Nirmal Singh vs State of Himachal Pradesh

Surjit Singh, J.—Appellant has appealed against the judgment, dated 30th July, 2005, of learned Special Judge, Hamirpur, whereby he has been convicted of offence, u/s 13(2) of Prevention of Corruption Act, and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1000/-; in default of payment of fine, to undergo simple imprisonment for a further period of one month.

Case of the prosecution may be summed up thus. Appellant was posted as Additional SHO in Police Station, Sadar Hamirpur, in December, 2003, when an application Ext. PW4/A, by one Sunil Kumar, who was in judicial lock up those days, addressed to the Superintendent of Police, was received at the said Police Station. In the application, it was alleged that PW-5 Soni Kumar had not been returning Sunil Kumar�s Maruti Car, bearing registration No. DBJ-15 and was demanding Rs. 35,000/- from his aunt Madhuwala (father�s brother�s wife). Before lodging of this complaint by Sunil Kumar, PW-2 Madhuwala, the said aunt of Sunil Kumar, had visited PW-5 Soni Kumar for the return of the aforesaid car, but Soni Kumar demanded money, alleging that his own car, bearing registration No. HP-30-0370, had been impounded by the police, when Sunil Kumar was using the same after borrowing it from him and he had to spend Rs. 5000/-, to get his car released from the police.

On coming to know that complaint Ext. PW4/A had been forwarded to Police Station by the Superintendent of Police, PW-2 Madhuwla went to the Police Station, where Appellant met her. He demanded a sum of Rs. 5000/- to help her get back the car. When he was told by PW-2 Madhuwala that she was unable to pay such a huge amount of money, appellant allegedly scaled down the demand to 2000/-.

PW-2 Madhuwala then apprised PW-3 Nand Lal, a Journalist, about the alleged illegal demand for bribe made by the appellant. PW-3 Nand Lal took her to the Deputy Superintendent of Police, Anti-Corruption, namely C.L. Kaushik (PW-14). Report made by PW-2 Madhuwala was entered in the FIR register. A copy of that FIR (Ext.PW2/A) was placed in an envelop and that envelop was sealed and delivered to Special Judge on that very day. The date was 10.12.2003. Deputy Superintendent of Police requested the Special Judge, to whom the sealed envelop was delivered, not to open the same till a request was made to him for the purpose. PW-2 Madhuwala and PW-3 Nand Lal were directed by the Dy. S.P. to see him next morning at 6 a.m. The two then went to Dy. S.P. on the next following day at the given time. D.C. Hamirpur was approached by PW-14 Shri C.L. Kaushik to make the services of an Executive Magistrate available to witness the search and raid. D.C. Hamirpur deputed PW-13 Prabhat Sharma. Deputy Superintendent of Police and Executive Magistrate then went to the residence of PW-12 Inspector Mast Ram. There PW-2 Madhuwala was required to produce currency notes of 2000/-. She produced four currency notes of the denomination of 500/-each, which were treated with phenolphthalein powder and returned to PW-2 Madhuwala, with the instructions to hand over the same to the appellant, on demand. It was demonstrated to PW-2 Madhuwala and PW-3 Nand Lal how solutions of phenolphthalein powder and sodium carbonate, when mixed, turned pink. PW-2 Madhuwala was told to give a signal to the police people, who were to wait outside the premises of the appellant, after the acceptance of money by appellant.

PW-14 Dy. S.P. C.L. Kaushik, PW-13 Prabhat Sharma, Executive Magistrate, PW-12 Inspector Mast Ram, PW-2 Madhuwala and PW-3 then proceeded towards the residence of the appellant. All the members of the party, except Madhuwala, stopped at some distance from the residence of the appellant, while Madhuwala went to his residence. When she went to his residence, appellant asked if she had brought the money. Madhuwala then handed over the currency notes to him. He counted the same and placed them on a table that was lying in the room. Thereafter, Madhuwala came outside and gave the pre-fixed signal to the waiting members of the party. All the members of the party stormed into the room of the appellant. He was informed that he had accepted bribe. He was overpowered and caught by his wrists and was made to wash hands. Solution of sodium carbonate was added to the hand wash, which turned pink. A sample of that hand wash was taken in a bottle, which was sealed. Currency notes were recovered. Their numbers tallied with the numbers of currency notes which had earlier been treated with phenolphthalein powder and whose numbers had been noted down by Dy. S.P. C.L. Kaushik, in the memo. regarding demonstration and treatment of money with the powder.

Sanction for the prosecution of the appellant was obtained from his appointing authority. Hand wash was sent to Chemical Examiner, who reported that it had traces of phenolphthalein and sodium carbonate. On completion of investigation, report was filed, u/s 173 Code of Criminal Procedure.

Appellant was charged by the trial Court with an offence, u/s 13(2) of the Prevention of Corruption Act, 1988, to which he pleaded not guilty. Prosecution examined the lady from whom bribe money had allegedly been demanded, namely Madhuwala as PW-2, the Journalist, who was member of the party, namely Nand Lal as PW-3. It also examined the Dy S.P. C.L. Kaushik as PW-14, Executive Magistrate Prabhat Sharma as PW-13 and Vigilance Inspector Mast Ram as PW-12. PW-2 Madhuwala and PW-3 Nand Lal did not support the prosecution version. They were cross-examined by the prosecution, with the leave of the Court.

Appellant denied having accepted bribe and pleaded that he had been falsely implicated.

Learned trial Court relying upon the testimony of PW-13 Prabhat Sharma, Executive Magistrate and the two police officers, namely PW-14 Dy. S.P. C.L. Kaushik and PW-12 Mast Ram, Inspector, concluded that the appellant had accepted bribe and held him guilty, vide judgment under appeal.

I have heard learned Counsel for the appellant as also the learned Assistant Advocate General and gone through the record.

Mere recovery of tainted money from a public servant or the presence of tainted money at his place is not enough to hold such a public servant guilty of offence of accepting bribe. Positive evidence is required to be led that the public servant had, in fact, demanded and accepted bribe money. In the present case, there is no evidence of demand and/or acceptance of bribe money by the appellant.

PW-2 Madhuwala, from whom the money had allegedly been demanded on 10.12.2003, denied that money was demanded. She stated that when she contacted the appellant on 10.12.2003 she had been told by the appellant that she being not the registered owner of the vehicle, the same could not be released in her favour, upon which she offered to pay money to the appellant, which he refused. She further stated that on the next following day, when she again went with the tainted money and tried to pay the same to the appellant, he refused to accept the same and that she forcibly tried to force the currency into his hand and ultimately placed them on the top of the table. No doubt, the witness was declared hostile and cross-examined by the prosecution, but she did not say anything from which it may be gathered that the appellant had accepted the money. Only she was the witness of the alleged acceptance of bribe by the appellant and she having not testified this fact, the earliest version contained in FIR Ext.PW2/A, could have been of no avail to the prosecution, for the reason that for use of this corroborative evidence there had to be substantive evidence. There is no other evidence, worth the name, that the appellant accepted the bribe.

On behalf of the State, it is argued that presence of traces of phenolphthalein powder on the hands of the appellant itself is substantive evidence of acceptance of bribe by him. Argument has been noticed only to be rejected. PW-2 Madhuwala very categorically stated that she tired to force tainted money into the hands of the appellant and despite that he did not accept the same and, so, she placed the money on the table. Now, when the lady tried to forcibly hand over the money to the appellant, traces of phenolphthalein powder were supposed to appear on his hands.

As a result of above discussion, appeal is accepted. Judgment of the trial Court, convicting and sentencing the appellant is set aside and he is acquitted.