I.P.S. AHLUWALIA Vs. C.B.I.

JUDGEMENT

(1.) By the present appeal the Appellant assails the judgment dated 7th July, 2003 convicting the Appellant for offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (in short the PC Act) and the order on sentence dated 8th July, 2003 directing the Appellant to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 5000/- and in default of payment of fine to further undergo rigorous imprisonment for six months on each count.

(2.) Learned counsel for the Appellant submits that statements of the complainant, his wife PW4 and PW9 are not corroborated either by the shadow witness or the recovery witness. Further even as per the complainant himself the order on the valuation of the Assistant Commissioner had already been passed by the Deputy Commissioner which was in the knowledge of the complainant and thus the Appellant had no role in allegedly showing favour by under-valuing. The complainant stated that the alleged incident took place on 2nd January, 1996 which has been ignored by the learned Trial Court as a minor discrepancy. The Appellant was not the adjudicating authority nor the valuing authority and thus had no role to play and could not have thus demanded the bribe. As per the case of the prosecution, the Appellant is alleged to have given his name and phone number to contact him which was seized, however the same was never sent to CFSL nor produced in evidence to show that the same was written by the Appellant. Further there is no material on record to show that the telephone number written on the chit or on the one on which alleged call was made belonged to the Appellant. Facts that have not been proved have been asked in the statement under Section 313 Cr.P.C. thus causing serious prejudice to the Appellant. The voice samples of the Appellant were not taken and the alleged tape-recorded version was never sent to the CFSL. All the three independent witnesses i.e. PW3 Sangeeta Madan, PW6 P.L Bains and PW7 V.K. Sharma, the witnesses of alleged recovery have turned hostile. PW4 the complainant was not competent to have recognized and proved the voice of the Appellant as even as per the case of the prosecution, he met the Appellant only once. As per PW4 himself he was a regular visitor to foreign countries as he was doing musical programmes, hence he was duly aware of the intricacies at the airport and thus he was not required to ask the same from anybody. Both PW4 and PW9 admit having deposited the fine of Rs. 1000/- each and hence no cause for demanding bribe from the PW4 arose. PW8 S.K. Peshin, Trap Laying Officer (TLO) admits that he was outside when the alleged transaction took place and thus he was neither a witness to the demand nor acceptance. Two Police witnesses i.e. S.I. Shobha Dutta and DSP Ramnish, who were inside have not been examined. Further PW8 stated that the money was taken in the right hand and kept in the left pocket whereas PW4 and PW9 stated that the same was kept in the right hand side pocket. Copies of the transcript were neither sealed nor deposited in malkhana. As per PW9 the pocket wash was not pink in colour. Reliance is placed on Nilesh Dinkar Paradkar, 2011 4 SCC 143; Ram Singh & Ors. Vs. Col. Ram Singh, 1986 AIR(SC) 3; Asraf Ali Vs. State of Assam, 2008 16 SCC 328; Meena Vs. State of Maharashtra, 2000 5 SCC 21 and Dev Raj Arora Vs. State (Thr. CBI),2012 2 JCC(Del) 1045.

(3.) Learned counsel for the CBI on the other hand contends that part testimony of hostile witnesses can also be looked into which corroborate the prosecution case. The prosecution case stands proved by PW4, the complainant and PW9 his companion. Part testimonies of PW3, PW6 and PW7 also corroborate the version of the complainant that the Appellant demanded bribe and accepted the same. PW4 and PW9 have categorically stated that the money after receiving was kept in the right hand side pocket and the same was washed which gave pink colour. PW6 supports the case of the prosecution to the extent that the currency notes were seized and on comparison the numbers were tallied. Further in view of the fact that in the statement under Section 313 Cr.P.C., the Appellant has given incorrect answers to question numbers 27 to 30 by giving a complete denial, the same is required to be used against him. During the course of arguments learned counsel for the CBI admitted that in view of the fact that the tape-recorded conversation was neither sealed nor the voice sample was identified by a person acquainted nor sent to the CFSL, the said evidence cannot be looked into. In view of the fact that the demand and acceptance has been proved, presumption under Section 20 of the PC Act is duly raised against the Appellant, who has not discharged the burden that shifted on him by giving cogent explanation in the statement under Section 313 Cr.P.C. Reliance is placed on Krishna Ram Vs. State of Rajasthan, 2009 11 SCC 708; State represented by CBI, Hyderabad Vs. G. Prem Raj, 2010 1 SCC 398; Subbu Singh Vs. State by Prosecutor, 2009 6 SCC 462.