Delhi District Court
State vs . Dinesh Chand Sharma on 29 August, 2014
IN THE COURT OF SHRI B.R. KEDIA, SPECIAL JUDGE07
(CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
CC.NO. : 50/12
Unique Case ID : 02401R0595862012
STATE VS. DINESH CHAND SHARMA
S/o Sh. Om Prakash,
R/o House No. 74, Goyal Farm,
D1 Block, Badarpur Extension,
Delhi.
FIR NO. : 39/2009
U/S : 7 & 13 of Prevention of Corruption
Act, 1988
P.S. : Anti Corruption Branch, Delhi
Date of Institution 18.12.2012
Judgment reserved on 28.08.2014
Judgment delivered on 29.08.2014
JUDGMENT
1. The precise case of the prosecution is that on dated 25.11.2009 complainant Sh. Arun Rai S/o Sh.Ram Dhari went to Anti C.C. No. 50/12 Page No. 1 of 53 Corruption Branch, Delhi and got lodged his complaint Ex.PW14/A regarding initial demand of bribe of Rs.25,000/ which was scaled down to Rs.15,000/ by the accused Dinesh Chand Sharma who was working as Patwari in the Office of SDM, Kalkaji, New Delhi for allowing the complainant to raise unauthorized construction on Plot measuring 44 sq.yds. at Pehla 60 Futa KG Khosla Road, Badarpur Border, New Delhi.
2. The gist of the said complaint is that the complainant Arun Rai had negotiated to purchase a plot measuring 44 sq.yds situated at Pehla 60 Futa KG Khosla Road, Bardarpur Border, New Delhi for total amount of Rs.4 Lacs from Nirmal Singh S/o Late Sh.Tejram Singh R/o Village Ferozpur Kalan, District Faridabad and paid advance amount of Rs.2 Lacs to said Nirmal Singh on dated 10.08.2009 and the balance amount was payable within 3 months and said Nirmal Singh had allowed the complainant to raise construction over the said Plot. But as the complainant came to know that there was problem in raising construction over the said Plot, the complainant met the Area Patwari, accused Dinesh Chand Sharma who informed the complainant that there was stay for raising construction in the area and he initially demanded bribe of Rs.25,000/ which was scaled down to Rs.15,000/ C.C. No. 50/12 Page No. 2 of 53 for allowing the complainant to raise construction over the said Plot. As the complainant was against giving the bribe to the accused, the complainant thought of making recording of said transaction of payment of bribe to the accused. Thereafter, the complainant on dated 18.08.2009 but subsequently corrected as 17.08.2009 paid part bribe amount of Rs. 5000/ to the accused but could not succeed in recording of the same. Thereafter, on dated 22.08.2009 but subsequently corrected as 21.08.2009, the complainant paid part bribe amount of Rs. 5000/ to the accused at Saurabh Vihar, Nala Road and recorded the said transaction through a spy camera and got prepared two CDs of said transaction. The complainant got cancelled said sale transaction of the Plot with Nirmal Singh and took back advance amount of Rs.2 Lacs from Nirmal Singh. Since the complainant was against giving of bribe, he went to Anti Corruption Branch and lodged his complaint addressed to DCP, Anti Corruption Branch and said complaint Ex.PW14/A was marked to the Inspector Meghraj, IO/PW19 for taking necessary action.
3. The further case of the prosecution is that the complainant had also produced two VCDs containing the recording of transaction of bribe with the accused and said VCDs were taken into possession by C.C. No. 50/12 Page No. 3 of 53 PW19 Inspector Meghraj/IO vide Seizure Memo Ex.PW12/A in the presence of Panch witness. Said VCDs were played on the Office Computer and one VCD was converted into a sealed pullanda sealed with the seal of MRG and another VCD was kept open for the Investigation purpose. Said PW19 Inspector Meghraj/IO prepared Rukka and got the FIR registered and thereafter, copy of the FIR along with Rukka was received by PW19/Inspector Meghraj/IO who carried out the Investigation.
4. During the course of Investigation, the accused was arrested vide Memo Ex.PW19/A and his Personal Search was conducted vide Memo Ex.PW19/B. The voice of the accused was got identified from Sh.Alok Sharma, Senior Officer of the accused by playing the VCD vide Identification Memo Ex.PW7/B. Some documents from the Office of the accused were taken into possession by the IO vide Seizure Memo Ex.PW1/A. The Memory Chip was seized from the complainant vide Seizure Memo Ex.PW3/A. During course of Investigation, the voice sample of the complainant as well as of the accused were taken in FSL, Rohini and cassettes in this respect were obtained by the IO. The cassettes of voice sample and the VCD were sent by the IO to FSL and subsequently, IO obtained the FSL Result Ex.PW2/A and C.C. No. 50/12 Page No. 4 of 53 Ex.PW2/B. During course of Investigation, IO also collected copy of certain documents relating to said Plot vide Seizure Memo Ex.PW17/A. IO also collected the Bio data of the accused Ex.PX and prepared the Transcript of the conversation which is Ex.PW19/D. During the course of Investigation, IO also obtained the Sanction Order for launching prosecution as against the accused and recorded the statement of the witnesses and after completion of the Investigation, prepared the chargesheet and filed in the court.
5. 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 and 13 (2) r/w Section 13 (1) (d) of the Prevention of Corruption Act, 1988 was framed against accused on 05.03.2013 to which accused pleaded not guilty and claimed trial.
6. Thereafter, in order to bring home the guilt of the accused, the prosecution got examined 19 prosecution witnesses namely Virender Kumar Tiwari, Bailiff from SDM Office, Kalkaji, a formal witness as PW1, Dr.C.P.Singh, Assistant Director (Physics), FSL, Rohini, Delhi as PW2, Sh.R.K.Chabra, a formal Panch witness as PW3, Chander Shekhar, Nodal Officer, Bharti Airtel Ltd. D184, Okhla C.C. No. 50/12 Page No. 5 of 53 Phase I, New Delhi110020, a formal witness as PW4, HC Anand Prakash, a formal witness as PW5, Ct. Ram Sarup, a formal witness as PW6, Devinder Singh, a formal Panch witness as PW7, Sh.D.M.Spolia, the then Principal Secretary (Revenue)/ Divisional Commissioner, Delhi, Sanctioning Authority as against the accused as PW8, HC Ram Kumar, the then MHC(M), PS Civil Line, a formal witness as PW9, Sh.Anil Kumar, a formal Panch witness as PW10, Sh.Alok Sharma, the then Tehsildar, Kalkaji as PW11, Rajeev Kumar, a formal Panch witness as PW12, Arvind Kumar, who is an attesting witness of Money Receipt as executed in favour of the complainant by Nirmal Singh as PW13, Arun Rai, complainant, who is the star witness of the prosecution as PW14, HC Chander Singh, the then MHC(M), PS Civil Lines, a formal witness as PW15, HC Surajpal Singh, a formal witness as PW16, Nirmal who has executed the Money Receipt in favour of the complainant in token of receipt of the advance amount from the complainant for the deal of the said Plot as PW17, Ct.Anil Kumar, a formal witness as PW18 and Inspector Megh Raj/IO as PW19.
7. After closure of the PE, statement of accused under Section 313 Cr.P.C. was recorded in which the accused denied about any C.C. No. 50/12 Page No. 6 of 53 demand and acceptance of the bribe from the complainant. Accused claimed to be falsely implicated in this case due to malafide motive by the complainant who is involved in several cases. The accused in his defence got examined Sh.Mahesh Awana as DW1 and Sh.Rajinder Prasad Yadav as DW2 and thereafter, DE was closed.
8. I have heard Final Arguments as addressed by Sh. Yudhistar Kahol Adv. Ld. Counsel for the accused and Sh.Vinod Kumar Sharma, Ld. Addl. PP for the State and perused the relevant record.
9. It is submitted by Ld. Counsel for the accused that the accused has neither demanded nor accepted any bribe from the complainant Arun Rai for allowing him to raise any construction over any plot and even otherwise, the prosecution has failed to prove about the said aspects and hence, the accused deserves to be acquitted. It is further added by Ld. Counsel for the accused that though the complainant/ PW14 Arun Rai claimed to have entered into a deal for purchase of Plot measuring 44 sq. yds.at Pehla 60 Futa KG Khosla Road, Molarband Extension, Badarpur, New Delhi from Nirmal Singh for amount of Rs.4 Lacs, out of which he has paid Rs.2 Lacs as advance amount vide copy of Money Receipt Mark PW13/A which C.C. No. 50/12 Page No. 7 of 53 mentioned the Khasra Number of the said Plot as 221, Village Tajpur but from the perusal of the deposition of DW2 Rajinder Prasad Yadav coupled with the contents of copy of the Khatoni Register as per Khata No.72 Ex.DW2/A, there is no Plot bearing Khasra No.221 exclusively and therefore, the same falsify the stand of the complainant. It is further added by Ld. Counsel for the accused that even from the perusal of the copy of GPA, Agreement to Sell, Affidavit forming part of the documents Ex.PW17/B (colly.) as executed in favour of Nirmal Singh mentioned about the Plot bearing Khasra No.271 of Village Tajpur and not of Khasra No.221. It is further added by Ld. Counsel for the accused that though the complainant claimed that copy of said Money Receipt Mark PW13/A was prepared in the presence of Mahesh Awana at his house but DW1 Mahesh Awana has denied regarding the said aspect. It is further added by Ld. Counsel for the accused that PW14 Arun Rai/complainant is a man of dubious character and is involved in several cases which is found reflected from the copy of the Status Report as filed by Deputy Commissioner of Police, South District, New Delhi before the Hon'ble Delhi High Court in the "Criminal Writ Petition No.641/2006 Arun Rai Vs. State". It is further added by Ld. Counsel for the accused that vide order dated 24.08.2007 in Criminal Writ Petition No.641/06, Hon'ble High Court of Delhi was C.C. No. 50/12 Page No. 8 of 53 pleased to impose cost of Rs.50,000/ against the complainant Arun Rai. It is further added by Ld. Counsel for the accused that in "Writ Petition (C) 7627/2012 titled Govt. of NCT of Delhi & Another Vs. Dinesh Chand Sharma", Hon'ble High Court of Delhi has observed regarding Arun Rai as a person of dubious character. It is further added by Ld. Counsel for the accused that as the complainant Arun Rai is a person of dubious character and is in the habit of making the complaints against public servants in order to extort money from them and as the complainant has filed the false complaint as against the accused and therefore, his deposition cannot be treated as trustworthy. It is further added by Ld. Counsel for the accused that even otherwise there are several contradictions in the deposition of PW14 Arun Rai/complainant as well as PW19 Inspector Meghraj/IO on various aspects which falsify the case of the prosecution. It is further added by Ld. Counsel for the accused that in the Complaint Ex.PW14/A, the complainant has mentioned regarding the date of payment of alleged bribe amount of Rs.5000/ each to the accused on dated 18.8.09 and 22.8.09 but subsequently in his Police Statement dated 26.6.2012, the complainant has changed the date as 17.8.09 and 21.8.09 and the complainant has deposed in the court in this respect. It is further added by Ld. Counsel for the accused that the complainant in his Police C.C. No. 50/12 Page No. 9 of 53 Statement dated 14.7.2011, copy of which is Ex.PW14/DC, complainant has stated that he has delivered two VCDs to the IO on 25.11.2009 but said complainant in his Police Statement dated 2.12.09, copy of which is Ex.PW14/DB has stated that he has delivered two VCDs to the IO on 26.11.2009 whereas PW19/IO has deposed that the complainant Arun Rai had delivered two VCDs to him on 25.11.2009. It is further added by Ld. Counsel for the accused that the contradictions in the deposition of complainant and the IO falsify the case of prosecution. It is further added by Ld. Counsel for the accused that as the accused was merely working as Patwari in the Office of SDM, Kalkaji and even otherwise, he was not competent for granting any permission to the complainant to raise any construction on any land of the area and therefore, there was no occasion on the part of this accused to demand and accept any bribe from the complainant in this respect. Ld. Counsel for the accused also added that when the complainant is claimed to have talked to the accused through phone on 14.8.2009 why the IO had not obtained the Call Detailed Record of Mobile Phone of the accused from 14.8.2009 as IO had obtained the Call Detailed Record only from 17.8.2009 to 25.8.2009. It is further added by Ld. Counsel for the accused that there is no reason as to why IO had not demanded the Memory Chip through which the C.C. No. 50/12 Page No. 10 of 53 complainant claimed to have recorded the alleged transaction of bribe with the accused, earlier as the IO had obtained the said Memory Chip after the considerable delay from lodging of the complaint. It is further added by Ld. Counsel for the accused that there is no reason as to why IO had not seized the Instrument through which the recording was claimed to have been done by the complainant. It is further added by Ld. Counsel for the accused that there is no reason as to why IO had not examined the person from whom the complainant got prepared the VCD from the Memory Chip and Ld. Counsel added that these lapses on the part of the IO are fatal for the case of the prosecution. It is further added by Ld. Counsel for the accused that since the possibility of editing of said VCD as delivered by the complainant to the IO cannot be ruled out as PW14/complainant in his cross examination has stated that he does not know whether any editing was done in preparation of said VCD and therefore, said VCD cannot be looked into. It is further added by Ld. Counsel for the accused that as PW2 Dr.C.P.Singh has not filed the spectogram and worksheet alongwith his FSL Reports and as he is not an expert in the field of Speaker Identification and as he has prepared the Report merely at the instance of the IO and therefore, the FSL Reports as prepared by said PW2 cannot be treated as reliable. It is further added by Ld. Counsel for the C.C. No. 50/12 Page No. 11 of 53 accused that as PW8 Sh.D.M.Spolia, the then Principal Secretary (Revenue)/Divisional Commissioner, Delhi, has not gone through all the relevant material and has not personally viewed the DVD and passed the Sanction Order Ex.PW8/A mechanically without proper application of mind and therefore, said Sanction Order is legally Invalid. It is further added by Ld. Counsel for the accused that though from the perusal of said Sanction Order Ex.PW8/A, it is revealed that the same has been signed by the Sanctioning Authority on dated 26.11.2010 but said Sanction Order at the top bears date 01.12.2010, thus there is discrepancy regarding the date in the said Sanction order. It is further added by Ld. Counsel for the accused that Police Statement of certain PWs have been recorded after 26.11.2010, the date of said Sanction Order as Supplementary Statements of the complainant have been recorded by the IO on dated 14.07.2011 and 26.06.2012 and statement of PW Nirmal Singh was recorded on 9.7.2012. Ld. Counsel thus urged that as the Sanction Order Ex.PW8/A is legally Invalid being passed by Sanctioning Authority mechanically without proper application of mind and therefore, the accused deserves to be acquitted on this count itself. It is further added by Ld. Counsel for the accused that PW17 Nirmal Singh has deposed that only a Receipt Mark PW13/A was executed and no other document was executed in respect C.C. No. 50/12 Page No. 12 of 53 of any Agreement to Sell of said Plot to the complainant Arun Rai. It is further added by Ld. Counsel for the accused that all the documents forming part of Ex.PW17/B (colly.) mentioned the Khasra Number of the Plot as 271 of Village Tajpur and not Khasra No.221 as mentioned in said Money Receipt Mark PW13/A. It is further added by Ld. Counsel for the accused that as there is no evidence against the accused to support the case of the prosecution, therefore, the accused deserves to be acquitted.
10. To the contrary, it is submitted by Ld. Addl. PP for the State that the prosecution by examining 19 PWs have clearly established its case as against the accused Dinesh Chand Sharma and therefore, the accused deserves to be convicted for the charged offence U/S 7 and 13 (2) of Prevention of Corruption Act, 1988. It is further added by Ld. Addl. PP for the State that the factum regarding demand and acceptance of the bribe from the complainant by the accused for allowing him raising unauthorized construction by the complainant over the Plot found corroborated from the deposition of PW14 Arun Rai/complainant coupled with the VCD and FSL Reports Ex.PW2/A and Ex.PW2/B and there is no reason to disbelieve the same. It is further added by Ld. Addl. PP that mere contradictions in the C.C. No. 50/12 Page No. 13 of 53 deposition of the complainant and IO as pointed out by Ld. Counsel are merely formal in nature and are of no consequence. It is further added by Ld. Addl. PP that PW8/Sanctioning Authority has rightly passed the Sanction Order Ex.PW8/A for launching prosecution as against the accused after appreciation of all the relevant material and mere fact that the IO has recorded statement of certain PWs on formal aspects after the grant of Sanction Order cannot relegate the said Sanction Order as legally Invalid. It is further added by Ld. Addl. PP that mere involvement of the complainant in certain cases does not mean that the deposition of the complainant will be thrown out of the consideration specifically when the complainant had no earlier enmity as against the accused. It is further added by Ld. Addl. PP that the deposition of PW14/complainant also found corroborated from the deposition of PW19/IO and other connected PWs and there is no reason to disbelieve the same. It is also added by Ld. Addl. PP that the prosecution has been successful in establishing its case as against the accused for the charged offence and hence, the accused deserves to be convicted.
11. 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 C.C. No. 50/12 Page No. 14 of 53 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 that as PW8 Sh.D.M.Spolia, the then Principal Secretary (Revenue)/Divisional Commissioner, Delhi, has not gone through all the relevant material and has not personally viewed the DVD and passed the Sanction Order Ex.PW8/A mechanically without proper application of mind and therefore, said Sanction Order is legally Invalid. It is further added by Ld. Counsel for the accused that though from the perusal of said Sanction Order Ex.PW8/A, it is revealed that the same has been signed by the Sanctioning Authority on dated 26.11.2010 but said Sanction Order at the top bears date 01.12.2010, thus there is discrepancy regarding the date in the said Sanction order. It is further added by Ld. Counsel for the accused that Police Statement of certain PWs have been recorded after 26.11.2010, the date of said Sanction Order as Supplementary Statements of the complainant have been recorded by the IO on dated 14.07.2011 and 26.06.2012 and statement of PW Nirmal Singh was recorded on 9.7.2012. Ld. Counsel thus urged that as the Sanction Order Ex.PW8/A is legally Invalid being passed by Sanctioning Authority mechanically without proper application of mind and therefore, the accused deserves to be acquitted on this count itself. To the contrary, it is submitted by Ld. Addl. PP on C.C. No. 50/12 Page No. 15 of 53 behalf of the State that PW8/Sanctioning Authority has rightly passed the Sanction Order Ex.PW8/A for launching prosecution as against the accused after appreciation of all the relevant material and mere fact that the IO has recorded statement of certain PWs on formal aspect after the grant of Sanction Order cannot relegate the said Sanction Order as legally Invalid.
12. That in order to prove sanction concerning the accused Dinesh Chand Sharma, the prosecution had examined PW8 Sh.D.M.Spolia, the then Principal Secretary (Revenue)/Divisional Commissioner, Delhi who had categorically deposed that on 26.11.2010 while he was posted as Principal Secretary (Revenue)/ Divisional Commissioner, Delhi, his Office received the request letter of Addl. Commissioner of Police, Anti Corruption Branch along with the file containing the Complaint, FIR, copy of transcription of recording, copies of Memos of DVD, copy of FSL Result, copy of Voice Identification Memo and other documents collected during Investigation for grant of Sanction for prosecution of accused Dinesh Chand Sharma who was posted as Patwari in the Office of SDM, Kalkaji, New Delhi and after going through the material on record and applying his mind and after examining the facts and circumstances of C.C. No. 50/12 Page No. 16 of 53 the case and he being the Competent Authority to remove accused Dinesh Chand Sharma from service, he accorded Sanction for launching prosecution as against accused Dinesh Chand Sharma on 26.11.2010 and said Sanction Order is Ex.PW8/A bearing his signature at point A. In the crossexamination by Ld. Defence Counsel, said PW8 has deposed that he has not personally viewed the DVD. From the perusal of the said Sanction Order Ex.PW8/A, it is clearly reflected that the required relevant material are found mentioned in the said Sanction Order indicating that he has gone through the relevant material before according the said Sanction Order and therefore, I am of the considered view that mere fact that the IO has recorded statements of certain PWs on certain formal aspects after the grant of said Sanction Order cannot invalidate the said Sanction Order. No doubt, from the perusal of the said Sanction Order Ex.PW8/A, it is reflected that said Sanction Order has been signed by the Sanctioning Authority on dated 26.11.10 and said Order at the top bears the Office Letter No. F.DC(S)/Vig/2009/CD7669/1447 dated 01.12.10 and the said fact cannot nullify the said Sanction Order.
13. In the case reported as "2011 V A.D. (Delhi) 1 Kiran Pal Singh Vs. State" while dealing with the aspect relating to Sanction, in C.C. No. 50/12 Page No. 17 of 53 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 before him, it was held by the Hon'ble Supreme Court to be a valid sanction".
14. 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 C.C. No. 50/12 Page No. 18 of 53 not before according sanction, especially when order prima facie shows that, he had done so.
15. 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 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 C.C. No. 50/12 Page No. 19 of 53 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".
16. 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 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.C. No. 50/12 Page No. 20 of 53
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.
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 C.C. No. 50/12 Page No. 21 of 53 hypertechnical approach to test its validity."
17. 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."
18. 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.PW8/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.
19. That during the course of argument, it is submitted by Ld. Counsel for the accused that the accused has neither demanded nor accepted any bribe from the complainant Arun Rai for allowing him to C.C. No. 50/12 Page No. 22 of 53 raise any construction over any plot and even otherwise, the prosecution has failed to prove about the said aspects and hence, the accused deserves to be acquitted. It is further added by Ld. Counsel for the accused that though the complainant/ PW14 Arun Rai claimed to have entered into a deal for purchase of Plot measuring 44 sq. yds.at Pehla 60 Futa KG Khosla Road, Molarband Extension, Badarpur, New Delhi from Nirmal Singh for amount of Rs.4 Lacs, out of which he has paid Rs.2 Lacs as advance amount vide copy of Money Receipt Mark PW13/A which mentioned the Khasra Number of the said Plot as 221, Village Tajpur but from the perusal of the deposition of DW2 Rajinder Prasad Yadav coupled with the contents of copy of the Khatoni Register as per Khata No.72 Ex.DW2/A, there is no Plot bearing Khasra No.221 exclusively and therefore, the same falsify the stand of the complainant. It is further added by Ld. Counsel for the accused that even from the perusal of the copy of GPA, Agreement to Sell, Affidavit forming part of the documents Ex.PW17/B (colly.) as executed in favour of Nirmal Singh mentioned about the Plot bearing Khasra No.271 of Village Tajpur and not of Khasra No.221. It is further added by Ld. Counsel for the accused that though the complainant claimed that copy of said Money Receipt Mark PW13/A was prepared in the presence of Mahesh Awana at his house but DW1 C.C. No. 50/12 Page No. 23 of 53 Mahesh Awana has denied regarding the said aspect. To the contrary, it is submitted by Ld. Addl. PP for the State that the factum regarding demand and acceptance of the bribe from the complainant by the accused for allowing him raising unauthorized construction by the complainant over the Plot found corroborated from the deposition of PW14 Arun Rai/complainant coupled with the VCD and FSL Reports Ex.PW2/A and Ex.PW2/B and there is no reason to disbelieve the same.
20. The complainant Arun Rai who has been examined as PW14 has deposed that he had purchased a plot of 44 sq. yds. situated at Pehla 60 Futa KG Khosla Road, Molarband Extension, Badarpur, New Delhi from Nirmal Singh S/o Tejram on 10.08.2009 for sale consideration of Rs.4 Lacs and he paid Rs.2 Lacs as part payment for which said Nirmal Singh executed Money Receipt in this respect which is Mark PW13/A. He further deposed that it was settled with Nirmal Singh that he can construct on the said Plot after paying part payment of Rs.2 Lacs. Thereafter, he visited said Plot on 13.08.2009 but came to know from neighbour as there is stay in the construction, he should meet Area Patwari for raising construction. Thereafter, probably on 14.08.2009, he talked through Phone to the accused who directed him C.C. No. 50/12 Page No. 24 of 53 to meet in his Office. After about 12 days, he went to the Office of the accused situated at SDM Office, Kalkaji and talked to the accused who initially demanded Rs.25,000/ but on his request agreed for Rs. 15,000/ to allow him to raise construction on his said Plot. Said PW14 /complainant further deposed that he intend to get sting operation of the payment of bribe against the accused. On 17.08.2009, he paid Rs. 5000/ as bribe to the accused but could not succeed in recording of said transaction in his secret camera. He further deposed that the accused told him that only after making balance payment to him, he should start the construction and thereafter, on 21.8.09 at about 10:00 a.m. he talked to the accused by Phone and called him to meet at Saurabh Vihar and after about 3040 minutes, the accused came to Saurabh Vihar and he paid him Rs.5000/ more there and he succeeded in making the sting operation of the said transaction. He further deposed that thereafter, he stated to Nirmal Singh for refund of his advance amount of Rs. 2 Lacs as he was not going to raise construction on the said Plot and Nirmal Singh agreed to return the amount. He further deposed that he got prepared a CD of said sting operation of transaction and delivered the said CD to Sh.S.K.Singh, ADM, Saket on dated 6.10.2009 but said ADM has not taken any action against the accused. Thereafter, he went to the Office of AC Branch on 25.11.2009 C.C. No. 50/12 Page No. 25 of 53 and got lodged his Complaint Ex.PW14/A which bears his signature at point A and handed over two CDs of said sting operation which were taken into possession vide Seizure Memo Ex.PW12/A bearing his signature at point A. Said PW14 also deposed that during course of Investigation, he had handed over the Memory Chip to the IO which was taken into possession vide Seizure Memo Ex.PW3/A which bears his signature at point B. He further deposed that he was taken by the IO to FSL where his voice sample was taken and two CDs were prepared which were taken into possession vide Seizure Memo Ex.PW3/B which bears his signature at point X. Said PW14/complainant has duly identified the CD available on the judicial file as Ex.P5 and the CD taken out from a sealed envelope and identified said CD bearing his signature at point X and said CD as Ex.PX. He has also identified the Memory Chip as Ex.PY as taken out from a sealed pullanda sealed with the seal of FSL.
21. In the cross examination by Ld. Defence Counsel, said PW14 Arun Rai added that about one week prior to the completion of the required formalities and making the balance payment for completion of said transaction relating to said Plot, he had taken back the advance amount of Rs.2 Lac from Nirmal Singh which was earlier paid to him. C.C. No. 50/12 Page No. 26 of 53 In the cross examination by Ld. Defence Counsel, said PW14 Arun Rai further deposed as under: "On 17.8.2009, I had tried to record the conversation with the accused but the same could not be materialized. Thereafter, I had recorded the conversation of the accused relating to the transaction of giving of Rs.5000/ to accused on 21.08.2009. (Vol. However, inadvertently, the date was wrongly mentioned as 18.08.2009 in place of 17.08.2009 and 22.08.2009 in place of 21.08.2009 in my police statement)."
22. Said PW14 Arun Rai/complainant in his cross examination by Ld. Defence Counsel has added that the recording of transaction was done by him by a Button Camera. However, said Camera could not be delivered to the police as when police asked him to hand over said Camera and he tried to contact one Pradeep Narain, who was working in Zee News, the owner of said Camera but he was found to have already expired. He further deposed that he delivered the Memory Chip to the police and said Memory Chip was with him. He also added that a VCD was got prepared by him from the Memory Chip from one C.C. No. 50/12 Page No. 27 of 53 Photographer Shop namely Rajesh at NIT, Faridabad Opposite to Escort Hospital. He denied the suggestion of Ld. Counsel that he had not agreed to purchase any Plot from Nirmal Singh. He has also denied the suggestion that no oral permission was given to raise the construction over the Plot to him. In the cross examination by Ld. Defence Counsel, he admitted about his involvement in certain cases. In the cross examination by Ld. Defence Counsel, he has denied certain pertinent suggestion as put to him by Ld. Defence Counsel as he has deposed in this respect as under: "It is incorrect to suggest that I had lodged the present case falsely at the instance of Councilor of our area. It is incorrect to suggest that the accused had not demanded or accepted any money from me.
It is incorrect to suggest that I had got edited in the said recording of CD. It is incorrect to suggest that I am in the habit of lodging false complaints and extorting money in this respect. It is incorrect to suggest that accused had agreed for allowing any construction in the area."
23. The factum regarding deal of the Plot of 44 sq. yds. by the C.C. No. 50/12 Page No. 28 of 53 complainant Arun Rai from Nirmal on dated 10.08.2009 for total sale consideration of Rs.4 Lacs, out of which advance amount of Rs.2 Lacs was paid by Arun Rai for which Money Receipt Mark PW13/A was issued by Nirmal on 10.08.2009 are also found supported from the deposition of PW17 Nirmal who has deposed in this respect as under: "Deal for a Plot of 44.44 sq. yds, part of Khasra No. 221 situated in the area of village Tajpur and abadi known as molarband extension, Tehsil Kalkaji. The cost of the land was decided as Rs.4 lakhs. Rs.2 lakhs were paid to me by Arun Rai. I had issued a receipt, witness identified the receipt Mark PW13/A and identified his signature at point X. The deal was taken place on 10.08.2009. During investigation, I was called by the police. I had handed over photocopies of some documents to the police, same were taken into possession vide seizure memo Ex.PW17/A which bears my signature at point A. The documents are relating to the ownership of the said land which are Ex.PW17/B(colly.)"
C.C. No. 50/12 Page No. 29 of 53
24. Said PW17 in the cross examination by Ld. Defence Counsel added that he does not know what is mentioned in Mark PW13/A which is purported to be a Receipt of Rs.2 Lacs. He further added that only this Receipt Mark PW13/A was executed and no other document was executed in respect of sale of said Plot. He further added that he cannot say whether the said Plot was situated in Khasra No.221 of Village Tajpur.
25. The factum regarding the execution of said Money Receipt Mark PW13/A as executed by Nirmal Singh in favour of Arun Rai is also found corroborated from the deposition of PW13 Arvind Kumar, who is an attesting witness to said Money Receipt Mark PW13/A which bears his signature at point A. In the cross examination by Ld. Defence Counsel, said PW13 added that the money was given in his presence and C.L.Yadav also attested Mark PW13/A as a witness. He further deposed that he cannot say if there is no such plot bearing Khasra No.221. He further deposed that Nirmal Singh has returned the amount of Rs.2 Lacs to Arun Rai when he refused to purchase the property in his presence.
26. PW19 Inspector Meghraj/IO has deposed that on 25.1.2009 C.C. No. 50/12 Page No. 30 of 53 when he was posted in AC Branch, Complaint Ex.PW14/A was marked to him and the complainant Arun Rai met him and produced two VCDs which were played on the Office Computer and one VCD was converted into sealed pullanda sealed with the seal of MRG and another VCD was kept open for Investigation purpose and both said VCDs were taken into possession vide Seizure Memo Ex.PW12/A which bears his signature at point B. Thereafter, he prepared Rukka and got the case registered and took up the Investigation. He further deposed that on 26.11.2009 Sh.Alok Sharma, Senior Officer of the accused was called in the Office of AC Branch and said VCD was played before him who had identified the voice of the accused vide Identification Memo Ex.PW7/B which bears his signature at point C. Said fact regarding identification of the accused vide Identification Memo Ex.PW7/B by Sh.Alok Sharma on dated 26.11.2009 also found corroborated from the deposition of PW11 Alok Sharma, the then Tehsildar, Kalkaji, New Delhi, who has deposed in this respect as under: "On 26.11.2009, I was posted as Tehsildar, Kalkaji, New Delhi. On that day on receipt of call from IO, I came to AC Branch office. Accused Dinesh Chand Sharma who was posted as patwari in C.C. No. 50/12 Page No. 31 of 53 Tehsil, Kalkaji was also present with IO. IO had played the a VCD MarkII on the office computer in which accused Dinesh Chand Sharma was seen while talking with a person and also obtaining GC Notes of Rs.1000/ from the said person and also counting the notes. He was also seen while giving assurance to the said person. Accused Dinesh Chand Sharma was working with me during the said period and therefore I had identified him and his voice. I also signed on the memo Ex.PW7/B(already exhibited) which bears my signatures at point B, besides me, panch witness also signed the said memo. My statement was recorded by the IO. A VCD from the Judicial file is played on the computer. After seeing the VCD, witness identified the contents as the same as shown by IO and identified by me. VCD is Ex.P5."
27. Said PW11 Alok Sharma in the cross examination by Ld. C.C. No. 50/12 Page No. 32 of 53 Defence Counsel clearly denied the categorical suggestion that the accused was not seen while taking GC Notes of Rs.1000/ as he has deposed in this respect as under: "It is wrong to suggest that only one GC Note of Rs. 1000/ being displayed before the camera. It is wrong to suggest that accused was not seen while taking GC Notes of Rs.1000/."
28. The factum regarding the identification of the accused by Sh.Alok Sharma on playing of VCD by the IO vide Identification Memo Ex.PW7/B in the Office of AC Branch on dated 26.11.2009 also found corroborated from the deposition of PW7 Devinder Singh who is also an attesting witness to said Identification Memo Ex.PW7/B which bears his signature at point A as he has deposed in this respect as under: "Thereafter, senior officer, Alok Sharma, Tehsildar identified accused Dinesh Chand Sharma as his patwari after seeing the CD No. II. IO prepared identification memo Ex.PW7/B in this regard which bears my signatures at point A. My statement was C.C. No. 50/12 Page No. 33 of 53 recorded by the IO."
29. PW19 Inspector Meghraj/IO has also deposed that during Investigation, he has sent the sealed VCD as handed over to him by the complainant earlier to the FSL and subsequently FSL Report was obtained. He also deposed that he has taken into possession a Memory Chip from the complainant through which he recorded the VCD and said Memory Chip was taken into possession vide Memo Ex.PW3/A. He also deposed that complainant was taken to FSL, Rohini where sample voice of complainant was taken in two cassettes Mark 'O' & 'C' which were taken into possession vide Seizure Memo Ex.PW3/B. IO also deposed that on 24.8.2011 accused was taken to FSL, Rohini and sample voice of the accused was obtained in two cassettes Mark 'O' & 'C' which were taken into possession vide Seizure Memo Ex.PW10/A which bears his signature at point B. He has also deposed that thereafter, cassettes containing the voice sample of the complainant and accused and the VCD which was seized from the complainant earlier were sent to FSL and subsequently FSL Report was obtained. The IO clearly has identified all the said exhibits during his deposition in the court.
C.C. No. 50/12 Page No. 34 of 53
30. The aforesaid deposition of PW19/IO regarding sending of the relevant exhibits to the FSL for examination and subsequently obtaining the FSL Reports Ex.PW2/A and Ex.PW2/B also found corroborated from the deposition of PW2 Dr.C.P.Singh, Assistant Director (Physics), FSL, Rohini, who has examined the relevant exhibits and prepared the FSL Reports Ex.PW2/A and Ex.PW2/B. Said PW2 in his FSL Report Ex.PW2/A at Para 3 has given the Result of the Examination/Opinion as under: " On examination of video images in video file, namely, "AVSEQ01.DAT" in CD marked as "Exhibit1", the following were observed:
1. The video recording in video file, namely, "AVSEQ01.DAT" in CD marked as "Exhibit1"
contains one identified video shot.
2. The video recording in video file, namely, "AVSEQ01.DAT" in CD marked as "Exhibit1" is in digital video format and there is no indication of alteration in the identified video shot on the basis of examination using NonLinear Video Editing System and Video Analyst System."
C.C. No. 50/12 Page No. 35 of 53
31. Said PW2 in his FSL Report Ex.PW2/B at Para 3 has given the Result of the Examination/Opinion as under: "1. The auditory analysis of recorded speech samples of speakers marked "Exhibit Q1" & "Exhibit S1" and subsequent acoustic analysis of speech samples by using CSL (Computerized Speech Lab) revealed that the voice exhibits of speaker marked "Exhibit Q1" are similar to the voice exhibits of speaker marked "Exhibit S1" in respect of their acoustic cues and odther linguistic and phonetic features.
Hence, the voice exhibits of speakers marked "Exhibit Q1 and "ExhibitS1" are the voice of the same person (i.e. Arun Rai).
The auditory analysis of recorded speech samples of speakers marked "Exhibit Q2" & "Exhibit S2" and subsequent acoustic analysis of speech samples by using CSL (Computerized Speech Lab) revealed that the voice exhibits of speaker marked "Exhibit Q2"
are similar to the voice exhibits of speaker marked C.C. No. 50/12 Page No. 36 of 53 "ExhibitS2" in respect of their acoustic cues and other linguistic and phonetic features.
Hence, the voice exhibits of speakers marked "ExhibitQ2" and "ExhibitS2" are the voice of the same person (i.e. Dinesh Sharma).
2. The contents of video file namely "AVSEQ01.DAT" in CD marked 'Exhibit1' and the video file namely "Rec_007.3gp" in micro card marked 'Exhibit4' are found to be same."
32. During the course of arguments, it is submitted by Ld. Counsel for the accused that since the possibility of editing of said VCD as delivered by the complainant to the IO cannot be ruled out as PW14/complainant in his cross examination has stated that he does not know whether any editing was done in preparation of said VCD and therefore, said VCD cannot be looked into. I do not find any force in the said submission of Ld. Counsel for the accused in view of the fact that PW2 Dr.C.P.Singh on examination of said VCD of "Moserbaer" make containing voice recording Ex.1 has given the opinion in the FSL Report Ex.PW2/A at Para 3 (2) as under: "2. The video recording in video file, namely, C.C. No. 50/12 Page No. 37 of 53 "AVSEQ01.DAT" in CD marked as "Exhibit1" is in digital video format and there is no indication of alteration in the identified video shot on the basis of examination using NonLinear Video Editing System and Video Analyst System."
33. In view of the aforesaid opinion as given by PW2 Dr.C.P.Singh on examination of said VCD to the effect that there is no indication of alteration in the identified video shot, I do not see any reason to disbelieve the same and therefore, I do not find any force in the submission of Ld. Counsel for the accused for discarding the said VCD on the count that the possibility of editing the said VCD cannot be ruled out.
34. During the course of the arguments, it is submitted by Ld. Counsel for the accused that as PW2 Dr.C.P.Singh has not filed the spectogram and worksheet alongwith his FSL Report and as he is not an expert in the field of Speaker Identification and as he has prepared the Report merely at the instance of the IO and therefore, the FSL Reports as prepared by said PW2 cannot be treated as reliable. I do not find any force in the said submission of Ld. Counsel for the accused in C.C. No. 50/12 Page No. 38 of 53 this respect. From the perusal of the deposition of PW2 Dr.C.P.Singh, it is clearly reflected that he was working as Assistant Director (Physics), FSL, Rohini, Delhi since 2007 and after due examination of relevant exhibits, he has prepared FSL Reports Ex.PW2/A and Ex.PW2/B and therefore, said FSL Reports are per se admissible U/S 293 Cr.P.C. mere fact that he has not attached the spectogram and the worksheet along with said FSL Report, cannot nullify the said FSL Reports. Furthermore, said PW2 Dr.C.P.Singh in the cross examination by Ld. Defence Counsel has further deposed as under: "I am M.Sc. in Forensic Science and Ph.D in the field of speaker identification and also I obtained relevant trainings from various Institutes like National Aeronautic Ltd. Banglore, Central Institute of Indian Languages and University of Trier, Germany prior to 2011. At the time of preparation of the FSL Report relating to the present case, my designation was Assistant Director (Physics), FSL, Rohini, Delhi. Auditory & Acoustic Analysis by using computerised speech lab (CSL) is the method used for analysis of the C.C. No. 50/12 Page No. 39 of 53 speech sample and by comparing the linguistic, phonetic and acoustic features arrived under the conclusion of speaker identification."
35. During the course of arguments, it is submitted by Ld. Counsel for the accused that when the complainant is claimed to have talked to the accused through phone on 14.8.2009 why the IO had not obtained the Call Detailed Record of Mobile Phone of the accused from 14.8.2009 as IO had obtained the Call Detailed Record only from 17.8.2009 to 25.8.2009. It is further added by Ld. Counsel for the accused that there is no reason as to why IO had not demanded the Memory Chip through which the complainant claimed to have recorded the alleged transaction of bribe with the accused, earlier as the IO had obtained the said Memory Chip after the considerable delay from lodging of the complaint. It is further added by Ld. Counsel for the accused that there is no reason as to why IO had not seized the Instrument through which the recording was claimed to have been done by the complainant. It is further added by Ld. Counsel for the accused that there is no reason as to why IO had not examined the person from whom the complainant got prepared the VCD from the Memory Chip and Ld. Counsel added that these lapses on the part of C.C. No. 50/12 Page No. 40 of 53 the IO are fatal for the case of the prosecution.
36. I do not find any force in the aforesaid submission of Ld. Counsel for the accused as I am of the considered view that mere lapse on the part of the IO cannot be a escape ground for the accused specifically when adequate incriminating material for the charged offence are available on record. I am of the considered view that criminal justice should not be made casualty of wrongs committed by the IO and my said view is found nourished from the judgment as rendered by Hon'ble Delhi High Court in the case reported as "2000 (I) A.D. (Delhi) 67 Manoj @ Manu Vs. State of Delhi." In the case reported as "State of Rajasthan Vs. Kishore (1996 SCC (Crl) 646)"
it was observed by Hon'ble Supreme Court of India that mere fact that the investigating officer committed irregularity or illegality during the course of investigation would not and does not cast doubt on the prosecution case nor trustworthy and reliable evidence can be cast aside to record acquittal on that account. Furthermore, in another case reported as "Ram Bihari Yadav Vs. State of Bihar and Ors. (1998(4) SCC 517)" it was observed by Hon'ble Supreme Court of India as under: "If primacy is given to such designed or negligent C.C. No. 50/12 Page No. 41 of 53 investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice". The view was again re iterated in "Amar Singh Vs. Balwinder Singh and Ors. (2003 (2) SCC 518)."
37. During course of arguments, it is submitted by Ld. Defence Counsel that as the accused was merely working as Patwari in the Office of SDM, Kalkaji and even otherwise, he was not competent for granting any permission to the complainant to raise any construction on any land of the area and therefore, there was no occasion on the part of this accused to demand and accept any bribe from the complainant in this respect. I do not find any force in the said submission of Ld. Defence Counsel. Law is well settled that it does not matter whether the public servant was competent to do the work or not and reference can be placed in the case reported as Chaturdas Bhagwandas Patel Vs. State of Gujrat, 1976(3) SCC 46 as referred in State of Andhra Pradesh Vs. C. Uma Maheshwar Rao and Anr. 2004, V AD (SC) 176, wherein it has been held by Hon'ble Supreme Court of India that C.C. No. 50/12 Page No. 42 of 53 the question whether a person has an authority to do the act for which bribe is accepted, is of no consequence. In the case reported as Gopal Singh Vs. CBI, ILR (2005) II Delhi 35, It was observed by the Hon'ble Delhi High Court in Para 22 as under: "It has to be added that in cases under PC Act, the prosecution is under no obligation to prove that a public servant demanding bribe was in a position to help the person from whom the bribe was being demanded. The prosecution succeed the moment it is shown that a public servant had accepted some money from someone which was not legal remuneration.
The presumption U/S 20 of the Act comes into play shifting the burden upon the public servant to explain as to why he had received the money. A public servant may misguide, mislead or befool his victim to pay him illegal gratification knowing fully well that he is not in a position to help him and as such it can be no defence for him to say that since he was not in a C.C. No. 50/12 Page No. 43 of 53 position to help the complainant/victim the money received by him does not amount to illegal gratification."
38. During the course of arguments, it is submitted by Ld. Defence Counsel that even otherwise there are several contradictions in the deposition of PW14 Arun Rai/complainant as well as PW19 Inspector Meghraj/IO on various aspects which falsify the case of the prosecution. It is further added by Ld. Counsel for the accused that in the Complaint Ex.PW14/A, the complainant has mentioned regarding the date of payment of alleged bribe amount of Rs.5000/ each to the accused on dated 18.8.09 and 22.8.09 but subsequently in his Police Statement dated 26.6.2012, the complainant has changed the date as 17.8.09 and 21.8.09 and the complainant has deposed in the court in this respect. It is further added by Ld. Counsel for the accused that the complainant in his Police Statement dated 14.7.2011, copy of which is Ex.PW14/DC, complainant has stated that he has delivered two VCDs to the IO on 25.11.2009 but said complainant in his Police Statement dated 2.12.09, copy of which is Ex.PW14/DB has stated that he has delivered two VCDs to the IO on 26.11.2009 whereas PW19/IO has deposed that the complainant Arun Rai had delivered two VCDs to him C.C. No. 50/12 Page No. 44 of 53 on 25.11.2009. It is further added by Ld. Counsel for the accused that the contradictions in the deposition of complainant and the IO falsify the case of prosecution.
39. I do not find any force in the aforesaid submission of Ld. Counsel for the accused in view of the fact that said contradictions appear to be on formal aspects and cannot be treated as unnatural because of the time gap between the period of incident and making of the statement. My said view is also found supported from the law laid down by the Hon'ble Supreme Court regarding contradictions in case of Bharuda Broginbhai Harjibhai V/s State of Gujrat AIR 1983 SC 753 wherein it was held that discrepancies which do not go to the root of the matter and shake the basic version of the prosecution should not be attached undue importance.
40. During the course of arguments, it is submitted by Ld. Defence Counsel that PW14 Arun Rai/complainant is a man of dubious character and is involved in several cases which is found reflected from the copy of the Status Report as filed by Deputy Commissioner of Police, South District, New Delhi before the Hon'ble Delhi High Court in the "Criminal Writ Petition No.641/2006 Arun Rai Vs. State". It is C.C. No. 50/12 Page No. 45 of 53 further added by Ld. Counsel for the accused that vide order dated 24.08.2007 in Criminal Writ Petition No.641/06, Hon'ble High Court of Delhi was pleased to impose cost of Rs.50,000/ against the complainant Arun Rai. It is further added by Ld. Counsel for the accused that in "Writ Petition (C) 7627/2012 titled Govt. of NCT of Delhi & Another Vs. Dinesh Chand Sharma", Hon'ble High Court of Delhi has observed regarding Arun Rai as a person of dubious character. It is further added by Ld. Counsel for the accused that as the complainant Arun Rai is a person of dubious character and is in the habit of making the complaints against public servants in order to extort money from them and as the complainant has filed the false complaint as against the accused and therefore, his deposition cannot be treated as trustworthy. No doubt, from the perusal of the record, it is reflected that the complainant Arun Rai is found involved in several cases but I am of the considered view that said fact itself cannot be the sole ground to throw away the deposition of PW14 Arun Rai/complainant and my said view is found supported from the Judgment "2008 Cr.L.J.3234 Shivdas Dashrath Jadhav Vs. State of Maharashtra" wherein it was observed by Hon'ble Bombay High Court as under: "Merely because the complainant was involved in C.C. No. 50/12 Page No. 46 of 53 many cases, it is no ground to reject his testimony."
41. From the perusal of the record relating to the present case, it is reflected that the material part of deposition of PW14 Arun Rai/complainant to the extent of demand and acceptance of part bribe amount of Rs.5000/ from him by the accused on 21.08.2009 at Saurabh Vihar and he succeeded in making sting operation of the said transaction of bribe and thereafter, he got prepared two VCDs of said sting operation and delivered to the IO also found corroborated from the contents of VCD Ex.P5 as available on the judicial file as well as deposition of PW11 Alok Sharma, the then Tehsildar, Kalkaji, New Delhi, who has identified the accused on playing of said VCD before the IO vide Identification Memo Ex.PW7/B as said PW11 Alok Sharma has deposed in this respect as under: "On 26.11.2009, I was posted as Tehsildar, Kalkaji, New Delhi. On that day on receipt of call from IO, I came to AC Branch office.
Accused Dinesh Chand Sharma who was posted as patwari in Tehsil, Kalkaji was also present with IO. IO had played the a VCD MarkII on C.C. No. 50/12 Page No. 47 of 53 the office computer in which accused Dinesh Chand Sharma was seen while talking with a person and also obtaining GC Notes of Rs.1000/ from the said person and also counting the notes. He was also seen while giving assurance to the said person. Accused Dinesh Chand Sharma was working with me during the said period and therefore I had identified him and his voice. I also signed on the memo Ex.PW7/B(already exhibited) which bears my signatures at point B, besides me, panch witness also signed the said memo. My statement was recorded by the IO. A VCD from the Judicial file is played on the computer. After seeing the VCD, witness identified the contents as the same as shown by IO and identified by me. VCD is Ex.P5."
42. Furthermore, the material part of deposition of PW14 Arun Rai/complainant also found corroborated not only from the aforesaid deposition of PW11 Alok Sharma coupled with contents of the VCD C.C. No. 50/12 Page No. 48 of 53 Ex.P5 but also from the deposition of PW19 Inspector Meghraj/IO and FSL Reports Ex.PW2/A and Ex.PW2/B coupled with the deposition of PW2 Dr.C.P.Singh. I would like to add it that even during the course of the perusal of the case file, I have also seen said VCD Ex.P5 as available in the case file after getting played on the Court Computer and the same displayed about the acceptance of certain GC Notes of Rs.1000/ each by the accused.
43. Once the accused is found to have accepted certain amount, it is for him to explain as to in which capacity he has accepted the same in view of the legal presumption as contemplated U/S 20 of the Prevention of Corruption Act, 1988 against the accused.
44. In the case of Dhanvantrai Balwantrai Desai V/s State of Maharashtra, AIR 1964 Supreme Court 575 it was held as under: "Therefore, the court has no choice in the matter, once it is established that the accused person has received a sum of money which was not due to him as a legal remuneration. Of course, it is open to that person to show that though that money was not due to him as legal remuneration, it was legally due to him in some other manner or that he had received it under C.C. No. 50/12 Page No. 49 of 53 a transaction or an arrangement which was lawful. The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occurs in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a mere explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be probable that a reasonable man would act on the supposition that it exists.
Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted.
45. It is also useful to refer to the decision of Hon'ble Supreme Court in case of M.Narsinga Rao V/s State of A.P. 2001 (1) SCC 691 rendered by Three Hon'ble Judges of Supreme Court. In that case accused demanded a bribe of Rs. 500/ from a milk transporting contractor for recommending the payment of an amount due to the C.C. No. 50/12 Page No. 50 of 53 contractor. The accused was caught red handed while accepting the bribe amount. Accused took the plea that currency notes were stuffed into his pocket. During trial complainant and panch witness did not support the prosecution case and it was argued before Hon'ble Court that it is not possible to draw any presumption against the delinquent public servant in the absence of direct evidence to show that the public servant demand bribe. The Hon'ble Court held as under: "It is true that there is no direct evidence in this case that the accused demanded and accepted the money. But the rest of the evidence and the circumstances are sufficient to establish that the accused had accepted the amount and that gives rise to a presumption under Section 20 of the Prevention of Corruption Act that he accepted the same as illegal gratification, particularly so, when the defence theory put forth is not accepted."
46. It is also useful to refer to the case of B. Noha V/s State of Kerela & Another 2006 VI AD ( Criminal ) 465 ( SC ) where it was C.C. No. 50/12 Page No. 51 of 53 held as under: "that when it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deducted from the facts and circumstances obtained in the particular case."
47. It was held in the case reported as State of AP Vs. Kommaraju Gopala Krishna Murthy 2000 (9) SCC 752, that when the amount is found to have passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification. That burden was not discharged by the accused herein.
48. In the present case, the accused has not given any justifiable explanation regarding the acceptance of certain amount from the complainant and therefore, I am of the considered view that the presumption as contemplated U/S 20 of the Prevention of Corruption Act,1988 could not be rebutted by the accused Dinesh Chand Sharma.
49. In view of the aforesaid discussion, I have no hesitation to safely conclude that the prosecution has successfully established its case as against the accused Dinesh Chand Sharma for the charged C.C. No. 50/12 Page No. 52 of 53 offence and therefore, the accused Dinesh Chand Sharma is held guilty and convicted for offence punishable U/S 7 and 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988.
50. Let accused Dinesh Chand Sharma be heard separately on the point of sentence.
Announced in the open court on this 29th day of August, 2014 (B.R. Kedia) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC,Delhi C.C. No. 50/12 Page No. 53 of 53