Delhi District Court
State vs . Ram Avtar Goel on 15 September, 2011
IN THE COURT OF SHRI B.R. KEDIA, SPECIAL JUDGE07
(CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
C.C.NO. : 32/11
Unique Case ID : 02401R052832001
STATE VS. RAM AVTAR GOEL
S/o Sh. Suraj Bhan Goel
R/o 324 Lok Vihar, Pitam Pura,
Delhi34.
FIR NO. : 42/2000
U/S : 7/13 Prevention of Corruption Act,
1988
P.S. : ANTI CORRUPTION BRANCH,
DELHI
Date of Institution 24.04.2001
Judgment reserved on 13.09.2011
Judgment delivered on 15.09.2011
JUDGMENT
1. The precise case of the prosecution is that on dated 16.08.2000 complainant Sh. Sunil Arora S/o Late Sh. J.N. Arora went to Anti Corruption Branch, Delhi and got lodged his complaint Ex.PW5/A regarding demand of bribe of Rs. 40,000/ by accused C.C. No. 32/11 Page No. 1 of 37 Ram Avtar Goel posted as JE in MCD, Rohini Zone, Delhi for not demolishing the shop situated at KD63A, PhaseI, Ashok Vihar, Delhi.
2. The gist of the said complaint is that Smt. Santosh Rani mother of the complainant was running a shop in the name of Jagan Furnishing at KD63A, Ashok Vihar, PhaseI, Delhi and said shop had three shutters for which the accused gave a notice to the complainant on 11.08.2000. On 14.08.2000 in the presence of the complainant the accused came to the said shop and threatened that he would get the shop demolished and asked the complainant to remove the articles lying in the shop. Complainant and his brother tried to pacify the accused that they have already deposited the fine as imposed by the Court with regard to the same allegation. Thereafter, the accused demanded Rs.50,000/ from the complainant for not carrying out the demolition and it was ultimately settled for Rs.40,000/ and the accused asked the complainant to pay the said amount to his Mate Dwarka on 16.08.2000 between 10:30 to 11:00 am. Since the complainant was against giving of bribe so he got his complaint lodged before the Inspector M.S. Sangha, Raid Officer PW7 in presence of Panch witness Sh. Sashi Bhushan Sharma PW 5. C.C. No. 32/11 Page No. 2 of 37
3. The further case of the prosecution is that the complainant has produced Rs. 40,000/ in the form of 80 GC notes of Rs. 500/ each before the Raid Officer PW7 who noted down the serial number of said GC notes in the preraid proceedings Ex.PW5/B and treated the said GC notes with phenolphthalein powder. Thereafter, Raid Officer PW7 gave demonstration to the Panch witness, complainant by getting touched the right hand of the Panch witness with that treated currency notes 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 moving his right hand over his head after being satisfied that the bribe has actually been given.
4. That at about 09:45 a.m., PW7 Raid Officer along with complainant, Panch witness, Inspector J.P. Raghav and other members of the raiding party left Anti Corruption Branch in a government vehicle and reached near PS Ashok Vihar at 10:15 a.m. Government vehicle was parked at some distance, Inspector J.P. C.C. No. 32/11 Page No. 3 of 37 Raghav and the Driver remained in the vehicle. Complainant and Panch witness were sent outside PS Ashok Vihar and other members of the raiding team took their suitable position.
5. The further case of the prosecution is that at about 10:25 a.m. complainant informed the Raid Officer that the Beldar Dwarka would collect the bribe money from the shop of mother of the complainant. Thereafter, all the members of the raiding team including complainant and Panch witness went near the said shop and government vehicle was parked nearby. Complainant and Panch witness were sent inside the shop and other members of the raiding team took suitable position. At about 11:45 a.m. complainant informed the Raid Officer that the accused was standing outside the PS Ashok Vihar and had called him there. Thereafter, complainant accompanied with the Panch witness went in his car to PS Ashok Vihar and raiding team followed them. Complainant parked his car outside PS Ashok Vihar and raiding team took suitable position.
6. The further case of the prosecution is that at about 12:05 p.m. on receiving the predetermined signal from the Panch witness, Raid Officer alongwith other members of the raiding team reached the C.C. No. 32/11 Page No. 4 of 37 spot, on which the Panch witness disclosed that the accused has taken the bribe from the complainant. Thereafter, Raid Officer after disclosing his identity challenged the accused that he had demanded and accepted the bribe from the complainant. On his directions, Panch witness recovered bribe amount of Rs.40,000/ from the right hand of the accused and compared the serial number of that GC notes with serial number mentioned in pre raid proceedings Ex.PW5/B and the same tallied. That recovered GC notes were taken into possession vide seizure memo Ex.PW5/C. The wash of right hand of the accused was taken in colorless solution of 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 & RHWII by pasting slips thereon which were signed by Raid Officer, complainant and Panch witness. The wash of left hand of the accused was also taken in colorless solution of 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 LHWI & LHWII by pasting slips thereon which were signed by Raid Officer, complainant and Panch witness. Said four bottles were seized vide seizure memo Ex.PW5/D. The Raid Officer also drawn up the postraid proceedings which is Ex.PW5/G and prepared the Rukka C.C. No. 32/11 Page No. 5 of 37 and sent the same through Ct. Shalender to PS Anti Corruption Branch for registration of the case.
7. The further case of the prosecution is that the Raid Officer called Inspector J.P. Raghav PW8 IO at the spot and handed over him the custody of the accused, case property and relevant documents etc. for purpose of Investigation. I.O. took up the Investigation, prepared the Site Plan Ex.PW8/A, arrested the accused and conducted his personal search vide Memo Ex.PW5/H, Seized certain documents vide Seizure Memo Ex.PW5/E, Seized one cell phone at the time of the arrest of the accused vide Seizure Memo Ex.PW5/F, received original Rukka and copy of FIR Ex.PW8/B and thereafter, went to PS Civil Lines where he deposited the case property, exhibits and articles of personal search with the MHC(M) and the accused was put in the lock up. During the course of Investigation, the relevant exhibits were sent to FSL for chemical analysis and later on FSL Report Ex.PX was received. Biodata of the accused Ex.PW8/C, Sanction Order Ex.PW3/A were also received by the IO. IO on recording the statement of the witnesses and after completion of the Investigation, prepared the chargesheet and filed in the court. C.C. No. 32/11 Page No. 6 of 37
8. After compliance with the provision U/S 207 of Cr.P.C and after hearing both sides on the point of charge, charge for offence punishable U/S 7 and 13 (2) r/w Section 13 (1) (d) of the Prevention of Corruption Act, 1988 was framed against accused on 13.08.2002 to which accused pleaded not guilty and claimed trial.
9. Thereafter, in order to bring home the guilt of the accused, the prosecution got examined 8 prosecution witnesses namely Sh. M.K. Gupta, Assistant Engineer in Rohini Zone MCD, a formal witness as PW1, Ct. Mahender Singh, the then MHC(M) in PS Civil Lines, a formal witness as PW2, Sh. A.K. Chaturvedi, the then Deputy Commissioner, Rohini Zone MCD, Sanctioning Authority against the accused as PW3, SI Varinder Singh, who had brought the FSL Report from FSL Malvia Nagar, a formal witness as PW4, Sh. Shashi Bhushan Sharma, Panch witness as PW5, Sh. Sunil Arora, Complainant as PW6, Inspector M.S. Sangha, Raid Officer as PW7 and Inspector J.P. Raghav, I.O. as PW8.
10. After closure of the PE, statement of accused under Section 313 Cr.P.C. was recorded in which the accused denied about any demand and acceptance of the bribe from the complainant. Accused C.C. No. 32/11 Page No. 7 of 37 claimed to be falsely implicated in this case having no concern with the alleged offence. The accused also added that on 16.08.2000 he had gone to the PS Ashok Vihar to seek police aid for getting demolition of Aggarwal Sweets in Ashok Vihar and the complainant after knowing the whereabouts of the accused by talking to him through telephone met the accused and insisted him to see his reply to the Notice. He further stated that on the plea of showing of reply the complainant tried to give some money on which the accused asked the complainant for the purpose of giving money and threw away the same on the floor of the car and thereafter, he has been falsely apprehended by the Police. The accused has got examined one witness namely H.C. Ramesh Dagar as DW1 in his defence.
11. I have heard Final Arguments as addressed by Sh. R.S. Singhal, Adv. Ld. Counsel for the accused and Sh. Vinod Kumar Sharma, Ld. APP for the State and perused the relevant record.
12. It is submitted by Ld. Counsel for the accused that Sanction Order in this case has been passed by PW3 who was not competent to do so and furthermore, he has passed the Sanction Order Ex.PW3/A mechanically without proper application of mind and therefore, said C.C. No. 32/11 Page No. 8 of 37 Sanction is not valid and entire proceedings stand vitiated. It is further added by Ld. Counsel for the accused that the accused has neither demanded nor accepted any bribe from the complainant and prosecution has failed to prove about the said aspects and hence, accused deserves to be acquitted. It is also added by Ld. Defence Counsel that there was no occasion for the demand of bribe by the accused for not carrying out demolition of shop of the mother of the complainant in view of the fact that no demolition can be carried out unless the Reply to the Notice U/S 345A of DMC Act was disposed of and in the present case Reply in this respect was not yet disposed of. It is also added by Ld. Defence Counsel that from the perusal of Report dated 16.08.2000 as prepared by PW1 M.K. Gupta, copy of which is Ex.PW1/DA and the Report dated 16.08.2000 as prepared by the Deputy Commissioner, Rohini Zone, MCD, copy of which is Ex.PW1/DB, it is clearly reflected that the accused has been falsely implicated in this case. It is further added by Ld. Defence Counsel that since there was no demand and acceptance of bribe by the accused from the complainant and as the prosecution has failed to prove regarding the said aspects the accused deserves to be acquitted. It is further added by Ld. Defence Counsel that PW7 Inspector M.S. Sangha himself was found implicated in a bribery case, in which he C.C. No. 32/11 Page No. 9 of 37 has been convicted later on and departmental proceeding for forging the raid proceeding as per Order vide Ex.DW1/A clearly establish that the deposition of said Raid Officer PW7 cannot be treated as trustworthy and reliable. It is also added by Ld. Defence Counsel that there are several contradictions in the deposition of PW5 Panch witness, PW6 Complainant, PW7 Raid Officer and PW8 IO which falsify the case of the prosecution. It is also added by Ld. Defence Counsel that from the deposition of PW5 Panch witness it is clearly reflected that he was not an independent witness and remained under the pressure of the police and therefore, his deposition cannot be treated as reliable. Ld. Defence Counsel also added that since the accused has already been exonerated on merits after the completion of the Departmental Inquiry as conducted against him on the basis of the same allegation relating to the present case and Inquiry Report in this respect is Ex.PX and Office Order in this respect is Ex.PY, this accused deserves to be acquitted. Ld. Defence Counsel thus urged for acquittal of the accused and has referred and relied upon the following judgments in support of his contention: (1) 83(2000) DLT 395 (2) 131 (2006) DLT 12 (3) 2007 (1) JCC 220 C.C. No. 32/11 Page No. 10 of 37 (4) 1996 (6) SLR 328 (5) II (2011) SLT 246 (6) 2010 (4) JCC 2745 (7) 2009 (4) LRC 275 (SC) (8) AIR 1987 SC 2402 (9) 1977 (3) SCC 352 (10) AIR 1980 SC 1558
13. To the contrary, it is submitted by Ld. APP for the State that the prosecution by examining 8 PWs have clearly established its case as against the accused and therefore, the accused deserves to be convicted for the charged offence U/S 7 and 13 (2) of Prevention of Corruption Act, 1988. It is further added by Ld. APP that there is no reason as to why PW7 Raid Officer, PW5 Panch witness, PW8 IO and PW6 Complainant would falsely implicate the accused specifically when there is no previous enmity as against the accused by them. It is further added by Ld. APP that the PW3 Sanctioning Authority has passed the Sanction Order on proper appreciation of the material on record and Sanction Order is duly valid and proper. It is further added by Ld. APP that mere discrepancy in the deposition of certain PWs as pointed out by Ld. Counsel for the accused are merely formal C.C. No. 32/11 Page No. 11 of 37 in nature and is because of the time gap between the period of incident and deposition of PWs in the court and the case of the prosecution cannot be thrown out merely on the said ground. It is also added by Ld. APP for the State that the factum regarding demand and acceptance of the bribe of Rs.40,000/ by the accused from the complainant has been successfully established by the prosecution and there is no reason to disbelieve the same. Ld. APP for the State has added that the prosecution has been successful in establishing its case as against the accused for the charged offence and hence, the accused deserves to be convicted.
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)(c) of Prevention of Corruption Act, 1988 as against the accused. In order to prove the Sanction as against the accused Ram Avtar Goel, the prosecution has examined PW3 Sh. A.K. Chaturvedi, the then Deputy Commissioner, Rohini Zone, MCD, Delhi. During the course of arguments, it is submitted by Ld. Defence Counsel that the Sanction Order Ex.PW3/A as passed by PW3 suffer from legal infirmities on two grounds. Firstly, that the Appointing Authority C.C. No. 32/11 Page No. 12 of 37 concerning the accused Ram Avtar Goel is Commissioner of MCD but the Sanction Order in the present case has been accorded not by the Commissioner of MCD but by the Deputy Commissioner, MCD Rohini Zone, Delhi who was not competent to do so and therefore, said Sanction Order is legally null and void. Second ground of attack on said Sanction Order Ex.PW3/A by Ld. Counsel is that said PW3 has passed the Sanction Order mechanically without proper application of his mind and said Sanction Order does not disclose the detailed of the materials/documents on the basis of which said Sanction Order has been accorded and therefore, said Sanction Order Ex.PW3/A is legally invalid and hence, accused Ram Avtar Goel deserves to be acquitted on this count itself.
15. So far the point of attack on said Sanction Order Ex.PW3/A by Ld. Defence Counsel on the count that said Sanction Order has been accorded by PW3 Sh. A.K. Chaturvedi, the then Deputy Commissioner, Rohini Zone, MCD, Delhi and not by the Commissioner of MCD who is the Appointing Authority of the accused, I do not find any force on the said submission in view of the fact that from the deposition of PW3 Sh. A.K. Chaturvedi as well as from the perusal of the Sanction Order Ex.PW3/A, it is clearly C.C. No. 32/11 Page No. 13 of 37 reflected that said PW3 Sh. A.K. Chaturvedi, the then Deputy Commissioner, Rohini Zone, MCD, Delhi was the Competent Authority to remove the accused Ram Avtar Goel who was posted as JE in Rohini Zone, MCD from his service. Furthermore, from the perusal of the Biodata of the accused which is Ex.PW8/C, it is clearly reflected that said PW3 Sh. A.K. Chaturvedi was the Disciplinary Authority concerning this accused. In view of the same, I am of the considered view that PW3 Sh. A.K. Chaturvedi, the then Deputy Commissioner, Rohini Zone, MCD, Delhi was fully competent to pass Sanction Order for prosecution of the accused Ram Avtar Goel who was posted as JE in Rohini Zone, MCD.
16. However, I found force in the second limb of submission of Ld. Defence Counsel whereby attacking upon the said Sanction Order Ex.PW3/A on the count that said Sanction Order has been passed mechanically in view of the fact that said Sanction Order does not disclose about the detailed material which have been examined by said PW3 before according Sanction. From the perusal of the said Sanction Order Ex.PW3/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 PW3 has accorded the Sanction nor it C.C. No. 32/11 Page No. 14 of 37 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.PW3/A which reads as under: "Whereas I A.K. CHATURVEDI, DY. COMMISSIONER, ROHINI ZONE MUNICIPAL CORPORATION OF DELHI being the authority competent to remove Shri Ram Avtar Goel S/o Shri Suraj Bhan Goel R/o 324, Lok Vihar, Pitam Pura, Delhi34, J.E./MCD, Rohini Zone from service/office after examining carefully the material placed before me in regard to the said act and allegation and circumstances of the case, consider that the said Shri Ram Avtar Goel S/o Shri Suraj Bhan Goel R/o 324, Lok Vihar, Pitam Pura, Delhi34, J.E., MCD, Rohini Zone 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 C.C. No. 32/11 Page No. 15 of 37 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 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 C.C. No. 32/11 Page No. 16 of 37 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 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 C.C. No. 32/11 Page No. 17 of 37 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.
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. C.C. No. 32/11 Page No. 18 of 37
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.PW3/A which found not stating the detailed of the materials/documents which have been examined by the Sanctioning Authority before according Sanction and even the said Sanction Order does not disclose the grounds of satisfaction which persuaded the Sanctioning Authority for passing said Sanction Order Ex.PW3/A and even said PW3 Sh. A.K. Chaturvedi during the course of his deposition has not stated about the detailed of the materials / documents which have been examined by him before according the Sanction, I have no hesitation to safely conclude that said Sanction Order Ex.PW3/A suffer from serious legal infirmity and is legally invalid.
23. During the course of the arguments, it is submitted by Ld. Defence Counsel that the accused had neither demanded nor accepted any bribe from the complainant and the prosecution has failed to proved about the said aspects and hence, the accused deserve to be acquitted. Ld. Defence Counsel has taken me through the deposition of PW6 complainant as well as PW5 Panch witness in support of his said stand. To the contrary, it is submitted by Ld. APP for the State C.C. No. 32/11 Page No. 19 of 37 that the factum regarding the demand and acceptance of bribe of Rs. 40,000/ by the accused from the complainant has been successfully established by the prosecution through the deposition of various PWs and there is no reason to disbelieve the same.
24. From the perusal of the record, it is also reflected that the prosecution has failed to establish about the basic element relating to bribe i.e. "demand of bribe" by the accused from the complainant. From the perusal of the deposition of PW6 complainant, it is clearly reflected that it is the Mate Dwarka who had made initial demand of Rs.50,000/ and scaled down the same to Rs.40,000/ as PW6 complainant has deposed in this respect as under: "I told the mate that it was an excessive amount and requested him to scale down the bribe amount. Then the mate agreed to scale down the demand of bribe from Rs.50,000/ to Rs.40,000/. I told that mate that I did not have that much amount with me to pay and so I asked him to pay the amount of Rs.40,000/ within 2/3 days at the showroom."
From the perusal of the record, it is clearly reflected that said Mate Dwarka has not been examined as PW by the prosecution. Beside that from the deposition of PW1 Sh. M.K. Gupta, the then C.C. No. 32/11 Page No. 20 of 37 Assistant Engineer, Rohini Zone, MCD, Delhi, it is clearly reflected that said Mate/Beldar Dwarka was not working under the accused as said PW1 has deposed in this respect as under: "It is correct that Dwarka Beldar was not under accused J.E. present in the court as he was Beldar in MCD Department."
Furthermore, from the perusal of the deposition of PW6 complainant, it is further reflected that on 16.08.2000 complainant PW6 has given Rs.40,000/ alongwith the Reply of Notice, without any demand by the accused as PW6 complainant has deposed in this respect as under: "In the mean time accused Ram Avtar Goel came inside my car and took his seat at my side and the panch witness came out of my car and stood outside. I told accused that I have brought reply of the notice and your goods (aapka samaan), saying this I had given the reply of the notice along with bribe money of Rs.40,000/ to the accused and told him that I am giving the reply of the notice as well as the money as told by Dwarka, mate of the accused."
Furthermore, said PW6 complainant in his cross examination by Ld. APP is found to have denied about any demand of bribe of Rs.40,000/ by the accused from him and he has deposed in this respect as under: C.C. No. 32/11 Page No. 21 of 37 "I did not state in my statement that accused Goel had demanded money from me by saying "Lao Paise do" and I did not state that I took out Rs.40,000/ from my pocket and extended towards JE Goel who received the same by his left hand and counted with his right hand and in the mean time the panch witness got down from the car and gave signal by waiving his hand over his hand and then the raiding party came over there."
25. From the perusal of the record, it is reflected that the accused has taken the stand that on 16.08.2000 he had gone to the PS Ashok Vihar to seek police aid for getting demolition of Aggarwal Sweets in Ashok Vihar and the complainant after knowing the whereabouts of the accused by talking to him through telephone met the accused and insisted him to see his Reply of the Notice. It is further stand of the accused that on the plea of showing the Reply the complainant took the accused inside his car and tried to give some money alongwith the Reply on which the accused asked the complainant for the purpose of giving money and threw away the same on the floor of the car. The accused is found to have taken the aforesaid stand at various stages including his statement U/S 313 Cr.P.C. Said fact is also found corroborated from the deposition of C.C. No. 32/11 Page No. 22 of 37 PW5/Panch witness, Sh. Shanti Bhushan Sharma as said PW5 admitted to be correct that at the time of offering the money by the complainant the accused asked the complainant for the purpose of giving said money. As said PW5/Panch witness in his cross examination by Ld. Defence Counsel has deposed in this respect as under: "It is correct that accused asked the complainant by saying "kaisi paise hai."
Furthermore, said PW5/Panch witness Shashi Bhushan Sharma in his deposition in the Departmental Proceeding as against the accused has also admitted that at the time of offering of money by the complainant the accused had asked for the purpose of giving said money, as found reflected from the Inquiry Report Ex.PX, wherein it is mentioned to the effect that Sh. Shashi Bhushan Sharma admitted that the charged official asked the complainant by saying "yeh kaise paise hain".
26. It is a matter of common sense that in case the accused had earlier made any demand of bribe from the complainant then he would not have asked the complainant for the purpose of giving any money to him and therefore, the conduct of the accused whereby C.C. No. 32/11 Page No. 23 of 37 asking the complainant for the purpose of giving any money to him also substantiate the stand of the accused that he had not made any demand of bribe from the complainant earlier.
27. Besides that from the perusal of the record, it is reflected that only Notice dated 11.08.2000 U/S 345A of DMC Act whereby requiring to show cause as to why the premises no. KD63A, PhaseI, Ashok Vihar, Delhi be not sealed has been issued from the office of the Deputy Commissioner, Rohini Zone, MCD, Delhi, in response to which Reply dated 16.08.2000 on behalf of Smt. Santosh Rani mother of the complainant has been furnished. In view of the aforesaid fact, it is clearly reflected that no Order for demolition of the said property no. KD63A, PhaseI, Ashok Vihar, Delhi had yet been passed till 16.08.2000 nor the prosecution could prove about the passing of any such demolition order in this respect. PW8 Inspector J.P. Raghav, the IO in his cross examination by Ld. Defence Counsel has clearly admitted that he has not conducted the required Investigation in this respect, as he has deposed in this respect as under: "I did not verify the notice issued to complainant by MCD. However, I had gone through the notice. I do not recollect if the notice was in connection with sealing or demolition. I did not C.C. No. 32/11 Page No. 24 of 37 investigate the matter as to when the notice was issued and to whom it was served upon. I did not investigate if any reply to the said notice was submitted by the complainant. Volt. I did not think it necessary. I did not investigate if the complainant had requested the Deputy Commissioner, MCD. I did not investigate if any date was fixed for his personal hearing. I did not investigate the fact whether during the period of my investigation any sealing action or demolition proceedings were initiated against the building of M/S. Jagat Furnishers, KD Block, Ashok Vihar."
In view of the aforesaid material as available on the record, it is clearly reflected that the very basis of the demand of bribe by the accused i.e. "for not carrying out the demolition of said property/ shop no. KD63A, PhaseI, Ashok Vihar, Delhi" being run by the mother of the complainant could not be established by the prosecution and said fact also substantiate the stand of the accused that he has not made any demand of bribe from the complainant and has been falsely implicated by him in this case. Said stand of accused is further found corroborated from the Report dated 16.08.2000 as prepared by PW1 Sh. M.K. Gupta, Assistant Engineer (Bldg.), Rohini Zone, copy of which is Ex.PW1/DA which interalia state as under: C.C. No. 32/11 Page No. 25 of 37 "After that it came to the notice of the undersigned that Shri R.A. Goel, Jr. Engineer (Bldg.) was trapped by the mischievous of the local persons of Ashok Vihar with the thought that this may save their properties from demolition action which were sealed on 08.08.2000."
Besides that the then Deputy Commissioner, Rohini Zone, MCD after going through the details of the incident is found to have reported the matter to the then Commissioner on the same day i.e. 16.08.2000 to the effect that the accused has been falsely and malafidely implicated in this case and said facts are found reflected from the Report of the then Deputy Commissioner, Rohini Zone, MCD, copy of which is Ex.PW1/DB which interalia state as under: "In the process, the area JE has been got trapped with evil motives of those whose building have been sealed. The JE has been implicated falsely and forcibly, with tacit intention to get the process of demolition stopped."
28. In view of the aforesaid material as available on the record whereby clearly establishing that the aspect of demand of bribe by the accused Ram Avtar Goel from the complainant could not be proved by the prosecution. Furthermore, even the elements of acceptance C.C. No. 32/11 Page No. 26 of 37 and recovery of the bribe amount from the accused could not be properly established by the prosecution. As PW6/complainant, Sunil Arora though found to be a signatory to the Recovery Memo of GC Notes Ex.PW5/C and various other Memos, he has specifically denied the suggestion of Ld. Chief Prosecutor that he had signed the memos after having going through the same, thereby raising a big question mark on the genuineness of the Memos. As said PW6 in cross examination by Ld. Chief Prosecutor has deposed in this respect as under: "It is wrong to suggest that I had signed the memos and the raid report after having gone through the same and admitting the same to be correct."
Furthermore, said PW6/complainant, Sunil Arora is found to have given contradictory deposition regarding the recovery of the tainted GC Notes and he has deposed in this respect as under: "Thereafter, Inspector had conducted the raid and recovered the GC notes from the accused. Again said I did not notice as to from where the GC notes were recovered as stereo of the car was on and I had come out of my car."
However, PW7/Raid Officer, Inspector M.S. Sangha is found to have deposed regarding the recovery of the GC Notes by the C.C. No. 32/11 Page No. 27 of 37 Panch witness from the accused under his instruction. As said PW7/Raid Officer has deposed in this respect as under: "I asked the Panch witness to recover the bribe money from accused. Accordingly, Panch witness recovered bribe money of Rs.40,000/ from the right hand of the accused."
However, said PW7/Raid Officer in his cross examination by Ld. Defence Counsel by taking a contradictory stand admitted that some GC Notes were found lying on the floor of the car. Furthermore, said PW7/Raid Officer during the course of his deposition in the Departmental Proceeding as against the accused is also found to have stated regarding the said facts in his cross examination as found reflected from the Inquiry Report Ex.PX which interalia state as under: "Q. Is it correct that GC notes were lying at the floor of the car when you reached there?
A. When I apprehended Sh. Goel some G.C. Notes were fallen on the floor of the car."
However, PW5/Panch witness, Shashi Bhushan Sharma by taking the contradictory stand regarding this aspect has deposed as under: C.C. No. 32/11 Page No. 28 of 37 "Inspector Sanga immediately came towards our car on receiving my signal and at that time the bribe amount was going to be kept by the accused but he could not keep the bribe amount on the dash board of the car. First of all Inspector Sanga showed those GC notes to us and then tallied the numbers of these notes with the pre raid report and these numbers tallied with the numbers recorded in the pre raid report."
29. Since the prosecution has failed to establish regarding the factum of the demand of bribe by the accused Ram Avtar Goel 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 C.C. No. 32/11 Page No. 29 of 37 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".
30. In the absence of proof of "Demand of bribe" by the accused Ram Avtar Goel, I am of the considered view that said accused 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 for which he has 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" C.C. No. 32/11 Page No. 30 of 37
(10) 2009 (4) LRC 275 (SC) "State of Maharastra Vs. Dnyaneshwar Laxman Rao Wankhede"
31. During the course of the arguments, it is submitted by Ld. Defence Counsel that since the accused has already been exonerated on merits after completion of the Departmental Inquiry as conducted against him on the basis of the same allegation relating to the present case and Inquiry Report in this respect is Ex.PX and Office Order in this respect is Ex.PY, the accused Ram Avtar Goel deserve to be acquitted on this count itself. The factum regarding exoneration of this accused after conclusion of the Departmental Inquiry as per Inquiry Report Ex.PX and Officer Order Ex.PY being matter of record is not disputed by Ld. APP for the State but Ld. APP added that same can be of no help for the accused.
32. From the perusal of the record, it is clearly reflected that the Departmental Inquiry on the basis of the identical charge relating to the present case was initiated as against this accused and after conclusion of the detailed Inquiry the concerned Inquiry Officer is found to have passed a detailed Inquiry Report whereby holding that the charge as framed against Ram Avtar Goel JE could not be C.C. No. 32/11 Page No. 31 of 37 substantiated and certified copy of said Inquiry Report bearing case no. 32/04/DE/DDI/I dated 15.09.2009 is Ex.PX and the certified copy of the connected Office Order No. 1/184/2002/Vig./P/OP/2009/304 dated 25.09.2009 whereby exonerating the accused of the charge as leveled against him is Ex.PY. From the perusal of the said Inquiry Report Ex.PX, it is clearly reflected that after detailed discussion of the deposition of various Departmental witnesses the Inquiry Officer has concluded his findings as under: " Thus, to sumup, what has been stated, explained and discussed above, I come to the conclusion that the charge as framed against Shri Ram Avtar Goel, J.E. [B], Rohini Zone cannot be substantiated.
The Inquiry Report is submitted to the Disciplinary Authority for consideration and for favour of passing appropriate orders under the DMC Service {Control & Appeal} Regulations, 1959."
Furthermore, the connected Officer Order No. 1/184/2002/Vig./P/OP/2009/304 dated 25.09.2009 certified copy of which is Ex.PY interalia state as under: " With reference to charge sheet No. 1/184/2002/CPC/Vig./DA III/665 dated 31.12.2003 issued and served upon Shri R.A. Goel C.C. No. 32/11 Page No. 32 of 37 S/o Shri Suraj Bhan Goel, Jr. Engineer under Regulation 8 of the DMC Services (Control & Appeal) Regulations, 1959, in which case, the departmental inquiry was conducted by the Dy. Director of InquiriesI under Inquiry No. 32/04/DE/DDII, Dy. Commissioner, Rohini Zone the Competent Authority after considering the Inquiry Report and allied record of the case has been pleased to 'exonerate' Shri R.A. Goel, Jr. Engineer of the charge levelled against him, vide his orders dated 22.9.2009."
33. In view of the aforesaid material as available on the record, it is clearly established that after the conclusion of the Departmental Inquiry on the basis of identical charge relating to the present case it has been hold by the Inquiry Officer on merits that the charge as framed against the accused could not be substantiated as per certified copy of the Inquiry Report Ex.PX and ultimately the Disciplinary Authority was pleased to exonerate this accused of the charge as levelled against him as per Office Order certified copy of which is Ex.PY. Now the next question arises whether the accused in these circumstances deserve to be acquitted in this case on this count. While dealing with the similar aspect, in the case reported as 83(2000) DLT 395, "Munna Lal Khandelwal & Ors Vs. B. Hazra, Enforcement C.C. No. 32/11 Page No. 33 of 37 Officer & Ors." it was observed by the Hon'ble Delhi High Court in last part of Para 7 as under: " In the instant case the charges against the petitioners in the department proceedings and in the criminal proceedings are one and the same. If the charges which are identical could not be established against the petitioners in the departmental proceedings, one wonders what is there further to proceed against them in criminal proceedings. Thus, in view of the facts that the petitioners have been exonerated in the departmental proceedings, the very basis of the complaint does not exist and the petitioners' prosecution on the same set of facts and evidence cannot be sustained. That being so, there is no prospect of the cases ending in conviction and the valuable time of the Trial Court would be wasted for holding the trial only for the purpose of formally completing the procedure to pronounce its conclusion on a future date. In this view of the matter, allowing the criminal proceedings to continue and thereby forcing the petitioners to fact the ordeal of a trial would be an abuse C.C. No. 32/11 Page No. 34 of 37 of the process of law."
34. In another case reported as 131 (2006) DLT 12, "Surkhilal Vs. Union of India" after detailed discussion of various judgments, it was concluded by the Hon'ble Delhi High Court in Para 13 as under: " 13. The legal principles that can be evolved from the series of judgments quoted above are as under:
(a) Departmental proceedings are different from trial and so if the departmental proceedings end in favour of the accused the criminal trial is not hit by the principle of autre fois acquit.
(b) the departmental proceedings and the criminal proceedings can proceed side by side.
(c) if the departmental proceedings end in a finding in favour of the accused in respect of the allegations which also form the basis for the criminal proceedings then the departmental adjudication will remove the very basis of the criminal proceedings and in such situation the continuance of the criminal proceedings will be a futile exercise and an abuse of the process of the Court."
C.C. No. 32/11 Page No. 35 of 37
35. Similarly in the case of P.S. Rajya v. State of Bihar, reported as 1996 SCC (Cri) 897, the accused was exonerated in the departmental proceedings of the charge of acquisition of assets disproportionate to income on the basis of a report of the Central Vigilance Commission. Hon'ble Supreme Court of India held that the charge in the departmental proceedings and the charge in the criminal proceedings were identical and if the charge could not be established in the departmental proceedings one wonders what is there further in the prosecution to proceed against the appellant.
36. Furthermore, in the case reported as G.L. Didwania & Another Vs. Income Tax Officer & Another, 1995 Suppl. (2) SCC 724 and Uttam Chand Vs. Income Tax Officer, Central Circle, Amritsar, (1982) 2 SCO 543, Hon'ble Supreme Court of India had taken the view that when there is categorical finding exonerating the person by the Tribunal / departmental proceedings which are conclusive, prosecution cannot sustain against such person.
37. In view of the aforesaid discussion, I have no hesitation to safely conclude that since the case of the prosecution is found to suffer from several legal infirmities whereby striking at the root of the C.C. No. 32/11 Page No. 36 of 37 prosecution case thereby resulting in acquittal of the accused Ram Avtar Goel and therefore, this accused stand acquitted of the charged offence. Resultantly, his bail bond stand cancelled and his surety stand discharged.
Announced in the open court on this 15th day of September, 2011 (B.R. Kedia) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC,Delhi C.C. No. 32/11 Page No. 37 of 37