Delhi District Court
Cbi vs . 1 R P Mukherjee S/O Lt. Sh. A K Mukherjee, on 16 March, 2011
1
IN THE COURT OF V .K .MAHESHWARI
SPECIAL JUDGE: (P C Act)03 CBI DELHI
Corruption Case No.40/02
CBI Vs. 1 R P Mukherjee s/o Lt. Sh. A K Mukherjee,
r/o 42B, Pocket10, Kalkaji Extn. New Delhi
19, Permanent r/o Post Bolpur, School Bagan ,
Distt. Birbhum, West Bengal.
2 Ravi Kanth s/o W. Krishan Swami, r/o BIII/8
AAI (IAO) Residential Colony,
MenambakanoChennai600027
Permanent r/o c/o Sh. W Krishan Swami, Plot
No.29 Krishna Reddy Nagar Colony (KRN)
Bowenplally, Secunderabad (AP)
Date of Institution 18.10.2002
R.C No. 39(A)/01/CBI/ACB/N/D
Under Section U/s 7 &13(2) r/w 13(1)(d) of PC ACT 1988
Arguments concluded
on 5.3.2011
CC No.40/02 1/67
2
Date of order 15.3.2011
JUDGMENT:
FACTS OF THE CASE .
According to prosecution this case was registered on the written complaint dt. 23.5.2001 of S. Feroz Ahmed, partner in M/s Zamiruddin & Sons alleging that R P Mukherjee, Manager Engineering (Civil). A1 demanded a bribe of Rs.40,000/ for recording the remaining executed work entries in the Measurement Book (MB) from JE W. Ravi Kanth, who was maintaining the said MB pertaining to the work of external painting of Airport Terminal Building whose work contract had been awarded to M/s Zamiruddin & Sons. R P Mukherjee directed Feroz Ahmed that the bribe amount of Rs.40,000/ shall be paid in the breakup of Rs. 10,000/ each to R P Mukherjee and W. Ravi Kanth before making the said entries in the MB's and the balance to be paid in the similar breakup after the recording of such entries. Accused R P Mukherjee also threatened Feroz Ahmed that if money will not paid than the MB recordings will not be corrected. Accordingly, the case was registered and entrusted to Sh. Jayant Kashmiri, Inspector, CBI, ACB, Delhi.
CC No.40/02 2/67 3 2 A trap team was constituted consisting of two independent witnesses namely, S/Sh. Satyavir Singh UDC, Lab (H), DDA and Sh. D P Singh Sr. Stenographer, DDA besides CBI officers. The complainant produced 40 GC notes of Rs.500/ denomination each totaling Rs.20,000/ and the numbers of the same were recorded in Handing Over memo dt. 23.5.01. In the presence of both the independent witnesses the said GC notes were duly treated with Phenolphthalein Powder and a practical demonstration of its chemical reaction with colourless solution of Sodium Carbonate was given to the said witnesses and then the Phenolphthalein Powder treated GC notes were kept in the right hand side pant pocket of Feroz Ahmed in two bunches of Rs.10,000/ each. Sh. Satyavir Singh was directed to act as shadow witness and to accompany the complainant or to remain close to the complainant to over hear the conversation which may take place between the accused persons and the complainant Feroz Ahmed and watch the transaction. Shadow witness was also directed to give signal to the trap party by scratching his head with both the hands on completion of the transaction of bribe amount between the complainant and the accused persons. Complainant was directed to handover the bribe amount to the accused persons on their specific demand and not otherwise or on their specific direction to some other persons. Recording equipment a miccum CC No.40/02 3/67 4 transmittercum recorder alongwith the blank cassette and a Samsung digital SVR240 recorder was arranged to record the conversation which may take place between the complainant and the accused persons. Complainant and the witnesses were duly briefed about the working of the recording equipments and its usage to record the conversation on the spot. Feroz Ahmed was given the said recording equipments to record the conversation between him and the accused persons. All the members except the complainant mutually searched each other to ensure that they do not carry any incriminating documents/ articles. All these formalities were incorporated in Handing Over Memo dt. 23.5.2001. Thereafter CBI team including complainant Feroz Ahmed, two independent witnesses left CBI office at about 1530 hours for accused persons office and reached in the vicinity of said office i.e. office of Manager Engineering (Civil)I, Airport Authority of India, Terminal1 BDomestic Palam Airport, Delhi. 3 On reaching there the entry into the visitors lounge/ gallery was secured by way of purchasing visitors tickets for CBI team, complainant and independent witnesses. Thereafter CBI team members alongwith D P Singh witness took up suitable positions on the first floor in the vicinity of accused persons office. At about 1610 hrs complainant and shadow witness Sh. Satyavir Singh entered the office room of accused R P Mukherjee. CC No.40/02 4/67 5 There Feroz Ahmed met accused R P Mukherjee in his room and said him that he has brought the amount and now he should do his work. On this R P Mukherjee asked him how much he has brought. Feroz Ahmed replied that he has brought Rs.10,000/ and then handed over the said amount to R P Mukherjee. R P Mukherjee accepted the same, counted with both his hands and kept it in his right side pant pocket. Thereafter, Feroz Ahmed alongwith shadow witness went to the adjacent partitioned room of W. Ravi Kanth who demanded money from Feroz Ahmed through the gestures of his left hand and on this Feroz Ahmed handed over the another bunch of Rs. 10,000/ to W. Ravi Kanth who accepted the same and kept the same into his left side pant pocket. On completion of the transaction shadow witness Sh. Satyavir Singh at about 1620 hrs came out of the door of the said office and gave the pre appointed signal. On receipt of the signal waiting CBI team alongwith other witness Sh. D P Singh rushed into the said room and found accused R P Mukherjee and W. Ravi Kanth sitting on their respective seats. Accused W. Ravi Kanth was taken in adjoining partitioned chamber of accused R P Mukherjee by the CBI team members after disclosing the identity. Both Mukherjee and W. Ravi Kanth were challenged that they had demanded and accepted bribe amount of Rs. 10,000/ each from complainant. Accused persons on this turned pale and CC No.40/02 5/67 6 nervous. On further questioning R P Mukherjee pointed towards his right side pant pocket intimating that he had kept the bribe money in it and similarly R P Mukherjee pointed towards his right side pant pocket intimating that he had kept the bribe money of Rs.10,000/ in it. Shadow witness confirmed the demand of bribe by accused persons and acceptance of the same including putting the bribe amount by R P Mukherjee in his right side pant pocket and W. Ravi Kanth on his left side pant pocket. At this juncture receiver cumtransmitter was taken back from the complainant and audiocassette TDKD60 was rewound and played which showed disturbed recording. Likewise, the digital SVR240 Samsung Recorder was taken back from the complainant and when played it did not showed any recordings. The said cassette TDKD60 was taken into police possession and was sealed with CBI seal duly signed by independent witnesses. CFSL vide letter No. CFSL2002/P19 dt. 28.3.2002 opined that conversation contained in the cassette was not clearly discernible. 4 Thereafter washes of the left hand fingers, right hand fingers and inner lining of the right side pant pocket of R P Mukherjee were taken separately after preparing solutions of Sodium Carbonate each time and all these solutions turned pink in colour. These pink colour solutions were separately transferred to three different glass bottles which were taken into CC No.40/02 6/67 7 police possession duly sealed with a piece of cloth and CBI seal and were duly signed by the independent witnesses. The bottles were marked LHW, RHW & RPPW for left hand wash, right hand wash and right side pant pocket wash of R P Mukherjee respectively. Likewise, the washes of the left hand fingers and of inner lining of the left side pant pocket of W. Ravi Kanth were taken separately after preparing fresh solutions of Sodium Carbonate each time and all these solutions turned pink in colour. These pink colour solutions were separately transferred to three different glass bottles which were duly sealed with a piece of cloth and CBI seal and were duly signed by the independent witnesses. The bottles were marked LHW, RHW & RPPW for left hand wash, and left side pant pocket wash of W. Ravi Kanth respectively and were taken into police possession 5 Independent witness Sh. D P Singh recovered bribe amount first from right side pant pocket of R P Mukherjee and then from left side pant pocket of W. Ravi Kanth. Sh. D P Singh on both the above said occasions recovered Rs. 500/ denomination GC notes and reported after counting the same as Rs.10,000/ each. Both the witnesses Sh. D P Singh and Sh. Satyavir Singh compared the numbers of the recovered GC notes with these mentioned in the Handing Over Memo and reported that the recovered GC notes were tallying with those mentioned in the Handing CC No.40/02 7/67 8 Over Memo.
6 The sanction for prosecution of accused R P Mukherjee and W. Ravi Kanth was obtained from the competent authority. CHARGE 7 Copies required U/S 207 Cr P C supplied to accused. My Ld. Predecessor after hearing both the parties vide his order dt. 13.7.2004 had framed a charge against both the accused under sections 120B IPC r/w sections 7 &13 (1) ( d) r/w Sec. 13 (2) of the Prevention of Corruption Act, 1988 and for the substantive offences under sections 7 &13 (1) ( d) r/w Sec. 13 (2) of the Prevention of Corruption Act, 1988 . Both the accused pleaded not guilty to the charge and claimed trial. Hence, this trial. PROSECUTION EVIDENCE 8 In order to prove its case prosecution has examined following witnesses :
9 PW1 Sh. K Ramalingm has proved sanction order for the prosecution of accused R P Mukherjee which is Ex PW 1/A. He has also proved sanction order for the prosecution of accused W. Ravi Kanth which is Ex PW 1/B. 10 PW2 Sh. Feroze Ahmed has proved his complaint Ex PW 2/A, Handing Over memo Ex PW 2/B, recovery memo Ex PW 2/C, tender Ex CC No.40/02 8/67 9 PW 2/D,envelope Ex PW 2/D1, earnest money form Ex PW 2/E, its envelope Ex PW 2/E1, large envelope Ex PW 2/F, acceptance of his tender Ex PW 2/G, notice inviting tender Ex PW 2/H, insurance papers Ex PW 2/I, paint register Ex PW 2/J, running account bill Ex PW 2/K, application for purchase of tender Ex PW 2/L, Measurement Books Ex PW 2/M &Ex PW 2/N, order book Ex PW 2/O and also identified the case property i.e. currency notes Ex P1 toP40, wash bottles and cloth wrappers & cassette Ex P41 to P46.
11 PW3 Sh. K S Chabbra retired Senior Scientific Officer has proved his report Ex PW 3/A and forwarding letter sent by SP, CBI for chemical analysis Ex PW 3/B. 12 PW 4 Sh. D P Singh has proved documents already proved byPW2.
13 PW5 Sh. Satyavir Singh has proved personal search cum arrest memo Ex PW 5/A, arrest cum search memo Ex PW 5/B and other documents already proved byPW2.
14 PW 6 Sh. Balbir Singh has proved running bill, part rate statements, test check statements, check list, another second running bill, test check statement, secured advance check list, first running bill, test CC No.40/02 9/67 10 check statement, check list, provisional extension of time pertaining to M/s Zamiruddin & Sons Ex PW 6/A1 to Ex PW 6/A12 and also proved documents already proved by other witnesses.
15 PW 7 Shri K D Sharma has proved letter Ex PW 7/A, and also proved the documents already proved by other witnesses by identifying his signatures on the same.
16 PW 8 Inspector A V Bhardwaj has proved CFSL report regarding audio cassette Ex PW 8/A, application for seeking permission to investigate the present case Ex. PW 8/B, letter received from Asstt. General Manager Ex PW 8/C, letter dt. 8.1.2002 Ex PW 8/D, documents Ex PW 8/E, production cum seizure memo Ex PW 8/F, letter dt. 13.3.2002 Ex PW 8/G, D26 Ex PW 8/H, charge sheet Ex PW 8/I, statement of R K Joshi dt. 8.1.2002 Ex PW 8/J and also proved the documents already proved by other witnesses.
17 PW 9 Sh. D K Tanwar, Sr. Scientific Officer has proved the document already proved by PW8.
18 PW 10 Sh. Jayant Kashmiri Dy. S P CBI has proved FIR Ex PW 10/A, entry tickets Ex PW 10/B and other documents already proved by other witnesses.
19 PW11 Sh. R K Joshi has proved work order dt. 7.9.2000 Ex CC No.40/02 10/67 11 PW 11/A, copy of work order Ex PW 11/B, schedule of quantity annexed to the work order Ex PW 11/C, certified copy of attendance register of both the accused Ex PW 11/D and other documents already proved by other witnesses.
20 PW12 Sh. K L Soni has deposed orally.
21 PW13 Harish Mathur has proved the document already proved by PW6.
DEFENCE OF ACCUSED & DEFENCE EVIDENCE.
22 Statement of the accused persons U/s 313 Cr PC recorded wherein they have refuted the prosecution evidence produced against them and stated that they are innocent and they have been falsely implicated in this case.
23 Accused R P Mukherjee has stated that Measurements were recorded in the MBs correctly and checked by him and the Senior Manager, Incharge, in accordance with rules and bills were passed by the A/C Branch and complainant was paid according to his entitlement. He never complained to him or to any other senior officer. He did not visit him on 22.05.01. No demand of any kind was made by him. The complaint is false, fabricated and motivated. No proceedings, as stated above were conducted and Handing Over Memo is concocted. He was not even in his office and CC No.40/02 11/67 12 the complainant met at the ground floor of the building as he was proceeding for some other job. He shook hands with him. He did not make any enquiry about the alleged bribe money. He did not accept any money from the complainant. In any case, the Contractor was not entitled for any payment for 1405.33 sq. mtr. Area as it was below specifications and an entry in the MB could not have been made. The Technical Committee also confirmed this. He is innocent. He has been falsely implicated in this case, as he was strict and did not compromise the quality and quantity of work to be executed by the Contractor.
24 In his defence accused has examined DW 1 Parminder Singh Sidhu.
PROSECUTION ARGUMENTS 25 Ld. Sr PP argued that prosecution has produced complainant, shadow witness and recovery witness besides the TLO and IO and other witnesses. Complainant, has fully supported the case of prosecution, shadow witness and recovery witness have also corroborated his version on material particulars. TLO has proved various memos prepared by him and also corroborated the evidence given by other witnesses. IO has deposed about the investigation conducted by him. PW1 Sh. K Ramalingm, the then member (Planning), Airport Authority of India has proved the CC No.40/02 12/67 13 sanction for the prosecution of accused R P Mukherjee, the then working as Manager (Engineer) Ex PW 1/A and sanction for the prosecution of accused W. Ravi Kanth, the then working as Jr. Engineer (Civil) Airport Authority of India Ex PW 1/B, accorded by him . It is argued that prosecution has proved its case beyond reasonable doubts against both the accused, hence they may be convicted U/s 120 B IPC & U/s 7 & 13(2) r/w 13 (1) (d) of P C Act, 1988.
DEFENCE ARGUMENTS 26 As both the accused have filed their detailed written submissions which are on judicial file, accused No.1 filed written submissions running in 27 pages, accused No.2 has filed his written submissions running in 41 pages, hence on account of brevity the same are not being incorporated in this judgment.
27 Ld Defence counsel, in support of his arguments has placed reliance on the following authorities:
28 C S Krishnamurthy Vs State of Karnataka 2005 IVAD (SC) 14 ( para 12), 2011 1 AD (SC) 222, State of Himachal Pradesh Vs. Nishant Sareen, Chander Bhan Vs. State (CE1) 73 (1998) DLT 318, 2002 Crl.L.J. 2787 Subash Parbat Sonvane Vs. State of Gujrat, VI (2009) SLT 439 State of Maharashtra Vs. Dynaneshwar Laxman Rao Wankhede, (1976) 1 CC No.40/02 13/67 14 Supreme Court Cases 727 Sat Paul Vs. Delhi Administration, 2008 (1) RCR Criminal 266 State of Punjab Vs. Surjit Singh, Manu/SC/8711/2006 - Dalip and Anr. Vs. State of MP, Crl. A. 467/2002 High Court of Delhi, Subash Chand Chauhan Vs. CBI, (1975) 3 Supreme Court Cases 562 Jagir Singh Vs. The State, (1979) 4 Supreme Court Cases 725 Suraj Mal Vs. State of Delhi Administration, 1990 Crl. L.J. 600 Sadashiv Mahadeo Yaualuje & Gajanan Shripartrao Solakhe Vs. State of Maharashtra, Manu/SC/0121/1973 - Kali Ram Vs. State of HP, 1983 AIR 753 Bharwada Bhoginibhai Hirjibhai Vs. State of Gujrat.
29 Ld. Defence Counsel for accused No.2 has placed reliance on following authorities in support of his arguments:
(1975) 3 Supreme Court Cases 562 Jagir Singh Vs. The State, (1976) 1 Supreme Court Cases 727 Sat Paul Vs. Delhi Administration, AIR 1979 SC 1408 Suraj Mal Vs. State of Delhi Administration, M O Samsuddin Vs. State of Kerala (1995) 3 SCC 351, VI (2009) SLT 439 State of Maharashtra Vs. Dynaneshwar Laxman Rao Wankhede, 2002 (tough) JCC 881 Subash Parbat Sonvane Vs. State of Gujrat, Hazari Lal Vs. State AIR 1980 SC 873, 2008 (1) RCR Criminal 266 State of Punjab Vs. Surjit Singh,
30 I have carefully considered all the arguments raised before me and have gone through the record.
CC No.40/02 14/67 15 PUBLIC SERVANT AND SANCTION 31 U/s 7 of P C Act, 1988 prosecution has to prove that :
(i) The accused was a public servant or expected to be a public servant at the time when the offence was committed.
(ii) The accused accepted or obtained or agreed to accept or attempted to obtain illegal gratification from some person.
(iii) For himself or for any other person.
(iv) Such gratification was not a remuneration to which the accused was legally entitled.
(v) The accused accepted such gratification as a motive or reward for,
(a) doing or forbearing to do an official act, or
(b) doing or forbearing to show favour or disfavour to someone in the exercise of his official functions, or ( c) rendering or attempting to render any service or disservice to some one with the Central or any State Government or Parliament or the Legislature of any State, of with any local authority, Corporation or Government company referred to in Sec. 2 clause © or with any public servant, whether named or CC No.40/02 15/67 16 otherwise.
32 It is undisputed fact that at the relevant time R P Mukherjee, was working as Manager (Engineer) and accused W. Ravi Kanth, was working as Jr. Engineer (Civil) Airport Authority of India , thus they are public servants. Even this fact has not been disputed on behalf of both the accused during the trial and at the time of addressing final arguments by the Ld Defence counsels .
33 PW1 Sh K Ramalingam, Chairman, Airport Authority of India has stated that in July, 2002 he was working as Member (Planning) Airport Authority of India . A request was received from CBI for according sanction for the prosecution of accused R P Mukherjee who was working as Manager (Engineer) and accused W. Ravi Kanth who was working as Jr. Engineer (Civil) Airport Authority of India. He has also received copy of complaint, FIR, statement of witnesses memo prepared and documents collected during the investigation. After going through the record and applying his mind thereto he accorded the sanction for the prosecution of accused R P Mukherjee and W. Ravi Kanth under his signatures which are Ex PW 1/A and Ex PW 1/B respectively. As Member (Planning) Airport Authority of India he was competent to remove both the accused from their posts/office.
CC No.40/02 16/67 17 34 In his cross examination he had admitted that a draft sanction order was also there. However, he has denied the suggestion that he had signed the draft sanction order sent by CBI as it is without applying his mind. He has stated that he had called staff from his Personal and Vigilance Department and discussed the matter and made the corrections and accorded the sanction.
35 I have carefully gone through the sanction orders Ex PW1/A & Ex PW 1/B running in four sheets each. it is a detailed order having all the relevant material particulars of this case. A bare perusal of this order reflects that sanctioning authority has passed this order after due application of his mind.
36 Hon'ble Supreme Court has held that where the sanction order itself is a speaking order in such circumstances it is not necessary to prove it by leading evidence that sanctioning authority has applied his due mind. Reliance is placed on C S Krishnamurthy Vs. State of Karnataka 2005 IV AD (S.C.) 141 wherein in para No.9 it is observed as follows:
"Therefore, the ratio is sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself then the CC No.40/02 17/67 18 satisfaction of the sanctioning authority is apparent by reading the order. In the present case, the sanction order speaks for itself that the incumbent has to account for the assets disproportionate to his known source of income.
That is contained in the sanction order itself. More so, as pointed out, the sanctioning authority has come in the witness box as witness No.40 and has deposed about his application of mind and after going through the reports of the Superintendent of Police, CBI and after discussing the matter with his legal department, he accorded sanction. It is not a case that the sanction is lacking in the present case. The view taken by the Additional Sessions Judge is not correct and the view taken by learned Single Judge of the High Court is justified."
37 Granting of sanction is an administrative function, in this regard, Hon'ble Supreme Court in Superintendent of police (CBI) Vs. Deepak Chaudhary - 1995 SCC (Crl.) 1095 has held as follows:
''We find force in the contention. The grant of sanction is only an administrative function, though it is true that the accused may be saddled with the liability to be prosecuted in a court of law. What is material at that time is that the necessary facts collected during investigation constituting the offence have to be placed before the sanctioning authority and it has to consider the material. Primafacie, the authority is required to reach the satisfaction that the relevant facts would constitute the offence and then CC No.40/02 18/67 19 either grant or refused to grant sanction. The grant of sanction, therefore, being administrative act the need to prove an opportunity of hearing to the accused before according sanction does not arise. The High Court, therefore, was clearly in error in holding that the order of sanction is vitiated by violation of the principles of natural justice.''
38 In a latest judgment titled State of MP Vs. Jiya Lal 2010 II AD (SC) 343, Hon'ble Supreme Court has held as follows:
"Prevention of Corruption Act, 1988 - Sec. 7 ad 13 (1) (d) (2), 19 (3) (a) - Sanction order had not been obtained properly - Non application of mind by the District Magistrate - District Magistrate who passed the order had not been subsequently examined as a witness by the prosecution in order to prove the same - Held - No serious failure of justice had been caused to the respondent - Note justified to held that the District Magistrate who had passed the sanction order should have been subsequently examined as a witness by the prosecution in order to prove the same - Sanction order was passed in discharge of routine official functions and in a bonafide manner -
Genuineness or validity of the sanction order before the special judge can be questioned - Appeal filed by the respondent before the High CC No.40/02 19/67 20 Court be considered on merits and disposed off."
39 When the competent authority who had granted sanction for the prosecution of accused specifically deposed that he had accorded sanction after applying his mind, in such circumstances merely receiving of a draft sanction order does not mean that sanction was granted without applying mind in a mechanical manner. In this case sanctioning authority has admitted that a draft sanction order was received alongwith the request for according sanction, it proves his genuineness that he is so fair and truthful to admit the fact of receiving a draft sanction order alongwith the request.
40 Hon'ble Supreme Court in this regard in State of Tamil Nadu Vs. Damodaran, 1993 Supreme Court Cases (Crl) 272 has held as follows:
"Prevention of Corruption Act, 147 - Ss. 5 (1) (e) and 5 (2) read with S. 161, IPC - Non application of mind and grant of sanction mechanically by sanctioning authority - Basis of acquittal by High Court - High Court deeply influenced in its decision by the fact that a model sanction order was enclosed with the record sent to the sanctioning authority - Held, acquittal not justified - There was no infirmity in the order granting sanction - Criminal Procedure Code, 1973 S. 197".CC No.40/02 20/67 21
41 Hon'ble Supreme Court in Indu Bhushan Chatterjee vs. State of West Bengal, AIR 1958 SC page 148 has held as follows :
" In his evidence in Court the Sanctioning Authority stated that the sanction was prepared by the police and put before him by the personnel branch of his office and that before according sanction we went through all the relevant papers put before him. The sanction granted U/S 6 was perfectly valid. The statement of the sanctioning authority did not prove that he merely put his signatures on the readymade sanction presented by the police without applying his mind to the facts of the case. It was not for him to judge the truth of the allegations made against the accused by calling for the record of the connected claim cases or other records in connection with the matter from his office . The paper which were placed before him apparently gave him the necessary material upon which he decided that it was necessary in the hands of justice to accord his sanction."
42 In view of above discussion, this Court is of opinion that prosecution has proved valid sanction for the prosecution of both the accused in this case.
DEMAND ACCEPTANCE AND RECOVERY.
43 Complainant Firoz Ahmed has proved his complaint Ex PW 2/A addressed to SP, CBI, New Delhi. It is specifically stated in the CC No.40/02 21/67 22 complaint that on 22.4.2001 he met JE W. Ravi Kanth with regard to less recording of his work in measurement book who had asked him to meet R P Mukherjee, Manager (Engineer), hence he had also met R P Mukherjee with regard to his problem. R P Mukherjee has told him that he will get the remaining measurement entered in the MB for which he (complainant) will have to pay Rs.40,000/ to them, i.e. Rs.20,000/ each to him and W. Ravi Kanth, out of which Rs.10,000/ each had to be paid prior to entering the measurement in MB and remaining amount of Rs.10,000/ each have to be made after the entries were made in the MB. Complainant has further stated in his complaint that since he was not willing to pay the bribe hence he has made this complaint to SP, ACB, CBI.
44 Complainant has fully corroborated the version given by him in his complaint Ex PW 2/A Relevant portion of his statement as PW2:
..... "I again requested Mr. Mukherjee. He told me that he will get the correct measurements entered in the measurement book, but he will charge Rs.40,000/ for entering the correct measurements. Both the accused told that I will have to pay this amount of R. 10,000/ to each of the accused in advance and Rs.10,000/ to each of the accused after the measurement is entered in the book. I did not want to give such payment of bribe. On 23.5.01 I lodged a complaint in CBI, ACB, New Delhi. I have seen my complaint Ex PW 2/A. It is written in the handwriting of my brother and is signed by me on each page at point A."......CC No.40/02 22/67 23
45 Complainant has deposed about the specific demand of bribe made by both the accused. In this regard relevant portion of his statement is as under:
......... "When we reached the office of Mr. Mukherjee, he asked me if I have brought the money. I told him that I have brought the money. He then asked how much money I have brought and i told him that I have brought Rs.10,000/. I took out the money i.e. Rs.10,000/. He counted the money, and kept the money in the right side pocket of the pant. I asked him about the measurement and he told me that it will be done. I then went to the cabin of Ravi Kant. He was sitting on a chair. He asked me to give the money. I took out the money and gave it to Ravi Kant, which was Rs. 10,000/. He took the money in his left hand and kept it in the left side pocket of the pant. The witness who was with me immediately gave some signal. CBI trap team came in. They caught hold of both the hands of Ravi Kant. I then took them to the adjacent cabin of Mr. Mukherjee and pointed out to Mukherjee and told the CBI that I had given him the money. They caught hold of Mr. Mukherjee from his hands. CBI asked the accused persons about the money and both the accused told the CBI that money was in their pockets. Both the hands of Mr. Mukherjee was got washed. The solutions turned pink. It was transferred into bottles. The bottles were marked showing separately the right hand wash and left hand wash. The bottles were sealed. They were signed by all the witnesses. The left hand of Ravi Kant was got washed. That solution also turned pink. It was transferred into a bottle which was sealed. It was signed by the witnesses.
Thereafter the witness who was with the trap team, took out the money from the pocket of R P Mukherjee and Ravi Kant. Their pants were taken off and their pockets were got washed. Those solutions turned pink. Those solutions were also sealed and witnesses signed on the bottles. The numbers of the currency notes were checked. The proceedings conducted at the spot were recorded. Recovery memo Ex PW 2/C bears my signature at CC No.40/02 23/67 24 point A on each page.".....
46 In his cross examination this witness has stated as follows:
......... "When I entered in the cabin of Ravi Kant o the day of raid he had demanded money from me orally saying "Paise Laye Hoo" I told him "HAA Laya Hoo" Thereafter Ravi Kat asked me "Paise Dai Dee Jiya" at that time shadow witness was standing at the gate of the cabin. The gate was about three feet away from the seat of accused Ravi Kant. Accused had counted the money from his both hands after taking from me. After the exchange of money shadow witness has gone out and thereafter raiding party reached on the spot. At that time I remained standing with the Ravi Kant. I identified Ravi Kant to TLO to whom I had paid money. Money was recovered from Ravi Kant by the other independent witness who had accompanied us with the raiding party. First the wash of the pant of Ravi Kant was taken after taking it off but I do not remember whether it was sealed in my presence or not. As there was lot of noise on the spot hence the conversation between me and accused Ravi Kant could not be recorded. I do not know whether that loud sound was recorded in the recording devise or not. I had not told the exact wording to the TLO as I had told today in my cross examination above. I do not remember when my statement was recorded by CBI. I cannot say whether my statement was recorded on the day of raid or not. Money was recovered from the accused, his wash was taken and measurement books were also taken in possess at that time. I do not remember where the recording devise was played by the CBI after raid was over.
Both the powder treated bundles of money were kept in my right side pant pocket by the CBI. Hand wash of Ravi Kant was taken only after the payment of money to him when he was apprehended by CBI."......
.......... "It is wrong to suggest that when we reached Airport CC No.40/02 24/67 25 Authority office on 23.5.01 Mr. R P Mukherjee was not in his cabin. Now I do not remember whether accused R P Mukherjee had met me in the staircase while I was entering as he was going out but certainly he met me inside his office. I do not remember the name of my Engineer who had made measurements. Vol. as we engage different Engineers from time to time for measurement purposes. Before 23.5.01 I never visited the office of CBI. Besides Rs. 20,000/ only a tape recorder was kept by the CBI in my pocket. It was kept in the pocket of my shirt. It is wrong to suggest that accused R P Mukherjee never made any demand to me. It is wrong to suggest that no proceedings in respect of accused R P Mukherjee was done by CBI in my presence it is further wrong to suggest that no money was accepted or recovered from accused R P Mukherjee.".....
47 PW4 D P Singh who had recovered the tainted amount from the pockets of accused has stated as follows:
"Satbir Singh had told in front of all that accused R P Mukherjee after receiving the money kept in right pocket and therefore I was directed to recover the money from right side pant pocket of the accused. The recovered money was of Rs.500/ denominations. The numbers of the recovered notes were tallied with the handing over memo and found to be the same as mentioned in Handing Over Memo. Accused Ravi Kant was brought to the chamber of accused R P Mukherjee by CBI officials, he was apprehended at that time by wrist of his hands by CBI officials. On questioning by CBI Officials accused Ravi Kant informed that he has kept the bribe amount in his left side pant pocket. Thereafter, on direction of CBI officials I recovered Rs. 10,000/ consisting of GC notes of Rs. 500/ denominations from the left side pant pocket of accused Ravi Kant. The distinctive numbers of these recovered GC notes were compared with the numbers mentioned in Handing Over Memo by myself and Satbir CC No.40/02 25/67 26 and they were found to be tallying."
48 PW5 Satyavir Singh, who had accompanied complainant as shadow witness has also corroborated the version given by complainant. Relevant portion of his statement in this regard, is as under:
"After coming out of the room of Ravi Kant I gave signal to CBI team. The CBI team reached the spot immediately and went inside the room of accused R P Mukherjee. I identify accused R P Mukherjee and Ravi Kant who are present in the court. The trap team disclosed their identity to accused R P Mukherjee . The CbI offier enquired from accused R P Mukherjee if he had accepted the bribe which was denied by accused R P Mukherjee . Complainant informed that bribe money had been kept by accused R P Mukherjee in the pocket of his pant. My colleague D P Singh took the search of the pocket and recovered the bribe money which on counting by D P Singh was found to be Rs.10,000/.".........
....... "The GC notes were tallied with the numbers as mentioned in the Handing Over Memo Ex PW 2/B and were found to be tallied with the same. Wash of the inner lining of the pocket of pant of accused R P Mukherjee was taken in colourless solution which turned pink. Wash of the had of accused R P Mukherjee was also taken which had turned pink. However, I cannot say if it was the right hand wash or left hand wash. I have seen the bottle with marking RHW Ex P41 which was sealed at the spot. It bears my initials at point B. I have seen the glass bottle Ex P42 with the mark RPPW also bears my initials at point B. There bottles were sealed at the spot." ..........
......... "Accused Ravi Kant was also brought in the room of accused R P Mukherjee . Witness D P Singh was asked to recover the bribe money from the pocket of accused Ravi Kant. An amount of Rs.10,000/ was recovered from the pocket of coat of accused Ravi Kant . The number CC No.40/02 26/67 27 of GC notes were tallied with the Handing Over Memo which were found to be the same. On taking wash of the had the colourless solution had turned pink."........
............ "After reaching the spot I alongwith complainant went inside the room of accused R P Mukherjee. Complainant talked to accused R P Mukherjee who demanded bribe amount of Rs. 10,000/. Thereupon complainant handed over bribe amount of Rs. 10,000/ to R P Mukherjee who counted the same with both of his hands and kept the same in his right side pant pocket. Thereafter we went to the chamber of accused Ravi Kant who also demanded and accepted the bribe amount of Rs.10,000/ from his left hand and kept the same in his left side pant pocket. Thereafter I went outside to give preappointed signal. Whereupon CBI officials rushed towards the room and found that R P Mukherjee and Ravi Kant were present there and disclosed their identities and challenged the accused persons that they both have demanded and accepted bribe amount of Rs. 10,000/ each. Both the accused became nervous and pale. On further questioning by CBI officers accused R P Mukherjee pointed towards his right side pant pocket where he kept the bribe amount. Similarly, upon questioning accused Ravi Kant pointed towards his left side pant pocket intimating at the bribe amount of Rs. 10,000/ was kept by him after acceptance of bribe amount.".......
49 From the above discussion demand of bribe, money by both the accused, its acceptance and recovery of the same from the conscious possession of accused is proved on the judicial file. 50 Recovery of tainted GC notes has also been proved from the hand washes of both the accused and that of their pant pocket washes. In this regard relevant portion of statement of PW2 is as under: CC No.40/02 27/67 28
" Both the hands of Mr. Mukherjee was got washed. The solutions turned pink. It was transferred into bottles. The bottles were marked showing separately the right hand wash and left hand wash. The bottles were sealed. They were signed by all the witnesses. The left hand of Ravi Kant was got washed. That solution also turned pink. It was transferred into a bottle which was sealed. It was signed by the witnesses."
51 In this regard PW4 D P Singh has deposed as follows:
"Thereafter the witness who was with the trap team, took out the money from the pocket of R P Mukherjee and Ravi Kant. Their pants were taken off and their pockets were got washed. Those solutions turned pink. Those solutions were also sealed and witnesses signed on the bottles. The numbers of the currency notes were checked. The proceedings conducted at the spot were recorded. Recovery memo Ex PW 2/C bears my signature at point A on each page. Thereafter, right hand of accused R P Mukherjee was washed. One chemical was added in a glass of water. The colour of the solution at that time was colourless thereafter fingers of right hand of accused R P Mukherjee was washed into it. On doing so it turned pink. I do not remember what was done with this pink colour solution. Perhaps this solution was kept in a bottle. Accused R P Mukherjee was directed to remove his pant worn by him and inner lining of the right side pant pocket was washed in a similar manner and on doing so colour of the solution perhaps turned pink or dark pink."
52 In this regard PW4 D P Singh has deposed as follows:
"Left hand of accused Ravi Kant was also washed in a colourless solution. On doing so the colour of the solution turned pink which was preserved in a bottle. Thereafter, inner lining of the left side pant pocket of accused Ravi Kant was washed in a colourless solution . On doing so it also CC No.40/02 28/67 29 turned pink and was similarly preserved in a bottle."
53 Relevant portion of statement of PW5 Satyavir is as follows:
"Wash of the inner lining of the pocket of pant of accused R P Mukherjee was taken in colourless solution which turned pink. Wash of the had of accused R P Mukherjee was also taken which had turned pink. However, I cannot say if it was the right hand wash or left hand wash. I have seen the bottle with marking RHW Ex P41 which was sealed at the spot. It bears my initials at point B. I have seen the glass bottle Ex P42 with the mark RPPW also bears my initials at point B. There bottles were sealed at the spot."
54 PW10 Jayant Kashimir, in this regard, has stated as follows:
....."Both the accused were caught hold by their wrist. The wrist of accused R P Mukherjee was free and colourless solution of sodium carbonate was prepared separately and both the hand washes of accused accused R P Mukherjee were taken separately. Upon doing so the colour of the solution turned pink. The pink colour solution was transferred in neat and clean water the same was sealed with the cloth wrapper and the CBI Seal, paper slip was pasted on both the bottles marked as RHW and LHW (denoting right hand wash and left hand wash of accused R P Mukherjee ), and the same was signed by both the independent witnesses."....
.......... "Accused R P Mukherjee was asked to take out his pant. The wash of inner lining of right side pant pocket of the accused was taken. Upon doing so the colour of the solution turned pink. The pink colour solution was transferred in neat and clean water the same was sealed with the cloth wrapper and the CBI seal, paper slip was pasted and the same was marked as RPPW and the same was signed by both the independent witnesses. The inner lining of the right side pant pocket was signed by both the independent witnesses. Thereafter left had wash of accused Ravi Kant CC No.40/02 29/67 30 was taken in a separately prepared colourless solution, colour of the solution turned pink. The same was transferred in neat and clean glass bottles. Paper slip was pasted on both the bottles marked as LHW (denoting left hand wash) and the same was signed by both the independent witnesses.".....
....... "Accused Ravi Kant was asked to take out his pant. The wash of inner lining of left side pant pocket of the accused was taken. Upon doing so the colour of the solution turned pink. The pink colour solution was transferred in neat and clean water the same was sealed with the cloth wrapper and the CBI seal, paper slip was pasted and the same was marked as LPPW and the same was signed by both the independent witnesses. The inner lining of the left side pant pocket was signed by both the independent witnesses."...
55 PW 3 Sh. K S Chhabra Sr. Scientific Officer, CFSL had chemically examined all these washes. He has confirmed presence of Sodium Carbonate and Phenolphthalein in all these washes except the left hand wash of accused R P Mukherjee marked LHW. He has specifically deposed that on chemical analysis the exhibits LHW of R P Mukherjee gave negative test for Phenolphthalein and positive test for Sodium Carbonate . He has proved his chemical analysis report Ex PW 3/A. 56 It proves the presence of phenolphthalein powder on both the hands of accused W. Ravi Kanth and on the right hand of accused R P Mukherjee as well as in the right pant pockets of accused R P Mukherjee CC No.40/02 30/67 31 and left pant pocket of accused W. Ravi Kanth. Phenolphthalein powder appeared on the hands of both the accused and in the pant pockets of both the accused because they had received the phenolphthalein quoted GC notes from complainant and kept the same in their respective pant pockets. 57 The importance of phenolphthalein test was underline by the Hon'ble Supreme Court in Som Parkash Vs State of Delhi AIR 1974 Supreme Court 989, where in para 10 it is held as under:
" ............... of course, the oral evidence of PWs 1and 4 by itself, if believed as rightly believed by the High Court , proves the passing of the money to the accused and its production by him when challenged by P.W 7 . The fact is indisputable that the hands, the handkerchief and the inner lining of the trouser pocket of the accused turned violet when dipped in soda ash solution. From this the State counsel argues that on no hypothesis except that the notes emerged from the accused's Pocket or possession can the triple colour change be accounted for . The evidence furnished by inorganic chemistry often outwits the technology of corrupt officials, provided no alternative reasonable possibility is made out. The appellant offers a plausible theory. PW 1 kept the notes with him and his hands thus carried the powder. He gave a bottle of cake to the accused and the bottle thus transmitted particles of phenolphthalein to the latter's hands. He ( the accused ) wiped his face with the handkerchief and put it into his trouser pocket thus contaminating the lining with the guilty substance. Moreover, the inner lining was dipped by PW 7 with his hands which had the powder . Thus, all the three items stand explained, according CC No.40/02 31/67 32 to him. These recondite possibilities and likely freaks have been rejected by both the courts and we are hardly persuaded into hostility to that finding. It is put meet that science oriented detection of crime is made a massive programme of police work, for in our technological age nothing more primitive can be conceived of than denying the discoveries of the sciences as aids to crime suppression and nothing cruder can retard forensic efficiency then swearing by traditional oral evidence only thereby discouraging the liberal use of scientific research to prove guilt."
58 In Raghbir Singh Vs State of Punjab (1976) 1 SCC 145 while discarding the oral and documentary evidence laid on behalf of the prosecution is not such as to inspire confidence in the mind of the Court, the Supreme Court observed in para No.11 as follows: " We may take this opportunity of pointing out that it would be desirable if in cases of this kind where a trap is laid for a public servant, the marked current notes, which are used for the purpose of trap, are treated with phenolphthalein power so that the handling of such marked currency notes by the public servant can be detected by chemical process and the court does not have to depend on oral evidence which is something of a dubious character for the purpose of deciding the fate of the public servant."
59 From the above discussion, it is again proved that accused CC No.40/02 32/67 33 had voluntarily and consciously accepted the bribed money from complainant which they had kept in their respective pant pockets and the same was recovered from their conscious possession. 60 When it is proved that there was voluntary and conscious acceptance of the money by the accused, there is no further burden cast on the prosecution to prove by direct evidence the demand or motive, in view of Section 20 of PC Act, 1988. It has been held so by our Hon'ble Supreme Court in B. Noha Vs. state of Kerala, 2006 IV AD 465.
61 Our Hon'ble Supreme Court in State of Andhra Pradesh Vs. R Jeevaratnam, 2004 (2) JCC 1161 has held as follows in this regard:
"Prevention of Corruption Act, 1988 - Sec. 20 (1) Presumption under - Respondent caught redhanded with the marked money in a briefcase carried by him - Presumption that he accepted illegal gratification arose".
62 Hon'ble Supreme Court in Madhukar Bhaskarrao Josi Vs. State of Maharashtra (2000 (8) SCC 571) has held as follows in this regard:
"The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once CC No.40/02 33/67 34 the said premise is established the inference to be drawn is that the said gratification was accepted 'as motive or reward' for doing or forbearing to do any official act. So the word 'gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premises that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like 'gratification or any valuable thing'. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word 'gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it".
63 This decision was followed by Hon'ble Supreme Court in M. Narsinga Rao Vs. State of A.P. (2001 (1) SCCC 691). wherein it has been held that " There is no case of the accused that the said amount was received by him as the amount which he was legally entitled to receive or collect from PW1. It was held in the decision in State of A P Vs. Kommaraju Gopala Krishna Murthy (2000 (9) SCC 752), that when amount is found to have been 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."
64 It is argued on behalf of accused R P Mukherjee that his left hand wash has given negative test for the presence of Phenolphthalein CC No.40/02 34/67 35 powder. It is argued that it was not possible for him to count the GC notes by right hand alone without using the left hand. It is not impossible to count the notes with right hand alone. None of the accused has given any explanation as to how Phenolphthalein Powder has appeared on their respective hands and in their respective pant pockets. LEGAL AND FACTUAL ANALYSIS OF DEFENCE ARGUMENTS:
65 It is argued on behalf of both the accused that complainant had quoted an abnormally low rate for the work as such he was finding it difficult to execute the work according to contract hence started looking for excuses to wriggle out of the contract. Complainant had not completed his work. Actually nothing was due towards him, rather recovery has to be made from him with regard to non performance of his part of contract. It is argued on behalf of R P Mukherjee that it was not his job to record the measurements of the work done by the complainant, hence there was no occasion for him to demand any bribe.
66 To constitute an offence under this Section it is enough if the public servant who accepts the gratification takes it by inducing a belief or by holding out that he would render assistance to the giver, " with any other public servant" and the giver, gives the gratification under that belief. It is not the requirement of law that public servant who has accepted money CC No.40/02 35/67 36 must be in position to do the official act, favour or service at the time of demand or receipt of illegal gratification.
67 Hon'ble High Court of Madras in P. Sabbaraj Vs The State 1995 CRI L J 3440 in this regard has held as follows :
" Prevention of Corruption Act (2 of 1947), S. 5(1) (d) - Bribery Proof - Acts of accused, a public servant is taking illegal gratification from complainant for securing him job in some other department - Falls under the mischief of Section 5(1) (d) and Section 161, Penal Code Such acts of accused need not be proved to be done in discharge of his official duties."
68 Hon'ble High Court of Bombay in Indur Dayadas Advani Vs The State of Bombay in this regard has held as follows :
" The section does not require that the public servant must himself have the power or must himself be in a position to perform the act or show favour or disfavor for doing or showing which the bribe has been paid to him . From the last explanation to this section it is clear that it is not necessary in order to constitute an offence under Section 161 that they act for doing which the bribe is given should actually be performed. It is sufficient if a represention is made that it has been or that it will be performed and a public servant, who obtains a bribe by making such representation will be guilty of the offence punishable under this Section, even if he had or has no intention to perform and has not performed or does not actually performed that act. A presentation by a person that he has done or that he will do an act impliedly includes a representation that it was or is within his power to do that act."CC No.40/02 36/67 37
69 Hon'ble Supreme Court in Shiv Raj Singh Vs Delhi Administration AIR 1968 SC 1419 in this regard has held as follows :
" When a public servant is charged u/s 161 Penal Code and it is alleged that the illegal gratification was taken by him for doing or procuring an official act, it not necessary for the Court to consider whether or not the accused public servant was capable of doing or intended to such an act. Thus although the concealment of the birth of an illegitimate child is not an offence under the Penal code or any other criminal statue, if a public servant obtains money from anybody on that ground he is guilty of grossly abusing his position as a public servant within the meaning of Section 5 (I)
(d) of the P C Act and thereby obtain for himself a valuable thing or pecuniary advantage and he can be charge under this section."
70 Hon'ble Supreme Court in Chaturdas Bhagwandas Patel Vs The State of Gujrat (1976) SCC46 this regard has held as follows :
" Section 161 does not require that public servant must, infact , be in a position to do the official act, favour or service at the time of demand or receipt of gratification . To constitute an offence under this section it is enough if the public servant who accept the gratification, takes it by inducing a belief or by holding out that he would render assistance to the giver " with any other public servant "CC No.40/02 37/67 38
and the giver gives the gratification under that belief. It is further immaterial if the public servant receiving the gratification does not intend to do the official act, favour or forbearances which he holds himself out as capable of doing .This is clear by the last explanation appended to section 161 and illustration"
71 As accused No.1 himself was not competent to record the measurement that is why he has involved accused W. Ravi Kanth who being the JE was competent to record measurement in MB, thus circumstantial evidence also shows his involvement in this case.
72 It is argued on behalf of both the accused that both the independent witnesses D P Singh and Satyavir have not supported the case of prosecution fully. They have been declared hostile on the request of prosecution. It is argued that both the accused have been falsely implicated in this case by CBI. Ld. Sr. PP argued that both these witnesses have supported the case of prosecution on material particulars hence their evidence cannot be rejected merely because they were declared hostile. Ld. Sr.PP further argued that PW10 TLO Jayant Kashmiri has fully corroborated the case of prosecution. Accused can be convicted even on the statement of TLO alone.
73 Both the independent witnesses have not corroborated the version of prosecution in full particulars, however they have corroborated CC No.40/02 38/67 39 the version of prosecution on material points. It is correct that both the witnesses have been declared hostile on the request of prosecution.
74 Now it well settled proposition of law that evidence of a hostile witness cannot be rejected merely on the ground that he has been declare hostile . The portion of evidence of hostile witness which is found correct and reliable can be relied upon . In this regard, Hon'ble Supreme Court in Keshoram Bora Vs The State of Assam cited in AIR 1978 SUPREME COURT 1096 has held as follows:
" It is now well settled that the principle falsus in una falsus in omnibus does not apply to criminal trials and it is the duty of the Court to disengage the truth from falsehood, to sift the grain from the chaff instead of taking an easy course of rejecting the prosecution case in its entirety merely on the basis of a few infirmities.
75 Hon'ble Supreme Court in Krishna Mochi Vs State of Bihar (2002) 6 Supreme Court Cases 81 in this regard has held has follows:
" Even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other coaccused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the court to convict an accrued notwithstanding the CC No.40/02 39/67 40 fact that evidence has been found to deficient to prove the guilt of other accused person.
76 Our Hon'ble Supreme Court in State of U.P Vs Anil Singh has observed as follows:
"It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also preside to see that a guilty man does not escape. One is as important as the other. But are public duties which the judge has to perform.
77 In the case of State of W.B. Vs Orilal Jaswal it was held that justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice, according to law . In the case of Mohan Singh Vs State of M.P it was held that Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remain, the CC No.40/02 40/67 41 criminals are clothed with the protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicious are created. It is the onerous duty of the Court, within permissible limit to find out the truth . It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should be get scotfree. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused.
78 Our Hon'ble Supreme Court in Krishna Mochi & Ors vs State of Bihar (2002) 6 Supreme Court Cases 81 has held as follows:
"It is a matter of common experience that in recent times there has been a sharp decline of ethical values in public life even in developed countries much less a developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to deposed against an accused because of threats to their life, more so when the offenders are habitual criminals or high ups in the Government or to close to powers, which may be political, economic or other powers including muscle power.
Thus, in a criminal trial a Prosecutor is faced with so many odds. The court while appreciating the evidence should not lose sight of these realities CC No.40/02 41/67 42 of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent time the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same. These days when when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim " Let hundred guilty persons be acquitted, but not a single innocent be convicted " is, in practice, changing the world over and Courts have been compelled to accept that "
society suffers by wrong convictions and is equally suffers by wrong acquittals". I find that this Court in recent times has conscientiously taken notice of these facts from time to time."
79 Independent witness DP Singh and Satyavir are public servants who were working in DDA. D P Singh was shadow witness and Satyavir was recovery witness. They have partly supported the case of prosecution and nothing such has come out in their cross examination conducted by Ld Defence counsel that they were under the pressure of CBI or have any enmity or motive to falsely depose against accused . They were directed by their senior officers to join the investigation of CBI in this case, hence they cannot be termed as witness of the choice of CBI. They were neither knowing the complainant nor the accused persons prior to this case. They have no affinity with the complainant and no enmity with both the accused. In these circumstances, no motive can be imputed to them to depose falsely against both the accused.
CC No.40/02 42/67 43 80 According to accused they have been falsely implicated in this case by CBI at the instance of complainant . CBI is the Prime Investigating Agency of this country. Firoz Ahmed, complainant in this case is a small contractor, who is facing difficulty even in getting recorded correctly the entries of work done by him in the measurement book, how can he be in the position to influence the CBI. In any manner he is not such a personality so as to influence a prime investigating agency like CBI. There is no reason to believe that CBI would falsely implicate the accused persons at the instance of complainant.
81 TLO Inspector Jayant Kashmiri is a public servant unknown to accused persons and complainant prior to this case, there is no reason why he will depose falsely against accused persons. He was not alone in the trap team. There were many other CBI officers in the trap team who were also public servants. All the CBI officers were unknown to complainant. There is no reason why the TLO and other trap team members who were also public servants will falsely implicate the public servants in this case. No enmity/ ill will has been alleged against the TLO even by any of the accused, therefore he was having no motive to falsely implicate them in CC No.40/02 43/67 44 this case. In these circumstances the argument that accused persons were falsely implicated, at the instance of complainant does not even appeal to common sense.
82 The law is that even if the complainant and independent witness have turned hostile, conviction can be made on the solitary statement of the trap officer without corroboration if it inspire confidence. Reference is placed on case on Hazari Lal Vs State ( Delhi Admn) AIR 1980 Supreme Court 873. In that case the allegations against the accused who was a police officer was that he demanded bribe from the complainant for release of his scooter rickshaw which was seized by the police. The trap was laid and the accused was caught red handed. However during the trial complainant turned hostile and deposed that when he went to the police station on first occasion to obtain delivery of his scooter rickshaw it was not the accused that was present but one Hawaldar was present and it was not the accused but that Hawaldar who demanded bribe of Rs.60/ from him and when he went to the police station along with panch witness he found accused there and asked him to take a sum of Rs.60/ and return the scooter rickshaw. He stretched his hand with the money towards the pocket of accused's trouser but accused said the money might be paid to the person CC No.40/02 44/67 45 for whom it was meant for. He refused to receive the money and jerked complainant's hand with his hand as a result of which the notes came to be flung across the wall into neighboring room. He deposed that accused neither demanded the amount from accepted the amount. The panch witness who went along with the complainant could not be examined as he became insane and other panch witness turned hostile. The conviction was based on the statement of the trap officer and the Hon'ble Supreme Court held as under: " We are not prepared to accept the submission of Shri Frank Authony that he is the very Police Officer who laid the trap should be sufficient for us to insist upon corroboration. We do wish to say that there is not rule of prudence which has crystallized into a rule of law, nor indeed any rule of prudence , which requires that the evidence of such officer should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration . In facts and circumstances, of a particular case a Court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally, in the facts and circumstances of another case,the Court may unhesitatingly accept the evidence of such an officer." 83 The Hon'ble Supreme Court in case of State of UP Vs Zakaullah AIR 1998 SC 1474 held " that the evidence of trap officer can be relied upon even without corroboration if it inspire confidence." CC No.40/02 45/67 46 84 Testimony of CBI Officer cannot be rejected merely because he happened to be a police officer. It is observed by the Hon'ble Supreme Court in Tahir Vs State ( 1996) 3 SCC 399, no infirmity attaches to the testimony of police officials merely because they belong to the police force. It was observed in Aner Raja Khim Vs The State of Saurashtra AIR 1956 SC 217 that the presumption that a person acts honestly and legally applies as much in favour of police offices as of others. It is not proper and permissible to doubt the evidence of police officers. Judicial approach must not be to distrust and suspect their evidence on oath without good and sufficient ground thereof. In these circumstances, there is no reason to disbelieve the statement of TLO.
85 It is argued by Ld. Defence Counsels for both the accused that investigation carried out in this case is defective. Defence cannot take advantage of bad investigation where there is evidence available on the record against the accused. In this regard our Hon'ble Supreme Court in a latest judgment titled Zindar Ali Vs. State of West Bengal & Anr., 2009 III AD (S C ) 7 held as follows:
"Indian Penal Code, 1860 Secs. 376 and 417 - Immediate disclosure of rape by the prosecutrix - Version of prosecutrix unchallenged - Admission by the accused in village panchayat - Medical evidence also another proof - Accused behind bar for five years - SC held - Defence CC No.40/02 46/67 47 cannot take advantage of bad investigation where there is clinching evidence available to the Prosecution."
86 Hon'ble Supreme Court in Rohtash Vs. State of Rajasthan (2007) 2 SCC (Crl.) 382 has held that that defective investigation would not lead to total rejection of prosecution case.
87 Hon'ble Supreme Court in State of MP Vs Man Singh ( 2007) 2 SCC 390 in this regard has held as follows:
" Criminal Trial Investigation Deficiencies in investigation Effect Held, cannot be a ground to discard the prosecution version which is authentic, credible and cogent Criminal Procedure Code, 1973 S.157."
88 In Karnail Singh Vs. State of MP 1995 SCC 977it has been held by Hon'ble Supreme Court that in case of defective investigation it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event it would tantamount to be falling in the hands of an erring Investigating Officer. 89 Considering the case from all the angles there is no merit in this argument of Ld. Defence counsels.
90 Ld. Defence Counsels have pointed out various contradictions in the statements of prosecution witnesses. Most of these contradictions pertain to pre trap proceedings, like that PW2 in his cross examination has replied that he does not remember who had handed over the currency notes CC No.40/02 47/67 48 in CBI office for laying the trap; PW2 has stated that during practical demonstration of chemical reaction of Phenolphthalein Powder D B Singh has touched the tainted amount while TLO has stated that a piece of paper was touched by independent witness to carry out the demonstration of chemical reaction of Phenolphthalein Powder; TLO has stated that, Personal search of complainant was conducted and he was not allowed to keep any incriminating articles/documents on his person but PW2, 4 and 5 have not supported this version; bribe amount of Rs.20,000/ treated with Phenolphthalein Powder, was kept in the right hand side pant pocket of complainant in two bundles of Rs. 10,000/ each but PW2 has stated that trap money was kept in his both the pockets of pant in two bundles; trap team washed their hands with soap and water while PW4 and PW5 have not stated anything with regard to washing of hands with the soap; PW Satyavir Singh was directed to give signal to the trap team by scratching his head with both of his hands but PW4 in his testimony dt. 17.5.07 has stated that he cannot tell the name of person who had accompanied the complainant as per direction of CBI; TLO has stated that a leather bag (investigation bag) was arranged in which empty clean bottles, tumblers, Sodium Carbonate powder, CBI seal, sealing material alongwith Rs. 200/ have been kept but PW2, PW4 and PW5 have said nothing in this regard; TLO has stated that CC No.40/02 48/67 49 mic cum transmitter cum recorder alongwith blank audio cassette, a specimen voice of witnesses were recorded in the cassette, which was signed by the witnesses, a digital SVR240 Samsung Recorder was also arranged and kept in the shirt pocket of complainant after briefing him about it's usage to record the conversation on the spot ; PW2 has stated that one tape recorder was also put in his pocket and one another instrument for tape recording the conversation was also put. All these contradictions are with regard to pre trap proceedings. Normally pre trap formalities are performed with regard to extraordinary precautions on the part of CBI, which in fact do not attract the element of offence as enshrined U/s 7 & 13 (2) of P C Act. Moreover, minor contradictions relating to pre trap formalities are natural; the witnesses who have a bit deviated have signed the Handing Over Memo Ex PW 2/B wherein the detail of proceedings are incorporated.
91 Ld. Defence Counsels have also pointed out some contradictions among the statements of prosecution witnesses with regard to post trap proceedings like that of purchasing of entry/ parking tickets; with regard to starting of recovery proceedings, first out of the two accused; with regard to availability and not availability of accused in their chamber when the complainant had gone firstly; with regard to conducting of hand CC No.40/02 49/67 50 wash, with regard to place of conducting of proceedings, none of the accused have denied of conducting the search/recovery proceedings of the accused persons on the spot as such recovery of bribe amount from both the accused persons, in furtherance of search proceedings remains intact. 92 Ld. Defence Counsel argued that prosecution has not disclosed who had brought water for preparing solution of Sodium Carbonate; he has not been cited as witness; no entry has been made in this regard in case diary; from where the payajama was brought for providing to the accused before seizing the pants; at what time the payajama was brought and till then how accused remained; he has not been cited as witness. The attitude of defence always remains unquenched at the time of argument howsoever the case may base on strong footing as the main motive of defence revolves round the fault finding fact.
93 The law regarding contradiction was considered by the Hon'ble Supreme Court in case of Bharuda Broginbhai Harjibhai V/S State of Gujrat AIR 1983 SC 753 where in 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. Their Lordships have enumerated following reasons for arriving of this conclusion: CC No.40/02 50/67 51
" By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
i) Ordinarily, it is so happen that a witness is over taken by events the witness could not have anticipated the occurrence which so often has an element of surprise. Thus mental faculties, therefore, cannot be expected to be attuned to absorb the details.
ii) The powers of observance differ from person to person, but one may noticed another may not. An object or movement might emboss image on one person's mind, whereas it might go unnoticed on the part of another.
iii)By and large people cannot accurately recall a conversation and reproduced the very words used by them or heard by them.
They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
iv)In regard to exact time of an incident or the time duration of an occurrence, usually, people make their estimate by guess work as spare of moment, at the time of interrogation and one cannot expect people make very precise or reliable estimate in such CC No.40/02 51/67 52 matter. Again it depends upon the time sense of individuals which varies from person to person.
v) Ordinarily, a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession of in a short time span. A witness is liable to get confuse or mixed up when interrogated later on.
vi) A witness though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross examination made by counsel and out of nervousness mixed up facts, get confused regarding sequence of events., or fill up details of imagination at the spur of moment. The sub conscious mind of the witness sometime so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and an honest account of the occurrence witnessed by him perhaps it is a sort of physiological movement".
94 In view of the law discussed above it cannot be said that the contradiction pointed out by Ld. Counsel for accused are very vital contradictions. These are contradiction which are likely to occur with the passage of time. The Hon'ble Supreme Court in case State of UP V/S M.K. CC No.40/02 52/67 53 Anthony, AIR 1985 SC 48 has laid down the principle for appreciating the evidence of a witness as under:
" While appreciating the evidence of a witness the approach must be whether the evidence of the witness read as a whole, appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, draw backs and infirmities, pointed out in the evidence as a whole and evaluate them to find out whether, it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render if unworthy of belief. Minor discrepancies of trivial matter, not touching the core of the case, hypertechnical approach by taking sentence torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of evidence as a whole."
" Their Lordships further observed:
" Unless there are reasons weighty and formidable it would not be CC No.40/02 53/67 54 proper to reject the evidence on the ground of minor variations of infirmities in the manner of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention, and reproduction differ with individuals. Cross examination is an unequal dual between the rustic and refined lawyer."
95 However honest and truthful witnesses may be there, they will certainly differ to some extent in describing the main incident because of their power of observation, retention and reproduction which differ from person to person. What the court has to see while appreciating the evidence of the witnesses; whether the evidence of witnesses read as a whole appears to have a ring of truth. If it has a ring of truth then discrepancies have to ignore.
96 Hon'ble Supreme Court in Inder Singh Vs State ( Delhi Administration) AIR 1978 Supreme Court 1091 has held as follows:
"Credibility of testimony, oral circumstantial depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect, If a case is proved too perfectly, it is argued that it is artificial; if a case has some CC No.40/02 54/67 55 flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of foolproof concoction. Why fake up? Because the Court asks for manufacture to make truth look true? No, we must be realistic."
97 Para 1 alongwith sub paras of written arguments on behalf of accused W. Ravi Kanth are related with the complaint, pursuant to which FIR Ex PW 10/A was registered, veracity of facts are wrongly interpreted ignoring the averment made in chief by PW2on first page of his deposition which is as under:
" As per the rules measurement of work done on each day has to be recorded in MB on the same day. No measurement was done. They entered false measurement and gave me a payment of bill, which was much less the work done. When I checked the payment I found that it was less. I asked Mr. Mukherjee. I kept on going him several days.
Then I could not go to him for some days as I was a marriage in my house. I went on 22.5.2001 to him. I again requested Mr. Mukherjee He told me that he will give the correct measurement entered in the CC No.40/02 55/67 56 measurement book, but he will charge Rs.40,000/ for entertaining the correct measurement."
98 Similarly in para 2 wrong analogy, in respect of endorsement at the margin of complaint by branch SP, is advanced on behalf of accused W. Ravi Kanth. Infact said endorsement is a direction in the shape of further recourse on the part of IO, not the substance of information, which necessarily find mention in FIR, on the basis of which investigating agency sets in motion for collecting evidence.
99 Para 3 of the argument on behalf of accused W. Ravi Kanth is described under VIII sub paras, having further its sub clauses dealing therein the short comings in preparation of handing over memo Ex PW 2/B. Short comings pointed out by defence are not so glaring which may otherwise affects the merit of the case shattering the ingredients of offences rather connected the prosecution story, which set forth sequence wise from the preparation of Ex PW 2/B. In other words, the incident narrated in complaint, FIR and Handing Over Memo are tacitly admitted with slight hitch relating to short comings.
100 Similarly para 4 to 6 of the argument is detailed under XI sub paras alongwith their sub clauses through which defence on behalf of accused W. Ravi Kanth tried to high light discrepancies in the preparation CC No.40/02 56/67 57 of Recovery Memo Ex PW 2/C. Discrepancies are admittedly natural, trifle in nature, but do not wash away the basic element of illegal gratification obtained by accused persons, which were recovered from their possession. 101 Clause (d) of Section 7 of P C Act, 1988 explains a motive or reward for doing as under:
"A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.
102 In Inder Dayal Dass Adwani Vs. State of Bombay, AIR 1952, Bom. 58, it was held that it is not necessary that the act for doing which the bribe is given, be actually performed. A representation by a public person that he has done or he will do an act, impliedly includes a representation that it was or is within his power to do an act.
103 In Madhukar Bhaskar Rao Vs. State of Maharashtra, AIR 2001, SC 147 it was held that once the premises is established, the inference is to be drawn that the said gratification was accepted as motive or reward for doing or forbearing to do any official act.
104 Further in the case of Mubarak Ali Vs. State, AIR 1958, MP 157, it was held that "a mere demand or solicitation by a public servant amounts to the commission of offence relating to Section 7 of P C Act." CC No.40/02 57/67 58 105 In para 7 of the argument on behalf of accused W. Ravi Kanth description of deposition relating to PW1 to PW13 are written approximately in the same manner as it is incorporated in the deposition of concerned PWs. Thereafter two points submissions on the point of hostile witnesses and on the point of corroboration and inconsistency are detailed alongwith some rulings on the question of demand and acceptance, which do not seem applicable to the facts & circumstances of this case. 106 So far as the written arguments on behalf of accused R P Mukherjee is concerned, he tried to impress upon the court by narrating a lot in respect of contractual work, procedural requirement of execution of work and measurement of work executed, he also focused some attention on the dispute of measurement relating to hidden items ignoring the basic nucleus regarding occasion to demand bribe which was subsequently recovered from his possession. Argument of R P Mukherjee seems to parochial in nature not clustering with the crux of his innocence. Natural discrepancies cropped up during trial have been exaggerated; which if carefully analysed for detecting the veracity, the same could not be of high consequences rather evidence if taken together connecting with the circumstances, both the accused persons are criminally fixed for the offences specified u/s7& 13 (2) of P C Act, 1988.
CC No.40/02 58/67 59 107 I have gone through the authority of C S Krishnamurty Vs. State of Karnataka & State of Himachal Pradesh Vs. Nishant Sarin relied upon by Ld. Defence Counsel for A1. This court has relied upon on the authorities itself under the heading "Sanction & Public Servant" in this judgment. As discussed under the above heading this court is of opinion that sanction for the prosecution of both the accused Ex PW 1/A and Ex PW 1/B accorded after due application of mind by PW1, hence the ratio of law laid down in these authorities is not applicable in the facts and circumstances of our case.
108 Ld. Defence Counsels placing reliance on Chander Bhan Vs. State and Sat Paul Vs. Delhi Administration argued that uncorroborated statement of complainant / interested witness cannot be relied upon. From the above discussion it is clear in our case that statement of complainant has been fully corroborated by PW10 TLO Jayant Kashmiri. Though shadow witness Dalip Singh and Recovery witness Satyavir have been declared hostile on the request of prosecution yet they have corroborated the version of complainant on material particulars.
109 Ld. Defence Counsels for both the accused placing reliance on Subhash Parbat Sonavane Vs. State of Gujrat and State of Maharashtra Vs. Dynaneshwar Laxman Roa Wankhede, Suraj Mal Vs. State of Delhi, CC No.40/02 59/67 60 SadahivMahadeo Yaualuje & Gajannan Shripartrao Solakha Vs.. State of Maharashtra n M K Hasan Vs. State of Kerala, Kapil Basin Vs. CBI argued that demand of illegal gratification is sine qua non for the commission of offence punishable U/s 7 of P C Act. Mere acceptance of money does not constitute an offence punishable u/s 7 of P C Act. As discussed above in this judgment demand of illegal gratification by accused persons, acceptance of illegal gratification by them and recovery of the same from their conscious possession is well proved, hence, the ratio of law laid down in these authorities is not applicable to the facts and circumstances of this case.
110 Ld. Defence Counsels placing reliance on State of Punjab Vs. Surjit Singh argued that where the statement of the recovery witness recorded late without any explanation such statement should be excluded. It is argued that in this case statement of recovery witness was recorded after about 6 months without any explanation hence no reliance should be placed on the same.
111 Hon'ble Supreme Court has held that statement of eye witnesses cannot be discarded merely recording of the same at a late stage by the IO. In this regard it is observed as follows by the Hon'ble Supreme Court in Dr. Krishna Pal and another Vs. State of UP, (1996) 7 Supreme CC No.40/02 60/67 61 Court Cases 194 :
"A Criminal Procedure Code, 1973 S. 161 - Inordinate delay in examination of witness by police - Delay not explained - Simply on that ground the convincing and reliable evidence given eye witnesses cannot be discarded."
112 Ld. Defence Counsels placing reliance on Kali Ram Vs. State of HP, argued that without clear evidence of guilt of accused it is not possible to convict him. In the event of two views are possible, view favourable to the accused is to be taken. There is no dispute with this preposition of law, however, from the above discussion in this judgment it is clear that prosecution has produced sufficient evidence proving the guilt committed by accused , therefore the ratio of law laid down in these authorities is not applicable to the facts and circumstances of this case. 113 Ld. Defence Counsels for both the accused placing reliance on (1975) 3 Supreme Court Cases 562 Jagir Singh Vs. The State has argued that where the prosecution itself has cross examined own witness, statement of such witness should be rejected altogether. Hon'ble Supreme Court in various authorities referred in this judgment above while dealing with the admissibility of evidence of hostile witness, has held that entire statement of CC No.40/02 61/67 62 a witness cannot be rejected merely because a witness has been declared hostile and cross examined on behalf of prosecution. It has been confirmed by Hon'ble Supreme Court repeatedly that principle of falsus in uno , falsus in omnibus is no longer applicable. It is the duty of the court to sift the grain from the chaff instead of taking an easy course of rejecting the prosecution case in entirety.
114 Ld. Defence Counsel for accused No.2 argued that persons holding clerical posts should not be called as panch witnesses. Ld. Defence Counsel for accused No.2 himself relied upon Hazari Lal Vs. State, AIR 1980 SC 873 wherein it is held as follows:
"The Supreme Court referred to the argument of appellant based on the observations in Khairati Lal Vs. The State (1965) (1) DEL LT 362) that persons holding clerical post and the like should not b called as panch witnesses, as such witnesses could not really be called independent witnesses as they would always be under fear of disciplinary action if they did not support the prosecution case and observed that the respectability and the veracity of a witness is not necessarily dependant upon his status in life and that it cannot be said that clerks are less truthful and more amenable than their superior officers."CC No.40/02 62/67 63
115 It is correct that in this case prosecution has not relied upon the tape recorded conversation though tape recorded device was given to the complainant for recording the conversation between the complainant and the accused. Prosecution has given an explanation that tape recorded conversation was not clear/audible therefore, prosecution has not relied upon it. Tape recorded conversation is always used as corroborative evidence. When there is sufficient evidence on the file against the accused no adverse inference can be drawn against prosecution for not producing the tape recorded conversation particularly when it has given an explanation at the very inception that the tape recorded conversation is inaudible/ not clear as such it cannot be construed as otherwise.
116 Ld. Defence Counsel argued that copy of the cassette was not provided to the accused. No investigation copy of the cassette was prepared prior to the sealing of tape recorded conversation, however on the direction of this court prosecution has supplied copy of cassette of tape recorded conversation even without seeking permission from this court to deseal the cassette having original tape recorded conversation, which proves the manipulation made by IO. On the other hand it was submitted on behalf of prosecution, even without relying upon the recorded conversation, prosecution supplied the copy of cassette on the strength of direction of CC No.40/02 63/67 64 court. As the CBI has not relied upon on the tape recorded conversation against the accused and has given an explanation in the very beginning that there was no recording/disturbance in the cassette, therefore argument of Ld. Defence Counsel appears to be blown out of proportion as on merit no prejudice has been caused to the accused.
117 Our Hon'ble Supreme Court in State of Punjab Vs. Pohla Singh, 2003 (3) CCC 75 has held as follows:
"Appreciation of evidence - The prosecution is not supposed to meet every hypothetical question raised by the defence If crime is to be punished in a glosseme way niceities must yield to realistic appraisal."
118 Prevention of Corruption Act is a social legislation enacted with the object to curb illegal activities of public servants, in these circumstances according to the law of interpretation of Statute, its provision should be interpreted so as to achieve its object. Our Hon'ble Supreme Court in Ram Singh Vs. State of MP (2000) 5 Supreme Court Cases88 has held as follows:
"Prevention of Corruption Act, 1988 - Nature and interpretation of Held is a social legislation to curb illegal activities of public servant and should be liberally construed so as to advance its object CC No.40/02 64/67 65 and not liberally in favour of the accused - interpretation of Statutes Particular statutes or provisions - Penal statute - Social Legislation -
Interpretation of".
1019 In case U/S 13 (1) (d) of P C Act 1988 prosecution has to prove that :
i) That accused should be a public servant.
ii) That he should used some corrupt or illegal means or otherwise abused his position as a public servant,
iii) That the accused should have thereby obtained a valuable thing or pecuniary advantage.
iv) Such benefit for himself or for any other person.
120 A five Judges Bench of Hon'ble Supreme Court in Dhaneshwar Narain Saxena Vs The Delhi Administration 1962(1) Crl L J 203 ( Vol.64 C.N. 76) has held as follows:
Misconduct by public servant need not be in connection with his own official duty.
" It is not necessary that the public servant in question, while misconducting himself, should have done so in the discharge of his duty. It would be anomalous to say that a public servant has misconduct himself in CC No.40/02 65/67 66 the discharge of his duty. "Duty" and "misconduct" go ill together. If a person has misconducted himself as a public servant, it would not ordinarily be in the discharge of his duty, but the reverse of it. It is not necessary to constitute the offence under cl (d) of the section that the public servant must do something in connection with his own duty and thereby obtain any valuable thing or pecuniary advantage. It is equally wrong to say that if a public servant were to take money from a third person, by corrupt or illegal means or otherwise abusing his official position, in order to corrupt some other public servant, without there being any question of his misconducting himself in the discharge of his own duty, he has not committed an offence under S. S(10) (d) . It is also erroneous to hold that the essence of an offence under S. 5(2) , read with S. 5(1) (d), is that the public servant should do something in the discharge of his own duty and thereby obtain a valuable thing or pecuniary advantage."
121 In view of above discussion it is well proved from the evidence produced by the prosecution that accused R P Mukherjee who was working as Manager (Engineer) and accused W. Ravi Kanth who was working as Jr. Engineer (Civil) Airport Authority of India, as public servants, had demanded Rs. 40,000/ (Rs. 20,000/ for each) as illegal gratification on the pretext of recording correct measurement in MB of the work done by complainant and accepted Rs.10,000/ each from complainant which was also recovered from their possession, thus both the accused have abused their official position. In these circumstances this court is of CC No.40/02 66/67 67 opinion that prosecution has proved its case beyond reasonable doubts against both the accused, hence both the accused are convicted for the offences punishable U/s 120 B IPC r/w sec. 7 & U/s 13 (2) r/w 13 (1 (d) of P C Act, 1988 and for the substantive offences u/s 7 & U/s 13 (2) r/w 13 (1
(d) of P C Act, 1988.
announced in open court on ( V. K. Maheshwari) this 15th March, 2011 SPECIAL JUDGE: DELHI CC No.40/02 67/67 68 IN THE COURT OF V .K .MAHESHWARI SPECIAL JUDGE: (P C Act)03 CBI DELHI Corruption Case No.40/02 CBI Vs. 1 R P Mukherjee s/o Lt. Sh. A K Mukherjee, r/o 42B, Pocket10, Kalkaji Extn. New Delhi 19, Permanent r/o Post Bolpur, School Bagan , Distt. Birbhum, West Bengal. 2 Ravi Kanth s/o W. Krishan Swami, r/o BIII/8 AAI (IAO) Residential Colony, MenambakanoChennai600027 Permanent r/o c/o Sh. W Krishan Swami, Plot No.29 Krishna Reddy Nagar Colony (KRN) Bowenplally, Secunderabad (AP) R.C No. 39(A)/01/CBI/ACB/N/D ORDER ON SENTENCE:
Vide my separate judgment dated 15.3.2011 accused R.P. CC No.40/02 68/67 69 Mukherjee and W Ravikanth were convicted for the offences punishable U/s 120 B IPC r/w 7 & U/s 13 (2) r/w 13 (1 (d) of P C Act, 1988 and for committing substantive offence punishable U/s 7 & U/s 13 (2) r/w 13 (1 (d) of P C Act, 1988.
Arguments on sentence heard. It is argued on behalf of convict R P Mukherjee that he is of 54 years of age . He is not a previous convict. He has to look after his family comprises of his wife, divorce daughter and his 90 years old aged mother. He has to look after his mentally retarded brother . He is facing agony of this trial for about 10 years and regularly attending the Court . He has never tried to delay the proceedings. He is living in a rented accommodation.
It is argued on behalf of convict W. Ravikanth that he is not a previous convict. He is facing agony of this trial since 2001. He has to look after his wife , four years old son and ailing parents He is the sole bread earner of his family. He has clean antecedents. He is having no other case against him except the present one.
It is argued by Ld Senior PP for CBI that no leniency be shown to convicts in awarding the sentence as it will be undesirable and will also be against public interest. He has argued that convicts are involved in a serious corruption case inspite of being public servants. CC No.40/02 69/67 70 Accused R P Mukherjee who was working as Manager (Engineer) and accused W. Ravi Kanth who was working as Jr. Engineer (Civil) Airport Authority of India, as public servants, had demanded Rs. 40,000/ (Rs. 20,000/ for each) as illegal gratification on the pretext of recording correct measurement in MB of the work done by complainant and accepted Rs. 10,000/ each from complainant which was also recovered from their possession . They should be awarded severe punishment and heavy fine may also be imposed on them. It is further submitted by Ld Senior PP that in criminal appeal No. 299 of 1997, titled State of Rajasthan Vs Dhool Singh, Hon'ble Supreme Court, on December 18th , 2003 has held that the Courts should bear in mind that there is a requirement in law that every conviction should be followed by an appropriate sentence within the period stipulated in law. Discretion in this regard is no absolute or whimsical. It is controlled by law and to some extent by judicial discretion applicable to the facts of the case. Therefore, there is need for the Courts to apply its mind, while imposing sentence , as to why it should be less then maximum sentence prescribed under law.
Convicts be awarded consecutive sentence.
Corruption is a scourge that not only severally affects progress CC No.40/02 70/67 71 and development in the society but also poses a grave challenge to governance itself. The United Nations Global Reports on Crime and Justice quotes public opinion surveys in a number of countries, to point out that citizenry in those countries ranks corruption as one among the five most important problems facing their society. More importantly, the public in such countries seriously questions the ability of the Criminal Justice Administration to provide any bulwark against corruption. The consequence of such perceptions is a growing public cynicism and distrust in almost all the Government institutions, which is a matter of serious concern. Unfortunately, India ranks prominently high in the list of countries plagued by corruption. Anti Corruption measures in India are perceived by the people to be weak and ineffective. More than corruption itself , it is the widespread public perception that corruption is not or would not be punished, that is detrimental to the society.
After considering the facts and circumstances of the case and all the arguments raised before me, both the Convicts are sentenced to undergo One year RI along with a fine of Rs10,000/ each (Rs. Ten Thousand) I D Three months S I U/s 120 B IPC r/w 7 & U/s 13 (2) r/w 13 (1 (d) of P C Act, 1988 and to undergo Three Years R I alongwith and a fine of Rs. 20,000/ each (Rs. Twenty Thousand) I D Three months S I U/S CC No.40/02 71/67 72 7 of P C Act 1988 and to undergo Three years RI along with a fine of Rs. 20,000/ (Twenty Thousand) each I D three months S I U/S 13 (2) R/w Section 13(1) (d) of P C Act 1988. All the sentences will run concurrently. Benefit of Section 428 Cr P C be also given to both the accused.
A copy of judgment and this order on sentence be given to convicts free of cost. File be consigned to RR.
ANNOUNCED IN OPEN COURT (V K MAHESHWARI)
TODAY ON 16st March 2011 SPECIAL JUDGE: DELHI
CC No.40/02 72/67