Delhi District Court
State vs Ram Kumar Kohli on 9 August, 2010
State V/s Ram Kumar Kohli
IN THE COURT OF SH. A. S. YADAV SPECIAL JUDGE
DELHI
C C. NO. 191/08
State V/s Ram Kumar Kohli,
s/o Late Sh. R.L. Kohli
r/o M-19, South Extension
Part-II, New Delhi-110049
F. I. R. No. : 7/2004
Under Section : 7/13 of Prevention of Corruption
Act
Police station : Anti Corruption Branch.
Date of Institution 21.11.2005
Judgment reserved on 04.8.2010
Judgment delivered on 07.8.2010
JUDGMENT
In brief the case of prosecution is that Mr. Chintoo Tomar was having a farm house in the name of Chintoo Farm at Rajokari and as per the directions of Ld. Addl. District Judge the House Tax Department of MCD, R.K. Puram was required to reassess the value of above farm house for the purpose of house tax. Joint Assessor and Collector, MCD vide his letter dated 27.1.04 deputed colonal R.K. Kohli, the Official Valuer, to assess the of the above farm house. Sh. R.K. Kohli inspected the above farm house on 10.2.04. Complainant Sh. Ashok Kumar Dutta (PW5) was working as Accounts Manager in M/S Chintoo Creation. On CC No. 191/08 Page No. 1 of 19 State V/s Ram Kumar Kohli the instructions of Sh. Chintoo Tomar complainant met Sh. R.K. Kohli on 20.2.04 at his office cum residence at M-19, South Extension, Part-II, New Delhi. R.K. Kohli informed complainant that cost of construction of aforesaid farm house would be around Rs.35 lakh and he would show the same at Rs.20 lakh in case bribe amount of Rs.15,000/- is paid to him. R.K. Kohli asked complainant to meet him along with the bribe amount at his office cum residence on 21.2.04 in between 4:00 to 5:00pm other wise he would sent the valuation report at an exaggerated cost of Rs.35 lakh. Complainant was against giving the bribe. He went to Anti Corruption Branch and gave his complaint Ex.PW5/A to Raid Officer Inspector R.S. Khatri (PW10) in presence of panch witness Harish Kumar Verma(PW7). 2 Prosecution case further is that complainant Ashok Dutta took with him Rs. 15000/- i.e. thirty GC notes of Rs. 500/- each. The Sr. number of those GC notes were recorded in the pre raid proceedings Ex. PW7/A by the raid officer and numbers of those GC notes were got checked through panch witness. Those GC notes were treated with phenolphthalein powder. The Raid Officer gave demonstration by asking the panch witness to touch his right hand with those GC notes and thereafter the wash of right hand of panch witness was taken in a water like solution that turned pink. This way the Raid Officer explained the purpose of treating the GC notes with phenolphthalein powder. Panch witness was instructed to remain close with the complainant and to see the transaction and after being satisfied that he had actually seen the transaction he was instructed to give signal by moving his hand over his CC No. 191/08 Page No. 2 of 19 State V/s Ram Kumar Kohli head.
3 Prosecution case further is that raiding team left Anti Corruption Branch at 3.45 PM in government vehicle and reached near South Extension, Part-II. The government vehicle was parked near flyover and Insp. K.L. Meena Investigating Officer remained in the government vehicle along with the driver. The complainant and panch witness were sent to H-19, South Extension, Part-II and Raid Officer along with other members of raiding team followed them. At about 5.05 PM panch witness came out of the house and gave pre determined signal. Raid Officer along with members of raiding team rushed to the spot. Panch witness informed the Raid Officer that complainant asked accused about what he has thought about the valuation on that accused told complainant that it cannot be reduced any more. Thereafter complainant told R.K. Kohli that he has brought the amount and on the asking of accused R.K. Kohli complainant kept the bribe amount on the telephone instrument. Raid Officer introduced himself as inspector of Anti Corruption Branch and challenged the accused that he had taken the bribe of Rs. 15000/- from the complainant. Accused kept mum. On the directions of Raid Officer panch witness took the those GC notes from top of the telephone instrument. The sr number of those recovered GC notes were compared with the sr number mentioned in pre raid report Ex. PW7/B which tallied. Those recovered GC notes were taken into possession vide seizure memo Ex. PW5/B. The wash of telephone instrument in colourless solution of sodium carbonate was taken which turned pink and the CC No. 191/08 Page No. 3 of 19 State V/s Ram Kumar Kohli solution was transferred in two empty, small, clean bottles. The bottles were thereafter sealed with the seal of RSK. Marked paper slips THI-II were pasted on those bottles after obtaining the signature of panch witness and complainant thereon. Telephone instrument was converted into a pullanda. The bottles along with the telephone pullanda were taken into possession vide memo Ex.PW5/C. Raid Officer drawn the post raid proceedings Ex. PW10/A and prepared rukka Ex. PW10/B. 4 The prosecution case further is that thereafter raid officer called Insp. K.L. Meena (investigating officer) at the spot and handed over to him the custody of accused, case property, recovered GC notes of Rs. 15000/- exhibits of case, seizure memo and copy of raid report. After completion of investigation charge sheet was filed in the court. 5 After complying with the provisions of Section 207 Cr. P. C. and after hearing the Ld. Addl. PP for the state and ld. Counsel for accused charges were framed against the accused.
6 In order to prove its case prosecution examined 10 witness. 7 Thereafter statement of accused was recorded u/s 313 Cr. P. C wherein he denied about the demand and acceptance of the bribe amount. He claimed to be innocent and falsely implicated in this case. He examined two witnesses i.e. DW1 Sh. Ram Vachan and DW2 Sh. Prem Chand , in support of his defence.
8 I have heard Sh. Alok Saxena Ld. Addl.PP for State and Sh. Sh. Raju Dudani,Advocate for accused Ram Kumar Kohli. 9 Accused was an official valuer. Vide letter Ex.PW8/A dated CC No. 191/08 Page No. 4 of 19 State V/s Ram Kumar Kohli 27.1.04 of Joint Assessor and Collector he was asked to do the valuation of Chintoo Farm. He was a public servant in terms of section 2 ( c) (i) &
(vi) of the Prevention of Corruption Act, 1988. He was getting fee from the corporation for submitting the valuation report. This fact was not disputed. As and when any matter was assigned to him for the purpose of valuation qua that matter he assumed the character of a a public servant and the moment that matter was over he ceased to be a public servant. In this case at the time of filing charge sheet he was not handling with the matter of valuation of Chintoo Farm therefore no sanction is required for his prosecution because the sanction was not required in case of ex public servant. Reference is placed on case of S.A. Venkatraman Vs. State AIR 1958, Supreme Court, 107 10 It is submitted by ld. counsel for accused that prosecution has failed to prove that accused demanded bribe amount. It is further submitted by him that the statement of complainant regarding demand of bribe by accused is not corroborated by any independent witness and in the absence of that the statement of complainant cannot considered because in a bribery case the position of complainant is akin to that of an accomplice. It is submitted by him that it is settled law that statement of an accomplice cannot be acted upon unless corroborated in material particulars. On the other hand it is submitted by Addl. PP for the state that there is no reason to disbelieve the statement of complainant. It is submitted by him that in all trap cases complainant cannot be equated to an accomplice. It is submitted by him that in this case complainant has CC No. 191/08 Page No. 5 of 19 State V/s Ram Kumar Kohli not paid any bribe to the accused rather complainant reported in the Anti Corruption Branch regarding the demand of bribe amount by the accused and got the accused trapped red handed while demanding and accepting the bribe amount. It is submitted by the ld. counsel for the accused that even from the statement of the complainant it cannot be said that accused demanded the bribe amount.
11 In order to prove demand of bribe on the part of the accused prosecution examined complainant Ashok Dutta (PW5) who regarding demand deposed that on 10.2.04 he had taken R.K. Kohli to the farm house for inspection. R.K. Kohli asked complainant to find about the assessment from him after a week. On 20.2.04 he went to R.K. Kohli at his office cum residence. R.K. Kohli told him that valuation of the farm house has been assessed at Rs.35 lakhs. He told him that amount of Rs.35 Lakh was to high. Accused told him that he can reduce it from Rs.35 lakh to Rs.20 lakh provided a bribe of Rs.15000/- was paid to him. Complainant further deposed that he went to Anti Corruption Branch and wrote his complaint Ex.PW5/A before Raid Officer in presence of the panch witness. He deposed about pre raid proceedings. He further deposed that he along with the panch witness went to the house of the accused who was sitting in his office. He inquired from the accused what he has thought about his valuation report to which accused replied that there is nothing to think and that the same cannot be reduced any further and thereafter he took out money from his pocket and accused asked him to keep the money on the top of the telephone. Thereafter the money CC No. 191/08 Page No. 6 of 19 State V/s Ram Kumar Kohli was kept by him on telephone. The money was seized from the top of the telephone vide seizure memo Ex.PW5/A. 12 No suggestion was put to the complainant that he had not gone to Anti Corruption Branch or that he had not given his complaint Ex.PW5/A in presence of the panch witness. If the bribe amount was not demanded by the accused there was no occasion for the complainant to go to Anti Corruption Branch and to lodge complaint against the accused regarding demand of bribe. Even panch witness Harish Kumar (PW7) deposed that complainant came to Anti Corruption Branch and gave his hand written complaint Ex.PW5/A to the Raid Officer and the same was read over to him and he had gone through the same and thereafter he put his signature at point-B. He also deposed about pre raid proceedings Ex.PW7/A. He also deposed that he along with the complainant went to the office of the accused. Complainant inquired from the accused as to what had happened to his valuation report. Accused told complainant that at that juncture what could have been done with a valuation report. Complainant told the accused that he had brought the money. Complainant took out GC notes out of his pocket and extended towards accused but accused did not take the said GC notes from the complainant and the complainant kept the GC notes on land line telephone instruments lying there. He further deposed that washes were taken at the spot. Since he resiled from his earlier statement and he was cross examined by Ld. APP. In his cross-examination he admitted that he had signed post raid proceedings after going through the same. The post raid CC No. 191/08 Page No. 7 of 19 State V/s Ram Kumar Kohli proceedings are Ex.PW10/A. In fact panch witness has supported the entire prosecution case except that accused asked the complainant to put the bribe amount on the telephone instrument. Panch witness has been won over by the accused. The panchnama is a contemporaneous record prepared by Raid Officer on the basis of version given by panch witness. It is essentially a document recording circumstances which occur in the presence of panch witness. In the post raid proceedings Ex.PW10/A it is clearly stated that panch witness told Raid Officer that on the instruction of accused complainant kept the GC notes on the telephone instrument. Wash of the telephone instrument was taken which turned pink and the telephone instrument was seized. Here it is relevant to refer to 1990 (2) CC Cases 457 where it was held that it is well settled that people may try to improve or to deviate from the statement made earlier and only check on such improvements would be the contemporary document prepared at the spot. Panchnama is a contemporary document prepared at the spot on the basis of what has been seen and heard by the panch witness and is bearing the signature of complainant and panch witness and the same is admissible in evidence. Reference is placed on case of Santa Singh Vs. State of Punjab AIR 1956 S.C. 526 where it was held that mere presence of a police officer when a statement is made does not by itself render such a statement inadmissible. So long as a panchnama is a mere record of things heard and seen by panchas and does not constitute a statement communicated to the police officer in the course of investigation by him it would not fall within mischief of section 162 of the CC No. 191/08 Page No. 8 of 19 State V/s Ram Kumar Kohli Code.
13 The plea of the accused is that he had already sent the valuation report on 21.2.04 through UPC before noon so there was no occasion for him to accept the bribe amount. It is significant to note that when Raid Officer challenged the accused regarding acceptance of bribe amount accused kept mum. Nothing prevented the accused to tell the Raid Officer at that time that he had already sent the report through UPC. Conduct of the accused is very relevant. Here it is useful to refer to the judgment of the Apex Court reported as Parkash Chand V Delhi Admn. AIR 1979 SC 400 wherein in para 8 of the judgment Their Lordships observed as under :-
It was contended by the ld. Counsel for the appellant that the evidence relating to the conduct of the accused when challenged by the Inspector was inadmissible as it was hit by section 162 Criminal Procedure Code. He relied on a decision of the Andhra Pradesh High Court in D. V. Narisimhan V. State, ( AIR 1969 Andh Pra 271 ) . We do not agree with the submissions of Sh. Anthony. There is a clear distinction between the conduct of a person against whom an offence is alleged which is admissible under section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a Police Officer in the course of an investigation which is hit by sec. 162 Criminal Procedure Code. What is excluded by Sec. 162 Criminal Procedure CC No. 191/08 Page No. 9 of 19 State V/s Ram Kumar Kohli Code is the statement made to a police officer in the course of investigation and not the evidence relating to the conduct of an accused person ( not amounting to a statement) when confronted or questioned by a police officer during the course of an investigation. For example, the evidence of the circumstances, simpliciter, that an accused person led a police officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, u/s 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act ( vide Himachal Pradesh Administration Vs. Om Parkash AIR 1972 SC 975)
14 In fact this UPC is a manipulated document. Investigating Officer denied the suggestion that during investigation accused told him that he has already submitted the valuation report on the morning of 21.2.04. No suggestion was given to the panch witness or complainant that accused informed Raid Officer and investigating officer that he had already submitted the report. If the report was already submitted by the accused on the morning of 21.2.04 through UPC the accused would have definitely told this fact to the Raid Officer in presence of complainant and panch witness. He did not tell the same to Raid Officer because the report was never sent by him through UPC. It is submitted by ld defence counsel that accused in his bail application dated 28.2.2004 took the plea CC No. 191/08 Page No. 10 of 19 State V/s Ram Kumar Kohli that on accused's repeated refusal not to be disturbed Sh. A. K. Dutta kept on pestering and requesting the accused to lower the valuation report. Accused was feeling the pressure because of pestering by the complainant A. K. Dutta hence he sent his valuation report by post in the morning of 21.2.2004 although the report was prepared about few days back. During the course of argument it was submitted that report was dated 17.2.2004 and same was sent through UPC. If the report was already prepared and sent through UPC then accused would have definitely shown copy of report to the Raid Officer and would have told him that he was under pressure from the complainant hence the report was sent by him through post. In fact no report was sent through UPC. It is significant to note that the UPC Ex. DX is bearing the stamp of Post Office Saket. The accused was having his residence cum office at M-19, South Extension, Part-II then why accused came all the way in the morning to send the report through UPC from Saket Post Office which is at the distance of about 6 to 7 Km from South Extension. Accused examined DW-2 Prem Chand, Post Master, Saket regarding UPC Ex. DX but he was not able to prove anything. He proved letter Ex.DW2/A wherein he stated that no record is maintained regarding UPC. In fact the accused had not sent the report at all. In order to prove that report dated 17.2.2004 was in fact sent through UPC accused summoned record from MCD pertaining to Chintoo Farm House. The record was produced by DW-1 Sh. Ram Vachan from MCD House Tax Department who stated that as per the record brought by him there is no report dated 17.2.04 of CC No. 191/08 Page No. 11 of 19 State V/s Ram Kumar Kohli Lieutenant Colonal R.K. Kohli. That by itself shows that the report was never sent through UPC. In fact accused has not proved that he has ever sent any valuation report through UPC. The accused has taken false plea of sending the report through UPC. It is a matter of common knowledge that UPC receipts are manipulated in connivance with the officials of post office.
15 Ld. counsel for the accused has referred to the case of State V/s Narasimhachary AIR 2006 Supreme Court 628 where it was held that accused was merely a recommending authority and not the valuation or the final authority and accused was not an outward clerk for issuance of property valuation certificate and the said certificate was already forwarded and signed by the final authority before alleged demand of bribe by the accused. It was held that aforesaid circumstances create suspicion about the demand of bribe hence acquittal order was found to be proper. The authority cited by ld defence counsel is not applicable to the facts and circumstances of the present case. In this case it is proved that accused has never sent the report to MCD office through UPC. In fact no report was sent by him.
16 So far as the criticism that complainant is an accomplice is concerned it is relevant to refer to case of State of Bihar Vs. Basawan Singh AIR 1958, Supreme Court 500 where a five judge Bench of Hon'ble Supreme Court laid down that if any of the witnesses are accomplices, their evidence is admissible in law but the Judge should indicate in his judgment that he had the rule of caution in mind-namely, CC No. 191/08 Page No. 12 of 19 State V/s Ram Kumar Kohli the danger of convicting the accused on the uncorroborated testimony of an accomplice and give reasons for considering it unnecessary to require corroboration; if, however, the witnesses are not accomplices but are merely partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as any other interested evidence is tested, and in a proper case the court may look for independent corroboration before convicting the accused person. 17 It is also used to refer to the case of Dewan @ Vasudeva and etc. V/s The State 1988 Crl. L.J. 1005 where it was held by Hon'ble High court of Kerala as under :-
''True, the person who pays the gratification is, in a way, an accomplice in the offence, when his role is viewed from a wide angle. But before his evidence is dubbed as unworthy of credit without corroboration, a pragmatic or realistic approach has to be made towards such evidence. If the bribe-giver voluntarily goes to the offender and persuades him to accept the bribe , his position is that of an undiluted accomplice and it is a rule of prudence to insist on independent corroboration such evidence. On the other hand, if the giver of gratification was persuaded to give it, he actually becomes a victim of persuasion by the offender. To name him an accomplice and to reject his testimony due to want of corroboration, would sometimes, be unrealistic and imprudent .The court must always bear in mind that insistence on corroboration for the evidence of accomplice is not on account of any rule of law, but is a caution of prudence. The density of the stigma to be attached to a witness as an CC No. 191/08 Page No. 13 of 19 State V/s Ram Kumar Kohli accomplice depends upon the degree of his complicity in the offence. Suspicion towards his role as an accomplice should vary according to the extent and nature of his complicity. It must be considered in each case whether the bribe giving or payment of gratification was done in such a way that independent persons had no occasion to witness such acts. ''
18 There is no reason to disbelieve complainant. Complainant categorically deposed that accused demanded bribe of Rs.15000/- from him for showing less valuation of the Farm house and he was against giving of bribe. He went to Anti Corruption Branch and gave his complaint Ex.PW5/A. He along with the panch witness went to the office cum residence of the accused where he informed the accused that he has brought the amount and on the asking of the accused the amount was placed by him on the telephone instrument. His statement is corroborated by the post raid proceedings Ex.PW10/A wherein panch witness told the Raid Officer about the transaction. He told Raid Officer that on the asking of accused the bribe amount was kept on telephone instrument. The statement of complainant cannot be disbelieved simply on the ground that panch witness turned hostile. There is no reason to disbelieve the cogent and reliable testimony of the complainant. Complainant has very well with stood the ardent task of cross-examination. Complainant was not having any animus against the accused. He is a law abiding citizen who merely mustered the courage of reporting against a corrupt official despite knowing that he has to undergo lots of hardship during trial. There is no CC No. 191/08 Page No. 14 of 19 State V/s Ram Kumar Kohli reason to suspect his action. Here it is useful to refer to the case of State of UP V/s Dr. G. K. Ghosh, AIR 1984 SC 1453 where it is held as under:-
By and large a citizen is somewhat reluctant rather than anxious, to complain to the Vigilance Department and to have a trap arranged even if illegal gratification is demanded by a Government servant. There are numerous reasons for the reluctance. In the first place, he has to make a number of visits to the office of Vigilance Department and to wait on a number of officers. He has to provide his own currency notes for arranging a trap. He has to comply with several formalities and sign several statements. He has to accompany the officers and participants of the raiding party and play the main role. All the while he has to remain away from his job, work, or avocation. He has to sacrifice his time and effort while doing so. Thereafter, he has to attend the court at the time of the trial from day to day. He has to withstand the searching cross examination by the defence counsel as if he himself is guilty of some fault. In the result, a citizen who has been harassed by a Government officer, has to face all these hazards. And if the explanation offered by the accused is accepted by the court, he has to face the humiliation of being considered as a person who tried to falsely implicate a Government servant, not to speak of facing the wrath of the Government servants of the department concerned, in his future dealings with the department. No one would therefore be too keen or too anxious to face such an ordeal. Ordinarily, it is only CC No. 191/08 Page No. 15 of 19 State V/s Ram Kumar Kohli when a citizen feels oppressed by a feeling of being wronged and finds the situation to be beyond endurance, that he adopts the course of approaching the Vigilance Department for laying a trap. His evidence cannot therefore be easily or lightly brushed aside. Of course, it cannot be gainsaid that it does not mean that the court should be oblivious of the need for caution and circumspection bearing in mind that one can conceive of cases where an honest or strict Government official may be falsely implicated by a vindictive person to whose demand, for showing favours, or for according a special treatment by giving a go-bye to the rules, the official refuses to yield.
In view of detailed discussion above I am of the view that prosecution is able to prove its case against accused Ram Kumar Kohli beyond all reasonable doubts. Accused Ram Kumar Kohli is accordingly held guilty and convicted for committing offences U/s 7 and 13 (1 ) (d) punishable U/s 13 (2 ) of Prevention of Corruption Act, 1988. Let he be heard on the point of sentence.
Announced in the open court on this 7th day of August, 2010.
( A. S. YADAV ) SPECIAL JUDGE DELHI CC No. 191/08 Page No. 16 of 19 State V/s Ram Kumar Kohli IN THE COURT OF SH. A. S. YADAV SPECIAL JUDGE DELHI C C. NO. 191/08 State V/s Ram Kumar Kohli, s/o Late Sh. R.L. Kohli r/o M-19, South Extension Part-II, New Delhi-110049 F. I. R. No. : 7/2004 Under Section : 7/13 of Prevention of Corruption Act Police station : Anti Corruption Branch ORDER ON SENTENCE I have heard Sh. Alok Saxena Addl. Public Prosecutor for the State and Sh. Raju Dudani, Advocate for the convict (who is present on bail) on the point of sentence.
2 Ld. counsel for the convict submits that the convict is aged 88 years. He is suffering from serious heart ailments. He has placed on record certificate showing that he is suffering from unstable angina and he under went coronary angiography in March 2004 and since then he is on medicine.
3 Ld. counsel for convict moved an application for giving benefit of Probation of Offenders Act. It is brought to his notice that provisions of Probation of Offenders Act are not applicable to a person convicted under Prevention of Corruption Act, 1988 . It is next submitted CC No. 191/08 Page No. 17 of 19 State V/s Ram Kumar Kohli by ld counsel for convict that he be sentenced to the imprisonment till rising of the Court. Again it is brought to his notice that u/s 13 ( 2 ) of Prevention of Corruption Act, 1988 minimum punishment of one year is prescribed.
4 Ld. Addl. Public Prosecutor states that the convict does not deserve any leniency because there is rampant corruption amongst public servants and to curb this evil, deterrent punishment should be imposed. 5 The convict has been brought on wheel Chair. Even he was not arrested at the time of incident as he was taken ill all of a sudden and was rushed to Safdarjung Hospital and from there he was shifted to Base Hospital and after his discharge from Base Hospital he was brought to the court on wheel chair and was granted bail by my ld. predecessor and was not sent to Jail. I have seen the medical papers showing that convict has been suffering from various ailments.
6 Taking into consideration the facts and circumstances of the case I sentence convict Ram Kumar Kohli s/o late Sh. K. L. Kohli to undergo RI for a period of two years and a fine of Rs. 30,000/- (Rs. thirty thousand) u/s 7 of the Prevention of Corruption Act, 1988 and in default of payment of fine, convict shall undergo SI for a period of two months.
Convict is further sentenced to undergo RI for a period of two years and a fine of Rs. 30,000/- (Rs. thirty thousand) u/s 13 (2) of the Prevention of Corruption Act, 1988 and in default of payment of fine, convict shall further undergo SI for a period of two months. Both the sentences shall run concurrently and the convict shall be entitled to benefit under section CC No. 191/08 Page No. 18 of 19 State V/s Ram Kumar Kohli 428 Cr. P.C. 7 A duly attested copy of the judgment and this order be supplied to the convict free of costs and thereafter file be consigned to the record room.
Announced in the open court on this 9th day of August, 2010.
( A. S. YADAV ) SPECIAL JUDGE DELHI CC No. 191/08 Page No. 19 of 19