Delhi District Court
State vs Sandeep Sharma on 13 July, 2015
1
IN THE COURT OF SH. NAROTTAM KAUSHAL,
SPECIAL JUDGE (PC Act)05, (ACB), (CENTRAL),
TIS HAZARI COURTS, DELHI
Date of Institution : 09.09.2014
Date of reserving the Judgment : 02.07.2015
Date of pronouncing the Judgment : 08.07.2015
Corruption Case No. : 14/2014
FIR No. : 15/2012
Case Identification No. : 02401R0443532014
Police Station : Anti Corruption Branch
Under Section : 7/13 of Prevention of
Corruption Act, 1988
STATE
Versus
Sandeep Sharma
S/o Late Shri Shiv Shankar
R/o 1/1913A, Moti Ram Road,
Mansarover Park, Delhi.
JUDGMENT
1.1 Mahavir Sharma S/o Late Sh. Rattan Singh lodged a complaint at PS ACB against one Sandeep Sharma, working as Reader in the court of SDM, Nangloi. Mahavir Sharma was working as Sub Inspector in Delhi Police and he had a dispute with his nephews namely Anand Pratap and Raj Kumar, with respect to unauthorised construction on a common wall. Matter was pending in the court of SDM, Nangloi, which court directed both the parties to remove the unauthorised construction. Alternatively, MCD was directed to remove the State Vs. Sandeep Sharma Page 1 of 29 2 unauthorised construction and claim damages from the parties. The final order was passed on 28.6.2012. Order had not been implemented despite lapse of two months. On 3.9.2012, complainant met Sandeep Sharma, Reader of the SDM, who informed that a reminder shall have to be issued to MCD, Rajouri Garden, for which he demanded Rs. 2,000/. Complainant then made a complaint at PS ACB on 7.9.2012, which was marked to Inspector Kailash Chand ( hereinafter called as RO ) for necessary action. He associated panch witness Pawan Kumar in the proceedings. Contents of the complaint were explained to the panch witness, who satisfied himself after reading the complaint and speaking to the complainant. Complainant made available four GC notes of Rs. 500/ each. Serial numbers of currency notes were recorded and they were smeared with phenolphthalein powder. Use of phenolphthalein powder was demonstrated and explained to the complainant and panch witness. They given issued necessary instructions for the raid. Raiding team left PS ACB at about 1.50 PM and reached the office of SDM, Nangloi. Trap was laid, wherein accused Sandeep Sharma was apprehended, while demanding and accepting bribe money of Rs. 2,000/. Treated GC notes were recovered from his possession. Comparison and identification of GC notes was carried out. Hand wash proceedings were carried out. Shirt pocket of the accused was also washed. Case property was seized and sealed. Rukka was prepared. Further investigation was taken over by IO/Inspector Yash Pal Singh. IO State Vs. Sandeep Sharma Page 2 of 29 3 got the hand wash /pocket wash samples examined at FSL. Call detail records of phones of complainant and accused were collected. Sanction for prosecution was sought. Finding sufficient material against the accused, he was charge sheeted. Challan was filed in the court on 09.09.2014.
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 Sandeep Sharma. He was summoned to face trial. On his appearance 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 14.11.2014, to which accused pleaded not guilty and claimed trial.
4.1 Prosecution in support of its case examined 16 witnesses. Complainant Mahavir Sharma (PW4) fully supported the case of prosecution. He proved demand, acceptance and recovery of GC notes from the accused. Panch witness, Pawan Kumar (PW8) deposed that he was with the complainant at the time of raid. He has deposed about the preraid proceedings and corroborated the complainant on that aspect. He has further deposed that at the time of trap complainant asked the accused about his work and was told that his papers were not ready. He then handed over treated GC notes to the accused, which he accepted. State Vs. Sandeep Sharma Page 3 of 29 4 He has further deposed about the recovery of treated GC notes, phenolphthalein test proceedings and seizure of the case property. RO/Inspector Kailash Chand (PW16 ) has deposed about the preraid proceedings, demonstration of use of phenolphthalein powder and instructions to the complainant and panch witness about the trap. He further deposed about the recovery of treated GC notes from the possession of the accused, their seizure, phenolphthalein test proceedings, bottling of the phenolphthalein wash and preparation of raid report.
4.2 ASI Krishan Kumar (PW2) was Duty Officer at PS ACB. He has proved recording of FIR Ex. PW2/A. HC Jai Krishanan (PW7) was the Incharge, Motor Transport Section of PS ACB. He has proved Log Book entry of the vehicle used for raid. Ct. Krishan Kumar (PW12) had carried rukka from the spot to PS ACB, got the FIR lodged and handed over copy of FIR to IO/Inspector Yash Pal. He has further deposed about deposit of exhibits at FSL, Rohini. Ct. Anil Kumar (PW9), HC Chandra Singh (PW11) and HC Jai Prakash (PW14) remained MHC(M) at PS Civil Lines. They have proved amongst themselves deposit of case property, sending of exhibits to FSL and collection of report & remnants from the FSL. They have deposed that the case property while at malkhana and during transit had remained untampered.
4.3 Pradeep Kumar (PW5) was the SDM, Punjabi Bagh and had passed order in case titled as State Vs Raj Kumar & Anr. Copy of the order State Vs. Sandeep Sharma Page 4 of 29 5 passed by him is Ex. PW4/K. Another copy of the same order Ex. PW4/L, was proved by him to be carrying correction in the addressee at Sr. No. 1. He further deposed that correction in the address of Executive Engineer at Sr. No. 2 of the addressees did not exist when he signed the correction in addressee at Sr. No. 1. He specifically deposed that cancellation of words 'Najafgarh Zone' and mentioning of the words 'Rajouri Garden' were introduced after his signatures.
4.4 Rajeev Ranjan (PW3) is Nodal Officer, Tata Tele Services Ltd. He proved Call Detail Records of phone No. 9213597992, subscribed in the name of Ms Sonali Sharma W/o accused Sandeep Sharma. Vishal Gaurav (PW1) is Nodal Officer, Bharti Airtel Ltd. He has proved Call Detail Records of phone No. 9810640326, subscribed in the name of Mahavir Sharma S/o Rattan Singh.
4.5 Inspector Yash Pal (PW13) was the IO, who had taken over investigation at the spot. He proved handing over of case property with seizure memos by the RO to him. He prepared site plan to the spot, interrogated the accused and arrested him. He proved medical examination of the accused at Aruna Asaf Ali Hospital. He recorded the statement of witnesses, supplementary statement of the complainant and collected copy of order dated 28.6.2012 from the complainant. He sent exhibits to FSL, Rohini. Further investigation was transferred to Inspector Pankaj Sharma (PW15). He collected the Call Detail Records of the phone of the complainant and the accused. He collected the State Vs. Sandeep Sharma Page 5 of 29 6 sanction for prosecution of the accused and his biodata . On completion of investigation he submitted challan in the court.
5. Incriminating evidence was put to the accused. He did not dispute that complainant was contesting the case in the court of SDM, Punjabi Bagh, wherein order Ex. PW4/K was passed, directing the parties to remove unauthorised construction. He also admitted that Executive Engineer, Najafgarh Zone had been directed to remove unauthorised construction, if the parties failed to do the same within seven days. He also admitted that complainant made inquiries from him about compliance of the order passed by SDM, as unauthorised construction had not been removed. He denied that he demanded Rs. 2,000/ as bribe for issuing a reminder to MCD for implementation of order dated 28.6.2012. He denied any telephonic demand from the complainant on 6.9.2012. He denied the preraid or post raid proceeding. He denied the demand of bribe from the complainant at the time of trap. He, however, admitted meeting the complainant and one more person on 7.9.2012. He claimed that complainant had stealthily put GC notes in his pocket. He denied hand wash proceeding or shirt pocket wash proceeding. He also disputed bottling of the washes, seizure of shirt and washes. He disputed the post raid proceedings and site plan. He claimed that he had been falsely implicated. He further claimed that alteration made in order Ex. PW4/L were made at the oral directions of the SDM, who had thereafter put his initials. He disputed the FSL report. He claimed that sanction has State Vs. Sandeep Sharma Page 6 of 29 7 been wrongly granted. He admitted that phone subscribed in the name of his wife was used by him. He admitted the calls received from the phone of the complainant. He further stated that he had been falsely implicated. Complainant wanted him to make phone call to JE concerned for removal of the unauthorised construction. He had refused to make any such effort, as the same was beyond his competence. On 7.9.2012, complainant met him with similar request and suddenly put something in his pocket. He was immediately apprehended by some persons. He sought opportunity to lead defence evidence and examined one Beer Babu as DW1.
6. Beer Babu (DW1) has deposed that he was working as Civil Defence volunteer and was deputed at the office of Tehsildar, Punjabi Bagh. On 7.9.2012 he had been called by the accused for doing some photocopy work. He was present in the room of accused, when one person thrust his hand in the pocket of the accused. Accused protested. One person instructed him to leave the room. At about 3.00 to 4.00 PM he addressed a complaint to Superintendent, SDM Office, Punjabi Bagh, Nangloi, copy whereof was Ex. DW1/A.
7. Shri Balbir Singh, Ld. Additional PP has argued that prosecution case is fully proved in the testimony of complainant Mahavir Sharma (PW4). His testimony has been corroborated on all material aspects by panch witness Pawan Kumar (PW8). Recovery of treated GC notes is further corroborated by RO/Inspector Kailash Chand (PW16). State Vs. Sandeep Sharma Page 7 of 29 8 Right hand of the accused and his shirt pocket when washed with Sodium Carbonate Solution turned pink, further confirming that the treated GC notes were handled by him and kept in the pocket. Telephonic communication between complainant and the accused, proved by their respective call detail record, further supports the complainant's testimony. Sanction for prosecution has also been proved. Referring to the testimony of defence witness Beer Babu, it is argued that defence has admitted recovery of treated GC notes from the pocket of accused. Only issue left for the court to examine is whether the acceptance was conscious or forcible. Complainant and panch witness having deposed that acceptance of treated GC notes was conscious. Prosecution case is ratified by defence also. The fact of over writing address of addressee No. 2 in copy of order Ex. PW4/L has been proved in the testimony of SDM Pradeep Kumar (PW5). There was no suggestion to the SDM that accused has been falsely implicated.
8.1 Sh. R.P. Shukla, Ld. defence counsel has argued that there is no charge framed against the accused of having forged the address of addressees in the copy of order, Ex. PW4/L. There is also no allegation that copy Ex. PW4/K was sent at the wrong address, necessitating another copy to be sent. Moreover, delay in implementation of order dated 28.6.2012 had not been brought on record by the complainant by moving any application. It was within the scope of power of SDM to have got the order implemented or to have ordered reminder to be issued. State Vs. Sandeep Sharma Page 8 of 29 9 Complainant having not proved any application with such a prayer, had no occasion to pay bribe to the accused, who was not competent to deal with the execution of order.
8.2 It is next argued that FIR Ex. PW2/A is ante timed. Referring to the testimony of Ct. Krishan Kumar (PW12), it is argued that he claims to have reached PS ACB at about 7.30 PM with the rukka. Contrary to the testimony of this witness ASI Krishan Kumar (PW2) has deposed that FIR was lodged at 6.40 PM. Thus the FIR is ante timed. It could not have been written at 6.40 PM, when the rukka reached the PS at 7.30 PM. It is next argued that no proceedings were carried out at the spot i.e. SDM's office. Referring to the testimony of panch witness Pawan Kumar (PW8), it is argued that he has admitted having left the spot 25 minutes after the trap. This witness has further deposed that they had reached the spot at 3.30 PM and had remained there, in all for about 40 minutes. If that be so IO's testimony of preparing the Arrest Memo at 7.15 PM at the spot is falsified. There is no explanation as to why the accused was medically examined at 10.30 PM, when he had been taken away from his office, 40 minutes after 3.30 PM. It is also argued that the panch witness has deposed that the hand wash bottles were not sealed at the spot. The arrest memo was prepared at PSACB. Papers slips pasted on the bottles containing the washes were signed by him at PS ACB and bottles were sealed at PS ACB. Shirt pulanda was also prepared and sealed at PSACB. His signatures on the pocket of the shirt were also obtained at PS ACB. It State Vs. Sandeep Sharma Page 9 of 29 10 is next argued that the sanction for prosecution of the accused Ex. PW10/A suffers from non application of mind. Competent authority had not considered the note Ex. PW10/DA, which mentioned statements by two eye witnesses namely Beer Babu and Ranjeet regarding false implication of the accused. It is, therefore, argued that prosecution has made out a false case to help the complainant, who was also a police official. No raid or trap was actually conducted. Complainant stealthily thrust GC notes in the pocket of accused and he was apprehended and brought to PS ACB. All papers were manipulated at PS ACB. Ld. defence counsel has relied upon the law laid down in OMA Vs State of Tamilnadu AIR 2013 SC 825, M.P. Singh Vs State 2014 II AD Delhi 545, Banarsi Dass Vs State of Haryana AIR 2010 SC 1589, B Jaya Raj Vs State of AP, State of Punjab Vs Madan Mohan Lal Verma AIR 2013 SC 3368, M.R. Purushotham Vs State of Karnataka 2015 (3) SCC 247 and R.P. Arora Vs State of Punjab AIR 1973 SC 498.
9. In rebuttal, Sh. Balbir Singh, Ld. Additional PP has argued that Ct. Krishan Kumar (PW12) was not given an opportunity in his cross examination to explain as to how the FIR came got to be registered at 6.40 PM, when he reached there at 7.30 PM. Duty Officer ASI Krishan Kumar (PW2) was also not cross examined on the issue of antw timing of FIR. Testimony of defence witness Beer Babu cannot be relied upon as his presence in the office of accused at the time of occurrence is totally unnatural and not corroborated. The written State Vs. Sandeep Sharma Page 10 of 29 11 intimation given by Beer Babu and Ranjeet were apparently false, that is why no further inquiry was made on the same by SDM Hukam Chand. Prosecution having dropped Hukam Chand as a witness, defence could have summoned him to prove that intimation given by Beer Babu was found to be correct. It is, therefore, argued that defence has not been able to create any doubt in the case of prosecution. Accused does not deserve acquittal and ought to be convicted.
10. I have heard Sh. Balbir Singh, Ld. Additional PP for the State and Ld. Defence Counsel Sh. R.P. Shukla and gone through the record and judgments relied upon.
11. It is not in dispute that accused Sandeep Sharma was working as Reader to SDM, Punjabi Bagh and was thus a public servant amenable to the provisions of PC Act. It was also not in dispute that C.R. Garg, District Magistate (West) (PW10) was the authority competent to remove the accused from service and thus authority competent to grant sanction for prosecution of the accused. PW10 has deposed that after examining the facts and circumstances of the case, he had granted sanction to prosecute the accused. The defence has disputed application of mind, for the reasons that PW10 had not considered note Ex. PW10/A, which referred to the statements of two eye witnesses vouching for false implication of the accused. I find no merits in this argument of Ld. defence counsel as further examination of the witness disclosed that no action was taken on note Ex. PW10/DA, indicating thereby that the same State Vs. Sandeep Sharma Page 11 of 29 12 was not inquired into and the authenticity of statements of so called eye witnesses were never tested. In such circumstances failure of competent authority to look into the note cannot be said to be fatal, to grant of sanction. Moreover, the latest pronouncement of the Hon'ble Supreme Court of India lays down that sanction cannot be said to be bad unless failure of justice has occasioned. For ready reference law laid down in State of Bihar Vs Rajmangal Ram 2014 SCC OnLine SC 277 is reproduced as under: .......... 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.............
I, therefore, find that there is no illegality or irregularity in commencement of the proceedings against the accused.
12. Having thus come to an opinion that cognizance was rightly taken and trial was rightly commenced, following question arrived for consideration.
(i) Whether there was any demand of Rs.2,000/ by the accused as bribe prior to the raid?
(ii) Whether there was any demand of Rs.2,000/ as bribe by the accused at the time of raid?State Vs. Sandeep Sharma Page 12 of 29 13
(iii) Whether accused accepted bribe at the time of trap?
(iv) Whether there was recovery of bribe amount of Rs. 2000/ from the accused?
I shall now deal with all these aspects one by one.
(i) Whether there was any demand of Rs.2,000/ by the accused as bribe prior to the raid?
13.1 To establish demand of bribe prior to raid, prosecution has relied only on the testimony of complainant ( PW4). The witness has deposed that an order was passed by the SDM on 28.06.2012 directing the parties to remove the unauthorised construction. It had also been directed that in case the parties fail to remove unauthorised construction, demolition will be carried out by MCD. Since the opposite party had not removed the unauthorised construction, despite a period of two months having lapsed, complainant went to the court of SDM on 3.9.2012 and met the accused for execution of order. Accused demanded illegal gratification of Rs. 2,000/ for sending a reminder to MCD for carrying out the demolition ordered by SDM. Complainant called up the accused on 6.9.2012 and was directed to meet on the next day with demanded amount and to collect copy of the reminder. During cross examination on this part of his testimony, he deposed that he had not moved any State Vs. Sandeep Sharma Page 13 of 29 14 application in the office of SDM for execution of the order. He had also not moved any such application in the office of MCD, Najafgarh Zone or Rajouri Garden. He admitted that reminder was supposed to be sent by SDM or under his directions. He had not met the SDM on 3.9.2012. He, however, volunteered that he had met the accused, as per protocol, as he was Reader to the SDM. He denied the suggestion that he met the accused on 3.9.2012, who informed him that he had no authority to issue reminder or that only the SDM was authorised to issue reminder. He further denied the suggestion that since accused declined to issue a reminder, he concocted a false story and implicated the accused as revenge. He also denied that there was no communication between him and the accused on 6.9.2012 or that he had given a blank call. 13.2 Call Detail Records of the phones used by accused and the complainant contain evidence of phone call having been made by the complainant to the accused on 6.9.2012 at 12.35 and 12.36 PM (Ex. PW1/D). Accused in his statement u/s 313 Cr. P.C. admits having received calls from the complainant.
13.3 On the basis of evidence as noticed above, sole testimony of complainant Mahavir Sharma (PW4) cannot be said to have suffered any dent by the cross examination. He has given justifiable explanation for having not met the SDM, at the first instance with the request of reminder. He has also not made any false claims regarding calls having been made by the accused to him. Testimony regarding calls made by State Vs. Sandeep Sharma Page 14 of 29 15 him to the accused on 6.9.2012 is corroborated by the Call Detail Records. Therefore, this court finds no reason to disbelieve the oral testimony of complainant regarding demand of bribe having been made by the accused. Mere suggestion that complainant was dissatisfied on refusal of the accused to issue reminder and, therefore, made false complaint as a revenge does not impact the testimony made under oath. The arguments of Ld. defence counsel that accused was not competent to have issued reminder and, therefore, had no occasion to demand bribe, does not cut ice with this court. It is not necessary that the public servant demanding bribe should be in a position to show favour or disfavour to the complainant. If the person seeking favour gathered an impression that the public servant is competent to grant him favour, the requirement of section 7 is sufficiently met. This view was expressed by the Hon'ble Supreme Court of India in Dhaneshwar Narain Saexna Vs Delhi Administration AIR 1962 SC 195 and Syed Ahmed Vs State of Karnataka 2012 (8) SCC 527 wherein it was held as under: Issue whether accused could or could not deliver results for which gratification is sought or given is irrelevant.
However, further evidence which has come up during trial would also be relevant to form a final opinion as regards the question posed in this para.
(ii) Whether there was any demand of Rs.2,000/ as bribe by State Vs. Sandeep Sharma Page 15 of 29 16 the accused at the time of raid?
14.1 To establish demand of bribe at the time of trap, prosecution case rests upon the testimony of complainant and panch witness. Complainant Mahavir Sharma (PW4) has categorically deposed that on 7.9.2012 he lodged complaint at PS ACB, which was marked to RO/Inspector Kailash Chander, who associated panch witness Pawan Kumar in the proceeding. RO demonstrated use of phenolphthalein powder and explained the process to be followed for trap. He instructed complainant and panch witness to remain together and further instructed complainant to hand over treated GC notes only on demand by the accused. He has further deposed that on reaching the office of SDM, Nangloi, he along with the panch witness entered the room of the accused. When he reached near the accused, he asked him if he had brought the money demanded by him. Witness was cross examined by Ld. defence counsel on this aspect. He deposed that room of accused was separate from the court and office of SDM. He denied presence of several public persons in the room of the accused. 14.2 Panch witness Pawan Kumar (PW8) has corroborated the complainant as regards the preraid proceedings. He has further deposed that on reaching the office of SDM, they did not find the accused in his seat. He was present in the court room of SDM. Complainant also went to the court room of SDM, at that time SDM was in his chamber. Shortwhile later complainant and the accused came out State Vs. Sandeep Sharma Page 16 of 29 17 of the court room and accused occupied his chair in his room. Complainant then asked him about some papers. Accused said that the papers were not ready. Witness was cross examined by Ld. Additional PP on this aspect and he denied the suggestion that the accused demanded bribe from complainant. The witness was cross examined by Ld. defence counsel and he denied the suggestion that he had waited outside, when accused and complainant came from the court room of SDM. He admitted the suggestion that RO had instructed the complainant to hand over treated GC notes only on the demand of bribe by the accused and not otherwise.
14.3 From the evidence as noticed above, it is established beyond reasonable doubt that prior to the raid, RO had instructed the complainant to hand over treated GC notes to the accused only on demand. It is also established that complainant and panch witness were issued necessary directions to remain together and for the complainant to conduct the proceeding so that panch witness could witness the same. Complainant Mahavir Sharma (PW4) has unequivocally deposed that when he met the accused a demand of bribe was made. However, he has deposed that accused asked him about having brought the money, when he had reached near the accused. Complainant is apparently silent as regards the position and location of panch witness, when the said demand was made. Panch witness Pawan Kumar ( PW8) has deposed that he had stayed behind, when the complainant went to the court State Vs. Sandeep Sharma Page 17 of 29 18 room of SDM to look for accused and they came out together and went towards the room of the accused. It is quite possible that demand was made by the accused, when the panch witness was at some distance and complainant, who had come out with him from the court room, was in his close vicinity. The communication regarding demand would be so discrete and soft and in all probability not expressed in clear words; for the panch witness, to have escaped notice thereof. However, panch witness (PW8) has deposed that complainant asked the accused if his papers were ready, to which accused answered in negative. This deposition of panch witness when read with the testimony of complainant that accused had demanded bribe for issuance of reminder, corroborates the complainant's version of demand at the time of trap. On this aspect the Hon'ble High Court of Delhi in Criminal Application No. 155/08 Ram Kumar Pathak Vs State decided on 1.05.2015 (2015 SCC On Line Delhi 9116) has held that demand of bribe in all likelihood may not be express and brazen . It has been held as under: 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 guilty attached to it. A person who demands bribe or illegal gratification, is likely not to make an express and brazen State Vs. Sandeep Sharma Page 18 of 29 19 demand for money repeatedly, having earlier conveyed his demand to the person from whom the 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 likely 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.
15. I, therefore, hold that prosecution has proved beyond reasonable doubt demand of bribe by the accused at the time of trap. Thus reliance by Shri Shukla on law laid down in the cases of M.P. Singh, Banarsi Dass, B Jaya Raj and Madan Mohan Lal Verma (supra) is misplaced, as in all those cases bribe of demand was not proved.
(iii) Whether accused accepted bribe at the time of trap? 16.1 To prove this aspect, prosecution relies upon testimony of complainant and panch witness. Mahavir Sharma (PW4) has deposed that on demand of the accused, he took out treated GC notes from his shirt and handed over the same to the accused, who accepted the same in his right hand and placed them in left upper pocket of his shirt. On being cross examined by Ld. defence counsel, he denied the suggestion that he forcibly thrust treated GC notes in the pocket of accused or that public persons present in his office had protested against his false State Vs. Sandeep Sharma Page 19 of 29 20 implication. Ld. counsel referred to communications dated 7.9.2012 purpotedly signed by one Beer Babu and Ranjeet; the witness denied any knowledge of the same. Panch witness Pawan Kumar (PW8) has deposed that when accused told the complainant that his papers were not ready, complainant handed over treated GC notes to the accused which he accepted and started counting by both hands. He has further deposed that he recovered treated GC notes from the left upper pocket of shirt of the accused. On being cross examined by Ld. Additional PP, he admitted that accused had accepted treated GC notes in his right hand and placed them in left upper pocket of his shirt. During cross examination of Ld. defence counsel he denied the suggestion that he was not in the room of the accused at that time or that he was told by the complainant that he thrust treated GC notes in the pocket of accused. He also volunteered that he had been instructed by the RO to give signal on the money being accepted by the accused.
16.2 From the evidence as noticed above, there is absolute synchronisation in the testimonies of both the witnesses that the accused consciously accepted treated GC notes from the complainant in his right hand and kept the same in left upper pocket of his shirt. Both the witnesses have denied the suggestion that treated GC notes were forcibly thrust in the pocket of accused. Defence witness Beer Babu (DW1) has of course deposed that some person thrust his hand in the upper pocket of accused, to which accused protested. However, on being State Vs. Sandeep Sharma Page 20 of 29 21 cross examined by Ld. Additional PP his presence in the room of the accused was indicated to be doubtful. He deposed that being Civil Defence volunteer, his duty was to ensure that people entered the office only when called. He has also deposed that he was deputed at the office of Tehsildar. There is nothing to justify his presence in room of accused. Thus, in my opinion, presence of DW1 Beer Babu in the room of the accused at the time of trap is not established, therefore, his testimony ought to be discarded. Moreover he has not deposed that the said person thrust money in the pocket of accused. From the synthesis of evidence as noticed above, I am of the opinion that prosecution has established beyond all reasonable doubt that accused consciously accepted treated GC notes from the complainant and kept the same in his left pocket.
(iv) Whether there was recovery of bribe amount of Rs. 2000/ from the accused?
17.1 To establish recovery of treated GC notes from the possession of the accused, prosecution relies upon the testimony of complainant, panch witness and Raid Officer. Corroboration is also sought from the phenolphthalein test. Complainant Mahavir Sharma (PW4) has deposed that on acceptance of treated GC notes by the accused, panch witness gave predetermined signal and the raiding team arrived. RO disclosed his identity and offered search of the raiding team. Panch witness then on instruction of the RO, recovered treated GC notes from the left upper pocket of shirt of the accused. Serial number of State Vs. Sandeep Sharma Page 21 of 29 22 recovered GC notes were compared with the numbers mentioned in preraid report, which matched. Right hand and left pocket of shirt of the accused were washed in some solution, which turned pink. The washes were collected in bottles. During cross examination on this aspect, Ld. defence counsel suggested that Shirt Ex. P9 did not belong to the accused or that same was not seized in his presence on that day. The suggestion was denied by the witness. It was also suggested that under shirt of the accused would have been stained with phenolphthalein powder, had the accused put treated GC notes in his pocket. There was no other cross examination of the witness on the aspect of recovery of treated GC notes from him.
17.2 Panch witness Pawan Kumar (PW8) has deposed that on instructions of the Raid Officer, he took search of the accused and recovered treated GC notes from left upper pocket of the shirt of accused. Serial number of the recovered GC notes were compared with serial number mentioned in preraid report, which matched. Hands of accused and left pocket of his shirt were washed in a solution, which turned pink. The washes were transferred in bottles. On being cross examined by Ld. defence counsel he reiterated that bottles were clean when the washes were poured in the bottles. He, however, admitted that the paper slips pasted on the bottles containing the washes were signed by him at PS ACB. Bottles and shirt pulanda were sealed in PS ACB. Shirt pocket was also signed by him at PS ACB.
State Vs. Sandeep Sharma Page 22 of 29 23 17.3 Raid Officer/Inspector Kailash Chand (PW16) has deposed that on receiving predetermined signal from the panch witness, he along with the raiding team reached the room of accused. Panch witness informed him of the sequence of events. He introduced himself to the accused and offered search of the raiding team. On his instructions panch witness recovered the bribe money from the upper front pocket of shirt of the accused. Serial number of recovered GC notes were compared and found matching with the numbers mentioned in pre raid report. Right hand of the accused and pocket of the shirt were washed in Sodium Carbonate Solution, which turned pink. Solutions were bottled. Paper slips for identification were pasted and got signed by the complainant and panch witness. On being cross examined he denied that the pink solution of wash prepared during preraid demonstration was used by him to implicate the accused and that the same wash was transferred in bottles Ex. P5 to P8. He denied the suggestion that he was carrying phenolphthalein powder in the raid box. He denied that the wash proceedings were not done at the spot or that paper slips were pasted at PSACB. He also denied that shirt was not seized at the spot. 17.4 Bottles containing right hand wash and left pocket shirt wash sent to FSL for analysis were reported to be containing phenolphthalein powder and Sodium Carbonate Solution. 17.5 From the evidence as noticed above, it can be gathered that all the three witnesses have deposed in no uncertain terms that the State Vs. Sandeep Sharma Page 23 of 29 24 treated GC notes were recovered from the left upper pocket of shirt of accused by panch witness on the instructions of RO. No effective cross examination of any of the three witnesses was done on this part of their oral testimony. Two of the aforesaid witnesses namely complainant and RO have also deposed on exactly same lines as regards the phenolphthalein test done at the spot by washing the right hand and pocket of shirt of the accused. The testimony of panch witness on this aspect revealed during cross examination that phenolphthalein test was probably not concluded at the spot and washes were done at PSACB. 17.6 I am, therefore, of the firm opinion that the oral testimonies of all the three witnesses do establish beyond reasonable doubt that the treated GC notes were recovered from the pocket of the accused at the spot. However, the phenolphthalein test proceedings, which were required to be conducted to supplement the oral testimony is not proved beyond reasonable doubt to have been carried out at the spot. A doubt about the proceedings had been created in the testimony of panch witness PW8. Nonetheless failure to prove phenolphthalein test proceeding does not vitiate the oral testimony of witness as regards recovery of treated GC notes. The Hon'ble Supreme Court in State of UP Vs Zakaullah (1998) 1 SCC 557 has held that primary evidence being clear and clinching, failure of phenolphthalein test is irrelevant. For ready reference the law laid down in the said case is as under: Such a test is conducted for his conscientious satisfaction State Vs. Sandeep Sharma Page 24 of 29 25 that he was proceeding against a real bribe taker and that an officer with integrity is not harassed unnecessarily. Similar view was taken by the Hon'ble High Court of Delhi in Criminal appeal No. 276/09 titled Raj Pal Vs State decided on 15.04.2015 (2015 SCC On Line Delhi 8716 ).
18.1 Shri R.P. Shukla, Ld. defence counsel has laid great emphasis on discrepancies in the investigation proceedings. It is argued that accused has been falsely implicated by antedated FIR. However, this argument of Ld. defence counsel is also not meritorious. The edifice of this argument rests on a stray answer given by Ct. Krishan Kumar (PW12) that he reached PS ACB at about 7.30 PM carrying the rukka. This witness in his examination in chief has deposed that he left the spot with the rukka at 5.35 PM and got the FIR registered. ASI Krishan Kumar (PW2) who recorded the FIR has deposed that Ct. Krishan Kumar handed over the rukka to him at 6.40 PM. In his cross examination ASI Krishan Kumar again reiterated that Ct. Krishan Kumar had brought the rukka at 6.40 PM. FIR Ex. PW2/A of course records the time of receiving the information at PS to be 6.40 PM. I, therefore, reject the argument that rukka had reached at 7.30 PM. There apparently is some misunderstanding or typographical error as regards deposition of PW12 in his cross examination, of having reached PS ACB at 7.30 PM. All other evidence indicates, the rukka to have reached at PS ACB at 6.40 PM. Even if it is presumed that Ct. Krishan Kumar reached PS ACB at 7.30 PM, State Vs. Sandeep Sharma Page 25 of 29 26 there apparently was no reason to ante time the FIR, by fifty minutes. It is not a case where a matter of fifty minutes or an hour would have made any difference. I, therefore, find no merits in this argument. The remaining arguments about arrest memo at the spot at 7.15 PM or medical examination of the accused at 10.30 PM, does not go to the root of the case. Material aspect in the present case being demand, acceptance and recovery of bribe; prosecution case cannot be rejected on this superficial fallacy. Defence has also not been able to project any reason for false implication of the accused. Merely because the complainant himself is a police official would be no ground to weave a web of false case against another public servant.
18.2 Much emphasis has been laid by Shri Shukla on the correction of addresses of addressee in copy of order Ex. PW4/L passed by SDM. It is argued that the correct copy Ex. PW4/L was in possession of complainant prior to 3.9.2012 and, therefore accused had no reason to demand bribe. I am afraid that the Ld. defence counsel has tried to confuse the aspect of reminder, with the issuance of copy of Ex. PW4/L. It is not the case of the complainant that bribe was demanded for incorporating correct address of Executive Engineer, MCD or for issuance of copy Ex. PW4/L. Case of complainant is that accused had demanded bribe for issuance of reminder to the concerned Executive Engineer of MCD, for implementing the order. The said reminder was of course not issued as the complainant had not paid the bribe before the State Vs. Sandeep Sharma Page 26 of 29 27 time of trap. There was, thus, no occasion to have recovered any such reminder. Reminder, if any, in writing or verbal was to be issued only on payment of bribe. That is why panch witness (Pw8) has deposed that complainant asked the accused, if his papers were ready and accused informed him that papers were not ready; thereafter, complainant handed over the treated GC notes.
18.3 Reliance by Ld. defence counsel on OMA Vs State of Tamilnadu is totally misplaced. In the cited judgment criminal courts have been cautioned not to be influenced by the view of resource persons, expressed at State Judicial Academies or National Judicial Academy. No such view/opinion has been followed by this court which might have been expressed by some resource person during any conference. There is no dispute to the law laid down in R.P. Arora's case. Complainant may be an interested witness but as discussed in above paras, conviction has not been recorded solely on the testimony of complainant. He has been corroborated on all material aspects by panch witness, the circumstances and the Raid officer.
19. For the reasons stated in paras 11 to 18, I am of the opinion that prosecution has proved the charges framed against the accused 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 08.07.2015 SPECIAL JUDGE (PC ACT)05
(ACB), TIS HAZARI COURTS
State Vs. Sandeep Sharma Page 27 of 29
28
IN THE COURT OF SH. NAROTTAM KAUSHAL,
SPECIAL JUDGE (PC Act)05, (ACB), (CENTRAL),
TIS HAZARI COURTS, DELHI
Corruption Case No. : 14/2014
FIR No. : 15/2012
Case Identification No. : 02401R0443532014
Police Station : Anti Corruption Branch
Under Section : 7/13 of Prevention of
Corruption Act, 1988
STATE
Versus
Sandeep Sharma
S/o Late Shri Shiv Shankar
R/o 1/1913A, Moti Ram Road,
Mansarover Park, Delhi.
ORDER ON SENTENCE
1. Vide judgment dated 08.07.2015, Sandeep 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. Sh. Balbir Singh, Ld. Addl. PP has prayed for a stringent sentence. It is submitted that the convict who was working as Reader in the court of SDM indulged in corrupt activity. He demanded and accepted bribe from one Mahavir Sharma for issuance of reminder for compliance of the order passed by the SDM. His conduct and action do not deserve any lenient approach. Imposition of high fine, to serve as a State Vs. Sandeep Sharma Page 28 of 29 29 deterrent has also been prayed for.
3. Sh. R.P. Shukla, Ld. counsel for the convict has prayed for a lenient approach. It is submitted that convict is a 45 years old and is a first offender. He is the only bread earner in the family. He has to support his 80 years old mother, wife and two school going children children. 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 07.09.2012 to 06.11.2012, during investigation.
4. I have heard the Ld. counsels. Considering the family circumstances of the 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 13.07.2015 SPECIAL JUDGE (PC ACT)05
(ACB), TIS HAZARI COURTS
DELHI
State Vs. Sandeep Sharma Page 29 of 29