RAKESH KAPOOR Vs. STATE OF H.P.

JUDGEMENT

(1.) THIS appeal by Rakesh Kapoor, who at the relevant time was a member of one of the State Premier Services, i.e. H.P. State Administrative Service, is directed against the judgment, dated 16.10.2008, of learned Special Judge, Kangra at Dharamshala, whereby he has been convicted of offences, under Sections 7 and 13(2) of the Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 10,000/ -, for both the offences (compositely) and in default of payment of fine to undergo simple imprisonment for a further period of six months.

(2.) PROSECUTION case, which led to the trial of the Appellant, as it emerges from the evidence adduced during the course of trial, may be noticed. In January, 2003, Appellant had been posted as Divisional Tourism Development Officer, Dharamshala. One of the duties of Divisional Tourism Officer was to permit the running of buildings as guest houses/hotels, by registering them as such and fixing the tariff for different type of rooms/accommodation in the buildings. One Nirwan Singh constructed a building at Cheelgari. He appointed PW -1 Sukhjit Singh Sidhu as his Attorney for running a guest house in that building, after obtaining necessary permission from the Tourism Development Office. A Power of Attorney was executed in favour of PW -1 S.S. Sidhu by said Nirwan Singh, copy of which is Ext. P26. PW -1 S.S. Sidhu made an application Ext. P1 on 31.3.2003 for registration of the building as guest house and for fixing of tariff. He deposited the necessary fee of Rs. 100/ - on 10.4.2003. Building was inspected by the Appellant, in his capacity as Divisional Tourism Development Officer, on 28.4.2003. He told PW -1 S.S. Sidhu, at the time of inspection that the building was in order and that he could start running guest house in that building, immediately.

(3.) ON 5.5.2003, PW -1 S.S. Sidhu, accompanied by PW -3 Ashwani Bhatia (shadow witness) went to Police Station, A.C. Zone, Dharamshala, in the evening and lodged a report that on the previous day, i.e. 4.5.2003, he had received a telephonic call from the Appellant, informing him that his case for registration of guest house and for fixation of tariff had been cleared and that he could collect registration certificate and order of fixation of tariff from him, on the next following day, by paying him Rs. 10,000/ -. This amount was demanded by way of bribe. PW -1 S.S. Sidhu took PW3 Ashwani Bhatia into confidence, who happened to be his friend, and both of them decided to report the matter to the police. They carried with them ten currency notes of the denomination of Rs. 1000/ - each. On the basis of the report made by PW -1 S.S. Sidhu, FIR Ext. PW1/B was registered by PW -18 Inspector Dharam Chand. PW1 S.S. Sidhu was required to produce currency notes of Rs. 10,000/ -. He produced ten currency notes of the denomination of Rs. 1000/ - each, which he carried along. Those were treated with phenolphthalein powder and their numbers were noted down in a memo. which is Ext. PW1/D. It was demonstrated to PW -1 S.S. Sidhu as also his companion PW -3 Ashwani Bhatia how the solutions of phenolphthalein powder and sodium carbonate, when mixed, turned pink. Currency notes, treated with phenolphthalein powder, were returned to PW -1 S.S. Sidhu, with a direction not to fiddle with them until they were paid to the Appellant, on demand. PW -1 S.S. Sidhu and PW -3 Ashwani Bhatia were then directed to go to the office of Appellant. PW -3 Ashwani Bhatia was instructed to act as shadow witness. He was instructed to inform the waiting police inspector and other members of the party, by a pre -fixed signal, as soon as Appellant accepted the money from PW -1 S.S. Sidhu.