PARDEEP KUMAR SHARMA Vs. STATE

JUDGEMENT

(1.) In this appeal, the appellant has assailed the judgment dated 29.12.2007 passed by the Special Judge, Anti-Corruption, Jammu, by which the appellant has been convicted under Section 5(2) of the Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for a period of two years, with the payment of a fine of Rs.5,000/- in default whereof he has been directed to undergo rigorous imprisonment for a further period of two months. The appellant has also been convicted for an offence under Section 161 RPC and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.5000/- failing which it has been directed that he shall undergo rigorous imprisonment for a further period of two months. It has also been directed that both the sentences shall run concurrently. The appellant has craved the indulgence of this Court in setting aside the judgment of conviction of the trial Court and acquitting him of the charges leveled against him.

(2.) The facts of the case chiseled in a nutshell are that an FIR for offences under Section 161 Cr. P.C. and 5(2) read with 5(1)(d) of the Jammu and Kashmir Prevention of Corruption Act , was registered against the appellant on the basis of an oral complaint of the complainant, namely, Layaqat Ali S/o Sh. Sain Ali R/o Sector-C, Sainik Colony, Jammu. This complaint was reduced to writing in English in the office of CBI/ACB, Jammu. The complainant stated in the complaint that the appellant demanded an illegal gratification of Rs.1500/- from him for handing over a cheque relating to an accidental claim of the vehicle of his brother. On the registration of the case, a trap team comprising of CBI Officers/Officials and two independent witnesses, namely, Sh. D. S. Sharma, Divisional Consumer Manager and Sh. Padam Pandey, Divisional Retail Manager, both working in the Indian Oil Corporation Ltd., Jammu, was constituted. In the pre-trap formalities, a practical demonstration of the chemical reaction of phenolphthalein powder with sodium carbonate solution was given to the members of the trap team. The complainant produced seven currency notes. These were treated with phenolphthalein powder and were kept in the upper left pocket of the complainant with the direction to hand over the same to the appellant, if he demands the same. The numbers of the currency notes were incorporated in the pre-trap memo. Sh. Padam Pandey was requested to act as a shadow witness and try to remain in the close proximity of the complainant and also to hear the conversation of demand and acceptance of bribe money between the complainant and the appellant. He was also requested to give a signal to the members of the trap team by combing his hair with his left hand after the transaction of the bribe was over. The trap team accompanied by the complainant and the two independent witnesses left the CBI office at 13.15 hours in official Gypsies and two wheelers and reached Gandhi Nagar, Last Morh, Jammu, at 1325 hrs. The complainant stood on the road side at the prefixed place with the appellant. The other members of the trap team and the witnesses took suitable positions in front of different shops situated on the road. The appellant reached at the spot on a Vespa Scooter. He stopped the scooter in front of the complainant and asked him to sit on the scooter. Thereafter he drove the scooter towards Gandhi Nagar, Police Station through an inner road. The independent witnesses and the members of the trap team followed him on two wheelers and the Gypsies. The appellant stopped his scooter in front of Police Station, Gandhi Nagar, for a minute. He then drove back towards the main stop Gandhi Nagar, and finally stopped his scooter in front of Arches Gallery near Bansi Temple. He demanded Rs.1500/- from the complainant and on this, the complainant took out the tainted money from his pocket and kept the same in the left outer pocket of the jacket of the appellant. The complainant after keeping the said amount in his pocket told him that the Cheque may be handed over to him. On this, the appellant took out the Cheque bearing No.SBP 156640 dated 29.01.2004 relating to the accidental claim of his brother for an amount of Rs.30650/- from his pocket and handed over the same to the complainant. Immediately thereafter, the members of the CBI team accompanied by the independent witnesses challenged the appellant. They disclosed their identity to him. They held the appellant by his arms. He was put in a Gypsy along with the independent witnesses, as a number of persons gathered on the spot. The wife of the appellant also appeared there and she raised a hue and cry, which resulted in a commotion. Since the situation was not conducive and did not permit the continuation of further proceedings on the spot, as such the appellant was taken towards the office of Branch Manager, NIC, Branch Office-III, Gandhi Nagar, Jammu. On the way, the vehicles were stopped. The independent witness Sh. D. S. Sharma, recovered seven number of tainted currency notes from the outer pocket of the jacket of the appellant. They counted the notes and tallied their serial numbers with the ones already incorporated in the pre-trap memo and found them to be correct. The currency notes were seized by the CBI team. After this, the appellant was taken to the office of Branch Manager, NIC, Gandhi Nagar, where his hands were washed in the solution of sodium carbonate but the colour of the solution did not change. Similarly the lining wash of the left side external pocket of the appellant was also taken in the solution of sodium carbonate and the colour of the said solution turned pink. Post trap memo was prepared on the spot in which all the details were incorporated and it was signed by all concerned. The appellant was arrested on the spot.

(3.) After the culmination of the investigation of the case, a final report for the commission of offences falling under Section 161 RPC and Section 5(2) read with 5(1)(d) of the Jammu and Kashmir Prevention of Corruption, Act, 2006, was laid against the appellant before the trail Court. The appellant was arraigned on a charge for the commission of the aforesaid offence by order dated 20.05.2004 of the trial Court. The appellant pleaded not guilty and claimed to be tried. In support of the charge, so framed against the appellant, the prosecution produced the witnesses, namely, C. L. Bansal, PW-1, Padam Pandey PW-2. D. S. Sharma PW-3, Layaqat Ali PW-4, K. C. Sharma PW-5, Fazal Hussain PW-6, P. S. Jamwal PW-7, T. S. C. Bose PW-8 and Vijay Sadhoo PW-9. After the closure of the prosecution evidence, the statement of the accused/appellant as envisaged under Section 342 of the Code of Criminal Procedure was recorded by the trial Court. The accused/appellant denied the occurrence and pleaded his innocence. The accused/appellant did not opt to produce any evidence in defence and accordingly, the case was posted for advancing arguments, where-after the accused/appellant was convicted and sentenced for the offences detailed above.