State Of U.P v. Jagdish Singh Malhotra .

Order

1. This appeal by special leave puts in issue an order of acquittal dated 27-3-1989 recorded by the High Court of Allahabad in Criminal Appeal No. 2461 of 1984.

2. According to the prosecution case, respondent Jagdish Singh Malhotra was posted as Regional Inspector (Technical) in the Office of the Regional Transport Officer, Kathgodam, Nainital in the year 1981. The prime mover Shri Shyam Sunder, PW 6 is owner of a number of Matador taxis. It is alleged that he wanted to obtain a fitness certificate for his Matador Vehicle No. PJQ 3455 and met the respondent in that connection. The respondent demanded a sum of Rs 1000 from him as bribe for giving the fitness certificate.

3. It is alleged that PW 6 raised an amount of Rs 1000 and made a written complaint to the Vigilance Department, Nainital against the demand of bribe by the respondent. On 14-8-1981, PW 6, accompanied by Lakhpat Rai, PW 5 and Dharam Shiel (not examined) went to the Office of the Deputy Superintendent of Police (Vigilance), Nainital, who directed them to meet Inspector B.D Thapliyal to organise a raid. They followed the advice and met Shri Thapliyal. They produced currency notes of Rs 1000 before him, who treated the same with phenolphthalein powder and gave directions about the manner in which the amount should be passed on to the respondent on his demand. Details about the manner of giving signal to the raiding party were also given by him. At about 3.30 p.m, on the same day, in the presence of Ramesh and Madan Lal, PW 6 went to the office of the respondent and on his demand, paid him Rs 1000 as bribe, for signing the fitness certificate. The raiding party appeared on the scene on receiving the signal. The respondent was caught hold of and his hands were washed in a solution of sodium carbonate, which turned pink. The fitness certificate was also recovered and a case was lodged against the respondent for offences under Section 5(1)(d), read with Section 5(2) of the Prevention of Corruption Act and Section 161 IPC. The trial court, after examining seven witnesses, including the prime mover, PW 6, recorded an order of conviction against the respondent and sentenced him to undergo two years' RI for the offence under Section 161 IPC and four years' RI for the offences under Section 5(1)(d), read with Section 5(2) of the Prevention of Corruption Act. Both the sentences were, however, directed to run concurrently. The respondent filed an appeal, challenging his conviction and sentence in the High Court. The appeal was allowed and conviction and sentence of the respondent were set aside vide judgment dated 27-3-1989. Hence, this appeal, by special leave, by the State.

4. The genesis of the case, as unfolded by the prosecution, is that for getting the fitness certificate signed from the respondent, the prime mover, PW 6 had to pay a bribe of Rs 1000, on the same being demanded, by the respondent. It is the case of the prosecution that the said amount was paid to the respondent on 14-8-1981 at about 3.45 p.m and the tainted currency notes, treated with phenolphthalein powder were recovered from the respondent by the raiding party; that the hands of the respondent were washed in a solution of sodium carbonate by the raiding party and that the solution turned pink.

5. The crucial question that arises for our consideration is, as to whether the amount of bribe of Rs 1000, the tainted currency notes were paid to the respondent, in the manner alleged by the prosecution at 3.45 p.m on 14-8-1981 for signing the fitness certificate.

6. According to PW 5 Lakhpat Rai, the procedure which is followed for obtaining the fitness certificate and payment of tax, is detailed in paragraph 19 of his deposition in the trial court. According to him, first of all permission is obtained for the permit and then fitness of the commercial vehicle is got certified. After the fitness certificate is given, road tax is assessed and that tax is to be deposited, before 2 o'clock, with the Cashier and in case it is not deposited on that day by 2 o'clock, it is to be deposited on the next day. According to PW 6 Shyam Sunder, the complainant, the prime mover also, the assessment is done according to the seating capacity and road tax is calculated on the basis of the seating capacity of the vehicle for which fitness certificate has been obtained. Shri Gopal Singh Ravat, PW 3 stated in his cross-examination that road tax is assessed after fitness of a transport vehicle is certified and road tax is deposited before 2 o'clock because fitness assessment is done only till 1.30 p.m every day. PW 3 went on to state that he was serving as a Head Clerk in the Office of the Regional Transport Officer, Kathgodam on the relevant date, and had assessed the road tax payable in respect of the vehicle in question on that date (14-8-1981) itself and had made a mention of the same at the back of the document, Ext. 15/3. According to him, assessment of road tax had been made before 1.30 p.m so that road tax could be deposited by 2.00 p.m From the statement of PW 2 Gopal Datt Joshi, who was serving as an Assistant Cashier in the Office of the Regional Transport Officer, Kathgodam, at the relevant time, the complainant, PW 6 had, on 14-8-1981 deposited the road tax of the vehicle in question and he had issued a receipt for the same. Thus, the road tax for the vehicle in question was deposited before 2.00 p.m on 14-8-1981.

7. From a conjoint reading of the above evidence, it becomes obvious that unless the fitness certificate is produced before the assessment officer, road tax cannot be assessed and that after the road tax is assessed, deposit of the same can be made before 2.00 p.m In the instant case, the statements of PW 2 and PW 3 unmistakably show that road tax had been assessed before 1.30 p.m and actual payment of road tax was also made before 2.00 p.m This could not have been done unless the fitness certificate had been earlier procured by PW 6 for it was required to be produced before the road tax assessment officer for assessment of road tax. Thus, if the fitness certificate had been obtained by PW 6 before 2 o'clock on 14-8-1981, the story that bribe of Rs 1000 was paid to the respondent for signing the fitness certificate at 3.45 p.m on that date gets falsified. Evidence of PW 2, PW 3 and PW 5, thus, knocks the bottom off the prosecution case. Madan Lal and Ramesh were not examined by the prosecution for reasons best known to it. The argument that Ramesh might have got the fitness certificate completed on giving assurance to the respondent and also road tax assessed has no basis and as a matter of fact, withholding of Ramesh, in the facts and circumstances of the case, and not examining him at the trial is a serious lacuna in the prosecution case. In view of our discussion of the evidence of PW 2, PW 3, PW 5 and PW 6, the entire version of the prosecution case becomes very doubtful.

8. Insofar as the phenolphthalein test is concerned, we find that the explanation given by the respondent for presence of crystals of phenolphthalein on his hands, which were washed in a solution of sodium carbonate, and the solution had turned pink, is quite plausible. Categorically denying the handling or receiving of the tainted currency notes, he stated that he shook hands with the officers and the phenolphthalein crystals could have come on to his hands during that time. This factor becomes probable, when we find that witnesses examined at the trial are interested witnesses who may have a reason to falsely implicate the respondent, who had been challaning their vehicles on various grounds. In this connection, it deserves notice that according to the complainant PW 6, he had raised an amount of Rs 1000 from different sources, including by collecting money from some of the members of their Union for paying bribe to the respondent; we have it from the statement of PW 5 Lakhpat Rai that “Rs 1000 to be given to the accused had been given by us from the funds of the Matador Union”. This circumstance casts a doubt on the genuineness of the prosecution case and creates an impression that the Union and its members could have falsely implicated the respondent.

9. Considered in the light of the above infirmities, no fault can be found with the well-merited order of acquittal recorded by the High Court. The judgment of the High Court is sound and based on proper and correct appreciation of evidence on the record. We do not find any infirmity in the same. This appeal, therefore, fails and is hereby dismissed. The respondent is on bail. His bail bonds shall stand discharged.