Delhi High Court
C.B. Rai vs C.B.I. on 8 May, 2013
Author: R.V. Easwar
Bench: R.V. Easwar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on:2nd May, 2013
% Date of Decision:8th May, 2013
+ CRL. A. 668/1999
C.B. RAI ..... Appellant
Through: Mr. K. B. Andley, Sr. Advocate
with Mr. M. Shamikh, Advocate.
versus
C.B.I. ..... Respondent
Through: Mr. R. V. Sinha, Standing Counsel
with Mr. Pradeep Kumar Singh,
Advocate.
CORAM:
MR. JUSTICE R.V. EASWAR
JUDGMENT
R.V. EASWAR, J.:
This is an appeal under Section 374 of the Cr.P.C. against the judgment dated 29.11.1999 passed by the trial court in RC No.47 (A/94- CBI/ACB/DLI). The trial court has convicted the appellant and has awarded a sentence of two years RI under section 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as the PC Act) and imposed a fine of `2500/- in default of which the accused shall undergo SI for a further period of 6 months. The appellant has also been sentenced to undergo RI for a period of two years and to a fine of `2500/-, in default with SI for a further CRL. A. 668/1999 Page 1 of 20 period of 6 months, under Section 13(2) read with Section 13(1)(d) of the PC Act. Both the sentences have been directed to run concurrently with benefit of Section 428 Cr.P.C. given.
2. The brief facts giving rise to the appeal may now be narrated. The appellant at the material time was working as senior lineman in MTNL, Delhi. An application was made by one Ravinder Nagpal in his capacity as director of M/s Tofu Soya (P) Ltd. for shifting of telephone No.5721621 in the name of the company from Naiwala, Karol Bagh, New Delhi to the premises at No.34/22, East Patel Nagar, New Delhi. The orders for shifting the telephone were isused on 07.07.1994.
3. It is alleged that on 22.07.1994, the accused/appellant met Anil Prakash Nijhawan, who is the complainant, and demanded illegal gratification of `500/- for shifting the telephone connection and that he further demanded that the amount be given to him by 23.07.1994, without which the work will not be done. It may be mentioned here that Ravinder Nagpal, director of the company above named, is the brother-in-law of Anil Prakash Nijhawan.
4. The complainant made a complaint in writing to the Anti-Corruption Bureau, CBI, on the basis of which a case was registered and Inspector Rajesh Kumar was put in charge of the investigation. He organised a raid party comprising the CBI officials and one Ashwini Kumar, Assistant Station CRL. A. 668/1999 Page 2 of 20 Master, New Delhi, Railway Station, who was to act as shadow witness. All the formalities of a trap were gone through and the necessary trap-memo was prepared and signed by all concerned.
5. The trap party of the CBI reached the premises at East Patel Nagar around 11 a.m. on 23.07.1994. The complainant and the shadow witness went inside the premises, while the other members of the trap party took suitable positions near the premises. The appellant arrived at the premises at 1:30 p.m., parked his cycle and went inside the premises. According to the prosecution, he met the complainant and demanded the bribe. The shadow witness, who was with the complainant requested him to reduce the bribe demand, but the appellant declined saying that he will have to pay something to the higher officials. Thereafter, the complainant handed over the tainted currency notes amounting to `500/- (10CG notes of `50/- each) to the appellant who accepted the money with his right hand and kept it in the front shirt-pocket. At this, the shadow witness gave the pre-appointed signal and the members of the trap party rushed in an apprehended the appellant. According to the prosecution, when Inspector Rajesh Kumar disclosed his identity and challenged the accused of having demanded and accepted the bribe, the appellant kept silent. The shadow witness informed the trap officer that the appellant had kept the money in the shirt pocket. At this, the sub- Inspector searched the accused and recovered the amount from the accused. CRL. A. 668/1999 Page 3 of 20 The serial numbers of the currency notes were compared with the pre-trap memo and were found to match. Thereafter, the right hand wash as well as the shirt-pocket wash of the appellant were taken in the colourless solution of sodium carbonate separately in order to confirm whether or not he had handled the money and kept it in the pocket. Both the washes turned pink. They were transferred into clean empty bottles and sealed. The sealed bottles were sent later for chemical analysis and the report confirmed the presence of phenolphthalein and sodium carbonate in the contents of the bottle. The accused was thereafter charged for committing the offence punishable under Section 7 and Section 13(2) read with Section 13(1)(d) of the PC Act. He pleaded not guilty to the charge and claimed trial.
6. During the trial, 8 witnesses were examined by the prosecution, including Anil Prakash Nijhawan (PW1) and Ashwini Kumar (PW-2). The other witnesses were formal witnesses. The appellant was examined under Section 313 of the Cr.P.C. in which he denied having demanded or accepted any bribe. He stated that on 23.07.1994, he reached the East Patel Nagar premises at 3:30 p.m. and not at 1:30 p.m. as made out by the prosecution and enquired from his labourers whether the work of installation of the telephone in the aforesaid premises was completed. The labourers told him that the telephone was not installed since Anil Prakash Nijhawan (PW-1) was insisting upon the presence of the appellant in the premises and had not CRL. A. 668/1999 Page 4 of 20 permitted them to install the telephone. At this, the appellant along with two labourers entered the premises and enquired from the complainant as to where the telephone should be installed. There was only one room which was open and the complainant told him that the telephone should be installed there. Thereafter, the complainant enquired whether the appellant was C. B. Rai, to which the appellant replied in affirmative and also explained that he had directed his labourers to enter and extend the telephone wire to the room from the telephone pole situated at the back of the house. The appellant thereafter started to leave, but the complainant asked him to sit and offered him biscuits. When the appellant was picking up a biscuit the complainant forced the tainted money in the left shirt-pocket of the accused and told the other person in the room (the shadow witness) to bring campa cola for the appellant. That person went out and the complainant also directed the MTNL labourers to leave. Thereafter, 7 or 8 persons belonging to the CBI entered the room and apprehended the appellant. One dark-complexioned person recovered the money from the appellant's shirt-pocket. The appellant was thereafter taken to another room where he was slapped by Inspector Rajesh Kumar and the dark complexioned CBI officer. They forced him to handle the currency notes and thereafter took the hand-washes again. The appellant shouted to his labourers to come to the spot but they were driven away by the CBI officers who threatened them that they would also be arrested if they came into the CRL. A. 668/1999 Page 5 of 20 room. This is the gist of the statement given by the appellant under Section 313 of the Cr.P.C. Two witnesses were also examined as defence witnesses.
7. The trial court after scrutinising the evidence held that the appellant was a public servant as he was an employee of MTNL, which is a government company as defined under Section 617 of the Companies Act, 1956. He was held to squarely fallen within Section 2(iii) of the PC Act. The trial court also found that the sanction for prosecution was properly accorded. About these two aspects of the case, there is no dispute.
8. The trial court thereafter proceeded to examine the question whether or not the appellant demanded and accepted illegal gratification from the complainant. This aspect of the matter was examined with reference to two stages - firstly, the initial demand which led to the filing of the complaint before the ACB/CBI and secondly the subsequent demand and acceptance of the bribe on the spot at the time of the execution of the trap.
9. As regards the first demand, the only witness of the prosecution was the complainant who had stated that the appellant had made the initial demand. It is to be noticed that witness DW-1 J. P. Danariyal (employee of MTNL) had stated that the execution of the work of shifting of the telephone was entrusted to accused C. B. Rai on 19.07.1994. Accepting his evidence, the trial court observed that this implied that the appellant had occasion and CRL. A. 668/1999 Page 6 of 20 reason to take bribe for executing the work. Coming to the first stage at which the demand of the bribe was allegedly made, the trial court noted that PW1 (Anil Prakash Nijhawan) had categorically stated that on 22.07.1994 the appellant met him near the junction box of MTNL and assured him that he would install the telephone at the premises in East Patel Nagar if a bribe of `500/- was paid to him. This was not corroborated by any other witness, but according to the trial court it stood verified from the success of the trap which was led by CBI to verify the allegations of the complainant. Therefore, the trial court had no hesitation in believing the evidence of the complainant and in holding that the appellant did make an official demand of `500/- as bribe on 22.07.1994.
10. With regard to the subsequent demand of the bribe at the spot of the occurrence (execution of the trap), the trial court did not accept the argument of the defence counsel that it is highly improbable that the trap party were waiting for the arrival of the appellant at 34/22, East Patel Nagar till about 1 to 1:30 p.m. on 22.07.1994. The trial court actually placed reliance on DW-2, Shankar who was a regular mazdoor. Shankar had stated that the appellant visited the office of M/s Tofu Soya (P) Ltd. at 23.07.1994 at about 2:00 or 2:30 p.m., but during cross-examination he admitted the suggestion of the prosecutor that the accused was arrested by the CBI at around 1:30 p.m. on that date. This statement of DW-2, according to the trial court, supported the CRL. A. 668/1999 Page 7 of 20 prosecution version that the appellant had visited the spot at around 1.30 p.m. on 23.07.1994 and therefore the version of the prosecution that the trap party waited from 11:00 a.m. to 1:30 p.m. has to be accepted.
11. As to the precise question of the demand being made by the appellant at the spot on 23.07.1994, the contention of the appellant before the trial court was based on the evidence of Ashwini Kumar, the shadow witness (PW-2). Ashwini Kumar had stated that the accused did not demand any money, but the complainant passed on the money to the accused. This, according to the learned counsel for the accused before the trial court, supported the claim of the accused that he did not demand any bribe on 23.07.1994 at the time of the execution of the trap. This plea was however not accepted by the trial court. On a deeper perusal of the evidence of Ashwini Kumar in his examination-in- chief, it was noticed by the trial court that Ashwini Kumar had stated that after pointing out the place where the telephone instrument was to be installed, the complainant Anil Prakash Nijhawan said to the accused "Bhai sahib keh rahe hain kuchh kam kar do". The accused replied "Pahle yahi lagwa lo woh baad mein dekhenge". Analysing these statements, the trial court came to the conclusion that there was some demand from the side of the accused, otherwise there was no occasion for Ashwani Kumar, on behalf of Nijhawan, to request the accused to reduce the amount. There was also no occasion or reason for the complainant to ask for the "kharcha" for installing CRL. A. 668/1999 Page 8 of 20 the other instrument. The trial court also inferred that had there been no demand by the accused, he would have refuted the words of the complainant, instead of saying that first let the instrument be installed and the request of the complainant can be attended to later. Moreover, according to the trial court, the complainant had asked the accused when he first came into the premises as to what happened to his work ("kya hua hamare kaam ka") to which the accused had replied "jo hamne kaha tha wo aap kar dijiye". The complainant had also deposed that he introduced Ashwini Kumar, the shadow witness, as his cousin brother and asked him to negotiate the amount since the demand of the accused appeared excessive. When Ashwini Kumar suggested a reduction in the amount, the accused did not reduce the amount. Ashwini Kumar thereafter passed on the money to the accused which he accepted with his right hand. The accused was asked to count the money, but he replied, "aapne gine hain theek hi honge".
12. The trial court proceeded to analyse the aforesaid testimony of Ashwini Kumar and the complainant in which the conversation between the complainant and the appellant was testified, and concluded that it was obvious that there was a demand by the accused since otherwise there was no occasion for the complainant to request Ashwini Kumar to negotiate the demand and for the accused to suggest that "hamne aage bhi dena hai" (i.e. the accused has to share it with others). The trial court also laid emphasis on the CRL. A. 668/1999 Page 9 of 20 statement of the accused that "aapne gine hain theek hi honge", which words would not have been uttered unless there was a demand.
13. It would appear that a point was taken before the trial court on behalf of the appellant herein that in the statement made by Anil Prakash Nijhawan under Section 161 Cr.P.C. the conversation between the accused on the one hand and the complainant and the shadow witness on the other hand was not narrated. This point however did not appear to the trial court to be of any relevance. It was observed that in the statement under Section 161 Cr.P.C., the complainant has stated that the conversation which took place was reproduced in the recovery memo prepared at the spot and that such conversation had actually taken place. Thus, the recovery memo prepared at the spot became part of the statement under Section 161, so far as the conversation part was concerned. The trial court also perused the recovery memo and found that the conversation between the complainant and the accused was reproduced therein and though there were differences, but nevertheless the conversation was suggestive of the fact that the demand of bribe was indirectly made during the conversation. The variations in the conversation part as recorded in the recovery memo and as testified by the complainant during examination-in-chief can be, according to the trial court, attributed to the lapse of memory due to passage of time of about 1 ½ years after the actual trap. In this view of the matter, the trial court held that the CRL. A. 668/1999 Page 10 of 20 prosecution was able to establish the subsequent demand of bribe at the time of the trap by the CBI.
14. The trial court then proceeded to examine the implications of the acceptance of the bribe money and recovery of the same. The trial court does not appear to have had any difficulty in holding that the accused had accepted the bribe money which was recovered from him because of the evidence of the shadow witness and the complainant which corroborated each other. The version of these two witnesses regarding recovery of the money from the accused was found to have been corroborated by the Trap Laying Officer (TLO), Inspector Rajesh Kumar, who deposed that after apprehending the accused he directed the Sub-Inspector Ruby Jawahar to search the accused. Ruby Jawahar recovered the tainted amount of `500/- from the shirt pocket of the accused. The evidence of these prosecution witnesses was found corroborated by the washes which turned pink when the right hand of the accused as well as the lining of the shirt pocket were dipped in colourless sodium carbonate solution. According to the trial court unless there were traces of phenolphthalein on the right hand as well as the left front pocket of the shirt of the accused, there was no reason for the sodium carbonate solution to turn pink. The trial court also relied on the chemical analysis report, (Ex. PW-4/A).
CRL. A. 668/1999 Page 11 of 20
15. The trial court did not also accept the defence of the accused that he did not visit the East Patel Nagar premises at 1:30 p.m. on 23.07.1994. It relied on the version of DW-2 Shankar, regular mazdoor, who testified that the accused was arrested at around 1:30 p.m. The trial court thus rejected the claim of the appellant that he had visited the premises of East Patel Nagar not at 1:30 p.m. but only at 3:30 p.m.
16. The trial court did not also find any motive for the complainant to falsely implicate the accused. There was no previous enmity between them. The argument of the defence counsel that the complainant is in the business of liaison work relating to new telephone connections, shifting of telephone lines, etc. and, therefore, was in the habit of getting the MTNL employees falsely implicated in order to maintain psychological pressure on the officers of the MTNL did not appeal to the trial court. The trial court held that this was not probable since it would be more in the interest of the business of the complainant to maintain cordial relations with MTNL staff and that attempts to falsely implicate them in such type of cases would only spoil his business prospects. The trial court also observed that there was no reason for the panch witness or the shadow witness or the TLO to falsely implicate the accused. This argument was, therefore, rejected.
CRL. A. 668/1999 Page 12 of 20
17. For the above reasons, it was held by the trial court that the appellant was guilty of the offences under sections 7 and 13(2) read with section 13(1)(d) of the PC Act.
18. Assailing the judgment of the trial court, the learned counsel for the appellant raised several contentions. It was first argued that the telephone connection which was to be shifted was not that of the complainant but it was of a company of which his jijaji was a director. I do not think that this would materially impact the case. The trial court has found as a fact that the work of shifting the telephone line was entrusted by MTNL to the accused. That gives him sufficient motive and it does not matter that the telephone connection to be shifted did not belong to the complainant.
19. The second contention was that none of the three ingredients of section 7, i.e., demand, acceptance and recovery was proved and no witness has stated that the accused-appellant demanded bribe at the spot on 23.07.1994. Attention was drawn to the testimony of the shadow witness Ashwini Kumar PW-2 who has stated that the accused did not demand bribe on the spot. This aspect of the matter has been elaborately dealt with by the trial court which I have summarised in sufficient detail hereinabove. As rightly pointed out by the trial court, there is no requirement that the demand of the bribe should have been made at the spot when the trap was being executed. Section 7 of CRL. A. 668/1999 Page 13 of 20 the PC Act merely refers to a public servant accepting or obtaining or agreeing to accept or attempting to obtain from any person any gratification other than legal remuneration as a motive or reward for doing or forbearing to do an official act. The section does not in terms require that there should have been a demand of bribe by the public servant. In State vs. A. Parthiban :
(2006) 11 SCC 473, the Supreme Court held that "every acceptance of an illegal gratification, whether preceded by a demand or not would be covered by section 7 of the PC Act." Even otherwise, the trial court has elaborately examined the evidence and has come to the conclusion that there was a demand by the accused at two stages - one on 22.07.1994 and the other on 23.07.1994. The complainant Anil Prakash Nijhawan stated in his evidence that the accused met him on 22.07.1994 near the MTNL junction box and assured him that he would install the telephone at the East Patel Nagar, if a bribe of `500/- was paid to him. Moreover, on 23.07.1994, a request was made to the accused by Ashwini Kumar, the shadow witness, to reduce the bribe amount. This would have been without any meaning or purpose unless the bribe amount had already been demanded by the accused. Thus by the conversation between the accused and Ashwini Kumar on 23.07.1994 the earlier demand made by the accused on 22.07.1994, stands established, if it is read along with the testimony of the complainant. In other words, the testimony of the complainant that the accused demanded bribe of `500/- on CRL. A. 668/1999 Page 14 of 20 22.07.1994 stands corroborated by the conversation which took place between Ashwini Kumar and the accused on 23.07.1994.
20. Moreover, a demand of bribe may be direct or indirect. An indirect demand of bribe is one which can be inferred from the conduct and the surrounding circumstances. The conversation which took place on 22.07.1994 between the accused on the one hand and the complainant and the shadow witness on the other hand, does give rise to a reasonable inference that even on 23.07.1994 there was an implied or indirect demand of bribe of `500/- by the accused. I have already referred to the conversation where Ashwini Kumar requested the accused to reduce the amount which did not evoke any positive response from the accused. If the accused had not demanded any bribe, he ought to have expressed surprise at the request of Ashwini Kumar, the shadow witness, to reduce the bribe amount and he ought to have denied that he either directly or indirectly or impliedly had demanded any bribe. Moreover, the accused had also stated that the amount was to be shared with others ("hamne aage bhi dena hai"); these words could not have been uttered by the accused-appellant unless he had demanded the bribe amount and was expecting the same to be paid in full. Lastly when the money was handed over to the accused and he was requested to count the same he replied that "aapne gine hai theek honge". This would also have been unnecessary, unless the accused had demanded a bribe of `500/-. Thus, not CRL. A. 668/1999 Page 15 of 20 only was there a direct demand of `500/- as bribe on 22.07.1994 for performing an official act, there was also an indirect or implied demand of bribe by the appellant on 23.07.1994. Thus the provisions of section 7 of the PC Act are clearly attracted.
21. So far as the acceptance of the bribe is concerned, that stands established by the aforesaid evidence. The fact that the money was recovered from the accused stands proved by the sodium carbonate washes and the chemical analysis report which were relied upon by the trial court. By handling the money (currency notes) and by putting the same in his shirt's front pocket, the accused-appellant has clearly accepted the bribe and the same was also recovered from him. I, therefore, have no hesitation in upholding the finding of the trial court that section 7 of the PC Act is clearly attracted to the case.
22. The next contention was that at the time when the CBI officials reached the East Patel Nagar premises at around 11:00 a.m., there is evidence to show that the work relating to the shifting of the telephone line was already in progress and two regular mazdoors were already carrying out the work. The contention is that if the work was already in progress it cannot be said that the appellant had demanded the bribe as a motive or reward for doing any official act. It was further stated by the learned counsel for the appellant that CRL. A. 668/1999 Page 16 of 20 the appellant went into the premises only to see the room where the connection/ phone was to be installed and no adverse inference can be drawn from the same. I am unable to accept these contentions. It may be true that the work was already in progress. Section 7 of the PC Act does not require that the bribe money ought to have been accepted or obtained by the public servant before the official act is carried out. All that is required is that the bribe is accepted or obtained as a motive or reward for doing any official act. The actual transfer of the illegal gratification can take place at any point of time. If the motive is present, the timing of the transfer of the illegal gratification is irrelevant. I, therefore, do not see any force in the contention which is rejected.
23. Another contention advanced on behalf of the appellant was that Anil Prakash Nijhawan was a habitual complainant and he used to put pressure on MTNL employees by filing false complaint against them so as to get his liaison work done with the MTNL. Even though the complainant was in the business of liaison work for getting or transferring MTNL connections, that alone cannot justify the contention that a false complaint was lodged against the appellant in order to get the work of transferring the line executed. This is too remote or far-fetched an argument for acceptance. The learned trial court has dealt with this aspect - quite rightly - by observing that it would be in the interest of the business of the complainant to maintain cordial relations with CRL. A. 668/1999 Page 17 of 20 the MTNL employees rather than to implicate them in false cases. I am afraid this is an argument of despair which I cannot accept.
24. For the same reason I am unable to accept the argument of the learned counsel for the appellant that Anil Nijhawan, the complainant and the TLO were known to each other even earlier and, therefore, the evidence of the TLO cannot be believed. It is true that Anil Nijhawan and the TLO, Inspector Rajesh Kumar, knew each other but that alone can be no reason to disbelieve the evidence of the TLO. There is ample evidence to show that the appellant demanded and accepted illegal gratification for doing an official act. The TLO is a public servant and was discharging a public duty. His evidence cannot be thrown out merely because he and the complainant knew each other even earlier. It cannot be suggested at all that the case was assigned to the TLO Rajesh Kumar because of the friendship between him and the complainant. The contention has no force and is rejected.
25. The learned Additional Public Prosecutor drew my attention to section 20 of the PC Act. This section raises a presumption where a public servant accepts illegal gratification. It says that where it is proved that a public servant has accepted or obtained illegal gratification (other than legal remuneration) from any person it shall be presumed that he accepted or obtained the same as a motive or reward for doing an official act or for the CRL. A. 668/1999 Page 18 of 20 purposes mentioned in section 7, unless the contrary is proved. Thus the presumption is a rebuttable presumption, but the onus of rebutting the presumption is on the accused. On the evidence led in the present case, it is not possible to hold that the appellant has discharged the onus and has proved that the amount of `500/- was received by him for purposes other than those mentioned in section 7 of the PC Act.
26. For the above reasons I uphold the conviction of the trial court under section 7 read with section 13(2) and section 13(1)(d) of the PC Act.
27. Turning now to the sentence, it was submitted by the learned counsel for the appellant that the appellant had already spent about 4 months in custody and that having regard to his age and the long period of trial which he has undergone, only minimum punishment may be given. The minimum punishment under section 7 of the PC Act is six months and under section 13(1)(d) of the said Act is one year. The appellant has already deposited the fine under both the sections. As the offence is one which falls under two different sections providing for different punishments, the appellant cannot be punished with a more severe punishment than the court could award to him for any one of the two offences, as laid down in section 71 of the Indian Penal Code. Taking into consideration the fact that the appellant has undergone a long period of trial and the fact that he has no history of taking bribes, I am of CRL. A. 668/1999 Page 19 of 20 the view that the sentence of 2 years RI for each of the offence under sections 7 and section 13(1)(d) of the PC Act is somewhat harsh. However, as observed by the Supreme Court in the judgment cited supra, if an offence falls under both sections 7 and 13(1)(d) of the PC Act and the court wants to award only a minimum punishment then the punishment should be one year which is the minimum provided in section 13(1)(d) of the Act. Accordingly, I reduce the sentence to one year. The sentence undergone by the appellant shall be reduced from the sentence of one year and the appellant will undergo the sentence of the remaining period only.
28. The appeal is accordingly disposed of. The appellant is under suspension of sentence vide orders of this Court. He is, therefore, directed to surrender within 15 days from today, failing which he shall be taken into custody to serve the remaining period of the sentence. The trial court be apprised of this judgment forthwith to ensure its compliance.
(R.V. EASWAR) JUDGE MAY 08, 2013 vld/hs CRL. A. 668/1999 Page 20 of 20