HARISH KUMAR Vs. CBI

JUDGEMENT

(1.) In the present appeal, a challenge is laid to the judgment dated 31 st May, 2010 convicting the Appellant for offences punishable under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1998(in short the P.C. Act) and the order on sentence dated 2 nd June, 2010 whereby the Appellant has been awarded a sentence of Rigorous Imprisonment for a period of three years and a fine of 10,000/- and in default of payment of fine, to further undergo simple imprisonment for three months on both the counts i.e. Section 7 and Section 13 (2) read with Section 13 (1) (d) of the P.C. Act.

(2.) The brief facts leading to the filing of the present appeal are that on a written complaint dated 4 th February, 1993 Ex. PW5/A by PW5 Sh. Yogesh Kumar Agarwal to the CBI that the Appellant was demanding 500/- as illegal gratification for installing a PCO connection at the shop of the PW5 situated at 9/51, Durga Market, Khichripur, Delhi 110091, a case was registered and a trap was laid by PW 10 Inspector D.M. Sharma. The trap team consisted of other CBI officials besides PW10 and trap witnesses PW6 Sh. Surinder Kumar and PW7 Jaganath both Assistant Grade-II. PW 5 produced 10 G.C. notes of 50/- denomination, the numbers whereof were noted vide Ex. PW 5/B and the same were treated with the solution. After completing the pre-trap formalities wherein PW 7 was asked to act as shadow witness, the trap party along with PW 5 reached the office of SDO (P), Mayur Vihar. PW 5 along with PW 7 went to the office of the Appellant and at about 4:00 P.M. when PW5 went inside the office room of Harish Kumar where coaccused Gurudev was also present, Harish Kumar asked PW5 that whether he had brought the money. PW5 replied that he had brought the money but the same was little less than the demanded money. PW5 gave money to the Appellant who kept it in his pocket. On this PW 7 gave the pre-appointed signal and the other members of the CBI team rushed inside the office of the Appellant and caught hold of the Appellant and co-accused Gurdev Singh. On the trap officer challenging them, both the accused were perplexed PW 5 has stated that when PW 7 went outside to give the signal, he asked Appellant Harish Kumar to reduce the amount and on his request 100/- were returned. On the search being conducted 350/- were recovered from the Appellant and 50/- from the register and 100/- were recovered from PW 5. The right hand wash and the left hand wash and the pocket wash of the Appellant gave pink colour solution and were kept in two separate clean bottles on which paper slips were pasted and given the marking of LHW and RHW. The bottles were wrapped in cloth wrapper and sealed. The left hand wash of co-accused Gurudev Singh turned pink. After completing all the formalities, the Appellant and co-accused Gurdev Singh were arrested. Thereafter departmental proceedings were initiated against the Appellant wherein statements of the witnesses were recorded and as the witnesses did not support the prosecution case on material aspects in the departmental inquiry, the CBI filed a closure report on 31 st August, 2001. Vide order dated 4 th January, 2003, the learned Special Judge did not accept the closure report and directed further investigation of the matter. After further investigation, the CBI filed a charge-sheet against the Appellant and co-accused Gurdev Singh on 2 nd January, 2004. After recording of the prosecution witnesses, statements of the accused and defence witnesses, the learned trial Court acquitted the coaccused Gurudev Singh extending the benefit of doubt and convicted the Appellant as mentioned above resulting in filing of the present appeal.

(3.) Learned counsel for the Appellant contends that the prosecution witnesses have not supported the prosecution case on material aspects either in the disciplinary proceedings or in the trial and thus it is a case of no evidence against the Appellant. The learned Trial Court vide its order dated 21 st November, 2007 in view of the statement of PW 5 made in his examination in chief, cross-examination and re-examination and further crossexamination being contradictory in nature directed holding of an enquiry against PW5 for giving false evidence before the court and issued notice under Section 340 Cr. P.C. to him. The enquiry proceeding under Section 340 Cr.P.C. was separated however till date no action has been taken thereon. Thus, the leaned trial court was also of the opinion that there are material contradictions in the testimony of PW 5 and thus no reliance should be placed on such a witness. The alleged motive has not been proved because as per the testimony of PW 5 and PW3 the connection had already been installed on 4 th January, 1993 and thus, there was no reason for the Appellant to demand the bribe on the said date. The prosecution has also not proved the initial demand because though PW5 in his examination in chief has stated that on 3 rd January, 1993 the appellant came to his shop and demanded 500/- as bribe, however, in his cross-examination he has stated that bribe was demanded from his brother in law Arvind Kumar in whose name the PCO was being installed. Thus, the initial demand has also not been proved by the prosecution in the absence of examination of Arvind Kumar as a witness. Though, PW 5 in his examination in chief has stated that the Appellant asked if he had brought the money to which he said that he had brought and asked if his work would be done on which the Appellant stated that if the lineman is available it would be done that day otherwise it would be done definitely the next day. Thereafter, the Appellant asked him to pay the money. Further in his cross-examination, he has stated that when he went to the cabin of the Appellant and stated that he had brought the money demanded by him from Arvind Kumar, he refused to accept the money and told him that the PCO will be installed and he did not need the money and he would talk to Arvind Kumar at the shop. Even PW 7, the shadow witness in the departmental enquiry has stated that he did not exactly hear the amount of bribe and also the demand/acceptance of bribe nor seen the Appellant accepting of the bribe. The prosecution has also failed to prove the acceptance of bribe amount as PW 7 has stated that he did not hear or see anything between the two persons in the departmental enquiry and even in the Court he has stated that PW5 replied that he had brought the money but the same was little less, therefore the demand of bribe amount be reduced. Since this witness did not hear anything so he could not have even heard the reduction of the bribe amount. Even PW5 has failed to prove the acceptance of money as he has stated that the Appellant refused to accept the money and told him that PCO will be installed and he did not need the money and he told the Appellant to take 500/- by saying this he put the money in his pocket. The prosecution has also failed to prove the recovery of money from the Appellant as PW 5 in his cross examination has stated that after the CBI officers came in, he went out of the cabin of the Appellant and he did not know what happened thereafter. The story of PW5 of giving the bribe amount is unbelievable. PW 6 Sh. Surender Kumar has stated that he took search of the person of the Appellant and from his pant pocket 3-4 G.C. notes of 100 each were recovered and then subsequently it is stated that he was asked to take search of the Appellant and he recovered 350/- from the left side pant pocket and further he has stated that the CBI officer took out the money from the Appellant. Even though PW 7 had stated that CBI team officials recovered bribe amount from the Appellant but he did not remember exactly from where the money was recovered. PW 5 in his cross examination has not supported the signing of the handing over memo, recovery memo and the production memo Ex. PW 5/B, PW5/C and PW 5/D respectively. He stated that he cannot read English and he signed those documents on the directions of the CBI officials. Reliance is placed on Sita Ram vs. State of Rajasthan, 1975 AIR(SC) 1432, Jaswant Singh v. State of Punjab, 1973 AIR(SC) 707; Banamali Samal v. State of Orissa, 1979 AIR(SC) 1414, Gopal Krishan vs. State,1980 18 DLT 11 (2) SN, Som Nath vs. State,1990 42 DLT 38, Sunil Kumar Sharma v. State (CBI), 2007 139 DLT 407 to contend that mere recovery of money is not sufficient to raise presumption. Relying on Bhagwan Singh vs. CBI,2010 4 LRC 73 it is contended that though recovery of money raises some doubt, but doubt itself cannot replace the proof. Relying on Roshan Lal Saini vs. CBI,2010 4 LRC 138 it is contended that filing of complaint with CBI cannot be taken as substantive evidence of proof of allegations of demand of illegal gratification. It is thus prayed that the Appellant be acquitted of the charges framed.