Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 02.01.2014
% Date of Decision: 06.01.2014
+ CRL. A. No.645 of 2010
MAHESH PAL SINGH ..... Appellant
Through: Dr. K.S. Chauhan, Mr. Chand Kiran,
Mr. Ajit Kumar Ekka & Mr. Tej Singh
Varun, Advs.
versus
STATE OF NCT OF DELHI ..... Respondent
Through: Mr. Feroz Khan Ghazi, APP.
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN
JUDGEMENT
V.K.JAIN, J.
th
On 24 April, 2007, the complainant Mr. Shiv Kumar, whose son
th
Ashwin at that time was studying in the 8 Standard in Ludlow Castle
No.2 School and was placed in compartment in Mathematics, came to
the office of the Anti Corruption Branch and gave a written complaint,
exhibit PW 4/8, alleging therein that on the appellant, Mr. M.P. Singh,
who was an English Teacher, asking him, through his son, to meet him,
he (the complainant) went to the School along with his son and met the
appellant, who offered to pass his son on payment of Rs.3,000.00 as
bribe. He further alleged that the appellant had called him by 1:00 p.m.
that day. The complainant also brought to the office of Anti Corruption
Branch, currency notes amounting to Rs.3,000.00. The currency notes
produced by the complainant were then treated with phenolphthalein
Crl. A. No.645 of 2010 Page 1 of 17
powder and a demonstration was then given to the complainant as well
as the panch witness, Shri Ved Prakash, LDC in Food & Supplies
Department, Government of NCT of Delhi by touching a hand of the
panch witness with the aforesaid treated notes and then taking wash of
the said hand in the solution of sodium carbonate, which turned into
pink. The currency notes were then given back to the complainant and
the panch witness was instructed to remain close to the complainant and
give pre-decided signal after witnessing the transaction. The
complainant and the panch witness were sent inside the School and were
followed by the other members of the raiding team, who took positions
in the Administrative Block of the School. On noticing the pre-decided
signal given by the panch witness, the members of the raiding team
reached the staff room of the School and on search of the appellant by
the panch witness, the bribe money of Rs.3,000.00 was recovered from
the right pocket of his pant. The currency notes taken out of the pocket
of the appellant were seized and the wash of the hands of the appellant
as well as the right pocket of his pant was taken in Sodium Carbonate
solution, which turned pink.
2. The appellant was charged under Section 7 read with Section
13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred
to as the „PC Act‟). He pleaded not guilty and claimed trial. The
prosecution examined as many as twelve (12) witnesses in support of
its case. One (1) witness was examined in defence. Vide impugned
judgement and order of sentence, the appellant was convicted under
Sections 7 & 13(1)(d) read with Section 13(2) of the PC Act and was
sentenced to undergo rigorous imprisonment for a period of three (3)
Crl. A. No.645 of 2010 Page 2 of 17
years and pay a fine of Rs.30,000.00 or to undergo simple imprisonment
for six (6) months in default under Section 7 of the PC Act. Identical
sentence was awarded to him under Section 13(2) of the PC Act. It was
further directed that both the sentences shall run concurrently.
3. The complainant, Shri Shiv Kumar, came in the witness box as
PW-4 and stated that one day prior to 24.4.2007, his son Ashwin
Dhigan, who was studying in Class 8 in Ludlow Castle No.2 School
informed him that his teacher, Mr. M.P. Singh was calling him. He,
therefore, went to the School along with his son, in the morning of
24.4.2007. The appellant, who met him in the School told him that he
could get his son succeed in the compartmental examination and
demanded bribe of Rs.3,000/-. He further stated that the appellant
refused to reduce the bribe amount, saying that he had to give some
money to senior officers as well. He thereupon went to the police and
handed over six (6) currency notes of Rs.500.00 each to an Inspector in
the presence of panch witness, Shri Ved Prakash. After noting down the
numbers of those currency notes the police officer applied powder on
them, gave demonstration, and thereafter handed over the said currency
notes to him. At about 1:00 p.m. he along with the panch witness and
other members of the raiding party reached the School. His son called
the appellant, who first took them outside the School and then went
inside the Staff Room. On return from the Staff Room, the appellant
demanded and accepted the bribe amount of Rs.3,000.00 from him and
kept the same in the right side pocket of the pant he was wearing. The
appellant also told him that he had talked in the office. Thereafter the
panch witness gave the pre-decided signal to the raiding party which
Crl. A. No.645 of 2010 Page 3 of 17
reached there and apprehended the appellant. The complainant further
stated that when the appellant was apprehended he dropped the money
after taking it out from his pocket and the currency notes were then
collected by the members of the raiding party. Serial numbers of those
currency notes tallied with the serial numbers mentioned in the pre-raid
report and were seized vide memo Exhibit PW-1/C which bears his
signatures. He has further stated that the right hand of the appellant was
dipped in some water type solution which turned into pink and was
thereafter transferred into two bottles which were seized by the police
officers. The appellant was then taken to the office of the Anti
Corruption Branch where a wash of the right side pocket of his pant was
taken. The colour of the solution turned pink during wash. Another
pant was called from the house of the appellant and the pant which he
was wearing was seized by the police.
4. The panch witness, Shri Ved Prakash came in the witness box as
PW-6 and fully supported the case set out in the charge sheet. He
corroborated the deposition of the complainant with respect to handing
over six (6) currency notes of Rs.500.00 each to the police officer, the
number of those currency notes being recorded in the pre-raid report,
powder being applied to those notes and a demonstration being given by
touching his hand and taking wash in a colourless solution, which on
such wash turned into pink. He further stated that on seeing the
complainant, the appellant came out of the class room and after walking
for some time entered the Staff Room. Thereafter the appellant came
out in a gallery, accepted the bribe money in his right hand and kept the
same in the right side pocket of his pant. He thereupon gave pre-
Crl. A. No.645 of 2010 Page 4 of 17
decided signal to the raiding party, which reached there. He further
stated that the treated currency notes were recovered from the right
pocket of the pant of the appellant, their numbers tallied with the
numbers noted in the pre-raid memo and said currency notes were then
seized vide memo exhibit PW-4/C which bears his signatures. He has
also corroborated the deposition of the complainant with respect to the
hand of the appellant being dipped in some water type solution which
then turned into pink and seizure of the said solution after transferring
the same into two bottles. According to this witness, the wash of the
right pocket of the pant of the appellant was also taken in the same
manner and on such wash the solution turned pink and was seized after
transferring the same into two bottles.
5. PW-8, Inspector Santosh Kumar of the Anti Corruption Branch,
has deposed regarding the complainant coming to their office, handing
over six (6) currency notes of Rs.500.00 each, phenolphthalein powder
being applied to those notes and the same being handed over to the
complainant after giving demonstration in the presence of the
complainant and the panch witness by touching right hand of the panch
witness with treated witness and thereafter taking wash of the said hand
in the solution of Sodium Carbonate. He further stated that on receiving
the pre-decided signal from the panch witness, he along with other
members of the raiding party reached the Staff Room where the panch
witness told him as to what had transpired. He offered his search to the
appellant, who declined the offer. The panch witness thereafter took out
the treated currency notes from the right pocket of the pant of the
appellant. The said currency notes were then seized and right hand
Crl. A. No.645 of 2010 Page 5 of 17
wash of the appellant was taken in a colourless solution of Sodium
Carbonate which turned into pink. Thereafter wash of the right side
pant pocket of the appellant was taken and that also turned into pink and
was duly seized. This witness also took the specimen signatures of the
appellant Exhibit PW8/D1 to D6.
6. PW-12, Shri Anurag Sharma, Sr. Scientific Officer (Documents),
FSL Rohini, Delhi who compared the writing Q1 and Q2 with the
specimen signatures of the appellant. In his opinion, the author of the
specimen writing S1 to S6 was also the author of the question writing
Q1 and Q2.
7. In his statement under Section 313 Code of Criminal Procedure,
the appellant admitted that he was posted as TGT (English) in Rajkiya
Pratibha Vikas Vidyalaya, Ludlow Castle-II, Delhi in April, 2007. He,
however, denied having asked Master Ashwin to ask his father to meet
him. He also denied having demanded the bribe from the complainant,
taking bribe amount of Rs.3,000/- from him on 24.4.2007 and recovery
of the said money from his pocket. He stated that on 24.4.2007 when he
was coming back after taking water from the water cooler installed in
the Administrative Block of the School, the complainant met him in
front of the office of the Principal and enquired about the result. He told
the complainant that he had no concern with the said result and asked
the complainant to contact the class teacher. Some altercation took
place between them in which he was beaten by the complainant and the
officials of Anti Corruption Branch.
Crl. A. No.645 of 2010 Page 6 of 17
8. DW-1, Shri Praveen Kumar, has stated that on 24.4.2007 when
the appellant was reading newspaper from the dias where the
newspapers were displayed one person caught hold of him from the
back side with the collar of his shirt. The appellant was thereafter
dragged by that person. According to this witness two-three persons
were pushing the appellant but he was resisting them. According to him
some teachers came there and stopped those persons. The witness
claimed that no recovery was made from the appellant in his presence.
9 Section 7 of the PC Act, to the extent it is relevant for this case,
provides that whoever, being a public servant, accepts or obtains or
attempts to obtain, for himself any gratification whatever, other than
legal remuneration, as a motive or reward for doing or forbearing to do
any official act or for showing or forbearing to show, in the exercise of
his official functions, favour or disfavour to any person, shall be liable
to the prescribed punishment. Explanation (d) to Section 7 of the PC
Act provides that a person who receives a gratification as a motive or
reward for doing what he does not intend or is not in a position to do, or
has not done, comes within the words “a motive or reward for doing”.
Therefore a demand for money for doing a favour such as making a
student succeed in the examination, would constitute an attempt to
obtain illegal gratification as a motive or reward for doing an official act
or showing favour in the exercise of official functions, irrespective of
whether the public servant attempting to obtain such gratification is or is
not in a position to actually extend any such favour.
Crl. A. No.645 of 2010 Page 7 of 17
10. The deposition of the complainant, which I see no reason to
disbelieve clearly shows that the appellant not only demanded but
actually obtained illegal gratification for him, on the promise that he
would make his son succeed in the compartmental examination in
Mathematics. Though it was contended by the learned counsel for the
appellant that the complainant has implicated the appellant for vested
reasons, no such reason could be spelt out by him. Admittedly, there
was no enmity or ill-will between the complainant and the appellant.
Therefore, the complainant had absolutely no reason to impute a false
demand and acceptance of bribe to the appellant. Moreover, the
deposition of the complainant with respect to acceptance of Rs.3,000/-
by the appellant from him has been fully corroborated by the panch
witness, Shri Ved Prakash, LDC, who is a public servant and had joined
the raiding party in performance of his official duties as a public servant.
11. The following observations made by me in Madan Lal Vs. The
State of NCT of Delhi 2010 (9) AD Delhi 685 are apt for this case as
well:
“23. ….The courts need to appreciate that the citizens in our
country are most of the times reluctant even to lodge a
complaint of demand of illegal gratification from them. Most
of them pay the illegal gratification either with a view to get
done something to which they are otherwise not entitled under
the Rules or in order to get their matter expedited or with a
view not to antagonize the public servant dealing with their
matter, lest he puts obstacle in their way by taking a view or
recording a note unfavourable to them. When a person takes
the step of going to the Anti Corruption Branch, making a
complaint, and getting a trap organized, he knows it very well
that it was going to cost him a lot of inconvenience and
harassment. Firstly, he has to visit the office of Anti Corruption
Crl. A. No.645 of 2010 Page 8 of 17
Branch and pay the bribe money from his pocket. He has to
complete a number of formalities in the office of Anti
Corruption Branch and then accompany the officials
constituting the raiding party to the place of the accused. He
then has to visit the office of the Anti Corruption Branch in
connection with the investigation of the case and thereafter he
has to attend the court on a number of occasions. While doing
all this, the complainant has to necessarily remain away from
the work or business in which he is engaged and thereby he
sacrifices a lot of his precious time and possibly also the money
which he could be earning utilizing that time. He has to
withstand a grilling cross-examination at the hands of the
defence counsel and also face the animosity of not only the
public servant got trapped by him but also of his colleagues,
who will be antagonized with him, on account of his getting a
colleague of theirs trapped for accepting bribe. A person
making complaint against a public servant knows it very well
that in the department of the accused, no one may like to deal
with him in future and in fact the colleagues of the accused are
only likely to put obstacles in the work which he may have in
the department. Therefore, most of the time, a person, from
whom bribe is demanded, either pays up the money or he
simply withdraws, instead of reporting the matter to the Anti
Corruption Branch and going to the extent of being member of
a raiding party. It is only in extreme cases where a citizen has a
strong feeling of having been wronged or where he is so much
conscious of his rights that instead of keeping silent or paying
money, he wants a bribe seeker to be punished that he goes to
the Anti Corruption Branch, make a complaint and then follows
that complaint to its logical conclusion. Ordinarily the
testimony of the complainant need to be believed unless there
are strong and compelling reasons creating serious doubt on the
truthfulness of his testimony.”
12. Ex.PW8/G is the writing which was recovered from the personal
search of the appellant, when he was arrested. On the front side of this
paper, there is a writing “23 April to 28 April, 2007, which is marked as
Q1. On the backside of this paper, there is a writing “VIII A – 8141 –
Crl. A. No.645 of 2010 Page 9 of 17
Ashwani – Maths and S. Study” which has been marked as Q2. S1 to S6
are the specimen writing of the appellant taken by the Investigating
Officer. The appellant has not denied that the specimen writings S1 to
S6 were written by him. The question writings Q1 and Q2 on Ex.PW8/G
were compared by the handwriting expert PW9 with the specimen
writings S1 to S6 and in his opinion, the author of the specimen writings
S1 to S6 is the author of question writings Q1 and Q2. The aforesaid
paper recovered from the pocket of the appellant is strong corroborative
documentary evidence against him. If he had nothing to do with the
complainant or his son, as is the defence taken by him, there could be no
reason from him to write the name of Ashwani, son of the complainant
and the subjects in which he was placed in compartment, on this
document. It would be pertinent to note here that, as would be evident
from the letter Ex.PW3/D sent by the school to the IO of this case,
Ashwani – son of the complainant, was placed for compartments in
mathematics and Social Science and both the subjects were found
written on the back side of the document Ex.PW9/G.
13. It was contended by the learned counsel for the appellant that
since admittedly, the appellant was not teaching Mathematics to the son
of the complainant, he was not in a position to help him in any manner
in the compartmental examination. Admittedly, the appellant was a
teacher in the school in which the son of the complainant was studying.
If a school teacher makes such an offer to a parent, it would not be
unrealistic for the parent to fall into his trap and pay bribe to him on the
assumption that being a teacher in the same school he would be in a
position to help his son in passing the examination which he had to take.
Crl. A. No.645 of 2010 Page 10 of 17
In any case, once it is proved that there was actual demand and
acceptance of gratification by the appellant, the question as to whether
the appellant was in a position to actually help his son in the
compartmental examination or not become altogether irrelevant, in view
of explanation (d) to Section 7 of the PC Act.
14. In Chaturdas Bhagwandas Patel Vs. The State of Gujarat (1976) 3
SCC 46, the Supreme Court interpreting the explanation to Section 161
of the Indian Penal Code inter alia observed and held as under:
“21. ….It is further immaterial if the public servant receiving
the gratification does not intend to do the official act, favour or
forbearance which he holds himself out as capable of doing.
This is clear from the last Explanation appended to Section 161,
according to which, a person who receives a gratification as a
motive for doing what he does not intend to do, as a reward
for doing what he has not done, comes within the purview of
the words "a motive or reward for doing." The point is further
clarified by Illustration (c) under this Section….”
“22. Indeed, when a public servant, being a police officer, is
charged under Section 161 Penal Code and it is alleged that the
illegal gratification was taken by him for doing or procuring
an official act, the question whether there was any offence
against the giver of the gratification which the accused could
have investigated or not, is not material for that purpose. If he
has used his official position to extract illegal gratification, the
requirement of the law is satisfied. It is not necessary in such a
case for the Court to consider whether or not the public servant
was capable of doing or intended to do any official act of favour
or disfavour.”
In Syed Ahmed Vs. State of Karnataka 2012 (8) SCC 527, the
complainant and his father had some land dispute with their immediate
Crl. A. No.645 of 2010 Page 11 of 17
neighbour. The appellant, a police officer, who was inquiring into the
complaint made with respect to the said dispute, demanded illegal
gratification from the complainant to enable him to file a charge sheet
against his neighbour. That dispute, however, got resolved in a few
days and resulted in a settlement. Thereafter another dispute arose
between the complainant and his neighbour which resulted in another
complaint being lodged by the complainant against his neighbour. It
was claimed by the complainant that the appellant demanded illegal
gratification for inquiring into the said complaint made by him. The
trial judge acquitted the appellant noticing that the land dispute had got
amicably settled and, therefore, there was no connection of the appellant
with the complaint relating to land dispute. As regards the second
complaint the trial court noted that the appellant had no role to play in it
since he was not investigating the said complaint and, therefore, there
was no occasion for him to demand any illegal gratification from the
complainant. The High Court, however, convicted the appellant holding
that in view of Section 7(d) of the PC Act, a public servant who was not
in a position to do any favour to a person could also be deemed to
commit an offence under the Act if he demanded and accepted illegal
gratification. Rejecting the appeal, the Apex Court held that the issue
whether the appellant could or could not deliver results became
irrelevant in view of the testimony of PW1 & PW2 who had stated that
the appellant had demanded an accepted currency notes which he kept in
the pocket of his trousers. Therefore, in the present case also since the
appellant demanded and accepted illegal gratification from the
complainant, the question as to whether he was in a position to extend
Crl. A. No.645 of 2010 Page 12 of 17
any favour to the son of the complainant in the compartmental
examination or not become wholly irrelevant.
15. The learned counsel for the appellant pointed out that according
to the complainant, on seeing the police officials, the appellant had
taken out the currency notes from his pocket and thrown them on the
ground whereas according to PW4, the panch witness, and PW8,
Inspector Santosh Kumar of Anti Corruption Branch, the currency
notices were recovered by the panch witness from appellant‟s pocket.
In my view, the aforesaid discrepancy between the deposition of the
complainant on the one hand and depositions of the panch witness and
the police officer on the other, in the facts & circumstances of this case
cannot be said to be so material as to result in altogether rejection of the
case set up by the prosecution. The complainant as well as the panch
witness have corroborated each other in saying that when the appellant
met them in the School, he accepted a sum of Rs.3,000/- from the
complainant and kept the same in the right side pocket of his pant. Once
it is proved that the appellant had accepted the bribe money from the
complainant and kept the same in the pocket of his pant, the question as
to whether the money was ultimately seized from his pocket or from the
ground loses much of its significance. The core part of the testimony of
the complainant and the panch witness was acceptance of the money by
the appellant from the complainant and his keeping that money in the
pocket of his pant and there is absolutely no contradiction in their
testimony on this core aspect.
Crl. A. No.645 of 2010 Page 13 of 17
16. It was contended by the learned counsel for the appellant that had
the appellant actually demanded illegal gratification from the
complainant he would have complained to the Principal/Vice Principal
of the School instead of going to the police in the very first instance. I,
however, find no merit in the contention. If a person is strongly
opposed to the idea of taking favours by paying bribe, it ought to be his
endeavour to get the bribe seeker caught red-handed, so that he does not
extend such demands to other persons, and the complainant in this case
has expressly stated, in his complaint, that he was opposed to the idea of
giving and taking bribe. Had the complainant made a complaint to the
Principal/Vice Principal of the School, instead of approaching the Anti
Corruption Branch, the appellant might or might not have been
subjected to some administrative action, but he would not have got the
punishment which has been awarded to him on his being caught red-
handed while accepting bribe from the complainant. In fact, it is also
not sure whether any administrative action would certainly have been
taken against the appellant by the Principal/Vice Principal of the School
since, it would have been the word of the complainant vis-à-vis the word
of the appellant, had such a complaint been actually made instead of
approaching the police.
17. As regards DW1, the testimony of the aforesaid witness does not
inspire confidence. As per the version given by him the appellant was
reading newspaper when a person caught hold of him from the backside
of his collar and dragged him. On the other hand, the version given by
the appellant in his statement under Section 313 of the Code of Criminal
Procedure was that when he was coming back to the Staff Room after
Crl. A. No.645 of 2010 Page 14 of 17
drinking water from the water cooler and reached in front of the office
of the Principal, the complainant suddenly came to him, inquired from
him about the result and the appellant asked him to contact the class
teacher. No altercation between the complainant and the appellant has
been claimed by DW1 and this was not the case of the appellant in his
statement under Section 313 of the Code of Civil Procedure that he was
reading newspaper when the complainant, all of a sudden, came there,
caught hold of him from the backside of his collar and then dragged
him. Moreover, no complaint was made by DW1 to the Principal of the
School, alleging therein that he had seen the appellant being caught
from the backside of his collar and being dragged by the complainant.
Being a teacher in the same School he was bound to be aware of the
criminal case registered against the appellant. Had he actually
witnessed the incident in the manner stated by him, he would have
brought the incident to the notice of the Principal of the School or some
other higher authority.
18. Section 13(1)(d) of the PC Act to the extent it is relevant for the
present case, provides that a person is said to commit criminal
misconduct, inter alia, if he (i) by corrupt or illegal means or (ii) by
abusing his position as a public servant obtains himself any pecuniary
advantage.
19. The expression “corrupt or illegal means” has not been defined in
the Act. Illegal would obviously mean something which the law
prohibits. The definition of the expression „corrupt‟ in the Shorter
Oxford Dictionary includes something influenced by bribery. This
Crl. A. No.645 of 2010 Page 15 of 17
expression would also include something which is morally unsound,
dishonest, depraved or pervert. Therefore, accepting money as bribe
would certainly amount to use of corrupt means. Since taking or
attempting to take bribe is prohibited by law, such an act would also
amount to use of illegal means. The appellant, therefore, is guilty of
criminal misconduct under Section 13(1)(d)(i) of the Act since he took
Rs.3,000/- from the complainant by corrupt and illegal means.
As observed by the Hon‟ble Supreme Court in M.Narayanan
Nambiar versus State of Kerala [AIR 1963 SC 1116], abuse means
misuse i.e. using one‟s position for valuable things, for which it is not
intended. The abuse of official position by a public servant may not
necessarily be by use of corrupt or illegal means. If a public servant
obtains valuable things or pecuniary advantage by use of corrupt or
illegal mean without abusing his position as public servant, that would
amount to criminal misconduct in terms of sub clause (i), whereas if he
obtain valuable things or pecuniary advantage by abusing his position,
that would constitute an offence under sub clause (ii) irrespective of
whether he employs corrupt or illegal means to obtain such a valuable
thing or advantage or not. The appellant abused his position as a public
servant by demanding and accepting Rs.3,000/- from the complainant,
on the assurance that he would make his son succeed in the
compartmental examinations. Had he not been holding the position of a
teacher in the school, it would not have been possible for him to extend
such a demand. Therefore, he abused his position as public servant in
obtaining pecuniary advantage to the extent of Rs.3,000/- from the
Crl. A. No.645 of 2010 Page 16 of 17
complainant. The appellant, therefore, was liable to be convicted under
Section 13(1)(d) read with Section 13(ii) of the Act.
20. For the reasons stated hereinabove, I find no good reasons to
interfere with the conviction of the appellant under Section 7&13(1)(d)
read with Section 13(2) of the Prevention of Corruption Act. However,
considering all the facts and circumstances of the case, including the
personal circumstances of the appellant, the substantive sentence
awarded to the appellant is reduced from three (3) years to two (2) years
each under Section 7 as well as under Section 13 (1)(d) read with
Section 13(2) of the Act. The sentences shall run concurrently. The
appellant shall also pay fine imposed upon him unless already paid and
in the event of failure to pay the fine, he shall undergo the sentence
awarded to him by the learned trial court, in default of payment of fine.
The appellant is directed to surrender forthwith before the concerned
trial court for undergoing the sentence awarded to him. One copy of this
order be sent immediately to the concerned Court along with the trial
court record. If the appellant does not surrender forthwith, the trial court
will take appropriate steps to procure his presence and commit him to
the prison, to undergo the remaining sentence.
The appeal stands disposed of accordingly.
JANUARY 06, 2014 V.K. JAIN, J.
b’nesh
Crl. A. No.645 of 2010 Page 17 of 17