Delhi District Court
22 vs Ravinder Kumar Sharma Page 22 Of 42 on 30 May, 2015
1
IN THE COURT OF SH. NAROTTAM KAUSHAL,
SPECIAL JUDGE (PC Act)05, (ACB), (CENTRAL),
TIS HAZARI COURTS, DELHI
Date of Institution : 11.12.2013
Date of reserving the Judgment : 23.05.2015
Date of pronouncing the Judgment : 28.05.2015
Corruption Case No. : 30/2013
FIR No. : 07/2011
Case Identification No. : 02401R0657782013
Police Station : Anti Corruption Branch
Under Section : 7/13 of Prevention of
Corruption Act, 1988
STATE
Versus
Ravinder Kumar Sharma
S/o Late Sh. Shristi Dev Sharma
R/o 52A, PocketI, Platinum Enclave,
Sector 18, Rohini, Delhi.
JUDGMENT
1.1 Accused Ravinder Kumar Sharma, Junior Engineer, DDA has been charge sheeted by PSACB for having demanded and accepted bribe of Rs. 50,000/ from one Satish Kumar Aggarwal. 1.2 It is the case of the prosecution that Satish Kumar Aggarwal owned property bearing No. 198, Pocket 19, Sector 24, Rohini. On 28.9.2011 Satish Aggarwal came to PS ACB and lodged complaint stating that he had purchased the aforesaid house in 2004 in the name of his wife State Vs. Ravinder Kumar Sharma Page 1 of 42 2 Smt. Urmila. He had shifted therein in April 2011. On 17.8.2011 Ravinder Kumar Sharma (JE), DDA visited the premises and without serving any notice sealed first floor and second floor of the property. On enquiring the reason for sealing, he instructed the complainant to meet him in the office. 4/5 days later, complainant went to office of accused and met Anand Prakash, Deputy Director, DDA, Sector 3, Deepali Chowk, who directed him to meet Ravinder Kr. Sharma (JE). Complainant met Ravinder Kumar Sharma, who advised him to wait for sometime and assured that he would get the matter sorted out and took the mobile number of the complainant. On 26.09.2011, Ravinder Kumar Sharma (JE) called up the complainant and instructed him to reach his office on 28.9.2011 with some money. Complainant again received a phone call from Ravinder Kumar Sharma (JE) on 28.9.2011 at about 8.30 AM instructing him to meet him at D Block, INA with Rs. 50,000// Rs. 60,000/ He assured that he would deseal the premises. 1.3 On the complaint aforesaid Inspector Ranbir Singh, Raid Officer ( hereinafter called as RO ) associated one Praveen Maan as panch witness. Complaint which was scribed by one Jatin was shown to the panch witness who verified the same. Complainant handed over Rs. 50,000/, which he had brought, to be used as trap money. RO noted the serial numbers of GC notes in the preraid report. He applied Phenolphthalein powder on the GC notes and demonstrated the State Vs. Ravinder Kumar Sharma Page 2 of 42 3 Phenolphthalein test to the complainant and panch witness. He instructed both of them to remain close to each other and further instructed the complainant to carry out the transaction in such a manner that panch witness can observe the same. Panch witness was instructed to watch the proceeding closely and give a signal by waiving his right hand twice over his head, on being satisfied that bribe had been demanded and accepted. Raiding team was constituted, which left PS ACB and reached DTC Bus stand Vikas Sadan. Complainant spoke to accused on phone and fixed a meeting. Complainant and panch witness were again reminded of the instructions by RO. They both walked towards the agreed spot i.e. D Gate, Vikas Sadan. Members of the raiding team took suitable positions nearby. Sometime later a person came and took complainant and panch witness with him. They all entered the Reception but soon came out and walked towards car parking on rear side of the building. Raiding team followed them, maintaining a discreet distance. All of them then occupied a WagonR car. Complainant and the said person sat on the front seats. Panch witness sat on the rear seat. Sometime later complainant gave a signal to the raiding team which came and encircled the Wagon R car bearing registration No. DL8C K8105. Panch witness then pointed out that accused, who was identified as Ravinder Kumar Sharma, had demanded and accepted Rs. 50,000/ from the complainant. Treated GC notes were recovered from the possession of accused. Their serial numbers were compared with the State Vs. Ravinder Kumar Sharma Page 3 of 42 4 numbers mentioned in preraid report. Hand wash proceeding was carried out. GC notes and other case properties were seized and sealed. Statement of witnesses were recorded. RO then prepared the rukka. IO was called to join investigation who took over the case property and accused and sent sample for chemical analysis to FSL. He sought sanction for prosecution of accused and filed the charge sheet.
2. Cognizance of offences punishable u/sec. 7/13 (1) (d) Prevention of Corruption Act, 1988 (hereinafter referred to as 'the PC Act'), was taken against accused Ravinder Kumar Sharma. He was summoned and provisions of section 207 Cr. P.C. were complied with.
3. Charge for offences punishable u/sec. 7/13(1) (d) r/w section 13 (2) of the PC Act was framed against the accused, vide my order dated 01.04.2014 to which accused pleaded not guilty and claimed trial.
4.1 Prosecution in support of its case examined 21 witnesses. Complainant Satish Kumar Aggarwal (PW13) has deposed about demand, acceptance and recovery of bribe by the accused. Panch witness Praveen Maan (PW16) has not supported the case of prosecution. He did not depose about any demand or acceptance of bribe by the accused. He was cross examined by Ld. Additional PP but did not support its case. State Vs. Ravinder Kumar Sharma Page 4 of 42 5 Jatin (PW10) has deposed that he was friend of complainant's son. He went with the complainant to PS ACB on 28.9.2011 and scribed complaint Ex. PW10/A, as dictated by complainant Satish Aggarwal. 4.2 Ct. Anil (PW20) was a member of the raiding team. He has deposed that RO prepared a rukka and handed over the same to him, which he carried to PS ACB for registration of FIR. HC Suraj Pal Singh (PW8) was the duty officer on 28.9.2011. He has deposed that he received rukka from Ct. Anil Kumar at 6.40 PM and recorded FIR No. 7/11.
4.3 HC Chander Singh (PW7) was MHC(M) at PS Civil Lines. He has deposed about deposit of case property by IO/Inspector Naresh Kumar on 28.9.2011 and also the personal search property of the accused. On 18.10.2011 he handed over exhibits to Ct. Kuldeep for being carried to FSL, Rohini. On 5.1.2012 Ct. Anil returned the remnants to him. Ct. Kuldip (PW9) has deposed that on 18.10.11 he had carried the samples to FSL. Ct. Anil (PW20) has also deposed that he brought the remnants from FSL. All the three aforesaid witnesses further deposed that case property was not tampered with so long as it remained in their custody. 4.4 Subhadra Gopal Krishnan, Deputy Director, (Personnel), DDA was examined as PW1. He proved the biodata of accused that he State Vs. Ravinder Kumar Sharma Page 5 of 42 6 was working as Junior Engineer in DDA. M.K. Gupta (PW2) was Commissioner (Personnel), DDA. He deposed that he was competent authority to remove accused from service and had granted sanction for his prosecution.
4.5 A.D.Sati - Assistant Director (Vigilance), DDA (PW15) has deposed that he handed over a file pertaining to H.No.198, Pocket19, Sec.24, Rohini to the IO/ Inspector R.K.Tyagi, who seized the same. File was identified by the witnesses as Ex.P1. Arvind Kerketta (PW14) was a panch witness to the proceedings dated 16.03.2012, when file Ex.P1 was seized by IO. ACP Ravinder Kumar Tyagi (PW18) has deposed that he was working as Inspector in PSACB and had remained part IO. He had seized file Ex.P1 from A.D. Sati in the presence of panch witness Arvind Kerketta.
4.6 Neelam Sharma - UDC, DDA (PW12) has deposed that on 24.12.2010, she had handed over file of property no.198, Pocket19, Sec.24, Rohini to accused Ravinder Kumar Sharma, who was working as Junior Engineer, regarding Demolition Programme. Anand Prakash (PW3) was working as Deputy Director (Planning), DDA. He has proved his letter dated 07.01.2011 Ex.PW3/A (contained in file Ex.P1), vide which he had reported removal of seal and running of shop and Property Dealer's office in the complainant's property. He further deposed that his letter was returned in original by the Rohini Office with instructions to get State Vs. Ravinder Kumar Sharma Page 6 of 42 7 approval of resealing from HOD. The file was then marked to accused for necessary action. The accused, vide his note dated 04.03.2011 Ex.PW3/C, sought approval of HOD to reseal the building. The note was eventually approved by HOD i.e. Commissioner. Accordingly the witness approved letter for resealing on 06.04.2011. He has further deposed that no fresh notice for resealing was required to be issued as two notices in this context had been previously issued on 10.02.2004 and 12.02.2004. Accused was the supervising officer under whose supervision property was to be resealed. H.K.Kapoor - Asistant Director, DDA (PW5) identified the signatures of the accused in file Ex. P1, on the office notes dated 04.03.2011, 05.04.2011 and 17.08.2011.
4.7 Shishir Malhotra - Nodal Officer, Aircel (PW4) proved the Call Detail Record and Customer Application Form of Phone No. 8802233553 in the name of Abhishek Sharma, son of the accused. He also proved Call Detail Record for the period 01.09.2011 to 28.09.2011. Abhishek Sharma (PW17) has deposed that phone no.8802233553 subscribed in his name was being used by his father i.e. accused R.K.Sharma. Israr Babu - Nodal Officer, Vodaphone (PW11) proved the Customer Application Form of Phone No.9811268431, which was subscribed in the name of the complainant. He also proved the Call Details Record of the aforesaid phone for the period 01.09.2011 to 28.09.2011.
State Vs. Ravinder Kumar Sharma Page 7 of 42 8 4.8 Shyam Sunder - Assistant Director (Education), GNCT (PW6) proved Panch witness duty roaster for the month of September2011, vide which Praveen Maan was deputed as Panch witness at PSACB on 28.09.2011.
4.9 Inspector Ranbir Singh (PW19) was the raid officer. He has deposed that on 28.09.2011 complainant reported to him and handed over complaint Ex.PW10/A regarding demand of Rs.50,000/ as bribe by accused. He deposed that he associated panch witnesss Praveen Maan. After demonstrating use of Phenolphthalein powder, he gave them instructions for the raid to be conducted. He has further deposed about the raiding team leaving for the spot and apprehending of accused, recovery of treated GC notes, hand wash proceedings, seizure of the case property and preparation of rukka. Inspector Naresh Kumar (PW21) was the Investigating Officer. He had taken over investigation from Inspector Ranbir Singh at about 05:50 PM. He has further deposed about handing over of case property and custody of accused, along with the record to him, by the RO. He has, further, deposed that at the time of raid he seized two files vide seizure memo Ex.PW13/E from the vehicle of the accused. He has also proved arrest and personal search of the accused and depositing of case property in the Malkhana. On 13.10.2011 he recorded supplementary statement of complainant regarding inadvertent error in his first statement, with respect to ground floor and second floor of property having been actually sealed, though differently stated by him in State Vs. Ravinder Kumar Sharma Page 8 of 42 9 the complaint. He has proved sending the exhibits to FSL, collecting the report and collecting the Call Details Record of the phone of the complainant.
5.1 Incriminating Evidence was put to the accused and his statement u/sec.313 Cr.P.C. was recorded. He did not dispute being a Junior Engineer in DDA and thus a public servant. He, however, disputed that M.K.Gupta - Commissioner (Personnel) was authority competent to remove him from service and thus claimed the sanction to have been wrongly granted. He admitted having resealed the property of complainant on 17.08.2011. He denied that complainant met him for getting ground floor and second floor of his property desealed. He also denied having demanded Rs.4,00,000/ for desealing the property. He denied that on 26.09.2011, he called up the complainant asking him to visit his office with Rs.70,000/ to Rs.80,000/. He denied that on 28.09.2011 he talked to the complainant and instructed him to reach INA, Vikas Sadan for desealing of premises. He disputed the complaint, pre raid proceedings and arrival of raiding team at Vikas Sadan, INA. He denied having instructed the complainant to reach D Gate, Vikas Sadan, INA or that he took the complainant to the parking area. He, however, admitted that complainant reached the staff parking of Vikas Sadan and sat in his car along with one another person. He denied that while sitting in the car he demanded and accepted bribe money of Rs.50,000/ from State Vs. Ravinder Kumar Sharma Page 9 of 42 10 the complainant or that he received the same in his left hand or that he started counting the same. He denied that on a predetermined signal given by the panch witness, raiding team arrived and apprehended him and recovered treated GC notes from him. He also denied hand wash proceedings and the rukka having been prepared and sent to the Police Station through Ct. Anil. He claimed that he had been wrongly arrested and knew nothing about FSL report. He did not dispute the Call Detail Records of his phone and that of complainant. He claimed to have been falsely implicated. Complainant had been making repeated calls to seek favour from him. He eventually reached Vikas Sadan, where accused was present for some official work. Complainant came and sat in his car and tried to give him money, which he tried to push away. He was picked up along with money and brought to PSACB. No paper work or proceedings had been done at Vikas Sadan. Accused sought opportunity to lead defence evidence and examined Ct. Anoop Singh of PSCivil Lines. A supplementary statement of the accused was recorded on 21.5.2015 wherein he did not dispute seizure of file Ex. P2. He denied for want of knowledge, seizure of file Ex. P1 ( file pertaining to Property No. 198, Pocket No. 19, Sector 24, Rohini ).
5.2 DW1 Ct. Anoop Singh had brought the Malkhana Register of PSCivil Lines, wherein there was no case property entered to have been deposited on 28.09.2011.
6 Ms Reeta Sharma, Ld. Additional PPO on behalf of the State State Vs. Ravinder Kumar Sharma Page 10 of 42 11 has argued that prosecution case is proved beyond reasonable doubt. M.K. Gupta was the authority competent to remove the accused from service and had rightly granted sanction for his prosecution. The Hon'ble High Court of Delhi vide order dated 14.11.2014 passed in Crl. M.C. No. 2781/14 had permitted the accused to raise the aspect of sanction at the time of final argument. However, defence has not been able to show any prejudice caused to him by way of sanction having been granted by PW2. Reliance has been placed on law laid down in State of Bihar Vs Rajmangql Ram AIR 2014 SC 1674.. It is next argued that complainant Satish Aggarwal (PW13) has fully supported the case of prosecution. As regards demand, acceptance and recovery of bribe. Minor contradictions in his statement are not inconsistent with the main case of prosecution. The contradictions are merely explanatory of his statement made u/s 161 Cr. P.C. Panch witness Praveen Maan (PW16) has apparently been won over by the accused. He does not dispute his signatures on the raid proceedings and the seizure memos. He has also admitted in his cross examination that he did not report the alleged false implication of accused to any senior authorities. He also did not make any endorsement under his signatures that the same were made on the directions of RO and IO. He knew that officials of PS ACB apprehend public servant involved in corrupt activities. He had not questioned the accused being apprehended. It is, thus, argued that conduct of panch witness at the time of raid and thereafter supports the State Vs. Ravinder Kumar Sharma Page 11 of 42 12 case of prosecution. It is also argued that file Ex. P2 recovered from the possession of accused at the time of raid, contained a letter whereby decision to review demolition programme of complainant's property had been taken. It is, thus, argued that prosecution has proved its case beyond reasonable doubt.
7.1 Shri S.K. Kaushik and Shri Sandeep Sharma, Ld. defence counsels chose not argue orally but submitted written arguments. Though, at the time of rebutted arguments of Ld. Addl. PP, they addressed oral arguments also. While narrating the facts, detailed reference has been made to contents/notings of file Ex. P1. Reference has been made to information sought under RTI Act by one Praveen Jain regarding the property of complainant. Challenge to the prosecution case is made first on the validity of sanction to prosecute the accused. Relying upon the law laid down in Kunhayammed Vs State of Kerla (2000) 6 SCC 359, Krishan Kumar Vs Divisional Assistant Electrical 1979 AIR SC 1912 and Rama Tyagi Vs DDA (87) 2000 DLT 725, it is submitted that sanction for prosecution by PW2 was not valid. It is next submitted that file Ex. P1 having not been seen by PW2, the sanction was granted in mechanical manner. He was not aware of the previous sealing of the property of the complainant. He was also not aware about the floor of complainant's property sealed by the accused. Relying upon the law laid down Mohd. Iqbal Ahmad Vs State of AP 1979 Crl. L.J. 633 and Jaswant Singh Vs State of Punjab AIR 1958 SC 124, it is argued that entire facts State Vs. Ravinder Kumar Sharma Page 12 of 42 13 of the case were not put up before the sanctioning authority and he had no occasion to consider all the circumstances of the case before granting sanction.
7.2 On merits it is argued that there was no acceptance or obtainment of bribe by the accused. For this reliance has been placed on L.K. Advani Vs C.B.I 1997 Cr. L.J. 2559. Referring to the law laid down in Madan Mohan Singh Vs State of UP AIR 1954 SC 637, it is argued that there was no occasion for the accused to have demanded bribe as he was not competent to deseal the property. Complainant had not even applied for desealing of the property, whereas he was aware that formal application for desealing has to be made. Resealing had already been carried out, there could not have been any occasion to demand bribe. A question has been raised as regards the appropriate time for the complainant to have made complaint to ACB. It is answered that appropriate time for complainant to have approached PS ACB was close to the date of executing the Demolition action. Relying upon unproved document Annexure A, it is argued that date of demolition was 30.09.2011 and can be presumed to be in the knowledge of complainant and, therefore, he made out a false story on 28.9.2011. It is next contended that RO conducted the raid without verifying the facts and allegations of demand of bribe. Referring to the law laid down in P. Sirajuddin etc Vs State of Madras AIR 1971 SC 520, State of Haryana & Ors Vs Ch. Bhajan Lal & Ors. AIR 1992 Crl. L.J. 527 and Ashok Tshering State Vs. Ravinder Kumar Sharma Page 13 of 42 14 Bhutia Vs State of Sikkim 2011 (2) JCC 1153, it is argued that the raid was conducted in disregard of the directions of the Hon'ble Supreme Court.
7.3 Highlighting the contradictions in statement of complainant (PW13), it is argued that inconsistent statement of the complainant at eight different stages of his testimony, makes him unreliable and unworthy of credence. For this reliance has been placed on Suraj Mal Vs Delhi Administration AIR 1979 SC 1408. Testimony of complainant has been dissected at length and argued that the same is totally inconsistent, improbable, contradictory and full of improvements. 7.4 The manner in which panch witness gave the predetermined signal is also argued to have been differently stated by panch witness and RO. Testimony of Raid Officer (PW19) is also argued to be unreliable and untrustworthy as he has made material improvements. Deposition of RO is argued to be false. Complainant is alleged to have made the first phone call to the accused. The contents of call is hearsay evidence. IO is alleged to have made a partial and unfair investigation.
7.5 It is further submitted that accused had received a missed call from the complainant and that accused called back in response to the missed call. It is by this call the raiding team came to know that accused was in Vikas Sadan, INA and they conducted the false trap. 7.6 It is next submitted that the RO conducted the raid without State Vs. Ravinder Kumar Sharma Page 14 of 42 15 preverification of the allegations. Testimony of complainant Satish Kumar Aggarwal (PW13) and Raid Officer/Inspector Ranbir Singh (PW19) regarding predetermined signal being given by the Panch Witness raise serious doubts. Testimony of Panch Witness also on this aspect is submitted to be incongruous to the site plan. RO had not verified the sealing/desealing of property of complainant before conducting the raid. RO has improved upon his statement. His deposition is absolutely false. Testimony of Ct. Anil (PW20) is hearsay evidence. Investigation by the IO is partial and unfair. Complainant is an interested witness. The testimony of IO makes the defence version to be more probable. Relying upon law laid down in Mousam Singha Roy & Ors Vs State of West Bengal 2003 VI AD (SC) 478, it is argued that the charges being very serious, degree of proof should be of high caliber to convict the accused. Last of all it is argued that two views being possible, accused is entitled to benefit of doubt. For this reliance has been placed on law laid down in Kali Ram Vs State of Himachal Pradesh AIR 1973 Supreme Court 2773.
8. I have heard Ld. Additional PP Ms Reeta Sharma, perused the written arguments submitted by Shri S.K. Kaushik, oral submission of Shri S.K. Kaushik and Shri Sandeep Sharma have also been heard. Before adverting to the merits of the case following three preliminary issues raised by the defence, need to be addressed.
(i) Whether sanction for prosecution of the accused has been State Vs. Ravinder Kumar Sharma Page 15 of 42 16 rightly granted?
(ii) Whether RO committed a grave error in conducting the raid without preverification.
(iii) Accused was not competent to order desealing of complainant's property, therefore, he had no occasion to demand bribe.
9.1 (i) Whether sanction for prosecution of the accused has been rightly granted?
Much hype has been created by the defence on the aspect of grant of sanction. It is argued that the file Ex. P1, which was the DDA file pertaining to allotment, sealing, deseaing of complainant's property was not put up before the sanctioning authority at the time of grant of sanction. He, therefore, had no occasion to apply mind on the subject matter. I find the argument to be absolutely ridiculous and meritless. The competent authority was not required to apply mind on the aspect of allotment, sealing or desealing of the plot in question. These aspects as discussed in the file would not in any manner indicate the fact of accused demanding or accepting bribe. The competent authority was required to apply mind on the aspect whether accused had demanded and accepted bribe or not. The relevant documents to arrive at this prima facie conclusion, were the statement of complainant, panch witness, the raiding team and the FSL report regarding the phenolphthalein test. The necessary ingredients for the offences State Vs. Ravinder Kumar Sharma Page 16 of 42 17 punishable u/s 7 & 13 of the PC Act are made out from the aforesaid statements and the phenolphthalein test. The record pertaining to these aspect having been put up before the competent authority; mere fact of file Ex. P1 having not been seen by him has got no merits. Thus the reliance upon the law laid down in Mohd. Iqbal's case and Jaswant Singh's case is misplaced.
9.2 It has next been contended that the Commissioner ( Personnel ) was not authority competent to remove the accused from service. During the testimony of Subhadra Gopal Krishnan (PW1), it came up that vide notification dated 1.3.1994 (Ex. PW1/DA), the appointing authority of accused, who was a Group C employee was Commissioner ( Personnel ); though accused himself was appointed by the ViceChairman, DDA prior to the notification. It was not suggested to the witness that notification Ex. PW1/DA did not govern the service condition of accused, post on 1.3.1994. Similarly during cross examination of competent authority M.K. Gupta (PW2) it was not suggested that notification Ex. PW1/DA did not govern the accused. A perusal of Ex. PW1/DA reveals that for group C employees, authority competent to appoint and remove them from service was Commissioner ( Personnel ) and not the Vice Chairman. Thus, it cannot be said that M.K. Gupta (PW2), who granted sanction for prosecution of the accused was not competent authority to remove him from service. The reliance upon law laid down in Krishan Kumar's case and Rama Tyagi's case is State Vs. Ravinder Kumar Sharma Page 17 of 42 18 misplaced, as both the cases pertain to provisions of Article 311 of Constitution of India. Ld. counsel has not cited any judgment wherein sanction granted by a competent authority, after amendment in service conditions, was held to be illegal. However, all issues pertaining to invalidity of sanction to prosecute stand settled in view of law laid down in Rajmangal Ram's case. The Hon'ble Supreme Court in its latest dictum has held the litmus test of validity of sanction, to be the conclusion whether 'failure of justice' has occasioned by any error, omission or irregularity in grant of sanction . For ready reference, relevant portion is reproduced as below: .......... interdicting a criminal proceeding midcourse on ground of invalidity of the sanction order will not be appropriate unless the court can also reach the conclusion that failure of justice had been occasioned by any such error, omission or irregularity in the sanction. It was further held that failure of justice can be established not at the stage of framing of charge but only after the trial has commenced and evidence is led.............
A perusal of the cross examination of M.K. Gupta (PW2 reveals that not even a suggestion has been given to him that 'failure of justice' has occasioned by grant of sanction of prosecution. I, therefore, hold that defence having failed to establish any 'failure of justice', the sanction is perfectly valid.
State Vs. Ravinder Kumar Sharma Page 18 of 42 19 9.3 The object behind seeking sanction to prosecute a public servant is that his superior authority considers the available evidence to primafacie reach a opinion that the public servant is not being falsely implicated or that the allegations are not designed to tarnish the image/reputation or freedom of such a public servant to perform his work without fear and favour.
9.4 Nothing material can be read into the failure M.K. Gupta (PW2) to depose about floor of complainant's property which had been sealed or his lack of knowledge about previous sealing of complainant's property. The relevant issue for the competent authority was to examine the case from the angle of demand and acceptance of bribe and not regarding the status of complainant's property.
(ii) Whether RO committed a grave error in conducting the raid without preverification.
10.1 The argument that Raid officer conducted raid without preverification has no legal sanctity. Reliance upon the law laiddown in P. Sirajuddin's case Bhajan Lal's case and Ashok Tshering Bhutia's case (supra) is misconceived. None of the three cited cases pertains to trap, to catch a person accepting bribe. The law laid down in three cited cases is that an FIR ought not to registered against a public servant, unless there is a suitable preliminary inquiry into the allegations by a responsible officer. A perusal of the testimony of RO/Inspector Ranbir Singh (PW19) and IO/Inspector Naresh Kumar (PW21) reveals that FIR was got State Vs. Ravinder Kumar Sharma Page 19 of 42 20 registered in the present case, after the accused had been apprehended accepting bribe. Investigation into offence commenced only after the RO and IO had satisfied themselves by making inquiries from the complainant, panch witness and after conducting the phenolphthalein test. Commencement of investigation and registration of FIR was thus in total compliance of the law laid down in cited judgments, that FIR, ought not be registered without satisfaction of the responsible officer that there is truth in the allegations against the public servant. Trap proceedings were conducted without registration of FIR and without publically charging the public servant of the act of dishonesty. Therefore, it cannot be said that Anti Corruption Branch had commenced investigation on half baked information. The argument that RO had conducted raid without verifying the facts from a third person or from other independent source has no legal basis. There is no requirement under the statue or under any provision of law that before conducting the raid, RO ought to have verified the facts from some independent source. Prudence would of course require the RO to satisfy himself as regards genuineness of the complaint, before venturing into the raid. Raid which is otherwise successful cannot be vitiated, merely because the RO did not conduct inquiries from an independent person. I, therefore, find no merits in this objection raised by the Ld. defence counsel. 11.1 (iii) Accused was not competent to order desealing of complainant's property, therefore, he had no occasion to State Vs. Ravinder Kumar Sharma Page 20 of 42 21 demand bribe.
The third issue raised by Ld. defence counsel is that the accused was not competent to have allowed desealing of the property of the complainant, therefore, he had no occasion to demand bribe. In support of this argument Ld. counsels have relied upon the law laid down in Mdan Mohan's case. The cited judgment was rendered in the context of section 161 of IPC. Explanation (d) to section 7 of PC Act 1988 sets to rest this controversy, wherein it has been provided that the person, who receives gratification or demands the same may or may not be in a position to return the favour promised by him. For ready reference explanation (d) to section 7 is reproduced herein below:
(d) "A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do , or has not done, comes within this expression.
The argument of Ld. defence counsels has been rejected by Hon'ble Supreme Court in Syed Ahmed Vs State of Karnataka 2012 (8) SCC 527, where it was held as under: 'Issue whether accused could or could not have delivered results for which gratification is sought or given is irrelevant'.
Similar view has been taken by the Hon'ble High Court of Delhi in Criminal Appeal No. 747/2008 Rajinder Kumar Vs State State Vs. Ravinder Kumar Sharma Page 21 of 42 22 decided on 29.10.2014, wherein it was held as under: 'In any event the offence u/s 7 of PC Act would be attracted even if the appellant was not in a position to directly take a decision in respect of the file in question'.
11.2 The fact that accused was seized of the file of complainant's case is established from the testimony of Neelam Sharma ( PW12). She had handed over files Ex. P1 and Ex. P2 to the accused on 24.12.2010 for demolition programe. Anand Prakash, Deputy Director (Planning), DDA (PW31) has further deposed that on the day of trap i.e. 28.9.2011 accused had brought file Ex. P2 to him and he wrote note Ex. PW3/DB in file Ex. P2 for reviewing the demolition programe. Further perusal of note Ex. PW3/DB reveals that though, the note is contained in file Ex. P2; yet it seeks review of demolition programe of complainant's property as well i.e. property No. 198, Pocket 19, Sector 24, Rohini. 11.3 Note Ex. PW5/D dated 22.9.2011 in file Ex. P2 seeking desealing /regularization of the property has been initiated by the accused, whose signatures on the note have been identified by H.K. Kapur (PW5). It shall be pertinent to note here that though note Ex. PW5/B is not pertaining to complainant's property, but is pertaining to similarly situated property, which is adjoining property bearing No. 199. Thus complainant's testimony that accused had demanded bribe for desealing his property cannot be said to be misfounded, as accused on State Vs. Ravinder Kumar Sharma Page 22 of 42 23 22.9.2011 i.e. a week before the trap had recommended desealing of the adjoining property on the ground that the area had been denotified and transferred to MCD. The fact that similar notes are missing in file Ex. P1can be because of the reason that file Ex. P1 was seized much later i.e. on 16.3.2012 and during this period it had remained in the custody of the accused, who thus had opportunity to remove such note sheets, if any, from the file Ex. P1. The argument that complainant approached PS ACB close to the date of demolition, as he had come to know the date thereof is also rejected. The document Annexure A relied upon by the defence cannot be read in evidence, as the same has not been proved. It cannot be said that complainant had filed complaint shortly before the date, fixed for demolition programme. There was no occasion for the accused to have known the demolition programme, which was confined to the office files of DDA and accused could have no knowledge thereof. Presuming knowledge of the demolition programme to the complainant, is totally conjectural. 12 To bring home the charges against the accused, prosecution is required to prove the following facts
(i) Demand of bribe of Rs. 50,000//Rs.60,000/ prior to the complaint.
(ii) Demand and Acceptance of Rs. 50,000/ as bribe on 28.09.2011, at the time of trap.
(iii) Recovery of treated GC notes of Rs. 50,000/ from the State Vs. Ravinder Kumar Sharma Page 23 of 42 24 possession of accused on 28.09.2011.
I shall now deal with all the three aspects one by one.
(i) Demand of bribe of Rs. 50,000//Rs.60,000/ prior to the complaint.
12.1 o prove demand of bribe by accused prior to the raid, complainant Satish Aggarwal (PW13) is the sole witness. He has deposed that on 17.8.2011 accused with 4/5 persons came to his property and sealed a portion thereof. He was directed by the accused to meet him in his office at Deepali Chowk 4/5 days later, he went to the office and met Deputy Director Anand Prakash Sharma, who advised him to meet the accused. Thereafter, he met accused and asked him as to how the premises could be desealed. Accused told him that it will cost him Rs. Four lacs as illegal gratification for getting the premises desealed. Accused also advised him to sit back and wait for sometime, when the matter can be sorted out for a lesser amount. He took complainant's phone number and made a call to him on 26.9.2011 asking him to reach his office on 28.9.2011 with Rs. 70,000/ to Rs. 80,000/. On 28.9.2011 he received a call from the accused at about 8.30 AM asking him to met him at Vikas Sadan, INA. He received another call from the accused an hour later asking him if the money had been arranged. On being cross examined by Ld. defence counsel on this part of his testimony he deposed that he had purchased a portion of the property in 2004, one portion in 2005, another portion in 200708 and the second floor in State Vs. Ravinder Kumar Sharma Page 24 of 42 25 200910. He admitted that he has been using the property for commercial purpose, though the same was residential. He denied knowledge that property had been sealed in 2004 and then in 2006. He denied the suggestion that he had unauthorisedly broken the seal, which had been previously affixed. He denied the suggestion that he was not directed by the accused to meet him in his office 4/5 days later or that he did not go to DDA office 4/5 days later or met Anand Prakash, Deputy Director. He also denied that he did not meet the accused on that day or that no demand of Rs. 4 lacs was made. He also denied that there was no demand of Rs. 50,000/ to Rs. 60,000/. He stated that accused had made the first phone call to him. It was put to him that on 26.9.2011 at about 5.00 PM he had made a phone call to the accused and they spoke for about 240 seconds. He was confronted with his statement made to the IO where manner of stating about the phone call is differently mentioned.
12.2 Referring to the testimony of Anand Prakash (PW3), it is pointed by Ld. defence counsels that he has denied meeting the complainant ever.
12.3 Ms Reeta Sharma Ld. Additional PP also referred to the Call Detail Record Ex. PW4/C, which is the record pertaining to Phone Call No. 8802233553 subscribed in the name of son of the accused and used by the accused. The Call Detail Record of 26.9.2011 records two calls made between phone of accused and the complainant's number at State Vs. Ravinder Kumar Sharma Page 25 of 42 26 5.02 PM and 5.20 PM lasting 240 seconds and 280 seconds respectively 12.4 The evidence as notice above especially the statement of complainant draws corroboration from documentary evidence contained in file Ex. P1 and the Call Detail Record Ex. PW4/C. Sealing of a portion of complainant's property on 17.8.2011, as orally deposed by the complainant is corroborated from the office notes in file Ex. P1. Note dated 17.8.2011 on page 13N of file Ex. P1 records a note by the accused that portion of the properties of complainant were sealed by him on that day. This note is exhibited as Ex. PW5/A. Signature of accused have been identified by his superior H.K. Kapoor ( PW5 ). This establishes beyond doubt that accused visited the premises of the complainant on 17.8.2011. Oral testimony of complainant regarding accused calling him to his office 4/5 days later and making a demand of bribe on that day is something which transpired only between complainant and the accused. There can be no corroboration to this fact. The court shall have to weigh the testimony of complainant and other attending circumstances to reach a conclusion, whether he was speaking the truth or not. He has further deposed that on 26.9.2011 accused made a phone call and reiterated the demand, advising him to meet and pay the bribe. The fact of telephonic talks between the two is corroborated from the Call Detail Record Ex. PW4/C, which records two communication at 5.02 and 5.20 PM of the duration of 240 and 280 seconds respectively. Thus the oral testimony of complainant regarding State Vs. Ravinder Kumar Sharma Page 26 of 42 27 the visit of accused to his premises on 17.8.2011 and telephonic talk between the two on 26.9.2011 is corroborated from documentary evidence. This lends credence to his oral testimony. 12.5 The cross examination of defence indicates that they even disputed the visit of accused to complainant's property on 17.8.2011. Even if it is held that complainant made the first call on 26.9.2011, it cannot be disputed that on 26.9.2011 between 5.00 PM to 5.30 PM accused and complainant spoke for about nine minutes with each other. It is complainant's version that during this talk accused demanded bribe from him. However, accused has not tendered any explanation for having talked for about nine minutes to a person, whose property he had sealed and whose file he was seized of. A public servant speaking to the person against whom he intends taking action, from a phone not subscribed in his own name raises a suspicion against his conduct. Complainant's testimony that accused made telephonic demand on 26.9.2011 assumes further significance in light of the fact that on 22.9.2011 he had recommended desealing regularisation of adjoining property, vide note Ex. PW5/B in file Ex. P2 and he had dealt with file Ex. P2 on 26.9.2011 also. It may be at the cost of repetition to mention here that adjoining property bearing No. 199 was similarly situated to complainant's property, as the entire area stood denotified and transferred to MCD. Denial by Anand Prakash (PW3) of having ever met the complainant does not cause any dent in the case of prosecution, as it is practically not State Vs. Ravinder Kumar Sharma Page 27 of 42 28 possible for a public servant to be remembering having met all the pubic persons, especially when the public servant is in public dealing sector like DDA. Complainant's testimony that on 28.9.2011 he received a call from the complainant at about 8.30 AM is corroborated by the Call Detail Record Ex. PW4/C, which records an out going call from the phone of the accused to the complainant's number at 8.55 AM and then incoming call at 9.02 AM and then another at 9.20 AM and then at 12.43 PM and more calls around the time of trap. In such circumstances, I have no reasons to disbelieve the oral testimony of complainant that accused made demand of bribe from him during personal meeting, which was subsequently reiterated on phone on 26.9.2011
(ii) Demand and Acceptance of Rs. 50,000/ as bribe on 28.09.2011, at the time of trap.
13.1 To prove demand and acceptance of bribe at the time of trap, the prosecution has relied upon testimony of complainant Satish Aggarwal (PW13) and panch witness Praveen Maan (PW16). Satish Aggarwal (PW13) has deposed that on 28.9.2011 he received a phone call from the accused for meeting him at Vikas Sadan with bribe amount. He instead went to PS ACB with one Jatin. They met RO/Inspector Ranbir singh and on his asking wrote complaint Ex. PW10/A. RO associated a panch witness who signed the complaint. Complainant made available GC notes of Rs. 50,000/. RO conducted the preraid proceeding and demonstrated the use of phenolphthalein powder. He instructed the State Vs. Ravinder Kumar Sharma Page 28 of 42 29 panch witness to remain close to the complainant and give a signal on money being handed over on demand. At about 2.30 PM, Raid team left PS ACB and reached Vikas Sadan. During this period complainant had received several phone calls from the accused. He was told by accused to reach D Block, Vikas Sadan. They reached D Block where they met accused who took them to the Reception and finding large crowd he took them to parking area where his Wagon R car was parked. They all sat in his car. Accused sat on the driver's seat. He sat on the navigator seat and panch witness sat on the rear seat. While seated inside the car, accused asked him for the bribe amount and he handed over the treated GC notes to him, after taking them out from his left pocket, which accused accepted in his right hand and started counting the same. Accused told him that he had already dealt with his file and the desealing of the premises had been ordered. On being crossexamined by ld. defence counsel, he stated that he had not told the IO about the seating positions in the car of the accused. He had not told the IO that while seated inside the car, accused asked him for bribe amount and he had handed over the treated GC notes to accused after taking out from his left pocket in the right hand of the accused, who started counting the same. He denied the suggestion that he came to know that accused was leaving Vikas Sadan or that he rushed to the parking with panch witness or that they entered his car without seeking his permission or that he exchanged pleasantries or that he forcibly thrust the treated GC notes in the hands of State Vs. Ravinder Kumar Sharma Page 29 of 42 30 the accused, which he pushed away. Subsequently, in an answer to the court question on 26.11.2014, witness stated that accused had accepted the treated GC notes in his left hand. He explained the error of left/ right hand in his statement made to the IO Ex.PW13/DA, on the ground that the same was printed from the computer. The statement made by him in the court on 26.11.2014 was correct and he had similarly stated to the IO. 13.2 The other witness to these proceedings Praveen Maan (PW14) was declared hostile and has apparently made a false statement in the court. He has deposed that searching for the accused, he and complainant went to the parking of Vikas Sadan, where accused was sitting in his Wagon R Car on the driver's seat. Complainant entered the car and sat on the left side front seat and he sat on the rear seat. They both spoke to each other about well being and then complainant tried to hand over treated GC notes to accused, which he pushed away. On being crossexamined by Ld. Addl. PP, he did not support the prosecution case. The story put forth by the defence through Panch Witness and also stated by the accused in his statement u/s 313 Cr.P.C. is totally untenable, improbable and plastic. The degree of probability of complainant and panch witness reaching Vikas Sadan to meet accused and looking for him in the staff parking and finding him sitting in the car is abysmally remote. The conduct of accused in letting two strangers enter and occupy his car is too difficult to be accepted, as a mere co incidence.
State Vs. Ravinder Kumar Sharma Page 30 of 42 31 13.3 In his statement u/sec.313 Cr.P.C., while answering question no.15, accused stated that complainant reached the staff parking of Vikas Sadan and sat in his car along with another person. While answering question no.16, he stated that complainant tried to give him money, which he pushed back.
13.4 From the evidence as noticed above, it can be safely concluded that entry of the complainant and panch witness in the car of the accused was not forced. The same was a friendly entry. The defence of the accused that complainant was following him and entered the car without any invitation is belied from the circumstances deposed by both the witnesses. Exchange of pleasantries, as suggested to the complainant and deposed by the panch witness indicates that complainant's visit was a welcome visit and not unwarranted or forced visit. The conduct of the accused in welcoming and giving a friendly entry to the complainant in his car is contrary to his stand that he was avoiding the complainant since the morning. Personal car of any individual is a totally private space. Permission by a public servant to a public person, whose file he is seized of, to enter such private space is irreconcilable to the theory of innocence of accused. There is no explanation by the accused, as to why he permitted the complainant to enter his car. No public servant would hold an official meeting in his personal car, with a person whose file he is seized of.
13. 5 Recovery of file Ex. P2 at the time of trap from the car of the State Vs. Ravinder Kumar Sharma Page 31 of 42 32 accused which contained letter Ex. PW3/DB, vide which complainant's property had been recommended to be reviewed from the demolition drive, makes the complainant's version regarding demand and acceptance of bribe in the car to be an acceptable testimony viz a viz the defence of the accused. The complainant's testimony on oath, that accused demanded & accepted bribe while seated inside the car, is thus credible. Panch witness might not have supported and corroborated complainant's testimony as regards demand & acceptance of bribe, but his hostility would not dilute complainant's testimony, which finds support in the conduct of accused and attending circumstances. Moreover, panch witness is an untrustworthy witness, who has made false statement before the court.
13.6 It is settled law that demand of bribe may or may not be express. The facts on record proved in the present case, which are not even disputed by the defence are that the complainant and panch witness ( who was a stranger to the accused ) sat in his car and he did not object to their entry. There is no evidence or even suggestion that accused objected to their entry in the car. Court notice can be taken of the fact that all cars can be locked from inside to block the entry of a stranger. In such circumstances, the mere fact of accused permitting complainant and panch witness to sit in his car can be read as an attempt by him to demand and accept bribe. The Hon'ble High Court of Delhi in Ram Karan Pathak Vs State decided on 1.5.2015 held as under: State Vs. Ravinder Kumar Sharma Page 32 of 42 33 At this stage, I may observe that to indulge in corruption and demand a bribe is not only a criminal act, but it also has a moral stigma attached to it. It is a taboo, about which people who indulge in such conduct, would not openly talk. There is shame and a feeling of guilt attached to it. A person who demands bribe or illegal gratification, is likely not to make an express and brazen demand for money repeatedly, having earlier conveyed his demand to the person from whom he expects illegal gratification. Even when he/she wishes to make the demand again, or to remind the person of his earlier demand, he/she is more like to convey his/her subsequent demand/reminder, without using explicit words to convey the same, and to convey the demand in a convoluted manner. This is natural human conduct and trait.
I, thus, hold that prosecution has proved beyond reasonable doubt that accused demand bribe from the complainant while seated inside his car. 13.6 The contradictions in present case regarding use of left or right hand by the accused while seated inside the car has been set to rest by the complainant while answering the court question on 26.11.2014. Use of left hand by the accused for accepting bribe is supported by logic also, as complainant was sitting on his left inside the car. In such circumstances, the natural reaction of a person sitting on the right would State Vs. Ravinder Kumar Sharma Page 33 of 42 34 be to extend his left hand towards a person sitting on his left. I, therefore, hold that prosecution has established beyond reasonable doubt that accused demanded and accepted bribe in the shape of treated GC notes from the complainant while seated inside his car in the staff parking of Vikas Sadan, INA.
(iii) Recovery of treated GC notes from the possession of accused on 28.09.2011.
14.1 To prove recovery of treated GC notes, prosecution case rests upon the testimony of complainant (PW13), panch witness (PW16) and raid officer (PW19). Complainant Satish Aggarwal (PW13) has deposed that on acceptance of the treated GC notes by the accused, panch witness gave the predetermined signal and the raiding team arrived. Raid Officer disclosed his identity and challenged the accused that he had accepted bribe. Panch witness informed the RO that accused had demanded & accepted bribe from complainant and had kept the same in right pocket of his trouser. Raid Officer offered his search and that of his raiding party, which accused declined. On instructions of Raid Officer, panch witness searched the accused & recovered treated GC notes from right pocket of trouser of the accused. Serial Numbers of the recovered GC notes were tallied with the serial numbers previously written in the preraid report, which matched. Right hand of the accused was washed with a water type solution, which turned pink and wash was transferred in two bottles. On State Vs. Ravinder Kumar Sharma Page 34 of 42 35 being crossexamined by Ld. Addl. PP, witness deposed that recovery was not from the pocket of accused and was from his right hand. On being crossexamined by ld. defence counsel, he stated that after 28.09.2011 he had once again gone to PSACB, when his statement was again recorded regarding right and left hand wash of the accused. He further stated that accused had not kept treated GC notes in his pocket but had kept the same in his left hand. He explained that he had inadvertently stated in the court on 10.07.2014 that accused had kept the money in pocket of his trouser. On a court question asked on 26.11.2014, witness stated that recovery of treated GC notes was effected from the left hand of accused and wash was also taken of the left hand (sic land hand). On being cross examined by ld. defence counsel, he explained that error regarding left or right hand in his statement Ex.PW13/DA had occurred because IO had taken the print out from his computer. His statement recorded in the court on 26.11.2014 was correct and he had made similar statement to the IO also. He denied that no recovery was effected from the accused. 14.2 Panch witness Praveen Maan (PW16) has deposed that he had been instructed by the RO that as and when complainant hands over the treated GC notes to the accused, he should give a signal by hurling his hand thrice over his head. He has further deposed that while sitting inside the car of accused complainant tried to hand over treated GC notes to the accused, which accused pushed away and GC notes fell inside his car. He came out of the car and gave the predetermined signal. State Vs. Ravinder Kumar Sharma Page 35 of 42 36 Members of raiding team came, recovered the treated GC notes and they all then returned to PSACB. He was crossexamined by Ld. Addl. PP but did not support the case of the prosecution. On being crossexamined by ld. defence counsel, he stated that GC notes were not recovered from the accused.
14.3 IO/Inspector Ranbir Singh (PW19) has deposed that he had instructed the panch witness to give signal only when the accused demands & accepts the treated GC notes. At about 03:18 PM, he received signal from the panch witness and rushed near the Wagon R car. Team rushed to the Wagon R Car and asked the panch witness as to what had happened and he had told the raiding team that accused had demanded & accepted Rs.50,000/ and kept the same in his left hand. He offered his search to the accused, which he declined and then on his instructions, panch witness recovered bribe money from the left hand of accused. Serial Numbers of recovered GC notes were compared with the Serial Numbers mentioned in preraid report, which matched. The recovered GC notes were seized. Left hand wash of accused Ravinder was taken in the colourless solution of the Sodium Carbonate, which turned pink. Pink solution was transferred in bottles, sealed and seized. On being crossexamined by ld. defence counsels, he denied the suggestion that panch witness had told him that complainant tried to hand over the bribe to the accused, which the accused pushed away and bribe money fell on the door mat, where complainant was sitting. He denied the suggestion State Vs. Ravinder Kumar Sharma Page 36 of 42 37 that he did not offer the search of raiding team. He denied the suggestion that panch witness had not been given any instruction or that recovery was not effected from the left hand of the accused. He also denied that hand wash proceedings were not done at the spot.
14.4 On the basis of evidence of the 3 witnesses noticed above, it can be inferred that the complainant's testimony is corroborated by the testimony of raid officer Inspector Ranbir Singh. Panch witness is not a credible witness and his testimony shall have to be ignored. Complainant and Raid Officer have corroborated each other, as regards the recovery of treated GC notes from the left hand of accused, comparison of their serial number with the preraid report, hand wash proceedings of the accused and seizure of treated GC notes, as well as the hand wash bottles. It is further the case of the prosecution that hand wash bottle LHWI when sent to FSL was reported to contain phenolphthalein powder. I, therefore, hold that prosecution has proved beyond reasonable doubt recovery of treated GC notes from the possession of accused Ravinder Kumar Sharma.
15. For the reasons stated in paras No. 12 to 14, I am of the opinion that prosecution has proved beyond reasonable doubt that charge framed against the accused of having demanded Rs. 50,000/ to Rs. 60,000/ as bribe from the complainant and having accepted Rs. 50,000/ as bribe other than legal remuneration as a motive or reward for showing favour in doing official act i.e. for opening the seal of his State Vs. Ravinder Kumar Sharma Page 37 of 42 38 house. Accused thus obtained pecuniary advantage from the complainant by use of corrupt means abusing his position as JE, DDA. He is thus liable to be punished for offences punishable u/s 7 and 13 of the PC Act.
16.1 The law laid down in Kali Ram's case is not applicable as I am of the opinion that no two views are possible in this case. Reliance upon Mousam Singh Roy's case is also misplaced as the degree of proof is substantially high and the testimony of complainant, attending circumstances and the raid proceeding establish the guilt of the accused beyond reasonable doubt. I also do not find merits in the arguments of Ld. defence counsel that complainant has made inconsistent statement at various stages. The inconsistency in his testimony as regards accused using right and left hand for accepting bribe was explained by him in his testimony dated 26.11.2014, while answering the court question. He had also explained that error in his statement recorded by the IO was the result of computer print out taken by the IO. The improvements pointed out are actually detailed explanation to the circumstances. These explanation find corroboration from the record. I, therefore, find him to be a natural witness who has not repeated statements u/s 161 Cr. P.C. in a parrot like fashion and has deposed on the basis of his memory. Reliance upon Suraj Mal's case is, therefore, misplaced. 16.2 Another factor greatly high lighted during the testimony of witnesses is regarding the calls made inter se between complainant and State Vs. Ravinder Kumar Sharma Page 38 of 42 39 the accused. It is suggested that complainant had given 'missed' calls to the accused and he called back in response to such 'missed' calls. It is also argued that the complainant was the one who made the first call to the accused. I have given my thoughtful consideration to this argument. There ofcourse is no evidence on record of the 'missed' calls. Therefore, whether accused responded to the 'missed calls' is a matter of conjecture. However, the argument that he responded to 'missed' call of complainant is incongruent to his defence, that complainant was pestering with repeated calls and he was avoiding him. If that were the situation, accused would not have called back on 'missed' calls of a person, who was pestering him for some favour. Attending a first call of such a person can have justification, but repeatedly speaking to him throughout the day and not blocking his calls or responding to his calls establishes that accused was not avoiding the complainant but was rather pursuing him, apparently for payment of bribe demanded by him. I, therefore, find no merits in the defence raised by the accused. 16.3 It has also been argued that there is no evidence as to how the predetermined signal was given by the panch witness and as to how the RO could see the same, when transaction happened inside the car. The argument is relevant and valid. However, the RO who had reacted to the signal has not been cross examined on this aspect. In the absence of affording opportunity to the RO to explain the circumstances, in which he read the signal, defence can not be permitted to raise this argument. State Vs. Ravinder Kumar Sharma Page 39 of 42 40
17. For the reasons stated in paras 9 to 16, I am of the opinion that prosecution has proved its case beyond reasonable doubt. Accordingly accused is convicted for the offences punishable u/sec. 7 of the PC Act and u/sec.13 (i) (d) of the PC Act punishable u/s 13(2) of the PC Act.
Announced in the open Court (NAROTTAM KAUSHAL)
on 28.05.2015 SPECIAL JUDGE (PC ACT)05
(ACB), TIS HAZARI COURTS
DELHI
State Vs. Ravinder Kumar Sharma Page 40 of 42
41
IN THE COURT OF SH. NAROTTAM KAUSHAL,
SPECIAL JUDGE (PC Act)05, (ACB), (CENTRAL),
TIS HAZARI COURTS, DELHI
Corruption Case No. : 30/2013
FIR No. : 07/2011
Case Identification No. : 02401R0657782013
Police Station : Anti Corruption Branch
Under Section : 7/13 of Prevention of
Corruption Act, 1988
STATE
Versus
Ravinder Kumar Sharma
S/o Late Sh. Shristi Dev Sharma
R/o 52A, PocketI, Platinum Enclave,
Sector 18, Rohini, Delhi.
ORDER ON SENTENCE
1. Vide judgment dated 28.05.2015, Ravinder Kumar Sharma stands convicted for offences punishable u/sec.7 & 13(2) of the Prevention of Corruption Act (hereinafter called as 'the PC Act'). Vide the present order, I shall sentence him for the aforesaid offences.
2. Ms Reeta Sharma, Ld. Addl. PP has prayed for a stringent sentence. It is submitted that the convict who was working as JE in DDA indulged in corrupt activity. He demanded and accepted bribe from one Satish Kumar Aggarwal for desealing his property bearing No. 198, Pocket 19, Sector 24, Rohini. His conduct and action do not deserve any lenient State Vs. Ravinder Kumar Sharma Page 41 of 42 42 approach. Imposition of high fine, to serve as a deterrent has also been prayed for.
3. Sh. S.K. Kaushik, Ld. counsel for the convict has prayed for a lenient approach. It is submitted that convict is a 55 years old and is suffering from Depression since 2010. Prayer has also been made for taking lenient approach, as regards the imposition of fine. It is further submitted that convict remained in custody from 29.09.2011 to 28.11.2011, during investigation.
4. I have heard the Ld. counsels. Considering the mental health of convict; I am inclined to take a lenient view. I am of the opinion that interest of justice shall be served by sentencing the convict to undergo rigorous imprisonment for a period of two years, for the offence punishable u/s 7 of the PC Act. He shall also be liable to pay a fine of Rs. 10,000/ and in default of payment of fine, he shall undergo simple imprisonment for a period of six months. As regards the offence punishable u/s 13 (2) of the PC Act convict shall undergo rigorous imprisonment of three years and is also held liable to pay a fine of Rs. 15,000/ and in default of payment of fine, he shall undergo simple imprisonment for a period of six months.
5. Both the sentences shall run concurrently. Convict shall also be entitled to benefit of section 428 Cr PC.
Announced in the open Court (NAROTTAM KAUSHAL)
on 30.05.2015 SPECIAL JUDGE (PC ACT)05
(ACB), TIS HAZARI COURTS
DELHI
State Vs. Ravinder Kumar Sharma Page 42 of 42