- (1.) S. J. Jafri, J. The instant appeal preferred by appellant Jagdish Singh Malhotra, arises out of Special Sessions Trial No. 5 of 1982 - Stale v. Jagdish Singh Malhotra in which appellant was convicted under Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act, 1947 and sentenced to under go R. 1. for four years" arid also a fine of Rs. 4,000 and in default of payment of fine, he was to undergo R. 1. for one year. The appellant was further convinced under section 161, I. P. C. and sentenced to undergo two years R. 1.
(2.) TO dwell upon the preliminaries of the prosecution case Jagdish Singh Malhotra was a public servant being posted as Regional inspector (Technical) in the office of Regional Transport Officer, Kathgodown, Nainital at the relevant in the year 1981. On the other hand the complainant of the case, namely, Shyam Sunder P. W. 6 was the owner of a number of Matador Taxis-plying in the district of Nainital. At the relevant time, he was also working as Secretary of Shyam Matador Union, Kichcha, district Nainital and this Union used to lake cars of the interest of the members-plying their Matador Taxis in the same district. The broad facts resulting in the occurrence of the instant case are that the complainant Shyam Sunder in the capacity of Secretary of the Aforesaid Union used to make frequent visits to the office of Regional Transport Officer Kathgodown in connection with the affairs of the Union and on 10-8-1981 as well, the complainant went to the Office of R. T. O. Kathgodown in order to secure a fitness certificate of his vehicle No. P. J. O. 3435 and, consequently, he deposited a sum of Rs. 24 as fee. Thereafter, he approached appellant Jagdish Singh Malhotra, Regional Inspector (Technical) to issue the requisite certificate. It is alleged that the appellant made an illegal demand of Rs. 1000 from the com plainant for issuance of a fitness certificate. The complainant made earnest solicitations to the aforesaid appellant but he did not relent Thereafter, com plainant again deposited a sum of Rs. 277. 50 as a road-tax on 11- 8-1981 to ply vehicle in the State of U. P and he again approached the aforesaid appellant with the receipts and papers of the vehicle imploring to issue fitness certificate but the appellant is alleged to have stuck to his earlier demand of illegal gratifica tion. On drawing a blank, the complainant is alleged to have withdrawn Rs. 277. 50 which he had deposited in the office of R. T. O. on 11-8-1981 as road-tax for plying the vehicle in the State of U. P As the complainant had been asked by the appellant to meet him with the money on 14-8-1981, the com plainant came back and held consultations with I he members of the aforesaid Union. Thereafter, a sum of Rs. 1000 was collected by aforesaid members of the Union in the denomination of eight currency notes of Rs. 100 each, four currency notes of Rs. 50 each for being offered to the appellant as illegal gratification. Thereafter, complainant Shyam Sunder alongwith Lakhpat Rai, P. W. Dharam Singh went to the office of Deputy Supdt, of Police, Vigilance Establishment, Nainital where Rarn Anuj Singh, Dy Supdt of Police, Vigilance Establishment met him and he narrated the entire events to the aforesaid Deputy Supdt. of Police including the fact that an illegal demand of Rs. 1000 had been made from him by the appellant. Upon this, complainant was directed by the aforesaid Dy. Supdt to meet B. D. Thapalyal Inspector in the Vigilance Establishment for the needful. Thereafter, complainant met Inspector B. D. Thapalyal in his office and handed over to him his complaint (Ex. Ka 12), wherein he had set out all the details of the events and also the illegal demand of Rs. 1000 made to him by the appellant. It was also solicited in the complaint by the complainant that a trap may be laid in order to arrest the appellant red-handed. The complainant, then, handed over the aforesaid currency notes to Inspector B. D. Thapalyal, who after tallying the number of the currency notes with that of the numbers mentioned in the complaint, treated those currency notes with phenolphthalein powder and handed the same back to the complainant instructing him to deliver the same to the appellant. Inspector Raraesh Chand Pandey and inspector B. D. Thapalyal prepared a solution of Sodium Carbonate and tested the aforesaid powder in the solution of Sodium Carbonate. The aforesaid solution turned pink and a sample thereof was preserved in a phial and sealed accordingly. A memo was prepared in the pretence of complainant and two witnesses, viz Ramesh Chandra Pandey and Dharamseela, Lakhpat Rai and the witnesses put their signatures on the afore said memo (Ex, Ka 2) Alter completing the aforesaid formalities, B. D. Thapal yal P. W. 1. alongwith Ramesh Chand Panday Inspector Bhim Singh Constable Ranvir Singh and the witnesses including Lakpat Rai P. W. 5 Left Kathgodown and arrived the offence of R. T. O. Kathgodam by means of a taxi and a Matador - On way to Kathgodam Inspector picked up Ramesh Pal Madanlal as witnesses from a tea-stall on the left side of the road near the R. T. O. office and they were appraised of the trap being laid for the appellant, on reaching the office of R. T. O. in the afternoon, Inspector B. D. Thapalyal directed the complainant to go inside the office of the appellant in order to deliver the money, whereupon complainant went inside the office of the appellant whereas the raiding party consisting of B. D. Thapalyal, Inspector Pandey and others hovered around behind the doors of the aforesaid office at about 3-30 p. m. on 14-8-1981 in order to overhear the talks due to take place between the com plainant and the appellant inside the office. It is alleged that on entering the office of the appellant, the complainant handed over the papers of the aforesaid vehicle for issuing the fitness certificate of the vehicle to the appellant who, on learning from the complainant that he had brought the demanded money, assured the complainant that the fitness certificate would soon be issued to him. There- after, complainant delivered the said currency notes to the appellant, who counted the same, took out the purse from his left pocket and was about to place i currency notes in purse when the Raiding party entered the office ofj the appellant and disclosing the identity, B. D. Thapalyal caught hold of the hands of Singh Malhotra appellant and recovered from his right hand, the currency notes and a black purse from hi, left hand. Thereafter, B D. Thapalyal tallied he number of the Currency notes recovered from the appellant with that of noted down by him in the memo. On further search of his person by S. D. Thapalyal one currency note of the denomination of Rs. 20 and one of the denomination of Rs. 5 were recovered. Beside the above, from the pocket of the accused, a farther amount of Rs. 2075 was also recovered. The appellant was taken into custodv and a recovery memo (Ex. Ka 4) was prepared in the presence of witnesses Shvam f complainant ). Dharamseel, Lakpat Ray Ramesh Cband tanaey ana others. Ramesh Chand Pandey got the hands of the accused washed m the solution of Sodium Carbonate and the colour of the solution turned pink. The aforesaid hand washed solution was sealed in a separate phial which was neat and clean and a memo Ex. Ka 3 was prepared on the spot in the presence of the witnesses. . Paper Ex 14/1 to 14/5 which were signed by the appellant were also taken into custody by S. D. Thapalyal and a memo Ex. Ka 4 was prepared. the accused and the recovered articles were brought to Police Station Ha down where Inspector Thapalyal wrote down a written report ex. Ka 5 am the same at 6 15 p. m. on 14-8-81 at the aforesaid Police Station He also depo sited the two sealed phials at the Police Station. A chik report of the occurrence was prepared on the basis of Ex. Ka 5 and a case under Section 161 I. P. C. and 5 (2) of the Prevention of Corruption Act was registered against the appellant at the Police Station. The appellant was put behind the lock up. The investigation in the case was conducted by Bhim Singh, P. W. 9 of Vigilance Establishment, Nainital on the orders of Supdt. of Police, Vigil; Establishment Nainital. During the course of investigation, the aforesaid solution Ex. 14 was sent for being analyzed by the Chemical Examiner in a sealed covered After completing the investigation, charge-sheet (Ex. Ka 18) was submit against the appellant. A sanction Ex. Ka 19 was also obtained from Transport sioner for launching prosecution against the appellant.
(3.) THE prosecution examined nine witnesses in all in support of its case and out of them B. D. Thapalyal, P. W. I, Lakhpat Rai, P. W. 5, Shyam Sunder P. W. 6, were examined as witnesss of recovery and the remaining witnesses were of formal nature. Accused-appellant pleaded not guilty to the charge. He denied the recovery of Rs. 1000 from him as bribe and ascribed his implication , case of enmity with the complainant as a result of his challaning plainant's vehicles one after another in close proximity which enraged , the complainant so much so that he managed to enact this drama to falsely implicate appellant.;