Delhi District Court
Cbi vs Subhash Gupta on 18 December, 2007
1 IN THE COURT OF SH. G P MITTAL SPECIAL JUDGE DELHI CBI VS Subhash Gupta R C NO. 50 (A)/99/CBI/ACB/N.Delhi C C No. 66/04 JUDGMENT
Accused Subhash Gupta has been sent to this court to face trial for the offence punishable U/s 8 of the Prevention of Corruption Act on the allegations that he had accepted illegal gratification of Rs. 600/- from one Sunil Lal as a motive or reward for inducing by corrupt or illegal means, a public servant of the Regional Passport Office to get the passport of Chander Mohan Gandhi, Nisha Gandhi and Anjali Gandhi, issued at an early date. 2 On 18.10.99 a reliable information was received by Inspector Vivek Dhir of CBI that a large number of touts were actively functioning in an around Regional Passport Office, Bhikaji Cama Place, New Delhi. They were charging illegal gratification in connivance with the staff working at various counters in the office of RPO for getting the work relating to the passport done at an early date and without any objection being raised by the official of the Passport Office. Inspector Vivek Dhir constituted a trap team 2 consisting of CBI Officers S/Sh. Pawan Kumar, C K Sharma, A K Malik, Yashvir Singh, Om Parkash, A K Singh and Surender Malik. Three independent witnesses S/Sh. Vikas Chand, Ram Chander and Bahori Singh, who were working with Northern Railways, were also joined. The CBI team reached Regional Passport Office and a close watch was kept over the activities of the suspected touts for about half an hour. The trap team noticed that some suspected touts were telling the applicants that they are required to pay Rs. 50/ per application to the passport officials. The members of the raiding party including independent witnesses were instructed to identify the touts and also to keep a watch over applicants who might be seen by them being fleeced by the touts.
3 A small team consisting of Inspectors Yashvir Singh, A K Singh, Om Parkash, Surender Malik and Vivek Dhir carried out a surprise check at the counters of the RPO office. A sum of Rs. 50/-, Rs 100/- and Rs. 300/- were found in excess at counter No.16, 18 and 19 respectively. Two applicants Sh. R C Rajpal (and his son Sanjay Rajpal) and Sh. Ved Parkash were found to have paid illegal gratification to Tarun Garg and Krishan 3 Kumar respectively. After observing the activities of the touts, five persons including accused Subhash Gupta were apprehended. A sum of Rs.500/- was recovered from one Tarun Garg and Rs. 450/- from Sh. Krishan Kumar which was allegedly paid by Sh. R C Rajpal and Sh. Ved Parkash respectively. Some incriminating documents were also recovered from accused Subhash Gupta and other touts which were seized vide a seizure memo prepared at the spot. During the course of investigation it was found that Subhash Gupta had neither been permitted nor authorised to do the passport work. It was also revealed that accused Subhash Gupta had obtained illegal gratification from Sh. Sunil Kumar, Chander Mohan Gandhi, Smt. Nisha Gandhi, Parvender Malhotra and Smt. Alka Khanna in addition to the prescribed fees and for paying illegal gratification to the officials of the Regional Passport Office for getting the passport issued at an early date. Thus, a charge sheet for the offence punishable U/s 8 of the Act was filed against the accused.
4 A charge for the offence punishable U/s 8 of the PC was framed against the accused vide order dt. 15.3.03. The accused pleaded not guilty to 4 the charge whereupon the prosecution was required to produce its evidence. 5 In order to establish its case the prosecution has examined as many as 12 witnesses.
6 PW 1 Inspector Vivek Dhir was the leader of the raiding party which had watched the conduct of the accused and four other persons who were allegedly arrested at the spot. With regard to accused Subhash Gupta, the witness corroborated the case of the prosecution. He identified the Surprise Check Memo as Ex PW1/A. During cross examination the witness stated that he did not know if some persons had helped the applicants by filling the forms themselves on behalf of the applicants. He showed his ignorance if any action was taken against the counter clerks who were found in possession of the excess cash.
7 PW2 Sh. Vikas Chand is one of the independent witnesses who was the member of the raiding party. He deposed that CBI officers had kept a watch outside the passport office. They caught hold of some persons who were later arrested. He proved the surprise check memo as Ex PW1/A and the personal search memo as Ex PW3/A. The witness was allowed to be 5 cross examined by the Ld. Sr. PP. The witness deposed during the cross examination by the Public Prosecutor that he had not heard or seen the touts collecting money or passports from several persons and telling those persons that if the application is not filed through them the same shall be rejected. Nothing has come in the examination or cross examination of this witness except that accused Subhash Gupta was arrested in presence of this witness. To the same effect is the testimony of PW3 Bahori Singh. During cross examination by the Ld. Public Prosecutor the witness admitted that suspected touts were over heard telling the applicants that they were required to pay Rs. 50/- to the passport officials. PW4 Sh. Ram Chander is the third independent witness. He stated that two teams had been formed by the CBI Officer. He was part of the team which remained outside the passport office. There were three inspectors of the CBI in his team. He deposed that some persons were roaming outside the passport office and were taking application forms for issuance of passport and Rs. 50/- per person etc. for getting the passport prepared urgently.
8 PW5 Sh. S N Nagar was working as Superintendent in Regional 6 Passport Office, R K Puram, New Delhi at the relevant time. He gave the price of the passport application form to be Rs. 10/- and the fee for issuance of passport for 10 years as Rs. 300/- and fee for issuance for passport for 20 years as Rs. 600/-. He stated that the accused was not an authorised agent of the Regional Passport Office, New Delhi.
9 PW6 Sunil Lal was working in Ind Travels 7E, Vandana Building Tolstoy Marg, New Delhi. He deposed that the travel agency was dealing in ticketing for the corporates for air travel. The Ind Travels was also providing the services for issuance/renewal of passport and issuance of visa. They used to get some form for issuance/renewal of passport filled from the applicants and would hand over the same to accused Subhash Gupta. Last time he had handed over 5/6 forms Ex PW6/A to Ex PW6/E in October,1999. But the passports were not issued on the basis of the said forms and he came to know that accused Subhash Gupta had been arrested by the CBI. Subhash Gupta used to be paid the actual fee to be deposited in passport office and in addition a sum of Rs. 150 to Rs. 200/- per application as his service charges. This witness was allowed to be cross examined by the Ld. Sr. PP. The 7 witness deposed during the cross examination by the Public Prosecutor that he could not recollect if accused Subhash Gupta had told him that he had got his contacts in the office of Regional Passport Office and he would pay some amount of bribe to the officials of the passport office to get the passport issued at an early date. He denied the suggestion he had been won over by the accused and has therefore, had not stated that out of Rs. 200/- some amount was to be paid by accused Subhash Guta as bribe to the officials of passport office to get the passport at an early date.
10 PW7 Nisha Gandhi deposed that in October, 1999 her husband had deposited three passport forms i e for her, her daughter Anjali and her husband himself with M/s Ind Travel Agencies. The agency people had charged the service charges of Rs. 200/- each for the three passports in addition to the passport fees. The agency people informed them that there was some change in the application form and therefore, they were required to submit new forms. They submitted the new forms with Ind Travel agency. The passports were received by them by registered post and lateron they came to know that the initial forms submitted by them had been intercepted 8 by the CBI. PW8 Rabvinder Malhotra, PW9 Alka Khanna and PW10 Chander Mohan Gandhi also deposed on the same lines as deposed by PW7. PW10 Chander Mohand Gandhi was allowed to be cross examined by Ld. Sr. PP. The witness admitted during the cross examination by the Public Prosecutor that the person to whom the passport application forms alongwith the fee for issuance of passport and Rs. 600/- were paid was Sunil Lal. 11 PW11 P L Meena, Addl. SP of CBI has partly investigated the case. He deposed that he had correctly recorded the statement of witnesses Vikas Khana Ex PW11/Band Sh. Satish Thapriyal Ex PW11/C. He proved the FIR to be signed by the SP CBI, Ex PW11/A. 12 PW12 SI M M Ansari is the IO of the case. He deposed that he had correctly recorded the statement of PW2 Vikas Chand, PW6 Sunil Lal, PW10 Chander Mohan Gandhi and PW3 Bahori Singh. He proved the photo copy of FIR to be signed by the SP CBI, Ex PW11/A. During cross examination he admitted that he was not the member of the raiding party and the proceedings of the raid, apprehension of the suspects and preparation of Memos had not taken place in his presence.
913 On close of evidence of the prosecution the accused was examined U/s 313 Cr PC. The accused denied that Rs. 50/- were being demanded extra by the touts outside the Regional passport office. He admitted that the touts were not authorised to collect the forms or to deposit the same in the Regional Passport Office. The accused took up the plea that he was in the business of hiring the chartered bus on contract basis from Meerut to Delhi. 25-30 regular passengers were to be ferried by him from Meerut to Delhi, R K Puram and back to Meerut in the evening. During the day he used to sit in one Travel Agency of Sunil Lal. On 18.10.99 on asking of Sunil Lal, he accompanied Sunil Lal to Passport Office, R K Puram for his official work. When he reached the passport office with Sunil Lal he remained outside the passport office at the gate and Sunil Lal went inside the passport office to deposit the passport forms and directed him to remain outside. All of a sudden a raid of CBI was conducted and they falsely apprehended him. He protested about his false apprehension but they did not pay any heed to his protest and falsely implicated in this case. He stated that his signatures were obtained by the CBI officer on some blank papers and 10 was falsely implicated in the case.
14 I have heard Sh. Akhilesh, Ld. Sr PP for CBI and Sh. Mukul Sharma, Advocate, Ld. Counsel for the accused and have perused the record. 15 In order to establish its case, the prosecution is required to prove that the accused had accepted, obtained or had agreed to accept or had attempted to obtain any gratification either for himself or for any other person as a motive or reward for inducing any public servant to do or forbear to do any official act etc. 16 In addition to PW1 Inspector Vivek Dhir, prosecution has examined three public witnesses who were present at the time of the raid ie PW2 Sh. Vikas Chand, PW3 Sh. Bahori Singh and PW4 Sh. Ram Chander. Prosecution has further examined PW6 Sh. Sunil Lal, PW7 Smt. Nisha Gandhi, PW8 Sh.Ravinder Malhotra, PW9 Smt. Alaka Khanna and PW10 Sh. Chander Mohan Gandhi. These witnesses however, did not support the case of prosecution that any money was paid to accused Subhash Gupta either directly or through PW6 Suniil Lal for being paid as bribe to the officials of the Regional Passport Office. PW 6 Sh. Sunil Lal simply stated 11 that their travel agency send Rs. 150 to Rs. 200/- as service charges to accused Subhash Gupta for the work of deposit of the passport application forms. The witness was allowed to be cross examined by the Ld. Public Prosecutor. The witness denied the suggestion that the accused had made any representation that out of Rs.200/- any amount was to be paid by accused Subhash Gupta as bribe to the officials of the passport office. Similarly, PW7 Smt. Nisha Gandhi has stated that she has paid Rs. 200/- each for three passport application forms in addition to the passport fee to M/s Ind Travel Agency. She did not state a word that any representation was made to her by any person of the said Travel Agency that any brine was to be paid to the officials of the passport office out of the said sum of Rs. 200/-. To the same effect is the testimony of PW8Sh. Ravinder Malhotra, PW9 Smt. Alka Khanna and PW10 Sh. Chander Mohan Gandhi.
17 Thus, the only evidence that has come against the accused is that some passport application forms had been handed over by PW6 Sh. Sunil Lal to accused Subhash Gupta and an amount of Rs. 150/- to Rs. 200/- was paid to accused Subhash Gupta as service charges in addition to the fee fixed by 12 the passport department. PW6 Sh. Sunil Lal was quite categorical that the amount was paid by him to accused Subhash Gupta only as his service charges.
18 It has been urged by the Ld. Public Prosecutor that PW5 Sh. S N Nagar has stated that the accused was not the authorised agent of the passport office and therefore an inference can be drawn that out of the amount of Rs. 200/- which was paid to the accused by PW6 Sunil Lal for issuance of one passport was meant for payment of illegal gratification to the official of the passport office. I am, however, unable to agree with this contention of the Ld. Public Prosecutor. Either on facts or on law no presumption can be drawn that if any amount has been paid by any person to Subhash Gupta as his service charges the same was paid as bribe to the official of the passport office. The contention raised on behalf of the CBI that the accused was not the authorised agent to deposit the passport application is also without substance because Rule 5 of the Passport Rules 1980 enables the passport office to authorise any person to collect any application on its behalf. In this case, the accused had not collected the 13 application on behalf of the passport office. Thus, it cannot be said that accused Subhash Gupta had violated Rule 5 of the Passport Rules, 1980. 19 The prosecution has produced some circumstantial evidence that some persons found present outside the Regional Passport office were heard saying that Rs. 50/- was to be paid as illegal gratification to the staff of the Regional Passport Office and at the time of apprehension of the accused some documents as mentioned in the recovery memo Ex PW3/A were recovered from accused Subhash Gupta at the time of his apprehension. Similarly, PW4 Sh. Ram Chander also deposed about the recovery of the documents Ex PW4/A, Ex P4/A1, Ex PW4/A2, Ex PW4/A3, Ex PW4/A4 and Ex PW4/A5. PW6 Sh. Sunil Lal also proved that the passport application forms Ex P6/A to Ex PW6/E were handed over by him to accused Subhash Gupta. These circumstances however, cannot lead the court to draw an inference that accused Subhash Gupta had received any illegal gratification as a motive or reward for inducing any public servant by corrupt or illegal means. The law with regard to circumstantial evidence is very well settled. Where a case rests only on circumstantial evidence, the inference of guilt can 14 be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused and should point to only one hypothesis I e the guilt of the accused. In the instant case, the above circumstances cannot lead the court to believe that the accused had accepted any illegal gratification for himself or for any other person as a motive or reward for inducing by corrupt or illegal means any public servant to do for to forbear to do any official act. The accused is acquitted giving him benefit of doubt.
File be consigned to record room.
Announced in Open Court (G P MITTAL)
Today on 18th December, 2007 SPECIAL JUDGE: DELHI
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