Delhi High CourtKalyan Singh vs State Of Delhi on 15 July, 2013Author:Sunita GuptaBench:Sunita Gupta$

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                   Date of Decision: 15th July, 2013


+                  CRL.A. 268 OF 2004
       KALYAN SINGH                               ..... Appellant
                         Through      Mr. K.B. Andley, Sr. Adv.
                                      with Mr. M. Shamikh, Adv.
                         versus

       STATE OF DELHI                             ..... Respondent
                    Through           Ms. Fizani Husain, APP

CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA

                         JUDGMENT: SUNITA GUPTA, J.1.     Challenge in this appeal is to the judgment dated 29 th March,

2004 and order on sentence dated 2nd April, 2004 arising out of CC

No. 13/1999 in case FIR 3/94 PS Anti-Corruption Branch whereby

the appellant was convicted for offences punishable under Section 7

and 13(2) r/wSection 13(1) (d)of Prevention of Corruption Act, 1988

and sentenced to undergo rigorous imprisonment for a period of one

year and also to pay fine of Rs.500/-, in default of payment to

undergo further rigorous imprisonment for three months on eachCrl.A.268.2004                                            Page 1 of 16count for his convictions underSection 7&13 (1) (d)of Prevention

of Corruption Act, 1998.2.     Prosecution case, in brief, is that the appellant was employed

in Delhi Electricity Supply Undertaking (DESU) in February 1994

and was posted at DESU Office in Keshav Puram those days. On 3 rd

February, 1994, at about 10:00 a.m. one Hari Chand went to the

Anti-Corruption Branch office and lodged a complaint against the

accused, inter alia, alleging that on receipt of excess electricity bill in

respect of his residential house in Hansapuri Road, Trinagar, Delhi,

he had contacted the accused on 1st February, 1994. The accused had

asked him to come on 2nd February, 1994 and on 2nd February, 1994,

when he contacted the accused, he demanded Rs.300/- as bribe for

rectifying his electricity bill and also told the complainant that in case

he wanted to get his bill rectified, he will have to pay Rs.300/-

otherwise he should deposit the bill amount which, as per the

complainant, was Rs.791/-. At that time, the complainant expressed

his readiness to give that much money to the accused. However, he

was not willing to pay any bribe to the accused.            As such, he

requested for taking necessary action against the accused.Crl.A.268.2004                                                 Page 2 of 163.     In view of the allegations of demand of bribe by a public

servant made by the complainant in his aforesaid complaint, the

officials of Anti-Corruption Branch decided to lay a trap for

apprehending the accused red handed while accepting bribe. One

government servant was associated for the trap to act as a panch

witness. The complainant produced two currency notes of Rs.100/-.

It was explained to the complainant and the panch witness as to how

the accused was going to be trapped. The currency notes produced by

the complainant were treated with phenolphthalein powder and a

solution of sodium carbonate was also prepared. It was explained to

them that if anybody touches the phenolphthalein treated notes and

then fingers of that person are dipped in colourless solution of sodium

carbonate that solution would turn pink.      Raid officer then gave

practical demonstration also and thereafter that solution was thrown

away and those notes were returned back to the complainant for being

used as bribe money for the trap.       Necessary instructions were

imparted to the complainant and the panch witness for being followed

by them during the trap. The complainant was told to keep the panch

witness close to himself at the time of trap so that panch witnessCrl.A.268.2004                                             Page 3 of 16could hear his talks with the accused and also see the transaction of

acceptance of bribe money by the accused and the panch witness was

directed to give a signal to the raiding party by moving his hand over

his head on being satisfied that the accused had accepted the money

from the complainant as bribe.4.     Thereafter, the raiding team comprising of complainant, panch

witness and some officials of Anti-Corruption Branch office headed

by Inspector Ramesh Singh went to the office of accused.

Complainant and panch witness were asked to contact the accused for

the transaction of handing over of bribe money to the accused by the

complainant as per the plan. The accused was found available in his

office and he told the complainant that his bill had been rectified and

then he took out the corrected bill from the drawer of his table.

Thereafter the complainant told the accused that he had brought the

amount of Rs.300/- as demanded by him and then the accused told the

complainant to give him the money. The complainant took out the

phenolphthalein treated notes and gave the same to the accused who

accepted them with his left hand.    The panch witness gave the pre-

arranged signals to the members of the raiding party and thenCrl.A.268.2004                                             Page 4 of 16members of the raiding party rushed to the spot. They were informed

by the complainant that accused had accepted the bribe money and

was holding the same in his left hand fist. The raid officer disclosed

his identity to the accused and informed him that he had accepted

Rs.300/- as bribe from the complainant for correcting his electricity

bill. The accused confessed his guilt and sought pardon. Thereafter,

the raid officer recovered the bribe money from the left hand of the

accused. Numbers of those recovered notes tallied with the numbers

earlier noted in the pre-raid proceedings.      Then the solution of

Sodium Carbonate was prepared at the spot in which wash of left

hand of the accused was taken and that solution turned pink which

confirmed that accused had accepted bribe money from the

complainant.     The solution was then transferred into two bottles

which were sealed and labelled and seized vide memo Ex.PW-5/B.

The tainted notes were also seized by the raid officer at the spot vide

memo Ex.PW-5/A. Post raid report Ex.PW-6/A was also prepared at

the spot by the raid officer. Raid officer then prepared a rukka

Ex.PW-8/A and sent the same to Anti-Corruption branch through a

constable for registration of an FIR underSection 7/13of PreventionCrl.A.268.2004                                             Page 5 of 16ofCorruption Act, 1988on the basis of which FIR Ex.PW-8/B was

registered.5.     Further investigation was handed over to Inspector Sobhan

Singh who prepared site plan Ex.PW-9/A of the place of acceptance

of bribe by the accused. He also recovered the bill Ex.PW5/D of the

complainant from the table drawer of the accused and seized it vide

memo Ex.PW5/E.        Inspector Sobhan Singh deposited the case

property in the Malkhana. During the course of investigation, the

same were sent to CFSL for chemical analysis and later on CFSL

report Ex.PW4/A was obtained. As per the report, the contents of the

bottle gave positive test for the presence of phenolphthalein and the

sodium carbonate.6.     On completion of investigation, a charge sheet was submitted

against the accused on 22nd January, 1999 underSection 7and13(1)(d)of Prevention of Corruption Act.        Charges under the

aforesaid Sections were framed against the accused to which he

pleaded not guilty and claimed trial.7.     In order to substantiate its case, prosecution examined 14

witnesses. Statement of the accused was recorded under Section 313Crl.A.268.2004                                            Page 6 of 16Cr.P.C. wherein he denied the case of prosecution, claimed innocence

and pleaded false implication in the case. He did not prefer to lead

any defence evidence. After hearing learned counsels for the parties,

impugned order was passed which is the subject matter of present

appeal. The impugned judgment has been basically challenged by the

learned counsel for the appellant on following counts:-(i) No sanction was obtained prior to launching the

                 prosecution against the appellant. It was submitted that

                 the appellant was suspended from government service

                 after his apprehension in the present trap and he

                 continued to remain under suspension till the age of his

                 superannuation and his suspension was never revoked.That being so, he continued to be in service and could

                 not have been retired. Under the circumstance, the Court

                 could not have taken cognizance against him without

                 there being a sanction for his prosecution from the

                 competent authority as provided underSection 19(1)of

                 the Act. Reliance was placed on a judgment of MadrasCrl.A.268.2004                                                Page 7 of 16High Court,T.S. Ramaswamy Vs. State of Tamilnadu,

                 1994 Cri.LJ 545.(ii)      The appellant was posted in Keshav Puram area. He was

                 not dealing with the electricity bill matters of the area of

                 Trinagar where the complainant resided. As such, he

                 was not in a position to get the amount of bill in question

                 corrected/rectified. It is the case of complainant himself

                 that on receipt of excessive bill, he contacted AFO, who

                 in turn referred him to the concerned officer. Since the

                 appellant had no authority to rectify the bills pertaining

                 to Trinagar area, therefore, there was no question of that

                 concerned officer to refer the complainant to him or

                 thereafter   his    demanding    any    bribe   from     the

                 complainant.       The complainant did not make any

                 complaint to the department regarding demand of any

                 bribe by the appellant.     Merely because the bill was

                 recovered from the drawer of the appellant does not

                 mean that he was the concerned clerk for dealing with

                 that bill. No evidence has been led by prosecution toCrl.A.268.2004                                                   Page 8 of 16prove that he was the dealing clerk and the burden to

                 prove this fact was squarely upon the prosecution.

                 Reference was also made to the personal search memo of

                 the appellant to show that nothing incriminating was

                 recovered from the same. As such, it was submitted that

                 the impugned order deserves to be set aside.8.     Per contra, it was submitted by learned Public Prosecutor for

the State that there was no need for obtaining sanction for prosecution

of the appellant, inasmuch as, admittedly the appellant had retired on

28th February, 1991 and charge sheet was filed on 22 nd January, 1999.

Since on the date of filing of the charge sheet and when cognizance of

the offence was taken, the appellant was not a public servant,

therefore, there was no need to obtain any sanction for his

prosecution. The retirement was never challenged by the appellant at

any point of time on the ground that due to his suspension on account

of this criminal prosecution he continued to remain in service. The

authority relied upon by the learned counsel for the appellant was

sought to be distinguished by submitting that no such rules have been

shown by the appellant unlike that case for substantiating hisCrl.A.268.2004                                                  Page 9 of 16submission that unless the suspension order was revoked or modified,

the appellant could not have been retired.9.     As regards the submission that the appellant was not the

dealing clerk pertaining to the area of Trinagar, reference was made

to the testimony of PW-7 and PW-12 who had deposed that the

appellant was doing the job of rectifying the bills or rectifying the

mistake in the electricity bills issued to the consumers and no

suggestion was given to those witnesses that appellant was not

competent to deal with the electricity bill in question. As such, it was

submitted that this plea has no legs to stand.10.    It was further submitted that the incriminating articles were

seized vide separate memo and the same was not required to be

shown in the personal search of the appellant. All the prosecution

witnesses proved the case of prosecution beyond reasonable doubt

and therefore, the appellant was rightly convicted of the offence

alleged against him. The impugned order does not suffer from any

infirmity which calls for any interference. As such, the appeal is

liable to be dismissed.Crl.A.268.2004                                              Page 10 of 1611.    It is undisputed case of the parties that the charge sheet was

filed in the Court on 22nd January, 1999 while the date of

superannuation of the appellant was 18th February, 1998, meaning

thereby, on the date when the charge sheet was submitted in the

Court, the appellant ceased to be a public servant and, therefore, in

view of the settled principle enunciated in various authorities vizPrakash Singh Badal and Anr. Vs. State of Punjab and Ors.(2007)

1 SCC 1;Abhay Singh Chautala Vs. CBI, (2011) 7 SCC 141 and.R.S. Nayak Vs. A.R. Antulay(1984) 2 SCC 183, no sanction was

required.12.    However, learned counsel for the appellant has tried to take a

plea that since the appellant was suspended and on the date of his

superannuation, the order of suspension was neither revoked or

modified, the appellant continued to be in service and, therefore,

before launching prosecution against him, sanction was pre-requisite.13.    In the judgment cited by the learned counsel for the appellant,

the concerned accused, who was a public servant was a railway

employee. He was placed under suspension w.e.f. 8th December, 1984

on the basis of criminal offence alleged against him and charge sheetCrl.A.268.2004                                             Page 11 of 16was filed in Court      on 30.4.1985, without a sanction for his

prosecution as required underSection 6of the Prevention of

Corruption Act, 1947. Railway Discipline Rules were referred to on

behalf of the convict before the High Court wherein it was provided

that a suspension order shall continue to remain in force until is

modified or revoked by the competent authority. Sincein that caseit

was found that the suspension of the convict/appellant was never

revoked, it was held that he continued to be in service even though he

had reached the age of superannuation and, therefore, sanction was

necessary. Things are entirely different in the instant case, inasmuch

as, the appellant has neither taken a plea either during the cross-

examination of PW-12 Sh. Ganpat Shakarwal, who deposed that the

appellant had retired on 28th February, 1998 nor during his own

statement under Section 313 Cr. P.C. that he had not retired because

of the suspension order and that he continued to be in service. In fact,

he has never challenged factum of his retirement in the absence of

revocation of suspension order. He has not also filed any service

rules applicable to him which may provide that an employee under

suspension would not retire if his suspension is not revoked as wasCrl.A.268.2004                                              Page 12 of 16the rule in the case before Madras High Court.           As such, this

judgment does not help the appellant. Since the appellant was no

longer a public servant when the charge sheet was submitted and

cognizance was taken by the Court, as such, no sanction for his

prosecution was required to be obtained from any authority.14.    As regards the submission that the appellant was not dealing

with the electricity bill of the area of the premises No.4210, Hansapur

Road, Trinagar where the complainant resided, same is without any

substance, inasmuch as, PW-7 Sh. S.K. Saroha who was posted as

Assistant Financial Officer, Delhi Vidyut Board, Keshav Puram on

13th October, 1998 deposed that appellant was functioning and

employed as senior clerk in billing section during that period in the

said office. He was doing the job of rectifying the bills/rectifying the

mistakes in the electricity bills issued to the consumers. In the cross-

examination, he deposed that there were 7-8 bill clerks functioning in

the office at Keshav Puram, DESU office during the year 1998.

Complaint regarding rectification of mistake and defect in the bill was

marked by AFO to his immediate junior. No suggestion was given to

this witness that the appellant was not competent to rectify the bills orCrl.A.268.2004                                               Page 13 of 16mistakes in the electricity bills pertaining to the area where

complainant resided. PW-12 Sh. Ganpat Shakarwal was posted as

APOB-IV at DVB, Keshav Puram in the year 1999 and has deposed

that Kalyan Singh was working in AFO, Keshav Puram, DVB as

Senior Clerk. To him also, no suggestion was given to the effect that

the area allotted to the appellant was confined to Keshav Puram and

he was not competent to deal with the bill in question. It was also not

put to the complainant that at the time of trap, the appellant had not

shown him the corrected bill Ex.PW-5/D as claimed by him.

Investigating Officer has also deposed that he had seized this bill vide

memo Ex. PW5/E which reflects that the corrected bill was recovered

from the table drawer of the accused. Under the circumstances, it is

proved that the appellant was the concerned clerk who was referred

by AFO for correction in the bill otherwise the bill would not have

been with him and so demand of bribe by him cannot be said to be

improbable. The statement recorded underSection 313Cr.P.C. of the

appellant goes to show that one is of denial simplicitor and even in

this statement, no plea was taken by the appellant that the area of

Trinagar was not within his jurisdiction and, therefore, he was notCrl.A.268.2004                                              Page 14 of 16competent to deal with electricity bill in question.         Under the

circumstances, this plea taken by the appellant in the grounds of

appeal is not even substantiated by the record.15.    The complainant has substantiated his complaint with Anti-

Corruption Branch, laying of trap and the subsequent recovery of

bribe and the bill from the appellant. Despite cross-examination, his

testimony could not be assailed. He has no axe to grind against the

accused so as to falsely implicate him.           His evidence is fully

trustworthy, reliable and inspires full confidence.In fact as observed

by the Supreme Court inState of UP Vs. Dr. G.K. Ghosh, AIR 1984

SC 1453: by and large a citizen is reluctant to complain the vigilance

department and to have a trap arranged even if illegal gratification is

demanded by a government servant. It is only when a citizen feels

oppressed by a feeling of being wronged and finds the situation to be

beyond endurance that he adopts the course of approaching the

vigilance department for laying a trap.           His evidence cannot,

therefore, be easily or lightly brushed aside.16.    Moreover, evidence of complainant is fully corroborated by the

panch witness. Panch witness has also deposed that when the accusedCrl.A.268.2004                                               Page 15 of 16was apprehended and challenged by the raid officer he became

perplexed and also tendered apology, which part of his testimony

goes unchallenged as no cross-examination was effected on this point.

This conduct of accused is also another incriminating piece of

evidence against him.17.    From the evidence of the complainant, panch witness and the

raid officer, prosecution was able to establish its case beyond any

reasonable doubt and the appellant was rightly convicted by the

learned Special Judge, Delhi and sentenced accordingly. Neither the

order of conviction nor of sentence suffers from any infirmity which

calls for interference. As such there is no merit in the appeal. Same is

accordingly dismissed.SUNITA GUPTA
                                                [JUDGE]
JULY 15, 2013
rsCrl.A.268.2004                                              Page 16 of 16