Delhi District Court
State vs . Kamal Pal Sharma on 7 March, 2012
IN THE COURT OF SHRI B.R. KEDIA, SPECIAL JUDGE07
(CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
C.C.NO. : 13/12
Unique Case ID : 02401R0431202009
STATE VS. KAMAL PAL SHARMA
S/o Late Sh. Ram Lal Sharma,
R/o D140, Nehru Vihar,
Timarpur, Delhi.
FIR NO. : 32/2008
U/S : 7/13 Prevention of Corruption Act,
1988
P.S. : ANTI CORRUPTION BRANCH,
DELHI
Date of Institution 16.09.2009
Judgment reserved on 05.03.2012
Judgment delivered on 07.03.2012
JUDGMENT
1. The precise case of the prosecution is that on dated 25.09.2008 complainant Sh. Jagjit Singh S/o Late Sh. Jagir Singh went to Anti Corruption Branch, Delhi and got lodged his complaint C.C. No. 13/12 Page No. 1 of 30 Ex.PW1/A regarding the demand and acceptance of Rs.2,500/ on 12.09.2008 and Rs.2,000/ on 16.09.2008 and issuance of a Rent Receipt of Rs.3,276/ towards Plot No. C2/3, Nand Nagri, Delhi as earlier alloted in the name of the father of the complainant and treating the remaining amount towards bribe by the accused Kamal Pal Sharma who was posted as LDC on Deputation in Slum and JJ Department, MCD.
2. The gist of the said complaint is that Sh. Jagir Singh father of the complainant was alloted Plot No. C2/3, Nand Nagri, Delhi, admeasuring 22 ½ square yards in lieu of his Jhuggi and as his father expired in the year 1982, the complainant alongwith his mother had been residing in the house over the said Plot. As they had received one Notice for payment of Rs.3,500/ towards rent for said Plot, the complainant alongwith his friend Naresh Kumar went to Office of Slum and JJ Department of MCD and met accused Kamal Sharma and his colleague Chattar Singh and talked to them regarding missing of the original Allotment Slip and deposit of outstanding rent, on which the accused demanded Rs.10,000/. Thereafter, the complainant alongwith his friend Naresh again went to the office of the accused on 10.09.2008 and met the accused alongwith Chattar Singh, on which C.C. No. 13/12 Page No. 2 of 30 Chattar Singh obtained Rs.5,000/ and accused asked them bring the remaining amount for doing the needful. Thereafter, on 12.09.2008 the accused is stated to have obtained Rs.2,500/ from the complainant and asked him to bring the remaining amount within 23 days and Chatter Singh prepared an application and delivered the same to the complainant for getting signed from his mother. Thereafter, the complainant alongwith his friend Naresh on 16.09.2008 met accused at his Office, on which the accused after receiving of Rs.2,000/ delivered a receipt of Rs.3,276/ and assured that the copy of the Allotment Slip will be sent to the House of the complainant. As the accused and his colleague Chattar Singh had obtained total amount of Rs.9,500/ and had issued the Receipt of Rs. 3,276/ towards rent and remaining amount was taken by them as bribe and therefore, appropriate legal action be taken against them.
3. On the basis of the said Complaint Ex.PW1/A and in pursuance of the Rukka Ex.PW10/A, FIR bearing no. 32/08, U/S 7/13 of Prevention of Corruption Act, 1988 was registered at PS Anti Corruption Branch, copy of which is Ex.PW8/A.
4. After the registration of the aforesaid FIR, Investigation of C.C. No. 13/12 Page No. 3 of 30 the case was taken up by the then Inspector Dharambir Singh, Anti Corruption Branch PW10/IO. During the course of the Investigation, the documents i.e. notings in original N1 and N2 Ex.PW1/F1, original application from Kashmiro Devi dated 12.09.2008 Ex.PW1/F2 alongwith photocopy of enclosed documents with application Ex.PW1/F3, Ex.PW1/F4, Ex.PW1/F5, Ex.PW1/F6 and Ex.PW1/F7, copy of original DJB Bill Ex.PW1/F8, office copy of demand notice Ex.PW1/F9, Ex.PW1/F10 and Ex.PW1/F11 were taken into possession from the custody of accused Kamal Pal Sharma by the IO vide Seizure Memo Ex.PW1/G. During the course of the Investigation, the IO seized further documents i.e. Transcript of conversation between Naresh and accused Kamal Pal Sharma Ex.PW1/K and Ex.PW1/L, Copy of rent demand notice dated 03.03.2008 in respect of house no. C2/3, Nand Nagri in the name of Jagir Singh Ex.PW1/C, copy of payment receipt of rent in respect of house no. C2/3, Nand Nagri bearing no. A55601 Ex.PW1/D vide Seizure Memo Ex.PW1/E, arrested the accused vide Arrest Memo Ex.PW1/H and conducted his personal search vide Memo Ex.PW1/J, received copy of Site Register reflecting the Flat No. C2/3, Nand Nagri in the name of Jagir Singh Ex.PW4/C and copy of G8 Receipt No. 55601 dated 12.09.2008 Ex.PW4/B vide Letter Ex.PW4/D. C.C. No. 13/12 Page No. 4 of 30 During the course of Investigation, IO also obtained the Biodata of the accused Ex.PW10/B, Sanction Order concerning the accused Ex.PW7/A, FSL Report Ex.PW10/E. IO on recording the statement of the witnesses and after completion of the Investigation, prepared the chargesheet and filed in the court.
5. 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 of the Prevention of Corruption Act, 1988 r/w 409 IPC and U/S 13 (2) r/w 13 (1)(d) of the Prevention of Corruption Act, 1988 r/w Section 409 IPC was framed against accused on 20.10.2010 to which accused pleaded not guilty and claimed trial.
6. Thereafter, in order to bring home the guilt of the accused, the prosecution got examined 10 prosecution witnesses namely Sh. Jagjit Singh, complainant as PW1, Rajiv Sharma, one Panch witness as PW2, K.P. Prasad, one Panch witness as PW3, Ms. Lokesh Tyagi, the then Officiating Assistant Director, Slum & JJ Department, Seelampur Zone as PW4, Kishan Chand, one Panch witness as PW5, HC Upender Rao as PW6, Ms. Pramila H. Bhargava, the then Commissioner (Personnel), DDA, Sanctioning Authority as against C.C. No. 13/12 Page No. 5 of 30 the accused as PW7, SI K.L. Meena, Duty Officer as PW8, Naresh Kumar, friend of the complainant as PW9 and the then Inspector Dharambir Singh, IO as PW10.
7. 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 and claimed to be innocent and falsely implicated in this case having no concern with the alleged offence.
8. I have heard Final Arguments as addressed by Sh. Dhirender Singh, Adv. Ld. Counsel for the accused and Sh. Vinod Kumar Sharma, Ld. Addl. PP for the State and perused the relevant record.
9. It is submitted by Ld. Counsel for the accused that Sanction Order in this case has been passed by PW7/Sanctioning Authority mechanically without proper application of mind and therefore, said 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 C.C. No. 13/12 Page No. 6 of 30 prosecution has failed to prove about the said aspects and hence, accused deserves to be acquitted. It is further added by Ld. Counsel for the accused that since the accused was merely working as LDC in Slum and JJ Department, MCD and was dealing with the collection of the rent, he was not competent to pass order for the issuance of the duplicate Allotment Slip as required by the complainant as said duplicate Allotment Slip was to be issued from the Head Office of Slum and JJ Department, MCD and therefore, there was no reason on the part of the accused for raising any demand of bribe from the complainant on this count and hence, the accused deserves to be acquitted. It is also added by Ld. Defence Counsel that the content of the CD and Transcription of Video Recording concerning the incident of 12.09.2008 and 16.09.2008 cannot be considered as the complainant has not deposed regarding the process of recording of the same nor the IO has seized the Pen Camera and Voice Recorder and even otherwise, the complainant is not visible in the Video Recording. It is also added by Ld. Defence Counsel that neither the public witness has deposed regarding the Video Recording in this respect. It is further added by Ld. Defence Counsel that though there is specific allegation of demand and acceptance of bribe of Rs.5,000/ from the complainant by Chattar Singh who was also an employee of Slum and C.C. No. 13/12 Page No. 7 of 30 JJ Department but the IO has deliberately not collected evidence against him and chargesheeted him. It is also added by Ld. Defence Counsel that there are several lapse on the part of the IO as he has not bothered to collect evidence as against Chatter Singh, he has not seized the Pen Camera and Voice Recorder, IO has not recorded the Statement of independent official available at the Office of the accused not conducted the Investigation fairly and properly and therefore, this accused deserves to be acquitted. Ld. Defence Counsel also pointed out several contradictions in the deposition of the PWs and added that the same falsify the case of the prosecution. It is further added by Ld. Defence Counsel that the deposition of complainant/PW1 and his friend Naresh Kumar/PW9 cannot be treated as trustworthy and reliable as they are interested witnesses. Ld. Counsel for the accused thus urged for acquittal of this accused.
10. To the contrary, it is submitted by Ld. Addl. PP 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. Addl. PP for the State that the fact regarding the demand and acceptance of the bribe by the C.C. No. 13/12 Page No. 8 of 30 accused from the complainant has been successfully proved by the prosecution through the deposition of PW1/Jagjit Singh, complainant, PW9/Naresh Kumar, PW10/the then Inspector Dharambir Singh, IO and there is no reason to disbelieve the same. It is further added by Ld. Addl. PP for the State that there is no reason as to why PW1/Jagjit Singh, complainant, PW9/Naresh Kumar, PW10/the then Inspector Dharambir Singh, IO would falsely implicate the accused specifically when there is no previous enmity as against the accused by them. It is further added by Ld. Addl. PP that the PW7/ 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 also added by Ld. Addl. PP that the contradiction as pointed out by Ld. Defence Counsel regarding the deposition of PWs are merely formal in nature and can be of no consequence. It is also added by Ld. Addl. PP that mere lapse on the part of the IO cannot be treated as a bonus for the accused. Ld. Addl. PP 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.
11. The first and foremost question having significant bearing C.C. No. 13/12 Page No. 9 of 30 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 PW7 Ms. Pramila H. Bhargava, Commissioner (Personnel), DDA who has categorically deposed that while she was posted as Commissioner (Personnel), DDA a request alongwith material collected during investigation of the case was put up before her for according the Sanction for prosecution as against Kamal Pal Sharma who was posted as LDC on Deputation to Slum and JJ Department, MCD and there was allegation of obtaining Rs.2,500/ on 12.09.2008 and Rs. 2,000/ on 16.09.2008 and issuance of Rent Receipt of Rs.3,276/ in respect of Plot No. C2/3, Nand Nagri, New Delhi from the complainant and as she was competent to remove the said accused from service and after perusal of the material as placed before her and after considering the fact and circumstances of the case and after due application of her mind, she accorded the Sanction U/S 19 of Prevention of Corruption Act to prosecute the accused Kamal Pal Sharma vide Sanction Order Ex.PW7/A bearing her signature at point A. She had specifically denied the suggestion of Ld. Defence Counsel that she had not examined any document and accorded the Sanction mechanically. C.C. No. 13/12 Page No. 10 of 30
12. 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 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.
13. 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."
14. 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 C.C. No. 13/12 Page No. 11 of 30 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 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 C.C. No. 13/12 Page No. 12 of 30 merit in the submission of the learned counsel that the sanctioning order to prosecute the appellant was not legal".
15. By taking cue from the aforesaid judgments and applying 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 PW7 Ms. Pramila H. Bhargava, the then Commissioner (Personnel), DDA, Delhi who was competent to do so being the Appointing Authority and Disciplinary Authority as found corroborated from the Biodata of the accused Ex.PW10/B.
16. 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 PW1/ Complainant Sh. Jagjit Singh and deposition of said PW1/ complainant cannot be treated as trustworthy and reliable. It is also added by Ld. Defence Counsel that PW/1complainant and his friend PW9/Naresh Kumar cannot be treated as trustworthy and reliable as they are interested witness. On the other hand, it is submitted by Ld. C.C. No. 13/12 Page No. 13 of 30 Addl. PP 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 PW1/Jagjit Singh, complainant, PW9/Naresh Kumar and PW10/the then Inspector Dharambir Singh, IO and there is no reason to disbelieve the same.
17. In order to prove that the accused had demanded and accepted the bribe amount from the complainant, the prosecution is found to have examined PW1 Jagjit Singh, complainant, PW9 Naresh Kumar, friend of the complainant, PW4 Ms. Lokesh Tyagi, Officiating Assistant Director, Slum and JJ Department, Seelampur Zone and PW10/the then Inspector Dharambir Singh, IO. PW1/complainant Jagjit Singh has deposed that his father was alloted House admeasuring 22 ½ square yards in lieu of Jhuggi and his father expired in the year 1982 and as they had not paid the rent on the same for last several years, they received a Notice for payment of rent of Rs.3,500/ from Slum and JJ Department. He further deposed that after death of his father he alongwith his mother Smt. Kashmiri were residing in the said House. He further deposed that he alongwith his friend Naresh Kumar went to Slum and JJ Department, Welcome on C.C. No. 13/12 Page No. 14 of 30 08.09.2008 and met accused Kamal Sharma and one Chattar Singh and informed them regarding the receipt of Notice of Rs.3,500/ towards payment of rent and to the effect that the complainant had lost the Allotment Slip concerning the House No. C2/3, Nand Nagri, Delhi for which they demanded Rs.10,000/ for doing the needful. Said PW1 further deposed that on 10.09.2008 he alongwith his friend Naresh again went to the Office of the accused and said Chattar Singh obtained Rs.5,000/ from him and asked him to give the balance amount of Rs.5,000/ for getting his work done. Said PW1 further deposed that on 12.09.2008 he alongwith his friend Naresh again went to the Office of the accused and accused obtained Rs.2,500/ from him and asked him to bring the remaining amount of Rs.2,500/ within 23 days and said Chattar Singh delivered him one Application to bring the same after getting it signed from his mother. Said PW1/complainant further deposed that again on 16.09.2008 he alongwith with his friend Naresh went to the said Office where accused took Rs.2,000/ from him and delivered him one Rent Receipt of Rs.3,276 and told him that copy of the Allotment Slip would be sent to his House. He further deposed that he got recorded all these said transaction and as he was against giving of bribe, later on he went to Anti Corruption Branch and lodged his Complaint Ex.PW1/A C.C. No. 13/12 Page No. 15 of 30 which bear his signature at point A. Said PW1/complainant further deposed that on 25.09.2008 when he had gone to the Office of Anti Corruption Branch, two CDs containing the Recording as made by him were produced by HC Upender Rao to the IO and one out of said two CDs was converted into sealed parcel and seized vide Seizure Memo Ex.PW1/B, bearing his signature at point A. He also deposed that he had delivered copy of the Demand Notice Ex.PW1/C and copy of the Rent Receipt Ex.PW1/D which were seized vide Seizure Memo Ex.PW1/E, bearing his signature at point A. Said PW1 further deposed that he alongwith the IO came to said Office of the accused where accused and Watchman Chatter Singh were interrogated and IO seized Original Rent File containing Papers Ex.PW1/F1 to F11 vide Seizure Meme Ex.PW1/G which bears his signature at point A. He further deposed that accused and his colleague Chatter Singh were brought to Anti Corruption Branch by the IO where accused was arrested vide Arrest Memo Ex.PW1/H and his personal search was conducted vide Memo Ex.PW1/J which bears his signature at point A. He also deposed that Transcription of Video Recording dated 12.09.2008 is Ex.PW1/K and that of dated 16.09.2008 is Ex.PW1/L which bear his signatures at point A. Said PW1 during the course of his deposition has also identified the Audio and Video CD as Ex.P1 C.C. No. 13/12 Page No. 16 of 30 and on displayed of the same by Laptop in the Court, after hearing the Voice and Seeing the Video have duly identified the conversation of dated 12.09.2008 and 16.09.2008 with the accused at his Office. Said PW1 in his cross examination by Ld. Defence Counsel have denied several material suggestions put to him by Ld. Defence Counsel and his deposition in this respect is as under: "It is incorrect to suggest that accused did not ever demand any bribe money from me. It is incorrect to suggest that I had given only actual rent amount i.e. 3276/ to the accused. Rs.10,000/ was demanded by Chhatar Singh but he said that the accused had sent him. It is incorrect to suggest that the recording is fake and manipulated. It is incorrect to suggest that I am deposing falsely."
18. PW9 Naresh Kumar, who is the friend of complainant and had accompanied with the complainant has deposed that his friend Jagjit Singh had intimated him regarding receipt of Demand Notice of Rent from MCD in respect of the House No. C2/3, Nand Nagri, New Delhi. He also deposed that he was knowing Chatter Singh, Chowkidar employed in JJ Slum, MCD and he alongwith his friend Jagjit Singh met him on 08.09.2008 and thereafter, he took them to C.C. No. 13/12 Page No. 17 of 30 accused Kamal Pal Sharma in his Office who informed them the Notice had been sent by him. Said PW9 further deposed that when they informed the accused regarding the missing of the Allotment Slip, the accused demanded Rs.10,000/ for doing the needful. He further deposed that on 10.09.2008 he alongwith his friend Jagjit Singh went to the Office where said Chatter Singh obtained Rs.5,000/ from Jagjit Singh and asked him to bring the balance amount. He further deposed that again on 12.09.2008 he alongwith his friend Jagjit Singh went to said Office where accused took Rs. 2,500/ from Jagjit Singh and asked him to bring the balance amount/ He further deposed that thereafter on 16.09.2008 he alongwith his friend Jagjit Singh again went to the Office of accused and Jagjit Singh gave Rs.2,000/ to the accused who delivered Receipt of Rs. 3,276/. He further deposed the entire incident was recorded by Jagjit Singh and thereafter, case was registered. He further deposed that on 25.09.2008 he alongwith his friend Jagjit Singh went to Anti Corruptin Branch and IO conducted the proceeding and thereafter, they came to said Office of accused where IO made inquiry from the accused and Chatter Singh and after conducting necessary proceeding, IO brought accused Kamal Pal Sharma and Chatter Singh to Anti Corruption Branch where accused was arrested and Chatter Singh was C.C. No. 13/12 Page No. 18 of 30 relieved. Said PW9 is also found to have denied the specific material suggestions put by Ld. Defence Counsel as he has deposed in this respect as under: "It is wrong to suggest that I am deposing falsely at the behest of IO. It is further to suggest that I did not visit Slum & JJ department. It is further wrong to suggest that accused did not demand any extra amount as bribe except the amount mentioned in the receipt issued by him. It is wrong to suggest that I am deposing falsely."
19. PW4 Ms. Lokesh Tyagi is found to have deposed that in the year 2008 she was officiating as Assistant Director in Slum and JJ Department, Seelampur Zone and being called by IO, she alongwith J.N. Siddhiqui went to the IO and after seeing the CD on Computer, she had identified the accused Kamal Pal Sharma who was working in her Office and his Voice, on listening the Voice in said CD, on which the IO prepared Identification Memo Ex.PW4/A bearing her signature at point A. Said PW4 had also deposed that on another day she had gone to the Office of IO and on Inquiry told him that the accused Kamal Pal Sharma was Dealing Assistant and was assigned the work of collecting Rent of Nand Nagri, JJ Colony and she had identified the C.C. No. 13/12 Page No. 19 of 30 Rent Receipt issued by the accused as Ex.PW4/B. She had also identified the Site Register pertaining to Plot No. C2/3, Nand Nagri, JJ Colony, Delhi and the writing appearing from X to X as Ex.PW4/C which is in the handwriting of the accused. Said writing Ex.PW4/C reflect about the deposit of Rs.3,276/ towards payment of Rent upto 31.08.2008 on dated 12.09.2008 concerning the Plot alloted in favour of Jagir Singh, father of the complainant.
20. PW10/the then Inspector Dharambir Singh, IO has deposed that on 25.09.2008 while he was posted as Inspector in Anti Corruption Branch, Complaint of Jagjit Singh Ex.PW1/A was marked to him, on the basis of which he prepared Rukka Ex.PW10/A and got case registered vide FIR Ex.PW8/A. He also deposed after the registration of the case, he took up the Investigation and narrated about the details of the steps as taken by him during the course of the Investigation. He also deposed that Chatter Singh as mentioned in the Complaint Ex.PW1/A as well as in the Chargesheet had expired and Death Certificate of said Chatter Singh has been proved as Ex.PW10/DA and Statements to this effect of his wife and his son as Ex.PW10/DB and Ex.PW10/DC. He also deposed that Chatter Singh was not made accused by him as he could not obtain sufficient C.C. No. 13/12 Page No. 20 of 30 evidence against him. Said PW10/IO have denied the specific suggestion of Ld. Defence Counsel that the accused had not demanded and accepted any bribe from the complainant and that he has falsely implicated the accused in this case.
21. From the perusal of the record, it is reflected that the factum regarding posting of the accused as LDC on Deputation in Slum and JJ Department, MCD, Delhi in the month of September 2008 being matter of record is also found admitted by the accused himself in his Statement U/S 313 Cr.P.C. Furthermore, from the deposition of PW4 Ms. Lokesh Tyagi, it is clearly reflected that this accused was assigned the duty of collection of Rent of Nand Nagri, JJ Colony and all the Files relating to the collection of the Rent of Nand Nagri, JJ Colony including the Plot No. C2/3, Nand Nagri, JJ Colony, Delhi were lying with the accused and the writing from X to X which is Ex.PW4/C on the Site Register pertaining to the Plot of the father of the complainant has been duly identified as the handwriting of the accused by said PW4 who was working as Assistant Director, officiating at Slum and JJ Department, Seelampur Zone in the year 2008.
C.C. No. 13/12 Page No. 21 of 30
22. In view of the above material as available on record, I am of the considered view that the factum regarding the demand and acceptance of Rs.2,500/ on 12.09.2008 and Rs.2,000/ on 16.09.2008 from the complainant PW1 Jagjit Singh and issuance of Rent Receipt of Rs. 3,276/ towards payment of Rent of Plot No. C2/3, Nand Nagri, Delhi vide Rent Receipt copy of which is Ex.PW1/D and receipt of the additional amount as bribe by the accused from the complainant have been found established from the deposition of PW1/Jagjit Singh, complainant, PW9/Naresh Kumar, Friend of the complainant, PW4/Ms. Lokesh Tyagi, the then Officiating Assistant Director, Slum and JJ Department, Seelampur Zone and PW10/the then Inspector Dharambir Singh, IO coupled with the contents of Complaint Ex.PW1/A, Application moved on behalf of the mother of the complainant Ex.PW1/F2, copy of the Demand Notice of Rent Ex.PW1/C, copy of the Rent Receipt of Rs.3,276/ Ex.PW1/D, copy of the Letter dated 01.10.2008 issued by Assistant Director, Slum and JJ Department, MCD to the IO which is Ex. PW4/D and relevant entry on the Site Register relating to the Plot alloted in the name of the father of the complainant, copy of which is Ex.PW4/C.
23. I do not find any force in the submission of Ld. Defence C.C. No. 13/12 Page No. 22 of 30 Counsel that since the accused Kamal Pal Sharma was merely working as LDC in Slum and JJ Department, MCD and was dealing with the collection of Rent, he was not competent to pass order for issuance of Duplicate Allotment Slip as required by the complainant as said Duplicate Allotment Slip was to be issued from the Head Office of Slum and JJ Department, MCD and therefore, there was no occasion on the part of the accused for demanding any bribe from the complainant in this respect. From the perusal of the deposition of PW1/Jagjit Singh, complainant as well as PW9/Naresh Kumar, friend of the complainant, it is clearly reflected that the accused alongwith his colleague Chatter Singh had demanded Rs.10,000/ for getting the needful done for issuance of the Duplicate Allotment Slip to the complainant on dated 08.09.2008 when the complainant Jagjit Singh accompanied with his friend Naresh Kumar had met accused at his Office. Said fact is also found corroborated from the content of the Complaint Ex.PW1/A. Law is well settled that it does not matter whether the public servant was competent to do the work or not and reference can be placed in the case reported as Chaturdas Bhagwandas Patel Vs. State of Gujrat, 1976(3) SCC 46 as referred in State of Andhra Pradesh Vs. C. Uma Maheshwar Rao and Anr. 2004, V AD (SC) 176, wherein it has been held by Hon'ble Supreme C.C. No. 13/12 Page No. 23 of 30 Court of India that the question whether a person has an authority to do the act for which bribe is accepted, is of no consequence. In the case reported as Gopal Singh Vs. CBI, ILR (2005) II Delhi 35, It was observed by the Hon'ble Delhi High Court in Para 22 as under: "It has to be added that in cases under PC Act, the prosecution is under no obligation to prove that a public servant demanding bribe was in a position to help the person from whom the bribe was being demanded. The prosecution succeed the moment it is shown that a public servant had accepted some money from someone which was not legal remuneration. The presumption U/S 20 of the Act comes into play shifting the burden upon the public servant to explain as to why he had received the money. A public servant may misguide, mislead or befool his victim to pay him illegal gratification knowing fully well that he is not in a position to help him and as such it can be no defence for him to say that since he was not in a position to help the complainant/victim the money received by him does not amount to illegal gratification."
C.C. No. 13/12 Page No. 24 of 30
24. During the course of the argument, Ld. Defence Counsel also pointed out several lapse on the part of the IO i.e. the IO has not bothered to collect evidence as against Chatter Singh, IO had not seized the Pen Camera and Voice Recorder, IO has not recorded the Statement of independent official available at the Office of the accused and has not conducted the Investigation fairly and properly. I do not find any force in the said submission of Ld. Defence Counsel in view of the fact that the aforesaid lapse on the part of the IO appear to be merely formal in nature and I am of considered view that criminal justice should not be made casualty of lapse committed by the IO and my said view is found nourished from the judgment as rendered by Hon'ble Delhi High Court in the case reported as "2000 (I) A.D. (Delhi) 67 Manoj @ Manu Vs. State of Delhi." In the case reported as "State of Rajasthan Vs. Kishore (1996 SCC (Crl) 646)"
it was observed by Hon'ble Supreme Court of India that mere fact that the investigating officer committed irregularity or illegality during the course of investigation would not and does not cast doubt on the prosecution case nor trustworthy and reliable evidence can be cast aside to record acquittal on that account. Furthermore, in another case reported as "Ram Bihari Yadav Vs. State of Bihar and Ors. (1998(4) SCC 517)" it was observed by Hon'ble Supreme Court of C.C. No. 13/12 Page No. 25 of 30 India as under: "If primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice". The view was again re iterated in "Amar Singh Vs. Balwinder Singh and Ors. (2003 (2) SCC 518)."
25. No doubt there is substantive allegation as regards the demand and acceptance of bribe as against the accused besides his colleague Chatter Singh, as found reflected from the deposition of PW1/Jagjit Singh, complainant as well as PW9/Naresh Kumar but I failed to understand as to why the IO found himself handicapped in chargesheeting said Chatter Singh. But considering the fact that said Chatter Singh is reported to have expired during this case proceeding as found reflected from the deposition of PW10/IO who has categorically deposed that said Chatter Singh as mentioned in the Complaint Ex.PW1/A as well as in the Chargesheet has since expired and Death Certificate of said Chatter Singh has been proved as C.C. No. 13/12 Page No. 26 of 30 Ex.PW10/DA and Statements to this effect of his wife and his son has been proved as Ex.PW10/DB and Ex.PW10/DC. Therefore, I am of the considered view that nonchargesheeting of said Chatter Singh as coaccused can be of no help for this accused.
26. By taking cue from the aforesaid judgments and keeping in mind that the prosecution has brought on record adequate evidence to establish its case as against the accused, I am of considered view that the lapse on the part of the IO as pointed out by Ld. Defence Counsel cannot be treated as fatal for the case of the prosecution.
27. During the course of the arguments, it is submitted by Ld. Defence Counsel that the content of the CD and Transcription of Video Recording concerning the incident of 12.09.2008 and 16.09.2008 cannot be considered as the complainant has not deposed regarding the process of recording of the same nor the IO has seized the Pen Camera and Voice Recorder and even otherwise, the complainant is not visible in the Video Recording. It is also added by Ld. Defence Counsel that neither the public witness has deposed regarding the Video Recording in this respect. From the perusal of the record, it is reflected that PW1/complainant though deposed that he C.C. No. 13/12 Page No. 27 of 30 has got recorded the Transaction but has not stated specifically as to how he got the Transaction recorded. Though PW6/HC Upender Rao has deposed that on the instruction of Senior Officers he had given Pen Camera and Voice Recorder to the complainant for getting recorded the Transaction on 12.09.2008 and 16.09.2008 but PW1/complainant has not deposed regarding these aspects. Furthermore, the IO/PW10 has also not deposed anything regarding these aspects nor he has seized said Pen Camera and Voice Recorder which are stated to have been used for the purpose of recording the Transaction on 12.09.2008 and 16.09.2008. In view of this said infirmity, I found force in the submission of Ld. Defence Counsel that the content of the CD Ex.P1 and Transcription of Video Recording Ex.PW1/K and Ex.PW1/L cannot be considered. But since there are ample incriminating material available on record, despite being ignoring said CD and Transcription of said Video Recording whereby establishing the demand and acceptance of bribe in the form of receiving additional amount than the issuance of Rent amount of Rs. 3,276/ from the complainant, keeping aside said CD and Transcription of Video Recording from the zone of consideration can be of no help for the accused.
C.C. No. 13/12 Page No. 28 of 30
28. That during the course of arguments, it is submitted by Ld. Counsel for the accused that there are certain contradictions in the deposition of various PWs which falsify the case of the prosecution and Ld. Counsel pointed out the contradictions in the deposition of PWs as under: (A) PW9/Naresh Kumar has deposed that they reached Anti Corruption Branch around 12:00 noon and thereafter, went to MCD Office whereas PW10/IO has deposed that he alongwith other member had reached Office of accused during lunch time. (B) PW1/complainant deposed that he had gone to the Office of the accused on 12.09.2008 in the noon time whereas PW9/Naresh Kumar has deposed that they have reached the Office of the accused at about 11:00 a.m. and left the Office within 25 minutes.
I am of the considered view that said contradictions appear to be on formal aspects and because of time gap between the period of incident and deposition of PWs in the court and hence cannot be treated as fatal for the prosecution. My said view is found supported from the law laid down by the Hon'ble Supreme Court regarding contradictions in case of Bharuda Broginbhai Harjibhai V/s State of Gujrat AIR 1983 SC 753 wherein it was held that discrepancies C.C. No. 13/12 Page No. 29 of 30 which do not go to the root of the matter and shake the basic version of the prosecution should not be attached undue importance. Furthermore, in the case reported as Krishna Pillai Sree Kumar Vs. State of Kerala, AIR 1981 SC 1237, it has been held that Inconsistencies here and discrepancies there are the shortcoming from which no criminal case is free. The main thing to be seen is whether the inconsistencies etc. go the root of the matter.
29. The net result of the aforesaid discussion is that the prosecution has been successful in establishing its case as against the accused Kamal Pal Sharma for the charged offence. Hence, accused Kamal Pal Sharma stands convicted for offence punishable U/S 7 and 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988.
30. Let this accused Kamal Pal Sharma be heard separately on the point of sentence.
Announced in the open court on this 7th day of March, 2012 (B.R. Kedia) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC,Delhi C.C. No. 13/12 Page No. 30 of 30