Delhi District Court
State vs . Jannu Paul Rajkumar on 28 September, 2021
1
IN THE COURT OF SH. DIG VINAY SINGH: SPECIAL JUDGE
(PC ACT) (ACB)-02, ROUSE AVENUE COURTS, NEW DELHI
CNR No. DLCT110015572019
CC No. 255/2019
State Vs. Jannu Paul Rajkumar
FIR No. 04/2012
PS ACB
In re:
State
Vs.
Jannu Paul Rajkumar
S/o Late Sh. Jannu Kornel Paul
R/o House No. 11-6-13, Christian Colony,
Warangal, Telangana PIN- 506013
Date of institution: 15.05.2019
Date of arguments: 14.09.2021
Date of judgment: 28.09.2021
JUDGMENT
1. The sole abovenamed accused faced trial in this case for offence U/s 12 of POC Act, 1988.
2. Brief facts are that on 02.12.2012 the accused went and met the complainant in his office and allegedly offered bribe to the complainant. Complainant Mr. G. V. V. Sarma was working as Joint Secretary (Foreigners'), at Jaisalmer House, 26, Mansingh Road, New Delhi on that day. The complainant did not accept the bribe and asked the accused to leave his office and then called his office staff inside his room. Thereafter, the accused was searched in the premises, but he could not be found. In the complaint dated 06.02.2012 the complainant has mentioned that when the accused came to meet him in his office, the accused had furnished one written request CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 1 of 33 2 to his staff, on a piece of paper addressed to the complainant, mentioning his own address and mobile number. Perusal of the said written request given by the accused reveals that the accused expressed desire to meet the complainant regarding some earlier letter given by Chief Executive Officer of Christian Outreach Ministries (Australia). In the same letter, a marginal note is written by the complainant after the incident of bribe and it is recorded in the marginal note that accused met the complainant in his office at around 03.10 PM on 02.02.2012 and he revealed currency notes in his bag and thereafter the complainant immediately called Chief Security Officer requesting him to send CISF Personnel, but by the time they came the accused ran away along with his bag and cash. This request letter of accused and the marginal note appended thereon was annexed by the complainant with his complaint dated 06.02.2012. It is mentioned in the complaint dated 06.02.2012 that the background of the matter was that a complaint was received in the concerned department of Ministry of Home Affairs from Christian Outreach Ministries against one M. S. Wiliams on 18.04.2011. On the said earlier complaint an inspection was conducted by the then Under Secretary (MU), namely, Mr. N. R. Singh and thereafter a decision was taken on the office file no. II/21022/58(8/2011-FC(MU) dated 08.12.2011 to refer that case to CBI for investigation into the matter. However, the matter was referred to CBI only on 03.02.2012 after the incident of offering bribe in question and after an explanation was sought from Mr. N. R. Singh as to why the Home Secretary's orders to send the matter to CBI was not complied with. It is also mentioned in the complaint that the accused was pursuing the said earlier complaint with MHA for referring the case to CBI for investigation against Mr. M. S. Williams and therefore he came and met the complainant.
CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 2 of 33 32.1. On this complaint, FIR was registered on 06.02.2012 u/s 12 of POC Act, 1988. During investigation relevant documents were taken into possession and it was noticed that earlier a complaint was received on 18.04.2011 in the department from one Mr. Warren Fagg (CEO) Christian Outreach Ministries (Australia). The complaint was against Mr. Swaminathan Williams, Former Trustee of Christian Ministries Properties Trust (Formerly Christian Outreach Centre) Rayadupalem, Kakinada, Andhra Pradesh. On this complaint Mr. N. R. Singh, the then Under Secretary (FCRA-MU), recommended to refer the case to CBI for detailed investigation of the association i.e., Christian Outreach Centre along with two other associations i.e., Christian Outreach Ministries and Christian Outreach Properties Trust. This recommendation was approved by the Joint Secretary (F) on 07.12.2011 and the same was approved by Additional Secretary (F) and Home Secretary on 08.12.2011. But till the date of occurrence the matter had not been formally referred to CBI.
2.2. During investigation, relevant witnesses posted and present at the office of the complainant, regarding the visit of the accused were also examined. Mobile call details and the customer application form of mobile no. 9963983879, which was used by the accused on that day were also collected, which revealed presence of accused at the place of occurrence on the relevant date and time. Specimen hand writing of the accused was also obtained and the FSL result dated 03.04.2017 confirmed the writing on the request to meet complainant as that of accused. On completion of investigation chargesheet was filed.
3. Accordingly, a charge U/s 12 of POC Act, 1988 was framed against the accused to which the accused pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined total 19 witnesses.
CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 3 of 33 44.1. PW1 HC Devender Kumar, posted as Diary Dispatcher in Anti-Corruption Branch, on receiving complaint dated 06.02.2012 Ex.PW1/A, made entry in the Diary Register Ex.PW1/B. 4.2. PW2 Mr. M. Mohanta was posted at Jaisalmer House as ASI from CISF on the date of incident and was working as Gate In charge on that day. He deposed that on that day complainant called him through his Peon and thereafter he reached the office of the complainant where the complainant told him that the accused attempted to give him bribe of Rs. 2 Lakh; complainant also gave physical description of the accused and then instructed this witness to search the accused. Upon it, this witness informed the Sentry at both the gates to stop and apprehend that person if he was inside the complex and he also informed his Inspector and Assistant Commandant. The witness deposed that they searched for the accused, but could not find the accused in the premises. The witness also deposed that whenever any visitor entered the building of the office in question a gate pass was issued to him and that gate pass had to be deposited back at the gate at the time of leaving the premises. But in this case the gate pass of accused could not be found, thereby meaning that the gate pass was not returned.
In his cross examination the witness stated that the visitors used to be checked and frisked to ensure that they were not carrying any weapon or bomb and the said frisking and checking used to be through metal detectors; their bags used to be checked through metal detectors and; visitors used to be frisked by hand at the time of entry.
4.3. PW3 Mr. Arjun Singh Rawat worked as Junior Reception Officer in Jaisalmer House on the date of incident. He deposed that one Mr. J. P. Rajkumar came to him at Reception during public hours and on request of J.P. Rajkumar one pass was issued to him to meet Sh. H. Kawallingthang, who was working as Under Secretary, FCRA. After seeing the duplicate print out of pass no. 1202021076 Ex.PW3/A from the judicial file the CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 4 of 33 5 witness admitted that the said duplicate print was furnished by him to ACB on 03.04.2012, which was seized by the IO vide memo Ex.PW3/B. The witness also deposed that the original pass was given to Mr. J. P. Rajkumar on 02.02.2012. The witness however failed to identify the accused in the Court.
In the cross-examination witness deposed that after a visitor was issued pass from the reception the security persons used to check the same and then allow entry of the visitor inside the gate. He also deposed that all the passes issued to the visitors used to be issued in the name of Under Secretary in FCRA Division even if the visitor wanted to visit somebody else and at that time Mr. H. Kawallingthang was working as Under Secretary. He also deposed that if a visitor wanted to meet someone during non-visiting hours, then, the pass used to be issued in the name of that particular official who was to be visited and in order to confirm the visitor, confirmation used to be taken from the official. The witness clarified that gate pass Ex.PW3/A however was issued during the visiting hours which were from 10.00 AM to 1.00 PM. He also deposed that visitor was required to deposit the pass back at the Reception or the Security Gate after his visit but several visitors were not following that instruction.
4.4. PW4 Mr. Prakash Chandra worked as Personal Assistant to the complainant on the date of incident. He deposed that on that day he along with PPS Mr. Raghu were called by the complainant inside the office and when they reached inside the office of complainant one visitor was present in the office. At that time complainant asked the visitor to repeat what the visitor had earlier stated to the complainant, but the visitor did not respond. The witness failed to identify the accused as the visitor claiming that the incident occurred several years ago from the date of examination.
CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 5 of 33 6When the witness could not divulge further facts, the witness was cross examined by the Ld. Prosecutor in which the witness admitted that on 02.02.2012 one Mr. J. P. Rajkumar visited their office at about 3.00 PM claiming to be from Hyderabad and wanted to meet the complainant and Mr. J. P. Rajkumar had also given a written note in this regard and thereafter said J. P. Rajkumar met the complainant in his office at about 3.10 PM. Witness also admitted that after few minutes the complainant called him and the PPS inside his office and asked Mr. J. P. Rajkumar to repeat what he had earlier told, but Mr. J. P. Rajkumar did not say anything. Thereafter complainant asked Mr. J. P. Rajkumar to leave the room and he left. After sometime the complainant asked this witness and the PPS to search Mr. J. P. Rajkumar and bring him back. Thereafter, this witness and others tried to trace out Mr. J. P. Rajkumar but could not find him. The witness could not identify the accused as the same person even during cross examination by the Ld. Prosecutor.
In his cross examination by the accused, the witness deposed that after 5-7 minutes of the arrival of the accused, the complainant called this witness and the PPS inside his room and, immediately after the accused left the room, the complainant asked for search of the accused. At another place in the cross examination the witness claimed that after about five minutes when this witness left the room of the complainant, the complainant asked for the accused to be searched and this direction was conveyed telephonically. The witness also deposed that he did not come to know exactly what had happened between the complainant and the accused on that day and he came to know about the incident later on when the police came and enquired from him. The witness also deposed that CISF personnel were called after this witness and the PPS failed to locate the accused. 4.5. PW5 Mr. G. V.V.V. Sarma, the complainant, deposed that on 02.02.2012 when he was working as Joint Secretary in the Ministry of Home Affairs and CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 6 of 33 7 was looking after Foreigners' Division with his office at Jaisalmer House, 26 Mansingh Road, New Delhi and he was present in his office at about 3.10 PM, his private secretary Mr. Raghu (PW7) sent a written letter signed by the accused in which the accused wanted to meet him. The complainant agreed to see the accused and directed his PS to send the accused inside his office. Thereafter, the accused came inside and referred to his earlier request of sending complaint to CBI. Suddenly the accused opened his bag which revealed some currency notes. The complainant got shocked and asked the accused as to what was it. Upon it, the accused replied Rs. 2 Lakh. Immediately thereafter the complainant called his personal staff by ringing the call bell and also through intercom and asked his staff to catch the accused. The complainant also asked his private secretary to immediately contact the Chief Security Officer Mr. Dushyant Singh and seek CISF support. Meanwhile, the accused ran away along with the bag and the cash and the complainant endorsed marginal comments on the letter given by the accused. Later on, he gave a complaint to Delhi Police for formal FIR as was directed by the Government. He also claimed to have identified the accused during investigation. The complainant deposed that it was the accused present in the Court who came and met him in his office and offered bribe. The witness proved letter written by the accused seeking an audience from the complainant as Ex.PW5/A. Witness also identified his own handwritten marginal note Ex.PW5/B in which it is written that "this person met me in the office at around 3.10 PM today offered Rs. 2 Lakh and showed the currency notes in his bag. I immediately dialled Chief Security Officer and requested him to send CISF Personnel. By the time they could come, the person ran away along with his bag and cash. For information". Witness also identified his complaint dated 06.02.2012 as Ex.PW1/A addressed to the then Additional Commissioner of Police. The witness also deposed that the background of the matter that earlier a complaint made by CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 7 of 33 8 Christian Outreach Ministries against one M. S. Williams as to misappropriation of foreign money was received. Earlier also, the accused along with one foreigner had met the complainant in his office in the previous year and had submitted detailed complaint against Mr. Williams. After due examination the department decided to refer the matter to CBI and the accused met this witness on the date of incident supposedly to pursue the matter. The witness also deposed that on 23.02.2012 he again joined investigation of this case and supplied photocopies of note sheets; photocopy of complaint dated 08.04.2011 by Mr. Warren Fagg; complaint of the accused; photocopy of the letter sent to CBI dated 03.02.2012 and photocopy of Vigilance Cell/MHA dated 03.02.2012, which were taken into possession by the IO vide Ex.PW5/D. The documents were marked as Mark A collectively. Witness also deposed that he identified the accused in the office of ACB on 07.01.2015.
Nothing material could be brought out in the cross examination of this witness by the accused to impeach the creditworthiness or trustworthiness of this witness. The witness claimed that the accused did not give any other letter as mentioned in Ex.PW5/A on 02.02.2012 when he met him and on that day the accused said "Sir please refer the case to CBI" and then the accused opened the bag, which was earlier kept on the floor by him after he came. The witness could not recall the number of bundles of the currency notes or its colour or its denomination. The witness also claimed that he did not try to seize the bag which the accused carried and besides Ex.PW5/B he did not send any other communication to his superior officers on 02.02.2012.
4.6. PW6 Vikas Jaitley was posted as Section Officer in the Vigilance of MHA, North Block. He deposed that on 03.02.2012 Ex.PW5/A with marginal notes Ex.PW5/B was received in the office of Vigilance Cell which was marked CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 8 of 33 9 to the Under Secretary, Vigilance and he prepared a note dated 03.02.2012 on it and after approval of Chief Vigilance Officer, MHA it was sent to the complainant along with original note sheet dated 03.02.2012 and intimation dated 02.02.2012 as received from the complainant. Copy of the note sheet was marked as PW6/A. 4.7. PW7 Sh. M. Raghu was working as PPS to the complainant on the date of incident and he was on duty on that day. He deposed that at about 3.00 PM the accused came to the office and requested this witness to see the complainant. This witness asked the accused to write the request letter along with purpose of meeting and details and then the accused wrote request letter Ex.PW5/A. The letter was sent to the complainant and accused went to meet the complainant. After sometime the complainant called this witness and his colleague Mr. Prakash Chand (PW4) inside his room. At that time accused was sitting in front of the complainant in his office. The complainant asked the accused to repeat what he had said earlier, but the accused did not say anything. Thereafter, this witness came out of the office of the complainant along with Prakash Chandra, but after sometime both of them were again called inside by the complainant and at that time accused was not there and then complainant asked them to find out the accused but the accused could not be found.
When the witness could not divulge further facts, he was cross examined by the Prosecutor for the State. In his cross examination by the Ld. Prosecutor the witness denied the suggestion that the accused was asked by complainant to leave his room when the accused did not repeat what he had earlier said or that the accused left the room at that time. The witness however admitted that CISF officials also tried to find out the accused and the complainant made an endorsement on the letter of accused which was forwarded to the Joint Secretary, Administration and the Chief Vigilance Officer of the Ministry of Home Affairs.
CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 9 of 33 10In the cross examination of this witness by the accused, nothing material could be brought out to impeach the creditworthiness or trustworthiness of this witness.
4.8. PW8 Inspector Avijit Parui was posted as Security Officer from CISF at the place of occurrence on the date of incident. He deposed that at about 9.30 AM when he was present at UPSC building ASI M. Mohanta (PW2) was called by the complainant and thereafter ASI directed the CISF personnel deployed at entry and exit gates to check the passes, but the accused could not be found. It was also noticed that accused had been issued a pass to meet the Under Secretary. This witness provided duty chart pertaining to the date of incident to the IO. In the cross examination of this witness, it has come that the big bags of the visitors used to be checked at the gate itself by CISF Personnel.
4.9. PW9 Smt. Hemlata is sister of accused. She deposed that she purchased SIM of mobile no. 9963983879 in her name on her Id, but it was being used by the accused.
4.10. PW10 Smt. Bhamidi Laxmi Kameswari, Ahlmad of Court of Junior Civil Judge cum Judicial First-Class Magistrate, Kakinada, Andhra Pradesh brought original case file no. RC10(S)/2013 and proved complaint dated 03.02.2012 by Ministry of Home Affairs bearing no.
II/21022/58(8)/2011/FCMU, as Ex.PW10/A from the judicial file.
4.11. PW11 Syyed Ahmad Ali Hashmi, the Junior Forensic Expert (Documents) from FSL, Rohini compared the questioned signature and writing, respectively, Q1 & Q2 on Ex. PW5/A, i.e., the request letter written by the accused seeking audience from the complainant on 02.12.2012, with specimen handwriting and signatures of the accused Ex.PW15/A. The witness deposed that on comparison the signature and writing on the CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 10 of 33 11 questioned document were found to be matching with the specimen of the accused vide his report Ex.PW11/A. 4.12. PW12 Anand Kumar was deputed as Panch witness in the ACB in January 2015 and in his presence accused was interrogated on 07.01.2015. He also deposed that on that day complainant came to the office of ACB and identified the accused.
4.13. PW13 Nalini Ranjan Singh was the Under Secretary in Monitoring Unit Foreigners Division, Ministry of Home Affairs during the relevant period. He deposed that on a complaint received from Warren Fagg, he along with his team members conducted inquiry and during inquiry Warren Fagg as well as accused Jannu Paul Rajkumar met him on few occasions and the accused even spoke to him on telephone on two occasions, during which the accused wanted to know the outcome of inquiry, but the accused was not told about the outcome of inquiry and thereafter the accused stopped calling or meeting this witness. The witness also identified his letter Ex.PW10/A addressed to CBI dated 03.02.2012.
4.14. PW14 Mr. H. Kawallingthang was posted as Under Secretary in Ministry of Home Affairs, FCRA, Jaisalmer House, Delhi on the date of incident. He deposed that someone got prepared a gate pass in his name mentioning that the said person wanted to meet him, whereas he did not know that person and he had not called any such person and he had not permitted any such person to meet him. After seeing the duplicate pass Ex.PW3/A the witness replied that no such person to whom that pass was issued either met him or was allowed by him to get the pass prepared and he never met any such person. The witness also deposed that at the relevant time the procedure of preparation of pass was that if someone wanted to meet some officer posted at Jaisalmer House, that person can get prepared a pass from the reception and the person posted at reception did not even use to ask the CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 11 of 33 12 officer who was proposed to be visited and on the date of incident nobody asked him about the pass being prepared by the accused.
4.15. PW19 Ajay Kumar the Nodal Officer from the mobile service operator proved Customer Application Form of the mobile used by the accused on the date of incident bearing no. 9963983879 as Ex.PW19/B, in the name of Hemlata; the call details of the said mobile for the period 01.02.2012 to 17.02.2012 as Ex.PW19/D & 19/H and; Certificate U/s 65B of Evidence Act as Ex.PW19/F. The witness deposed that the document Ex.PW19/H is the call detail records of mobile of accused for Delhi circle for the said period and the Cell ID tower location chart is proved as Ex.PW19/I. 4.16. PW18 ACP Kailash Chander was the initial investigating officer who deposed that on receipt of complaint Ex.PW1/A along with Ex.PW5/A & B, He got the FIR registered vide his endorsement Ex.PW18/B, after the Additional CP made his endorsement Ex.PW18/A. After registration of FIR Ex.PW18/C the Customer Application Form and call details of the mobile phone of the accused were obtained. ON 23.02.2012 complainant produced photocopies of note sheet, earlier complaints etc. which were seized vide memo Ex.PW5/D. During investigation this witness collected other documents including duty charge of CISF staff etc vide seizure memo Ex.PW8/A; duplicate pass Ex.PW3/A vide seizure memo Ex.PW3/B. The witness also deposed that several notices were issued to the accused to join the investigation but the accused did not turn up till the time investigation remained with this witness. The witness also proved DD entries regarding departure and arrival and registration of FIR on 06.02.2012 as Ex.PW18/D- 1 to D3.
4.17. PW15 Pankaj Sharma was the further investigating officer during whose tenure, the accused secured anticipatory bail on 06.01.2015 and then joined investigation on 07.01.2015 and on that day he was formally arrested and CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 12 of 33 13 released on bail and also his specimen handwriting and signatures were collected vide Ex.PW15/A. The witness also deposed that on 07.01.2015 the complainant came to ACB and identified the accused. During cross examination, he claimed that complainant came to ACB on his own and that no permission was taken from Court before obtaining specimen handwriting and signatures of the accused.
4.18. PW16 Inspector Khem Chand Kaushik further investigated the matter and during his tenure the specimen writing and signatures of accused were sent to FSL for comparison with the questioned documents on 16.03.2017 through ASI Sanjay and then FSL result was collected through Ct. Bijender on 12.05.2017.
4.19. PW17 Inspector Sukhdev Meena also further investigated the matter and during his tenure statement of sister of accused namely Smt. Hemlata was obtained through SI Bhoop Singh on 15.09.2018. The witness also deposed that photocopy of relevant documents were also obtained from MHA pertaining to the case as MHA informed that the original note sheets pertaining to the case were already with CBI as CBI was investigating connecting matter and thereafter chargesheet was filed.
5. On completion of prosecution's evidence, all the incriminating evidence was put to the accused in his examination U/s 313 Cr.P.C.
5.1. In his statement, the accused admitted that the complainant was working as Joint Secretary on 02.02.2012; that on that day accused was using mobile no. 9963983879 in the name of his sister; on that day he went and met private secretary of the complainant namely Mr. Raghu (PW7) and gave a written request signed by him seeking meeting with the complainant. The accused admitted that the said letter Ex.PW5/A was written by him and signed by him and the fact that he also met the complainant PW5. Accused also admitted that the call detail records of CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 13 of 33 14 his mobile number also revealed its location of Delhi. The accused also did not dispute the earlier complaint of Mr. Warren Fagg; his own complaint; letter dated 03.02.2012 sent by MHA to CBI; Vigilance Cell / MHA Report dated 03.02.2012; the duty chart of the staff and duplicate print out of visitor's pass no. 1202021076 in his name Ex.PW3/A. The accused also did not dispute that his specimen handwriting and signature were obtained during investigation of this case as well as the customer application form and call detail records of the mobile phone being used by him.
5.2. However, the accused denied having offered bribe to the complainant and claimed that it is a false case against him. The accused claimed that at the relevant time he was employee of COM Properties Trust, which is an NGO based in Warangal and its parent organisation is based in Australia with Mr. Warren Fagg as CEO of the parent organisation. Prior to it, the parent organisation operated in India through two other NGOs namely Christian Outreach Ministry and Christian Outreach Centre based in Kakinada, Andhra Pradesh and headed by Mr. M. S. Williams, who misappropriated the money transferred by the organisation regarding which Mr. Warren Fagg made a complaint to MHA and in that connection he along with Mr. Warren Fagg went to the office of MHA at Jaisalmer House, New Delhi on one occasion. Subsequently, the accused visited Jaisalmer House on various occasions but claimed that he went only to find out the status of complaint given by Mr. Warren Fagg. However, no information was being divulged by the MHA and even RTI applications did not yield any result. Thereafter, he came to know that the complainant was the appellate authority / senior officer in MHA regarding right to Information Act applications which were not being replied and thus he went and met complainant on that day. When he requested the complainant to divulge status of complaint and CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 14 of 33 15 the fact that his RTI application was not being replied to, the complainant got agitated; started shouting at him and; hearing the commotion staff of complainant entered his room. Thereafter, complainant asked him to leave his room and, several years after the said incident he came to know that complainant has given a complaint against him. The accused stated that he had no cause or occasion to offer bribe to the complainant or to any other person as he merely inquired as to the status of complaint on behalf of his employers and he had no personal interest in it.
6. The accused opted to lead evidence in his defence and, in support of his case, the accused examined one witness as DW1 Ms. A. Radha Rani from Ministry of Home Affairs, (FCRA), Foreigners Division.
6.1. As DW1 Ms. A. Radha Rani deposed that the accused had filed an RTI application dated 10.01.2012 on a letter head of Christian Outreach Ministries Properties Trust, Ex.DW1/B. However, the said application was not accompanied with requisite fee of Rs. 10/- and also it was addressed to Joint Secretary (Foreigners) who was not the designated CPIO, therefore, the application was not considered as an RTI application and was not replied to.
7. Since the accused admitted that he went and met the complainant on 02.12.2012 and he also admitted the written request submitted by him Ex.PW5/A, the whole dispute in the present case boils down to the only question whether the accused offered the complainant bribe or not, when he met the complainant in his office.
8. Ld. Prosecutor for the State argued that the case of prosecution stands proved beyond reasonable doubt and that the accused had motive to offer bribe to the complainant in order to get the earlier official matter referred to CBI and it is established that the accused met the complainant on the date of CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 15 of 33 16 incident and offered bribe. It is argued that the act of accused was complete and the offence was complete as soon as bribe was offered to the complainant by the accused and therefore case of prosecution stands proved.
9. On the other hand, the arguments advanced by the Ld. Counsel for the accused can be broadly placed under two categories. First, as per Counsel for accused the entire case of the prosecution is unbelievable as the complainant himself is unbelievable and there are contradictions in the versions of prosecution witnesses. Secondly, assuming the allegations made by the complainant were true, still it does not attract necessary ingredients of Sec. 12 of POC Act.
10. Elaborating the first limb of argument, it is argued that the accused was admittedly not apprehended at the spot; the alleged currency notes offered by the accused to the complainant have not been recovered; material witnesses viz., the other official witnesses besides the PA and PPS of the complainant have not been examined; there are contradictions in the testimony of the complainant and PW4 & 7 as to material aspects including whether the accused fled from the office of the complainant before arrival of the staff or after arrival of the staff etc., all of which makes the complainant unbelievable. It is argued that the complainant did not stick to the original case and while deposing as PW5 deposed that no offer was expressly made by the accused and only the currency notes were shown, whereas in Ex.PW5/B it is mentioned that the accused offered bribe, therefore also the complainant is unbelievable. It is argued that admittedly frisking used to be conducted while entering the premises and the gates of the premises were properly manned and guarded, therefore, neither was it possible for accused to carry cash inside the office nor was it possible that he could have escaped from the office in the manner claimed by the complainant. It is claimed that accused simply went to the office of the CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 16 of 33 17 complainant to find out as to why his RTIs were not being responded to, and out of vengeance he was implicated in this case. It is also argued that as per Ex.PW5/A the accused wanted to meet the complainant to hand over a letter issued by the CEO but admittedly no such letter was given, as admitted by PW5, therefore the case of prosecution is unbelievable. It is argued that the complainant is an unreliable witness and, in this regard, accused places reliance upon the case of A. Kanagrajan Vs. State 2014 SCC Online Madras 11323. It is argued that once the testimony of complainant is not entirely reliable, there was some corroboration required, which is lacking in this case.
10.1. So far as argument of accused, that there are material contradictions in the testimony of complainant PW5 and his other two staff members PW4 & PW7, is concerned, the same is without any force. The contradictions in the testimonies of these three witnesses, as to whether the accused left the room of the complainant prior to the staff entering the room of the complainant or after it; whether the complainant asked the accused to be called back after the accused left the room and; some minor contradictions as to the year of incident, are all minor contradictions and do not affect the merits of the case. It may be noted here that the incident in question occurred on 02.02.2012, whereas these three witnesses were examined in the Court in October 2019 i.e., after more than seven years, as the chargesheet itself was filed in May 2019. On account of lapse of several years, these minor contradictions were bound to occur.
10.2. The claim of accused that the complainant did not support the case of prosecution as to the bribe being offered, is factually incorrect. In this regard, the first and immediate contemporaneous document is Ex.PW5/B in which the complainant immediately after the incident noted in his own handwriting that the accused came to his office at 3.10 PM on that day and CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 17 of 33 18 "offered Rs. 2 Lakh and showed the currency notes in his bag". The recording of this fact by the complainant on the request letter given by the accused seeking permission to meet the complainant on that very day is of vital importance. The complainant as PW5 supported this version and it cannot be claimed by the accused that the complainant at any place denied that he was offered the bribe amount. The complainant rather specifically deposed that when the accused opened the bag and currency notes were visible, the complainant got shocked and asked the accused as to what was it? Upon which the accused specifically replied and said Rs. 2 Lakh. Immediately, thereafter the complainant called his personal staff and even called assistance from CISF personnel. In the meanwhile, the accused fled. The complainant even identified the accused in the Court. Thus, it does not lie in the mouth of accused to claim that no offer was made by the accused.
10.3. In the cross examination of this witness by the accused, the complainant deposed that when the accused came to his office, he said that the case may be referred to CBI and then accused opened the bag and before the bag was opened it was kept on the floor of the office. Merely because the complainant could not recollect as to whether the bag was a briefcase, a cloth bag or a leather bag and, what were the number of bundles or denomination of notes or colour of notes, the testamentary value of the complainant does not loose significance in any manner. It must be noted that when an honest officer suddenly comes across such an eventuality, officer would be shocked, as was the complainant who claimed that he was shocked to see what transpired before him, and therefore reaction of such an officer in any particular manner cannot be stressed. If in such a situation the complainant did not recollect or saw the denomination, colour of notes or number of bundles or the description of bag, it is immaterial.
CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 18 of 33 1910.4. Similarly, the deposition of PW5 that his PPS and PA were not in the room when the accused left and he raised hue and cry after the accused left, whereas his other staff claimed that the accused was asked to leave after they reached inside the room of the complainant, is immaterial.
10.5. Similarly, failure of the complainant to seize the bag cannot be viewed against him as no honest person would even like to touch any such bag while under shock of being offered bribe.
10.6. The argument of the accused that besides the PA and PPS of the complainant other officials have not been examined to lend credence to the version of complainant, is fallacious. It is the quality of evidence and not quantity which matters. If found trustworthy, the testimony of the complainant alone would be sufficient. Besides the complainant, the prosecution has examined PA and PPS also. There was no requirement to examine all the staff members of the complainant as it would not have helped the case of accused or the prosecution. One cannot lose sight of the fact that the offer of bribe to the complainant by the accused was made when the complainant was alone in his room. It's an admitted case of the accused that he met the complainant in his office when the complainant was alone. It is but obvious that no offender would like to make such an offer in full public view and an offender offering bribe would like it to be done when there is no one else with the person who is sought to be offered bribe.
10.7. Thus, examination of PW4 & PW7 is in the nature of corroborating the facts before and after the alleged incident, which both of them indeed corroborated. Both these witnesses categorically deposed that the accused came to the office of complainant and wanted to see the complainant. PW4 specifically deposed that on the date of incident one person by the name of J. P. Rajkumar came to see the complainant at about 3 PM by giving a written request and then went inside the room of the complainant at 3.10 PM CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 19 of 33 20 and after few minutes the complainant called him and PW7 inside his room and then asked J. P. Rajkumar to repeat what he had earlier said to the complainant but J. P. Rajkumar did not say anything and then J. P. Rajkumar was asked to leave the room by the complainant. This witness did not depose anything about carrying briefcase by the accused inside the room of the complainant. But then even the accused did not question the witness about no such briefcase being in possession of accused at that time. Similarly, PW7 the PPS of the complainant deposed about visit of accused inside room of complainant on the request of accused and then subsequently they being called by the complainant inside their room and the complainant asking the accused to repeat what he had earlier said but the accused did not repeat it.
10.8. The contention of accused that since admittedly the entry and exit to the premises was manned and guarded and also there used to be frisking of visitors and their bags, therefore, accused could not have carried currency notes inside the bag, is fallacious. It is fallacious for the reason that in such government departments and buildings frisking is done to prevent a person from taking inside any arm, ammunition or explosives or contraband etc. Currency notes, unless it is huge, is not to be questioned by the guard posted at the gates. It is nobody's case that even the bag of accused was got opened and checked. Assuming that it was opened and checked at the gate, it might well be possible that at that time currency notes were kept inside pocket of briefcase or under some other article or file, or the guard did not deem it appropriate to ask about the currency.
10.9. The fact that the accused left the premises without depositing the depositor's pass is also inconsequential as the security guard has deposed that on many occasions visitors did not use to deposit the pass while leaving the premises. It must be noted that several public persons or officials enter and exit the premises during working hours and it may not have been possible for the CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 20 of 33 21 security guards to question every person going out of the premises including the officials as to whether they were visitors or officials and whether they have deposited the pass or not.
10.10. Thus, no importance can be given to the argument that the accused was frisked at the gate and yet he carried the amount or that he escaped without being caught.
10.11. Since the accused escaped the premises with the bag, his non-arrest at the spot and no recovery of currency notes becomes immaterial.
10.12. 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 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.
10.13. In the present case there is nothing on record to claim that the complainant PW5 is in any manner unreliable or partly reliable. Complainant had no reason to falsely implicate the accused. The claim of the accused that the complainant got furious when the accused questioned the complainant as to why his RTIs were not being replied, and in vindictiveness implicated the accused, is absolutely uninspiring. It was not the duty of the complainant to reply to the RTIs. Had there been any argument between the accused and the complainant, the staff of complainant including PW4 & 7 would also have heard it. No question was asked to PW4 & 7 about any such verbal arguments between the accused and the complainant. Even otherwise it is highly unlikely that the complainant being such a senior rank officer would CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 21 of 33 22 implicate the accused simply because the accused questioned the complainant as to non-sending of his complaint to CBI and non-reply of RTI applications.
10.14. Accused claims that since he had gone to find out the status of earlier complaints and non-reply of RTI applications, therefore, he had no occasion to offer bribe. The accused also claimed that when he questioned the complainant as to the status of earlier complaints and that certain officials in the ministry were biased against his organisation, the complainant started shouting and on hearing the shouts his staff entered into the office of complainant.
10.15. But then no such suggestion of the complainant shouting on the accused has been put by the accused to the complainant during his cross examination. Nor there is any such suggestion to PW4 & PW7 that they entered the office of complainant on hearing shouts of complainant. Rather PW4 & PW7 deposed that they were called by the complainant inside their office and in their presence the complainant asked the accused to repeat what the accused had earlier said, to which the accused did not reply anything. Had the complainant been shouting on the accused, as claimed by the accused, there was no occasion for those two witnesses PW4 & 7 to depose that complainant asked the accused to repeat his earlier utterances or gestures and the accused keeping quiet.
10.16. The exact words used by the complainant PW5 while deposing in examination in chief as to what exactly happened when the accused came and met him, are as follows: -
"In the said letter the writer wanted to meet me in my office. I agreed to see him and directed my private Secretary to him in my office. Thereafter the said person came into my office. He referred to his earlier request of CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 22 of 33 23 sending his complaint to CBI. Suddenly he opened his bag which showed some currency notes. I was shocked, I asked him what is it. Then he said Rs. 2 Lakh. Then immediately I buzzed the telephone calling my personal staff, rang the calling bell and asked the staff to catch him. I also wanted my Private Secretary immediately to contact Mr. Dushyant Singh, chief Secretary officer and asked for CISF support. Meanwhile, the fellow ran away along with the bag and the cash. I made marginal comments in the letter given to me by the visitor."
10.17. During cross examination by the accused, PW5 replied in the following words;
10.18. "When the accused met me on that day, the facts of the case, were broadly in my knowledge and I did not call for the file. On that day, he simply said "Sir Please refer the case to CBI" and then he opened the bag. I cannot tell the size of the bag today. I also do not remember whether it was a briefcase, cloth bag or any leather bag. When he came and met me, he had kept the bag on the floor before it was opened. When the accused had shown me the currency notes, they were inside bag. I do not remember whether there was also any document in the bag apart from the currency notes. I do not remember the number of bundles, colour of notes or denomination of currency notes."
10.19. Thus, the first limb of argument as to the complainant being unreliable witness and so-called contradictions etc., are all rejected.
11. Towards the second limb of arguments, it is argued that assuming the accused opened the briefcase in front of the complainant, it was possible that he opened the bag simply to give the letter and it cannot be presumed that he offered bribe to the complainant as no express offer was given by the accused to the complainant nor he kept any such amount on the table, or extended it towards the complainant. It is claimed that assuming that the CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 23 of 33 24 accused opened briefcase containing cash in front of the complainant or attempted to offer it, still Sec. 12 of POC Act would not be applicable. In this regard, reliance is placed by the accused upon the cases of N. A. Abdul Rahiman Vs. State of Kerala 2015 SCC Online Kerala 14979 and, the case of Ganesh Sharma Vs. State of U. P. 2019 SCC Online, Allahabad 4284.
11.1. As mentioned above, the complainant is the sole witness of this offer.
Immediately after the incident the complainant called his PA and PPS inside his room and asked the accused to repeat what he had stated. The complainant immediately after the incident endorsed a marginal note Ex.PW5/B on the letter Ex.PW5/A given by the accused seeking audience from the complainant. In this note Ex.PW5/B, it is specifically mentioned by the complainant that the accused offered Rs. 2 Lakh to him and showed the currency notes in his bag. In his testimony as PW5 the complainant specifically deposed that while making a request for sending his complaint to CBI the accused suddenly opened his bag wherein currency notes were visible upon which the complainant got shocked and asked the accused as to what was it. To this, the accused replied "Rs. 2 Lakh".
11.2. The quoting of this specific amount and revealing the amount to the complainant by the accused after opening of the briefcase, tantamount to offering of bribe within the meaning of Sec. 12 of POC Act. His offer of bribe to the complainant may not be in as many express words, but the very conduct of opening of bag revealing the notes and quoting the amount to the complainant are enough to bring it within the meaning of offer of bribe. The accused cannot claim that he might have opened the briefcase only to take out the letter which was to be delivered to the complainant, because admittedly he did actually not deliver any such letter and even if he were to deliver any such letter, there was no reason for him to have shown the currency notes to the complainant and particularly then quoting the amount CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 24 of 33 25 also. It seems that it was a case where the accused tested waters by revealing the currency notes to the complainant and on noticing the adverse reaction of the complainant, he did not make any further express offer except telling the amount and he did not expressly extend the currency amount towards the complainant or kept the same on his table. Thus, accused cannot claim benefit by saying that he did not keep the amount on the table or in the hand of complainant or for not extending the notes towards the complainant. The act of accused in opening the briefcase, revealing the currency notes and also quoting the amount to the complainant sufficiently brings it within the expression of offer of bribe.
11.3. The precedent cited by the complainant in the case of N. A. Abdul Rahiman (Supra,) is not applicable to the facts of the present case. In that case, the two accused went to the office of DSP and offered Rs. 5000/- bribe kept inside a cover and then keeping the cover on the office table of DSP and the DSP called his sub ordinate without even opening to see what was inside the cover and having no reason to believe that the cover contained currency notes or money or illegal gratification. In those facts, it was held that Sec. 12 of POC Act, 1988 is not applicable. Hon'ble Kerala High Court noting the definition of abetment U/s 107 of IPC, as word 'abetment' has not been defined in POC Act 1988, observed that definition of abetment in Sec. 107 IPC shows that to constitute abetment there must be some nexus between the acts of the alleged abettor and the act of offence abetted. In that case, Hon'ble High Court found that a mere offer of bribe was given by the accused of that case and therefore it would not constitute the offence of abetment U/s 12 of POC Act.
11.4. Similarly, the case of Ganesh Sharma (Supra) is distinguishable on facts.
In that case, the accused Advocate went inside the room of a Judicial Magistrate and placed one envelope beneath mattress and requested the CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 25 of 33 26 judicial magistrate to grant bail to the accused. The Judicial Magistrate told the accused Advocate to take the envelope and thereafter the accused picked up the envelope and left the chamber. In that case also, the complainant did not see the contents of the envelope.
12. On the other hand, Ld. Prosecutor for the State relies upon the judgment of Patna High Court in the case of Gopal Krishan Saran & Ors. Vs. State of Bihar 2000 Crl. L .J. 3609, where also accused raised a question that since bribery was not completed in the facts of that case, the question of abetment was redundant. In para 14 of the judgment, Hon'ble Patna High Court held that from the wording of Sec. 12 of POC Act, which specifically differs from whatsoever was there U/s 161 IPC, which has been deleted now, the abetment under POC Act now is punishable even if the offence is not completed in consequence of such abetment. In that case, facts were that a bag containing Rs. 15,000/- was kept on the table of Deputy commissioner by the offenders and the Deputy Commissioner prohibited the bag to be kept on the table and after a while on suspicion asked the bag to be opened by his colleague and it was found to be containing bribe amount after which the Deputy Commissioner raised alarm and then the case was registered.
12.1. Ld. Prosecutor also relies upon the case of Sharad Kumar Vs. State of M. P., which is a decision given by Division Bench of Hon'ble High Court on 01.08.2008 in Crl. Appeal No. 799/1996. In that case a reference was sent to the Hon'ble Division Bench and the question was whether Sec. 7 & 12 of POC Act were substantive offences and if yes, being totally independent, the cases falling under it were required to be decided without taking aid of illustration of (a) of Sec. 116 of IPC. In that case, it was also to be considered by the Hon'ble Division Bench whether the decision in another case titled as Rajaram Vs. State of M.P. (Supra) had been correctly decided by the Ld. Single Judge taking the aid of illustration (a) of Sec. 116 of IPC.
CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 26 of 33 2712.2. Hon'ble Division Bench observed that Sec. 12 of POC Act, 1988 is merely a restatement of Sec. 165-A IPC providing punishment of abetment of offences defined in Sec. 7 & 11 of POC Act, which corresponds to Sec. 161 & 165 of IPC. Upon introduction of Sec. 7, 11 & 12 of POC Act, Sec. 161, 165 & 165A of IPC were omitted. Hon'ble Division Bench on considering the reference observed as follows in para 9, 13, 14 & 16.
"9. It is, therefore, apparent that the legislature did not intend to make the illustration a mere surplusage or otiose. Further, the illustration is not, in any way, repugnant to Section 12 of the Act. It only serves as an example of abetment of an offence punishable under Section 7 of the Act. There are many other ways of instigating a public servant to commit this offence besides by means of a direct offer of bribe (See. Amiruddin Salebhoy Tyabjee, (1922) 24 Bom. L. R. 534; Vanu Ramchandriah, (1927) 53 M. L. J. 723; Puran Singh, (1928) 29 Cr.L.J. 601).
10. .............................................................
11. .............................................................
12. ..............................................................
13. Thus, viewed from any angle, implied repeal of the illustration as suggested by the learned Senior Counsel cannot be inferred.
14. Adverting to the decision in Rajaram's case (above), it may be seen that the learned Judge has not taken any view inconsistent with the ratio propounded in Bhajahari Mondal's case (supra). He has nowhere laid down that any legal or mandatory presumption can be drawn from the facts mentioned in the illustration. What the Learned Single Judge meant to say was that in absence of any definition of abetment in the Special Act and any illustration to exemplify the same, reference may be made to the provisions of general Act viz. The I. P. C. including the illustration so as to understand as to what the word 'abetment' means and includes? In other words, Learned Single Judge has simply referred to the illustration to arrive at the conclusion that on the fact as found proved from the evidence the offence of abetment was made out.
15. .............................................................
16. To sum up, out answers are: -CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 27 of 33 28
(i) that the cases falling under Sections 7 and 12 of the Act may be decided by taking aid of illustration (a) to Section 116 of the Code.
(ii) The case of Rajaram (Supra) was correctly decided."
12.3. Thus, Hon'ble Division Bench of M. P. High Court held that case of Rajaram (supra) was correctly decided and that cases falling U/s 12 may be decided by taking aid of illustration (a) of Sec. 116 of IPC.
13. In the present case, had it been a case where the accused had not opened his briefcase to reveal currency notes and had he not quoted the exact amount of Rs. 2 Lakh, things could have been different. But in the present case the moment the accused opened the briefcase revealing the currency notes and also quoted the amount, it was sufficient to bring within the purview of the expression of offer of bribe.
14. In the case of Rama Kant Sharma Vs. State 2014 SCC Online Delhi 341, the facts were that the accused went to the office of complainant and gave an envelope containing Rs. 2000/- as a bribe / illegal gratification in connection with clearing of a pending bill regarding supply of certain articles in the office which were found to be defective / substandard. The complainant handed over the envelope to his superior along with the custody of the accused and then police was informed, case was registered and the accused was arrested. In that case, Hon'ble Delhi High Court made following observations in para no. 9 & 10. The observation of Delhi High Court in para no. 10 of that judgment is particularly important. Those two paras read as follows:-
"9. Section 12 of the PC Act reads as under:
"12. Punishment for abetment of offences defined in Sections 7 and11.--
Whoever abets any offence punishable under Section 7 or Section 11 whether or not that offence is committed in consequence of that CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 28 of 33 29 abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine."
10. In effect, for the offence under Section 12 of the PC to be made out, it has to be shown that the accused was involved in the abetment of a crime under Sections 7 and 11 of the PC Act. It is not necessary that there should be an actual payment of a bribe as long as it is proved that there was an attempt made to bribe the public servant."
14.1. Thus, Hon'ble Delhi High Court specifically observed that for a case U/s 12 of POC Act, 1988, it is not necessary that there should be an actual payment of bribe as long as it is proved that there was an attempt made to bribe the public servant. It may be mentioned here that though in Rama Kant Sharma's case, the accused was acquitted by the High Court, but that acquittal was not on the ground that Sec. 12 was not applicable. Rather it was on the ground that in evidence it was stated by the complainant that he did not see money in the envelope given by the accused and he saw money in the police station only after he subsequently reached there and also for the reason that the chain of the envelope reaching police was not complete and the superior officer, who was allegedly handed over the envelope, was not examined. But Hon'ble Delhi High Court categorically observed that for attracting Sec. 12 it was enough that an attempt was made to bribe the public servant and actual payment was not necessary.
15. Similarly, Hon'ble Supreme Court in the case of State Vs. Parmeshwaran Subramani (2009) 9 SCC 729 made following observations in para no. 17 to 19.
"17. Section 12 of the Act, in clear and categorical terms, speaks that whoever abets any offence punishable under Section 7 or Section 11 whether or not that offence is committed in consequence of that CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 29 of 33 30 abetment, shall be punishable with imprisonment for a term as provided thereunder. It is thus clear that abetment of any offence punishable under Section 7 or Section 11 is itself a distinct offence. The offence punishable under Section 7 or Section 11 whether actually committed by a public servant is of no consequence. It is precisely for the said reason Section 19 of the Act specifically omits Section 12 from its purview. The courts by process of interpretation cannot read Section 12 into Section 19 as it may amount to rewriting the very Section 19 itself.
18. It is settled law that where there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the court to undertake any exercise to read something into the provisions which the legislature in its wisdom consciously omitted. Such an exercise if undertaken by the courts may amount to amending or altering the statutory provisions.
19. In a plethora of cases, it has been stated that where the language is clear, the intention of the legislature is to be gathered from the language used. It is not the duty of the court either to enlarge the scope of legislation or the intention of the legislature, when the language of the provision is plain. The court cannot rewrite the legislation for the reason that it had no power to legislate. The court cannot add words to a statute or read words into it which are not there. The court cannot, on an assumption that there is a defect or an omission in the words used by the legislature, correct or make up assumed deficiency, when the words are clear and unambiguous. Courts have to decide what the law is and not what it should be. The courts adopt a construction which will carry out the obvious intention of the legislature but cannot set at naught legislative judgment because CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 30 of 33 31 such course would be subversive of constitutional harmony (see Union of India v. Deoki Nandan Aggarwal [1992 Supp (1) SCC 323 : 1992 SCC (L&S) 248 : (1992) 19 ATC 219] )."
16. In the case of Rajaram Vs. State of M. P., 2000 SCC Online MP page 243, in para no. 7, following observation was made by Hon'ble Madhya Pradesh High Court in para no. 7 :-
"7. Section 116 Penal Code, 1860 relates to abetment of offence punishable with imprisonment. Section 116 of Code is reproduced below:--
"116.Abetment of offence punishable with imprisonment -- If offence be not committed. -- Whoever abets an offence punishable with imprisonment shall, if that offence be not committed in consequence of the abetment and no express provision is made by this Code for the punishment of such abetment be punished with imprisonment of any description provided for that offence for a term which may extend to one-fourth part of the longest term provided for that offence; or with such fine as is provided for that offence, or with both;
If abettor or person abetted be a public servant whose duty it is to prevent offence:
and if the abettor or the person abetted is a public servant, whose duty it is to prevent the commission of such offence, the abettor shall be punished with imprisonment of any description provided for that offence for a term which may extend to one-half of the longest term provided for that offence, or with such fine as is provided for the offence, or with both.".
Illustration (a) of the section is reproduced below:
CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 31 of 33 32"(a) A offers a bribe to B, a public servant as a reward for showing A some favour in the exercise of B's official functions. B refuse to accept the bribe. A is punishable under this section".
Thus, it is clear that bribe is offered to a public servant as a reward for showing some favour in discharge of his official function. On refusal of public servant, to accept bribe, the person offering bribe is punishable under this section. The language of section 165-A of Code and that of section 12 of the Act are identical in nature. Since the definition of abetment is not given in the Act, therefore, considering the provisions of illustration (a) of section 116 of the Code, it is established that person offering bribe which is refused by public servant, is also guilty of abetting offence and is liable to be punished under section 12 of the Act. Thus, in the facts and circumstances of the case, prosecution has established that the appellant has offered bribe to a public servant therefore, there is no force in the arguments of appellant that conviction under section 12 of the Act is not maintainable."
16.1. In the case of Rajaram also, it was specifically observed that a person offering bribe shall be liable U/s 12 even if the bribe has not been accepted by the public servant. This decision in the case of Raja Ram's case was upheld by Division Bench of MP Hon'ble High Court in Sharad Kumar's case (Supra).
17. Hon'ble Supreme Court in the case of Narinder Singh Vs. State of H. P. (2014) 13 SCC 30, the facts were that the accused attempted to give bribe of Rs. 10,000/- to the complainant an Additional District Magistrate by putting currency notes in the drawer of the table of the complainant which were picked up by the complainant raising objection to it, upon which the accused replied that it was a 'right' (hak) of the complainant and then the complainant informed police. The trial Court acquitted the accused but, in CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 32 of 33 33 an appeal, preferred by the State, High Court convicted the accused for offence U/s 12 of the POC Act. When appeal was preferred by the accused before Hon'ble Supreme Court, Hon'ble Supreme Court agreed with the view taken by the High Court and dismissed the appeal. Thereby meaning that Hon'ble Supreme Court confirmed the decision of High Court in convicting the accused U/s 12 of POC Act under those circumstances.
18. Thus, in the present case before this court, the act of accused having offered Rs 2 Lakhs to the complainant as bribe are proved beyond reasonable doubt and, in the given facts and circumstances, the act of accused indeed fails within the definition of sec 12 of POC Act 1988.
19. The accused is thus found guilty of offering bribe to the complainant and is convicted under section 12 of POC Act 1988.
Announced in the open Court
on 28.09.2021 Digitally
DIG signed by DIG
VINAY SINGH
VINAY Date:
2021.09.28
SINGH 12:26:15
+0530
(Dig Vinay Singh)
Special Judge (PC Act) ACB-02
Rouse Avenue Courts, New Delhi
28.09.2021 (r)
CNR No. DLCT110015572019; CC No. 255/2019; State Vs. Jannu Paul Rajkumar; FIR No. 04/2012; Judgment Dated 28.09.2021 Page 33 of 33