P K GUPTA Vs. CBI

JUDGEMENT

(1.) THE appellant, a Junior Engineer, working with MCD at the relevant time, was convicted by learned Special Judge Shri R.K. Gauba under Section 120B, 161 of IPC and under Section 5(1) (d) read with Section 5(2) of Prevention of Corruption Act, 1947 (for short, "the Act"). He has been sentenced to undergo RI for three years with fine of 5,00/ - under Section 161 IPC and RI for four years with fine of 500/- under Section 5(2) of the Act. THE substantive sentences were to run concurrently. In default of payment of fine, he was to undergo additional RI for a period of three months on each count. THE appeal is directed against the impugned order of conviction and sentence respectively dated 30th January 2002 and 31st January 2002. THE co-accused Phool Singh (PS), who was working as Beldar in the MCD at the relevant time has since expired and the proceedings qua him stood abated in the trial court.

(2.) THE prosecution case as set out in the charge-sheet is that on 26th November 1986, a complaint dated 26th November 1988 was made by complainant Amarnath Babbar (PW2). It was alleged therein that at about 4 pm on 22nd November 1986, when he was carrying out repairs in his shop at Kishan Ganj Market, the appellant came along with Beldar Phool Singh (PS) and demanded 1,000/- to permit him to carry repairs and he also directed the money to be handed over to co-accused PS. On 25th November 1986, the appellant again along with PS came to his shop in the evening and asked for the money. Though, at the request made by the complainant, the appellant agreed to accept 700/- to be paid by next evening to PS, however, complainant could arrange only 500/- at the time of making the complaint. On the basis of this complaint, an FIR No. RC 73/86 (Ex.PW7/A) was registered. Inspector R.S. Jaggi (PW7), who was entrusted the same, decided to lay a trap. Two independent witnesses R. Murli (PW4) and BS Dahiya (PW6), both employees of LandDO, Nirman Bhawan were associated. In addition, the trap party included Inspectors P. Lal and R.N. Azad and SI Syed Wazaullah of CBI. PW4 R. Murali was to act as a shadow witness. A micro tape recorder was given to PW2 to record the conversation between him and the accused persons. THE complainant (PW2), as directed, had arranged five notes of 100/-each. THE number of these currency notes were noted down in the handing over memo (Ex.PW2/B). THE currency notes were given phenolPhthalein powder treatment. THE usual demonstration as to how the powder will react with sodium carbonate solution was given by Inspector Azad. THE trap party reached at the shop of complainant (PW2) and at about 4.45 pm, co-accused PS came to the shop and asked the complainant for the money 500/- which was passed onto him by the complainant (PW2) who also told him that the remaining 200/- shall be given after one or two days. THEreafter, the complainant gave pre-determined signal, whereupon members of the trap party reached there and PW7 caught hold of PS, who immediately dropped the currency notes. THE procedure regarding taking of hand wash of co-accused PS and the rest of the post-trap proceedings like taking hand wash, seizure of the tainted money, preparation of recovery memo etc. formed part of the post-trap recovery memo (Ex.PW2/D). THE hand wash of both the hands of co-accused PS turned pink. From the personal search of PS, another sum of 500/-was also recovered. Micro-cassette tape recorder was also recovered from PW2. Since the money was allegedly to be passed on to the appellant, another handing over memo (Ex.PW4/D) was prepared for 1000/-, with 500/- given to PS by the complainant (PW2) and 500/- collected by co-accused PS from another person. THEreafter, the trap party left for the office of the appellant and reached there at about 6 pm. Co-accused PS went to the office of appellant followed by Inspector P. Lal. THE shadow witnesses PW4 R. Murli waited near the door of the office. It is alleged that the appellant accepted 1000/- from PS with his right hand and put the same in his shirt pocket. THEreafter PW4 R. Murli gave a pre- arranged signal and the appellant was caught hold by PW7 Inspector Jaggi and Inspector P. Lal. On the directions of Inspector Jaggi, Inspector Azad recovered bribe money from left pocket of appellant and the same was handed over to PW6 B.S. Dahiya for tallying the numbers with currency notes already noted. Hand washes were taken which gave positive result. THE rest of the formalities relating to preparation of recovery memo, personal search memo, site plan, etc. were conducted and thereafter both, the appellant and co-accused PS were arrested. However, co-accused PS was released there on bail. After obtaining sanction for prosecution of the appellant as also of PS, they were sent to face prosecution.

(3.) THEREAFTER the statements of both accused persons (appellant and co-accused PS) were recorded separately under Section 313 Cr.P.C. The appellant admitted to be working as JE in the MCD at the relevant date. He expressed his ignorance about evidence concerning complaint by PW2 to CBI and the pre- trap proceedings as also the recovery of 500/- from PS. He admitted that co-accused PS had come to his room. He stated that he was going to the office of Zonal Engineer to deliver certain documents when he was caught hold of by CBI officials in the gallery and that his shirt was removed near CBI office, CGO Complex. He denied the validity of the sanction, terming the same to be illegal and accorded without application of mind. He also stated that co-accused PS was not working directly under his control, but had been deputed with other Beldar on demolition vehicle under the supervision of Zonal Engineer. He led no evidence in defence. Co-accused PS in his statement under Section 313 Cr.P.C also admitted that he was posted as Beldar with MCD at the relevant time. He admitted the evidence about his visit to the shop of complainant on 22nd November in the company of appellant, but added that he had been asked by the appellant to stand near the scooter. He denied evidence about demand of bribe or haggling over the amount of money. He showed ignorance about the complaint of PW2 to CBI and the preparations for laying trap. He also admitted visit to the shop of complainant on 26th November at about 4.45 pm, but stated that he had been sent there by the appellant. He also admitted evidence about he having received the currency notes (Ex. P1 to P5) worth 500/-from PW2 and also he having thrown the same on the ground. He admitted evidence about he having confirmed, to come to collect the money at the instance of Mr. Gupta, who was waiting in the office. He daimed that he had informed the CBI officials at that very stage that he had come to collect the money on the instructions of the appellant. He admitted that five other currency notes of 100/- were recovered from his personal search. He further admitted giving of 1,000/ - by CBI to him with instructions to pass on the same to the appellant in the event of specific demand and having gone with other members of the trap party to the office of appellant at about 6 pm. He stated the manner as to how he passed on the said money to appellant, who accepted the same and kept in his pocket, followed by CBI officials, catching hold of appellant. He did not admit the evidence about conversation between him and the appellant at that stage and showed ignorance about remaining evidence. He claimed that he had been falsely implicated by the complainant who was mixed up with the appellant. He referred to his earlier visits to the shop of complainant PW2 in the company of appellant on 22-11-1986 and 25-11-1986 when appellant had taken him along on his scooter, but claimed that he had been asked by the appellant to stand on a road side, while the appellant had gone on the pretext of talking with someone. He stated that he did not know with whom the appellant met or talked. He stated that on 25th November, 1986 on return from Kishan Ganj when he was standing near the scooter, the appellant had told him that he would be sending him to the shop of complainant (PW2) to collect money. He stated that he after having collected 500/- from a scooter repair shop in Pratap Nagar, had gone to the shop of complainant (PW2) and collected the money. He stated that he did not know as to what was the purpose of collecting money and he denied that he had any conversation with the complainant (PW2) and pleaded ignorance if conversation had been recorded in any cassette. He also questioned the correctness of conversation, stating that no such talks ever took place between him and the complainant (PW2) and the tape had been tampered with. He stated that the cassette (Ex.P11) did not contain his voice. He declined to lead any evidence in defence.