State vs Satvir Singh

Mukta Gupta, J.—This is an appeal against acquittal of the Respondent in RC No. 34(A)/89/CBI/ACB/New Delhi u/s 7 & 13(1)(d) read with 13(2) of the Preventionof Corruption Act, 1988 (in short the "PC Act"). Briefly, the prosecution case isthat on 4th July, 1989 at around 12.00 noon the Respondent Satvir Singh and P.S. Saini, both Inspectors in the Customs (Preventive) Delhi visited the office-cum-godown of the Complainant and started checking goods lying there. The Complainantwas running the business of marketing and trading of buttons, zips, hooks,fasteners, loop fasteners etc. The Respondent and Inspector P.S. Saini stated tothe Complainant that his firm was not a notified dealer and he was illegallystocking some components of zip fasteners i.e., side tapes, which were notifiedgoods. The two of them even refused to acknowledge the stay order passed by theCalcutta High Court and insisted that they would take action against him forviolating the provisions of Customs Act, 1962. Inspector P.S. Saini demanded abribe of `2 lakhs, one lakh each, for himself and the Appellant, failing which hethreatened that action would be taken against him. Thereafter, the Complainant wastaken to the Customs Office at around 4.00 p.m. After a talk with Prem Nath Sudan,Superintendent Customs (Preventive) the complainant came out. Outside his officethese two persons were again standing and they threatened and told him that unlesshe paid them the bribe of `2,00,000/-, they would not leave him. On his refusal theComplainant was threatened that they would seize the articles from his premises andwould harass him for about six months. On 7th July, 1989 the Respondent telephonedthe Complainant and asked him to come to his residence 234, Gagan Vihar, Near RadhuPlace, Delhi along with the demanded `2 lakhs The Complainant told him that hecould arrange `60,000/- only. To this the Respondent asked him to come to hishouse along with `60,000/- on 8th July, 1989 at 8.00 A.M. and arrange for thebalance payment within 3-4 days. On the same day the Complainant went to CB Ioffice and gave a complaint, written in his handwriting on the letterhead of hisfirm Ex. PW2/A to DSP Darshan Singh. The DSP directed him to come along with moneyon 8th July, 1989 at 5 a.m. He reached the CBI office along with the sum of`60,000/- and met the DSP in his office. Two witnesses namely Rameshwar Nath andManoranjan Dabar were sitting with some police officials. The complainant was introduced to the panch witnesses. Thereafter the chemical powder was applied tothe six bundles of `10,000/- each. The powdered currency notes were given to thecomplainant with the direction to give the money in the hand of the accused on hisspecific demand. The notes were kept in a rexine bag. The raiding party reached atthe house of the Respondent at around 8.00 A.M. The Respondent opened the house andthe Complainant entered in whereas the panch witness Rameshwar Nath kept sitting inthe car. After about an hour, he came out and took the panch witness inside andhanded over the money. On the panch witness giving a signal the raiding partyheaded by DSP Sardar Darshan Singh caught hold of the Respondent. His hands weredipped in the solution one after another. The solution in which the right hand wasdipped turned pink. Thereafter, the Respondent was arrested. All legal formalitieswere completed at the spot. On completion of investigation a charge sheet was filedonly against the Respondent. Inspector P.S. Saini was not charge-sheeted. TheRespondent was acquitted pursuant to the trial and this is how the CBI has come inappeal against the said impugned judgment.

The learned trial court acquitted the Respondent on the ground that as far asthe initial demand on 4th July, 1989 is concerned the same was made by P.S. Sainiand the Respondent was at a distance on both the occasions. As regards the demandmade on telephone on 7th July, 1989 it is held by the learned trial court that thisdemand was denied by the accused in his statement u/s 313 Cr. P.C. andthe brother-in-law of the Complainant who was sitting when the telephone call wasreceived has not been examined as a witness to corroborate the version of thecomplainant. It is held that in the absence of motive or occasion for demandingthe bribe from the accused, it is not safe to rely upon the sole testimony of theComplainant in this regard. The learned trial court held that the motive of bribeset up by the prosecution is that the godown was checked by the accused and P.S. Saini on 4th July, 1989 and there they found certain notified articles. However,after the Complainant was taken to Sh. P.N. Sudan, Superintendent Customs who hasappeared as PW7, on checking the documents, PW7 was satisfied that the Complainantwas having valid papers for the import of the notified articles and, thus, therewas no reason or motive on the part of the accused to demand illegal gratificationand also on the part of the Complainant to part with the demanded money. Asregards the subsequent demand, it is held that the Complainant has not stated aboutthe demand on 8th July, 1989 at his residence and the bag containing `60,000/- wasrecovered from the cot lying in the drawing room of the accused. The money was notrecovered from the person of the accused. The learned trial court did not find itfit to rely on the testimony of Rameshwar Nath PW3 as the Complainant PW2 hadturned hostile and also found his version improbable that the shadow witness satoutside for an hour and in this one hour, the complainant did not pass on the moneyfor which he had gone.

Learned Counsel for the Appellant contends that the demand has clearly beenproved as at the time of initial demand outside the office of the SuperintendentCustoms in C.R. Building on 4th July, 1989 when P.S. Saini demanded money for bothof them and threatened that otherwise the Complainant would be harassed for sixmonths, the Respondent was present in proximity at a distance of 3-4 ft and thuswas also a party to the initial demand. Thereafter, there is a specific demand ontelephone made by the Respondent on 7th July, 1989 whereafter the Complainant gavethe complaint to the CBI. This fact has been deposed by PW2 and is corroborated bythe fact that he withdrew `60,000/- from the bank. PW2 has also deposed that inhis books of accounts there is an entry of `60,000/- shown as recoverable from CB Ias trap amount. It is contended that even if PW2 has not stated in his examinationin chief that when he went with the money on 8th July, 1989 the Respondent demandedmoney, that does not discredit his entire testimony wherein he has deposed aboutthe entire sequence of events. Though this witness had turned hostile, however, hehas categorically stated that he had enquired from the accused that after paymentwhether any action will be taken against him to which the Respondent replied in thenegative. The motive of seeking illegal gratification was not the raid conductedon that day but not to cause harassment for the next six months. PW3 has statedabout the demand and acceptance of the money at the time of trap. The evidence of PW3 is further corroborated by the scientific evidence of PW8 K.S. Chhabra, SeniorScientific Officer who has reported that the hand wash solution gave positive testfor phenolphthelein and sodium carbonate and the testimony of PW4 the DSP whorecovered the money and took the hand wash of the Respondent wherein the right handwash of the Respondent turned pink. Relying on State of Punjab Vs. Harbans Singh and Another, , it is contended that even if PW3 had appeared as awitness for CBI in other raids all that was required was to act on his testimonywith caution and the testimony of such a witness cannot be ignored as has been doneby the learned trial court. It is contended that the testimony of PW3 is dulycorroborated on material particulars and hence reliance should be placed thereon. Relying on M. Narsinga Rao Vs. State of Andhra Pradesh, , it is stated thatonce demand and acceptance is proved from direct or circumstantial evidence then inview of Section 20 of the P.C. Act, the Statutory presumption has to be drawn whichhas not been done by the learned trial court. Learned Counsel thus contends thatthe learned trial court not only ignored material evidence but also did not raisethe statutory presumption, which it was legally bound to raise and hence theimpugned judgment is illegal, perverse and calls for interference by this Court.

Learned Counsel for the Respondent contends that PW3 is a stock witness and in his cross examination he has admitted that he has joined the CBI in 5-6 raid/departmental enquiries. Reliance is placed on Babudas Vs. State of M.P., to state that no reliance can be placed on the testimony of such awitness. It is stated that there are material contradictions in the testimony ofthe witnesses inasmuch as PW2, 3 and 4 say that money was kept in a hand bag ofblack colour, zip of which was broken whereas the bag which was brought in thewitness box was of brown colour and thus the bag which was allegedly seized wasdifferent from the one produced before the Court. The acceptance of bribe amountby the Respondent has also not been proved. The motive has also not been proved asPW7 Prem Nath Sudan has stated that the Complainant was produced in his office on4th July, 1989; on checking the documents, he was satisfied that the Complainantwas having valid document for the import of the notified articles and so he allowedhim to go. Since nothing remained to be done, there was no reason or any motivefor the Respondent to demand illegal gratification. Though the entire investigationwas done by the previous I. Os, however, they have not been examined. There beingno demand by the Respondent either at the godown or the C.R. Building, nor anydemand or acceptance having been proved, thus no presumption can be raised. Relying on Subhash Chand Chauhan v. CBI 2005 (1) C.C. C 292, it iscontended that for an offence u/s 13(1)(d) the statutory presumptionunder Section 20 is not available. Reliance is also placed on Khazan Singh (D) by LRs. Vs. Gurbhajan Singh and Others, to contend that when the demand by the accused is not proved the presumption u/s 20 of the PC Act regarding acceptance of illegal gratification cannot be raised. Lastly relying on T. Subramanian v. State of T.N. (2006) 1 SCC 401 and State of U.P. Vs. Awdhesh, , State of Punjab Vs. Gurnam Kaur and Others, , State of M.P. v. Munshi Singh and Ors., Union of India (UOI) and Others Vs. Dalbir Singh and Another, , it is contended that when two views are possible in an appeal against acquittal the High Court will not interfere in a judgment of acquittal.

I have heard learned Counsel for the parties and perused the records. Conscious of the limitations of interference in an appeal against acquittal, it hasto be seen whether there are compelling and substantial reasons for interfering inthe impugned judgment or that the Trial Court has ignored material evidence ormisread the material evidence or ignored statutory provisions. On marshalling theentire evidence, I find that the factum of initial demand has been proved from thetestimony of PW2 Ramesh Kumar Suri, the Complainant himself. PW2 in his testimonystates that when he was coming out of the office of PW7 on the 4th July, 1989, Shri P.S. Saini and the Respondent were standing outside the office. Shri P.S. Sainiagain demanded money from him and on his refusal he threatened that they wouldseize the articles from his premises and that he would be harassed for about sixmonths. The Respondent was present at that time along with Shri Saini and both Shri Saini and the Respondent asked him that it would be better if he paid theamount. On the Complainant keeping quiet, they directed him to arrange the money. On 7th July, 1989 the Complainant received a telephone call from the Respondentasking him to make the payment otherwise they would seize the goods from hispremises. The Respondent asked him to make the payment at the Respondent''s GaganVihar residence, The Complainant stated that he could arrange only `60,000/-. TheRespondent asked him to pay `60,000/- on 8th July, 1989 at 8 a.m. and make thepayment of balance amount within 3-4 days. The learned Trial Court rejected thistestimony of PW2, the Complainant on the ground that when he received the telephonecall, according to him, his brother-in-law Ram Malhotra was sitting with him and it is not clear from the testimony whether the Complainant told about the demand ofillegal gratification to his brother-in-law or not and as the prosecution hasfailed to examine Ram Malhotra, the brother-in-law of the Complainant, tocorroborate his version, it was held unsafe to rely on the sole testimony of theComplainant in this regard, specially because there was no motive or occasion fordemanding the bribe. Both these reasons of the learned Special Court are erroneousas at the time of demand, normally, nobody else except the complainant would bepresent, and especially on the telephone the complainant would be all alone andthus, to reject that testimony for want of corroboration and that it was unsafe torely, would be contrary to the settled principles of appreciation of evidence. Once the learned Special Judge comes to the conclusion that it is not clear whetherthe demand of illegal gratification was informed to the brother-in-law or not, hisnon-examination as a witness is of no consequence. Moreover, the testimony of thebrother-in-law even if produced in the Court would have been hearsay evidence.

The finding of the learned Trial Court that there was no motive to demandmoney as the Superintendent had satisfied himself that the complainant had validdocuments for the import of zip fasteners is also perverse. The Complainant in histestimony has clearly stated that this money was demanded so that no harassment iscaused to the Complainant in future. Moreover the learned trial court has ignoredthe statement of PW2 that after Mr. Sudan checked the papers he advised thecomplainant to keep cordial relations with his subordinates. Thus the learned TrialCourt while coming to this conclusion has ignored material evidence on record.

The learned Trial Court has further disbelieved the subsequent demand and acceptance on the ground that the Complainant PW2 has turned hostile in this regard and PW3, the shadow witness being a stock witness, his testimony is not reliable. There is serious infirmity in this finding of the learned trial court. The learned trial court failed to apply the settled legal principles that the testimony of a hostile witness cannot be treated as effaced or washed off the record altogether; part of his evidence which is otherwise acceptable can be acted upon. Reliance has been placed on Khujji@ Surendra Tiwari v. State of Madhya Pradesh AIR 1991 1853. Before discussing the testimony of PW3 and other witnesses in this regard, it would be relevant to note an important aspect. The testimony of PW2 commenced on 17th September, 1993 when his examination in chief was being recorded. He fully supported the prosecution case on that date. While narrating the sequence of events he had deposed about facts uptil entering the house of the Respondent at about 8 a.m. on 8th July, 1989. However, at this stage further statement of PW2 wasdeferred. When his further statement was recorded on 24th November, 1993, he showeda volte-face. On 24th November, 1993, he did not support the prosecution versionand thus was cross examined by the learned APP. PW2 in his testimony though hasnot alleged specific demand at the time when he took money and went to his househowever, he states that he kept the bag containing money on the Sofa and when hesaid that his uncle is sitting in the car, the Respondent asked him to call hisuncle whereupon he called PW3 posing him as his uncle inside the drawing room ofthe Appellant. At that time he kept the money from the seat of the sofa onto thecharpai lying nearby. The learned Trial court held that the money has not beenrecovered from the person of the accused. It may be noted that when illegalgratification amount is large the same cannot be accepted as cash in hand. They canonly be handed over and accepted by keeping in bags, suitcases or packets etc.which can never be recovered from the person of an accused. The sequence of events at that time has been deposed by PW3 Rameshwar Nath. According to him, when theComplainant came to call him from the car at about 9.00 A.M., the Respondent wasstanding in the corridor of the entrance. When he entered the residence of theRespondent along with the Complainant, the Complainant PW2 was carrying the bagwith him containing the money. When PW3 went inside, the Respondent enquired fromthe Complainant if he had brought the money. He further inquired about PW3 whomPW2 introduced as his uncle. PW2 thereafter asked if there was anything to worryabout and whether his work would be done. The Respondent took the money. PW2handed over the handbag containing the notes to the Respondent. The Respondenttouched the notes with his right hand and placed the hand bag containing the moneyon the cot made of steel. Thus, there is a demand and acceptance which is dulyproved by PW3. The testimony of this witness cannot be discredited merely becausehe has appeared as a witness in 3-4 other cases of CBI. As is the practice, theCBI calls for independent witness from various offices and thus chances of theseofficials appearing as shadow witnesses in CBI cases on more than one occasioncannot be ruled out. They can be not termed as stock witnesses. The learned trialcourt erred in discarding the testimony of this witness on the ground firstly,because the complainant did not support this version and secondly, it was highlyimprobable that within the period of one hour during which the complainant alonewas sitting with the accused, he did not pass on the money to the accused or thatthe accused did not even demand the money. The testimony of PW3 is corroborated bythe testimony of PW4 R.S. Manku, Deputy S.P. who had laid the trap and also PW8 A.S. Chhabra, Senior Scientific Officer who gave the report that the right-hand wash solution gave positive test for Phenolphthelin and Sodium. The factum that money was demanded and given for illegal gratification to the Appellant is further corroborated by the fact that money was withdrawn from the bank account of PW2 who has clearly deposed about it.

I also find force in the contention of the learned Counsel for the Appellantthat once demand and acceptance is proved then the statutory presumption underSection 20 arises and onus shifts to the Respondents to rebut the said presumption. In M. Narsinga Rao Vs. State of Andhra Pradesh, it was held thatwhere receipt of illegal gratification was proved the Court was under a legalobligation to presume that such gratification was accepted as reward for doing apublic duty. In the report it was held:

Before proceeding further, we may point out that the expressions "may presume" and "shall presume" are defined in Section 4 of the Evidence Act. The presumptions falling under the former category are compendiously known as "factual presumptions" or "discretionary presumptions" and those falling under the latter as "legal presumptions" or "compulsory presumptions". When the expression "shall be presumed" is employed in Section 20(1) of the Act it must have the same import of compulsion.

1 When the Sub-section deals with legal presumption it is to be understood as in terrarium i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption u/s 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act.

The word "proof need be understood in the sense in which it is defined in the Evidence Act because proof depends upon the admissibility of evidence. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or consider its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This is the definition given for the word "proved" in the Evidence Act. What is required is production of such materials on which the court can reasonably act to reach the supposition that a fact exists. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Fletcher Moulton L.J. in Hawkins v. Powells Tillery Steam Coal Company, Ltd. 1911 (1) K.B. 988 observed like this:

Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion.

The said observation has stood the test of time and can now be followed as the standard of proof. In reaching the conclusion the court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. Law gives absolute discretion to the court to presume the existence of any fact which it thinks likely to have happened. In that process the court may have regard to common course of natural events, human conduct, public or private business vis-a-viz the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence Act.

Presumption is an inference of a certain fact drawn from other proved facts.

While inferring the existence of a fact from another, the court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in Law of Evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the court can draw an inference and that would remain until such inference is either disproved or dispelled.

For the purpose of reaching one conclusion the court can rely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted, the court can treat the presumption as tantamounting to proof. However, as a caution of prudence we have to observe that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion. This Court has indicated so in Suresh Budharmal Kalani @ Pappu Kalani Vs. State of Maharashtra, . "A presumption can be drawn only from facts and not from other presumptions - by a process of probable and logical reasoning."

Illustration (a) to Section 114 of the Evidence Act says that the court may presume that "a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession." That illustration can profitably be used in the present context as well when prosecution brought reliable materials that Appellant''s pocket contained phenolphthalein smeared currency notes for Rs. 500/ when he was searched by PW-7 DSP of the Anti Corruption Bureau. That by itself may not or need not necessarily lead to a presumption that he accepted that amount from somebody else because there is a possibility of somebody else either stuffing those currency notes into his pocket or stealthily inserting the same therein. But the other circumstances which have been proved in this case and those preceding and succeeding the searching out of the tainted currency notes, are relevant and useful to help the court to draw a factual presumption that Appellant had willingly received the currency notes.

Thus this Court is legally bound to raise presumption. Indubitably thispresumption is rebuttable. The defence of the Respondent in his statement underSection 313 Cr. P.C. is that he conducted search at the premises of PW2, he offeredto act as an informer and thus the Rspondent was duty bound to entertain theinformer. According to the Respondent, PW2 had come to him in that veryconnection. In this regard, it may be noted that PW2 has supported the entireprosecution case except to the extent of demand and acceptance at the time of raid. No suggestion has been given to PW2 that themoney brought to the house of the Respondent was earnest money. In view of thelegal presumption as envisaged u/s 20, it was the duty of the Respondentto have rebutted the same by cogent evidence. The Respondent has failed todischarge that onus. No doubt as held in Subash Parbat Sonvane Vs. State of Gujarat, , the statutory presumption cannot be raised for an offence u/s 13(1)(d). However, for an offence u/s 7 this presumption has to be raised.

For the foregoing reasons, the impugned judgment is set aside. The Respondent is convicted for offence punishable u/s 7 of the Prevention of Corruption Act, 1988.