Delhi District Court
State vs . Shashi Kant Gaur on 20 May, 2014
IN THE COURT OF SHRI B.R. KEDIA, SPECIAL JUDGE07
(CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
CC.NO. : 44/12
Unique Case ID : 02401R0543752012
STATE VS. SHASHI KANT GAUR
S/o Sh. G.N. Gaur,
R/o Qtr. No.2, TypeIV, Police Colony,
Krishna Nagar, Delhi.
FIR NO. : 61/10
U/S : 7 & 13 (1)(d) of Prevention of
Corruption Act, 1988 & 384 IPC
P.S. : Crime Branch, Delhi
Date of Institution 16.11.2012
Judgment reserved on 15.05.2014
Judgment delivered on 20.05.2014
JUDGMENT
1. The precise case of the prosecution is that on dated 01.05.2010 the complainant Anil Kumar Jaiswal came to office of Asstt. Commissioner of Police, Anti Homicide Section, Crime Branch C.C. No. 44/12 Page No. 1 of 43 Sector 18, Rohini and got lodged his statement Ex.PW15/A before PW15 ACP V.K. Dham. The basic allegation in the said statement of complainant is that in December 2003 while he was going to meet his sister Rekha Bhandari at S307, School Block, Shakarpur, Delhi at around 10 to 12 am, four persons including the accused SI Shashi Kant Gaur forcibly lifted him in a Maruti Van and took him at Special Staff Office Maurice Nagar where the accused Shashi Kant Gaur threatened him to implicate the complainant in smack case, otherwise, to pay Rs.2 lacs. When the complainant retaliate, accused gave beating to him and threatened him with dire consequences and demanded Rs. 50,000/ but even after, giving of said bribe amount of Rs.50,000/ by the complainant to the accused, the accused got the complainant falsely implicated along with two other persons in a car theft case and send him to jail. After about one and a half month, the complainant was released from jail. After about one week, accused again came to the house of the complainant and demanded Rs.20,000/, otherwise, he would implicate him in another case. The accused continuously exerted pressure on the complainant to give money, as a result of which, the complainant had to pay Rs.70,000/ in a span of 34 months to the accused after selling jewelry of his wife. Thereafter, on one day, the accused called the complainant at his house and threatened the C.C. No. 44/12 Page No. 2 of 43 complainant that he knew that the complainant was a Proclaimed Offender and asked him to work for him otherwise, would implicate him in false cases. When the complainant agreed for the same, the accused got introduced the complainant as his relative to Sachin Malhotra who was running Property & Finance business and had opened a new office at Geeta Colony and made him joined in the said office of Sachin Malhotra. The accused called complainant separately and told him to inform, whenever huge amount of money come in the office of Sachin Malhotra so that the same can be robbed through the criminals of Uttar Pradesh. The accused SI S.K. Gaur used to visit said office of Sachin Malhotra regularly and purchased property bearing No. 146 A, Mansarovar Park, Shahadara, in the name of his wife Leela Gaur for Rs.12.5 lacs, another property No.152, Jheel Kurenja, Delhi for Rs.18.5 lacs, in the name of his wife Leela Gaur, another property in the name of his father in law at East Loni Road, DDA Flats which was later on sold. Complainant further alleged that accused was doing business from office of Sachin Malhotra and was having visiting terms with his family to his house and house of said Sachin Malhotra. The complainant further alleged that once accused had asked him to keep a Bag containing certain objectionable item for which the complainant denied and even Sachin Malhotra also denied to keep said Bag and C.C. No. 44/12 Page No. 3 of 43 thereafter, the accused took the complainant to the house of his father in law at Meerut and kept said Bag containing two black idols of Radha Krishan, 3 pistols, 50 cartridges and one packet powder. The complainant further alleged that after some days, the accused got him arrested in a case through his friend SI Pawan Kumar, Incharge PP Seelam Pur. When the complainant was in jail, Sachin Malhotra came to meet him and informed him that he was beaten by a BC of Khureja sent by the accused and complainant also told the detailed facts to said Sachin Malhotra. Thereafter, a departmental Inquiry was initiated against the accused on the complaint of Sachin Malhotra and the accused threatened the complainant for not giving statement against him in the departmental Inquiry. When the accused tried to allure him in the office of ACP Sita Ram Vohra, ACP Operation Cell where he came with ACP Sushil Kumar Bedi, then he called media persons for the sting operation. Thereafter, the accused asked the complainant to give statement in his favour. Thereafter, on the asking of the accused, the Addl. SHO Preet Vihar, gave beating to the complainant and made him History Sheeter.
2. On the basis of the aforesaid statement of the complainant, FIR bearing No. 61/10 was registered at PS: Crime Branch, Delhi on C.C. No. 44/12 Page No. 4 of 43 dated 01.05.2010, copy of which is Ex.PW10/A and Investigation was entrusted to PW15 ACP V.K. Dham. During the course of Investigation, the residence of the accused and his father in law were searched and several documents were seized. During the course of the Investigation, further Investigation was transfered to the Vigilance Branch, Delhi Police. One CD containing the conversation between the accused and complainant was seized by the IO and voice of the accused was got identified on playing the said CD and later on said CD was sent to Truth Labs and Result was obtained. Notice U/S 91 Cr.P.C was issued against the complainant in response to which the complainant filed his reply. The accused declined to give his voice sample, citing various reasons. Statement of several witnesses were recorded. Thereafter, sanction for prosecution against the accused was obtained and after completion of the Investigation, chargesheet was filed.
3. After compliance with the provision U/S 207 of Cr.P.C and after hearing both sides on the point of charge, charge for offence punishable U/S 7 & 13(2) r/w 13 (1) (d) of Prevention of Corruption Act, 1988 and U/S 384 IPC was framed against the accused Shashi Kant Gaur on dated 10.04.2013 to which the accused pleaded not C.C. No. 44/12 Page No. 5 of 43 guilty and claimed trial.
4. Thereafter, in order to bring home the guilt of the accused, the prosecution got examined 23 prosecution witnesses namely Ct. Rambir Singh, a formal witness as PW1, HC Narain Singh, a formal witness as PW2, HC Sushil Kumar, a formal witness as PW3, Sh.Anil Kumar Jaiswal, Complainant who is the most material witness as PW4, HC Vijender Kumar, a formal witness as PW5, ASI Ravi Kumar, as formal witness as PW6, ACP L.C. Yadav from Vigilance Branch, Delhi, who has done part Investigation with the IO, a formal witness as PW7, Sh. Sanjay Sehgal, as PW8, Vimla Jaiswal who is the wife of the complainant and is a material witness as PW9, HC Raj Kumar who is the scriber of the FIR relating to the present case, a formal witness as PW10, SI Sanjay Kumar Singh from Vigilance Branch of Delhi Police, a formal witness as PW11, Inspector Rakesh Kumar Saini, a formal witness as PW12, Ct. Suraj Prakash, a formal witness as PW13, Retd. ACP Sh. Sushil Kumar Bedi , a formal witness as PW14, Retd. ACP V.K. Dham / the Initial IO, as PW15, HC Jag Narain the then MHC(M) PS:Crime Branch, a formal witness as PW16, Rekha Bhandari, a formal witness as PW17, Satish Pant, a formal witness as PW18, Retd. ACP Sita Ram Vohra, a formal witness as PW19, C.C. No. 44/12 Page No. 6 of 43 Sachin Malhotra who is the friend of the complainant as PW20, Retd. ACP Mahender Singh Dabas /Part IO as PW21, ACP Jagbir Malik/Last IO, a formal witness as PW22 and Sh. Deepak Mishra Special CP (Law & Order) Delhi, Sanctioning Authority as against the accused, as PW23.
5. After closure of the PE, statement of accused under Section 313 Cr.P.C. was recorded in which the accused denied about any demand and acceptance of the bribe from the complainant. Accused claimed to be falsely implicated in this case having no concern with the alleged offence. The accused in support of his defence got examined two DWs namely SI Umesh as DW1 and Ch. Ajay Raj, Adv. as DW2 and thereafter DE was closed on behalf of the accused.
6. I have heard Final Arguments as addressed by Sh. Yogesh Kumar Verma, Adv. Ld. Counsel for the accused Shashi Kant Gaur and Sh. Vinod Kumar Sharma, Ld. Addl. PP for the State and perused the relevant Record.
7. It is submitted by Ld. Counsel for the accused Shashi Kant Gaur that the accused was posted as SI of Special Staff Office of Delhi C.C. No. 44/12 Page No. 7 of 43 Police at Maurice Nagar, Delhi and was discharging his official duties efficiently and effectively during the relevant period. It is further added by him that the accused had neither demanded nor accepted any bribe from the complainant Anil Jaiswal who has falsely implicated the accused in the present case due to malafide motive after delay of considerable period. It is further added by him that the falsity of this case is found supported from the fact that the demand and acceptance of bribe, is stated to have taken place during the period December 2003 to June 2004 but this case had been registered after considerable delay in May 2010. It is further added by him that the complainant had filed several Writ Petitions before the Hon'ble High Court but has not mentioned regarding the said payment of bribe as against the accused and same also falsify the case of prosecution. It is also added by him that even in the certified copy of the bail application of the complainant Ex.PW22/D, there is no mention regarding any demand and acceptance of bribe against the accused and same also falsify the case of the prosecution. It is further added by him that the deposition of PW4 Complainant against the accused is otherwise cannot be treated as reliable as the complainant is a known criminal and is involved in about 50 cases. It is further added by him that PW8 Sanjay Sehgal and PW20 Sachin Malhotra are the friends of the complainant and C.C. No. 44/12 Page No. 8 of 43 PW9 Vimla Jaiswal is the wife of the complainant and they have deposed at the instance of the accused and therefore their deposition cannot be treated as reliable. It is further added by him that the case bearing FIR No.851/03 U/S 371 IPC regarding the theft of the car in the PS Lajpat Nagar on dated 31.12.2003 and a case bearing FIR No. 6/2004 U/S 411/420/468/471 IPC relating to recovery of said stolen car was registered at PS: Sarai Rohilla on dt. 01.01.2004 and thereafter the Investigation of said case bearing FIR No. 6/2004 was entrusted to the accused and therefore the allegation of demand and acceptance of bribe against the accused is false and fabricated. It is further added by him that as per DD No. 4 dt. 01.01.2004, this accused has come back to Delhi at 6:05 pm from out of Delhi where he had gone for Investigation as he had departed from Delhi as per DD No.12 dt. 22.12.2003 Ex.PW2/DA and therefore the allegation of demand and acceptance of bribe against the accused from complainant on 01.01.2004 is false and fabricated. It is further added by him that the allegation of payment of bribe of Rs.50,000/ and Rs.70,000/ by the complainant as against the accused also found fabricated as there is no recovery of any bribe amount from the accused in this respect. It is further added by him that the source of said bribe amount of Rs.50,000/ and Rs.70,000/ could not be proved by the prosecution C.C. No. 44/12 Page No. 9 of 43 and the allegation of the complainant and his wife to the effect that Rs.70,000/ was obtained on selling the jewellery of wife of the complainant to Fancy Jewellers, Unao(UP) found falsified which have been admitted even by the IO. It is further added by him that since the original device through which the conversation between the complainant and the accused and Sachin Malhotra was claimed to have been recorded in the office of ACP Sita Ram Vohra through sting operation, was not seized by the IO and as the content of the CD in this respect was not properly proved and there is no admission of any acceptance of bribe as against the accused in the transcription Ex.PW11/A, same also falsify the case of the prosecution. It is further added by him that as PW23 Deepak Mishra has granted the Sanction Order Ex.PW23/A mechanically without proper application of mind and on the direction of the CP and therefore, the said Sanction Order is legally Invalid. Thus, Ld. Counsel for the accused urged for acquittal of the accused Shashi Kant Gaur.
8. To the contrary, it is submitted by Ld. Addl. PP for the State that the prosecution by examining 23 PWs have clearly established its case as against the accused and therefore, the accused deserve to be convicted for the charged offence. It is further added by Ld. Addl. PP C.C. No. 44/12 Page No. 10 of 43 for the State that the case of the prosecution stands fully established against the accused through the deposition of various PW4/Complainant Anil Jaiswal, PW9 Vimla Jaiswal wife of the complainant, PW20 Sachin Malhotra, PW21 ACP M.S. Dabas/Part IO and PW22 ACP Jagbir Malik /Last IO, and there is no reason as to why said PWs would falsely implicate the accused. It is also added by Ld. Addl. PP for the State that Sanctioning Authority has rightly passed the Sanction Order Ex.PW23/A as against the accused after due appreciation of the relevant material and was competent to do so and therefore, there is no infirmity in the said Sanction Order Ex.PW23/A as against the accused. Thus Ld. Addl. PP urged for conviction of the accused for the charged offence.
9. The first and foremost question having significant bearing on the fate of this case is whether prosecution has proved that valid Sanction has been accorded by the Competent Authority as against the the accused as per Section 19 (1) of Prevention of Corruption Act, 1988. During course of argument, it is submitted by Ld. Counsel for the accused Shashi Kant Gaur that PW23 Deepak Mishra has granted the Sanction Order Ex.PW23/A mechanically without proper application of mind and on the direction of the CP and therefore, the C.C. No. 44/12 Page No. 11 of 43 said Sanction Order is legally Invalid. To the contrary, it is submitted by Ld. Addl. PP on behalf of the State that the Sanctioning Authority has rightly passed the Sanction Order Ex.PW23/A as against the accused after due appreciation of the relevant material and was competent to do so and therefore, there is no infirmity in the said Sanction Order Ex.PW23/A as against the accused.
10. That in order to prove sanction concerning the accused Shashi Kant Gaur, the prosecution had examined PW23 Deepak Mishra, Special Commissioner of Police (Law & Order), Delhi who had categorically deposed that on receipt of the documents containing the copies of FIR NO.61/10 PS:Crime Branch, FIR NO. 101/11 PS:
Crime Branch, FIR NO.01/11 PS: AC Branch, FIR NO.06/04 PS: Sarai Rohilla, Memos, statement of the witnesses and various other documents as collected during the Investigation of this case were placed before him on dt. 22.10.2012 and after going through the same and applying his mind and after examining the facts and circumstances of the case, and he being the Competent Authority to remove accused Shashi Kant Gaur from service who was posted as Inspector at PCR, he accorded Sanction for launching prosecution as against accused Shashi Kant Gaur and said Sanction Order is Ex.PW23/A bearing his C.C. No. 44/12 Page No. 12 of 43 signature at point A. In the crossexamination by Ld. Defence Counsel, said PW23 has deposed that he had not granted any personal hearing to the accused before according Sanction. He further denied the suggestion that a draft proforma was sent along with the Sanction File, by the IO. He has also denied the suggestion that he has granted the Sanction mechanically.
11. In the case reported as "2011 V A.D. (Delhi) 1 Kiran Pal Singh Vs. State" while dealing with the similar aspect relating to Sanction, in Para 6 of the Judgment, it was observed by Hon'ble Delhi High Court as under:
"It is settled legal position that draft sanction order can be placed before competent authority along with the material and if the competent authority after perusing the material signs the draft sanction order, it cannot be said to suffer from nonapplication of mind. In Indu Bhushan Chatterjee Vs. State of West Bengal, AIR 1958 SC 148, wherein the sanction order was prepared by the police and put before the sanctioning authority by the personal branch of his Office and that before according the sanction he went through all the relevant papers put C.C. No. 44/12 Page No. 13 of 43 before him, it was held by the Hon'ble Supreme Court to be a valid sanction".
12. In the case reported as "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.
13. In the case reported in "2011 I AD (CRI.) (S.C.) 1, Kootha Perumal Vs. State (through) Inspector of Police, Vigilance & Anti Corruption", it was held in Para 14 by Hon'ble Supreme Court of India as under: "Keeping in view the aforesaid statement of law, it would not be possible to conclude that the sanction order in the present case was not valid. Ex.P2 with the present appeal is the C.C. No. 44/12 Page No. 14 of 43 copy of the sanction order. A perusal of the same would show that the sanctioning authority has adverted to all the necessary facts which have been actually proved by the prosecution in the trial. Upon examination of the material facts, the sanctioning authority has certified that it is the authority competent to remove the appellant from the Office. It is specifically stated that the statements of the witnesses have been duly examined. Sanction order also states that the other materials such as copy of the FIR as well as other official documents such as the different mahazars were carefully examined. Upon examination of the statements of the witnesses as also the material on record, the sanctioning authority has duly recorded its satisfaction that the appellant should be prosecuted for the offences, as noticed above. We, therefore, find no merit in the submission of the learned counsel that the sanctioning order to prosecute the appellant was not legal".
14. Furthermore, in the case reported as 2013 VI AD (SC) 458 "State of Maharashtra through CBI Vs. Mahesh G. Jain" while dealing with similar aspect of Sanction of prosecution as against public C.C. No. 44/12 Page No. 15 of 43 servant, it was observed by Hon'ble Supreme Court of India after considering various earlier Judgments, in Paragraph 13 as under: "13. From the aforesaid authorities, the following principles can be culled out:
a) It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
b) The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution.
c) The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him.
d) Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
C.C. No. 44/12 Page No. 16 of 43
e) The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
f) If the sanctioning authority has perused all the material placed before him and some of them have not been proved that would not vitiate the order of sanction.
g) The order of sanction is a prerequisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity."
15. Furthermore, in the case reported as "2004 (13) SCC 487, Shankar Bhai Lalji Bhai Vs. State of Gujrat", it was observed by Hon'ble Supreme Court of India as under: "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."
C.C. No. 44/12 Page No. 17 of 43
16. Furthermore, so far as giving of the opportunities of hearing to the accused is concerned, the Law is very clear that the Sanctioning Authority is not required to give any opportunity of hearing to the accused before according Sanction and my said view is nourished from the Judgment as rendered by Hon'ble Supreme Court of India, in the case reported as "Superintendent of Police (CBI) Vs. Deepak Chaudhary", 1996 Crl. J. 405 (SC).
17. By taking cue from the aforesaid judgments and applying the same to the facts of the present case, I do not find any force in the submission of Ld. Counsel for the accused to the effect that said Sanction Order Ex.PW23/A concerning the accused is legally Invalid. I am of considered view that the Sanction concerning the accused has been validly granted by the competent Authority on proper appreciation of the material on Record.
18. During the course of the arguments, it is submitted by Ld. Counsel for the accused Shashi Kant Gaur that the accused was posted as SI of Special Staff Office of Delhi Police at Maurice Nagar, Delhi and was discharging his official duties efficiently and effectively during the relevant period. It is further added by him that the accused C.C. No. 44/12 Page No. 18 of 43 had neither demanded nor accepted any bribe from the complainant Anil Jaiswal who has falsely implicated the accused in the present case due to malafide motive after delay of considerable period. It is further added by him that the falsity of this case is found supported from the fact that the demand and acceptance of bribe, is stated to have taken place during the period December 2003 to June 2004 but this case had been registered after considerable delay in May 2010. It is further added by him that the complainant had filed several Writ Petitions before the Hon'ble High Court but has not mentioned regarding the said payment of bribe as against the accused and same also falsify the case of prosecution. It is also added by him that even in the certified copy of the bail application of the complainant Ex.PW22/D, there is no mention regarding any demand and acceptance of bribe against the accused and same also falsify the case of the prosecution. It is further added by him that the deposition of PW4 Complainant against the accused is otherwise cannot be treated as reliable as the complainant is a known criminal and is involved in about 50 cases. It is further added by him that PW8 Sanjay Sehgal and PW20 Sachin Malhotra are the friends of the complainant and PW9 Vimla Jaiswal is the wife of the complainant and they have deposed at the instance of the accused and therefore their deposition cannot be treated as reliable. C.C. No. 44/12 Page No. 19 of 43
19. To the contrary, during the course of arguments, it is submitted by Ld. Addl. PP for the State that the case of the prosecution stands fully established against the accused through the deposition of various PW4/Complainant Anil Jaiswal, PW9 Vimla Jaiswal wife of the complainant, PW20 Sachin Malhotra, PW21 ACP Mahinder Singh Dabas/Part IO and PW22 ACP Jagbir Malik/Last IO, and there is no reason as to why said PWs would falsely implicate the accused.
20. As regards, the First limb of the case of the prosecution that is, the demand of bribe by the accused Shashi Kant Gaur from the complainant, the complainant Anil Jaiswal who has been examined as PW4 has deposed in this respect as under: "The accused along with the above mentioned other 3 persons had lifted me in the said car on 31.12.2003 and after keeping me one day in Special Staff Maurice Nagar and raising demand of Rs.
2 lacs, the accused on 1.1.2004 took me to my house at Kanchan Apartments, Geeta Colony in a car along with his two associates and they stood outside the Kanchan Apartments and the accused accompanied me to my house where my C.C. No. 44/12 Page No. 20 of 43 wife on my request took out Rs.50,000/ and gave the same to me which were handed over by me to the accused .......................................................... ......................................................................... After some time, I came out on bail in the said case and thereafter, the accused again came to my house at Kanchan Apartments, Geeta Colony, Delhi and he demanded Rs.20,000/ from me and threatened if not given, I would be booked in any false case. I was also threatened by the accused that he knew that I was P.O. in a case vide FIR No.70/97, PS Mukherjee Nagar. I requested the accused that I was not having the money as I was a poor person and the accused kept on threatening me to book up in any drug case. Having no way, I sold out the jewellery of my wife and during the period of 34 months, I gave Rs.70,000/ to the accused on his several demands.
Thereafter, also the accused continuously kept on visiting me at my house at Kanchan Apartments, Geeta Colony and kept on demanding more and more money from me, I ultimately touched the feet of C.C. No. 44/12 Page No. 21 of 43 the accused requesting that I was unable to pay more money being a poor person.
This incident occurred in the year 2004."
21. Complainant/PW4 Anil Jaiswal during his deposition has further deposed that after coming out from the jail, he had lodged complaint against the accused Shashi Kant Gaur in the Vigilance Office of Darya Ganj and Inquiry against the accused started. He further deposed that thereafter he was called in May 2010 by ACP V.K. Dham, in his office and he got lodged his complaint Ex.PW15/A which bears his signature at point X on each pages.
22. The deposition of the complainant/PW4 regarding the initial demand of bribe of Rs.2 lacs which was scale down to Rs.50,000/ and further demand of bribe of Rs.20,000/ from the complainant after his release from jail by the accused with the threatening that in case of nonpayment of bribe, the accused would get him implicated in false cases also found corroborated from the deposition of aforesaid complaint dt. 01.05.2010 Ex.PW15/A forming the basis of the FIR relating to the present case.
23. The aforesaid deposition of PW4/Complainant Anil Jaiswal C.C. No. 44/12 Page No. 22 of 43 relating to demand of bribe by the accused from him also found corroborated from the deposition of PW9 Vimla Jaiswal who happens to be the wife of the complainant Anil Jaiswal as said PW9 Vimla Jaiswal has deposed in this respect as under: "In December 2003, police officials of Special Staff Maurice Nagar, lifted my husband Sh. Anil Jaiswal from the area of Shakarpur. I was informed that he was lifted in some case. After 2/3 days of lifting of my husband, accused Shashi Kant Gaur took my husband to my house.
My husband asked me to bring Rs.50,000/ downstairs. I had taken Rs.50,000/ from my house and gave to my husband.
Thereafter, my husband gave the said Rs.
50,000/ to accused Shashi Kant Gaur in my presence. Thereafter, accused along with my husband had gone from my house.
After one and a half month, my husband came from jail. He had sold my jewellery and on my enquiry he told me that he had to give Rs.70,000/ to the accused Shashi Kant Gaur as he was apprehending that the accused would C.C. No. 44/12 Page No. 23 of 43 implicate him in a false case if he would not give the said amount to him."
24. Said PW9 Vimla Jaiswal in the crossexamination by Ld. Defence Counsel has added that her husband was arrested probably on 30/31st December 2003 but she cannot tell the name of the police officials who arrested her husband. She further added that she came to know about the arrest of her husband when her husband was brought to their house by 2 / 3 police officials including the accused Shashi Kant Gaur. She also added that she had not made any complaint about taking of Rs.50,000/ from her.
25. Sanjay Sehgal who has been examined as PW8, during course of his deposition is also found to have deposed against the accused to have falsely implicated him due to nonfulfillment of demand of bribe as he has deposed in this respect as under: "Since 11.10.2004 to 17.10.2004, I was illegally detained by the accused in the office of Special Cell Maurice Nagar, Delhi. Since 11.10.2004 to 17.10.2004, Mr. Ashok Kumar had talked to accused on his mobile phone several times and asked C.C. No. 44/12 Page No. 24 of 43 about me as to why I had not been allowed to go, the accused every time replied that I was been inquired about the loan of different banks and I would be freed after the Inquiry was over. The accused during the said period demanded several times Rs.2.5 lakhs from me and if he was not given the said amount, I would be booked in a false case. On the next day, my wife Mrs. Richa Sehgal came to meet me in the said office and in my presence, the accused demanded Rs.2.5 lakhs from my wife also in lieu of letting me free. The accused took my wife aside and talked to her separately lateron she told me that the accused had talked with her in a bad manner and he wanted to have physical relations with her for not implicating me in any case."
26. PW18 Satish Pant who is the friend of the complainant Anil Jaiswal is also found to have deposed against the accused as under:
"Probably, on 31.12.2003 accused S.K.Gaur present in the court today along with other police officials had lifted me C.C. No. 44/12 Page No. 25 of 43 from my house in a car and had taken to their office at Maurice Nagar. After sometime, they had also brought my friend Anil Jaiswal there. Anil Jaiswal told me that accused was demanding about Rs.70,000/ to pacify the matter and as negotiation was not finalised hence, he had implicated us in a car theft case. Beside Anil Jaiswal, accused had also brought one another person whose name was also came to be known as Anil. I had remained in jail for about one month."
27. During the course of the arguments, no doubt, it is submitted by Ld. Counsel for the accused that the complainant Anil Jaiswal has falsely implicated the accused by casting allegation of demand and acceptance of bribe due to ulterior motive. It is also added by Ld. Counsel that the complainant is a known criminal and is involved in about 50 cases and therefore, his deposition cannot be treated as reliable. I do not find any force in the said submission of Ld. Counsel for the accused.
28. I am of the considered view that the deposition of the complainant cannot be thrown out merely because the complainant was C.C. No. 44/12 Page No. 26 of 43 involved in many cases. No doubt, the deposition of the complainant requires to be scrutinized on its own merits. My said view is found supported from the Judgment reported as 2008 Crl. J 3234 Shivdass Dashrath Jadhav Vs. State of Maharashtra wherein, it was held, "merely because the complainant was involved in many cases, it is no ground to reject his testimony." On examining the material as available in the case Record, it is reflected that the deposition of the complainant regarding demand of bribe as against the accused is found corroborated from deposition of other PWs, and therefore I do not find any reason to throw away the same.
29. During the course of the arguments, it is submitted by Ld. Defence Counsel that the complainant had filed several Writ Petitions before the Hon'ble High Court but has not mentioned regarding the alleged bribe as against the accused. It is further added by Ld. Counsel that even in the certified copy of the bail application of the accused Ex.PW22/D, there is no mention regarding demand and acceptance of bribe as against the accused and same falsify the case of the prosecution. I am of the considered view that the Writ Petitions and the said bail application have been drafted by the concerned counsel, keeping in view, the nature of relief, prayed from the concerned C.C. No. 44/12 Page No. 27 of 43 Hon'ble court and nonmentioning of the bribe aspect in said Writ Petition and bail application cannot be over emphasized and cannot be treated as a shield for the accused.
30. During the course of the arguments, it is submitted by Ld. Counsel that as per DD No.4 dt. 01.01.2004, this accused has come back to Delhi on dt. 01.01.2004 at 6:05 pm from out of Delhi where he had gone for Investigation and he had departed from Delhi as per DD No.12 dt. 22.12.2003 Ex.PW2/DA and therefore the allegation of demand and acceptance of bribe against the accused by the complainant on 01.01.2004 is false and fabricated. I am of the considered view that said contention of Ld. Defence Counsel can be of no help for the accused in view of the fact that even as per the case of the prosecution the demand and acceptance of bribe against the accused is stated to have taken place on 01.01.2004 and subsequently.
31. In view of the aforesaid discussion, I have no hesitation to safely conclude that the prosecution has successfully established its case regarding the initial demand of bribe of Rs.2 lacs which was scale down to Rs.50,000/ by the accused on dated 01.01.2004 and thereby found guilty for the offence punishable U/S 7 of the Prevention of C.C. No. 44/12 Page No. 28 of 43 Corruption Act, 1988 as I am of the considered view that mere demand of bribe or solicitation by public servant also amount to commission of the offence as contemplated U/S 7 of Prevention of Corruption Act, 1988 and my said view is found corroborated from the Judgment as reported in "AIR 1958 M.P. 157 Mubarak Ali Vs. State" where in Para 11, it was observed as under: "The Learned Deputy Government Advocate contends that the report lodged by Mr. Bhalla in this case was only about the attempt to obtain illegal gratification, which is different from an offence under S. 161 IPC and the offence is not completed till the bribe is accepted. But I am afraid his contention is not acceptable to me. On referring to S. 161 IPC, I find that mere demand or solicitation by a public servant amounts to the commission of an offence under S. 161 of the Indian Penal Code. Here according to the report lodged with the police, the Assistant Station Master is alleged to have asked for a bribe of annas 8 per box from the complainant. If this fact is true, the accused has committed an offence under C.C. No. 44/12 Page No. 29 of 43 S. 161 IPC which runs thus:
"Whoever being or expecting to be a public servant, accepts or obtains, or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official function, favour or disfavour to any person, or for rendering or attempting to render any service or dissservice to any person, with the Central or any State Government or Parliament or the Legislature of any State or with any public servant, as such, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
32. Now, with regard to the second part of the case of the prosecution i.e. the acceptance of bribe amount of Rs.50,000/ initially by the accused and subsequently Rs.70,000/ by the accused from the complainant Anil Jaiswal, there is no substantive evidence available on the Record and said facts found admitted even by the IO. Furthermore, C.C. No. 44/12 Page No. 30 of 43 PW4/Complainant as well as PW9 Vimla Jaiswal wife of the complainant are found to have given inconsistent statements regarding the source of said amount of bribe. As regards, the initial payment of bribe of Rs.50,000/ to the accused, the complainant PW4 has stated as under:
"The amount of Rs. 50,000/ was lying in my house for the delivery of my wife after selling the gold jewellery of my wife. I do not remember the name and address of the jeweler to whom I sold the said gold jewellery, I had stated tot he IO about the arrangement of Rs. 50,000/ after selling the jewellery to the jeweler of Unnao, UP. I have seen the reply to the notice U/s 91 Cr.P.C. given to the IO wherein it is mentioned that I had arranged a sum of Rs. 50,000/ after selling the jewellery to M/s Fancy Jewellers , T.B.Hospital, Bada Chauraha, Unnao, UP. The said letter is Ex. PW/D3 bears my signature at point A. It is wrong to suggest that no such jewellery was sold to M/s Fancy Jewllers."
33. But PW9 Vimla Jaiswal who is the wife of the complainant C.C. No. 44/12 Page No. 31 of 43 PW4 Anil Jaiswal, in her crossexamination by Ld. Counsel for the accused could not give any information regarding the source of said bribe amount of Rs.50,000/ though claimed to have handed over said amount to her husband for onward payment to the accused. Said PW9 Vimla Jaiswal in her deposition has stated that the payment of bribe of Rs.70,000/ was arranged by her husband on selling her jewelry as she has deposed in this respect as under:
"After one and a half month, my husband came from jail. He had sold my jewellery and on my enquiry he told me that he had to give Rs.70,000/ to the accused Shashi Kant Gaur as he was apprehending that the accused would implicate him in a false case if he would not give the said amount to him."
34. But PW4/Complainant Anil Jaiswal with regard to said payment of Rs.70,000/ to the accused is found to have given in consistent statement in his examination in chief and in his cross examination. As in the examination in chief, said PW4/Complainant has deposed as under: C.C. No. 44/12 Page No. 32 of 43 "Having no way, I sold out the jewellery of my wife and during the period of 3 / 4 months, I gave Rs.70,000/ to the accused on his several demands."
35. However, said PW4/Complainant in his crossexamination by Ld. Counsel for the accused, has deposed in this respect as under: I also do not remember the denomination of installments of said Rs. 70,000/. I had not made any complaint to the Sr. Officer of the accused at he time of handing over of Rs. 70,000/ . It is wrong to suggest that no amount was paid as I had stated in my examination in chief. In the year 2003 I was having 3540 tolas gold jewellery in my house. I cannot tell how much gold was sold at the time of arranging Rs.
50,000/. I do not know the rate of the gold at that time. I do not recollect how much gold was remained in my house after selling the gold of Rs. 50,000/. I do not recollect whether any jewllery was sold to arrange Rs. 70,000/.
C.C. No. 44/12 Page No. 33 of 43
36. During the course of the arguments, it is submitted by Ld. Counsel for the accused that the source of said bribe amount of Rs.50,000/ and Rs.70,000/ could not be proved by the prosecution and the allegation of the complainant and his wife to the effect that Rs.70,000/ was obtained on selling the jewellery of the wife of the complainant to M/s Fancy Jewellers, Unao (UP) is found falsified which have been admitted even by the IO.
37. PW21 Retd. ACP Mahinder Singh Dabas/Part IO has deposed in this respect as under: "I had inquired the source of Rs.70,000/ from Anil Jaiswal on which he stated that his wife had sold her jewellery to the Fancy Jeweller at Unnao, UP. But Sh.Rajesh Gupta, owner of said Jewellery Shop had declined with regard to sale of any such gold jewellery by Bimla, the wife of Anil Jaiswal or by Anil Jaiswal. It is correct that I did not inquire about the source of Rs.50,000/ from Anil Jaiswal."
38. Similarly, PW22/ACP Jagbir Malik/Last IO in his cross C.C. No. 44/12 Page No. 34 of 43 examination by Ld. Defence Counsel has deposed in this respect as under: "I have seen already Ex.PW4/D3 wherein it is mentioned that the complainant has taken Rs.50,000/ from M/s fancy Jewellers of Unnao, UP and during investigation, that the previous IO recorded the statement of Fancy Jewellers in which he disclosed that he never purchased any jewellery from Anil Jaiswal and his wife Vimla Jaiswal. The statement of the said owner of M/s Fancy Jewellers was not recorded by me but it was recorded by the earlier IO."
39. Furthermore, said PW22 Retd. ACP Mahinder Singh Dabas/Part IO in the crossexamination by Ld. Defence Counsel has clearly admitted that no documents in support of source of said bribe amount of Rs.50,000/ has been collected during Investigation as he has deposed in this respect as under: "It is correct that no source of bribe amount of Rs.50,000/ in documents has emerged during Investigation of this case C.C. No. 44/12 Page No. 35 of 43 except statement of the witnesses."
40. During the course of the arguments, it is submitted by Ld. Counsel for the accused that since the original device through which the conversation between the complainant and the accused and Sachin Malhotra was claimed to have been recorded in the office of ACP Sita Ram Vohra through sting operation, was not seized by the IO and as the content of the CD in this respect was not properly proved and there is no admission of any acceptance of bribe as against the accused in the transcription Ex.PW11/A, the same cannot be looked into.
41. The factum regarding taking place of a meeting of the accused along with the complainant Anil Jaiswal and Sachin Malhotra in the office Sh. Sita Ram Vohra, the then ACP Operation Cell(North East) on the intervention of PW14 Retd. ACP Sushil Kumar Bedi in March 2006 is found corroborated from the deposition of PW14 Retd. ACP Sushil Kumar Bedi, PW19 Retd. ACP Sita Ram Vohra, PW20 Sachin Malhotra and PW4 Anil Jaiswal/Complainant.
42. PW14 Retd. ACP Sushil Kumr Bedi has deposed in this respect as under: C.C. No. 44/12 Page No. 36 of 43 "After sometime, Sachin Malhotra met me and asked me that he was having some problem with SI S.K.Gaur on the money transaction. SI S.K.Gaur also informed me that Sachin Malhotra is making complaint against him. Both asked me to sort out the problem therefore, I asked Sh.Sita Ram Vohra, ACP, Operation Cell, North East to arrange the meeting in his Office and I got the time fixed for the said meeting in his Office. Accordingly, SI S.K.Gaur, Sachin Malhotra and one another person namely Anil besides me had reached in the Office of Sh.Sita Ram Vohra. At that time, Sh.Sita Ram Vohra was also present in his Office. There SI S.K.Gaur, Sachin Malhotra and Anil had talked to each other in connection with money transaction but neither myself nor ACP Sita Ram Vohra did any interference nor taken side of either one. Due to their loud voices we could not understand the conversation taken place between all the three. Later on, one Reporter of Zee News came to me and I told him that SI S.K.Gaur and Sachin Malhotra known to me but I do not know any other thing.
C.C. No. 44/12 Page No. 37 of 43 Later on, IO of this case had shown one CD to me in his Office in which I along with Sh.Sita Ram Vohra and Sachin Malhotra were seen but said CD was not complete."
43. Said PW14 Retd. ACP Sushil Kumar Bedi, in his cross examination by Ld. Defence Counsel has further deposed as under: "Sachin Malhotra was the informer who used to give information to me in respect of crimes. I did not give any importance to their talks held between the accused S.K.Gaur, Sachin Malhotra and Anil Jaiswal. I do not know for what purpose the money transaction took place as I had not given any importance to their talks. I came to know about Anil Jaiswal that he was involved in auto lifting cases after the meeting took place in the Office of Sita Ram Vohra when the Reporter of Zee News had made inquiries from me. It is correct that despite transfer and posting at different units, accused S.K.Gaur used to meet me since 1998."
C.C. No. 44/12 Page No. 38 of 43
44. PW19 Retd. ACP Sita Ram Vohra has deposed in this respect as under:
"I had retired from Delhi Police on 30th June, 2006 as ACP. Prior to my retirement, I was posted as ACP (Operation Cell, North East) and my office was situated at Seelam Pur at that time. Few months prior to my retirement, I received a telephonic call from Sh. Sushil Kumar Bedi, Retd. ACP that he along with his friends were coming to my office as his friends have to sort out certain matter while sitting in my office.
Thereafter, one day Sh. Sushil Kumar Bedi along with SI Shashi Kant Gaur and two other persons came to my office. The name of other persons were told as Sachin Malhotra and Anil Jaiswal. I started talking to Mr. Sushil Kumar Bedi and three persons including SI S.K. Gaur started talking amongst themselves. I arranged tea and snacks for them. I was not aware about the matter in discussion amongst them and thereafter those persons had left my office.
On 7.6.2011, I was called by the IO of C.C. No. 44/12 Page No. 39 of 43 this case, Sh. Mahinder Singh, ACP in his office where he had shown a CD on his computer. In the said CD, myself, accused S.K. Gaur and other above mentioned persons were seen. Accused S.K. Gaur is present in the court today."
45. PW20 Sachin Malhotra in his deposition has stated in this respect as under: "During departmental enquiry of the accused, he had called me and Anil Jaiswal at ACP, Operation Office, Seelampur. We had reached there and accused talked us in the Office of ACP. He has also admitted about taking of Rs. 50,000/ from Anil Jaiswal (objected to by Ld. Defence Counsel). We had made recording of the said meeting/conversation with the help of Zee TV officials. Accused had also threatened me. He also told me that he remained aware about my whereabout."
46. No doubt, PW20 Sachin Malhotra has deposed that he along with complainant Anil Jaiswal had got recorded their conversation C.C. No. 44/12 Page No. 40 of 43 with the accused which took place in the office of ACP Operation Cell, Seelam Pur, through the help of Zee TV officials, and subsequently he has handed over the CD to the officer of Vigilance Branch but from the perusal of the Record, it is clearly reflected that no such officials namely Parvesh Vatsayan and Rajesh Chaudhary from Zee TV could be examined as PWs as they were as stated by the IO, to be not traceable. Furthermore, PW21 Retd. ACP Mahinder Singh Dabas/IO has clearly admitted in his crossexamination that the original CD in this respect was not seized from the officials of Zee News as he has deposed in this respect as under: "I inquired from the officials from Zee News and they informed me that the original CD recorded by them has already been destroyed by them as the matter was of the year 2006."
47. Considering the facts that the concerned officials from Zee News who are stated to have recorded the conversation amongst the accused and the complainant and Sachin Malhotra which took place in the office of PW19 Retd. ACP Sita Ram Vohra, were not examined as PWs in the Court nor the original CD was seized by the IO and the C.C. No. 44/12 Page No. 41 of 43 transcription has been prepared from a copy of said CD, I found force in the submission of Ld. Defence Counsel and therefore, I am of the considered view that the contents of the CD's transcription Ex.PW11/A and Ex.PW11/B cannot be taken into consideration.
48. In view of the aforesaid material available on the Record, I have no hesitation to safely conclude that the prosecution has failed to establish the facts relating to "Acceptance of any bribe amount" by the accused Shashi Kant Gaur from the complainant Anil Jaiswal and therefore, the second limb of charge relating to the offence punishable U/S 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988 could not be established as against the accused Shashi Kant Gaur.
49. With regard to the Third limb of charge relating to the offence punishable U/S 384 IPC as against the accused, I am of the considered view that since the prosecution has failed to establish the facts relating to payment of any bribe as against the accused, the offence as punishable U/S 384 IPC also could not be proved as against this accused Shashi Kant Gaur.
50. The net result of the aforesaid discussion is that as the C.C. No. 44/12 Page No. 42 of 43 prosecution could succeed in establishing its case only for offence punishable U/S 7 of Prevention of Corruption Act, 1988 as against accused Shashi Kant Gaur, said accused is held guilty and convicted for offence punishable U/S 7 of Prevention of Corruption Act, 1988. But as the prosecution could not succeed in establishing the offence punishable U/S 13 (2) r/w Section 13(1) (d) of Prevention of Corruption Act, 1988 and for offence punishable U/S 384 IPC as against accused Shashi Kant Gaur, said accused Shashi Kant Gaur stands acquitted of said part of the charged offence.
51. As accused Shashi Kant Gaur stands convicted for offence punishable U/S 7 of Prevention of Corruption Act, 1988, let said accused Shashi Kant Gaur be heard separately on the point of sentence. Announced in the open court on this 20th day of May, 2014 (B.R. Kedia) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC, Delhi C.C. No. 44/12 Page No. 43 of 43