Manjit Singh vs State Of Delhi

Chandrasekharan Sudha, J

In this appeal filed under Section 374of the Code of Criminal Procedure, 1973, (the Cr.P.C.), the sole accused in C.C. No. 105/2001 on the file of the Court of Special Judge, Delhi, assails the judgment dated 20.05.2005 and order on sentence dated 24.05.2005 as per which he has been convicted and sentenced for the offences punishable under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (the PCAct).

The prosecution case is that on 06.12.2000, at MCD Ward No. 11, Minto Road, Delhi, the accused, while working as AZI/ Upper Division Clerk, demanded, accepted and obtained₹5,000/- from PW2 for handing over the mutation order in respect of property no. 3314, Ward No. 11, the residence of PW2's brother. Accordingly, as per the charge-sheet/final report, the accused was alleged to have committed the offences punishable under Sections 7 and 13(2) read with Section 13(1)(d) of the PC Act.

Sanction for prosecution was accorded by PW1, the then Deputy Commissioner (City), vide Ext. PW1/A order dated 20.08.2001.

On 06.12.2000, PW2 lodged a complaint, that is, Ext. PW2/A, with the Anti-Corruption Branch, New Delhi, based on which, Crime no. 61/2000, Ext. PW7/A FIR was registered alleging commission of the offence punishable under Sections 7 and 13 of the PC Act.

PW5, Inspector, Anti-Corruption Branch, CBI, New Delhi, conducted investigation into the crime and on completion of the same, submitted the charge-sheet/ final report alleging commission of the offences punishable under Sections 7 and 13 of the PC Act.

When the accused was produced before the trial court, all the copies of the prosecution records were furnished to him as contemplated under Section 207 Cr.P.C. After hearing both sides, the trial court vide order dated 01.04.2002, framed a Charge under Section 7 and Section 13(1)(d) read with Section 13(2) of the PC Act, which was read over and explained to the accused, to which he pleaded not guilty.

On behalf of the prosecution, PWs. 1 to 7 were examined and Exts.PW1/A, PW2/A-L, PW3/B-C, PW4/A, PW5/A-B, PW5/X, PW6/A-F and PW7/A-B were marked in support of the case.

After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.PC. regarding the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence. He submitted that he had neither demanded nor had accepted any money from PW2. PW2 had filed an application in the House Tax Department for mutation and fixation of house tax by the Assessor, and thereafter, mutation was ordered in the case. On the day of the raid, PW2 had called him on telephone and asked him to come to the former's house to collect the house tax dues and to bring a copy of the mutation order. It was the peak period for recovery of house tax, and targets had been fixed for Inspectors to collect house tax, even by visiting the houses of the assessees. Accordingly, he went to the house of PW2 for the recovery of house tax dues. PW2 wanted to pay the house tax amount in cash, but since the inspectors are not authorised to receive cash payments, he asked PW2 to issue a cheque and informed him that if he wished to deposit cash, he could do so directly in the MCD office. However, PW2 insisted on handing over cash to him and, while forcing the cash into his hand, the currency notes fell on the ground from the hands of PW2. Immediately thereafter, the police arrived and took him to the Anti-Corruption Branch, where further formalities were completed.

No documentary evidence was adduced in support of the defence case.

On consideration of the oral and documentary evidence on record and after hearing both sides, the trial court vide the impugned judgment dated 20.05.2005 held the accused guilty of the offences punishable under Sections 7 and 13(2) read with Section 13(1)(d) of the PC Act. Vide order on sentence dated 24.05.2005, the accused has been sentenced to undergo rigorous imprisonment for a period of 18 months each along with fine of₹10,000/- each, and in default of payment of fine, to undergo further rigorous imprisonment for six months each for the offences punishable under Sections 7 and 13(1)(d) of the PC Act. The sentences have been directed to run concurrently. Aggrieved, the accused has preferred this appeal.

The learned counsel for the appellant/accused submitted that the prosecution has not been able to prove demand, acceptance or recovery of the alleged bribe amount from the appellant and therefore, the essential ingredients of offences punishable under Sections 7 and 13(1)(d) of the PC Act were not established. PW2 admitted in the box that the accused had neither accepted nor received any bribe on the day of the raid, i.e., 06.12.2000. According to PW2, when he attempted to hand over the treated currency notes, the appellant refused to accept them and stated that he would accept only a cheque. It was submitted that no public servant would ordinarily accept illegal gratification through a cheque transaction. Further, PW4, the shadow witness, did not support the prosecution case on material particulars.

11.1. My attention was drawn to Ext. PW2/F receipt and Ext. PW2/G mutation order. As per the receipt, an amount of ₹4,350/- had already been deposited by the brother of PW2 before the MCD on 21.09.2000. Thereafter, the mutation order was passed on 12.10.2000 in favour of PW2's brother. Therefore, the argument is that there was no occasion or reason for the appellant/accused to demand a sum of ₹5,000/- from PW2 for an order which had already been passed and therefore, the prosecution case is improbable. In such circumstances, it is prayed that the appellant is entitled to the benefit of doubt and he be acquitted.

It was submitted by the learned Additional Public Prosecutor that PW6, the Trap Laying Officer (the TLO), has fully supported the prosecution case. Relying on the dictums in State of U.P. v. Zakaullah, (1998) 1 SCC 557 and DK Sharma vs. State of Delhi Crl.A.1002/2010 (Delhi High Court), he submitted that the conviction can be based solely on the testimony of the TLO.

The only question that arises for consideration in this appeal is whether there is any infirmity in the impugned judgment calling for an interference by this court.

I shall first refer to the oral and documentary evidence relied upon by the prosecution to establish the case against the accused. PW2 submitted a written complaint in Hindi, that is, Ext. PW2/A, dated 06.12.2000 before the office of the Anti-Corruption (A.C.) Branch, C.B.I. The same roughly translated reads thus:- He resides at Flat No. 3314, D-2, 4th Floor, Kucha Jalal Bukhari, Lal Gali, Bazar Delhi Gate, New Delhi-2, which was purchased by his younger brother, Muhammad Farooq, who permitted him to stay there. His brother asked him to pay the house tax and get the mutation done for the flat. Accordingly, he went to the M.C.D. Office and spoke to Manjeet Singh (the accused). Manjeet Singh (the accused) took ₹4,350/- from him, provided a receipt, and told him that he would hand over the mutation order later and demanded 'kharcha-paani' from him. He initially thought that the accused would ask for ₹500/- to ₹1000/-. However, Manjeet Singh later demanded ₹5,000/-. When he negotiated and offered to pay around ₹2,000/-, Manjeet Singh refused, stating that he would not hand over the mutation order unless he received the entire ₹5,000/-. On the morning of 06.12.2000, he visited the office of ACB and stated that Manjeet Singh would be coming to meet him in the afternoon, and would only hand over the mutation order upon receiving the money. He agreed to pay the bribe amount out of compulsion. He is against taking or giving bribes. Legal action may be taken against the accused.

PW2, when examined before the court, deposed that on 06.12.2000, while he was residing at House No. 3314, Flat No. D- 2, Chotha Mala Kucha, Lal Gali Bazar, Delhi, which was in the name of his brother, he visited the office of the MCD, Minto Road, for the purpose of effecting mutation of the flat and for payment of house tax. He contacted Manjit Singh (the accused), who had taken₹4,350/- for house tax and given him a receipt. The accused also demanded 'kharcha pani'. He submitted Ext. PW2/A complaint against Manjit Singh (the accused) which was recorded in the presence of Chandreshwar Singh (PW4). He produced currency notes worth ₹5,000/- consisting of ten notes of ₹500/- also in the presence of the panch witness (PW4). The notes were treated with some powder, and the panch witness (PW4) was asked to touch them. Thereafter, the right hand of PW4 was dipped in a solution, which turned pink. He was instructed to contact the accused and to make the transaction in the presence of PW4 so that the latter could hear the conversation. PW4 was also instructed to accompany him at the time of the transaction, and on demand being made, to give the pre-determined signal by moving his right hand over his head. The number of the currency notes was noted in Ext. PW2/D pre-raid report. A raiding party was constituted by M.A. Salam (PW6), which team included PW4 and Inspector Ranbir Singh (PW5), the Investigating Officer. The raiding team left the office of the Anti-Corruption Branch at 11:30 a.m. and reached House No. 3314, Kucha Jalal Bukhari at about 12:10 p.m. He, along with PW4, went inside while the other members of the raiding party remained outside and took up their respective positions. The accused arrived at the spot by about 12:30 p.m. The accused told him that he had brought the mutation order and that the latter should give him the money. He took out ₹5,000/- from the front pocket of his shirt and handed it over to the accused. The accused then told him that he would take the money through a cheque and not in cash. In the meantime, PW4 gave the signal, and the raiding party arrived at the spot. At that time, the treated currency notes that were in his hand fell on the ground. The accused did not accept the currency notes from him. The right hand wash of the accused was taken and preserved in two clean bottles, which were also sealed with the seal of'MAS'.The bottles were exhibited as Exts. P-11 and Exhibit P-12. Ext. P1 to P10 treated notes were taken into possession vide memo Ext. PW2/C. Certain documents, including Ext. PW2/F receipt No. 4073 and Ext. PW2/G mutation order were also seized vide Ext. PW2/E seizure memo. A mutation order, a photocopy of a map, etc., besides the diary, were also seized vide Ext. PW2/H seizure memo. The accused was arrested, and his personal search was conducted vide Ext. PW2/J memo. Exts. PW2/B and PW2/K were also prepared in his presence.

15.1. The prosecutor is seen to have requested permission of the court to "cross-examine" PW2 as he had resiled from his previous statement. The request is seen allowed. During the course of further examination, the prosecutor brought out the prosecution case by putting leading questions to him.

15.2. PW2, in his cross-examination, deposed that his brother had asked him to lodge a report against the accused with the Anti- Corruption Branch. According to PW2, whatever was dictated by the officials of the Anti-Corruption Branch was reduced into writing by him, and after recording the same, he signed the same. When he had extended money to the accused, the latter refused to accept the currency notes and demanded the payment to be made through a cheque. The accused asked him to deposit the cash in the office of the MCD, and in this process, the money fell from his hand. All the proceedings relating to hand wash and seizure of money had taken place in the office of the Anti- Corruption Branch. He admitted that the accused had never accepted any money from him and that the accused had never demanded any money from him.

PW4, a Lower Division Clerk, Employment Exchange, Delhi University, Moris Nagar deposed that on 06.12.2000 at about 10:00 a.m., he reported at the office of the Anti-Corruption Branch to perform his duty as a panch witness. In his presence, one Chand Mohamad (PW2) submitted Ext. PW2/A written report to the Anti-Corruption department. PW2 deposed regarding the pre- raid formalities. After completion of formalities, at around 10:45 a.m., he, along with PW2 and the raiding team, left the office of the Anti-Corruption Branch. He, along with PW2, went inside while the other members of the raiding party took their respective positions. Till 11:45 a.m., nobody arrived. He then left to attend nature's call on the main road, near the iron over-bridge at the Darya Ganj Chowk. He returned after about 10-15 minutes and found that Manjit Singh (the accused) had arrived and was with PW2. At that time, no police personnel were present. PW2 and Manjit Singh (the accused) walked into a gali. He followed them at a distance of about 30 to 35 yards. He heard Manjit Singh (the accused) demanding a cheque from Chand Khan (PW2), and the latter insisting that he should take the money in cash. This led to a'hatha pai' during the course of which the treated currency notes fell from PW2's hand onto the ground. In the meantime, the officials arrived and picked up the money from the ground. The treated currency notes were returned to PW2. Thereafter, the raiding team took the accused to the office of the Anti-Corruption branch in their official vehicle. No recovery proceedings or paperwork was conducted by the police at the scene of the incident or at the parking spot. At the office of the Anti-Corruption, the hand wash of the accused was taken, and his signature was obtained. The solution was sealed in two separate bottles. The currency notes remained in the possession of PW2 even after they reached the office. The police had not recorded his statement. PW2 failed to identify the currency notes.

16.1. The prosecutor is seen to have sought permission to "cross-examine" PW4 on the ground that he had resiled from his previous statement made to the police. The request was allowed. On further examination, PW4 admitted that the pre-raid and post- raid proceedings had been reduced into writing. He denied having given any statement to the police. He identified his signatures on Ext. PW2/B pre-raid report, Ext. PW2/K post-raid report, Ext. PW2/C seizure memo of the currency notes, Ext. PW2/E and Ext. PW2/H seizure memos, Ext. PW2/D seizure memo of the right- hand wash and Ext. PW2/J personal search memo of the accused. He denied the suggestion that he signed the said documents after reading and understanding the contents of the same. He denied having recovered the currency notes on the instructions of PW6 from the accused. The police officials arrived at the scene only after he gave the pre-arranged signal.

PW6 deposed that on 06.12.2000 he was posted on deputation as Inspector with the Anti-Corruption Branch of Delhi Police. On the said day at about 10:00 AM, PW2 had come to the office and given Ext. PW2/A complaint. PW6 testified regarding the pre-raid formalities completed. He instructed PW2 and PW4 to remain together during the transaction so that PW4 could see and hear the interaction. He organized a raid party which included PW2, PW4, PW5 and others. They left the office and arrived near PS Darya Ganj, where the vehicle was parked. Except for PW5 and the driver, all the other members of the team alighted and proceeded to Kucha Jalan Bukhari. At around 12:10 p.m.,they reached the vicinity of a tailor shop named "Friends". PW2 and PW4 were positioned in front of the shop, while the other members of the raiding party took cover at strategic points nearby. At about 12:30 p.m., PW4 gave a pre-arranged signal by placing his right hand over his head. Upon seeing the signal, he and the rest of the raiding party rushed to the spot. PW4 informed him that the accused had demanded and accepted the bribe of ₹5,000/- and was having the same in his right hand. He challenged the accused after disclosing his identity. The accused admitted his mistake and sought pardon. He directed PW4 to recover the money from the accused's hand. Accordingly, PW4 took the bribe money from the right hand of the accused. PW6 further testified regarding the post raid formalities conducted. He also testified that the right hand wash of the accused dipped into a colourless solution of Sodium Carbonate had turned pink.

PW5, Inspector, Anti-Corruption Branch, Delhi, deposed that on 06.12.2000, was also a member of the raiding team. They left the office of the Anti-Corruption at about 11:30 a.m. and reached near Darya Ganj police station around 12:00 p.m. and parked the vehicle nearby. He remained in the vehicle with the driver while the other members of the raiding party left to conduct the raid. After the raid, PW6 had handed over the material objects in the case and the documents prepared. PW5 testified about the various steps taken during the course of investigation.

Now, the question is, whether the aforesaid materials on record are sufficient to find the appellant guilty of the offences charged against him. I have already referred to the testimony of PW2 and PW6. Apparently, both of them have turned hostile to the prosecution case. The learned prosecutor relying on the dictums in Zakaullah (supra) and DK Sharma (supra) submitted that the sole testimony of PW6, the TLO, is sufficient to conclude regarding the guilt of the accused. So, I shall consider whether the testimony of PW6 alone is sufficient to conclude regarding the guilt of the accused.

As noticed earlier, PW6 deposed that when PW4 the panch witness gave the pre-determined signal, he along with the members of the team rushed to the spot. He was then told by PW4 the panch witness thus:- "...the panch witness told me that the accused had demanded and accepted the bribe money of Rs. 5000/- from the complainant and was having the same in his right hand..." PW6 does not have a case that he had actually seen the accused accepting the money from PW2. His only case is that he was told of the same by PW4. However, PW4 has no such case while he was in the box. Moreover, the testimony of PW6 that he was told by PW4 that the accused had demanded and accepted the bribe money from PW2 is only hearsay evidence and hence inadmissible.

Further, another incriminating piece of evidence spoken to by PW6 in the examination-in-chief was that when he confronted the accused, the latter admitted his mistake and sought pardon. According to PW6, he had recorded this fact in Ext. PW2/K raid report prepared by him. However, when he was shown the raid report, he admitted that the said facts have not been recorded in the report. The raid report is a document which is stated to have been prepared by PW6 himself on the date of the incident contemporaneously. However, the said document does not corroborate the testimony of PW6 in the box that the accused had admitted his mistake and sought pardon.

In the aforesaid circumstances, it would be quite unsafe to rely on the testimony of PW6 the TLO alone, especially when PW2 and PW4 have turned hostile. In such circumstances, I find that the trial court was not justified in relying on such unsatisfactory evidence to conclude regarding the guilt of the accused. I find that the appellant/accused is entitled to the benefit of doubt.

In the result, the appeal is allowed and the impugned judgment is set aside. The appellant/accused is acquitted under Section 248(1) Cr.PC of the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. He shall be set at liberty and his bail bond shall stand cancelled.

Application(s), if any, pending, shall stand closed.