KAMLA PRASAD Vs. CBI

JUDGEMENT

(1.) Both these appeals arise out of a common Judgment dated 19.08.2002 and the Order on Sentence dated 20.08.2002 of learned Special Judge Shri R.K. Gauba in CC No. 65/1994. Both the accused were convicted vide the impugned judgment under Section 120-B IPC and Section 7 and 13(1) (d) r/w Section 13(2) of Prevention of Corruption Act, 1988 (for short P.C. Act ) and sentenced to undergo Rigorous Imprisonment ( RI for short) for four years with a fine of 5,000/- each under Section120-B IPC and under Section 7 and under Section 13(2) of P.C. Act. In case of default in payment of fine, the accused were to undergo further RI for three months on each count. Since the evidence recorded was common and also the cases against both the accused were disposed of by a common judgment, these appeals are being disposed of by this common judgment.

(2.) The prosecution case as set out briefly is that one Mahesh Kumar (PW-3) had applied for transfer of his telephone connection to his new residence and an order (OB) in this regard was issued by the department in June, 1994. The connection, however, was not installed in spite of his repeated visits to the concerned office of MTNL and requests made to the concerned officers. At the relevant time, accused persons namely Gama Tiwari (hereinafter referred to as GT for short) and Kamla Prasad (hereinafter referred to as KP for short) along with accused Raj Karan (since deceased) were posted in the area as linemen and majdoor respectively. They were allegedly demanding 1,000/- as bribe for doing the needful. It is alleged that in the evening of 17.08.1994, they came to the house of the complainant and made specific demand of 1,000/-. As indicated, some of them was to come to his house next day i.e. on 18.08.1994 at about 4.30 pm for doing the needful against the receipt of money. The complainant made a complaint (Ex.PW3/B) to CBI on 18 th August, 1994 at 1:00 pm. The FIR was registered and a raid was planned. One public witness Mr. Arun Nayar (wrongly spelt as Anil Nayyar) (PW-1) was joined as a shadow witness and to remain close by to observe the proceedings that was to take place between the complainant and the accused persons at the time of transaction. The requisite formalities of pre-trap proceedings were conducted. The number of currency notes (Ex.P-6 to Ex.P-12) brought by the complainant were noted down in the handing over memo of the pre-trap proceedings. The demonstration of the process as to how chemical used on the trap money was to react was given by the trapping officer Mr. Rajesh Kumar (PW-11). As per the prearranged programme, the complainant and shadow witness were present in the drawing room of the house of the complainant, whereas other members of the raiding party took nearby positions. The accused persons arrived at the residence of the complainant, where the trap money was demanded by the accused and was handed over by the complainant to accused KT and GT. On giving the pre-arranged signal by the shadow witness, the members of raiding party arrived and apprehended the accused persons and then they effected recovery of the tainted money from accused GT. The accused were arrested subsequently and sent for prosecution. In the court, the accused did not plead guilty to the charges framed against them. The prosecution examined 11 witnesses in support of its case. Statements of accused were recorded separately under Section 313 Cr. P.C. wherein both the accused persons denied the prosecution case. Accused GT stated that the complainant had told him that he had a talk with the Inspector and that he (complainant) forcibly tried to put the tainted money in the front pocket of his shirt saying the same to be given to the Inspector and that when he refused to accept the money and resisted, the tainted money fell down on the ground which he instantly picked up in order to hand over the same to the complainant and in the meanwhile CBI officials entered in the drawing room and apprehended him. He stated that Inspector Rajesh Kumar (PW- 11) had taken the tainted notes from him and thereafter forced him to count them with his hands. He, however, conceded that he was made to dip his left and right hand fingers in two separate glasses of water and each wash had turned pink, but he claimed that no solution had been prepared and the washes had been taken in plain water. He also admitted recovery of tainted notes (Ex.P-6 to Ex.P-12) as per recovery memo Ex. PW1/E. He also admitted that he along with accused KP was on duty on 18.08.1994 and that he was assigned the duty relating to installation of the phone. Accused KP while denying that he had demanded bribe money, admitted that he was with accused GT for the purpose of installation of telephone connection. He also admitted recovery of tainted money from accused GT and taking of washes of his hands. His explanation in this regard is different to that of accused GT.

(3.) From the admitted or undisputed facts it comes out to be that the accused persons were public servants, being lineman and majdoor of MTNL at the relevant time. At the relevant time on 18.08.1994, they were on duty along with accused Raj Karan (since deceased). They were to install a telephone connection against OB issued in June, 1994 at the new residence of complainant. They had been issued the needed telephone instrument in July, 1994 against the said OB. It is also admitted that there was considerable delay in installation of telephone connection despite issuance of OB number in June, 1994.