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Himachal Pradesh High Court · body

2014 DIGILAW 1143 (HP)

State of Himachal Pradesh v. Phulan Kumari

2014-08-27

RAJIV SHARMA

body2014
Judgment Rajiv Sharma, J. This appeal is instituted against the judgment dated 30.6.2011 rendered by the Special Judge (Additional Sessions Judge), Mandi in Corruption Case No.2 of 2008, whereby the accused-respondent (hereinafter referred to as the “accused” for convenience sake), who was charged with and tried for offence punishable under sections 7 and 13 of the Prevention of Corruption Act, has been acquitted. 2. Case of the prosecution, in a nutshell, is that PW-2 Hans Raj was the Manager of bus bearing registration No. HP-28-2415 and HP-65-0183. PW-4 Shyam Lal was the owner of buses. He has executed a power of attorney in favour of Hans Raj. Hans Raj used to deposit tax in the office of R.T.O. Accused used to deal with the tax and she used to make entry in the book regarding the payment of tax. State Government has given certain concessions to the bus operators. The same was to be adjusted in the monthly tax. Accused demanded Rs. 3,000/- for the adjustment of the tax from the complainant. The complainant assured to make the payment of Rs. 3,000/-. However, he reported the matter to the police by way of written complaint Ex.PW-2/A. Investigation was conducted by PW-13 Gian Singh. He formed a raiding party. He also gave demonstration. Plain water and two empty glasses were brought by HHC Yog Raj. Solution of Sodium Carbonate powder and water was prepared in one glass. Solution of Phenolphthalein powder and water was prepared in another glass. Water did not change its colour. When the contents of two glasses were mixed together, water changed its colour to light pink. Samples of Phenolphthalein power and Sodium Carbonate was taken in two different matchboxes. Hans Raj produced six currency notes worth Rs. 500/- each. Serial numbers of currency notes were noted. Memo Ext. PW-2/C was prepared. Currency notes were treated with Phenolphthalein powder. These were handed over to Hans Raj with the direction to keep the money in his pocket and not to unnecessarily fiddle with the same. He was further directed to hand over the currency notes to the accused on demand. 3. PW-10 Sudershan was sent as a shadow witness. PW-2 Hans Raj and PW-10 Sudershan went to the office of RTO. Hans Raj enquired from the accused whether she has done his work. Accused replied in affirmative. Accused demanded money from Hans Raj. He was further directed to hand over the currency notes to the accused on demand. 3. PW-10 Sudershan was sent as a shadow witness. PW-2 Hans Raj and PW-10 Sudershan went to the office of RTO. Hans Raj enquired from the accused whether she has done his work. Accused replied in affirmative. Accused demanded money from Hans Raj. Hans Raj handed over the money to the accused. Accused took the money and kept in the drawer. Sudershan Kumar signalled the police party on delivery of money. Raiding Party entered inside the room. Hands of the accused were washed. Water did not change its colour when Sodium Carbonate powder was put in hand-wash; water changed its colour to light pink. Accused took out the money from drawer. Currency notes were tallied with serial numbers recorded on the memo. RTO was also called. Currency notes were also seized vide seizure memo Ext. PW-1/A. Site plan was prepared. Case property was deposited in the Malkhana. These articles were sent through constable Amar Pal on 15.11.2006 vide RC No. 8/2006. The result of chemical analysis is Ext. PW-7/A. 4. Prosecution examined as many as 15 witnesses in all to prove its case against the accused. Statement of the accused under section 313 of the Code of Criminal Procedure was also recorded. She denied the case against her. Accused was acquitted of the charges alleged against her as noticed above. 5. Mr. Parmod Thakur, learned Additional Advocate General, has vehemently argued that the prosecution has proved its case against the accused. 6. Ms. Mahika Verma has supported the judgment of the Trial Court. 7. I have heard the learned counsel for the parties and have gone through the record carefully. 8. PW-1 Kamal Kant has testified that he was posted as RTO Mandi. Police officials came to his office on 20.10.2006. They told him that Phula Kumari was caught receiving bribe in her office. He went to the room of the accused. Inspector showed six currency notes of Rs. 500 each and told that they were recovered from the accused. These currency notes were sealed in a parcel with three seal impressions ‘T’. These were sealed vide seizure memo Ext. PW-3/A. He also signed the same. In his cross examination he has deposed that earlier accused was dealing with the work of penalty of special road tax. 500 each and told that they were recovered from the accused. These currency notes were sealed in a parcel with three seal impressions ‘T’. These were sealed vide seizure memo Ext. PW-3/A. He also signed the same. In his cross examination he has deposed that earlier accused was dealing with the work of penalty of special road tax. When Vidya Devi joined the duties about 1-2 months prior to the accident, the work of penalty of special road tax was assigned to her. He also admitted that owner of the bus had to deposit special road tax every month and in case of default, penalty is leviable which would vary with the period of default. The excess penalty imposed earlier was being adjusted as per notification issued by the government. He has also admitted that penalty of the bus bearing registration No. HP-65-0183 was deposited on 12.10.2006 as per record. The penalties of bus bearing registration No. HP-28-2415 and Bus bearing registration No. HP-65-0183, were adjusted prior to the seizure of the record. 9. PW-2 Hans Raj is the complainant. He used to visit the accused in connection with the payment of tax. The excess penalty of special road tax was paid by them which was to be adjusted. They were to get benefit of Rs. 70,000-80,000/-. He went to the office of R.T.O. for the adjustment of the amount. He was directed towards the accused. The accused told him that if they are getting benefit, she would also get the benefit. She demanded Rs. 3,000/- from him. He filed complaint vide Ex.PW-2/A. Police formed a raiding party. The demonstration was given by the Investigating Officer. He and Sudershan went to the office of the R.T.O. and other persons stopped at some distance. He inquired from the accused whether she has done the work. She replied in affirmative. He handed over the money to the accused and told that it was her money. She took the money and kept it in the drawer. Sudershan Kumar signalled as directed. The other police officials entered in the room. Lady constable caught hands of the accused. Hands of the accused were washed with water. The water did not change its colour. When the other powder was put and the hands of the accused were washed, the water changed its colour to light pink. The water was put into a nip. The other police officials entered in the room. Lady constable caught hands of the accused. Hands of the accused were washed with water. The water did not change its colour. When the other powder was put and the hands of the accused were washed, the water changed its colour to light pink. The water was put into a nip. According to him, money was taken out by the accused from the drawer. Serial numbers of these currency notes were tallied with the list earlier prepared. R.T.O. was also called by the police. He has admitted in his cross-examination that he did not make any complaint to the R.T.O. regarding the demand of bribe by the accused or Vidya Devi not doing the work. He was suspecting that all the officers might be working together and they would prevent his work. He has not paid any bribe to the R.T.O. Accused demanded the money for the last time on 20.10.2006. He filed the application for the adjustment of the tax 20 days prior to that day. He has admitted that monthly tax of the vehicle bearing registration No. 65-0183 was Rs. 6,475/-. He has also admitted that he had deposited Rs. 3,563/- on 12.10.2006 after adjusting the amount of Rs. 2,912/-. Vidya Devi had obtained the signatures of R.T.O. on 12.10.2006 after calculating the excess penalty. He reached the office at 3.00 P.M. Vidya Devi was present in the room of the accused alongwith accused when he went to that room. She was sitting at a distance of about 7-8 feet from the accused on the same table. Sudarshan did not enter inside the room but remained in the gallery. He handed over the money in 2-4 minutes to the accused. 10. PW-3 Bhaga Devi has deposed the manner in which demonstration was given and currency notes were treated. According to her, accused handed over the money after taking it from her drawer. 11. PW-4 Shyam Lal is the owner of the bus. He was told that Rs. 3,000/- was demanded from him, on which he advised PW-2 Hans Raj to report the matter to vigilance. 12. PW-5 Vidya Devi is a material witness. According to her, she was discharging the duties of Registration Clerk. She was ordered to look after the work of special road tax on 29.9.2006. He was told that Rs. 3,000/- was demanded from him, on which he advised PW-2 Hans Raj to report the matter to vigilance. 12. PW-5 Vidya Devi is a material witness. According to her, she was discharging the duties of Registration Clerk. She was ordered to look after the work of special road tax on 29.9.2006. Earlier accused Phula Kumari was looking after the work of special road tax. The vigilance officials seized the copy of special road tax register Ex.D-1 and D-2 from her. Calculation on Ex.D-1 at mark ‘A’ was in the handwriting of accused. It was initialled by her. The work of calculating special road tax was her work. The documents were seized by the police vide memo Ex.PW-5/A. The calculation of tax on Ex. PW-1/B inside red circle ‘A’ was in the handwriting of accused. The original special road tax registers were Ex.D-1 and D-2. In her cross-examination, she has admitted that her hand was burnt in the first week of October, 2006. She was unable to write. Hans Raj came to her for the adjustment of the tax of bus No. HP-65-0183. He had filed application Ex.PW-1/B for this purpose. She was unable to write on that day she requested Phula Devi to make the calculation and this was entered in the register by the accused. Initials inside red circle ‘C’ were her. Balance was deposited by Hans Raj on the same day. Signatures of R.T.O. were also obtained on the same day. Pass book was returned to Hans Raj. Entry pertained to the bus No. HP-28-2415 prior to burning of her hand. The accused was sitting on the table and when the accused was not present, Hans Raj was roaming around the table. He made inquiry from him on which he replied that he was looking for a pin. 13. Statements of PW-6 Amar Pal, PW-7 Balbir and PW-8 Rajinder Singh are formal in nature. 14. PW-9 Yog Raj has also deposed the manner in which demonstration was given and currency notes were treated. Money was not found on personal search of accused. When the drawers of the table were checked, money was found in the upper drawer of the table. 15. PW-10 Sudarshan Kumar is a shadow witness. He has deposed the manner in which demonstration was given and currency notes were treated. Money was not found on personal search of accused. When the drawers of the table were checked, money was found in the upper drawer of the table. 15. PW-10 Sudarshan Kumar is a shadow witness. He has deposed the manner in which demonstration was given and currency notes were treated. According to him, he was directed to signal the raiding party by touching his right ear with the finger on demand of money by the accused. Other members of the raiding party concealed themselves outside the office of R.T.O. Hans Raj went to the table of accused. Another woman was present in that room. 4-5 persons were standing on her table. He joined them. Hans Raj paid the money to the accused. She took the money and put the same in the drawer of the table. He went outside and signalled the raiding party. The members of the party entered inside room No.2 of R.T.O. office. Accused took out the money from drawer and handed it over to the I.O. In his cross-examination, he has deposed that money was given in presence of 4-5 persons. When the raiding party entered inside the room, there were 1-2 persons, who ran away. He signalled the raiding party within five minutes of his entry into the room. According to him, hands were washed prior to the recovery of money. 16. Statement of PW-12 Desh Raj is formal in nature. 17. PW-13 Gian Singh Thakur has investigated the matter. He has deposed the manner in which he has given demonstration and the currency notes were treated. According to him, accused handed over the money to him in presence of witnesses after taking the money out of the drawer. He checked the serial numbers of the currency notes and the same were tallied with the serial number of the currency notes recorded earlier. In his cross-examination, he has admitted that an amount of Rs. 2,912/- pertaining to vehicle bearing registration No. HP-65-0183 and an amount of Rs. 52,780/- pertaining to vehicle bearing registration No. HP-28-2415 was to be adjusted. 18. It is clear from the statement of PW-5 Vidya Devi that she was discharging the duties of Registration Clerk. She was ordered to look after the work of special road tax on 29.9.2006. Before that, accused was looking after the work of special road tax. 52,780/- pertaining to vehicle bearing registration No. HP-28-2415 was to be adjusted. 18. It is clear from the statement of PW-5 Vidya Devi that she was discharging the duties of Registration Clerk. She was ordered to look after the work of special road tax on 29.9.2006. Before that, accused was looking after the work of special road tax. PW-1 Kamal Kant, R.T.O. has deposed that when Vidya Devi joined the duties about 1-2 months prior to the incident, the work of penalty of special road tax was assigned to her. Thus, accused was not dealing with special road tax on 20.10.2006. PW-2 Hans Raj, in his cross-examination, has deposed that he has not made any complaint to the R.T.O. regarding demand of bribe by the accused or regarding Vidya Devi not doing the work. He has also admitted that he reached the office of R.T.O. at 3.00 P.M. Vidya Devi was present in the room of the accused alongwith accused when he went to the room. She was sitting at a distance of about 7-8 feet from the accused on the same table. Sudershan did not enter inside the room but remained in the gallery. He handed over the money in 2-4 minutes to the accused. PW-5 Vidya Devi has categorically denied that accused has ever demanded bribe in her presence nor any bribe was paid in her presence. PW-10 Sudarshan Kumar, shadow witness, has deposed that Hans Raj went to the table of accused and another woman was present in that room. 4-5 persons were standing on her table. He joined them. Hans Raj paid the money to the accused. She took the money and put the money in the drawer of the table. PW-2 Hans Raj has deposed that he alone entered the room. He has not deposed that accused has demanded money from him. He has only deposed that he inquired from the accused whether she has done his work. She replied in affirmative. He handed over the money to the accused and told her that this was her money. She took the money and kept in the drawer. It is necessary to prove under the provisions of Prevention of Corruption Act that there was demand of acceptance of money for doing official duty. Even the shadow witness has not deposed about the demand. The accused was not dealing with the penalty of special road tax. She took the money and kept in the drawer. It is necessary to prove under the provisions of Prevention of Corruption Act that there was demand of acceptance of money for doing official duty. Even the shadow witness has not deposed about the demand. The accused was not dealing with the penalty of special road tax. PW-5 Vidya Devi was dealing with the work. Thus, there was no occasion for accused to show any favour to the complainant. There is also discrepancy whether the money was recovered by the police from the drawer or the accused handed over the money. There is also discrepancy whether the hands were washed when the money was handled by the accused or after receiving money. 19. Accordingly, in view of analysis and discussion made hereinabove, the prosecution has failed to prove its case beyond reasonable doubt. There is no ground to interfere with the well reasoned judgment of the trial court. 20. Consequently, the appeal is dismissed.