BHUPINDER SINGH SIKKA Vs. CBI

JUDGEMENT

(1.) By the present appeal, the Appellant lays a challenge to the judgment convicting him for offence under Section 7, 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988 (in short P.C. Act) and a sentence of Rigorous Imprisonment for a period of three and a half years, further to pay fine of '50,000/- and in default of payment of fine to further undergo Rigorous Imprisonment for a period of six months on both counts.

(2.) Briefly, the prosecution case is that M/s Foremost Chemicals, 37 kilometre Zone, Rohtak Road, Bahadurgarh, Haryana was insured against fire with New India Assurance Company Ltd., a Government Company as defined under Section 617 of the Companies Act, 1956 for an insured amount of '28 lacs vide fire policy Ex. PW1/A valid with effect from 24 th February, 1992 to 23 rd February, 1993. On 17 th July, 1992 major fire broke-out in the factory and thus a claim for '9.30 lacs approximately was submitted to the company at its office at Connaught Circus, New Delhi. The Appellant was processing the aforesaid insurance claim as the Administrative Officer of the Insurance Company. On 7 th January, 1993 the Complainant Sudhir Kumar, PW1, an authorized signatory of M/s Foremost Chemicals visited the office of the Insurance Company where the Appellant advised to meet him at his residence i.e. 129/A, DDA Flats, Gulabi Bagh, New Delhi 110007 on 8 th January, 1993 at about 8:00 a.m. for discussing the matter in detail. On 8 th January, 1993, PW 1 visited the residence of the Appellant at the appointed time when he was told that his case was processed and only formal orders from Sh. Sant Lal Tagra, Sr. Divisional Manager were awaited for the payment of the claim. The Appellant showed PW1 the claim file and demanded an illegal gratification of '1,00,000/- for the aforesaid work stating that the bribe amount would be shared between him and S.L. Tagra. The Appellant also stated that the file would be signed by Sh. S.L. Tagra only after receipt of the money and in case PW 1 wants he may confirm the same from Sh. S.L. Tagra that the bribe amount would be shared by him and he would clear the file only after receiving the money. The Appellant called PW1 to the office at about 1:00 p.m. to arrange his meeting with Sh. Tagra and stated that the bribe amount could be paid at the residence of the Appellant on 8 th January, 1993 at about 7:00 p.m. As PW 1 did not want to make the payment, he visited the office of CBI on 8 th January, 1993 at about 10:30 a.m. and submitted his written complaint Ex. PW1/D to S.P. CBI, Anti Corruption Branch, New Delhi. On the said complaint, FIR Ex. PW8/A was registered and a trap was laid. Two officers of Custom Department Mukesh Aggarwal, PW 2 and Shanti Swaroop PW3 were joined as the panch witnesses for the trap. Since there was a meeting at about One o?clock also at the office at Connaught Circus to verify the facts, PW 2 was directed to accompany PW 1 to the office of the Appellant posing himself as the business partner of PW1. Though Inspector A.G.L. Kaul and Inspector S.P. Punia also accompanied them however PW1 and PW2 were sent to the Appellant in his office. Both of them met the Appellant where PW 2 was introduced as the partner in the firm. The Appellant took both of them to the chamber of S.L. Tagra, Divisional Manager where, Tagra stated that the objections relating to the claim have been removed and PW 1 would get the cheque within 2 or 3 days. On PW2 asking about the payment to be made to him, S.L. Tagra stated that they should talk about the same to the Appellant. Thereafter, pre-raid proceedings were conducted. Number of Government currency notes were noted down vide memo Ex. PW1/G and phenolphthalein powder was put on them. Thereafter the notes were kept in a brown bag brought by the Complainant. PW 2 acted as the shadow witness posing as the partner of PW1. Trap team reached the residence of the Appellant. The appellant reached home around 9:00 p.m. and thereafter about 15 minutes later PW 1 and PW 2 entered the house of the Appellant, where the Appellant showed the claim file to the Complainant stating that the claim had been passed and only the signatures of Sh. S.L. Tagra were required. The Appellant obtained the signatures of the Complainant on two receipts tagged in the claim file as the same was required for completing the formality for issuing the claim cheque. On the Appellant demanding the bribe amount PW1 took out '1,00,000/- from the hand bag and gave the same to the Appellant who accepted the same with both his hands. In the meantime PW 2 came out of the room and gave the signal to the trap party who rushed inside and caught hold of the Appellant holding the tainted money in his hand. The Appellant tried to conceal the bribe amount under the table. The Appellant was apprehended and both his hands were washed in the sodium carbonate solutions separately and both the solutions turned pink. On completion of investigation, charge-sheet was filed. After recording of evidence, the statement of the Appellant under Section 313 Cr. P.C. and the defence evidence, the Appellant was convicted and sentenced as above.

(3.) Learned counsel for the Appellant contends that the prosecution has not adduced evidence to show that the Appellant was a public servant. PW 4 who accorded sanction for prosecution of the Appellant has also not stated that the Appellant was a public servant. Moreover, the circumstance that the Appellant was a public servant was not put to him in his statement recorded under Section 313 Cr. P.C. and thus the same cannot be used against him. As per the definition of the "public servant" under Section 2(c)(iii) of the PC Act, a public servant is a person who is in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government Company as defined in Section 617 of the Companies Act 1956. It is stated that the learned Trial Court erred in holding the Appellant to fall within the ambit of public servant?, since the Appellant was employed in a company which was acquired by the Government. There is a clear distinction between a company incorporated by an Act and company acquired by an Act. A person working in a company that has been acquired by an Act does not fall within the ambit of Section 2(c)(iii) of the P.C. Act. Even for taking judicial notice of a fact, the relevant documents have to be placed before the Court by the prosecution. Reliance is placed on State of Karnataka v. M. Muniswamy,2000 CurCriR 263. Neither the Complainant nor the shadow witness nor the trap witness i.e. PW 1, PW 2 and PW 3 have supported the prosecution case. The essential ingredient of demand has not been proved and thus the Appellant cannot be convicted for demanding and accepting bribe under the P.C. Act. In A. Subair vs. State of Kerala,2009 9 SCC 1985 it was held that in the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13(1) (d) cannot be held to be established. Relying on Banarasi Das vs. State of Haryana,2010 4 AD(SC) 305, it is contended that there has to be a positive statement of demand and acceptance by the public servant and the same cannot be established by drawing inference of demand and receipt of the illegal gratification from the fact that the money was recovered from the accused. Seeking support from C.M. Girish vs. CBI, 2009 AIR(SC) 2022, it is contended that the presumption to be drawn under Section 20 of the P.C. Act is not an inviolable one. The same can be rebutted by the accused either through the cross-examination of the witnesses cited against him or by adducing reliable evidence. Also it is equally settled that the burden of proof placed upon the accused person against whom the presumption is drawn under Section 20 of the PC Act is not akin to the burden placed on the prosecution to prove the case beyond reasonable doubt. Relying on these principles, it is contended that the finding of the learned Special Judge that an initial demand of bribe which led to the registration of the case is more or less established is perverse and bad in law.