Delhi District Court
State vs Raj Pal Sharma, on 22 January, 2007
1
CC No. 9/2000
IN THE COURT OF SHRI SUNIL GAUR, SPECIAL
JUDGE, DELHI.
CC NO. 9/2000
State Versus Raj Pal Sharma,
s/o Shri Deep Chander
Sharma
R/o D-16/168, Sector-3,
Rohini, Delhi -85
FIR No. 19/99
U/s 7/13 of the
Prevention of
Corruption Act, 1988.
P.S. Anti Corruption
Branch
JUDGMENT
On 14.5.99 in a trap laid by Anti Corruption branch, accused Raj Pal Sharma, Junior Engineer (Works) Division no. IX, Defence Colony in Municipal Corporation of Delhi was caught red handed while accepting Rs.20,000/- as illegal gratification from one Shri Raj Kumar Sodhi S/o Shri P.K. Sodhi for not demolishing the tin shed of the workshop of the complainant at Prem Auto Mobiles & Engg. Works, Sukhdev Market, Kotla Mubarakpur, New Delhi.
2. The factual position as reflected in the 2 CC No. 9/2000 complaint made by complainant Raj Kumar Sodhi is that on 2.5.1999 accused Raj Pal Sharma visited the workshop of the complainant and told him that the tin shed constructed by the complainant is unauthorized, but complainant told the accused that this land belonged to DDA and he had deposited Rs.4000/- for its allotment. Accused told the complainant that the land belongs to MCD and not of DDA and to do 'Seva Pani', otherwise the shed would be demolished. Thereafter complainant requested the accused to sic (show mercy) but accused did not agree and demanded Rs.30,000/- as bribe from the complainant. It is further stated in the complaint that complainant told the accused that he cannot arrange Rs.30,000/- and then accused agreed to accept Rs.20,000/- as bribe. Complainant has further stated in his complaint that he is against taking or giving bribe and agreed to pay the bribe under duress and he has no enmity with the accused nor has any dealings with accused. Legal action was sought against the accused.
3. On the above said complaint, pre-raid proceedings were drawn and the raid was conducted 3 CC No. 9/2000 on 14.5.99 at the office of the accused and after successful completion of the raid, FIR No. 19/99 was registered and the accused was arrested and after completion of the post- raid proceedings and the investigation, challan was filed in the Court u/s 7/13 of the Prevention of Corruption Act,1988. Accused was summoned and copy of the challan was supplied to him and thereafter the accused was heard on the point of charge and on 4.10.01 charge u/s 7 read with 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 was framed against the accused to which he pleaded not guilty and claimed trial.
4. Prosecution has got examined eleven witnesses in all. PW-1 Shri Sukumar Mistri has testified about the service particulars of the accused and has proved the bio-data Ex.PW1/A of the accused. PW-2 Constable Mahender Singh was posted as Malkhana Munshi at PS Civil Lines, Delhi on 14.5.1999 and this witness has deposed about Inspector Y.S. Negi having deposited the exhibits RHW-II, LHW-II, RPPW- II, LPPW-II, 40 GC notes of Rs.500/- each, one pullanda containing pant and one sample seal of VPS. This 4 CC No. 9/2000 witness has further testified that Inspector Y.S. Negi had also deposited jama talashi and one Maruti Car No.DL 4CB- 1613 and one two wheeler scooter No.DL 8S B 3628 about which this witness made entry in the malkhana register. PW-3 Shri K.D. Akolia is the sanctioning authority and has proved sanction order for prosecution of accused as Ex.PW3/A. PW-4 Head Constable Surinder Singh was also the MHC(M) on 7.7.1999 at PS Civil Lines and has proved copy of entry ExPW4/A of the malkhana register regarding receipt of FSL report. PW-5 Head Constable Hari Parkash has deposed about his having deposited RHW-I, LHW-I, RPPW-I, LPPW-I and sample seal of VPS in FSL Malviya Nagar vide RC No.66/99. PW-6 Shri Raj Kumar Sodhi is the complainant and PW-9 Shri Shiv Kumar is the Panch witness and they both have deposed about the pre-raid, post raid and the proceedings conducted in their presence. PW-7 ACP Shri Rati Ram has deposed about his having kept RHW-I, LHW-I, RPPW-I and LPPW-I along with sample seal of VPS in safe custody till 17.5.1999 and above exhibits were deposited with him by Inspector 5 CC No. 9/2000 Y.S. Negi on 14.5.1999. PW-8 Constable S.K. George had gone to FSL Malviya Nagar and collected FSL report and remnants from there and handed over the report of FSL to the IO and deposited the remnants with MHC(M) PS Civil Lines. PW-10 Inspector Y.S. Negi is the Investigating Officer and PW-11 ACP Shri V.P. Singh is the Raid Officer who both have deposed about their respective roles.
5. Accused Raj Pal Sharma in his statement under section 313 Cr. P.C. has denied the prosecution case and has stated that he is innocent and has been implicated in this case falsely. The stand taken by accused is as follows:-
''Raj Kumar Sodhi complainant is an accomplice in the eye of law. He was bearing grudge against me and his testimony is not corroborated by the panch witness. He got me involved in the present case in order to save his unauthorised structure from being removed from public land by MCD. Shiv Kumar (stock witness) has criminal background and Raid officer and IO are 6 CC No. 9/2000 interested witnesses. Another witnesses are formal in nature. Accused had neither demanded nor accepted any money from the complainant.''
6. Accused has got examined Sukumar Mistri (DW1) in respect of Action Report, Site Plan etc., as DW1/A to DW1/C.
7. I have heard Sh. Alok Saxena Ld. Addl. PP for the State and Sh. P. D. Sharma Ld. Counsel for the accused and have analysed the evidence on record and have perused the judgments reported in 1985 Cr. L. J. 1971 (Orrisa); III 1994 (1) Crimes (All) 712; extract of Laboratory Manual of Inorganic Chemistry by H.M. Chawla and others ; AIR 1971 SC 356; and 1985 (1) C. L. R.(SC) 394 cited before me.
8. Ld. Addl. PP for the state submits that from the evidence of complainant (PW6) , panch witness (PW9) , Raid officer (PW11), Investigating Officer (PW10) and FSL report Ex. PW10/D, the prosecution case stands fully proved and the statutory presumption raised against the accused does not stand 7 CC No. 9/2000 rebutted from the evidence of Sukumar Mistri (DW1) .
9. Ld. Counsel for the accused contends that the Sanction order Ex. PW3/A for the prosecution of the accused is invalid as it does not bear any reference no. and it is not mentioned therein about the details of the documents which were perused by the Sanctioning authority and since draft sanction order was received by the Sanctioning authority and the sanction order was prepared on its basis mechanically and it discloses non-application of mind . Reliance is placed by the defence upon judgments reported in III 1994 (1) Crimes , page 712 and 1985 Cr. L. J. 1971 (Orrisa) to contend that Sanction order based upon draft sanction is invalid.
10. It is next contended by the defence that the complainant (PW6) contradicts his complaint Ex. PW6/A in his evidence by admitting that initial demand of bribe was made by the accused on 2.5.99 to the father of the complainant who is not cited as a witness and in fact the complainant was not a witness to the initial demand said to have been made on 2.5.99 which was Sunday and it is improbable that 8 CC No. 9/2000 Government servant would make demand of bribe on Sunday. It is pointed out by the defence that it has come in the evidence of the complainant that labourers were present at the spot on 2.5.99 but they have not been examined to corroborate the initial demand of bribe by the accused .
11 It is further contended by the defence that the unauthorised shed of the complainant was detected on 7.5.99 as per the evidence of official witness DW1 and therefore, there was no occasion for the accused to have demanded any bribe from the complainant on 2.5.99 and this is clear from the fact that on 2.5.99 no time or place for taking of bribe by the accused was fixed and this indicates that the trap on 14.5.99 was motivated as the complainant wanted to avoid the demolition of his tin shed by falsely implicating the accused in this case. It is pointed out by the defence that from the recovered diary Ex. P-2 , it is clear that the demolition programme was fixed on 15.5.99 and a day earlier i.e. on 14.5.99, accused was falsely got trapped in this case and in this way the complainant had managed to get stalled the 9 CC No. 9/2000 demolition of his unauthorized tin shed which was admittedly subject matter of the proceedings under the Public Premises Act and thus, the ulterior motive of the complainant has been achieved. According to the defence , the improbability of the prosecution case is evident from the fact that the complainant (PW6) in his evidence has stated that accused had informed him that he had already chalked out programme of demolition at Kotla Mubarakpur including Babu Park and the workshop of the complainant was in the said area of demolition. ld. defence counsel has argued that since complainant's unauthorized tin shed was to be demolished as per the demolition prorgramme chalked out by the Deputy Commissioner, therefore, the accused could not have possibly saved the unauthorized tin shed of the complainant from being demolished and thus, there was no occasion for the accused to have demanded and accepted any bribe from the complainant.
12. The evidence of complainant is further assailed by the defence on the ground that he does not remember in which pocket of the pant, the accused had 10 CC No. 9/2000 kept the money and he also does not remember if panch witness had offered his search to the accused . It is pointed out by the defence that the panch witness (PW9) has admitted that he was not a witness to the acceptance of the bribe money by the accused and that Anti Corruption branch writes to the department of the panch witness if he is hostile to the prosecution case and so he cannot be said to be independent witness. It is also pointed out by the defence that the panch witness (PW9) is not a reliable witness as he has admitted that an enquiry is pending against him regarding embezzlement of books and that he had received a notice from the Employment exchange (where he had worked) regarding recovery of Rs. 1,07,000/- relating to embezzlement of goods and more over, he is a stock witness of the police as he has been a panch witness in three other trap cases of Anti Corruption Branch.
13. As regards the case property of this case, it is contend by the defence that the bottles stated to contained the hand and pocket wash of the accused are found to contain white solution when produced in the 11 CC No. 9/2000 court . Reliance is placed upon extract of appendix V of Laboratory Manual of Inorganic Chemistry by H.M. Chawla and others, to contend that mixed acid base indicators show that the colour change upon mixing of phenolphthalein powder , the colour less solution would change to violet . In view of the above, defence asserts that it cannot fade with passage of time. Further more, the assertion of the defence is that Ex. PW10/D is the result of chemical analysis and is not a report and is infact FSL result only and so called FSL report Ex. PW10/D is not admissible u/s 293 Cr. P. C. Lastly, it is contended by the defence that the prosecution case is not at all probable and is infact highly doubtful and so accused deserves to be acquitted.
Nothing else is urged by either side.
14. Upon hearing both the sides at length and after scrutiny of the evidence on record in detail, it transpires that on 14.5.99 accused was JE in MCD and he was caught red handed in his office by the raiding team of Anti Corruption Branch while accepting bribe of Rs.20,000/- from complainant (PW6) for not demolishing the unauthorised tin shed of the workshop 12 CC No. 9/2000 of the complainant in Sukhdev Market, Kotla Mubarakpur, New Delhi .
15. The probability of the aforesaid basic prosecution case is sought to be challenged by the defence on the ground that as per evidence of official witness DW1 unauthorized construction of tin shed of the complainant was detected on 7.5.99 as evidenced by report Ex. DW1/A and therefore, there was no occasion for the accused to have demanded any bribe on 2.5.99 as stated by the complainant (PW6) in his evidence.
16. Aforesaid plea has to be considered in the light of the observations made in judgment reported in 1977 Cri. L. J. 254 (Trilok Chand Jain Vs. State of Delhi) reads as under : -
''It is true that in law the incapacity of the government servant to show any favour or render any service in connection with his official duties does not necessarily take the case out of the mischief of these penal provisions. 13 CC No. 9/2000 Nevertheless, it is an important factor bearing on the question as to whether the accused had received the gratification as a motive or reward for doing or forbearing to do any official act or for showing any favour or disfavour in the exercise of his official functions.''
17. A careful perusal of the evidence of official witness Sh. Sukumar (DW1) and report Ex. DW1/A reveals that this report Ex. DW1/A is prepared by the accused himself and it bears date of 7.5.99 under his signatures and it also bears the signatures of Zonal Engineer. Report Ex. DW1/A is hand written and is on a plain piece of paper and it does not indicate that it was put up before Higher authorities i.e. Assistant Commissioner or Deputy Commissioner, Central Zone of MCD. It emerges from the evidence of the complainant (PW6) that when initial demand of bribe was made by the accused on 2.5.99 , complainant did not give any assurance to the accused that he would pay the bribe to the accused within few days and 14 CC No. 9/2000 therefore, it is no surprise that the accused had prepared a handy report Ex. DW1/A and had also got it signed from his immediate officer i.e. Zonal Engineer in order to bargain with the complainant. I am of the considered view that since the report Ex. DW1/A is a self serving report which has been prepared by the accused himself , therefore, no reliance can be placed upon it to conclude that the unauthorized construction by the complainant was detected on 7.5.99 . It is a mere conjecture to say that the trap of this case is motivated as unauthorized construction of the complainant has not been demolished till the year 2005 because it depends upon the whims and fancy of anti- encroachment staff of MCD to demolish or not to demolish a particular unauthorized construction . Moreover, the defence has failed to substantiate the above said conjectural contention from the original record regarding encroachment produced by official witness DW1. Therefore to say the least, the above said defence of the accused remains half baked. It has come in the evidence of the complainant that the unauthorized construction of the complainant in 15 CC No. 9/2000 question had been also subject matter under the Public Premises act 1971 and damages were levied on the father of the complainant . It is highly unlikely that the accused being JE of the area would not be knowing about it and so it cannot be said that there was no occasion for the accused to demand bribe from the complainant (PW6). In observing so, I am fortified by correspondence of Assistant Commissioner as well as Deputy Commissioner of Central Zone of MCD regarding unauthorized encroachment by individuals on public land Ex. DW1/D1 to D3 which relate back to September 1998. The month long encroachment removal programme of MCD Ex. DW1/D4 shows that this programme of removal of encroachment was not one time project but was a continuing process and the prosecution case cannot be dubbed as improbable by the defence by raising a lame plea of accused not being able to avoid the demolition of the unauthorized tin shed of the complainant during the anti-encroachment drive of the area of Kotla Mubarakpur where the unauthorized tin shed of the complainant was situated because there can be hundred and one excuses by the 16 CC No. 9/2000 obliging employees of MCD to skip a particular unauthorized construction, if their palms are greased. By way of passing reference, this court is constrained to observe that it is not unknown that for extraneous reasons, policy of ''pick and choose'' is adopted in the removal of unauthorized constructions by the concerned staff of MCD.
18. The primary contention of the accused of there being no occasion for him to have demanded or accepted any bribe from the complainant has to be independently tested on the touch stone of ''probability factor'' . No reasonable explanation is forth coming from the side of the defence as to why did accused accept the treated GC notes if there was no occasion for him to have demanded the bribe from the complainant. Infact, there is categoric evidence of the complainant (PW6) to the effect that at the spot i.e. office of the accused, it was told to the complainant by the accused that the money of Rs.20,000/- brought by the complainant was less and of complainant telling the accused at the spot he would pay the balance money later on. Aforesaid crucial part of the evidence of the 17 CC No. 9/2000 complainant (PW6) remains unshaken in his cross examination.
19. I do not agree with the defence that because accused had informed the complainant about the programme of demolition in Kotla Mubarakpur which included the area where the workshop of the complainant was situated would give no occasion for complainant to give bribe or for the accused to take bribe. I say so because upon reading of the testimony of the complainant (PW6) as a whole , I find that when initial demand of bribe was made, complainant (PW6) did not agree to give the bribe or to give any excuse or assurance to the accused and so, the natural response of the accused was to satisfy the complainant (PW6) by showing his diary Ex. P-2 where there was mention of an encroachment removal programme of Bapu Park on 15.5.99 and this was done by the accused to obtain illegal gratification from the complainant (PW6) .
20. It is true that the demolition programme is chalked out by the concerned Deputy Commissioner of the area but no material has been placed on record by the defence to conclude that there was strict 18 CC No. 9/2000 implementation of the demolition programme fixed for 15.5.99 and the document Ex. PW1/C prepared by JE , Sh. M. K. Gambhir relied upon by the defence is just an information about encroachment on the road being removed and this is a hand written document and is not addressed to any one and therefore, no reliance can be placed upon it to conclude that all the encroachments covered under the demolition programme on 15.5.99 had been removed. Infact , the so called report Ex. DW1/C stands contradicted from the evidence of the complainant (PW6) who has categorically asserted that his unauthorized construction covered under the demolition programme of 15.5.99 still existed on the day of his evidence i.e. July 2005. Therefore, no sanctity can be attached to the so called strict implementation of the demolition programme of 15.5.99 . Since, the demolition programme of MCD in the area of the complainant was fixed for 15.5.99 and the unauthorized tin shed was also included therein and complainant was made aware of it by the accused as per the deposition of the complainant (PW6) , therefore, there was nothing 19 CC No. 9/2000 unnatural in complainant (PW6) getting accused trapped just a day earlier i.e. on 14.5.99 and simply because accused was got trapped just a day earlier to the demolition in question, it would not be fair to draw inference that the accused was got trapped by the complainant to avoid the demolition of his unauthorized tin shed as the pendency of this case cannot possibly be a bar to demolition of the unauthorized tin shed of the complainant . It is common knowledge that demolition of a particular unauthorized construction like tin shed of the complainant can be easily managed in collusion with the staff of the MCD. This is a ground reality which can not be ignored as there are black sheeps every where.
21. In view of above narration, I have no hesitation to hold that the trap of this case was not motivated and it would not be reasonable to jump to any such conclusion of there being no occasion for the accused to have demanded the bribe from the complainant.
OCCULAR VERSION
22. Upon close reading evidence of the 20 CC No. 9/2000 complainant (PW6) and panch witness (PW9) , I find that the complaint Ex. PW6/A, pre-raid proceedings Ex. PW6/B and post-raid proceedings Ex. PW6/L stand proved from their evidence. The evidence of complainant (PW6) cannot be doubted merely because he does not remember in which pocket of the pant , accused had kept the GC notes or the colour of the pant of the accused and about panch witness (PW9) offering his search to the accused. It is so said because the trap was of the year May 1999 whereas the evidence of the complainant has been concluded in July 2006 and due to the time lapse , it would be reasonable to condone such lapses which do not go to the root of the matter. As regards initial demand of bribe by the accused on 2.5.99 is concerned , I do find that the complainant (PW6) in his complaint Ex. PW6/A as well as in his chief examination has stated that the initial demand of bribe was made by the accused on 2.5.99 from the complainant whereas, in cross examination of the complainant there is one stray line of father of the complainant being present with the complainant at their workshop on 2.5.99 and of accused making initial 21 CC No. 9/2000 demand of bribe to father of the complainant and of father of the complainant informing the complainant about it . It is matter of record that chief examination of the complainant (PW6) was recorded on 19.7.05 and he was cross examined briefly on that day and due to paucity of time , the remaining cross examination of the complainant was deferred for the next date by my Ld. Predecessor and eventually the remaining cross examination of the complainant by the defence was done on 11.7.06 and the aforesaid stray line in the cross examination of the complainant is of the much later date . On the first date,when the evidence of the complainant was recorded and he was briefly cross examined, nothing has emerged which could be favourable to the defence except that 2.5.99 was a Sunday. To my mind, there is nothing unusual in the conduct of the accused in going to the workshop of the complainant on Sunday to demand bribe because it cannot be said with authority that a corrupt public servant would not go to the complainant or a person similarly situated to demand bribe on a Sunday. The aforesaid improvement made by the complainant in his 22 CC No. 9/2000 cross examination on the subsequent date is obviously with a view to help the accused as cases are not unknown where accused persons put pressure on the complainants to resile in their cross examination after such complainants are partly examined on an earlier date.
23. As it is the duty of the Courts to sift grain from the chaff , therefore, I have minutely weighed in the scale of ''probability'' , deposition of the complainant made on the first date and his subsequent deposition i.e. cross examination by the defence on the next date which was after a lapse of about one year and I find that the chief examination of the complainant and his partial cross examination on the first date is the natural and truthful deposition and the aforesaid stray line in the cross examination of the complainant on the subsequent date is deliberate improvement made by the complainant with a view to help the accused and no importance can be attached to it. In any case, the aforesaid improvement made in cross examination by the complainant (PW6) regarding initial demand of bribe being made to father of the complainant does not 23 CC No. 9/2000 materially and adversely reflect upon the prosecution case because it does not pertain to the actual trap proceedings.
24. The credibility of the deposition of the panch witness (PW9) is assailed by the defence on the ground that an enquiry is pending against him regarding embezzlement of books and he had received a notice of recovery regarding embezzlement of goods and about his being aware of Anti Corruption Branch writing against a witness who does not support his police statement. After giving my thoughtful deliberation on this aspect, I am of the considered view that there is nothing wrong in Anti Corruption Branch writing to the department of a hostile witness because it is not anybody's case that the police statement of panch witness was incorrectly recorded. Why should any one have any fear of any departmental enquiry if he or she is deposing about true facts before the court? Panch witness (PW9) may be facing some enquiry but that by itself cannot ground to discredit his deposition because it is not shown as to why the panch witness (PW9) would falsely depose against the accused. I am not 24 CC No. 9/2000 inclined to accept the defence plea of panch witness (PW9) being a stock witness of Anti Corruption Branch because he was panch witness in three other trap cases of Anti Corruption Branch as it is not the choice of Anti Corruption Branch to choose a particular witness as a panch witness . This court is aware of the fact that the Anti Corruption Branch sends requisition for panch witnesses to different Government departments and those departments choose the public servants to be sent as panch witnesses on duty in Anti Corruption Branch on monthly basis and therefore, judgment reported in AIR 1971 SC 356 relied upon by the defence is distinguishable on facts as in the above cited case that trap was laid by Junior officer of the status of sub- Inspector of Police and the panch witness in that case was joined by the local police. It is not so in the present case as the panch witness of this case is not of the choice of the Anti Corruption Branch.
25. Panch witness (PW9) may not himself had offered his search to the accused before taking the search of the accused at the spot but there is unchallenged evidence of raid officer (PW11) to the 25 CC No. 9/2000 effect that the Raid officer had offered his search and that of panch witness to the accused before the search of the accused was taken and the accused had refused to take the search of Raid officer or the panch witness. In such a situation, judgment reported in 1985 (1) CLR, 394 relied upon by the defence pertaining to bribery case of Rs.50/- of State of Rajasthan is of no help to the accused of instant case and is distinguishable on facts as in the above cited case, the GC notes were not treated with powder and in that context it was held that the recovery becomes doubtful as the Constable who took the search of the accused did not offer his search prior to taking of the search of the accused .
26. It is the consistent prosecution case from the very beginning that accused in his office had enquired from the complainant (PW6) about panch witness (PW9) and the complainant had told the accused that the panch witness was his accountant and the accused had asked the complainant as to whether he had done what was told to him (JO KUCH TUMHE KAHA THA, KIYA TUMNE) and the complainant had replied that what ever he could bring he has brought and accused 26 CC No. 9/2000 made gesture to the complainant to send the panch witness out and accordingly the panch witness went outside office room of the accused . Panch witness had no other option . Since, the accused had been clever enough to ensure that the panch witness was not present when the bribe was accepted by him from the complainant, therefore, accused cannot be heard to now say that the panch witness (PW9) is not a witness to the acceptance of the bribe by the accused. Nobody can be allowed to take advantage of his or her wrong. When the evidence of complainant (PW6) and panch witness (PW9) is read as a whole then it becomes crystal clear that they corroborate each other on material particulars of the substratum of the prosecution case and even if some labourers were present at the workshop of the complainant on 2.5.99 when initial demand of bribe was made by the accused to the complainant (PW6) , non-citing of those labourers as witness of initial demand of bribe is of no consequence as in judgment reported in AIR 1998 SC 1474 (State of UP V/s Zakaullah), it has been held that the evidence of trap Officer can be relied upon even without 27 CC No. 9/2000 corroboration if it inspires confidence.
27. Before I proceed to deal with the evidence of Raid officer, I would like to comment upon innocuous plea of the accused of FSL report Ex. PW10/D not being a report but being FSL result only and it being not admissible u/s 293 Cr. P.C in evidence. Such an argument cannot be appreciated in view of the fact that the FSL report Ex. PW10/D itself contains a bold declaration prominently made that this FSL report is admissible in evidence and it contains the description of the parcels received and about the conditions of the seals thereon and about the contents of the parcel and it is not expected to contain the process adopted to reach to the result of examination contained therein. Therefore, accused cannot be heard to say that Ex. PW10/D is merely FSL result and not FSL report. Nothing stopped the accused to challenge the FSL report ex. PW10/D by moving an appropriate application for summoning FSL expert for cross examination and the extract of Manual of Inorganic Chemistry relied upon by the defence ought to have been put to the FSL expert regarding the colour change 28 CC No. 9/2000 of the solutions contained in the hand wash bottles produced before the court and to rule out the colour change on being on account of passage of time. In any case, the FSL report Ex. PW10/D clearly mentions that the exhibits received for analysis to the bottles contained ''light pink colour liquid '' which is consistent with the prosecution case. There is no doubt in my mind that from FSL report Ex. PW10/D, which is per se admissible in evidence, it is conclusively established that the hand wash of the accused and pant pocket wash of the accused have tested positive which proves that the accused had accepted the treated GC notes and had kept them in his pant pocket .
28. Now, I proceed to deal with the evidence of Raid officer (PW11) and upon scrutiny of the evidence of the Raid officer, I find that nothing worth while has been brought out in his cross examination which could discredit his version in any manner what so ever. Infact, it has not been suggested by the defence to the Raid officer as to why the Raid officer would falsely implicate the accused in this case nor it can be so made out on the basis of the evidence available on record. 29 CC No. 9/2000 Upon taking an overall view of the evidence on record , I find that the testimony of the Raid officer (PW11) inspires utmost confidence and the same is amply corroborated from the evidence of complainant (PW6) and panch witness (PW9) .
29. From the above referred evidence on record , it stands clearly proved that accused had accepted with his hands bribe money of Rs.20,000/- from the complainant (PW6) in his office and by panch witness (PW9), the same were recovered from the pant pocket of the accused at the spot and post-raid proceedings Ex. PW6/L were drawn at the spot. Thus, statutory presumption u/s 20 of the Prevention of Corruption Act, 1988 instantly arises against the accused.
30. Once the recovery of bribe amount from the accused is proved then burden shifts upon the accused to explain . For observing so, I rely upon the observations made in judgment reported in AIR 1992 SUPREME Court 1201 (B. Hanumantha Rao V/s State of Andhra Pradesh) which reads as follows:-
'' In view of the fact that on washing the hands of the accused by solution of 30 CC No. 9/2000 sodium carbonate, the water turned pink, it leaves no manner of doubt that the amount of Rs.50,000/- was touched and handled by the accused.
Once the amount of Rs.50,000/- is found in the possession of the accused, the burden shifts on him to explain the circumstances to prove his innocence as contemplated under Section 4 of Prevention of Corruption Act.''
31. Hon'ble Supreme Court in its latest judgment reported in 2006 IV AD (Cri) 465 (SC) ( B. Noha V/s State of Kerala and Anr.) has observed as under:-
''When it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deduced from the facts and circumstances obtained in the particular case. '' 31 CC No. 9/2000
32. The aforesaid statutory presumption raised against the accused is sought to be rebutted by the accused by relying upon the evidence of Sh. Sukumar DW1 and by taking the plea of his being falsely implicated by the complainant (PW6) in order to save his unauthorized structure from demolition by MCD. I have already dealt with the evidence of Sh. Sukumar DW1 and I have already concluded that from his evidence, it cannot be said that the accused could not have stopped the demolition of complainant's unauthorized structure . The evidence of official witness Sh. Sukumar DW1 cannot and does not rebut the statutory presumption raised against the accused . It may be that the complainant would have made some effort to get his unauthorized structure save from demolition by MCD but the complainant cannot be so far farsighted to imagine that by falsely implicating the accused he could save his unauthorized structure. As already found above, the aforesaid plea of the accused does not cut much ice to dent the reliable and consistent prosecution case and to rebut the statutory presumption raised against him.
32CC No. 9/2000 SANCTION ORDER (EX. PW3/A)
33. Sanction order for prosecution of the accused has been proved by the Sanctioning Authority (PW3) and I find that the aforesaid sanction order Ex. PW3/A does not bear the file number or date on its first page . However, this sanction order ex. PW3/A consists of two pages and on the second page under the signatures of the sanctioning authority, the date, month and the year is mentioned . Sanctioning Authority (PW3) has stated in cross examination by the defence that the sanction order Ex. PW3/A was prepared on the basis of the draft sanction order received from Anti Corruption Branch but he has denied that the sanction order Ex. PW3/A is verbatim reproduction of the draft sanction order and of being passed mechanically. A bare perusal of the sanction order Ex PW3/A makes it clear that it is typed on letter head of MCD and no mistake in this sanction order has been pointed out by the defence. To prove the point of Sanction order being verbatim copy of draft sanction order , the defence ought to have got summoned the sanction file but it has not been done and so it cannot be said with certainty 33 CC No. 9/2000 that the draft sanction order has been copied by the Sanctioning authority in its sanction order Ex. PW3/A . Otherwise also, a draft sanction order is normally understood to be having blank spaces and even if the sanctioning authority had a look on the draft sanction order, it would necessarily mean that there is non- application of mind by the sanctioning authority . All that is required from the sanctioning authority is that it should peruse the material placed before it before granting sanction and the sanctioning authority (PW3) has categorically stated in the evidence that the material placed before it were perused . It would be expecting too much from the sanctioning authority to spell out the documents perused or to give its details in the sanction order . This is not requirement of law. When the evidence of sanctioning authority (PW3) is considered as a whole , then I find that there is no basis to conclude that there was any non-application of mind by the sanctioning authority or that sanction order has been passed in a mechanical manner.
34. The validity of the sanction order has to be considered in the back drop of the following 34 CC No. 9/2000 observations made in judgment reported in 2000 (1) JCC (SC) 299 (State of Madhya Pradesh & Ors. V. Shri Ram Singh) which reads as under:-
''The Prevention of Corruption Act 1988 is intended to make effective provisions for prevention of corruption which is rampant amongst public servants and it is a social legislation designed to be liberally construed so as to advance its object and procedural delay and technicalities in law should not be permitted to defeat the object sought to be achieved by this new Act of 1988.''
35. The question of prejudice to the accused on account of irregularity in grant of sanction and to find out if there is any failure of justice, has to be seen in the light of judgment reported in 2004 (3) JCC 1398 (State by Police Inspector V/s T. Venkatesh Murthy) wherein it has been held as follows :-
''Merely because there is an omission, error irregularity in the matter of granting sanction for prosecution under the Prevention of Corruption Act, 1988 , the 35 CC No. 9/2000 same will not affect the validity of proceedings unless there is failure of justice.
36. In the above said judgment, it has been observed that explanation to sub-section (3) of Section 19 of Prevention of Corruption Act, 1988 makes it clear that error includes competency to the authority to grant sanction.
37. In view of above referred legal position, it becomes crystal clear that unless any irregularity in grant of sanction for prosecution of the accused materially results in failure of justice, it will not vitiate the trial . It is not shown by the defence as to what prejudice has been caused to the accused by sanctioning authority not spelling out the details of the documents perused or by receiving draft sanction order nor it is shown as to how it has led to failure of justice. As regards judgments reported in 1985 Cr. L. J. 1971 (Orrisa); III 1994 (1) Crimes (All) 712. relied upon by the defence, I find that they are distinguishable on facts as in judgment reported in 1985 Cr. L. J. 1971 (Orrisa), Sanctioning Authority had signed the draft 36 CC No. 9/2000 sanction order given by Vigilance Department and in judgment reported in 1994 (1) Crimes 712, no documents were placed before the Sanctioning Authority and original sanction order was not produced. It is not so in present case. Moreover, in view of the above referred authoritative later pronouncement of Hon'ble Apex Court on this subject, question of prejudice to accused and of failure of justice has to be considered and the same has not been considered in two High Court judgments cited. Resultantly, I hold that the sanction order Ex. PW3/A is perfectly valid.
CONCLUSION
38. The irresistible conclusion arrived at the on the basis of evidence on record, is that the charge framed against the accused stands duly proved and accused Rajpal s/o Sh. Deep Chander is held guilty u/s 7 and 13 (2) of Prevention of Corruption Act 1988 for having accepted bribe of Rs.20,000/- for saving the unauthorized structure of the complainant from the demolition. Accused is accordingly convicted for the offences with which he has been charged by this court. 37 CC No. 9/2000 Let the accused be heard on the point of sentence on 22.1.07.
(Announced in the
open Court ) (SUNIL GAUR)
Special Judge/Delhi/20.1.2007
38
CC No. 9/2000
IN THE COURT OF SHRI SUNIL GAUR, SPECIAL JUDGE, DELHI.
CC NO. 9/2000
State Versus Raj Pal Sharma,
s/o Shri Deep Chander
Sharma
R/o D-16/168, Sector-3,
Rohini, Delhi -85
FIR No. 19/99
U/s 7/13 of the
Prevention of
Corruption Act, 1988.
P.S. Anti Corruption
Branch
ORDER ON SENTENCE
I have heard Shri Alok Saxena Addl. Public Prosecutor for the State and Shri P.D. Sharma , Advocate for the convict Raj Pal Sharma (who is present in custody) on the point of sentence. 2 Ld. counsel for the convict submits that the convict is aged 42 years and he is suspended JE of MCD since the year 1999 and has got a clean service record and is drawing suspension allowance of Rs. 11,000/- only and has three school going children and house wife to support and he is the only earning member of 39 CC No. 9/2000 the family and so a lenient view on the point of sentence be taken.
3 Ld. Addl. Public Prosecutor states that the convict does not deserve any leniency because there is rampant corruption amongst public servants in the society and to curb this evil, deterrent punishment should be imposed.
4. In judgment reported in (1997) 4 SCC 14 (Swtantar Singh V/s State of Haryana) it has been observed as under:-
''Corruption is corroding like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service and demoralizing the honest officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently truthfully, honestly and devotes himself assiduously to the performance of the duties of his post ''
5. After having heard both the sides and upon perusal of the record, I find that it is difficult to accept 40 CC No. 9/2000 the prayer of the convict that a lenient view be taken in this case. The corruption by public servants has become a gigantic problem . It has spread everywhere. No facet of public activity has been left unaffected by the stink of corruption. It has deep and pervasive impact on the society at large and everyone has to suffer on that count.
6. Corruption of any kind in the society cannot be tolerated and the same has to be dealt with a heavy hand in order to have deterrent effect , therefore, I sentence convict Raj Pal Sharma to undergo RI for a period of four years and a fine of Rs. 20,000/- (Rs. twenty thousand) u/s 7 of the Prevention of Corruption Act, 1988 of IPC and in default of payment of fine, convict shall undergo SI for a period of nine months. Convict Raj Pal Sharma is further sentenced to undergo RI for a period of five years and a fine of Rs. 30,000/- (Rs. thirty thousand) u/s 13 (2) of the Prevention of Corruption Act, 1988 and in default of payment of fine, convict shall further undergo SI for a period of one year. Both the sentences shall run concurrently and the convicts shall be entitled to 41 CC No. 9/2000 benefit under section 428 Cr. P.C.
7. A duly attested copy of the judgment and this order be supplied to the convict free of costs and thereafter file be consigned to the record room.
ANNOUNCED IN
OPEN COURT (SUNIL GAUR)
SPECIAL JUDGE/DELHI
DATED: 22.1.07