Lady inspector acused of seeking bribes 2 close 498a/406 acquitted due to confusions in case. Del HC

In this case an AWPS inspector who is accused of accepting bribes, who is trapped by a CBI raid party is acquitted by both the lower court and HC as there are discrepancies in the eyewitness. The Hon HC re affirms that lower court acquittals cannot be easily overturned by the HC unless the lower court acquittal is perverse and contrary to law !! This is a very important case that husbands can use, IF the wife or prosecution goes on appeal against lower court acquittal !!

Case details
* wife files 498a / 406 on husband. Husband etc are called to the PS
* Husband alleges that bribe was demanded to close the case in his favour. He claims Rs 8000 was finally bargained and agreed as the bride
* Then husband approaches CBI. They prepared to lay a trap, send a shadow witness with him and also send treated money
* BOTH husband and CBI’s shadow witness go to inspector’s house. They are let in. Once inside, they claim that the AWPS inspector took the chemically treated bribe money
* All this happens inside the inspector’s house. On giving the money, a signal is given by the shadow witness (as pre agreed), a raid follows and the raid team claims that they recovered the money from the house (from her kitchen where she had hidden the money just prior to the raid)
* The inspector’s hand and the “lota” (vessel) from which the money is collected, all give positive results for presence of chemical powder (when treated with appropriate solution)

* however there are discrepancies in the prosecution case as to
* which hand, left or right hand was used to take the money
* did the inspector go inside the house AFTER taking the money
* did she wash tumblers and serve them water after taking the money etc…

* Lower court acquits the inspector. CBI goes on appeal saying that practically everyone, the husband who gave the money, the shadow witness, the trap laying officer, etc etc are all unanimously saying that the AWPS inspector took the bribe. “…appellant/CBI contended that Naimuddin/complainant (PW1) having supported the prosecution case and his evidence having been corroborated by the evidence of Banwari Lal Sharma/ independent witness (PW3), Inderjeit/shadow witness (PW4) and (PW7) Inspector S.R. Singh/ Trap Laying Officer(TLO) there being ample material evidence in proof of the prosecution case, however, the learned Special Judge had committed error and illegality in acquitting the respondent/accused…..”

* Still the accused AWPS inspector is exonerated both by the special court and high court as there are material discrepancies in the witness statements !!

* It’s important to note that the Trial court suspects that the complainant planted the money in the inspector’s kitchen utensils !! to trap her, because of the grudge he had against her !! The HC does not go against this suspicion

* The HC quotes the Hon SC’s view that mere acceptance of money is NOT good enough to prove that the accused is guilty of accepting a bribe “….it was held by the Supreme Court that mere recovery of money, divorced from the circumstances under which it is paid, is not sufficient to convict the respondent when the substantive evidence in the case is not reliable. Mere recovery of money cannot prove the case of the prosecution against the respondent in the absence of any instance to prove the payment of bribe or to show that the respondent voluntarily accepted the money knowing it to be bribe…..”

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Delivered on: 10th December, 2015

CRL.A. 573/2004

STATE THR. CBI ….. Appellant
Represented by:Ms.Rajdipa Behura, Special Public Prosecutor for the CBI with Ms. Monica Gupta, Advocate.

Versus

SHOBHA CHHABRA ….. Respondent
Represented by: Mr. Rajesh Aggarwal, Mr. Harsh Kumar Sharma, Mr.Mohit Aggarwal, Mr. Suresh Chand and Mr. Rohit Gaur, Advocates.

CORAM: HON’BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J.

1. By way of the present appeal filed under Section 378(2) read with Section 378(3) of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’), appellant/CBI seeks setting aside of order of acquittal dated 10.01.2003 passed by the learned Special Judge, Delhi, in case bearing RC84(A)/95-DLI.

2. Ms.Rajdipa Behura, learned senior standing counsel appearing on behalf of the appellant/CBI contended that Naimuddin/complainant (PW1) having supported the prosecution case and his evidence having been corroborated by the evidence of Banwari Lal Sharma/ independent witness (PW3), Inderjeit/shadow witness (PW4) and (PW7) Inspector S.R. Singh/ Trap Laying Officer(TLO) there being ample material evidence in proof of the prosecution case, however, the learned Special Judge had committed error and illegality in acquitting the respondent/accused.

3. She further submitted that the learned Special Judge had given undue importance to the minor discrepancies in the evidence of the Complainant, shadow witness and the Trap Laying Officer. Therefore, impugned order being perverse and the order of acquittal having resulted in failure of justice, there is need for interference.

4. In support of her contention, the learned counsel has relied upon the case of State of U.P. Vs. Zakaullah (1998) 1 SCC 557, wherein the Supreme Court held that the evidence of Trap Laying Officer can be relied upon even without corroboration. Moreover, there is no reason on the record to disbelieve him.

5. Ms.Behura further submitted that the learned Special Judge failed to consider the fact that once it is established that the respondent has either obtained or accepted a gratification then, the presumption under Section 20 PC Act has to be raised.

6. To strengthen the aforesaid submission, she has relied upon the case of B. Hanumantha Rao Vs. State of Andhra Pradesh (AIR 1992) SC page 1201, wherein the Supreme Court held that once the amount is found in the possession of the accused, the burden shifts on him to explain the circumstances to prove his innocence. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

7. Also relied upon the case of Madhukar Bhaskarrao Joshi Vs. State of Maharashtra, (2000) 8 SCC 751, wherein the Supreme Court observed as under:-

10. In the light of the said stand of the appellant we do not
find the necessity to consider the evidence of the prosecution
witnesses who all said that PW-1 gave the money to the appellant at
his office. Of course, learned Counsel for the appellant contended
that the testimony of PW-1, on that score, is not corroborated by any
other independent witness. At this stage itself we may point out that
there is no merit in the said contention, as there is sufficient
corroboration on that aspect, even apart from the testimony of other
witnesses examined by the prosecution. The very undisputed fact that
the amount had reached the hands of the appellant itself is
sufficient corroboration for the testimony of PW-1 that the amount
was paid to the appellant.

xxxx xxxx

12. In Black’s Law Dictionary, ‘gratification’ is defined as “a
recompense or reward for services or benefits given voluntarily
without solicitation or promise”. But in Oxford Advanced Learner’s
Dictionary of Current English the said word is given the meaning “to
give pleasure or satisfaction to,” Among the above two descriptions
for the word ‘gratification’ with slightly differing nuances as
between the two, what is more appropriate for the context has to be
found out. The context in which the word is used in Section 4(1) of
the Act of 1947 is, hence, important. As the wording On the relevant
portion employed in the corresponding provision in the PC Act of 1988
{Section 20(1)} is identical we would reproduce that sub-section
herein: Where, in any trial of an offence punishable under Section 7
or Section 11 or Clause (a) or Clause (b) of Sub-section (1) of
Section 13 it is proved that an accused person has accepted or
obtained or has agreed to accept or attempted to obtain for himself,
or for any other person, any gratification (other than legal
remuneration) or any valuable thing from any person, it shall be
presumed, unless the contrary is proved, that he accepted or obtained
or agreed to accept or attempted to obtain that gratification or that
valuable thing, as the case may be, as a motive or reward such as is
mentioned in Section 7 or, as the case may be, without consideration
or for a consideration which he knows to be inadequate.

13. The premise to be established on the facts for drawing the
presumption is that there was payment or acceptance of gratification.
Once the said premise is established the inference to be drawn is
that the said gratification was accepted “as motive or reward” for
doing or forbearing to do any official act. So the word
‘gratification’ need not be stretched to mean reward because reward
is the outcome of the presumption which the court has to draw on the
factual premise that there was payment of gratification. This will
again be fortified by looking at the collocation of two expressions
adjacent to each other like “gratification or any valuable thing.” If
acceptance of any valuable thing can help to draw the presumption
that it was accepted as motive or reward for doing or forbearing to
do an official act, the word ‘gratification’ must be treated in the
context to mean any payment for giving satisfaction to the public
servant who received it.”

8. On the other hand, Mr. Rajesh Aggarwal, learned counsel appearing on behalf of the respondent, submitted that the prosecution case having not been established by placing credible evidence on record, the learned Special Judge was justified in passing the judgment of acquittal. Learned counsel referred to the evidence brought on record by the prosecution and submitted that the same is lacking credibility and there being inconsistency in the evidence of the prosecution witnesses, the learned Special Judge was justified in giving benefit of doubt to the respondent and passing the judgment of acquittal. Therefore, there is no scope for interference in the impugned judgment.

9. To support his contentions, learned counsel relied upon the case of Union of India through Inspector, CBI Vs. Purnandu Biswas, 2005 (4) Crimes 176 (SC), wherein the Supreme Court observed as under:-

“30. In State of U.P. vs. Zakaullah [(1998) 1 SCC 557], whereupon Mr.
Sharan placed reliance, Thomas, J. clearly stated that evidence of
such a witness would require the court to scrutinize it with a
greater care, but it does not call for outright rejection of his
evidence at the threshold.

xxxx xxxx

32. In B. Hanumantha Rao vs. State of U.P. [(1993) Supp. 1 SCC 323],
the conviction was based on concurrent findings of fact and
appreciation of evidence. No legal principle was laid down in the
said decision except stating that the circumstances pointed out
therein had been considered by the High Court and the same did not
improbablise the demand and acceptance.

xxxx xxxx

34. This Court in Habeeb Mohammad vs. State of Hyderabad [AIR 1954
SC 51], noted a long series of decisions that “the view taken in
India was that the purpose of a criminal trial is not to support at
all costs a theory but to investigate the offence and to determine
the guilt or innocence of the accused and the duty of a public
prosecutor is to represent not the police but the Crown, and this
duty should be discharged fairly and fearlessly with a full sense of
the responsibility attaching to his position and that he should in a
capital case place before the court the testimony of all the
available eye- witnesses, though they give different accounts, and
that the rule is not a technical one, but found on common sense and
humanity”.

35. The learned Additional Solicitor General submitted that onus of
proof was upon the Respondent to explain as to how he came in
possession of the amount. Section 20 the Prevention of Corruption
Act, 1988 reads as under:

20. Presumption where public servant accepts gratification other
than legal remuneration.?(1) Where, in any trial of an offence
punishable under section 7 or section 11 or clause (a) or clause (b)
or sub-section (1) of section 13 it is proved that an accused person
has accepted or obtained or has agreed to accept or attempted to
obtain for himself, or for any other person, any gratification (other
than legal remuneration) or any valuable thing from any person, it
shall be presumed, unless the contrary is proved, that he accepted or
obtained or agreed to accept or attempted to obtain that
gratification or that valuable thing, as the case may be, as a motive
or reward such as is mentioned in section 7 or, as the case may be,
without consideration or for a consideration which he knows to be
inadequate.

(2) Where in any trial of an offence punishable under section 12 or
under clause (b) of section 14, it is proved that any gratification
(other than legal remuneration) or any valuable thing has been given
or offered to be given or attempted to be given by an accused person,
it shall be presumed, unless the contrary is proved, that he gave or
offered to give or attempted to give that gratification or that
valuable thing, as the case may be, as a motive or reward such as is
mentioned in section 7, or, as the case may be, without consideration
or for a consideration which he knows to be inadequate.

(3) Notwithstanding anything contained in sub-sections (1) and (2),
the court may decline to draw the presumption referred to in either
of the said sub-sections, if the gratification or thing aforesaid is,
in its opinion, so trivial that no interference of corruption may
fairly be drawn.”

36. In this case demand of illegal gratification by the Respondent
has not been proved. Furthermore, Section 20 of the Act is not
attracted as the Respondent had been charged for commission of an
offence under Section 13(1)(d) read with Section 13(2) of the Act.”

10. I have heard the learned counsel for the parties.

11. Before adverting to the factual matrix of the case, it would be relevant to note the proposition of law on this subject. The order of acquittal cannot be easily interfered with. It is only if there is grave perversity or infirmity which is glaring on the face of the record that the order of acquittal can be interfered. A presumption of innocence cannot be disturbed unless some cogent evidence is forthcoming.

12. In this context, the observations of the Supreme Court in Jaswant Singh Vs. State of Haryana (2000) 4 SCC 484 are relevant, which read as under:-

“21. The principle to be followed by Appellate Courts considering an
appeal against an order of acquittal is to interfere only when there
are “compelling and substantial reasons” for doing so. If the order
is “clearly unreasonable” it is a compelling reason for interference
(See: Shivaji Sahabrao Bobade v. State of Maharashtra).

The principle was elucidated in Ramesh Babulal Doshi v. State of Gujarat::

“While sitting in judgment over an acquittal the appellate court is
first required to seek an answer to the question whether the findings
of the .trial court are palpably wrong, manifestly erroneous or
demonstrably unsustainable. If the appellate court answers the above
question in the negative the order of acquittal is not to be
disturbed. Conversely, if the appellate court holds, for reasons to
be recorded, that the order of acquittal cannot at all be sustained
in view of any of the above infirmities it can then – and then only –
reappraise the evidence to arrive at its own conclusions.”

13. In the case of Bhagwan Singh & Ors. Vs. State of M.P 2003 CriLJ1262, the Supreme Court observed that there is no embargo on the Appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not.

14. In a catena of judgments, the Supreme Court has held that the principle to be followed by the Appellate Court considering the appeal against the judgment of acquittal is to interfere with only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference.

15. Coming back to the case in hand, as per the prosecution case, Rehnaz Bano, wife of Sahiduddin, brother of Naimuddin (PW1), Complainant had lodged a complaint with the Crime Against Women (CAW) Cell of Delhi Police at Nanakpura on 21.07.1995 making allegations of harassment over dowry by her husband and in-laws, which was entrusted for inquiry to the respondent/Inspector Shobha Chhabra. In this context, PW 1 alleged in the complaint that he, accompanied by his said brother, had gone to the office of the respondent on being called by her on 22.09.1995. In the course of said meeting she told him clearly that his entire family was involved and thus could be arrested (in the dowry harassment matter) and thereafter she demanded Rs. 10,000/- for turning the said case in favour of his brother and for not putting his entire family under arrest. It was further alleged in the complaint that on his pleading, the respondent had reduced the demand of bribe to Rs.8,000/- and had asked him to bring the said amount of money to her house in quarter No. Z/982, Timarpur, Delhi, by 11 AM of 24.09.1995. On the aforesaid complaint, the SP, CBI directed Inspector SR Singh (PW7), by way of endorsement (Ex. PW7/A) to register a case and lay a trap. The complainant had arranged cash of Rs.5,000/- in the form of 50 currency notes of Rs.100/- each (Ex. P1 to Ex. P50). These notes were treated with Phenolphthalein Powder, and a demonstration of the application of said powder was given for knowledge of members of the raiding party. The numbers of currency notes were noted down described as Annexure ‘A’ (exhibit PW3/A), made part of the handing over memo that would also be reduced into writing. The treated currency notes were then given to the complainant and he was instructed to hand over the tainted money on specific demand by the respondent. Independent witness Inderjeet (PW4) was deputed to remain with the complainant as shadow witness posing himself as a friend, so as to overhear the conversation and see the transaction that was expected to take place between the complainant and the respondent. The shadow witness was directed to give a signal by scratching his head with his both hands after the money had been passed.

16. These preparations were reduced into writing in the form of handing over memo (PW1/C). Thereafter, the trap party reached the area in question, where the complainant and shadow witness proceeded into the residence of the respondent.

17. As per the prosecution case, the respondent opened the door on call bell and had asked the complainant and the shadow witness to come inside the drawing room where in the course of conversation the complainant told her that he had been able to bring only Rs. 5,000/- where upon she asked the money that had been brought to be given to her and on the complainant tendering the trap money, she received the same in her left hand at which stage the shadow witness came out of the house and gave the predetermined signal at about 11.40 a.m. On the signal being sighted the trap team was alleged to have rushed in and the respondent was apprehended by her respective wrists and challenged with having accepted bribe. However, the said fact was denied by the respondent. The TLO got her subjected to personal search through two Lady Officers of CBI, but the trap money was not found on her person. It was, however, revealed at that stage that the respondent had proceeded into the kitchen after having accepted the bribe from the complainant, whereupon a search was carried out which is stated to have resulted in the recovery of the tainted money found lying in a ‘LOTA’ (a steel utensil) in the kitchen. The money that was recovered on being checked was found to be tallying with the numbers recorded earlier in the handing over memo. It is alleged that washes of the left hand of the respondent and of the utensil in which the money had been found were taken in separate solutions of Sodium Carbonate and each gave positive test about presence of Phenolphthalein Powder. The washes were transferred into separate empty bottles, suitably marked, signed by the witnesses and sealed. The respondent was arrested on the spot. These post trap proceedings were reduced into writing vide recovery memo (Ex. PW1/D).

18. The investigation was later completed by Inspector Virender Thakran (PW-5), Investigating Officer, in the course of which besides having recorded statements of witnesses, he seized relevant records from the office of CAW Cell, collected result of washes from CFSL and obtained sanction for prosecution.

19. On completion of investigation, the evidence that had been collected was placed before the authority competent to grant sanction for prosecution in respect of the respondent. The sanction for prosecution is shown to have been accorded by Shri Ranjit Singh, Additional Commissioner of Police (Crime) (PW6), and on the basis of the same, a charge sheet was filed. Charges under Sections 7 and Section 13 (1) (d) read with section 13 (2) PC Act were framed against the respondent vide order dated 22.07.1997, to which respondent pleaded not guilty and claimed trail.

20. In all prosecution had examined nine witnesses. PW1, the complainant, in his complaint (exhibit PW 1/B) had mentioned that the respondent had called his brother Sahiduddin and him to her office for interrogation on 22.09.1995 and in the course of conversation that ensued he had been “clearly” told that the entire family was involved and so could be arrested in the case under inquiry with Crime Against Women Cell (CAW), Nanakpura. It was alleged in the complaint that the respondent had demanded a bribe of Rs.10,000/-, which she had agreed to reduce to Rs.8,000/- on pleadings, as a motive or reward for turning the case in favour of his brother and for not arresting the entire family.

21. However, during the course of investigation, the file maintained in the office of CAW had been seized and has been introduced in evidence as Ex. PW 3/C. This file inter alia contains the complaint dated 21.07.1995 (Ex. PW 1/A) made by Rehnaz Bano, wife of the brother of the complainant regarding, amongst others, harassment over dowry in the matrimonial home. The file also contained what has been described as “order sheet” which indicated both sides to the dispute had been called to her office on 07.09.1995 and had made some kind of compromise and the matter thereafter had been listed to come up on 15.09.1995. The file also contained a report made by the respondent, as Inquiry Officer, on 20.09.1995 to ACP (West), referring to the allegations made by Rehnaz Bano, wife of the brother of the complainant about harassment, physical and mental torture by her husband, her father-in-law and mother-in-law, in connection with their dissatisfaction over dowry. She also took note of the refusal of the complainant woman to accept her dowry offered to be returned by her husband, and that she was insisting on legal action. The report made by the respondent on 20.09.1995 clearly indicates that she had recorded her opinion that the case under Section 406/498A of IPC was made out and the papers were required to be sent through DCP (Central District) to PS Chandni Mahal for registration of a regular case against the husband and in-laws.

22. PW1, the complainant, has been questioned in above regard, during his cross-examination and he had conceded that he was aware before he had submitted the complaint to CBI regarding the demand of bribe by the respondent that she had already recommended the registration of the case against his brother, father and mother. However, this knowledge was not reflected in the complaint made to CBI, nor the action taken by CBI reflects any effort to ascertain this background so as to appreciate the motive on the part of the complainant, the manner in which the complaint had been drafted, admittedly, on dictation by CBI Inspector S.R. Singh (PW 7), the TLO himself, rather betrays a deliberate attempt to withhold information in this regard, which does not reflect well on the intentions on the part of the complainant and/or the TLO who had dictated the complaint for turning it into a FIR. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

23. The material on record, thus, clearly shows that the respondent had already wrapped up the inquiry on 20.09.1995 itself. She had concluded that the complaint made by the wife of brother of the complainant of the case in hand in the CAW Cell merited registration of a regular case for cognizable offences punishable under Sections 406/498A of IPC and had submitted a report to this effect to her superior officer on 20.09.1995 and the said report had even been acted upon by her senior officer, ACP, on 21.09.1995 when the matter was ordered to be placed before DCP for appropriate further action. With the said report, the respondent had already done her bit and there was nothing in her hands as the matter had already reached the desks of her senior officers.

24. Since the above action on her part was within the knowledge of the complainant of this case even at the time when he approached CBI for laying a trap, his allegations that the respondent had called him and his brother to her office on 22.09.1995 and made a demand for bribe for turning the case in favour of his brother and for not putting his entire family under arrest needs to be taken with a pinch of salt. In the given facts and circumstances when the complainant was aware of the action already taken by the respondent in the dowry harassment case, it has to be assumed that he would also know that further action in the said matter would be done in the discretion of DCP, an officer much superior in rank to the respondent and the question of arrest would arise at the level of local Police Station to which the matter had been recommended to be sent for registration of a regular case. It is highly improbable in these facts and circumstances that the respondent would have expected the complainant to give any bribe to her and for the complainant to take such demand, assuming it had been actually made, with any seriousness.

25. The complainant in the course of his statement as PW 1 in the court has referred to in telephonic conversation with the respondent during which he had learnt her residential address. This does give rise to a significant question as to whether the complainant in the first instance and the TLO in the next were really aware about the residence of the respondent. Noticeably in the complaint exhibit PW 1/B, the complainant would mention her residence as Quarter No. Z-982, Timarpur, Delhi. The prosecution evidence itself demonstrates that this was not the correct residential address of the respondent. The recovery memo exhibit PW 1/D indicates the respondent was living in flat No. 892, Type ‘Z’, First Floor, Timarpur.

26. The complainant has admitted that he had never earlier visited the house of the respondent prior to the visit at the time of the trap. He had not mentioned anything about the telephonic conversation with the respondent either in the complaint leading to registration of FIR or in the statement made during investigation. The TLO has also not indicated how he had ascertained, confirmed or verified the residential address of the respondent before starting from CBI office for purposes of the trap. In this fact situation the CBI has left it to be a matter of conjecture to find out as to on what basis the trap team located or reached the house of the respondent, especially in the face of insistence on the part of the complainant in the course of his statement that the respondent was living in Quarter Number Z- 982, Timarpur, Delhi and not in flat No. 892, Type ‘Z’, first floor, Timarpur.

27. One is prepared to assume that the TLO would have done his homework and would have confirmed the residential address of the respondent before setting out for purposes of trap on the morning of 24 Sept 1995. The witnesses to the trap in their respective statements are consistent about the fact that the complainant and shadow witness (PW 4) had gone into the house of the respondent while the other members of the trap party had taken suitable positions in the vicinity. It is the narration of the sequence as to what transpired inside the house of the respondent that is more important. PW 1, the complainant, and PW 4, the shadow witness, speak about the door having been opened by the respondent and they being allowed in the drawing room by her. It has come in the evidence that besides the respondent her children were present in the house at the relevant time. The site plan exhibit PW 7/A shows that her house had only two rooms, one a drawing room and the other a bedroom, besides the kitchen and other facilities.

28. Both the complainant and the shadow witness would speak about a conversation between the complainant and the respondent in the course of which the former is stated to have informed the latter that he had brought Rs. 5,000/-. The conversation is described by each of the said witnesses in different manner. While the complainant would attribute an utterance to the respondent about her suggestion that he should sent the remaining amount of Rs. 3,000/- to her office, which he had not told even in his statement during investigation, the shadow witness does not reflect any such assertion on the part of the respondent and would only say that the respondent had asked for the money brought to be handed over. Both of them would talk about the money being tendered by the complainant and accepted by the respondent in the drawing room itself.

29. The contradictions about the exact nature of conversation that took place would have ordinarily been ignored, but for the fact that the complainant in the course of his cross-examination made certain additions and improvements which put a question mark on the claim of the prosecution that the demand was made and the money received by the respondent from the complainant in the presence of the shadow witness. During his cross- examination, the complainant stated that he had asked for water. At this stage he would say that he had handed over the money to the respondent in the kitchen where he had followed her as she had gone there to bring water for him and the shadow witness. He is categorical in his statement at this stage that the handing over of the trap money to the respondent took place in the kitchen, beyond the view of the shadow witness since he was sitting in the drawing room. The shadow witness has claimed that as soon as he had seen the money being handed over to, and accepted by, the respondent, he had come out to give the signal to the trap party. He is contradicted by the complainant who would say that it was after he had come out of the kitchen having handed over the money to the respondent there, that he had indicated to the shadow witness that the money had been given whereupon the latter went out to give signal to the trap party. This claim of the complainant does not find any support from the shadow witness who would claim that he had not even seen the respondent entering the kitchen.

30. The shadow witness has claimed he having seen the respondent accepting the money from the hands of the complainant. The complainant has also spoken about he handing over of the money that was received by the respondent in her hand. And yet, when the trap party came in, on receiving the signal from the shadow witness, during search of the respondent taken by two lady inspectors, the trap money was not found on her person. Given the sequence narrated by the complainant, the shadow witness assumably had no way of knowing that the respondent may have put the money elsewhere. The complainant has admitted that he had not seen the respondent parting with the money at any stage after he had handed over the same to her inside the kitchen. The complainant would say that after the trap laying officer had come in with other members of the trap party he had challenged the respondent with having accepted bribe on which the respondent denied, at that stage the shadow witness questioned her truthfulness by asserting that he had seen her receiving the bribe money in his presence. This assertion is an improvement by the complainant over his original version where it does not find mention and is not corroborated even by the shadow witness to whom it is attributed.

31. The fact that the respondent was subjected to personal search for causing the recovery of the trap money itself would show that it was assumed by the TLO that she would be carrying the said money on her person. The claim in the recovery memo, on which line the TLO would also depose, that once it was found that the money was not on the person of the respondent, on the revelation made by the complainant and shadow witness that having accepted the money the respondent had gone into the kitchen, the said part of the house was subjected to search, it belied by the simple fact that the shadow witness has deposed that he never saw the respondent going into the kitchen. Not only this, the evidence of the witnesses also shows that the entire house was subjected to search to effect the recovery of the trap money and thus there was no reason to suspect that the money would be found in the kitchen. In these circumstances, it would appear that neither the complainant nor the shadow witness had told the TLO at the outset about visit of the respondent to the kitchen.

32. The recovery of the trap money from the ‘LOTA’ in the kitchen is stated by the TLO to have been effected in the presence, amongst others, of both the independent witnesses. The latter, however, do not support him in this regard. While the recovery witness (PW 3) would say that he was outside the door of the kitchen when the said utensil was found containing the trap money, the shadow witness (PW 4) would testify that he was sitting in the drawing room where the said utensil was brought by a CBI officer. While the TLO would attribute to PW 3 the recovery of the trap money from the said utensil in the kitchen itself, which act is disowned by the latter, the other independent witness would say that the utensil had been brought to the drawing room by a CBI officer and the trap money was taken out from it in the said room. The fact remains that there is no independent corroboration of the recovery of the trap money from a utensil lying in the kitchen of the house of the respondent.

33. In view of the facts recorded above, the ld. Trial Court observed that case of the prosecution deserves to be thrown out even in the face of above facts and circumstances. But then, the prosecution also relies on the positive left hand wash and wash taken from the ‘LOTA’.

34. Further recorded that a lot of confusion in the prosecution evidence as to which hand was used by the respondent in the act of accepting the bribe money. In the initial part of his statement PW 1, the complainant, testified that the respondent had accepted the money tendered by him in her left hand and thereafter she had proceeded towards the kitchen. But, when cross-examined by the learned counsel for defence, he materially changed the said version by stating that the respondent, had received the money in her right hand when it was tendered by him to her in the kitchen. However, the prosecution failed to contradict the witness about the particular hand that was used by the respondent. Thus there is contradictory version coming from the complainant himself about the specific hand that was used by the respondent in accepting or handling the trap money.

35. Moreover, PW4, the shadow witness, has spoken about the respondent having used her right hand for receiving the money from the complainant. He was declared hostile and subjected to cross-examination by the learned prosecutor and it was suggested to him that the respondent had accepted the tainted money with her left hand. The witness would, however, deny the said suggestion to be incorrect. Since his statement about use of the left hand is similar to the subsequent version of the complainant, one wonders as to what use or relevance the left hand wash would have for substantiating the prosecution case against the respondent, in particular in the face of the fact that right hand wash was never taken.

36. Whatever significance the result of left hand wash could have to the case of prosecution against the respondent has been further rendered meaningless by a very important revelation made by the complainant in the course of his cross-examination. He would testify that in order to serve water, significantly after receiving the money, the respondent had picked up two glasses, washed them, poured water into them, served one glass to him and then had taken the other glass to the drawing room to be served to the shadow witness who was sitting there. Interestingly, the shadow witness also supports the fact of his having been served with water by the respondent in the drawing room. If the money had already been received by the respondent, and if thereafter she had washed two glass tumblers, the probability of her hand wash, be it right hand or be it left hand, giving positive result about presence of phenolphthalein powder is very remote.

37. In addition, the respondent, to the full knowledge of the complainant, had already given an adverse report against the interest of the brother and family of the latter by recommending registration of a regular case on the basis of inquiry into the complaint that had been lodged by the wife of his brother. Against this backdrop, the possibility of complainant feeling a grudge against her cannot be ignored. The complainant was visiting the house of the respondent for the first time at the time of the trap laid with the help of CBI. He could not be so open or informal with her as to enter the kitchen of her household during such first visit. The fact of his having followed the respondent into the kitchen, when she was going there “on the smell of something being cooked getting burnt”, was concealed by him in the statement given by him to the investigating officer. These facts came to be brought to light only during his cross-examination in the court.

38. In these circumstances, the ld. Trial court observed that the possibility of the complainant having abused the opportunity of access into the kitchen of the household of the respondent by planting the tainted money in a utensil lying there for falsely getting her trapped on account of grudge nursed by him cannot be ruled out. In this view, the result of wash taken from the said utensil would not deserve to be acted upon.

39. It is pertinent to mention here that in her statement recorded under Section 313 Cr.P.C., the respondent denied the evidence as incorrect and claimed to be innocent and attributed the allegations made against her to a grudge nursed by the complainant. The said assertion of the respondent stands fortified by the testimony of Mohd. Aslam, who had been examined by the respondent as DW1. Admittedly, the complainant while narrating the meeting of 22.09.1995, had categorically stated that besides his brother, his friend Mohd. Aslam (DW1) had also accompanied him to the office of the respondent on that day and that he was present when the respondent had demanded the bribe. However, it got unveiled during his statement on 08.12.1999 in the Trial Court that the said witness had been accompanying him even to the court during the proceedings. Thus, Mohd. Aslam is a person of close confidence to the complainant. And yet, in the complaint made to CBI, it was not mentioned that this person was present at the time of demand of bribe. The learned Special Judge had significantly noted that this effect was also missing in the statement of the complainant Ex. PW1/DX recorded under Section 161 during investigation. Therefore, the basic version of the complainant is completely shaken when Mohd. Aslam, appeared as DW 1, denied that any money had been demanded by the respondent in his presence on 22.09.1995 or on any other date, and further that the complainant had also not told him about any such demand having been made by the respondent, even though he had confirmed that he had been visiting the office of the respondent in the company of the complainant.

40. So far as the recovery of tainted money from ‘LOTA’ lying in the kitchen is concerned, in the case of Suraj Mal Vs. State (Delhi Administration) (1979) 4 SCC 725, it was held by the Supreme Court that mere recovery of money, divorced from the circumstances under which it is paid, is not sufficient to convict the respondent when the substantive evidence in the case is not reliable. Mere recovery of money cannot prove the case of the prosecution against the respondent in the absence of any instance to prove the payment of bribe or to show that the respondent voluntarily accepted the money knowing it to be bribe. In the case of C.M. Girish Babu Vs. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779, the Supreme Court held that mere recovery of money from the accused by itself is not enough in the absence of substantive evidence of demand and acceptance and relied upon a three-Judge Bench judgment in M. Narsinga Rao Vs. State of Andhra Pradesh, (2001) 1 SCC 691, in which the Supreme Court held as under:-

“18. …………….

24……..we think it is not necessary to deal with the matter in
detail because in a recent decision rendered by us the said aspect
has been dealt with at length. (Vide Madhukar Bhaskarrao Joshi v.
State of Maharashtra) The following statement made by us in the said
decision would be the answer to the aforesaid contention raised by
the learned Counsel: (SCC p.577, para 12):

’12. The premise to be established on the facts for drawing the
presumption is that there was payment or acceptance of gratification.
Once the said premise is established the inference to be drawn is
that the said gratification was accepted `as motive or reward’ for
doing or forbearing to do any official act. So the word
`gratification’ need not be stretched to mean reward because reward
is the outcome of the presumption which the court has to draw on the
factual premise that there was payment of gratification. This will
again be fortified by looking at the collocation of two expressions
adjacent to each other like `gratification or any valuable thing’. If
acceptance of any valuable thing can help to draw the presumption
that it was accepted as motive or reward for doing or forbearing to
do an official act, the word `gratification’ must be treated in the
context to mean any payment for giving satisfaction to the public
servant who received it.”

41. In the case of Prem Singh Yadav Vs. Central Bureau of Investigation, 178 (2011) DLT 529, the Coordinate Bench of this Court noted that testimonies of PWs 2, 3, 5 and 6 were not reliable and that the defence version had created some doubt in the prosecution case, accordingly held that recovery of tainted money alone was not sufficient to record conviction. Consequently, the accused was given the benefit of doubt.

42. It is trite that unless the judgment of acquittal is passed on no material or is perverse or the view taken by the learned Trial Judge is wholly unreasonable or is not a plausible view or there is non-consideration of any evidence or there is palpable misleading of evidence, the Appellate Court will not be justified in interfering with the order of acquittal.

43. When the conclusions of the learned Special Judge in the background of the evidence on record are tested on the touchstone of the principles set out above, I do not find there being any palpable misleading of evidence by the learned Special Judge or non-consideration of any evidence and that the judgment of acquittal having been passed arbitrarily. The learned Special Judge had correctly assessed the evidence and his finding is not vitiated by any illegality. The view which the learned Special Judge had taken is the reasonable view based on the material on record.

44. Since the evaluation of evidence by the learned Special Judge does not suffer from any infirmity or illegality or manifest error and thus, the inevitable conclusion is that the judgment dated 10.01.2003 passed by the learned Special Judge does not suffer from any infirmity to warrant interference by this Court. In fact, the learned counsel for the respondent has not been able to prove any such perversity or illegality with the impugned order.

45. Accordingly, finding no merit in the present appeal, the same is dismissed. However, there is no order as to costs.

SURESH KAIT (JUDGE)

DECEMBER 10, 2015

Sb / jg / RS

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