Delhi High Court
Kanwaljit Singh vs The State (Nct Of Delhi) [Along With Crl. ... on 26 March, 2007
Equivalent citations: 139(2007)DLT280
Author: Shiv Narayan Dhingra
Bench: Shiv Narayan Dhingra
JUDGMENT Shiv Narayan Dhingra, J.
1. These two appeals have been preferred against the judgment dated 16.1.2007 and order on 'sentence' of the same day, whereby the learned Special Judge under Prevention and Corruption Act(in short ?the Act?), convicted both the appellants under Section 7 of the Act read with Section 120B of Indian Penal Code and convicted appellant Anoop Singh under Section 13(1)(d) of the Act as well, punishable under Section 13(2) of the Act.
2. Brief facts relevant for purpose of deciding these appeals are that one Mr. Murari Lal was convicted by the Court of learned Metropolitan Magistrate under Section 498A of IPC in FIR No. 201/1988 against which he preferred an appeal before the Sessions Court and the learned Sessions Court, vide an order dated 11.2.2004 acquitted him. After his acquittal, he made an application on 22.5.2004 before the Court of learned Metropolitan Magistrate for refund of Rs. 5000/-, earlier deposited by him as fine. On his application, the learned MM Ms Sukhvinder Kaur passed an order dated 28.5.2004 for refund of the fine. He took this order of refund to the Ahlmad attached to the Court of MM on the same day. He found one Sikh gentleman and the Ahlmad sitting in Ahlmad room and he asked for issuance of refund voucher. No refund voucher was given to him and he was asked to come on next day. On next day again, no refund voucher was issued to him and he was again asked to come on next day. When he again went on next day, both the persons, i.e. Sikh gentleman and Ahlmad were present in the room and he was told by them that he will have to pay Rs. 100 for getting the refund voucher. On being harassed like this, Murari Lal thought of making a complaint with Anti Corruption Department. He told them that he was not having money on that day and he will come on next day with money. On 01.06.2004, he went to Anti Corruption Branch and lodged a report to following effect:
Dear Sir, I have to request that on 3.8.95 in case FIR No. 201/88 under Section 498A of IPC Police Station Vikas Puri, I was sentenced by the lower court against which I preferred an appeal to the Sessions Court. I was acquitted by the Sessions Court in the case on 11.2.2004 After acquittal, I was to receive Rs. 5000/- which I had deposited in the lower court at the time of my conviction by the lower court. Therefore, I went to the Court of Ms. Sukhvinder Kaur, MM, Tis Hazari Court and made an application dated 22.5.2004 ON 28.5.2004, the aforesaid Court passed the order for refund of Rs. 5000/-. Then I went to room No. 334, which is the staff room of the said court, where Ahlmad and one Sikh gentleman were sitting. They started harassing me daily for refund voucher of Rs. 5000/-. On 31.5.2004, both of them demanded money from me and on my not giving money, refund voucher was not given. I enquired as to how much money I have to pay. On this, a demand of Rs. 100 was made from me. I told them that I shall give this money to them on next day i.e. 1.6.2004 since I was not having money at that time. They stated that I may come on next day for money in the office.
These persons have harassed me too much for many days and they have made me to come to court several times. I was going to them daily. I do not want to pay bribe to them. Please help me.
Sd/-
Murali Lal Counter Signed by Shri B.M. Gupta (Witness) JE.CS-12, I and FC Dept.
3. Mr. B.M. Gupta was called to Anti Corruption Department on that day as a panch witness. After receiving above complaint in writing at around 12 noon, Anti Corruption Department prepared for taking action and two notes of Rs. 50 each were received from the complainant, their numbers were noted down and both the notes were treated with phenolphthalein Powder. The panch witness and the complainant were demonstrated how the powder reacts with sodium carbonate solution and it turns pink. The complainant and the panch witness were asked to empty their pockets. The complainant was given those two powder treated currency notes of Rs. 50/- each which he kept in the right side pocket of his pant. The complainant was asked to give those two notes to the employees who had demanded bribe from him only on a demand being made otherwise he was not to hand over those currency notes. The panch witness was also told to remain present with the complainant and to overhear the conversation and to witness the transaction of giving bribe. If bribe was demanded and given by complainant, then he was to come out of the room and make a signal to the raiding party positioned outside the room. Thereafter, the members of the raiding party, panch witness and the complainant washed their hands with soap and proceeded to Tis Hazari Courts. The raiding party members were only to keep their identity cards with them and all other articles were left in the office. The raiding party took with it raiding box containing empty bottles, sealing material, sodium carbonate powder, seal, glass tumblers, water etc. A written record of pre-raid proceedings was prepared which is Ex.PW5/B. After reaching court complex, Inspector Rai Singh went to the then District and Sessions Judge, Shri J.P. Singh and apprised him of the purpose of coming to court and sought his permission for conducting raid. The District Judge orally allowed him to conduct the raid. Proceedings in this regard were drawn by him. Thereafter, complainant along with panch witness and the raiding party went to room No. 334, 3rd floor of Tis Hazari Courts. The raiding party took position outside the room and the complainant and panch witness went inside. Proceedings were also drawn in this respect. What happened inside the room is stated in the post proceedings statement of the complainant on that day, on the basis of which the FIR was registered.
4. In his statement to the police, he stated that he went along with panch witness inside room No. 334 where Anoop Singh, Ahlmad and one Kanwaljit Singh (whose names he learnt after interrogation done by the police) were sitting on their chairs, doing some work and he asked for his refund voucher of Rs. 5000/-. On that, Ahlmad asked him if he had brought the money, to which he answered in affirmative. Ahlmad told him to wait as he would go and get the voucher signed. Thereafter, Ahlmad Anoop Singh left the room and he came back at around 2.40 pm along with signed voucher and handed him over the refund voucher signed by the MM and asked for money. On his demanding money, complainant took out the two treated notes of Rs. 50 each and gave it to Anoop Singh who took the currency notes in his right hand and kept them in right side pocket of his pant. On this, panch witness went out of the room and then raiding party along with panch witness, Inspector in charge of raiding party Rai Singh Khatri, came inside the room. Panch witness pointed out towards Anoop Singh and told that Ahlmad had taken Rs. 100 after giving the voucher. The other Sikh gentleman was also sitting there. The complainant told Inspector Rai Singh Khatri that when panch witness went out of the room, Anoop Singh, out of the two currency notes of Rs. 50/-, gave one note of Rs. 50/- to Kanwaljit Singh. On this, Inspector showed his identity card of Anti Corruption Branch to Anoop Singh and Kanwaljit Singh and told them about the compliant and raid about demanding and receiving bribe. He offered his search to them. Both the accused persons i.e. Anoop Singh and Kanwaljit Singh got perplexed and refused to take search of the members of the raiding party. Inspector Rai Singh Khatri then told panch witness to take search of Anoop Singh. Panch witness took search of Anoop Singh and from his right side pocket, one currency note of Rs. 50/- with the same number, as was noted down earlier by the raiding party in its proceedings was recovered. Panch witness thereafter searched Kanwaljit Singh and from left side pocket of his pant the other currency note of Rs. 50, having the same number as noted down earlier, was recovered. The bribe money was seized vide a seizure memo. Thereafter, Anoop Singh was asked to put his right hand in sodium carbonate solution and on his doing so, the solution turned pink. This solution was put into clean bottles and the bottles were sealed with the seal of RSK. The pant, which Anoop Singh was wearing, was also seized, after telling him to take it off and and the right side pocket of pant was put in solution of sodium carbonate, which turned pink and the same was also put in clean bottles and sealed with the seal of RSK. Similar proceedings were done in respect of Kanwaljit Singh and his pant was also seized. All the glass bottles so filled with pink solution were sealed with the seal of RSK. Photocopy of refund voucher was seized and Anoop Singh and Kanwaljit Singh were arrested. All the memos were signed by the complainant and panch witness and a rukka was prepared and sent for lodging FIR through a constable. Thereafter Inspector Sohan Lal was called and rest of the investigation and both the appellants/accused persons were handed over to him.
5. Ten PWs were examined before the Trial Court to bring home the charge under Section 7 and 13(1)(d) read with Section 120B of Indian Penal Code against both the appellants. PW-1 Shri D.P. Mahendru, Superintendent of District Courts proved posting of appellant Anoop Singh as an Ahlmad with Ms. Sukhvinder Kaur, MM. PW-2, Head Constable Satender Singh proved the deposit of four sealed bottles sealed with the seal of FSL vide entries as Ex.PW2/A. PW-3, Shri Rameshwar Goswami, UDC, Fine and Audit Branch of District Courts, Tis Hazari, Delhi proved the issuance of refund voucher No. 92 by the court and proved photocopy of voucher as Ex.PW3/A. The entry of voucher was made in the register by this witness. PW-4 Head Constable Anand Kumar working as MHC(M) (in charge of case property store) proved the depositing of the case property in sealed covers with Malkhana vide entry No. 237/2943 of register No. 19 as Ex.PW4/A. PW-6 Ms. Sukhvinder Kaur, MM testified that she had signed the refund voucher for an amount of Rs. 5000/- in favor of Murali Lal on 1.6.2004 She also testified that as per attendance register, appellant Anoop Singh was on duty on 1.6.2004 PW-7, Surender Singh, Ahlmad of the District Courts, proved the grant of a sanction by District Judge for prosecution of appellant Anoop Singh as Ex.PW7/A. PW-8 is panch witness. PW- 9 and PW-10 are inspector who headed the raiding party and Investigating Officer respectively.
6. PW-5, the complainant, in his testimony before the court supported the prosecution case right from his making a complaint with anti corruption cell till conducting the raid, recovery of bribe money and seizure of bribe money. He, however, turned hostile on the question of identity of the appellants. Since the name of Ahlmad is Anoop Singh, though not a Sikh, he deposed that the demand of bribe was made by a Sikh gentleman. The other accused Kanwaljit Singh, who is a Sikh was also not identified by him during deposition. He, however, deposed that Ahlmad and Sikh gentleman were taken to Police Station Civil Lines where writing work was done. Pants of Ahlmad and Sikh gentleman were taken into possession. He admitted having signed the documents in respect of raid prepared by Anti Corruption Squad, but he stated that the Sikh gentleman whom he met was not having a beard and used to tie his hairs with black handkerchief. On seeing accused Kanwaljit Singh in the Court, he stated that Kanwaljit Singh was supporting a beard and a turban on his head and therefore he was not certain if he was the same Sikh gentleman who had met him. He was cross examined by public prosecutor. In his cross examination, he admitted that in his complaint Ex.PW5/A, he mentioned regarding Ahlmad and one Sikh gentleman who were harassing him for giving bribe to give refund voucher. He admitted that both the accused (both appellants) were sitting on their respective chairs in room No. 334 Tis Hazari Court, when he entered in that room along with panch witness. He did not remember if it was accused Anoop Singh(Ahlmad) who had asked him if he had brought money or not. He was not certain if it was accused Anoop who had left the room for getting the refund voucher signed. He admitted that treated currency notes of Rs. 50 each were recovered, and taken into possession at the spot vide seizure memo Ex.PW5/D, which he signed at point A. During cross examination of this witness on behalf of accused Anoop Singh, the witness denied the suggestion that when he wanted to give bribe money to accused Anoop Singh and offered him, accused Anoop Singh refused to accept the same, so he tried to thrust money in the pocket of Anoop Singh and when he was trying to put the money in the pocket of accused Anoop Singh, police officers came there and arrested accused Anoop Singh and took him to Anti Corruption Branch. The witness admitted that pants of both the accused persons were seized and sealed in separate parcels and taken in possession. He identified his signatures on the seizure memos of the pants of both accused persons. He also admitted that both accused persons were arrested on that day and their personal search was conducted vide memo Ex.PW5/G and PW5/H, which he had signed. He identified his signatures on each bottle in which the solution, which turned pink, was filled. Bottles bore his signatures. He identified his signatures on left side inner pocket of pant of accused Ex.P3 and identified the signatures on the right side inner pant pocket on Ex.P4. It is thus clear and proved from his testimony that both the accused were the same persons who were involved in crime, against whom complaint was made by PW-5 and who were arrested after raid. The identification of the two by complainant was done indirectly, very categorically.
7. PW-8 Shri Brij Mohan Gupta, Junior Engineer of Irrigation and Flood Control Department was the panch witness in this case. He testified that two persons were found sitting in room No. 334, one was Sikh gentleman and another was staff of the court. Accused Anoop Singh was the staff of the Court. The complainant asked both of them to give voucher. Accused Anoop Singh went outside the room to get the documents signed and after about 15 minutes he came back in the room after getting the voucher signed. He, thereafter, delivered the voucher to the complainant. It was Anoop Singh who demanded money. The complainant gave those treated GC currency notes to both accused persons but he was not sure how much amount was given to a particular accused or to whom. The money given was kept by accused persons. He could not say if the other Sikh gentleman was accused Kanwaljit Singh. He, however, admitted that both the accused were arrested then and there and their personal search was taken vide memo Ex.PW5/G and PW5/H. The witness also identified the case property. He was cross examined by learned Additional Public Prosecutor on some aspects and in his cross examination he told that he always read the documents before signing the same. He knew both Hindi and English languages. He admitted that it was accused Anoop Singh who had told the complainant that he was going to get the voucher signed from MM. He admitted that complainant had told raiding officer that when he(witness) had gone outside the room to give pre-determined signal, accused Anoop had given one GC treated currency note of Rs. 50 to the Sikh gentleman. He, however, stated that he was not sure whether accused Kanwaljit Singh was the same person who was sitting with accused Anoop Singh on the day of raid.
8. PW-9 is Inspector Rai Singh Khatri, who was heading the raiding party. He supported the prosecution case completely and identified accused Anoop Singh and accused Kanwaljit Singh as the persons from whom recovery of bribe money from their pant pockets was made at the instance of the complainant and panch witness. Both were apprehended by him and handed over to PW-10 Inspector Sohan Lal to whom further investigation was assigned. PW-10 Sohan Lal also supported the prosecution case in toto and stated that custody of both accused was handed over to him.
9. The main thrust of arguments of the learned Counsels for both accused persons is that the accused persons were not identified by the complainant and the necessary ingredients of demand of bribe by the accused persons and recovery of bribe money from the accused persons was not proved. It is submitted that PW- 5 in his testimony has not categorically stated if it was appellant Anoop Singh or Kanwaljit Singh who demanded money. He talked of one Sikh gentleman who demanded money. Anoop Singh was not a Sikh. Kanwaljit Singh was a Sikh but he was not identified by the complainant. Since identity of accused persons has not been established, the accused persons were entitled for benefit of doubt. In respect of appellant Kanwaljit Singh, it is also submitted that he was merely an onlooker and he was wrongly apprehended by the police. He was not a court staff. He was a clerk of an advocate, and was there in connection with some work. He was wrongly arrested by the police and falsely implicated in this case. No recovery was made from him but the money was planted on him.
10. No defense witness has been examined by appellants Even appellant Kanwaljit Singh had not examined someone to prove that he was a clerk of an advocate and he was not a 'tout' or a person employed by Anoop Singh himself for purposes of corrupt practices. He had also not examined some one to show that he had come to court for some work assigned to him by his advocate. The learned Trial Court, after analyzing the evidence, came to conclusion that identity of both the accused persons had been well established by the testimony of panch witness and the raiding officer. There was no reason to disbelieve the testimony of raiding officer regarding identity of accused persons. He also observed that complainant, in whose presence accused persons were arrested, did not make any complaint anywhere regarding any unfairness in the investigation or false implication of any of the accused persons or his complaint having been tampered with. The learned Trial Court, therefore, came to conclusion that both accused were guilty of offence.
11. There is no dispute that accused Anoop Singh was Ahlmad of the Court of Ms.Sukhvinder Kaur, MM, who had passed an order for refund voucher. Anoop Singh, in this statement under Section 313 Cr.P.C., admitted that complainant Murari Lal had approached him for taking refund voucher of Rs. 5000/-, after getting an order of learned MM on his application for refund of amount, on 28.5.2004 His this admission, coupled with the complaint of the complainant Ex.PW5/A, made on 1.6.2004, that he was being harassed by court staff, including a Sikh gentleman, fixes the identify of the persons who were harassing the complainant, sufficiently clear and beyond reasonable doubt. He also mentioned in his complaint that both these persons used to sit in room No. 334. It is admitted by complainant that refund voucher was got signed after he approached the Ahlmad and the Sikh gentleman on 1.6.2004, after confirming from him that he had brought the bribe money. It is deposed by the panch witness that it was Anoop Singh who had gone for getting the refund voucher signed. Therefore, there can be no doubt about the identity of Anoop Singh, being the person who had gone to get the refund voucher signed on complainant's assuring him that he had brought the bribe money. The panch witness had stated that it was either Sikh gentleman or Anoop Singh who had demanded the money from the complainant. He was not sure whether the complainant gave those treated GC currency notes to both the appellants. The complainant deposed that it was the Sikh gentleman who had asked him if he had brought the money and he replied in affirmative. It was Sikh gentleman who asked him to give money after handing over the refund voucher. It is obvious that the complainant tried to shield the accused persons in his deposition by confusing about the identify of Sikh gentleman and Ahlmad and also tried to mislead about recovery of the currency notes. His testimony shows that he deliberately did not identify Anoop Singh despite specifically saying that it was Anoop Singh and one Sikh gentleman who were responsible for demanding bribe. In his cross examination, he admitted that both the accused persons were arrested from the spot and their arrest memo and personal search memos were signed by him. He admitted that both accused persons i.e. appellants were sitting in their respective chairs in room No. 334, when he entered the room. Thus, the question of dispute about identify does not arise and the stand of Kanwaljit Singh that he was merely an onlooker and was falsely implicated is totally belied from evidence. The voucher was to be given by Anoop Singh, who was Ahlmad of the Court. It is admitted by the complainant that he was being repeatedly called after 28.5.2004 daily to the Court and was not being given refund voucher by the Ahlmad, so he made complaint to the police only when he got harassed and bribe was asked by the court staff i.e. one Ahlmad and one Sikh gentleman. He considered both the Ahlmad and Sikh gentleman to be the court staff and that is why he made complaint in respect of both. It got revealed only after the raid that Kanwaljit Singh was not the employee of the court but he was the private person who seems to have been employed by Ahlmad himself for such like work. The learned Trial Court deemed it fit to call him a 'tout'. Whether the demand for bribe was being made by the Ahlmad directly or through his tout makes no difference. The demand of bribe by a public servant can be made directly or indirectly and if it is proved that demand was made either directly or indirectly, the ingredients of provision of Section 7 of Prevention of Corruption Act are satisfied.
12. Learned Counsel for accused persons relied upon Suraj Mal v. State and Ors. and submitted that Supreme Court has held that where witness make two inconsistent statements in their evidence at any stage, the testimony of such witness becomes unreliable and unworthy of creditworthyness in absence of special circumstances. No conviction can be based on evidence of such a witness. He further emphasized that in case of bribe, mere recovery of money bereft of the circumstances under which it is paid, was not sufficient to convict the accused when the substantial evidence in the case was not reliable. This judgment of the Supreme Court, does not help the appellants, rather goes against them. In the instant case, the version of all the witnesses is absolutely consistent on all points except the identity of the appellants. The identity of the appellants can be established from attending circumstances. It was Ahlmad who was responsible for issuing refund voucher. The Ahlmad was approached by the complainant admittedly on 28.4.2004 The Ahlmad should have given refund voucher to him on 28.4.2004 itself. He did not give voucher on 28.4.2004 Sitting along with him in his room was the other accused. Both posed to the complainant as if both were working in the court. Both occupied chairs meant for staff as if they were working in the court. The complainant is told by both to come on next day every time and is harassed from 28.5.2004 to 31.5.2004, for refund voucher. This itself is sufficient to identify the accused persons who even on the day of raid were found sitting and occupying the chairs in staff room and recovery of treated GC currency notes were made from them. Moreover, this is not a case of mere recovery of bribe money but a case where every other circumstance has been proved, showing that how the complainant was being harassed and the Ahlmad went to get the voucher signed only when complainant had brought bribe money for payment and prior to that, he did not get the voucher signed. Moreover, testimony of trap officer and the panch witness vis-a-vis identification of Anoop Singh as Ahlmad from whom recovery of one GC treated currency note was made soon after the signal is trustworthy and he fixed the identity of Kanwaljit Singh as the other Sikh gentleman who was in league with Ahlmad. No enmity with complainant, panch witness or the raiding officer has been pleaded or alleged by the appellants. The only defense of the appellant Anoop Singh is that GC currency note was not recovered from him and he had not demanded the bribe. The defense of appellant Kanwaljit Singh is that he was merely an onlooker and was falsely traped. None of the appellants made complaint to any senior police officer about false implication neither accused Kanwaljit Singh led any evidence in defense that he was a clerk of an advocate or had come to court for some work.
13. One of the submissions of course for appellant Kanwaljit Singh is that he was not a public servant. In P. Nallaumal v. State , the Supreme Court rejected the contention made that a non public or government servant could not be indicted for abetment for commission of an offence under Prevention of Corruption Act. The Court in paras 20-23 of the judgment visualized various situations where relatives or friends of Public servant, though themselves not public servant could be abetters of an offence. Similarly, a non public servant can be convicted under Section 7 of Prevention of Corruption Act read with Section 120B of IPC.
14. In view of my foregoing discussion, I consider that the learned Trial Court rightly came to conclusion that the involvement of both appellants was in demand and receipt of bribe. Their conspiracy with each other in demanding bribe from the complainant who was to be given refund voucher stand proved beyond reasonable doubt.
15. Coming to question of sentence, I consider that no leniency can be shown in cases of corruption. Courts are considered temples of justice. If the staff of the court harass litigants and do not issue refund voucher or certified copies etc the whole judicial system is put to disrepute and shame. It is a folklore that every brick of the court demands money. Showing leniency and sympathy with the corrupt only encourages corruption. Corruption has increased in this country by leaps and bounds as only a few people take courage to make complaints. Some even after making complaint turn hostile by becoming themselves corrupt. Thus only a trickle comes in open. The sentence awarded by the court must reflect enormity of the situation faced by the society. It is not related to the amount of bribe received, but to the dishonesty of the person receiving the bribe in temple of justice, with the help of a tout. The Ahlmad in this case was corrupt to the extent that he needed a tout to help him in such deals, who was the partner of 50%. The appellants deserve no leniency. Both the appeals are hereby dismissed.