Jagdish Singh Malhotra vs State

S.I. Jafri, J.—The instant appeal preferred by Appellant Jagdish Singh Malhotra, arises out of Special Sessions Trial No. 5 of 1982, State versus Jagdish Singh Malhotra, in which Appellant was convicted u/s 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 and sentenced to undergo R.I. for four years'' and also a fine of Rs. 4000/- and in default of payment of fine, he was to undergo RI for one year. The Appellant was further convicted u/s 161 IPC and sentenced to undergo two years RI.

To dwell upon the preliminaries of the prosecution case Jagdish Singh Malhotra was a public servant being posted as Regional Inspector (Technical) in the office of Regional Transport Officer, Kathgodown, Nainital at the relevant time in the year 1981. On the other hand the complainant of the case, namely, Shyam Sunder PW 6 was the owner of a number of Matador Taxis plying in the district of Nainital. At the relevant time, he was also working as Secretary of Shyam Matador Union, Kichcha District Nainital and this Union used to take care of the interest of the members plying their Matador Taxis in the same district.

The broad facts resulting in the occurrence of the instant case are that the complainant Shyam Sunder in the capacity of the secretary of the aforesaid Union used to make frequent visits to the office of Regional Transport Officer Kathgodown in connection with the affairs of the Union and on 10-8-1981 as well, the complainant went to the Office of RTO Kathgodown in order to secure a fitness certificate of his vehicle No. P.J.O. 3435 and, consequently, he deposited a sum of Rs. 24/- as fee. Thereafter, he approached Appellant Jagdish Singh Malhotra, Regional Inspector (Technical) to issue the requiste certificate. It is alleged that the Appellant made an illegal demand of Rs. 1000/- from the complainant for issuance of a fitness certificate The complainant made earnest solicitations to the aforesaid Appellant but he did not relent. Thereafter, complainant again deposited a sum of Rs. 277.50 p. as a road-tax on 11-8-1981 to ply vehicle in the State of U.P. and he again approached the aforesaid Appellant with the receipts and papers of the vehicle imploring to issue fitness certificate but the Appellant is alleged to have stuck to his earlier demand of illegal gratification. On drawing a blank, the complainant is alleged to have withdrawn Rs. 277.50 p. which he had deposited in the office of RTO on 11-8-1981 as road-tax for plying the vehicle in the State of U.P. As the complainant had been asked by the Appellant to meet him with the money on 14-8-1981, the complainant came back and held consultations with the members of the aforesaid union. Thereafter, a sum of Rs. 1000/- was collected by aforesaid members of the Union in the denomination of eight currency notes of Rs. 100/- each, four currency notes of Rs. 50/-each for being offered to the Appellant as illegal gratification. Thereafter, complainant Shyam Sunder along with Lakhpat Rai, PW 5, Dharam Singh went to the office of Deputy Supdt. of Police Vigilance Establishment, Nainital where Ram Anuj Singh, Dy. Supdt. of Police, Vigilance Establishment met him and he narrated the entire events to the aforesaid Deputy Supdt. of Police including the fact that an illegal demand of Rs. 1000/- had been made from him by the Appellant. Upon this, complainant was directed by the aforesaid Dy. Supdt. to meet B.D. Thapalyal Inspector in the vigilance Establishment for the needful. Thereafter, complainant met Inspector B.D. Thapalyal in his office and handed over to him his complaint Ex. Ka 12, wherein he had set out all the details of the events and also the illegal demand of Rs. 1000/- made to him by the Appellant. It was also solicited in the complaint by the complainant that a trap may be laid in order to arrest the Appellant red-handed. The complainant, then, handed over the aforesaid currency notes to Inspector B.D. Thapalyal, who after tallying the number of the currency notes with that of the numbers mentioned in the complaint, treated those currency notes with phenolphthalein powder and handed the same back to the complainant instructing him to deliver the same to the Appellant. Inspector Ramesh Chand Pandey and Inspector B.D. Thapalyal prepared a solution of Sodium Carbonate and tested the aforesaid powder in the solution of Sodium Carbonate. The aforesaid solution turned pink and a sample thereof was preserved in a phial and sealed accordingly. A memo was prepared in the presence of complainant and two witnesses, viz. Ramesh Chand Pandey and Dharamsil, Lakhpat Rai and the witnesses put their signatures on the aforesaid memo Ex. Ka 2. After completing the aforesaid formalities, B.D. Thapalyal PW 1, along with Ramesh Chand Pandey Inspector, Bhim Singh Constable, Ranvir Singh and the witnesses including Lakhpat Rai, PW 5 left for Kathgodown and arrived at the office of RTO Kathgodown by means of a taxi and a Matador. On way to Kathgodown Inspector Thapalyal picked up Ramesh Pal and Madan Lal as witnesses from a tea-stall on the left side of the road near the RTO office and they were apprised of the trap being laid for the Appellant, on reaching the office of RTO in the after-noon, Inspector B.D. Thapalyal directed the complainant to go inside the office of the Appellant in order to deliver the money, whereupon complainant went inside the office of the Appellant whereas the raiding party consisting of B.D. Thapalyal,

Inspector Pandey and others hovered around behind the doors of the aforesaid office at about 3.30 P.M. on 14-8-1981 in order to over hear the talks due to take place between the complainant and the Appellant inside the office. It is alleged that on entering the office of the Appellant, the complainant handed over the papers of the aforesaid vehicle for issuing the fitness certificate of the vehicle to the Appellant who, on learning from the complainant that he had brought the demanded money, assured the complainant that the fitness certificate would soon be issued to him. Thereafter, complainant delivered the said currency notes to the Appellant, who counted the same, took out the purse from his left pocket and was about to place those currency notes in the purse when the raiding party entered the office of the Appellant and disclosing the identity, B.D. Thapalyal caught hold of the hands of Jagdish Singh Malhotra Appellant and recovered from his right hand, the currency notes and a black purse from his left hand. Thereafter, B.D. Thapalyal tallied the number of the currency notes recovered from the Appellant with that of noted down by him in the memo On further search of his person, by B.D. Thapalyal one currency note of the denomination of Rs. 20 and one of the denomination of Rs. 5/- were recovered. Besides the above, from the pocket of the accused, a further amount of Rs. 2075/- was also recovered. The Appellant was taken into custody and a recovery memo Ex. Ka 4 was prepared in the presence of witnesses Shyam Sunder (complainant). Dharamseel, Lakhpat Rai, Ramesh Chand Pandey and others. Ramesh Chand Pandey got the hands of the accused washed in the solution of sodium carbonate and the colour of the solution turned pink. The aforesaid hand washed solution was sealed in a separate phial which was neat and clean and a memo Ex. Ka 3 was prepared on the spot in the presence of the witnesses. Papers Ex. 14/1 to 14/5 which were signed by the Appellant were also taken into custody by B.D. Thapalyal and a memo Ex. Ka 4 was prepared. Thereafter the accused and the recovered articles were brought to Police Station Haldwani where Inspector Thapalyal wrote down a written report Ex. Ka 5 and lodged the same at 6.15 P.M. on 14-8-81 at the aforesaid Police Station. He also deposited the two sealed phials at the Police Station. A chik report of the occurrence was prepared on the basis of Ex. Ka 5 and a case u/s 161 IPC and 5(2) of the Prevention of Corruption Act was registered against the Appellant at the Police Station. The Appellant was put behind the lock up.

The investigation in the case was conducted by Bhim Singh, PW 9 of Vigilance Establishment, Nainital on the orders of Supdt. of Police, Vigilance Establishment Nainital. During the course of investigation, the aforesaid solution Ex. 14 was sent for being analysed by the chemical Examiner in a sealed cover. After completing the investigation, Charge sheet Ex. Ka 18 was submitted against the Appellant. A sanction Ex. Ka 19 was also obtained from Transport Commissioner for launching prosecution against the Appellant.

The prosecution examined nine witnesses in all in sunport of its case and out of them B.D. Thapalyal, PW 1, Lakhpat Rai, PW 5. Shyam Sunder PW 6, were examined as witnesses of recovery and the remaining witnesses were of formal nature.

Accused-Appellant pleaded not guilty to the charge. He denied the recovery of Rs. 1000/- from him as bribe and ascribed his implication in the case of enmity with the complainant as a result of his challaning the complainant''s vehicles one after another in close proximity which enraged the complainant so much so that he managed to enact this drama to falsely implicate the Appellant.

Shyam Sunder PW 6 is the complainant of this case He has dwell upon the prosecution case in detail. He deposed that on being approached by him, Jagdish Singh Malhotra had refused to issue fitness certificate for his Matador No. P.J.O. 3435 as for this consideration he had demanded a sum of Rs. 1000/- from him. It is alleged by the witnesses that he was not inclined to pander to the demand of the Appellant and consequently, he held a meeting of the members of the Shyam Matador Union of which he was the Secretary and held consultations. It was in this meeting that plan for trapping the Appellant was conceived and consequently a written report Ex. Ka 12 was scribed by Lakhpat Rai PW 5 who was working as Treasurer of the aforesaid Union and the witness complainant had put his signatures on the said written report. He further deposed that thereafter he along with Lakhpat Rai and the written report, went to the office of Dy. Supdt. Vigilance Nainital on 14-8-81, where Ram Anuj Singh, Deputy Superintendent of Police, Vigilance Establishment who was then available, met the complainant at about 12 noon and the complainant handed over his report alongwith the currency notes. After examining the complaint and the currency notes, the Dy. Superintendent of Police, Vigilance Establishment directed the complainant to see B.D. Thapalyal in the adjoining room of the said office. The complainant went to the adjoining room and handed over the complaint and the currency notes to the Inspector B.D. Thapalyal who examined the complaint and tallied the number of currency notes given in the complaint with that of the currency notes handed over by the complainant. The witness further deposed that another Inspector who was present there, powdered the currency notes. Thereafter, the companion Inspector prepared the solution in a clean tumbler and on his admixing another powder into the aforesaid tumbler, the solution turned pink, and the same was preserved in a clean phial and sealed accordingly. Thereafter, the said Inspector explained to the witness that whoever comes in contact with those currency notes, and on his washing the hands in the said solution by admixing another powder, the solution will turn pink. Thereafter, the Inspector prepared a memo Ex. Ka 2 and obtained the signatures of the witness thereon. It was further deposed by the witness that after this experiment, the aforesaid two Inspectors and some constables started on a Taxi for RTO office while the witness including the complainant and others left for the RTO Office on a Matador. The party reached Kathgodown in the afternoon and at some distance from the RTO office, the Inspector B.D. Thapalyal picked up Ramesh Lal and Madan Lal from a road side tea-stall and explained to them the entire plan. It was also deposed by the witness that the same day in the morning, some paper had been given to the aforesaid Ramesh with the direction that he should keep the assessment ready in the RTO Office and that the witness on return from Nainital would take the delivery of the same and consequently the witness (complainant) got the said papers back duly assessed from the aforesaid Ramesh. He further stated that he, then, went inside the room of the Appellant with the said papers while the remaining members of the raiding party and the witnesses stood outside the room of the Appellant. On entering the room, he laid the papers before the Appellant informing him that he had brought the money which the Appellant had demanded and now he should set the papers right and issue the required certificate. Thereupon the Appellant put some notes on the aforesaid papers and demanded the money from the witness (complainant). The witness handed over the said currency notes to the Appellant and asked him to count the same. The Appellant counted the aforesaid currency notes and after taking out purse from his pocket, he tried to place the said currency notes in the said purse. Just then, the raiding party headed by Inspector B.D. Thapalyal along with the witnesses, entered the room of the Appellant and Inspector B.D. Thapalyal had caught hold of the hands of the accused and recovered the currency notes from the Appellant. The Inspector counted them which he found to he one thousand Besides the aforesaid money, one currency note of the denomination of Rs. 20/- and another currency note of the denomination of Rs. 5/- were further recovered From the aforesaid purse of the Appellant. A further search of the person of the Appellant yielded more than Rs. 2000/-. Thereafter, the Inspector took the Appellant into custody, got his hands washed in the solution which turned pink and the resultant solution was preserved and sealed in a clean phial. A memo Ex. Ka 3 was prepared. The Inspector also took into his possession the tax assessment papers and prepared a Fard Ex. Ka 4 regarding the same and obtained the signatures of the witnesses. The witness further deposed that, thereafter, the Inspector took the Appellant to the police station and the witness and his companions went back to their houses.

In cross examination, Shyam Sunder complainant had admitted that at Kichcha a Matador Union of the name of Shyam Matador Union had been established and he was its Secretary while Dharam Singh was its President. Lakhpat Rai PW 5 was its treasurer. He further admitted that prior to the present occurrence, the Appellant had challaned several Matador vehicles belonging to his Union and licences and registration of the challaned vehicles had been suspended at the instance of the Appellant. At this stage it would be just and proper to advert to the statement of Lakhpat Rai PW 5 who admitted in para 16 of his cross-examination that prior to the present occurrence, the Appellant and the Passenger Tax Officer Matador were on a a drive for checking and challaning the vehicles and during the drive, his vehicle was also checked and challaned by the Appellant and consequently, the registration of the vehicle was suspended and cases were also registered. It was also admitted by him that not only his vehicle but the vehicles of his son Vinod were also checked and challaned by the Appellant and registration of his vehicles were suspended on 26 7-1981 and 28-7-1981. He further admitted that one of the vehicles of Vinod was challaned by the Appellant for want of permit and the same vehicle had been impounded. Besides the above vehicles, two more vehicles of the witnesses had been challaned. It has also been admitted by the witness that during the period from 6-5-1981 to 31-7-1981, as many as 20 vehicles belonging to the aforesaid Union, had been challaned by the Appellant and with the rate at which the vehicles belonging to the Union had been challaned, it was apprehended that other vehicles belonging to the Union may either be challaned or their registration may be suspended.

Under the aforesaid circumstances, it is apparent that the complainant and his witness Lakhpat PW 5 were much aggrieved and also worried and consequently they had strong motive to falsely implicate the Appellant in order to stall his drive of checking the vehicles so that the vehicles belonging to the Union may ply without hindrance. Under the circumstances, 1 hold that Shyam Sunder, complainant was hostile to the Appellant from before the occurrence. Likewise. Lakhpat Rai, PW 5, was also aggrieved and hostile to the Appellant on account of his vehicles and of his son repeatedly challaned by the Appellant. I am constrained to observe at this stage that instances are not wanting when honest and devoted officers were falsely implicated and dragged in criminal proceedings by the aggrieved party on account of their being honest and devoted to their duties and from the facts and circumstances of the instant case, the possibility that as the Appellant was making vigorous drive to check the illegal plying of the vehicle of the Union, he was falsely implicated in the instant case by the complainant in order to pave the way for free plying of their vehicles. Under the circum-stances, the evidence of complainant Shyam Sunder and Lakhpat Rai requires independent corroboration which is conspicuously lacking in this case.

B.D. Thapalyal, Inspector Vigilance has no doubt corroborated the evidence of Shyam Sunder complainant. B.D. Thapalyal was the Incharge of Trap party and he was as such very much interested in the success of the trap. I may observe here that the evidence of a trap witness can very well be relied upon in some cases without independent corroboration but not in every case. In a case like the present one, the evidence of B.D. Thapalyal is quite incapable in giving strength to the prosecution case. Under the circumstances the prosecution case as set up, fails as against the Appellant. Moreover, admittedly, a number of persons were present in the office of Regional Transport Officer at the time when the trap was laid, but inexplicably not a single person was procured out of the persons present there in order to be examined in support of the prosecution case. Another circumstances, which further erodes the credibility of the prosecution case is that Madan Lal and Ramesh Pal, who had been picked up by B.D. Thapalyal from the Tea shop at a stone''s throw distance from the office of RTO to witness the search and they were with B.D. Thapalyal till the end, that is, till the Appellant had been arrested, were not examined in support of the prosecution case for the reasons, best known to the prosecution. Thus, the evidence of B.D. Thapalyal is not capable as to lend strength to the highly inimical and interested testimony of the complainant and his witness Lakhpat Rai PW 5.

Upon an over all consideration of the facts and circumstances, I am of the view that the prosecution case as sot up, fails as against the Appellant and consequently the conviction and sentence recorded by the trial court against the Appellant cannot be sustained.

In the result, the appeal is allowed. The conviction and sentences recorded against the Appellant by the trial court are set aside. The Appellant is on bail. He need not surrender. His bail bonds are discharged.