Delhi District Court
State vs Ramesh Chand Kataria on 8 April, 2024
IN THE COURT OF DEEPALI SHARMA
SPECIAL JUDGE: PC ACT: ACB-01:
ROUSE AVENUE COURT COMPLEX: NEW DELHI
CNR No. DLCT11-000038-2021
CC No.08/2021
FIR No. 02/2018
U/S: 7/13 of Prevention of Corruption Act
PS: Anti Corruption Branch
State
Versus
Ramesh Chand Kataria,
S/o Sh. Chiranji Lal,
R/o 269 Top Floor,
Pocket-3, Sector-23, Rohini,
Delhi.
Date of Institution : 28.01.2021
Date of Arguments : 03.04.2024
Date of Judgment : 08.04.2024
Appearance :
For the State : Sh. Ajit Kumar Srivastava,
Ld. Chief Public Prosecutor.
For accused : Sh. D.K.Sharma, Ld. Counsel.
JUDGMENT
1. Briefly stated the facts of the case are that on 09.05.2016 a complaint was forwarded to Anti Corruption Branch (in short referred to as ACB) by Sh. S.K.Bhandari, CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 1 of 90 Commissioner (Vigilance), Department of Trade and Taxes, New Delhi, alongwith a complaint of Sh. Mahender Kumar, inspection team report, seizure memo dated 06.05.2016, an envelop containing GC notes, details of currency notes and one CD containing videography of the inspection, for registration of the case against Ramesh Chand Kataria - VAT Inspector (hereinafter referred to as VATI) Ward No. 93, Department of Trade and Taxes, GNCT. The said complaint was marked to Insp. Rakesh Kumar, ACB, for enquiry vide MC No. 158/16.
2. The forwarding letter of Sh. S.K.Bhandari Ex. PW12/A addressed to DCP, ACB, detailed the facts and also enclosed the complaint Ex. PW2/A filed by the complainant.
3. In his complaint addressed to Sh. S.S.Yadav, Commissioner VAT Department, ITO, Delhi, the complainant Mahender Kumar stated that he was working as an Accountant at M/s N.K.& Associates, K-63, Fateh Nagar, New Delhi-110018. He had applied for DVAT registration of a client, however, due to non-visit at site, VATI Ramesh Chand Kataria cancelled the registration of his client. When he came to know that the registration has been cancelled, then on 04.03.2016 he went to meet VATI Ramesh Chand Kataria. When he asked Ramesh Chand Kataria - VATI, Ward No. 93, as to why he had cancelled the registration, he asked him to write an application for re-visit and that he could not find the address. Thereafter on 09.03.2016 the complainant took the application, then VATI asked him to get the authority letter and the complainant again went after two CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 2 of 90 days. Thereafter he told the complainant that he would not do it and upon asking by the complainant, VATI Ramesh Chand Kataria told him to get money. The complainant told him that the client could not pay, at which the VATI kept the file on one side and told him that he would not do anything for less than Rs. 5000/-. On the next day, the complainant sent an employee Sunil Kumar to VATI Ramesh Chand Kataria and he demanded Rs.5,000/- from him, at which the employee told him that he had Rs. 2000/- only, at which VATI Ramesh Chand Kataria told him to get full amount.
4. On 06.05.2016 the complainant himself went to VATI Ramesh Chand Kataria and he told the complainant that the needful could not be done. Upon asking by the complainant, he asked the complainant to get the original documents of the file. Thereafter he told the complainant that he had told the employee and if the complainant had brought that much money. The complainant asked how much money, on which VATI said Rs. 5000/- and the complainant gave him Rs. 5000/-. The complainant also mentioned the denomination and serial numbers of the currency notes in his complaint which are as follows :
"(1)1000x1 = (2AQ 232360), (2) 1000x1 = (4CN 890733), (3) 500x1 + (4GQ 609187), (4) 500x1 +(JSR 045265), (5) 500x1 = (5SW 689627), (6) 500x1 (SSW 689626) (7) 500x1 = (3EH 226592) and (8) 500x1 + (7 GT 405370)."
5. The complainant handed over the written complaint to Sh. S.S.Yadav, Commissioner VAT Department. The CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 3 of 90 commissioner Sh. S.S.Yadav, constituted an inspection team to verify the allegations made in the complaint. The inspecting team comprised of Sh. Pravesh Rajan Jha, (Joint Commissioner), Sh. Naveen Gosain - Assistant Commissioner and Sh. L.K.Gautam - Assistant Commissioner (Vigilance). The inspecting team was briefed about the complaint and directed to conduct an inspection at Ward No. 93 where Ramesh Chand Kataria was posted as VATI. The Inspecting team carried out the inspection of Ward No. 93 and seized the currency notes and prepared the seizure memo. The proceedings were videographed by Sh. Naveen Gosain.
6. As per the inspection report Ex. PW8/B dated 06.05.2016 the inspecting team visited the office of accused R.C.Kataria, VATI, Ward No. 93, situated on 9 th Floor, Trade and Taxes Department, Delhi, alongwith two civil defence volunteers namely Sh. Sahil Doonga and Sh. Lokesh at about 12.45 pm. Smt. Meenu Mehan, UDC, was also present there. Sh. Dinesh Gandhi, Ward Incharge, who had gone for a meeting on the 13th Floor was also called. On the direction of the inspecting team, the accused produced cash amount of Rs. 13920/- from his wallet before the inspecting team. The currency notes were counted and seizure memo Ex. PW8/A was prepared and the entire proceedings were videographed by Sh. Naveen Gosain on his mobile phone and he prepared a CD of the recording.
7. The inspection report alongwith the seizure memo, packet of currency notes amounting to Rs. 13920/- and one CD CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 4 of 90 containing the videography of the inspection were received from the inspecting team. The complaint was marked to Special Commissioner Vigilance, Trade and Taxes Department, for necessary action by Sh. S.S.Yadav.
8. Another team consisting of VAT officer Sh. Aseem Kumar Goyal, Assistant Commissioner ( HR), Sh. Dinesh Pandey
- Deputy Secretary (Vigilance) and Sh. Krishanveer - Assistant Commissioner (Vigilance) was constituted for re-verification of serial numbers of the currency notes and comparison of the currency notes produced by the accused. The team prepared the details of the serial numbers and the denomination of the currency notes amounting to Rs. 13920/- seized by the inspecting team.
9. Sh. S.K.Bhandari, Special Commissioner Vigilance sent a request Ex. PW12/A to DCP, ACB, on 09.05.2016 alongwith the relevant annexures for registration of case against R.C.Kataria.
10. During the course of enquiry, in the presence of Panch Witness Sh. Rajeev Saini, Inspr. Rakesh Kumar opened the envelope containing currency notes (annexure-D) recovered from accused Ramesh Chand Kataria and found that the serial number of currency notes were same as those mentioned in the seizure memo which was forwarded by the Spl. Commissioner, Trade & Taxes Department with the complaint and he prepared an identification memo dated 17.03.2017 Ex. PW16/A. CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 5 of 90 Thereafter, Insp. Rakesh Kumar got deposited the currency notes in Malkhana of PS Civil Lines, Delhi, and also examined the officials of Trade and Taxes Department. Thereafter on 16.06.2017 after his transfer, enquiry was handed over to Insp. Sanjeev Solanki.
11. After inquiry, the FIR bearing no. 02/2018 dated 23.01.2018 was registered u/s 7/13 Prevention of Corruption Act (hereinafter referred as PC Act) at PS ACB, Delhi, on the complaint of Special Commissioner Vigilance, Trade & Taxes Department, Delhi, against Ramesh Chand Kataria, VATI, Ward No. 93, Department of Trade & Taxes, GNCT of Delhi.
12. Further investigation was conducted and Insp. Sanjeev Solanki, IO, obtained the relevant documents from the office of Trade & Taxes Department, Vyapar Bhawan, I.P.Estate, Delhi. Certified copies of service book and other details of employment of the accused were obtained from Trade and Taxes Department. Statement of the complainant was recorded u/s 164 Cr.P.C. on 10.08.2018 by the Ld. M.M. Video CD was sent to FSL for its evaluation and analysis. During the course of investigation, complainant was directed to join the investigation, however, he did not join and a Kalandara u/s 174/175/176 IPC was prepared against the complainant. Efforts were made to trace Sunil Kumar, employee of complainant Mahender Kumar, however his details were not available. Accused surrendered before the concerned court on 30.05.2019 and request for his PC remand was declined. He was subsequently released on court CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 6 of 90 bail. Accused was transferred from Trade and Taxes Department to Education Department. On 18.12.2020 prosecution sanction u/s 19 of PC Act qua the accused was obtained from the office of Director of Education, Directorate of Education, Vigilance Branch, Old Secretariat, Delhi. After completion of investigation charge sheet was filed against the accused Ramesh Chand Kataria u/s 7/13 PC Act.
13. After completion of investigation, charge-sheet was filed against the accused R.C.Kataria u/s 7/13 PC Act, 1988 on 25.01.2021 and cognizance of offence was taken against the accused on 16.02.2021. Thereafter, accused was summoned and after hearing arguments, charge for the offence under Section 7 & 13 (1) (d) of PC Act punishable u/s 13 (2) of PC Act was framed, to which accused pleaded not guilty and claimed trial.
14. In order to prove its case, prosecution has examined 28 witnesses. Brief summary of deposition of prosecution witnesses is as under:-
i) PW-1 Vimal Diwakar, deposed that on 11.02.2019, he was posted as Assistant Commissioner GST (Ward-93), GNCT of Delhi. On that day, he had sent a reply bearing letter No. AC/Ward-93/2018-2019/1065 alongwith enclosed document i.e. certified bio-data of Ramesh Chand Kataria, Ex.PW1/A(Colly) to the letter / requisition of IO of Anti-
Corruption Branch, GNCT of Delhi in the present case. He further deposed that on 18.03.2019, he had sent a reply to the letter of IO, vide his letter No. AC/Ward-93/2018-2019/1113 dt.
CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 7 of 9018.03.2019 alongwith certified enclosures Ex.PW1/B (Colly). PW1 further deposed that as per record, Sh. R.C. Kataria was transferred to Zone-IX vide order dated 03.01.14.
ii) PW2 Mahender Kumar - complainant. iii) PW3 C.H.Vunga deposed that in the year 2019, he
was posted as Goods & Service Tax Officer, Ward-93, Department of Trade & Taxes, GNCT of Delhi. On 10.06.2019, in response to the letter No.5652/FIR-02/18/SS/ACB dt. 06.06.2019 of ACB, GNCT of Delhi, he had forwarded a point- wise reply vide his letter No.AC/Ward-93/2019-2020/1487 dt. 10.06.2019 Ex.PW3/A alongwith enclosed copy of documents dated 19.04.2016 and 22.12.2017 Ex.PW3/B and PW3/C (OSR) respectively.
iv) PW4 Ct. Ravinder deposed that on 12.11.2018, he had gone to FSL, Rohini with authority letter for collecting FSL result and he collected the FSL result in two sealed envelops.
v) PW5 Dr. C.P. Singh, Assistant Director (Physics), FSL, Rohini, Delhi, deposed that on 30.10.2018, the report dated 30.10.2018 Ex. PW5/A signed by Sh. Geetesh Patel, who was working with him as subordinate reporting officer, was put up to him and he signed on the said report as he caused it examined in order to ensure the completeness of the process. PW5 identified the signatures of Sh. Geetesh Patel as he had seen him signing and writing.
CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 8 of 90vi) PW6 Geetesh Patel, Assistant Chemical Examiner (Physics), FSL, Rohini, Delhi, deposed that on 13.03.2018, letter no. 2556/FIR02/18/SS/ACB/GNCT of Delhi was received at the office of FSL regarding one parcel in connection with the said FIR through ASI Sanjay Yadav. The parcel was sealed and intact and the same was tallied with the specimen seal as per forward- ing letter (FSL Form). The parcel contained one envelope sealed with the seal of SS at three places stated to be containing DVD found marked Exhibit-A. On opening one DVD was found and it was marked as Exhibit-1. One DVD-R of Writex make contain- ing recording in audio-video file namely MOV_0016.MP4 was given mark of Exhibit-1.
On detailed examination, PW6 had given his opinion "As the laboratory examination of audio-video recording in "Exhibit-1" it was observed that recording having identified video shot. There was no indication of alteration in identified video shot on the basis of Frame-by-Frame analysis using Video Analyst System". His report is Ex.PW5/A. PW6 correctly identified the DVD-R, which he had examined, as Ex.P8.
vii) PW-7 Sushil Singh Parihar, who had started his own firm in the name and style of New Delhi Dress and for that he required a TIN for which he had contacted PW2 Mahender Singh, a private accountant.
viii) PW-8 Pravesh Ranjan Jha deposed that from CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 9 of 90 November 2015 till December 2016, he was posted in Department of Trade and Taxes, GNCTD, Vyapar Bhawan, I.P. Estate, Delhi, as Joint Commissioner for Zone-3 and 4. On 06.05.2016 at around 12:00-12:30 pm, he was called by the Commissioner, Department of Trade and Taxes, GNCTD, and briefed about a complaint against Ramesh Chand Kataria, who was then posted as Inspector in Ward No. 93 and he was asked to visit the said Ward. PW8 was accompanied by two other officials from the VAT Department namely Sh. Naveen Gosain and Sh. L.K. Gautam alongwith two civil defence volunteers. On reaching the said ward, which was situated at the 9 th Floor of the building, they found two officials present in the ward viz Ramesh Chand Kataria and another lady official namely Ms. Meena, who was posted as UDC there. The team enquired from Ramesh Chand Kataria about the amount he was having with him and he informed that he was carrying around Rs.13,000/- to Rs.14,000/- which he readily took out from his pocket when directed to do so. The Ward Incharge was not present at that time and reportedly was attending a meeting in the Conference Hall of the department. He was informed to reach the ward and he came at the time when the seizure memo was being prepared by the team. The currency notes amounting to around Rs.13,500/- to Rs.14,000/- were counted by Sh. L.K. Gautam (then posted as Assistant Commissioner in the Vigilance Wing of the Department) and seizure memo Ex. PW8/A also contained the denomination of the currency notes. On seeing the seizure memo Ex.PW8/A, PW8 submitted that the name of another UDC was Ms. Meenu instead of Mrs. Meena.
CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 10 of 90PW8 further deposed that Sh. Dinesh Gandhi, Ward Incharge, had also joined alongwith Ms. Meenu and one of the civil defence volunteer. Videography of the proceedings was also done by Sh. Naveen Gosain on his personal mobile phone. On the same day a report Ex. PW8/B was prepared and submitted to the Special Commissioner, Vigilance, Department of Trade and Taxes under his signature alongwith signatures of aforementioned officials alongwith soft copy of the video coverage.
PW8 identified the DVD, which played on the computer of the court and shown to him as the recording of the proceedings conducted on 06.05.2016 regarding seizure of currency notes from accused.
Ld. Addl. PP for the State with the permission of court put a leading question to PW8 and he affirmed that serial numbers of the recovered currency notes from the accused were mentioned in the seizure memo and the total recovered amount was Rs.13,920/-. PW8 also correctly identified the total 29 currency notes Ex.PW8/A1 to A29 and the serial numbers of the currency notes were compared with the serial numbers mentioned in the seizure memo Ex.PW8/A and found to be correct.
ix) PW-9 Lalit Kant Gautam deposed that he was posted as Assistant Commissioner, Vigilance in Trade and Taxes Department from November 2013 to May 2018. On 06.05.2016, CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 11 of 90 he was called by the then Commissioner, Trade & Taxes Sh. S.S. Yadav in his chamber. Two other officers Sh. Parvesh Ranjan Jha, Joint Commissioner and Sh. Naveen Gosain, Assistant Commissioner, were also present there. PW9 was asked to accompany Sh. Parvesh Ranjan Jha, Joint Commissioner alongwith Sh. Naveen Gosain, Assistant Commissioner to conduct a search in Ward no. 93 as there was a complaint against Sh. R.C. Kataria, VATI. Sh. Parvesh Ranjan Jha was leading the process. When they reached in Ward no. 93, Sh. R.C. Kataria, VATI and one lady official were present there. The ward incharge was not present there as he was busy in a meeting. The ward incharge was informed to immediately join the proceedings. Sh. Parvesh Ranjan Jha informed Sh. R.C. Kataria that the team was there to make his search and Sh. R.C. Kataria was asked to inform regarding the money he had with him. Sh. R.C. Kataria immediately informed that he had around Rs.13,000/- to Rs.14,000/- with him. He immediately produced the money he had in his pockets. His drawer and bag were also thoroughly checked. The money which was produced by accused R.C. Kataria from his pocket was counted by PW9 and it was found to be approximately Rs.13,900/-. PW9 prepared the seizure memo EX. PW8/A of the currency notes which were recovered from the accused and the serial numbers of the GC notes were also mentioned in the seizure memo by him. He deposed that the ward incharge Sh. Dinesh Gandhi had also joined the proceedings and signed the seizure memo. PW9 correctly identified the accused R.C. Kataria in the court.
PW9 further deposed that Sh. Naveen Gosain had CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 12 of 90 also videographed the entire proceedings as directed by Sh. S.S. Yadav, Commissioner, with his mobile phone. On the same day, a report dated 06.05.2016 Ex. PW8/B was prepared by Sh. Parvesh Ranjan Jha regarding the aforesaid proceedings and it was forwarded to the Special Commissioner, Vigilance.
PW9 also deposed that the videography done by Sh. Naveen Gosain in his mobile phone was transferred in a CD by him and was handed over to the higher officers alongwith the report and the seized currency notes recovered from the accused. PW9 also correctly identified the total 29 currency notes Ex.PW8/A1 to A29 and the serial numbers of the currency notes were compared with the serial numbers mentioned in the seizure memo Ex.PW8/A and found to be correct.
PW9 identified the DVD, which played on the computer of the court and shown to him as the recording of the proceedings conducted on 06.05.2016 regarding seizure of currency notes from accused in which PW9 as well as the accused and other members of the team could be seen.
x) PW-10 Dinesh Gandhi deposed that on 06.05.2016, he was posted as Assistant Commissioner, in Ward no. 93, Trade and Taxes Department, Vikas Bhawan, Delhi. On that day, a meeting was called by Additional Commissioner, Trade and Taxes Department in his chamber and he went to attend the said meeting around 12:00 noon. Meanwhile, they received a message that the said meeting was to be chaired by Commissioner, Trade and Taxes Department and same was to take place at 13th Floor of the building. Sh. Parvesh Ranjan Jha CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 13 of 90 was also posted there as Joint Commissioner at that time and PW10 received a message that he was called by Sh. Parvesh Ranjan Jha in the Ward no. 93. When PW10 reached there, a team was already present consisting of Sh. Parvesh Ranjan Jha, Sh. L.K. Gautam and Sh. Naveen Gosain and he saw that Sh. L.K. Gautam was recording the serial number of currency notes on a memo. PW10 was apprised about the raid conducted by them. Sh. Naveen Gosain was also making a video recording with his mobile phone. PW10 identified his signatures on the seizure memo already Ex.PW8/A. With the permission of the court, Ld. Addl. PP for the State cross-examined PW10 as he was not disclosing complete facts. PW10 affirmed that he was told by the raiding team that the amount of gratification i.e. currency notes were recovered from the possession of accused Ramesh Chand Kataria, Inspector, Ward no. 93 who was also present when he reached there. PW10 also correctly identified the accused Ramesh Chand Kataria in the court. PW10 further affirmed that he could not recollect the facts due to lapse of time.
xi) PW-11 Naveen Gosain deposed that on 06.05.2016, he was posted as Assistant Commissioner, Trade and Taxes Department. On that day, he was called by Sh. S.S. Yadav, Commissioner, VAT in his chamber. Sh. Parvesh Ranjan Jha, Joint Commissioner, Trade and Taxes Department was already present there. Sh. S.S. Yadav, Commissioner, VAT directed him to accompany Sh. Parvesh Ranjan Jha, Joint Commissioner and CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 14 of 90 Sh. L.K. Gautam, Assistant Commissioner, Vigilance Branch as some complaint had been received against Inspector Ramesh Chand Kataria. Sh. S.S. Yadav also apprised them that Sh. Parvesh Ranjan Jha would lead the raid while PW11 was asked to make a video of the proceedings through his mobile phone. Thereafter, they proceeded to the ward where accused Ramesh Chand Kataria was posted at that time. Accused was sitting on his chair and Sh. Parvesh Ranjan Jha informed accused that they would take his search. Accused did not raise any objection for his search. Sh. Parvesh Ranjan Jha enquired from accused about what he was carrying at that time and accused took out an amount of Rs.13,920/- which was in his possession. The almirah and drawers of the table of the accused were also searched and PW11 made a video of the proceedings with his mobile phone. Some memos were prepared there in which the serial number and denomination of the currency notes were noted down. PW11 identified his signatures on seizure memo Ex.PW8/A and stated that the serial number of the currency notes were mentioned in the seizure memo. PW11 further deposed that Sh. Parvesh Ranjan Jha asked him to prepare the CD of the video footage which was recorded by him from his mobile phone and he prepared the said CD from the computer which was lying in his office or in the chamber of Sh. L.K. Gautam, Assistant Commissioner, Vigilance. PW11 again said that he could recollect that the CD of video footage was prepared by him on his office computer from his mobile phone. Thereafter, he handed over the CD to Sh. Parvesh Ranjan Jha, Joint Commissioner, Trade and Taxes. He was also called in the ACB and the CD was CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 15 of 90 played on the computer and the contents were shown to him and he identified the said CD while stating that the same was prepared by him from his mobile phone. PW11 also identified his signature on Certificate U/s 65B Indian Evidence Act Ex.PW11/A. PW11 further deposed that after some weeks, the mobile phone through which he prepared the video of the proceedings fell in water and was not functional so he disposed off the same. PW11 correctly identified the accused Ramesh Chand Kataria in the court.
PW11 identified the DVD Ex. P8 which was played on the computer of the court and PW11 identified it to be the same video which was prepared by him through his mobile phone regarding the proceedings conducted on 06.05.2016. PW11 also identified Sh. Parvesh Ranjan Jha and Sh. L.K. Gautam as well as accused in the said video. PW11 also correctly identified 29 currency notes Ex.PW8/A1 to A29. The serial numbers of the currency notes were compared with the serial numbers mentioned in the seizure memo Ex.PW8/A and found to be correct.
With the permission of the court Ld. Addl. PP for the State put a leading question to PW11 and he affirmed that after the DVD was played in the office of ACB and was shown to him and thereupon the DVD was kept in a brown colour envelope Ex. PW11/B on which his signatures were obtained and was sealed with the seal of SS by the IO vide seizure memo Ex.PW11/C. CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 16 of 90
xii) PW-12 Suresh Kumar Bhandari deposed that he remained Special Commissioner, VAT till 26.01.2016. Thereafter, he was transferred to MCD as Additional Commissioner (Engineering), North MCD. In the year 2016, a raid was conducted against accused Ramesh Chand Kataria. On 09.05.2016, he had sent the report Ex. PW12/A to ACB alongwith annexures for registration of the case against accused Ramesh Chand Kataria. The annexures included currency notes and one DVD. PW12 obtained approval from Commissioner, VAT before sending his report to DCP of ACB.
Ld. Addl. PP for the State with the permission of the court put a leading question to PW12. PW12 stated that he was unable to recollect the exact date when he was relieved from the VAT Trade and Taxes Department due to lapse of time and as his report was dated 09.05.2016, he could state that he must have been relieved after 09.05.2016.
xiii) PW-13 Krishan Veer deposed that on 06.05.2016, he was posted as Assistant Commissioner, Vigilance Branch at Trade and Taxes Department. On that day, Sh. S.K. Bhandari, Special Commissioner, Vigilance constituted a team comprising of Sh. L.K. Gautam, Sh. Naveen Gosain, Sh. Dinesh Pandey, Sh. Aseem Goyal and PW13. Sh. L.K. Gautam, Assistant Commissioner, Vigilance handed over one sealed envelope and apprised them about the facts and asked them to note down the serial numbers of the GC notes which were in the sealed CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 17 of 90 envelope. Pursuant to that, PW13 and Sh. Aseem Goyal opened the sealed envelope and noted down the serial numbers of the GC notes on a paper and prepared a memo Ex.PW13/A. The total currency notes found in the envelope amounted to Rs.13,920/-. They put the currency notes in one another envelope alongwith the old envelope and the envelope was sealed by putting their signatures.
During recording of testimony of PW13, the currency notes Ex.PW8/A1 to A29 were produced in an unsealed transparent polythene and the serial numbers of the GC notes were tallied with the serial numbers of GC notes mentioned in Ex.PW13/A and the same were found to be correct.
PW13 further deposed that Sh. L.K. Gautam had also apprised them that the currency notes were recovered from some inspector against whom raid was conducted but he could not recollect the name of the said inspector.
With the permission of the court, Ld. Addl. PP for the State put a leading question to PW13. PW13 stated that he could not affirm or deny whether Sh. L.K. Gautam apprised them that the notes were produced by Sh. Ramesh Chand Kataria, VATI, Ward no. 93, Trade and Taxes Department, before the raiding team.
Thereafter, with the permission of the court Ld. Addl. PP for the State cross-examined PW13 as he was stated to CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 18 of 90 be concealing true facts deliberately. In his cross-examination PW13 affirmed that his statement Mark-X1 was recorded by the IO on 11.05.2018. He affirmed that a team was constituted by Sh. S.K. Bhandari, Special Commissioner, Vigilance consisting of three officers only i.e. PW13, Sh. Dinesh Pandey, Assistant Director, Vigilance and Sh. Aseem Goyal, Assistant Commissioner, HR. PW 13 stated that he had stated the name of Sh. L.K. Gautam as member of the raiding team due to confusion who was a member of the raiding team who had only handed over the currency notes in a sealed envelope. He also affirmed that Sh. L.K. Gautam, Assistant Commissioner apprised them that the notes were produced by Sh. Ramesh Chand Kataria, VATI, Ward no. 93, Trade and Taxes Department when the raid was conducted at his office on the direction of senior officers. PW13 correctly identified accused R.C.Kataria before the court. PW13 affirmed that due to lapse of time he could not recollect complete facts.
xiv) PW-14 Aseem Kumar Goel deposed that in the year 2016, he was posted as Assistant Commissioner, Trade and Taxes, Vyapar Bhawan, New Delhi. In the month of May 2016, Sh. S.K. Bhandari, Special Commissioner called him, Sh. Dinesh Pandey and Sh. Krishan Veer to his chamber. Sh. S.K. Bhandari handed over to them one sealed envelope and apprised them that the sealed envelope contained currency notes which were recovered from Ramesh Chand Kataria, who was posted as Inspector at that time in Trade and Taxes Department. He asked them to tally the currency notes with a memo containing serial CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 19 of 90 numbers of GC notes. Accordingly, they tallied the denomination and serial numbers of GC notes and put their signatures on the memo Ex.PW13/A. Thereafter, they put the currency notes alongwith the small envelope in which same were lying sealed, in another envelope and sealed that envelope and handed over the same to Sh. S.K. Bhandari.
With the permission of the court, Ld. Addl. PP for the State put a leading question to PW14. He stated that due to lapse of time he could not admit or deny whether the sealed envelope containing GC notes was handed over to them by Sh. L.K. Gautam, Assistant Commissioner posted there.
Thereafter Ld. Addl. PP for the State cross-
examined PW14 as he was stated to be concealing true and material facts deliberately. PW14 affirmed that his statement Mark-X2 was recorded by the IO on 27.06.2018. PW14 affirmed that Sh. L.K. Gautam handed over the sealed envelope containing GC notes to Sh. S.K. Bhandari and informed that the currency notes were produced by Sh. Ramesh Chand Kataria, VATI, Ward no. 93, Trade and Taxes Department while the raiding team conducted the raid at his office on the direction of senior officers and that he could not recollect the said fact due to lapse of time.
xv) PW-15 Kashmiri Lal - panch witness, who deposed that he was posted as Craft Instructor in the office of Directorate of Training and Technical Education, Pitampura. On 09.03.2018, he was assigned duty of panch witness at ACB and accordingly CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 20 of 90 reached at the office of ACB on 09.03.2018 prior to 09:00 am and reported for his duty to duty officer. One Insp. Solanki called him in his office and showed him a brown colour envelope containing one DVD in a pink coloured cover on which 06.05.2016 was written. Thereafter, the said DVD was put into an envelope and sealed. He identified his signature on the seizure memo of the DVD Ex.PW11/C. xvi) PW-16 Rajiv Saini - panch witness, who deposed that on 17.03.2017, he was posted as BTC, Pusa as Craft Instructor. On that day, he was assigned the duty as panch witness and he visited the office of ACB. On that day at ACB, Insp. Rakesh Kumar opened a sealed envelope which was containing currency notes of the denomination of Rs.1,000/-, Rs.500/-, Rs.100/- and perhaps one note of Rs.20/- which was total amount of Rs.13,920/-. The IO noted down the serial numbers of the GC notes in his presence and also compared the same with the report. In this regard, an identification memo Ex. PW16/A was prepared and he had signed the same. PW16 further stated that the currency notes which were taken out from the envelope were mentioned in the report prepared by Insp. Rakesh Kumar vide Ex.PW16/A. PW16 correctly identified 29 currency notes of denomination of Rs.1,000/-, Rs.500/-, Rs.100/- and Rs.10/- i.e. Ex.PW8/A1 to A29.
xvii) PW-17 SI Sanjay Yadav deposed that on 17.03.2017, Insp. Rakesh Kumar had opened a sealed envelope in his presence and also in the presence of panch witness. Currency CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 21 of 90 notes were in the denomination of Rs.1000/-, Rs.500/-, Rs.100/- and Rs,10/- total amounting to Rs.13,920/-. The number of currency notes were compared by Insp. Rakesh Kumar with the number mentioned in a memo. After that, the currency notes were kept by Insp. Rakesh Kumar in an envelope and handed over to him with a direction to get it deposited in the Malkhana of PS Civil Lines. He accordingly went at Malkhana of PS Civil Lines and deposited the envelope containing the currency notes with MHC(M) ASI Vinay Pal, who had also given his receiving on the memo which was prepared by Insp. Rakesh Kumar. He handed over the receiving to Insp. Rakesh Kumar. PW17 further deposed that on 13.03.18, one forwarding letter alongwith sealed case property was handed over to him by Insp. Sanjeev Solanki with a direction to get it deposited at FSL, Rohini. He accordingly went to FSL Rohini and deposited the sealed case property there alongwith forwarding letter and returned back and handed over the acknowledgment of case acceptance to Insp. Sanjeev Solanki.
xviii) PW-18 ASI Kavinder Singh deposed regarding surrender of the accused Ramesh Chand Kataria before the court, recording of disclosure statement of the accused and his formal arrest.
xix) PW-19 HC Arun Kumar also deposed regarding surrender of the accused Ramesh Chand Kataria before the court, recording of disclosure statement of the accused and his formal arrest.
CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 22 of 90xx) PW-20 Pradeep Kumar - panch witness. He deposed that on 22.11.2018 Insp. Sanjeev Solanki had called him and had shown him one yellow colour sealed envelope on which seal of FSL was affixed. The said envelope was shown to him and there was no tampering in the said parcel. The IO has prepared seizure memo of the parcel Ex.PW4/A. xxi) PW-21 Rohit Mehra - witness, social worker who accompanied the complainant to the Department of Trade and Taxes, GNCT of Delhi on 06.05.2016.
xxii) PW-22 Sajjan Singh Yadav, the then Commissioner, Trade and Taxes Department, Govt. of NCT of Delhi, deposed that on 06.05.2016, he was posted as Commissioner, Trade and Taxes Department, Govt. of NCT of Delhi. On that day, complainant Mahender Kumar came in his office and he made an oral complaint against one Ramesh Chand Kataria, who was posted as VATI in the department. PW22 asked him to give a written complaint. Accordingly, Mahender Kumar gave a written complaint vide Ex.PW2/A. PW22 called Sh. Pravesh Ranjan Jha, who was posted as Additional Commissioner, and Sh. Naveen Gosain, Asst. Commissioner, and Sh. L.K. Gautam, Asst. Commissioner, to his office and briefed them about the complaint and directed them to conduct an inspection at Ward no. 93 where Ramesh Chand Kataria was posted as VATI. As the complainant had stated that Ramesh Chand Kataria had demanded and accepted Rs.5,000/- as bribe and also mentioned the serial CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 23 of 90 numbers of the GC notes which he had given as bribe to Ramesh Chand Kataria, PW22 marked the complaint to Special Commissioner, Vigilance, Trade and Taxes Department for necessary action with his endorsement on Ex.PW2/A. xxiii) PW-23 Dr. Rakesh Kumar, ACP, who deposed that in May 2016, he was posted as Inspector at ACB. He received one enquiry i.e. MC No. 158/16 which was forwarded by Sh. S.K. Bhandari, Special Commissioner, Trade and Taxes alongwith certain documents i.e. forwarding letter of Sh. S.K. Bhandari Ex.PW12/A, complaint of one Mahender Ex.PW2/A, envelope containing GC notes Ex.PW8/A1 to A29, details of currency notes Ex.PW13/A, inspection report Ex.PW8/B, seizure memo dated 06.05.2016 Ex.PW8/A and one DVD containing videography of inspection. PW23 tallied the serial number of GC notes with the seizure memo provided by Sh. S.K. Bhandari in the presence of panch witness Sh. Rajiv Saini and found the same to be correct and PW23 prepared the identification memo dated 17.03.2017 Ex.PW16/A. PW23 deposited the envelope containing GC notes with MHC(M), PS Civil Lines through some subordinate staff. On 16.06.2017, PW23 was transferred from ACB to PCR and he handed over the enquiry to SO Branch, ACB. His statement was recorded by the IO.
Thereafter, on 09.03.2018, he was called by IO Insp. Sanjeev Solanki and the DVD which was received alongwith the forwarding letter of Sh. S.K. Bhandari was played on the office computer and shown to him and he identified the said DVD CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 24 of 90 Ex.P8.
PW23 after viewing the contents of the DVD Ex. P- 8 identified it to be the same DVD which was received alongwith forwarding letter and was shown to him by Insp. Sanjeev Solanki. PW23 also identified the currency notes Ex. PW8/A1 to A29. The serial numbers of the currency notes were compared with the serial numbers mentioned in the seizure memo Ex.PW8/A and identification memo already Ex.PW16/A and found to be correct.
Ld. Chief PP for the State with the permission of the court put leading questions to PW23. He affirmed that on 05.02.2018 he was called by Insp. Sanjeev Solanki for the purpose of investigation and his statement was recorded. PW23 further affirmed that he got deposited the envelope of GC notes with MHC(M), PS Civil Lines through ASI Sanjay Yadav, vide DD no. 22 dated 17.03.2017.
xxiv) PW-24 Insp. Sanjay Kumar Gaur deposed that on 30.12.2019, he was posted as Inspector at ACB and the investigation of present case was assigned to him. On 15.07.2020, he got issued a letter to Chief Vigilance Officer, Tax and Trade Department for grant of sanction U/s 19 of PC Act through ACP Raj Rani Sharma vide Ex.A-3. On 28.09.2020, he was transferred from the ACB and he handed over the file to Insp. Brij Mohan.
CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 25 of 90xxv) PW-25 Insp. Braj Mohan deposed that on 03.11.2020, he was posted as Inspector at ACB and the investigation of the present case was assigned to him. He perused the file and found that a request letter for grant of sanction U/s 19 of PC Act was already sent by previous IO. On 24.11.2020, he was informed by the office of Vigilance Branch of Trade and Taxes Department that accused Ramesh Chand Kataria had been transferred to Education Department and the file containing the request letter for grant of sanction had also been sent to concerned Education Department. Thereafter upon receipt of the sanction accorded by competent authority U/s 19 of PC Act to prosecute the accused, PW25 prepared the chargesheet and filed the same in the court.
xxvi) PW-26 Insp. Sanjeev Solanki, IO of the case. He deposed that in July 2017, he was posted as Inspector at ACB. On 17.08.2017, a complaint i.e. MC No. 158/16 was marked to him by senior officers. A forwarding letter, seizure memo, inspection report, one seizure memo of currency notes prepared by Insp. Rakesh Kumar, details of currency notes, one DVD in the yellow envelope were received with the aforesaid complaint. He examined Sh. Naveen Gosain, Asst. Commissioner, Sh. L.K. Gautam. He deposed that he also examined the complainant Mahender Kumar, who stated that he did not wish to proceed with the complaint and he put up the file before senior officers and after going through the file, he was directed to get the registered the FIR and to investigate the matter.
CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 26 of 90On 23.01.2018, PW26 prepared the rukka Ex.A-2 and handed over the same to the Duty Officer for registration of FIR and accordingly FIR Ex.A-1 was registered. Thereafter he conducted the necessary investigation and examined the witneses who conducted the raid on 06.05.2016 he prepared the seizure memo of DVD Ex. PW11/C after showing the DVD to Sh. Naveen Gosain in presence of panch witness Sh. Kashmiri Lal. He also obtained certificate U/s 65B of I.E. Act in support of DVD from Sh. Naveen Gosain, Asst. Commissioner, Trade and Taxes vide Ex.PW11/A. He recorded statements of Sh. Naveen Gosain, Sh. Kashmiri Lal and other witnesses. The case property was deposited at FSL. He issued to the complainant but he did not join investigation. Several notices were also sent to Sh. Sunil Kumar but he also did not join the investigation. On 04.07.2018, PW26 filed a Kalandara U/s 174/175/176 IPC against Sh. Mahender Kumar in the court vide Ex.A-7. He further deposed that on 18.07.2018, the said Kalandara was taken up by Ld. Special Judge and Mahender Kumar appeared before the court and he accompanied PW26 to the office of ACB where PW26 recorded his statement U/s 161 Cr.P.C. On 10.08.2018, PW26 moved an application Ex. A-12 for recording the statement of witness Mahender Kumar U/s 164 Cr.P.C. The same was recorded vide Ex.PW2/D. After receipt of the FSL result qua the DVD on 12.11.2018, the same was placed on record by him. On 22.11.2018, in the presence of panch witness Pradeep and Ct. Ravinder, who identified the sealed envelope, PW26 prepared the seizure memo Ex. PW4/A regarding the receiving of sealed envelope from FSL. PW26 got deposited the sealed envelope CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 27 of 90 containing DVD through Ct. Ravinder with MHC(M), PS Civil Lines. PW26 recorded the disclosure statement of the accused Ex. PW18/A and arrested the accused vide arrest memo Ex. A-11.
PW26 also examined one Rohit Mehra U/s 161 Cr.P.C. He also sought information from Trade and Taxes Department regarding service record and posting orders of accused which were received during investigation. He also sent a letter to Trade and Taxes Department to provide the certified copy of the application form and details for which Mahender Kumar applied for the TIN number of the firm. He also received the said details from the Trade and Taxes Department. He examined Sh. Sushil Kumar, proprietor of M/s New Delhi Dress of Aya Nagar and Sh. S.S. Yadav, Commissioner, Trade and Taxes Department. Thereafter, PW26 was transferred from the ACB and he handed over the file to Insp. Sanjay Gaur. PW26 identified his signature on the brown colour envelope Ex.PW11/B containing the DVD Ex.P8. After viewing the DVD before the court, PW26 stated that it was the same DVD which was received from Trade and Taxes Department and played in the presence of Insp. Rakesh Kumar and panch witness Sh. Kashmiri Lal.
xxvii) PW27 ASI Vinay Pal, MHC(M) PS Civil Lines, who deposed that on 17.03.2017, ASI Sanjay Yadav brought currency notes of Rs.13,920/- as per directions of Dr. Rakesh Kumar, Inspector, ACB for depositing the same pursuant to DD no. 22 dated 17.03.2017, PS ACB. He deposited the old currency notes CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 28 of 90 of Rs.13,920/- in the Malkhana by entry no. 1024 dated 17.03.2017 while giving details of denomination of currency notes and made relevant entry Ex. PW27/A in Register no. 19 of Malkhana.
xxviii) PW-28 Udit Prakash Rai deposed that iIn the year 2020, he was posted as Director of Education, Govt. of NCT, Delhi. In July 2020, a request from ACB was received for granting prosecution sanction against Ramesh Chand Kataria, Grade-II, DASS Cadre, who was earlier posted as VAT Inspector in Ward no. 93, Department of Trade and Taxes. He was found involved in taking illegal gratification in the year 2016 when he was caught by the officials of his department. Alongwith the request letter, the ACB had submitted the documents like copy of FIR, Rukka, seizure memos, inspection report etc. After careful consideration and request of ACB and he had also applied his mind to the facts and circumstances of the case and then he passed sanction order Ex. PW28/A for prosecution of Ramesh Chand Kataria.
15. During recording of prosecution evidence, on 12.10.2021 ld. Counsel for the accused admitted document i.e. copy of FIR Ex. A1; original rukka dated 23.01.2018 Ex. A2; letter dated 15.07.2020 seeking prosecution sanction of accused Ex. A3; statement of complainant recorded u/s 164 Cr.P.C. Ex. A4; reply dated 13.03.2018 of Neeraja R.Kumar, Asstt. Commissioner (HR)/H.O.O., Trade and Taxes Department alongwith documents Ex. A5; reply dated 25.10.2019 of Neeraja CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 29 of 90 R.Kumar, Asstt. Commissioner, Trade and Taxes Department (Vigilance Branch) alongwith documents Ex. A6; copy of Kalandara u/s 174/175/176 IPC dated 03.07.2018, PS ACB Ex. A7; application dated 30.05.2019 for interrogation and arrest of accused Ex. A8; court order dated 05.07.2018 Ex. A9-a; court order dated 15.05.2019 Ex. A9-b; court order dated 13.06.2019 Ex. A9-c; application dated 13.06.2019 for JC remand of accused Ex. A10; arrest memo of accused Ramesh Chand Kataria Ex. A11; application for recording statement u/s 164 Cr.P.C. dated 10.08.2018 of complainant Ex. A12; application for supply of copy of statement u/s 164 Cr.P.C. dated 10.08.2018 Ex. A13 and application dated 30.05.2019 seeking PC remand/judicial custody of accused Ex. A14. Accordingly, PW Harvinder Singh - Ld. M.M., PW Neeraja R. Kumar - Asstt. Commissioner of Trade & Tax Department and PW SI Ashok Kumar were dropped from the list of witnesses.
16. On 26.11.2022, at the request of Ld. Addl.P.P. for the State, PW Meenu Mehan, Lokesh and Sahil Doonga were also dropped from the list of witnesses as they were witnesses of similar facts i.e. fact of recovery and seizure of currency notes from accused regarding which other witnesses had already been examined.
Statement of accused :
17. After conclusion of prosecution evidence, statements of accused was recorded under Section 313 Cr.P.C CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 30 of 90 wherein he denied the correctness of all the incriminating circumstances appearing in evidence against him and stated that he was innocent and falsely implicated in the present case.
18. Accused further stated that he had not committed any offence. The entire case against him was instituted on the basis of false, fabricated and politically motivated allegation made by the complainant. The investigating agency had also not conducted the investigation in a fair and impartial manner. The then ruling political party in Delhi was asking the general public to give false corruption cases and accordingly the present false case was instituted against him in connivance with the concerned department officials.
19. Accused did not prefer to lead evidence in his defence.
Arguments :
20. It is argued by Ld. Chief P.P. for the State that the accused was caught red handed with the bribe money pursuant to an inspection and search conducted at the instance of Commissioner Trade and Taxes Department, GNCTD. It is urged that the serial number of the GC notes mentioned by the complainant in his complaint given to Commissioner matched with the serial number of GC notes recovered from the accused, who was posted as VAT Inspector at Ward No. 93 of Trade & Taxes Department, GNCTD. It is stated that the accused had CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 31 of 90 demanded illegal gratification of Rs. 5000/- in connection with VAT registration of the firm of the client of the complainant and eventually on his visit to the office of the accused on 06.05.2016, the complainant on demand by the accused gave the bribe amount of Rs. 5000/- to the accused. However, before handing over the money to the accused the complainant had noted down the details of the currency notes which he gave to the accused and the said currency notes were eventually recovered from the accused pursuant to search and inspection proceedings which were got conducted by Commissioner VAT. It is urged that the complainant has supported the allegations against the accused. On 06.05.2016 the complainant was accompanied with PW21 Rohit Mehra, who has also corroborated the version of the complainant. It is stated that the video recording of the search and recovery proceedings were also made by Sh. Naveen Gosain, Assistant Commissioner, who was part of the team, on his mobile phone and he handed over the CD (Ex. P-8) of the said recording to the IO as well as certificate u/s 65B Indian Evidence Act vide Ex. PW11/A. The said video recording has been identified by PW11 Sh. Naveen Gosain. It is stated that as per the FSL result Ex. PW5/A there was no indication of alteration in the video recording of the inspection and recovery proceedings. It is accordingly prayed that there is sufficient evidence on record to hold the accused guilty of the offences he is charged with.
21. On the other hand, it is contended by ld. Counsel for the accused that the prosecution has failed to prove "demand" of bribe amount by the accused, which is an essential ingredient of CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 32 of 90 Section 7 of PC Act. It is urged that it is settled law that mere recovery of currency notes from the accused without proof of demand would not establish an offence u/s 7 as well as 13(1)(d) of PC Act. It is urged that the complainant PW2 was declared hostile and there is no other direct evidence of demand, hence, demand which is a sine qua non for the purpose of section 7 and 13 of the Act does not stand proved, therefore the charge under those sections against the accused would fail. In support of his contention, the accused has relied upon the judgments in the matters of (1) B.Jayaraj v. State of Andhra Pradesh, (2014) 13 SCC 55; (2) P.Satyanarayana Murthy vs. District Inspector of Police, State of Andhra Pradesh & Anr., (2015) 10 SCC 152; (3) RPS Yadav vs. CBI, V(2015) SLT 236; (4) Banshi Lal Baghela vs. State, 2022 Crl.LJ 2310 by Hon'ble Rajasthan High Court and (5) Bishnu Deo Ram vs. State of Jharkhand, Crl. Appeal (SJ) No. 657 of 2011 by Hon'ble High Court of Jharkhand.
22. It is further urged that as per the version of PW2, the complainant, the recovery and seizure proceedings took place prior to handing over of complaint by him to Commissioner VAT, hence the serial number of currency notes which belonged to the accused and was his personal money was given to Sh. Rohit Mehra, who in turn gave those serial number to the complainant, who mentioned the said serial numbers in the complaint given to PW22 Sh. S.S.Yadav. It is accordingly contended that the fact that the serial number of the currency notes which were mentioned in the complaint matched with the serial numbers of the currency notes which was the personal money of the accused CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 33 of 90 cannot be used to implicate the accused in the present false case which has been foisted upon the accused by the department officials in collision with the ruling political party. It is stated that there are material contradictions in the testimonies of PW2, the complainant, and Sh. Rohit Mehra - PW21, who had accompanied the complainant to the accused. It is stated that even PW21 is not a witness of demand or acceptance of alleged illegal gratification. It is vehemently argued that no standard operating procedure was followed in the present case for dealing with a complaint of corruption by Sh. S.S.Yadav, the then Commissioner Trade and Taxes and the entire manner of conducting inspection and recovery proceedings is without due process of law. It is further contended by the ld. Counsel for the accused that despite there being CCTV cameras fixed in the premises of Sales Tax Office, no CCTV footage of the incident was taken from the official cameras has been placed on record and even the video recording of the incident allegedly taken during the search and seizure proceedings shows the presence of a CCTV camera at the spot. However, despite the same the said CCTV footage was not taken on record and the prosecution has chosen to rely upon the video recording of the search and seizure proceedings instead of the official CCTV footage. It is also argued that no sanction for prosecution has been granted against the accused u/s 7 of the PC Act and the sanction to prosecute u/s 19 of PC Act has been granted only for offence u/s 13 of PC Act and hence the entire proceedings against the accused are vitiated. It is stated that in absence of any evidence of demand either direct or corroborative, the accused is liable to be acquitted for CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 34 of 90 the offences he is charged with.
23. I have heard ld. Counsel for the parties and perused the record.
Testimonies of material witnesses:
24. PW2 Mahender Kumar deposed that he was an accountant by profession and he used to work under the name and style of M.K. & Associates, K-63, Fateh Nagar, Delhi-18. In the year 2018, the VAT registration of the firm of his client in the name and style of "New Delhi Dress" was cancelled. PW2 pursued the case for the VAT registration in VAT Department, GNCT of Delhi. He visited the VAT office in this respect in the month of March and met the concerned person i.e. accused Ramesh Chand Kataria. The accused was correctly identified by PW2 before the court. On enquiry, accused told him to give documents and that he had to visit the site of applicant "New Delhi Dress". PW2 further deposed that accused told him that he had visited the site earlier and did not find material things and the accused asked him to furnish some documents. Thereafter, PW2 went to accused after 3-4 days alongwith the documents and submitted the same. Accused asked PW2 to bring authority letter also. Thereafter, PW2 furnished authority letter to the accused. The accused kept the file containing the documents aside and said "aise kaam nahi hota". Accused kept PW2 waiting despite his several requests and after some time, he said CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 35 of 90 "paise chahiye". PW2 deposed that accused demanded Rs.5,000/- for processing the DVAT registration of the client of PW2. He did not remember the exact date wen the demand was raised.
25. PW2 further deposed that he had called at a number i.e. 1031, which was given by Aam Aadmi Party for making complaints regarding corruption in NCT of Delhi and he explained his grievances. After some time, he received a call from a person, who said that he was from the concerned department which received the calls at 1031 and offered his help. That person told that he would accompany PW2 to Sales Tax Office. Thereafter, PW2 reached at the Sales Tax Office, ITO, GNCT of Delhi. The said person met him at the main gate of the said office and enquired from him. PW2 deposed that he took the said person to Ward no. 93 and they met with accused Ramesh Chand Kataria. Accused enquired from PW2 as to identity of the person accompanying him, at which PW2 introduced said person as one of his employees. Then accused Ramesh Chand Kataria instructed PW2 to send the person accompanying him outside the room as he wanted to talk to him privately. Accordingly, PW2 sent the said person outside the room. Thereafter, accused Ramesh Chand Kataria asked PW2 "paise laaye ho?" PW2 replied that he was having only Rs.2,500/- at that moment. At this, accused Ramesh Chand Kataria told him to bring the entire amount of Rs.5,000/-. Thereafter, PW2 came out of the room and told the said facts to the person accompanying him. That person made a phone call to someone and received some CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 36 of 90 instructions. Thereafter, that person handed over Rs.2,500/- to PW2, which he was falling short of. The said person then clicked photographs of all the currency notes of Rs.2,500/- given by him and Rs.2,500/- which PW2 was having at that time. Then PW2 took Rs.5,000/- to the accused in his ward and accused took him to another adjoining room on the same floor. Accused then accepted the amount from PW2 and told him "ab tum jaao tumhara kaam ho jayega".
26. PW2 came out and met the said person who was accompanying him and narrated the facts to him and that the accused was sitting in his ward. The said person again made a call to someone. After 10-15 minutes, a team of 4-5 persons reached at Ward no. 93. At that time, PW2 was sitting in the waiting area outside the said ward. PW2 further deposed that he did not go inside the room of Ward no. 93 and he came downstairs immediately after the team reached. Then PW2 received a call from the person, who was accompanying him to the office, and he instructed PW2 not to leave the office and wait for some time. PW2 waited for half an hour. Thereafter, the said person came to him and took him to the cabin of Sh. S.S. Yadav where PW2 met with Sh. S.S. Yadav. Sh. S.S. Yadav enquired from PW2 about the incident and PW2 narrated the entire facts. Sh. S.S. Yadav then directed PW2 to write a letter mentioning all the aforesaid facts. Thereafter, PW2 wrote a letter dated 06.05.2016 Ex. PW2/A addressed to Sh. S.S. Yadav, Commissioner, VAT Department, ITO, Delhi. PW2 deposed that he mentioned all the facts truthfully in Ex. PW2/A. Thereafter, CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 37 of 90 PW2 returned to his office.
27. PW2 further deposed that on receiving notices from ACB, he joined investigation and he had told the IO the complete facts. During investigation, his statement was got recorded u/s 164 Cr.P.C. before the Ld. M.M. Ex. PW2/B (also exhibited as Ex. A4).
28. During recording of the testimony of PW2, the currency notes were produced in unsealed condition and contained four notes in the denomination of Rs.1,000/-, 19 notes in the denomination of Rs.500/-, four currency notes in the denomination of Rs.100/- and two currency notes in the denomination of Rs.10/-. PW2 stated that he could not identify the currency notes as it was a four year old case but I could identify the currency notes after matching their serial number with his complaint. After going through the contents of Ex.PW2/A, PW2 tallied the currency notes produced by the MHC(M) with the contents of his complaint and identified two currency notes of Rs.1,000/- denomination having serial number 2AQ232360 and 4CN890733 as Ex.P1 and Ex.P2 respectively. PW2 also tallied the number of currency notes of Rs.500/- denominations with the serial numbers mentioned in the complaint and the currency notes of Rs. 500/- denomination which tallied are Ex.P3 to Ex.P7.
29. PW2 was declared hostile and was cross-examined by Ld. Addl. PP for the state. PW2 stated that the complaint CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 38 of 90 Ex.PW2/A was in his handwriting and he had mentioned complete and true facts in the same. PW2 affirmed that he had initiated for DVAT registration of client 'New Delhi Dress' and as the visit had not occurred for the said registration, it was cancelled by accused R.C. Kataria, VATI. PW2 further affirmed that he had met accused R.C. Kataria in this respect on 04.03.2016 and that he again went to Sh. R.C. Kataria on 09.03.2016 with an application for re-visit, when the accused told him to bring authority letter. PW2 further affirmed that 2-3 days after 09.03.2016, he went to the accused with the authority letter and the accused told him "ja nahi karta" and upon asking the reason, the accused asked for money and said "5000 se kam me baat nahi karta hoon". PW2 affirmed that on the next day, he sent one of his employee namely Sunil Kumar to talk to Sh.R.C. Kataria, in this respect and R.C. Kataria again raised the demand of Rs.5,000/- with him and when Sunil said that he had Rs.2,000/- only, accused R.C. Kataria told him "ja paise pure lekar aa". PW2 affirmed that on 06.05.2016, he went to accused R.C. Kataria and he gave him Rs.5000/- as aforesaid. Thereafter PW2 made a complaint Ex.PW2/A with Sh.S.S. Yadav, Commissioner VAT Department, ITO Delhi. PW2 affirmed that he had duly mentioned correct currency note numbers of Rs. 5000/- which he had given to the accused, in his complaint Ex.PW2/A. PW2 volunteered that the person who had accompanied him on the said day had clicked the photographs of the currency notes in his mobile phone and he (PW2) noted down the numbers from those photographs. After seeing the photographs, that person dictated the numbers and PW2 had CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 39 of 90 noted down the same. PW2 also volunteered that " Jo note maine diye the uski photographs le li thi". After giving the money to accused R.C. Kataria, PW2 went downstairs, thereafter the person accompanying him came to him and took him to Sh. S.S. Yadav. PW2 denied that he was wantonly not disclosing the name of said person who was accompanying him on the said day. PW2 stated that he could not admit or deny if the name of said person was Rohit Mehra but he knew him by face. PW2 denied that Rohit Mehra had clicked the photographs from the mobile phone of PW2. PW2 further stated that he had handed over the aforesaid currency notes of Rs.5000/- to R.C. Kataria in pursuance of his demand.
30. PW21 Rohit Mehra deposed that in the year 2016, he was working as a social worker and was assisting the staff of Sh. Arvind Kejriwal, Chief Minister of Delhi. Sh. Gopal Mohan was Advisor to Chief Minister regarding the complaints received on Anti Corruption Helpline i.e. number 1031. PW21 was assisting Sh. Gopal Mohan.
31. PW21 deposed that 1-2 days prior to 06.05.2016, one Mahender Kumar came to meet Sh. Gopal Mohan and told that one official of Ward no. 93, VAT Office was demanding bribe from him. Sh. Gopal Mohan told him to provide the video regarding demand of bribe if he had it with him. At this, Mahender Kumar told him that he could not record the video as he was afraid and requested Sh. Gopal Mohan to send someone CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 40 of 90 alongwith him. Sh. Gopal Mohan asked PW21 to accompany the complainant to assist him in making video regarding demand of bribe.
32. On 06.05.2016 at about 10:00-11:00 am, PW21 alongwith the complainant went to the office of Ward no. 93, VAT Office. The complainant told PW21 that VATI i.e. accused Ramesh Chand Kataria was demanding bribe from him. Outside the room of accused Ramesh Chand Kataria, complainant took the photographs of the bribe money i.e. GC notes of Rs.500/- and Rs.1,000/- denomination before giving the bribe to the accused so that in case he was unable to record the transaction regarding bribe, they may have some evidence regarding the bribe money which was to be given to the accused. Thereafter, PW21 and the complainant, both went inside the room of the accused but the accused asked PW21 to go outside the room as he was not known to the accused. Accordingly, PW21 went outside the room of the accused. Accused was correctly identified by PW21 before the court. Mahender/complainant told PW21 that he had given the bribe money to the accused but could not record the video. Thereafter, PW21 and complainant went to the office of Sh. S.S. Yadav, who was posted as Commissioner, Trade and Taxes Department. Complainant told him that accused Ramesh Chand Kataria, who was posted as VATI had accepted bribe from him but he could not record the video but he had the photographs of the GC notes which he had handed over to the accused as bribe, in his mobile phone. The Commissioner asked the complainant to CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 41 of 90 give the complaint in writing and asked PW21 to go outside the room. Sh. Mahender Kumar wrote the complaint and gave it to the Commissioner Sh. S.S. Yadav who constituted a team. Thereafter, PW21 left from the office.
33. Ld. Addl. PP for the State after seeking permission of the court put a leading question to PW21. PW21 denied that the serial numbers of GC notes were written on a paper slip and its photographs were taken from the mobile phone of complainant Mahender Kumar. PW21 volunteered that photographs of GC notes were taken.
34. PW-7 Sushil Singh Parihar deposed that in the year 2016, he was working as planning manager in Kautalya Industries. He had started his own firm in the name and style of 'New Delhi Dress' and for that he required a TIN for which he had contacted Mr. Mahender Singh, a private accountant. Mr. Mahender Singh i.e. the complainant had asked for Rs.5000/- alongwith documents for obtaining TIN. Earlier, the application of his TIN was cancelled after two months and nobody had visited at his site at Aaya Nagar. Mr. Mahender Singh had again applied for obtaining TIN on his instructions. Accused Ramesh Chand Kataria visited his site after two months but PW7 was not present there at that time. He was not informed by the accused Ramesh Chand Kataria about the said visit. Later Mr. Mahender Singh informed him, after the raid, that the accused Ramesh Chand Kataria had demanded money for obtaining the TIN.
CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 42 of 9035. With the permission of the court, Ld. Addl. PP for State put some leading questions to PW7. PW7 affirmed that Mahender Kumar had taken Rs.5000/- for obtaining the TIN. PW7 further affirmed that after his first application for obtaining TIN was rejected, Mahender had apprised him that accused Ramesh Chand Kataria had demanded money for issuing the TIN. PW7 further affirmed that he had also met Ramesh Chand Kataria once. He also affirmed that later on a complaint was lodged against Ramesh Chand Kataria by Mahender Kumar and the raid was conducted. PW7 correctly identified the accused Ramesh Chand Kataria in the court. He stated that he could not recollect the above facts due to lapse of time.
36. Before appreciating evidence in this case, it is important to note that even in a case under Prevention of Corruption Act, 1988, the onus is on the prosecution to prove the the foundational facts. The Hon'ble Supreme Court in A. Subair v. State of Kerala [(2009) 6 SCC 587] while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)( d) of the Act ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.
37. The Constitution Bench of Hon'ble Supreme Court CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 43 of 90 in Neeraj Dutta vs. State, Govt. of NCT of Delhi, Crl. Appeal no. 1669 of 2009, with regard to the nature and quality of proof necessary to sustain a conviction for offences under Section 7 or 13 (1) (d) (i) & (ii) of the PC Act, summarized as under :-
" 68. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d)
(i) and(ii) of the Act.
(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1)(d)(i) and (ii) of the Act.CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 44 of 90
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue.
In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13 (1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 45 of 90 Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13 (1) (d) (i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point
(e) as the former is a mandatory presumption while the latter is discretionary in nature."
38. The Hon'ble Supreme Court in State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede Crl.Appeal No. 1350 of 2009, d.o.d. 29.07.2009 held that the foundational facts must be established by the prosecution. It was also observed that that while invoking the presumption under section 20 of PC Act, the court is required to consider the explanation offered by the accused, if any, only on the touch stone of preponderance of probability and not on the touch stone of proof beyond all reasonable doubt. The Hon'ble Supreme court made the following observations in this regard:
"16. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence, viz., demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably, the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 46 of 90 thereof, it is trite, the standard of burden of proof on the accused vis-`-vis the standard of burden of proof on the prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt."
39. As regards raising of presumption under section 20 of the PC Act, it was held in Mukut Bihari Vs State of Rajasthan, 2012 (11) SCC 645 as under :-
"The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification but the burden rests on the accused to displace the statutory presumption raised under section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 47 of 90 beyond all reasonable doubt. However, before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interest and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused persons." (emphasis supplied)
40. As regards drawing of presumption, it has been held in Madhukar Bhaskarrao Joshi Vs State of Maharashtra, (2000) 8 SCC 571 as under:-
"The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. So the word "gratification" need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like "gratification of any valuable thing". If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word "gratification" must be treated in the context to mean any payment for giving satisfaction to the public servant who received it." (emphasis supplie)
41. The presumption under section 20 of the PC Act is rebuttable either through cross-examination of witnesses of prosecution or by adducing reliable evidence as held in C. M. CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 48 of 90 Girish Babu vs CBI, Cochin High Court of Kerala (2009) 3 SCC
779.
42. In State of Punjab v. Madan Mohan Lal Verma , (2013) 14 SCC 15 , the Hon'ble Supreme court made the following observations as regards the burden of proof upon the prosecution and the accused in light of presumption under section 20 PC Act.:
"11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 49 of 90 accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person. (Vide Ram Prakash Arora v. State of Punjab [(1972) 3 SCC 652 : 1972 SCC (Cri) 696 : AIR 1973 SC 498] ,T. Subramanian v. State of T.N. [(2006) 1 SCC 401 : (2006) 1 SCC (Cri) 401] , State of Kerala v. C.P. Rao [(2011) 6 SCC 450 : (2011) 2 SCC (Cri) 1010 : (2011) 2 SCC (L&S) 714] and Mukut Bihari v. State of Rajasthan [(2012) 11 SCC 642 : (2013) 1 SCC (Cri) 1089 : (2013) 1 SCC (L&S) 136] .)"
(emphasis supplied)
43. Viewed in light of law discussed herein-above, it has to be examined as to what extent the prosecution has succeeded in proving the charge against the accused.
44. It is the case of the prosecution that accused Ramesh CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 50 of 90 Chand Kataria, VAT Inspector, had demanded bribe amount of Rs. 5000/- from the complainant PW2 Mahender Kumar for registration of VAT of a firm namely "New Delhi Dress" and in pursuance to the demand he had obtained Rs. 5000/- from the complainant on 06.05.2016 as bribe money and accordingly he is liable to the held guilty for the charged offence.
45. It is contended that the complainant was declared hostile and hence his testimony cannot be relied upon and that even IO PW 26 has deposed that during investigation the complainant told him that he did not wish to proceed with the complaint. It is stated that the complainant was coerced into making a statement under section 161 Cr.P.C. and under section 164 Cr.P.C. and even before court.
46. It is settled law that it is not that the testimony of hostile witnesses is to be discarded altogether as the same is available to be read. In this context, reference can be made to Dhananjay Singh Chauhan vs State, 2013 IV AD (Cri) (DHC) 259, wherein the Hon'ble Supreme Court observed as under:
"There appears to be misconception regarding the effect on the testimony of a witness declared hostile. It is a misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration. This Court in Bhagwan Singh v. State of Haryana [AIR 1976 SC 202] held that merely because the Court gave permission to the Public Prosecutor to cross- examine his own witness describing him as hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 51 of 90 legal bar to base conviction upon the testimony of such witness. In Rabindra Kumar Dey v. State of Orissa [AIR 1977 SC 170] it was observed that by giving permission to cross-examine nothing adverse to the credit of the witness is decided and the witness does not become unreliable only by his declaration as hostile. Merely on this ground his whole testimony cannot be excluded from consideration. In a criminal trial where a prosecution witness is cross-examined and contradicted with the leave of the Court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the court of fact to consider in each case whether as a result of such cross-examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the court can rely upon the part of testimony of such witness if that part of the deposition is found to be creditworthy." (emphasis supplied)
47. The above principle of law has been followed in Krishan Chander vs. State of Delhi, (2016) 3 SCC 108 etc. The law therefore permits courts to take into consideration the deposition of the hostile witness to the extent the same is in consonance with the case of the prosecution and is found to be reliable on careful judicial scrutiny. Conviction can be based on such a testimony, if corroborated by other reliable evidence. Therefore, testimony of Mahender Kumar PW2 cannot be wholly rejected and the same is relevant. It is pertinent to note that the complainant PW2 has supported the case of the prosecution and was not hostile on material points even in his examination-in- chief. Moreover no suggestion was given to the complainant that he was coerced into making a statement under section 161 CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 52 of 90 Cr.P.C. or under section 164 Cr.P.C. or before the court.
48. From perusal of the testimony of the complainant PW2 Mahender Kumar it emerges that in the year 2018 he had applied for registration of VAT for his client in the name and style of 'New Delhi Dress', whose owner was PW7 Sh. Sushil Singh Parihar, who deposed that he had contacted PW2 Mahender Singh for obtaining the TIN and that Mahender Singh had applied for obtaining the TIN on his instructions. PW2 further deposed that accused had demanded Rs. 5000/- for registration of his client New Delhi Dress. PW7 deposed that Mahender Kumar had taken Rs. 5000/- for obtaining the TIN and that after his first application for obtaining TIN was rejected, Mahender had apprised him that accused Ramesh Chand Kataria had demanded money for issuing the TIN.
49. The testimony of PW2 complainant also stands corroborated with the testimony of PW7 regarding the fact that an application for registration of VAT had been filed on behalf of New Delhi Dress, a concern of PW7 Sushil Singh Parihar. The earlier application for registration of VAT was cancelled and the accused asked PW2 to furnish fresh documents including authority letter and at that time he also demanded money for VAT registration and had demanded Rs. 5000/- from PW2. The testimony of PW7 to the extent that Mahender had apprised him that accused Ramesh Chand Kataria had demanded money for issuing the TIN is heresay and cannot be relied upon.
CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 53 of 9050. As regards 'demand' of bribe PW2 has deposed that he was pursuing the case of his client "New Delhi Dress" for registration of VAT in VAT Department at VAT office in the month of March on 04.03.2016 and met the concerned person i.e. accused R.C.Kataria, who told PW2 to furnish documents and that he had to visit the site of the applicant "New Delhi Dress"
and further told him that upon his earlier visit, he did not find material things and asked PW2 to furnish certain documents. Thereafter PW2 went to the accused on 09.03.2016 alongwith the requisite documents and submitted them. The accused also asked PW2 to bring an authority letter, which was furnished by PW2 after 2-3 days. On that day the accused demanded Rs. 5000/- from PW2 for processing the DVAT registration of his client and stated "5000 se kam mai baat nahi karta hu". On the next day, PW2 again sent one of his employee namely Sunil Kumar to talk to the accused, but he again raised the demand of Rs. 5000/- and when Sunil said that he had only Rs. 2000/-, the accused told him to get the full amount.
51. The complainant made a call at 1031 regarding demand of bribe by the accused and he was offered help by the anti-corruption department and a person told him that he would accompany him to the Sales Tax office. On 06.05.2016 PW2 alongwith that person ie PW21 went to Ward No. 93, Department of Trade & Taxes, GNCT of Delhi, where the accused was posted, however, the accused asked PW21 to leave the room as he wanted to talk to PW2 privately. PW21 went outside the room and thereafter the accused asked PW2 "Paise Laaye Ho?" at which PW2 replied that he was having only Rs.
CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 54 of 902500/- with him. Upon that the accused told PW2 to bring the entire amount of Rs. 5000/-. Thereafter PW2 came out of the room and informed PW21 about the same. PW21 handed over Rs. 2500/- to PW2 and they took the photographs of currency notes of Rs. 2500/- belonging to PW2 and the other Rs. 2500/- which were given to PW2 by PW21. Thereafter PW2 took Rs. 5000/- to the accused in his Ward, who took him to an adjoining room on the same floor and told PW2 "Ab Tum Jao Tumahra Kam Ho Jaiga".
52. During his cross-examination, PW-2 was confronted with his complaint Ex.PW2/A and statement recorded U/s 164 Cr.P.C. Ex. A4 wherein PW-2 stated that the accused told him to get money and when PW-2 stated that his client could not give, he kept the file on the side and said "5,000/- se kam mein baat nahi karta hun".
53. It is relevant to note that in his cross-examination by Ld. Addl. PP for State, the complainant PW-2 had affirmed the above contents of the complaint Ex.PW2/A and even in his examination in chief, he stated that the accused kept the file containing the documents aside and said "aise kaam nahi hota"
and after some time, he said " paise chahiye" and he demanded Rs.5,000/- for processing the DVAT registration of his client. Hence, the intent and purport of what is stated by PW-2 in his examination in chief is same as the contents of his complaint Ex.PW2/A and statement recorded U/s 164 Cr.P.C. Ex.A-4.CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 55 of 90
54. It is further deposed by PW-2 that on 06.05.2016 when the complainant went to the accused R.C. Kataria alongwith PW-21, and after PW-21 was asked to go outside the room of the accused, the accused asked PW-2 " paise laaye ho?"
and after receiving the money, the accused told PW-2 " ab tum jaao, tumhara kaam ho jayega". PW-2 was confronted with his complaint Ex.PW2/A and his statement recorded U/s 164 Cr.P.C. wherein it is mentioned that the accused told him that if he had brought Rs.5,000/- and thereafter, he gave Rs.5,000/- to him. Hence, even though the exact words i.e. " ab tum jaao, tumhara kaam ho jayega" are not mentioned in the complaint, however the fact that the accused again demanded Rs.5,000/- from the complainant and received them from him are categorically mentioned in the previous statements of the complainant. Hence, the version of the complainant PW2 before the court in alignment with the contents of his complaint Ex. PW2/A as well as the testimony of PW2 on the aspect of demand of bribe and its acceptance by the accused.
55. PW21 is neither an eyewitness of demand nor acceptance. He has corroborated the version of the complainant to the extent that upon the complaint of the complainant at Anti- Corruption Department of Delhi Govt., he had accompanied the complainant to Ward No. 93 at Department of Trade & Taxes, GNCT, Delhi, on 6.05.2016 when the complainant had gone to give the bribe money to the accused; that they took the photographs of the currency notes amounting to Rs 5000/- before they were given as bribe to the accused; that the accused CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 56 of 90 had sent him out of the room to talk to the complainant privately; after giving the bribe money, the complainant apprised him of the same and a complaint in that regard was made to PW22 Commissioner VAT by the complainant. Therefore, the testimony of PW21 supports the version of the complainant PW2 on material points.
56. Hence from the aforesaid discussion including testimony of the complainant PW2, it emerges that 2-3 days after 09.03.2016, when the complainant went to the Department of Trade & Taxes, GNCT, Delhi, the accused categorically demanded Rs. 5000/- from PW2 for processing the DVAT registration of his client. When PW2 again sent one of his employees namely Sunil Kumar to talk to the accused, he again raised the demand of Rs. 5000. Sunil has not been arrayed as a witness and hence the statement attributed to him by the complainant is hearsay and would not have any evidentiary value. However, the complainant has specifically deposed regarding the demand of Rs. 5000/- made to him by the accused 2-3 days after 09.03.2016 and again on 06.05.2016. Additionally, there is a specific assertion by PW2 that on 06.05.2016 when he went to the accused R.C. Kataria along with PW-21, PW-21 was asked by the accused to go outside the room and thereafter the accused obtained Rs. 5000/- from the complainant. Hence there is direct evidence of PW2 complainant regarding demand and acceptance as is envisaged under section 7 of PC Act. The testimony of PW2 also finds support in the testimony of PW7, PW21 and PW22 on material points.
CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 57 of 9057. As regards inspection and recovery proceedings, PW22 Sh. S.S. Yadav, who was posted as Commissioner, Trade and Taxes Department, Govt. of NCT of Delhi, deposed that on 06.05.2016 complainant Mahender Kumar initially made an oral complaint against one Ramesh Chand Kataria who was posted as VAT Inspector, on which PW22 had asked him to give a written complaint and accordingly he gave a written complaint vide Ex.PW2/A and thereafter PW22 constituted a team comprising Sh. Pravesh Ranjan Jha - Additional Commissioner, Sh. Naveen Gosain - Asst. Commissioner and Sh. L.K. Gautam -Asst. Commissioner. PW22 briefed them about the complaint and directed them to conduct an inspection at Ward no. 93 where accused Ramesh Chand Kataria was posted as VATI.
58. PW8 Pravesh Ranjan Jha posted as Joint Commissioner in Department of Trade and Taxes, GNCTD, in this regard deposed that on 06.05.2016 he was called by the Commissioner of Department of Trade and Taxes and briefed about the complaint and on the basis of which he was asked to visit Ward No. 93. The complaint was against Sh. R.C.Kataria, who was posted as VATI. PW8 was accompanied by PW11 and PW9 as well as two civil defence volunteers. On reaching the said Ward they found two officials present in the Ward i.e. Sh. R.C.Kataria and another lady official namely Ms. Meena, who was posted as UDC. The team inquired about the amount Sh. R.C.Kataria was having with him and he informed that he was carrying around Rs. 13,000/- to Rs. 14,000/- with him which he CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 58 of 90 readily took out from his pocket. Thereafter the ward Incharge, who was not present at that time and reportedly attending a meeting in the conference hall was informed to reach the ward. He reached at the time when the seizure memo was being prepared. The currency notes were counted by PW9. The seizure memo was also signed by PW8 and the Ward Incharge Sh. Dinesh Gandhi PW10. PW11 Sh. Naveen Gosain videographed the proceedings on his personal mobile phone. PW8 identified the video recording of the proceedings conducted on 06.05.2016 regarding recovery and seizure of currency notes from the accused. The serial numbers of the currency notes, which were produced in court from malkhana, were compared with the serial numbers mentioned in the seizure memo Ex. PW8/A and found to be correct and the 29 currency notes were exhibited as Ex. PW8/A1 to A29. PW8 also prepared a report Ex. PW8/B and submitted the same to Special Commissioner, Vigilance, Department of Trade and Taxes.
59. PW9 Sh. Lalit Kant Gautam, who was posted as Asstt. Commissioner Vigilance, Trade and Taxes Department, on 06.05.2016 also deposed on similar lines and thereby corroborated the version of PW8 regarding search in Ward No. 93 qua Sh. R.C.Kataria, VATI. PW9 deposed that he had prepared the seizure memo of the currency notes, which were recovered from the accused, and the serial number of those GC notes were also mentioned in the seizure memo prepared by him. PW9 identified his signatures on the seizure memo Ex. PW8/A and the report Ex. PW8/B. He also identified the video-
CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 59 of 90recording of proceedings deposed to be made by PW11, contained in the DVD Ex. P-8. He deposed that the videography done by Sh. Naveen Gosain in his mobile phone was transferred in a CD by him and handed over to higher officials alongwith the report and the seized currency notes recovered from the accused.
60. Similarly, PW11 Naveen Gosain, who was part of the seizure proceedings also corroborated the version of PW8 and PW9 regarding the search and seizure proceedings qua the accused conducted on 06.05.2016. He also identified his signatures on the seizure memo Ex. PW8/A. He deposed that he had made video-recording of the proceedings with his mobile phone. Sh. Pravesh Ranjan Jha asked him to prepare a CD of the video footage which was recorded by him from his mobile phone. PW11 prepared the said CD with his office computer. PW11 handed over the CD to PW8. PW11 made video recording of the incident with his personal mobile phone. PW11 prepared a CD of the video recording on his office computer from his mobile phone. He also gave a certificate u/s 65B of Indian Evidence Act in support of the said video-recording contained in the CD.
61. Perusal of testimony of witnesses of search and seizure proceedings i.e. PW8, PW9 and PW11 reveals that on 06.05.2016 they were called by PW22, Commissioner of Department of Trade and Taxes and briefed about the complaint and on the basis of which they were asked to visit Ward No. 93. The complaint was against R.C.Kataria, who was posted as CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 60 of 90 VATI. PW8 was accompanied by PW11 and PW9 as well as two civil defence volunteers. On reaching the said Ward they found two officials present in the Ward i.e. Sh. R.C.Kataria and another lady official. The team inquired about the amount Sh. R.C.Kataria was having with him and he informed that he was carrying around Rs. 13,000/- to Rs. 14,000/- with him which he readily took out from his pocket. Thereafter the ward Incharge i.e. PW10, who was not present at that time and was attending a meeting in the conference hall was informed to reach the ward. He reached at the time when the seizure memo was being prepared. The currency notes were counted by PW9 Sh. L.K.Gautam, who prepared the seizure memo. The seizure memo Ex. PW8/A was also signed by PW8, PW9, PW10, PW11. PW8 deposed that one civil defence volunteer and the lady official in the Ward also signed the seizure memo Ex. PW8/A. The lady official PW Meenu Mehan, Lokesh and Sahil Doonga were dropped from the list of witnesses being witnesses of same facts i.e. fact of recovery and seizure of currency notes from the accused.
62. Subsequently, PW12 Sh. S.K.Bhandari, Special Commissioner, constituted a team comprising PW13 Sh. Krishan Veer, Assistant Commissioner Vigilance, Dinesh Pandey - Deputy Secretary Vigilance and PW14 A.K.Goel - Assistant Commissioner and he handed over the sealed envelop to them while apprising the facts and asked them to note down the serial number of the GC notes which were in the sealed envelop pursuant to which the sealed envelop was opened by them and CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 61 of 90 they prepared a memo Ex. PW13/A and thereafter the currency notes alongwith the envelop were kept in another envelop which was sealed and handed over to PW12 S.K.Bhandari. The said memo Ex. PW13/A was also enclosed with the request for lodging the FIR made by PW12 S.K.Bhandari vide Ex. PW12/A. During recording of testimony of PW13 the serial number of GC notes mentioned in Ex. PW13/A were tallied with the serial number of the currency notes produced before the court Ex. PW8/A-1 to A-29 and found to be correct. The enquiry regarding the matter was assigned to Rakesh Kumar vide MC No. 158/2016. IO Rakesh Kumar opened the sealed envelop and tallied the serial number of GC notes with the serial numbers mentioned in the report of PW12 in the presence of PW16 and prepared identification memo Ex. PW16/A. Hence, the serial number of GC notes were got counter checked by Commissioner Vigilance vide memo Ex. PW13/A and thereafter by the IO vide observation memo Ex. PW16/A and the said notes were got deposited by IO Insp. Rakesh Kumar at the malkhana.
63. Accordingly entire chain of events regarding recovery and seizure of the currency notes from the accused on 06.05.2016 has been deposed by PW8, PW9, PW10 and PW11 and there is no material contradiction in their testimonies and they are consistent with each other. Nothing has been revealed in their cross-examination to disbelieve their version. In these circumstances the mere fact that the official CCTV footage of the incident has not been placed on record cannot be fatal to the case of the prosecution. Pertinently, the accused has nowhere CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 62 of 90 suggested to any of the recovery and seizure witnesses ie PW8, PW9, PW10 or PW11 that the seized currency notes were not recovered from him or that they did not belong to him or that they were planted upon him. Hence the recovery of the GC notes Ex. A1 to Ex. A 29 vide Seizure Memo PW8/A by the team constituted by PW22 stands proved on record on the basis of oral testimonies of the aforesaid witnesses.
64. As discussed, the accused has not claimed during entire trial that the currency notes recovered from him vide seizure memo Ex. PW8/A did not belong to him nor the accused has taken the plea that the recovered notes were planted upon him and in fact during the course of arguments the accused has stated that the recovered money belonged to him and he had also written to the authorities claiming that amount.
65. As discussed, during their testimony recorded before the court PW8, PW9 and PW11 deposed that the serial numbers of the GC notes, which were recovered from the accused were mentioned in seizure memo Ex. PW8/A and the total recovered amount was Rs. 13,920/-. During recording of their testimony, the serial number of the currency notes produced before the court were compared with the serial number of the currency notes mentioned in seizure memo Ex. PW8/A and they were found to be correct and the 29 currency notes were exhibited as Ex. PW8/A1 to A29.
66. During recording of testimony of PW2, he identified CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 63 of 90 two currency notes of Rs. 1000/- denomination having serial numbers 2AQ 232360 and 4CN 890733, Ex. P1 and P2 respectively, totalling to Rs. 2000/- after tallying them with the contents of his complaint Ex. PW2/A. PW2 also tallied the currency notes of Rs. 500/- denomination produced before the court with the serial numbers mentioned in his complaint and the said currency notes of Rs. 500/- denomination are Ex. P-3 to P-7 i.e. five currency notes amounting to Rs. 2,500/-. Hence, two currency notes of Rs. 1000/- denomination and five currency notes of Rs. 500/- denomination totalling to Rs. 4,500/-, which were mentioned in the complaint Ex. PW2/A, were recovered and seized amongst other currency notes (29 in number) from the accused vide Ex. PW8/A. The complaint Ex. PW2/A was handed over to the Commissioner VAT prior to the inspection and search team being constituted, hence it can be safely concluded that the GC notes amounting to Rs. 4,500/- ie Ex. P1 to Ex P7, which were recovered from the accused during the recovery and seizure proceedings vide Ex. PW8/A, (wherein 29 currency notes were recovered including Ex. P-1 to P-7) were part of the same GC notes (amounting to Rs. 5000/-), which were obtained by the accused from the complainant as a bribe money. Accordingly, the ingredients of section 7 of PC Act i.e. demand and acceptance of illegal gratification for processing the DVAT application of New Delhi Dress, client of PW2, stand proved in the present case.
67. There is no dispute regarding the proposition of law as laid down in the judgments relied upon by the ld. Counsel for CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 64 of 90 the accused that mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, would not be sufficient to bring home the charge under section 7 and 13 of the PC Act. As discussed hereinabove the complainant in the present case has specifically deposed regarding demand of illegal gratification by the accused. Merely because he was declared hostile would not wash away his entire testimony and the same can be accepted to the extent it supports the prosecution version. In the judgment of B.Jairaj (supra) relied upon by the accused, the complainant had disowned his complaint and did not support the version regarding demand by the accused. In P.Satyanarayana Murty (Supra) case, the complainant had died before the trial and the court observed that the evidence of other witnesses was not sufficient to prove the demand even though recovery stood proved. In R.P.S.Yadav (Supra) case also all the prosecution witnesses turned hostile and the complainant did not support the prosecution story in any manner whatsoever. In Bishnu Deo Ram (Supra) case there was no substantive evidence regarding demand of bribe by the accused. Hence, the facts of the cases relied upon by ld. Counsel for the accused are distinguishable from the facts in the present case.
68. Ld. Counsel for the accused has also delved minutely into the discrepancies in the testimony of the witnesses to falsify the version of the prosecution. It is contended that as per the version of complainant PW2, he had called on no. 1031 for making a complaint regarding corruption, which was given CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 65 of 90 by AAP Govt. for making complaints regarding corruption in NCT of Delhi. He made a complaint on that number and thereafter he received a call from a person, who offered his help and told PW2 that he would accompany him to Sales Tax Office. The said person met PW2 on the gate of Sales Tax Office and then PW2 took him to Ward No. 93 where they met the accused. It is contended that the said version of PW2 is in contradiction with the version of PW21 Rohit Mehra who had purportedly accompanied PW2 to the Sales Tax Office. It is stated that as per version of PW21, 1-2 days prior to 06.05.2016 the complainant had come to meet Sh. Gopal Mohan and told him about demand of bribe by the official of Ward No. 93 VAT and that Sh. Gopal Mohan asked PW21 to accompany the complainant to assist him to made a video recording regarding demand of bribe. It is contended by Ld. Counsel for the accused that PW2 has nowhere in his testimony stated that he had met Sh. Gopal Mohan 1-2 days prior to 06.05.2016 and his testimony is totally silent regarding meetings with Sh. Gopal Mohan and hence, there is a contradiction in the testimony of PW2 and PW21 on that account.
69. As regards the testimony of an eye witness, the Hon'ble Supreme Court in Shahaja @ Shahajan Ismail v. The State of Maharashtra, passed on 14.07.2022 in Criminal Appeal No. 739 of 2017 held as under :
"27. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 66 of 90 evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 67 of 90 evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 68 of 90 might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 69 of 90 the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.
[See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, 1983 Cri LJ 1096 : AIR 1983 SC 753, Leela Ram v. State of Haryana, AIR 1999 SC 3717, and Tahsildar Singh v. State of UP, AIR 1959 SC 1012]
28. To put it simply, in assessing the value of the evidence of the eye- witnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 70 of 90 veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, yet the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or puts forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence.
29. There is nothing palpable or glaring in the evidence of the two eye-witnesses on the basis of which we can take the view that they are not true or reliable eye-witnesses. Few contradictions in the form of omissions here or there is not sufficient to discard the entire evidence of the eye-witnesses."
70. Accordingly, it was held that the discrepancies and inconsistencies which do not go to the root of the matter should not be given undue weightage to discard the version of an eye witness.
71. Viewed in light of law discussed above, it may be noted that the aforesaid discrepancies pointed out by Ld. Counsel for the accused relating to non-mention by the complainant PW2 about a meeting with Sh. Gopal Mohan do not pertain to the CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 71 of 90 essential allegations against the accused and do not go to the root of the matter and as held by the Hon'ble Supreme Court, such contradictions in the form of omissions here or there in the testimony of PW2 regarding a meeting with Sh. Gopal Mohan, which does not even touch the fundamental facts of the case, would not be sufficient to discard the entire evidence of the complainant.
72. It is further stated that as per the testimony of PW21, the complainant took photographs of the bribe money outside the room of the accused, before giving bribe to the accused so that in case they were unable to record the bribe transaction, they would have some evidence regarding bribe money, which was given to the accused. It is urged that on the other hand the complainant PW2 stated that the person accompanying him had clicked the photographs. In this regard it is noted that PW21 denied the suggestion of Ld. Addl.P.P. for the State that the serial number of GC notes were written on a paper slip and its photographs were taken from the mobile phone of complainant Mahender Kumar and he volunteered that the photographs of the GC notes were taken. It is argued that neither those photographs nor the slip of paper has been placed on record. It is accordingly stated that as per the version of the prosecution itself, the photograph of a paper slip on which the serial number of the GC notes were written, was taken by the complainant on his mobile phone. It is urged that there is a contradiction regarding who clicked those photographs. However, merely because there is contradiction in the testimony CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 72 of 90 PW2 and PW21 as regards who clicked the photographs of GC notes, cannot be stated to be a material contradiction and does not go to root of the matter as both of them have essentially stated that the photographs of the GC Notes were taken and their number was mentioned in the complaint Ex.PW2/A from those photographs.
73. It is argued that as per the testimony of PW21 after giving the bribe money to the accused, the complainant came out of the room and thereafter PW21 and the complainant went to the office of the Commissioner, Trade and Taxes Department and the complainant narrated the incident to him and told him that he was having photographs of the GC notes, which he had handed over to the accused as the bribe in his mobile phone. The Commissioner then asked the complainant to give complaint in writing and asked PW21 to go outside the room. The complainant then wrote a complaint and gave it to Commissioner Sh. S.S.Yadav, who constituted a team. It is stated that the statement of PW21 is contradictory to the testimony of PW2, who had deposed that when he came out and met the person, who was accompanying him, and told the facts to him, the said person made a call to someone and after 10/15 minutes a team of 4-5 persons reached at Ward No. 93. At that time PW2 was sitting in the waiting area outside the ward. It is argued that as per testimony of PW2, it was only thereafter that said person ie PW21 took PW2 to the cabin of Sh. S.S.Yadav, the then Commissioner VAT Department, who enquired from him about the incident and PW2 narrated the entire facts and thereafter he CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 73 of 90 gave a complaint to Sh. S.S.Yadav. It is thus stated that since the complaint was written after the inspection and seizure operation had already been conducted, therefore the serial number of currency notes recovered from the accused matched with serial number of the currency notes, which were mentioned in the complaint of PW2 vide Ex. PW2/A, thereby showing that the accused has been falsely implicated in the present case.
74. In this regard PW22 Sh. S.S. Yadav, who was posted as Commissioner, Trade and Taxes Department, Govt. of NCT of Delhi, deposed that on 06.05.2016 complainant Mahender Kumar initially made an oral complaint against one Ramesh Chand Kataria who was posted as VAT Inspector, on which PW22 had asked him to give a written complaint and accordingly he gave a written complaint vide Ex.PW2/A and thereafter PW22 constituted a team comprising Sh. Pravesh Ranjan Jha - Additional Commissioner, Sh. Naveen Gosain - Asst. Commissioner and Sh. L.K. Gautam -Asst. Commissioner. PW22 briefed them about the complaint and directed them to conduct an inspection at Ward no. 93 where accused Ramesh Chand Kataria was posted as VATI. It is pertinent to note that PW22 further stated that as per complainant, accused Ramesh Chand Kataria had demanded and accepted Rs.5,000/- as bribe and also mentioned the serial numbers of the GC notes which he had given as bribe to Ramesh Chand Kataria. Hence, as per version of PW22 the raiding/search team was constituted only after the complainant gave a written complaint to him vide Ex. PW2/A wherein the serial number of GC notes, which were given to the CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 74 of 90 accused as bribe money, had been mentioned.
75. Accordingly, the testimony of PW21 that after handing over the bribe money, the complainant and PW21 went to the office of Commissioner VAT where the complainant gave his complaint in writing to the Commissioner and that thereafter the Commissioner constituted a team stands corroborated by the version of the then Commissioner, VAT, PW22. PW21 also denied suggestion to the contrary. It is also noted that the serial number of currency notes, which were handed over by the complainant to the accused, are mentioned in the initial complaint Ex. PW2/A. The said complaint Ex. PW2/A does not mention that the recovery and seizure proceedings had already been conducted. In fact, no suggestion was put to PW22 that the inspection team was sent before the written complaint was received from the complainant. PW22 denied the suggestion that on his instructions the team officials gave serial no. of the GC Notes to one Rohit Mehra who mentioned those numbers in the complaint.
76. Merely because the complainant has not given the correct sequence events in his initial examination-in-chief would not lead to the conclusion that the inspection search of the accused was conducted by the team before the complainant had filed his complaint. Noticeably, there is no mention of the search and recovery proceedings in the complaint Ex. PW2/A filed by the complainant with Commissioner VAT. As held in Shahaja case (supra), ordinarily a witness cannot be expected to recall CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 75 of 90 accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when examined later. Moreover, the complainant in his cross-examination by Ld. Addl.P.P. for the State also stated that after giving money to the accused Ramesh Chand Kataria, PW2 went down and thereafter the person accompanying him took him to Sh. S.S.Yadav, Commissioner VAT. Thus the complainant in his cross-examination by Ld. Addl.P.P. for the State, stated that after he had handed over the money to the accused, he went to Sh. S.S.Yadav. Hence, the fact that the complainant did not give correct sequence of events in his examination-in-chief would not lead to a conclusion that the accused has been falsely implicated in the present case inasmuch as the complainant has affirmed the correct sequence of events in his cross-examination by Ld. Addl.P.P. for the State and the said sequence of events has also been testified by PW21 and PW22.
77. Additionally even the witnesses of search and seizure proceedings i.e. PW8, PW9 and PW11 have deposed that after they were called by PW22, Commissioner Trade & Taxes Department, they were apprised of the complaint and were directed to conduct an inspection. It is thus manifest that prior to conducting inspection and search, the complaint had already been received by PW22 and only thereafter inspection and search proceedings were carried out.
78. Accordingly, it emerges from the record that the Commissioner VAT PW22 constituted an inspection team only CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 76 of 90 after receiving complaint Ex. PW2/A from the complainant. Hence, the contention of the ld. Counsel for the accused in this regard is unsustainable.
79. It is the defence of the accused as stated in his statement recorded under section 313 Cr.P.C. that the accused has been falsely implicated in the present case in connivance with the department officials by the ruling political party in Delhi, which was asking the general public to file false cases of corruption to show drive of the ruling party against corruption. However, there is no cogent reason furnished by the accused as to why PW22, who was the then Commissioner VAT, would falsely implicate the accused in a corruption case. No specific reason for false implication of accused by Commissioner VAT or any other department official has been brought on record. No personal animosity or grudge or any other reason has been even remotely suggested to be the reason for false implication by the VAT Department. There is no reason brought on record as to why the accused would be targeted by Commissioner VAT or other department officials at the behest of the then ruling party. The accused has not examined any witness to substantiate the defence taken by him. Merely stating that the officials of the Department had been acting at the behest of the ruling party would not be sufficient to discard the version of PW22 and other officials of the Department ie PW8, PW9, PW10, PW11 and PW12 who had conducted the inspection and search of the accused.
80. It has further been contended by ld. Counsel for the CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 77 of 90 accused that the entire recovery and seizure process was got conducted by Commissioner VAT PW22 on 06.05.2016 unauthorisedly instead of sending the complaint to Commissioner Vigilance VAT for further action. It is urged that Commissioner VAT PW22, himself constituted a team and conducted the alleged search and inspection against the accused without any authority and acted at the behest of Rohit Mehra PW21, who was a volunteer of AAP Govt. It is stated that the purported procedure adopted by Commissioner VAT was not in accordance with the rules and was without any authority. PW22 in his cross- examination affirmed the suggestion that if any complaint regarding corruption was received through Dak/mail in his office, same was to be marked to the Special Commissioner, Vigilance. However, on a specific question being put to him by the court, as to whether any complainant could come directly to the Commissioner, Trade and Taxes for making a complaint regarding corruption in his office, PW22 replied in the affirmative. Ld. Counsel for the accused has not been able to point out from the record as to how the Commissioner VAT was precluded from acting upon the complaint received by him against a Department Official. Moreover, even the inspection team constituted by PW22 comprised Sh. L.K.Gautam PW9 who was posted as Assistant Commissioner Vigilance and hence an official of Vigilance Branch was also a member of the inspection team. The contention of Ld. Counsel for the accused that Commissioner VAT acted without any authority in constituting the inspection team is misconceived.
CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 78 of 9081. It is also contended by Ld. Counsel for the accused that as on the date of incident i.e. 06.05.2016 there was no application of New Delhi Dress pending before the accused as the application also stood cancelled in December 2015 and hence there was no occasion for the accused to demand bribe from PW2.
82. In this regard PW2 in his cross-examination has stated that he knew the process of VAT registration. After the receipt of online application VAT number is generated and the Inspector visits the premises thereafter to verify the physical existence of the entity and the documents. If the Inspector gives a positive report, VAT is registered and a TIN number is generated. Generally, the initial reference number is later confirmed as Permanent TIN number. If the report of the inspector is negative, the portal shows the status of application as cancelled. On a specific question being put to him by the ld. Counsel for the accused, he stated that they only get to know about the status of the VAT registration as cancelled and did not know whether the report is negative or not or whether it has been uploaded on the portal. He further stated that he was not aware that if after the cancelled status, the application for reconsideration can be given only to Assistant Commissioner of the Ward and not to the VATI.
83. In his cross-examination PW1 deposed that in the present case as per record, on 20.04.15, New Delhi Dress applied for registration under Delhi Value Added Tax Act, 2004 and a CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 79 of 90 reference number was generated i.e. R21434524. He further deposed that Inspector VAT checks the genuineness of the documents filed by the applicant and visits the site physically and submits the report. If the report of the VATI is found negative then action for cancellation of application was to be taken as per rules, subject to providing opportunity to the applicant to rectify the short-comings. He further stated that he could not state if the accused Ramesh Chand Kataria visited the site on 19.12.2015 and found no activity at the site and submitted his negative report. He further could not state that if accused R.C. Kataria uploaded the said negative report on 17.02.16 on the portal of the department. He also deposed that there was no authority letter available on record in favour of Mahender Kumar to apply for registration of VAT of New Delhi Dress. He further stated that he had certified the document Ex. PW1/B (colly) only after seeing original file of the case. He also stated that he had forwarded copy of all relevant papers to the IO alongwith Ex. PW1/B(colly).
84. Perusal of Ex. PW1/B (colly) reveals that it is a letter sent to the IO by PW1 Assistant Commissioner, GST, Ward No. 93, GNCT of Delhi. Alongwith the said letter, documents available on record pertaining to New Delhi Dress were supplied to the IO and the said documents include the application for registration of DVAT reference no. R21434524 dated 20.04.2015 and the documents supplied in connection with said reference no. on 14.03.2016. The said documents also included electricity bill dated 15.03.2016 in the name of Madhvi Devi. A rent agreement CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 80 of 90 dated 01.04.2016 between Madhvi Devi and New Delhi Dress for the lease commencing from 01.04.2016 to 01.07.2017. Accordingly, it is manifest from the documents Ex. PW1/B (colly) that an application for registration of VAT was pending before the VAT Depatment on the date of incident inasmuch as further documents are shown to have been supplied to VAT Department in March 2016 and April 2016 for registration of VAT in connection with the initial reference no. R21434524. Moreover, the record produced by PW1 did not indicate that the VAT application of New Delhi Dress had ever been cancelled by the department. Even as per the testimony of PW2 after the site visit, where the accused did not find the material things, PW2 had been asked by the accused to furnish further documents. It is also pertinent to note that PW2 denied that after the cancellation status, the accused had no concern with the same. He volunteered that after the cancellation status he went to Ward and met the accused. He further deposed that he was asked by the accused to give an application for revisit and he went to the accused after 2-3 days alongwith required documents i.e. the authority letter and the original documents. Accordingly, from the aforesaid it is manifest that the accused had met PW2 and also asked him to file an application for revisit pursuant to which PW2 went to the accused after 3-4 days with the required documents. In any event, in light of explanation (d) to Section 7 of the PC Act, once it is proved that there was actual demand and acceptance of gratification by the accused, the question as to whether the accused was in a position to actually deal with the application of New Delhi Dress or not, becomes immaterial.
CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 81 of 9085. The Hon'ble Delhi High Court in Shekhar Kumar v State of NCT of Delhi 2021 SCC OnLine Del 4223 : (2021) 226 AIC 517 made the following observations in relation to explanation (d) to Section 7 of PC Act:
7. A perusal of the aforesaid Section and the appended Explanations (d) and (e) would show that to constitute an offence thereunder, it is enough if a public servant receives illegal gratification as a motive for rendering service by holding out that he would render assistance whether or not he is capable of doing it.
8. The issue involved in the present case also arose before the Supreme Court in relation to the offence punishable under Section 161 IPC (repealed by the PC Act) in Mahesh Prasad v.
State of Uttar Pradesh reported as AIR 1955 SC 70. The Supreme Court while negating the contention observed that to constitute an offence under the aforesaid Section, it is enough if the public servant who receives the money takes it by holding out that he will render assistance to the giver with any other public servant and the giver gives the money under that belief. The receiver of the money may not be in a position to render such assistance. He may not even have intended to do what he holds himself out as capable of doing. He may accordingly be guilty of cheating. Nonetheless he is guilty of the CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 82 of 90 offence punishable under Section 161 IPC.
Later, these observations were reiterated by the Supreme Court in Chaturdas Bhagwandas Patel v. State of Gujarat reported as (1976) 3 SCC 46 as under:--
"21. ....It is further immaterial if the public servant receiving the gratification does not intend to do the official act, favour or forbearance which he holds himself out as capable of doing. This is clear from the last Explanation appended to Section 161, according to which, a person who receives a gratification as a motive for doing what he does not intend to do, as a reward for doing what he has not done, comes within the purview of the words "a motive or reward for doing." The point is further clarified by Illustration (c) under this Section...."
"22. Indeed, when a public servant, being a police officer, is charged under Section 161 Penal Code and it is alleged that the illegal gratification was taken by him for doing or procuring an official act, the question whether there was any offence against the giver of the gratification which the accused could have investigated or not, is not material for that purpose. If he has used his official position to extract illegal gratification, the requirement of the law is satisfied. It is not necessary in such a case for the Court to consider whether or not the public servant was capable of doing or CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 83 of 90 intended to do any official act of favour or disfavour." (emphasis supplied)
86. In Girwar Singh v CBI 2016 SCC OnLine Del 2329 : (2016) 5 RCR (Cri) 757 the Hon'ble Delhi High Court observed as under:
"139. Therefore, I find no merit in the submission of the learned senior counsel that the file was not in possession of the appellants. PW-11 clearly deposed that the file pertained to Audit No. 10 and that Audit no. 10 comprised of the appellants in the present case. Even if the appellants were not in a position to help the complainant, it is meaningless since explanation (d) to Section 7 of the Act provides that : "(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." (emphasis supplied)
87. Accordingly, the contention of the ld. Counsel for the accused that after the initial rejection of the VAT application the accused was not actually in a position to deal with the application of New Delhi Dress is misconceived in view of explanation (d) to Section 7 of the Act. As on date of demand the application for DVAT registration of New Delhi Dress, client of the complainant, was pending with the Department and as per the CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 84 of 90 version of PW2, the accused had asked PW2 to file an application for revisit and in connection with the said application he made a demand of illegal gratification to process that application and thereby he was holding himself out as capable of doing the needful and hence, the fact as to whether the accused was himself dealing with the said application or not is irrelevant.
88. As regards the contention of Ld. Counsel for the accused that no official CCTV footage of the search and seizure proceedings have been placed on record, it is noted that the incident occurred on 06.05.2016 and a complaint was made to ACB on 09.05.2016 by Special Commissioner Vigilance, Trade and Taxes Department, Delhi. The complaint was marked to Insp. Rakesh Kumar for enquiry vide MC No. 158/2016. After the initial inquiry and transfer of Insp. Rakesh Kumar, the inquiry was marked to Insp. Sanjeev Solanki, ACB, and after initial inquiry, the present FIR was registered on 23.01.2018. In his cross-examination PW26 IO/Insp. Sanjeev Solanki deposed that he had sought the CCTV footage of the camera installed in Ward No. 93, however, since the capacity of the CCTV camera was of 15 days, therefore CCTV footage for the relevant period was not available with the department. He denied that he had not inquired from the Trade and Taxes Department if they had examined the CCTV footage of 06.05.2016 of the incident to conceal the truth in collusion with the officials of the Trade and Taxes Department. PW26 further deposed that he again visited the Trade and Taxes Department after 30.10.2019 to verify whether the CCTV footage was available on any other server, but CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 85 of 90 they informed that the storage capacity of the hard-disk was only 15 days and they could not provide any footage. Hence, no doubt there is a lapse on the part of the investigating agency in not collecting the CCTV footage within reasonable time, however, considering the fact that the recovery and seizure proceedings already stand proved by the testimonies of the inspection team, the said defect in investigation regarding non-collection of official CCTV footage will not accrue to the benefit of accused.
89. It is also argued that no sanction for prosecution has been granted against the accused u/s 7 of the PC Act and the sanction to prosecute u/s 19 of PC Act has been granted only for offence u/s 13 of PC Act and hence the entire proceedings against the accused are vitiated. The sanction in the present case was granted by Sh. Udit Prakash Rai PW28, who proved the sanction order Ex. PW28/A. The operative portion of the sanction order Ex. PW28/A provides as follows :
"And whereas, I, Udit Prakash Rai, Director of Eduction, Govt. of NCT of Delhi being Competent Authority to remove the said Shri Ramesh Chand Kataria, after fully and carefully considering the facts and circumstances of the case, examining the statement of witnesses and other material placed, with regard to the above said allegations is satisified that the aforementioned acts of Sh. Ramesh Chand Kataria, Grade-II(DASS)/the then Inspector (VAT) Ward-93, Department of Trade & CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 86 of 90 Taxes, prima facie, discloses commission of offences u/s 7 & 13 of Prevention of Corruption Act, 1988 and the said Sh. Ramesh Chand Kataria, Grade-II(DASS) should be prosecute in the Court of Law for the said offences committed by him during his employment as Inspector (VAT) in Department of Trade & Taxes, GNCTD.
Now, therefore, I, Udit Prakash Rai, Director of Eduction, Govt. of NCT of Delhi being Competent Authority do hereby accord sanction under section 19(1)(c) of the Prevention of Corruption Act, 1988 for the prosecution of the said Sh. Ramesh Chand Kataria, Grade-II(DASS)/the then Inspector (VAT), Ward-93, Department of Trade & Taxes, for the offences punishable under section 13 of PC Act, 1988 and for any other provision of law and for taking cognizance of said offences by a court of Competent Jurisdiction."
90. Perusal of the sanction order Ex. PW28/A reveals that it has detailed the facts of the case as well as the search and seizure proceedings conducted in the matter. The documents provided to PW28 for according sanction for prosecution have been detailed in the sanction order and after consideration of all facts it was mentioned in the penultimate paragraph of the sanction order that PW28 was satisfied that the acts of the accused prima facie disclosed commission of offences u/s 7 and CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 87 of 90 13 of PC Act, 1988 and that he be prosecuted for the said offences committed by him during his employment as Insp. VAT in the department of Trade & Taxes, GNCTD. Mere fact that section 7 PC Act has not been mentioned in the last paragraph in which formal sanction for prosecution was accorded and only section 13 of PC Act has been mentioned therein does not lead to the conclusion that the sanction for prosecution was accorded only for the offence u/s 13 of PC Act. The sanction order Ex. PW28/A is a detailed document and it has to be read as a whole. The last paragraph of the sanction order cannot be read in isolation and has to be read in continuation with the the preceding paragraph and the contents of Ex. PW28/A. Moreover, no question has been put to PW28 to clear any ambiguity, if any, in that regard by ld. Counsel for the accused. No such objection has been raised at any stage of the trial by the accused at the stage of framing of charge u/s 7 and 13(1)(d) of PC Act and the trial proceeded on the basis of charges framed. No prejudice has been caused to the accused due to non-mention of section 7 PC Act in the concluding paragraph of Ex. PW28/A. A mere inadvertence in mentioning section 7 of PC Act in the said paragraph would not vitiate the trial qua section 7 of PC Act and the contention of ld. Counsel for the accused in this regard is untenable.
91. In facts and circumstances of the present case the prosecution has established the foundational facts through the direct evidence of complainant, PW2 that the accused had demanded Rs. 5000/- as bribe money for processing the VAT CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 88 of 90 application of New Delhi Dress, client of the complainant and in pursuance of that demand he obtained Rs.5,000/- from the complainant PW2 on 6.05.2016 and the events that followed in quick succession led to the recovery and seizure of the bribed amount from the accused. The testimony of the complainant stands corroborated by the testimony of PW7 and PW21, PW22 and the witnesses of search and seizure proceedings ie PW8, PW9, PW10 and PW11, hence the presumption under section 20 of the PC Act is attracted in the present case. The accused has miserably failed to prove his defence that he has been falsely implicated in the present case by the Department officials at the behest of the ruling political party. In view of the discussion hereinabove, in the instant case, the accused failed to rebut the said presumption, thus, there is no reason to disbelieve the prosecution case.
92. The accused has also been charged for the offence under Section 13(1)(d) of the PC Act which provides that a person is said to commit criminal misconduct, inter alia, if he (i) by corrupt or illegal means or (ii) by abusing his position as a public servant obtains himself any pecuniary advantage. In view of above discussion, the prosecution has proved the charge of criminal misconduct under Section 13 (1) (d) of PC Act punishable u/s 13 (2) of PC Act against the accused beyond reasonable doubt i.e. obtainment of bribe of Rs. 5,000/- by abuse of his official position by the accused being a public servant pursuant to demand of Rs.5,000/- from complainant as a reward for processing the VAT application of New Delhi Dress, client of CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 89 of 90 the complainant. Accordingly, accused is held guilty for the offence under Section 13 (1) (d) of PC Act punishable u/s 13 (2) of PC Act.
93. In view of the aforesaid discussion, it is proved on record that accused Ramesh Chand Kataria committed the offence u/s 7 of PC Act and u/s 13(1)(d) of PC Act punishable u/s 13(2) of PC Act and is therefore held guilty and convicted for the said offences.
Digitally signed by DEEPALI DEEPALI SHARMA Announced in the open Court SHARMA Date: 2024.04.09 15:46:32 +0530 on 08 th April, 2024 ( Deepali Sharma ) Special Judge (PC Act) (ACB-01) Rouse Avenue Courts Complex New Delhi CC No. 08/2021 FIR No. 02/2018 , PS ACB, State vs. Ramesh Chand Kataria Page 90 of 90