Delhi District Court
State vs Mohinder Singh Chauhan, on 8 March, 2010
1
IN THE COURT OF SH. A. S. YADAV SPECIAL JUDGE : DELHI
C C No. 26/2000
State V/s Mohinder Singh Chauhan,
s/o Sh. Sultan Singh Chauhan,
r/o Village & PO Jakholi,
District Sonepat, Haryana
Rajiv Kumar s/o late Sh. Sant Ram,
r/o B-366, Nehru Vihar, Delhi.
Vijay Kumar s/o Sh. Ganga Dhar,
r/o 1-4, Rajiv Nagar Extension,
Begampur Barwala Road, Delhi.
F. I. R No. : 2/2000
Under Section : 7/12/13 Prevention of Corruption Act
and U/s 120-B IPC.
Police Station : Anti Corruption Branch
Date of Institution 01.6.2000
Judgment reserved on 24.2.2010
Judgment delivered on 06.3.2010
JUDGMENT
In brief the case of the prosecution is that on 17.1.2000 at 9.00 AM complainant Joginder Kumar ( PW2) went to Anti Corruption Branch and gave a complaint against accused M. S. Chauhan Meter Reader DESU as well as against two other persons regarding demand of bribe for tempering the electricity meter installed at the shop of complainant so that complainant receive electricity bill of less amount.
22 The gist of the complaint Ex. PW2/A is that complainant was running a shop under the name and style of Sant Jewellers at shop No. 14, Main Bazar , Hudson Line, Delhi. Two electricity meters bearing No. 3150941 and 0266094 were installed in his shop. On 15.1.2000 accused M. S. Chauhan along with accused Rajiv and one other person ( whose name later on revealed as Vijay ) came to his shop and after checking the meter M. S. Chauhan told complainant that his meter No. 3150941 was running very fast and he further told him that he would receive electricity bill of about 6 to 7,000/-. On that complainant told accused that he had never received bill of more than Rs. 500/-. Thereafter accused M. S. Chauhan told the complainant that this time he would receive bill of Rs. 6-7000/- and in case his Sewa Pani is done ( greasing the palm ) then he would receive the bill of Rs. 600-700 and he further told that the two other persons who were accompanying him would come after lunch and would rectify the meter and for that he demanded a bribe of Rs. 2000/-. Complainant again told accused M. S. Chauhan that he had never received bill of more than Rs. 500/-. Thereafter accused M. S. Chauhan told complainant that this time he would have to pay bill of Rs. 6 to 7000/-. On that complainant pleaded with the accused but accused was adamant. Thereafter complainant told accused M. S. Chauhan that he was busy and asked accused M.S. Chauhan to send those persons on 17.1.2000 at about 11.00 AM. Complainant was against giving of bribe. He went to Anti Corruption Branch and there his complaint Ex. PW2/A was recorded by Raid Officer Insp. M. S. 3 Sangha ( PW13 ) in presence of panch witness Sh. Ram Nath Singh ( PW5 ).
3 The prosecution case further is that complainant brought with him Rs. 1000/- i.e. 02 GC note of Rs.500/- each which he handed over to Raid Officer Insp. M. S. Sangha ( PW13 ) who got those notes checked through panch witness Ram Nath Singh (PW5) and noted down their serial number in pre raid proceedings Ex. PW13/C. The GC notes were treated with phenolphthalein powder. The raid officer explained the purpose of treating the GC notes with phenolphthalein powder to the complainant as well as to the panch witness by giving a demonstration. Thereafter the GC notes were handed over to the complainant who kept the same in the right pocket of his Safari Suit Shirt. Panch witness was instructed to remain close with the complainant and to over hear the conversation between the complainant and the person demanding the bribe amount and to given signal by hurling his hand over his head after being satisfied that bribe had actually been given.
4 The prosecution case further is that at about 10.00 AM raid officer, complainant, panch witness and Insp. Y. S. Negi along with other members of raiding team left Anti Corruption Branch for shop of complainant in Hudson Line, Delhi in a government vehicle and reached there at about 10.15 AM. The government vehicle was left at some distance away from the shop of complainant and Insp. Y. S. Negi and driver remained in that vehicle. The complainant and 4 panch witness were sent to the shop of complainant and raid officer along with remaining members of raiding party took their suitable positions outside the shop of complainant. At about 11.30 am two persons came on two wheeler scooter and entered in the shop of the complainant.
5 The prosecution case further is that at about 1200 Noon raid officer received pre determined signal from the panch witness and he along with raiding team reached inside the shop of the complainant. Panch witness informed him that accused Rajiv demanded and accepted the bribe money of Rs. 1000/- from the complainant with his right hand and kept the same in left pocket of his jacket. Raid officer challenged the accused Rajiv that he had taken the bribe of Rs. 300/- from the complainant and offered her search as well as search of members of raiding team before taking the search of accused but accused refused to do the same. On his directions panch witness recovered the bribe amount of Rs. 1000/- from the left pocket of jacket of accused and compared sr number of those recovered GC notes with the sr number mentioned in pre raid report Ex. PW13/A which tallied. Those recovered GC notes were taken into possession vide seizure memo Ex. PW2/C. The left hand wash of accused Rajiv and wash of left pocket of his jacket was taken separately in colourless solution of sodium carbonate which turned pink and the solution was transferred in four small bottles. The bottles were thereafter sealed with the seal of MS. Marked paper slips LHW- 5 I-II and LSJPW-I II were pasted on those bottles after obtaining the signature of panch witness and complainant thereon. The jacket of accused was taken off and converted into pulanda and sealed with the same seal. Raid Officer prepared the sample seal and the bottles, sample seal and pulanda of jacket were taken into possession vide memo Ex. PW2/D. Raid Officer seized the tool box vide memo Ex. PW2/E from accused Vijay Kumar Mishra who had come along with accused Rajiv on two wheeler scooter. During post raid proceedings panch witness told the Raid Officer that both the accused persons came on two wheeler scooter and after parking the scooter outside the shop they entered in the shop. Accused Vijay Kumar Mishra was carrying a black cloth hand bag. Thereafter both the accused persons tempered the electricity meter and after tempering the electricity meter was again fixed at the place from where it was removed and thereafter accused Rajiv demanded the bribe amount. Raid Officer had drawn the post raid proceedings Ex. PW2/G and prepared rukka Ex. PW13/B. 6 The prosecution case further that thereafter raid officer called Insp. Y. S. Negi ( investigating officer ) at the spot and handed over to him the custody of both the accused, case property, recovered GC notes of Rs. 1000/- exhibits of case seizure memo and copy of raid report. Investigating officer prepared site plan Ex. PW4/A at the instance of complainant and panch witness. He seized photo copies of electricity bills Mark A and B from the complainant vide memo Ex. 6 PW4/C. He arrested the accused persons vide personal search memo Ex. PW2/J1 and J2. Investigating Officer also seized the two wheeler scooter vide memo Ex. PW2/H on which accused persons come at the spot. Thereafter Investigating Officer along with accused persons went to P.S. Civil Lines where accused persons were lodged in lockup of PS Civil lines and Investigating Officer deposited the case property with MHCM PS Civil Lines. During the course of investigation Investigating Officer sent the first part of the exhibits to FSL Malviya Nagar for chemical analysis and lateron FSL report Ex. PW4/D was received vide covering letter Ex. PW4/E. During the course of investigation Investigating Officer seized one note book and meter reading ledger book from accused Rajiv kumar vide memo Ex. PW2/F. He also seized MSR Register No. 17 and attendance register vide memo Ex. PW4/F. On 28.1.2000 he formally arrested accused Mahinder Singh Chauhan vide personal search memo Ex. PW4/G. He collected the bio data Mark C, transfer order mark D and joining report Mark E vide memo Ex. PW4/H of accused M. S. Chauhan. During the course of investigation on 18.2.2000 Investigating Officer along with AE and JE of Meter Testing Department of DVB went to the shop of complainant and inspected the meter and prepared the inspection report Ex. PW4/J. He sent request for obtaining prosecution sanction and sanction order Mark G was received by him through covering letter Mark G1. After completion of investigation he prepared the challan and filed in the court.
77 After complying with the provisions of Section 207 Cr. P. C. and after hearing the Ld. Addl. PP for the state and ld. Counsel for accused persons charges were framed against the accused persons. 8 In order to prove its case prosecution examined 14 witness.
9 Thereafter statement of accused persons were recorded u/s 313 Cr. P. C wherein they denied about the demand and acceptance of the bribe amount. They claimed to be innocent and falsely implicated in this case.
10 I have heard Sh. Vipin Gupta, Sh. Ritish Sharma and Sh. K. S. Bala Shanker, ld counsels for accused persons and Sh. Alok Saxena Ld. Addl.PP for State .
11 It is submitted by Sh. Ritesh Sharma ld counsel for accused M. S. Chauhan that sanctioning authority had admitted in his cross examination that he received draft sanction proforma from the Director Vigilance, DVB along with the request letter for the grant of sanction. It is submitted by him that sanctioning authority just signed the draft proforma without application of mind. I do not find any force in the submission of ld. defence counsel . In order to prove sanction prosecution examined Sh. M. P Singh ( PW6 ) who deposed that at the relevant time he was posted as Addl. General Manager 8 ( Administration ) of erstwhile DVB and he received a request from Anti Corruption Branch along with the copies of FIR, raid report, seizure memos, statements recorded u/s 161 Cr. P. C , report of FSL to grant sanction u/s 19 of the Prevention of Corruption Act, 1988 to prosecute accused Mahinder Singh Chauhan and he had gone through the documents placed before him and applied his mind after examining the facts and circumstances of the case and he was of the view that accused be prosecuted and being competent authority to remove the accused from the service he accorded sanction Ex. PW6/B. In his cross examination he denied that the sanction order was the verbatim reproduction of the draft proforma and he accorded the sanction mechanically without application of mind. It is proved beyond doubt from the statement of sanctioning authority that he accorded the sanction after due application of mind. Reference is placed on case State of Maharashtra and ors V/s Ishvar Piraji Kelpatri & ors. 1996 Cri. L. J. 1127, where Hon'ble Supreme Court had laid down that if the Authority according sanction makes statement that while signing the order of sanction, it had personally scrutinized the file and had arrived at required satisfaction , it is not necessary to look for, that there was application of mind or not or that material on record was examined by the concerned officer or not before according sanction, especially when order prima facie shows that, he had done so. In the case C. S. Krishnamuthy V/s State of Karnataka, 2005 IV AD (SC) 141, the Apex court in para 7 of the judgment has held as under:-
9
This sanction order was proved by Mr. V. Parthasarthy, Deputy General Manager of Bangalore Telecom as PW 40 , he was competent authority to accord sanction and he accorded the sanction for prosecution of accused for the alleged offence on 28th February, 1990 as per Ex.P.83 . He deposed that S. P., CBI sent a report against the accused and he perused the report and accorded the sanction as per Ex. P.83 . He deposed that he was satisfied that there was a case for prosecuting the accused for the alleged offence. He admitted that he received a draft sanction order and a draft sanction was also examined by vigilance cell and then it was put up before him. He also deposed that before according sanction he discussed the matter with the vigilance cell. He also admitted that he was not a law man, therefore, he discussed the legal implication with a legally qualified officer in the vigilance cell. He has denied the suggestion that he did not apply his mind in according sanction. It is no doubt true that the sanction is necessary for every prosecution of public servant, this safeguard is against the frivolous prosecuting against public servant from harassment. But the sanction should not be taken as a shield to protect corrupt and dishonest public servant
12 It is submitted by ld. counsel for accused M. S. Chauhan that in fact accused M. S. Chauhan being a public servant has been falsely implicated in this case just to make out a case under Prevention of Corruption Act though admittedly he was not present in 10 the shop of the complainant on 17.1.2000. It is further submitted by him that in fact accused M. S. Chauhan did not visit the shop of the complainant along with accused Rajiv and Vijay on 15.1.2000. It is submitted by him that apart from the uncorroborated statement of complainant regarding the visit of accused M. S. Chauhan to the shop of the complainant on 15.1.2000 there is nothing on the record to show that accused M. S. Chauhan visited the shop of the complainant on 15.1.2000. It is further submitted by him that in a trap case the position of complainant is that of an accomplice and his statement cannot be taken into consideration unless corroborated in material particulars. On the other hand it is submitted by ld. Addl. PP for the state that it is proved beyond doubt from the statement of complainant and the subsequent events that accused M. S. Chauhan visited the shop of the complainant on 15.1.2000 along with accused Rajiv and Vijay and demanded bribe of Rs. 2000/- for tempering with the meter of the complainant so that complainant receive bill for less amount. In order to appreciate the submission of ld defence counsel as well as ld. prosecutor for the state it is appropriate to look at the statement of the witnesses in this regard. PW2 Joginder Singh, complainant categorically deposed that on 15.1.2000 accused M. S. Chauhan and accused Rajiv and one other person whose name he was not knowing came to his shop. Accused M. S. Chauhan inquired about the meters and accused M. S. Chauhan wanted to see the electricity meters for the purpose of taking reading and on seeing the meters accused M. S. Chauhan told him that the bill of his meter 11 would come around 6 to 7 thousand. He testified about the allegations made in the complaint. He specifically deposed that accused M. S. Chauhan told him that accused Rajiv would come to his shop in the evening on the same day and further told him to give Rs. 1000/- to accused Rajiv and he would collect the balance amount of Rs. 1000/- himself later on. He further deposed that he asked him to come on Monday i.e. on 17.1.2000. He further deposed that on 17.1.2000 he went to Anti Corruption Branch. He deposed about the pre raid proceedings. He deposed that at about 11.30 AM accused Rajiv came with one person who was carrying a leather bag on a two wheeler scooter and both of them went to see his electricity meter and they opened the said meter and reversed the reading of said meter and thereafter they installed the meter again. Thereafter accused Rajiv demanded the settled amount and thereafter he took out the smeared notes from right side pocket of his shirt and handed over to accused Rajiv who took the said notes in his left hand and kept the same in left side pocket of his jacket. Thereafter panch witness give pre determined signal and the raiding party came inside the shop. Panch witness told Raid Officer about the transaction. The Raid Officer offered his search before taking search of accused and also challenged accused Rajiv who became perplexed and thereafter on the direction of Raid Officer panch witness took out the treated GC notes from the left side pocket of Rajiv 's jacket. He deposed about the washes taken at the spot. He also deposed that one bag Ex. PX was seized and a note book and meter reading book was seized vide 12 memo Ex. PW2/F. When he was cross examined by ld. counsel for accused Vijay he deposed that bag recovered from accused Vijay was seized by the police. He identified the black colour bag Ex. PX which was seized vide memo Ex. PW2/6. He also identified the instruments kept in the bag. He admitted that the bag is not of leather but it is of cloth. It is submitted by ld. counsel for accused Vijay that in his examination in chief he stated that bag was of leather and in his cross examination he identified the bag Ex. PX but same was of cloth. It hardly matters . The fact remains that the bag Ex. PX was seized from accused Vijay. He denied the suggestion that bag Ex. PX was planted on the accused. He further denied the suggestion that accused Vijay had come to purchase cloths and he had been falsely implicated in this case.
13 The statement of complainant regarding visit of accused Rajiv and accused Vijay to the shop of complainant on 17.1.2000 is fully corroborated by panch witness Sh. Ram Nath Singh ( PW5) who specifically deposed that about 11.00 am accused Rajiv Kumar and Vijay Kumar came there on two wheeler scooter and after parking the scooter they both came inside the shop. One of the accused was having a black colour bag. Both the accused persons asked the complainant to show the electric meter of the shop. Thereafter he along with complainant and both the accused persons went in the gallery where the electric meter was fixed and both of them reversed the reading of the meter with the help of one wire and thereafter 13 accused Rajiv demanded Rs. 2000/- from the complainant and thereafter complainant took out those treated notes and gave to accused Rajiv in his left hand and accused Rajiv kept the same in the pocket of his jacket. In the meantime the signal was given by him and raid officer arrived at the spot and he informed the Raid Officer about the transaction. Raid Officer disclosed his identity and challenged the accused and thereafter on the directions of Raid Officer he recovered those GC notes from the jacket pocket of accused and the bag was seized vide memo Ex. PW2/E. 14 It is submitted by ld counsel for accused Vijay that panch witness no where deposed that bag was seized from accused Vijay. He further deposed that as per panch witness one of the accused was having black colour bag and he further deposed that the bag of the accused person was taken into possession vide memo Ex. PW2/E which bears his signature at point A and the Raid Officer drawn the proceedings Ex. PW2/G. It is significant to note that no suggestion was given to him by ld. counsel for accused Vijay that bag was not seized vide memo Ex. PW2/E. Seizure memo Ex. PW2/E clearly provide that bag was seized from the custody of accused Vijay and in the seizure memo the details of instruments which were there in the bag are mentioned. When he was further cross examined on behalf of accused Rajiv he denied the suggestion that the bag was not seized from accused Vijay. Raid Officer Insp. M. S. Sangha ( PW13 ) categorically deposed that the bag was seized from the possession of 14 accused Vijay and same was taken into possession vide memo Ex. PW2/E. When he was cross examined by ld counsel for accused Vijay he denied the suggestion that bag was planted on accused Vijay. He admitted that bag was not sealed. There was no need of sealing the bag. The bag was seized at the spot as is proved from the statement of complainant as well as panch witness. He denied the suggestion that tools which were in the bag were in fact taken from scrap dealer and planted on accused. There was no question of planting bag on accused Vijay. There is nothing on the record to show that either complainant, panch witness or Raid Officer were knowing accused Vijay earlier to the incident. The ld. counsel for accused Vijay has failed to show even any remote reason for falsely implicating accused Vijay. His submissions that accused Vijay had come to purchase cloth has no foundation. Why would Vijay go to the shop of a jeweller to purchase cloth that too on Monday when area market was closed. The case property i.e the tools were deposited in the malkhana on the same very day as is proved from the statement of the Investigating Officer Insp. Y. S. Negi ( PW4 ) as well as from the statement of MHCM Surinder Singh ( PW3 ).
15 It is significant to note that complainant categorically deposed that a note book and meter book was seized vide memo Ex. PW2/F. He denied the suggestion given by ld. counsel for accused Vijay that note book and meter book were not recovered from the possession of accused Rajiv or that accused Rajiv did not visit his 15 shop either on 15.1.2000 or on 17.1.2000. Panch witness when cross examined by ld. PP for state admitted that the two wheeler scooter was seized vide memo Ex. PW2/H and the note book and the meter book were seized vide memo Ex. PW2/F. It is proved that RC of the scooter was seized vide memo Ex. PW4/K and the scooter belonged to accused Vijay. Accused Vijay in his statement U/s 313 Cr. P. C admitted that his scooter was seized vide memo Ex. PW2/H. However he stated that he never went to the shop of complainant along with co accused Rajiv. Though it is proved beyond doubt from the statement of complainant and panch witness that accused Vijay went to the shop of complainant with co accused Rajiv on his two wheeler which was seized vide memo Ex. PW2/H. 16 It is submitted by ld counsel for accused M. S. Chauhan that in fact prosecution has failed to prove that meter reading book D- 731 Ex. PW4/X2 belonged to accused M. S. Chauhan. I do not find any force in the submission of ld. defence counsel. PW1 Vijay Kumar deposed that on 15.1.2000 he was working as meter book diarist and he used to give meter books to the meter readers as and when it was due to be given to them and in this regard he used to make entry in the MSR register. If any meter reader did not use to collect the meter book or did not use to return the meter book on time then meter reader would be given notice in writing about that. He further deposed that on 15.1.2000 accused M. S. Chauhan came to him and asked him to give meter book D 704 but at that time MSR register No. 17 16 was not available with him as the same was with Sh. R. C. Gupta Sr. Clerk and he went to Sh. R. C. Gupta to collect MSR Register but he was not available on his seat and by the time he returned to his seat, M. S. Chauhan had left and in the evening he found that meter book No. D-704 and 731 were missing and he brought this matter to the notice of Sh. P. K. Sharma Meter Reading Superintendent vide application copy of which is Ex. PW1/A. On that application Mr. Sharma wrote that " MR M. S. Chauhan please do needful" . He admitted in his cross examination that he did not mention in Ex. PW1/A about the fact of his going to the seat of sh. R. C. Gupta to collect the register. There was no need to mention all the details in the application. What he brought to the notice of MRS was that M. S. Chauhan had taken away the meter reading books D 704 and 731. It is further significant to note that from the entries made in MSR Register 17 that meter reading book D 704 and D731 were alloted to M. S. Chauhan only. PW14 Sh. Prem Kanth Sharma deposed that at the relevant time he was posted as Superintendent meter reading and he further deposed that meter books were issued to the meter readers through register no. 17 and he handed copy of page no. 74 of register no. 17 which was taken into possession by Investigating Officer vide memo Ex. PW14/F. He also handed over copy of the meter reading chart which was taken into possession vide memo Ex. PW14/A. MSR Register No. 17 Ex. PW4/X-4 clearly shows that meter reading book D-731 which was found in possession of accused Rajiv was allotted to accused M. S. Chauhan. It is submitted by ld counsel for accused M. 17 S. Chauhan that accused M. S. Chauhan examined Sh. R. C. Gupta ( DW1 ) in defence to whom PW1 is alleged to have gone on 15.1.2000 to collect the MSR register No. 17. Sh. R. C. Gupta deposed that he had no concern with that register while he was posted in that office in the year 2000 and on 15.1.2000 he had not taken that register from Vijay Kumar Jr. Clerk. In his cross examination he admitted that his job was also to give memo to the meter readers. He used to prepare memos after getting letter from MSR and he never used to see register no. 17 for preparation of memo. It is significant that he could not have prepared the memo with out seeing the register and more over the incident took place in the year 2000 and he retired in 2003 and he could not have recollected as to what happened on 15.1.2000. He deposed falsely at the instance of the accused M. S. Chauhan.
17 There was no occasion for accused Rajiv to be in possession of meter book unless the same was handed over to him by accused M. S. Chauhan. Accused Rajiv was not government servant. He was a private person and the very fact that he was found in possession of the meter book which was alloted to accused M. S. Chauhan clearly shows that the same was handed over to him by accused M. S. Chauhan. So it is a very strong circumstances which corroborates the statement of complainant that accused M. S. Chauhan along with accused Rajiv and Vijay came to his shop on 15.1.2000.
1818 It is submitted by ld counsel for accused Vijay that complainant had not name accused Vijay in the complaint which clearly shows that accused Vijay had not gone to the shop of the complainant on 15.1.2000. I do not find any force in the submission of ld. defence counsel . Complainant in his cross examination clearly stated that on 15.1.2000 he was not knowing the name of accused Vijay. It is proved from his statement that accused Vijay was the other third person who came along with accused M. S. Chauhan and Rajiv. It is further submitted by ld counsel for accused Vijay that panch witness in his cross examination stated that raiding team went to the spot in two vehicle whereas the case of the prosecution is that raiding team went in one vehicle. It is submitted by him that this itself shows that panch witness had not gone to the spot and he signed the documents while sitting in Anti Corruption Branch. I do not find any force in the submission of ld. defence counsel . Complainant, Raid Officer and Investigating Officer specifically testified that raiding team went in one government vehicle. Even panch witness in his examination in chief testified that raiding team went in one vehicle and simply because in his cross examination he stated that raiding team went in two government vehicle does not mean that he was not part of the raiding team.
19 It is submitted by ld counsel for accused M. S. Chauhan that in fact Sh. Sant Ram, the father of complainant was very much present in the shop on 15.1.2000 and the prosecution has not 19 examined Sh. Sant Ram and his non examination is fatal to the prosecution story. Again I do not find any force in the submission of ld. defence counsel . It is significant to note that complainant in his cross examination stated that he and his father alone were present at his shop on 15.1.2000 when accused M. S. Chauhan and Rajiv came there. He further stated that his father was not present with him on 15.1.2000 when accused persons came there and therefore he did not mention in complaint Ex. PW2/A that his father was also present there. He further stated that what he had stated was that he and his father used to be present at their shop and that does not mean that on 15.1.2000 his father was present in the shop and therefore it should not be taken that his father was present in the shop on 15.1.2000. Though the accused persons have failed to prove that father of complainant was present on 15.1.2000. Assuming for the sake of arguments that father of complainant was present in the shop on 15.1.2000 it does not mean that father of complainant was privy to the talk which took place between the accused persons and the complainant. Assuming that he was privy to those talks even then it was not necessary to cite each and every person who was present at the spot as a witness.
20 It is submitted by ld. counsel for accused Rajiv that in fact complainant was having animosity with one Vikas brother-in-law of accused Rajiv who was living at H. No. F-20 Vijay Nagar which was a walking distance of two minutes from the spot. It is significant to 20 note that complainant categorically denied having know any person by the name Vikas who was brother in law of accused Rajiv. In fact accused Rajiv has even not examined his brother in law Vikas to prove that he was knowing the complainant and complainant was having animosity against him. It is not suggested to the complainant as to for what reason complainant was having animosity with the brother in law of accused Rajiv. This defence is nothing but after thought. In fact there is no reason to disbelieve the cogent and reliable testimony of complainant, panch witness and Raid Officer. The complainant has very well withstood the arduous task of lengthy cross examination. His cross examination is running into 21 full scale typed pages. Here it is relevant to refer to the case of State of UP V/s Dr. G. K. Ghosh, AIR 1984 SC 1453 where it is held as under:-
By and large a citizen is somewhat reluctant rather than anxious, to complain to the Vigilance Department and to have a trap arranged even if illegal gratification is demanded by a Government servant. There are numerous reasons for the reluctance. In the first place, he has to make a number of visits to the office of Vigilance Department and to wait on a number of officers. He has to provide his own currency notes for arranging a trap. He has to comply with several formalities and sign several statements. He has to accompany the officers and participants of the raiding party and play the main role. All the while he has to remain away from his job, work, or avocation. He has to sacrifice his time and effort while doing so. Thereafter, he has to attend the court at the time 21 of the trial from day to day. He has to withstand the searching cross examination by the defence counsel as if he himself is guilty of some fault. In the result, a citizen who has been harassed by a Government officer, has to face all these hazards. And if the explanation offered by the accused is accepted by the court, he has to face the humiliation of being considered as a person who tried to falsely implicate a Government servant, not to speak of facing the wrath of the Government servants of the department concerned, in his future dealings with the department. No one would therefore be too keen or too anxious to face such an ordeal. Ordinarily, it is only when a citizen feels oppressed by a feeling of being wronged and finds the situation to be beyond endurance, that he adopts the course of approaching the Vigilance Department for laying a trap. His evidence cannot therefore be easily or lightly brushed aside. Of course, it cannot be gainsaid that it does not mean that the court should be oblivious of the need for caution and circumspection bearing in mind that one can conceive of cases where an honest or strict Government official may be falsely implicated by a vindictive person to whose demand, for showing favours, or for according a special treatment by giving a go-bye to the rules, the official refuses to yield.
21 It is submitted by ld counsel for accused Rajiv that accused Rajiv was picked up from his house and falsely implicated in this case. Again I do not find any force in the submission of ld. 22 defence counsel . It is proved beyond doubt from the statement of complainant, panch witness and Raid Officer that accused Rajiv along with accused Vijay came to the shop of complainant on two wheeler scooter and that two wheeler was taken into possession at the spot vide memo Ex. PW2/H and it is not disputed by accused Vijay that that two wheeler scooter belonged to him. It is further proved from the statement of complainant and panch witness that accused Rajiv and Vijay tempered with electricity meter and thereafter on demand bribe amount was received by accused Rajiv.
22 It is further submitted by ld. counsel for accused persons that in fact entire story has been concocted by the complainant in connivance with the officials of Anti Corruption Branch . It is submitted by him that prosecution has failed to prove that on 17.1.2000 the electricity meter installed at the shop of complainant was tempered. It is further submitted by him that admittedly the electricity meter was not seized by the Investigating Officer on 17.1.2000 which means that in fact the electricity meter was never tempered. It is significant to note that Raid Officer was not an expert to remove the electricity meter as after tempering the electricity meter was reaffixed by accused Vijay and Rajiv. However the tempered electricity meter was duly sealed by the Raid Officer and lateron on 18.2.2000 the said meter was taken into possession by the Investigating Officer in presence of Sh. R. N. Arora Asst. Engineer ( PW9 ) and Sh. Ram Niwas ( PW10 ) JE. The meter was inspected by Sh. R. N. Arora 23 ( PW9) and Sh. Ram Niwas ( PW10 ). Sh. R. N. Arora deposed that on inspection of electricity meter it was found to be tempered by cutting the sealed wires on the left side, the gasket was tempered and there was created hole between the base and the cover of the meter. He proved the detailed report Ex. PW4/J. Statement of PW9 was fully corroborated by PW10. He also proved the detailed report Ex. PW4/J. In his cross examination he stated that it is correct that meter was not tested from inside and he volunteered to say that tempering was visible from outside. He further stated that no tempering was seen in the disc or digits of the meter. The internal check up of the meter is done in the laboratory and the meter in question was not internally tested in the laboratory. The meter was seen by the court and the court observation is reproduced as under :-
With the help of a small torch, it is seen by the court that on the left side of the meter, not only the wire of the seal is broken but also on the left side the meter cover is slightly lifted and with torch light is found to have a small hole in the rubber like portion which is referred to as gasket and on the right side of the electric meter, the wire of the seal is found to be broken and on the right side, no hole in the gasket is visible when seen with the help of torch light. ( This is also shown to Sh. Vipin Kumar Gupta, learned counsel for accused Rajeev as well as to Sh. K. S. Bala Shankar, counsel for accused Vijay.
23 PW10 further deposed that he cannot off hand tell the size of the hole in millimeters but one electric wire can easily pass 24 through this hole. He denied the suggestion that it is not possible to temper the temper by inserting a wire in the hole. He further denied the suggestion that digits of the meter or disc of meter cannot be tempered with the help of wire by inserting the same in the hole. It is proved beyond doubt from report Ex. PW4/J as well as from the testimony of PW9 and PW10 that the meter in question was tempered.
In view of the above discussion, I am of the view that prosecution is able to prove its case against accused Mahinder Singh Chauhan u/s 7/13 of Prevention of Corruption Act, 1988 and u/s 120- B IPC beyond all reasonable doubt. Prosecution is further able to prove its case against Rajiv Kumar and accused Vijay Kumar u/s 12 of Prevention of Corruption Act, 1988 and u/s 120-B IPC beyond all reasonable doubt. Accused Mahinder Singh Chauhan is accordingly held guilty and convicted for committing offences U/s 7 and 13 (1 ) (d) punishable U/s 13 (2 ) of Prevention of Corruption Act, 1988 r/w section 120-B IPC. Accused Rajiv Kumar and Vijay Kumar are accordingly held guilty and convicted u/s 12 of Prevention of Corruption Act, 1988 and u/s 120-B IPC. Let they be heard on the point of sentence.
Announced in the open court on this 6th day of March 2010.
( A. S. YADAV ) SPECIAL JUDGE DELHI 25 IN THE COURT OF SH. A. S. YADAV SPECIAL JUDGE : DELHI C C No. 26/2000 State V/s Mohinder Singh Chauhan, s/o Sh. Sultan Singh Chauhan, r/o Village & PO Jakholi, District Sonepat, Haryana Rajiv Kumar s/o late Sh. Sant Ram, r/o B-366, Nehru Vihar, Delhi.
Vijay Kumar s/o Sh. Ganga Dhar, r/o 1-4, Rajiv Nagar Extension, Begampur Barwala Road, Delhi.
F. I. R No. : 2/2000 Under Section : 7/12/13 Prevention of Corruption Act and U/s 120-B IPC.
Police Station : Anti Corruption Branch ORDER ON SENTENCE
I have heard Sh. Alok Saxena Addl. Public Prosecutor for the State and Sh. Vipin Gupta Advocate for convict Rajiv and Sh. Ritesh Sharma Advocate for convict M. S. Chauhan (who are present on bail) on the point of sentence.
2 It is submitted by Sh. Ritesh Sharma ld. counsel for accused M. S. Chauhan that he is a heart patient and as per angiography report there is blockade of 80% and also angioplasty of his kidney was done. He has got wife , four children out of them two are school going and he is sole bread earner of the family and is 26 facing trial for the last ten years and is not a previous convict. 3 It is submitted by Sh. Vipin Gupta ld. counsel for accused Rajiv that he has got a wife and one daughter who is nine years old and one son who is five months old and he has already lost his parents. It is further submitted by him that he is not a previous convict.
It is submitted by ld. counsels for both the convict that lenient view be taken.
4 On the other hand Ld. Addl. Public Prosecutor states that the convict does not deserve any leniency because there is rampant corruption amongst public servants and to curb this evil, deterrent punishment should be imposed taking into consideration the nature of case no lenient view be taken 5 After having heard both the sides and in view of the facts and circumstances of the case I take a lenient view and sentence convict Mahinder Singh Chauhan s/o Sh. Sultan Singh Chauhan to undergo RI for a period of one and half years and a fine of Rs. 2500/- (Rs. two thousand & five hundred) u/s 7 of the Prevention of Corruption Act, 1988 and in default of payment of fine, convict shall undergo SI for a period of three months. Convict M. S. Chauhan is further sentenced to undergo RI for a period of one and half years and a fine of Rs. 2500/- (Rs. two thousand five hundred) u/s 13 (2) of the 27 Prevention of Corruption Act, 1988 and in default of payment of fine, convict shall further undergo SI for a period of three months. He is further sentenced to undergo RI for a period of one and half years and fine of Rs. 2500/- ( two thousand five hundred) U/s 120 B IPC and in default of payment of fine, convict shall further undergo SI for a period of three months.
6 Convict Rajiv Kumar s/o Sh. Sant Ram is sentenced to undergo RI for a period of one and half years and a fine of Rs. 3000/- (Rs. three thousand) u/s 12 of the Prevention of Corruption Act, 1988 and in default of payment of fine, convict shall undergo SI for a period of three months. Convict Rajiv Kumar is further sentenced to undergo RI for a period of one and half years and a fine of Rs. 3000/- (Rs. three thousand) u/s 120-B IPC and in default of payment of fine, convict Rajiv Kumar shall further undergo SI for a period of three months.
7 All the sentences shall run concurrently and the convicts shall be entitled to benefit under section 428 Cr. P.C. 8 A duly attested copy of the judgment and this order be supplied to the convicts free of costs and thereafter file be consigned to the record room.
Announced in the open court on this 8th day of March 2010 ( A. S. YADAV ) SPECIAL JUDGE DELHI 28