Delhi District Court
State vs . on 18 August, 2022
1
In the Court of Dig Vinay Singh: Special Judge (PC Act) (ACB)-02
Rouse Avenue Courts, Delhi
In re:
CNR No. DLCT010016962019
CC No. 327/2019
FIR No. 13/2016
P.S Anti-Corruption Branch
U/s 7 & Sec. 13(1)(d) r/w 13(2) of POC Act 1988
State
Vs.
Sanjay Solanki
S/o Sh. Sugan Singh
R/o C-108, Paryavaran Complex,
Saidulajab, IGNOU Road, Delhi-30
Date of institution: 29.07.2019
Date of arguments: 04.08.2022
Date of judgment: 18.08.2022
JUDGMENT
1. The above-named sole accused faced trial in the present matter for offence U/s 7 & Sec. 13(2) r/w 13(1)(d) of POC Act, 1988. The facts of the case are that while the accused was working as Patwari in Revenue Department, Delhi, he demanded and accepted a bribe amount of Rs. 2 Lakh from Naveen Jain (the complainant) and was caught red handed on 23.08.2016 in a trap.
1.1. The background of the matter is, that the complainant gave a written complaint at PS Anti-Corruption Branch on 23.08.2016 claiming that he was working as Manager in a firm by the name of M/s Kumar Brothers Company. Pradeep Kumar Sagar was one of its partners, and he owned a Farm House no. 11, Silver Oak Marg, Village Ghitorni, Delhi-110030. Around 20 days prior to the date of complaint, the accused came to the Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 1 of 40 2 farm house under the pretext of inspecting it and extended some threats. Upon it the complainant, on behalf of Pradeep, spoke to the accused. Accused threatened the complainant that the farm house would be sealed on the ground that some business activity was going on in it. When the complainant told the accused that no business activity was being run from the farm house, the accused threatened that he would prepare a report about the business activity being done in the farm house and that on the basis of that report, he would get the farm house sealed. On repeated request by the complainant, the accused demanded bribe of Rs. 5 Lakh claiming that there was some order of SDM and also claiming that the money will have to be given to 'all officers'. Thereafter, the complainant discussed the matter with Pradeep, who instructed the complainant to get rid of the matter. Complainant again spoke to the accused in which accused again demanded Rs. 5 Lakhs. It is mentioned in the complaint that the accused repeatedly demanded Rs. 5 Lakh from the complainant on phone and that under compulsion when the complainant agreed to the demand of the accused, the accused agreed to settle the matter for Rs. 3.5 Lakhs. Complainant also claimed that he audio recorded the conversation between him and the accused. Along with the complaint, the complainant also took along a sum of Rs. 2 Lakh in the denomination of four bundles of the currency notes of Rs. 500/- each containing hundred notes each.
1.2. At ACB, usual procedure of involving a Panch witness namely Chunmun Singh was done; demonstration of the qualities of Phenolphthalein powder, after applying it on the currency notes, was given and; a raid team was organised. The accused was apprehended red handed from main gate of Modi Tower (Hemkunth Tower), Nehru Place, Delhi at about 1.45 PM, when allegedly he came to that spot in a white car no. DL3C BD 4356 and, in presence of the Panch witness he demanded and obtained the above Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 2 of 40 3 mentioned amount from the complainant. Hand wash of both the hands of accused was taken at the spot in Sodium Carbonate Solution, which turned pink. The wash solution was kept in two bottles each qua his left hand and right hand wash. The currency notes recovered from the accused were the same and their number tallied with the numbers noted in the pre-raid report prepared by the Raid Officer Inspector Kailash Chand (RO) at ACB before leaving for raid. The car of accused was seized and the accused was apprehended. The FIR was registered, and investigation was conducted including the examination of the hand wash solution, which was opined to be containing phenolphthalein and sodium carbonate by the FSL expert.
1.3. Upon conclusion of investigation, requisite Sanction U/s 19 of the POC Act, 1988 was obtained from the competent authority and then the final report was filed.
2. Charges U/s 7 & Sec. Sec. 13(2) r/w 13(1)(d) of POC Act, 1988 was framed against the accused, to which he pleaded not guilty and claimed trial.
3. In support of the case, prosecution examined total 23 witnesses.
3.1. The complainant Naveen Jain has been examined as PW14; Panch witness Chunmun Prasad is examined as PW10; ASI Roop Singh, one of the raiding team member, as PW19; RO Inspector Kailash Chand as PW20; the first investigating officer after registration of FIR Inspector K. C. Kaushik as PW22 and; further IO Inspector Braj Mohan as PW21. The owner of the farm house Pradeep Sagar is examined as PW15. All these witnesses supported the case of prosecution in Toto and nothing material could be extracted in their cross examination by the accused in order to doubt either the veracity of the Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 3 of 40 4 witnesses or the case of prosecution. The testimonies of these witnesses is being discussed hereinafter, in order to avoid repetition.
4. The rest of the prosecution witnesses are formal in nature.
4.1. PW1 HC Ashok collected the FSL result and remnants of the exhibits from FSL on 19.10.2016.
4.2. PW2 HC Bijender proved the log books of the two vehicles used by the raiding team for raid, as Ex.PW2/A & B. 4.3. PW3 Surender Kumar, the nodal officer from Bharti Airtel proved Customer Application Form of mobile number 9810949578 of the complainant as Ex.PW3/A. No CDR of the said mobile could be collected, as it was sought by the investigating agency after more than one year from date of incident and therefore, it could not be provided by the service provider.
4.4. PW4 Smt. Seema Rani was the owner of car used by the accused to come to the spot. She deposed that she knew the accused, was staying in the same building, and that on 23.08.2016 the accused had borrowed her car bearing registration no. DL3C BD 4356 for some work. Thereafter, she came to know that the said vehicle was seized in the present case and she then got it released subsequently. Nothing substantial could be brought out on record from the cross examination of this witness by the accused in order to discredit the witness.
4.5. PW5 Rakesh Dahiya, simply proved the copies of two orders issued by the SDM dated 08.06.2010 & 27.08.2013 as Ex.PW5/A & 5/B. Vide order Ex.PW5/B, accused was posted as Patwari in the office of SDM (Vasant Vihar) with immediate effect from the date of order i.e. 27.08.2013. This fact is not in dispute by the accused and the accused did not cross examine PW5 who proved those two documents.
Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 4 of 40 54.6. PW6 Pawan Singh the nodal officer of M/s Vodafone Idea Ltd. proved the customer application form and the call detail records of the mobile phone number 9213810036, of the accused, for the period 19.08.2016 to 23.08.2016, as Ex.PW6/A & B, along with Certificate U/s 65B of Evidence Act and the location chart of the cell tower id as Ex.PW6/C & D, respectively. Even this witness was not cross examined by the accused despite opportunity.
4.7. PW7 Sunil Kumar simply proved that on 23.06.2016 a complaint given by one Ram Kumar Gujjar (DW4) was received in the office of SDM, Vasant Vihar, vide entry in Dak Register at Sl.no. 9109, Ex.PW7/B, which was marked to the accused Patwari under the orders of the then SDM Sunil Dutt Sharma and, that vide entry containing signatures of the accused dated 27.06.2016, Ex.PW7/A, this complaint was received by the accused under his signatures. Even this witness was not cross examined by the accused despite opportunity.
4.8. PW8 Shalesh Kumar proved the bio data; posting order and; duties of the accused, as Ex.PW8/B, C & D, which were also supplied to the investigating agency vide letter Ex.PW8/A. 4.9. PW9 Rakesh Grover also deposed about receiving of complaint from Ram Kumar Gujjar and its marking to the accused, as deposed by PW7. PW9 additionally deposed that he had supplied original complaint to the IO during investigation on 15.02.2017 which was taken into possession vide seizure memo Ex.PW9/A. The said original complaint is proved as Ex.PW22/A, dated 22.06.2016, which bears endorsement in the handwriting of PW9 as Ex.PW9/B on the backside of the complaint PW22/A. 4.10. PW11 Shankar Dass from Syndicate Bank, Nehru Place proved statement of account in the name of M/s Kumar Brothers Company for Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 5 of 40 6 the relevant month of August 2016 as Ex.PW11/A, reflecting an amount of Rs. 3 Lakh was withdrawn on 22.08.2016 from the account of M/s Kumar Brothers Company.
4.11. PW12 SI Vijay Singh proved registration of FIR Ex.PW12/A;
endorsement on rukka Ex.PW12/B and; the two DD entries no. 23 & 20 as Ex.PW12/C & D. 4.12. PW13 W/ASI Kiran proved DD no. 13 Ex.PW13/A, lodged at 12 PM dated 23.08.2016 regarding departure of the raiding team on the date of raid; DD no. 22 Ex.PW13/B lodged at 6.10 PM on 23.08.2016 regarding arrival of Inspector Kailash Chand from the spot; DD no. 23 lodged at 8.00 PM on 23.08.2016 regarding handing over of copy of FIR and rukka to ASI Roop Singh for further handing over it to Inspector K. C. Kaushik.
4.13. PW16 ASI Ramesh Chand carried the two sealed bottles containing left and right hand wash of the accused from the malkhana of PS Civil Lines to FSL Rohini on 30.08.2016 and deposited the same in FSL Rohini. The witness clarified in his cross examination by the accused that since there was no independent malkhana of PS ACB, therefore the case property of PS ACB used to be deposited in PS Civil Lines.
4.14. PW17 M. L. Meena the Senior Scientific Officer of FSL, Rohini examined the contents of the two bottles containing hand wash solution of the accused, and proved his report Ex.PW17/A dated 21.09.2016, as per which both the bottles contained pink colour solution and the solution contained phenolphthalein & sodium carbonate.
4.15. PW18 ASI Vinay Pal was the Malkhana Moharrar of PS Civil Lines, where the case property was deposited by Inspector K. C. Kaushik (PW22), i.e. the four sealed bottles, the currency notes and, the car. The same were taken into malkhana vide entry in Register no. 19 Ex.PW18/A. Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 6 of 40 7 PW18 also deposed that against depositing the said case property, PW22 also obtained his counter signatures on the seizure memos of the case properties viz., Ex.PW10/B, C & D. This witness also deposed that out of the four bottles containing hand wash solution, one bottle each of the left and right hand of the accused bearing label LRHW-1 & RHW-1 were sent to the FSL through PW16 on 30.08.2016 vide road certificate Ex.PW18/B and, PW16 obtained acknowledgment slip Ex.PW18/C from FSL and deposited it in the malkhana.
4.16. PW23 Sh. Rajiv Verma had accorded Sanction for prosecution of the accused in terms of Sec. 19 of the POC Act 1988 and proved the same as Ex.PW21/J.
5. On completion of prosecution's evidence, when the incriminating evidence was put to the accused in his statement, the accused claimed that he has been implicated falsely in the present matter. Accused claimed that the complainant was in fact a Manager of the Farm House no. 9 & 11 and not an employee of M/s Kumar Brothers Company. Accused admitted that he was working as Patwari of the area and in his jurisdiction farm house no. 9 existed. He admitted that he indeed went to inspect the farm house no. 9 around 20 days prior to 23.08.2016, but claimed that the guards deputed at the farm house no. 9 did not permit him to go inside or inspect the farm house no. 9. Instead he was given the phone number of the complainant by the guard and that thereafter he spoke to the complainant in which the complainant asked him to visit after 2-3 days and to meet him outside farm house no. 1 claiming that the owner of farm house no. 9 was out of town. Accused also claimed that he went to inspect the farm house no. 9 as there was a complaint assigned to him against that farm house given by one Ram Kumar. Accused also claimed that he was not permitted to inspect the farm no. 9 by the Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 7 of 40 8 complainant on one pretext or the other and instead the complainant met the accused outside farm no. 1, which belonged to wife of one Girish Lohiya and from where illegal encroachment was removed by him and other revenue officials on 12.05.2016. Accused claimed that he never threatened the complainant to seal the farm house no. 9; he never demanded any bribe; he never accepted any bribe from anyone; the complaint against him was given to deter revenue officials from taking any action against illegal activities in the farm houses; FIR was registered against him falsely; the documents were fabricated by the investigating agency while sitting in the office of ACB; the case property was identified against him falsely. Accused claimed that he was indeed carrying a photocopy of the complaint given by Ram Kumar, as it was assigned to him by the SDM, at the time of his apprehension, and it was taken by the police and was seized vide memo Ex.PW10/I. Accused claimed that the Sanction U/s 19 of POC Act has been accorded mechanically and without application of mind. Accused claims that he has been implicated falsely by the complainant and the owners of farm house no. 1, 9 & 11, as well Girish Lohiya, to deter him from taking legitimate action against illegal activities carried out in the farm houses which were within his revenue jurisdiction and also because he along with other revenue officials had removed illegal encroachment on forest land on 12.05.2016 which was carried out by Girish Lohiya and therefore the farm house owners became inimical towards him. Accused claimed that he is innocent and witnesses have deposed falsely against him. Accused also claimed that on 23.08.2016 he attended a civil matter in Patiala House Courts at about 10.00 AM and then he received a call from the complainant who asked him to meet the owners of farm house no. 9, 1 & others, but he informed the complainant that after attending Patiala House Court he will go to Financial Commissioner's Office located at Shyam Nath Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 8 of 40 9 Marg, Delhi, upon which the complainant told him that he would meet the accused near FC Office. Accused also claimed that when he reached near FC office and was about to park his car, the complainant, Girish and, three-four other persons claiming to be from Delhi Police overpowered him and took him to ACB after snatching keys of his car, and at ACB he was forcibly handed over one thick yellow envelope and thereafter his hand wash were forcibly taken and was thus implicated in the present case.
6. In his defence, the accused examined following four defence witnesses.
6.1. DW-1 Yogesh Kumar was the patwari from office of SDM Vasant Vihar who proved copy of Khatoni Ex.DW1/A, according to which one Smt. Krishna Devi W/o. Girish Lohia was 1/3rd owner of land measuring 7 Bigha 4 Biswa in Khasra no. 554 and 555/1 falling within the Revenue Estate of Village Ghitorni. The witness however specified that he was not aware whether in the said Khasra anything was built up as he had not seen it. The accused also wanted to prove an inspection note dated 12.05.2016, regarding some action taken qua illegal encroachment in some area, from this witness, but the relevant file was not traceable in the office of SDM, Vasant Vihar and therefore the same could not be proved. Similarly, the accused wanted to prove one letter dated 06.05.2016 written by the SDM Vasant Vihar to the concerned SHO, but in absence of availability of records in the office of SDM, Vasant Vihar, even the said letter could not be proved by the accused through this witness.
6.2. DW-2 HC Jasbir Singh from PS Vasant Kunj proved registration of two FIRs, i.e. FIR No. 357/16 dated 06.05.2016 (lodged by one Dr. R. Gopinath) and, FIR No. 391/19 dated 28.07.2019 (lodged by Ram Kumar DW-4), as Ex.DW2/A and Ex.DW2/B. Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 9 of 40 10 6.3. DW-3 Mr. R. Roy was the Estate Manager at Hemkunt Tower (also known as Modi Tower) located at Nehru Place, New Delhi, allegedly in front of which the raid was conducted. This witness deposed that on the date of incident and even prior to it, 16 CCTV cameras were installed in the Hemkunt Tower, including two cameras which used to cover the sole entry gate of the building. He also deposed that two Guards were posted and working at the entry gate on the date of raid i.e. 23.08.2016. But the witness claimed ignorance as to the fact whether on that day the CCTV cameras were functional or not and whether at the time of raid the guards were present or not. Ignorance of this witness to the last mentioned fact is justified as the witness was examined after several years and he cannot be expected to remember it without any good reason. Admittedly, no CCTV footage of the entry gate of this tower was collected by the investigating agency. Even the accused did not exercise his right u/s 91 of Cr.P.C of getting the CCTV footage collected / preserved timely, so that he could have proved it at appropriate stage.
6.4. DW4 Ram Kumar was the complainant who gave complaint Ex.PW-
22/A dated 22.06.2016 addressed to the SDM Vasant Vihar and which admittedly was marked to the accused of this case and, a copy of which was admittedly recovered from the possession of accused at the time of his apprehension. A copy of this very complaint (Ex.PW22/A), was also proved by this witness as Ex.DW4/A. DW-4 deposed that he had also lodged the FIR No.391/19 Ex.DW2/B against Girish Lohia, who is none other than his real brother. This witness deposed that he had filed several complaints against his brother Girish since the year 2014 -15 and that Girish was a bad character of the area. The witness also deposed that Farm House no. 9 written in his complaint Ex.PW22/A (DW4/A) was belonging to Pradeep Sagar (PW-15) and that Pradeep Sagar was a friend of Girish Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 10 of 40 11 who used to help Girish and also that Farm House no. 1 was owned by Girish.
In the cross examination by the Ld. Prosecutor, this defence witness admitted that his relations with Girish were bad since 2006 to the extent that they were not on speaking terms and even there were cross cases between the parties, including two rape cases against DW4. The witness also admitted in his cross examination that he not only knew the accused who was a Patwari of his area, but he also admitted that one day prior to the day when this witness was examined in the Court as DW4, the accused telephonically called the witness asking him whether the witness (DW4) had received summons from the Court. This fact admitted by DW4 indicates that DW4 was in touch with the accused and knew the accused and therefore only the accused could speak to DW4 on his mobile one day before his examination.
7. Ld. Prosecutor for the State argued that from the testimony of the complainant (PW-14), the Panch witness (PW-10), Pradeep (PW-15), raid officer (PW-20), ASI Roop Singh (PW-19) and, Inspector K.C. Kaushik (PW-22), the fact of demand as well as acceptance of bribe by the accused is proved beyond reasonable doubt. It is argued that minor contradictions in the testimonies of prosecution witnesses are immaterial and worth ignoring.
8. On the other hand, Ld. Counsel for the accused argues that the prosecution's case is unbelievable in which the accused has been implicated falsely and therefore the accused deserves acquittal. Specific contentions of the accused are being dealt with herein below.
9. It is argued by the accused that the Sanction U/s 19 of the POC Act was granted mechanically without application of mind by PW23 and therefore the entire trial is vitiated. It is claimed that there was a delay of two years Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 11 of 40 12 in seeking Sanction from the competent authority by the investigating agency and also no audio recording of the conversation between the complainant and the accused, which was claimed to have been recorded on the mobile of the complainant, was sent to the competent authority and even the competent authority did not seek a copy of the audio recording before according Sanction. It is also claimed that the Sanctioning Authority did not seek as to what action had been taken on the complaint of Mr. Ram Kumar (DW4); the Sanctioning Authority did not peruse the FSL result as it was not sent to the Sanctioning Authority, therefore, the Sanction must be held to be accorded without application of mind.
9.1. None of the above mentioned arguments are adequate enough to hold that the Sanction Ex.PW21/J was without application of mind. The Sanction itself mentions that the Sanctioning Authority was supplied with the copy of FIR; copy of complaint; raid report; seizure memos of the case property; statement of witnesses recorded in the matter by the investigating agency, including the statements of Panch witness Chunmun Prasad and the complainant Naveen Jain; as also the complaint made by Ram Kumar (DW4). The Sanctioning Authority specifically deposed that it went through every document supplied by the investigating agency before according Sanction. Merely because FSL result was not supplied to the Sanctioning Authority and the Sanctioning Authority was not supplied with the audio recording, it cannot be said that the Sanctioning Authority was unable to form any prima facie opinion for according Sanction against the accused. The above mentioned material supplied to the Sanctioning Authority were in itself enough for taking a decision as to grant or refusal of Sanction. While granting Sanction, a Sanctioning Authority has to form opinion only prima facie in nature based on the material supplied. Neither the Sanctioning Authority is required to Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 12 of 40 13 undergo any detailed inquiry, nor it can be expected to undertake exercise equivalent to that of a trial in a criminal case, before granting or refusing Sanction.
9.2. In the case of Vinod Kumar Garg v. State (NCT of Delhi), (2020) 2 SCC 88, it is observed by the Apex Court as follows;
"25. On the said aspect, the later decision of this Court in State of Maharashtra v. Mahesh G. Jain [State of Maharashtra v. Mahesh G. Jain, (2013) 8 SCC 119: (2014) 1 SCC (Cri) 515: (2014) 1 SCC (L&S) 85] has referred to several decisions to expound on the following principles of law governing the validity of sanction: (SCC pp. 126-27, para 14) "14.1. It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
14.2. The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution. 14.3. The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it. 14.4. Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence. 14.5. The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
14.6. If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction.
14.7. The order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper technical approach to test its validity."
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28. This Court in Ashok Tshering Bhutia v. State of Sikkim [Ashok Tshering Bhutia v. State of Sikkim, (2011) 4 SCC 402: (2011) 2 SCC Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 13 of 40 14 (Cri) 258: (2011) 2 SCC (L&S) 697] referring to the earlier precedents has observed that a defect or irregularity in investigation however serious, would have no direct bearing on the competence or procedure relating to cognizance or trial. Where the cognizance of the case has already been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless a miscarriage of justice has been caused thereby. Similar is the position with regard to the validity of the sanction. A mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby. Section 19(1) of the Act is matter of procedure and does not go to the root of the jurisdiction and once the cognizance has been taken by the court under the Code, it cannot be said that an invalid police report is the foundation of jurisdiction of the court to take cognizance and for that matter the trial." 9.3. In the case of Girish Kumar Suneja v. CBI, (2017) 14 SCC 809, a three judges bench of Supreme Court made following observations: -
"67. In CBI v. V.K. Sehgal [CBI v. V.K. Sehgal, (1999) 8 SCC 501:
1999 SCC (Cri) 1494] it was held that for determining whether the absence of, or any error, omission or irregularity in the grant of, sanction has occasioned or resulted in a failure of justice, the court has a duty to consider whether the accused had raised any objection on that score at the trial stage. Even if it had been raised at the trial and early enough, it would not be sufficient to conclude that there was a failure of justice. Whether in fact and in law there was a failure of justice would differ from case to case but it was made clear that if such an objection was not raised in the trial, it certainly cannot be raised in appeal or in revision. It was explained that a trial involves judicial scrutiny of the entire material before the Special Judge. Therefore, if on a judicial scrutiny of the evidence on record the Special Judge comes to a conclusion that there was sufficient reason to convict the accused person, the absence or error or omission or irregularity would actually become a surplusage. The necessity of a sanction is only as a filter to safeguard public servants from frivolous or mala fide or vindictive prosecution. However, after judicial scrutiny is complete and a conviction is made out through the filtration process, the issue of a sanction really would become inconsequential."
10. Before dealing with other contentions of the accused, let the testimonies of the complainant (PW14), the Panch witness (PW10), the raid officer (PW20), ASI Roop Singh (PW19) one of the raiding team members, and Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 14 of 40 15 the first IO Inspector K. C. Kaushik (PW22) be discussed here briefly, as also the testimony of Pradeep Sagar (PW15).
10.1. PW15 Pradeep Kumar Sagar was owner of farm house no. 11 and is one of the partners of M/s Kumar Brothers in which the complainant was employed. Sans the hearsay part of his testimony, PW15 deposed that besides him, Smt. Premlata Sagar and Rajeev Sagar are also partners in the company and his elder brother Mahender Kumar Sagar (husband of Smt. Premlata Sagar) resides in Farm no. 9. He also deposed that he directed the complaint to withdraw Rs. 2 Lakh from the account of the company for the purposes of meeting demand of the accused. The witness also deposed that on 30.07.2018, he supplied employment proof of the complainant as well as documents of the company viz., Ex.PW4/D to I. The witness also proved one authority letter in favour of the complainant which was executed on 23.08.2016 only, i.e. the date of the raid, as Ex.PW15/B. Vide the said authority letter, the complainant was authorised to look after all the official works of Kumar Brothers Company whose office is located at Hemkunt Towers. In the cross examination of PW15 it has come up that his brother namely Mahender used to live in Farm House no. 9 and also he was ill and bed ridden and therefore PW15 used to look after him and his business. The witness also claimed that whenever required complainant Naveen Jain also used to look after the personal work of the partners besides the official work and whenever required complainant used to take care of the work of both the Farm Houses no. 9 & 11 also.
10.2. Complainant Naveen Jain (PW14) deposed that he was employed in Kumar Brothers Company comprising of partners including PW15 and, that he used to look after and was authorised to carry out official work of the said firm as well as the work of the farm houses owned by PW15 and Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 15 of 40 16 other partners. He claimed that PW15 owned farm house no. 11 at Silver Oak Farm, Village Ghitorni, New Delhi. PW14 also deposed that around 20 days prior to 23.08.2016 the accused came to the farm house no. 11, met him and told him that he had come for the inspection of farm alleging that illegal business activities were being carried out at the farm house. When this witness told the accused that no business activity was being done at the farm house, the accused threatened to prepare a report about business activities being carried on from there and getting the firm sealed. Thereafter, accused demanded bribe of Rs. 5 Lakhs in order to spare the farm house. The accused then left the place after supplying his mobile number to PW14 and also after obtaining mobile number of PW14. After few days, accused called on the mobile of PW14 and asked him whether PW14 had spoken to his boss (PW15) qua the money and when PW14 replied that his boss was against bribe, the accused again threatened PW14 to get the farm house sealed. Upon it, PW14 again spoke to PW15 and when PW15 asked him to settle the matter with the accused, he again spoke to the accused, and then the deal was settled for Rs. 3.5 Lakhs. PW14 also deposed that he withdrew an amount of Rs. 3 Lakh from the account of the firm maintained at Syndicate Bank and then informed the accused telephonically about the arrangement having been made. Upon it, the accused told PW14 that he would come to the office of PW14 at Nehru Place to collect the amount between 2 to 2.30 PM on 23.08.2016. Thereafter, on 23.08.2016 he went to PS ACB and gave handwritten complaint Ex.PW10/A, which was countersigned by the Panch witness (PW10).
10.3. Complainant Naveen Jain (PW14) and the Panch witness Chunmun Prasad (PW10), both deposed that after the complaint (Ex.PW10/A) was given by PW14 in PS ACB on 23.08.2016 and after phenolphthalein Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 16 of 40 17 powder was applied on the currency notes of Rs. 2 Lakh brought by PW14, and its properties were demonstrated to them, the raiding team left for the spot at 12 PM in two government vehicles. The raiding team reached Nehru Place near the spot at about 1.10 PM where both the vehicles were parked and Inspector K. C. Kaushik was left with the vehicles, whereas these two witnesses went up to the entry gate of Hemkunth Tower at about 1.20 PM and started waiting for the accused. The remaining raiding team members had taken position nearby. At 1.30 PM accused came in a white car bearing registration no. DL3C BD 4356. The accused halted his car nearby and opened the left side gate of the car and called PW14 inside the car. PW14 then went and sat on front passenger seat. The window panes of the car were already rolled down. PW10 stood near the left side gate of the car and thereafter the accused demanded bribe from PW14 upon which PW14 took out the treated currency notes from a black colour bag and handed over the same to the accused. The accused counted the money. He also demanded the remaining amount of Rs. 1.5 Lakhs from PW14 and, PW14 assured to give the remaining amount within two-three days. Upon hearing and watching the conversation, PW10 gave the pre-determined signal to the raiding team and the raiding team apprehended the accused after removing the keys of the car from the keyhole. It is deposed specifically, by both PW10 and PW14 that the accused upon reaching the spot at about 1.30 PM in the above mentioned car, not only called PW14 inside the car, but he also demanded and obtained the bribe amount from the complainant and he also counted that money. When the raiding team apprehended the accused, the bribe amount was recovered from the hands of accused and his both hand wash were taken in Sodium Carbonate solution, which turned pink. Two samples of each of the hand wash of both the hands of accused were kept in two bottles each by PW20, which were respectively Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 17 of 40 18 labelled as LHW-1, LHW-2, RHW-1 & RHW-2 and then both these witnesses as well as the RO signed the labels on the bottles. The bottles were sealed with the seal of KC and were taken into possession vide memo Ex.PW10/C. The currency notes were taken into possession vide memo Ex.PW10/B and, the car was seized vide memo Ex.PW10/D. 10.4. The above mentioned testimony of PW10 & PW14 are corroborated on all material particulars by the RO (PW20) as well as another raiding team member ASI Roop Singh (PW19). It is additionally deposed by PW20 that he had noted down the currency note numbers on pre-raid report (Ex.PW10/J) prepared by him at ACB before leaving for the spot. It is also deposed by PW19 & 20 that at the spot after completion of the above mentioned proceedings PW20 prepared rukka Ex.PW12/B which was carried by PW19 to PS ACB for registration of FIR. It is also deposed that Inspector K. C. Kaushik (PW22) was called at the spot and all the case property, the documents prepared by PW20 and the custody of accused were handed over to PW22 by PW20 and then PW20 left the spot.
10.5. Inspector K. C. Kaushik PW22 also deposed that thereafter he prepared site plan Ex.PW10/H and then he along with the case property, the accused, the complainant and Panch witness with the remaining raiding team members went to PS ACB, where the accused was formally arrested vide memo Ex.PW10/E and his personal search was conducted vide memo Ex.PW10/F. It is also deposed that from the possession of accused, a copy of complaint of Ram Kumar was recovered, which was seized vide seizure memo Ex.PW10/I, which fact is not disputed by the accused and is in fact admitted by him. PW22 also deposed about depositing of the case property in the malkhana and conducting further investigation into the matter.
Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 18 of 40 19In his cross examination by the accused, PW22 admitted that he was handed over one black colour bag by PW20 along with the case property and documents at the spot, but PW22 claimed ignorance as to whether he had deposited the bag also in the malkhana. It may be also mentioned here that as per the case of prosecution, it was in this bag the complainant carried the bribe amount to the spot before handing it over to the accused. It is an admitted fact that this bag was neither deposited in the malkhana nor it has been proved during evidence.
10.6. PW21 Inspector Braj Mohan was the further investigating officer who took over the investigation subsequently in April 2018 and carried out further investigation qua collecting the relevant documents from the office of SDM, PW15 Pradeep Kumar Sagar as well as from the mobile service providers and also obtained the requisite Sanction U/s 19 of POC Act. In his cross examination, PW21 admitted that he did not examine Ram Kumar; he did not seek the so-called audio call recording of the conversation between the complainant and the accused from the complainant; did not personally visit the farm house no. 9 or 11. However, PW21 claimed that he did visit the spot of bribe transaction and looked for CCTV cameras, but since he did not find any security guard available in the building, therefore he did not ask about any such camera installed there or not. He however claimed that he personally looked at the surroundings to find out any such camera. It may also be mentioned here that in his cross examination, the witness clarified that there was no inspector by the name 'Mun' or by the name 'Man' in PS ACB and he clarified that the words 'Mun Inspector' finding mention in the documents of the prosecution actually refers to 'I, Inspector'. Meaning thereby that the words 'Mun Inspector' finding mention in the documents prepared by the investigating agency actually are referring to the inspector himself and Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 19 of 40 20 there was no separate inspector by that name posted or involved in the investigation or raid.
10.7. In the cross examination of none of the raiding team members, PW10, PW14, PW19, PW20 or PW22, anything material could be brought out to impeach the creditworthiness or trustworthiness of any of those witnesses. Barring few trivial contradictions on trivial issues nothing substantial could be brought out on record in the cross examination of these witnesses as to create any kind of suspicion about their trustworthiness. When witnesses are examined in the Court after several years of the incident, these minor and trivial contradictions are bound to occur and cannot affect the genuineness of the case.
11. It is argued on behalf of the accused that despite the fact that in the complaint Ex.PW10/A, it is specifically mentioned by the complainant that he had audio recorded his conversation with the accused as to demand of bribe on his mobile, but neither the mobile phone of the complainant nor any copy of that audio recording was ever collected or proved. It is also argued that perusal of the testimonies of the prosecution witnesses would reveal that there are contradictions also as to whether the raid officer or any other investigating officer even heard the said audio recording from the mobile of the complainant or not, before proceeding for raid or even thereafter.
11.1. Indeed, the prosecution did not collect / seize the mobile phone of the complainant and did not prove any such audio recording. But merely on that basis the otherwise inspiring and clinching ocular evidence of the complainant and the Panch witness cannot be brushed aside. The complainant has explained in his testimony that his mobile phone got damaged in the very next month of the raid as it fell on the floor and the recorded conversation got deleted. Though, none of the documents Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 20 of 40 21 prepared by the investigating agency during investigation clarifies as to why it was not collected timely, and before the mobile phone of the complainant got damaged and, it seems that there was no serious attempt by the investigating officer to collect the audio recording as a corroborative piece of evidence, but then the said lapse on the part of investigating officer cannot go to the benefit of the accused in view of the clinching and trustworthy ocular testimonies. Non production of the said audio conversations was even otherwise regarding the demands made by the accused from the complainant prior to the date of raid, but that cannot by itself be a ground to acquit the accused as otherwise the complainant as well as the Panch witness both have deposed about the demand and acceptance of bribe by the accused at the spot also.
12. A lot of emphasis is made by the accused on the point that in the complaint Ex.PW10/A, the complainant nowhere mentioned the spot where the accused was likely to meet the complainant for receiving bribe and therefore entire case of the prosecution must be viewed with suspicion that the accused was apprehended from in front of Hemkunt Tower, Nehru Place, Delhi on 23.08.2016. It is argued that this fact supports the defence of the accused that he was picked up from Sham Nath Marg, in North Delhi.
12.1. In the complaint Ex.PW10/A the place of exchange of bribe is not mentioned. But PW14 specifically deposed that the accused had called on the mobile of the complainant before the raiding team left for the spot that he would come to the office of complainant located at Nehru Place i.e. the office of M/s Kumar Brothers Company, therefore, he told about it to the raid officer. The complainant also deposed that in that call the accused specified that he would come to the office of complainant at about 1.30 PM. The fact that the raiding team was aware of the place of transaction Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 21 of 40 22 of bribe is even otherwise clear from the fact that the raiding team directly proceeded to that spot and it hasn't come in the testimonies of PW10, PW14, PW19, PW20 & PW22 that they in any manner wondered anywhere else before reaching the spot. Nothing has come in the cross examination of those witnesses that they were taken to any other place before reaching the spot. The RO lodged DD no. 13 on 23.08.2016 at 12 PM qua departure and as per the prosecution witnesses they reached near the spot directly at about 1.10 PM.
12.2. The call detail records of the mobile phone of the accused as well as the complainant were vital piece of evidence and would have been of immense assistance to this Court in coming to a conclusion as to the calls made by the accused to the complainant not only on the date of raid, but also on earlier dates in which demands were made. Unfortunately, the call detail records of all the mobile phones were not collected by the investigating agency to corroborate the evidence of the complainant and the investigating agency obtained the CDR of only one out of the two mobiles of the accused. Accused has also raised this ground of not collecting of the call detail records by the investigating agency.
12.3. Though the investigating agency collected the Customer Application Form of the mobile no. 9810949578 of the complainant (proved by PW3), but the CDR of the said mobile for the relevant period were not collected timely and therefore the service provider of mobile phone service could not supply the same. Ex.PW3/B mentions that the call detail records are maintained by the service provider for a period of one year. By the time the CDR was sought, it was more than one year from the month of raid.
12.4. Interestingly, in Ex.PW3/B, it is also mentioned that the CDR of another mobile number 9810323502 was also sought by the investigating agency, Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 22 of 40 23 and as per the concerned department, the said mobile was not active during the month of August 2016.
12.5. However, the CDR, Ex.PW6/B, of one of the two mobile phones of the accused, i.e. mobile no. 9213810036, for the period 19.08.2016 to 23.08.2016, was collected and it reveals that there were calls between this mobile of the accused and the mobile no. 9810323502 during that period. Therefore, that mobile was indeed active at that time. However, investigating officer never paid attention to this fact and it seems he did not even seek clarification from the service provider qua this fact. Also, Prosecution never attempted to even prove as to who was using mobile no. 9810323502 during the relevant period. It seems that this mobile phone was also being used by the accused. But neither its Customer Application Form was proved nor its CDR is proved.
12.6. Perusal of the personal search memo of the accused Ex.PW10/F, prepared at the time of his apprehension reveals that from his possession two mobile phones were recovered when he was apprehended, i.e. mobile no. 9213810036 (as proved in the testimony of PW6) and another mobile no. 7503979277. It is so mentioned at Sl. No. 6 & 7 in the personal search memo Ex.PW10/F. Recovery of these two mobile phones from the personal search of accused were never disputed by the accused at any stage of the matter. Instead, during investigation the accused even obtained all the personal search articles from the malkhana on 26.09.2016 as mentioned in Ex.PW18/A, pursuant to Order obtained by the accused from the Court. Thereby meaning that he also accepted the mobile phones from the malkhana.
12.7. In the testimony of PW6 the Customer Application Form and CDR of mobile no. 9213810036 were proved and according to the customer application form Ex.PW6/A, the said mobile number belongs to the Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 23 of 40 24 accused. Its CDR has also been proved as Ex.PW6/B with the requisite certificate U/s 65B of the Evidence Act as Ex.PW6/C, and the location chart of the cell tower id as Ex.PW6/D. In this mobile, CDR Ex.PW6/B there is no call made to the mobile phone no. 9810949578 of the complainant.
12.8. Though the prosecution never attempted to prove the customer application form or the call detail records of mobile no. 7503979277, and therefore the crucial piece of evidence of communication between the accused from his second mobile phone with the complainant were never produced, but from the CDR of mobile no. 9213810036 proved by PW6 at least the defence of alibi by the accused, gets belied.
12.9. The accused in his defence claimed that he was not picked up or apprehended from near Nehru Place and that instead he was apprehended from near the office of Financial Commissioner located at Sham Nath Marg near Civil Lines, Delhi. Ex.PW6/B, which contains the cell ID of the mobile tower, within the range of which the mobile phone of accused was located / travelling, and the location of the mobile tower as revealed from Ex.PW6/D, shows that on the date of raid the mobile number 9213810036 of the accused was located at near India Gate at about 10.50 AM. Thereafter, at about 11.04 to 06 AM, he was near Purana Quila Road and Tilak Lane (near Patiala House Courts). It also reveals that at 1.10 PM the location of mobile phone of accused was at Khirki Extension i.e., near Malviya Nagar which is not very far away from Nehru Place and is only few kilometres away from it. Khirki Extension is located around 20 Kilometres away from Sham Nath Marg. Therefore, the claim of accused that from Patiala House Courts, he went to Sham Nath Marg near the PS ACB or that he was apprehended from there, is not supported by his mobile location. It is not denied by the accused that he was carrying this Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 24 of 40 25 mobile phone with him on 23.08.2016. He did not cross examine any prosecution witness as to recovery of mobile phone from him in his personal search. He did not cross examine PW6 at all, thereby leaving it unrebutted and thus admitting the customer application form and CDR of his mobile.
12.10. Even otherwise, all the material prosecution witnesses, including an independent Panch witness PW10, have specifically deposed about arrival of accused at the spot and his apprehension there from. There is no reason for this Court to view the testimony of the Panch witness or any other raiding team member, with suspicion. Admittedly, none of them had any grudge or enmity with the accused. Accused though claims that the complainant had a reason to nurture grudge and in connivance of the owner of the farm houses, he wanted to thwart legitimate action of the revenue authorities on the complaint of DW4, but the accused cannot expect this Court to believe that merely because the complainant had some reason to give complaint against the accused, all other witnesses from ACB and the Panch witness acted according to desires of the complainant and danced to his tunes. Accused cannot expect this Court to believe that the police officials of Anti-Corruption Branch were in pocket of the complainant or PW15 or that the ACB officials acted as per their desire and implicated the accused. Law does not say that a police official as a witness has to be disbelieved simply for the reason that he belongs to police force. A police witness is an equally competent witness in the eyes of law and there is absolutely no reason in this case to view the testimony of police officials with suspicion. Law nowhere requires that the testimonies of the police officials must be viewed with suspicion. Rather, it is settled that even the testimony of a police official, if found believable, does not need any corroboration and merely because the witness is a Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 25 of 40 26 police official, his testimony cannot be brushed aside.
12.11. In Girja Prasad v. State of M.P., (2007) 7 SCC 625: 2007 SCC OnLine SC 1056, it is held as follows;
"25. ..................It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of the complainant or a police official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence."
12.12. If the accused wanted this Court to take a view that the police officials of this case were interested witnesses, some cogent material should have been brought by the accused on record which could have justified taking any such view. In absence of any such cogent material, the claim of accused that he was implicated falsely since the complainant and the farm house owners wanted to thwart legitimate action of the revenue authorities, cannot be believed blindly.
13. It is not in dispute that the complaint of DW4 Ram Kumar, Ex.PW22/A was marked to the accused by the SDM. But then, the claim of the accused that simply because he went to the farm house no. 9 belonging to brother of PW15 under whom the complainant was working as an employee therefore he was implicated in this case, is insufficient. The fact of accused visiting farm house no. 9 which is adjoining farm house no. 11, belonging to two brothers, by itself is insufficient to take a view that the accused was implicated to thwart any action. Availability of a legitimate Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 26 of 40 27 reason with the accused to visit the farm house, is a double edged sword. If it could have acted as a reason for the complainant to attempt to thwart action, it was very well an opportunity available with the accused to satisfy his greed. After all, the complaint Ex.PW22/A was marked to the accused on 27.06.2016. There is no written report or intimation from the accused to the SDM or any other revenue authority as to any kind of illegal activity or unauthorised construction in the farm house in question, from 27.06.2016 till the accused was apprehended on 23.08.2016. If the accused claims that there were illegal activities in any of the farm houses mentioned in complaint Ex.PW22/A, he would have given its report to SDM / revenue authorities timely. For almost about two months after the complaint Ex.PW22/A was assigned to the accused, there is no action recommended or report given by the accused to his office. This period could have very well been used by the accused for demanding bribe. Therefore, merely because the accused went to inspect the premises pursuant to complaint Ex.PW22/A cannot be a reason to give benefit to the accused that he must have been implicated by the property owners. After all, there is reliable evidence of more than one witness as to the accused reaching the spot in a car, demanding the money and, accepting it.
14. Similarly, the claim of accused that one Girish Lohiya was a bad character of the area and he was also owning a farm house no. 1 in the name of his family and that Girish had strained relations with DW4 Ram Kumar, therefore, the accused was implicated, is without any force. Perusal of FIR no. 357/2016 Ex.DW2/A lodged by the Deputy Conservator of Forest, South Delhi reveals that on 12.04.2016 when the officers of West Forest Division visited the place of construction of a boundary wall around Ghitorni Ridge area, falling in Khasra no. 630, by the Ecological Task Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 27 of 40 28 Force, Girish who was an encroacher in the ridge area came to the spot with 50 other persons, stopped the work of boundary wall construction by the Forest Department and, Girish and his associates attacked the forest officials. Accused claims that since he was also one of the members who prepared an inspection note dated 12.05.2016, therefore, he was implicated. First of all, the said note dated 12.05.2016, in which allegedly the accused was also a signatory, has not been proved by the accused in accordance with law. Instead, even for not proving of that document by his own defence witness, the accused tried to put a blame on the Anti- Corruption Branch officials claiming that because of influence of the investigating agency the said document was not brought by the Patwari DW1. Accused did not prove that document by secondary evidence. Assuming that the accused would have succeeded in proving any such note dated 12.05.2016, even that fact by itself would not have been enough to discredit the reliable evidence of the complainant, the Panch witness and the other members of the raiding team. There can be no presumption in favour of the accused that Girish was instrumental in instigating PW15 or PW14 in concocting any story and getting the accused implicated. It is highly uninspiring that because of enmity between DW4 and his brother and because of the accused being an area Patwari, he was implicated in the matter simply because he went to inspect the farm houses mentioned in the complaint of DW4 Ram Kumar Ex.PW22/A.
15. The fact that the car owner PW4 Seema Rani categorically deposed that it was the accused who had borrowed her car on the date of incident and then she came to know that her car was seized, proves an important fact that the accused indeed used the car of PW4 on the date of incident, which car was seized from the spot as the accused had reached that spot in that very car. Merely, because PW4 could not recollect the time when the Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 28 of 40 29 accused took her car on 23.08.2016, is not a ground to view her testimony with suspicion. She has no reason to falsely depose against the accused. In the cross examination of PW4, nothing at all came out in favour of the accused to discredit even this witness. Even otherwise, perusal of evidence and statement of accused would reveal that there is no serious dispute by the accused as to the fact that he used the car of PW4 on the date of raid.
16. A lot of emphasis is made by the accused on the point that the complainant PW14 had no authority in his favour to file the complaint Ex.PW10/A; to lodge the FIR or; participate in the raid. It is emphasised by the accused that perusal of answers given by the complainant PW14 and his employer PW15 reflects that PW14 was not merely employee in the partnership firm M/s Kumar Brothers Company and that PW14 was actually looking after the work of the farm house of PW15 and his brother / sister-in-law.
16.1. Both PW14 & PW15 categorically deposed that PW14 was an employee of the firm and besides the affairs of the firm, he also used to look after the affairs of the farm houses of the partners. Admittedly, Smt. Prem Lata Sagar is one of the partner in the firm. Farm house no. 9 was owned by her, and her husband Mahender Sagar is brother of PW15 Pradeep Sagar. Whether or not, there was any written specific authority executed by the firm in favour of the complainant to look after the work of the farm houses, does not make any difference.
16.2. In a cognizable offence, it is immaterial as to who makes the complaint.
In the present case, the accused demanded bribe directly from the complainant and it is nobody's case that the accused ever spoke to PW15 or Smt. Prem Lata Sagar or Mahender Sagar. When demand was made from the complainant, it was the complainant who should have been and who rightly gave the complaint. Merely because the complainant was an Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 29 of 40 30 employee of the firm and not owner of farm house no. 9 & 11, does not make him an incompetent person to give the complaint. Rather, law provides that the person who perceives an offence is the competent witness and therefore there is no point in harping on the issue that there was no authority in favour of the complainant to look after the affairs of the farm house or to give complaint against the accused.
17. The accused next argued that despite availability of CCTV cameras at and near the spot of apprehension, the investigating agency did not collect it, else it would have belied the prosecution's case. In this regard, accused argues that perusal of the testimonies of the raiding team members and the investigating officers reflects that evasive answers or false answers were given by them as to whether or not CCTV cameras were installed at Hemkunt Tower on the date of raid. Accused also claims that the claim of the raid officer / IO as to no CCTV cameras installed at the spot, gets belied from the testimony of DW3 Mr. R. Roy who was working as Estate Manager at Hemkunt Tower since 1995 and he specifically deposed that there were at least 16 CCTV cameras including two cameras facing the entry gate of Hemkunt Tower installed on the date of raid.
17.1. Indeed, it is so mentioned in the testimony of DW3. But merely because the CCTV footage was not obtained by the investigating agency cannot be a ground to disbelieve the otherwise inspiring case of the prosecution.
17.2. First of all, there is no evidence on record specifically to the effect that the CCTV Cameras installed at Hemkunt Tower building, including the two cameras towards the gate of the building, were also covering the exact spot where the accused came and halted his vehicle. Perusal of site plan Ex. PW10/H reveals that the place where accused halted his car, inside which car the demand and acceptance of bribe took place, the said place Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 30 of 40 31 is around ten feet away from the gate. Therefore, it is a question whether the cameras were covering that area also where the car was halted.
17.3. If the accused was so confident that the CCTV cameras footage of the date of incident would have belied the prosecution's version, nothing stopped the accused from exercising his right U/s 91 Cr.P.C of getting the footage obtained collected or preserved. The accused did not opt for it, either. In such circumstances, this cannot be a ground to disbelieve the case of prosecution.
18. Similarly, the argument of accused that before acting on the complaint Ex.PW10/A, the RO (PW20) did not try to verify the allegations except by orally inquiring from the complainant and, he did not conduct any preliminary inquiry, is not a ground to extend any benefit to the accused.
18.1. Law does not make it mandatory that in a case of the nature the present case is, preliminary inquiry ought to have been conducted. In such kind of cases, usually FIRs are registered only after the trap becomes successful and the FIRs are not registered immediately on giving of such complaints. There is no illegality in following such a procedure of not undertaking preliminary inquiry before proceeding for raid.
18.2. In any case, there was inadequate time to enter into any such preliminary inquiry in this case as the bribe transaction was to be completed within few hours on that very day and had ACB entered into PE, it would have consumed substantial time, even few days, in establishing the truthfulness of the allegations.
18.3. Once the accused arrived at the spot, demanded bribe and accepted bribe, the said act alone was sufficient to bring his case within the purview of Sec. 7 & 13 of POC Act and there was no requirement of entering into any preliminary inquiry.
Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 31 of 40 3219. The argument of accused that in the statement of bank account of the firm M/s Kumar Brothers Company Ex.PW11/A, as proved by PW11, does not reflect as to for what purpose amount of Rs. 3 Lakh was withdrawn on 22.08.2016, has to be rejected on the face of it.
19.1. As per the statement of account, a sum of Rs. 3 Lakh was indeed withdrawn through cheque on 22.08.2016 from the current account of M/s Kumar Brothers Company. As per the complainant and PW15 this amount was withdrawn from the account in order to meet the constant demands of the accused. In a statement of account, there is no requirement to mention the purpose of withdrawal by an account holder whenever the account holder withdraws money from the account. After all, it is the account holder's money which remains in his account maintained by the bank. Bank is not supposed to ask and, the account holder is not supposed to tell the bank, as to for what purpose the amount is withdrawn.
19.2. The fact that this amount was withdrawn from the account one day before the date of raid rather lends credence to the prosecution's case.
20. It is next argued by the accused that the testimony of PW19 has to be completely ignored as when this witness was under examination, he was found holding some paper pieces (Mark X-1) in his hand and which were taken on record by the Court upon mentioning of the counsel for accused.
20.1. Those papers are copies of statement of that witness U/s 161 Cr.P.C and some notes and date and time etc. noted thereon, running into four leaves of pages. Indeed, those papers were taken on record by the Court towards the end of examination in chief of PW19 as soon as it was brought to the notice of the Court. But a perusal of the observation of Court during the testimony of PW19 reveals that though those papers were in the hand of the witness, but it was not a case where the witness was discretely reading or referring to those papers / notes or, was deposing from it. May be the Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 32 of 40 33 witness read his statement and, to refresh his memory made those notes, before he entered into the witness box on the date of his examination. It is not in dispute that the Counsel for accused was throughout present in the Court room when evidence of PW19 was recorded. Counsel for accused did not even claim that PW19 referred to or discretely read during deposition any of those papers which he was holding in his hand. Had there been any such eventuality, even the Court would have taken note of it and mentioned about it in the testimony of PW19.
20.2. In such circumstances, merely because PW19 was holding some papers, his entire testimony cannot be rejected. Even if for the sake of arguments, the testimony of PW19 is excluded from the prosecution's evidence, the other believable and clinching testimonies of PW10, PW14, PW20 & PW22, proves the case of prosecution completely against the accused.
21. The counsel for accused also raised question as to the manner of recording of evidence by the Ld. Predecessor of this Court, including the testimonies of the complainant and the Panch witness, claiming that during evidence the Counsel for accused used to be made to sit some distance away from where the witness used to depose and along with the witness, the Prosecutor and the Naib Court used to remain and therefore it was not clear to the accused as to whether the witnesses were shown any documents at the time of deposition.
21.1. In the testimonies of none of the prosecution witnesses recorded in the matter, any such objection is recorded and therefore it is clear that this issue was never raised by the accused during evidence. No such objection from the Counsel of accused finds mention in any of the testimonies of the prosecution witnesses. Therefore, at the stage of final arguments, it does not lie in the mouth of accused to claim that the manner of recording evidence by the Ld. Predecessor Court was in any manner inappropriate Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 33 of 40 34 or was unfair to the accused. Making such a hollow claim at subsequent stages, that too before a successor Court, has to be termed as unfortunate, uncalled for and, not a good practice, to say the least.
21.2. Reliance placed by the accused in this regard upon the case of Ajay Kumar Vs. State & Ors. (1985) ILR 2 Delhi 40, wherein it was observed that a fair trial must be based on equally fair investigation; material collected by the investigating agency disclosed to the accused; in an open Court in a fearless; favourless environment; unbiased decision; with all procedural safeguards as to right of cross examination of witnesses; right of Counsel of choice of accused; etc., does not help the case of accused as there is nothing on record to even remotely suggest that there was any such unfairness against the accused, either at the stage of investigation or during trial.
22. Reliance placed by the accused upon another case of Shankarlal Gyarasilal Dixit Vs. State of Maharashtra AIR 1981 SC 765, is also of no help. That was a case of circumstantial evidence qua the allegations of rape & murder of a five-year-old girl and based on the circumstances of that case, benefit was given to the accused of that case. The said case has absolutely no application to the facts of the present case.
23. The argument of accused that the black colour bag in which the currency notes were taken was not seized and the fact that the said bag has never been proved in the evidence, is also not enough to acquit the accused. Indeed, it has come in the evidence of prosecution witnesses that before the bribe money was handed over by the complainant to the accused at the spot, the bag was in possession of the complainant and from this bag bribe money was taken out and given to the accused. However, the said bag was neither seized vide any seizure memo nor it was deposited in the malkhana and it was never proved in evidence.
Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 34 of 40 3523.1. It was not necessary for the investigating officer to have seized that black colour bag as the said bag was not an incriminating piece of evidence against the accused. It was not a bag along with which the bribe money was handed over to the accused. The bag was not recovered from the accused. The bag did not belong to the accused and therefore, merely because money was taken to the spot in that bag, it was not necessary for the investigating officer to have seized the bag.
24. Similarly, the contention of accused that had the accused demanded bribe from the complainant several days prior to the date of raid, the complainant or the owner of farm houses would have given complaint against the accused to the SDM, is without any force. How the complainant and the owner of farm houses chose to react, upon faced with demand of bribe by a revenue official, is a question which would vary from person to person and no set reaction qua it could be expected.
25. The argument of accused that no public witness from amongst the parking attendants, guards, passer-byes and office employees were requested to become witness at the raiding spot by the raid officer PW20 or the first investigating officer PW22, also does not help the case of accused as the raiding team took along PW10 Chunmun Prasad, who belonged to a different department than the department of ACB and was for all practical purposes an independent witness. There is no reason for this Court to nurture any suspicion as to independence of Panch witness. Though, the accused termed the Panch witness as a 'stock witness', but no evidence has come on record that the Panch witness was a member of any other similar raid or any other criminal case of any nature whatsoever. He therefore cannot be called as a stock witness at all.
26. In the case of A. Kanagrajan Vs. State 2014 SCC Online Madras 11323, quoting para no. 12 of the case of C. M. Sharma Vs. State of A. P. 2011 Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 35 of 40 36 SAR (Criminal) 76, it was observed that corroboration of evidence of a witness is required when his evidence is not wholly reliable and on appreciation of evidence, witnesses can be broadly categorised in three categories viz., unreliable, partly reliable and wholly reliable. In the case of partly reliable witness, the Court seeks corroboration in material particulars from other evidence, whereas in the case of wholly reliable witness, no corroboration is necessary.
27. The claim of the accused that there is a delay of six days in sending the hand wash sample bottles to the FSL, is also liable to be rejected. Within a week of the seizure of the hand wash sample, the same were sent to the FSL by the investigating agency and it cannot be called as a case of undue delay.
28. Similarly, the argument that in the recovery memos the time of seizure is not mentioned and in the malkhana register the time of receiving of the case property in the malkhana is not mentioned, cannot be a ground to view the case of prosecution with suspicion. Law nowhere requires that those seizure memos of case property should have contained the time of seizure or that the malkhana register should have contained specific time of deposition of case property.
29. Accused also claimed that there are various contradictions in the testimonies of prosecution witnesses on various aspects such as; whether the complainant brought an already prepared complaint or he wrote that complaint in the office of ACB on 23.08.2016; who exactly withdrew the bribe amount from the account; how much amount was withdrawn; when exactly the complainant came to know that the accused would come to Nehru Place for receiving bribe; whether there was any revenue case pending or decided against the farm houses in question; whether or not swimming pool existed in the farm house no. 9 & 11; whether the Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 36 of 40 37 complainant spoke to the accused telephonically after withdrawal of money on 22.08.2016 and at that time he came to know about the spot or whether the complainant came to know about the spot only on the date of raid; whether the complainant gave copy of complaint of Ram Kumar; whether or not any care taker was appointed to look after the work of farm houses; how many employees were engaged in the farm houses; whether the audio recording was heard by the raid officer before leaving for the raid or not; whether or not public witnesses were requested to become part of raid proceedings from those available on the spot; how many guards or passer-byes were present at the spot; CCTV cameras were installed or not; who exactly took the currency notes from the hand of the accused and; the exact time of every stage of the proceeding, etc. 29.1. All the above mentioned contradictions pointed out by the accused are trivial in nature and does not affect the basic case of the prosecution. Those trivial contradictions are bound to occur when witnesses are examined in the Court after several years of the incident. Those are normal errors in observation, recollection and deposing by the witnesses and they cannot be given any undue weightage.
29.2. In Appabhai and Anr. Vs. State of Gujarat 1988 Supp SCC 241, Supreme Court has emphasized that while appreciating the evidence, the court should not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. Similarly, the discrepancies which are due to normal errors of perception or observation should not be given importance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record as a whole and should not disbelieve the evidence of a witness altogether, if it is otherwise trustworthy.
Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 37 of 40 3830. Thus, a holistic appreciation of evidence of the prosecution leaves no manner of doubt that on 23.08.2016 the accused reached near Hemkunth Tower in the above mentioned vehicle at about 1.30 PM and then in presence of the Panch witness, he demanded and obtained bribe amount of Rs. 2 Lakh from the complainant which were already treated with Phenolphthalein and he also counted those currency notes and even demanded the balance amount out of Rs. 3.5 Lakhs demanded by him from the complainant. Those currency notes were recovered from his hand in presence of PW10, PW14, PW20 as well as PW19. When hand wash of the accused was taken in sodium carbonate solution, it turned pink indicating presence of Phenolphthalein on both of his hands.
31. Thus, it is proved beyond reasonable doubt by the prosecution that on 23.08.2016 the accused demanded as well as accepted and thus obtained the above mentioned bribe amount from PW14. Though, there is no reason for this Court to doubt that on other dates prior to that day also the accused demanded bribe amount from the complainant in order to not prepare any adverse report against the farm house belonging to employer of complainant and that initially five lakh rupees were demanded by him which demand was brought down to R. 3.5 Lakhs, but in absence of specific dates and time in the evidence of the complainant and in absence of any corroboration because of non-collection of CDRs, even if for a moment it is believed that the prosecution did not prove beyond reasonable doubt the demands made by the accused from the complainant prior to 23.08.2016, the demand and acceptance of 23.08.2016 is proved beyond reasonable doubt.
32. The moment it is proved by the prosecution beyond reasonable doubt that the accused accepted the sum of Rs. 2 Lakh from the complainant on 23.08.2016, presumption U/s 20 of the POC Act arises against the accused Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 38 of 40 39 and it was for the accused to have proved as to for what purpose he accepted that amount, if it was not bribe.
33. In the case of B. Noha Vs. State of Kerala & Anr., Crl. Appeal No. 1122 of 2006, decided by Hon'ble Supreme Court on 06.11.2006, the facts were that the accused who was working as Health Inspector allegedly demanded and accepted an amount of Rs. 100/- from the complainant of that case on two different dates, for release of articles of the complainant. The accused was trapped. The accused in that case took a defence that he did not receive amount from the complainant, but the complainant came to his office and forcibly put the money into his pocket. Hon'ble Supreme Court observed that when it is proved that there was voluntary and conscious acceptance of money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deduced from the facts & circumstances obtained in the particular case. It was observed as follows in the said case.
"The evidence shows that when PW-1 told the accused that he had brought the money as directed by the accused, the accused asked PW-1 to take out and give the same to him. When it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deducted from the facts and circumstances obtained in the particular case. It was held by this Court in Madhukar Bhaskarrao Joshi V. State of Maharashtra (2000 (8) SCC 571) as follows:
"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 premises 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 or 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 Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 39 of 40 40 word 'gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it".
This decision was followed by this Court in M. Narsinga Rao V. State of A.P. (2001 (1) SCC 691). There is no case of the accused that the said amount was received by him as the amount which he was legally entitled to receive or collect from PW-1. It was held in the decision in State of A.P. Vs. Kommaraju Gopala Krishna Murthy (2000 (9) SCC 752), that when amount is found to have been passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification. That burden was not discharged by the accused."
34. Indeed, the accused was expected to disprove that presumption, merely on preponderance of probability and the burden on him was not as heavy as is on the prosecution. But the accused completely failed to disprove the said presumption in the facts of the present case. His defence was rather of complete denial and of false implication, which I have already rejected above.
35. For attracting Sec. 7 & Sec. 13(1)(d) of POC Act, 1988, the said incident of 23.08.2016 alone is sufficient. It is now well settled that in such a case of the present nature, conviction can be based against an accused for Sec. 7 as well as Sec. 13(1)(d).
36. In the facts & circumstances, the accused is found guilty and convicted U/s 7 & Sec. 13(2) read with Sec. 13(1)(d) of POC Act 1988.
Announced in the Open Court on 18.08.2022.
DIG Digitally signed by
DIG VINAY SINGH
VINAY Date: 2022.08.18
SINGH 14:28:42 +0530
(Dig Vinay Singh)
Special Judge (PC ACT)/ACB-02
Rouse Avenue Courts
New Delhi /18.08.2022 (r)
Judgment; CNR No. DLCT010016962019; CC No. 327/2019; State Vs. Sanjay Solanki; FIR No. 13/2016; P.S ACB; Dated 18-08-2022; Page 40 of 40