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Himachal Pradesh High Court · body

2014 DIGILAW 410 (HP)

Amar Nath Dubey v. State of H. P.

2014-04-21

RAJIV SHARMA

body2014
JUDGMENT Justice Rajiv Sharma, Judge. This appeal is instituted against the judgment dated 26.7.2012 rendered by the Special Judge, Solan, District Solan in Sessions Trial No. 3-S/7 of 2011 whereby appellant-accused (hereinafter referred to as the “accused” for convenience sake), who was charged with and tried for offences under sections 7 and 13 (2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the “Act” for brevity sake) has been convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine Rs. 5,000/- and in default of payment of fine to undergo further imprisonment for two months under section 7 of the Act. He was also sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 15,000/-and in default of payment of fine to undergo further imprisonment for six months under section 13 (2) of the Act. Both the sentences were ordered to run concurrently. 2. Case of the prosecution, in a nutshell, is that PW-1 Balbir Kashyap (complainant) was working in the concern known as “Snarthi” situated near Ambusha Hotel, Solan in the year 2008. His medical bill was pending for reimbursement before the Employees State Insurance Hospital, Chambaghat. Accused was working as Cashier in Employees State Insurance Corporation, Head Office, Parwanoo. Complainant one month before 4.6.2010 had a telephonic conversation with the accused. Accused told him that his medical bill was pending with him and there were some shortcomings and to remove the shortcomings accused demanded Rs. 1,000/-from the complainant. Complainant asked the accused on 3.6.2010 telephonically about his medical bill. Accused asked the complainant to come on next day and bring Rs. 500/-. Complainant lodged a complaint Ex.PW-1/A on 4.6.2010 with PW-11 Ramesh Sharma. He was accompanied by PW-2 Mohinder Verma. On the basis of complaint Ex.PW-1/A, FIR Ex.PW-11/A was registered in the Police Station SV&ACB, Solan. Thereafter pre-trap demonstration was held in the office of Vigilance. Complainant Balbir Kashyap produced five currency notes each to the denomination of Rs. 100/-. Numbers of currency notes were noted down. The currency notes were treated with phenolphthalein powder. The currency notes were handed over to PW-2 Mohinder Verma, a shadow witness with a direction to put the currency notes in the back pocket of trousers of PW-1 Balbir Kashyap. Complainant Balbir Kashyap produced five currency notes each to the denomination of Rs. 100/-. Numbers of currency notes were noted down. The currency notes were treated with phenolphthalein powder. The currency notes were handed over to PW-2 Mohinder Verma, a shadow witness with a direction to put the currency notes in the back pocket of trousers of PW-1 Balbir Kashyap. The vigilance officials, complainant and shadow witness proceeded to Parwanoo and they reached there at 2.30 P.M. Complainant Balbir Kashyap and PW-2 Mohinder Verma proceeded first to the office of ESI, Parwanoo. The vigilance officials stayed back. Complainant entered the office of accused. Accused was present there. He handed over the agreed money on demand made by the accused. Accused put the money in cash box. Complainant gave signal to the shadow witness, who further gave signal to the vigilance officials. The vigilance officials immediately rushed to the room of the accused and caught hold of the accused from his wrists. Hands of the accused were got washed with plain water in the presence of PW-3 Smt. Shashi Dua, Branch Manager, ESIC, Parwanoo. Thereafter, solution of sodium carbonate was added upon which hand wash of the accused turned pink, which confirmed the acceptance of treated currency notes by the accused. Accused produced the currency notes from the cash box and numbers of these currency notes were verified which tallied with the numbers already noted down during the pre-trap demonstration. The envelope containing currency notes and a bottle containing hand wash of the accused were seized vide memo Ex.PW-1/C. The spot map Ex.PW-13/A was prepared by PW-13 Inspector Anil Dhaulta. Accused also produced list of reimbursement bill Ex.PW-1/F, receipt Ex.PW-1/G and photocopy of cheque Ex.PW-1/H. These were taken into possession vide memo Ex.PW-1/J. The case property was deposited in the Malkhana. Necessary entries were made in the Malkhana registered vide Ex.PW-5/A. Nip containing hand wash alongwith sample of seal was handed over to PW-6 HHC Rippan Lal vide RC Ex.PW-5/B on 11.6.2010. He took the same to Forensic Science Laboratory, Junga and deposited the same with PW-9 C.L. Sharma, Assistant Chemical Examiner. According to report Ex.PW-9/A, the hand wash was found to be containing traces of phenolphthalein and sodium carbonate. 3. The prosecution examined as many as 13 witnesses in all to prove its case against the accused. Accused was examined under section 313 of the Code of Criminal Procedure. According to report Ex.PW-9/A, the hand wash was found to be containing traces of phenolphthalein and sodium carbonate. 3. The prosecution examined as many as 13 witnesses in all to prove its case against the accused. Accused was examined under section 313 of the Code of Criminal Procedure. He has denied that he demanded Rs. 500/- from the complainant for the release of bill. He has also denied that he accepted a sum of Rs. 500/- from the complainant. Learned trial court convicted and sentenced the accused, as noticed hereinabove. 4. Mr. G.C. Gupta, learned Senior Advocate has vehemently argued that the prosecution has failed to prove its case. 5. Mr. P.M. Negi, learned Deputy Advocate General has supported the judgment rendered by the Special Judge. 6. I have heard the learned counsel for the parties and have perused the record meticulously. 7. PW-1 Balbir Kashyap has deposed that he received a telephonic call about one month before 4.6.2010 from the accused. He told him that his medical bill was with him and there were some shortcomings. In order to remove shortcomings accused demanded Rs. 1,000/-from him. On 3.6.2010, he asked the accused telephonically about his medical bill. He told him to come over on the next day for disbursement of medical bill after bringing Rs. 500/-. He made a written complaint to Deputy Superintendent of Police (Vigilance) vide Ex.PW-1/A. He was accompanied by PW-2 Mohinder Verma. Pre-trap demonstration was given in the vigilance office by the vigilance officials. He was directed by the vigilance officials not to touch the currency notes time and again and the currency notes were only to be handed over after demand by the accused. He was also given necessary instructions to give signal by touching head by his hand. PW-2 Mohinder was also directed to give signal to vigilance official by putting hand on his mouth. Pre-trap demonstration Ex.PW-1/B was prepared. They went to Parwanoo in a vehicle. He visited the office of accused and accused advised him to request the Branch Manager to release his payment. He requested Branch Manager to release his payment. Thereafter, he went to the office of accused. Accused prepared the receipt of Rs. 7,015/- as payment through cheque. This receipt was handed over to him by the accused for obtaining signatures of Manager over the same. He requested Branch Manager to release his payment. Thereafter, he went to the office of accused. Accused prepared the receipt of Rs. 7,015/- as payment through cheque. This receipt was handed over to him by the accused for obtaining signatures of Manager over the same. He handed over the same to the accused and thereafter cheque was handed over to him. When the accused was writing over the cheque, he stopped writing and asked him as to whether he has brought the agreed money because only then the cheque would be issued. He gave money to the accused. He gave signal. Mohinder Singh gave signal to the vigilance officials. The vigilance officials immediately came into the room of accused. The vigilance officials after disclosing their identity asked the accused as to where he has kept the money taken from him and when the accused denied receipt of money; Manager was called in the room of accused. The vigilance officials conducted hand wash of the accused with plain water in a plate but the colour did not change and thereafter vigilance officials prepared the solution of chemical powder in a glass with plain water the colour of which changed into pink. In his cross-examination, he has deposed that he met accused on 4.6.2010. The complaint Ex.PW-1/A was written by him. He has written Ex.PW-1/A in his house. He has written Ex.PW-1/A before one day before submitting the same to vigilance officials. Mohinder Verma was not with him when he wrote the complaint Ex.PW-1/A. He had narrated to the police that when the accused was preparing the cheque he stopped writing and demanded money. The witness was confronted with mark X-1 wherein it is not so recorded. 8. PW-2 Mohinder Verma is a shadow witness. He accompanied the complainant on 4.6.2010 to the vigilance office, Solan. Complainant had given five currency notes each to the denomination of Rs. 100/- to the vigilance officials, which were treated with chemical powder. The currency notes after treating with chemical powder were handed over to him, which were put in the back pocket of trousers of Balbir Kashyap. Thereafter, his fingers were put into the glass with the solution of chemical and the colour of the solution changed into pink. Balbir Kashyap was directed by the vigilance officials to hand over the currency to the accused only on his demand. Thereafter, his fingers were put into the glass with the solution of chemical and the colour of the solution changed into pink. Balbir Kashyap was directed by the vigilance officials to hand over the currency to the accused only on his demand. He was directed to remain in contact with Balbir Kashyap and when the currency notes were given to the accused he was directed to give signal to the vigilance officials. They proceeded to Parwanoo from Solan. Balbir Kashyap entered into the room of accused and he remained outside the room. Balbir Kashyap was visible to him. Balbir Kashyap gave him signal by touching his head with his hand as already told. He further gave signal to vigilance officials by touching his face. Immediately vigilance officials came there and entered into the room of accused. The vigilance officials caught hold the accused from his both hands and thereafter conducted hand wash of accused after disclosing their identity and called the Manager to the room of accused. The vigilance official opened the cash box of accused in which currency notes five in number each to the denomination of Rs. 100/-were found. The numbers of which were tallied with the numbers already noted down during pre-trap demonstration, which were put into envelope Ex.P-2, which was duly sealed. He has admitted in his cross-examination that he and PW-1 Balbir Kashyap were working as Press Reporters. They published a paper in the name of “Pehli Khabar”. They had been working as Press Reporters for the last three years. They were also working in the factory. The complaint Ex.PW-1/A was written by Balbir Kashyap in his presence. The complaint had already been written before 1-2 days before giving to the vigilance office. There were only two persons when the complaint was written. 9. PW-3 Shashi Dua has deposed that PW-1 Balbir Kashyap came to her office. He asked for release of payment of medical reimbursement. She told him that he has come late and he should have come before noon, but since he told that he has come from Solan, she asked him to produce his ESI card and after verifying his identity, she prepared his pay order in the shape of receipt. She obtained the signature over the receipt and handed over the same to him with the direction to go the accused to get his payment through cheque. She obtained the signature over the receipt and handed over the same to him with the direction to go the accused to get his payment through cheque. Thereafter, accused prepared the cheque and Balbir Kashyap came to her room with cheque for signatures. She signed the cheque. She delivered the cheque to Balbir Kashyap with the direction to obtain the signature s on counter foil of the cheque book. After about half an hour, Inspector Anil Dhaulta came outside her office and requested her to come over to the room of accused. She came to the room of accused and found vigilance team in his room. Inspector Anil Dhaulta disclosed to her that they were members of vigilance team. They told that accused has taken Rs. 500/-from Balbir Kashyap. The vigilance team searched the accused. Thereafter Anil Dhaulta opened the cash box of accused and five currency notes each to the denomination of Rs. 100/-were found there. Thereafter, Inspector Anil Dhaulta handed over to her the numbers of currency notes already noted down to match the currency notes to the currency notes lying in the cash box which numbers tallied with the currency notes lying in the cash box. Hand wash of the accused was conducted by the vigilance official. In her cross-examination, she has deposed that she was Drawing and Disbursing Officer in the office. The payment is passed by her. The cheque book and receipt are signed by her. Accused has no power to make payment of his own. Accused can make the payment after such payment is passed by her. The payment more than Rs. 3,000/- is made through cheque. They retain the original receipt of any payment but they do not retain the photocopy of cheque as the number of cheque is mentioned over the counter foil and receipt. She also admitted that there has never been any complaint against the accused pertaining to release of payment. The vigilance officials had come over in the office after half an hour when Balbir Kashyap handed over the cheque after obtaining her signatures to the accused for payment. The cash box was not locked when it was opened. There was other cash lying in the cash box when it was opened. The vigilance officials did not count the cash nor was it taken into possession. The cash box was not locked when it was opened. There was other cash lying in the cash box when it was opened. The vigilance officials did not count the cash nor was it taken into possession. No wash of cash box and the remaining cash was conducted by the vigilance officials. 10. PW-4 Kumari Cheena Gupta has proved Ex.PW-4/A and Ex.PW-4/B. 11. PW-5 ASI Padam Dev has deposed that Anil Dhaulta deposited one sealed nip of hand wash sealed with seal ‘K’ and one seale d envelope containing currency notes duly sealed with seal ‘K’ alongwith specimen seal impression. The seals were intact as per entry in the Malkhana register. The copy of which is Ex.PW-5/A. On 11.6.2010, the nip containing hand wash duly sealed with seal ‘K’ alongwith sample of seal was handed over to HHC Rippan Lal vide RC No. 11/2010 to be delivered at State Forensic Science Laboratory, Junga. In his cross-examination, he has admitted that register Malkhana was not on the prescribed register maintained in the Police Station. He has also admitted that signatures of depositor were not obtained in the Malkhana register. The signatures of the person to whom the seal exhibits were handed over and delivered at State Forensic Science Laboratory were also not obtained in the Malkhana register. 12. PW-6 Rippan Lal has deposed that he handed over one sealed nip duly sealed with seal ‘K’ alongwith specimen impression of seal to be deposited in the State Forensic Science Laboratory vide RC Ex.PW-5/B. He deposited the same on the same day. He brought the receipt over RC itself and handed over it to MHC. 13. PW-7 Pawan Kumar has deposed that he brought the report of State Forensic Science Laboratory. 14. PW-8 Chet Ram has deposed that constable Pawan Kumar brought one sealed nip alongwith report of State Forensic Science Laboratory from State Forensic Science Laboratory. It was deposited in the Malkhana as per entry in the Malkhana register. 15. PW-9 C.L. Sharma has deposed that one sealed plastic nip bearing one seal of impression ‘K’ of FIR No.8/10 dated 4.6.2010 was received through HHC Rippan Lal on 11.6.2010. After analysis the result of the contents of parcel analyzed physically and chemically traces of phenolphthalein and sodium carbonate were detected in the contents of parcel Ex.P-1. He prepared his report Ex.PW-9/A. 16. After analysis the result of the contents of parcel analyzed physically and chemically traces of phenolphthalein and sodium carbonate were detected in the contents of parcel Ex.P-1. He prepared his report Ex.PW-9/A. 16. PW-10 B.S. Negi, Regional Director, ESI Corporation Baddi has given the prosecution sanction vide Ex.PW-10/A. 17. PW-11 Ramesh Sharma has deposed that complainant Balbir Kashyap accompanied by one Mohinder Verma came in the Police Station and handed over written complaint Ex.PW-1/A on the basis of which FIR Ex.PW-11/A was registered. He constituted a team by associating Inspector Anil Dhaulta, Head Constable Anil and Constable Rippan Lal. Thereafter pre -trap demonstration was given. The pre-trap demonstration is Ex.PW-1/B. He admitted in his cross-examination that there were residential as well as commercial establishments near Police Station SV&ACB, Solan. He did not associate any other person from the surrounding building situated near the Police Station. 18. PW-12 Raj Kumar has deposed that he has conducted investigation partly. 19. PW-13 Anil Dhaulta has testified that the pre-trap demonstration was given in the Police Station. Complainant Balbir Kashyap was directed to give signal by putting his hand over his head after the delivery of currency notes and the shadow witness was directed to further give signal by putting his hand on his nose to the vigilance official after delivery of the currency notes by the complainant. They proceeded from Police Station to Parwano and reached Parwanoo at 2.30 P.M. and thereafter Balbir Kashyap and Mohinder Verma proceeded first to the office of ESI Parwanoo and they stayed back nearby. At about 3.30 P.M. they received signal from Mohinder Verma shadow witness and thereafter they proceeded to the office of ESI Parwanoo and found the accused sitting over his seat and after disclosing his identity the accused was caught hold from his wrists. Complainant Balbir Kashyap disclosed that accused after taking the currency notes have put them in his cash box. He called Branch Manager Shashi Dua from her room to the room of the accused. Thereafter, hand wash of accused was conducted with plain water but the colour of the hand wash of accused did not change. He prepared a solution of sodium carbonate with plain water in a separate glass but the colour did not change. He called Branch Manager Shashi Dua from her room to the room of the accused. Thereafter, hand wash of accused was conducted with plain water but the colour of the hand wash of accused did not change. He prepared a solution of sodium carbonate with plain water in a separate glass but the colour did not change. Thereafter, the solution of sodium carbonate was mixed with the hand wash of accused and the colour of which changed into pink, which was put in a plastic bottle and sealed with seal ‘K’. The currency notes were produced by accused after taking these currency notes from the cash box and the numbers of these currency notes were verified which matched with the numbers already noted down during pre-trap demonstration. The currency notes were put into envelope duly sealed with seal ‘K. In his cross-examination, he has admitted that the building of ESI Branch Office Parwanoo is double storeyed. There are many houses adjoining to this building. The building is above the road at a distance of about 150 meters from the road. There are many shops on the road side. 20. According to PW-1 Balbir Kashyap, he had telephonic conversation with accused one month before 4.6.2010. On 3.6.2010, he inquired from the accused about his medical bill. Accused told him to come over next day after bringing Rs. 500/-. The prosecution has not produced the call details of the alleged conversation, which took place between the complainant and the accused before 3.6.2010 and on 3.6.2010. The prosecution has not established how the complainant knew the telephone number of the accused. According to PW-1 Balbir Kashyap he has written the complaint in his house. PW-2 Mohinder Verma was not with him when he wrote complaint Ex.PW-1/A. However, PW-2 Mohinder Verma in his cross-examination has deposed that complaint Ex.PW-1/A was written by PW-1 Balbir Kashyap in his house in his presence. The complaint had already been written 1-2 days before giving the same to the vigilance officials. There were only two persons when the complaint was written. 21. It has come in the statement of PW-3 Shashi Dua that accused has no power to make payment of his own. According to PW-3 Shashi Dua, when the complainant had come to her, she asked him to produce his ESI card and after verifying his identity, she prepared his pay order in the shape of receipt. 21. It has come in the statement of PW-3 Shashi Dua that accused has no power to make payment of his own. According to PW-3 Shashi Dua, when the complainant had come to her, she asked him to produce his ESI card and after verifying his identity, she prepared his pay order in the shape of receipt. She obtained the signatures over the receipt and handed over the same to him with the direction to get his payment through cheque. Thereafter, accused prepared the cheque and Balbir Kashyap came to her room alongwith cheque for signatures. She signed the cheque and delivered it to Balbir Kashyap with the direction to obtain the cheque from the accused as he was supposed to obtain the signatures on counter foil of the cheque book. It is, thus, evident that the payment was to be cleared by PW-3 Shashi Dua and not by the accused. The pay order in the shape of receipt was prepared by PW-3 Shashi Dua. PW-3 has signed the cheque. Cheques and receipts are also signed by her. The duty of the accused was only to obtain the signatures of the complainant on the counter foil of the cheque book. PW-1 Balbir Kashyap in his statement has deposed that when the cheque was written by the accused, he stopped writing and asked him to hand over the money. However, he was confronted with his statement mark X-1 where it is not so recorded. PW-2 Mohinder Verma is co-worker with PW-1 Balbir Kashyap. Both of them are Pre ss Reporters for the last three years. 22. PW-11 Ramesh Sharma has stated that residential as well as commercial establishments were situated near the Police Station SV&ACB, Solan. However, he has not associated any person from the surrounding building near the Police Station. Similarly, PW-13 Anil Dhaulta has admitted that the building of ESI Branch Office, Parwano is double storeyed. The building is above the road at a distance of about 150 meters from the road. Many shops are situated on the road side. It is not the case of the prosecution that the witnesses were not available. The vigilance officials have not associated any independent witness either from Solan or from Parwanoo. 23. The prosecution has failed to prove that accused has demanded the bribe for the release of payment of medical bill. Many shops are situated on the road side. It is not the case of the prosecution that the witnesses were not available. The vigilance officials have not associated any independent witness either from Solan or from Parwanoo. 23. The prosecution has failed to prove that accused has demanded the bribe for the release of payment of medical bill. The Court has already noticed that the prosecution has not disclosed how the accused knew the telephone number of the complainant. The officers/officials of the ESI are not supposed to know the details of the telephone numbers of the patients. 24. The pre -trap demonstration Ex.PW-1/B was signed by Head Constable Anil Kumar and Constable Rippan Lal. Head Constable Anil Kumar has not been examined by the prosecution. Constable Rippan Lal, who has appeared as PW-6, has only deposed that he deposited one sealed nip duly sealed with seal ‘K’ alongwith specimen impression of seal in the State Forensic Science Laboratory vide RC Ex.PW-5/B. He has not been examined the manner in which pre-trap demonstration was given. 25. According to the prosecution, vigilance officials immediately entered the ESI office and went to the accused. However, it has come in the statement of PW-3 Shashi Dua that she signed the cheque and further delivered the same to Balbir Kashyap with the direction to obtain the cheque from the accused, after about half an hour Inspector Anil Dhaulta came outside her office and wished her and thereafter after sometime again Inspector Anil Dhaulta came to her and requested to come over to the room of accused. It further casts doubt on the prosecution version the manner in which the accused was nabbed. Moreover, accused was not the sanctioning authority of the bills. The sanctioning authority was PW-3 Shashi Dua. 26. According to PW-1 Balbir Kashyap the cash box was got opened by the accused. However, it has come in the statement of PW-3 Shashi Dua that Inspector Anil Dhaulta opened the cash box and five currency notes each to the denomination of Rs. 100/-were found there. PW-2 Mohinder Verma has also deposed that the vigilance officials opened the cash box of the accused in which five currency notes to the denomination of Rs. 100/-were found. PW-3 Shashi Dua has also deposed that there was no complaint against the accused pertaining to release of payment. 100/-were found there. PW-2 Mohinder Verma has also deposed that the vigilance officials opened the cash box of the accused in which five currency notes to the denomination of Rs. 100/-were found. PW-3 Shashi Dua has also deposed that there was no complaint against the accused pertaining to release of payment. PW-13 Anil Dhaulta has deposed that the currency notes were produced by the accused after taking the currency from the cash box and the number of these currency notes were verified which matched with the numbers already noted down during pre-trap demonstration. 27. Statement of shadow witness is to be examined cautiously due to his proximity with PW-1 Balbir Kashyap. There is variance in the statement of PW-1 Balbir Kashyap and PW-2 Mohinder Verma the manner in which complaint Ex.PW-1/A was written. Shadow witness has always tendency to support the complainant. There are material contradictions, inconsistencies and embellishments in the statements of the prosecution witnesses qua the recovery of currency from the accused. The prosecution has failed to prove its case against the accused beyond reasonable doubt. 28. Their Lordships of Hon’ble Supreme Court in Narendra Champakali Trivedi vs. State of Gujarat, AIR 2012 SC 2263 have held that recovery of tainted money from the accused by itself is not sufficient to record conviction. Their Lordships have held as under:- “12. At the outset, we may state that the recovery part has gone totally unchallenged. Though a feeble attempt was made before the High Court and also before us, yet a perusal of the evidence and the test carried out go a long way to show that the amount was recovered from the possession of the accused-appellants. It is the settled principle of law that mere recovery of the tainted money is not sufficient to record a conviction unless there is evidence that bribe had been demanded or money was paid voluntarily as a bribe. Thus, the only issue that remains to be addressed is whether there was demand of bribe and acceptance of the same. Be it noted, in the absence of any evidence of demand and acceptance of the amount as illegal gratification, recovery would not alone be a ground to convict the accused. This has been so stated in T. Subramanian v. The State of Tamil Nadu.” 29. Accordingly, in view of the discussion and analysis made hereinabove, the appeal is allowed. Be it noted, in the absence of any evidence of demand and acceptance of the amount as illegal gratification, recovery would not alone be a ground to convict the accused. This has been so stated in T. Subramanian v. The State of Tamil Nadu.” 29. Accordingly, in view of the discussion and analysis made hereinabove, the appeal is allowed. The judgment dated 26.7.2012 rendered by learned Special Judge, Solan in Sessions Trial No.3-S/7 of 2011 is set aside. Accused is acquitted of the charges framed against him. Fine amount, if already, deposited be released to the accused. Bail bonds are discharged.