”. Even from the deposition of PW-5, there is no clear indication that there was a conscious demand or conscious acceptance of the bribe by the Appellant. . 18. On a reading of the evidence of PWs 4 and 5, the Court is unable to concur with the conclusion reached by the learned trial Court on this aspect. PW-4 does not appear to have supported the prosecution case on the material aspects of the case and the evidence of PW-5 is also not free from doubt. 19. . 18. On a reading of the evidence of PWs 4 and 5, the Court is unable to concur with the conclusion reached by the learned trial Court on this aspect. PW-4 does not appear to have supported the prosecution case on the material aspects of the case and the evidence of PW-5 is also not free from doubt. 19. Consequently, this Court sets aside the impugned judgment dated 27th May, 2008 and the order on sentence dated 29th May, 2008 of the trial Court. The Appellant is acquitted of the offences under Sections 7 and 13(l)(d) read with Section 13(2) of the PC Act. The appeal is allowed. The bail bond and the surety bond furnished by the Appellant will continue to be in force for a period of three months in terms of Section 437-A, Cr.P.C. Appeal allowed.