VINOD KUMAR GARG Vs. STATE

JUDGEMENT

(1.) The impugned judgment dated 7th January 2009 passed by the High Court of Delhi upholds conviction of Vinod Kumar Garg ('the appellant', for short) under Sections 7 and 13 of the Prevention of Corruption Act, 1988 ('the Act', for short) imposed by the Special Judge, Delhi vide judgement dated 27th March 2002. The appellant has been sentenced to undergo rigorous imprisonment for one and a half years, and fine of Rs. 1,000/- for each offence and in default of payment to undergo simple imprisonment for three months on both counts separately. The sentences have been directed to run concurrently.

(2.) Challenging the conviction, the learned senior advocate for the appellant submits that there are major contradictions on material aspects in the testimonies of the complainant Nand Lal (PW-2) and the panch witness Hemant Kumar (PW-3). Nand Lal (PW-2) in his court testimony recorded on 9th July 1999 had denied to having paid any money to the appellant prior to lodging of the complaint, but in his complaint (Exhibit PW-2/A) dated 2nd August 1994, Nand Lal (PW-2) had alleged that he had fifteen days back paid Rs. 500/- to the appellant. Further, Nand Lal (PW-2) in his examination-in-chief on hand-wash had claimed that it was taken and perhaps polythene bag was also washed, but in his cross-examination PW-2 had accepted that hand-wash of the appellant was not taken. Similarly, Hemant Kumar (PW-3) had contradicted the version in his examination that the pant wash of the accused was taken at the Anti-Corruption Branch, as in his cross-examination Hemant Kumar (PW-3) had accepted the suggestion that the hand-wash and pocket wash were not taken after the appellant was apprehended. Inspector Rohtash Singh (PW-5) who had conducted the raid has admitted that he had not taken the hand-wash or the pant wash of the appellant from which the polythene packet containing the bribe money was allegedly seized. Further, the testimonies of Nand Lal (PW-2) and Hemant Kumar (PW-3) reveal a major dichotomy on the amount that the appellant had allegedly demanded as bribe. In his cros-sexamination Nand Lal (PW-2) had denied the suggestion that the appellant had asked for Rs. 2,000/- to be paid separately by Nand Lal (PW-2) and Hemant Kumar (PW-3) as the two were partners, contrary to the version given by Hemant Kumar (PW-3) who had deposed that the appellant had told them in the gallery that each of them should pay Rs. 2,000/-. There is a contradiction in the testimony of Nand Lal (PW-2) and Hemant Kumar (PW-3) as to the place where the allegedly bribe money was asked and paid to the appellant. As per Nand Lal (PW-2) the bribe was asked and paid in the garment shop, whereas Hemant Kumar (PW-3) has denied that the payment took place inside the cloth shop. Drawing our attention to the version of Nand Lal (PW-2), it was submitted that Hemant Kumar (PW-3) was not an eyewitness or a panch witness to the demand and payment of alleged bribe money. In view of the irreconcilable versions of the two witnesses, the appellant is entitled to benefit of doubt. Further, there is no evidence or document to show that Nand Lal (PW-2) was the tenant in the shed for which the appellant had statedly asked for bribe money to provide the electricity meter. Anil Ahuja (PW-6), the owner of the shed has not supported the case of the prosecution and had contradicted the claim made by Nand Lal (PW-2) in his complaint (Exhibit PW-2/A).

(3.) On the question of demand and payment of bribe for performance of public duty or forbearance to perform such duty, we would read the testimonies of the complainant - Nand Lal (PW-2), panch witness - Hemant Kumar (PW-3), and the Inspector of Anti-Corruption Branch - Rohtash Singh (PW-5) in unison. Nand Lal (PW-2) has deposed having visited the DESU office and his meeting with Inspector Yadav for installation of electricity meter in the shed for a fan and a light. Nand Lal (PW-2) after shifting his goods etc. to the shed had again visited the DESU Office and learnt that Inspector Yadav had been transferred. Nand Lal (PW-2) had met his successor-the appellant, who had asked him to move an application for providing a meter for the electricity connection. The appellant had also stated that electricity could be provided without meter for which Nand Lal (PW-2) was asked to pay bribe of Rs.2,000/-. Thereupon, Nand Lal (PW-2) had expressed his inability to pay Rs.2,000/- in lumpsum but he could pay the bribe amount in instalments of Rs.500/- each, which the appellant had agreed and accepted. Thereafter, Nand Lal (PW-2) had visited the Anti-Corruption Branch and lodged his complaint on 2nd August 1994 vide Exhibit PW-2/A that was signed by him at Point A. Both Hemant Kumar (PW-3) and Inspector Rohtash Singh (PW-5) have in seriatim confirmed the relevant ensuing events. Nand Lal (PW-2), Hemant Kumar (PW-3) and Rohtash Singh (PW-5) have affirmed that Nand Lal (PW-2) had produced five currency notes of Rs.100/- each, the serial numbers of which were duly recorded and the notes were sprinkled with powder. The three had then along with other members of the raiding team proceeded to the DESU office but the appellant had asked Nand Lal (PW-2) to come on the next day, as the work would not be done on 2nd August 1994. On 3rd August 1994, Nand Lal (PW-2) had again visited the Anti-Corruption Branch office where Hemant Kumar (PW-3) and Rohtash Singh (PW-5) were present. The currency notes were again subjected to chemical treatment and the raiding party had proceeded to the DESU office. Nand Lal (PW-2) and Hemant Kumar (PW-3) had met the appellant, who had then asked Nand Lal (PW-2) to wait on the appellant's scooter parked outside the office. After some time, the appellant came out of the office. He started the scooter and they drove for about 50 yards with Nand Lal (PW-2) sitting on the pillion seat. Nand Lal (PW-2) in his deposition has stated that he had asked the appellant to stop the scooter as the third person - Hemant Kumar (PW-3) was also accompanying them.