OM PRAKASH Vs. CBI

JUDGEMENT

(1.) This appeal is directed against the judgment dated 26 th February 2002 and order on sentence dated 27 th February, 2002 of learned Special Judge Shri R.K. Gauba whereby the Appellant Om Prakash was convicted for the offence under Section 120B IPC read with Section 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (for short, "the Act") and Section 7 and Section 13(2) read with Section 13(1)(d) of the Act and was sentenced to undergo rigorous imprisonment for five years with fine of '500/- on each count and in default of payment of fine to further undergo rigorous imprisonment for a term of three months each. The substantive sentences were ordered to run concurrently.

(2.) The prosecution case as set out was that Rajesh Kumar (PW2/ Complainant) made a complaint to CBI on 7 th April, 1995 against the Appellant/accused. The genesis of the complaint is regarding pendency of an application made by the father of the complainant for grant of license for running a floor mill (chakki). The co-accused Manohar Lal was working as Inspector in the said Licensing Department at the relevant time. PW2 met him on 6 th April, 1995, accompanied by one Pradeep Kumar Berry (PW8), an acquaintance of his father. The co-accused demanded a bribe of '10,000/- for issuing license. Of this, he demanded '5,000/- to be paid in his office between 3-5 pm on the next day i.e. 7 th April, 1995 and the balance to be paid after the license was issued. The co-accused also informed the complainant that if the bribe money was not paid, the work would not be done. Based on this complaint of PW-2, an FIR was registered which was marked to Inspector R.S. Tokas (PW7), TLO, who decided to lay a trap. He joined J.C. Sharma (PW4) and Amar Singh (PW5), the employees of FCI as independent witnesses. As per the pre-arrangement, the complainant arranged 50 currency notes of '100/- each. Their numbers were noted down and they were given the usual treatment of phenolphthalein powder. PW7 arranged a demonstration and thereafter the treated currency notes were handed over to the complainant with the instructions to pay the same to the accused only on a specific demand being made. PW5 Amar Singh was to be a shadow witness and was instructed to remain close to the complainant. PW8 was allowed to accompany the complainant and the shadow witness. The trap party went to the office of Licensing Department of MCD at about 3.45 pm on 7 th April, 1995. PW2 accompanied by PW5 and PW8 went inside the office to contact the co-accused while other members of the trap party remained outside. After sometime, the complainant PW2 with PW8 and another person, later identified as appellant/accused Om Prakash, were seen coming out of the office and going towards the scooter stand. PW7 accompanied by other members of trap party also reached that place and apprehended the appellant. It is alleged that complainant and shadow witness informed that when they went to the office, the co-accused asked them to hand over the entire money to appellant Om Prakash. Accordingly, while the appellant was coming out of the building with the complainant, he demanded the money from the complainant, upon which the complainant handed over the money to him. The Appellant accepted the money with his right hand and put the same into the left side pocket of his pant. The Appellant was apprehended and brought to the room of Shri Shiv Kumar (PW3), the Administrative Officer of the Factory Licensing Department. A search of co-accused Manohar Lal was made, but he had managed to slip out and was later apprehended. PW7 got washes of both the hands of the Appellant in separate solutions of sodium carbonate which turned pink. The trap money was recovered and seized. The wash of left side pocket of pant of the Appellant was also taken in separate solution of sodium carbonate which also turned pink. The three washes were put into separate empty bottles and were later got analyzed from CFSL vide report (Ex.PW1/A) confirming the presence of phenolphthalein powder. In the personal search of the Appellant taken on the spot, in addition to cash amount, a bunch of some leaves and keys of Bajaj scooter were also recovered. At the instance of the Appellant, the dickey of the Bajaj scooter was opened. It was found to contain some documents which included the file containing some sheets pertaining to the license applied for by the father of the complainant. The necessary sanction for prosecution was granted by Assistant Civil Engineer, MCD vide order dated 17 th June, 1995.

(3.) The charge-sheet was filed on 10 th October 1995. The Appellant pleaded not guilty to the charges framed against him under the aforementioned offences. The prosecution examined as many as 9 witnesses. In his statement under Section 313 Cr.P.C., the Appellant denied that he had gone out with the complainant (PW2) and PW8 on the asking of co-accused Manohar Lal or had demanded money outside the office or that he had received any such money from the complainant. He claimed that he had gone to MCD Office on 7 th April, 1995 to deposit license fee pertaining to his license application, where he saw 2-3 CBI officials fighting with security guard of MCD. He intervened and told the officials that public is not permitted inside the hall, but CBI officials started fighting with him, whereafter the complainant forcibly put the tainted money in the left pocket of his pant, which he had taken out and thrown on the ground. He alleged that CBI officials and the complainant had then lifted the money from the ground and forced it into his hand, whereafter he was apprehended and taken to the office of PW3. He alleged that he had been beaten by CBI officials who had thereafter seized his scooter from his residence. The Appellant examined two witnesses namely DW2 and DW3 as his defence witnesses. The co-accused Manohar Lal (since deceased) had also examined one witness i.e. DW1 in support of his defence.