Punjab-Haryana High Court
Sunita Bakshi vs Central Bureau Of Investigation on 25 August, 2010
Author: Jitendra Chauhan
Bench: Jitendra Chauhan
Crl. Appeal No. 614-SB of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No. 614-SB of 2007
Date of decision:25.08.2010
Sunita Bakshi
...Appellant
Versus
Central Bureau of Investigation
...Respondent
Crl. Appeal No. 1144-SB of 2009
Central Bureau of Investigation
...Appellant
Versus
Hussan Lal
...Respondent
CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN
Present: Mr.J.S.Bedi, Advocate
for the appellant.
Mr.Vinod Arya, Advocate,
for the respondent in Crl. Appeal No. 1144-SB of 2009
Mr.Ajay Kaushik, Advocate,
for the CBI.
JITENDRA CHAUHAN, J.
1. This judgment shall dispose of two appeals i.e. Crl. Appeals No. 614-SB of 2007 and 1144-SB of 2009 as both of them have arisen out of a common judgment and order dated 10.3.2007 passed by the learned Court of Special Judge, Chandigarh (for short `the Trial Court'). However, Crl. Appeal No. 614-SB of 2007 2 the facts are being taken from Crl. Appeal No.614-SB of 2007.
2. The present appeal is directed against the judgment and order dated 10.3.2007 passed by the learned Trial Court, whereby the accused/appellant has been convicted and sentenced to rigorous imprisonment for a period of one year for the offence punishable under Section 7 of Prevention of Corruption Act, 1988 (for short `the Act') and to pay a fine of Rs.2500/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of three months and for the offence under Sections 13(1)(d) read with Section 13(2) of the Act, to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.2500/- and in default thereof, to further undergo rigorous imprisonment for a period of three months. Both the sentences were order to run concurrently.
3. Brief facts of the case as projected by the prosecution are that on 12.5.2005, Zakir Hussain @ Sonu (hereinafter referred to the complainant) submitted a written complaint to SP/CBI/ACB, Chandigarh alleging that ASI Sunita Bakshi (hereinafter referred to the appellant) demanded bribe of Rs.2,000/- from him for making a compromise between him and his-in-laws. The complainant further alleged that his father-in-law Chotte Ram, had made a complaint in Police Station, Manimajra, Chandigarh, against him on the allegation that he (complainant) had beaten him and his daughter Kiran. The appellant called the complainant on 11.5.2005 and demanded bribe of Rs.2,000/- for effecting a compromise. The appellant threatened the complainant on the ground that if the said amount was not paid to her on 12.5.2005 by about 5/5.15 p.m., she would falsely implicate him in a false case and send him to jail on the basis of Crl. Appeal No. 614-SB of 2007 3 complaint filed against him by Chotte Lal, his father-in-law.
4. On the basis of complaint filed by the complainant, a case was registered by CBI and it was decided to lay a trap. A raiding team was constituted in which two independent witnesses, namely, Smt.Kishu Gupta, PW2 and Sh. Ramneesh Verma, PW3 both working as Inspectors, were also joined to assist the raiding party as independent witnesses. The complainant then produced five currency notes of Rs.100/- denomination each and three currency notes of Rs.500/- denomination each. The currency notes of Rs.2,000/- duly smeared with phenolphthalein powder were kept in the left pocket of the shirt of the complainant. Smt. Kishu Gupta, PW2, was instructed to act as a shadow witness to accompany the complainant. She was further instructed to overhear the conversation between the complainant and the appellant and also to see the passing over of bribe amount.
5. Thereafter, the raiding team including the complainant and independent witnesses proceeded towards Police Station, Manimajra and reached near the police station at about 5.20 p.m. The complainant and Smt.Kishu Gupta were inside the police station and rest of the members of the raiding team remained present outside the police station. As the appellant was not present in the police station, the complainant made a call from his mobile to the mobile number of the appellant. The shadow witness Smt. Kishu Gupta, PW2, overheard the complainant by saying " Aap Thodi Der Mein Pahuch Rahi Hain, Theek Hai, Jaisa Aap Kahain, Mai Do Hazar Rupaiy Head Constable Hussan Lal Ko Dai Deta Hoon." Then, the complainant and Smt. Kishu Gupta, PW2, inquired about accused Head Constable Hussan Lal and met him, who told the complainant that he had been directed by the appellant to accept bribe money of Rs.2,000/- from the Crl. Appeal No. 614-SB of 2007 4 complainant on her behalf. The complainant gave bribe amount of Rs.2,000/- to him and he accepted and counted the same with his both hands and kept the bribe money in upper right pocket of the shirt of his uniform. Thereafter, the shadow witness Smt. Kishu Gupta, PW2, gave the pre- decided signal to the members of the raiding party. On getting the pre- decided signal, the raiding team reached there. Sh. Ramneesh Verma, PW3, recovered the bribe amount of Rs.2,000/- from the upper right side pocket of the shirt of the uniform of Head Constable Hussan Lal. Thereafter the raiding party completed the hand wash process. T-shirt of Hussan Lal was also dipped in the solution, whereupon, the colour of solution turned pink. The raiding party obtained the samples and the same were sent to the Central Forensic Sciences Laboratory. An undated written compromise was also seized by the raiding party, which revealed that a compromise had been effected between the complainant and his wife Kiran by and the appellant.
6. After completion of the investigation, final report under Section 173 of Cr. P. C. was prepared. The accused/appellant Sunita Bakshi was charge sheeted under Sections 7 and 13 (1) (d) read with Section 13 (2) of the Act, whereas accused Hussan Lal was charge shetted under Section 109 of IPC and also under Section 13(1) (d) read with Section 13 (2) of the Act, to which they pleaded not guilty and claimed trial.
7. In order to prove its case, the prosecution examined as many as 21 witnesses.
8. PW1-Zakir Hussain has reiterated the stand recorded in the complaint, Exhibit P1.
9. PW2-Kishu Gupta, working as Inspector in the office of Central Excise, deposed that she performed her duties as a shadow witness. Crl. Appeal No. 614-SB of 2007 5 She further deposed that the complainant made a telephonic call to the appellant in her presence.
10. PW3-Ramneesh Verma, in his statement, reiterated the version given by Kishu Gupta, PW2. However, he added that after the recovery of Ex.P11 and Ex. P21 from the almirah in the office of appellant, SHO, D.R. Sharma, received a telephonic call from the appellant.
11. PW4-Gaurav Yadav, SSP, deposed that he accorded sanction for prosecution vide Ex. PW4/1.
12. PW14-Kiran, wife of the complainant, deposed that her marriage with the complainant was a love marriage but when he started ill- treating her, she alongwith her parents went to Police Station, Mani Majra and lodged the complaint, Ex. P20 with ASI Sunita Bakshi, who called the complainant and a compromise was reduced into writing.
13. PW17- Constable Suman Rani, deposed that compromise was effected between Kiran and the complainant. She further deposed that the appellant had directed her to write the compromise, Exhibit PW14/2, on her dictation. In cross-examination, she deposed that the compromise was attested by the appellant.
14. PW5-Neeraj Thakur, PW6-Mahesh Kumar Kalra, the then Divisional Engineer, Cellular Mobile Services, PW7-H.C. Anil Kumar, the then MHC Police Station, Mani Majra, PW8-Dashmesh Singh, PW9- T.Joshi, Assistant Government Examiner, PW10-Pankaj Kumar, PW11- Dinesh Kumar, PW12-Sham Lal, PW13-Gurdev Singh, PW15-Surjit Singh Sachdeva, PW16-Manjit Singh, PW18-Inspector Dhan Raj Sharma, PW19- Inspector Balbir Singh, PW20-Inspector R.S.Gunjiyal and PW21-Jaswinder Singh, the then Assistant Administrative Officer, Vigilance Cell, are Crl. Appeal No. 614-SB of 2007 6 ordinary witnesses.
15. After conclusion of the statements of the prosecution, the statements of the accused under Section 313 of the Code of Criminal Procedure were recorded. The accused denied the circumstances put to them and pleaded that they are innocent and have been falsely roped in the present case.
16. After hearing the learned counsel for the parties, the learned trial Court convicted and sentenced the appellant Sunita Bakshi as noticed in para No.2 of this judgment, whereas accused Hussan Lal was acquitted of the charges levelled against him.
17. Feeling aggrived by the judgment and order of the learned Trial Court, the appellant has preferred the present appeal, which was admitted by this Court on 22.3.2007
18. Learned counsel for the appellant has argued that the co- accused, Hussan Lal, who was caught red handed by the raiding party, has been acquitted by the learned Trial Court. In the present case, the prosecution has miserably failed to prove the faction of demand qua the appellant. No cogent and admissible evidence has been produced on record which may point towards the guilt of the appellant. He has further argued that the wife of the complainant has also not fully supported the case of prosecution in its entirety.
19. It has further been argued that the link evidence is missing in the present case. The case of the prosecution is based on documentary evidence pertaining to the phone calls allegedly made by the complainant to the appellant. The prosecution has failed to prove that the Mobile Crl. Appeal No. 614-SB of 2007 7 No.9217804103 was in the name of the complainant or that it was used by the complainant nor the details of the mobile number of the appellant has been placed on record.
20. It has also argued that prosecution witness, Suman Rani, PW17, has not supported the case of prosecution as she deposed that the original compromise has been replaced by the CBI. The same plea has been taken by the appellant also.
21. It has further been argued that the learned Trial Court has convicted the appellant on flimsy and imaginary grounds. In the present case, the appellant has not accepted the bribe and was not caught red handed.
22. On the other hand, learned counsel for the State has argued that case of the prosecution is established beyond any reasonable doubt. The alleged gratification amount was recovered by the raiding party from Hussan Lal , which was constituted while taking action on the complaint made by the complainant.
23. I have heard the learned counsel for the parties and perused the record with their able assistance.
24. There is no evidence of demand of bribe in the present case other than the statement of the complainant. In the absence of any corroborative evidence of demand of bribe, the conviction cannot be sustained. The complainant had admitted before the Investigating Officer that he had gone to the police station alone to meet the appellant. This casts doubt as regards the presence of Kishu Gupta, PW2 (shadow witness). This Court, while dealing with similar situations, in Anand Parkash vs. State of Haryana, 2008(2) RCR 335, has observed as under:-
Crl. Appeal No. 614-SB of 2007 8
"18. In re : R.V. Subha Rao v. State represented by Inspector of Police, Anti Corruption Bureau, Kakinada Range, 2005(4) RCR(Crl.) 716 (A.P.), there was no witness to the demand of bribe except the complainant. It was held that in case of bribery, mere recovery of amount from the accused is not sufficient for conviction when the substantive evidence is not reliable."
25. In another judgment titled as 'Jarnail Singh Vs. State of Haryana, 1991(1) RCR 351', this Court has held as under:-
"5. Shadow witness Sukhwinder Singh was not produced in the witness box. Only witness of the alleged demand for illegal gratification is complainant Baldev Sharma (PW6). In similar circumstances, it was observed by this court that in a case like this, to bring home the guilt to the accused, it has to be established by the prosecution that the accused had demanded the bribe from the complainant and had accepted the same in pursuance of the demand. To prove these allegations merely the statement of the complainant or the trap witnesses cannot be relied upon without independent corroboration. It has been held by the Supreme Court in, Dharshan Lal v. Delhi Administration, 1974, CLR 601, "that trap witnesses in a case under Section 5(2) of the Prevention of Corruption Act, being concerned in success of the trap, the Court should require independent corroboration of their statements before convicting the accused. "The same view is expressed in Prem Kumar v. State of Pb., 1976 CLR 366 and Jagjit Singh v. State of Punjab, 1980 CLR 93. It has been held in these cases that no implicit reliance can be placed on the testimony of trap witnesses in the absence of independent witnesses and on that account they spring from tainted source. Need for seeking independent corroboration of the testimony of the complainant and shadow witness was also emphasised in Dalip Singh v. State of Punjab, 1988(1) Recent Criminal Reports 123. It has repeatedly been laid down by the final court that the giver of Crl. Appeal No. 614-SB of 2007 9 the bribe is normally to be treated as accomplice and before recording the conviction of the delinquent government servant, independent corroboration of evidence of the accomplice, i.e., the complainant and the shadow witness is normally sought for if not as a matter of law, then at least as a matter of prudence."
26. This Court in Hari Kishan vs. State of Haryana, 1997 (2) RCR 330, has held as under:-
"12. Mr. H.S. Gill, Senior Advocate, for the appellant, contended that in order to bring home the guilt to the appellant, it had to be established by the prosecution that the appellant had demanded the bribe from complainant Daya Singh (PW-5) and had accepted the same in pursuance of the said demand. He further contended that to prove these ingredients, merely the statement of complainant Daya Singh (PW-5) or the trap witness Mithu (PW-7) cannot be relied upon without independent corroboration. He further contended that the solitary independent witness Birja Nand, District Revenue Officer, was not examined by the prosecution and, therefore, the appellant was entitled to be acquitted. In support of his argument, he relied upon 'Darshan Lal v. Delhi Administration, 1974(2) Chandigarh Law Reporter 611, B.C. Goswami v. Delhi Administration, AIR 1973 (SC) 1457, 'Prem Kumar v. State of Punjab, 1976 Chandigarh Law Reporter (Punjab & Haryana) 366, Mohinder Singh v. State of Punjab, 1990(2) RCR 371 and Gurmej Singh v. State of Punjab, 1987(2) RCR 296.
13. In Darshan Lal v. Delhi Administration (supra) it was held that trap witnesses in a case under Section 5(2) of the Prevention of Corruption Act, being interested in the success of the trap, the Court should require independent corroboration of their statements before convicting the accused. In Prem Kumar v. State of Punjab (supra), it has been held that no implicit reliance can be placed on the testimony of trap witnesses in the absence of independent Crl. Appeal No. 614-SB of 2007 10 corroboration. Trap witnesses are interested and partisan witnesses and on that count they spring from a tainted source. It was further held that unless there is independent and trust- worthy corroboration of the evidence of all these prosecution witnesses, the same could not form basis for conviction of the accused. In Ram Parkash Arora v. The State of Punjab, AIR 1973 SC 498 it has been held by the Apex Court as under :-
"It must be remembered that both Joginder Singh (bribe giver) and Dalbir Singh (shadow witness) P.Ws. were interested and partisan witnesses. They were concerned in the success of the trap and their evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person."
14. After hearing the learned counsel for the parties, I hold that in the present case afore-mentioned requirements of law have not been satisfied. The independent witness, Sh. Birja Nand, District Revenue Officer, has been withheld by the prosecution. Thus, the alleged demand of bribe and acceptance thereof by the appellant is not supported by any independent evidence and as such, the appellant is entitled to the benefit of doubt in view of the dictum laid down by the Supreme Court in the Darshan Lal's case (supra)."
27. Nothing has come on record to establish conclusively that Hussan Lal, the co-accused, had accepted bribe on behalf of the appellant. This leads to the conclusion that there is absence of demand of gratification and its acceptance.
28. Another crucial aspect of the matter is that in furtherance of the complaint of Kiran, PW14, against the complainant on 27.4.2005, a compromise was entered into between the couple, which is duly admitted by Kiran, PW14 as well as lady constable Suman Rani, PW17, who wrote the Crl. Appeal No. 614-SB of 2007 11 said compromise. After the compromise had been reached, the question of raising a demand on 11/12.5.2005 by the appellant does not seem to be logical and appeal to reason. In fact, after the compromise, the appellant would have had no role to play in the affairs of the couple. Therefore, I am of the considered view, once the work had been done, the question of raising a demand does not arise. This Court in Mehar Chand vs. State of Haryana, 2004 (4) RCR 655, has observed as under:-
"13. The above aspect of the case had at all not been considered by the learned Special Judge who concentrated on establishing the trap laid by the police and the recovery of the bribe from the possession of the accused. Since the basis for payment of bribe had not been successfully established and the complainant was not even aware that what was due to him was not medical reimbursement but arrears of enhanced pension, a major ingredient of the office had not been established.
14. It could well be argued that the appellant should have helped the complainant by informing him of the amount due and telling him to wait for its payment instead of agreeing to accept money for doing something which he had already done. There would have been force in this line of argument if the complainant had not waited for seven days from July 20 till 27 to report the matter to the police. The Sub-Divisional Magistrate was pre-occupied with other work and did not come forward to help the complainant immediately. The Magistrate also did not come forward to testify at the trial. Therefore, it appears that the complainant had nursed a sense of grievance against the appellant before reporting the matter to the police after a delay of seven days. In the meanwhile, the appellant had already prepared the bill, got the cheque prepared and despatched it to bank for payment. Consequently, it must be held that the recovery of the bribe was not the result of a spontaneous desire of the complainant Crl. Appeal No. 614-SB of 2007 12 to help in checking the corruption but part of his plan which had been working in the his mind for a week and which came to fruition when he contacted the police after seven days. In such cases, the investigation officer do prepare a meticulous trap, which is always a success but if the background which led to the execution of a successful trap is shaky or stands on a doubtful ground then the trap cannot be said to be a successful one."
29. As regards non-entering of the complaint of Kiran, PW14, in the complaint register, in my view, would not be a relevant factor in view of the fact that compromise had already been reached. In this manner, at best, it was an oversight which would have made the appellant departmentally liable. Criminal culpability could not have been fixed on the appellant on the basis of this oversight.
30. Another circumstance that dents the veracity of the prosecution case is the statement of complainant to the effect that he was called in by the driver of the SHO after 3-4 days of 27.4.2005. There is nothing on record to suggest that the complainant knew the SHO and his driver, who allegedly called the complainant, neither the SHO nor the said driver have been cited as witnesses. In the absence of any evidence that the complainant and the said driver were known to each other prior to the occurrence, there was absolutely no occasion for the driver of the SHO to recognise the complainant and call him into the police station to meet the appellant.
31. Another aspect that requires consideration is the statement of complainant, Exhibit D1. As pr statement of complainant, it is made out that the alleged complaint was written in the hand of one Vicky, however, this Vicky was never examined in the Court. Therefore, his very existence itself is doubtful because his name is not mentioned in the deposition of the Crl. Appeal No. 614-SB of 2007 13 complainant. The non-examination of Vicky leaves the scope for possibility of some official writing out the alleged complaint cannot be ruled out. The bone of the case of the prosecution further stands fractured from the fact that the complainant was specifically instructed by the official of the CBI (as per his cross-examination) to hand over the money to the appellant but he deliberately chose to hand over the bribe money to Hussan Lal, the co- accused. From this fact, it appears that there was no demand from the appellant and the attempt was made to only falsely implicate her.
32. Another circumstance in favour of the appellant is her acquittal in the departmental enquiry. It has been held in a number of judgments that exoneration in the departmental enquiry leads to quashing of the FIR. The High Court of Karnatka in V.B.Raikar vs. State of Karnatka, 2004 (2) RCR 150, has observed as under:-
"9. In a decision of the Apex Court rendered in the case of P.S. Rajya, supra, the Apex Court has held that if the enquiry report did not show any prima facie case and if the enquiry had been concluded, the prosecution of the appellant for offences under the provisions of the Prevention of Corruption Act was liable to be quashed."
33. This Court in Surkhi Lal Vs. Union of India, 2006 (1) RCR 97, has held as under:-
"13. The legal principles that can be evolved from the series of judgments quoted above are as under :
(a) Departmental proceedings are different from trial and so if the departmental proceedings end in favour of the accused the criminal trial is not hit by the principle of autre fois acquit.
(b) the departmental proceedings and the criminal proceedings can proceed side by side.Crl. Appeal No. 614-SB of 2007 14
(c) if the departmental proceedings end in a finding in favour of the accused in respect of the allegations which also form the basis for the criminal proceedings then the departmental adjudication will remove the very basis of the criminal proceedings and in such situation the continuance of the criminal proceedings will be a futile exercise and an abuse of the process of the court.
14. In the present case CEGAT has found that the allegations against the petitioner were not based on any fact or evidence. The department has failed to prove before the CEGAT that the petitioner was in any way knowingly concerned in fraudulent evasion of prohibitions imposed in importation of gold into India. The department having failed to prove the allegations before the CEGAT cannot be allowed to continue the criminal proceedings for although the same may not be barred by Article 20(2) of the Constitution of India, the same would be a futile exercise, waste of judicial time and abuse of the process of law. I, therefore, allow the petition and quash the criminal proceedings vis-a-vis the petitioner."
34. The prosecution has also failed to prove any link evidence between the appellant and co-accused Hussan Lal (since acquitted). It has also come on record that during trap, the mobile phone of Hussan Lal was checked and the same was returned back to him. The raiding party did not take the same into possession. From the aforementioned fact, it is clear that the raiding party did not find any incoming and outgoing call from and to the appellant on the phone of said Hussal Lal.
35. Therefore, the question of any acceptance of gratification by the appellant, through the said Hussan Lal, does not arise and in all probabilities the present case appears to be a case of framing the appellant by the prosecution. For an offence under the Act, the demand and acceptance are two integral ingredients. In the instant case, the prosecution Crl. Appeal No. 614-SB of 2007 15 has not been able to prove the fact of demand of bribe qua the appellant. This was also the precise stand of the appellant when examined under Section 313 of Cr.P.C. that the present case is a false case on account of frustration and ill-will nursed by the complainant against her as he wanted to wriggle out from the compromise arrived at by him with his wife.
36. As regards Crl. Appeal No. 1144-SB of 2009 is concerned, I am of the considered view that it is admitted case of the prosecution that there was no demand by accused Hussan Lal. As per record, co-accused Hussan Lal had no role to play so far as the complaint of Kiran, PW14 is concerned. In the facts and circumstances of the present case, I find that the findings recorded by the learned Trial Court do not suffer from any perversity and the learned Trial Court has rightly acquitted the co-accused Hussan Lal. Accordingly, the appeal filed by the CBI is hereby dismissed.
37. For the reasons mentioned above, the present appeal i.e. Crl. Appeal No. 614-SB of 2007 is allowed. The judgment and order dated 10.3.2007 passed by the learned Trial Court is set aside. The appellant is stated to be on bail. Her bail bonds shall stand discharged.
38. Since the instant appeal is disposed of, as such, the pending misc. applications, if any, shall stand disposed of.
25.8.2010 (JITENDRA CHAUHAN) mk JUDGE Note: Whether to be referred to the Reporter? Yes / No