Delhi District Court
State vs . 1. Rajiv Kumar on 20 May, 2011
IN THE COURT OF SHRI B.R. KEDIA, SPECIAL JUDGE07,
(CENTRAL), (PC ACT CASES OF ACB, GNCTD)
, DELHI
C.C.NO. : 38/11
Unique Case ID : 02401R0086322003
STATE VS. 1. RAJIV KUMAR
S/O SH.GOVERDHAN SINGH,
R/O H.NO.40, GALI NO.2,
KARAWAL NAGAR EXTENSION,
DELHI.
2. HARENDER PAL SINGH
S/O SH. AJIT KUMAR SALHOTRA
R/O AB215, SHALIMAR BAGH,
DELHI.
3. SIYA RAM KAUSHIK
S/O SH.VIDYA DHAR
R/O A23, RISHI NAGAR,
RANI BAGH, NEW DELHI.
4. AJIT SINGH
S/O SH. SHEESH RAM
R/O 89, BURARI, GARHI, DELHI.
5. MANOJ KUMAR
S/O NAHAR SINGH
R/O RZL37, GALI NO.3,
WEST SAGAR PUR, DELHI46
C.C. No. 38/11 Page No. 1 of 44
FIR NO. : 40/2002
UNDER SECTION : 7/13 of Prevention of Corruption Act, 1988
and 120B IPC
P.S. : Anti Corruption Branch, Delhi
Date of Institution 18.07.2003
Judgment reserved on 12.05.2011
Judgment delivered on 20.05.2011
JUDGMENT
1. The precise case of the prosecution is that on dated 08.08.2002 the then Inspector S.L. Aggarwal (Raid Officer) on receiving the information that some staff of State Transport Authority of Pollution Wing have been demanding bribe from the truck drivers, formed a raiding team comprising of himself, Inspector Lalit Mohan, SI Krishan Kumar besides Panch witness S.K.Arya who left Anti Corruption Branch and reached Azadpur at about 11:45 a.m. and finding that staff of State Transport Authority have stopped some trucks, one truck driver namely Suresh S/o Chikappa (Complainant) was told about the surveillance on which he stated that whenever he bring his truck into Delhi, officials of State Transport Authority used to demand and accept bribe from him and he volunteered to join the raiding team and gave his statement which is Ex.PW8/C and delivered C.C. No. 38/11 Page No. 2 of 44 2 GC notes of Rs.100/ each to the Raid Officer to be used for the purpose of trap.
2. The gist of the said complaint is that the complainant Suresh has been working as a driver of Truck No. KA25A 6007 in Vidyanand Roadlines, Giriraj Annexxe, Circuit House Road, Hubli, Karnataka and used to carry goods in his said truck from Karnataka to Delhi very often. He further added that the officials of State Transport Authority in Delhi used to demand bribe of about Rs.500/ for loaded truck and for about Rs.100/ for empty truck with the threat for impounding the vehicle in case of nonpayment of bribe. Since he has been informed that the officials of State Transport Authority have been demanding bribe by detaining the trucks at Ring Road near Ashok Vihar Chowk, he volunteered to join the raiding team for trapping the officials of State Transport Authority and therefore delivered 2 GC notes of Rs.100/ each to the Raid Officer for being used as bribe money for trapping said officials of State Transport Authority.
3. The further case of the prosecution is that the complainant has produced 2 GC notes of Rs. 100/ each before the Raid Officer C.C. No. 38/11 Page No. 3 of 44 PW 9 who noted down the serial number of said GC notes in the Raid proceedings Ex.PW8/D and treated the said GC notes with phenolphthalein powder. Thereafter, Raid Officer PW9 gave demonstration to the Panch witness and 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 hurling his hand over his head after being satisfied that the bribe has actually been given. Panch witness was made to sit in the truck of the complainant and Raid Officer alongwith the members of the raiding team followed said truck of the complainant.
4. The further case of the prosecution is that at about 12:05 p.m. on receipt of the predetermined signal from the Panch witness, raiding team reached the spot. Complainant informed the Raid Officer that his truck was stopped by accused Rajiv Kumar and he was called near accused Inspector H.P.Singh who was sitting on a chair who C.C. No. 38/11 Page No. 4 of 44 checked the documents of the truck in presence of accused HC Siya Ram, Ct.Manoj Kumar and Ct.Ajit Singh. The complainant and Panch witness further told the Raid Officer that the accused Rajiv Kumar demanded and accepted Rs.100/ towards the bribe on the pretext of entry fee from the complainant. Thereafter, right hand wash of accused Rajiv was taken into colourless 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 SLA and were marked as RHWI & RHWII by pasting slips thereon which were signed by Raid Officer, complainant and Panch witness. Raid Officer prepared the sample seal of SLA on two papers and the seal after use was given to the Panch witness. Thereafter, those bottles and sample seals were taken into possession vide seizure memo Ex.PW8/H. The Raid Officer seized the remaining one GC note of Rs.100/ from the complainant vide Seizure memo Ex.PW8/E and one challan book from accused HC Siya Ram was seized vide Seizure Memo Ex.PW8/F. One bag containing Rs.2880/ found near the table/chair of accused H.P.Singh was seized vide Seizure Memo Ex.PW8/E1 and one Icard of accused Ajit fallen near the spot in the process of his running away with the bribe amount was seized vide Seizure Memo Ex.PW8/G. Raid Officer also drawn up the Raid proceedings which is C.C. No. 38/11 Page No. 5 of 44 Ex.PW8/D and prepared rukka Ex.PW9/A and sent the same through Ct. Mathew to PS Anti Corruption Branch for registration of the case.
5. The further case of the prosecution is that the Raid Officer called Inspector Lalit Mohan PW6 IO at the spot and handed over him the custody of the accused Rajiv Kumar, Manoj Kumar, Siya Ram and H.P.Singh, case property alongwith the seizure memos, Raid Report etc. for purpose of Investigation. IO took up the Investigation, prepared the Site Plan Ex.PW6/A, arrested the aforesaid four accused and prepared their personal search memo Ex.PW6/B1 to PW6/B4, seized one motor cycle No.DL 1S 6914 vide seizure memo Ex.PW6/C. IO also received the rukka alongwith the copy of FIR Ex.PW6/D and got said four 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 were put in the lock up. On 22.10.2002 IO arrested the accused Ajit Singh and conducted his personal search memo Ex.PW6/F and recorded his disclosure statement Ex.PW6/G. During the course of investigation, IO seized service Biodata of accused Siya Ram, Ajit Singh and H.P.Singh and sent request for obtaining sanction as against said accused and subsequently received the C.C. No. 38/11 Page No. 6 of 44 Sanction Order Ex.PW5/B, PW5/C and PW5/D. IO sent the relevant case property to FSL and subsequently obtained FSL Report Ex.PW6/E. IO on recording the statement of the witnesses and after completion of the Investigation, prepared the chargesheet and filed in the court.
6. After compliance with the provision U/S 207 of Cr.P.C and after hearing both sides on the point of charge, charge for offence punishable U/S 120B IPC and U/S 7 & 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988 was framed against all the five accused persons on 20.01.2005 to which they pleaded not guilty and claimed trial. It is further reflected from the record that finding certain formal typographical error in the charge as framed on 20.01.2005, it was formally corrected on 22.12.2009.
7. In order to bring home the guilt as against the accused persons, the prosecution got examined 11 prosecution witnesses namely Sh.T.M.Balkrishnan, the then Addl.Director in Transport Department of Delhi, a formal witness as PW1, Sh. Wadhwa Singh, the then junior staff officer at Commandant Home Guard, Delhi, a formal witness as PW2, Sh.Fransis J. the then Pollution Control C.C. No. 38/11 Page No. 7 of 44 Officer, a formal witness as PW3, Sh. Prakash Chand, truck driver, a formal witness as PW4, Ms.Sindhushree Khuller, the then Principal Secretary cum Commissioner, (Transport) Delhi, Sanctioning Authority concerning accused H.P. Singh, Siya Ram and Ajit Singh as PW 5, the then Inspector Lalit Mohan, IO as PW6, Sh.Shamsher Singh, one truck driver as PW7, Sh.S.K.Arya, Panch witness as PW8, the then Inspector S.L.Aggarwal, Raid Officer as PW9, Suresh, driver who is the complainant as PW10 and HC Jitender Singh MHC(M), PS Civil Lines, a formal witness as PW11.
8. After closure of the PE, statement of all the five accused under Section 313 Cr.P.C. were recorded. Accused in their statement U/S 313 Cr.P.C. claimed to be innocent and denied about any demand and acceptance of the bribe from the complainant and also added that they have been falsely implicated in this case. Accused Rajiv Kumar further added in his said statement U/S 313 Cr.P.C. that he was in uniform and while he was coming from Raja Garden by Bus and got down at Shalimar Bagh Bus Stop, he was apprehended by the raiding team and falsely implicated in this case. Accused Manoj Kumar added in his statement U/S 313 Cr.P.C. that he had gone to the spot on the motor cycle of Ajit Singh and inquired about Ajit Singh from C.C. No. 38/11 Page No. 8 of 44 H.P.Singh and was falsely implicated in this case. Accused Ajit Singh added in his statement U/S 313 Cr.P.C. that he was transferred on 06.8.2002 from team no.29 and was on leave on 8.8.2002 and was not present at the spot. Accused H.P.Singh in his statement U/S 313 Cr.P.C. added that while he was performing his duty at the spot, he was falsely implicated by official of Anti Corruption Branch in this case and accused Rajiv Kumar, Manoj and Ajit Singh were not present. Accused Siya Ram in his statement U/S 313 Cr.P.C. also added that he was present on the other side of the road and was challaning the vehicles from the challan Book Ex.PW6/H. After the closure of the P.E., accused Ajit Singh got examined one V.D.Sharma as DW1 and one Gurdeep Singh as DW2 but other accused persons have not led any evidence and thereafter, DE was closed.
9. I have heard Final Arguments as addressed by Sh.R.S.Singhal Adv. Ld. Counsel for the accused Rajiv Kumar and Harender Pal Singh, Sh.R.D.Sharma Adv. Ld. Counsel for the accused Siya Ram Kaushik and Sh.Yogesh Verma, Adv. Ld. Counsel for the accused Ajit Singh and Manoj Kumar besides Sh. Vinod Kumar Sharma, Ld. Addl. PP for the State and perused the relevant record. C.C. No. 38/11 Page No. 9 of 44
10. It is submitted by Sh.R.S.Singhal, Adv. Ld. Counsel for the accused Rajiv Kumar and Harender Pal Singh that both said accused are innocent and they have neither demanded nor accepted any bribe and hence, deserves to be acquitted. It is further added by Ld. Counsel for the accused Rajiv Kumar and Harender Pal Singh that the accused Rajiv Kumar was in uniform and was coming from Raja Garden by Bus and when he got down at the Shalimar Bagh, Bus Stop under mistaken identity, he was apprehended by the official of Anti Corruption Branch and was subsequently falsely implicated in this case. It is further added by Ld. Counsel for the accused Rajiv Kumar and Harender Pal Singh that accused Rajiv Kumar was a Home Guard and was not in the Team Number 29 and there was no occasion for accused Rajiv Kumar to deliver any bribe amount to accused Ajit Kumar at the spot. It is further added by Ld. Counsel for the accused Rajiv Kumar and Harender Pal Singh that as PW10 Suresh has given inconsistent statement in his examinationinchief and cross examination, his statement cannot be trustworthy and reliable and hence, both said accused Rajiv Kumar and Harender Pal Singh deserves to be acquitted. It is further added by Ld. Counsel for the accused Rajiv Kumar and Harender Pal Singh that there is nothing on record as against as accused Harender Pal Singh regarding demand C.C. No. 38/11 Page No. 10 of 44 and acceptance of the bribe from the complainant and therefore, said accused deserves to be acquitted. It is also added by Ld. Counsel that Sanction Order passed by PW5 as against accused Harender Pal Singh is legally invalid being passed mechanically without application of mind. It is further added by him that as PW9 Raid Officer is an interested witness, his deposition cannot be relied upon. It is also submitted by Ld. Counsel that as there was no recovery of bribe money so presumption U/S 20 of Prevention of Corruption Act, 1988 cannot be drawn in this case. It is further added by Ld. Counsel for the accused Rajiv Kumar and Harender Pal Singh that even otherwise there is no incriminating material brought on record as against these accused by the prosecution, both these accused deserves to be acquitted.
11. Similarly, it is submitted by Sh. R.D. Sharma, Adv. Ld. Counsel for accused Siya Ram Kaushik that said accused is innocent and has been falsely implicated in this case and hence, deserves to be acquitted. It is further added by Ld. Counsel for the accused Siya Ram Kaushik that said accused Siya Ram Kaushik was not present along with the other accused persons as he was present on the other side of the road challaning the vehicles from his challan book C.C. No. 38/11 Page No. 11 of 44 Ex.PW6/H and hence, deserves to be acquitted and said facts are also found corroborated from the statement of accused Siya Ram Kaushik as recorded U/S 313 Cr.P.C. It is further added by Ld. Counsel for the accused Siya Ram Kaushik that even otherwise the Sanctioning Order as passed by PW 5 Ms. Sindhushree Khullar concerning this accused was legally invalid and improper as she has passed the said order mechanically without proper application of mind and therefore, this accused deserves to be acquitted. It is further added by Ld. Counsel for the accused Siya Ram Kaushik that neither PW4 Prakash Chand, Truck Driver nor PW7 Shamsher Singh, Truck Driver nor PW10 Suresh complainant nor any other PWs have deposed anything as against this accused Siya Ram Kaushik concerning the demand and acceptance of bribe from the complainant and hence, this accused deserves to be acquitted. It is further added by Ld. Counsel for the accused Siya Ram Kaushik that as PW8 S.K. Arya, Panch witness and PW10 Suresh, complainant has turned hostile hence, their deposition cannot be treated as trustworthy and reliable and hence, this accused Siya Ram Kaushik deserves to be acquitted.
12. It is submitted by Sh. Yogesh Kumar Verma, Adv. Ld. Counsel for the accused Ajit Singh and Manoj Kumar that both said C.C. No. 38/11 Page No. 12 of 44 accused are also innocent and have been falsely implicated in this case by the officials of Anti Corruption Branch hence, they deserve to be acquitted. It is further added by him that accused Ajit Singh was already transferred from Pollution Team to Enforcement Team and therefore, accused Ajit Singh was not present at the spot with other accused persons and has been falsely implicated in this case. It is further added by him that PW5 Sindhushree Khullar has passed the Sanction Order mechanically without proper application of mind and there was draft performa which has been admitted by the said PW5 and therefore, entire trial stands vitiated and hence both the accused deserve to be acquitted. It is also added by Ld. Counsel for said accused persons that PW8 Panch witness has turned hostile and has not deposed anything as against both these accused nor PW10 Suresh has deposed anything as against accused Ajit Singh and Manoj Kumar. It is further added by Ld. Counsel for the said accused that all the three truck drivers who are the material PWs i.e. PW4, PW7 and PW10 have not deposed anything as against the accused Ajit Singh and Manoj Kumar and even Panch witness PW8 not deposed anything against them and therefore, both these accused deserve to be acquitted.
C.C. No. 38/11 Page No. 13 of 44
13. To the contrary, it is submitted by Ld. APP for the State that the prosecution by examining 11 PWs have clearly established its case as against all the five accused persons and therefore, all the five accused persons deserve to be convicted for the charged offence. It is further added by Ld. APP for the State that complainant PW10 Suresh while examined in chief has duly supported the stand of the prosecution but was cross examined after about 8 months being won over by the accused persons, he has turned hostile and therefore, same cannot be treated fatal for the case of the prosecution. It is further added by Ld. APP for the State that even otherwise PW10 complainant has duly deposed about the presence of all the accused persons at the spot and about the recovery of bag containing Rs. 2,880/ in crushed condition from the spot. It is also added by Ld. APP for the State that accused H.P.Singh who was heading the Pollution Team and bribe was being collected by the other accused under his instructions, said accused cannot escape from his responsibility and therefore, all the 5 accused deserve to be convicted. It is also added by Ld. APP for the State that PW5 Sindhushree Khullar has passed the Sanction Order on careful examination of material as produced before her and there is no infirmity in the said Sanction Order. It is thus submitted by Ld. APP for the State that as C.C. No. 38/11 Page No. 14 of 44 there are sufficient incriminating material as against all the 5 accused persons regarding demand and acceptance of the bribe from the complainant, all these 5 accused persons deserve to be convicted for the charged offence.
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 against the accused Inspector Harender Pal Singh, HC Siya Ram Kaushik and Ct. Ajit Singh who are public servants as per Section 19 (1) of Prevention of Corruption Act, 1988. In order to prove the Sanction concerning the said 3 accused persons, the prosecution has examined PW5 Ms.Sindhushree Khullar, the then Principal Secretary and Commissioner (Transport), Delhi who has categorically deposed that in May, 2003 while posted as Principal Secretary and Commissioner (Transport) Delhi, she had received the request from Anti Corruption Branch Ex.PW5/A alongwith the copies of the FIR, Raid Report, Seizure Memo, statements recorded U/S 161 Cr.P.C., FSL Report to grant Sanction U/S 19 of Prevention of Corruption Act, 1988 to prosecute the accused persons i.e. Pollution Level Test Inspector H.P.Singh, HC Siya Ram Kaushik and Ct. Ajit Singh who were posted C.C. No. 38/11 Page No. 15 of 44 in Transport Department and on going through the documents as placed before her and after examining the facts and circumstances of the case and applying her mind, she was of the view that said accused persons should be prosecuted and being competent authority to remove them from service, she had accorded the Sanction Ex.PW5/B to Ex.PW5/D respectively bearing her signature at point A. Said PW5 has specifically denied the suggestion of Ld. Defence Counsel that she had accorded the sanction mechanically without proper application of mind. She further added in her cross examination by Defence Counsel that she had not received any draft Sanction Order in this case and volunteered that sometime it is enclosed but still it is incumbent upon her to go through the record and make up her mind whether to grant Sanction or not. She further added that in her office file there is a draft Sanction Order Ex.PW5/DA which was prepared by her office and handwritten portion therein is in her hand. She also added that she did not give any personal hearing to the accused persons as she is not required to do so.
15. 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 C.C. No. 38/11 Page No. 16 of 44 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.
16. 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."
17. 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. 38/11 Page No. 17 of 44 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".
18. Furthermore, I do not find any force in the submission of Ld. Counsel for the accused Ajit Singh that PW5 Ms. Sindhushree Khullar has admitted that in the office file there is a draft Sanction and therefore, Sanction Order passed by her is legally invalid which vitiate the entire trial. From the perusal of the record, it is clearly reflected that said PW5 Ms. Sindhushree Khullar in her cross examination by Ld. Defence Counsel has deposed that in her office C.C. No. 38/11 Page No. 18 of 44 file there is a draft Sanction Order (Ex.PW5/DA) which was prepared by her office and handwritten portion therein is in her hand. However, from the perusal of said Ex.PW5/DA, it is clearly reflected that the contents of the same relate to the matter concerning the departmental proceedings and not concerning the Sanction Order Ex.PW5/B, Ex.PW5/C and Ex.PW5/D relating to accused H.P.Singh, Siya Ram Kaushik and Ajit Singh and therefore, the same can be of no help for the accused persons. Furthermore, mere presence of a draft of Sanction Order in the office file or perusal of the same by the Sanctioning Authority before according Sanction for launching prosecution cannot be treated as fatal for the case of the prosecution and my said view is found nourished from the judgment as rendered by Hon'ble Supreme Court of India. In the case C.S. Krishnamurthy V/s State of Karnataka, 2005 IV AD (SC) 141, the Apex Court in para 7 of the Judgment has held as under: "This sanction order was proved by Mr. V. Parthasarthy, Deputy General Manager of Bangalore Telecom as PW 40, he was competent authority to accord sanction and he accorded the sanction for prosecution of accused for the alleged offence on 28th February, 1990 as per Ex. P.83. He deposed that S.P., CBI sent a report against the accused and he perused the report and accorded the sanction as per Ex. P.83. C.C. No. 38/11 Page No. 19 of 44 He deposed that he was satisfied that there was a case for prosecuting the accused for the alleged offence. He admitted that he received a draft sanction order and a draft sanction was also examined by vigilance cell and then it was put up before him. He also deposed that before according sanction he discussed the matter with the vigilance cell. He also admitted that he was not a law man, therefore, he discussed the legal implication with a legally qualified officer in the vigilance cell. He has denied the suggestion that he did not apply his mind in according sanction. It is no doubt true that the sanction is necessary for every prosecution of public servant, this safeguard is against the frivolous prosecuting against public servant from harassment. But the sanction should not be taken as a shield to protect corrupt and dishonest public servant."
19. 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. Counsels for the accused persons to the effect that Sanction Order as against accused Harender Pal Singh, Siya Ram Kaushik and Ajit Singh have been passed mechanically as I am of considered view that the Sanction concerning the said accused persons have been validly granted by PW5 Ms.Sindhushree Khullar, the then Principal Secretary and Commissioner (Transport) Delhi, who was competent to do so.
C.C. No. 38/11 Page No. 20 of 44
20. That during the course of argument, it is submitted by Ld. Counsel for the accused Rajiv Kumar that said accused was coming from Raja Garden by Bus and got down at Shalimar Bagh Bus Stop on 8.8.2002 at the time of raid by the police team but as he was in police uniform under misconception said accused Rajiv Kumar was apprehended by the officials of Anti Corruption Branch alongwith the other accused persons and was subsequently falsely implicated in this case. I do not find any force in the said submission of Ld. Counsel for the accused Rajiv Kumar as said accused has not led any evidence in support of his said plea of defence. Furthermore, said accused Rajiv Kumar has not even stated in his statement U/S 313 Cr.P.C as regards the Bus number or route number of the Bus on which he came from Raja Garden and got down at Shalimar Bagh Bus Stop nor he has stated for what purpose he got down at Shalimar Bagh while he was in uniform. Furthermore, I do not see any reason as to why said accused Rajiv Kumar had not lodged any complaint to the higher police official regarding his false implication in this case. Furthermore, PW10 complainant Suresh has clearly deposed in the court that accused Rajiv Kumar stopped his vehicle and was asked to get down from the truck and demanded bribe from him otherwise his vehicle C.C. No. 38/11 Page No. 21 of 44 will be impounded on which he delivered one GC note of Rs.100/ in the hand of the accused Rajiv Kumar and said PW10 has clearly identified the accused Rajiv Kumar in the court. Said PW10 also deposed that members of the raiding party took hand wash of accused Rajiv Kumar which turned into pink colour and the Raid Officer drawn the Raid Proceedings and obtained his signatures. Furthermore, PW9 S.L.Aggarwal, Raid Officer has also clearly deposed that the complainant and Panch witness informed him that accused Rajiv Kumar demanded and accepted Rs.100/ from the complainant as bribe on the pretext of entry fee. Said PW9 also deposed that he took right hand wash of the accused Rajiv Kumar in the colourless solution of sodium carbonate which turned into pink colour and said solution was transferred two empty small bottles which were sealed with the seal of SLA and marked as RHWI & RHWII and were seized vide Seizure Memo Ex.PW8/H and as per FSL Report Ex.PW6/E which indicated the result of examination as under: "On chemical examination, Ex.RHWI gave positive test for the presence of phenolphthalein and sodium carbonate".
Thus the deposition of PW10 complainant Suresh and PW9 S.L.Aggarwal, Raid Officer coupled with the FSL Report Ex.PW6/E clearly established the demand and acceptance of bribe amount of Rs. C.C. No. 38/11 Page No. 22 of 44 100/ by the accused Rajiv Kumar from the complainant, PW10 Suresh. In view of the aforesaid material as available on the record, I do not find any force on the plea of accused Rajiv Kumar that he was not present with the other accused persons and was falsely implicated under mistaken identity being in police uniform when he got down at Shalimar Bagh Bus Stop on coming from Raja Garden.
21. During the course of argument, it is submitted by Ld. Counsel for the accused Siya Ram Kaushik that said accused was not present alongwith other accused persons as he was present on other side of the road and was challaning the vehicles from his Challan Book Ex.PW6/H. Similarly, it is submitted by Ld. Counsel for accused Ajit Singh that said accused Ajit Singh was already transferred from Pollution Team to Enforcement Team and therefore, accused Ajit Singh was not present at the spot with other accused persons and has been falsely implicated in this case.
22. From the perusal of the record, it is reflected that accused Siya Ram Kaushik has taken the defence stand that he was not present with the other accused persons at the time of the raid on 8.8.2002 as he was on the other side of the road and was challaning the vehicles. C.C. No. 38/11 Page No. 23 of 44 He further stated in his statement U/S 313 Cr.P.C. that challan no. 217492 and 217493 were issued by him on that day from the Challan Book Ex.PW6/H. Said defence plea of accused Siya Ram Kaushik that he was not present at the spot with other accused persons at that time and he was on the other side of the road and the defence plea of accused Ajit Singh that he was also not present at the spot at the time of raid is falsified from the contents of said challan no.217492 and challan no.217493 as issued by accused Siya Ram Kaushik on that day from the challan book Ex.PW6/H as accused Ct.Ajit Singh is found mentioned as a witness in both said challan. Furthermore, from the perusal of the record, it is also reflected that motorcycle bearing No. DL1SM6914 which belongs to accused Ajit Singh has been seized from the spot vide Seizure Memo Ex.PW6/C and Icard of accused Ajit Singh has also been seized near the spot vide Seizure Memo Ex.PW8/G. Besides this as per deposition of PW1 Sh.K.M.Balkrishnan in pursuance of his order, Inspector H.P.Singh alongwith HC Siya Ram Kaushik, Ct. Raj Kapoor, Ct. Ajit Singh and Ct.Rajinder Tiwari were deployed in Team No.29. Though as per order dated 6.8.2002 as passed by said PW1, accused Ajit Singh was transferred from Pollution Team to Enforcement Team but there is nothing on record that said accused Ajit Singh was relieved from C.C. No. 38/11 Page No. 24 of 44 Pollution Team and joined the Enforcement Team. Accused Ajit Singh has neither produced any evidence in this respect nor even stated so in his statement U/S 313 Cr.P.C. Though accused Ajit singh has taken the stand that he was ill on 8.8.2002 and could not join duty and has produced one OPD Card No.55395 dated 6.8.2002 as issued by MCD Dispensary, Nangloi which is Ex.DW2/C but surprisingly it does not found mention any prescription of the concerned doctor on the date of registration i.e. 6.8.2002 and found mentioned the prescription of the concerned doctor of first date as 8.8.2002 and second prescription also of same date i.e. 8.8.2002 which reflect suspicion on the process of preparation of said OPD Card and indicate that said Card was not issued on 6.8.2002 but got prepared subsequently. Even otherwise said OPD Card concerning accused Ajit Singh does not establish that accused Ajit Singh was so ill that he was unable to move or walk or he was admitted in the hospital. Therefore, the same can be of no help for the accused Ajit Singh.
23. In view of the aforesaid material as available on the record, I do not find any force in the submission of Ld. Counsel for the accused Siya Ram Kaushik and accused Ajit Singh that said accused were not present at the spot at the time of raid by the official of Anti C.C. No. 38/11 Page No. 25 of 44 Corruption Branch and were falsely implicated in this case.
24. That during the course of argument, it is submitted by Ld. Counsel for the accused persons that as PW10 complainant, Suresh and PW8 Panch witness S.K.Arya who are the most material PWs by turning hostile and have not deposed against the accused persons, the prosecution could not prove about the demand and acceptance of bribe by the accused persons from the complainant PW10 Suresh and therefore, the accused persons deserve to be acquitted. 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 and other PWs and mere fact that Panch witness and the complainant have turned hostile being won over by the accused persons can be of no help for the accused.
25. In order to prove that the accused Rajiv Kumar on behalf of the accused persons had demanded and accepted the bribe amount from the complainant, the prosecution is found to have examined PW10 Suresh/the complainant and PW8 S.K.Arya, Panch witness and C.C. No. 38/11 Page No. 26 of 44 PW9 S.L.Aggarwal, Raid Officer. PW10 Suresh, the complainant has clearly deposed before the court that he was working as driver of truck no.KA25A 6007 and used to transport goods in his said truck from Karnataka to Delhi in the interval of 10/12 days and officials of Transport Authority used to demand bribe of Rs.5001000/ for the loaded vehicle and Rs.100200/ for the empty vehicle by threatening for impounding the vehicle in case of nonpayment of the bribe. He further deposed that on 8.8.2002 at the request of Anti Corruption Branch at Ashok Vihar Chowk he agreed to join the proceedings and gave his statements Ex.PW8/C bearing his signatures at point X. He further deposed that he had handed over 2 GC notes of Rs.100/ each to the Raid Officer who applied some powder on said notes and handed over the same to him. He also deposed that one Panch witness was made to sit in his truck and when his truck was going from GT Karnal Road towards Ashok Vihar side, his truck was stopped by the accused persons and accused Rajiv Kumar took him to the person sitting and on his demand for bribe otherwise his vehicle would be impounded he delivered one GC note of Rs.100/ to accused Rajiv Kumar. He further deposed that in the meantime Panch witness after seeing the incident got down from the truck and members of the raiding party reached and apprehended the accused persons present in C.C. No. 38/11 Page No. 27 of 44 the court. Said PW10 also deposed that the members of raiding party took hand wash of the accused Rajiv Kumar which turned into pink colour as said PW10 was found to be hostile on certain aspects, he was cross examined by Ld. APP for the State. In the cross examination by Ld. APP for the State, said PW10 further admitted to be correct that in his presence accused Rajiv Kumar after seeing the raiding team had handed over the GC notes to Ct.Ajit Singh who ran away. He further admitted to be correct that raiding team has apprehended the accused Rajiv Kumar and said Inspector, alongwith other officials of Transport Authority. Said PW10 complainant further deposed that the right hand wash of accused Rajiv Kumar was transferred into two empty small bottles which were seized vide Seizure Memo Ex.PW8/H bearing his signatures at point C. He further deposed that during search of bag of said Inspector who was sitting, an amount of Rs.2880/ in crushed condition were recovered which were taken into possession vide Seizure Memo Ex.PW8/E1 bearing his signatures at point X. He also deposed that Challan Book Ex.PW6/H as taken into possession vide Seizure Memo Ex.PW8/F which bears his signatures at point C. He further deposed that about the seizure of ICard of accused Ajit Singh vide Seizure Memo Ex.PW8/G bearing his signatures at point B. Said PW10 complainant C.C. No. 38/11 Page No. 28 of 44 further deposed that accused Rajiv Kumar, said Inspector, Siya Ram Kaushik and Manoj Kumar were arrested from the spot vide personal search memo Ex.PW6/B1 to PW6/B4 which bears his signatures at point Y on each memo. Said PW10 complainant has duly identified one GC note of Rs.100/ which was returned by him to the Raid Officer as Ex.P1, two bottles marked RHWI and RHWII containing the hand wash of accused Rajiv Kumar as Ex.P2 and P3 and one blue/black printed colour bag containing Rs.2880/ which was recovered from the said Inspector as Ex.P3/1 (colly.). It is further revealed from the record that said PW10 after his part deposition on 30.7.2008 had been further cross examined by Ld. APP as well as Ld. Counsels for the accused persons on 28.4.2009 i.e. after about 9 months from the date of his first deposition in the court but in his said subsequent deposition on dated 28.4.2009 said PW10 Suresh, complainant was found to have given contradictory statement probably due to won over by the accused persons.
26. In the Judgment reported as AIR 1991 SC 1853 Khujji @ Surender Tiwari vs. State of M.P., it was observed as under: Para 6: ".................................... Counsel for the State is right when he submits that the evidence of a witness, declared C.C. No. 38/11 Page No. 29 of 44 hostile, is not wholly effaced from the record and that part of the evidence which is otherwise acceptable can be acted upon. It seems to be well settled by the decisions of this court "Bhagwan Singh vs. State of Haryana (1976) 2 SCR 921 : (AIR 1976 SC 202): Rabinder Kumar Dey vs. State of Orissa, (1976) 4 SCC 233 :(AIR 1977 SC 170) and Syed Akbar v. State of Karnataka, (1980) 1 SCR 95: (AIR 1979 SC 1848) that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. In the present case the evidence of the aforesaid two eye witnesses was challenged by the prosecution in cross examination because they refused to name the accused in the dock as the assailants of the deceased. We are in agreement with the submission of the learned counsel for the State that the trial Court made."
Para 7 ".....................The High Court came to the conclusion C.C. No. 38/11 Page No. 30 of 44 and, in our opinion rightly, that during the one month period that elapsed since the recording of his examination inchief something transpired which made him shift his evidence on the question of identity to help the appellant. We are satisfied on a reading of his entire evidence that his statement in crossexamination on the question of identity of the appellant and his companion is a clear attempt to wriggle out of what he had stated earlier in h is examinationinchief. Since the incident occurred at a public place, it is reasonable to infer that the street lights illuminated the place sufficiently to enable this witness to identify the assailants. We have, therefore, no hesitation in concluding that he had ample opportunity to identify the assailants of Gulab, his presence at the scene of occurrence is not unnatural nor is his statement that he had come to purchase vegetables unacceptable. We do not find any material contradictions in his evidence to doubt his testimony. He is a totally independent witness who had no cause to given false evidence against the appellant and his companions. We are, therefore, not impressed by the C.C. No. 38/11 Page No. 31 of 44 reasons which weighed with the trial Court for rejecting his evidence. We agree with the High Court that his evidence is acceptable regarding the time, place and manner of the incident as well as the identity of the assailants."
27. Panch witness S.K.Arya (PW8) also deposed that he was deputed on duty as Panch witness in Anti Corruption Branch on dated 08.08.2002 and at about 11:30 a.m. one Inspector of Anti Coruption Branch prepared a raiding team and he accompanied the raiding team and went to Ring Road, Ashok Vihar, Shalimar Bagh. He alongwith one Constable sat in a truck and members of raiding party followed them. He further deposed that at about 12:05 p.m. one person wearing khaki uniform stopped their truck and driver of the truck got down and on demand by the person wearing khaki uniform, the truck driver gave Rs.100/ to him. He further deposed that members of the raiding team reached the spot on the signal given by him and that person was apprehended.
28. No doubt said PW8 Panch witness is found to have turned hostile and have not supported the stand of the prosecution on certain aspects but from the perusal of the record, it is clearly reflected that C.C. No. 38/11 Page No. 32 of 44 said PW8 Panch witness has identified his signature at point A on the Complaint Ex.PW8/C, at point A and A1 on Raid Report Ex.PW8/D, at point A on Seizure Memo of GC note Ex.PW8/E, at point A of Seizure Memo of Rs.2880/ seized vide Seizure Memo Ex.PW8/E, Seizure Memo of Challan Book Ex.PW8/F, Seizure Memo of Identity Card of accused Ajit Singh Ex.PW8/G and Seizure Memo of Ex.RHWI & RHWII Ex.PW8/H. Thus, from the perusal of the record, it is clearly reflected that Raid Officer, PW9 the then Inspector S.L.Aggarwal has drawn up the Raid Proceedings Ex.PW8/D which found bear the signature of the PW8 Panch witness at point A and signature of the Raid Officer at point B and also the signature of the complainant.
29. I am of the considered view that the Post Raid Proceedings forming part of Raid Proceedings Ex.PW8/D being in the nature of Panchnama which is duly signed by the complainant and Panch witness is duly admissible and reference can be made to the case of Santa Singh vs. State of Punjab AIR 1956 Supreme Court 526 wherein it was held that mere presence of the police officer when a statement is made does not by itself render such a statement inadmissible. So long as a panchnama is a mere record of the things C.C. No. 38/11 Page No. 33 of 44 heard and seen by panchas and does not constitute a statement communicated to a police officer in the course of investigation by him and it would not fall within the mischief of section 162 of the Code.
30. From the perusal of the said Post Raid Proceedings forming part of Raid Proceedings Ex.PW8/D, it is clearly reflected that on asking by the accused Rajiv Kumar, complainant Suresh delivered one GC note of Rs.100/ to Rajiv Kumar which he received in his right hand and on seeing the raiding party accused Rajiv Kumar delivered said bribe amount of Rs.100/ to the accused Ct.Ajit Singh who ran away from the spot alongwith the bribe amount. It is further revealed from the said Post Raid Proceedings forming part of Raid Proceedings Ex.PW8/D, accused Rajiv Kumar on stopping the truck of the complainant took the complainant to the Inspector H.P.Singh who was sitting on a chair near patri and accused HC Siya Ram Kaushik was also present there and before them, accused Rajiv Kumar after checking the paper of the truck of the complainant demanded the bribe in the form of entry fee on which complainant delivered him one tainted GC note of Rs.100/ which was received by accused Rajiv Kumar in his right hand and on the signal given by the Panch witness, raiding team reached there and thereafter on seeing the raiding party, C.C. No. 38/11 Page No. 34 of 44 accused Rajiv Kumar delivered said GC note of Rs.100/ to Ct.Ajit Singh who ran away alongwith the said bribe amount from the spot. It is further revealed from the record that thereafter, right hand wash of accused Rajiv Kumar was taken in the solution of sodium carbonate which turned into pink colour and same was transferred in small 2 empty bottles marked as RHWI & RHWII and as per FSL Report Ex.PW6/E, Ex.RHWI gave positive tests for the presence of phenolphthalein and sodium carbonate which substantiate the factum regarding receipt of the tainted GC note of Rs.100/ by the accused Rajiv Kumar from the complainant. It is further revealed from the said Post Raid Proceedings forming part of Ex.PW8/D that one bag containing GC notes of different denomination in crushed condition, total amounting to Rs.2880/ were taken into possession near the spot where accused Harender Pal Singh was sitting on the chair and said amount of Rs.2880/ was seized vide Seizure Memo Ex.PW8/E1. Furthermore, from the deposition of PW9 S.L.Aggarwal, Raid Officer, PW10 complainant/Suresh, PW6 Inspector Lalit Mohan, IO, it is revealed that the accused Rajiv Kumar, Harender Pal Singh, accused Siya Ram Kaushik and accused Manoj Kumar were arrested from the spot in the presence of the PW10 complainant/Suresh and PW8 Panch witness S.K.Arya. It is also revealed from the record that C.C. No. 38/11 Page No. 35 of 44 PW9 Raid Officer has seized the Challan Book Ex.PW6/H from the accused HC Siya Ram Kaushik vide Seizure Memo Ex.PW8/F in the presence of the PW10 complainant/Suresh and PW8 Panch witness S.K.Arya. It is also revealed from the record that ICard of accused Ajit Singh which is Ex.P4 has been seized near the spot vide Seizure Memo Ex.PW8/G in the presence of the PW10 complainant/Suresh and PW8 Panch witness S.K.Arya by PW9 Raid Officer.
31. In view of the above material as available on the record, I am of the considered view that the demand and acceptance of the bribe of Rs.100/ by the accused Rajiv Kumar on behalf of all the accused persons from the complainant/Suresh in pursuance of the conspiracy hatched by the accused persons has been found established successfully by the prosecution.
32. In the case reported as Shivanarayan Laxminarayan Joshi and others vs. State of Maharashtra and others, 1980 CRI.L.J.388 it was held by Hon'ble Supreme Court of India in Para 14 as under: "It is manifest that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from the inferences drawn from acts or illegal omission C.C. No. 38/11 Page No. 36 of 44 committed by the conspirators in pursuance of a common design which has been amply proved by the prosecution as found as a fact by the High Court."
33. In the case reported as Suresh Chandra Bahri Vs. State of Bihar, AIR 1994 Supreme Court 2420(1) it was held by the Hon'ble Supreme Court of India in Para 96 as under: "Thus essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution because in such a fact situation criminal conspiracy is established by proving such an agreement. In other words, where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in S. 120B read with the proviso to subsec(2) of S. 120A of the I.P.C., then in that event mere proof of an agreement between the accused for the commission of such a crime alone is enough to bring about a conviction under S. 120B and the proof of any overt act by the accused or by an one of them would not be necessary. The provisions in such a situation do not require that each and every person who is a party to the conspiracy must do some overt act towards the fulfilment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the crime and if these requirements and ingredients are established C.C. No. 38/11 Page No. 37 of 44 the act would fall within the trapping of the provisions contained in S. 120B since from its very nature a conspiracy must be conceived and hatched in complete secrecy, because otherwise the whole purpose may frustrate and it is common experience and goes without saying that only in very rare cases one may come across direct evidence of a criminal conspiracy to commit any crime and in most of the cases it is only the circumstantial evidence which is available from which an inference giving rise to the conclusion of an agreement between two or more persons to commit an offence may be legitimately drawn."
34. During the course of the argument, it is submitted by Ld. Counsel for the accused Rajiv Kumar and Harender Pal Singh 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. Counsels for the accused persons 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 when he went to the C.C. No. 38/11 Page No. 38 of 44 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 same footing as C.C. No. 38/11 Page No. 39 of 44 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. I also do not find any force in the submission of Ld. Defence Counsel that since there was no recovery of any bribe amount from the accused, the presumption as contemplated U/S 20 of Prevention of Corruption Act, 1988 cannot be attracted in the present case. No doubt as the accused Ajit Singh is found to have slipped away from the spot immediately after the receipt of the bribe amount C.C. No. 38/11 Page No. 40 of 44 of Rs.100/ from the coaccused Rajiv Kumar and the bribe amount could not be recovered from the accused but the same cannot be treated as a bonus for the accused. Furthermore, from the Bare perusal of the Section 20 of the Prevention of Corruption Act, 1988 it is clearly reflected that mere nonrecovery of the bribe amount will not automatically dislodge the legal presumption as made available as against the accused. Once the accused is found to have accepted the bribe amount it is for him to explain in which capacity he had accepted the same.
37. 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 C.C. No. 38/11 Page No. 41 of 44 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 supported by proof, the presumption created by the provision cannot be said to be rebutted.
38. 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 C.C. No. 38/11 Page No. 42 of 44 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 Prevention of Corruption Act that he accepted the same as illegal gratification, particularly so, when the defence theory put forth is not accepted."
39. 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 in para 10 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."
40. 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 C.C. No. 38/11 Page No. 43 of 44 on public servant to establish that it was not by way of illegal gratification. That burden was not discharged by the accused herein.
41. 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.
42. The net result of the aforesaid discussion is that the prosecution has been successful in establishing its case as against all the 5 accused persons namely Rajiv Kumar, Harender Pal Singh, Siya Ram Kaushik, Ajit Singh and Manoj Kumar for the charged offence. Hence, all the said 5 accused persons stand convicted for offence punishable U/S 120B IPC and U/S 7 and 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988. Let all these 5 accused persons be heard separately on the point of sentence. Announced in the open court on this 20th day of May, 2011 (B.R. Kedia) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC,Delhi C.C. No. 38/11 Page No. 44 of 44