P N DOGRA Vs. C B I JAMMU

JUDGEMENT

(1.) THE appellant has been convicted by the learned Special judge, Anti Corruption, Jammu vide order dated 30. 04. 2004 under section 161 RPC and section 5 (2) of the Prevention of Corruption act 2006. He was ordered to undergo simple imprisonment of one year under section 5 (2) of the Prevention of Corruption Act 2006 and one year for the offence punishable under section 161 RPC. It was ordered that both the sentences shall run concurrently. It is under these circumstances, the appellant has preferred this appeal for setting aside the order of learned Special Judge Anti corruption, Jammu dated 30. 04. 2004.

(2.) THE facts of the case are that a written complaint was filed by one Rajesh Kumar Jagotra son of Sh. Om Parkash Jagotra resident of 5/220, Indira Vihar, Jammu before the CBI, Jammu wherein it was alleged that the petitioner-accused was demanding rs. 500/- as a bribe for making the telephone connection functional of the complainant. It is averred in the complaint that the complainant had applied for a telephone connection and was informed by the SDO, New Plot that his wait list has matured and telephone connection will be installed within three/four days. The complaint further reveals that two linemen of the telephone department installed telephone at his house. The telephone had not become functional and on the asking of the complainant when telephone would be made functional, he was informed by the linemen that he should contact Mr. Prem Dogra for this purpose. The complainant contacted Mr. Dogra who demanded Rs. 500/- as bribe for making the telephone functional. The complainant had refused to pay the amount to the accused and asked him to make the telephone functional. The accused categorically stated that the telephone will not be made functional unless Rs. 500/- is paid. This complaint was filed on 08. 03. 2000. On the basis of the complaint, cbi registered a case against the accused and started process of investigation. The Investigating Agency recorded the statement of ten witnesses and submitted its report. In the investigation, it was revealed that the complainant's father had applied for a new telephone connection vide No. 0/3/96 dated 31. 07. 1997 and was given a wait list No. 13796. The telephone department had directed the concerned to make telephone No. 530548 functional on 02. 03. 2000. But the accused P. L. Dogra who was responsible for the installation of telephone set and line at the residence of complainant intentionally created some defect in the route due to which phone did not function. It is a positive case of the investigation that the telephone was made functional on 02. 03. 2000 but some defect was created enroute by the accused person as a result of which telephone did not become functional. The accused was put to trial and accordingly charged for offences under section 5 (2) of the Prevention of Corruption Act and under Section 161 RPC. The charges framed against the accused in nutshell are that accused had not made the telephone functional for a motive of receiving Rs. 500/- as bribe. During the course of the trial, the prosecution has examined ten witnesses. The witnesses examined by the prosecution can easily be grouped into four categories. i. e. complainant, independent witnesses, investigating Officers and official witnesses. The complainant, Rajesh Kumar Jagotra, in his statement stated that he went to the office of the CBI on 07. 03. 2000 along with a written complaint that the accused, namely, Sh. P. N. Dogra was demanding Rs. 500/- as a bribe for making his telephone functional. The said complaint was written in Hindi. He was asked to come on 08. 03. 2000 to the C. B. I. office. He was introduced by the CBI to two independent witnesses, namely, Mohd Latif and b. D. Badola. They questioned him about the contents of the complaint and he certified its authenticity. The pre-trap demonstration was done by the officials of the CBI. A piece of paper was dusted with phenolphthalein powder in presence of the independent witnesses. One of the witnesses, namely, Mohd Latif was asked to touch the said paper whereafter his hand wash was taken which turned the colour of the solution into pink. The said solution was sealed in a bottle after the demonstration. Thereafter, bribe money was handed over to Dy. S. P. , C. B. I. Five currency notes of Rs. 100/- denomination were handed over to the Dy. S. P. All the members of the trap team were directed to wash their hands. One of the members of the trap team dusted the currency notes with phenolphthalein powder. After noting down their numbers, the memo was prepared according to pre-trap proceedings. The tainted money was put in the pocket of the complainant and he was asked not to touch the said notes before handing over to the accused. Mohd Latif witness was directed to hear the conversation between the accused and the complainant. The independent shadow witness Mohd Latif had to support the story of the complainant regarding the demand of money made by the accused at the place of occurrence. The complainant along with independent shadow witness, namely, Mohd Latiff entered into the room of the accused where the accused demanded money before making the telephone functional. On this, the complainant informed the accused that he had brought Rs. 500/- with him and whereafter he paid Rs. 500/- to the accused. The money was accepted by the accused with his right hand and put it into his left hand and after counting it put the same into the pocket of his pant. The independent witness, namely, Mohd Latif came out of the room at that juncture and informed the raiding party about the same. The raiding party entered the office of the accused and two officials of the raiding party caught hold of the hands of the accused and took him to adjacent room where recovery was effected from the pocket of the accused. The complainant stated that he did not know the name of the person but other members of the trap team had identified the person who made the recovery of the bribe money from the pocket of the accused. Mr. B. D. Badola other independent witness was asked to tally the numbers of the currency notes with the slip on which he had noted them down and they tallied with his notings. The pocket wash of the accused was also taken and the colour of that solution also changed into pink. The said solution was sealed in a bottle. In cross-examination, the complainant states that the complaint was not written by him but by his friend who was well conversant with the hindi. He further states that tainted money was not recovered by mr. Badola, the independent witness, but by the officials of the c. B. I. The money was recovered from the right pocket and not from the left pocket as mentioned in the FIR. Seizure and hand wash was not conducted in the room where accused was sitting. The complainant has admitted that he was admitted in the psychiatric hospital. The complaint against him was also filed by a retired Sessions Judge Sh. Harban Lal. He also admits that a shadow witness, namely, Mohd Latif had accompanied him inside room where demand of money and acceptance was witnessed by the said witness. He showed his ignorance whether hand wash of two CBI officials who had caught hold the accused's right and left hands were washed. He also states that the money was recovered from the pocket of the accused by two CBI officials and not by mr. Badola. It is also come in his statement that the accused has demanded money from the complainant on 05. 05. 2000 mentioned of which he has not made in the complaint.

(3.) SH. Mohd Latif shadow witness has stated in his statement that on 08. 03. 2000 he went to the office of CBI. He was shown a copy of the complaint filed by the complainant on the basis of which C. B. I. registered a case and investigation was in progress. Dy. S. P. informed that the accused was demanding money to make his phone functional and for doing so Rs. 500/- was demanded as a bribe from the complainant. He was instructed to accompany the complainant to the office of the accused and he should be witness to the demand of money made by the accused. The accused entered into conversation with the complainant which was not heard by the witness. He was out side the room. He did not see the complainant handing over the bribe and neither did he hear the conversation between the complainant and the accused regarding the demand of money. It was a complainant who gave cue to the raiding party that the accused had accepted the money. He did not know the name of the person who effected the recovery of the money from the pocket of the accused. He admits that the hand wash of the accused was taken and colour of the solution changed into pink. He admits that there was a scuffle between the accused and the CBI officials whose hands were caught hold by the raiding party. He states that the bribe money was not recovered either by him or by Mr. Badola from the pocket of the accused and same was done by some officer of the C. B. I. He admits that the officials of the CBI harassed and slapped the accused during raid. Mr. B. D. Badola in his statement stated that on 08. 03. 2000 he went to the office of the C. B. I. He was introduced to one Mohd latif. A copy of the written complaint filed by the complainant was shown to him in which it was stated that the accused had demanded amount of Rs. 500/- from him for making his telephone functional. He questioned the complainant about the authenticity of the complaint who admitted the contents thereof, where after he too signed the said complaint marked as EXPW-DPB-12 in token of its authenticity. The pre-trial demonstration was conducted in his presence. According to the witness, the pre-trial demonstration which was conducted in his presence relates to the number of notes alleged to be tainted money which was to be handed over to the accused. The said numbers were entered into the memo prepared by the Investigation Officer. The notes were dusted with powder and thereafter same were put into the pocket of the complainant which was to be handed over to the accused. He states that Mohd Latif shadow witness was directed that he has to witness the acceptance and recovery of the money. Said Mohd latif was instructed to give signal that the money was accepted by the accused, so that the raiding party could come and recover the same from him. He states that both Mohd Latif and the complainant entered the room of the accused and after sometime mohd Latif gave signal indicating that money has been accepted by the accused. He also admitted that both the hands of the accused were caught hold by the CBI officials and he was taken to next room for effecting the recovery of tainted money. The hands of the accused were put in the sodium chloride solution which turned into pink. It is also admitted by him that tainted money was recovered by him from the pocket of the accused. He admits his signature on the seizure memo prepared by the officials of the c. B. I. during post trap proceedings. In his cross-examination, the witness stated that he did not know whether any search was conducted by the raiding party before the trap. He also admits that there were 8 to 10 people in the office of the accused at the time of raid and the hands of the accused were held by two officials of the c. B. I. He admits that accused has not demanded any money nor accepted the same in his presence. He also shown his ignorance as to from which pocket money was recovered from the accused. He also states that the hand wash of the person who took the hand wash of the accused were not taken. He did not see the slip on which numbers of notes were noted.