Delhi District Court
State vs . Amar Singh Shekhawat on 19 October, 2011
IN THE COURT OF MS. SANGITA DHINGRA SEHGAL,
SPECIAL JUDGE, ANTI CORRUPTION BRANCH, DELHI
CC No. 116/2008
Unique Case ID Number 02401R0683512005
State Vs. Amar Singh Shekhawat
S/o Lt. Sh. Sabal Singh
R/o House No. 1195,
BlockL, Sangam Vihar,
New Delhi.
FIR No. : 14/05
Under Section : 7 & 13 (i) (d) of Prevention of
Corruption Act, 1988
Police Station : Anti Corruption Branch.
Date of filing of chargesheet : 01.08.2005
Date on which order was reserved : 03.09.2011
Date of order : 19.10.2011
JUDGMENT
1. The case of the prosecution is that accused Amar Singh Shekhawat, SubInspector in Delhi Police posted at Police Station FIR No. 14/05 1/33 Badarpur being a public servant demanded Rs.20,000/ on 15.03.2005 from Complainant Arun Rai (PW5) for registering a case of kidnapping. A complaint case under Section 200 Cr.P.C. was also pending in the Court of Sh. L.K. Gaur, Ld. MM, Patiala House Courts, Delhi. The case of the prosecution further is that accused Amar Singh Shekhawat accepted and obtained Rs.5,000/ as illegal gratification wrapped in the complaint of Rajiv Pandey on 16.03.2005 outside the gate of Police Station Badarpur.
2. On the basis of the Complaint Ex.PW5/A a trap was laid by the Anti Corruption Branch, Delhi on 16.03.2005 and accused Amar Singh Shekhawat was caught red handed while demanding/accepting Rs.5,000/ as illegal gratification from the Complainant Arun Rai (PW5) in presence of Panch Witness Ramesh Kumar (PW8).
3. In this background two fold charges were framed against the accused (i) that on 15.03.2005 while being SubInspector of Delhi Police, posted at PS Badarpur being a public servant he demanded Rs.20,000/ from Complainant Arun Rai for registering the case regarding his kidnapping for which a complaint case under Section 200 Cr.P.C. was pending in the Court of Sh. L.K.Gaur, Ld. MM, Patiala House Courts, FIR No. 14/05 2/33 Delhi for registration of FIR under Section 340/343/347/364A/365/506 IPC and for registering the said FIR, demanded, accepted and obtained Rs.5,000/ wrapped in the complaint of Rajiv Pandey on 16.03.2005 at 06:15 PM outside the gate of PS Badarpur as a motive or reward for registering the FIR and thereby committed an offence punishable under Section 7 of the Prevention of Corruption Act, 1988 (ii) that being a public servant the accused obtained bribe of Rs.5000/ wrapped in the complaint of Rajiv Pandey from the above Complainant as a pecuniary advantage by corrupt or illegal means or otherwise by abusing his position as such public servant and thereby committed an offence of criminal misconduct as specified under Section 13 (i) (d) punishable under Section 13 (2) of the Prevention of Corruption Act, 1988.
4. In order to bring home the charges prosecution examined 10 witnesses before the Statement of accused was recorded Under Section 313 of the Code of Criminal Procedure. In his statement the accused claimed to be innocent and denied the demand and acceptance of the bribe. The accused raised a defence that a report was lodged by his brother Shri Varun Rai giving information that the Complainant (PW5) who was his brother had gone missing and during investigation he found FIR No. 14/05 3/33 the complaint to be false and therefore did not recommend the registration of FIR. The accused further pleaded that because of his fair investigation and refusal to recommend registration of the FIR, Complainant (PW5) Arun Rai conspired to falsely implicate him in this false case. The accused admitted that he met the Complainant (PW5) on 16.03.05 but neither demanded nor received any bribe amount from him. In fact while he was talking to the Complainant (PW5) outside PS Badarpur a scuffle took place between him and the officials of Anti Corruption Branch and they pushed him inside their vehicle and took him to the PS Anti Corruption Branch.
5. Accused Amar Singh Shekhawat was represented by Shri Pawan Kumar Jain, Advocate.
6. I heard the arguments of Sh. B. S. Kain, Ld. Addl. PP for the State and Ld. Defence Counsel, Sh. Pawan Kumar Jain, Advocate and perused the record.
7. Ld. Counsel for the accused during the course of his oral as well as written arguments filed on record submitted that the Complainant (PW5) is in the habit of using the legal system in his nefarious practices and misuse the same for his own vested interest and got the accused FIR No. 14/05 4/33 trapped to settle his scores with him to teach him a lesson. Even the Hon'ble High Court of Delhi vide order dated 24.08.07 Ex.PW5/D2 branded the Complainant (PW5) as an untruthful person and imposed a heavy cost of Rs. 50,000/ on him. It is further argued that the accused while filing the status report dated 02.03.05 placed before Sh. L. K. Gaur, Ld. MM, Patiala House Courts, New Delhi in a complaint under Section 156(3) Cr.P.C. informed the Court that the Complainant (PW5) had filed a false complaint of alleged kidnapping. Once the status report had been filed in the court proceedings on 02.03.05 there could be no motive or reason for the accused to demand bribe from the Complainant (PW5) on 15.03.05 / 16.03.05 and there are no allegations against the accused that bribe was demanded by him between 18.01.05 and 15.03.05 i.e. from the day of return of the Complainant (PW5) after alleged kidnapping till the day of incident. If the accused was a dishonest person or a bribe seeker, he would not have missed an opportunity to demand and accept bribe from the Complainant (PW5) prior to 02.03.05 and there was no reason to demand bribe after filing a negative status report against the Complainant (PW5) before the Hon'ble Court. Ld. Defence Counsel relied upon Vishal Chand Jain @ V. C. Jain Vs. C.B.I. [Crl. Appeal FIR No. 14/05 5/33 No. 579/2005] wherein it has been held that "There was no occasion for the Appellant to demand or accept bribe. Thus, from the evidence, it appears that there was an apparent lack of motive for demanding and accepting bribe and this circumstance raises a suspicion against the correctness of the Complainant and it ought to have put the Court on caution while assessing the evidence." Ld. Defence Counsel also relied upon Ganapathi Sanya Naik Vs. State of Karnataka [AIR 2007 SC 3213] wherein it has been held that "PW6 had serious animosity towards the appellant and that the currency notes had been put on the table by the former was a plausible explanation. It is in the evidence that the currency notes had not been touched by the appellant or recovered from his person. It is also the prosecution case that the relevant documents had been handed over to Nagaraja immediately after the money had been put on the table. The argument therefore that there was no occasion to make a demand for any bribe is also plausible".
It is argued that there are material discrepancies in the testimony of the Complainant (PW5) and the Panch Witness (PW8) which are sufficient to establish that the prosecution has failed to prove FIR No. 14/05 6/33 its case. It is argued that there is no legally admissible evidence on record to prove the demand, acceptance & recovery of alleged bribe money from the accused. It is further argued that the Complainant (PW5) has made two different and contradictory statements before two different authorities which are mutually destructive. The Complainant (PW5) in his statement before the Court stated that the accused had demanded Rs.20,000/ from him for registration of the FIR and agreed to accept Rs.5,000/ as first installment whereas in the departmental proceedings in Statement Ex.PW5/D3 the Complainant (PW5) stated that the accused demanded a bribe of Rs.1,00,000/ for registration of the FIR and the amount was settled at Rs.80,000/. The Complainant (PW5) when confronted with his statement Ex.PW5/D3 deposed that "It is correct that my statement was recorded in the departmental proceedings against the accused and the same bears my signature on every page and same is Ex.PW5/D3. I told in that inquiry that accused demanded bribe of Rs. One Lac and it was settled for Rs.80,000/ and accused told me to give Rs. 20,000/ within one or two days." Ld. Defence Counsel relied upon State of Maharashtra Vs. Dnyaneshwar Laxman Rao FIR No. 14/05 7/33 Wankhede [JT2009(12) SC515] wherein it has been held that "For arriving at the conclusion as to whether all the ingredients of an offence, viz., demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety". Ld. Defence Counsel also relied upon C.M. Girish Babu Vs. CBI [AIR 2009 SC 2022] wherein it has been held that "The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show the accused voluntarily accepted the money knowing it to be bribe. It is not enough that some currency notes were handed over to the public servant to make it acceptance gratification and prosecution has a further duty to prove that what was paid amounted to gratification. The accused charged with the offence could rebut it either through the cross examination of the witnesses cited against him or by adducing reliable evidence. It is well established that where the burden of an issue lies upon the accused he is not required to discharge that burden by leading evidence of proof his case beyond a reasonable doubt. That is, of course, FIR No. 14/05 8/33 the test prescribed in deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him under Section 4 under the Prevention of Corruption Act. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case". Ld. Defence Counsel further relied upon Prem Singh Yadav Vs. C.B.I. [Crl. Appeal No. 2011 (2) JCC 1059] wherein it has been held that "Various discrepancies in the testimonies of the witnesses has created some doubt in the case of prosecution. It is not enough that some currency notes were handed over to the accused to make it acceptance or gratification and the prosecution has a further duty to prove that what was paid amounted to gratification". Ld. Defence Counsel also relied upon Subhash Chand Chauhan Vs. C.B.I. [2005 (79) DRJ 644], wherein it has been held that "I am surprised that the Ld. Additional Sessions Judge has held aforesaid material contradictions as minor variations and as explainable without casting doubt on the truthfulness of the deposition of the prosecution witnesses. The Ld. Additional Sessions Judge appears to have been over FIR No. 14/05 9/33 powered by the fact that all witnesses deposed about the hand wash of the accused showing the solution of sodium carbonate turning pink. Needless to state that in a criminal trial, evidence of eye witnesses requires a careful assessment and evaluation for credibility. The evidence must be tested for its inherent consistency or inherent inconsistency in reference to the account as stated by one witness on being cross checked with the account as stated by the other witness. Finally, probative value of the evidence has to be put into scales for a cumulative evaluation".
Ld. Defence Counsel added that the Raiding Party was headed by Inspector Chander Hass (PW9) who himself is involved in a case of corruption. The testimony of the defence witnesses i.e. DW1 & DW2 (who are police officials) is unrebutted who have deposed that they heard the Complainant (PW5) saying that he would not spare the accused and would teach him a lesson for not registering the FIR. DW3 deposed that the accused refused to accept the money from the Complainant (PW5) and had pushed his hands when the GC notes fell on the ground and thereafter a scuffle took place. The testimony of the defence witnesses remained unchallenged and the prosecution has not been able FIR No. 14/05 10/33 to discredit their version.
8. In order to prove demand and acceptance of bribe by the accused the prosecution examined three material witnesses being Complainant Arun Rai (PW5), Panch witness Ramesh Kumar (PW8) and Raid Officer Inspector B. S. Yadav (PW10). The prosecution also examined Sh. Anil Shukla, DCP South (PW1) who proved the Sanction Order Ex.PW1/A for prosecution of the accused. Ct. Kapil Dev (PW2) received the Rukka and got the present case registered. HC Shaukat Ali (PW3) deposited one sealed bottle RHWI and one paper having sample seal impression in the FSL, Rohini and handed the acknowledgment to MHC (M) PS Civil Lines. HC Sukhbir Singh (PW4) proved the daily diary register containing DD No.13A Ex.PW4/A. HC Kartar Singh (PW6) proved the entries Ex.PW6/B and Ex.PW6/C through which 10 GC notes of Rs. 500/ each, sealed bottles marked RHWI and RHWII and sample seal impression and personal search of accused Ex.PW6/A were deposited. Sh. Rajender Singh Dahiya, ACP (PW7) deposed that on 12.01.05 one Varun Rai got a DD No.13A recored in PS Badarpur about the missing of his brother Arun Rai wherein he mentioned that he was carrying Rs. 2.5 Lacs in cash and a mobile phone 9891338883. PW7 FIR No. 14/05 11/33 deposed that DD was assigned to the accused for inquiry. PW7 deposed that on 17.01.05 family members of Arun Rai came to the PS Badarpur and informed that Arun Rai had been traced in Hathideh, Bihar on which two police officials were sent to Bihar to bring Arun Rai. Statement of Arun Rai was recorded by the accused. Arun Rai suspected one Satish Aggarwal and Rakesh Rai for his kidnapping. PW7 deposed that a status report was called by the Court of Sh. L. K. Gaur, MM, Patiala House Courts, New Delhi under Section 156(3) Cr.P.C. and accused submitted his report. PW7 proved Chitha mark PW7/12, photocopy of diary and dispatch register Ex.PW7/2, photocopy of the DD No.13A Ex.PW7/3 and the statement of Complainant (PW5) mark PW7/4, photocopy of the criminal complaint mark PW5/A and the report of the accused mark PW7/5 which were seized by the Investigating Officer (PW9) vide seizure memo Ex. PW7/A . The Investigating Officer Inspector Chander Hass was examined as PW9. He was summoned to the raiding spot and was handed over 10 GC notes of Rs.500/ each, one application Ex.PW5/D, custody of the accused, seizure memos, copy of the rukka and the raid report. The Investigating Officer (PW9) prepared the site plan Ex.PW9/A and arrested the accused vide arrest memo Ex.PW9/B. FIR No. 14/05 12/33
9. Complainant (PW5) Arun Rai deposed that on 11.01.2005 he was kidnapped by three persons of Molarband area within the jurisdiction of PS Badarpur and was taken in a Maruti Van to Bihar. He escaped from the clutches of the kidnappers and the Bihar Police was informed. He was taken to PS Hathideh, Bihar who in turn gave information to the Delhi Police. The Police Officials from PS Badarpur arrived in Bihar and he was brought back to Delhi on 18.01.2005. On 19.01.2005 he went to PS Badarpur and met the SHO, PS Badarpur who promised to register an FIR and told him to collect the same later in the day. He met the accused when he went to collect the copy of the FIR in the evening and came to know that the FIR had not been registered. The Complainant (PW5) deposed that he went to PS Badarpur many times but the FIR was not registered and therefore, he filed a complaint under Section 200 Cr. P.C. along with an application under Section 156(3) Cr. P.C. on which Sh. L.K. Gaur, Ld. MM, Patiala House Courts, Delhi sought the status report and thereafter the accused contacted him through two constables of PS Badarpur. The Complainant (PW5) during his examinationinchief deposed that "On 15.03.2005 I was called in the PS Badarpur by sending two Constables to my office.'' Complainant (PW5) FIR No. 14/05 13/33 further deposed '' I called up SI Amar Singh Shekhawat on his mobile phone who told me that I am wasting my time by going to the court. SI Amar Singh Shekhawat further told me that SHO Rajender Singh Dahiya is demanding more money for registration of the case. SI Amar Singh Shekhawat agreed to take Rs. 20,000/ from me for registration of the FIR and told me that he would talk to SHO Rajender Singh Dahiya. I showed my inability to even pay Rs.20,000/ upon which SI Amar Singh asked me to arrange the money within 34 days and agreed to take Rs.5,000/ on the next day outside the Police Station .'' Complainant (PW5) deposed that he was against giving bribe and therefore he went to the Anti Corruption Branch and made the complaint Ex.PW5/A in his hand writing which was signed by Ramesh Kumar, Panch witness (PW8) in his presence. He also gave 10 GC notes of Rs.500/ each to the Raid Officer (PW10) who noted the serial numbers in the preraid report and applied some powder on the GC notes and the Raid Officer (PW10) explained to him the characteristics of the Phenolphthalein Powder and the treated GC notes were handed over to him which he kept in the left pocket of his shirt. The Complainant (PW5) deposed that the Raid Officer (PW10) gave instructions to him as FIR No. 14/05 14/33 well as to the Panch Witness (PW8) to remain close to each other and instructions were also given to the Panch Witness (PW8) to hear the conversation between him and the accused and as soon as the transaction was complete to give a predetermined signal to him. The raiding party, thereafter, went near the PS Badarpur and took their respective positions. The accused was called on his mobile phone who came out from PS Badarpur in about 10 minutes and joined him in his car and the Panch Witness (PW8) seated himself on the front seat next to the driver. Complainant (PW5) further deposed that he told the accused that he could not arrange Rs.20,000/ as demanded by him and could only arrange Rs.5,000/ and that he should accept the same and get the case registered. Complainant (PW5) further deposed that Panch Witness (PW8) was introduced to the accused by him as his brother. He further deposed that thereafter he handed over the GC notes of Rs.5,000/ to the accused who received the same with his right hand and kept the amount in a paper which he was holding in his left hand. The predetermined signal was given by the Panch Witness (PW8) to the Raid Officer (PW10) and immediately the officials of the Anti Corruption Branch arrived and apprehended the accused when he was alighting from the car. FIR No. 14/05 15/33 Complainant (PW5) further deposed that officials of the Anti Corruption Branch made inquiries from him and Panch witness (PW8) thereafter, recovered the 10 GC notes of Rs.500/ each from the possession of the accused. The Complainant (PW5) deposed that the wash of the right hand of the accused was taken which turned Pink and the solution was transferred in glass bottles which were sealed and taken into possession. He further deposed that the serial numbers of the GC notes were tallied with the serial numbers already recorded in preraid report Ex.PW10/A and were found to be the same.
The recovered GC notes were taken into possession vide memo Ex.PW5/B and the sealed bottles were taken into possession vide memo Ex.PW5/C. Complainant (PW5) identified the GC notes as Ex.P1 to Ex.P10. He also identified the bottle Ex.P11 wherein the solution of the right hand wash of the accused was transferred. The Complainant (PW5) during examinationinchief deposed that "The government vehicle was stopped at a distance from PS whereas I stopped my car outside the PS. I called up SI Amar Singh Shekhawat on his mobile. After about 10 minutes accused SI Amar Singh Shekhawat came out from PS and joined me in my car. Panch Witness was sitting in the front seat FIR No. 14/05 16/33 adjacent the driving seat. I told accused that I could not arrange the pre demanded money and I could only arrange Rs. 5,000/ and requested accused to get my case registered. Accused asked about the identity of the panch witness. I introduced Panch Witness as my brother. Panch witness then told the accused that I could not arrange the entire money upon which accused told the Panch Witness that he had demanded Rs.20,000/ then Panch Witness told the accused that whatever has been settled between you and accused may be done. Thereafter I handed over tainted GC notes amounting to Rs.5,000/ to the accused present in court. Accused received the tainted notes through his right hand and at that time he was holding a paper in his left hand and he kept this amount in that paper which he was holding in his left hand. The numbers of the recovered GC notes were tallied from the numbers already recorded and were found to be the same. The recovered GC notes were taken into possession vide memo Ex.PW5/B." The Complainant (PW5) further deposed that "It is correct that accused was holding some papers in his hand and he asked me to put the bribe amount on those papers and thereafter I put the bribe amount on the paper which the accused was FIR No. 14/05 17/33 holding in his hand. It is correct that hand wash of accused was not taken rather the right hand of Panch Witness was got touched with that paper and thereafter wash of right hand of Panch Witness was taken."
10. Panch Witness Ramesh Kumar (PW8) deposed that on 16.03.2005 when he was deployed on duty, a complaint of demand of bribe of Rs.5,000/ by one Amar Singh Shekhawat working as an Inspector in the PS Badarpur was received and the Complainant (PW5) produced Rs.5,000/ i.e. 10 GC notes in the denomination of Rs.500/ each, the serial numbers of which were recorded in preraid report Ex.PW10/A and thereafter the Raid Officer (PW10) applied some powder on the GC notes and explained the characteristics of the phenolphthalein powder and the treated GC notes were kept by the Complainant (PW5). He was asked to accompany the Complainant (PW5) who was also instructed on the same lines. The Panch Witness (PW8) deposed that the Raid Officer (PW10) instructed him to give a predetermined signal after being satisfied that the money had being demanded and accepted by the accused. The Raiding Party left the Anti Corruption Branch and reached near PS Badarpur where the members of the raiding party took suitable positions and the Complainant (PW5) sat FIR No. 14/05 18/33 in an Indica Car on the rear seat and he sat next to the driver in the front of the car. Panch Witness (PW8) deposed that the accused joined them and sat in the Indica car next to the Complainant (PW5) on the rear seat and started talking to the accused and told him that he could only manage Rs.5000/. Thereafter the accused took the GC notes with his right hand and kept the same in a paper which he was holding in his hand. Panch Witness (PW8) deposed that when the accused was coming out of the Indica Car he gave a predetermined signal to the Raiding Party and the accused was apprehended who became perplexed and threw the GC notes of Rs.5,000/ on the ground and tried to escape but was nabbed. The hand wash of the accused was taken and the solution was transferred in empty bottles. Panch Witness (PW8) deposed that the Raid Officer (PW10) seized the GC notes Ex.P1 to P10 recovered by him from the accused. Panch Witness (PW 8) deposed that "It is correct that the accused kept a piece of paper on his right hand and thereafter, got Rs.5000/ kept on that piece of paper in his right hand. It is correct that the Raid Officer offered his search before apprehension of the accused. It is correct that the Raid Officer asked me to recover the tainted money.'' FIR No. 14/05 19/33
11. On the basis of the evidence discussed above the prosecution has argued that the demand, acceptance & recovery of bribe has been proved whereas it is argued on behalf of the accused that there are various inconsistencies in the testimony of the Complainant (PW5) & Panch Witness (PW8). It is true that the Complainant (PW5) deposed that during the departmental proceedings the accused had demanded Rs.1,00,000/ and it was settled for Rs.80,000/ and told him to give Rs.20,000/ within 12 days. It is also true that in the present proceedings the Complainant (PW5) deposed that the accused had demanded Rs.20,000/ from him but he offered Rs.5,000/ to the accused. It is also true that both the Complainant (PW5) and the Panch Witness (PW8) deposed that the right hand wash of the accused was taken but both the Complainant (PW5) and the Panch Witness (PW8) clarified that the accused had got the bribe money kept on a paper/document Ex.PW5/A a complaint of Rajiv Pandey and the right hand of the Panch Witness (PW8) was got touched on currency notes and the handwash was taken. The solution was taken in RHWI & II. It is also true that the Complainant (PW5) deposed that the accused had received the tainted notes through his right hand and had kept the money in a paper which he FIR No. 14/05 20/33 was holding in his left hand but later in examinationinchief deposed that "It is correct that accused was holding some papers in his hand and he asked me to put the bribe amount on those papers and thereafter I put the bribe amount on the paper which the accused was holding in his hand. It is correct that hand wash of accused was not taken rather the right hand of Panch Witness was got touched with that paper and thereafter wash of right hand of Panch Witness was taken." The Panch Witness (PW8) deposed that "It is correct that the accused kept a piece of paper on his right hand and thereafter, got Rs. 5000/ kept on that piece of paper in his right hand. It is correct that the Raid Officer offered his search before apprehension of the accused. It is correct that the Raid Officer asked me to recover the tainted money. It is incorrect to suggest that the tainted money was recovered by me from the right hand of the accused. (Vol. When I was in process of recovering the said amount the accused threw the same on the ground.''
12. No doubt some discrepancies have occurred in the testimony of the Complainant (PW5) and the Panch Witness (PW8) but unless the contradictions pointed out are of a material dimension the same should FIR No. 14/05 21/33 not be used to jettison the evidence in its entirety and therefore, trivial discrepancies ought not to obliterate the otherwise acceptable evidence as held in Rammi Vs. State of M.P., 2000 SCC (Cri) 26; Leelaram Vs. State of Haryana, 2000 SCC (Cri) 222. The Court can sift the chaff from the gram and find out the truth from the testimony of the witnesses and the evidence is to be considered from the point of view of trustworthiness and in case such an element is satisfied it ought to inspire confidence in the mind of the Court to accept the stated evidence. There are bound to be some discrepancies between the narration of different witnesses when they speak in details, therefore, a serious view being adopted on mere variations falling in the narration of an incident either as between the evidence of two witnesses or as between two statements of the same witness is an unrealistic approach for judicial scrutiny. In fact the contradictions pointed out on behalf of the defence are not which go to the root of the matter and discredit the credibility of the Complainant (PW5) and the Panch Witness (PW8). The discrepancies pointed out do not touch the core of the case that the accused demanded and accepted bribe and the testimony of the Complainant (PW5) has been corroborated by the Panch Witness (PW8) on all material aspects i.e. on 16.03.2005 the FIR No. 14/05 22/33 Complainant (PW5) had made a complaint regarding demand of Rs.5,000/ by the accused for registration of an FIR. The Panch Witness (PW8) has further corroborated the testimony of the Complainant (PW5) that 10 GC notes in the denomination of Rs. 500/ each were produced by him which were treated with phenolphthalein powder and the characteristics of the same were also explained by the Raid Officer (PW10). The Panch Witness (PW8) corroborated the testimony of the Complainant (PW5) that the numbers of the GC notes were noted and he was instructed to hear the conversation between the Complainant (PW5) and the accused. The testimony of the Complainant (PW5) has been corroborated by the Panch Witness (PW8) that raiding party left the Anti Corruption Branch and reached outside the PS Badarpur where the accused was called by the Complainant (PW5). The Panch Witness (PW8) corroborated the version of the Complainant (PW5) and deposed that the Complainant (PW5) sat on the back seat of the car and he was also seated in the same car next to the driver. The accused came and sat on the rear seat and had a conversation with the Complainant (PW5) who told him that he could only manage and arrange Rs.5,000/ and accused took Rs.5,000/ in his hands and kept the same on some papers which he FIR No. 14/05 23/33 was carrying. The Panch Witness (PW8) deposed that at this juncture he gave a predetermined signal to the officials of the Anti Corruption Branch and the accused got perplexed on seeing the raiding party and also when the Raid Officer (PW10) gave his identity to the accused. The Panch Witness (PW8) deposed that the accused tried to run away but he was controlled by the officials of the Anti Corruption Branch. The Panch Witness (PW8) also identified the 10 GC notes as Ex.P1 to Ex.P10 and sealed bottle in which the samples of the hand wash were taken as Ex.P11 and also deposed that application Ex.PW5/D was seized from him. The Panch Witness (PW8) also deposed that the accused kept a piece of paper on his right hand and thereafter, had got Rs.5000/ kept on the same. He also deposed that tainted money was recovered from him by the accused. The Panch Witness (PW8) admitted his signatures on the complaint Ex.PW5/A, preraid report Ex.PW5/B and postraid report Ex.PW5/C. The Panch Witness (PW8) admitted that the hand wash of the accused was not taken. Panch Witness (PW8) further deposed that "It is correct that Raid Officer got my right hand touched with paper Ex. PW 5/D and took my right hand wash in some water like colourless solution which turned pink. It is correct that no hand wash of the FIR No. 14/05 24/33 accused was taken at the spot". The FSL Report Ex.PW9/X4 shows that the hands of the Panch Witness (PW8) carried phenolphthalein powder and the hand wash of the Panch Witness (PW8) was taken which turned pink.
13. The testimony of the Complainant (PW5) and Panch Witness (PW8) has been further corroborated by the Raid Officer (PW10) on all material aspects as he deposed that the Complainant (PW5) made a complaint regarding demand of bribe of Rs.5,000/ by the accused posted at Police Station, Badarpur for registration of the case of kidnapping in the presence of the Panch Witness (PW8). The Raid Officer (PW10) also corroborated the testimony of Complainant (PW5) and Panch Witness (PW8) that 10 GC notes of Rs.500/ each were produced by the Complainant (PW5) and the serial numbers of the same were recorded in the preraid report Ex.PW10/A. The Raid Officer (PW10) corroborated the testimony of the Panch Witness (PW8) that the characteristics of the phenolphthalein powder and demonstration of the same were given by him. The Raid Officer (PW10) deposed that the treated GC notes were given to the Complainant (PW5) and the hands of the Panch Witness (PW8) were got washed with soap and the solution was thrown away. FIR No. 14/05 25/33 The Raid Officer (PW10) deposed that he gave instructions to the Complainant (PW5) as well as the Panch Witness (PW8) to remain close to each other and the Panch Witness (PW8) was directed to give pre determined signal as soon as the bribe money is given to the person demanding the same. The Raid Officer (PW10) deposed that at the relevant time he saw the accused getting into the Indica Car of the Complainant (PW5) which was parked close to the PS Badarpur. According to the Raid Officer (PW10), the accused joined the Complainant (PW5) in the car who was sitting on the rear seat whereas the Panch Witness (PW8) was sitting on the front seat. The Raid Officer (PW10) further deposed that he rushed to the Indica Car on receiving a predetermined signal from the Panch Witness (PW8) where the Panch Witness (PW8) and the Complainant (PW5) disclosed that the accused had demanded and accepted the bribe money and the accused had asked the Complainant (PW5) to keep the bribe amount in the application which he was carrying with him. The Raid Officer (PW10) deposed that the bribe money was recovered from the accused with the help of the Panch Witness (PW8) and the serial numbers of the recovered GC notes tallied with the serial numbers mentioned in the preraid report FIR No. 14/05 26/33 Ex.PW10/A which were seized vide memo Ex.PW5/B. Thereafter the wash of the hand of the Panch Witness (PW8) was taken as he recovered the GC notes from the application and he was asked to touch the application and the right hand wash of the Panch Witness (PW8) turned pink. The solution was transferred into two bottles which were marked as RHWI & II and the application Ex.PW5/D was seized vide memo Ex.PW5/C. The postraid proceedings Ex.PW10/B were drawn.
14. The three material witnesses examined by the prosecution have proved that the GC notes of Rs.5000/ produced by the Complainant (PW5) were treated with phenolphthalein powder and handed over to the Complainant (PW5) and the same GC notes were handed over to the accused by the Complainant (PW5) in the presence of the Panch Witness (PW8) in the Indica Car and the same were recovered from the accused at the spot by the Panch Witness (PW8) on the directions of the Raid Officer (PW10). Complainant (PW5) and Panch Witness (PW8) both deposed that the GC notes were kept by the Complainant (PW5) on the papers which were in the hand of the accused and the same Ex.P1 to Ex.P10 were taken into possession vide memo Ex.PW5/B which were got touched from the Panch Witness (PW8) and his handwash was taken. FIR No. 14/05 27/33 The prosecution has been able to prove that the accused made a demand from the Complainant (PW5) and accepted a bribe of Rs.5,000/ from him in his Indica Car and the tainted currency notes were recovered from the accused, a public servant which was not a legal remuneration and it was therefore for the accused to explain that the money received by him was not illegal gratification.
15. Hon'ble High Court in the case of State of Andhra Pradesh V/s. S.R. Jeevaratnam 2004 (2) JCC 1161 held as under: "Once it is proved that the accused had accepted or agreed to accept any illegal gratification then the presumption under section 20 of the Prevention of Corruption Act automatically arises and proof does not mean direct proof and the very fact that the marked currency notes were recovered then it is for the accused to explain".
16. Here it is relevant to refer to the case of B.Noha V/s. State of Kerala & Another 206 VI AD (Criminal) 465 (SC) where it was held in para 10 as under: FIR No. 14/05 28/33 "When it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deduced from the facts and circumstances obtained in the particular case.
17. The accused failed to discharge the burden which shifted on him and on the contrary the evidence on record proves that the DD No. 13/A Ex.PW7/3 dated 12.01.2005 was recorded at PS Badarpur on the information given by Sh. Varun Rai, brother of the Complainant (PW5); that the information was that the Complainant Arun Rai had possibly been kidnapped; that the information was given by PS Hathideh, Bihar to Delhi Police; that the Complainant (PW5) was brought from PS Hathideh, Bihar to Delhi on 18.01.2005; that Head Constable Laxman Singh Baghel, PS Badarpur obtained the original statement of the Complainant (PW5) from PS Hathideh, Bihar; that the Complainant (PW5) came to PS Badarpur for registration of FIR and met the SHO, PS Badarpur; that the Complainant (PW5) was told to collect the copy of FIR in the record; that no FIR was registered; that the DD No.13A FIR No. 14/05 29/33 Ex.PW7/3 dated 12.01.2005 was assigned to the accused; that a complaint under Section 156(3) Cr.P.C. was filed by the Complainant (PW5) in the court of Sh. L.K. Gaur, Ld. MM., Patiala House Courts, New Delhi; that a status report on the same was called from SHO PS Badarpur; that in the Status Report it was mentioned that no FIR had been registered as a cognizable offence was not made; that the accused being the Investigating Officer failed to make any DD entry/entries in the PS Badarpur and he had come to the conclusion during investigation that the Complainant (PW5) was faking his kidnapping; that the accused failed to record during investigation the purpose for keeping the DD No.13A pending and for the first time while filing the Status Report in the Court of Sh. L.K. Gaur, Ld. MM, Patiala House, Delhi submitted that no cognizable offence was made out.
From the evidence on record it has emerged that as soon as the status report was asked for by the court of Sh. L.K. Gaur, Ld. MM, Patiala House Courts, Delhi the accused called the Complainant (PW5) through two police constables and the Complainant (PW5) spoke to the accused on mobile phone. It is on record that both the Complainant (PW5) and the accused met in front of the PS Badarpur in the Indica Car FIR No. 14/05 30/33 of the Complainant (PW5) in which the Panch Witness (PW8) was also sitting. The testimony of the Complainant (PW5) and Panch Witness (PW8) discussed above go to prove that the accused accepted Rs.5000/ on a paper/document Ex.PW5/A a complaint of one Rajiv Pandey which was in the hand of the accused and officially assigned to him for action.
That the accused was trapped red handed at the time when he was about to alight from the Indica car in which the transaction had taken place. The GC notes recovered by the Panch Witness (PW8) on the instructions of the Raid Officer (PW10) were the same which were produced by the Complainant (PW5) and the number of those GC notes tallied with the serial numbers of the GC notes mentioned in the preraid report Ex.PW10/A. The motive for the demand of bribe is writ large on the face of record. The accused on coming to know that the complaint under Section 156 (3) Cr. P.C. had been filed and a status report had been called for contacted the Complainant (PW5) and told him that '' Vakil ya adalat ke chakkar me mat pado''. The accused was assigned the investigation of the alleged kidnapping of the Complainant (PW5). In fact the accused had no option but to register an FIR and investigate the same. In case the accused had come to the conclusion that the FIR No. 14/05 31/33 Complainant (PW5) was faking his kidnapping the accused was required to prepare a final report and place the same before his superiors for approval for cancellation of the FIR but the accused instead of registering an FIR slept over the same and swung into action when the Complainant (PW5) sought redressal of his grievance and knocked the doors of court by filing a complaint under Section 156 (3) Cr.P.C.
The combined reading of the testimony of the material witnesses go to prove that accused accepted the tainted money from the Complainant (PW5) and there is definitive evidence to this effect.
18. Conclusion In view of the above discussion, I am of the considered view that the prosecution has been able to prove beyond reasonable doubt that accused Amar Singh Shekhawat being employed as a public servant obtained illegal gratification of Rs.5,000/ from the Complainant (PW5) other than legal remuneration and thereby committed an offence punishable under Section 7 of the Prevention of Corruption Act, 1988.
It is also proved beyond reasonable doubt that accused Amar Singh Shekhawat obtained illegal gratification of Rs.5,000/ as a pecuniary advantage by corrupt or illegal means by abusing his position FIR No. 14/05 32/33 as a public servant and thereby committed an offence of criminal misconduct as specified under Section 13 (i) (d) punishable under Section 13 (2) of the Prevention of Corruption Act, 1988.
19. Result:
As a result of the above, the Court is left with no option but to convict accused A mar Singh Shekhawat under Section 7 of the Prevention of Corruption Act, 1988 and also for offence under Section 13 (i) (d) punishable under Section 13 (2) of the Prevention of Corruption Act, 1988. Ordered accordingly. Let the accused be heard on the point of sentence.
Announced in the SANGITA DHINGRA SEHGAL
Open Court on 19.10.2011 SPL. JUDGE, ACB, DELHI
FIR No. 14/05 33/33