Delhi High Court
R.C. Sharma vs State(Cbi) on 11 February, 2009
Author: Mool Chand Garg
Bench: Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. A. No. 329/1997
% Reserved on : 05.02.2009
Date of decision : 11.02.2009
R.C.SHARMA ... Appellant
Through: Mr. K.B.Andley, Sr. Adv. with Mr. M.L.
Yadav, adv.
Versus
STATE(CBI) ...Respondent
Through: Mr. Ganesh Pandey Adv. for CBI
CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers may be allowed
to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
MOOL CHAND GARG, J:
1. Appellant has filed this appeal under section 374 C.r.P.C. to
assail the judgment dated 29.08.1997 passed by the learned
Special Judge, Delhi Convicting him under Section 7 & 13 of
Prevention of Corruption Act 1988 (hereinafter referred to as the
Act) and sentencing him to undergo R.I. for three and a half
years as well as to pay fine of Rs.2000/- and in default to
undergo three months R.I. on both the counts separately with the
condition that both the sentences will run concurrently.
2. Briefly stating the facts of this case are that PW5 Dr. Shyam
Gupta, who is running a Path Laboratory, in the name & style of
Nirmal X-ray and diagnostic centre at A4/22-23, Shiv Market,
Paschim Vihar, and had given a contract work of renovation
Crl.A.329/1997 Page 1 of 13
including installation of water connection of the above said shop
to the Complainant Ashok Arora in August, 1993 and on
28.10.1993 he allegedly demanded and accepted a sum of
Rs.1,000/- from Sh. Ashok Arora (PW-1) as illegal gratification as
a consideration for providing of water connection in the aforesaid
premises as application along with the required documents was
submitted under the signatures of Dr. Shyam Gupta to Zonal
Engineer(water) West Zone office, Rajouri Garden, New Delhi. No
water connection was given till 26.10.1993. Thus, on 26.10.1993
complainant Ashok Arora met accused R.C. Sharma Junior
Engineer and requested him for doing the needful. Accused
R.C.Sharma demanded a bribe of Rs.1000/- for the aforesaid
work and directed the complainant to pay the bribe amount by
28.10.1993. Ashok Arora, who was not interested to pay the
bribe approached Anti Corruption Branch of Central Bureau of
Investigation and made the written complaint on 27.10.1993
(Ex. PW -1/A) lodged by Ashok Arora (PW1)with the S.P.(ACB),
CBI, the relevant portion of which reads as under :
"Written complaint dated 27.10.93 by Shri Ashok Arora s/o Shri
C.L.Arora r/o 66 A LIG Flat Rohtak Road, New Delhi - 63. It is
alleged that Dr.Shyam Gupta S/o Shri Ram Kumar Gupta is
running Path. Laboratory Nirmal X Ray and diagnostic Centre at
A4/22-23 Shiv Market, Paschim Vihar where I had given a work
of renovation including water connection of the above-said
shop to me in August 1993, I am working as property
dealer/petty contractor. I submitted an application along with
required documents for water connection at the said address,
duly signed by Dr.Shyam Gupta was submitted to GE Water
West Zone Office Rajouri Garden New Delhi but no water
connection was given till 26.10.93. As per the request of Sh.
Shyam Gupta, I met Sh. R.C. Sharma, Junior Engineer, MCD,
Peera Garhi Store, Paschim Vihar and requested for arranging
water connection, Sh. R.C. Sharma demanded a bribe from me
of Rs. 1000/- and directed me to pay the same amount by
28.10.93 on the submission of which a bill will be prepared
along with the file and my water connection will be passed. I did
not want to pay the bribe hence I pray for necessary action to
be taken."
Crl.A.329/1997 Page 2 of 13
3. On the basis of the said complaint, present case was registered
and investigation was entrusted to Inspector Javed Siraj. He
organised a trap party comprising of two independent witnesses
namely Shri Govind Rajan(PW2) and Nawab Khan(PW4) besides
other officials of CBI. During the pre-raid proceedings on
28.10.1993 complainant brought RS.1000/- in the form of GC
note of Rs.500/ and five GC notes of Rs. 100 each for being used
as trap money. The currency notes were treated with the
phenolphthalein powder and the demonstration was shown to
the raiding party. The same GC notes were given to the
complainant who was directed to pass the same to R.C.Sharma
only in the event of the specific demand. Shri Nawab Khan was
given the role of the shadow witness and to hear the
conversation between complainant and the accused and to
watch the proceedings.
4. Thereafter, the trap party reached the MCD office, Peera Garhi
Store, Paschim Vihar on 28.10.93 at 12.10pm. Later on at 12.20
pm accused R.C.Sharma came on his two wheeler scooter and
stopped on the Kachcha road of the Peera Garhi Store, Paschim
Vihar. There he demanded in the presence of the two shadow
witnesses and accordingly, the complainant Ashok Arora handed
over the tainted money to the accused, who accepted money in
his right hand and after counting the money with both hands, he
kept the same in the left pocket of his short and went to his
office on scooter. At the pre- appointed signal of the complainant
the trap party members rushed towards accused and he was
caught by his wrists. Tainted money of Rs. 1000/- was recovered
Crl.A.329/1997 Page 3 of 13
from left front pocket of the shirt of the accused by other
independent witness (PW2). Numbers of the said GC notes were
compared and tallied with the numbers already noted down in
the handing over memo. The necessary formalities of taking right
hand/left hand and left pocket wash of shirt of the accused done
at the spot which was turned pink and were sealed in separate
empty bottles with the seal of the CBI.
5. After completing the investigation a police report under section
173 C.R.P.C was filed before a Special Judge Delhi, who took
cognizance of the case against the appellant and held the trial.
6. The prosecution in order to support its case examined 10
witnesses namely Ashok Arora PW1 (complainant), Govind
Rajan, PW2 , Chief officer, Zonal Office, UCO Bank, Ashok Kumar
PW3, Nawab Khan PW4, Dr, Shyam Gupta PW5, Munshi Ram
PW6, S.C.Vashisht PW7, S.K.Peshin, Dy.S.P PW8, Shri V.S.Bisaria,
Senior scientific officer, CFSL PW9 and Ved Prakash Inspector,
CBI PW10 who conducted the investigation. Thereafter, the
statement of the appellant under section 313 C.r.P.C. was
recorded and statement of defence witness on behalf of the
appellant was recorded
7. It is thereafter that vide impugned judgment dated 29.08.1997,
the Special Judge held that the case of the prosecution with
regard to demand and acceptance of bribe by the appellant with
a view to help the complainant in getting the water connection
by misusing his official position was proved. Thus, the Special
Judge convicted the Appellant under section 7 and 13 of the Act
and sentenced him to undergo R.I for 3 years and Six months
and to pay fine of Rs.2,000/- and in default to undergo 3 months
Crl.A.329/1997 Page 4 of 13
R.I aforesaid on both the counts though the sentence were to run
concurrently. The appellant is presently in jail.
8. The Ld. Counsel for the appellant has assailed the Judgment of
conviction and order of sentence primarily on the following
grounds:
i) That the sanction for the prosecution was invalid inasmuch
as PW-3 Sh. Ashok Kumar, Additional Commissioner, MCD
who accorded the sanction has not applied his mind as the
entire material collected during investigation was not
placed before him for consideration. It is submitted that
DW-2, Sh. B.P. Pandey proved exhibit D.W.-2/A forwarding
letter of the sanctioning authority for the sanction of
prosecution of the accused which shows that only S.P.'s
report was placed before the Sanctioning Authority which
also the sanctioning authority was requested to keep
secret. It is submitted that when the Sanction was
accorded, no evidence against the appellant was collected
by the Investigating Agency inasmuch as neither the
complainant was examined by that date and therefore the
question of application of mind to due verification of the
facts could not arise. In this regard reliance has also been
placed upon the judgment delivered by the Apex Court in
State of Karnataka Vs. Amrit Jain (2008) 1 SCC (Crl.) 130
ii) That Ashok Arora the complainant had no authority and to
offer a bribe to the appellant which fact has been admitted
by Dr. Shyam Gupta (PW-5) who was the owner of the
premises and who wanted water connection to be installed
Crl.A.329/1997 Page 5 of 13
in his cross-examination and thus, the complaint filed by
Sh. Ashok Arora is without any consequence.
iii) That it has come on record that the appellant who was
working as Junior Engineer (Water) at the relevant time
had already sanctioned grant of water connection before
the date when the alleged bribe has been demanded and,
therefore, there was no occasion for him to have
demanded the bribe as alleged. In this regard reliance has
also been placed upon the statement of PW-6, Sh. Munshi
Ram statement made by the appellant under Section 313
Cr.P.C.
9. On the other hand the Counsel for the CBI submitted that the
judgment of the special judge is fully justified. It has been
submitted that the demand of bribe, its acceptance as well as
the recovery of the tainted money was proved by the witnesses.
It is stated:
(i) That in a trap case the deposition of the complainant
cannot be brushed aside and needs no independent
corroboration yet the other witnesses have corroborated
his testimony.
(ii) The motive to ask for the bribe stands proved by the
complaint Ex. PW -1/A. The very fact that the tainted
money was passed on to the appellant and recovered from
his possession raises a strong presumption under section
20 of the Act about the demand and acceptance of bribe
money which is corroborated by the fact that the same
money which was given to the accused was recovered
from him.
Crl.A.329/1997 Page 6 of 13
(iii) Regarding the validity and sanction it is submitted that Sh.
Ashok Kumar, Addl. Commissioner (Water) D.W.S. & S.D.
Undertaking, MCD, who was the sanctioning authority in
his testimony submitted that he has gone through the
entire evidence on record and the S.P's report before him
and satisfied himself that it was a fit case for grant of
sanction.
(iv) That testimony of complainant regarding the initial demand
was fully corroborated by the other members of the
raiding party and, thus the arguments that it requires
independent corroboration has no legs to stand.
v) The statement of Sh. Munshi Ram (PW-6) itself goes to
show that the appellant had calculated the development
charges on 13.10.1993 and made endorsement on the
application exhibit PW-6/C. There is nothing on record to
suggest that the complainant was aware about the
calculation of the development charges by the appellant on
13.10.1993 more over there is no dispute that the
appellant was posted in the concerned department and
was dealing with sanction of water connections. It is an
internal matter as to when the appellant has granted a
sanction but the fact is that as on the date the bribe was
demanded the water meter had not been installed.
10. I have given my thoughtful consideration to the submissions
made by the learned counsel appearing for the appellant and
that of the learned public prosecutor including the written
submissions of the appellant. I have also gone through the lower
court record and the judgments cited by the parties.
Crl.A.329/1997 Page 7 of 13
11. In this case sanction order Ex.PW-3/A dated 30.11.1993 has been
proved by Ashok Kumar (PW3), who was the sanctioning
authority by appearing in the witness box, where he stated that
he cannot admit or deny the fact that aforesaid file was routed to
him through Sh. Manohar Kulbey (Additional Director of
Vigilance), MCD Delhi. The only point raised by the learned
counsel for the appellant is that only S.P.Report is being sent
along with the said letter for grant of sanction and without
perusing the entire material the sanction was granted. I do not
find any infirmity in the sanction accorded by the Sanctioning
Authority. Even otherwise, it is well settled that adequacy or
inadequacy of the material before the sanctioning authority
cannot be gone into by us by sitting as a court of appeal over the
sanction order. In this regard reference can also be made to a
judgment delivered by the Apex Court in the case of R.
Sundrajan Vs. State [2006 (12) SCC 749], wherein it was
held:-
"12. There is no dispute that the sanction order was passed by
the competent authority.
13. Dr. A. Chelliah, learned Counsel for the appellant, however,
submitted that the sanction order was vitiated as there was no
material on which it could have been passed. We do not agree.
14. In this connection, it may be mentioned
that we cannot look into the adequacy or
inadequacy of the material before the
sanctioning authority and we cannot sit as
a Court of appeal over the sanction order.
The order granting sanction shows that all
the available materials were placed before
the sanctioning authority who considered
the same at great details. Only because
some of the said materials could not be
proved, the same by itself, in our opinion,
would not vitiate the order of sanction. In
fact in this case there was abundant
material before the sanctioning authority,
and hence we do not agree that the
sanction order was in any way vitiated.
Crl.A.329/1997 Page 8 of 13
There is no merit in this appeal. Hence it is dismissed."
12. The sanction order Ex. PW3/A reads as under :-
"SANCTION ORDER
Whereas it is alleged that Shri Ramesh Chand Sharma S/o Shri Mahipal
Singh while functioning as Junior Engineer Water-II, West Zone, MCD Peera
Garhi Store Paschim Vihar, New Delhi, on 28.10l93 demanded and accepted a
sum of Rs. 1,000/- from Shri Ashok Arora S/o Shri C.L.Arora R/o 66 A LIG Flat
Rohtak Road, New Delhi -63, as illegal gratification other than his legal
remuneration for giving a water connection at A-4/23 Shiv Market, Paschim
Vihar, New Delhi.
Whereas it is further alleged:-
(i) That Dr.Shyam Gupta S/o Shri Ram Kumar Gupta is running a Path.
Laboratory Nirmal X-Ray and diagnostic Centre at A-4/22-23, Shiv
Market, Paschim Vihar and had given a wok of renovation including
water connections of the above said shop to Shri Ashok Arora in
August, 1993. Application along with required documents for water
connections at the said address duly signed by Dr.Shyam Gupta was
submitted to ZE Water West Zone Office Rajouri Garden, New Delhi but
no water connection was given till 26.10.93. On 26.10.93 Shri Ashok
Arora met Shri R.C. Sharma, Junior Engineer, MCD Peera Garhi Store,
Paschim Vihar and requested for arranging water connection, Shri R.C.
Sharma demanded a bribe of Rs. 1,000/- from Shri Ashok Arora and
directed him to pay the bribe amount Rs. 1,000/- by 28.10.93.
(ii) That Shri Ashok Arora was not willing not willing to pay the bribe,
hence he got lodged a written complaint to SP CBI ACB New Delhi on
27.10.93 at 7.50 PM. A case was registered and entrusted to Inspector
Javed Siraj for laying a trap. A Trap Party consisting of two
independent witnesses S/Shri S. Gobind Rajan and Nawab Khan and
other officers of CBI ACB had been constituted on 28.10.93. All the
legal formalities were observed. Shri Nawab Khan was directed to act
as shadow witness in order to over-hear the conversation and see the
transaction of bribe money between complainant and Shri R.C.
Sharma. Shri Ashok Arora was directed to pass on the treated G.C.
Notes of Rs. 1000/- to Shri R.C. Sharma on his specific demand of bribe
only and also to give signal by scratching his head by his left hand to
the trap party. A handing over memo incorporating the numbers of the
treated G.C. Notes and all the pre-trap proceedings, was prepared and
signed by all including above said Independent witnesses.
(iii) That the trap party along with complainants left CBI office at 11.10 AM
and reached near MCD Peera Garhi Store, Paschim Vihar and waited
for the arrival of the accused.
(iv) That at about 12.20 PM Shri R.C. Sharma, JE came and stopped his
Scooter on the Kacha Road of Pera Garhi Store, Paschim Vihar and
demanded the bribe money from the complainant in the presence of
Shri Nawab Khan. On this Shri Ashok Arora handed over the treated
G.C. Notes of Rs.1000/- to the accused Shri R.C. Sharma who accepted
by his right hand and after counting with both hands he put the same
in his upper left side shirt pocket and went to his office by Scooter.
(v) That on receipt of the pre appointed signal at about 12.25 hrs. all the
members of trap party rushed and Shri R.C. Sharma was caught by
wrists. The tainted money of Rs. 1000/- was recovered in the form of
one G.C. Note of Rs. 500/- and five G.C. Notes of Rs. 100/- each from
his left side upper shirt pocket. The numbers of these recovered
G.C.Notes tallied with the numbers mentioned in the handing over
memo. Washes of both hands and upper shirt pocket wore by Shri R.C.
Sharma was taken separately which turned pink in colour. These
washes were transferred in three separate glass bottles and sealed
with CBI seal. A site plan of the place of occurrence was prepared. All
Crl.A.329/1997 Page 9 of 13
necessary formalities were completed and a recovery memo
incorporating all the proceedings was prepared and signed by all.
3. And whereas the said facts constitute offence punishable u/s 7 and
13(2) r/w 13(1)(d) of the P.C. Act, 1988.
4. And whereas I, Ashok Kumar, Addl. Commissioner (Water) being the
authority competent to remove the said Shri Ramesh Chand Sharma S/o Shri
Mahipal Singh, Junior Engineer, MCG (Water), West Zone from service, after
carefully examining the material placed before me with regard to the aforesaid
allegation and circumstance of the case and applying my mind considered that
the said Shri Ramesh Chand Sharma S/o Shri Mahipal Singh should be
prosecuted in the court of law for the said offence.
5. Now, therefore, I, Ashok Kumar, Addl. Commissioner (Water) do
hereby accord sanction under Section 19(1)(c) of Prevention of Corruption Act,
1988 (Act 49 of 1988) for prosecution of said Shri Ramesh Chand Sharma,
Junior Engineer for the said offence and any other offence punishable under
other provision of law in respect of the act aforesaid and for taking cognizance
of the said offence by the court of competent jurisdiction."
13. PW3 in his testimony has deposed that the sanction order was
passed by him after fully and carefully examining the allegations
contained in the material placed before him and in the
circumstances of the case which persuaded him to grant
prosecution of R.C.Sharma the appellant herein. In the cross-
examination of PW-3 nothing has been brought to show that
what particular document was not shown to him which may have
prevented him to grant the sanction. Once the Sanctioning
Authority appeared in the witness box and was subject to cross-
examination the plea of the petitioner that the sanction was not
valid is of no consequence. Therefore, it cannot be said that
sanctioning authority has granted sanction for prosecution
mechanically. Thus, there is no infirmity in the order granting
sanction and there is also no need to refer to the other
judgments cited by the appellant on this point.
14. Now coming to the question regarding the initial demand made
by the accused on 26.10.93 as alleged in the complaint Ex.
PW1/A submitted by complainant PW1 who appeared and
deposed on oath before the Ld. Special Judge that he was
Crl.A.329/1997 Page 10 of 13
awarded a contract by Dr.Shyam Gupta wherein he has to
construct a laboratory and diagnostic centre. He has stated that
he was also supposed to obtain a sewer and water connection for
the said premises and this regard he obtained the application
from Dr. Shyam Gupta and submitted in the MCD office Rajouri
Garden, New Delhi. According to him the sewer connection was
granted but the water connection was not sanctioned for more
than two months and as such he contacted the accused who was
the JE for the aforesaid work in that area. It is pertinent to
mention that the aforesaid contract has been corroborated by
PW5 (Dr. Shyam Gupta). It is further submitted by the
complainant that he met with the accused on 26.10.1993 in
regard to the delay in grant of sanction for the water connection
and accused demanded a bribe of Rs.1000/- for the aforesaid
work and added beside this amount some more amount would
have to be paid to Zonal Engineer and asked him to pay the
same by 28.10.1993 so that his file could be prepared and his
connection be sanctioned. Thus aforesaid version of the
complainant stands proved by the success of the trap laid by CBI.
15. The submission made on behalf learned counsel for the appellant
that in this case as admitted by Dr. Shyam Gupta no authority
was given to Sh. Ashok Arora to offer a bribe to the appellant
and, therefore, his question of grant of offering bribe by Sh.
Ashok Arora to the appellant cannot be believed. Despite the
fact that Dr. Shyam Gupta had accepted in his cross-examination
that he had not authorized Sh. Ashok Arora to offer the bribe the
factum of demand and acceptance of the bribe by the appellant
ampli proved by the witnesses examined by the petitioner even
Crl.A.329/1997 Page 11 of 13
if without any authority, the complainant had no authority to
offer the bribe the very fact that the water connection had not
been provided unless the bribe was offered which was not
acceptable to the complainant and rightly so because he was not
authorized to offer the bribe, he brought this fact to the notice of
the SP(ACB) and it is on that basis that a complaint was
registered against the appellant which had been further
investigated after laying down a trap and wherein the notes
which was brought by the complainant were found in possession
of the appellant and thus, the argument made by the learned
counsel are of no consequence.
16. Insofar as the submission that the appellant had already
sanctioned water connection and this fact is admitted by PW-6
Mr. Munshi Ram this does not help the appellant's case. It is a
matter of fact that as on the date when the bribe was offered
and accepted and the water connection was not provided by
then there is nothing on record to show that after recommending
the grant of water connection this fact had become known to the
complainant or Dr. Shyam Gupta and that any letter was written
on behalf of the department that such sanction had already been
accorded.
17. Taking into consideration all these facts I find no merit in the
appeal and accordingly the appeal is dismissed. The order of
conviction is maintained. Looking into the allegations made
against the appellant, I also do not feel it a case where this Court
should cause any interference in respect of the punishment
awarded to the appellant, that is, the order of sentence is also
confirmed.
Crl.A.329/1997 Page 12 of 13
18. Consequently the appeal is dismissed with the directions to the
appellant to surrender before the concerned Special Judge, Delhi
within a period of 15 days from today, failing which his bail
bonds will stand forfeited and an appropriate action shall be
taken by the learned Special Judge, Delhi for securing the
attendance of the appellant including issuance of notice to his
surety and taking such other action as is permissible in law to
ensure that the appellant undergoes the remaining part of
sentence awarded to him after giving him the benefit of Section
428 of Cr.P.C. subject to his depositing the fine, in case he has
not already deposited the same.
19. With the above directions the appeal is disposed of.
20. Trial Court record be sent back forthwith.
MOOL CHAND GARG, J.
FEBRUARY 11, 2009 nm/anb Crl.A.329/1997 Page 13 of 13