Delhi District Court
State vs Virender Singh Chauhan on 31 October, 2011
IN THE COURT OF SH. RAKESH SIDDHARTHA,
SPECIAL JUDGE (PCACT)06, (CENTRAL) TIS HAZARI, DELHI
Case ID No. 02401R0486382007
CC No. 155/09
STATE V/s VIRENDER SINGH CHAUHAN
S/o Sh. Dilawar Singh,
R/o H. No. 9B, PocketB,
Mayur Vihar, PhaseII, Delhi.
FIR No. 75/06
PS AC Branch
U/S 7, 13 (1) (d) & 13 (2) of POC Act, 1988.
Date of Institution : 10.05.2007
Judgment reserved on : 21.10.2011
Judgment delivered on : 31.10.2011
JUDGMENT
1. As per charge, on 28.09.2006, in MCD office, Geeta Colony, Shahdara, Delhi accused Virender Singh Chauhan while working as Junior Engineer at Maintenance Store, MCD, being a public servant had demanded and accepted bribe of Rs. 15000/ other than legal remuneration from the complainant Lalit Sharma in consideration for passing the bill of the complainant for the work of cement, concrete and drainage in Geeta Colony State V/s Virender Singh Chauhan Page No. 1/29 and thereby the accused committed an offence punishable under Section 7 of the Prevention of Corruption Act, 1988.
2. Secondly, on the abovesaid date and place, accused Virender Singh Chauhan being employed as above public servant obtained bribe of Rs. 15000/ from the said complainant as a pecuniary advantage for himself by corrupt or illegal means or otherwise by abusing his position as such public servant and thereby he committed an offence of criminal misconduct as specified under Section 13(1) (d) and punishable under Section 13(2) of the Prevention of corruption Act, 1988.
3. The abovesaid charges were made on the basis of complaint Ex.PW4/A lodged by the complainant Lalit Sharma on 28.09.2006, against the accused Virender Singh Chauhan wherein the complainant stated that one Virender Singh Chauhan of MCD was demanding bribe of Rs. 1 lac from him for passing the bill of the complainant and had finally agreed to accept Rs. 15000/ as part payment. The aforesaid complaint was lodged in the presence of one panch witness K.C. Thomas.
4. The complainant produced 30 GC note of Rs. 500/ each before the Raid Officer who recorded the numbers of the same in preraid report, after getting them checked through panch witness. Phenolphthalein powder was applied on the GC notes and demonstration was given. Thereafter, the characteristics of phenolphthalein powder and its reaction with sodium State V/s Virender Singh Chauhan Page No. 2/29 carbonate were explained to the complainant and panch witness.
5. Instructions were given to the complainant to keep the panch witness in close proximity and to talk and to transact with accused in such a manner so that the panch witness would be able to overhear and see the transaction. The complainant was further instructed to give the bribe money to the accused only on his specific demand.
6. The panch witness was also similarly instructed to remain close to the complainant and to overhear the conversation between complainant and the accused and also to observe the incident and after the demand and acceptance of money by the accused, he should give a signal to the raiding party by hurling his right hand over his head twice.
7. Thereafter, in the presence of panch witness, tainted GC notes were handed over to the complainant who kept the same in the left pocket of his shirt. Thereafter, hands of panch witness were got washed with the soap and clean water while the solution was thrown away. The RO recorded pre raid proceedings.
8. At about 3:40 PM, complainant alongwith panch witness, Raid Officer Insp. Santosh Kumar, IO Insp. J.P. Meena and other members of raiding party left AC Branch in a Government vehicle and reached Geeta State V/s Virender Singh Chauhan Page No. 3/29 Colony at about 4:05 PM. The Government vehicle was parked at some distance away from MCD office.
9. The complainant and panch witness were again briefed about the instructions given to them in the preraid proceedings and they were sent inside the office at about 4:05 PM while members of the raiding team followed them by maintaining reasonable distance. IO Insp. J.P. Meena and driver were left in the vehicle.
10. At about 4:10 PM, complainant and panch witness came to the RO and informed him that at that time, accused V. S. Chauhan was available in the maintenance office. Thereafter, the raiding team alongwith complainant and panch witness went to maintenance office, Geeta Colony and the government vehicle was parked at some distance from it. Insp. J.P. Meena remained in the vehicle alongwith driver. Complainant and panch witness again reminded about the instructions and they were sent inside the maintenance office at about 4:15 PM while the members of raiding team followed them by keeping reasonable distance and took their suitable positions near the maintenance office.
11. At about 4:30 PM, panch witness came out from the office and gave predetermined signal, at which, the raiding team reached inside the office where accused V. S. Chauhan was found present alongwith State V/s Virender Singh Chauhan Page No. 4/29 complainant and panch witness. On asking, panch witness told the RO that the accused had demanded Rs. 15000/ as bribe from the complainant and had accepted the same in his right hand and had kept it in his drawer on the register.
12. The Raid Officer disclosed his identity as an AC Branch official to the accused and challenged him. RO also asked the accused that he was required to be searched and if he wanted, before that he could take the search of the members of the raiding party but the accused declined.
13. On the direction of RO, panch witness recovered the bribe money of Rs. 15,000/ kept on the register lying in the drawer of the accused. The numbers of recovered GC notes were compared with the serial numbers recorded in pre raid report which tallied. Thereafter, the recovered GC notes were taken in possession vide seizure memo.
14. Right hand wash of accused V. S. Chauhan was taken in the colorless solution of sodium carbonate which turned pink. The same was transferred to two clean glass bottles and sealed with the seal of SKS. Thereafter, wash of upper cover of the register was taken separately with the help of cotton which also gave positive result. The residue was transferred to two clean glass bottles and sealed with the seal of SKS. State V/s Virender Singh Chauhan Page No. 5/29
15. Sample seal, sealed bottles containing hand wash and parcel containing the pant were taken in possession vide seizure memo. Accused V. S. Chauhan was arrested. Thereafter Raid Officer prepared post raid report.
16. IO Insp. J. P. Meena was called to the spot and exhibits/case property as well as accused, copy of raid report and related documents were handed over to him for further investigation.
17. The case was registered and chargesheet filed on which, charges were framed.
18. In evidence, the prosecution had examined twelve witnesses to substantiate the charge. Statement under Section 313 Cr.P.C of accused was recorded wherein accused pleaded not guilty and claimed trial.
19. I have heard the arguments on behalf of prosecution addressed by the Ld. Addl. PP Sh. Abdul Aleem who has argued that the prosecution has proven the case against the accused beyond reasonable doubt wherein the complainant has testified to the effect that accused had demanded and accepted bribe amount of Rs. 15,000/ for passing of the bill of accused subsequent to the complaint lodged in this regard with the AC Branch. A raid was constituted and during the raid the accused had accepted the amount and had kept the same in the drawer of his table from where it was State V/s Virender Singh Chauhan Page No. 6/29 recovered by the panch witness. The coloration of the hand wash signified the handling of the GC notes. The basic ingredients of provisions of POC Act have been complied with and as such the accused be held guilty as there was reason to demand and subsequent recovery of the bribe amount from the accused. It is also stated that once the accused accepts GC notes as illegal gratification it is up to the accused to prove the same was not towards illegal gratification which has not been proven and as such accused be held guilty.
20. Sh. H. K. Sharma, Ld. counsel for accused has argued that the case of the prosecution is on the false premise that the accused had raised a demand for bribe to clear the bill of the complainant. First and foremost there was no bill due as has been admitted by the complainant that his work had not been completed and there was a rectification which was required to be done and as such there was no question of raising a bill. It has also been admitted by the complainant that subsequent to the rectification of the defects as well as the inspection by the committee, his payment was released.
21. The factum of raid has also been challenged where despite the presence of four other persons in the same room none of them had been made witness as well as the fact that the entire proceedings including the hand wash etc. had taken place at AC Branch which as per the law enunciated by the Hon'ble High Court raises a doubt.
State V/s Virender Singh Chauhan Page No. 7/29
22. The panch witness has not supported the case of the prosecution, wherein he has testified to the effect that he had been a witness to the complainant placing the GC notes in the drawer of the accused where there had been no demand and a voluntarily acceptance by the accused. That being a case, the accused is entitled to acquittal as the prosecution has miserably failed to bring home the charge beyond reasonable doubt and prove the case against the accused beyond reasonable doubt.
23. Before we delve into the complicity of the accused in commission of the offence it is imperative to determine whether the prosecution had procured the prerequisite sanction under the provision of POC Act which is sine quo non for prosecution of the accused under POC Act.
24. Sanction U/s 19 of POC Act is not an idle formality, but it is a sacrosanct act as the future and career of a Government official is involved. Hon'ble Supreme Court in Ram Kishan Prajapati Vs. State of U.P., (2000) 10 SCC43 has stressed that the person according sanction should be a competent person and a sanction accorded by the person not competent to grant the same cannot be held to be a valid sanction. This fact has not been challenged by the accused.
25. Any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are State V/s Virender Singh Chauhan Page No. 8/29 rendered void ab initio. What the court has to see is whether or not the Sanctioning Authority, at the time of giving sanction, was competent to accord sanction and whether it had applied its mind. 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.
26. Sanction lifts the bar for prosecution. Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but it is not a shield for the guilty. The validity of the sanction would, therefore, depend upon the material placed before the Sanctioning Authority and the fact that all the relevant facts, material and evidence had been considered by the Sanctioning Authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the Sanctioning Authority had considered the evidence and other material, placed before it. This fact can also be established by the extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the Sanctioning Authority.
27. Since the validity of "sanction" depends on the application of mind by the Sanctioning Authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows State V/s Virender Singh Chauhan Page No. 9/29 that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution.
28. The Hon'ble Delhi High Court in the case of Bhisham Kumar Vs. State 1999 (iii) AD (Delhi) 177, has also applied the test as prescribed in the enunciation of the Hon'ble Supreme Court in the case of Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh 1979 Chandigarh Criminal Cases 113 (SC) and the view taken by the Supreme Court in Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (1997) 7 SCC 622.
29. In consideration of the said fact, PW2 Parimal Rai, Chairman, NDMC had been examined who has testified that in March, 2007, he was posted as Addl. Commissioner ( Engg. & DEMS) MCD when a request had State V/s Virender Singh Chauhan Page No. 10/29 been received from Anti Corruption Branch alongwith the copy of FIR, Raid Report, Site Plan, Seizure memo, Statements recorded U/s 161 Cr.P.C., Report of FSL, Sanction u/s 19 of the POC Act to prosecute accused Virender Singh Chauhan posted as JE, Division14, Shahdara, South Zone, MCD, Delhi. The witness had gone through the documents placed before him carefully and had applied his mind and on examining the facts and circumstances of the case, he was of the view that Virender Singh Chauhan should be prosecuted in this case. Being a competent authority to remove the accused from his service, the witness had accorded sanction u/s 19 of POC Act to prosecute the accused in this case vide order Ex.PW2/A which bears his signatures at point A. The said sanction was sent to AC Branch vide covering letter Ex.PW2/B.
30. PW3 A.K.Verma, Asstt. Law Officer,Vigilance has been examined who has testified that on 21.3.2007 he was posted as Asstt, Law Officer, Vigilance MCD and on that day he had forwarded sanction order Ex.PW2/ passed by Sh. Parmial Rai then Adl. Commissioner MCD to AC Branch vide letter Ex.PW2/B which bears the signatures of the witness. It is also testified that on 28.9.2007, a request was made for sending the bio data Ex.PW3/A of accused Virender Singh Chauhan prepared DDO MCD to Anti Corruption Branch vide letter Ex.PW3/B.
31. No substantial challenge has been made to the said grant of State V/s Virender Singh Chauhan Page No. 11/29 sanction barring the fact that the sanction had been accorded without due application of mind and mechanically. The authenticity of the sanction order has not been challenged and in view of the fact, in Shankerbhai Laljibhai Rot vs. State of Gujarat 2004 (13) SCC 487 it was observed by Hon'ble Supreme Court that: "So far as the question of Sanction is concerned, in the absence of anything to show that any defect or irregularity therein caused failure of justice, that plea is without substance."
32. The case was initiated on complaint lodged by PW3 Lalit Sharma that in the year 2006, while he was working as contractor, he had undertaken a contract from MCD for making drains and for laying the concrete road. He had completed the job in March, 2006 and accordingly had met Virender Singh Chauhan the accused herein in regard to preparation of the bill. The witness had also met XEN Sh. Anil Tyagi in respect of the said bill but despite the said fact, the bill was not prepared. On 27.9.2006, the complainant had gone to the office of accused and had met him with a request to pass the bill when the accused demanded a sum of Rs. 1 lakh for passing the bill. The witness told the accused that he did have such an amount but agreed to pay Rs.15,000/as bribe towards part payment and further the balance amount would be paid after passing of the bill. The accused asked the complainant to come on the following day together with State V/s Virender Singh Chauhan Page No. 12/29 the amount at 4 p.m.
33. Being averse to giving bribe, the witness on 28.9.2006 went to the AC Branch at about 2.30 p.m. and met Inspector Santosh Kumar the raid officer herein and gave his complaint Ex.PW4/A which bears the signatures of the complainant in presence of panch witness Sh. KC Thomas. The witness had also taken Rs.15,000/ in denomination of Rs.500/ each and had handed over the same to the Raid Officer who recorded the serial numbers of GC Notes in his pre raid report Ex.PW2/B thereafter he applied some powder on the GC notes. The complainant was instructed to keep the panch witness close to him and to talk and to transact with the accused in such a manner so that the panch witness would be able to overhear and see the transaction. The complainant was further instructed to give the bribe money to the accused only on his specific demand.
34. The panch witness was instructed to remain close to the complainant and overhear the conversation between complainant and the accused and also to observe the incident and after the demand and acceptance of money by the accused, he should give a signal to the raiding party by moving his right hand over his head.
35. Thereafter Raid officer, in the presence of panch witness, handed over the tainted GC notes to the complainant who kept the same in the upper State V/s Virender Singh Chauhan Page No. 13/29 left pocket of his shirt under the jersey worn by him. Thereafter, hands of panch witness were got washed with the soap and clean water while the solution was thrown away. The RO recorded pre raid proceedings Ex PW 4/B.
36. It is further testified that at 3.40 p.m. the complainant and panch witness alongwith Raid officer Inspctor Santosh and Jai Parkash alongwith raiding team left for AC Branch and reached Geeta Colony at about 4.05 p.m. The vehicle was left at FV. The complainant together with panch witness went to Block 8 MCD Store when the complainant came back and informed the RO that the accused was present in the said Block. The Panch witness and the complainant went to the said office while the raiding party took suitable position. The complainant wished the accused and talked about passing of the bill when the accused enquired whether the complainant had brought the bribe amount to which the complainant replied in affirmative. The accused took the bribe amount in his right hand after the complainant took out the same from his shirt pocket and gave it to accused.
37. The accused thereafter kept the same in the drawer of his table. Accused told the complainant that the bill would be passed. The panch witness went outside the room and when he returned the raiding party was with him. The RO disclosed his identity and challenged the accused that he had accepted the bribe from the accused. Accused became perplexed and State V/s Virender Singh Chauhan Page No. 14/29 begged pardon. The Panch Witness informed the Raid Officer that the accused had demanded and accepted Rs.15,000/ from the complainant and had kept it in drawer. On the instructions of the RO, the treated GC notes were recovered from the drawer of the table and the serial number of the same were tallied with the serial numbers of the GC notes in pre raid report. On being found identical the same were seized vide memo Ex.PW4/C. A register in which the accused had kept GC notes was also taken into possession vide Ex.PW4/D. The right hand wash of accused was also taken. The residue was preserved, sealed and identified. Similarly, wash of the register was also taken and the solution preserved. Accused was arrested vide memo Ex.PW4/G.
38. The case property has been identified after tallying the serial numbers of the GC notes. The same have been identified as Ex.P1 to P30. The sealed bottles of hand wash and the file wash have been identified as Ex.P31 to P34.
39. The witness was cross examined wherein it has been admitted by him that a complaint had been given to Executive Engineer while he has denied that on 21.4.2006 while the accused was discussing some matter with AE(Works), Kumar Mahender at Store Ward No.73, at Geeta Colony, the complainant had entered the premises and had started shouting at the accused. The receipt of the notice Ex.PW4/D1 has not been denied as the State V/s Virender Singh Chauhan Page No. 15/29 same had been replied vide Ex.PW4/D2. The witness has admitted that he was debarred from taking contract between April, 2006 to October, 2006 at the behest of the accused for the reasons stated that the accused had made the complaint against the complainant and certain contracts awarded to the complainant were pending. It is also admitted by the witness that the certain defects were pointed out by the Quality Control Department which were rectified. It is also admitted by the witness that the bills were passed only after the defects had been rectified and a letter regarding the rectification of the sane dated 17.10.2006 had been written by the complainant which is Ex.PW4/D6. It is admitted that the entire payment was received after the raid.
40. The entire sequence narrated by PW4 the complainant smacks of a person who is seeking retribution and for this purpose the possibility of the complainant foisting a false case upon the accused cannot be ruled out. To determine the said veracity of the complaint, it is imperative that corroboration in material particulars be sought.
41. PW5 K.C.Thomas has been examined who has testified that he does not recollect the date but he was on duty as panch witness when Lalit Sharma the complainant had lodged the complaint Ex.PW4/A on a demand made by JE of MCD. The complainant had brought Rs15000/ with him in the denomination of Rs.500/ each. The same was handed over to RO who State V/s Virender Singh Chauhan Page No. 16/29 recorded the and applied phenolphthalein powder. The purpose and consequences of application of phenolphthalein was explained and demonstrated. Preraid report was drawn which is Ex.PW3/B.
42. It is testified that at about 4 p.m. the panch witness and the raiding team left AC Branch in govt. vehicle for MCD Office, Geeta Colony where they reached after about half an hour. Leaving the vehicle at some distance the complainant and the panch witness went into the office of MCD to the room of Virender Singh Chauhan, JE, MCD while other members of the raiding team took their suitable position. 45 persons were sitting inside the room where the accused Virender Singh Chauhan was present. The witness could not hear the conversation between the accused and the complainant but saw the complainant putting GC notes in the drawer of the accused. Thereafter signal was given and raiding party apprehended the accused. The serial numbers of the GC notes were tallied and was taken into possession. It is further testified that thereafter the accused was brought to the Anti Corruption Branch and his right hand wash was taken in AC Branch and colourless solution turned pink and that solution was preserved in bottles. The writing work was also done. The witness was cross examined at length by the prosecution but the witness has denied that there had been a demand of bribe by the accused or that the accused had accepted the GC notes in his hand and had kept the same in his drawer. However, the case property has been identified.
State V/s Virender Singh Chauhan Page No. 17/29
43. As per Ram Chander Vs. State 2009(4) RCR (Crl.) 880 it has been held that the geneses of a trap case lies in the previous demand of bribe by the accused from the complainant which becomes a basis of laying the trap by investigating agency. Then it is for the investigating agency to again prove the demand of bribe at the time when the trap was laid and thereafter the question of acceptance and recovery of bribe money is also required to be proved.
44. The Panch Witness PW5 has himself stated that there was no demand of money by the accused but the complainant PW4 had placed the GC notes in the drawer. In this regard the Hon'ble Supreme Court in Smt. Meena W/O Balwant Hemke Vs. The State of Maharashtra MANU/SC/0279/2000 held that:
"Mere recovery of the currency note of Rs.20/ denomination, and that too lying on the pad on the table, by itself cannot be held to be proper or sufficient proof of the acceptance of the bribe, in the peculiar circumstances of this case which lend also credence to the case of the appellant that it fell on the table in the process of the appellant pushing it away with her hands when attempted to be thrust into her hands by PW1. The results of phenolphthalein test, viewed in the context that the appellant could have also come into contact with the currency note when she pushed it away with her hands cannot by itself be considered to be of any relevance to prove that the appellant really accepted the bribe amount. With such perfunctory nature of materials and the prevaricating type of State V/s Virender Singh Chauhan Page No. 18/29 evidence of PW 1 and PW3, who seem to have strong prejudice against the appellant, it would be not only unsafe but dangerous to rest conviction upon their testimony. PW1, if really was keen on getting the copy of the record urgently, could have made an urgent application to have them delivered within 3 days instead of making an ordinary application and going on such an errand, which makes it even reasonable to assume that the trio of PW1, PW 3 and Jagdish Bokade were attempting to weave a web around the appellant to somehow get her into trouble and victimise her."
45. Culling the evidence that has been led by the prosecution through the witness PW4 and PW5 respectively, the factual matrix do not manifest any coherence in as much as PW4 has testified with motivation to incriminate the accused for demanding a bribe amount while the panch witness who was an independent government official has narrated the incident whereby he has categorically stated that the complainant had placed the GC notes in the drawer on his own volition and there had not been any voluntary effort on the part of the accused in receiving the same in his hand or placing them in the drawer after receipt. Where the money in form of illegal gratification had been placed by the complainant there cannot be a voluntarily acceptance in as much as even the factum of demand becomes suspect as there was no culmination in acceptance or receipt of gratification. In the regard to the fact that the recovery of the tainted GC notes was not from the person of the accused but from the drawer which again is suspect as has been held in M.K. Harshan vs State Of Kerala , AIR 1995 SC 2178: State V/s Virender Singh Chauhan Page No. 19/29
"His evidence suggests that PW1 told him that the accused accepted the money and he himself put the money in the left top drawer of the table. PW11 also deposed that PW1 came out and told them that he has given the currency notes to the accused as bribery and it was kept in the left drawer and thereafter the trap party entered the office. These two witnesses also deposed that the accused was asked to dip his right hand in the liquid in the glass and when he did so it became pink in colour. Therefore, according to their versions, as informed by PW1, the accused himself received the amount and put the same in the drawer and consequently when he dipped his fingers the solution became pink. But the positive case of the prosecution on the other hand as narrated by PW1 is that the accused never touched the currency notes and it was he who put them in the table drawer. It may be noted that PW3, a Constable, was sent along with PW1. He was asked to wait outside and relay the signal. PW11 admitted in the crossexamination that PW3 could see what was happening in the office of the accused, but PW3 does not say anything about having seen anything happening in the office of the accused. He does not even say that when PW1 went inside with the money, he saw the accused in his seat. In the light of these conflicting versions and suspicious features on this crucial aspect, the plea of the accused that the notes were put in the drawer without his knowledge, does not appear to be improbable. In any event, P.W. l's evidence for the above said reasons, does not appear to be wholly reliable. It is in this context the courts have cautioned that as a rule of prudence, some corroboration is necessary. In all this type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not State V/s Virender Singh Chauhan Page No. 20/29 sufficient to establish the offence. Therefore, the other aspect, namely, acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused the money had been put in the drawer as an illegal gratification. Unfortunately, on this aspect in the present case we have no other evidence except that of P.W. 1. Since PW1 's evidence suffers from infirmities, we sought to find some corroboration but in vain. There is no other witness or any other circumstance which supports the evidence of PW1 that this tainted money as a bribe was put in the drawer, as directed by the accused. Unless we are satisfied on this aspect, it is difficult to hold that the accused tacitly accepted the illegal gratification or obtained the same within the meaning of Section 5(1)(d) of the Act, particularly when the version of the accused appears to be probable."
46. The veracity of the complaint Ex.PW4/A can also be determined on the anvil of defence witnesses wherein DW1 Yogesh Sharma has been summoned who had produced the record pertaining to the work orders which awarded to Lalit Associates vide circular No. EEXIV/20062007/D1817 dated 13.6.2006, the business of Lalit Associates was expended. The said orders are Ex.DW1/1 to Ex.DW1/2.
47. DW3 Abdul Majid, Asstt. Engineer (QC) has been examined who has proven on record file numbers SE(QC)Shah(S)/XIV/ALR(1015)/268 pertaining to work order No. 439 dated 16.01.2006 Ex.DW3/A copy of State V/s Virender Singh Chauhan Page No. 21/29 which is Ex.DW3/B and SE(QC)Shah(S)/XIV/ALR(1015)/232 pertaining to work order No. EEXIV/318 dated 09.11.2005 Ex.DW3/C copy of which is Ex.DW3/D and SE(QC)Shah(S)/XIV/ALR(1015)/248 pertaining to work order No. EEXIV/0506/344 dated 01.12.2005 Ex.DW3/E copy of which is Ex.DW3/F. All the three orders are related to complainant Lalit Sharma. The said orders reflect that the work order was not completed in time. Documents so produced in the defence manifest that the rate quoted by the complainant were abnormally low and accordingly the quality of work was required to be tested as recommended by the Committee. The said evidence together with the admission made by the complainant that certain defects were found in his work go to show that the complainant had ill will towards the accused as well as he was motivated to harm the accused.
48. To determine the culpability of the accused, aliunde PW7 Inspector Santosh Kumar Singh was examined who has testified that he was posted in AC branch when Lalit Sharma lodged a complaint in presence of Sh. KC Thomas, Panch Witness in regard to demand of bribe by one Virender Singh Chauhan, JE for passing the bill of the complainant. After the initial narration of the procedure of the raid including the coating of 30 GC notes of Rs.500/ each with phenolphthalein and further giving the demonstration of the purpose and consequences of application of phenolphthalein, the raiding team was constituted which reached the office of MCD at Geeta Colony, ward No. 73.
State V/s Virender Singh Chauhan Page No. 22/29
49. It is further testified by the R.O. that while the raiding team had taken suitable position near the Maintenance Office at about 4.30 p.m., the witness received predetermined signal from Panch Witness where the witness reached and enquired as to what had transpired. The panch witness told the witness that V.S.Chauhan had demanded and accepted Rs.15000/ as bribe money from the complainant in his right hand and had kept the same in his drawer on the register.
50. The RO introduced himself as Inspector from AC Branch and challenged the accused that he had demanded and accepted sum of Rs. 15,000/ as bribe money from the complainant and told the accused that his search was required but prior to the said search the accused could take the search of raiding team including RO. This offer was declined by the accused. The accused had become perplexed. Panch witness was instructed to recover the bribe money. On recovery of the GC notes the numbers were tallied and taken in possession vide seizure memo Ex.PW4/C. The right hand wash of the accused was taken in colourless solution of sodium carbonate which turned pink. The residue was preserved in two clean bottles which were sealed and identified. The register on which the GC notes were found were also washed and the residue preserved, sealed and identified. The same was taken in possession vide memo Ex.PW.. The register was taken into possession vide memo Ex.PW4/B and the post raid proceedings were drawn State V/s Virender Singh Chauhan Page No. 23/29 which is Ex.PW4/F. The witness has further testified that he had prepared ruqqa Ex.PW7/A and sent the same through constable Kapil for registration of the case. In consequence, Inspector J.P.Meena was called to the spot and custody of accused V.S.Chauhan was given to IO together with the case property including recovered GC notes for further investigation. The case property viz. GC notes have been identified as Ex. P1 to P30. The residue of hand wash and register cover wash are Ex. P31 to P34 and the register is Ex.PW5/B.
51. In State of Maharashtra vs. Dyaneshwar Laxman Rao Wankhede, 2009 (4) CC Cases (SC) 31 it has been held that:
"15. Before embarking on the rival contentions raised before us, it is our duty to remind ourselves that we are dealing with a judgment of acquittal and thus, it is absolutely essential to keep in mind the wellsettled principles of law that in the event two view are possible to be taken, this court shall not interfere with a judgment of acquittal. There cannot be any doubt that in the event, having regard to the materials brought on record, the court comes to be conclusion on the basis thereof that only one view is possible, a judgment of acquittal may be interfered with.
"16. Indisputably, the demand of illegal gratification is a since qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion s 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 State V/s Virender Singh Chauhan Page No. 24/29 record in their entirety. For the said purpose, indisputably, the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused visavis the standard of burden of proof on the prosecution would differ. Before, hwoe4rver, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. "20. Even in a case where the burden is on the accused, it is well known, the prosecution must prove the foundational facts.
"21 It is also a well settled principle of law that where it is possible to have both the views, one in favour of the prosecution and the other in favour of the accused, the latter should prevail."
52. It has also been brought on record that on the date of raid the complainant was not entitled to the payment as the work of the complainant had to be assessed and rectification of the defects prior to the passing of the bill. Hence, the allegation that accused had demanded Rs. 15,000/ does not seem plausible. It is also on the record that the complainant had in fact, had a verbal dual with the accused and had used filthy language against the accused. A notice to the effect was served upon the complainant which is Ex.PW4/D1. The complainant has also conceded that he was debarred from taking contract between April, 2006 till October, 2006 and it was in fact, at State V/s Virender Singh Chauhan Page No. 25/29 the behest of the accused.
53. Analogy therefore can be drawn from 1998 Crl. LJ 3155, Kanhaiyyalal Vs. State of Rajasthan, where it has been held that:
" ... From the prosecution witnesses, it is proved that there was no work of Radhey Shyam pending with the accused appellant therefore he could not have given any money as bribery.
Secondly, the case of the prosecution is
contradictory to its story. The accused is
acquitted."
54. A challenge has been made in regard to the procedure of the raid wherein it is stated that subsequent to the apprehension of the accused, he was brought to the Anti Corruption Branch where the right hand wash of accused was taken which turned pink and the solution was transferred to two clean bottles which were sealed and preserved. In this regard the Hon'ble High Court of Delhi in Pyare Lal Vrs. State in Crl.Appeal 141 of 1999 has held:
"This panch witness in fact has caused a dent in the case of the prosecution case instead of advancing it further on the way to success by claiming in evidence that all the writing work after the raid was carried out at the Office of the Anti Corruption Branch."State V/s Virender Singh Chauhan Page No. 26/29
55. Where the panch witness admits that the hand wash etc was taken in the AC branch it becomes all the more suspect as the there is a distinct possibility that the hand wash at the spot would not have given the desired result, the writing of the proceedings also lose their credibility.
56. It is settled law that in order to substantiate its case, the prosecution has to prove beyond reasonable doubt that there was a demand of illegal gratification and in consequence, acceptance of the same by the accused. Unless the same is proven on record beyond reasonable doubt, the ingredients of section 13 of the POC Act are not fulfilled. It is incumbent on the prosecution to prove the same. In State of MP Vs. Dr. S. L. Goswami, 1972, SCC (Crl.), 258:
"In our view, the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is pulpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution. Where the onus shifts to the accused, and the evidence on State V/s Virender Singh Chauhan Page No. 27/29 his behalf probabilises the plea he will be entitled to the benefit of reasonable doubt."
57. As per Sunil Kumar Sharma Vs. State CBI Delhi 2007(2) JCC 1315, the Hon'ble High Court of Delhi has held that :
"it is the duty of the trial court to ensure that the essential pre requisite of corruption case have been complied with. Where the independent witness associated with raid has not supported the prosecution version, nor has the acceptance of bribe been proven beyond reasonable doubt. It cannot be said that the case under prevention of corruption Act has been established."
58. Further, the Hon'ble High Court has held that:
"the essential prerequisites of a corruption case i.e. demand and acceptance have to be proven beyond doubt and where the prosecution has failed to prove the same, the accused is entitled to acquittal.
59. In consequence the evidence falls short of proving on record that a demand of bribe was made by the accused for clearing of the bill or for that matter there was a voluntary and conscious acceptance of money as illegal gratification. The mens rea lacking the prosecution accordingly fails to bring home the charge to prove the same.
State V/s Virender Singh Chauhan Page No. 28/29
60. The Hon'ble Supreme Court in State of Punjab Vs. Sohan Singh, AIR 2009 SC, 1887 has held that:
"The circumstantial evidence in regard to the alleged commission of the offence by the respondent was not sufficient to establish the case of bribery in the light of the ingredients thereof."
61. Hence, the evidence brought forth by the prosecution lacks of quality and credibility to inculpate the accused and accordingly, benefit of doubts is required to be extended to the accused when the prosecution has failed to prove there was any demand of bribe and consequential acceptance or obtainment thereof. The basic ingredients missing the accused is entitled to acquittal. He is accordingly acquitted of his charge. His surety stands discharged.
File be consigned to record Room.
Announced in the open court
today on 31.10.2011 (RAKESH SIDDHARTHA)
SPECIAL JUDGE (PCACT)06
TIS HAZARI, DELHI
State V/s Virender Singh Chauhan Page No. 29/29