Delhi District Court
State vs . 1. Rajesh Kumar on 7 June, 2013
IN THE COURT OF SHRI B.R. KEDIA, SPECIAL JUDGE07
(CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
C.C.NO. : 20/11
Unique Case ID : 02401R0056852001
STATE VS. 1. RAJESH KUMAR
S/o Late Sh. Kedar Nath
R/o C2/196, Janakpuri,
New Delhi.
2. Kanwar Jahan @ Baby Khan
W/o Sh. Aftab Khan,
R/o B144 DLF,
Sahibabad, U.P.
FIR NO. : 28/2000
U/S : 7/13 Prevention of Corruption Act,
1988 r/w Section 120B IPC
P.S. : ANTI CORRUPTION BRANCH,
DELHI
Date of Institution 19.05.2001
Judgment reserved on 01.06.2013
Judgment delivered on 07.06.2013
C.C. No. 20/11 Page No. 1 of 58
JUDGMENT
1. The precise case of the prosecution is that on dated 24.05.2000 the complainant Puran Kumar Chugh S/o Jessa Ram Chugh came to Anti Corruption Branch and got lodged his Complaint Ex.PW1/A before the Inspector M.S.Sanga, Raid Officer/PW9 in the presence of Panch witness Arun Satija/PW8 regarding initial demand of bribe of Rs.1 Lac which was scaled down to Rs.25,000/ as bribe amount by the accused Rajesh Kumar who was posted as Inspector in District Crime Cell, North East District, Delhi for not implicating the complainant in any false case.
2. The gist of the said complaint is that the complainant had been running Bread Manufacturing Units and had purchased a Tata Safari vehicle on 13.05.2000 from A one Motors, Moti Nagar which was got financed from AFCO Associate Finance India through Mr. Kuldeep Bhatia and the complainant had obtained loan amount of Rs. 5,70,000/ and had paid Rs.2,19,140/ in cash for purchase of said vehicle and took delivery on 13.05.2000. But on 15.05.2000 complainant received a phone call from said Kuldeep Bhatia that as his Loan had been rejected, he should pay the balance payment in cash on which complainant responded that he would consult his C.A. C.C. No. 20/11 Page No. 2 of 58 to arrange money. On 16.5.2000 at about 3:00 p.m. said Kuldeep Bhatia came to House of the complainant and took from him Rs.1 Lac in cash and stated that said amount will be adjusted in the balance payment. Thereafter, on 17.5.2000 said Kuldeep Bhatia called complainant on mobile phone at Muskan Restaurant, Naveen Shahdra, on which complainant reached there and found several police persons including accused Rajesh Kumar who stated to the complainant that by playing fraud, he had obtained Car Loan and said Car Loan has been rejected. The accused Inspector Rajesh Kumar took the complainant to PS Bhajanpura and asked him to return the vehicle to Kuldeep Bhatia otherwise complainant would be arrested on which the complainant returned said vehicle to Kuldeep Bhatia on 19.5.2000 and Kuldeep Bhatia delivered to the complainant a Bank draft of Rs. 2,19,140/. Thereafter, on 20.5.2000 accused Rajesh Kumar called complainant on mobile phone and asked him to meet him at his Office P.S. Bhajanpura, on which the complainant met him on 22.5.2000 at about 12:00 noon in the Office of the accused on which the accused demanded Rs.1 Lac otherwise he would implicate the complainant in a case. Thereafter, on 23.5.2000 accused Rajesh Kumar again called complainant on mobile and demanded said amount and on expressing inability by the complainant, the accused Rajesh Kumar asked him to C.C. No. 20/11 Page No. 3 of 58 pay initial amount of Rs.25000/ and the balance amount later on for which the complainant was constraint to agree. Thereafter, on 24.5.2000 at about 10:00 a.m. accused Rajesh Kumar called complainant on mobile and asked him to meet accused Baby Khan and thereafter, on that day at about 11:00 a.m. Baby Khan called complainant on mobile and asked him to come to Mrignayani Restaurant at Dilshad Garden on that day at about 3:00 p.m. alongwith said bribe amount of Rs.25,000/ and she would help him by acting as a mediator and would get meeting with accused Rajesh Kumar. Since the complainant was against giving of bribe, he went to Anti Corruption Branch and got his complaint lodged before the Inspector M.S.Sanga, Raid Officer PW9 in presence of Panch witness Arun Satija, PW8.
3. The further case of the prosecution is that the complainant has produced 50 GC notes of Rs. 500/ each before the Raid Officer PW9 who noted down the serial number of said GC notes in the pre raid proceedings Ex.PW1/F and treated the said GC notes with phenolphthalein powder. Thereafter, Raid Officer PW9 gave demonstration to the Panch witness, complainant by getting touched the right hand of the Panch witness with that treated currency notes C.C. No. 20/11 Page No. 4 of 58 and wash of the right hand of the Panch witness in the colourless solution of sodium carbonate which turned into pink. Thereafter, said GC notes were handed over to the complainant and Panch witness was instructed to remain close with the complainant and to overhear the conversation between the complainant and the person demanding the bribe amount and to give signal by hurling his hand over his head after being satisfied that the bribe has actually been given.
4. That at about 1:30 p.m., PW9 Raid Officer along with complainant, Panch witness, Inspector R.S.Yadav and other members of the raiding party left Anti Corruption Branch in a government vehicle and reached near Mrignayani Restaurant, Dilshad Garden at about 2:00 p.m. Government vehicle was parked at some distance, Inspector R.S.Yadav alongwith the Driver remained in the vehicle. Complainant and Panch witness went inside Mrignayani Restaurant. Thereafter at about 4:00 p.m. the complainant and Panch witness came out from the Restaurant and were seen talking to accused Baby Khan who came there in a Maruti Zen Car and after sometime, complainant and Panch witness came to Raid Officer and informed him that they had been called at PS Bhajanpura. Thereafter, the Raiding team followed them to PS Bhajanpura and Government C.C. No. 20/11 Page No. 5 of 58 vehicle was parked outside the Police Station and the complainant and Panch witness were sent inside the Police Station and the members of the Raiding team took suitable position.
5. The further case of the prosecution is that at about 5:45 p.m. on receiving the predetermined signal, Raiding team reached at the spot i.e. DIU Office where a Maruti Zen Car was parked in which accused Baby Khan and complainant were sitting and Panch witness was standing outside and informed the Raid Officer that the accused Baby Khan had demanded and accepted bribe of Rs.25,000/ from the complainant on the instructions of the accused Rajesh Kumar. Thereafter, Raid Officer after disclosing his identity challenged the accused Baby Khan that she had demanded and accepted the bribe of Rs.25,000/ from the complainant on the instructions of accused Rajesh Kumar and offered his search but accused declined. On his directions, Panch witness recovered bribe amount of Rs.25,000/ from the accused Baby Khan and compared the serial number of that GC notes with serial number mentioned in pre raid proceedings Ex.PW1/F and the same tallied. That recovered GC notes were taken into possession vide seizure memo Ex.PW1/B. The wash of both hands of the accused Baby Khan was taken in colorless solution of C.C. No. 20/11 Page No. 6 of 58 sodium carbonate which turned into pink and solution was transferred into two empty small clean bottles which were sealed with the seal of MS and were marked as RHWI & II, LHWI & II by pasting slips thereon which were signed by Raid Officer, complainant and Panch witness. Those bottles and sample seal were taken into possession vide Seizure Memo Ex.PW1/C. Accused Rajesh Kumar was also taken into custody. Raid Officer also drawn up the post raid proceedings which is Ex.PW1/G and prepared rukka Ex.PW9/B and sent the same through Ct. Om Prakash to PS Anti Corruption Branch for registration of the case.
6. The further case of the prosecution is that the Raid Officer called Inspector R.S.Yadav PW21/IO at the spot and handed over him the custody of both the accused, case property and relevant documents etc. for purpose of Investigation. I.O. took up the Investigation, prepared the Site Plan Ex.PW21/A. IO interrogated both the accused and arrested them and conducted their personal search vide Memo Ex.PW21/B and PW21/C. IO received original Rukka and copy of FIR Ex.PW13/A at the spot. IO recorded the statement of complainant and Panch witness and other relevant witnesses. The accused persons were put in the lock up and first part of the case property was C.C. No. 20/11 Page No. 7 of 58 deposited with ACP R.K.Joshi alongwith sample seal and second part with the MHC(M), PS Civil Lines. IO collected the call details of mobile phone of accused Baby Khan and complainant. During the course of Investigation, IO also obtained Rojnamacha of DC Cell, North District from 1.5.2000 to 1.7.2000 vide Seizure Memo Ex.PW4/A, Biodata of accused Rajesh Kumar Ex.PW12/A and Sanction Order Ex.PW2/A for prosecution as against accused Rajesh Kumar. IO on recording the statement of the witnesses and after completion of the Investigation, prepared the chargesheet and filed in the court.
7. After compliance with the provision U/S 207 of Cr.P.C and after hearing both sides on the point of charge, charge for offence punishable U/S 120B IPC r/w Section 7 and 13(1) (d) of Prevention of Corruption Act, 1988 and U/S 7 and 13(2) r/w 13(1) (d) of Prevention of Corruption Act, 1988 as against accused Rajesh Kumar and U/S 120B IPC r/w Section 7 and 13(1) (d) of Prevention of Corruption Act, 1988 and U/S 12 of Prevention of Corruption Act, 1988 as against accused Kanwar Jahan @ Baby Khan was framed on 01.10.2003 to which both accused pleaded not guilty and claimed trial.
C.C. No. 20/11 Page No. 8 of 58
8. Thereafter, in order to bring home the guilt of the accused, the prosecution got examined 21 prosecution witnesses namely Puran Kumar Chugh, complainant as PW1, Suresh Roy, the then Joint Commissioner of Police, New Delhi, Sanctioning Authority as against accused Rajesh Kumar as PW2, SI S.N.Pandey, a formal witness as PW3, HC Surinder Singh, a formal witness as PW4, R.K.Joshi, the then ACP in AC Branch, Delhi, a formal witness as PW5, SI Mohan Pratap, a formal witness as PW6, Anil Prakash Nijhanwan, a formal witness as PW7, Arun Satija, Panch witness as PW8, the then Inspector M.S.Sanga, Raid Officer as PW9, HC Mahender Singh, a formal witness as PW10, the then ACP at DC Cell, Chander Mohan, a formal witness as PW11, SI Mehrudin, a formal witness as PW12, the then SI Kanwar Singh, Duty Officer at PS AC Branch, a formal witness as PW13, Shankar Lal Gupta, a formal witness as PW14, Rakesh Aggarwal, a formal witness as PW15, Kuldeep Bhatia as PW16, Inspector Sanjiv Kumar, a formal witness as PW17, Sanjay Sircar who was working as Sales Manager in A one Motors, Shivaji Marg, New Delhi, a formal witness as PW18 , Vinod Kumar Arora, the then Manager in Muskan Restaurant, Shahdra, a formal witness as PW19, Jyotish Chandra Maharana, Alternate Nodal Officer, C.C. No. 20/11 Page No. 9 of 58 Vodafone, Essar Mobile Service, a formal witness as PW20 and the then Inspector R.S.Yadav, IO as PW21.
9. After closure of the PE, statement of accused under Section 313 Cr.P.C. were recorded in which the accused persons denied about any demand and acceptance of the bribe from the complainant. Accused claimed to be falsely implicated in this case having no concern with the alleged offence. The accused in their defense have got examined SI Brahm Singh as D1W1, Rajinder Kumar, Conductor in DTC as D1W2, HC Ranjit Singh from PS Bhajan Pura as D1W3, ASI Desh Raj as D1W4, Harkesh Singh, Nodal Officer, Bharti Airtel as D1W5 and HC Ram Avtar as D2W1.
10. I have heard Final Arguments as addressed by Sh. C.S. Sharma, Adv. Ld. Counsel for accused Rajesh Kumar, Sh. Jugal Wadhwa, Adv. Ld. Counsel for the accused Kanwar Jahan @ Baby Khan and Sh. Maqsood Ahmed, Ld. Addl. PP for the State and perused the relevant record including the Written Submissions as filed on behalf of the accused persons.
11. It is submitted by Ld. Counsel for the accused Rajesh C.C. No. 20/11 Page No. 10 of 58 Kumar that said accused is innocent and was not knowing the co accused Kanwar Jahan @ Baby Khan and has neither demanded nor accepted any bribe from the complainant Puran Chugh through said coaccused Baby Khan and prosecution has failed to prove about the said aspects and hence, said accused deserves to be acquitted. It is further added by Ld. Defence Counsel that this accused was posted as Inspector in District Crime Cell, North East having Office in the compound of PS Bhajan Pura and on dated 17.5.2000, he had received a secret information that Sanjeev Sabharwal, who was a Proclaimed Offender, carrying reward on his arrest would be visiting at the Muskan Restaurant at Naveen Shahdara to meet its owner Satbir and therefore, after informing ACP Chander Mohan about the said information, he along with the staff raided Muskan Restaurant and found that said Sanjeev Sabharwal was not found available and said Satbir had left the Restaurant and thereafter, started interrogating Puran Chugh, complainant of this case regarding said Sanjeev Sabharwal and Satbir and at that time one Kuldeep Bhatia came to him and lodged complaint as against said Puran Chugh regarding cheating in getting finance of the loan of a Tata Safari Car from them. Thereafter, in order to inquire about said Sanjeev Sabharwal and Satbir, accused Rajesh took complainant Puran Chugh in his Office C.C. No. 20/11 Page No. 11 of 58 and after conducting inquiry from him, said complainant was allowed to leave with Inspector Ram Mehar, his known person and therefore, on feeling humiliated, said complainant has lodged a false Complaint Ex.PW1/A and implicated this accused on the false plea of demand and acceptance of bribe through coaccused Kanwar Jahan @ Baby Khan. It is further added by Ld. Defence Counsel that as per said Complaint Ex.PW1/A on dated 20.05.2000, accused Rajesh Kumar made a call to the complainant Puran Chugh on his mobile and called him to meet him at his Office where he demanded bribe of Rs.1 Lac on 22.05.2000 otherwise he would implicate him in a false case. It is further added by Ld. Defence Counsel that as per said Complaint Ex.PW1/A, again on 23.05.2000 accused Rajesh Kumar made phone call to said complainant on his mobile and agreed to accept Rs. 25,000/ as part bribe amount and again on 24.05.2000 at about 10:00 a.m., the accused had made phone call on the mobile of the complainant and he introduced the name of coaccused Baby Khan and asked him to meet her and ultimately, on 24.05.2000 at around 11:00 a.m. said Baby Khan talked to the complainant on his mobile phone asking him to bring bribe amount of Rs.25,000/ and to meet her at Mrignayani Restaurant, Dilshad Garden, Shahdara at 3:00 p.m. It is further added by Ld. Defence Counsel that the accused Rajesh C.C. No. 20/11 Page No. 12 of 58 Kumar has neither made any such phone call to the complainant nor he demanded any bribe from him nor introduced accused Baby Khan and the allegations in the said Complaint are found falsified from the deposition of PW1/complainant as well as his Mobile Phone Call Record and Mobile Phone Call Record of coaccused Baby Khan which are Ex.PW3/C1 to 17. It is further added by Ld. Defence Counsel that the prosecution has failed to establish as regards the previous demand of bribe by the accused Rajesh Kumar on dated 22.05.2000 and 23.05.2000 from the complainant. It is further added by Ld. Defence Counsel that this accused Rajesh Kumar was not knowing coaccused Baby Khan and therefore, there was no occasion on his part to get introduce said Baby Khan to the complainant on his mobile phone and to ask him to meet her for payment of the bribe amount being allegedly raised by accused Rajesh Kumar. It is further added by Ld. Defence Counsel that the plea of introduction of co accused Baby Khan by accused Rajesh Kumar to the complainant and asking him to make payment of bribe to said Baby Khan, are also found falsified from the deposition of PW1/complainant as well as the Mobile Call Record of the complainant and Mobile Call Record of co accused Baby Khan which are Ex.PW3/C1 to 17. It is further added by Ld. Defence Counsel that even as per the case of the prosecution C.C. No. 20/11 Page No. 13 of 58 when the bribe demanded by accused Rajesh Kumar from the complainant on 22.05.2000, there is no justifiable explanation for delay in registration of the FIR for two days i.e. on 24.05.2000 and in order to cover up the said delay part, the complainant/PW1 has introduced new version regarding his visit to Office of CBI for making complaint against the accused but same has been falsified from the material on record including the deposition of PW1/complainant as well as his Mobile Call Record. It is further added by Ld. Defence Counsel that as per the case of the prosecution, complainant had reached the Office of Anti Corruption Branch on 24.05.2000 at about 12:00 noon and lodged his Complaint Ex.PW1/A after which Pre raid Proceedings Ex.PW1/F was carried out and thereafter, the complainant, Panch witness, Inspector M.S.Sangha, Raid Officer, Inspector R.S.Yadav, IO and other members of the Raiding team left Anti Corruption Branch at about 1:30 p.m. for Mrignayani Restaurant in Dilshad Garden and reached there at about 2:00 p.m. and waited for the coaccused Baby Khan up to 4:05 p.m. However, all these aspects relating to case of the prosecution are found falsified from the deposition of PW1/complainant, PW9/Inspector M.S.Sangha, Raid Officer, PW21/Inspector Rajesh Yadav,IO, Mobile Call Record of the complainant as well as accused C.C. No. 20/11 Page No. 14 of 58 Baby Khan and Cell ID Chart. It is further added by Ld. Defence Counsel that Mobile Call Record of the complainant Ex.PW20/B and Cell ID Chart Ex.PW20/D established that the complainant Puran Chugh was at different places from 11:05 a.m. to 2:43 p.m. on dated 24.05.2000 and not available at Anti Corruption Branch. It is further added by Ld. Defence Counsel that PW1/complainant himself has contradicted the stand of the prosecution and has stated that he along with the Raiding team left Anti Corruption Branch for Mrignayani Restaurant at 3:20 p.m. and not at 1:30 p.m. as claimed by PW9/Raid Officer and PW21/IO. It is further added by Ld. Defence Counsel that PW1/complainant in order to cover the contradictions about the time of lodging the complaint, preparation of Pre Raid Proceedings, departure by the Raiding team from Office of Anti Corruption Branch and arrival at Mrignayani Restaurant, had come out with a false version that there was difference of one and half hour in the time shown in his watch and watch of Raid Officer. It is further added by Ld. Defence Counsel that the prosecution has also failed to establish the arrival of the Raiding team at 2:00 p.m.at Mrignayani Restaurant and staying there up to 4:00 p.m. It is further added by Ld. Defence Counsel that as per the case of the prosecution, initially trap was to be laid at Mrignayani as coaccused Baby Khan had asked the C.C. No. 20/11 Page No. 15 of 58 complainant to come to Mrignayani Restaurant with bribe money and she would get arrange meeting with Rajesh there. It is further added by Ld. Defence Counsel that as per case of prosecution at Mrignayani Restaurant, accused Baby Khan asked complainant to reach PS Bhajan Pura at the Office of accused Rajesh Kumar where accused Rajesh Kumar was waiting and hence, Raid Proceedings was closed at Mrignayani at 4:05 p.m. and Raiding team left for PS Bhajan Pura and reached there at 4:40 p.m. It is further added by Ld. Defence Counsel that though as per the case of the prosecution including the deposition of PW9/Raid Officer and PW21/IO, all the members of the Raiding team travelled together in the official vehicle from Mrignayani Restaurant to PS Bhajan Pura but same is falsified from the deposition of PW8/Panch witness as well as PW1/complainant besides Mobile Call Record of PW1/complainant, Mobile Call Record of PW9/Inspecftor M.S.Sangha, Raid Officer, Mobile Call Record of PW21/Inspector R.S.Yadav, IO. It is further added by Ld. Defence Counsel that as per PW8/Panch witness, he along with complainant and his friend travelled in the car of accused Baby Khan from Mrignayani to Bhajan Pura. Ld. Defence Counsel also added that from the Mobile Call Record of complainant and Inspector M.S.Sangha/Raid Officer, it is reflected that from 4:21 p.m. to 4:39 C.C. No. 20/11 Page No. 16 of 58 p.m., they have communicated with each other on their mobile 7 times and Inspector M.S.Sangha/Raid Officer and Inspector R.S.Yadav/IO communicated 3 times on their mobile phone from 4:17 p.m. to 4:41 p.m.i.e. during the period when they claimed to be traveling together from Mrignayani Restaurant to PS Bhajan Pura. It is further added by Ld. Defence Counsel that the important events i.e. the demand and acceptance of bribe, carrying out of Post raid Proceedings, arrest of the accused persons etc.as alleged to have taken place near the Office of the accused Rajesh inside the Complex of PS Bhajan Pura also found contradicted from the deposition of various PWs i.e. PW1/complainant, PW8/Panch witness, PW9/Raid Officer, PW21/IO besides the Mobile Phone Call Record of complainant Puran Chugh, that of Inspector M.S.Sangha/Raid Officer, that of PW21/Inspector R.S.Yadav/IO, that of accused Baby Khan and Cell ID Chart. It is also added by Ld. Defence Counsel that there was no explanation by the prosecution as regards communication through mobile phone 12 times between the complainant and the Raid Officer at the crucial time before Raid i.e. 5:09 p.m. to 5:42 p.m. It is also added by Ld. Defence Counsel that though it is the case of the prosecution that accused Baby Khan was apprehended at 5:45 p.m. and remained in custody of PW9/Raid Officer from 5:45 to 7:45 p.m. and in the custody of C.C. No. 20/11 Page No. 17 of 58 PW21/IO thereafter and mobile phone of accused Baby Khan remained in the custody of IO after its seizure, there is no explanation as to how said mobile phone of Baby Khan was being used from 8:39 p.m. till 11.12 p.m. as found reflected from the Mobile Call Record of accused Baby Khan Ex.PW20/A and Cell ID Chart Ex.PW20/D. It is also added by Ld. Defence Counsel that Raid Proceedings were not conducted at the spot but were conducted subsequently at the Office of Anti Corruption Branch and therefore, the relevant exhibits were handed over by the IO to PW5 R.K.Joshi on 25.05.2000. It is also added by Ld. Defence Counsel that the Post raid Proceedings could not have been concluded in less than two hours and therefore, the same could not be completed at the spot and has been completed afterwards in the Office of Anti Corruption Branch and same is found supported from the deposition of various PWs. It is also added by Ld. Defence Counsel that the prosecution has failed to establish regarding the demand and acceptance of bribe by the accused Rajesh Kumar through coaccused Baby Khan and therefore, this accused deserves to be acquitted. It is also added by Ld. Defence Counsel that this accused has been falsely implicated in this case by the complainant as he has felt humiliated when the accused Rajesh brought him to his Office on 17.5.2000 for making inquiry about Sanjeev Sabharwal, a Proclaimed C.C. No. 20/11 Page No. 18 of 58 Offender and Satbir. It is also added by Ld. Defence Counsel that this accused did not have any concern with the dispute between the complainant and PW16 Kuldeep Bhatia relating to the financing of the Car Loan which is substantiated from the fact that this accused had played no role in return of the said car as said car was returned through the intervention of Inspector Ram Mehar, being found supported from the deposition of PW1 as well as PW16. It is further added by Ld. Counsel that PW2 has passed the Sanction Order Ex.PW2/A mechanically without appreciation of the relevant material and said Sanction Order does not even disclose the detailed materials on the basis of which said Sanction Order has been passed and therefore, said Sanction Order Ex.PW2/A is legally invalid and accused Rajesh Kumar deserves to be acquitted on this count itself. Thus, Ld. Counsel for the accused Rajesh Kumar urged for acquittal of this accused and referred and relied upon following judgments:
1. AIR 1987 SC 2402 - GV Najudiah Vs. State
2. 124 (2005) DLT 371 - L.K. Jain Vs. The State
3. Cr. A.No.805/09 - Roshan Lal Saini Vs. C.B.I.
4. 2009 (4) RCR (Criminal) 880 Delhi Ram Chander Vs. State
5. 178 (2011) DLT 529 Prem Singh Yadav Vs. Central Bureau of Investigation C.C. No. 20/11 Page No. 19 of 58
6. 2009 (2) JCC 1210 Om Prakash Vs. State & Ors.
7. AIR 1979 Supreme Court 1408 Suraj Mal Vs. The State (Delhi Admn)
8. Karam Chand Vs. State CCC 2006 (1) Delhi High Court
9. Harchand Singh & Anr. Vs. State of Haryana 1974 AIR 344
10. AIR 1976 SC 975 Bhagirath Vs. State of M.P.
11. 2011 STPL (Web) 511 SCState of Kerala & Anr. Vs. C.P. Rao
12. Balak Ram Etc. Vs. The State of U.P: 1974 AIR 2165, 1975 SCR (1) 753
13. III (2009) CCR 55 - K. Giri Vs. State of A.P.
14. 1991 Cr.L.J. 2442 - Panchanan Rout Vs. State of Orissa
15. CC Cases 2004 (3) (HC) 261 - Mehar Chand Vs. State of Haryana
16. Vikramjit Singh @ Vicky Vs. State of Punjab 2006 SCC (Crl.)732
17. R.N. Poply & Pramod Kumar Vs. CBI - AIR 2003 SC 2748
18. 139 (2007) Delhi Law Times 407 Sunil Kumar Vs. State
19. Dilawar Singh Vs. State of Delhi Appeal (crl.) 491 of 2002
20. 2004 (3) CCC Abdul Wahid Vs. State of Rajasthan
21. Ram Kumar Pandey Vs. State of M.P. 1975 AIR 1026
22. 1 (2008) DMC 806 - Pyare Lal Vs. State
23. Varun Chowdhary Vs. State of Rajasthan (2011) 12 SCC 545
24. AIR 2005 Supreme Court 2804 - Mukhtiar Ahmed Ansari Vs. C.C. No. 20/11 Page No. 20 of 58 State
25. 2005 Cr.L.J. 299 - Vijay Singh Vs. State of M.P.
26. Khuman Singh Vs. State 1994 Cr.L.J. 1661
27. 2004 (3) CC Cases (SC) 324 - Sachey Lal Tewari Vs. State of U.P.
28. 139 (2007) Delhi Law Times 407 Sunil Kumar Vs. State
29. Pratap Singh & Anr. Vs. State of M.P. 2006 AIR 51
30. State of A.P. Vs. S.Rayaapa and Ors. 2006 (2) SCC (Cri) 353
12. Similarly, it is submitted by Ld. Counsel for the accused Kanwar Jahan @ Baby Khan that this accused is innocent and has been falsely implicated in this case. Ld. Counsel further submitted that this accused Baby Khan has no concern with accused Rajesh Kumar and has neither demanded nor accepted any bribe from the complainant at the instance of accused Rajesh Kumar. It is further added by him that on 24.05.2000 at about 11:00 a.m. this accused has received a phone call from complainant Puran Chugh on giving reference of her known persons Ram Aasre and Parmod and at the request of said Puran Chugh that his friend Satbir was having some problem in DC Cell, Bhajan Pura and to find out somebody who could help Satbir, the accused Baby Khan was having known person that is C.C. No. 20/11 Page No. 21 of 58 HC Parmanand posted in DC Cell and in order to get the help through said HC Parmanand, she had reached DC Cell, Bhajan Pura on dated 24.05.2000 at about 5:30 p.m.on the car driven by Satbir and said Satbir introduced her with complainant Puran Chugh and Inspector M.S.Sangha and Inspector M.S.Sangha asked her to become a witness against accused Rajesh Kumar for which she declined and ultimately, she has been falsely implicated in this case. It is further added by him that the accused Baby Khan has got no concern with the accused Rajesh Kumar nor has demanded any bribe amount from the complainant on behalf of the accused Rajesh Kumar. It is further added by him that the allegations of the complainant that he was introduced regarding this accused Baby Khan by the accused Rajesh Kumar, is found falsified even from the deposition of the complainant. It is further added by him that this accused Baby Khan had no conversation as regards any demand of bribe from the complainant nor have fixed up any date, time, venue regarding acceptance of any bribe from the complainant on behalf of the accused Rajesh Kumar. It is further added by him that even the deposition of PW1/complainant, itself found contradictory showing falsehood of demand of bribe by this accused as at one stage, complainant/PW1 has stated that on 24.05.2000 at 11:00 a.m.when he C.C. No. 20/11 Page No. 22 of 58 talked to Baby Khan, she asked him to come to Mrignayani Restaurant at 12:00 noon with Rs.25,000/ but he refused to meet her on the ground that it was not possible for him to arrange such huge amount at such short interval and at another stage, said PW1 has deposed that Baby Khan demanded Rs.50,000/ from him during the call at 11:00 a.m. on 24.5.2000 on behalf of coaccused Rajesh Kumar. Ld. Counsel further stated that prosecution has failed to establish the foundational aspects relating to agreement for the bribe amount, venue and time of payment between the complainant on one hand and both the accused persons on the other hand. It is further submitted by Ld. Counsel for the accused Baby Khan that the stand of the prosecution to the effect that PW1/complainant had arrived at AC Branch at 12:00 noon and lodged his Complaint Ex.PW1/A after which pre trap proceedings were conducted till 1:30 p.m. and thereafter, the Raiding team proceeded for Mrignayani Restaurant but said stand of the prosecution has been found falsified from the deposition of PW1/complainant as well as the Mobile Phone Call Record of the complainant and Cell ID Chart. It is further added by Ld. Counsel that as per Mobile Call Record of complainant Ex.PW3/C12 to 17 coupled with Cell ID Chart Ex.PW20/D, from 11:42 a.m. to 12:46 p.m. the complainant was present at Sunder Nagar C.C. No. 20/11 Page No. 23 of 58 and at 1:16 p.m. he was at Pragati Maiden which are far away from the location of Office of AC Branch. Furthermore, PW1/complainant himself has deposed that his statement was recorded at 1:45 p.m. and it took 50 minutes to record his statement and he also stated in contradiction to the Pre raid Report that the Raiding team has left the Office of AC Branch at 3:20 p.m. and the same falsify the aforesaid stand of the prosecution. It is further added by Ld. Counsel that the stand of the prosecution regarding visit by the Raiding team to Mrignayani Restaurant is falsified from the material available on the record as per Complaint Ex.PW1/A the reason to visit Mrignayani Restaurant was that during the alleged call at 11:00 a.m. on 24.05.2000 the accused Baby Khan had called the complainant with bribe money to Mrignayani Restaurant at 3:00 p.m. but said content of the Complaint Ex.PW1/A has been completely falsified from the deposition of PW1/complainant as he has deposed that during conversation at 11:00 a.m.Baby Khan had called him to Mrignayani Restaurant at 12:00 noon for which he declined. The Complainant/PW1 in his deposition has nowhere stated as to when the meeting time for 3:00 p.m. at Mrignayani Restaurant was fixed up and therefore, there was no reason on the part of the Raiding team to proceed for Mrignayani Restaurant for laying trap and the same also C.C. No. 20/11 Page No. 24 of 58 falsify the stand of the prosecution in this respect. It is further added by Ld. Counsel that the stand of the prosecution to the effect that the Raiding team left Anti Corruption Branch at 1:30 p.m. and had reached Mrignayani Restaurant at 2:00 p.m. and remained there up to 4:00 p.m. and thereafter, the complainant and Panch witness came out from the Restaurant and met accused Baby Khan sitting in a Zen Car who asked them to reach Bhajan Pura where coaccused Rajesh Kumar was waiting for them and thereafter, the entire Raiding team proceeded to PS Bhajan Pura in the government vehicle, found falsified from the deposition of PW1/complainant, PW8/Panch witness, PW9/Raid Officer, PW21/IO besides the Mobile Phone Call Record of complainant, accused Baby Khan, PW9/Raid Officer, PW21/IO and Cell ID Chart. It is further added by Ld. Counsel that the presence of PW1/complainant at Mrignayani Restaurant, Dilshad Garden between 2:00 p.m. to 4:00 p.m. as per the stand of the prosecution is completely falsified from the Mobile Call Record of the complainant as said complainant was found to be present in Mukherjee Nagar at 2:43 p.m. and in Civil Line at 3:10 p.m. which are far away from the location of Mrignayani Restaurant at Dilshad Garden. Furthermore, even the complainant/PW1 himself has not supported said stand of the prosecution regarding reaching C.C. No. 20/11 Page No. 25 of 58 Mrignayani Restaurant at 2:00 p.m. as he has stated that he along with the Raiding team reached Mrignayani Restaurant at 3:45 p.m. It is further added by Ld. Counsel that even the stand of the prosecution regarding reaching of accused Baby Khan at Mrignayani Restaurant at 4:00 p.m. is also found falsified from the Mobile Phone Call Record of accused Baby Khan which is Ex.PW3/C1 to C11 coupled with Cell ID Chart Ex.PW20/D which reflect that from 2:00 p.m. to 4:12 p.m. accused Baby Khan was present at Patparganj which is far away from location of Mrignayani Restaurant, Dilshad Garden. It is further added by Ld. Counsel that the presence of the accused Baby Khan near Mrignayani Restaurant at 4:01 p.m. in the Maruti Zen Car bearing No. UP 14K 2876, is also found falsified even from the deposition of PW15 who has stated that said Car was handed over by him to one Madan at Maharajpur Chowk which is at UP Border around 4:00 p.m. and prosecution has failed to establish any connection between PW15, Madan and accused Baby Khan in this respect. It is further added by Ld. Counsel for accused that as per the Raid Report and statement of PW9/Raid Officer and PW21/IO, all the members of the Raiding team including the complainant and Panch witness have travelled together in the government vehicle from 4:05 p.m. to 4:40 p.m. from Mrignayani Restaurant to DC Cell, Bhajan Pura but the said stand of C.C. No. 20/11 Page No. 26 of 58 the prosecution found contradicted from the deposition of complainant/PW1 as well as Panch witness/PW8 as PW8/Panch witness has deposed that he along with complainant travelled together in the car of Baby Khan whereas complainant/PW1 has deposed that Panch witness along with his friend had gone from Mrignayani Restaurant in the car of Baby Khan while he travelled with other members of the Raiding team in government vehicle. It is further added by Ld. Counsel that the version of PW1/complainant, PW9/Raid Officer and PW21/IO to the effect that they have travelled together in the government vehicle from Mrignayani Restaurant to DC Cell, Bhajan Pura have been falsified from the Mobile Phone Call Record of the complainant, Raid Officer and IO which reflect that during the alleged travel from Mrignayani Restaurant to Bhajan Pura from 4:05 p.m. to 4:40 p.m., the complainant and Raid Officer had talked on their mobile 7 times and the Raid Officer and the IO had talked on their mobile 3 times and the same falsify the stand of the prosecution in this respect. It is further added by Ld. Counsel for the accused Baby Khan that the deposition of complainant/PW1 cannot be treated as trustworthy and reliable as it found to suffer from much improvement from his earlier police statement and his complaint Ex.PW1/A, also found contradicted from the deposition of connected C.C. No. 20/11 Page No. 27 of 58 PWs. It is further added by Ld. Counsel that no proceeding had taken place at Mrignayani Restaurant and said fact also found corroborated from the deposition of PW8/Panch witness who has clearly stated that no writing work was done at Mrignayani Restaurant and his signatures were not obtained on any document at Mrignayani Restaurant. It is further added by Ld. Counsel that no meeting between complainant, Panch witness and accused Baby Khan had taken place at Mrignayani Restaurant and the story in this respect has been manipulated by the prosecution. It is further added by Ld. Counsel that the accused Baby Khan had not reached Bhajan Pura at 4:40 p.m. as claimed by the prosecution but she was taken to Bhajan Pura at about 5:30 to 5:40 p.m. by Satbir in a car as per discussion with the complainant to meet HC Parmanand of DC Cell, North East in order to seek help from him for Satbir. It is further added by Ld. Counsel that the accused Baby Khan had no meeting or conversation with accused Rajesh Kumar and complainant and had neither demanded nor accepted any bribe from the complainant at PS Bhajan Pura and the same has been found established from the material as available on the record. It is further added by Ld. Counsel that as per prosecution, accused Baby Khan is stated to have been apprehended by PW9/Raid Officer at 5:45 p.m.and thereafter, PW21/IO has C.C. No. 20/11 Page No. 28 of 58 arrested her at Bhajan Pura and seized mobile phone from her possession vide Personal Search Memo Ex.PW3/D which remained in his possession and deposited the same in Malkhana PS Civil Line but the Mobile Call Record of said Baby Khan Ex.PW3/C1 to 11 read with Cell ID Chart Ex.PW20/D show that said mobile phone of Baby Khan was in use till 1112 p.m. Hence, prosecution version of apprehension of accused Baby Khan at 5:45 p.m. and seizure of GC notes and taking of the hand washes at the spot are falsified and it established that she was falsely implicated in the Office of AC Branch after 1112 p.m. on 24.05.2000. It is further added by Ld. Counsel that as per the stand of the prosecution, apart from the Post raid Report, various other documents i.e. Ex.PW1/B and Ex.PW1/C are alleged to have been prepared at the spot but same is falsified from the deposition of complainant/PW1, Panch witness/PW8 and Raid Officer/PW9 as the complainant/PW1 has deposed that the said documents were prepared in the room of ACP, DC Cell whereas PW9/Raid Officer stated that the said documents were prepared in the room of accused Rajesh Kumar but PW8/Panch witness stated that all the documents were prepared at the Office of Anti Corruption Branch. It is further added by Ld. Counsel that PW5/R.K.Joshi has deposed that the case property along with sample seal were handed over to him C.C. No. 20/11 Page No. 29 of 58 by the IO on 25.05.2000 and there is no explanation as to why the IO had not handed over the same to said PW5 on 24.05.2000 which also established that the relevant documents have been prepared subsequently in the Office of Anti Corruption Branch and not at the spot. It is further added by Ld. Counsel that this accused Baby Khan has no concern with the accused Rajesh Kumar and has neither demanded nor accepted any bribe from the complainant but as she refused to be a witness against the accused Rajesh Kumar, she has been falsely implicated in this case. Ld. Counsel further added that even otherwise the prosecution has failed to establish its case as against the accused Baby Khan and hence, urged for her acquittal and referred and relied upon following judgments:
1. Subhash Chand Chauhan Vs. C.B.I. 117 (2005) DLT 187
2. Smt. Meena W/o Sh.Balwant Khemke Vs. State of Maharashtra (2000) 5 SCC 21
3. Sunil Kumar Sharma Vs. State (CBI) 139 (2007) DLT 407
4. Ajay Goswami Vs. State 179 (2011) DLT 798 (DB)
5. State Vs. Kuldeep Kumar 2011 (3) CC Cases (HC) 13
6. Pannalal Damodar Rathi Vs. State of Maharashtra AIR 1979 SC 1191
7. Madkami Baja Vs. State 1986 Cr.L.J. 433 C.C. No. 20/11 Page No. 30 of 58
8. Prem Singh Yadav Vs. C.B.I. 178 (2011) DLT 529
9. PK Gupta Vs. CBI 181 (2011) DLT 706
10. Suraj Mal Vs. State (Delhi Administration) Supreme Court AIR 1976 SC 1408
11. Manpreet Singh & Anr. Vs. State 2004 (1) CC Cases (HC) 74
12. Radkha Krishnan Vs. State (Delhi) 87 (2000) DLT 106
13. Mt. Titli Vs. Alfred Robert Jones AIR 1934 Allahabad 273
14. Mohammad Haneef Sheikh Vs. State of Gujarat 1995 (1) Crimes 274
15.Suleman Usman Memon Vs. State of GujaratAIR 1961 Gujarat 120
16. Rishidev @ Onkar Singh Vs. State (Delhi Adm.) Delhi High Court Crl. Appeal No. 757 of 2000. on 1st May, 2008
17. Mehar Singh Vs. State of Himachal Pradesh 2011 Cr.L.J. 499
18. Mohammad Hussain Baba Mian Vs. State of Maharashtra 1994 Cri. L.J. 1020
13. To the contrary, it is submitted by Ld. Addl. PP for the State that the prosecution by examining 21 PWs have clearly established its case as against both the accused and therefore, both the accused deserve to be convicted for the charged offence. It is further added by C.C. No. 20/11 Page No. 31 of 58 Ld. Addl. PP for the State that the complainant PW1 Puran Chugh, PW8/Arun Satija,Panch witness, PW9/Inspector M.S.Sangha,Raid Officer and PW21/Inspector R.S.Yadav,IO have clearly deposed as against the accused persons regarding the demand and acceptance of bribe and there is no reason as to why they would falsely implicate the accused persons when they had no earlier enmity against them. It is further added by Ld. Addl. PP for the State that from the deposition of PW16/Kuldeep Bhatia, it is established that the complainant had got finance of loan for one Tata Safari from them and as loan was rejected, said Tata Safari was returned by the complainant on the asking of accused Rajesh Kumar who has demanded bribe from the complainant under the threat that otherwise he would implicate him in some false case. It is further added by Ld. Addl. PP for the State that it is accused Rajesh Kumar who introduced the accused Baby Khan to the complainant and said accused Baby Khan had demanded and accepted the bribe on behalf of accused Rajesh from the complainant. It is further added by Ld. Addl. PP for the State that certain contradictions in the deposition of PWs are merely formal in nature and can be of no help for the accused persons.It is further added by Ld. Addl. PP that mere fact that the CBI had declined to initiate any raid proceeding on the complaint of the complainant Puran Chugh C.C. No. 20/11 Page No. 32 of 58 cannot be treated as fatal for the case of the prosecution in view of the fact that PW1/complainant himself has deposed that CBI people had declined to initiate raid on his complaint as they stated that the accused Rajesh was not demanding bribe directly but through somebody else and therefore, they declined to initiate action and asked the complainant to approach Anti Corruption Branch and consequently the complainant went to Anti Corruption Branch on 24.05.2000 and has finally lodged the said Complaint Ex.PW1/A on the basis of which the Raid has been conducted by the Anti Corruption Branch. It is also added by Ld. Addl. PP that the accused have also failed to prove their defence and the same goes against them. Ld. Addl. PP further added that the prosecution has been successful in establishing its case against both the accused persons and urged for their conviction.
14. The first and foremost question having significant bearing on the fate of this case is whether prosecution has proved that valid Sanction has been accorded by the Competent Authority as per Section 19 (1) of Prevention of Corruption Act, 1988 as against the accused Rajesh Kumar. With regard to this aspect, during course of argument, it is submitted by Ld. Counsel for accused Rajesh Kumar C.C. No. 20/11 Page No. 33 of 58 that PW2 has passed the Sanction Order Ex.PW2/A mechanically without appreciation of the relevant material and said Sanction Order does not even disclose the detailed materials on the basis of which said Sanction Order has been passed and therefore, said Sanction Order Ex.PW2/A is legally Invalid and accused Rajesh Kumar deserves to be acquitted on this count itself. In order to prove the Sanction as against the accused Rajesh Kumar, the prosecution has examined PW2 Sh.Suresh Roy, the then Joint Commissioner of Police, New Delhi who has deposed that on 3.5.2001 he was posted as Joint Commissioner of Police, New Delhi and a request was received from Anti Corruption Branch to grant Sanction for prosecution against the accused Rajesh Kumar along with copy of Chargesheet, statement of witnesses and other relevant documents relating to this case and after perusal of the same, he accorded the Sanction on 3.5.2001 which is Ex.PW2/A which bears his signatures at point P. In the cross examination by Ld. Counsel for the accused Rajesh Kumar, he added that he might have received said request about 7 days before he accorded the Sanction. He also added that he did not peruse any other file except the material received from Anti Corruption Branch. Said PW2 in the cross examination by Ld. Counsel for the accused Rajesh Kumar has further deposed as under: C.C. No. 20/11 Page No. 34 of 58 "It is correct that I did not mention in the sanction order that there was an initial demand of bribe Rs.1,00,000/ and that there were negotiations and I did not mention these facts in the sanction order. It is incorrect to suggest that I did not record these immediately preceding facts because I did not apply my mind and that documents were not placed before me and that I had not gone through any document of this case. It is correct that I did not mention as to on which date there was a demand of bribe and on which date there was acceptance."
15. The deposition of said PW2/Suresh Roy that he has gone through the copy of the Chargesheet relating to this case as placed before him prior to according Sanction Ex.PW2/A on dated 3.5.2001 is found falsified in view of the fact that from the perusal of the case file, it is clearly reflected that the said Chargesheet has been prepared by Inspector R.S.Yadav/IO on dated 18.5.2001 and therefore, copy of said Chargesheet dated 18.5.2001 was certainly not available being not in existence before PW2/Suresh Roy on dated 3.5.2001 when he has accorded the Sanction for prosecution as against the accused Rajesh Kumar vide Sanction Order Ex.PW2/A. Furthermore, said C.C. No. 20/11 Page No. 35 of 58 PW2 in his cross examination by Ld. Defence Counsel has clearly admitted that he has not mentioned in the Sanction Order that there was initial demand of bribe of Rs. 1 Lac and then there was negotiations, the date on which demand of bribe was made and date on which there was acceptance. Said vital facts relating to the demand of bribe are not found mentioned in said Sanction Order Ex.PW2/A reflecting thereby the relevant material in this respect were either not available before the said Sanctioning Authority or the same were not gone through before passing the said Sanction Order.
16. Furthermore, from the perusal of the said Sanction Order Ex.PW2/A, it is clearly reflected that said Sanction Order does not disclose about the details of the documents/material on the basis of which said PW2 has accorded the Sanction nor it discloses about the grounds of satisfaction in pursuance of which the Sanctioning Authority has passed his Sanction Order. Said facts are clearly found established from the bare perusal of the relevant part i.e. Para 3 of said Sanction order Ex.PW2/A which reads as under: "Whereas I Suresh Roy, Joint Commissioner of Police, New Delhi Range being the authority competent to remove Sh.Rajesh Kumar,Inspr.No.DI/661 from service / office after examining carefully the material placed before me in regard to the said act and allegation and circumstances of C.C. No. 20/11 Page No. 36 of 58 the case, consider that the said Sh.Rajesh Kumar, Inspr. No. DI/661, be prosecuted in the court of law for the said offence / offences."
17. In the case reported as Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (1997) 7 SCC 622, it was observed by Hon'ble Supreme Court of India as under: "The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all the relevant facts were considered by the sanctioning authority."
18. Furthermore, in another case reported as 1995 Crl.L.J. 4195 N.M.Rajendran Vs. State, it was observed in Para 20 as under: "Though a report of the Director of Vigilance and Anti Corruption with a particular reference number has been referred in the column of reference and in paragraph six, full and careful examination of materials placed before the C.C. No. 20/11 Page No. 37 of 58 sanctioning authority was referred to, it is manifest and apparent that it is not known what are all the documents that have been relied upon by the Sanctioning Authority to arrive at the satisfaction and what are all the grounds of satisfaction are totally absent in this case. Above all evidence aliunde involved in this case prostrating the facts leading to the offences before the Sanctioning Authority and his perusal of the same is also absent totally in this case. In short, I would like to add that the sanctioning authority has not applied its mind with reference to the evidence leading to the facts constituting the offence committed by the appellant herein and thereupon, he has accorded the sanction. Thus it is seen that the according of sanction is not an idle formality but a solemn and sacrosanct act following the consideration of all the materials placed before him not to be guided by extraneous considerations, which alone provides the protection to public servants against frivolous prosecutions and litigations,. This requirement of law is necessarily incumbent upon the investigating agency, to be complied with, before launching prosecution against the person accused of the offence under the Act."
19. The law relating to the Sanction is strict in its requirements that is to say there has to be a valid Sanction for commencement of the trial. Where the Sanction has been accorded by a person who was not competent to accord the said Sanction, the same has been held not C.C. No. 20/11 Page No. 38 of 58 to be valid Sanction or further it matter that a Sanction has been accorded without application of mind, the same has also been held not to be a valid Sanction. Criteria laid down for grant of Sanction has to fall within the four corners of the Sanction and any deviation in this regard would result in initiating the trial without a valid Sanction has been held to be a trial without jurisdiction by the court and it was so held by Hon'ble Supreme Court of India in the case reported as S.N.Bose Vs. State of Bihar AIR 1968 SC 1292.
20. The requirement of the existence of Sanction cannot be given by mere interpretation to the effect that once cognizance is taken the absence of Sanction become irrelevant. "If cognizance itself cannot be taken in the absence of sanction and taking cognizance of an offence by whatever means cannot justify the existence or absence of Sanction. Infact as strictly speaking if there does not exist any valid Sanction, it cannot be said that the cognizance of offence, was taken by itself, cannot cure the defect in this regard, hence the prosecution of the appellant was vitiated". It was so held by Hon'ble Supreme Court of India in the case reported as K.Narsimhachari Vs. State Inspector of Police ACB Cuddapha District 2003 Crl.L.J. 3315.
C.C. No. 20/11 Page No. 39 of 58
21. Granting of Sanction U/S 19 of the Prevention of corruption Act, 1988 is not a mere formality and it is necessary that all the facts on which prosecution has relied upon must be before Sanctioning Authority and the burden of proving the same is squarely on the head of the prosecution. If any material facts which go to the root of the matter and investigation are not brought to the knowledge of Sanctioning Authority, it cannot be said that Sanctioning Authority had applied his mind before granting Sanction for prosecution.
22. By taking cue from the aforesaid judgments and keeping in mind the legal requirement relating to the grant of Sanction and applying the same to the present Sanction Order Ex.PW2/A which found not stating the detailed of the materials/documents which have been examined by the Sanctioning Authority before according Sanction and keeping in mind that the Chargehsheet dated 18.5.2001 was certainly not available before the Sanctioning Authority on dated 3.5.2001 when said Sanction Order was passed, I have no hesitation to safely conclude that said Sanction Order Ex.PW2/A suffer from serious legal infirmities and is legally Invalid. C.C. No. 20/11 Page No. 40 of 58
23. Besides that from the perusal of the material as available on the record, it is clearly reflected that there are several contradictions on various aspects as found revealed from the deposition of 4 material PWs i.e. PW1/Puran Chugh/complainant, PW8/Arun Satija/ Panch witness, PW9/Inspector M.S.Sangha/Raid Officer and PW21 Inspector R.S.Yadav/IO whereby hitting at the root of the case of the prosecution and some of said contradictions are as given below: (1) On the point as regards the time as to when the complainant came to Anti Corruption Branch and when his Complaint Ex.PW1/A was written, at one stage PW1/complainant deposed in this respect as under: "On 24.5.2000 at about 12:30 p.m. I reached in Anti Corruption Branch........................................................................................... In Anti Corruption Branch, my statement Ex.PW1/A was recorded in presence of Panch witness Arun Satija."
At another stage, said PW1/complainant has deposed in this respect as under: "My complaint was recorded at about 1:30 p.m. It was not recorded at 12:00 noon. It had taken about 50 minutes to record my statement."
Whereas PW8/Panch witness by taking contradictorty stand C.C. No. 20/11 Page No. 41 of 58 has deposed in this respect as under: "I reported in Anti Corruption Branch at about 10:30 A.M. complainant P.K.Chugh came in Anti Corruption Branch after one or two hours. I was called in the room of the Raid Officer. The Complaint was recorded in my presence which is Ex.PW1/A which bears my signatures at point B."
(2) On the point as regards the time as to when the Raiding team including the complainant left AC Branch for Mrignayani Restaurant and the time as to when they reached Mrignayani Restaurant, PW1/complainant has deposed in this respect as under: "When we started from Anti Corruption Branch, the wrist watch of Inspector Sangha was showing 1:30 p.m. whereas my watch was showing 3:00 p.m................................................................. As per time in my watch we reached at Mrignayani Restaurant at 4:00 p.m."
Whereas PW8/Panch witness has deposed in this respect as under : "At about 1:00 p.m. I along with complainant, Raid Officer along with other police officials of Anti Corruption Branch left the Anti Corruption Branch in the government vehicle and reached at C.C. No. 20/11 Page No. 42 of 58 Mrignayani Restaurant at about 2:00 p.m."
Whereas PW9/Raid Officer has deposed in this respect as under: "On that day, at about 1:30 p.m., I along with complainant, Panch witness, Inspector R.S.Yadav, SI S.N.Pandey, W/SI Kaushal Pandey, Head Constable Asad Raza, Constable Om Prakash left Anti Corruption Branch for Mrignayani Restaurant, Dilshad Garden in a government vehicle and we reached there at about 2:00 p.m."
(3) On the point as to how complainant, friend of complainant, Panch witness and other raiding team members left Mrignayani for Bhajan Pura, PW1/complainant has deposed in this respect as under: "Arun Satija/Panch witness and my friend took a seat in car of accused Baby Khan and I followed her car in the vehicle of Raid Party. Thereafter, we reached at PS Bhajan Pura."
Whereas PW8/Panch witness by taking contradictory stand has deposed in this respect as under: "Thereafter, I along with the complainant sat in the car of Baby Khan and went to PS Bhajan Pura and reached there at about 4:30 p.m. I do not know what happened to the government C.C. No. 20/11 Page No. 43 of 58 vehicle."
Whereas PW9/Raid Officer by taking contradictory stand has deposed in this respect as under: "When we left Mrignayani Restaurant, the complainant and Panch witness were with us in the government vehicle. Panch witness and complainant did not go to PS Bhajan Pura in the car of Baby Khan."
(4) On the point as to whether the Complainant and Panch witness were relieved from the spot or they were brought to the Anti Corruption Branch after raid, PW1/complainant has deposed in this respect as under : "It is correct that I came straight from the spot to Anti corruption Branch and did not stop anywhere. I left the Anti Corruption Branch at about 3:00 a.m. During this time, it was told to us that some police officials had gone to the house of accused Rajesh and during that time, Insp.M.S.Sangha along with one Sub Inspector were doing the writing work."
Whereas PW21/IO by taking contradictory stand has deposed in this respect as under: "I left PS Bhajan Pura for Anti Corruption Branch at about 10:15 C.C. No. 20/11 Page No. 44 of 58 p.m. along with Raiding team and both accused persons. Complainant and Panch witness were freed from the spot. They have not come to Anti Corruption Branch along with me."
Whereas PW8/Panch witness by taking contradictory stand has deposed in this respect as under: "I left Anti Corruption Branch around 4:00 a.m. after seeking permission of Investigating Officer Inspector R.S.Yadav. When the proceedings were being conducted in Anti Corruption Branch, I came to know the name of Insp. R.S.Yadav. I was not knowing him by face earlier to then. I remained in the room of Insp.R.S.Yadav after reaching Anti Corruption Branch after raid till I left Anti Corruption Branch at 4:00 a.m."
(5) On the point as regards the place where the writing work relating to Raid Proceedings were conducted, PW8/Panch witness has deposed in this respect as under: "Memo Ex.PW1/B was prepared at Anti Corruption Branch. The bottles were sealed at PS Bhajan Pura. The Post Raid Proceedings Ex.PW1/G were drawn at Anti Corruption Branch..............................................................................................
At another stage, said PW8/Panch witness has deposed in this C.C. No. 20/11 Page No. 45 of 58 respect as under: "The writing work was done after coming from the raid at PS Civil Lines."
Whereas PW9/Raid Officer by taking contradictory stand has deposed in this respect as under: "The Post Raid Proceedings Ex.PW1/G were conducted while sitting in the room of Insp. Rajesh. All the proceedings regarding the seizure of bribe money, the seizure of bottles, rukka etc. were conducted in the room of Insp. Rajesh."
(6) On the point as to from where the money was recovered, PW1/complainant has deposed in this respect as under: "Accused Baby Khan became perplexed and she had thrown away the money on the seat of the car. Panch witness with the help of W/Sub Inspector Kaushal Pandey picked up the notes."
whereas PW8/Panch witness by taking contradictory stand has deposed in this respect as under: "Thereafter, on the asking of officials of Anti Corruption Branch I recovered the GC notes from accused Baby Khan and handed over the same to Insp.Sangha.
Whereas PW9/Raid Officer by taking contradictory stand C.C. No. 20/11 Page No. 46 of 58 has deposed in this respect as under: "Thereafter, accused Baby Khan extended those GC notes towards me and I instructed the Panch witness to take the bribe money from accused Baby Khan. Panch witness took those GC notes from accused Baby Khan."
(7) On the point as to whether accused Baby Khan was alone in the car or the driver was there in the car when she reached Mrignayani Restaurant, PW8/Panch witness has deposed in this respect as under: "The car of Baby Khan stopped in front of Mrignayani Restaurant and not on the other side of the road. In that car there was nobody else except Baby Khan."
Whereas PW9/Raid Officer by taking contradictory stand has deposed in this respect as under: "Driver of Baby Khan was driving the car when she left Mrignayani Restaurant. Driver of Baby Khan was present at the spot at the time of raid."
(8) On the point as to when and how the Raiding team left PS Bhajan Pura for AC Branch, PW8/Panch witness has deposed in this respect as under: "We left PS Bhajan Pura at about 8:008:30 P.M. Myself, C.C. No. 20/11 Page No. 47 of 58 complainant and Insp.Sangha came in one vehicle from PS Bhajan Pura to Anti Corruption Branch and I do not know about the other. I do not know how Baby Khan from PS Bhajan Pura was taken to Anti Corruption Branch."
Whereas PW9/Raid Officer by taking contradictory stand has deposed in this respect as under: "We left PS Bhajan Pura after the raid in between 9:00 to 10:00 p.m. for Anti Corruption Branch along with both the accused persons and other members of the raiding team. The complainant was freed from the spot and rest of the members of raiding team along with both the accused persons returned to Anti Corruption Branch in one government vehicle."
Whereas PW21/IO by taking contradictory stand has deposed in this respect as under: "I left PS Bhajan Pura for Anti Corruption Branch at about 10:15 p.m. along with Raiding team and both accused persons. Complainant and Panch witness were freed from the spot. They have not come to Anti Corruption Branch along with me."
Whereas PW1/complainant by taking contradictory stand has deposed in this respect as under: C.C. No. 20/11 Page No. 48 of 58 "We had left from PS Bhajan Pura after the trap at about 8:00 or 8:30 P.M. for AC Branch. Inspector M.S.Sangha, Inspector R.S.Yadav, Mr.Joshi, ACP who had come from AC Branch had all returned with us from PS Bhajan Pura after trap. Both the accused persons were also brought by the raid team along with them at AC Branch."
(9) On the point as to who had brought the accused persons from the spot to AC Branch and by what time, PW5/ACP R.K.Joshi has deposed in this respect as under: "On the direction of senior official I moved to PS Bhajan Pura and reached the Police Station at about 6:30/6:45 P.M. When I reached there I met Inspector Sangha and other staff near the office of Rajesh Kumar. I remained present on the spot for about 1 or 1 ½ hour and thereafter we came back to AC Branch.............................................................................................
As regards my statement about the word "we" it includes the staff who was with me and the accused persons i.e. Rajesh Kumar and another lady. I cannot say whether the members of raiding party also returned to AC Branch at that time only as they were having separate vehicle and had not travelled in C.C. No. 20/11 Page No. 49 of 58 my vehicle. As per the time period stated, it could be around 9:00 p.m.that we reached AC Branch."
Whereas PW21/IO by taking contradictory stand has deposed int his respect as under: "I left PS Bhajan Pura for Anti Corruption Branch at about 10:15 P.M. along with the raiding team and both the accused persons. Complainant and Panch witness were freed from the spot. They have not come to Anti Corruption Branch along with me." (10) On the point as to whether PW9/Raid Officer and PW21/IO were having mobile phone during the Raid Proceedings, PW9/Raid Officer has deposed in this respect as under: "It is correct that I got two mobile phones issued officially from Anti Corruption Branch before proceeding for raid. I do not remember the numbers of those mobile phones. I cannot say if the numbers were 9810148126 and 9810148127."
Whereas PW21/IO by taking contradictory stand has deposed in this respect as under: "I was not having any government cell phone. I do not know if the Raid Officer was having cell phone."
However, the Call Record of Mobile Phone no.9810148126 C.C. No. 20/11 Page No. 50 of 58 of PW9 M.S.Sangha which is Ex.D1W5/A2 and the Call Record of Mobile Phone no. 9810148127 of PW21/IO which is Ex.D1W5/A1 reflect that both of them had talked to each other on their said mobile phones 18 times from 3:36 p.m. to 5:40 p.m. when they were on raiding duty.
24. From the perusal of the record, it is reflected that the stand of the prosecution regarding the demand of bribe by the accused Rajesh Kumar from the complainant could not be found established by the prosecution in view of several inconsistent depositions of PW1/complainant at different stages which is further found contradicted from the Call Record of the Mobile Phone no. 9811158608 of complainant Puran Chugh Ex. PW3/C12 to C17 and Call Record of Mobile Phone No. 9811032761 of accused Kanwar Jahan @ Baby Khan which is Ex.PW3/C1 to C11 coupled with the Mobile ID Chart Ex.PW20/D. (A) As PW1/complainant has deposed that on 20.05.2000 he received a phone call on his mobile from accused Rajesh Kumar asking him to meet in his Office and thereafter, on 22.05.2000 when he met accused Rajesh Kumar in his Office at PS Bhajan Pura, accused Rajesh Kumar asked him about the purpose of his visit there and also asked him C.C. No. 20/11 Page No. 51 of 58 whether he had brought Rs.1 Lac or not and the said deposition of the complainant concerning accused Rajesh Kumar appear to be contradictory in nature as on the one hand, he was asking him about the purpose of visit there and on the other hand, asking the complainant as to whether he had brought sum of Rs. 1 Lac specifically when there was no such previous demand by the accused Rajesh Kumar from the complainant.
(B) As per Complaint Ex.PW1/A, the accused Rajesh Kumar had again made a phone call on the Mobile of the complainant and scaled down his demand to Rs.70,000/ and then to Rs.25,000/ but PW1/complainant in his deposition has stated that on dated 23.05.2000, he had received one phone call on his Mobile at 10.05 a.m. when he was at Yamuna Vihar and another call at 5:00 p.m. when he was at CBI Office from accused Rajesh Kumar demanding money from him. The said deposition of PW1/complainant regarding receipt of phone call on his Mobile on 23.05.2000 at 10.05 a.m. is found falsified from the Mobile Phone Call Record of the complainant Ex.PW3/C12 to C17 due to absence of any incoming call between 9:18 AM to 12:25 AM on 23.05.2000 on the Mobile phone of the complainant. Furthermore, the deposition of PW1/complainant that he had received phone call from accused Rajesh Kumar at 5:00 PM on C.C. No. 20/11 Page No. 52 of 58 dated 23.05.2000 when he was in CBI Office, is also found falsified from the Mobile Phone Call Record of complainant Ex.PW3/C12 to C17 and Cell ID Chart Ex.PW20/D which reflect that the complainant was present from 4:53 PM onwards at Yamuna Vihar which is far away from the location of CBI Office at Lodhi Road and therefore, said deposition of the complainant could not appear to be trustworthy. Furthermore, though in his Complaint Ex.PW1/A, the complainant has stated that accused has scaled down his demand to Rs.70,000/ and thereafter, to Rs.25,000/ but said complainant/PW1 has not deposed in the court in this aspect.
(C) PW1/complainant has further deposed that he talked to accused Baby Khan on dated 24.05.2000 at about 11:00 a.m. and she asked him to come at Mrignayani Restaurant with Rs.25,000/ at about 12:00 noon for which she declined being unable to arrange such amount within short period but in his Complaint Ex.PW1/A, said complainant has taken the contradictory stand by stating therein that when he talked to accused Baby Khan on Mobile phone at about 11:00 a.m. on 24.05.2000, Baby Khan asked him to bring Rs.25,000/ at 3:00 p.m. at Mrignayani Restaurant at Dilshad Garden. Thus, the contents of said part of Complaint Ex.PW1/A is found contradicted from the deposition of complainant/PW1 before the court in this C.C. No. 20/11 Page No. 53 of 58 respect.
(D) PW1/complainant by again taking contradictory stand has deposed that when he met accused Baby Khan at Mrignayani Restaurant, she demanded Rs.50,000/ to which he responded that he has brought Rs.25,000/ and declined to pay the said amount to her. (E) The complainant/PW1 has further deposed that when he met accused Rajesh at his Office on 24.05.2000, he demanded Rs.50,000/ from him.
25. Furthermore, in case there was any demand of bribe by the accused Rajesh Kumar from the complainant on dated 22.05.2000, there is no reason as to why the complainant had not lodged any complaint in this respect to Sri Rama Krishnan, Special Commissioner of Police, Delhi with whom the said complainant had good relations and the complainant has stated that he had already intimated said Sri Rama Krishnan, Special Commissioner of Police, Delhi on dated 18.05.2000 about the factum of bringing of the complainant by accused Rajesh Kumar to PS Bhajan Pura on dated 17.05.2000 as said complainant/PW1 has deposed in this respect as under: "On 18.05.2000 I went to Sri Rama Krishnan, Addl. C.C. No. 20/11 Page No. 54 of 58 Commissioner of Police. I know him personally and told him about my alleged arrest, insult and humiliation by Inspector Rajesh Kumar. I did not give him anything in writing. He (Rama Krishnan) asked his P.A.Sharwan Kumar to inquire into the matter."
26. Furthermore, from the perusal of DD No.7 dated 18.05.2000 as lodged at 4:40 p.m., copy of which is Ex.PW4/D5, it is clearly reflected that said Sharwan Kumar P.A. to Sri Rama Krishnan, Special Commissioner of Police, Delhi had already inquired the matter in this respect and therefore, the subsequent demand of bribe by the accused Rajesh Kumar on dated 22.05.2000 from the complainant after having knowledge of the fact that complainant was having good contact with Sri Rama Krishnan, Special Commissioner of Police, does not inspire credence.
27. In view of the aforesaid contradictory stand of the complainant in his court deposition and as per his Complaint Ex.PW1/A, which further found contradicted from his Mobile Call Record Ex.PW3/C12 to C17 and Cell ID Chart Ex.PW20/D, the demand of bribe by the accused Rajesh Kumar through accused Baby C.C. No. 20/11 Page No. 55 of 58 Khan could not be established by the prosecution.
28. Since the prosecution has failed to establish regarding the factum of the demand of bribe by the accused persons from the complainant, the presumption as contemplated U/S 20 of Prevention of Corruption Act, 1988 cannot be attracted in this case and my said view is found supported from the judgment as rendered by Hon'ble Supreme Court of India in the case reported as AIR 2007 SC 489 "V.Venkata Subbarao vs. State represented by Inspector of Police, A.P." In Para 24 of the said judgment, it was observed by Hon'ble Supreme Court of India as under: "Submission of the learned counsel for the State that presumption has rightly been raised against the appellant, cannot be accepted as, inter alia, the demand itself had not been proved. In the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of a presumption only if a demand is proved".
29. In the absence of proof of "Demand of bribe" by the C.C. No. 20/11 Page No. 56 of 58 accused persons, I am of the considered view that the accused Rajesh Kumar cannot be held liable for penal provisions U/S 7 and Section 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988 and accused Kanwar Jahan @ Baby Khan cannot be held liable for offence punishable U/S 12 of Prevention of Corruption Act, 1988 for abatement of the commission of offence punishable U/S 7 of Prevention of Corruption Act, 1988 by accused Rajesh Kumar for which they have been charged with and my said view is found supported from the following judgments: (1)2006 (1) SCC 401 "T.Subramanian Vs. State of Tamil Nadu"
(2) 2005 Crl.L.J. 1136 "State of H.P. Vs. Sukhdev Singh Rana"
(3) 2007 Crl.L.J. 2919 "State of M.P.vs. Anil Kumar Verma"
(4) 2006 (3) RCR (Crl.) 796 "Amrit Lal vs. State of Punjab"
(5) 2000 Crl,.L.J. 4591 "State of M.P. Vs. J.B.Singh"
(6) 2006 (1) RCR (Crl.) 314 "L.K.Jain vs. The State"
(7) 2005 (4) RCR (Crl) 716 "R.V.Subba Rao Vs. State"
(8) AIR 1979 SC 1408 "Suraj Mal Vs. State"
(9) 1992 (3) RCR (Crl.) 139 "Pritam Singh vs. State of Haryana"
(10) 2009 (4) LRC 275 (SC) "State of Maharastra Vs. Dnyaneshwar Laxman Rao Wankhede"
C.C. No. 20/11 Page No. 57 of 58
30. Furthermore, there is nothing on record to establish that both the accused persons have entered into any criminal conspiracy to raise demand and accept any bribe amount from the complainant and therefore, they cannot be held liable for offence punishable U/S 120B r/w Section 7 and 13 (1) (d) of Prevention of Corruption Act, 1988 for which they have been charged with.
31. In view of the aforesaid discussion, I have no hesitation to safely conclude that the prosecution has failed to establish its case against the accused persons for the charged offence whereby resulting in acquittal of both the accused persons and therefore, both the accused persons namely Rajesh Kumar and Kanwar Jahan @ Baby Khan are ordered to be acquitted of the charged offence. Resultantly, their bail bonds stand cancelled and their sureties stand discharged. Announced in the open court on this 7th day of June, 2013 (B.R. Kedia) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC,Delhi C.C. No. 20/11 Page No. 58 of 58