Delhi District Court
State vs Mukhtiar Singh Thakur, on 24 July, 2009
1
IN THE COURT OF SH. A. S. YADAV SPECIAL JUDGE : DELHI
C C No. 109/08
State V/s Mukhtiar Singh Thakur,
S/o Labh Singh Thakur,
R/o U-30, Upadhyay Block,
Shakarpur, Delhi.
Gobind S/o Sh. Ram Singh,
r/o 409, Loni Gate, Chhota Bazar,
Shahdara, Delhi.
Manohar Chand Sharma,
S/o Sh. Ram Dutt Sharma,
R/o G-157, Lajpat Nagar,
New Delhi.
F. I. R No. : 40/98
Under Section : 7/13 of Prevention of Corruption Act,
1988 & Section 120-B IPC.
Police Station : Anti Corruption Branch
Date of Institution 14.7.99
Judgment reserved on 17.7.09
Judgment delivered on 22.7.09
JUDGMENT
In brief the case of the prosecution is that on 13.10.98 complainant S. R. Verghese ( PW3 ) went to Anti Corruption Branch and submitted his typed complaint Ex. PW3/A in presence of panch witness Sh. Sriniwas Manda ( PW7 ) as well as raid officer . The complaint is reproduced as under :-
"I am S. R. Verghese, Resident of 294-C, 2 Pocket II, Phase-I, Mayur Vihar, Tel- 2259827. On the 9th of Oct Mr. Surenderpal Meter reader of the Delhi Vidyut Board, had called my residence and informed that my on coming bill for the month of Oct will be exceptionally high and he wanted to talk about this. On talking to him I realized that he has some intention of taking money from me as bribe, hence I asked him to come on the Sunday 11th of Oct in the afternoon to my residence so that we can speak at length.
As decided, on Sunday he along with two other people came around 12.45 in the afternoon. He showed in the meter readers book that last two bills raised were provisional, as the reading was not very clear both times, in their terminology ( upset reading ), this I think was done purposely to put pressure on unsuspecting people like me. Then he showed that the meter reading present was 7714, as per which the bill amount would be Rs. 12000.00. On his own he offered to adjust the meter for which he asked me to pay him 1/3rd of the total amount payable to DVB , which was approximately Rs. 4000.00.
As I am against the giving and taking of bribe and the rampant corruption in the country I had hidden a micro cassette recorder in my pocket and have recorded the entire conversation, which has minutest aspect of the total talk.
The deal of payment of the bribe amount Rs.
4000.00 was struck and I asked him to come on Tuesday 13th of Oct to my residence to collect the money at 10.00 AM.
Immediately after this Mr. Surenderpal called Mr. A.K. Sharma his subordinate and the meter mechanic ( 3 whose name is not known to me ) and asked him to disconnect the meter and bring it in the house. the mechanic promptly went and got the meter out and , cut the seals of DVB and reading was reversed to 3215, and the figure of 3200 was written in the meter readers book on the related folio. After this the meter was re-sealed with the identical seal, the mechanic was carrying a bag of seals.
Mr. Surenderpal then assured me that the next bill which would come will be very nominal.
As this person will be coming to my residence today to collect the BRIBE money of Rs. 2000.00 as the first instalment of the total BRIBE money of Rs. 4000.00 as agreed, I would request you to take appropriate action. I reiterate that I am totally against giving and taking of the bribe or illegal gratification of any type. I also would like to highlight the fact that I had had no money transaction with this man in the past or any contact with him. I personally don't have any enmity against him but against the act of bribe asking and damage to the government revenue. I am here by submitting the following-
. The micro cassette in which the conversation is recorded which took place at my residence on 11th Oct.
. The pieces of the tampered seal which was broken and taken away.
. Rs. 2000.00 which has to given as Bribe Money.
Kindly take necessary action to check the menance of the bribe in our society."
2 The prosecution case further is that complaint was already signed by the complainant but his signature was again 4 obtained by the raid officer in his presence and in presence of panch witness. The complaint is also signed by raid officer and panch witness.
3 The prosecution case further is that complainant has brought Rs. 2000 in the denomination of three GC notes of Rs. 500/- each and five GC notes of Rs. 100/- each and and handed over the same to the Raid Officer Insp. V. P. Singh ( PW8). The Raid Officer recorded the serial numbers of those GC notes in his pre raid report Ex. PW3/H. Raid Officer applied phenolphthalein powder on those GC notes and gave a demonstration to the punch witness and complainant by touching the hand of punch witness with those treated GC notes and took wash of hand of punch witness in the solution of sodium carbonate and that solution turned into pink. The solution was thrown away. Treated GC notes were given to the complainant who kept the same in the left pocket of his shirt . Thereafter all of them washed their hands. Thereafter Raid Officer instructed punch witness to remain close with the complainant and to over hear the conversation after being satisfied that bribe had actually been given, punch witness was asked to give a signal by moving his right hand on his head. The complainant was instructed to remain close to punch witness and to do transaction in such a manner that he would be able to see the transaction and hear the conversation and he would give the bribe money on specific demand.5
4 Prosecution case further is that at about 9.00 AM the Raid Officer , complainant, punch witness , Insp Om Dutt ( IO ) along with other members of raiding party left Anti Corruption Branch in a government vehicle for Mayur Vihar Pocket II, Phase I and reached there at about 9.30 AM. The government vehicle was parked some distance from the house of complainant and Inspector Om Dutt with driver remained in that vehicle. Complainant and Panchwitness were sent to the house of complainant. Complainant and panch witness sat in the drawing room whereas Raid Officer along with head constable Ram Kishan took position inside the bed room adjacent to the drawing room.
5 The prosecution case further is that at about 10.40 AM Raid Officer received pre determined signal from the punch witness and he along with the head constable Ram Kishan came into the drawing room. Panch witness told the Raid Officer that accused Mukhtiar Singh had accepted the bribe money with his left hand and gave the same to accused Manohar Chand Sharma who took it in his left hand and kept the same in left pocket of his shirt. Raid Officer introduced himself as inspector from Anti Corruption Branch and challenged the accused persons that they had taken bribe from the complainant and he offered that if accused persons wanted to take his search before their search, they can do so but both the accused refused to do so. On the instruction of Raid Officer panch witness recovered Rs. 2000/- from left pocket of the shirt of accused Manohar 6 Chand Sharma. On the instruction of raid officer panch witness compared serial numbers of those GC notes with the serial numbers mentioned in the pre raid report and they were found to be same. Those recovered GC notes were taken into possession vide seizure memo Ex. PW3/D. The left hand wash of accused Mukhtiar Singh was taken in the colourless solution of sodium carbonate which turned into pink. The solution so prepared was transferred separately in two empty, small clean bottles which were sealed with the seal of VPS. Marked paper slip LHW I-II were pasted on those bottles after obtaining the signature of punch witness and complainant. Thereafter left hand wash of accused Manohar Chand Sharma and his left pocket wash was taken in similar manner which also turned pink and the solution was transferred into four empty clean bottles and sealed with the seal of VPS. Marked paper slips LHW-III-IV and LSPW-I-II were pasted on those bottles after obtaining the signature of Raid Officer and panch witness. The shirt of the accused Manohar Chand Gupta was converted into pulanda and seized vide memo Ex. PW3/C. Raid Officer drawn post raid proceedings Ex. PW4/E. The Raid Officer prepared the rukka Ex. PW3/J and sent Head Constable Ram Kishan to PS Anti Corruption Branch for registration of the case. Insp. Om Dutt ( IO ) was called at the spot and he handed over the custody of both the accused, case property, GC Notes of Rs. 2000/- copy of rukka, raid report for investigation. Thereafter IO prepared the site plan Ex. PW6/A at the instance of complainant and panch witness and recorded their statements. He interrogated both the accused and 7 arrested them vide personal search memo Ex. PW3/F and G. 6 Thereafter investigating officer along with complainant, panch witness and both the accused persons went to Shahdara for search of third accused Govind and on the identification of accused Mukhtiar Singh accused Govind was arrested from h is house at Loni Gate Shahdara. Thereafter all the accused were taken to PS Civil Lines where they were put in lock and Investigating Officer deposited the 2nd part of exhibits, case property, articles of personal search with MHCM. He deposited first part of exhibits with ACP K. K. Pandey in Anti Corruption Branch. He had received the copy of FIR Ex. PW9/C and rukka at the spot. Samples were sent to FSL Chandigarh and FSL result is Ex. PW6/B.. During the course of investigation he obtained sanction u/s 19 of Prevention of Corruption Act ,1988 to prosecute accused Mukhtiar Singh. and after completing the investigation filed the charge sheet in the court. 7 After complying with the provisions of Section 207 Cr. P. C. and after hearing the Ld. Addl. PP for the state and ld. Counsel for accused persons charge was framed against the accused persons. 8 In order to prove its case prosecution examined 8 witness. 9 Thereafter statement of both the accused were recorded u/s 313 Cr. P. C. They claimed to be innocent and falsely implicated in this case. They examined three witnesses in defence i.e DW1 Sri Pal 8 Singh, DW2 Davender Kumar Verma and DW3 Sripal Singh 10 I have heard Sh. Alok Saxena ld. Addl. PP for state , and Sh. R. S. Singhal advocate for accused Manohar Chand Sharma, Sh. D. S. Patial for accused Mukhtiar Singh and Sh. C. M. Mathur Advocate for accused Govind.
11 Accused Mukhtiar Singh.
It is submitted by ld. counsel for accused Mukhtiar Singh that prosecution has failed to prove that sanction was properly accorded in respect of accused Mukhtiar Singh. It is submitted by him that the transcription was not placed before the sanctioning authority which shows non application of the mind. He has referred to case of Mohd Iqbal Ahmed V/s State of A.P. AIR 1979 SC 677 where it was held as under:-
" It is incumbent on the prosecution to prove that a valid sanction has been granted by the sanctioning authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either ( 1 ) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and ( 2 ) by adducing evidence aliunde to show the facts placed before the sanctioning authority and the satisfaction arrived at by it. Any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are 9 rendered void ab initio. What the court has to see is whether or not the Sanctioning Authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same. Any subsequent fact, which may come into existence after the grant of sanction, is wholly irrelevant. the grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned."
12 There cannot be any dispute regarding the preposition of law laid down by the Hon'ble Supreme Court in the aforesaid case. Facts of that case was entirely different. In that case the resolution of the Standing Committee granting the sanction was lacking in material particulars. Whereas it is not so in the instant case. The sanctioning authority PW1 Sh. Dev Trivedi had appeared in the court and deposed that on 10.2.99 he was posted as Member ( Administration ) DVB and accused Mukhtiar Singh was employed as meter reader in DVB . He was competent to remove Mukhtiar Singh from services and he accorded sanction after carefully going through the record. The sanction is quite detailed and in the sanction order it is specifically stated that accused Mukhtiar Singh while working as meter reader demanded bribe amount of Rs. 4000/- from complainant on 11.10.98 and on 13.10.98 he demanded , accepted and obtained Rs. 2000/- as 10 first installment from complainant as illegal gratification other then legal remuneration mis using his official position as public servant as such through illegal means for adjusting the meter, cutting the seal of DVB, reverse the meter units and resealing the meter with the identical seal. Bare perusal of the sanction order depicts proper application of mind on the part of the sanctioning authority. Sanctioning authority in his cross examination stated that he perused arrest report, raid report, the FIR, seizure memos, recovery memo, FSL report before giving sanction.
13 It is submitted by ld. defence counsel that it is no where mentioned by sanctioning authority that he has perused the transcription meaning thereby that there was no application of mind on the part of the sanctioning authority. No suggestion was put to the sanctioning authority in the cross examination that he has not perused the transcription. Simply because sanctioning authority did not mention in his cross examination that he also perused the transcription does not mean that he has not perused the transcription. In his examination in chief he specifically stated that he received request from Anti Corruption Branch to accord sanction along with all documents and case file of the case and he perused the entire material meaning thereby that he had gone through the entire file including the transcription. The sanctioning authority had appeared in the witness box and specifically testified that he had perused all the relevant documents and the sanction order itself shows due 11 application of mind. Sanction is properly accorded. Reference is placed on the case State of Maharashtra and ors V/s Ishvar Piraji Kelpatri & ors. 1996 Cri. L. J. 1127, where Hon'ble Supreme Court had laid down that if the Authority according sanction makes statement that while signing the order of sanction, it had personally scrutinized the file and had arrived at required satisfaction , it is not necessary to look for, that there was application of mind or not or that material on record was examined by the concerned officer or not before according sanction, especially when order prima facie shows that, he had done so.
14 It is further submitted by ld. counsel for accused Mukhtiar Singh that accused Mukhtiar Singh neither demanded nor accepted the bribe amount . It is further submitted by him that in fact the electricity load of the complainant 's house was more than the meter could bear. So he wanted to get a new meter installed in his house and for that reason he went to DVB office and met accused Mukhtiar Singh prior to 11.10.98 . It is further submitted by him that Mukhtiar Singh suggested complainant that electricity wiring of his house are defective and he further suggested complainant to get re wiring in his house and after getting the rewiring done he was asked to assess the correct connective load and then to get the appropriate meter installed. It is further submitted by him that thereafter complainant insisted upon accused Mukhtiar Singh to get the wiring work done and accused Mukhtiar Singh told complainant that wiring is 12 to be done by a private person and it was not the job of DVB officials and thereafter complainant asked him to refer to a person known to him so that he could get his work done. It is further submitted by him that thereafter accused Mukhtiar Singh suggested the name of accused Govind to the complainant. It is further submitted by him that thereafter the wiring of the house of complainant was changed by accused Govind and for that complainant had to pay Rs. 3980/- to Govind. It is further submitted by him that complainant refused to pay the amount to Govind and told Govind that he was charging excessively. It is further submitted by him that complainant paid Rs. 1980 to Govind and told him that he would pay the balance amount later on. It is further submitted by him that on 13.10.98 complainant telephoned Govind at 7.00 AM and asked him to collect the balance amount of Rs. 2000/- from his residence. It is further submitted by him that Govind told complainant that due to Diwali season he would be busy so he would send one Manoj Chand Sharma to collect the amount of Rs. 2000/-. It is further submitted by him that on 13.10.98 Manohar Chand Sharma reached the house of complainant at 10.15 AM for collecting amount of Rs. 2000/- and complainant refused to pay by saying he did not know him and further asked Manoj Sharma to call accused Mukhtiar as he got his work done from accused Govind through Mukhtiar. It is further submitted by him that thereafter Manohar Chand Sharma told complainant that he did not know Mukhtiar Singh. It is further submitted by him that thereafter complainant telephoned Mukhtiar Singh in his office and called him at 13 his residence. It is further submitted by him that on 13.10.98 Mukhtiar Singh was on duty at Kalyan Vaas and Mukhtiar Singh received message from his office and thereafter Mukhtiar Singh went to the house of the complainant. It is further submitted by him that thereafter complainant told Mukhtiar Singh that he wanted to pay the balance amount of Rs. 2000/- in his presence so that no dispute is raised later on. It is further submitted by him that thereafter complainant handed over Rs. 2000/- as balance payment to Mukhtiar Singh which Mukhtiar passed on to Manohar Chand Sharma. 15 It is submitted by ld defence counsel that in fact amount of Rs. 2000/- accepted by accused Mukhtiar Singh from the complainant was towards payment due to Govind in respect of the wiring done by him in the house of the complainant. It is submitted by him that it was not the bribe amount. It was further submitted by him that in fact Mukhtiar Singh has not tempered with the meter of the complainant and he has not reversed the reading in the electricity meter. It is further submitted by him that prosecution has failed to prove that electricity meter was ever tempered or its reading was reversed.
16 It is submitted by him that electricity meter was never seized by the investigating officer . That electricity meter was never sent to DVB to prove that the same has been tempered with and the meter reading had been reversed. It is submitted by him that it was 14 not done so by the investigating officer because the meter was never tempered with .
17 On the other hand it is submitted by Addl. PP for the state that it is proved beyond doubt from the conversation which took place between the complainant and accused Mukhtiar Singh and accused Govind that accused Mukhtiar Singh demanded bribe for reversing the meter reading. It is submitted by him that in fact accused persons have concocted the false story of doing wiring in the house of the complainant. It is further submitted by him that there was no need to seize the electricity meter as it was proved beyond doubt from the statement of complainant that electricity meter was tempered.
18 So far as the transcription is concerned it is submitted by ld defence counsel that prosecution has failed to prove the transcription. It is submitted by him that even as per the statement of complainant transcription Ex. PW3/B was not prepared by the raid officer in his presence. It is further submitted by him that even as per the complainant the entire cassette allegedly containing the conversation between complainant and accused Mukhtiar Singh and Govind was not played fully by the raid officer before the complainant and panch witness. It is further submitted by him that when the cassette was played in the court the same was not audible and clear. It is further submitted by him that admittedly neither the sample voice 15 of Mukhtiar Singh nor of accused Govind nor of complainant was taken by the investigating officer. It is further submitted by him that this cassette was never played in presence of accused during investigation. Hence under the circumstances the prosecution has failed to prove transcription Ex. PW3/B 19 In order to prove transcription Ex. PW3/B prosecution examined complainant who deposed that on 11.10.98 accused Mukhtiar Singh ( who introduced himself as Surinder Pal ) along with accused Govind came to his house. Accused Mukhtiar Singh talked to him in detail and told him that he would reverse the meter reading. Complainant further deposed that he was having a micro cassette recorder with him at that time and he had switched on the same while conversation was going on with accused Mukhtiar Singh. He further deposed that he had given his complaint along with micro audio cassette in which he had recorded the conversation between him and accused Mukhtiar Singh and accused Govind Singh as well as piece of seal which had been cut for reversing the meter. He further deposed that raid officer ( PW8 ) played micro cassette in his presence as well as presence of panch witness as well as in presence of person who were there at that place at that time in the office and prepared the transcription and that transcription Ex. PW3/B was signed by him on each page. In his cross examination he stated that transcript of the audio cassette was not prepared in his presence. However the audio cassette was played in his presence. He further 16 deposed that before leaving for raid he signed the transcript. He further deposed that it took about 5-7 minutes to hear the audio cassette after fast forwarding it. He further deposed that he cannot say if the raid officer had played the audio cassette to its full time before going for raid as at that time he was sitting outside and he remained outside for about 20-25 minutes. He further deposed that panch witness was also present when the audio cassette was played by fast forwarding and it was played once only. He further deposed that audio cassette was not fully played in his presence. Raid officer in his cross examination stated that he heard the audio cassette at length for about 10 minutes and thereafter he got prepared the transcript of the cassette from SI Suraj Prasad . He further deposed that it might have taken half an hour for getting prepared the transcript of the audio cassette. The audio cassette was played in the court. The transcript was not verbatim version of the recording in the cassette. However, the figures, amount and the dates etc recorded in the cassette tallied with the figures, amount and the dates given in the transcription. It is submitted by ld defence counsel that it has emerged from the statement of the complainant that cassette was not played fully before him. Transcription was not prepared in his presence. The transcription was prepared by SI Suraj Prasad and he was not cited as a witness nor he was examined in the court. Raid officer deposed that transcription was recorded in half an hour before going for raid. It is submitted by him that the transcription is running into seven pages. Six pages were written on both the side fully and 7th page was written 17 on one side only meaning thereby transcription Ex. PW3/B is running into 13 pages. It is further submitted that it is next to impossible that these 13 pages were written in just half an hour simultaneously while hearing the conversation in the cassette. It is further submitted by him that the investigating officer has neither collected the sample voice of complainant nor of any of the accused persons and in the absence of that it cannot be said that the cassette was containing the conversation recorded between him and the accused persons. 20 Simply because transcription was not verbatim does not mean that recording was not done correctly. It is significant to note that the cassette was handed over by the complainant to the raid officer on 13.10.98 along with the complaint and the cassette was sealed by him and thereafter same was played in the court. In the complaint the complainant has specifically stated that the seal of meter was cut and the reading at that time was 7714 and it was reversed to 3215 and figure of 3200 was written in the meter reader's book and thereafter same was resealed. In the transcription it is mentioned that in the register the reading was written as 3200. If accused Mukhtiar Singh has not visited the complainant's house on 11.10.98 then complainant had come to know that in the meter register the meter reading has been shown as 3200. In fact the statement of complainant that on 11.10.98 entry was made in the meter reading register showing the reading at 3200 is fully corroborated by the witness examined by the accused himself i.e. 18 DW3. DW3 when cross examined by ld. Addl. PP stated that the first meter reading in 1998 was taken on 27.5.98 and the same was 2240. The next meter reading was taken on 25.9.98 and reading was 3200. It is also proved from the statement of witness examined by accused DW3 Sh. Pal Singh from the office BSES ( which had taken over DVB) that in the meter reading register, meter reading has been shown 3200. It corroborates the averments made in the complaint that reading was noted in the register as 3200. Unless this thing has been done in presence of the complainant , the complainant would not have mentioned about the same in the complaint Ex. PW3/A. It can be argued that this register shows that entry was made on 25.9.98 whereas as per the statement of complainant entry was made on 11.10.98. The complainant was concerned with the entry in the register and not with the date. The entry showing meter reading unit as 3200 was made by the accused Mukhtiar Singh in presence of complainant. It is not the case of accused Mukhtiar Singh the being the meter reader he went to the premises of the complainant on 25.9.98 and noted down the reading of the meter and mentioned the same as 3200 on 25.9.98. So in a way the transcription is corroborated by the statement of DW3.
21 There was no reason for the complainant to falsely implicate the accused Mukhtiar Singh. It is not the case of the accused Mukhtiar Singh that complainant bore any animus against him . It is not his case that complainant was knowing him earlier to the 19 incident. Complainant categorically stated in his complaint Ex. PW3/A that accused Mukhtiar Singh ( though in the complaint he has been referred to as Surinder Pal as he introduced himself as Surinder Pal to the complainant) along with two other persons came to his house on 11.10.98. He also deposed in the court that accused Mukhtiar Singh came to his house along with accused Govind. Accused Mukhtiar Singh talked to him in detail and told him that he would reverse the reading of electricity meter and thereafter accused Mukhtiar Singh and accused Govind removed his electricity meter and brought the same inside the house and seals of meter were cut by them and thereafter reversed the reading in the meter. He further deposed that accused Govind was having instruments and material to put seals of DVB and he put the seal on that meter thereafter and thereafter the electricity meter was fixed at the place from where it was removed. He collected the pieces of seal and took them to Anti Corruption Branch when he got his complaint recorded and those pieces were put by raid officer in match box and were duly sealed and the broken seal is Ex. P18.
22 It is submitted by ld defence counsel that in case the meter was tempered with then the bill would have been raised by the Enforcement Department of DVB. It is submitted by him that DW1 Sh. Pal Singh deposed that for tempered meter the bill used to be raised by Enforcement Department and as per the record brought by him 20 there is no mention if any bill was raised by Enforcement Department in respect of the meter in question. It is submitted by him that this by itself shows that meter was not tempered with. I do not find any force in the submission of ld. defence counsel . It is significant to note that complainant in his cross examination stated that after his complaint the tempering of his meter was rectified by DVB. He admitted that he had not made any complaint to DVB but he made complaint to Anti Corruption Branch. He further deposed that he did not call any one from DVB to rectify his meter but they have come of their own. It is significant to note that the complaint was made in Anti Corruption Branch regarding the reversing of electricity meter and Mukhtiar Singh who was meter reader was arrested and thereafter his electricity meter was rectified. This statement of the complainant is further corroborated by DW3 who stated that the meter was replaced on 25.11.98 and complainant also stated in his cross examination that after about 30-45 days of tempering it was rectified by DVB. So exactly as per DW3 the meter was changed within that period. DW3 also deposed that the possibility of getting the reading of meter also in September/Oct 98 deliberately by opening the seal of themeter cannot be ruled out. So from the statement of DW3 also it is clear that meter was changed on 25.11.98 as the same was tempered. Under these circumstances the matter might not have been referred to the Enforcement Branch. Since the electricity meter was changed just within 30-45 days of it tempering , for this reason the bill was not raised by Enforcement Branch.
2123 It is further submitted by him that in case meter is tempered the MTD department used to give report regarding its tempering. It is submitted by him that DW2 Davinder Kumar Verma deposed that if the meter is recommended for tempering than its report is given by MTD department. The statement of this witness has no relevance as the meter was never referred to MTD department as the same was replaced.
24 There was no reason for the complainant to lodge a false report against the accused unless and until accused had in fact reversed the meter reading and demanded bribe for that. So far as the submission of ld defence counsel that prosecution has failed to prove that in fact the meter was tempered is concerned, the same is without force. It is true that the electricity meter was not seized by the raid officer but the same was not required. The complainant had categorically stated that electricity meter was tempered , the reading was reversed, the seal was broken and he took the seal with him at the time of lodging of the complaint. He further stated that on 11.10.98 accused persons told that they would come to collect the bribe amount on 13.10.98 and in fact on 13.10.98 accused Mukhtiar Singh along with accused Manohar Chand Sharma came at the residence of the complainant. Accused Mukhtiar Singh as well as accused Manohar Chand Sharma have admitted about coming to the house of complainant at the relevant time. Accused Mukhtiar Singh had also admitted that he accepted Rs. 2000/- from the complainant and gave 22 it to Manohar Chand Sharma. The plea of accused that initially Manohar Chand Sharma came to the house of complainant and thereafter he came to the house of complainant as he was called by the complainant under the circumstances narrated above is not at all established. Complainant in his cross examination denied that on 13.10.98 he telephoned Govind at 7.00 AM and asked him to collect the balance amount from his residence. He denied the suggestion that Govind expressed his inability to come on account of Diwali Season and told that he would send Manohar Chand Sharma to collect the amount. He denied the suggestion that he asked Govind to send his men on 13.10.98 between 10.00 AM to 10.30 AM. A suggestion was put to him that Manohar Chand Sharma reached at his house at 10.15 AM to which he replied that on 13.10.98 Manohar Chand Sharma came to his house along with accused Mukhtiar Singh and accused Manohar Chand Sharma was not alone. He denied the suggestion that accused Mukhtiar Singh did not accompany Manohar Chand Sharma on 13.10.98 at 10.15 AM.
25 It is significant to note that to a suggestion complainant replied that it is correct that he had given his consent to accused Surinder to temper with the electricity meter and he volunteered to say that he allowed this to catch them for doing illegal act. Apart from the statement of the complainant that accused Mukhtiar Singh tempered with the electricity meter this suggestion itself shows that electricity meter was tempered by accused Mukhtiar Singh. Complainant had 23 categorically stated that accused Mukhtiar Singh introduced himself as Surinder.
26 The acceptance of Rs. 2000 by accused Mukhtiar Singh from complainant is admitted. The handing over of Rs. 2000/- by him to accused Manohar Chand Sharma is also admitted. It is submitted by ld defence counsel that accused persons are only to probablise their defence. It is submitted by him that defence taken by the accused persons is probable and it was for the prosecution to prove that the amount accepted by the accused persons was bribe. Ld. defence counsel has referred to the case law Sunil Kumar V/s State (CBI ) 2007 II AD (Cr. ) ( DHC ) 481, T. Subramanian V/s State of Tamil Nadu AIR 2006 Supreme Court 836, Mathura Dass Gupta V/s State of Haryana 2006 (1) RCR (criminal) 566, State of H.P. V/s Inder Mohan 2006 Crl. L. J. 1720, Amrit Lal V/s State of Punjab 2006 (3) RCR ( Criminal ) 796, Diwesh Marayan Raizada V/s State of Bihar 2007 (2) Acquittal 79, Mohd Iqbal Ahmed V/s State of Andra Pradesh AIR 1979 Supreme Court 677 and Panalal V/s State of Maharashtra AIR 1979 Supreme Court 1191. I have gone through these judgments. However they are distinguishable and not applicable to the facts and circumstances of the present case. 27 On the other hand it is submitted by ld. Addl. PP for state that once the acceptance of the amount is proved and admitted by the accused then presumption U/s 20 arises and it is for the 24 accused persons to prove that the amount accepted by them was not illegal gratification.
It is useful to refer to Four Judge Bench of Hon'ble Supreme Court in case of Dhanwant Rai Balwant Rai Desai V/s State AIR 1964 Supreme Court 575 considered this fact and held as under:-
Therefore, the court has no choice in the matter, once it is established that the accused person has received a sum of money which was not due to him as a legal remuneration. Of course, it is open to that person to show that though that money was not due to him as legal remuneration, it was legally due to him in some other manner or that he had received it under a transaction or an arrangement which was lawful. The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words ' unless the contrary is proved ' which occurs in this provision make it clear that the presumption has to be rebutted by ' proof ' and not by a mere explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be probable that a reasonable man would act on the supposition that it exists. 25 Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted. Something more than raising a reasonable probability, is required for rebutting a presumption of law. The bare word of the appellant is not enough and it was necessary for him to show that upon the established practice his explanation was so probable that a prudent man, ought in the circumstances, to have accepted it."(emphasis supplied ).
It is also useful to refer to Five Judge Bench judgment of Hon'ble Supreme Court in C.I.Emden V/s State of UP AIR 1960 SC 458 . In that case accused accepted a sum of Rs. 375 from the complainant and he took the plea that he had taken the same as a loan for meeting the expenses for the clothing of the children who were studying in school. His plea was disbelieved by the Hon'ble Supreme Court and it was held that in order to raise the presumption u/s 20 of the Prevention of Corruption Act, 1988 (under the old Act it was section 4 ) prosecution has to prove that accused received the stated amount and the said amount was not legal remuneration then the condition prescribed by the section is satisfied. Here in this case definitely the amount received by the accused was not his legal remuneration.
28 The defence of accused Mukhtiar is that he 26 recommended the name of accused Govind to do the wiring job and the wiring was done by accused Govind. But accused Govind in his statement u/s 313 Cr. P. C stated that he did not go to the house of complainant. He further stated that he never visited the house of complainant with Mukhtiar Singh and no tempering was done by him. So the defence taken by accused Mukhtiar Singh that amount accepted by him was meant for accused Govind is denied by accused Govind. So where is the question of accused Mukhtiar Singh proving by preponderance of probabilities that the amount accepted by him was in respect of wiring done by accused Govind in the house of complainant when accused Govind denied having done any wiring in the house of the complainant. Where is the question of accused Mukhtiar Singh who was a public servant recommending the name of a private person for doing the wiring work in the house of the complainant. Complainant had categorically denied that any wiring work was done in his house.
29 It is submitted by ld defence counsel that the statement of complainant regarding the demand of bribe amount by accused Mukhtiar Singh on 13.10.98 is not corroborated by the panch witness. It is true that panch witness has not supported the prosecution case in material particulars. It is true from his statement it is evident that he was won over by the accused persons. However he admitted that complainant came to Anti Corruption Branch in his presence and made the complaint which was signed by him and the said complaint 27 was against the employee of electricity department of the government for demanding Rs. 4000/- for correcting the meter reading. He also admitted that he recalled that a transcript Ex. PW3/B was recorded and the same was signed by him and it was recorded after a audio cassette was played. The fact that he has been won over by accused Mukhtiar Singh is evident from the fact that in the cross examination he stated that first one person came and later on second person was called and he further stated that amount that was recovered from the person at the spot has been received by him towards wiring labour charges. Whereas it is proved from the evidence already discussed that no wiring was done in the house of complainant. The wiring was alleged to have been done by accused Govind but accused Govind denied ever visiting the house of complainant. He has no where stated in his statement that Manohar Chand Sharma was his man or that on 13.10.98 Manohar Chand Sharma was sent by him to collect the bribe amount.
30 The statement of the complainant can be acted upon even without any corroboration if it inspire confidence. There is no reason to disbelieve the complainant. Accused Mukhtiar Singh has admitted about the acceptance of money from the complainant and he has failed to prove even by preponderance of probabilities that money was accepted by him on behalf of Govind for wiring done in the house of complainant.
2831 It is submitted by ld. counsel for accused Mukhtiar Singh that in the complaint Ex. PW3/A the name of Mukhtiar Singh is not mentioned. Rather name of one Surinder Pal Singh is given. This by itself shows that Mukhtiar Singh never visited the house of complainant on 11.10.98. I do not find any force in the submission of ld. defence counsel as complainant has specifically stated that Mukhtiar Singh introduced himself as Surinder Pal singh that is why his name was mentioned as Surinder Pal in the complaint. No suggestion was given to him in his cross examination that Mukhtiar Singh has not introduced himself as Surinder Pal. More over it is case of Mukhtiar Singh that he met complainant prior to 13.10.98 and recommended the name of accused Govind for wiring as discussed in detail above. It is submitted by him that even raid officer deposed that it was told to him by the complainant that Manohar Chand Sharma earlier came to him and introduced himself as Surinder Pal. First of all this is hear say and more over in the raid proceedings it is specifically mentioned that Mukhtiar Singh earlier introduced himself Surinder Pal to the complainant. Presence of accused Mukhtiar Singh on 11.10.98 in the house of complainant at the time of tempering of meter is established beyond doubt.
32 The conduct of the accused is very important when he is challenged by the raid officer. Complainant deposed that when accused Mukhtiar Singh was challenged by the raid officer regarding acceptance of bribe he was shocked and held his head with his both 29 hands and removed his specks and than sat down. It is mentioned in the post raid proceedings Ex. PW3/B that when accused was challenged he turned pale and held his head with both hands and removed his specks. Nothing prevented the accused Mukhtiar Singh at that time to inform the raid officer that he had not accepted the bribe amount rather the same was meant for wiring done by accused Govind.
Here it is useful to refer to the judgment of the Apex Court reported as Parkash Chand V Delhi Admn. AIR 1979 SC 400 wherein in para 8 of the judgment Their Lordships observed as under :-
It was contended by the ld. Counsel for the appellant that the evidence relating to the conduct of the accused when challenged by the Inspector was inadmissible as it was hit by section 162 Criminal Procedure Code. He relied on a decision of the Andhra Pradesh High Court in D. V. Narisimhan V. State, ( AIR 1969 Andh Pra 271 ) . We do not agree with the submissions of Sh. Anthony. There is a clear distinction between the conduct of a person against whom an offence is alleged which is admissible under section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a Police Officer in the course of an investigation which is hit by sec. 162 Criminal Procedure Code. What is excluded by Sec. 162 Criminal Procedure Code is the statement made to a police officer in the course of investigation and not the evidence relating to the conduct 30 of an accused person ( not amounting to a statement) when confronted or questioned by a police officer during the course of an investigation. For example, the evidence of the circumstances, simpliciter, that an accused person led a police officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, u/s 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act ( vide Himachal Pradesh Administration Vs. Om Parkash AIR 1972 SC 975)
33 Accused Govind It is submitted by ld. counsel for accused Govind that his name is not mentioned in the complaint Ex. PW3/A. It is further submitted by him that accused Govind is not a public servant. He was not working in DVB. He was not arrested from the house of the complainant on 13.10.98. He neither demanded nor accepted the bribe amount. It is not proved that audio cassette is containing his voice as the voice was not clearly audible. It is further submitted by him that the only evidence appearing against the accused is the statement of the complainant that on 11.10.98 accused Govind came along with accused Mukhtiar Singh to his house and thereafter accused Mukhtiar Singh and Govind removed his electricity meter 31 and brought the same inside his house. The seal of meter was cut and thereafter meter was reversed and accused Govind Singh was having the instrument and material to put seal of DVB. It is submitted by him that in the complaint it is no where mentioned that accused Govind was having the material to put the seal. It is submitted by him that if accused Govind has entered into criminal conspiracy with accused Mukhtiar Singh to extort illegal gratification then he would have been present in the house of complainant on 13.10.98 i.e the day fixed for delivery of bribe amount. It is further submitted by him that the statement of complainant is not corroborated by any witness regarding the presence of accused Govind in the house of complainant on 11.10.98 and the prosecution apart from the statement of complainant has not proved anything that accused Govind was present in the house of complainant on 11.10.98. It is true that apart from the statement of complainant the prosecution has not proved anything on the record to show that accused Govind was present in the house of complainant on 11.10.98. It is significant to note that in the complaint Ex. PW3/A the complainant had mentioned that on 11.10.98 accused Surinder Pal ( whose identity has been established during investigation as accused Mukhtiar Singh) along with two other persons came to his house at 4.45 PM. It is alleged in the complaint that accused Surinder Pal called A. K. Sharma his subordinate and the meter mechanic ( whose name is not known to him ) and asked him to disconnect the meter and bring it in the house and the mechanic promptly went out and brought the meter and cut 32 the seal of DVB. Investigating officer has not arrested that A. K. Sharma. Complainant in his statement before the court stated that accused Govind and accused Mukhtiar came to his house 11.10.98. He did not mentioned anything about the third person who visited his house on 11.10.98 along with accused Mukhtiar Singh. The transcription is running into 13 pages. As per the transcription the entire conversation had taken place between the complainant and accused Mukhtiar Singh. At three places the 2nd person apart from complainant and Mukhtiar Singh in the transcription is mentioned as accused second. On the 8th page complainant asked the name of the person who was with accused Mukhtiar Singh and that person gave his name as Kanwaljit. The question and answer is as under :-
Q What is your good name ? A2 My name is Kanwaljit. 34 The second thing appearing in the transcription against
him is that if the entire amount is not available the amount would be taken in the next month. This part of the statement was not clearly audible in the audio cassette.
35 Even as per the transcription the man who was present with Mukhtiar Singh gave his name as Kanwaljit. May be like Mukhtiar Singh he had given his false name. Generally the false names are given in such matter because in case it is found on inspection by DVB that meter has been tempered then if a case is 33 registered and consumer is interrogated then he would disclose the name of the person from whom he got the meter tempered and just to conceal the identity such like persons disclose their wrong name. But the fact remain that name of Kanwaljit was disclosed by the second person to the complainant then why the complainant has not mentioned his name in the complaint Ex. PW3/A . Rather he stated that he was not knowing the name of that person. The identity of accused Govind is not established beyond doubt.
36 Assuming for the sake of argument that Govind was present with Mukhtiar Singh on 11.10.98 and he assisted Mukhtiar Singh in tempering with the meter then this act of Govind does not amount to any offence under Prevention of Corruption Act because complainant no where stated that Govind ever demanded the bribe amount. The transcript shows that entire conversation has taken place with accused Mukhtiar. There is nothing on the record to suggest that he entered into criminal conspiracy to extract illegal gratification. Govind is not a public servant. If in fact Govind had entered into criminal conspiracy then he would have definitely come with Mukhtiar Singh on 13.10.98 to collect the bribe amount. As per the complainant it was settled that the bribe amount would be paid on 13.10.98 and on 13.10.98 Govind has not turned up. This by itself under the circumstances shows that he was not a conspirator to extract illegal gratification.
3437 Accused Manohar Chand Sharma.
It is submitted by ld. counsel for accused Manohar Chand Sharma that admittedly he was not present on 11.10.98. He has never demanded the bribe amount. Even on 13.10.98 the amount was demanded by accused Mukhtiar Singh and accused Mukhtiar Singh after accepting the amount the same was handed over by him to Manohar Chand Sharma. It is submitted by him that Manohar Chand Sharma is a private person . He is not a public servant. He was not knowing that amount accepted by Mukhtiar Singh was bribe amount. I find force in the submission of ld defence counsel .Accused Manohar Chand Sharma was not present in the house of complainant on 11.10.98. He has not demanded the bribe amount. Even on 13.10.98 he has not uttered a single word. There was no reason for him to know that the amount accepted by Mukhtiar Singh is the bribe amount. He simply kept the amount given to him by Mukhtiar Singh. Merely because he was found in possession of GC notes which were handed over to him does not mean that he accepted the bribe amount. No presumption u/s 20 of Prevention of Corruption Act, 1988 can be drawn against him as he was not the public servant and there is nothing to show that he acted in criminal conspiracy with accused Mukhtiar Singh. Prosecution has failed to prove that he entered into any criminal conspiracy with accused Mukhtiar Singh to extract illegal gratification. I am conscious of the fact that it can safely be argued that if the statement of the complainant is not being believed qua 35 accused Govind then the same can equally be not believed against accused Mukhtiar Singh. It is settled law that principle of " Falsus in uno falsus in omnimus" is not applicable in India. Reference is placed on Sohrab V/s State of M. P. AIR 1972 SC 2020 More over the presence of accused Mukhtiar Singh on 11.10.98 is proved beyond doubt and is also proved from the fact that entry of meter reading of 3200 was made in the register which was with him and also on 13.10.98 he demanded and accepted the bribe amount. Accused Mukhtiar Singh has admitted about the demand and acceptance of money. His plea that the money was meant for wiring done by Govind was not established even by preponderance of probabilities.
In view of the above discussion, I am of the view that prosecution is able to prove its case against accused Mukhtiar Singh beyond all reasonable doubt. Accused Mukhtiar Singh is accordingly held guilty and convicted for committing offences U/s 7 and 13 (1 ) (d) punishable U/s 13 (2 ) of Prevention of Corruption Act, 1988 . However prosecution has failed to prove its case against accused Govind & accused Manohar Chand Sharma . Accused Govind & accused Manohar Chand Sharma are acquitted. Their bail bonds cancelled. Sureties discharged. Let accused Mukhtiar Singh be heard on the point of sentence.
Announced in the open court on this 22nd day of July , 2009.
( A. S. YADAV ) SPECIAL JUDGE DELHI 36 IN THE COURT OF SH. A. S. YADAV SPECIAL JUDGE : DELHI C C No. 109/08 State V/s Mukhtiar Singh Thakur, S/o Labh Singh Thakur, R/o U-30, Upadhyay Block, Shakarpur, Delhi.
F. I. R No. : 40/98 Under Section : 7/13 of Prevention of Corruption Act, 1988 & Section 120-B IPC.
Police Station : Anti Corruption Branch ORDER ON SENTENCE
I have heard Sh. Alok Saxena Addl. Public Prosecutor for the State and , Advocate for the convict (who is present on bail) on the point of sentence.
2 Ld. counsel for the convict submits that the convict is aged 53 years and has wife two sons and father who is 88 years to support and he is suffering from diabities and high blood pressure and is under treatment for the last three years and he is the sole bread earner of his family. It is prayed that a lenient view be taken on the point of sentence.
3 Ld. Addl. Public Prosecutor states that the convict does 37 not deserve any leniency as he tempered with the electricity meter just to cause gain to himself and huge loss to the Government exchequer. It is submitted by him that deterrent punishment should be imposed.
4 After having heard both the sides and upon perusal of the record, I find that it is difficult to accept the prayer of the convict that a lenient view be taken in this case. Corruption is rampant in this country, that it requires all possible measures to remove the same from the polity. Today, it seems that honesty is a very rare need. Very few person muster the courage to report the matter regarding demand of bribe. Otherwise, under compulsion they are forced to pay the same. With the result, bribe takers virtually have no fear. No leniency is to be shown to such offenders.
5 Keeping in view the facts and circumstances of this case, I sentence convict Mukhtiar Singh s/o Sh. Labh Singh to undergo RI for a period of three years and a fine of Rs. 20,000/- (Rs. twenty thousand) u/s 7 of the Prevention of Corruption Act, 1988 and in default of payment of fine, convict shall undergo SI for a period of six months. Convict is further sentenced to undergo RI for a period of three years and a fine of Rs. 20 ,000/- (Rs. twenty thousand) u/s 13 (2) of the Prevention of Corruption Act, 1988 and in default of payment of fine, convict shall further undergo SI for a period of six months. Both the sentences shall run concurrently and the convict 38 shall be entitled to benefit under section 428 Cr. P.C. 6 A duly attested copy of the judgment and this order be supplied to the convict free of costs and thereafter file be consigned to the record room.
Announced in the open court on this 24th day of July 2009 ( A. S. YADAV ) SPECIAL JUDGE DELHI