IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : INDIAN PENAL CODE. Date of Decision: 12th November, 2007 CRIMINAL APPEAL NO. 35 OF 1984.

Transcription

1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : INDIAN PENAL CODE Date of Decision: 12th November, 2007 CRIMINAL APPEAL NO. 35 OF 1984 STATE Through: Mr. M.N.Dudeja, Advocate.Appellant Versus SHYAM SUNDER..Respondent Through: Mr. K.B.Andley, Sr. Advocate with Mr. M.L.Yadav,Advocate JUDGMENT P.K.BHASIN, J: This appeal is filed by the State against the acquittal of the respondentaccused vide judgment dated passed by the Special Judge in C.C.No. 17/82 arising out of FIR No. 42/82 under Section 161 of Indian Penal Code and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, The brief facts of the case are that the complainant Ashok Kumar Jain (PW-8) was running a coal depot at 89, Bagichi Madho Dass, Delhi in the year 1981 and accused Shyam Sunder was the Muncipal Corporation's Inspector of that area. The said shop was on lease with the complainant which was granted by the Municipal Corporation of Delhi. On at 4.00 p.m. the accused visited the depot of the complainant and informed him that the file relating to the extension of lease of his coal depot was with him and he demanded Rs. 3000/- from the complainant as bribe for extension of the lease of the depot. The complainant showed his inability to pay such a huge amount to the accused on the ground that he was not even earning that much amount but on being threatened by the accused with cancellation of

2 his lease he (complainant) agreed to pay the demanded amount to the accused. The accused told him that he could pay Rs. 1000/- that day and rest of the amount could be paid after his work was done. Complainant replied that he would arrange the money within a day or two. The accused then met the complainant on when the complainant told him that he would get money from the bank on upon which the accused told that he would again see him in between 1.00 or 2.00 p.m. on and once again threatened the complainant that in case he would not pay the money on the said date he would give an adverse report regarding his lease extension matter. Left with no alternative, the complainant went to the anti-corruption branch on where his statement Ex. PW-7/B was recorded by PW-12 Inspector Nihal Singh. Thereafter, Inspector Nihal Singh decided to lay a trap to catch the accused red-handed while accepting bribe and for the raid joined one Shri Subhash Chander Kharbanda, a government servant as a panch witness. For the raid purpose the complainant produced ten notes of Rs. 100/- denomination to be used as bribe money at the time of raid. After completing certain pre-raid formalities and giving appropriate instructions to the complainant and the panch witness to be followed by them at the time of raid Inspector Nihal Singh organized a raiding party at p.m. and then the raid team reached the shop of the complainant where the accused was to come to collect the bribe money. 3. As per the further prosecution case, the accused came to the shop of the complainant and demanded money from him in the presence of the panch witness and, as per the plan, the complainant gave to the accused ten phenolphthalein treated notes of the denomination of Rs. 100/- each. The panch witness then gave the signal to the raid officer who immediately rushed to the spot and apprehended the accused and recovered the bribe money from underneath a pillow lying there where the accused had kept the money after accepting the same from the complainant. Thereafter some postraid proceedings were conducted at the spot by the raid officer and a case under Section 161 I.P.C. and Sections 5(2) read with 5(1)(d) of Prevention of Corruption Act was got registered by him at the Anti-Corruption Branch. After the completion of the usual investigation charge-sheet was filed in the Court of Special Judge against the accused who was in due course charged and tried under Section 161 IPC and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 and finally was acquitted by the learned Special Judge vide impugned judgment dated

3 4. Aggrieved by the said judgment dated the State has come up in appeal before this Court after obtaining leave to appeal against the acquittal of the accused, respondent herein. 5. While acquitting the respondent-accused learned Special Judge had relied upon the plea taken by the accused during his statement under Section 313 Cr.P.C. and had found the explanation offered by him for taking the money from the complainant at the time of raid to be probable. The accused made the following statement under Section 313 Cr.P.C.:- I most humbly submit that I have been falsely implicated in the said case and I am an innocent person. I had never demanded any bribe from the complainant, nor accepted any bribe as alleged. There was no occasion for the complainant to bribe me because he was fully aware that in terms of the resolution passed by the St. Committee/Corporation No dated neither I nor any other of my immediate senior official of the corporation except the St. Committee/Corporation itself was competent in getting his lease renewed. Because he had illegally constructed a tea shop over the MCD land. The higher authorities had challaned the complainant under the PP Act and the case under the PP Act was twice sent to the Estate Officer. The complainant was also defaulter in making the payment of the lease money. The complainant is a very clever person. The complainant wanted that neither his tea shop over the MCD land be removed nor the lease money be asked to be paid by him to the corporation. Till today the tea shop is being run in the premises. In order to achieve this ill-motive he devised a plan to entrap a person from the corporation so that a false case could be made out and under the guise of a false case no corporation official should dare to remove his illegally constructed tea shop and to demand the lease money and for this purpose I was made the victim as he was aware that I used to come to the complainant in connection of taking payment in respect of the goods supplied by my brother to the complainant on credit. As the complainant s shop is very near to my office so it was easy for me to make demands of my brother s dues without much trouble. In the month of Sept Rs. 2713/- were due to my brother from the complainant and on my brother sent me to collect the payment at the shop of the complainant. On that date he did not make any payment and asked me that he would arrange within a week. He thought that I can be entrapped in this way and he can be successful in his plan. My brother had also asked for his money from the complainant on Telephone and once or twice hot words were exchanged between them and on this score he had grudge against us. On I never met the complainant and on that day I was in my office from 10 a.m. to 5

4 p.m. but on the complainant telephoned my brother to send me the next day i.e. on at lunch hour to collect the afore-said payment but on that day my brother could not contact me and I did not go to collect money. On the complainant again telephoned to my brother to send me on the next day at lunch hour as he would be available at that time only being the Holiday on Monday to collect the money on at lunch hours. Accordingly, as agreed, I went to the shop of the complainant on under the circumstances stated above. The complainant and one man were present at his shop at that time. No other person was present at that time. The complainant gave me some money I counted the same and threw them on the takht saying that I was not permitted to accept any part payment. I will take the full amount as directed by my brother. My brother had also informed the complainant that the delivery of goods to him was being stopped as he was very irregular in making payment. So the complainant requested me that his delivery should not be stopped. After this the complainant Ashok went out of the shop and came back with the police parties, who challenged me and I at once told them that I had not received any bribe. Police paid no attention to my request. On search no bribe money was recovered from my person. I had also a diary in my hand in which my brother had given me the details of the amount due towards the complainant regarding the supplied goods. Police party took the diary in their possession and saw it and verified the contents of the diary and surprisingly had not produced the said diary in the court in order to make this case against me. No bribe money was paid to me nor the alleged bribe money was recovered from my person. The case has been made out against me by the police at the instigation of the complainant and the case is a false one. 6. I have heard Mr. M.N.Dudeja, APP for the State and Mr. K.B.Andley, Senior Advocate for the respondent-accused. I have also gone through evidence adduced during the trial by the prosecution as well as the defence. 7. Hon ble Supreme Court in a number of cases has laid down the guidelines which an appellate court should keep in mind while dealing with a judgment of acquittal. I may notice the views expressed in two judgments of the Hon ble Supreme Court. In State of Punjab Vs. Ajaib Singh And Others, 2005 SCC (Cri) 43, it was observed by the Hon ble Supreme Court (in para no. 10) as under: 10. It is well settled that in an appeal against acquittal, the appellate court is entitled to reappreciate the evidence on record, but having done so it will not interfere with the order of acquittal unless it finds the view of the court acquitting the accused to be unreasonable or perverse.

5 If the view recorded by the court acquitting the accused is a possible, reasonable view of the evidence on record, the order of acquittal ought not to be reversed. In another judgment reported as 1980 CAR 359 (SC), Sirajuddin alias Siraj vs. State of Karnataka also Hon ble Supreme Court had observed while dealing with the scope of an appeal against a judgment of acquittal as under:. It is well settled that if the view of the evidence taken by the trial Court is reasonably possible, the High Court should not, as a rule of prudence, disturb the acquittal. 8. The learned Trial Court in the present case while acquitting the accused (respondent herein) observed in paras 22 and 23 of the judgment as under while referring to the already quoted defence taken by the accused: 22. The above defence version has even to a certain extent been, substantiated from the statement of the complaint and other prosecution witnesses. It has been admitted by PW8 Ashok Kumar that the brother of the accused is running a shop under the name and style of Sham Trading Company. The said company deals in wood and fuel. It is correct that he receives goods from the said shop. It is further correct that he receives goods and material from the said shop on credit. He also could not deny the fact that a sum of Rs. 2,713/- was due to the brother of the accused from him during the month of September, The accused besides the above statement has also placed on record a photocopy of the extract from the ledger maintained by his brother vide Ex.DW1/DA. A perusal of the same shows that in fact, a sum of Rs. 2,713/- was due to the brother of the complainant. Then there is the statement of PW9 Shri Subhash Chander. He also admitted that a diary was recovered on the personal search of the accused. He further goes on to state that the said diary was with the police. Admittedly the said diary has not been placed on record by the prosecution for the best reasons known to them. 23. In view of my discussion above, I find that the accused has come out with a probable and plausible defence which, if taken into consideration suggests perhaps the prosecution version may not be correct. 9. The learned Trial Court came to the said conclusion accepting that there were regular transactions between the complainant and the brother of the accused and the complainant used to buy some material on credit from the brother of the accused. In his cross examination also the complainant did not deny that Rs. 2713/- were due to be paid to the brother of the accused by him (the complainant). He could have denied that suggestion if it was wrong. He did not deny that and that probabalises the defence taken by the accused later on in the cross-examination, however, he admitted that once a clerk from the

6 shop of the brother of the accused had come to his shop with a letter and that he(complainant) had written on the back of that letter that he would make the payment within a week. That also shows that the complainant owed some money to the brother of the accused. The complainant also admitted inc ross-examination that he was a defaulter in the payment of lease money in respect of his shop. Thus, from the cross-examination of the complainant the position which emerges is that he was having credit transactions with the brother of the accused and he owed some money to him on account of the purchases made by him from the shop of the brother of the accused. The shop of the complainant was on lease in respect of which the lease period had expired and the complainant was not paying the lease money. The accused was the Inspector of the area where the shop of the complainant was situated and even according to the complainant himself the accused was threatening to give an adverse report in respect of his shop which might have resulted in refusal of the municipal authorities for further extension of the lease in the name of the complainant. PW-8 also admitted that when the raid officer apprehended the accused he(the accused) had told him that he had not taken bribe from the complainant. That was the immediate reaction of the accused which can be said to be a conduct of an innocent person. The trial Court accepted the plea of the accused after having applying his mind to all these aspects of the matter and its conclusion that in these circumstances a false case having been lodged against the accused could not be ruled out cannot be said to be in any way arbitrary, unreasonable or perverse justifying interference in this appeal by this Court. 10. In view of the foregoing, I do not find any infirmity in the order of the learned trial Court acquitting the respondent-accused. Consequently the appeal is dismissed. Sd/- P.K.BHASIN,J