Decided on April 13,2012



Servesh Kumar Gupta, J. - (1.) THIS Appeal preferred against the judgment and order dated 03.03.2006 delivered by learned Additional Sessions Judge/ Special Judge, (Anti Corruption), Nainital while adjudicating the Special Sessions Trial No. 46 of 1991 titled as State Vs. Raj Bahadur Singh. Accused appellant was found guilty for the offences under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 (for brevity hereinafter called as 'Act'). Under Section 7 of the Act, he was sentenced to rigorous imprisonment for one year along with fine of Rs. 1000/ - and in default of payment of fine, he was directed to undergo 15 days simple imprisonment. Likewise, under Section 13(2) of the Act, he was sentenced to undergo two years rigorous imprisonment nay a fine of Rs. 2,000/ - and in default of payment of fine, he was directed to undergo one month simple imprisonment and it was enjoined that both the terms of the sentence should run concurrently. Having heard learned counsel for the appellant as well as learned Brief Holder for the State, it transpires that accused appellant Raj Bahadur Singh was a Constable in Excise Department in District Udham Singh Nagar. He was a member of raiding party and number of times in order to apprehend the manufacturing of contraband liquor, he raided in village Tukari Farm wherefrom the complainant Kashmir Singh hails. Three times, Kashmir Singh was found to have been involved in the said manufacturing, so he was challaned by the Excise Party. He either faced trial or deposited the fine on confession in order to get the trial finished against him. Fourth time, when the village was raided complicity of Kashmir Singh in the said crime was noticed, it is alleged that he was asked to sign some papers and threatened by accused Raj Bahadur Singh that if Rs. 500/ - were not given by Kashmir Singh to him then challan will be forwarded to the competent court.
(2.) FEELING constrained by persistent threats at the hands of Raj Bahadur Singh, on 16.06.1990 Kashmir Singh agreed to pay Rs. 500/ - after three days. Kashmir Singh, instead of paying amount silently, made up his mind to settle the score by way of making a complaint against the appellant to appropriate authority. He reached to the Superintendent of Police (Vigilance) on 18.06.1990 and made a complaint Exhibit Ka -1 with the above facts. On the very day, the Superintendent of Police (Vigilance) marked an endorsement on the complaint and ordered the Inspector to organize a trap. The trap party was arranged and appellant Raj Bahadur Singh was raided in a restaurant located in Khatima town. Raj Bahadur Singh was caught red handed with five currency notes of Rs. 100/ - denomination each having different numbers and these currency notes were tainted with phenolphthalein powder (a chemical which is used in order to detect the identity of the currency notes which are offered and received in gratification). The peculiarity of this powder is that when anything tainted in such powder is dissolved in water, the water would become colourful and so happened in this case. Accused appellant was caught red handed, so he was arrested on the spot. All the necessary and relevant memos were prepared and First Information Report was lodged against him on 19.06.1990 at 04.00 p.m. by Sub Inspector Mahendra Pal Singh. Investigation was conducted and charge sheet was submitted against him in competent court whereupon cognizance was taken by the Magistrate on 20.12.1991. Charges were levelled on 15.03.1995 against accused, who abjured the guilty and claimed trial. Prosecution examined PW1 Kashmir Singh, PW2 Jeet Singh, PW3 Nand Kishore Tyagi, Sub Inspector in Vigilance Department, PW4 Sub Inspector Daya Krishan Joshi, who was Head Constable on 19.06.1990 and posted at police station Khatima. He noted down First Information Report in the relevant diary, PW5 is Mohd. Vakil Khan, Inspector in Vigilance Department, conducted the investigation. Accused has also produced witness in defence viz. DW1 Shankar. Statement of the accused under Section 313 Cr.P.C. was recorded. He narrated the entire story of the prosecution wrong and stated that since Kashmir Singh was indulged in manufacturing of contraband liquor and was apprehended by him so in order to avenge, he has been falsely implicated by Kashmir Singh.
(3.) LEARNED counsel for the appellant has vociferously contended that complainant did not indicate date, time and place as to when and where the accused raised a demand of Rs. 500/ - as gratification to exonerate him from crime of alleged manufacturing of contraband liquor. She has relied upon the judgment rendered by Single Judge of this Court in Criminal Appeal No. 31 of 2006 titled as Ganga Ram Petwal Vs. State of U.P. decided on 12.05.2009 wherein learned Judge has expressed his view that when the complaint, in question, made to concerned officer for laying a trap did not disclose date, time and place as to when and where transaction of giving bribe was to take place, then such trap rendered doubtful.;

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