Delhi District Court
Cbi..... vs ....Tarun Garg on 20 December, 2007
1 IN THE COURT OF SHRI GP.MITTAL : SPECIAL JUDGE: DELHI. CBI.....VS....TARUN GARG RC No.50(A)/99/CBI/ACB/ND CC No.67/2004 JUDGMENT
1. Accused Tarun Garg has been sent up to this court for trial for the offence punishable U/s. 8 of the Prevention of Corruption Act 1988 (hereinafter referred as P.C.Act with the allegations that on 18.10.99 he had accepted Rs.500/- from one Shri RC Rajpal as a motive or reward for inducing by corrupt or illegal means the officials of Regional Passport Office, Bhikaji Cama Place, New Delhi for getting the endorsement of ECNR (Emigration Check Not Required) made on the passport of his son Sanjay Rajpal on the same day.
2. On 18.10.99 a reliable information was received by Inspector Vivek Dhir of CBI that a large number of touts were actively functioning in and around Regional Passport Office, Bhikaji Cama Place, New Delhi. They were charging illegal gratification in connivance with the staff working at various counters in the office of RPO for getting the work relating to the passport done at an early date and without any objection being raised by the official of the Passport Office. Inspector Vivek Dhir constituted a trap team consisting of CBI Officers S/Sh. Pawan Kumar, C K Sharma, A K Malik, Yashvir Singh, Om Parkash, A K Singh and Surender Malik. Three independent witnesses S/Sh.Vikas Chandra , Ram Chandra and Bahori Singh, who were 2 working with Northern Railways, were also joined. The CBI team reached Regional Passport Office and a close watch was kept over the activities of the suspected touts for about half an hour. The trap team noticed that some suspected touts were telling the applicants that they are required to pay Rs. 50/ per application to the passport officials. The members of the raiding party including independent witnesses were instructed to identify the touts and also to keep a watch over applicants who might be seen by them being fleeced by the touts.
3. A small team consisting of Inspectors Yashvir Singh, A K Singh, Om Parkash, Surender Malik and Vivek Dhir carried out a surprise check at the counters of the RPO office. A sum of Rs. 50/- , Rs 100/- and Rs. 300/- were found in excess at counter No.16, 18 and 19 respectively. Two applicants Sh. R C Rajpal (and his son Sanjay Rajpal) and Sh. Ved Parkash were found to have paid illegal gratification to Tarun Garg and Krishan Kumar respectively. After observing the activities of the touts, five persons including accused Tarun Garg were apprehended. A sum of Rs. 500/- was recovered from one Tarun Garg and Rs. 450/- from Sh. Krishan Kumar which was allegedly paid by Sh. R C Rajpal and Sh. Ved Parkash respectively. Some incriminating documents were also recovered from accused Tarun Garg and other touts which were seized vide a seizure memo prepared at the spot. During the course of investigation it was found that accused Tarun Garg had neither been permitted nor authorised to do the passport work. It was also revealed that accused Tarun Garg had obtained illegal gratification from Sh.R.C.Rajpal to be paid to the official of the 3 passport office for getting the ECNR stamp on the passport of his son Shri Sanjay Rajpal. Thus, a charge sheet for the offence punishable U/s 8 of the Act was filed against the accused.
4. A charge for the offence punishable U/s 8 of the PC Act was framed against the accused vide order dt. 10.2.03. The accused pleaded not guilty to the charge whereupon the prosecution was required to produce its evidence. In order to establish its case the prosecution has examined as many as 10 witnesses.
5. PW 1 Inspector Vivek Dhir was the leader of the raiding party which had watched the conduct of the accused and four other persons who were allegedly arrested at the spot. With regard to accused Tarun Garg, the witness identified the Surprise Check Memo as Ex PW1/A. During cross examination the witness stated that he did not know if some persons had helped the applicants by filling the forms themselves on behalf of the applicants. He showed his ignorance if any action was taken against the counter clerks who were found in possession of the excess cash.
6. PW2 Sh. Vikas Chand is one of the independent witnesses who was the member of the raiding party. He deposed that CBI officers had kept a watch outside the passport office. They caught hold of some persons who were later arrested. He proved the surprise check memo as Ex PW2/A and the personal search memo as Ex PW2/B. The witness was allowed to be cross examined by 4 the Ld. Sr. PP. The witness deposed during the cross examination by the Ld.Public Prosecutor that he had not heard or seen the touts collecting money or passports from several persons and telling those persons that if the application is not filed through them the same shall be rejected. Nothing has come in the examination or cross examination of this witness except that accused Tarun Garg was arrested in presence of this witness. To the same effect is the testimony of PW3 Bahori Singh. During cross examination by the Ld. Public Prosecutor the witness admitted that suspected touts were over heard telling the applicants that they were required to pay Rs. 50/- to the passport officials. PW4 Sh. Ram Chander is the third independent witness. He stated that two teams had been formed by the CBI Officer. He was part of the team which remained outside the passport office. There were three inspectors of the CBI in his team. He deposed that some persons were roaming outside the passport office and were taking application forms for issuance of passport and Rs. 50/- per person etc. for getting the passport prepared urgently.
7. PW5 Sh. S N Nagar was working as Superintendent in Regional Passport Office, R K Puram, New Delhi at the relevant time in the year 1999. He gave the price of the passport application form to be Rs. 10/- and the fee for issuance of passport for 10 years as Rs. 300/- and fee for issuance for passport for 20 years as Rs. 600/-. He stated that the accused was not an authorised agent of the Regional Passport Office, New Delhi.
8. PW6 Shri Balbir Singh was one of the persons, who had 5 handed over the passport application form and some money to accused Tarun Garg on the day the raid was conducted by the CBI team. He deposed that about 8 years back, he had accompanied his brother's wife Jasbir Kaur and his son to the passport office for the purpose of getting his passport prepared. There was lot of rush. They met one person, who told them that he can help them in filling and depositing passport application form. They paid Rs.100/- as service charges to the said person in addition to the necessary fees. He was allowed to be cross examined by ld. public prosecutor as he could not identify the accused and disclose his name. During cross examination the witness showed his ignorance if he had given the name of said person as Tarun Garg. When the accused was shown to him, the witness could not say if he was the same person or not. He however added that he may have given the name of said person as Tarun Garg. The witness was confronted with his statement U/s. 161 Cr.PC. recorded by the IO.
9. PW7 Shri RC Rajpal had gone to the passport office to get the stamp of ECNR on the passport of his son. He deposed that on enquiry from passport office, he came to know that it would take one week in getting the passport stamped. They were in urgent need to get the passport stamped and were contemplating how to proceed further. In the meanwhile accused Tarun Garg approached them and on narrating their problem the accused told them that there would be an expenditure of Rs.500/- and his passport as well as passport of his son would be returned to him in the evening. The witness deposed that the accused had also told 6 them that out of Rs.500/- some of the money was to be retained by him towards service charges and some of the money was to be paid to the clerk working in the passport office. He paid Rs.500/- to accused Tarun Garg and handed over the passport form. The witness then deposed about arrest of Tarun Garg alongwith some other persons. He deposed that one proforma for immigration in the name of Sanjay Rajpal, one passport of Ramesh Chander Rajpal, one application form(form no.2) in the name of Sanjay Rajpal, one currency note of Rs.500/- and one passport in the name of Sanjay Rajpal were seized by CBI office He proved the surprise check memo Ex.PW2/A. During cross examination the witness denied the suggestion that the accused had not been arrested at the spot and their passport and other incriminating articles were not recovered from him.
10. PW8 Smt. Jasbir Kaur is the sister in law of PW6 Balbir Singh. She corroborated his testimony and was also cross examined by ld. senior public prosecutor.
11. PW9 Addl. SP PL Meena has partly investigated the case. He identified the signatures of Shri SC Awasthi, SP and proved FIR Ex.PW9/A. PW10 SI MM Ansari is the Investigating Officer of the case. He deposed about recording of statement of various witnesses and the part played by him during investigation of the case.
12. On close of the evidence of the prosecution, the accused was examined U/s. 313 Cr.PC. The accused denied that Rs.50/-
7were being demanded extra by the agents as illegal gratification to be given to the officials of the passport office. The accused denied that he had approached PW7 Shri RC Rajpal and his son Sanjay Rajpal and had accepted Rs.500/- from Shri RC Rajpal for getting the stamp of ECNR on the passport. The accused also denied having told Shri RC Rajpal that out of the sum of Rs.500/-, some of the money shall be retained by him as his service charges and some of the money shall be paid to the clerk working in the Regional Passport Office. He denied having accepted Rs.500/- from RC Rajpal. He also denied that one passport of RC Rajpal, one application form no.2 in the name of Sanjay Rajpal, one currency note and one passport were recovered from him and seized by the CBI vide memo Ex.PW2/A. The accused however admitted that the personal search memo Ex.PW4/A and arrest memo Ex.PW2/B were prepared at the spot. The accused stated that he had never acted as a tout or ever made any representation to anyone regarding taking and giving any illegal gratification to any govt. official. After he was apprehended CBI officer asked him to sign on some blank papers which were subsequently forged and misused as evidence against him. The accused declined to produce any evidence in defence.
13. I have heard Shri Akhilesh, Senior Public Prosecutor for the CBI and Shri Mukul Sharma, advocate for the accused and have perused the record.
14. Any person who accepts, obtains agrees to accept 8 attempts to obtain from any person either for himself or for any other person any gratification as a motive or reward for inducing by corrupt or illegal means any public servant to do or forbear to do any official act etc. would be guilty of the offence U/s. 8 of the P.C.Act,1988.
15. It has been urged by the learned public prosecutor that the prosecution has led sufficient evidence to show that illegal gratification has been accepted by accused Tarun Garg to induce a public servant to do or forbear to do any official act in the exercise of his official function. The case of the prosecution therefore stands established and accused is liable to be convicted U/s. 8 of the PC Act.
16. On the other hand, it has been submitted by the learned defence counsel that mere acceptance of any money from person of public will not raise any presumption that it was obtained by the accused as a motive or reward in order to induce a public servant by corrupt or illegal means to do or forbear to do any official act. It has been urged that prosecution has examined PW5 Shri SN Nagar to prove that either the applicant or his authorised representative would deposit the application for grant of passport The accused is not being prosecuted for violation of any provision under the Passport Act. As per PW1 Inspector Vivek Dhir a close watch was kept to see and hear the activities of the alleged touts. However, neither Inspector Vivek Dhir nor any other public witness who was member of the raiding party examined by the prosecution has stated a word that any illegal gratification was 9 demanded by accused Tarun Garg for any persons of the public as a motive or reward by corrupt or illegal means to induce a public servant to do some act etc. It has been urged that even if it is assumed that accused Tarun Garg has accepted money for getting the passport made, it may be the service charges for filling up the form and stand in the queue as some persons do not want to stand in the queue.
17. This is true that mere acceptance of money by any person getting by a person of a public for rendering the services like filling up of the form, standing in queue and depositing the same will not enough to bring the case within the provision of Section 8 of the PC Act. It may not even amount to criminal offence unless and until it has been statutory prohibited or some penal consequences are attached to the same. PW5 SN Nagar did state that a person has to deposit the application either by himself or through his authorised representative. However, no such provision was pointed out in the Passport Act 1967. As per Rule 5(3) of the Passport Rules 1980 the Passport Authority may authorise any person to collect passport application on its behalf for issue of passport or travel document etc. etc. on payment of some specified service charges. In this case, accused had not accepted any application on behalf of Passport Authority, therefore, it cannot be said that there was violation of Rule 5(3)of Passport Rule 1980. The Ld. Public Prosecutor has failed to point out any statutory provision under which any person indulging in obtaining service charges for rendering such services could be criminally held liable. The prosecution is under an obligation to 10 prove as to under what representation the money is charged by such a person.
18. According to the case of the prosecution, PW6 Balbir Singh and PW8 Smt. Jasbir Kaur had paid some money to accused Tarun Garg on the representation that a part of the money was to be paid to the official of the passport office. These two witnesses, however, did not support the case of the prosecution at all. They simply stated that Rs.100/- had been paid to a person who had helped them in filling and depositing the application form. Inspite of the cross examination by ld. Public Prosecutor they were not sure about the identification of the person to whom the amount of Rs.100/- was paid. Therefore, testimony of PW6 Balbir Singh and PW8 Smt. Jasbir Kaur is of no help to the prosecution except to the extent that service charges of Rs.100/- were paid by PW6 Balbir Singh to some person for filling up and depositing the application form. Statement of PW7 RC Rajpal is quite relevant and needs to be noticed to find out whether the amount was accepted by the accused as his service charges or as illegal gratification to be paid to a public servant. The witness was quite categorical that accused told them that there will be an expense of Rs.500/- and passport would be returned (duly stamped with ECNR) in the evening. The accused also told that out of this sum of Rs.500/-, some of the money will be retained by him for service charges and some of the money shall be paid to the clerk working in the Regional Passport Office. The witness added that since he was in urgent need of passport, he paid Rs.500/- to the accused.
1119. It has been urged by ld. defence counsel that though as per the case of the prosecution and as per PW1 Inspector Vivek Dhir a close watch was being kept on the activities of alleged tout. But Inspector Vivek Dhir is completely silent about the conversation which had allegedly taken place between PW7 RC Rajpal and the accused. Moreover, GC note of Rs.500/- which was a very important piece of evidence has not been produced. No explanation is forth coming why the GC note has not been produced. Thus, it is submitted that an inference has to be drawn that no such GC note of Rs.500/- was accepted by the accused nor the same was seized. It has been pointed out that PW7 RC Rajpal himself was the bribe giver and was thus an accomplice, the court, therefore, should be slow to accept his testimony. The accused, therefore, is entitled to be acquitted.
20. This is true that Inspector Vivek Dhir (PW1) has not stated anything about the actual conversation between PW7 RC Rajpal and the accused. However, this does not mean that the transaction had not been seen by PW1 Inspector Vivek Dhir. Inspector Vivek Dhir was the leader of the raiding party consisting of half a dozen CBI officers and three independent witnesses. It was not possible for each and every member of the raiding party to hear the conversation of various touts and persons of the public, who were present there and were subject of the raid. Moreover, the accused has not sought any explanation from Inspector Vivek Dhir during cross examination as to what was the exact conversation between the accused and PW7 and why he was ignorant of the same.
1221. There is no gain saying that the GC note of Rs.500/- which had changed hands and was alleged to be recovered from the accused was quite an important piece of evidence, yet the same has not been produced during the trial. It has been urged by learned public prosecutor that on account of inadvertence the same was deposited in the treasury. This is certainly a lapse on the part of the prosecution. But again the question is whether the entire case of the prosecution can be thrown away because of non production of the GC note. The simple answer to this question would be in the negative. If the prosecution is otherwise able to establish its case against the accused beyond shadow of all reasonable doubts, obviously the non production of GC note shall pale into insignificance.
22. It has been urged by the learned defence counsel that the testimony of PW7 Shri RC Rajpal cannot be relied upon as he is an accomplice has to be rejected for two reasons; firstly, PW7 RC Rajpal was not an accomplice in the strict sense and secondly, his testimony is corroborated by other witnesses in material particulars and thus there is no danger in accepting his testimony. A reference may be made to Devan @ Vasudevan. Vs. The State 1988 Cri.LJ 1005 (Kerala), where it was held that if the bribe giver voluntarily goes to the offender and persuades him to accept bribe, his position is that of an undiluted accomplice and it is a rule of prudence to insist an independent corroboration for such evidence. On the other hand, if the giver of gratification was persuaded to give it, he actually becomes a victim of persuation by 13 the offender. To name him an accomplice and to reject his testimony due to want of corroboration would sometime be unrealistic and imprudent. The density of stigma to be attached to a witness as an accomplice depend upon the degree of complicity in the offence.
23. In this particular case, the testimony of PW7 RC Rajpal is duly corroborated by PW1 Inspector Vivek Dhir on the factum of acceptance of Rs.500/-. PW4 Ram Chander has also corroborated the testimony of PW7 in the sense that on apprehension of accused Tarun Garg, PW7 RC Rajpal was interrogated by CBI and he had disclosed that a sum of Rs.500/- had been handed over by him to accused Tarun Garg and that PW7 RC Rajpal had also identified the currency note of Rs.500/- which was paid by him to accused Tarun Garg. Of course, the confession statement of accused Tarun Garg made to the CBI is not admissible in the evidence, but the testimony regarding identification of GC note of Rs.500/- by PW7 RC Rajpal was not even challenged during cross examination. PW7 RC Rajpal, PW1 Inspector Vivek Dhir and PW4 Ram Chander had absolutely no motive to falsely implicate accused Tarun Garg. Therefore, there is no reason to disbelieve their testimonies.
24. In view of the foregoing discussion, it is established beyond shadow of all reasonable doubts that on 18.10.99 at Regional Passport Office Bhikaji Cama Place, New Delhi, the accused had accepted a sum of Rs.500/- from Shri RC Rajpal (PW7) for getting the endorsement of 'Emigration Check Not 14 Required' made on the passport of his son Shri Sanjay Rajpal on the same day as a motive or reward for inducing by corrupt or illegal means the officials of the passport department.
25. I accordingly hold the accused Tarun Garg guilty for the offence punishable U/s. 8 of the Prevention of Corruption Act, 1988 and convict him accordingly.
Announced in open court.
dated: 18.12.2007 (G.P.Mittal)
Special Judge: Delhi.
15
IN THE COURT OF SHRI G.P. MITTAL ; SPECIAL JUDGE:
DELHI.
CBI.....vs....Tarun Garg RC50(A)/99/CBI/ACB/N.Delhi CC No.67/04 Order on Sentence.
Present: Shri Akhilesh, Sr.PP for CBI.
Accused Tarun Garg is present on bail with Sh. Mukul Sharma Advocate.
1. I have already convicted Tarun Garg vide my order dated 18.12.2007.
2. I have heard Shri Akhilesh, Ld. Sr.PP for CBI and Sh. Mukul Sharma Advocate, Ld. defence Counsel for the convict on the question of sentence to be awarded to the accused.
3. It has been urged by Ld. defence counsel that accused Tarun Garg is a young man aged 32 years. He has never been convicted nor involved in any criminal case. He has got young children aged seven and four years and has the responsibility of aged parents and aged grand mother. It has been submitted that the accused may be extended benefit of probation under the Probation of Offenders Act.
5. On the other hand, it has been submitted by Shri Akhilesh Sr.PP that considering the nature of offence committed by convict, he does not deserve any leniency.
6. The offence of demanding illegal gratification to bribe public servant as a motive or reward to get some favour is on the rise. Section 8 of the P C Act, 1988 provides minimum sentence of imprisonment to be six 16 months which may extend to five years. The provisions of Probation of Offenders Act are therefore, not applicable to the offence U/s 8 of the P C Act, 1988. The accused cannot be let off with a very lenient punishment. In the facts and circumstances, I sentence the accused to undergo RI for two years and to pay a fine of Rs. 25,000/- or in default to undergo SI for six months.
File be consigned to record room.
Announced in open court. (G. P. Mittal) dated: 20.12.2007 Special Judge: Delhi.