Ram Lubhaya vs State

S.C. Jain, J.

(1) The facts giving rise to this appeal are that the appellant, Ram Lubhaya was posted as Court Master i.e. Reader in the Court of Shri J.D.Kapur,Metropolitan Magistrate, New Delhi in the year1975. As per the prosecution version, on 6-9-1975 the complainant, GopalSingh, filed an application in the Court of Shri J.D. Kapur, M.M. for the return of his jack and stepney lying in the custody of the police. That application is Ex. Public Witness 1/F, the copy of which is Ex. Public Witness 1/G. Those applications were allegedly given by the complainant to Ram Lubhaya, the appellant. The complainant was asked to come on 8-9-1975. The complainant met the appellant. Ram Lubhaya on 8-9-1975, but he was asked to come on the next day i.e. 9-9-1975 and that the appellant demanded Rs. 10 by way of bribe forgetting the order passed from the Magistrate concerned for the return of these articles to the complainant. The complainant promised to pay the said bribe amount, provided he got favorable orders from the Court.

(2) On 10-9-1975, the complainant, however, report the matter to the Anti Corruption Branch of Delhi Police and his statement was recorded,which is Ex. Public Witness 3/A. On the basis of the statement of the complainant, it was decided to trap the appellant and S/Shri Narinder Vir Singh, working as Storekeeper ,Institute of Commercial Practices; and Hawa Singh, Patwari in the Land Acquisition Branch; D.C. Office were summoned to act as Panch witnesses. In their presence, the recorded statement of the complainant,Ex. PW-3/A was read over to Gopal Singh, complainant, who admitted the same to be correct. The complainant produced one G.C. note Ex. P-l of the value of Rs 10, number whereof was correctly recorded in the raid report Ex.PW1/A G.C. note was treated with phenolphthalein powder and the formal demonstration test was given through Narinder Vir Sirgh. The G.C. note was returned back to the complainant with directions to pass on the same to the accused after having such talk and in such a manner so as to indicate that the same was passed on by way of bribe. Similar instructions were also imparted to the two Panch witnesses to remain close to the complainant, hear the talk, watch the transaction and give the agreed signal as soon as the tainted currency note was passed on to the appellant. At about 1.55 p.m.the raiding party reached the Court premises at Parliament Street, New Delhi .On reaching there the complainant, Gopal Singh along with Narinder Vir Singh and Hawa Singh PWs proceeded to the Court of Shri J.D. Kapur,Judicial Magistrate, New Delhi, while the other members of the raiding party took up their respective positions. At that time, the Court was not in session, while the appellant was present on his seat. As per the prosecution version, the complainant asked the appellant about his application. The appellant then asked the complainant to take out Rs. 10. The complainant gave the tainted G C. note to the appellant, who accepted it in his hand and kept the same in left pocket of his pant. Thereafter the complainant give the agreed signal which was transmitted to the Inspector by Nawal Singh S.I.the Inspector reached the spot and after disclosing hi? identity, challenged the appellant if he had accepted the bribe amount of Rs.10.00 from GopalSingh, complainant. The appellant produced the tainted G.C. note Ex. P-l,number whereof on comparison tallied with the number already recorded in the raid report and that G.C. note was taken into possession vide seizure memo Ex. PW1/B. Left hand of the appellant was dipped in a solution of sodium carbonate, as a result of which the same turned pink. The solution was transferred to bottle Ex. P-2, which was duly labelled, sealed and seized vide memo Ex. PW1/C. Pant Ex. P-4 was removed from the person of the appellant and inner lining of the left pant pocket was dipped in another prepared solution, as a result of which it turned pink. The same was transferred to bottle Ex.P-3, which was duly sealed, labelled and seized vide memoEx. PW-1/D. Pant P-4 was also taken into possession vide memo Ex. PW1/E.The two applications Ex.PW-l/F and PW-1/G were also taken into possession vide memo Ex. PW-1/H. Both the Panch Witnesses, Narinder Vir Singh and Hawa Singh, PWs while confirming the other details about the actual occurrence reiterated that they did not hear the talk that had transpired between the complainant and the appellant.

(3) During the trial the prosecution examined in all 7 witnesses in support of its case, including the complainant and the Panch witnesses.

(4) In his statement u/s 313 Criminal Procedure Code the appellant explained that on 6-9-1975 after lunch the complainant, Gopal Singh bad given applications Ex. PW-1/F and PW1/G and he gave the application Ex. PWI/G to the Naib Court for report. It was also admitted by the appellant that the complainant met him on 8-9-75 and he told him that order on his applications was not ready. As regards the incident of 9-9-75, the appellant explained that on that day the complainant came to the Court Along with Maghar Singh, against whom a theft case was pending and after the bail order in that case was passed, complainant Along with Maghar Singh met the appellant during lunch interval and enquired about his application. The accused told the complainant that report had not yet been received. At this, the complainant sarcastically remarked "babus of Court would not do any work until they were tipped". He took exception to it and retorted back that taxi drivers were cheats. There was a verbal altercation between the two and the staff members intervened. Thereafter, the appellant advised the complainant to collect the order next day and asked the Naib Court to bring report positively that day. He further explained that Ramesh alias Pappi, his brother-in-law''s son, was a tea vendor at taxi stand Malai Mandir and that he owed Rs.10.00 to him. On 10-9-75 complainant, opal Singh came to him during lunch interval when he was sitting on his seat on the left side of the Presiding Officer. Before the appellant could give application to the complainant, he whispered in his ear that Pappi had sent Rs. 10 through him. Believing him he took the tainted G.C. note and put the same in his pocket and thereafter gave application bearing orders of the Court to the complainant. Immediately thereafter, one Si caught him and Inspector Shri Ram asked him if he had taken Rs. 10 from Gopal Singh. He replied in the affirmative and produced the tainted note and placed it on the table .On further interrogation by the Inspector, the appellant had explained that Pappi owed him the money and bad sent the same through the complainant and at that time staff members and persons from public were present in Court room. The appellant denied to have demanded or accepted any bribe from Gopal Singh, complainant and explained that he was falsely implicated by playing a trick as he thought that the appellant was deliberately harassing him and was not getting orders passed on his application. In defense he examined Abdul Satar Ahmad of the Court as DW1, M.R.Khurana, steno in the Court as Dw 2 and Ramesh alias Pappi his alleged relation as Dw 3 in support of his Explanation.

(5) On the basis of the evidence which came on record, the Special Judge, by his order dated 22-1-1977 held Ram Lubhaya guilty for offences punishable u/s 5(2) read with Section 5(l)(d) of the Prevention of Corruption Act and Section 161 Ipc, and after giving an opportunity of hearing to the appellant on the point of sentence, the Special Judge sentenced him to undergo R.I. for one year and a fine of Rs. 50on each of the two counts and in default of payment of fine, the appellant was to undergo further R.I., for one month. Both the substantive sentences were made to run concurrently.

(6) Aggrieved, the appellant. Ram Lubhaya has filed this appeal.

(7) Shri Dilbagh Raj Sethi, learned Counsel for the appellant dreamy attention towards the statement of the Panch witnesses namely S/Shri Narinder Vir Singh, PW1 and Hawa Singh, Public Witness 4. Both these Witnesses have stated that while passing on the money to the appellant, the complainant, opal Singh did speak something in the ear of the appellant, but they could not hear him as they were at a distance. According to the learned Counsel for the appellant, even the complainant, Gopal Singh Public Witness 3 has stated in his statement that his talks with Ram Lubhaya. appellant were in a low tone .Learned Counsel for the appellant argued that mere recovery of money from the possession of the appellant is not sufficient to convict him for an offence under the Prevention of Corruption Act. It must be proved that the money was passed on as a bribe. Reliance has been put on a decision of the Supreme Court in the case of Suraj Mal Vs. State (Delhi Administration), in support of his contention that in case of bribery, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. According to the learned Counsel, the statement of the complainant in that regard is not sufficient unless it is corroborated by other witnesses. In this case the other witnesses have not supported the complainant on the point that Rs. 10 were paid to the appellant as a bribe and he accepted the same as such.

(8) Learned Counsel relied upon a decision of the Supreme Court in the case of Panalal Damodar Rathi Vs. State of Maharashtra, in support of his contention that the complainant is in no better position than accomplice and that his conviction cannot be based on the sole testimony of the complainant when it is not corroborated in material particulars. There is no corroboration in this case on the point that Rs. 10 were paid by the complainant to the appellant as a bribe.

(9) The next submission made by the learned Counsel for the appellant is that the complainant in his cross-examination has stated that Maghar Singh, who is his wife''s brother, was with him on 9.9.75 when the appellant demanded Rs. 10 from him as bribe. Maghar Singh was not examined by the prosecution in respect of this version of the complainant that in his presence the appellant demanded Rs. 10 as bribe. He relied upon a decision of the Supreme Court in the case of Habeeb Mohammad Vs. The State of Hyderabad, in support of his contention that it is the bounden duty of the prosecution to examine a material witness, particularly when no allegation has been made that. if produced. he would not speak the truth. According to the learned Counsel, not only does an adverse inference arise against the prosecution case from his non-production as a witness in view of illustration (g) to Section 114 of the Evidence Act. but the circumstances of his being withheld from the Court casts a serious reflection on the fairness of the trial. The learned Counsel submitted that the no examination of Maghar Singh is fatal to the case of the prosecution.

(10) The next point raised by the learned Counsel for the appellant challenging the judgment and order of the Special Judge is that the appellant gave a probable Explanation at the time of his apprehension that the currency note of Rs. 10 recovered from him was handed over by the complainant to him as he owed Rs. 10 from Pappi, his relation and Pappi, who was running a tea stall si''-"ar the taxi stand where the complainant was running his taxi had sent that currency note through the complainant to be paid So him. The learned Special Judge did not rightly appreciate this probable Explanation given by the appellant regarding the possession of the said Rs. 10 currency note. According to the learned Counsel, the conviction of the appellant cannot be sustained on the basis of Section 4(1) of the Prevention of Corruption Act. Section 4(1) does not permit the drawing of presumption in case of an offence referred to in Clause (d) of Sub-section (3) of Section 5 of the Act. The only clauses incorporated in Section 4(1) are Clauses (a) and (b)of Section 5(1) and not Clause (d). He relied upon a decision of the Supreme Court in the case of Sita Ram Vs. The State of Rajasthan, in support "f his contention.

(11) Relying upon another decision of the Supreme Court in the case of Man Singh Vs. Delhi Administration, , the learned Counsel for the appellant submitted that in a case of bribery, if the accused gives a probable Explanation that should be presumed as correct and that strict standard of proof is not necessary. In this case, according to the learned Counsel, the appellant has given a probable Explanation that the currency note of Rs. 10 recovered from him was not given to him by the complainant as a bride, but it was given by him saying that Pappi had sentthat money to be paid to the appellant as he owed this money to the appellant and Pappi was having a tea stall near Malai Mandir where the complainant was running his taxi.

(12) Reliance has also been placed on a decision of this Court in the case of Rajinder Parshad v. The State (Delhi Administration) (1990)(3) Cri 287, that the recovery of bribe money has to be viewed with suspicion andthat the testimony of the complainant should be corroborated in materialparticulars by independent evidence connecting the accused with the commission of the offence. In this case, according to the learned Counsel, thedemand of bribe is not proved beyond reasonable doubt. Counter versiongiven by the appellant is probable and may be true and in such circumstances, the appellant is entitled to acquittal on the basis of benefit of doubt.

(13) The last submission made by the learned Counsel for the appellants that the incident took place in 1975; the appellant faced the trial in the Court of Special Judge till January, 1977 and that this appeal has reached forhearing in August, 1993 i.e. more than 16 years have passed in these proceedings and, Therefore, according to the learned Counsel, the period ofimprisonment already undergone by him and the fine imposed by the Special Judge would meet the ends of justice. He relied upon the decision of theSupreme Court in the case of Tarsem Lal v. State of Haryana AIR 1987S.C. 806 in support of his contention.

(14) MR.N.K.HANDA.ADDL. Standing Counsel, Delhi Administration countering the arguments advanced by the learned Counsel for the appellant has stated that each case has to be decided on the basis of the factsof that very case. According to the learned Counsel, in this case the recovery of tainted Rs. 10 currency note is admitted and the statement of the complainant finds corroboration from the recovery of this currency note. Theexplanation given by the appellant in his statement u/s 313 Cr.P.C. is an afterthought and cannot be relied on at this stage. The witnesses examined in defense are interested witnesses inasmuch as DWs. and 2 werecolleagues of the appellant and DW3 is a close relation of the accused. Heslated that the Trial Court has correctly appreciated the facts and the law while convicting the accused/appellant for the said offence and no interference is warranted in the facts of the present case

(15) Ln this case currency note of Rs. 10 denomination which was tainted with Chemical was admittedly recovered from the possession of this appellant .The number of this recovered note tallred with the number mentioned in the raid report. The complainant has categorically stated that this money was handed over to the appellant by way of bribe, which he accepted and thereafter, the order passed on his application for the return of by article was handed over to him. Statement of the. complainant is corroborated by the admitted recovery of the currency note from the possession of the appellant and no further corroboration is needed on this point. Non examination of Maghar Singh as a prosecution witness is also not fatal to the prosecution case. It is nowhere on record that this fact was brought to the notice of the 1.0. that on 9.9,1975 when the appellant demanded Rs. 10from the complainant, he (Maghar Singh) was with the complainant. It is for the first time that it has come in the cross-examination of the complainant that Maghar Singh was with him when the appellant/accused demanded Rs. 10 from him as bribe on 9.9.1975. Had the statement of Maghar Singh been recorded u/s 161 Cr. P.C. and the prosecution did not examine him as a witness, then it could have been said that he was intentionally withheld raising a presumption against the prosecution. The decision in the case of Habeeb Mohammad v. State of Hyderabad (supra)does not help the appellant in the present circumstances of the case.

(16) The facts in the case of Suraj Mal v. The State (Delhi Administration (supra) are also different from the facts of this case. In that case, the defense of the appellant was that he was falsely implicated and nothing was recovered from him and nor did he make any demand for the bribe and, therefore ,the decision in Suraj Mal''s case does not help the appellant in the present circumstances of the case where the recovery of the tainted currency note has been admitted by the appellant himself. The complainant not only mentioned in his statement made before the Anti-Corruption Branch that the appellant, who was posted as a Reader in the Court of Shri J, Kapur,M.M. had demanded bribe from him for getting the order passed on his application ,but he also stated so in his statement before the Court on oath. He has been subjected to lengthy cross-examination but nothing has come out discrediting this witness on this point. Both the Panch Witnesses have corroborated the fact of the complainant passing on the tainted G.C. note to the appellant who accepted it in his left hand. They have, however, stated that they did not hear the talks inter se the complainant and the accused on account of the distance and the fact that the complainant spoke to the accused in a whispering tone. The complainant in his statement has proved the initial demand, his reporting the same to the Anti-Corruption Branchand staling it so before the Court, and the admitted recovery of the tained currency note from the possession of the appellant, show and prove the prosecution version that the tainted currency note so recovered from the appellant was paid to him by way of bribe. No doubt the Panch-Witnesses have-not heard the conversation while passing the currency note by the complainant to the appellant, but it is well known that the bribes are not demanded in the open, and nobody would say in a loud voice that be was paying the money by way of bribe. In Suraj Mal''s case (supra) the substantive evidence was not found reliable and the defense of the appellant was that he was falsely implicated, and nothing has been recovered from him and in those circumstances it was held that in cases of bribery, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused.

(17) Regarding the Explanation given by the appellant, it is for the first time that the appellant in his statement u/s 313 Criminal Procedure Code has given this Explanation that this currency note of Rs. 10 which the complainant, Gopal Singh gave him was sent through him by one of his relations, Pappi to be paid to him, as he owed that money to the appellant. Had this Explanation been given by him at the time of his apprehension, the same would have been recorded by the Inspector, who apprehended him and if at all the Inspector had not recorded the same, the appellant who was working in the Court of the Magistrate would have reported the same to the higher authorities. He has not done so raising a presumption against him .Even this suggestion was not put to the Ranch Witnesses, Public Witness 1 andPW4 in their cross-examination that at the time of the recovery of G.C. note the appellant/accused explained that it was sent by one of his relation Papp through this complainant and it was not a bribe money. The witnesses examined by him in defense on this point, namely, Shri Abdul Satar, Dwi, of the Court, Shri M.R. Khurana. Steno DW2, attached with the Court of Shri J.D. Kapur and Shri Ramesh alias Pappi, DW3, the relation of the appellant, who allegedly sent Rs. 10 to the appellant through the complainant also did not help the appellant to support him about offering this Explanation at the time of his apprehension.

(18) Dwi, Abdul Satar admitted that he was not present when the appellant was apprehended on 10.9.1975, although he came to know about it that very day. He further stated about the altercation having taken place in his presence on 9.9.1975 but this witness did not report the same to anyone that the police did not record the Explanation given by the appellant at the time of his apprehension or that this money was not by way of bribe. This witness is a colleague of the appellant and the trial Court has rightly observed that he does not inspire any confidence. This witness has not reported to any officer about the altercation between the complainant and the appellant in his presence on 9.9.1975. It means that the statement made by this witness in Court after such a long time without disclosing these material facts to any one earlier raises a doubt about the genuineness of this explanation .The statement of Shri M.R.Khurana, DW2 that he had told Inspector Siri Ram to record his statement regarding the Explanation given by the appellant, falls to the ground as he did not report this matter to anyone that Inspector Siri Ram did not record his statement. The incident is of10.9.1975 but it is only on 1512 1976 when this witness deposed about this explanation alleged to have been given by the appellant/accused. Nowhere earlier he reported this matter to any one. He has also not given any reason as to why he did not report this matter when his statement was not recorded. It shows that his statement is an afterthought regarding this Explanation and the Trial Court has rightly disbelieved the same.

(19) The statement of Ramesh @ Pappi, the relation of the appellants also not sufficient to indicate that the Explanation of the appellant is probable. No doubt the complainant in his cross-examination has admittedpartially that Ramesh @ Pappi was running a tea stall at Malai Mandir TaxiStand; that he knew him and that on 9.9.1975 Pappi told him that be owedRs. 10 to his uncle (Phupad), Ram Lubhaya and he should take that moneyand give the same to Ram Lubhaya, but he has specifically denied havingtaken that money from him for giving to Ram Lubhaya. The Special Judgehas rightly disbelieved the statement of Ramesh @ Pappi by giving cogentreasons which I feel need no interference. Besides the fact that he is a closerelation of the appellant, his statement does not inspire confidence. He admitted that he learnt from the father of the appellant/accused about the apprehension of the appellant one day after his apprehension. He also came to know as to who was the person, who got the appellant apprehended and he also came to know that the appellant was apprehended because he took Rs. 10 from the complainant. He stated that he had sent through opal Singh, complainant, Rs. 10 to be given to the appellant/accused one day earlier to his apprehension. According to him, he met the accused about a month after he was released on bail and he told the appellant/accused thathe had sent Rs. 10 through Gopal Singh a day before occurrence. The appellant/accused did not ask him to give any application to any officer about this fact. This admission on the part of this witness falsifies the statement of this witness on this point. When he came to know about the apprehension of the appellant/accused through his father next day, and he also came to know that Gopal Singh got him apprehended on the plea of taking bribe of Rs. 10, it was but natural that being his near relation he should have informed his father about this. His silence on that day and not informing this fact to any one thereafter makes this Explanation improbable and unbelievable. In the present circumstances of the case, it cannot be said that a probable Explanation was given at the time of the apprehension of the appellant/accused and the Special Judge has wrongly rejected the same. The decisions in the cases of Sita Ram v. The State of Rajasthan and Man Singhv. Delhi Administration (supra) on which the learned counsel for the appellant has put reliance do not help the appellant in the present circumstances of the case.

(20) I do not find any merit in this appeal. However, on the point of sentence it is on record that the incident took place in 1975; the appellant faced trial in the Trial Court till January, 1977 and this appeal has reached hearing in August, 1993, I.e. more than 16 years have passed in these proceedings. Relying upon the decision of the Supreme Court in the case of Tarsern Lal v. Stale of Haryana, Air 1987 S.C. 806, I am of the view that in these circumstances, the period of the imprisonment already undergone and the fine imposed by the Trial Court would meet the ends of justice. I therefore ,uphold the conviction, and dismiss the appeal. However, the sentence is reduced to the period of imprisonment already undergone by the appellant and the fine imposed by the Trial Court. Ordered accordingly.