1 State of H.P.

V/S Mal Dutt

Sessions Trial No.: 33-S/7 of 2015
CNR No. HPSH100001862015

IN THE COURT OF SUSHIL KUKREJA, SPECIAL JUDGE

(PREVENTION OF CORRUPTION ACT), SHIMLA, H.P.

CNR No. : HPSH100001862015

CIS Case Type : Corruption Case.
CIS Registration No. 900133/2015
CIS Case year :2015
Case No.: 33-S/7 of 2015
Date of presentation : 22.05.2015
Date of Decision : 13.12.2019

State of H.P. V/S Mal Dutt, S/o late Shri Hem Chand,
Resident of Nichla Madhyana, P.O. Kot
Beja,Tehsil and PS Kasauli, District Solan,
H.P.

Police Challan under Sections 7, 13(2)

of the Prevention of Corruption
Act,1988 in FIR No.1/11 dated
18.01.2011, Police Station, State
Vigilance & Anti Corruption Bureau,
Shimla, H.P.

For the State : Sh. Sandeep Attri, Learned P.P.

For the accused : Sh. Ajay Kochhar, Advocate.

JUDGMENT

The accused Mal Dutt is facing trial for the

commission of offences punishable under Sections 7 and 13 (2)
of the Prevention of Corruption Act, 1988 hereinafter referred to
as the “Act”.

2. The case of the prosecution in brief, is that

in the year 2011, while the accused was posted as Inspector in
Police station SV & ACB, Nahan District Sirmour, H.P., an
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official inquiry was being conducted by him in respect of the

scheduled caste certificate of Smt. Preeti Bhardwaj, W/o Shri
Vinod Kumar. During the course of inquiry, on 07.01.2011,
accused through land line No. 222841 made a telephonic call
on mobile handset No. 94181-39303 of Vinod Kumar and
asked him to meet him at Rajgarh on 15.01.2011 as he was
coming to conduct inquiry and had made demand of Rs.
15,000/- in lieu of preparing and submitting favourable inquiry
report. Thereafter, on 15.01.2011 accused came to Rajgarh in
connection with inquiry and asked Vinod Kumar and his wife
Smt. Preeti Bhardwaj to remain present alongwith demanded
money and at that time, HHC Harbans Singh was the driver
with the accused in his official vehicle No.HP-03-3053. While
accused alongwith Vinod Kumar and Preeti Bhardwaj was
present inside the room at Police station Rajgarh, then HHC
Harbans Singh came inside the room two /three times and
noticed that the accused threatened Preeti Bhardwaj to be
arrested, with a view to extract the money. On 15.01.2011,
accused threatened both Vinod Kumar and Preeti Bhardwaj
and also said that if a sum of Rs. 15,000/- was not given as
demanded then Preeti Bhardwaj would be arrested. Both
Vinod Kumar and Preeti Bhardwaj told the accused at Police
Station Rajgarh that they were not able to give Rs. 15,000/- as
demanded. Thereafter, the accused asked both of them to
come to Kumarhatti, District Solan on 22.01.2011 alongwith Rs.
15,000/-. The complainant Vinod Kumar was not willing to pay
Rs. 15,000/- and consulted some of his friends, who advised
him to approach the Vigilance Department. On 18.01.2011,
both Vinod Kumar and Preeti Bhardwaj visited the Vigilance
Office at Khalini, Shimla and there met with Inspector Virender
Singh who took both of them to the then S.P. Vigilance. On
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18.01.2011, itself the then S.P. Vigilance advised Vinod Kumar

to get his statement recorded under Section 154 Cr.PC before
Inspector Virender Singh and his statement was accordingly
recorded. To ascertain the truth, on 18.01.2011, the S.P.
Vigilance asked Vinod Kumar to make a call from his mobile
Phone No. 94181-39303 to the mobile phone of the accused
bearing No. 94186-86122 and was also asked by SP to keep
the speaker on and accordingly Vinod Kumar talked with the
accused that some of the money, out of Rs. 15,000/- had been
arranged and accused asked him to deposit the same in his
bank account and he told him that the bank account number
would be intimated later on. On the same day, after a short
while, the accused contacted Vinod Kumar on his cellphone
and provided his Bank account No. 30119123233, State Bank
of India, Parwanoo Branch and asked him to deposit Rs.
12,000/- in his account number and further asked him to make
the remaining payment lateron. On the basis of statement of
complainant Vinod Kumar recorded under Section 154 of
Cr.PC Ex.PW7/A, FIR Ex.PW-19/A was registered with police
station SV & ACB, Shimla against the accused. As per the
demand made by accused for favourable inquiry report, Vinod
Kumar deposited Rs. 12,000/- in the bank account of the
accused at State Bank of India, New Shimla Branch vide
receipt Ex.PW7/B. During investigation of the case, documents
regarding accused's appointment, promotion and transfer
orders were taken into possession and the same are Ex.PA,
Ex.PB and Ex.PC respectively. On 23.01.2011, accused was
arrested from the house of Gyano Devi from U.S. Club, Shimla
in the presence of HC Dayawati in this case. On 24.01.2011,
accused was produced in the Court for seeking remand but
was released on bail on the same day. Vinod Kumar handed
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over his Nokia Mobile handset Ex.P2 bearing No. 94181-

39303 along with SIM card Ex.P3 to the Investigating officer
(I.O.) and the same was sealed in a parcel by affixing seal “H”
nine in number and the same was taken into possession
alongwith receipt Ex.PW7/B vide memo Ex.PW7/C and sample
seal impression Ex.PW7/D. The said case property was
deposited with MHC, Police station on the same day. During
investigation, inquiry file Ex.PW13/F pertaining to caste
certificate of PW8 was also taken into possession by I.O. vide
memo Ex.PW13/A. Vide letter Ex.PW-10/A, Nokia Mobile
handset alongwith SIM card belonging to complainant Vinod
Kumar were sent to CFSL, Hyderabad for examination. Sh.
P.N. Rama Krishnan examined the mobile handset and SIM
card at CFSL, Hyderabad and during examination, retrieved
internal memory data from phone and SIM card and prepared a
CD of retrieved data alongwith a hard copy and he handed
over his report Ex.PW-10/B alongwith the material to the
messenger, who has come with letter Ex.PW-10/C vide letter
Ex.PW-10/D written by Head of the Division Shri Y. Surya
Prakash. CD containing the retrieved data is Ex.P5. The IO
required copy of CD for further investigation and in this regard,
he moved an application Ex.PW-21/E before Ld. JMIC (1),
Shimla and copy of order passed regarding the application is
Ex.PW-21/F. PW-15 HC Jagdeep Kumar Mokta with the help
of laptop prepared copy of CD in the court of Ld. JMIC (1),
Shimla in the presence of Ld. JMIC (1), Shimla and the Ld.
Magistrate on playing the CD also heard the conversation. The
master CD Ex.P5 was sealed with court seal. Copy prepared
from master CD was handed over to HC Jagdeep Kumar
Mokta who prepared transcript Ex.PW-15/A (two pages), out of
copy of CD. Dy.S.P. Rajinder Kumar Sharma also got prepared
 5 State of H.P. V/S Mal Dutt
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transcript from copy of CD Ex.PW-11/C (four pages). On

04.08.2011, in the presence of witnesses Kuldeep Singh
Chandel and Mahavir Singh, accused gave consent
Ex.PW20/A to obtain voice sample. The tape recorder and
cassette 'T' series were arranged for obtaining voice sample.
The accused was provided material to speak. As per
accused's consent memo Ex.PW20/A, voice sample was taken
by inserting 'T' series cassette inside tape recorder. The
cassette Ex.P6 containing voice sample was taken into
possession vide memo Ex.PW20/B after putting the cassette in
a parcel, which was sealed with seal impression “J” and
separate seal impression is Ex.PW20/C. On 05.08.2011, the
voice sample of complainant was taken vide memo Ex.PW7/E
by adopting the same procedure. The cassette Ex.P1
containing the voice sample of complainant was taken into
possession and sealed in a parcel. For matching the voice
samples of accused and complainant, master CD was sent to
CFSL Chandigarh, but, the same was returned back
unexamined and in this regard, letter is Ex.PW-21/J & refusal
letter is Ex.PW-21/K. Thereafter, the voice samples were sent
to CFSL, New Delhi, through letter Ex.PW21/L but after 2-3
months the samples were withdrawn as the same were refused
to be examined by CFSL New Delhi and in this regard
documents are Ex.PW-21/L to Ex.PW-21/O. After that the
voice samples were sent to SFSL, Gandhi Nagar Gujarat and
in this regard documents are Ex.PW-17/A & Ex.PW-21/P. As
per report, Ex.PW-17/B received from SFSL, Gandhi Nagar
Gujarat, the voice sample of complainant was found in order,
whereas, the voice sample of the accused was not clear as
there was background noise. Thereafter, fresh voice sample of
the accused was taken on 24.01.2013 vide consent memo
 6 State of H.P. V/S Mal Dutt
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Ex.PW-20/D by adopting the same process. Cassette is

Ex.P6, memo is Ex.PW-20/E, seal impression is Ex.PW-20/F
and tape-recorder is Ex.P4. Accused's voice sample taken on
24.01.2013 vide letter Ex.PW-11/A alongwith all relevant
material i.e. copy of report of CFSL Hyderabad, copy of FIR,
copy of court proceedings, copy of recovery memo, seal
impression etc. were sent to Forensic Science Laboratory
Gujarat for examination alongwith certificate of authority
Ex.PW-11/B and transcript of the conversation Ex.PW-11/C
(four pages). After examining all the material and voice
sample, PW-11 Kundan Bhai Jivraj Bhai issued his report,
which is Ex.PW-11/D. The report Ex.PW-11/D was collected by
HHC Pawan Kumar vide letter Ex.PW-11/E dated 02.02.2015
on 05.02.2015 against receipt. The examiner had properly
sealed the material as mentioned in the report Ex.PW-11/D.
The report Ex.PW-11/D revealed that the voice exhibits of the
speaker are similar and are of the same person i.e. accused
Mal Dutt with probable identity. During investigation, I.O. took
into possession copies of logbook of accused's official vehicle
Ex.PW-13/B, search memo of the house of the accused
Ex.PW-13/C, copies of rapats, lodged from time to time in this
case Ex.PW-13/D & Ex.PW-13/E and complaint file Ex.PW-
13/F vide memo Ex.PW-13/A in presence of witnesses HC
Sudhir Chauhan and C. Radha Krishan. The genuineness of
rapats Ex.PW-13/D & Ex.PW-13/E, certificate under Section
65-B of the Evidence Act was issued by HC Manoj Kumar
which is Ex.PW-14/A. Vide letter Ex.PW-1/A, the IO obtained
record from SBI, New Shimla Branch Ex.PW-1/B-1 form
regarding depositing of amount and Ex.PW-1/B-2 copies of
account book register and in this regard letters of bank are
Ex.PW-1/C-1 & Ex.PW-1/C-2 to the effect that account
 7 State of H.P. V/S Mal Dutt
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No.30119123233 with SBI branch Parwanoo belongs to the

accused. IO also took into possession record from SBI branch,
Parwanoo i.e. copies of account opening form regarding the
account of the accused alongwith identification proof and
address proof, which are Ex.PW-3/A-1 to Ex.PW-3/A-12 issued
by Shri Raman Kukreti, whose signatures have been identified
by PW-3 Sanjeev Gupta. Sanjeev Gupta, Chief Manager, SBI
handed over to the IO the statement of account, locker
agreement and application for locker Ex.PW-3/B-1 to Ex.PW-
3/B-6 and the same were taken into possession vide memo
Ex.PW-3/C. As per Ex.PW-3/B-1, on 20.11.2018 ₹ 12,000/-
stood deposited in the account of the accused. The accused's
statement of account (six pages) was also obtained by the IO,
which is signed by Shri Ajay Bansal, Deputy Manager of the
bank and was handed over to the police vide letter Ex.PW-3/E.
Hanumant Rai, Sub-Divisional Engineer, BSNL, CTO, the Mall
Shimla, on the request of police, vide letter Ex.PW-4/A supplied
the call detail records of mobile No.94186-86112 and 94181-
39303 to the police alongwith the billing address. The record of
call details is Ex.PW-4/C and the billing address is Ex.PW-4/B.
The certificate under Section 65-B of Evidence Act, in this
regard is Ex.PW-4/D. Vinay Kumar, JTO, BSNL Nahan, on the
request of police, vide letter Ex.PW-5/A supplied to police call
detail reports of mobile Nos.94181-39303, 94186-86122 and
landline No.01702-222841 Ex.PW-5/B and requisite certificate
under Section 65-B of Evidence Act is Ex.PW-5/C. Ram Saran
Verma, Sub Divisional Engineer (Mobile) B.S.N.L. Nahan
received E-mail from police to supply the billing address of
telephone No.01702-222841 and present place of posting of
Shri Vinay Kumar and requisite information was E-mailed, of
which, print out is Ex.PW-6/A. On completion of the
 8 State of H.P. V/S Mal Dutt
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investigation, the charge-sheet against the accused was

prepared and presented before the Court under Section 7 of
Prevention of Corruption Act punishable under Section 13(2) of
the Act.

3. After having found sufficient grounds to proceed

against the accused, this Court framed charges under Section
7 & 13 (2) of Prevention of Corruption Act, 1988 against the
accused. The accused pleaded not guilty and claimed trial.

4. The prosecution examined as many as 21

witnesses to substantiate the allegations against the
accused. On closure of the prosecution evidence, the
accused was examined under Section 313 Cr.P.C. He
pleaded innocence and false implication by stating that he
had been falsely implicated in the present case. In
defence, no witness was examined by the accused despite
opportunity granted in this respect.

5. I have heard the learned Public Prosecutor for

the State and the learned defence counsel for the accused
at length and also gone through the record of the case
including the written arguments filed by the Ld. P.P. The
following points arise for determination in this case: -

1. Whether the prosecution has been able to

prove its case against the accused beyond all
reasonable doubt?

2. Final Order.
 9 State of H.P. V/S Mal Dutt
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6. For the reasons to be recorded hereinafter

while discussing the aforesaid points for determination, my
findings on the above points are as under:

Point No.1. Yes.

Final Order. Accused is convicted as per

operative portion of the
judgment.

REASONS FOR FINDINGS.

Point No.1.

7. The learned Public Prosecutor vehemently

argued that the prosecution has been able to prove the
guilt of the accused beyond doubt and the deposition of
the prosecution witnesses are reliable, trustworthy and
confidence inspiring and their statements are sufficient to
base the conviction of the accused.

8. On the other hand, the learned defence

counsel contended that there is no cogent and reliable
evidence to prove that the accused demanded the bribe
money or had accepted it from the complainant as such
the prosecution has failed to prove the guilt of the accused
beyond reasonable doubt.

9. It is an admitted fact that the accused Mal Dutt

was posted as Inspector in the Police Station (SV & ACB)
Nahan, District Sirmour in the year 2011 and he was
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conducting an official inquiry with respect to the scheduled

caste certificate issued in favour of PW-8, Smt. Preeti
Bhardwaj who is the wife of the complainant i.e. PW-7
Sh. Vinod Kumar. The case against the accused is that
while he was being posted as Inspector, Police station SV
& ACB, Nahan District Sirmour, he demanded a sum of Rs.
15,000/- from the complainant to give a report in favour of
Smt. Preeti Bhardwaj by abusing his position as a public
servant in the inquiry pending before him and on the
asking of the accused a sum of Rs. 12,000/- was
deposited by the husband of Smt. Preeti Bhardwaj namely
Shri Vinod Kumar on 18.01.2011 in his bank account as
illegal gratification.

10. The complainant Vinod Kumar appeared in the

witness box as PW-7 who deposed that a vigilance
inquiry which was being conducted by the accused Mal
Dutt was in progress relating to the caste certificate
issued in the name of his wife Preety Bhardwaj. He further
deposed that on 07.01.2011, the accused telephoned him
and told him that he was coming to Rajgarh for inquiry on
15.01.2011 and he (PW-7) should keep Rs.15,000/- ready
and on 15.01.2011 he (PW-7) alongwith his wife were
called to police station Rajgarh by accused where his wife
was threatened by the accused in Police station. He
further deposed that accused demanded Rs. 15,000/-
from them and remarked that he would send the inquiry
report in his favour. When he (PW-7) told the accused that
he was not in a position to arrange money, then the
 11 State of H.P. V/S Mal Dutt
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accused asked him to come with Rs. 15,000/- to

Kumarhatti, District Solan on 22.01.2011. He further stated
that since he was not willing to pay bribe, he was advised
by some of his friends to approach the Vigilance
Department and as such, he alongwith his wife went to
the Vigilance Office at Khalini Shimla on 18.01.2011 where
Inspector Virender met him in office who took him to SP
Vigilance. The SP inquired from them about the details of
the incident and advised him (PW-7) to make a statement
before Inspector Virender and were also advised by SP to
telephone the accused to ascertain the truth and were also
asked by the S.P. to keep the speaker of the mobile
phone on. He further deposed that he dialed the accused
from his mobile phone number 94181-39303 on his
mobile phone and had a talk with the accused and told
him that some of the money out of Rs. 15,000/- had been
arranged. The accused remarked that he was on his way
and he would call him back after some time. He also
remarked that he would give his bank account number to
him after some time. The accused then rang him up from
his office and gave the account number 30119123233. The
accused told him that he should deposit Rs. 12,000/- in
the said account and total payment of Rs. 15,000/- was
required to be made by him. He further stated that Rs.
12,000/- were deposited by him in State Bank of India,
New Shimla Branch in the account of the accused vide
receipt Ex.PW7/B. PW-8, Preeti Bhardwaj, who is the wife
of complainant corroborated the statement of PW-7.
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11. PW-12 HHC Harbans Singh, driver in the Police

Station SV & ACB Nahan deposed that on 14.01.2011, he
(PW-12) and Inspector Mal Dutt (accused) went in the official
vehicle to H.P.P.W.D. Rest House Rajgarh in connection with
an inquiry against Smt. Preeti Bhardwaj and she was called to
the Rest House for inquiry but she did not turn up. During the
night, he and accused stayed in H.P. PWD Rest House
Rajgarh. He further stated that they waited for Smt. Preeti
Bhardwaj in the Rest House on 15.01.2011 till 9.30 AM but she
did not come and therefore they left the Rest House for Police
Station Rajgarh and on the way to the Police Station, a vehicle
met them in which Smt. Preeti Bhardwaj and her husband were
travelling and they stopped our vehicle. Seeing Smt. Preeti
Bhardwaj and her husband, the accused remarked that since
they were late, they should follow him in their vehicle to police
station Rajgarh. On their way to police station in official vehicle,
the accused instructed him that in case Smt. Preeti Bhardwaj
and her husband talked to him or offered any money, he should
tell them that they should talk to the accused. He further
deposed that thereafter he parked the vehicle near Police
Station, Rajgarh and the accused, Smt. Preeti Bhardwaj and
her husband went inside Police station, Rajgarh. After 15-20
minutes, when he (PW-12) went inside the police station, he
noticed that the accused was telling Smt. Preeti Bhardwaj that
she had committed a wrong by obtaining false certificate. Smt.
Preeti Bhardwaj was claiming to be innocent and said that the
fault lies with the issuing authority. He (PW-12) came out of the
room in which the accused, Smt. Preeti Bhardwaj and her
husband were present. After some time, Sh. Vinod Kumar
husband of Smt. Preeti Bhardwaj came to him, he was scared
and asked him to request the accused to settle the matter after
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taking the money. He (PW-12) told him in Punjabi language

that he can do nothing and he should talk to the accused. He
(PW-12) again went inside the room after some time where the
accused was writing something and remarked that Smt. Preeti
Bhardwaj was to be arrested. He (PW-12) came out of the
room. Sh. Vinod Kumar who was scared, again approached
him and asked him to request the accused not to arrest his
wife. He told Sh. Vinod Kumar that he was not in a position to
help them. The accused was threatening Smt. Preeti Bhardwaj
etc. with a view to extract the money. He further deposed that
thereafter, they left the police station. The accused got into the
private vehicle of Smt. Preeti Bhardwaj and her husband to
travel up to Solan and he (PW-12) was instructed by the
accused to follow him in the official vehicle up to Solan and
from Solan, he (PW-12) and the accused left in the official
vehicle for Nahan.

12. PW-4 Sh. Hanumant Rai, Sub Divisional Engineer

(Security) BSNL Shimla deposed that he supplied the call
details record Ex.PW4/C to the police alongwith billing address
Ex.PW4/B with respect to the Mobile Numbers 94186-86122
and 94181-39303. He further deposed that the certificate
Ex.PW4/D under Section 65-B of the Indian Evidence Act was
also issued by him. This witness was recalled and he further
stated that the IMEI Number mentioned in the mobile phone
handset Ex.P2 is 35931002742254 and the call detail record
Ex.PW4/C, the last digit “2” is missing. He further deposed that
IMEI Number is only of 14 digits and the last digit is the check
number which is to check any particular IMEI Number by the
mobile manufacturer. He also stated that the last digit pertains
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only to the manufacturer and it does not affect the telecom

service provider.

13. PW-5 Vinay Kumar, Junior Telecom Officer,

deposed that CDR Ex.PW5/B was generated by him and was
handed over to Police. He further deposed that the certificate
under Section 65-B of the Indian Evidence Act Ex.PW5/C was
also issued by him.

14. PW-6 Sh. Ram Saran Verma deposed that an e-

mail was received from the Police to supply the billing address
of telephone No. 01702-222841 and the present place of
posting / permanent address of PW-5 Sh. Vinay Kumar which
was e-mailed by him to the police vide print out Ex.PW6/A.

15. PW-10 Sh. P.N Rama Krishnan, Assistant Director

(Physics), CFSL Hyderabad deposed that on the request of the
police he examined and retrieved the internal memory data
from the Nokia Mobile Phone Ex.P-2 and SIM Card Ex.P3. He
further deposed that a CD Ex.P5 and hard copy of the retrieved
data was prepared by him and he issued the report Ex.PW10/B
which was handed over to the messenger alongwith Mobile
Phone and CD vide letter Ex.PW10/C.

16. PW-11 Sh. Kundan Bhai Jivraj Bhai Golania

deposed that he examined CD Ex.P5 and audio cassette Ex.P6
and gave the report Ex.PW11/D. He further deposed that the
report was collected from the Laboratory by HHC Pawan
Kumar vide letter Ex.PW11/E against receipt on 05.02.2015.
17. PW-17 Smt. Meera Kapil Patel, Scientific Officer
(Retired) Physics Division, Directorate of Forensic Science
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Gandhi Nagar Gujarat deposed that voice samples of Sh.

Vinod Kumar (complainant) and the accused were sent to the
Laboratory for examination and she examined the same and
gave the report Ex.PW17/B. She further deposed that since
the voice sample of the accused Mal Dutt was not clear and
was noisy, no definite opinion could be given. She also
deposed that the transcript of the conversation recorded in both
the cassettes was also received in the Laboratory in the sealed
parcel Ex.PW11/C and the cassettes were sent back to SP, SV
& ACB Shimla alongwith report after the examination.

18. PW-1, Sh. Jagdish Chand, Chief Manager SBI

deposed that as per letter Ex.PW1/A, the documents
Ex.PW1/B-1 and Ex.PW1/B-2 were supplied vide letters
Ex.PW1/C-1 and Ex.PW1/C-2 pertaining to the account of Mal
Dutt Sharma. PW-2 Ashok Gupta, Cash Officer SBI
corroborated the statement of PW-1.

19. PW-3 Sh. Sanjeev Gupta, Chief Manager SBI

Parwanoo Branch deposed that his predecessor Shri Raman
Kukreti had supplied the documents like copies of account
opening form of the accused alongwith Identification proof and
address proof Ex.PW3/A-1 to Ex.PW3/A-12 to the Police vide
letter dated 20.01.2011. He further deposed that he handed
over the copies of account statement, locker agreement,
application for locker received from the accused Ex.PW3/B-1 to
Ex.PW3/B-6 to the police vide letter dated 07.03.2015
regarding which memo Ex.PW3/C was prepared which bears
his signatures as witness. He further deposed that account
statement Ex.PW3/D was signed by Sh. Ajay Bansal, Dy.
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Manager of the Bank which was handed over to the police vide
letter Ex.PW3/E.

20. PW-18, Inspector Ajay Bhardwaj, deposed that on

07.03.2015, he took into possession the statement of account
Ex.PW3/B-1, and documents Ex.PW3/B-2 to B-6 vide memo
Ex.PW3/C from the Chief Manager SBI Parwanoo.

21. PW-9, HC Balwinder Singh deposed that on

18.01.2011 Inspector Virender Chauhan handed over to him
Ruqua / statement Ex.PW7/A and he took the same to Police
Station SV & ACB, Shimla and after registering the FIR, the
MHC handed over the case file to him which was delivered by
him at the room / office of Inspector Virender Chauhan.

22. PW-13, HC Sudhir Chauhan deposed that on

20.01.2011, while he was posted as MHC, Police station SV &
ACB Nahan, Sh. Balbir Singh Dy.SP handed over copy of the
log book Ex.PW13/B, search memo Ex.PW13/C of the house
of the accused, copies of rapat No. 6 and 5 Ex.PW13/D &
Ex.PW13/E and file of complaint No. 28/2010 dated 06.02.2010
Ex.PW13/F to Shri Rajinder Sharma, Dy. SP, the Investigating
officer of the case vide memo Ex.PW13/A.

23. PW-14 HC Manoj Kumar deposed that Certificate

Ex.PW14/A under Section 65-B of the Indian Evidence Act was
issued by him. He further deposed that when the rapats were
entered, the computer system in the Police Station was
functioning properly.
 17 State of H.P. V/S Mal Dutt
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24. PW-15 HC Jagdeep Kumar deposed that on

12.07.2011, he was directed by Sh. Rajinder Sharma (Dy.SP)
to go to the Court with a lap top and blank CDs to prepare a
copy of the CD which was received from CFSL Hydrabad. He
further deposed that the sealed parcel which was received from
CFSL Hydrabad was produced in the Court of learned Judicial
Magistrate Ist Class (1) Shimla. The parcel was got opened by
the learned Magistrate which was containing a CD. The laptop
which they were carrying was checked by the Learned
Magistrate and the CD was played. Blank CD was also
checked by the learned Magistrate. He further deposed that
thereafter, a copy of the CD received from the Laboratory was
prepared by him by copying the data and the CD was again
run on the laptop by learned Magistrate and the conversation
was heard. Master CD Ex.P5 received from the laboratory was
then sealed in the Court by affixing eight seals of the Court.
Impression of the seal used was taken on a piece of cloth.
Copy of the master CD was handed over to him by the Court.
Transcript Ex.PW15/A of the CD was prepared by him which
bears the signatures of Shri Rajinder Sharma, Dy. SP
Vigilance.

25. PW-16, HC Dayawati deposed that she

accompanied Police team headed by Shri Rajidner Sharma
Dy.SP in search of the accused alongwith two independent
persons. She further deposed that the accused met them in the
residence of Smt.Gyano Devi and the room of Smt. Gyano
Devi was searched where she produced one Mobile Phone.
She further deposed that on 18.01.2011, Inspector Virender
Chauhan deposited a Mobile Phone of Vinod Kumar in the
Malkhana which was sent to Hydrabad Laboratory on
 18 State of H.P. V/S Mal Dutt
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03.03.2011 and it was again deposited with her in the

Malkahana on 30.05.2011 by Shri Rajinder Sharma Dy.SP.

26. PW-19 Inspector Virender Singh deposed that on

18.01.2011, Shri Vinod Kumar complainant came to the office
of Special Investigation Unit, SV & ACB alongwith his wife Smt.
Preeti Bhardwaj to meet SP Vigilance Shimla and he facilitated
the meeting between them. He further deposed that SP
directed him to record the statement of the complainant under
Section 154 Cr.PC and the same was recorded by him which
is Ex.PW7/A. He further deposed that he sent the statement
through constable Balwinder Singh to the SHO Police station
SV & ACB Shimla for registration of FIR which was accordingly
registered and the same is Ex.PW19/A. He also stated that on
the same date complainant produced his Nokia Mobile phone
Ex.P2 with SIM Number 94181-39303, Ex.P3 and the case
property was deposited by him with MHC in the Police Station.
He further deposed that on 03.03.2011, he took the sealed
parcel from the MHC and carried it to CFSL Hydrabad and on
07.03.2011 sealed parcel alongwith sample seal was deposited
by him in the laboratory vide receipt Ex.PW19/B in the
laboratory.

27. PW-20 Sh. Kuldeep Singh Chandel, the then

Dy.SP, SV & ACB (SIU) Shimla deposed that on 04.08.2011,
Sh. Rajinder Sharma, Dy.SP called the accused for obtaining
his voice sample and the consent of the accused was obtained
vide memo Ex.PW20/A. He further deposed that a tape
recorder was arranged and a cassette of T-series was inserted
in it. The accused was provided the material which he was
required to speak and he read out the material given to him
 19 State of H.P. V/S Mal Dutt
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and the cassette was taken out from the tape recorder. The
cassette was taken into possession vide memo Ex.PW20/B. He
further deposed that on 05.08.2011. Complainant Sh. Vinod
Kumar was called for obtaining his voice sample and he gave
his consent vide memo Ex.PW7/E. A tape recorder was
arranged and cassette of T-series was put in the tape recorder.
The material was supplied to Sh. Vinod Kumar to read the
same and he read out the material and his voice sample was
taken. The cassette was then taken out of the tape recorder.
Both the cassettes and tape recorder were separately sealed.
He further deposed that on 24.01.2013, the accused was again
called to the office since the voice sample earlier taken was
insufficient for the purpose of comparison. Consent memo
Ex.PW20/D was prepared, transcript was supplied to the
accused and his voice sample was taken and cassette was
taken into possession vide memo Ex.PW20/E.

28. PW-21, Dy.SP Rajinder Kumar Sharma who is the

Investigating officer deposed that on 19.01.2011 he received
the present case for investigation. On 20.01.2011, he went to
Nahan and took into possession inquiry file pertaining to Smt.
Preeti Bhardwaj from the then Dy. SP Vigilance, Nahan. He
also took into possession, Abstract of Log book Ex.PW13/B,
Copies of Daily Dairy Ex.PW13/D and Ex.PW13/E and
complaint file Ex.PW13/F. He further deposed that Dy.SP
Balbir Jaswal was requested to search the residence of the
accused and he conducted the search vide memo Ex.PW13/C.
On 19.01.2011, he wrote a letter to Manager SBI Parwanoo
regarding the freezing of the bank account of the accused
which is Ex.PW21/A and he received the reply Ex.PW3/A. He
also deposed that accused was arrested by him on 23.01.2011
 20 State of H.P. V/S Mal Dutt
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and was produced by him before the court on 24.01.2011,

where he was released on bail on the same day. On
28.01.2011, he moved an application Ex.PW1/A to the
Manager SBI New Shimla Branch for obtaining counter foil of
pay-in-slip Ex.PW1/B-1 regarding deposit of alleged amount of
Rs. 12,000/- by the complainant in the account of the accused.
He also obtained call details report of conversation and billing
address of the mobile phone of the accused, land line phone of
PS Vigilance, Nahan and mobile number of the complainant.
On 20.01.2011, he wrote a letter to General Manager (Mobile)
BSNL Shimla for providing Billing address and call details of
Sh. Vinod Kumar and accused Mal Dutt and the record was
obtained through e-mail. He further deposed that Inspector
Virender Chauhan who had partly investigated the case had
taken into possession mobile phone of complainant and the
same was sent to CFSL Hydrabad and the report in this regard
was received through HC Ramesh Chand. He further deposed
that he preferred an application before Ld. JMIC (1), Shimla for
preparing the copy of the CD regarding the conversation which
took place between the complainant and the accused and the
copy of the CD from Master CD was prepared which was
handed over to him. He also deposed that voice sample of
accused and the voice sample of complainant were taken after
obtaining their consent and for matching their voice sample
with master CD, the same were sent to CFSL Chandigarh but
were returned back unexamined. Thereafter, the above articles
were sent to CFSL New Delhi but after 2-3 months the samples
were withdrawn as CFSL Delhi also refused to examine the
same. Again the above samples were sent to SFSL
Gandhinagar and report Ex.PW17/B was received in this
respect. As per the report, the voice sample of the complainant
 21 State of H.P. V/S Mal Dutt
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was found in order whereas the voice sample of the accused

was not clear because there was background noise, hence no
finding was recorded. On 24.01.2013, consent of the accused
was again taken for taking voice sample and as per the
procedure the voice sample was taken in an audio cassette
Ex.P1 and vide letter Ex.PW11/A, the sample alongwith master
CD were sent to SFSL Gandhinagar Gujarat for analysis and a
report Ex.PW11/D was received in this respect. The copies of
the appointment and posting orders of the accused were
obtained. The certified copies of the statement of account, copy
of account opening form and other documents were also
obtained from SBI Parwanoo. Lastly, he deposed that on
completion of the investigation he handed over the case file to
Additional SP Vinod Kumar SHO PS Vigilance Shimla on
16.05.2015.

29. I have closely scrutinized the entire evidence on

record and from the closer scrutiny thereof it has become clear
that a Vigilance Inquiry was being conducted by the accused
Mal Dutt, the then Inspector Police Station SV & ACB Nahan,
District Sirmaour relating to the issuance of Scheduled Caste
Certificate in the name of Ms. Preeti Bhardwaj who is the wife
of complainant Vinod Kumar. The version of complainant Vinod
Kumar who appeared in the witness box as PW-7, Ms. Preeti
Bhardwaj PW-8 and PW-12 HHC Harbans Singh would show
that on 07.01.2011, the accused made a telephonic call from
his land line telephone No. 222841 to the complainant Vinod
Kumar on his mobile Phone No. 94181-39303 that he was
coming to Rajgarh on 15.01.2011 for conducting the inquiry
and the complainant should arrange a sum of Rs. 15,000/- in
order to get the favorable inquiry report. The evidence on
 22 State of H.P. V/S Mal Dutt
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record would further reveal that on 14.01.2011, the accused

went in the official vehicle which was being driven by PW-12
HHC Harbans Singh to HPPWD Rest House Rajgarh in
connection with the inquiry against Smt. Preeti Bhardwaj where
she was called to participate in the inquiry but she did not turn
up till 9:30 AM on 15.01.2011. Thereafter, the accused left the
rest house for Police Station Rajgarh alongwith PW-12 HHC
Harbans Singh in the official vehicle and on the way, they came
across a vehicle in which Smt. Preeti Bhardwaj alongwith her
husband Sh. Vinod Kumar were travelling and the accused
instructed them to follow him in their vehicle to Police Station
Rajgarh where the statement of Smt. Preeti Bhardwaj was
recorded by the accused. When her statement was being
recorded, she was threatened by the accused that she would
be arrested and the accused asked the complainant and his
wife to come with Rs. 15,000/- to Kumarhatti, District Solan on
22.01.2011 in order to get the inquiry report in her favour.
However, the complainant told the accused that he was not in
a position to arrange the money. Since the complainant was
not willing to pay Rs. 15,000/- to the accused, he approached
the Vigilance Office at Khalini Shimla on 18.01.2011 where
they met PW-19 Inspector Virender Singh who took them to
S.P. Vigilance who advised the complainant to make a
statement before Inspector Virender Singh and was also
advised by S.P. Vigilance to make a telephonic call to accused
to ascertain the truth. On this, the complainant Vinod Kumar
made a telephonic call from his mobile number 94181-39303 to
the Mobile phone of the accused bearing No. 94181-86122 and
had a talk with the accused and told him that some of the
money out of Rs. 15,000/- had been arranged. The accused
told the complainant that he was travelling in a bus and will call
 23 State of H.P. V/S Mal Dutt
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him back after reaching the office and will give him his bank
account number. After some time the complainant received the
telephonic call from the accused from his office. The SP
Vigilance asked the complainant to switch on the speaker of
the phone and to record the conversation and the complainant
told the accused that he could arrange only Rs. 12,000/- and
the accused told him to deposit Rs. 12,000/- in his account. He
also gave his bank account number of State Bank of India,
Parwanoo branch to the complainant and thereafter Rs.
12,000/- were deposited by the complainant in the bank
account of the accused from State Bank of India, New Shimla
branch on 18.01.2011 itself. All the aforesaid witnesses i.e.
PW-7, PW-8 and PW-12 were cross examined at length by the
Ld. Defence counsel, however their testimony remained
unimpeached despite their lengthy cross examination.

30. The evidence on record further reveals that the

statement of the complainant was recorded by PW-19
Inspector, Virender Singh which is Ex.PW7/A and during the
investigation the mobile phone handset of the complainant
Ex.P2 alongwith SIM Card Ex.P3 and the receipt of the bank
regarding deposit of the amount of Rs. 12,000/- Ex.PW7/B
were taken into possession. The evidence would further show
that PW-21 moved an application Ex.PW21/A to the Manager
SBI, New Shimla branch for obtaining the documents regarding
deposit of amount of Rs.12,000/- in the bank account of
accused. PW-1 Chief Manager SBI, New Shimla branch
handed over to the Police the voucher Ex.PW1/B-1 and Teller
receipt Ex.PW1/B-2 which proves that the amount of Rs.
12,000/- was deposited in the bank account of accused on
18.01.2011. PW-3 Sanjeev Gupta, the then Chief Manager
 24 State of H.P. V/S Mal Dutt
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SBI, Parwanoo branch handed over to police the copies of

account opening form of accused alongwith identification proof
and address proof Ex.PW3/A-1 to Ex.PW3/A-12 which clearly
proves that the account in question belongs to the accused.
He also handed over to the police the statement of account
Ex.PW3/B-1 pertaining to the bank account of accused. The
perusal of statement of account Ex.PW3/B-1 also shows that a
sum of Rs. 12,000/- has been deposited in the bank account of
the accused.

31. PW-4, Hanumant Rai, Sub Divisional Engineer

(Security ) BSNL proved the call detail record of mobile phone
of the accused bearing No. 94186-86122 and the call detail
record of mobile phone of the complainant bearing No. 94181-
39303 which is Ex.PW4/C alongwith the billing address
Ex.PW4/B which proves that the mobile phone bearing No.
94186-86122 belongs to the accused whereas the mobile
phone bearing No. 94181-39303 belongs to the complainant.
He also proved the certificate Ex.PW4/D issued under Section
65-B of the Indian Evidence Act. He denied the suggestion that
call detail records were manipulated and tampered with.

32. The Ld. Defence counsel contended that the

prosecution could not place on record any clinching and
confidence inspiring evidence that the voice allegedly recorded
was that of the accused and the complainant. However, this
contention of the Ld. Defence counsel deserves to be rejected
as it has come in the evidence on record that during the course
of investigation, the mobile phone of the complainant Ex.P2
alongwith SIM card Ex.P3 was taken into possession by PW-
19, Inspector Virender Singh and on 07.03.2011, the aforesaid
 25 State of H.P. V/S Mal Dutt
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mobile phone alongwith SIM card was deposited at CFSL,

Hydrabad for forensic examination and for preparation of CD in
order to compare the voice samples of the accused and the
complainant with the conversation recorded in the mobile
phone Ex.P2. PW-10, Shri P.N. Rama Krishnan, Assistant
Director (Physics) CFSL, Hydrabad examined the mobile
phone alongwith SIM card of the complainant and retrieved the
internal memory data from the mobile phone and SIM card and
prepared a CD Ex.P.5 and had sent the same for further
investigation to SV & ACB Shimla. He had ruled out the
possibility of tampering with the contents of data stored in the
mobile phone. He also stated in cross examination that the
data retrieved from the mobile phone and SIM card was
authenticated by the software. During the course of
investigation, PW-15 HC Jagdeep Kumar Mokta prepared a
copy of the CD in the Court of Ld. Judicial Magistrate Ist Class,
Court No.1, Shimla by copying the data from the master CD
Ex.P5 which was received from CFSL, Hydrabad and he also
prepared transcript Ex.PW15/A of the CD. He was cross
examined at length by the Ld. Defence counsel, however
nothing favourable could be elicited from his cross
examination. He denied the suggestion that a tampered CD
was produced in the Court and the transcript is not the
reproduction of CD prepared in the Court. PW-21, Dy.SP
Rajinder Kumar Sharma took the voice samples of the accused
and the complainant with their consent by arranging a tape
recorder and cassettes of T-series. During the course of
investigation, the voice samples of the complainant Vinod
Kumar and the accused Mal Dutt were sent to Directorate of
Forensic Science, Gandhinagar (Gujarat) for comparison with
the conversation contained in the original CD alongwith the
 26 State of H.P. V/S Mal Dutt
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transcription of the conversation between the accused and the

complainant for examination vide letter Ex.PW17/A and PW17
Smt. Meera Kapil Patel, Scientific Officer gave a report
Ex.PW17/B wherein she reported that the voice contained in
the exhibits sent to the laboratory was that of the complainant
but she could not give definite opinion about the voice samples
of the accused as his voice sample contained poor quality
recording with background noise. Thereafter, the fresh voice
samples of accused were taken after obtaining his consent and
vide letter dated 06.04.2013, Ex.PW11/A SP, SV & ACB
Shimla, the fresh voice samples of the accused were sent to
Directorate of Forensic Science, Gandhinagar (Gujarat) for
comparison with the conversation contained in the original CD
alongwith the transcription of the conversation between the
accused and the complainant for examination and on
22.01.2015, the report Ex.PW11/D was given by PW-11, K.J.
Golania that the voice contained in the exhibits sent to the
laboratory is the voice of accused Mal Dutt Sharma and when
he appeared in the witness box as PW-11, he proved the report
Ex.PW11/D. The aforesaid witness was cross examined at
length by the Ld. Defence counsel, however, nothing
favourable could be elicited from his lengthy cross examination.
Hence, the perusal of the report Ex.PW11/D shows that the
voice contained in the mobile phone and SIM card was that of
the accused Mal Dutt and the perusal of the report Ex.PW17/B
shows that the voice contained in the mobile phone and SIM
card was that of the complainant Vinod Kumar.

33. The Ld. Defence counsel next contended that the

same mobile phone of the complainant was not sent for
Forensic examination as the perusal of call detail record
 27 State of H.P. V/S Mal Dutt
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Ex.PW4/C shows that the IMEI Number of mobile phone of the

complainant mentioned in the call detail record is only of 14
digits i.e. 35931002742254 whereas the IMEI Number
mentioned in the mobile phone of the complainant Ex.P2 is of
15 digits i.e. 359310027422542 and in the call detail record
Ex.PW4/C, the last digit “2” is missing. It may be pertinent to
mention here that in order to seek clarification, PW-4 was
recalled and he categorically stated before the Court that the
last digit is the check number and it pertains only to the
manufacturer and it does not affect the telecom service
provider. Therefore, in the opinion of this Court, non
mentioning of the last digit of IMEI Number in the call detail
record Ex.PW4/C is not fatal to the case of prosecution and it
cannot be said that the same mobile phone of the complainant
was not sent for Forensic examination as contended by Ld.
Defence counsel.

34. The Learned Defence counsel vehemently urged

that the prosecution has failed to prove the demand allegedly
made by the accused. He submitted that there is no evidence
of alleged demand on 07.01.2011 except the bald statement of
PW-7, Vinod Kumar and he further submitted that even the
alleged demand on 15.01.2011 and 18.01.2011 was also not
proved. However, this contention of the ld. Defence counsel is
devoid of any force in view of the unimpeached testimony of
PW-7, PW-8 and PW-12 coupled with conversation which took
place between the complainant and the accused on their
mobile phones on 18.01.2011, the transcript of which was
prepared by PW-15 HC Pradeep Kumar Mokta from the copy
of master CD. Further more, the call details record Ex.PW4/C
and Ex.PW5/B shows that complainant and accused were in
 28 State of H.P. V/S Mal Dutt
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touch on telephone since 07.01.2011. Both of them talked with

each other on telephone on 07.01.2011, 14.01.2011,
15.01.2011 and 18.01.2011.

35. Hence, the testimony of PW-7, PW-8 and PW-12

coupled with call details record Ex.PW4/C, Ex.PW-5/B and the
transcript of the conversation Ex.PW15/A between the accused
and the complainant on their mobile phones clearly proves the
element of demand by the accused from the complainant.

36. The ld. Defence counsel next contended that there

is no direct evidence regarding the acceptance of money as the
money was deposited on 18.01.2011 in the salary account of
the accused and the same was within the knowledge of
number of persons including the employer and anybody could
have deposited the money without the knowledge and
authorization of the accused in his salary account. However,
this contention of Ld. Defence counsel also deserves to be
rejected. From the perusal of the voucher Ex.PW1/B-1, Teller
receipt Ex.PW1/B-2 and the statement of account Ex.PW3/B-1
it has been proved that the amount of Rs. 12,000/- was
deposited in the bank account of accused on 18.01.2011 and
from the perusal of the copies of account opening form of
accused alongwith identification proof and address proof
Ex.PW3/A-1 to Ex.PW3/A-12. It has been clearly established
that the account in question belongs to the accused. It has
been clearly established that the amount of Rs. 12,000/- was
deposited in the bank account of accused bearing No.
30119123233 on 18.01.2011 by the complainant on the asking
of the accused. The perusal of the testimony of PW-7 and PW-
8 coupled with transcript of the conversation Ex.PW15/A clearly
 29 State of H.P. V/S Mal Dutt
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shows that the aforesaid bank account number has been

provided by the accused to the complainant at the time of
conversation on 18.01.2011. Hence, it cannot be said that the
aforesaid amount of Rs. 12,000/- was deposited in the salary
account of accused without his knowledge and authorization as
contended by the Ld. Defence counsel. Thus, the acceptance
of bribe by the accused has also been clearly established.

37. The Ld. Defence counsel next contended that PW-

19, Inspector Virender Singh was inimical towards the accused
and he was the master mind behind the entire episode to plant
a false case upon the accused to settle scores with him and to
remove the accused from the inquiry which was being
conducted by him against the wife of the complainant.
However, this contention of Ld. Defence counsel cannot be
accepted as there is no concrete material on record to suggest
that there was any enmity between the accused and PW-19 so
as to implicate the accused in a false case by PW-19.

38. Thus, the evidence on record would show that the

accused Mal Dutt demanded the bribe money from the
complainant in the exercise of his official function as a motive
or reward in order to give inquiry report in favour of his wife
Smt. Preeti Bhardwaj in connection with the issuance of
scheduled caste certificate and the bribe money was accepted
by the accused as being deposited by the complainant in his
bank account on the asking of the accused, and the bank
account number was provided by the accused himself, as such,
demand and acceptance of the bribe money by the accused
has been clearly established on record. Therefore, a
presumption is raised against the accused under Section 20 of
 30 State of H.P. V/S Mal Dutt
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the Prevention of Corruption Act that he had demanded and

accepted the bribe money from the complainant. The
established position of law is that to constitute an offence under
the Act, the proof of demand and acceptance of bribe money
as illegal gratification is a sine qua non. Further, once the
demand and acceptance of illegal gratification has been
established, the burden rests upon the accused to displace the
statutory presumption raised under Section 20 of the Act by
bringing on record the evidence to establish with reasonable
probability that the money was demanded and accepted by him
other than as a motive or reward as referred to in Section 7 of
the Act. It is a settled position of law that the initial burden is
upon the prosecution to establish that the accused had
accepted the illegal gratification to do an official favour and if
the prosecution establishes by evidence the fact of payment of
bribe money and the accused receiving it, then the
presumption under Section 20 of the Act should be drawn
shifting the burden on the accused to rebut the same. If the
accused rebuts the presumption by his explanation for receipt
of the amount, then the Court has to see whether the
explanation given by the accused is probable and acceptable.
In AIR 2005 SC 4095, State of Andhra Pradesh Vs.
R.Jeevaratnam, the Hon'ble Supreme Court has referred to its
earlier judgment in a case reported in (2004)4 SCC 399,
wherein it has been held as under :-
“5. This Court then analyzed the law
on subject and held that the term
“shall be presumed” in Section 20(1)
showed that Courts had to
compulsory draw a presumption. It
held that the only condition for
drawing the presumption is that during
trial it should be proved that the
accused has accepted or agreed to
 31 State of H.P. V/S Mal Dutt
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accept any gratification. It is held that

the condition need not be satisfied
only through direct evidence. It is held
that proof did not mean direct proof as
that would be impossible but the proof
must be one which would induce a
reasonable man to come to a
particular conclusion. It was held that
once it is proved that gratification has
been accepted the presumption
automatically arose. This Court cited
with approval the observations of a
three Judge Bench in the case of
Raghubir Singh Vs. State of Punjab
reported in (1974) 4 SCC 560 that the
very fact that the accused was in
possession of marked currency notes
against an allegation that he
demanded and received the amount
is “res ipsa loquitur”. We are in full
agreement with the observations
made in that judgment.”

39. Now, let us examine as to whether the accused

had succeeded in rebutting the presumption drawn against him
under Section 20 of the Act by giving the probable and
acceptable explanation. No doubt, the burden placed upon
the accused to rebut the presumption is not so heavy than the
one lies on the prosecution but the accused must show the
same by preponderance of probability. The accused was
examined under Section 313 Cr.P.C. and was also given an
opportunity to lead evidence in his defence. However, the
accused has not led any evidence in his defence. In Phula
Singh Vs. State of Himachal Pradesh AIR 2014 SC 1256, it
has been held by Hon'ble Apex Court that the accused has a
duty to furnish an explanation in his statement under Section
313 Cr.P.C regarding any incriminating material that has been
 32 State of H.P. V/S Mal Dutt
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produced against him. The relevant portion of the aforesaid

judgment is reproduced as under :-
11. The accused has a duty to furnish
an explanation in his statement under
Section 313 Cr.PC regarding any
incriminating material that has been
produced against him. If the accused
has been given the freedom to
remain silent during the investigation
as well as before the court, then the
accused may chose to maintain
silence or even remain in complete
denial when his statement under
Section 313 Cr.P.C is being recorded.
However, in such an event, the court
would be entitled to draw an
inference, including such adverse
inference against the accused as may
be permissible in accordance with law.
…..........

40. In the present case also, in his statement

under Section 313 Cr.P.C., the accused stated that a false case
was made against him at the behest of PW-19, Virender Singh
and that PW-7, Vinod Kumar and PW-8, Smt. Preeti Bhardwaj
wanted to remove him from inquiry. However, this version of
accused is not supported by any concrete material that a false
case was made against the accused at the behest of PW-19
Virender Singh. It has clearly been established that the
amount of Rs. 12,000/- was deposited in the bank account of
accused on 18.01.2011, therefore, it was obligatory on the part
of the accused to have inquired from his bank as to who had
deposited the aforesaid amount and why the same was
deposited in his account without his knowledge, but for the
reasons best known to the accused, he did not inquire from the
bank as to how the aforesaid sum had been deposited in his
account. Even the accused has failed to give any explanation
 33 State of H.P. V/S Mal Dutt
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CNR No. HPSH100001862015

in his statement under Section 313 Cr.P.C as to under what

circumstances the amount of Rs. 12,000/- came to be
deposited in his bank account without his knowledge. In the
absence of any material on record, it does not seem probable
that since it was the salary account of the accused and the
same was within the knowledge of the number of persons
including the employer and for that reason anybody could have
deposited the amount in the salary account of accused without
his knowledge and authorisation. In my considered view, the
accused has failed to rebut the presumption drawn against him
under Section 20 of the Act by giving the probable and
acceptable explanation. In (2016)11 SCC 357, Mukhtiar
Singh Vs. State of Punjab, the Hon'ble Apex Court has held
that once the demand and voluntary acceptance of illegal
gratification knowing it to be the bribe are proved by evidence,
then conviction must follow under Section 7 of PC Act. The
relevant portion of the aforesaid judgment reads as under :-
“It is a settled principle of law laid
down by this Court in a number of
decisions that once the demand and
voluntary acceptance of illegal
gratification knowing it to be the bribe
are proved by evidence then
conviction must follow under Section 7
of the PC Act against the accused.
Indeed, these twin requirements are
sine qua non for proving the offence
under Section 7 of the PC Act. In the
light of our own re-appraisal of the
evidence and keeping in view the
above said principle in mind, we have
also come to a conclusion that twin
requirements of demand and
acceptance of illegal gratification
were proved in the case on hand on
the basis of evidence adduced by the
prosecution against the appellant and
hence the appellant was rightly
 34 State of H.P. V/S Mal Dutt
Sessions Trial No.: 33-S/7 of 2015
CNR No. HPSH100001862015

convicted and sentenced for the

offences punishable under Section 7
readwith Section 13(1)(d) and Section
13(2) of the Act.”

41. In the present case also as observed above the

twin requirements i.e. the demand and voluntary acceptance of
illegal gratification knowing it to be the bribe by the accused
have been established on the basis of the evidence led by the
prosecution as such, the conviction has to follow. Hence, in
view of the evidence discussed above, the prosecution has
been able to prove its case against the accused beyond
reasonable doubt. Accordingly, Point No.1 is answered in the
affirmative.

POINT NO. 2 (FINAL ORDER)

42. In view of my findings on the foregoing point, I hold

that the prosecution has been able to prove beyond reasonable
doubt that the accused demanded gratification from the
complainant as a motive or reward which was a gratification
other than legal remuneration to hush up the inquiry pending
before him in the exercise of his official function and therefore,
the offence under Section 7 of the Prevention of Corruption Act
stands established against the accused beyond reasonable
doubt. In view of my aforesaid discussion, I further hold that the
accused obtained a pecuniary advantage from the complainant
by misusing his official position as a public servant and thereby
committed criminal misconduct by accepting illegal gratification
from the complainant Vinod Kumar as a commission for
hushing up the inquiry pending before him and in my
 35 State of H.P. V/S Mal Dutt
Sessions Trial No.: 33-S/7 of 2015
CNR No. HPSH100001862015

considered view, the offence under Section 13(2) also stands

established against the accused beyond reasonable doubt.
Now, Let the case be heard on the quantum of sentence on
17.12.2019.
Announced and signed in the open Court today the
13th day of December, 2019.
sd/-
[Sushil Kukreja]
Special Judge (PC Act),
Shimla, H. P.

Quantum of sentence :

17.12.2019
Present : Sh. Sandeep Attri, Ld.P.P. for State.
Convict with Sh. Ajay Kochhar, Advocate.

The convict on the question of sentence heard. It

has been submitted by the Ld. Counsel for the convict that he
is a retired government servant of 64 years of age and he suf-
fers from multiple diseases and is under treatment. He further
submitted that during his entire career, no allegation of any mis
conduct had been leveled against him and therefore, he prayed
that a lenient view may be taken.
On the other hand, Ld. Public Prosecutor submit-
ted that the convict who himself was the Police Official had
been guilty of a serious offence of misusing his official position
by demanding and accepting the bribe from the complainant,
therefore he does not deserve any leniency and he deserves
for maximum punishment.
It is important to note that corruption by public ser-
vants has become a gigantic problem. It has spread its tenta-
cles everywhere. It has deep and pervasive impact on the
functioning of the entire country and every one has to suffer on
 36 State of H.P. V/S Mal Dutt
Sessions Trial No.: 33-S/7 of 2015
CNR No. HPSH100001862015

that count. Corruption by some public servants tends to de-

moralise the honest officers. The efficiency in public service
would improve only when the public servant does his duty hon-
estly and truthfully. It is an admitted fact that the convict is a
first offender and no previous conviction has been alleged
against him. Therefore, keeping in view the fact that the con-
vict is of the age of 64 years and is under medical treatment
coupled with the facts and circumstances of the present case, I
sentence the convict Mal Dutt under Section 7 of the Preven-
tion of Corruption Act, 1988 to rigorous imprisonment for a pe-
riod of one year and to pay a fine of Rs. 10,000/- and in default
of payment of fine to undergo further imprisonment for a period
of two months and under Section 13(2) of the Prevention of
Corruption Act, 1988 to suffer rigorous imprisonment for a pe-
riod of two years and to pay a fine of Rs. 10,000/- and in de-
fault of payment of fine to undergo further imprisonment for two
months. Both these sentences shall run concurrently. The pe-
riod of detention, if any, undergone by the accused /convict
during the investigation and the trial be set-off against the pe-
riod of sentence awarded against him as provided under Sec-
tion 428 CrPC. The case property be destroyed after the ex-
piry of the period of limitation for filing of an appeal and in case
of appeal, the same shall be dealt with in accordance with the
directions of the Hon'ble Appellate Court.
A copy of this judgment be sent to District Magis-
trate, Shimla as provided under Section 365 Cr.PC and a copy
of the same be given to the convict free of charge. The file af-
ter its due completion be consigned to the record room.
Sd/-
Announced: [Sushil Kukreja]
17.12.2019 Special Judge (PC Act),
R/S Shimla, H.P.
 37 State of H.P. V/S Mal Dutt
Sessions Trial No.: 33-S/7 of 2015
CNR No. HPSH100001862015

FORM-A
LIST OF WITNESSES
Sr.No. Name of the witness Whether the
witnesses of the
prosecution/defence.

PW1 Sh. Jagdish Chand Prosecution

PW2 Sh. Ashok Gupta -do-
PW3 Sh. Sanjeev Gupta -do-
PW4 Sh. Hanumant Rai -do-
PW5 Sh. Vinay Kumar -do-
PW6 Sh. Ram Saran -do-
PW7 Sh. Vinod Kumar -do-
PW8 Smt. Preeti Bhardwaj -do-
PW9 HC Balwinder -do-
PW10 Sh. P.N. Ramakrishanan -do-
PW11 Sh. Kundan Bhai Jivraj -do-
PW12 HHC Harbans Singh -do-
PW13 HC Sudhir Chauhan -do-
PW14 HC Manoj Kumar -do-
PW15 HC Jagdeep Kumar -do-
PW16 HC Dayawati -do-
PW17 Smt. Meera Kapil -do-
PW18 Inspector Ajay Bhardwaj -do-
PW19 Inspector Virender Singh -do-
PW20 Kuldeep Singh Chandel -do-
PW21 Dy. S.P. Rajinder Kumar -do-
-----------------------------------------------------------------------------------

FORM-B

Exhibit No./ Date of Exhibits Description of the Mark

exhibits.
.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.
Ext.PW1/A 05.06.2016 Letter dated 28.01.2011
Ext.PW1/B-1 -do- Documents.
Ext.PW1/B-2 -do- Teller receipt/ Payment
cash register.
Ext.PW1/C-1 -do- Letter received from SBI
Gen/86 dated 28.01.2011
Ext.PW1/C-2 -do- Letter received from SBI
Gen/87 dated 28.01.2011.
Ext.PW3/A-1 to 14.09.2016 Documents like copies of
Ext.PW3/A-12 account opening form of
the accused a/w
 38 State of H.P. V/S Mal Dutt
Sessions Trial No.: 33-S/7 of 2015
CNR No. HPSH100001862015

identification proof and

address proof to the
police vide letter dated
20.01.2011.

Ex.PW3/C1 to 14.09.2016 Account statement, locker

Ex.PW3/B-6 agreement application for
locker received from the
accused to the police and
letter dated 07.03.2015.

Ex.PW3/C 14.09.2016 Memo

Ex.PW3/D -do- Account statement
Ex.PW3/E -do- Letter dated 04.07.2011
from SBI.
Ext.PW4/A 15.09.2016 Letter dated 04.02.2011
from the police.
Ext.PW4/B -do- Billing address.
Ext.PW4/C -do- Call details.
Ext.PW4/D -do- Certificate u/s 65-B of
Indian Evidence Act.
Ext.PW5/A 15.09.2016 Letter dated 20.01.2011
from Police.
Ext.PW5/B -do- CDR
Ext.PW5/C -do- Certificate u/s 65 of the
Indian Evidence Act.
Ext.PW6/A -do- Print out of the e-mails
Ext.PW7/A 06.10.2016 Statement of Vinod Kumar
Ext.PW7/B -do- Receipt of SBI
Ex.PW7/C -do- Memo
Ex.PW7/D 06.10.2016 Impression of seal taken
on a piece of cloth.
Ex.PW7/E -do- Memo
Ex.PW7/F -do- Memo
Ex.PW7/G -do- Sample of seal on a piece
of cloth.
Ex.PW7/H 21.11.2016 Sample seal
Ex.P-1 -do- Cassette a/w cover
Ex.P-2 -do- Mobile Phone
Ex.P-3 -do- SIM
Ex.P-4 -do- Recorder
Ex.P6 -do- Casseette
Ex.D-1 -do- Statement
Ex.D-2 -do- Statement
Mark-1 -do- Rapat No.3
Ext.PW10/A -do- Copy of letter
 39 State of H.P. V/S Mal Dutt
Sessions Trial No.: 33-S/7 of 2015
CNR No. HPSH100001862015

Ext.PW10/B -do- Report

Ext.PW10/C -do- Letter
Ext.P5 -do- CD
Ex.PW10/D -do- Letter was written to the
police.
Ex.PW11/A 22.11.2016 Letter
Ex.PW11/B -do- Certificate of authority
Ex.PW11/C -do- Transcript of the
conversation
Ex.PW11/D -do- Report
Ex.PW11/E -do- Letter dated 02.02.2015
Ext.P-6 -do- Cassette
Ext.PW13/A -do- Memo
Ex.PW13/B 16.12.2016 Copy of log book
Ex.PW13/C -do- Search memo relating to
the house of the accused.
Ex.PW13/D &E -do- Copy of rapats No.6,5.
Ex.PW13/F -do- File of the complaint.
Ex.PW14/A 17.12.2016 Certificate u/s 65-B of
Indian Evidence Act.
Ex.PA -do- Copy of appointment
order.
Ext.PB 17.12.2016 Copy of posting order.
Ext.PC -do- Copy of promotion.
Ex.PW15/A 12.01.2017 Transcript
Ex.PW16/A -do- Extract of Register.
Ex.PW16/B -do- Copy of road certificate.
Ex.PW16/C to I -do- Copies of rapats.
Ex.PW16/J -do- Certificate u/s 65 of the
Indian Evidence Act.
Ex.PW17/A 17.03.2017 Letter
Ex.PW17/B -do- Report
Ex.PW19/A 17.07.2017 FIR
Ex.PW19/B -do- Receipt
Ex.PW20/A 28.08.2017 Memo
Ex.PW20/B -do- Memo
Ex.PW20/C -do- Seal impression on a
piece of Cloth.
Ex.PW20/D -do- Consent memo.
Ex.PW20/E -do- Memo.
Ex.PW20/F -do- Seal impression on a
piece of cloth.
Ex.PW21/A -do- Letter regarding freezing
of the bank account.
Ex.PW21/B -do- Letter dated 20.01.2011 to
GM BSNL.
 40 State of H.P. V/S Mal Dutt
Sessions Trial No.: 33-S/7 of 2015
CNR No. HPSH100001862015

Ex.PW21/C -do- Print of E-mail.

Ex.PW21/D -do- Envelope
Ex.PW21/E -do- Permission to make copy
of data From CD.
Ex.PW21/F -do- Copy of order dated
12.07.2011, passed by
JMIC(1), Shimla, H.P.
Ex.PW21/J -do- Letter dated 09.08.2011
Ex.PW21/K -do- Letter dated 10.08.2011.
Ex.PW21/L -do- Letter dated 19.09.2011.
Ex.PW21/M -do- Letter dated 18.01.2012.
Ex.PW21/N -do- Certificate of authority.
Ex.PW21/O -do- Letter dated 07.01.2012
Ex.PW21/P -do- Certificate of authority.
Ex.PW21/Q -do- Consent dated
24.01.2013.
Ex.PW21/R -do- Letter dated 09.04.2013.
Ex.PW21/S -do- Letter dated 17.01.2014.
Ex.PW21/S-1 -do- Letter dated 16.01.2015.
Ex.PW21/T -do- Letter dated 15.01.2014
Ex.PW21/U -do- Letter dated 17.01.2014
-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-

sd/-
[ Sushil Kukreja]
Special Judge (PC Act),
Shimla, H.P.