Anand Prakash vs C.B.I

Sunil Gaur, J.—In the present appeal, appellant- Anand Prakash has challenged the impugned order of 30th September, 2009, passed by

the trial court, whereby appellant has been held guilty and convicted for the offence u/s 7 of the Prevention of Corruption Act, 1988, to undergo RI

for a period of two years and to pay fine of Rupees five thousand and in default of payment of fine, to undergo SI for six months. Further, the

appellant has also been held guilty and convicted u/s 13(1) (d) of the Prevention of Corruption Act, 1988, and has been ordered to undergo RI for

two years and fine of Rupees five thousand and in default of payment of fine, to undergo SI for six months. However, both the sentences of the

appellant have been ordered to run concurrently.

The brief facts, as emerging from the record of this case, are as follows:

As on 2nd March, 1995, while the appellant/accused-Anand Prakash was working as Reader, in the Court of Sh. Dharmesh Sharma, Civil Judge,

Tis Hazari Courts, Delhi, the learned ADJ, in a case bearing titled as Raj Kumar v. Saroop Singh Civil Suit No. 844/1993, on an application under

Order XXXIX R 2-A CPC, observed that the said application could be disposed of only after completion of recording of evidence in the matter.

On 4th March, 1995, the complainant- Raj Kumar, applied for the certified copy of the same order and on 6th March, 1995, complainant-Raj

Kumar moved a written application with the C.B.I. that the Reader of the aforesaid court was demanding Rs. 50/- for supplying him the copy of

the order and has asked him to bring money on 6th March, 1995, at 3:00 p.m.

On the basis of the written complaint made by Complainant- Raj Kumar, a case was registered by the C.B.I. and a trap was laid. Inspector Azad

Singh, Investigating Officer of this case, organized a raiding team which comprised of C.B.I. officials and two panch witnesses. After the

completion of the pre-raid formalities, which comprised of introducing the complainant to the witnesses, arranging five G.C. Notes in the

denomination of Rupees 10 each and treating them with phenolphthalein powder and live demonstration of its reaction, complainant was asked to

handover the said G.C. Notes only on demand made by the appellant/accused. Pre-trap Memo Ex. PW1/B was got prepared. Thereafter, at

about 3:50 p.m., the trap party reached court room No. 234, Tis Hazari Courts, and during the conversation when complainant-Raj Kumar

demanded copy of the order dated 2nd March, 1995, the appellant/accused demanded bribe of Rs. 50/-. The complainant offered the money to

appellant/accused, which were infact G.C. Notes, and he accepted the same in his right hand and counted with both the hands. On the request of

the complainant, the appellant/accused, out of Rs. 50/-, in the denomination of Rs. 10 each, returned Rs. 10/- to the complainant and kept the

balance amount in his pocket. In the meanwhile, shadow witness-Mahinder Kumar gave pre-decided signal to the trap party and

appellant/accused was apprehended. During the personal search of the appellant /accused, the G.C. Notes were recovered and wash of right

hand, left hand and pant pocket of the appellant/accused was done and since the solution of sodium carbonate turned pink, those washes were

transferred into separate bottles, sealed, labeled and were sent to C.F.S.L. for analysis. After completion of the investigation, C.B.I. filed charge

sheet u/s 7 and 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988, against the appellant/accused.

The trial court framed charges against the accused under the aforementioned Sections and since the appellant/accused did not plead guilty to the

same, the trial court proceeded with the trial of the case .

During trial, in support of its evidence, prosecution examined nine witnesses which were Complainant-Raj Kumar (PW1), Mahinder

Kumar(PW-2), Sh. Dharmesh Sharma, Metropolitan Magistrate (PW-3), Rajinder Singh (PW-4), Manjit Singh (PW-5), V.S. Bisaria, (PW-6),

Inspector Azad Singh (PW-7) and Hukum Chand (PW-8). Inspector Ved Prakash was examined as PW-9, being the Investigating Officer of this

case.

Thereafter, statement of appellant/accused, u/s 313 of the Cr.P.C., was recorded by trial court, of denial of prosecution case. Sole defence

witness is co-worker of the appellant/accused.

After conclusion of the trial, appellant/accused has been held guilty for the offences u/s 7 and 13(2) read with Section 13(1) (d) of the

Prevention of Corruption Act, 1988, and vide impugned judgment, he is sentenced, as mentioned in the opening paragraph of this order.

Being aggrieved by the order of the learned Special Judge, CBI Court, Delhi, the present appeal has been preferred by the appellant/accused.

Both the sides have been heard and with their assistance, evidence on record has been scrutinised.

Learned senior counsel for Appellant contends that Appellant was a Court Reader and was not competent to give the certified copy of the

order to the complainant (PW-1) who is a person of shaddy character and is involved in number of criminal cases. It is pointed out that in the

complaint Ex. PW-1/A, the alleged demand of bribe by Appellant was for giving of certified copy of the order sought by the complainant, whereas

in the evidence before the court, complainant (PW-1) has stated that the alleged demand of bribe by the Appellant was to give photocopy of the

order dated 2nd March 1995. It is further pointed out that the Complainant (PW-1) is involved in six criminal cases and is a bad character of

Police Station Subzi Mandi and he has remained behind bars in FIR No. 110/97 and he has stated in his evidence that he was interested in giving

bribe to the Appellant and therefore, he is not a reliable witness.

It has also been contended on behalf of the Appellant that the prosecution story of the Appellant allegedly returning Rs. 10/- is not at all

probable and the application Ex. PW-3/A for the certified copy of the order in question was neither written nor signed by the Complainant (PW-1)

and it was written by Shri O.P. Sharma, Advocate, who is not a witness in this case.

Attention of this Court has been drawn to the evidence of the Raid Officer (PW-7), to point out that he has admitted that the hand wash and

pocket wash of the Appellant/accused was not taken at the spot and shadow witness (PW-5) has admitted that he had not given a search to

anyone present at the spot, before he had allegedly taken out the tainted money from the pocket of the Appellant/accused and therefore, possibility

of tainted money being put in the pocket of the Appellant/accused cannot be ruled out.

A doubt is sought to be cast upon the prosecution case by learned senior counsel for Appellant by contending that neither the Presiding Officer

was informed about the raid nor he was called from his chamber after the alleged apprehension of the Appellant/accused in the court room and the

court''s staff present at the spot have not been made witness to the spot proceedings and all this renders the entire raid proceedings and the alleged

recovery highly doubtful and the conviction of the Appellant/accused is illegal and in the last, it is contended that in view of the aforesaid infirmities

in the prosecution case, Appellant/accused deserves to be given benefit of doubt and is thus, entitled to an acquittal in this case.

On behalf of the Respondent, it has been stated that from the evidence on record, it stands firmly established that the Appellant/accused had

demanded and accepted the bribe of Rs. 40/- from the Complainant (PW-1) of this case and the recovery of the bribe money from the

Appellant/accused also stands proved, which gives rise to a statutory presumption u/s 20 of Prevention of Corruption Act, 1988. It is submitted

that the Appellant/accused has failed to rebut the aforesaid statutory presumption raised against him. Reliance has been placed upon explanation

(e) to Section 7 of the Prevention of Corruption Act, 1988 and upon a decision of the Bombay High Court, reported in AIR 1952 Bombay 58, to

contend that a public servant may not be in a position to himself do the work for which he had taken bribe, but he makes a representation that the

work would be done, then the offence committed would come within the mischief of section 161 of Indian Penal Code, which is para materia with

Section 7 of the Prevention of Corruption Act, 1988. Thus, it is submitted that the conviction and the sentence imposed upon the

Appellant/accused is just and proper and there is no merit in this appeal.

Upon hearing both the sides and on scrutiny of the evidence on record, I find that it would not be fair to read a part of the sentence in piece

meal, to draw an inference against a witness. It is true that it has come in the evidence of Complainant (PW-1) that ""he was interested in paying the

bribe?, but this sentence has to be read as a whole, to understand its true import and this sentence reads as under:

I was interested in paying the bribe and therefore, I went to CBI office in the morning at around 12 Noon and lodged the complaint.

Upon reading of the aforesaid sentence, it becomes clear that due to typographical error, the word ""not"" before ""interested"" is missing in the

sentence and even if this sentence is read as it is, it makes no sense in complainant going to the CBI office, if he was interesting in giving the bribe.

On hyper technicalities, substantial justice cannot be sacrificed and benefit of sheer typographical error cannot be given to the

Appellant/accused. To do so, would be highly unfair. Law is based on common sense and its application has to be in the right perspective. A bare

reading of the complaint Ex. PW-1/A makes it clear that the demand of bribe by the Appellant/accused was for supply of the copy of the order in

question. There is no whisper in the complaint that the demand of bribe was made for supply of certified copy of the said order. Therefore, there is

no apparent contradiction between the aforesaid complaint and the evidence of Complainant (PW-1) regarding bribe being demanded by the

Appellant/accused for supply of photocopy of the order mentioned in the application for supply of certified copy. It is a matter of record that the

Appellant/accused had got the application for certified copy tendered by the Complainant (PW-1) to the Appellant/accused, allowed from the

Presiding Officer (PW-3) but the said application was recovered, after the raid, from the office table of the Appellant/accused.

To my mind, it would be nothing more than hair splitting, to contend that in the Complaint Ex. PW-1/A the demand of bribe was made for

supply of certified copy of order, whereas in the evidence, the Complainant (PW-1) has improved upon, by stating that it was for providing with a

photocopy of the order in question. I am of the considered opinion that nothing turns on this fine hair splitting. Complainant (PW-1) may have been

involved in number of criminal cases, but that by itself cannot be a ground to presume against him that he would falsely implicate the

Appellant/accused. No reason is forthcoming as to why the Complainant (PW-1) would falsely implicate the Appellant/accused in this case.

There is clinching evidence on record to establish that the Complainant (PW-1) on meeting the Appellant/accused had exchanged greetings

and the Complainant (PW-1) had told the Appellant/accused ""hamari copy de do'' and the Appellant/accused responded by saying ''pehle pachas

rupaye do'' and the complainant (PW-1) retorted by saying ''kuch kam kar lo'' and then Appellant/accused stated that ''chalis rupaye de do''.

Prosecution case cannot be doubted merely on the ground that the Appellant/accused had returned Rs. 10/-to the Complainant (PW-1)

because it has come in the evidence that after bargain, the bribe amount was settled at Rs. 40/- and since the treated G.C. Note of Rs. 50/- was

given by Complainant (PW-1) to the Appellant/accused, therefore in normal course, he had returned Rs. 10/- to the Complainant (PW-1) and

there is nothing unusual about it.

Application for certified copy Ex. PW-3/A, with endorsement of Presiding Officer on it, was seized by the Trap Laying Officer (PW-7) from

the office table of the Appellant/accused. How does it matter that it was written by the counsel of the Complainant (PW-1) and was bearing the

signature of the counsel and was having court fee stamp of Rs. 10.50 p. instead of Rs. 11/-. The seizure of the aforesaid application from the office

table of the Appellant/accused, by itself incriminates the Appellant/accused as it provides a cause for the Appellant/accused to demand and accept

the bribe from the complainant of this case. The recovery of the bribe amount from the pant pocket of the Appellant/accused, not only stands

proved from the evidence of Complainant (PW-1) but also from the evidence of shadow witnesses (PW-2) and (PW-5). The evidence of Trap

Laying Officer (PW-7) clinches the whole case as the colorless chemical solution in which the hands of the Appellant/accused were dipped, had

turned into pink and as per CFSL report, Ex. PW-6/A on record, it had tested positive for phenolphthalein and sodium carbonate, with which the

bribe amount was treated with.

Aforesaid scientific evidence in the form of CFSL report, Ex. PW-6/A conclusively connects the Appellant/accused with the offence in

question and raises a rebuttable statutory presumption u/s 20 of the Prevention of Corruption Act, 1988 against the Appellant/accused. For

drawing the aforesaid statutory presumption against the Appellant/accused, the apt observations made by the Apex Court in the case of T.

Shankar Prasad Vs. State of Andhra Pradesh, deserves to be noticed and they read as under:

When money was recovered from the pocket of one of the accused persons, a presumption u/s 20 of the Act is obligatory. It is a presumption of

law and casts an obligation on the court to operate it in every case brought in Section 7. The presumption is a rebuttable presumption and it is by

proof and not by an explanation which may seem to be plausible.

To rebut the aforesaid statutory presumption raised against the Appellant/accused, he has not lead any evidence in defence and the stand taken

by him in his statement u/s 313 Cr. P.C. before the trial court is as under:

This is a false case. PW-1 Raj Kumar is the complainant. He is an accomplice in the eyes of law. He has criminal background. He is in the habit of

making false complaints against public servants. He also leveled allegations against the Presiding Officer of the trial court. He is a bad character of

the area. PW2 Mahinder Kumar and Manjit Singh PW5 are government servants, and are not independent witnesses. They have deposed out of

fear of departmental action. I was not competent to issue certified copy of any order or judgment and there was no occasion for me to demand or

accept the bribe from the complainant. It is pertinent to note that application Mark A is not even signed by the complainant nor it is filled up by

him, I am innocent in the entire matter, I neither demanded nor accepted any money from him. Raid is illegal and motivated because it was laid

inside the court premises without the permission either of the presiding officer or of the Hon''ble District & Sessions Judge, Delhi.

To say the least, the aforesaid stand of the Appellant/accused does not in any manner rebut the statutory presumption raised against the

Appellant/accused. Since two shadow witnesses were with the raiding team, therefore, there was no requirement of joining any other public

witness at the time, the spot proceedings were conducted by the Trap Laying Officer. This is so said because nothing has been brought out in the

cross-examination of the shadow witnesses (PW-2) and (PW-5) to show that they were in any way interested in falsely implicating the

Appellant/accused in this case or that they were under any undue influence of the Trap Laying Officer of this case. The pertinent observation made

on this aspect, by the Apex Court in the case of State of U.P. v. Zakaullah 1998 SCC (Cri) 456, are as under:

The necessity for ""independent witness"" in cases involving police raid or police search is incorporated in the statute not for the purpose of helping

the indicated person to bypass the evidence of those panch witnesses who have had some acquaintance with the police or officers conducting the

search at some time or the other. Acquaintance with the police by itself would not destroy a man''s independent outlook. In a society where police

involvement is a regular phenomenon many people would get acquainted with the police. But as long as they are not dependent on the police for

their living or liberty or for any other matter, it cannot be said that those are not independent persons. If the police in order to carry out official

duties, have sought the help of any other person he would not forfeit his independent character by giving help to police action. The requirement to

have independent witness to corroborate the evidence of the police is to be viewed from a realistic angle. Every citizen of India must be presumed

to be an independent person until it is proved that he was a dependant of the police or other officials for any purpose whatsoever.

In any case, there is no cross-examination of the Trap Laying Officer (PW-7) as to why the witnesses present on the spot were not joined at

the time of conducting the spot proceedings. Much emphasis has been laid by the defence on one line in cross-examination of the Trap Laying

Officer (PW-7) to show that the hand wash and pant pocket wash of the Appellant/accused were not taken at the spot.

The evidence of the Trap Laying Officer (PW-7) on this aspect, reads as under:

It is correct that neither the hand wash nor the pocket wash or the accused were taken at the spot...

It is the prosecution case that the hand wash and pocket wash of the Appellant/accused was taken at the spot and the aforesaid admission

made by the Trap Laying Officer (PW-7) to the detriment of the prosecution case can be said to be a typographical error and even if, it is read as

it is, still it would mean that it was taken elsewhere. But this by itself would not be sufficient to exonerate the appellant/accused, because it is not

the case of appellant/accused that the hand and pocket washes of appellant/accused were tampered with, nor it can be so inferred from the

evidence on record. As per the evidence of CFSL expert (PW-6), exhibits of this case i.e. bottles containing hand and pocket washes of

appellant/accused were intact, which conclusively rules out the tampering of these exhibits. Thus, so-called aforesaid lacunae does not demolish the

cogent evidence of acceptance of bribe money by the appellant and of the hand/pocket wash of the appellant/accused testing positive.

Furthermore, it is not the case of appellant/accused, as to where else these washes were taken, and appellant does not assert that they were

tampered with.

In the final analysis, notwithstanding the inadvertent omission or otherwise, so-called lacunae in evidence of trap laying officer, the prosecution

case of demand, acceptance and recovery of bribe money from the appellant, stands firmly proved from the cogent evidence on record. As a

consequence, impugned judgment, holding appellant guilty of accepting bribe of Rs. 40/- from the complainant, is accordingly upheld.

In the facts and circumstances of this case, the substantive sentence awarded to appellant by trial court is reduced to R.I. for six months for the

offence u/s 7 of the Prevention of Corruption Act, 1988, and to R.I. for one year for the offence u/s 13 (2) of Prevention of Corruption Act, 1988.

Appellant is on bail. His bail bonds are cancelled. He is directed to surrender forthwith, failing which, trial court is directed to take him into custody

to serve out the modified sentence, as awarded above.

Before parting with this order, I would like to remind the trial Judges that recording of evidence is the most crucial part of the trial, especially,

criminal trial and that too at sessions level. Trial courts have to be quite alert while the evidence in sessions trial cases is being recorded, so that

inadvertent lapses do not occur in the evidence, as it has happened in this case. The District and Sessions Judge-I, Delhi is called upon to impress

upon the learned Additional District and Sessions Judges about the need to record evidence with a greater sensitivity.

Copy of this order be sent to the District and Sessions Judge-I, Delhi, for doing the needful.

With aforesaid directions, this appeal is accordingly disposed of.