Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. No. 100/2003
th
% Reserved on: 25 April, 2013
th
Decided on: 10 July, 2013
SURESH KUMAR DUGGAL ..... Appellant
Through: Mr. S. K. Sharma, Mr. Puneet Relan,
Mr. Prayas Aneja and Mr. Milan Deep
Singh, Advocates.
versus
STATE (NCT OF DELHI) C.B.I ..... Respondent
Through: Mr. R.V. Sinha, Standing Counsel.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
th
1. By this appeal the Appellant impugns the judgment dated 29 January,
2003 whereby he has been convicted for offences punishable under Sections
7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act,
th
1988 (in short the PC Act) and the order on sentence dated 30 January,
2003 whereby he has been directed to undergo rigorous imprisonment for a
period of four years and a fine of Rs. 500/- each for offences under Section 7
and Section 13(2) of the PC Act. In case of default of payment of fine the
Appellant has to undergo rigorous imprisonment for three months on each
count.
2. Learned counsel for the Appellant contends that the sanction granted
by the competent authority suffers from non-application of mind. The
sanction order was passed verbatim on the basis of draft sanction order and
only the name of sanctioning authority has been filled up. Further the
CRL.A. 100/2003 Page 1 of 10
sanction order does not show for which offences the sanction for prosecution
has been granted. Reliance is placed on Mohd. Iqbal Ahmed Vs. State of
Andhra Pradesh AIR 1979 SC 677 and Mansukhlal Vithaldas Chauhan Vs.
State of Gujarat AIR 1997 SC 3400 . The version of the complainant
regarding initial demand is based on hearsay evidence of what was told to
his father and is thus not admissible in evidence. Further the father of the
complainant has not been examined as a witness. The case of the
prosecution regarding demand of money for not taking action for misuse of
water is falsified from the Jal Meter Diary Ex.DW1/A (at page 221 of the
Trial Court Record) wherein the Appellant made an endorsement regarding
th
the misuse of water on 29 March, 1997 itself. There is a further
th
endorsement in Ex. DW1/A dated 7 April, 1997 whereby report to Z.E. (W)
for cost of water has been sent. The complainant in his examination-in-chief
does not state that the Appellant demanded money. He was thus declared
hostile on this point. The version of PW3 the shadow witness regarding the
conversation at the time of alleged transaction is altogether different. PW3
in his cross-examination categorically admitted that he did not see the
complainant giving money to the Appellant or the Appellant accepting the
money. The prosecution failed to re-examine the shadow witness on the
point of demand and acceptance of money. The shadow witness also
admitted in his examination-in-chief that he did not recollect in which hand
the Appellant accepted the money. Thus, in view of the major contradictions
between the testimonies of complainant and the shadow witness, the demand
and acceptance by the Appellant has not been proved beyond reasonable
doubt by the prosecution.
CRL.A. 100/2003 Page 2 of 10
3. Even the recovery has not been proved by the prosecution in view of
the contradictory testimonies of the various witnesses. The complainant
stated that one member of the trap team recovered the money from the
pocket of the pant of the Appellant and even on cross-examination by the
learned APP he stated that he did not remember what happened to the
recovered money, pant of the Appellant and bottle of washes. He further
stated that the recovery memo Ex.PW2/D does not bear his signatures on all
the pages. There is contradiction in the testimony of the witnesses as to
where the post-trap documents were prepared. In the recovery memo
Ex.PW2/D the details of GC notes have not been mentioned. The
complainant failed to identify the pant of the Appellant. PW3 the shadow
witness has categorically stated that when the money was recovered he was
standing outside the room and he did not see R.P. Sharma the recovery
witness recovering the money from the pocket of the Appellant. He asserted
that she was called inside the room after the recovery. PW4 the recovery
witness could not be examined completely before the Trial Court as he
passed away before completion of his examination-in-chief and cross-
examination, thus part testimony of this witness is of no avail. There is
contradiction in the testimony of the witnesses in respect of the time of trap.
Even otherwise conviction cannot be based on mere recovery as held in
Banarsi Dass Vs. State of Haryana AIR 2012 SC 1589 . The shadow witness
in his testimony has stated that the complainant was carrying a tape-recorder
which was provided to him during pre-raid proceedings, however the said
tape-recorder has not been produced during the trial before the Court. Thus
an adverse inference is required to be drawn against the prosecution. In view
CRL.A. 100/2003 Page 3 of 10
of the serious illegalities and lack of evidence the Appellant be acquitted of
the charges framed.
4. Learned counsel for the CBI on the other hand contends that sending a
draft order does not vitiate the sanction granted by the competent authority if
the same is after due application of mind. Further in view of Section 19(3)
PC Act, the proceedings are not vitiated for any illegality in the sanction,
unless the same results in failure of justice. Learned counsel for the
Appellant has not been able to point out any prejudice caused to him or any
failure of justice. Reliance is placed on Ashok Tshering Bhutia Vs. State of
Sikkim (2011) 4 SCC 402 . There is no requirement in law that the provisions
of the Act for which sanction for prosecution has been granted are required
to be mentioned in the sanction order. Ex.PW1/A the sanction order itself
states that the competent authority granted sanction for receiving illegal
gratification. Once the factual foundation is laid, there is no requirement in
law to reproduce the Sections. The sanctioning authority is not required to
pass a reasoned judgment but has only to pass an administrative order
granting sanction after perusing the relevant records. The sanction order
Ex.PW1/A states that the sanctioning authority has examined fully and
carefully the material placed and thus there is due application of mind.
There is no challenge to the competence of the sanctioning officer. Hence
there is no illegality in the grant of sanction nor non-application of mind.
The Appellant has not denied his capacity as the employee. He has also not
denied the recovery. Minor inconsistencies in the statement of the witnesses
will not affect their trustworthiness. Once recovery is proved, presumption
is raised under Section 20 PC Act for offence under Section 7 PC Act.
CRL.A. 100/2003 Page 4 of 10
Relying on Krishna Ram Vs. State of Rajasthan (2009) 11 SCC 708 it is
contended that under Section 7 PC Act only acceptance has to be proved
unlike Section 13(1)(d) where both acceptance and demand are required to
be proved as proof of obtainment of illegal gratification. In view of the
acceptance and recovery being proved, presumption under Section 20 PC
Act is required to be raised which onus the Appellant has failed to discharge.
There is no merit in the appeal and the same be dismissed.
5. I have heard learned counsel for the parties. Briefly the facts of the
case are that the house in the name of mother of complainant was under
renovation when the Appellant, who was working in the Water Supply
Department of Municipal Corporation of Delhi (MCD), visited the house on
nd
2 April, 1997. The Appellant allegedly found the father of the complainant
misusing the Municipal water supply for renovation of the house. When the
complainant went to meet the Appellant, he threatened the complainant with
disconnection of water supply on the ground of misuse, if the bribe money of
Rs. 3000/- as demanded by him was not paid. Consequently a trap was laid
and the Appellant was allegedly caught red-handed accepting the bribe
amount.
6. The sanction for prosecution was granted by PW1 Rakesh Mohan who
was then working as the Additional Commissioner (Water), MCD Delhi and
was competent to appoint and terminate the Appellant who was working as
LDC-cum-Meter Reader in the MCD. PW1 stated that before granting
sanction for prosecution, he perused the report of the Zonal Revenue officer,
the copy of the FIR and the detailed reports sent by the CBI. Learned
counsel for the Appellant has assailed the sanction order on the grounds that
CRL.A. 100/2003 Page 5 of 10
it does not mention the provisions of law and secondly it is verbatim the
same as the draft sanction order. In Indu Bhushan Chatterjee Vs. State of
West Bengal AIR 1958 SC 1482 their Lordships upheld the grant of sanction
wherein a draft sanction order was prepared by the Police and put up before
the sanctioning authority, who thereafter after going through all the relevant
papers signed the same. The sanction on the basis of a draft sanction order
was held to be a valid sanction accorded by the competent authority. A
perusal of Ex.PW1/A shows that it is a detailed order passed after due
consideration of material on record. It is well settled that a valid sanction
order must either contain all the facts and materials constituting the offence
or the prosecution must establish aliunde by evidence that those facts were
placed before the sanctioning authority ( Major Som Nath Vs. UOI 1971
Cr.L.J 1422 ). There is no requirement in law to mention the provisions of
Act for which prosecution sanction is being granted. The same can be also
inferred by the recital in the order or from the accompanying documents.
Hence, I find no infirmity in the order granting sanction.
7. As regards contradictions PW2 the complainant Manoj Gupta in his
testimony before the Court has stated that his House 725/7, Govind Puri,
nd
Kalkaji which is in the name of his mother was under renovation. On 2
April, 1997 the Appellant visited the house when the complainant was not
present and asked his father that he was misusing the domestic water
connection at the said premises for the repair of his house. On the next day
his father told him that the Appellant has directed him to come to the office.
th
The complainant visited the MCD office Water Supply Department on 7
April, 1997 and met the Appellant. The Appellant stated to the complainant
CRL.A. 100/2003 Page 6 of 10
that they were misusing the domestic connection installed at their house and
th
directed him to bring Rs. 3000/- on 8 April 1997 failing which he
threatened disconnection of water. On the next day the Appellant lodged a
written complaint with the CBI Ex.PW2/A. A trap team was constituted.
The complainant gave 30 GC notes of Rs. 100/- denomination which were
treated and numbers of the notes recorded on a paper which was signed by
the complainant vide Ex.PW2/B. Pre-trap formalities were completed and
thereafter the team left CBI office at around 12.30 or 1.00 PM and reached
MCD office Water Supply Department, Sadiq Nagar, New Delhi. The
complainant along with the shadow witness Pawan Kumar PW3 went to the
office of the Appellant. On entering the office of the Appellant the
complainant wished him “Nameste” which was replied by the Appellant as
“Nameste, Aa Gaye”. The complainant replied “Ji Haa”. Thereafter the
Appellant stated “Kaam Ho Gaya” and the complainant replied “Jee Haa”.
On this the complainant stated “Teen Hazaar rupee main lee aya hun jo
aapne mangaye the”. The Appellant replied “Theek Hai abhi rukkoo”.
Thereafter the complainant took out the tainted money of Rs. 3000/- and
passed on to the Appellant who accepted the same with his right hand and
kept in his right side pocket of his pant. Thereafter the shadow witness went
outside, gave the pre-planned signal to the trap party and immediately two
officials of the CBI came into the room and apprehended the Appellant from
his respective wrists. Inspector Harish then summoned some senior officer
from the office of the accused and took the accused downstairs. One officer
probably Mr. Verma came and thereafter the trap party recovered tainted Rs.
3000/- from the pocket of the pant of the Appellant. The complainant stated
that he did not remember what was done after the recovery of these GC notes
CRL.A. 100/2003 Page 7 of 10
and thus this witness was cross-examined by the learned APP with the
permission of the Court. In cross-examination by the learned APP he
fortified the suggestions with regard to the post-trap proceedings, however
stated that he did not remember as to what happened to the recovered money,
pant of the accused and bottles of the washes, though he stated that he signed
the recovery memo Ex.PW2/D, though on all pages it did not bear his
signature. In cross-examination this witness admitted that two months
before the deposition they received a water bill pertaining to the arrears of
charges for the water used by them for the renovation of house, however
they had not made payment of the said bill, though later he stated that his
parents had cleared that bill. The complainant also admitted that he had
obtained a duplicate bill for the said period because he required the same for
some pending civil suit against MCD Water Supply Department.
8. PW3 Pawan Kumar the shadow witness reiterated the pre-trap
proceedings as stated by PW2 the complainant. He further stated that when
he and the complainant went inside the room of the Appellant, the Appellant
was present in the room. He identified the Appellant in the Court as the
accused sitting in the office. The complainant wishes the Appellant
“Namaste”. Thereafter the Appellant asked “Paise Laye hoo” to which the
complainant replied in the affirmative “Haa”. On this the Appellant said
“Kitne”. The complainant replied “Teen Hazaar Rupee”. Thereafter he took
out the tainted Rs. 3000/- and gave to the Appellant herein. He did not
remember how the Appellant accepted it. However when the complainant
told the Appellant to count the money, the Appellant declined by saying
“Nahin”. On cross-examination this witness admitted that he signed the
CRL.A. 100/2003 Page 8 of 10
recovery memo because he was told that the tainted money was recovered
from the Appellant.
9. PW8 Inspector H.S. Karmyal has also deposed about the pre-trap
proceedings, proceedings of apprehension and post-trap proceedings. He
stated that after receiving the signal they went inside and on the pointing out
of the shadow witness Inspector Surender Malik and Inspector Harminder
Singh caught hold of the Appellant by his respective wrist. The Appellant
was nervous but kept quiet. Thereafter, recovery witness R.P. Sharma took
the search and recovered Rs. 3000/- from the right side pocket of the pant of
the Appellant which he was wearing. Washes of the right hand finger and
the inner lining of the right pocket of the pant of the Appellant taken. Both
the solutions turned pink. They were transferred to empty clean bottles and
they were properly sealed and labeled.
10. It would be thus seen that the evidence of the complainant qua
recovery is duly corroborated by PW8 the trap laying officer. Merely
because PW3 the shadow witness has not supported the prosecution case on
the point of recovery, the otherwise credible testimony of the other witnesses
cannot be discarded. No doubt the evidence of PW4 the recovery witness
cannot be looked into as he passed away before he could be cross-examined
by the learned APP and further cross-examined by the counsel for the
Appellant, and thus his testimony cannot be read. Moreover from the
evidences of PW2 the complainant, PW3 the shadow witness, PW8 the trap
laying officer and the expert opinion qua hand and shirt wash, the
prosecution has proved its case beyond reasonable doubt.
CRL.A. 100/2003 Page 9 of 10
11. The case of the Appellant is that the prosecution case is false as the
Appellant in his Jal Meter Diary Ex.DW1/A had already made an
th
endorsement regarding misuse of water on 29 March, 1997 and a further
th
endorsement vide Ex.DW1/A dated 7 April, 1997 whereby report to Z.E.
(Works) for cost of water had been sent. It is not the case of the Appellant
that the amount of Rs. 3000/- offered to the Appellant was for misuser
charges of the water, as this plea has neither been taken in the cross-
examination of the witness PW2 nor in his statement under Section 313
Cr.P.C. Thus, mere entries in the Jal Meter Diary will not entitle the
Appellant to the benefit of doubt.
12. In view of the aforesaid discussion I find no merit in the appeal. The
same is dismissed. The bail bond and surety bond of the Appellant are
cancelled.
(MUKTA GUPTA)
JULY 10, 2013
‘ga’
CRL.A. 100/2003 Page 10 of 10
+ CRL.A. No. 100/2003
th
% Reserved on: 25 April, 2013
th
Decided on: 10 July, 2013
SURESH KUMAR DUGGAL ..... Appellant
Through: Mr. S. K. Sharma, Mr. Puneet Relan,
Mr. Prayas Aneja and Mr. Milan Deep
Singh, Advocates.
versus
STATE (NCT OF DELHI) C.B.I ..... Respondent
Through: Mr. R.V. Sinha, Standing Counsel.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
th
1. By this appeal the Appellant impugns the judgment dated 29 January,
2003 whereby he has been convicted for offences punishable under Sections
7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act,
th
1988 (in short the PC Act) and the order on sentence dated 30 January,
2003 whereby he has been directed to undergo rigorous imprisonment for a
period of four years and a fine of Rs. 500/- each for offences under Section 7
and Section 13(2) of the PC Act. In case of default of payment of fine the
Appellant has to undergo rigorous imprisonment for three months on each
count.
2. Learned counsel for the Appellant contends that the sanction granted
by the competent authority suffers from non-application of mind. The
sanction order was passed verbatim on the basis of draft sanction order and
only the name of sanctioning authority has been filled up. Further the
CRL.A. 100/2003 Page 1 of 10
sanction order does not show for which offences the sanction for prosecution
has been granted. Reliance is placed on Mohd. Iqbal Ahmed Vs. State of
Andhra Pradesh AIR 1979 SC 677 and Mansukhlal Vithaldas Chauhan Vs.
State of Gujarat AIR 1997 SC 3400 . The version of the complainant
regarding initial demand is based on hearsay evidence of what was told to
his father and is thus not admissible in evidence. Further the father of the
complainant has not been examined as a witness. The case of the
prosecution regarding demand of money for not taking action for misuse of
water is falsified from the Jal Meter Diary Ex.DW1/A (at page 221 of the
Trial Court Record) wherein the Appellant made an endorsement regarding
th
the misuse of water on 29 March, 1997 itself. There is a further
th
endorsement in Ex. DW1/A dated 7 April, 1997 whereby report to Z.E. (W)
for cost of water has been sent. The complainant in his examination-in-chief
does not state that the Appellant demanded money. He was thus declared
hostile on this point. The version of PW3 the shadow witness regarding the
conversation at the time of alleged transaction is altogether different. PW3
in his cross-examination categorically admitted that he did not see the
complainant giving money to the Appellant or the Appellant accepting the
money. The prosecution failed to re-examine the shadow witness on the
point of demand and acceptance of money. The shadow witness also
admitted in his examination-in-chief that he did not recollect in which hand
the Appellant accepted the money. Thus, in view of the major contradictions
between the testimonies of complainant and the shadow witness, the demand
and acceptance by the Appellant has not been proved beyond reasonable
doubt by the prosecution.
CRL.A. 100/2003 Page 2 of 10
3. Even the recovery has not been proved by the prosecution in view of
the contradictory testimonies of the various witnesses. The complainant
stated that one member of the trap team recovered the money from the
pocket of the pant of the Appellant and even on cross-examination by the
learned APP he stated that he did not remember what happened to the
recovered money, pant of the Appellant and bottle of washes. He further
stated that the recovery memo Ex.PW2/D does not bear his signatures on all
the pages. There is contradiction in the testimony of the witnesses as to
where the post-trap documents were prepared. In the recovery memo
Ex.PW2/D the details of GC notes have not been mentioned. The
complainant failed to identify the pant of the Appellant. PW3 the shadow
witness has categorically stated that when the money was recovered he was
standing outside the room and he did not see R.P. Sharma the recovery
witness recovering the money from the pocket of the Appellant. He asserted
that she was called inside the room after the recovery. PW4 the recovery
witness could not be examined completely before the Trial Court as he
passed away before completion of his examination-in-chief and cross-
examination, thus part testimony of this witness is of no avail. There is
contradiction in the testimony of the witnesses in respect of the time of trap.
Even otherwise conviction cannot be based on mere recovery as held in
Banarsi Dass Vs. State of Haryana AIR 2012 SC 1589 . The shadow witness
in his testimony has stated that the complainant was carrying a tape-recorder
which was provided to him during pre-raid proceedings, however the said
tape-recorder has not been produced during the trial before the Court. Thus
an adverse inference is required to be drawn against the prosecution. In view
CRL.A. 100/2003 Page 3 of 10
of the serious illegalities and lack of evidence the Appellant be acquitted of
the charges framed.
4. Learned counsel for the CBI on the other hand contends that sending a
draft order does not vitiate the sanction granted by the competent authority if
the same is after due application of mind. Further in view of Section 19(3)
PC Act, the proceedings are not vitiated for any illegality in the sanction,
unless the same results in failure of justice. Learned counsel for the
Appellant has not been able to point out any prejudice caused to him or any
failure of justice. Reliance is placed on Ashok Tshering Bhutia Vs. State of
Sikkim (2011) 4 SCC 402 . There is no requirement in law that the provisions
of the Act for which sanction for prosecution has been granted are required
to be mentioned in the sanction order. Ex.PW1/A the sanction order itself
states that the competent authority granted sanction for receiving illegal
gratification. Once the factual foundation is laid, there is no requirement in
law to reproduce the Sections. The sanctioning authority is not required to
pass a reasoned judgment but has only to pass an administrative order
granting sanction after perusing the relevant records. The sanction order
Ex.PW1/A states that the sanctioning authority has examined fully and
carefully the material placed and thus there is due application of mind.
There is no challenge to the competence of the sanctioning officer. Hence
there is no illegality in the grant of sanction nor non-application of mind.
The Appellant has not denied his capacity as the employee. He has also not
denied the recovery. Minor inconsistencies in the statement of the witnesses
will not affect their trustworthiness. Once recovery is proved, presumption
is raised under Section 20 PC Act for offence under Section 7 PC Act.
CRL.A. 100/2003 Page 4 of 10
Relying on Krishna Ram Vs. State of Rajasthan (2009) 11 SCC 708 it is
contended that under Section 7 PC Act only acceptance has to be proved
unlike Section 13(1)(d) where both acceptance and demand are required to
be proved as proof of obtainment of illegal gratification. In view of the
acceptance and recovery being proved, presumption under Section 20 PC
Act is required to be raised which onus the Appellant has failed to discharge.
There is no merit in the appeal and the same be dismissed.
5. I have heard learned counsel for the parties. Briefly the facts of the
case are that the house in the name of mother of complainant was under
renovation when the Appellant, who was working in the Water Supply
Department of Municipal Corporation of Delhi (MCD), visited the house on
nd
2 April, 1997. The Appellant allegedly found the father of the complainant
misusing the Municipal water supply for renovation of the house. When the
complainant went to meet the Appellant, he threatened the complainant with
disconnection of water supply on the ground of misuse, if the bribe money of
Rs. 3000/- as demanded by him was not paid. Consequently a trap was laid
and the Appellant was allegedly caught red-handed accepting the bribe
amount.
6. The sanction for prosecution was granted by PW1 Rakesh Mohan who
was then working as the Additional Commissioner (Water), MCD Delhi and
was competent to appoint and terminate the Appellant who was working as
LDC-cum-Meter Reader in the MCD. PW1 stated that before granting
sanction for prosecution, he perused the report of the Zonal Revenue officer,
the copy of the FIR and the detailed reports sent by the CBI. Learned
counsel for the Appellant has assailed the sanction order on the grounds that
CRL.A. 100/2003 Page 5 of 10
it does not mention the provisions of law and secondly it is verbatim the
same as the draft sanction order. In Indu Bhushan Chatterjee Vs. State of
West Bengal AIR 1958 SC 1482 their Lordships upheld the grant of sanction
wherein a draft sanction order was prepared by the Police and put up before
the sanctioning authority, who thereafter after going through all the relevant
papers signed the same. The sanction on the basis of a draft sanction order
was held to be a valid sanction accorded by the competent authority. A
perusal of Ex.PW1/A shows that it is a detailed order passed after due
consideration of material on record. It is well settled that a valid sanction
order must either contain all the facts and materials constituting the offence
or the prosecution must establish aliunde by evidence that those facts were
placed before the sanctioning authority ( Major Som Nath Vs. UOI 1971
Cr.L.J 1422 ). There is no requirement in law to mention the provisions of
Act for which prosecution sanction is being granted. The same can be also
inferred by the recital in the order or from the accompanying documents.
Hence, I find no infirmity in the order granting sanction.
7. As regards contradictions PW2 the complainant Manoj Gupta in his
testimony before the Court has stated that his House 725/7, Govind Puri,
nd
Kalkaji which is in the name of his mother was under renovation. On 2
April, 1997 the Appellant visited the house when the complainant was not
present and asked his father that he was misusing the domestic water
connection at the said premises for the repair of his house. On the next day
his father told him that the Appellant has directed him to come to the office.
th
The complainant visited the MCD office Water Supply Department on 7
April, 1997 and met the Appellant. The Appellant stated to the complainant
CRL.A. 100/2003 Page 6 of 10
that they were misusing the domestic connection installed at their house and
th
directed him to bring Rs. 3000/- on 8 April 1997 failing which he
threatened disconnection of water. On the next day the Appellant lodged a
written complaint with the CBI Ex.PW2/A. A trap team was constituted.
The complainant gave 30 GC notes of Rs. 100/- denomination which were
treated and numbers of the notes recorded on a paper which was signed by
the complainant vide Ex.PW2/B. Pre-trap formalities were completed and
thereafter the team left CBI office at around 12.30 or 1.00 PM and reached
MCD office Water Supply Department, Sadiq Nagar, New Delhi. The
complainant along with the shadow witness Pawan Kumar PW3 went to the
office of the Appellant. On entering the office of the Appellant the
complainant wished him “Nameste” which was replied by the Appellant as
“Nameste, Aa Gaye”. The complainant replied “Ji Haa”. Thereafter the
Appellant stated “Kaam Ho Gaya” and the complainant replied “Jee Haa”.
On this the complainant stated “Teen Hazaar rupee main lee aya hun jo
aapne mangaye the”. The Appellant replied “Theek Hai abhi rukkoo”.
Thereafter the complainant took out the tainted money of Rs. 3000/- and
passed on to the Appellant who accepted the same with his right hand and
kept in his right side pocket of his pant. Thereafter the shadow witness went
outside, gave the pre-planned signal to the trap party and immediately two
officials of the CBI came into the room and apprehended the Appellant from
his respective wrists. Inspector Harish then summoned some senior officer
from the office of the accused and took the accused downstairs. One officer
probably Mr. Verma came and thereafter the trap party recovered tainted Rs.
3000/- from the pocket of the pant of the Appellant. The complainant stated
that he did not remember what was done after the recovery of these GC notes
CRL.A. 100/2003 Page 7 of 10
and thus this witness was cross-examined by the learned APP with the
permission of the Court. In cross-examination by the learned APP he
fortified the suggestions with regard to the post-trap proceedings, however
stated that he did not remember as to what happened to the recovered money,
pant of the accused and bottles of the washes, though he stated that he signed
the recovery memo Ex.PW2/D, though on all pages it did not bear his
signature. In cross-examination this witness admitted that two months
before the deposition they received a water bill pertaining to the arrears of
charges for the water used by them for the renovation of house, however
they had not made payment of the said bill, though later he stated that his
parents had cleared that bill. The complainant also admitted that he had
obtained a duplicate bill for the said period because he required the same for
some pending civil suit against MCD Water Supply Department.
8. PW3 Pawan Kumar the shadow witness reiterated the pre-trap
proceedings as stated by PW2 the complainant. He further stated that when
he and the complainant went inside the room of the Appellant, the Appellant
was present in the room. He identified the Appellant in the Court as the
accused sitting in the office. The complainant wishes the Appellant
“Namaste”. Thereafter the Appellant asked “Paise Laye hoo” to which the
complainant replied in the affirmative “Haa”. On this the Appellant said
“Kitne”. The complainant replied “Teen Hazaar Rupee”. Thereafter he took
out the tainted Rs. 3000/- and gave to the Appellant herein. He did not
remember how the Appellant accepted it. However when the complainant
told the Appellant to count the money, the Appellant declined by saying
“Nahin”. On cross-examination this witness admitted that he signed the
CRL.A. 100/2003 Page 8 of 10
recovery memo because he was told that the tainted money was recovered
from the Appellant.
9. PW8 Inspector H.S. Karmyal has also deposed about the pre-trap
proceedings, proceedings of apprehension and post-trap proceedings. He
stated that after receiving the signal they went inside and on the pointing out
of the shadow witness Inspector Surender Malik and Inspector Harminder
Singh caught hold of the Appellant by his respective wrist. The Appellant
was nervous but kept quiet. Thereafter, recovery witness R.P. Sharma took
the search and recovered Rs. 3000/- from the right side pocket of the pant of
the Appellant which he was wearing. Washes of the right hand finger and
the inner lining of the right pocket of the pant of the Appellant taken. Both
the solutions turned pink. They were transferred to empty clean bottles and
they were properly sealed and labeled.
10. It would be thus seen that the evidence of the complainant qua
recovery is duly corroborated by PW8 the trap laying officer. Merely
because PW3 the shadow witness has not supported the prosecution case on
the point of recovery, the otherwise credible testimony of the other witnesses
cannot be discarded. No doubt the evidence of PW4 the recovery witness
cannot be looked into as he passed away before he could be cross-examined
by the learned APP and further cross-examined by the counsel for the
Appellant, and thus his testimony cannot be read. Moreover from the
evidences of PW2 the complainant, PW3 the shadow witness, PW8 the trap
laying officer and the expert opinion qua hand and shirt wash, the
prosecution has proved its case beyond reasonable doubt.
CRL.A. 100/2003 Page 9 of 10
11. The case of the Appellant is that the prosecution case is false as the
Appellant in his Jal Meter Diary Ex.DW1/A had already made an
th
endorsement regarding misuse of water on 29 March, 1997 and a further
th
endorsement vide Ex.DW1/A dated 7 April, 1997 whereby report to Z.E.
(Works) for cost of water had been sent. It is not the case of the Appellant
that the amount of Rs. 3000/- offered to the Appellant was for misuser
charges of the water, as this plea has neither been taken in the cross-
examination of the witness PW2 nor in his statement under Section 313
Cr.P.C. Thus, mere entries in the Jal Meter Diary will not entitle the
Appellant to the benefit of doubt.
12. In view of the aforesaid discussion I find no merit in the appeal. The
same is dismissed. The bail bond and surety bond of the Appellant are
cancelled.
(MUKTA GUPTA)
JULY 10, 2013
‘ga’
CRL.A. 100/2003 Page 10 of 10