Jagar Nath Kaul vs State

Y.P. Nargotra, J.—This Criminal appeal is directed against the judgement of Special Judge Anti Corruption, Srinagar dated 22.09.1980

whereby the conviction of the appellant/accused has been recorded for commission of the offences u/s 5(2) Prevention of Corruption Act 2006

and Section 161 RPC and the accused has been sentenced to undergo of one year's rigorous imprisonment and a fine of Rs. 500 and in case of

default in payment of fine three months further simple imprisonment in respect of each of the offences both the sentences have been ordered to run

concurrently. The case of the prosecution in nutshell is that the accused was working as Establishment clerk in the office of Chief Engineer R&B.

PW-1 was working as Work Supervisor in Sopore Division of R&B wherefrom his case for payment of gratuity had been prepared and sent to

the office of Accountant General who had returned the same to the office of Chief Engineer for Completion. PW-1 when came to know about the

same he went towards the settlement of his gratuity case the office of the Chief Engineer, and there he sought the help of the accused. The accused

demanded Rs. 100/- as illegal gratification however deal was struck at Rs. 50/-P. W. 1 then approached Superintendent of Police gave written

report and consequently FIR Ex. PW 1/1 came to be lodged with anti corruption, Srinagar. The investigation was entrusted to Makhan Lal

Maskeen inspector anti-corruption, Srinagar who decided to lay a trap for catching the accused red handed. The complainant presented three

currency notes of Rs. 10A denomination. The number of the notes were noted down in presence of the witnesses and then returned to the

complainant for payment to the accused. The complainant went in advance to the accused and the raiding party followed and waited outside the

office in which the accused was sitting. The complainant P. W. 1 paid the said three currency notes to the accused and gave a signal to the raiding

party. The raiding party went to the accused and recovered the said currency notes from the accused. The accused was then arrested. The

investigating agency completed the investigation culminating into the charge sheet which was filed in court against the accused after obtaining

sanction of the Competent Authority.

On the basis of the allegations made in the charge sheet charges for commission of the offences u/s 5(2) P. C. Act and Section 161 RPC were

framed against the accused. For proving the charge prosecution examined P. W. 1 complainant Noor Ahmad Malik, PW 2 Abdul Malik Dar,

PW-3 Triloki Nath, PW-4 Mohd. Yousaf, PW-5 Som Nath Kaul, PW-6 Mushtaq Ahmad Malik and PW-7 Raj Nath Ticku and PW-8 Makhan

Lal Maskin.

The accused in his statement u/s 342 Cr. P. c. abjured his guilt by denying the acceptance of illegal gratification and recovery while admitted the

fact of his posting as clerk in the office of Chief Engineer where gratuity case of complainant was pending,

Heard the Ld. counsel for the appellant and Ld. AAG Mr. Rathore for the State. Ld. counsel for the appellant lad me through the evidence

adduced by the prosecution. It will be beneficial to take notice of the salient features of prosecution evidence.

PW-1 complainant stated that he went to the office of the Chief Engineer to enquire from the establishment clerk the accused about his gratuity

case and asked him to process the same. The accused demanded money. He pleaded his inability to pay on account his poverty but accused

insisted for it and ultimately the matter was settled at Rs. 50/-. That he had only thirty rupees so he went to the anti corruption straight and

presented the application Exp 1/1 before S. P. The case was given to inspector Makhan Lal Maskeen to whom he after revealing the story

presented Rs. 30/-. The numbers of which were noted vide memo Exp 1/3. He was searched vide memo Exp 1/4. The signal was settled that

when accused accepts money he should rub his head. Thereafter he went to the office of Chief Engineer where accused asked him whether he had

brought money. He told the accused that he has brought only Rs. 30/- which he should accept and balance he would give later. The accused

accepted the same and kept in his left pocket of his coat. He gave the signal and police came and Magistrate asked the accused to take his hands

up. The accused raised his hands with amount in the fist. He cannot say who recovered the amount. In cross-Examination stated that he gave the

money in presence of clerks but cannot say whether they had seen it or not.

PW-2 a Junior Assistant in the office of Chief Engineer has testified that he was sitting in his office when suddenly anti-corruption party entered

the office and asked the accused to take his hands up and then some person in civil uniform recovered Rs. 30/- from the left hand of the accused.

PW-3 Triloki Nath is a hostile witness who in cross-Examination admitted that complainant in the morning came to the accused. The accused

had demanded money. The payment of bribe was settled at Rs. 50/-, whereafter the complainant left with the promise to come back later with

amount. That after that complainant and anti-corruption party came and Rs. 30/-were recovered from the left hand of the accused. PW-3 Mohd.

Yousaf has stated that in his presence accused was searched and Rs. 30/- were recovered from him. P. W. 4 has identified his signatures on the

letter Ex PW 5/1 to the establishment clerk the accused. PW. 5 Mushtaq Ahmad Malik (Magistrate) has stated that on 2.11.76 he was Naib

Tehsildar Khanamo, on the direction of Tehsildar he went to Anti-Corruption office where he was asked to see Inspector Makhan Lal. There

complainant expressed that bribe was being demanded from him. He presented Rs. 30/- the numbers which were noted in Ex PW 1/3. The notes

were returned to the complainant and then they went on foot to the spot where the complainant and the two police officials went ahead while he

and Muskeen (Inspector) followed them to the office on 2nd floor and waited in the varandah. The complainant was searched in his presence who

had only Rs. 30/-. P. W. 6 Raj Nath Ticko an official of Anti-Corruption stated that the complainant entered the office of Chief Engineer and after

sometime the signal was received on which Magistrate, Makhan Lal, Ali Mohd. have entered the room of the accused. The party was introduced

the accused and he was asked to take his hands up. The currency notes were in the left hand. The accused was asked to show the notes to the

Magistrate. The numbers were tallied. P. W, 7 Makhan Lal Maskeen has given the details of the investigation. He has also stated that after the

receipts of the signal he alongwith other officials entered the room and found the accused sitting on his chair. He was directed to raise his hands.

The fist of left hand of the accused was closed, the Naib Tehsildar asked him to open his hand. On opening the same three notes often rupee

denomination were recovered.

In order to prove guilt of the accused the prosecution under law is bound to prove the facts constituting the offence cogently and conclusively

without any shadow of doubt. Before going to the question whether prosecution has succeeded in discharging its legal obligation it would be apt to

recapitulate the position of law in regard to the offences u/s 5(2) P. Section Act and Section 161 RPC which the prosecution was to prove against

the accused. These sections provide:

(2). Any public servant who commits misconduct shall be punishable with imprisonment for a term which shall not be less one year but which may

extend to seven years and shall also be liable to fine. Provided that the court may, for any special reasons recorded in writing impose a sentence of

imprisonment of less than one year but not less than six months.

Public servant taking gratification other than legal remuneration in respect of an official act. -whoever,being or expecting to be a public

servant, accepts or obtains or agrees to accepts or attempts to obtain from any person, for himself or for any other person, any gratification

whatever, other than legal remuneration, as a motive or reward for doing a forbearing to do any official act or for showing or forbearing to show, in

the exercise of his official functions favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any

person, with the Government or the State Legislature or with any public servant, as such shall be punished with imprisonment of either description

for a term which may extend to three years, or with fine, or with both.

From the bare reading of the aforequoted sections it manifestly emerges that for proving the offence of bribe taking it is necessary to prove that

accused demanded the payment as illegal gratification and that the money or other thing was offered as illegal gratification and the accused

accepted the same as such. However going by the nature of the offence it may be difficult to catch the culprit because bribe is oftenly demanded

and accepted in secrecy to avoid detection and therefore out of necessity the mode of laying traps has been recognised as a legal mode of crime

detection. Thereby planted witnesses are provided to watch the demand of illegal gratification made by the accused, the passing of the gratification

and the recovery of the same to prove the offence of bribe. Generally to provide corroboration to the testimony of the bribe given so as to rule out

false implication of the accused a shadow witness is posted near the place where transaction between the bribe giver and the bribe taker takes

place and the money to be offered as bribe is also sometime treated with phenolpathelene powder so that handling of such marked currency notes

by the public servant can be detected by chemical process and the court has not to depend on oral evidence only which is sometimes of a dubious

character for the purpose of deciding the fate of the public servant. The bribe giver though enjoys immunity from prosecution in a trap but all the

same remains in law a partisan witness and there is always a necessity or corroboration to his evidence. In Rao Shiv Bahadur Singh and Another

Vs. The State of Vindhya Pradesh, their Lordship held.

It must be said however that neither nagindas nor pannalal nor as a matter of fact Sir Chinubhai, their principal was a willing party to the giving

of the bribe to the appellant No. 1. Their evidence therefore could not be treated as the evidence of accomplices. Their evidence was nevertheless

the evidence of partisan witnesses who were out to entrap the appellant No. 1. A perusal of the evidence of nagindass and Sir Chinubhai leaves in

the mind the impression that they were not witnesses whose evidence could be taken at its face value.

In Raghbir Singh Vs. State of Punjab, it has been held as follows:

where a trap is laid for a public servant, it is desirable that the marked currency notes, which are used for the purpose of trap, are treated with

phenolpthalein powder so that the handling of such marked currency notes by the public servant can be detected by chemical process and the

court does not have to depend on oral evidence which is sometimes of a dubious character for the purpose of deciding the fate of the public

servant. Som Prakash Vs. State of Delhi, , Rel. No. para 11.

In the present case it has been seen that neither shadow witness was deputed to watch the demand of illegal gratification and acceptance of

money as illegal gratification by the accused at the time when bribe money allegedly changed hands nor any phenolpathelene test was employed.

On these two ingredients there is no independent evidence available except the uncorroborated sole testimony of the complainant P. W. 1 in 1963

KLJ 1 this Court has held:

In law for convicting a person for obtaining bribes, it was necessary to establish three ingredients, namely:--demand, Acceptance and

recovery of the bribe. All the three requirement must be fulfill by the prosecution. Mere recovery of money does not mean that the appellant must

have demanded the same and accepted the same. "" His Lordship further observed:

In cases of corruption there must be some evidence for demand as otherwise money could be secretly put in the hand or pocket of any body

and later recovered and described as 'bribe money. 'It must positively be established that the demand was made. It must also be established that

the demand was made. It must also be established that bribe taker consciously accepted the money as bribe. There must be recovery of the bribed

money in a manner which could convince that the recovery was in accordance with the rules and law. Had the notes in this case been powered and

later the hands of the appellant washed it might have assisted in establishing that the accused had consciously accepted the money.

The uncorroborated sole testimony of the complainant P. W. 1 cannot be accepted to hold that the accused had demanded and accepted the

money as illegal gratification. In 1988 C. L. I. 1031 (P&H) it was held:

The prosecution case was that on receipt of complaint from the complainant that the Forest guard was demanding bribe of Rs. 250A from him for

alleged illegal felling of trees without permit, the police officer laid a trap according to which the complainant was given marked currency notes of

Rs. 250/- treated with phenolphthalene powder and the shadow witness had heard the accused demanding bribe money from the complainant and

seen the latter giving the currency notes to the accused which were recovered from the shirt pocket of the accused. This statement was recorded

by the police officer. During trial the shadow witness resiled from his statement to the police and contradicted the prosecution case on all material

points whereupon he was declared hostile. In such a case the statement made by the witness in court that he had not acted as a shadow witness

and no currency notes were given to the accused in his presence must be accepted as true since his earlier statement recorded by the police officer

was not proved by him when he was examined as a witness. The statement of the witness cannot be excluded from consideration altogether and

can be taken benefit of by both sides and in view of the said statement the prosecution story could not be believed. Therefore, since there was no

evidence at all to prove that any demand was made by the accused to the complainant before he was alleged to have delivered the currency notes

to the accused, no offence was made out against the accused u/s 5(2} read with Section 5(l)(d) or u/s 161. Moreover, Since on an earlier

occasion the complainant was challenged on the report of the accused for illegal felling of trees, the complainant could not be said to be an

independent person on whose testimony implicit reliance could be placed. 1987 Cri. LJ 1987 2 reports 49 (Punj & Har.), Rel. on.

The present case is ever worse than the case before the Punjab and Haryana High Court as there was shadow witness but in the present case

no shadow witness had been kept.

Ld. trial court has held that on the demand of P. W. 1 stood duly corroborated by the evidence of P. W Triloki Nath in whose presence the

deal was struck between the accused and the complainant. Ld. trial court appears to have fallen in error by contemplating the proof of demand of

illegal gratification sometime prior to the actual transaction was sufficient in my opinion such demand only laid the basis for the complainant for

lodging the FIR. For proving the offence the proof of the demand of illegal gratification in pursuance of which the bribe money is actually paid is

necessary. If when money is actually paid in pursuance of such demand it can be said that money was paid as illegal gratification to the accused.

In the present case all that has been proved is that tainted currency notes were recovered from the possession of the accused. There is no

proof of the circumstances under which it was paid to the accused. Ld. AAG argued that from the recovery of tainted currency notes presumption

be drawn against the accused u/s 4 of the P. C. Act that he received the notes as illegal gratification. Section-4 reads:-

Presumption where public servant accepts gratification other than legal remuneration.... (1) where in any trial of an offence punishable u/s 161

or Section 165 of the Ranbir Penal Code, 1989 or an offence referred to in clause (a) or clause (b) of Sub-section (1) of Section 5 of this Act

punishable under Sub-section (2) thereof it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to

obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be

presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable

thing, as the case may be, as a motive or reward such as is mentioned in the said Section 161 or, as the case may be, without consideration or for

a consideration which he knows to be inadequate.

From the bare reading of the section it is manifest that the presumption can be drawn only when it is proved that the accused received the

notes as gratification. There should be cogent and dependable evidence which is not available in this case, to prove that money was paid as the

gratification. Mere recovery of tainted money devoid of circumstances under which it was paid is not sufficient for drawing the presumption.

Therefore authority AIR 2001 SC 318 relied upon by Ld. AAG is of no application to the case in hand.

In Suraj Mal Vs. State (Delhi Administration), the Hon'ble Supreme Court has observed and held as follows:

Mere recovery by itself cannot prove the charge of the prosecution against the appellant in the absence of any evidence to prove payment of bribe

or to show that the appellant voluntarily accepted the money.

The prosecution therefore has failed to prove its case against the accused cogently and completely beyond all shadow of doubt. The appeal is

therefore allowed. The judgement of the Ld. trial court as such is set aside and the accused is acquitted of the charges.