Delhi District Court
State vs . Kuldeep Singh on 30 May, 2011
IN THE COURT OF SHRI B.R. KEDIA, SPECIAL JUDGE07
(CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
C.C.NO. : 08/11
Unique Case ID : 02401R0077382006
STATE VS. KULDEEP SINGH
S/o Sh. Ranvir Singh,
R/o Vill. Jharoti,
PS Kharkhoda, Distt. Sonipat,
Haryana
FIR NO. : 45/04
U/S : 7/13 Prevention of Corruption Act,
1988
P.S. : ANTI CORRUPTION BRANCH,
DELHI
Date of Institution 03.02.2006
Judgment reserved on 26.05.2011
Judgment delivered on 30.05.2011
JUDGMENT
1. The precise case of the prosecution is that on dated 23.08.2004 complainant Dharmbir Singh S/o Sh.Sita Ram went to Anti Corruption Branch, Delhi and got lodged his complaint C.C. No. 08/11 Page No. 1 of 41 Ex.PW7/A regarding the demand of bribe of Rs.1200/ by the accused Kuldeep Singh being posted as Process Server in Karkardooma Court as consideration for effecting the service of the summons as against the opposite party in cheque bounce cases as filed by the complainant pending in the court of concerned Ld. M.M.
2. The gist of the said complaint is that the complainant Dharmbir Singh had filed 3 cheque bounce cases as against Smt. Shakuntala Aggarwal due to bounce of three cheques total amounting to Rs.1,20,000/ in which Sh. P. S. Malik, the then Ld. M.M., Karkardooma Court, had passed order for issuance of summons against said Smt.Shakuntala Aggarwal and said summons were assigned for effecting service to accused Kuldeep Singh posted as Process Server who had demanded bribe of Rs.1200/ for effecting service of said summons otherwise he would not file the report in said cases which has been fixed up for 28.8.2004. The accused had not filed the report of the said summons as issued even for last date of hearing due to nonpayment of bribe by the complainant. The accused had asked the complainant to bring the bribe amount of Rs.1200/ at his office in Karkardooma Court till 2:00 p.m. on 23.08.2004 and since the complainant was against giving of bribe, so he went to Anti C.C. No. 08/11 Page No. 2 of 41 Corruption Branch and got his complaint lodged before the then Inspector K.L.Meena, Raid Officer/PW8 in presence of Panch witness Rakesh Kumar PW10.
3. The further case of the prosecution is that the complainant has produced 2 GC notes of Rs. 500/ each and 2 GC notes of Rs. 100/ each before the Raid Officer PW8 who noted down the serial number of said GC note in the preraid proceedings Ex.PW7/B and treated the said GC notes with phenolphthalein powder. Thereafter, Raid Officer PW8 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 twice after being satisfied that the bribe has actually been given.
4. That at about 1:30 p.m., PW8 Raid Officer along with C.C. No. 08/11 Page No. 3 of 41 complainant, Panch witness, Inspector Jagdish, besides 34 other members of raiding party left Anti Corruption Branch in a government vehicle and reached near Karkardooma Court at about 2:15 p.m. Government vehicle was left outside the court premises and Inspector Jagdish and Driver remained in the vehicle. Complainant and Panch witness went inside the Nazarat Branch and other members of the raiding party took suitable position outside Nazarat Branch.
5. The further case of the prosecution is that at about 2:20 p.m. complainant, Panch witness came out of the Nazarat Branch and stood near the staircase and after sometime the accused having some papers in his hands came out and proceeded with them towards the gallery and obtained signature of the complainant on some papers there. On receiving predetermined signal by the Panch witness, the raiding team rushed towards the spot near staircase where the Panch witness stated that the accused Kuldeep Singh had demanded and accepted bribe of Rs.1200/ in his right hand from the complainant and afater counting the same with his both hands, he kept the same in the left pocket of his shirt. Thereafter, Raid Officer after disclosing his identity challenged the accused that he had demanded and accepted C.C. No. 08/11 Page No. 4 of 41 the bribe of Rs.1200/ from the complainant and offered his search but accused declined and became perplexed. On his directions, Panch witness recovered bribe amount of Rs.1200/ from the left pocket of shirt of the accused and compared the serial number of that GC notes with serial number mentioned in pre raid proceedings Ex.PW7/B and the same tallied. That recovered GC notes were taken into possession vide seizure memo Ex.PW7/C. Both hand wash of the accused was taken in colorless solution of sodium carbonate which turned into pink and solution of right hand wash and left hand wash were transferred into two empty small clean bottles each which were sealed with the seal of KLM and were marked as RHWI, RHWII and LHWI & LHWII by pasting slips thereon which were signed by Raid Officer, complainant and Panch witness. Thereafter, wash of the inner side left pocket of the shirt of the accused was taken in colorless solution of sodium carbonate which turned into pink was transferred into two empty small clean bottles which were sealed with the seal of KLM and were marked as LSSPWI & LSPPWII by pasting slips thereon which were signed by Raid Officer, complainant and Panch witness. Said 6 bottles were seized vide Seizure Memo Ex.PW7/D. The Raid Officer also drawn up the post raid proceedings which is Ex.PW7/F and prepared rukka Ex.PW8/A and sent the same through C.C. No. 08/11 Page No. 5 of 41 Ct. Krishan Pal to PS Anti Corruption Branch for registration of the case.
6. The further case of the prosecution is that the Raid Officer called Inspector Jagdish PW9 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.PW9/A, arrested the accused and conducted his personal search vide Memo Ex.PW7/G, seized summons Ex.PW7/E1 to Ex.PW7/E8 vide Seizure Memo Ex.PW7/E, received original rukka Ex.PW8/A and copy of FIR Ex.PW9/B, got accused medically examined and thereafter, went to PS Civil Line 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.PW9/C was received. 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 C.C. No. 08/11 Page No. 6 of 41 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 03.07.2006 to which accused pleaded not guilty and claimed trial.
8. Thereafter, in order to bring home the guilt of the accused, the prosecution got examined 10 prosecution witnesses namely Ct. Daman Singh, the then Assistant MHC(M) of PS Civil Line, a formal witness as PW1, HC Krishan Pal, who took rukka and got FIR registered, a formal witness as PW2, Sh.V.K.Goel, Ld. ADJ (the then Administrative Civil Judge, Delhi) who had accorded Sanction for prosecution as against accused, a formal witness as PW3, Sh.R.C.Rawal, the then Superintendent in the office of Administrative Civil Judge, who has prepared the Biodata of the accused, a formal witness as PW4, Sh.Suresh Kumar, Naib Nazir in the Karkardooma Court who has deposed about the assignment of the summons to the accused, a formal witness as PW5, SI Om Prakash who had deposited the relevant case property in the FSL from PS Civil Lines, a formal witness as PW6, Dharmbir Singh, complainant/prime witness as PW7, Inspector K.L.Meena, Raid Officer as PW8, Inspector Jagdish, IO as PW9 and Sh.Rakesh Kumar, Panch witness as PW10. C.C. No. 08/11 Page No. 7 of 41
9. 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 claimed to be falsely implicated in this case having no concern with the alleged offence. He further added that phenolphthalein powder was applied in his hand in Anti Corruption Branch for falsely implicating him in this case. However, the accused has not got examined any witness in his defence.
10. I have heard Final Arguments as addressed by Sh.Rajpal Singh, Adv. Ld. Counsel for the accused and Sh.Vinod Kumar Sharma, Ld. APP for the State and perused the relevant record.
11. It is submitted by Ld. Counsel for the accused that Sanction Order in this case has been passed by the Sanctioning Authority mechanically without proper application of mind and therefore, said sanction is not valid and the accused deserves to be acquitted on this count itself. 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. C.C. No. 08/11 Page No. 8 of 41 Defence Counsel that PW10 Rakesh Kumar is a stock witness of the police and Raid Officer is an interested witness and therefore, their deposition cannot be treated as trustworthy and reliable. It is further added by Ld. Counsel for the accused that Ex.PW5/A which is the copy of relevant entry regarding the marking of the summons to the accused for service is computer generated one and therefore, not admissible in view of Section 65 (B) of Indian Evidence Act and referred a judgment reported as 163 (2009) DLT 685. It is also added by Ld. Defence Counsel that since the IO had failed to seal the GC notes relating to the alleged bribe amount and GC notes are easily available, same falsify the case of the prosecution. It is further added by Ld. Defence Counsel that as no public witness despite their availability at the spot were joined by the Raid Officer in the raid proceedings, same is fatal for the case of the prosecution. Ld. Counsel for the accused also added that mere alleged recovery of tainted GC notes does not prove the case of the prosecution as against the accused. It is also added by Ld. Counsel for the accused that the Raid Officer has conducted the raid as against the accused on 23.08.2004 in the Karkardooma Court complex without prior intimation to the Incharge, Karkardooma Court and same also create suspicion for the case of the prosecution. It is also added by Ld. C.C. No. 08/11 Page No. 9 of 41 Defence Counsel that the position of the complainant is that of an accomplice and his deposition cannot be relied upon. Ld. Counsel for the accused thus urged for acquittal of this accused.
12. To the contrary, it is submitted by Ld. APP for the State that the prosecution by examining 10 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 for the State that prosecution has successfully established its case concerning the demand and acceptance of the bribe of Rs.1200/ by the accused from the complainant which is found proved from the deposition of PW7 complainant, PW8 Raid Officer and PW10 Panch witness. It is further added by Ld. APP that there is no reason as to why PW7 complainant, PW10 Panch witness and PW8 Raid Officer 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 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 nonsealing of recovered GC notes by the IO from the accused can be of no help C.C. No. 08/11 Page No. 10 of 41 for the accused in view of the fact that said GC notes are having specific number. It is also added by Ld. APP that nonjoining of the public witness at the spot by the IO can not weaken the case of the prosecution as Panch witness was already joined in the raid proceedings by the IO. It is also added by Ld. APP that the factum regarding assignment of summons to the accused for effecting service has been clearly proved from the record Ex.PW5/A coupled with the deposition of PW5 Suresh Kumar besides the recovery of said summons from the accused himself. 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.
13. 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. In order to prove the Sanction, the prosecution has examined PW3 Sh. V.K.Goel, Ld. ADJ (the then Administrative Civil Judge, Delhi) who has categorically deposed that in May 2005, he was posted as Administrative Civil Judge, Delhi and on receiving the request in his C.C. No. 08/11 Page No. 11 of 41 office from Anti Corruption Branch to grant sanction U/S 19 of Prevention of Corruption Act, 1988 for prosecuting the accused Kuldeep Singh, Process Server who was posted in Nazarat Branch, Karkardooma Court, Delhi, he had gone through the documents regarding the raid as placed before him and after due application of his mind, he was of the view that accused Kuldeep Singh to be prosecuted and being competent authority to remove the accused Kuldeep Singh from service, he had accorded the Sanction U/S 19 of Prevention of Corruption Act, 1988 vide Sanction Order Ex.PW3/A bearing his signature at point A. He had specifically denied the suggestion of Ld. Defence Counsel that he had accorded the sanction mechanically without proper application of mind. From the perusal of the Biodata of the accused which is Ex.PW4/A, it is clearly reflected that said PW3 being the Administrative Civil Judge, Delhi was the Appointing Authority and therefore, competent to remove the accused from his service.
14. In the case reported as State of Maharashtra and ors V/s Ishvar Piraji Kelpatri & ors 1996 Cri.L.J.1127, where Hon'ble Supreme Court had laid down that if the Authority according sanction makes statement that while signing the order of sanction, it had C.C. No. 08/11 Page No. 12 of 41 personally scrutinized the file and had arrived at required satisfaction, it is not necessary to look for, that there was application of mind or not or that material on record was examined by the concerned officer or not before according sanction, especially when order prima facie shows that, he had done so.
15. Furthermore, in the case reported as 2004 (13) SCC 487, Shankar Bhai Lalji Bhai Vs. State of Gujrat, it was observed by Hon'ble Supreme Court of India as under: "So far as the question of Sanction is concerned, in the absence of anything to show that any defect or irregularity therein caused failure of justice, that plea is without substance."
16. In the case reported in 2011 I AD (CRI.) (S.C.) 1, Kootha Perumal Vs. State (through) Inspector of Police, Vigilance & Anti Corruption, it was held in Para 14 by Hon'ble Supreme Court of India as under: "Keeping in view the aforesaid statement of law, it would not be possible to conclude that the sanction order in the present case was not valid. Ex.P2 with the present C.C. No. 08/11 Page No. 13 of 41 appeal is the copy of the sanction order. A perusal of the same would show that the sanctioning authority has adverted to all the necessary facts which have been actually proved by the prosecution in the trial. Upon examination of the material facts, the sanctioning authority has certified that it is the authority competent to remove the appellant from the office. It is specifically stated that the statements of the witnesses have been duly examined. Sanction order also states that the other materials such as copy of the FIR as well as other official documents such as the different mahazars were carefully examined. Upon examination of the statements of the witnesses as also the material on record, the sanctioning authority has duly recorded its satisfaction that the appellant should be prosecuted for the offences, as noticed above. We, therefore, find no merit in the submission of the learned counsel that the sanctioning order to prosecute the appellant was not legal".
17. By taking cue from the aforesaid judgments and applying C.C. No. 08/11 Page No. 14 of 41 the same to the facts of the present case, I do not find any force in the submission of Ld. Counsel for the accused to the effect that Sanction Order was passed mechanically as I am of considered view that the Sanction has been validly granted by PW3 Sh.V.K.Goel,Ld. ADJ (the then Administrative Civil Judge, Delhi) who was competent to do so.
18. That during the course of argument, it is submitted by Ld. Counsel for the accused that Ex.PW5/A which is the copy of the relevant entry regarding marking of the summons to the accused for service is a computer generated one and therefore, same is not legally admissible in view of the absence of the requirement of Section 65 (B) of the Indian Evidence Act and same is fatal for the case of the prosecution. To the contrary, it is submitted by Ld. APP for the State that PW5 is official witness who has proved the official record which is Ex.PW5/A duly showing the marking of the three summons as per serial no.3259, 3260 and 3261 as against the accused and there is no reason to disbelieve the same.
19. From the perusal of the record, it is reflected that PW5 Suresh Kumar, the then Naib Nazir in the office of District Court, Karkardooma, Delhi has deposed that the summons as issued from C.C. No. 08/11 Page No. 15 of 41 different courts were received in Nazarat Branch and after feeding the particulars of those summons, same were marked to different Process Servers. He further deposed that as per record three summons as issued from the court of Sh.P.S.Malik, the then Ld. M.M.returnable on 28.08.2004 were received in Nazarat Branch and said summons were marked to Process Server Kuldeep Singh, the accused herein as per the entry made at serial no.3259,3260 and 3261 and proved the copy of the said record as Ex.PW5/A and original records were seen and returned. Furthermore, the factum regarding the marking of the said three summons as per entry of serial no.3259, 3260 and 3261 dated 20.07.2004 as against accused Kuldeep Singh are found corroborated even from the contents of said summons forming part of Ex.PW7/E1 to PW7/E8 which found bear the relevant entry of serial numbers coupled with the signature of accused Kuldeep Singh and it is further revealed from the record that said three summons have been seized from the possession of the accused Kuldeep Singh on 23.08.2004 immediately after the accused was caught redhanded by the officials of the Anti Corruption Branch. It is further revealed from the record that no suggestion has been put to PW5 in his cross examination on behalf of the Defence Counsel that said summons as per entry at serial no.3259, 3260 and 3261 were not assigned to the accused for service C.C. No. 08/11 Page No. 16 of 41 nor accused has taken the stand anywhere that said summons were not assigned to him for effecting their service. In view of the aforesaid material as available on record, I do not find any force in the submission of Ld. Defence Counsel to the effect that said record Ex.PW5/A is not legally admissible, and hence the judgment as referred by Ld. Defence Counsel can be of no help for the accused.
20. During the course of the argument, it is submitted by Ld. Defence Counsel that the Raid Officer has conducted the raid as against the accused on 23.08.2004 in the Karkardooma Court Complex without prior intimation to the Incharge, Karkardooma Court and same also create suspicion for the case of the prosecution. It is submitted by Ld. APP for the State that there was no necessity on the part of the Raid Officer for giving prior intimation to the Incharge, Karkardooma Court before conducting the raid as against the accused. From the perusal of the deposition of PW7 complainant, Dharambir Singh, PW8 Inspector K.L.Meena, Raid Officer, PW10 Rakesh Kumar, Panch witness, it is clearly reflected that only after the receipt of the Complaint Ex.PW7/A from the complainant/PW7 Dharambir Singh and carrying out the preraid proceedings Ex.PW7/B in the presence of the complainant and Panch witness, PW8 Raid Officer C.C. No. 08/11 Page No. 17 of 41 alongwith the raiding party have left the Anti Corruption Branch on 23.08.2004 for conducting the raid as against the accused to trap him while demanding and accepting the bribe from the complainant and since the exercise of prior intimation in this respect to the Incharge, Karkardooma Court could have lead to leakage of the secrecy of the same and under the said impression the Raid Officer might not have felt it proper to give any such prior intimation to the Incharge, Karkardooma Court and therefore, Raid Officer cannot be faulted in this respect.
21. During the course of the arguments, it is submitted by Ld. Defence Counsel that as no public witness despite their availability at the spot were joined by the Raid Officer in the raid proceedings, same is fatal for the case of the prosecution. It is submitted by Ld. APP for the State in response to the said submission of Ld. Defence Counsel that said plea on behalf of the accused does not bear any merit. I am of the considered view that since the Raid Officer had already joined a Panch witness namely Rakesh Kumar PW10 who is an independent public person in the said raid proceedings and therefore, the Raid Officer cannot be faulted for nonjoining any other public person at the spot in the said trap proceedings.
C.C. No. 08/11 Page No. 18 of 41
22. That during the course of argument, it is submitted by Ld. Counsel for the accused that the prosecution could not prove about the demand and acceptance of bribe by the accused from the complainant. On the other hand, it is submitted by Ld. APP for the State that the facts regarding demand and acceptance of the bribe by the accused from complainant has been successfully proved by the prosecution through the deposition of the complainant as well as the Panch witness.
23. In order to prove that the accused had demanded and accepted the bribe amount from the complainant, the prosecution is found to have examined PW7 Dharambir Singh/complainant, PW8 Inspector K.L.Meena/Raid Officer and PW9 Inspector Jagdish/IO and PW10 Panch witness/Rakesh Kumar.
24. PW7 complainant Dharambir Singh has deposed that one Smt.Shakuntala Aggarwal had issued three cheques to him and said cheques were dishonoured on presentation and therefore, he filed complaint case in the court of Sh.P.S.Malik, the then Ld. M.M.and notice was issued as against accused therein Smt.Shakuntala C.C. No. 08/11 Page No. 19 of 41 Aggarwal. He further deposed that firstly the accused Kuldeep Singh who was Process Server gave report on the said summon to the effect that addressee was not residing at the given address. Thereafter, he filed fresh address of said Smt.Shakuntala Aggarwal and fresh process was issued at the said address. But on second occasion, accused has not given any report on the process and thereafter, he met accused on which accused demanded Rs.1200/ for getting service of summons and accused asked him to bring the bribe amount on 23.08.2004 at Karkardooma Court and as he was against giving of bribe, he went to Anti Corruption Branch and lodged his complaint Ex.PW7/A which bears his signature at point A and Panch witness was also present at that time. He further deposed that he delivered 2 GC notes of Rs. 500/ each and 2 GC notes of Rs.100/ each to the Raid Officer and number of the said GC notes were noted in the PreRaid Report Ex.PW7/B. He also deposed about the PreRaid Proceedings Ex.PW7/B. He further deposed that he alongwith Raid Officer, Panch witness and other members of the raiding team left Anti Corruption Branch office and reached Karkardooma Court at about 2:15 p.m. He also deposed that he alongwith Panch witness went to Nazrat Branch, Karkardooma Court and other members of the raiding party took suitable position. He further deposed that accused asked him to go C.C. No. 08/11 Page No. 20 of 41 out as he was coming and thereafter, accused came out and they went near the staircase where accused obtained his signatures on dasti summons. As regards the demand and acceptance of the bribe, said PW7 complainant deposed in this respect as under: "Thereafter accused demanded bribe amount of Rs.1200/ which I handed over to the accused which he accepted in his right hand. Thereafter accused counted those currency notes and one of the GC note was slightly torn and accused asked for replacing of said note. I told accused that I did not have any other amount. Thereafter accused kept those GC notes in the left pocket of his shirt".
25. Said PW7 also deposed that on receiving the pre determined signal as given by the Panch witness, members of the raiding party came there and on the instructions of the Raid Officer, Panch witness recovered the treated GC notes from the left pocket of the shirt of the accused and serial numbers of the said GC notes were found tallied with the serial numbers as mentioned in the preraid Report and said GC notes were seized vide Seizure Memo Ex.PW7/C which bears his signature at point A. Said PW7 complainant also deposed that both hand wash of the accused were taken separately in C.C. No. 08/11 Page No. 21 of 41 water type solution which turned into pink and said solution was transferred into four bottles which were seized vide Seizure Memo Ex.PW7/D. He also deposed that left side pocket wash of shirt of accused was also taken and said solution was also transferred in another two small bottles which were seized vide Seizure Memo Ex.PW7/D. Shirt of the accused was converted into pullanda with the seal of Raid Officer and was seized vide Seizure Memo Ex.PW7/D. Said PW7 also deposed that summons were also taken into possession from the accused vide Seizure Memo Ex.PW7/E bearing his signature at point A and said summons are Ex.PW7/E1 to PW7/E8. He also deposed that Raid Officer carried out the Post Raid Report Ex.PW7/F which bears his signature at point A He also deposed that the accused was arrested and his personal search was conducted vide Memo Ex.PW7/G bearing his signature at point A. Said PW7 has duly identified said treated GC notes as Ex.P1 to P4, 6 sealed bottles containing wash solution marked as RHWI, RHWII, LHWI and LHWII and LSSPWI and LSSPWII as Ex.P5 to P10, shirt of the accused as Ex.P11 and pullanda of the shirt as Ex.P12. Said PW7 has denied the specific suggestion of Ld. Defence Counsel that accused never demanded bribe amount from him nor he gave the bribe amount.
C.C. No. 08/11 Page No. 22 of 41
26. Similarly, PW10 Rakesh Kumar/Panch witness has deposed before the court that on dated 23.08.2004 he was on duty as a Panch witness in the Anti Corruption Branch and complainant Dharambir Singh got recorded his Complaint Ex.PW7/A bearing his signature at point C and he has also narrated about the Pre Raid Proceedings Ex.PW7/B bearing his signatures at point C. He further deposed that at about 1:30 p.m., he alongwith the complainant and other members of the raiding team left the Anti Corruption Branch in a government vehicle and reached Karkardooma Court at about 2:15 p.m. He further deposed that he alongwith the complainant entered in the room of Kuldeep Singh and met accused on which accused asked complainant to go out as he was coming and thereafter, accused came out and took out some notice from his pocket and got them signed from the complainant. He also deposed about the demand and acceptance of the bribe by the accused and stated as under: "Complainant took out those GC notes from his pocket and extended towards the pocket of the accused. Accused took those GC notes with his right hand and after counting the same with his both hands and told the complainant that one of the GC note of Rs.100 was slightly torned. Complainant told the accused that he C.C. No. 08/11 Page No. 23 of 41 was having only those Gc notes. accused kept the same in the left pocket of his shirt. Thereafter, I gave predetermined signal by hurling my hand over my head. The members of the raiding party immediately came at the spot and Raid Officer enquired from me about the incident and I told him that accused had demanded and accepted the bribe of Rs. 1200/ from the complainant and kept the same in his left pocket of his shirt."
27. Said PW10 Panch witness Rakesh Kumar also deposed that on the instructions of the Raid Officer, he recovered those treated GC notes from the left pocket shirt of the accused and serial number of said GC notes were found tallied with the serial number as mentioned in the preraid Report and GC notes were seized vide Seizure Memo Ex.PW7/C bearing his signature at point C. Said PW10 also deposed about taking of both hand wash and left pocket wash of shirt of the accused separately in water type solution which turned into pink colour and said solution were transferred into 6 bottles which were seized vide Seizure Memo Ex.PW7/D which bears his signature at point C. He also deposed that the shirt of the accused was converted into a pullanda and was seized. He also deposed about carrying out of the Post Raid Proceedings Ex.PW7/F bearing his signature at point C. C.C. No. 08/11 Page No. 24 of 41 He further deposed that IO seized the summons Ex.PW7/E1 to PW7/E8 vide Seizure Memo Ex.PW7/E which bears his signature at point B. He also deposed regarding the arrest of the accused vide Memo Ex.PW10/A and personal search of the accused vide Memo Ex.PW7/G which bears his signature at point A and X respectively. Said PW10 during the course of deposition in the court has duly identified the GC notes as Ex.P1 to P4, 6 bottles containing wash solutions mark RHWI, RHWII, LHWI, LHWII, LSSPWI and LSSPWII as Ex.P5 to P10, the shirt of the accused as Ex.P11 and pullanda of the shirt of the accused as Ex.P12. Said PW10 has denied the specific suggestion of Ld. Defence Counsel in his cross examination that the accused has never demanded and accepted any bribe from the complainant in his presence and nothing was recovered by the police from the accused.
28. PW8 Inspector K.L.Meena/Raid Officer is also found to have deposed in the court whereby substantiating the deposition of PW7 complainant as well as PW10 Panch witness. Said PW8 deposed that on 23.08.2004 when he was posted as Inspector in Anti Corruption Branch, complainant Dharambir Singh came to him at about 11:45 a.m.and gave his complaint Ex.PW7/A in the presence of C.C. No. 08/11 Page No. 25 of 41 Panch witness Rakesh Kumar and said complaint bears his signature at point B. He also deposed that the complainant delivered 2 GC notes of Rs.500/ each and 2 GC notes of Rs.100/ to be used as bribe money at the time of laying trap against the accused and also deposed in detail regarding the PreRaid Proceedings Ex.PW7/B and Post Raid Proceedings Ex.PW7/F bearing his signature at point B as carried out by him. As regards the demand and acceptance of the bribe by the accused, he deposed in this respect as under: "After some time I received the signal from the punch witness. and I along with raiding team rushed to the spot i.e near stair case. I asked the panch witness, what had happened and he told me that Kuldeep accused present in the Court today (correctly identified) had taken bribe money of Rs.1200/ from the complainant and after counting the same with his both hands he kept the same in left pocket of his shirt. Accused present in the court is the same person who obtained the signature of complainant on some papers and who was talking to the complainant."
29. Said PW8 Raid Officer has also deposed regarding the C.C. No. 08/11 Page No. 26 of 41 recovery of the bribe money by the Panch witness from the left shirt pocket of the accused and seizure of the said GC notes vide Memo Ex.PW7/C bearing his signature at point B. He also deposed about taking of both hand wash of the accused as well as wash of left side pocket of shirt of the accused in colourless solution of sodium carbonate which turned into pink colour and transferring of the said solution in 6 small clean bottles which were seized vide Seizure Memo Ex.PW7/D bearing his signature at point B. Said PW8 during course of his deposition in the court has duly identified the recovered GC notes as Ex.P1 to P4, said 6 bottles as Ex.P5 to P10, the shirt of the accused as Ex.P11 and pullanda of the shirt as Ex.P12.Said PW8 Raid Officer has denied the specific suggestion in his cross examination by Ld. Defence Counsel that the GC notes were not recovered from the pocket of the accused by the Panch witness on his direction. He also denied the suggestion of Ld. Defence Counsel that the Panch witness never told him that the accused has accepted the GC notes from the complainant and thereafter counted the same and kept in his pocket.
30. From the deposition of PW7 complainant, PW8 Raid Officer and PW10 Panch witness coupled with Post Raid Proceedings C.C. No. 08/11 Page No. 27 of 41 Ex.PW7/F, it is clearly reflected that on asking by the accused Kuldeep Singh, PW7 complainant/Dharambir Singh has delivered bribe amount of Rs.1200/ in the form of 2 GC notes of Rs.500/ each and 2 GC notes of Rs.100/ each to the accused Kuldeep Singh which he accepted in his right hand and by counting in his both hands kept the same in his left pocket shirt and thereafter, said treated GC notes of Rs.1200/ were recovered by PW10 Panch witness Rakesh Kumar from the left pocket shirt of the accused on the instruction of PW8 Raid Officer. It is further revealed from the record that the right hand wash, left hand wash and left shirt pocket wash of the accused in colourless solution of the sodium carbonate as contained in small clean bottles Ex.RHWI, LHWI and LSSPWI respectively were found containing phenolphthalein and sodium carbonate as established from the FSL Report Ex.PW9/C.
31. In view of the aforesaid material as available on the record,the demand and acceptance of the bribe of Rs.1200/ by the accused Kuldeep Singh from the complainant PW7 Dharambir Singh has been clearly found established by the prosecution.
32. During course of arguments, it is submitted by Ld. Counsel C.C. No. 08/11 Page No. 28 of 41 for the accused Kuldeep Singh that in a trap case the position of the complainant is that of an accomplice and his statement cannot be acted upon unless corroborated in material particular. So far as the contention that the statement of the complainant cannot be acted upon without corroboration is concerned, it is appropriate to refer to the case of Dewan @ Vasudeva and etc. V/s The State 1988 Crl. L.J. 1005 where it was held by Hon'ble High court of Kerala as under : ''True, the person who pays the gratification is, in a way, an accomplice in the offence, when his role is viewed from a wide angle. But before his evidence is dubbed as unworthy of credit without corroboration, a pragmatic or realistic approach has to be made towards such evidence. If the bribegiver voluntarily goes to the offender and persuades him to accept the bribe , his position is that of an undiluted accomplice and it is a rule of prudence to insist on independent corroboration such evidence. On the other hand, if the giver of gratification was persuaded to give it, he actually becomes a victim of persuasion by the offender. To name him an accomplice and to reject his testimony due to want of corroboration, would sometimes, be unrealistic and imprudent .The court must always bear in mind that insistence on corroboration for the evidence of accomplice is not on account of any rule of law, but is a caution of prudence. The density of the stigma to be attached to a C.C. No. 08/11 Page No. 29 of 41 witness as an accomplice depends upon the degree of his complicity in the offence. Suspicion towards his role as an accomplice should vary according to the extent and nature of his complicity. It must be considered in each case whether the bribe giving or payment of gratification was done in such a way that independent persons had no occasion to witness such acts. '' Furthermore, in another case reported as State of U.P. vs. Dr.G.K.Ghosh AIR 1984 SC 1453 it was observed by Hon'ble Supreme Court as under: "By and large a citizen is somewhat reluctant rather than anxious, to complain to the Vigilance Department and to have a trap arranged even if illegal gratification is demanded by a Government servant. There are numerous reasons for the reluctance. In the first place, he has to make a number of visits to the office of Vigilance Department and to wait on a number of officers. He has to provide his own currency notes for arranging a trap. He has to comply with several formalities and sign several statements. He has to accompany the officers and participants of the raiding party and play the main role. All the while he has to remain away from his job, work, or avocation. He has to sacrifice his time and effort while doing so. Thereafter, he has to attend the court at the time of the trial from day to day. He has to withstand the searching cross examination by the defence counsel as if he himself is C.C. No. 08/11 Page No. 30 of 41 guilty of some fault. In the result, a citizen who has been harassed by a Government officer, has to face all these hazards. And if the explanation offered by the accused is accepted by the court, he has to face the humiliation of being considered as a person who tried to falsely implicate a Government servant, not to speak of facing the wrath of the Government servants of the department concerned, in his future dealings with the department. No one would therefore be too keen or too anxious to face such an ordeal. Ordinarily, it is only when a citizen feels oppressed by a feeling of being wronged and finds the situation to be beyond endurance, that he adopts the course of approaching the Vigilance Department for laying a trap. His evidence cannot therefore be easily or lightly brushed aside. Of course, it cannot be gainsaid that it does not mean that the court should be oblivious of the need for caution and circumspection bearing in mind that one can conceive of cases where an honest or strict Government official may be falsely implicated by a vindictive person to whose demand, for showing favours, or for according a special treatment by giving a gobye to the rules, the official refuses to yield."
33. Furthermore, it is not the case where the complainant had been frequently giving bribe amount to the accused or public servant. Beside this, in the present case, the deposition of the complainant PW7 is found corroborated even from the deposition of PW10 Rakesh C.C. No. 08/11 Page No. 31 of 41 Kumar/Panch witness coupled with the Complaint Ex.PW7/A and Post Raid Proceedings Ex.PW7/F and I do not see any reason to disbelieve the same. Furthermore, in the case reported as AIR 1998 SC 1474 State of U.P. Vs. Zakullaha, it was held by Hon'ble Supreme Court of India as under : " Complainant's evidence cannot be rejected merely as he was against the bribe taker. Fact that trap officer successfully trapped the delinquent is no ground to conclude his animosity against the delinquent."
34. During the course of the argument, it is submitted by Ld. Counsel for the accused that as the Raid Officer is an interested witness for success of his raid and therefore, his deposition cannot be treated as trustworthy and reliable. I do not find any force in the submission of Ld. Counsel for the accused in this respect. Reference is placed on case of Hazari Lal V/s State ( Delhi Admn ) AIR 1980 Supreme Court 873. In that case the allegations against the accused who was a police officer was that he demanded bribe from the complainant for release of his scooter rickshaw which was seized by the police. The trap was laid and the accused was caught red handed. However, during trial complainant turned hostile and deposed that C.C. No. 08/11 Page No. 32 of 41 when he went to the police station on first occasion to obtain delivery of his scooter rickshaw it was not the accused that was present but one Hawaldar was present and it was not the accused but that Hawaldar who demanded bribe of Rs. 60/ from him and when he went to the police station along with punch witness he found accused there and asked him to take a sum of Rs. 60/ and return the scooter rickshaw. He stretched his hand with the money towards the pocket of accused 's trouser but accused said the money might be paid to the person for whom it was meant for. He refused to receive the money and jerked complainant's hand with his hand as a result of which the notes came to be flung across the wall into neighboring room. He deposed that accused neither demanded the amount from his nor accepted the amount. The punch witness who went along with the complainant could not be examined as he became insane and other punch witness turned hostile. The conviction was based on the statement of trap officer and the Hon'ble Supreme Court held as under: "We are not prepared to accept the submission of Shri Frank Authony that he is the very Police Officer who laid the trap should be sufficient for us to insist upon corroboration. We do wish to say that there is no rule of prudence which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the C.C. No. 08/11 Page No. 33 of 41 same footing as evidence of accomplices and there should be insistence on corroboration. In facts and circumstances of a particular case a Court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally, in the facts and circumstances of another case, the Court may unhesitatingly agent the evidence of such an officer."
35. Besides that in the case reported as AIR 1998 SC 1474 State of U.P. Vs. Zakullaha it was held by the Hon'ble Supere Court of India that the evidence of trap officer in a bribe case can be acted upon even without the help of any corroboration and similar view was held in following judgments: (1) Prakash Chand vs. State (Delhi Administration) AIR 1979 SC 400 (2) Hazari Lal vs. Delhi Administration AIR 1980 SC 873
36. During the course of the argument, it is also submitted by Ld. Defence Counsel that since PW10 Panch witness has joined by the police officials of the Anti Corruption Branch in several cases as Panch witness, he is a stock witness of the police and therefore, his deposition cannot be treated as trustworthy and reliable. No doubt in his cross examination said PW10 Rakesh Kumar is found to have C.C. No. 08/11 Page No. 34 of 41 stated that he has been assigned duty as Panch witness several times in Anti Corruption Branch but the same cannot be a ground for discarding his deposition specifically when it is found corroborated from the deposition of PW7 complainant as well as PW8 Raid Officer besides contents of the Complaint Ex.PW7/A, PreRaid Proceedings Ex.PW7/B, Post Raid Proceedings Ex.PW7/F, Seizure Memo of GC notes Ex.PW7/C, Seizure Memo of exhibits and shirt of accused Ex.PW7/D, Seizure Memo of summons from the accused Ex.PW7/E. Furthermore, said PW10 Rakesh Kumar who is a public servant being posted as UDC in the Directorate of Education and had been joined as Panch witness in the Anti Corruption Branch as per the roaster prepared in this respect during official course of the business and not as per the sweet will of said PW10 Rakesh Kumar and therefore, it cannot be treated as infirmity while considering the deposition of PW10 Panch witness Rakesh Kumar.
37. During the course of the argument, it is submitted by Ld. Defence Counsel that since IO had failed to seal the GC notes as allegedly recovered as bribe amount from the accused, same falsify the case of the prosecution. From the perusal of the deposition of PW7 complainant, PW8 Raid Officer and PW10 Rakesh Kumar, C.C. No. 08/11 Page No. 35 of 41 Panch witness coupled with the PreRaid Report Ex.PW7/B, it is clearly found reflected that PW8 Raid Officer had noted in the Pre Raid Report Ex.PW7/B about the serial number of the GC notes of Rs. 1200/ in the form of 2 GC notes of Rs.500/ each and 2 GC notes of Rs.100/ each as delivered to him by PW7 complainant for being used as bribe money while laying trap as against the accused and on recovery of said bribe money from the left pocket shirt of the accused, the serial number of the recovered GC notes on comparison were found tallied with the serial number of the GC notes as found mentioned in Pre Raid Report Ex.PW7/B thereby establishing that the recovered GC notes were the same GC notes whose serial number were noted earlier in the Pre Raid Report Ex.PW7/B and was delivered by the complainant. In view of the same, I am of the considered view that the nonsealing of the recovered GC notes by the IO cannot weaken the case of the prosecution in any manner.
38. I also do not find any force in the submission of Ld. Counsel for the accused that mere recovery of the treated GC notes as against the accused is not sufficient to convict the accused for the charged offence. Once the accused is found to have accepted the bribe amount, it is for him to explain as to in which capacity he has C.C. No. 08/11 Page No. 36 of 41 accepted the same.
39. In the case of Dhanvantrai Balwantrai Desai V/s State of Maharashtra, AIR 1964 Supreme Court 575 it was held as under:
"Therefore, the court has no choice in the matter, once it is established that the accused person has received a sum of money which was not due to him as a legal remuneration. Of course, it is open to that person to show that though that money was not due to him as legal remuneration, it was legally due to him in some other manner or that he had received it under a transaction or an arrangement which was lawful. The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occurs in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a mere explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is C.C. No. 08/11 Page No. 37 of 41 supported by proof, the presumption created by the provision cannot be said to be rebutted.
40. It is also useful to refer to the decision of Hon'ble Supreme Court in case of M.Narsinga Rao V/s State of A.P. 2001 (1) SCC 691 rendered by Three Hon'ble Judges of Supreme Court. In that case accused demanded a bribe of Rs. 500/ from a milk transporting contractor for recommending the payment of an amount due to the contractor. The accused was caught red handed while accepting the bribe amount. Accused took the plea that currency notes were stuffed into his pocket. During trial complainant and panch witness did not support the prosecution case and it was argued before Hon'ble High Court that it is not possible to draw any presumption against the delinquent public servant in the absence of direct evidence to show that the public servant demand bribe. The Hon'ble High Court held as under: "It is true that there is no direct evidence in this case that the accused demanded and accepted the money. But the rest of the evidence and the circumstances are sufficient to establish that the accused had accepted the amount and that gives rise to a presumption under Section 20 of the C.C. No. 08/11 Page No. 38 of 41 Prevention of Corruption Act that he accepted the same as illegal gratification, particularly so, when the defence theory put forth is not accepted."
41. It is also useful to refer to the case of B. Noha V/s State of Kerela & Another 2006 VI AD ( Criminal ) 465 ( SC ) where it was held as under: "that when it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deducted from the facts and circumstances obtained in the particular case."
42. It was held in the case reported as State of AP Vs. Kommaraju Gopala Krishna Murthy 2000 (9) SCC 752, that when the amount is found to have passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification. That burden was not discharged by the accused herein.
43. Once the bribe amount is recovered from the accused it is for the accused to explain as to how the bribe amount landed in his person. In the present case, the accused Kuldeep Singh has not given C.C. No. 08/11 Page No. 39 of 41 any justifiable explanation as to how bribe amount of Rs.1200/ landed in his left side pocket of his shirt from which it was recovered. The accused in his statement U/S 313 Cr.P.C.has taken the stand that he is innocent and falsely implicated in this case and the currency notes have been falsely foisted upon him but he has not disclosed as to why and who has done the same nor has given any suggestion in this respect to PW7 complainant, PW8 Raid Officer and PW10 Panch witness nor has led any evidence in support of his said plea and therefore, said bare plea of the accused appears to be baseless and afterthought and can be of no help for the accused.
44. In view of the aforesaid materials as available on the record, I am of the considered view that the presumption as contemplated U/S 20 of the Prevention of Corruption Act,1988 could not be rebutted by the accused and the judgment as referred and relied by Ld. Counsel for the accused can be of no help for the accused being not applicable in view of the fact and circumstances as available on record relating to the present case.
45. In view of the aforesaid discussion, I have no hesitation to safely conclude that the prosecution has successfully established its C.C. No. 08/11 Page No. 40 of 41 case as against the accused Kuldeep Singh for the charged offence and therefore, the accused Kuldeep Singh is held guilty and convicted for offence punishable U/S 7 and 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988. Let accused Kuldeep Singh be heard separately on the point of sentence.
Announced in the open court
on this 30th day of May, 2011 (B.R. Kedia)
Special Judge07
(PC Act Cases of ACB, GNCTD)
Central District, THC,Delhi
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