REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 797 OF 2015
(Arising out of S.L.P. (Crl.) No.8161/2013)
K.L. BAKOLIA ..Appellant
Versus
STATE THROUGH DIRECTOR, C.B.I. ..Respondent
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. This appeal assails the correctness of the judgment passed by
the High Court of Delhi in Criminal Appeal No.207/2003 dated 11.7.2013, in
and by which, the High Court confirmed the conviction of the appellant
under Section 7 and Section 13(2) read with Section 13(1)(d) of the
Prevention of Corruption Act, 1988 and the sentence imposed on him.
3. Shamsher Singh-complainant (PW4) is the sole proprietor of M/s.
Colonel’s Security Services working on contract for providing security
staff to Indian Agricultural Research Institute (IARI), Pusa, New Delhi on
annual basis from 1.03.1993 which was subsequently renewed from year to
year basis upto 31.03.1996 and the contract was due for renewal on
1.04.1996. Complainant stated that on 2.04.1996 when he contacted the
appellant for renewal of his contract and payment of his outstanding dues,
the appellant demanded Rs.50,000/- as a bribe for renewal of contract and
when complainant stated that he was not in a position to pay Rs.50,000/-,
the bribe amount was reduced to Rs.20,000/- and the complainant was asked
to meet the appellant on 3.04.1996 and pay the bribe amount. Complainant
was not interested in paying the bribe and on the same day he went to CBI
office and narrated the facts. The complainant was asked to come on the
next day with Rs.20,000/- by CBI officer. In the evening of 3.04.1996, the
appellant rang up the complainant and inquired him as to why he did not
contact him on the said date, for which, the complainant replied that he
would come to the residence of the appellant on the next day between 1.00
to 2.00 p.m.
4. On 4.4.1996, the complainant visited CBI office and he was
asked to submit his complaint in writing. Based on the complaint, FIR was
registered in RC No.24(A)/96-CBI/ACB/N.Delhi under Section 7 of the
Prevention of Corruption Act, 1988. Raiding party was constituted and pre-
trap proceedings were conducted and Rs.20,000/- consisting of forty
currency notes of rupees five hundred denomination each treated with
phenolphthalein powder were given to complainant. As the complainant alone
was supposed to go and contact the appellant, a two piece recorder
consisting of recorder and mic-cum-transmitter along with audio cassette
was put in the pocket of the complainant. A further direction was given to
the complainant to give signal to the trap party by saying ‘Gin Leejiye’.
5. The complainant and the trap party went to Pusa Complex at
about 1.45 p.m. The complainant after switching on the mic-cum-transmitter
went inside the house of the appellant who welcomed him. The appellant
inquired from the complainant ‘Laye Ho’ and the complainant replied in the
affirmative. When complainant gave the bribe amount of Rs.20,000/- to the
appellant, he raised the cushion of the sofa and asked the complainant to
keep the money under the cushion of the sofa. As the complainant insisted
that the money should be handed over in the hand, the complainant took the
tainted money in his right hand and kept it under the cushion of his sofa.
The complainant gave the signal ‘Gin Leejiye’ where after the CBI officials
rushed into the drawing room of the appellant and questioned him about the
bribe money and the appellant was perplexed and kept mum. On instructions
from the officer, PW6 lifted the cushion of the sofa and the trap money was
recovered. Wash of both the hands of the appellant in the sodium carbonate
solution turned pink. Trap laying officer prepared the seizure memo and
completed other formalities of trap proceedings. After completion of
investigation, chargesheet was filed against the appellant under Section 7
and Section 13 (2) read with Section 13 (1) (d) of the Prevention of
Corruption Act, 1988 (for short ‘the Act’).
6. To bring home the guilt of the accused, the prosecution has
examined ten witnesses. Upon consideration of the evidence, learned
Special Judge convicted the appellant under Section 7 and Section 13(2)
read with Section 13(1)(d) of the Act and sentenced the appellant to
undergo rigorous imprisonment for a period of four years on each count
with a fine of Rs.500/- each with default clause. Aggrieved by the
conviction, the appellant filed appeal before the High Court of Delhi and
vide impugned judgment, the High Court confirmed the conviction of the
appellant and also the sentence and the fine imposed on him. This appeal
assails the correctness of the same.
7. We have heard Ms. Vibha Dutta Makhija, learned Senior Counsel
for the appellant, who submitted that the initial demand was not proved by
the prosecution which is evident from the self-contradictory version of the
complainant and in the light of contradictory statement of witnesses,
recovery has become highly doubtful and the courts below erred in
convicting the appellant for the alleged receipt of illegal gratification.
The learned counsel inter-alia submitted that the occurrence was in the
year 1996 and the appellant is now aged seventy four years and prayed for
leniency.
8. Per contra, learned counsel for the respondent contended that
the prosecution has proved the demand and acceptance of the illegal
gratification by the appellant and upon appreciation of evidence, courts
below rightly convicted the appellant and the concurrent findings warrant
no interference.
9. For coming to the finding of guilt for the offence under
Section 13(1)(d) of the Act, firstly, there must be a demand and secondly,
there must be acceptance in the sense that the accused received illegal
gratification. Courts below recorded concurrent findings that there was
evidence on record to substantiate the fact that there was a demand and the
complainant paid the bribe amount to the appellant who has accepted the
same. Courts below also recorded concurrent findings that there is no
reason to discredit the testimony of the complainant (PW4) and Inspector of
Police-A.K. Kapoor (PW7). Defence plea of the accused that the currency
notes were put under the sofa without his knowledge was rightly rejected by
the courts below. Conviction of the appellant under Section 7 and Section
13(2) read with Section 13(1)(d) of the Act is unassailable.
10. In this appeal, notice was issued only limited to the question
of sentence. The appellant was sentenced to undergo rigorous imprisonment
for four years on each count of conviction under Section 7 and Section
13(2) read with Section 13(1)(d) of the Act and the sentence imposed was
ordered to run concurrently. The incident had taken place in the year 1996
about nineteen years ago and for all these years the appellant has
undergone the agony of criminal proceedings. Keeping in view the passage
of time and that the appellant is now aged seventy four years, in our
view, while upholding the conviction of the appellant, interest of
justice would be met by reducing the sentence of rigorous imprisonment of
four years to one year rigorous imprisonment. Application for exemption
from surrendering was allowed by the Chamber Judge on 20.09.2013, which was
subsequently continued until further orders by this Court’s order dated
25.11.2013. Necessary steps be taken forthwith to take the appellant into
custody to serve out the remaining part of the modified sentence. Judgment
of the High Court is accordingly modified and this appeal is allowed in
part.
……………………..J.
(T.S. Thakur)
……………………..J.
(R. Banumathi)
New Delhi;
May 15, 2015
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 797 OF 2015
(Arising out of S.L.P. (Crl.) No.8161/2013)
K.L. BAKOLIA ..Appellant
Versus
STATE THROUGH DIRECTOR, C.B.I. ..Respondent
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. This appeal assails the correctness of the judgment passed by
the High Court of Delhi in Criminal Appeal No.207/2003 dated 11.7.2013, in
and by which, the High Court confirmed the conviction of the appellant
under Section 7 and Section 13(2) read with Section 13(1)(d) of the
Prevention of Corruption Act, 1988 and the sentence imposed on him.
3. Shamsher Singh-complainant (PW4) is the sole proprietor of M/s.
Colonel’s Security Services working on contract for providing security
staff to Indian Agricultural Research Institute (IARI), Pusa, New Delhi on
annual basis from 1.03.1993 which was subsequently renewed from year to
year basis upto 31.03.1996 and the contract was due for renewal on
1.04.1996. Complainant stated that on 2.04.1996 when he contacted the
appellant for renewal of his contract and payment of his outstanding dues,
the appellant demanded Rs.50,000/- as a bribe for renewal of contract and
when complainant stated that he was not in a position to pay Rs.50,000/-,
the bribe amount was reduced to Rs.20,000/- and the complainant was asked
to meet the appellant on 3.04.1996 and pay the bribe amount. Complainant
was not interested in paying the bribe and on the same day he went to CBI
office and narrated the facts. The complainant was asked to come on the
next day with Rs.20,000/- by CBI officer. In the evening of 3.04.1996, the
appellant rang up the complainant and inquired him as to why he did not
contact him on the said date, for which, the complainant replied that he
would come to the residence of the appellant on the next day between 1.00
to 2.00 p.m.
4. On 4.4.1996, the complainant visited CBI office and he was
asked to submit his complaint in writing. Based on the complaint, FIR was
registered in RC No.24(A)/96-CBI/ACB/N.Delhi under Section 7 of the
Prevention of Corruption Act, 1988. Raiding party was constituted and pre-
trap proceedings were conducted and Rs.20,000/- consisting of forty
currency notes of rupees five hundred denomination each treated with
phenolphthalein powder were given to complainant. As the complainant alone
was supposed to go and contact the appellant, a two piece recorder
consisting of recorder and mic-cum-transmitter along with audio cassette
was put in the pocket of the complainant. A further direction was given to
the complainant to give signal to the trap party by saying ‘Gin Leejiye’.
5. The complainant and the trap party went to Pusa Complex at
about 1.45 p.m. The complainant after switching on the mic-cum-transmitter
went inside the house of the appellant who welcomed him. The appellant
inquired from the complainant ‘Laye Ho’ and the complainant replied in the
affirmative. When complainant gave the bribe amount of Rs.20,000/- to the
appellant, he raised the cushion of the sofa and asked the complainant to
keep the money under the cushion of the sofa. As the complainant insisted
that the money should be handed over in the hand, the complainant took the
tainted money in his right hand and kept it under the cushion of his sofa.
The complainant gave the signal ‘Gin Leejiye’ where after the CBI officials
rushed into the drawing room of the appellant and questioned him about the
bribe money and the appellant was perplexed and kept mum. On instructions
from the officer, PW6 lifted the cushion of the sofa and the trap money was
recovered. Wash of both the hands of the appellant in the sodium carbonate
solution turned pink. Trap laying officer prepared the seizure memo and
completed other formalities of trap proceedings. After completion of
investigation, chargesheet was filed against the appellant under Section 7
and Section 13 (2) read with Section 13 (1) (d) of the Prevention of
Corruption Act, 1988 (for short ‘the Act’).
6. To bring home the guilt of the accused, the prosecution has
examined ten witnesses. Upon consideration of the evidence, learned
Special Judge convicted the appellant under Section 7 and Section 13(2)
read with Section 13(1)(d) of the Act and sentenced the appellant to
undergo rigorous imprisonment for a period of four years on each count
with a fine of Rs.500/- each with default clause. Aggrieved by the
conviction, the appellant filed appeal before the High Court of Delhi and
vide impugned judgment, the High Court confirmed the conviction of the
appellant and also the sentence and the fine imposed on him. This appeal
assails the correctness of the same.
7. We have heard Ms. Vibha Dutta Makhija, learned Senior Counsel
for the appellant, who submitted that the initial demand was not proved by
the prosecution which is evident from the self-contradictory version of the
complainant and in the light of contradictory statement of witnesses,
recovery has become highly doubtful and the courts below erred in
convicting the appellant for the alleged receipt of illegal gratification.
The learned counsel inter-alia submitted that the occurrence was in the
year 1996 and the appellant is now aged seventy four years and prayed for
leniency.
8. Per contra, learned counsel for the respondent contended that
the prosecution has proved the demand and acceptance of the illegal
gratification by the appellant and upon appreciation of evidence, courts
below rightly convicted the appellant and the concurrent findings warrant
no interference.
9. For coming to the finding of guilt for the offence under
Section 13(1)(d) of the Act, firstly, there must be a demand and secondly,
there must be acceptance in the sense that the accused received illegal
gratification. Courts below recorded concurrent findings that there was
evidence on record to substantiate the fact that there was a demand and the
complainant paid the bribe amount to the appellant who has accepted the
same. Courts below also recorded concurrent findings that there is no
reason to discredit the testimony of the complainant (PW4) and Inspector of
Police-A.K. Kapoor (PW7). Defence plea of the accused that the currency
notes were put under the sofa without his knowledge was rightly rejected by
the courts below. Conviction of the appellant under Section 7 and Section
13(2) read with Section 13(1)(d) of the Act is unassailable.
10. In this appeal, notice was issued only limited to the question
of sentence. The appellant was sentenced to undergo rigorous imprisonment
for four years on each count of conviction under Section 7 and Section
13(2) read with Section 13(1)(d) of the Act and the sentence imposed was
ordered to run concurrently. The incident had taken place in the year 1996
about nineteen years ago and for all these years the appellant has
undergone the agony of criminal proceedings. Keeping in view the passage
of time and that the appellant is now aged seventy four years, in our
view, while upholding the conviction of the appellant, interest of
justice would be met by reducing the sentence of rigorous imprisonment of
four years to one year rigorous imprisonment. Application for exemption
from surrendering was allowed by the Chamber Judge on 20.09.2013, which was
subsequently continued until further orders by this Court’s order dated
25.11.2013. Necessary steps be taken forthwith to take the appellant into
custody to serve out the remaining part of the modified sentence. Judgment
of the High Court is accordingly modified and this appeal is allowed in
part.
……………………..J.
(T.S. Thakur)
……………………..J.
(R. Banumathi)
New Delhi;
May 15, 2015
