Delhi District Court
Cbi vs 1 Lalit Gupta S/O R C Gupta R/O 63-C, on 27 October, 2010
1
IN THE COURT OF SH. V K MAHESHWARI :SPECIAL
JUDGE; TIS HAZARI DELHI
Corruption Case No.30/04
CBI Vs 1 Lalit Gupta s/o R C Gupta r/o 63-C,
DDA Colony, West Gorkha Park, Delhi
(Asstt. Sanitary Inspector) MCD
2 Sh. Brij Pal s/o Sh. Mogani Ram, r/o
Kotla Mayur Vihar, Phase-I, (Safari
Karamchari) MCD
R. C No. 38 (A)/01/CBI/ACB/ New Delhi.
Under Section U/s 120B r/w 7, and 13(2) r/w Section 13
(1) (d) of P C Act 1988
Date of Institution of 1.2.2002
case
Arguments concluded 13.10.2010
on
Date of Order 23.10.2010
Judgment
FACTS OF THE CASE
1 According to prosecution this case was registered on the
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basis of a written complaint of Shri Jai Pal S/o Shri Sumera Anand
alleging that Shri Lalit Gupta, Asstt. Sanitary Inspector, Ward No.68,
Trilokpuri, demanded a bribe of Rs. 5,000/- from complainant him
for including the name of his wife Smt. Sunita in the list of
regularization of Safai Karamchari, Delhi. Sh. Jai Pal complainant
was not willing to pay the bribe, therefore, he lodged a complaint
against Lalit Gupta with SP/CBI/ACB?DLI for taking action.
2 A regular case vide RC No. DAI-2001-A-0038 was
registered and investigation was entrusted to Sh. Ajay Kumar
Inspector who after securing the presence of two independent
witnesses namely Sh. Yashpal Sharma, CIT & Praveen Kumar Gupta,
CIT both from New Delhi Railway Station, proceeded ahead for laying
a trap. Amount of Rs.3,000/- produced by Sh. Jai Pal was returned to
him by CBI after noting the numbers and treating them with
phenolphthalein powder with the direction to hand over the same to
Lalit Gupta only on his specific demand and not otherwise or to any
other person on his specific direction . The treated GC notes were kept
in the right hand side pant pocket of complainant. Other pre-trap
formalities were also conducted and recorded in Handing Over Memo
dt. 21.5.2001 which was signed by all including two independent
witnesses. A mike cum transmetre recorder and Digital SVR-240
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Samsung recorder were arranged and given to complainant Jai Pal and
he was explained its operation.
3 The members of trap party proceeded to the office of
accused at Ward No. 68 MCD, Trilokpuri and reached there
about1215 hrs. CBI team took suitable position and the complainant
and shadow witness Sh. Yashpal Sharma proceeded in the office of
Lalit Gupta. Sh. Lalit Gupta asked complainant to come back after 10
minutes. Both the complainant and shadow witness kept waiting near
the gate. At around 1345 hrs. Sh. Lalit Gupta ASI and Sh. Brij Pal
came out of the office of Sh. Lalit Gupta and went towards left side of
the office. On the direction of Sh. Lalit Gupta, bribe money was
handed over to Sh. Brij Pal Sweeper who counted the same and kept in
his left side pant pocket. All the four returned to the office and Sh.
Brij Pal took out the bribe money from his pant pocket and handed
over the same to Sh. Lalit Gupta who accepted and kept the same in
his left side foot socks which was recovered by recovery witness Sh.
Praven Kumar Gupta on instruction of CBI team. The number of
recovered GC notes were tallied with those numbers mentioned in
Handing Over Memo and found to be same.
4 A solution of Sodium Carbonate was prepared on the
spot and hand washes of both the accused persons, pant pocket wash of
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Brij Pal, and left side foot socks of Lalit Gupta were taken on spot in
the separate solution which turned pink. The washes were transferred
into clean bottles and sealed with CBI seal. The bottles were signed by
both the independent witnesses. The other formalities were also
conducted and were duly incorporated in the recovery memo dt.
21.5.2001 in the presence of both the independent witnesses.
5 The pink washes in sealed bottles were sent to CFSL for
expert opinion. The expert has opined that except left hand wash of
Sh. Lalit Gupta, all washes contained the contents of phenolphthalein
powder and Sodium Carbonate. Digital tape record played on spot
which confirms the demand and conversation of accused Lalit Gupta.
Sample voice of accused Lalit was obtained during the investigation
and was sent to CFSL for comparison. Expert has given opinion vide
his report No. CFSL/2001/P--0552. Sh. Lalit Gupta was on official
duty on 21.5.2001 at MCD Ward No.68, Trilokpuri, Delhi and
finalishing the list of Safai Karamcharies.
CHARGE
6 Copies required U/S 207 Cr P C supplied to accused.
After hearing both the parties my Ld. Predecessor vide order dt.
6.9.2003 framed charge for the offence punishable U/s . 120 B r/w
Sec.7 & 13 (1) ( d) of the Prevention of Corruption Act, 1988 against
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both the accused. A charge for the substantive offence punishable U/s
. 7 & Sec.13 (1) ( d) r/w Sec. 13 (2) of P C Act, 1988 was also
framed against accused Lalit Gupta. Both the accused pleaded not
guilty to the charge and claimed trial, hence this trial.
PROSECUTION EVIDENCE
7 Prosecution, in order to prove its case, has produced
following witnesses:
8 PW1 Sh. Jai Pal has proved complaint Ex PW 1/A,
Handing Over Memo Ex PW 1/B, recovery memo Ex PW 1/C, paper
slips Ex PW 1/D to Ex PW 1/F, transcription Ex PW 1/X, whole
conversation recorded at page Ex PW 1/X-2, remaining pages of
transcription Ex PW 1/X-2 to Ex PW 1/X-4, his statement U/s 161 Cr
PC Ex PW 1/Y.
9 PW2 Ms. S P Sodhi, Addl. secretary has proved sanction
order for prosecution of accused Lalit Kumar ASI Ex PW 2/A and
sanction order for prosecution of accused Brij Pal, Safai Karamchari
Ex PW 2/B.
10 PW3 Sh. K S Chhabra, has proved his report Ex PW 3/A.
11 PW4 Mani Ram has proved attendance register Ex PW
4/A and entries 7, 19, 16, 17 9, and 20 Ex PW 4/B-1 to Ex PW 4/B-7.
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12 PW5 Sh. Parveen Kumar Gupta has proved arrest cum
personal search memos Ex PW 5/A & Ex PW 5/B, site plan Ex PW
5/C and recovery memo Ex PW 5/D and also other documents which
have already been proved by PW1.
13 PW6 Sh. Dharampal has proved the documents already
proved by PW1.
14 PW7 Sh. G C Rakheja has proved Specimen voice
recording memo Ex PW 7/A.
15 PW8 Sh. V P Manchanda has proved circular Ex PW 8/A,
production memo Ex PW 8/B and production cum seizure memo Ex
PW 8/C.
16 PW9 Smt. Sunita has deposed orally. She has not proved
any document.
17 PW10 Sh. Deepak Kumar Tanwar, Sr. Scientific Officer,
Grade II (Phys.) has proved forwarding letter Ex PW 10/A and report
Ex PW 10/B.
18 PW11 Sh. Ajay Kumar is the TLO. He has proved FIR
Ex PW 11/A and also the other documents already proved by other
witnesses.
19 PW12 Inspector A K Pandey is the IO of the case. He
has proved charge sheet Ex PW 12/A and other documents already
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proved by other witnesses.
DEFENCE OF ACCUSED AND DEFENCE EVIDENCE
20 Statement of both the accused U/s 313 Cr PC were
recorded wherein they have refuted all the evidence produced against
them by the prosecution. Accused Brij Pal has stated that he is
innocent. He has been falsely implicated in this case.
21 Accused Lalit Gupta has stated that no transaction or
negotiation of bribe took place with him. No voice of Parveen Kumar
Gupta was recorded on 21.5.2001 as it is a recording of Pawan Kumar
Gupta as on 21.5.2000. He was not present at ward No.68, Trilokpuri
on 21.5.2001 as he had already joined his services in ward No.77,
Krishna Nagar on 17.5.2001. No recovery ever effected from his
personal search. He has been falsely implicated in this case.
22 Accused in his defence has examined following witnesses:
23 DW-1 Sh. Dinesh Kumar has proved the entry No.143 of
Diary Dispatch Register vide which transfer order No.
143SS/C.S.Z/2001 dated 10.05.2001was dispatched, vide Ex DW1/A.
24 DW2 Sh Satish Kumar Sharma has proved the attendance
register of Supervising Register of 77, Krishna Nagar, MCD office,
Delhi pertaining to year 2001 vide Ex DW2/A.
25 DW3 Sh. L D Verma has proved Circular No. 125/OI-
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III/AO/SD/97 dated 11.07.1997 Ex DW 3/A; photocopy of dairy
Dispatch register Ex PW3/B and photocopy of relevant page of dairy
receipt register of Shahdara South Zone Ex PW3/C.
PROSECUTION ARGUMENT
26 Ld. Senior Prosecutor Sh. Brajesh Shukla, argued that
prosecution has proved its case that accused Lalit Gupta was working
as Assistant Sanitary Inspector in MCD Shahdra Zone in the month of
May 2001 while accused Brijpal was employed as sweeper in MCD
Shahdra Zone. Complainant Jaipal was working as 'Safai Karamchari'
in Trilokpuri MCD Shahdra Zone. His wife Smt. Sunita was also
working as a substitute Safai Karamchari in Trilokpuri MCD Shahdara
Zone. Accused Lalit Kumar had demanded Rs.5,000/- and obtained
Rs. 3000/- as illegal gratification on 21.05.01 from complainant Jaipal
in consideration of showing name of his wife in the list of Safai
Karamchari to be regularized. It is argued that complainant at the
instance of Lalit Gupta had handed over the bribe amount to accused
Brijpal who in conspiracny and connivance of accused Lalit Gupta
accepted the same knowingly that it was a bribe amount and later on
given it to accused Lalit Gupta. It is argued that this amount for Rs.
3000/- was concealed by accused Lalit Gupta in his left socks which
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was recovered from the left socks of accused Lalit Gupta.
27 It is argued by Ld Sr. Prosecutor that prosecution has
proved its case beyond reasonable doubts by producing complainant
Jaipal, his wife Sunita, recovery witness Praveen, TLO, Ajay Kumar. It
is argued that all these witnesses have fully supported the case of
prosecution. Prosecution has also produced all other relevant official
witnesses. It is argued that prosecution has proved its case beyond
reasonable doubts against both the accused, hence accused may be
convicted.
DEFENCE ARGUMENTS OF ACCUSED LALIT GUPTA
28 Ld. Defence Counsel for accused Lalit Gupta addressed
oral arguments and also filed written submissions running in 20 pages.
As the detailed written submission have been filed on behalf of
accused, which are on the judicial file, hence on account of brevity, the
same are not incorporated in this judgment.
29 Sum and substance of defence arguments are that accused
Lalit Gupta was transferred from Trilokpuri to Krishna Nagar on
16.05.01. Immediately thereafter he had joined Krishna Nagar Zone
on 17.05.01. On 21.05.01, he was not working in Trilokpuri Zone but
he was working in Krishna Nagar. Accused Lalit Gupta was neither
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competent to appoint any Safai Karamchari nor had prepared any such
list for regularizing the Safai Karamchari. No such list has been
recovered from him or produced on the judicial file. At the relevant
time on 21.05.01 he was at his house which is also proved from search
memo of his house Ex. PW11/DX. He was brought in the CBI office
from his house and falsely implicated in this case.
30 Complainant Jaipal was on duty from 6 AM to 2.30 PM
on 21.05.01 which is clear from his attendance record as he has been
marked present on all the four times, hence, he can never be present in
CBI office during this period. In these circumstances, accused Lalit
Gupta is entitled for plea of allibi.
31 Accused Lalit Gupta neither demanded nor accepted any
bribe money from complainant nor the same was recovered from him.
Specimen voice of Praveen Kumar was not recorded on 21.05.01
which is clear from the recorded conversation, wherein voice of one
Pawan Kumar has been recorded on 21.05.2000. Evidence of
prosecution is full of contradictions and untrustworthy. Accused is
innocent he has been falsely implicated in this case and he may be
acquitted.
32 Ld. Defence Counsel in support of his arguments has
placed reliance on the following authorities :-
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Banarasi Dass Vs. State of Haryana; 2010 IV AD (S.C.) 305, Subhash
Chand Chauhan Vs. CBI; DCLR 2005 (I) DELHI 573, G.V. Nanjudiah
Vs. State (Delhi Administration); Delhi reported judgments 1987 (13)
308, Purna & Another Vs. State of U.P.; (1984) 2 SCC 393.
DEFENCE ARGUMENTS OF ACCUSED BRIJPAL
33 It is argued by Ld. Defence Counsel on behalf of accused
Brijpal that he was employed as a sweeper in MCD. He has no
authority to recommend name of any safai karamchari for
regularization of his services. He has neither demanded the bribe
amount nor it was recovered from him. His name is also not
mentioned in the complaint. There is no evidence against him on the
judicial file. He is a poor fellow who was performing the duty of a
peon in the office on 21.05.01. He may be acquitted.
34 In this case shadow witness Yogesh Kumar, Inder Raj
and C K Jain have expired during the pendency of this case.
PUBLIC SERVANT AND SANCTION
35 U/s 7 of P C Act, 1988 prosecution has to prove that :
(i) The accused was a public servant or expected to be a public
servant at the time when the offence was committed.
(ii) The accused accepted or obtained or agreed to accept or
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attempted to obtain illegal gratification from some person.
(iii) For himself or for any other person.
(iv) Such gratification was not a remuneration to which the
accused was legally entitled.
(v) The accused accepted such gratification as a motive or
reward for,
(a) doing or forbearing to do an official act, or
(b) doing or forbearing to show favour or disfavour to
someone in the exercise of his official functions, or
( c) rendering or attempting to render any service or disservice
to some one with the Central or any State Government or
Parliament or the Legislature of any State, of with any local
authority, Corporation or Government company referred
to in Sec. 2 clause © or with any public servant, whether
named or otherwise.
36 It is undisputed fact that both the accused at the relevant
time were working in MCD Delhi, accused Lalit Kumar was working
as Assistant Sanitary Inspector and accused Brijpal was working as
Sweeper, thus they are public servants. Even this fact has not been
disputed on behalf of accused during the trial and at the time of
addressing final arguments by their Ld. counsels.
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37 PW2 Ms. SP Sondhi, has stated that in January 2002 she
was working as Dy. Commissioner Shahdara Zone, MDC. She was the
disciplinary authority for group C & D Category employees hence he
was competent to remove them from their services. She received
papers for granting sanction for the prosecution of accused Lalit
Kumar and Brijpal. She had granted sanction for the prosecution of
Lalit Kumar who was ASI vide her order Ex. PW 2/A and sanction for
the prosecution of accused Brijpal, Safai Karamchari vide her order
dated Ex. PW 2/B, under his signatures.
38 Accused Lalit Gupta has challenged the competency of
Ms. S.P. Sondhi the then Dy. Commissioner Shahdra Zone MCD for
according sanction of his prosecution in this case by moving various
applications in this Court and thereafter filing revision / criminal
miscellaneous main petitions in the Hon'ble High Court and has also
gone up to Supreme Court. Hon'ble Delhi High Court vide order dated
02.02.09 in CRL. REV. PW- 469/21008 & CRL. M. A 9952/2008
titled Lalit Gupta Vs. CBI with regard to the competency of PW2 for
according sanction of the prosecution of accused in this case has
observed as follows:-
" The contention advanced by learned counsel for the petitioner
is that appointing authority of the Petitioner was the Commissioner,
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Municipal Commissioner of Delhi (MCD) and that without the
sanction to prosecute being accorded by the Commissioner, the trial
itself against the Petitioner was bad in law.
It is seen from the impugned order that the Special Judge (CBI)
has referred to a statement made by Ms. S.P. Sondhi who appeared as
PW-2 on 7th February2005 in which she said that in January 2002 she
was working as Deputy Commissioner Shahdara South Zone, MCD.
Although she was not the appointing authority for Assistant Sanitary
Inspectors, "the powers of Commissioner had been deleted to the
Deputy Commissioner as disciplinary authority for Group C and D
employees and as such she was competent to remove such employees."
In the instant case, the sanction for prosecuting the Petitioner has
been accorded by the Deputy Commissioner. The requirement of
Section 19 (1) © of PC Act is that sanction should be accorded by
the authority empower to remove the employees in question.
It may be mentioned that even earlier the Petitioner had
raised a similar plea which was rejected by both the trial court and
this Court. The said order was also affirmed by the Supreme
Court by dismissal of the special leave petition.
In the considered view of this Court the requirement of the law
stands satisfied. There is no merit in this petition and it is dismissed as
such. The pending application also stands dismissed."
39 Hon'ble Supreme Court has held that where the sanction
order itself is a speaking order in such circumstances it is not necessary
to prove it by leading evidence that sanctioning authority has applied
his due mind. Reliance is placed on C S Krishnamurthy Vs. State of
Karnataka 2005 IV AD (S.C.) 141 wherein in para No.9 it is observed
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as follows:
"Therefore, the ratio is sanction order should speak for itself and
in case the facts do not so appear, it should be proved by leading
evidence that all the particulars were placed before the sanctioning
authority for due application of mind. In case the sanction speaks for
itself then the satisfaction of the sanctioning authority is apparent by
reading the order. In the present case, the sanction order speaks for
itself that the incumbent has to account for the assets disproportionate
to his known source of income. That is contained in the sanction order
itself. More so, as pointed out, the sanctioning authority has come in
the witness box as witness No.40 and has deposed about his
application of mind and after going through the reports of the
Superintendent of Police, CBI and after discussing the matter with his
legal department, he accorded sanction. It is not a case that the
sanction is lacking in the present case. The view taken by the
Additional Sessions Judge is not correct and the view taken by learned
Single Judge of the High Court is justified."
40 Now it is well settled that granting of sanction is an
administrative function. In this regard, Hon'ble Supreme Court in
Superintendent of police (CBI) Vs. Deepak Chaudhary - 1995 SCC
(Crl.) 1095 has held as follows:
''We find force in the contention. The grant of sanction is only an
administrative function, though it is true that the accused may be
saddled with the liability to be prosecuted in a court of law. What is
material at that time is that the necessary facts collected during
investigation constituting the offence have to be placed before the
sanctioning authority and it has to consider the material. Prima-facie,
the authority is required to reach the satisfaction that the relevant facts
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would constitute the offence and then either grant or refused to grant
sanction. The grant of sanction, therefore, being administrative act the
need to prove an opportunity of hearing to the accused before
according sanction does not arise. The High Court, therefore, was
clearly in error in holding that the order of sanction is vitiated by
violation of the principles of natural justice.''
41 I have carefully gone through the sanction order for the
prosecution of accused Lalit Gupta Ex PW2/A and sanction order for
the prosecution of accused Brijpal Ex. PW2/B running in three sheets
each, both these are detailed orders having all the material particulars
of this case. A bare perusal of these orders reflect that sanctioning
authority has passed these orders after due application of her mind. In
view of above discussion, this Court is of opinion that prosecution has
proved a valid sanction for the prosecution of both the accused in this
case.
DEMAND ACCEPTANCE AND RECOVERY.
42 Complainant in his complaint Ex. PW 1/A has specifically
mentioned that accused Lalit Gupta ASI had demanded an illegal
gratification of Rs. 5,000/- and accepted Rs. 3,000/- from him for
regularizing the service of his wife Sunita. The tainted GC currency
notes of Rs. 3,000/- of Rs. 100/- denomination each were recovered
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concealed in the left socks of accused Lalit Kumar, vide recovery
memo Ex PW1/C. Recovery was effected in presence of PW one
Jaipal, PW5 Praveen Kumar Gupta, PW11 Sh. Ajay Kumar. All these
witnesses alongwith other trap team members had signed the recovery
memo ExPW1/C.
43 With regard to demand, acceptance and recovery of bribe
amount PW1 has deposed as follows.
"----- I requested Lalit Gupta, accused present in Court who was
Assistant Sanitary Inspector to include the name of my wife. He
refused to add the name of my wife and demanded Rs. 5000/- as bribe
from me for the said. I went to CBI office on 19.05.2001 and met one
officer of ACP rank -----"
He has further deposed as follows in this regard
" ---We left the CBI office and reached MCD office at Trilok
Puri Block No.13 I and Yash Pal went inside the office . Accused Lalit
Gupta was present in the office. 2/3 other Inspector were also present
there. Accused Lalit Gupta was present in the office. 2/3 other
Inspector were also present there. Accused Lalit Gupta told me to
come after 10 minutes. We came out and after 10 minutes. We came
out and after 10 minutes I and Yash Pal again went inside the office.
We went back side and on the instructions of accused Lalit Gupta to
hand over the money to accused Brij Pal, who was working there
as peon, and was present there, I handed over the money of Rs.
3000/- to accused Brij Pal, on demand made by him. Brij Pal took
the money with his right hand, counted the money with both of his
hands and kept in the left side pocket of his pant. PW Yash Pal also
seen the transaction of passing of money. Brij Pal accused went into
the office room and kept the money on the office table. Accused Lalit
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Gupta took the money and kept the money under the left side sock
worn by him. PW Yash pal came out and gave the pre appointed
signal. The entire raiding party reached inside the room. The CBI
officer caught hold the wrists of accused Lalit Gupta and challenged
the accused Lalit Gupta and asked him, where was the money.
Accused Lalit Gupta explained that money was under his socks.
Accused Lalit Gupta took out said money from his socks and
handed over the same to CBI officer. The numbers of currency notes
were compared with the numbers recorded in the handing over memo."
44 In this regard he has further deposed as follows :
"The GC notes of Rs. 3000/- which I had taken to the CBI Office
on 21.5.2001 the same were noted done in a memo. I have seen
handing over memo which bears my signatures at point A. Upon
interrogation by the CBI officers Brijpal pointed towards the socks of
accused Lalit Gupta which was bulzzing out of the sock. Upon the
instructions of CBI witness Parveen Gupta had recovered the bribe
amount of Rs.3,000/-. Same were counted."
45 This witness has been cross examined on behalf of
accused at length running in several pages, various questions, relevant
and irrelevant, have been put to this witness. But not even a single
question has been put to this witness with regard to challenging the
demand of bribe by accused no. 1 and payment of the same to him
and recovery of the tainted amount from accused no. 1. No cross
examination on a substantive point on behalf of accused amounts
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to the admission of the same. Thus, there is no reason to disbelieve
the evidence of this witness on all the material points of demand of
the bribe, its acceptance and recovery of the same from accused.
46 PW 5 Parveen Kumar Gupta, recovery witness in this
regard has deposed as follows :-
" The complaint along with independent witness Yashpal
went to MCD office. Yashpal was directed by the CBI Office to remain
close with the complainant and to see all the transaction and give the
signal a above stated.
After half an hour complainant and Yashpal came
out of the office and again went inside office. The independent witness
Yashpal gave pre decided signal and we rush towards the office
premises. The complainant told that the bribe amount of Rs.3000/-
was demanded by Lalit Gupta and the same was handed over to
another person namely Brijpal on the asking of Lalit Gupta.
Brijpal kept the money in his left side pant pocket.
Brijpal thereafter given the money to Lalit Gupta.
Lalit Gupta had kept the money in his left sock. I had recovered
the tainted money from the sock of Lalit Gupta at a instance of
CBI officer. Now it is difficult to identify Lalit Gupta as it is an old
matter . After recovery of money I have counted the GC notes . No. of
currency notes were tallied with the handed over memo and the
same were found to be correct as per handed over memo.
Thereafter CBI officer after taking of left sock of accused Lalit Gupta
and the same washed from colourless solution which had turned pink.
Thereafter the pink solution was sealed in a bottle with the CBI seal. I
had also put my signatures on paper slip affixed on the bottle which is
Ex P-31 it bears my initial at point A. This bottles was sealed on the
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spot. I had also signed the sock at point A which I identity . I had also
signed the sock seized by CBI at point A which I identify now. Same is
Ex P-32."
47 He has been cross examined at length on behalf of accused
but nothing such has come in his cross examination on the point of
demand, recovery and acceptance of bribe amount to disbelieve his
statement.
48 PW 9 Smt. Sunita wife of complainant has specifically
deposed that accused Lalit Gupta had demanded an amount of Rs.
5,000/- from her husband for regularizing her service. Relevant portion
of her statement is as under :-
" In the year 2001 I was working as a Safaikarmchari in
Trilok Puri area as a Substitute Safaikaramchari. A list for permanent
Safaikaramchari was being prepared by accused Lalit Gupta ( witness
correctly identify the accused present in the Court ) My husband has
gone to Lalit Gupta where he asked for Rs.5,000/- as bribe to include
my name in the list of permanent Safaikaramchari which was being
prepared by accused."
49 This witness has also been cross examined at length on
behalf of accused not even a single suggestion has been given to her
that accused Lalit Gupta had not demanded any bribe amount for
regularzing her service, thus there is no reason to disbelieve her
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statement on this point.
50 PW 11 Ajay Kumar the then Inspector CBI, TLO of this
case in this regard has deposed as follows:-
"After a few minutes they were seen coming out and kept
waiting. Then they again went inside and this time four persons
including complainant, shadow witness, Lalit Gupta and Brij Pal came
out and went to the back side of the office. After a few minutes all
four went back to the office. This time around 2'O Clock the pre fixed
signal was given by shadow witness Sh. Yashpal. On getting the
signal the CBI team and another witness led by me entered the office. I
talked to complainant and shadow witness and then challenged accused
Lalit Gupta that he has demanded and accepted a bribe money of
Rs.3000/- from Jaipal (complainant). I disclosed my identity to the
accused. On being challenged the accused got nervous and his face
turned ale. Both his hands were caught by wist by the team
members. The complainant informed that as per the instructions
of Lalit Gupta he had given the bribe amount to Brij Pal, a
sweeper who after counting the bribe amount kept the same in his
left pant pocket behind the room and on reaching inside the office
room the bribe amount of Rs. 3000/- was given by Brij Pal to
accused Lalit Gupta who after counting the same kept it in his left
side socks. On this disclosure we questioned Brij Pal who corroborated
the same about the acceptance of bribe money. Brij Pal informed that
he had taken the money as per the instruction of Lalit Gupta
outside the office room and thereafter handed over the same to
Lalit Gupta. Thereafter another independent witness Sh. Praveen was
requested to recover the bribe amount from the socks and
accordingly Sh. Praveen recovered the bribe amount of Rs. 3000/-
which was 30 GC notes of Rs. 100/- denomination. I also requested
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him to tally the same with numbers mentioned in handing over
memo. Sh. Praveen counted the notes and declared that they were the
same GC notes produced by the complainant in CBI office and
mentioned in the handing over memo and treated with phenolphethin
powder. After tallying the recovered notes with those of GC notes
mentioned in handing over memo he had ticked on the handing over
memo as against the GC notes in token of its correctness."
51 This witness has also been cross examined at length on
behalf of accused running in several pages, however, nothing such has
come out in his cross examination so as to disbelieve his statement.
52 Complainant Jaipal, recovery witness Praveen
Kumar and TLO has deposed that washes of hands of accused
Lalit Kumar and that of his left socks and wash of the hands of
accused Brijpal and that of inner linings of his left side pant pocket
was taken with the solution of sodium carbonate prepared in water
which had turned pink in colour . There is no cross examination of
any of these witnesses on this point on behalf of accused, thus there
is no reason to disbelieve it.
53 PW3 Sh. K. S. Chabbra Senior Scientific officer CFSL
who has chemically examined all the washes has stated that after
chemical analysis of all these washes, he found presence of
phenolphthalein and sodium carbonate in samples of the washes Ex.
PW RHW1, LSW, RHWII, LHWII, LSPPW. This witness has stated
C C No.30/04 22/60
23
that Ex. PW LHW1 gave negative test for phenolphthalein. Thus the
presence of phenolphthalein on the hands of accused and left socks of
accused no. 1 and pant pocket of accused no. 2 has been confirmed.
54 The importance of phenolphthalein test was underline by
the Hon'ble Supreme Court in Som Parkash Vs State of Delhi AIR
1974 Supreme Court 989, where in para 10 it is held as under:
" ............... of course, the oral evidence of PWs 1and 4 by
itself, if believed as rightly believed by the High Court , proves the
passing of the money to the accused and its production by him when
challenged by P.W 7 . The fact is indisputable that the hands, the
handkerchief and the inner lining of the trouser pocket of the accused
turned violet when dipped in soda ash solution. From this the State
counsel argues that on no hypothesis except that the notes emerged
from the accused's Pocket or possession can the triple colour change be
accounted for . The evidence furnished by inorganic chemistry often
outwits the technology of corrupt officials, provided no alternative
reasonable possibility is made out. The appellant offers a plausible
theory. PW 1 kept the notes with him and his hands thus carried the
powder. He gave a bottle of cake to the accused and the bottle thus
transmitted particles of phenolphthalein to the latter's hands. He ( the
accused ) wiped his face with the handkerchief and put it into his
trouser pocket thus contaminating the lining with the guilty substance.
Moreover, the inner lining was dipped by PW 7 with his hands which
had the powder . Thus, all the three items stand explained, according to
him. These recondite possibilities and likely freaks have been rejected
by both the courts and we are hardly persuaded into hostility to that
finding. It is put meet that science- oriented detection of crime is
C C No.30/04 23/60
24
made a massive programme of police work, for in our technological
age nothing more primitive can be conceived of than denying the
discoveries of the sciences as aids to crime suppression and nothing
cruder can retard forensic efficiency then swearing by traditional oral
evidence only thereby discouraging the liberal use of scientific
research to prove guilt."
55 In Raghbir Singh Vs State of Punjab (1976) 1 SCC 145
while discarding the oral and documentary evidence laid on behalf of
the prosecution is not such as to inspire confidence in the mind of the
Court, the Supreme Court observed in para No.11 as follows:-
" We may take this opportunity of pointing out that it would be
desirable if in cases of this kind where a trap is laid for a public
servant, the marked current notes, which are used for tte purpose of
trap, are treated with phenolphthalein power so that the handling
of such marked currency notes by the public servant can be
detected by chemical process and the court does not have to depend
on oral evidence which is something of a dubious character for the
purpose of deciding the fate of the public servant."
56 From the above discussion presence of phenolphthalein
powder on the right hand of accused No.1 and in his left socksand on
the hands of accused No.2 and in his left side pant pocket is proved.
There is no explanation on behalf of accused as to how
phenolphthalein powder has appeared on their hands and in the left
socks of accused No.1 and in the left lining of pant pocket of accused
C C No.30/04 24/60
25
No.2.
57 Hon'ble Supreme Court in Roop Singh Vs. State of Punjab
, AIR 1991 Supreme Court 1125, in this regard, has held as follows:
"Prevention of Corruption Act (2 of 1947), S.5 - Offence of
accepting bribe - Nothing to doubt testimony of prosecution witnesses
- Defence by accused that he was victim of conspiracy - Not
supported by evidence on record - Failure of accused to explain
presence of phenolphthalein powder on his hand - Held, evidence
of prosecution witnesses was sufficient to prove offence against
accused - Conviction of accused was proper."
58 TLO Ajay Kumar has specifically deposed that when
accused was challenged by him that he had accepted the bribe from
complainant he became nervous and his face turned pale. Relevant
portion of his statement, in this regard, is as follows:
" I disclosed by identity to the accused. On being challenged
the accused got nervous and his face turned pale. Both his hands
were caught by wrists by the team members."
59 From the above discussion it is also proved that tainted
money of Rs. 3,000/- was concealed by accused No.1 in his left socks
which was recovered by PW5, this version has also been corroborated
by PW1 and PW11. Accused was wearing a pant having pockets. But
he has concealed the money in his right sock. Socks is not a place to
keep the money, particularly when accused was wearing a pant having
pockets. This conduct of accused No.1 of concealing the tainted
C C No.30/04 25/60
26
money in his sock is abnormal, which also indicates that he had
received the illegal gratification knowingly and concealed the same in
his sock.
60 In a prosecution for the offence of bribery the conduct of
accused is relevant U/S 8 of Evidence Act. When the accused was
challenged regarding acceptance of bribe amount he became nervous
and his face turned pale, he has not given any explanation, why he had
concealed the money in his socks.
61 Hon'ble Supreme Court in Parkash Chand Vs Delhi
Admn AIR 1979 SC 400 in para No.8 has observed as follows:
" It was contended by the ld. Counsel for the appellant that the
evidence relating to the conduct of the accused when challenged by the
Inspector was inadmissible as it was hit by section 162 Criminal
Procedure Code. He relied on a decision of the Andhra Pradesh
Hingh Court in D.V. Narisimhan V.State,(AIR 1969 andh Pra 271).
We do not agree with the submissions of Sh. Anthony. There is a clear
distinction between the conduct of a person against whom an offence is
alleged which is admissible under section 8 of the Evidence Act, if
such conduct is influenced by any fact in issue or relevant fact and the
statement made to a police officer in the course of an investigation
which is hit by sec. 162 Criminal Procedure code. What is excluded by
sec. 162 Criminal Procedure Code is the statement made to a police
officer in the course of investigation and not the evidence relating to
the conduct of an accused person ( not amounting to a statement)
when confronted or questioned by a police officer during the
C C No.30/04 26/60
27
course of an investigation. For example, the evidence of the
circumstances, simpliciter,that an accused person led a police
officer and pointed out the place where stolen articles or weapons
which might have been used in the commission of the offence
where found hidden, would be admissible as conduct, u/s 8 of the
evidence Act, irrespective of whether any statement by the accused
contemporaneously with or antecedent to such conduct falls within
the purview of Section 27 of the Evidence Act (vide Himachal
Pradesh Administration Vs. Om Prakash AIR 1972 SC 975.
62 From the above discussion it is again proved that
accused Lalit Gupta accepted Rs.3,000/- voluntarily and
consciously which was also recovered from his conscious
possession.
63 A tape recording device was also given to complainant
with the instructions to switch it on prior to entering in the office of
accused Lalit Gupta. Accordingly, complainant has recorded the
conversation between him and accused Lalit Gupta and Inder Raj.
Transcription of which Ex PW 1/X to Ex PW 1/X-4 has also been
prepared and produced on the judicial file . In this regard, PW1 has
deposed as follows:
-----------" This transcription was prepared after playing the
cassette by the CBI officer in my presence. I heard the cassette
carefully and thereafter I identify the voice of Lalit Gupta and my
C C No.30/04 27/60
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voice and the voice of Inder Raj. The transcription at page No.5 was
also prepared in my presence after hearing the cassette by me and the
CBI officer and same is correct."
--------------"Witness Jai Pal has identified his voice and voice of
Indraj appearing in the cassette wherein both of them were talking
about the money demanded by accused Lalit Gupta. Witness has
further identified his voice wherein he is asking for the register in
which the name of Safaikaramchari are mentioned. The cassette
further played and the witness has identified the voice of accused Lalit
Gupta wherein he is saying "Kaam Ho Gaya Tumara". And they were
talking about the substitute Karamcharies and list of names. The
witness has further identified hi voice, that of accused and Indraj and
the conversation heard is also transcript at page No.2 of the
transcription Ex.PW 1/X. The whole conversation recorded at page 2
and now is Ex.PW 1/X-1. The cassette is further played and the
witness ha identified the conversation that had taken place between the
complainant and accused Lalit Gupta and the transcription contains the
conversation recorded in the same. The remaining pages of
transcription are now Ex.PW 1/X-2 to Ex.PW 1/X-4."---------------
64 PW 10 Sh. Deepak Kumar Tanwar, Senior Scientific
Officer, Grade II, (Phy.) CFSL, CBI, New Delhi, has proved the voice
identification report prepared by Sh. C.K.Jain, which is Ex PW10/A,
by identifying the signatures of Sh. C.K.Jain because Sh. C.K.Jain has
expired, as he worked with him as his assistant. Result of examination
is as under:-
"The auditory and voice spectrographic analysis of the voice
samples marked as Q-1(a), Q-1(b), S-1(a) and S-1(b) revealed that the
C C No.30/04 28/60
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voice samples marked as Q-1(a) and Q-(b) selected in the cassette
marked exhibit Q-1 are similar to the respective common voice
samples marked as S-1(a) and S-1(b) selected in the cassette marked
exhibit S-1 in respect of their fundamental frequencies, format
frequency distribution, intonation pattern, frequency time co-ordinate
distribution and other general linguistic and phonetic characteristics.
Hence, the voice samples marked Q-1(a), Q-1(b), S-1(a) and S-1(b) are
probable voice of the same person."
65 Q-1 was cassette TDK D-60 having conversation
recording among many persons on both the sides, out of which the
sentences, namely "Tumhein Mauka De Rahha Haun" and "Kaam
Tumhara Aur Kahe Main Raha Haun" spoken by a person marked as
Q-1(a) and Q-1(b) respectively have been selected for voice analysis.
66 S-1 was cassette of TDK D-60 having specimen voice
recording of Shri Lalit Gupta on side A. The common sentences,
namely "Tumhein Mauka De Raha Haun" & "Kaam Tumhara Aur
Kahe Main Raha Hun" spoken by him marked as S-1(a) and S-1(b)
respectively have been selected for voice analysis.
67 From Ex PW10/A it is proved that Q-1 was having
recorded voice of accused Lalit Kumar.
68 Though, as discussed above there is sufficient evidence of
PW1, PW5, PW9 and PW11 to prove demand of illegal gratification
made by accused Lalit Gupta and its acceptance by him and the
recovery of the same from his left socksyet the transcription also
C C No.30/04 29/60
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corroborates the demand and acceptance of illegal gratification by
accused Lalit Gupta from the complainant.
69 When it is proved that there was voluntary and conscious
acceptance of the money by the accused, there is no further burden cast
on the prosecution to prove by direct evidence the demand or motive,
in view of Section 20 of PC Act, 1988. It has been held so by our
Hon'ble Supreme Court in B. Noha Vs. state of Kerala, 2006 IV AD
465.
70 Our Hon'ble Supreme Court in State of Andhra Pradesh
Vs. R Jeevaratnam, 2004 (2) JCC 1161 has held as follows in this
regard:
"Prevention of Corruption Act, 1988 - Sec. 20 (1) -Presumption
under - Respondent caught red-handed with the marked money in a
briefcase carried by him - Presumption that he accepted illegal
gratification arose".
71 Our Hon'ble Supreme Court in Madhukar Bhaskarrao Josi
Vs. State of Maharashtra (2000 (8) SCC 571) has held as follows in
this regard:
"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
C C No.30/04 30/60
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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 word
'gratification' must be treated in the context to mean any payment for
giving satisfaction to the public servant who received it".
72 This decision was followed by Hon'ble Supreme Court in
M. Narsinga Rao Vs. State of A.P. (2001 (1) SCCC 691). wherein it
has been held that " 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."
73 Accused has given an explanation that he has been falsely
implicated in this case. In this regard, following suggestions have been
given to complainant, in his cross examination on behalf of accused:
"It is incorrect to suggest that the accused has been falsely
implicated because he was not cooperated with to fulfill my illegal
C C No.30/04 31/60
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demands and other illegally activities."
74 In this regard, following suggestions have been given to
PW5:
"It is incorrect to suggest that I in collusion with CBI personnels
have got falsely implicated accused Lalit Gupta."
75 In this regard, following suggestions have been given to
PW11 Ajay Kumar, TLO of this case:
" It is incorrect to suggest that Jai Pal had gone to CBI office to
make complaint against Inder Raj as he was having some trouble from
him prior to 21.5.2001. It is incorrect to suggest that when I could
not apprehend Inder Raj I planted the case against accused
persons at the instance of Jai Pal. Site plan was prepared by me.
Site plan Ex PW 5/C does not show the position of Inder Raj."
76 I have gone through the complaint Ex PW 1/A made
by complainant to CBI in this case, there is no allegation against
Inder Raj in the complaint. Thus, there is no merit in this
explanation that accused Lalit Gupta has been falsely trapped because
Inder Raj could not be apprehended on the spot. Even from the above
quoted defence put to complainant, PW5 and PW11 it is clear that
different versions have been put to each of the witness which shows
that this defence of accused is false and concocted one.
C C No.30/04 32/60
33
FACTUAL AND LEGAL ANALYSIS OF DEFENCE
ARGUMENTS OF ACCUSED LALIT GUPTA.
77 It is argued on behalf of accused that on 16.5.2001 he
was transferred from Trilokpuri to Krishna Nagar. Accordingly,
he has joined his duty in Trilokpuri on 17.5.2001. He has also marked
his attendance in Trilokpuri from 17.5.2001 to 21.5.2001. Thus he
was neither concerned with the preparation of list of Safai
Karamchari whose services to be regularised nor had prepared
any such list.
78 PW7 Sh. G C Raheja in his cross examination has
specifically deposed that as the list was not complete hence at his
instance Lalit Gupta was working with him at the relevant time
and was preparing list of seniority of Safai Karamchari as he was
illiterate person. Relevant portion of his cross examination in this
regard, is as under:
"The work of attendance was supervised by Sanitary Guide and
not by me. I have not maintained register D-7. Ex PW 1/D was the list
given to me by the accused. There was no practie in or office to
prepare such list of Safai Karamchari. List of all the Safai
Karamcharis working at the relevant time in the concern area used to
be prepared. Ex PW 1/D is not the complete list but it is a slip. The
slip Ex PW 1/D was not given to me by anyone. I do not know in
which beat Sunita was working. I had heard about the transfer of
C C No.30/04 33/60
34
Lalit Gupta however I have not seen his transfer order but as the
list was not complete hence at my instance he was working with me
at the relevant time. Accused was the literate person hence he was
preparing the list of seniority of Safai Karamchari."
79 From the above quoted cross examination of PW7 on
behalf of accused Lalit Gupta, it is proved that on the relevant date and
time he was preparing list of seniority of Safai Karamchari.
80 Even otherwise to constitute an offence under Section 7
of P C Act it is enough if the public servant who accepts the
gratification takes it by inducing a belief or by holding out that he
would render assistance to the giver, " with any other public servant"
and the giver, gives the gratification under that belief. It is not the
requirement of law that public servant who has accepted money
must be in position to do the official act, favour or service at the
time of demand or receipt of illegal gratification.
81 Hon'ble High Court of Madras in P. Sabbaraj Vs The State
1995 CRI L J 3440 in this regard has held as follows :
" Prevention of Corruption Act (2 of 1947), S. 5(1) (d) -
Bribery- Proof - Acts of accused, a public servant is taking illegal
gratification from complainant for securing him job in some other
department - Falls under the mischief of Section 5(1) (d) and Section
161, Penal Code- Such acts of accused need not be proved to be done
in discharge of his official duties."
C C No.30/04 34/60
35
82 Hon'ble High Court of Bombay in Indur Dayadas Advani
Vs The State of Bombay in this regard has held as follows :
" The section does not require that the public servant
must himself have the power or must himself be in a position to
perform the act or show favour or disfavor for doing or showing
which the bribe has been paid to him . From the last explanation to
this section it is clear that it is not necessary in order to constitute an
offence under Section 161 that they act for doing which the bribe is
given should actually be performed. It is sufficient if a represention is
made that it has been or that it will be performed and a public servant,
who obtains a bribe by making such representation will be guilty of the
offence punishable under this Section, even if he had or has no
intention to perform and has not performed or does not actually
performed that act. A presentation by a person that he has done or
that he will do an act impliedly includes a representation that it
was or is within his power to do that act."
83 Hon'ble Supreme Court in Shiv Raj Singh Vs Delhi
Administration AIR 1968 SC 1419 in this regard has held as follows :
" When a public servant is charged u/s 161 Penal Code
and it is alleged that the illegal gratification was taken by him for doing
or procuring an official act, it not necessary for the Court to
consider whether or not the accused public servant was capable of
doing or intended to such an act. Thus although the concealment of
the birth of an illegitimate child is not an offence under the Penal code
or any other criminal statue, if a public servant obtains money from
anybody on that ground he is guilty of grossly abusing his position as
C C No.30/04 35/60
36
a public servant within the meaning of Section 5 (I) (d) of the P C Act
and thereby obtain for himself a valuable thing or pecuniary advantage
and he can be charge under this section."
84 Hon'ble Supreme Court in Chaturdas Bhagwandas Patel
Vs The State of Gujrat (1976) SCC-46 this regard has held as follows :
" Section 161 does not require that public servant
must, infact , be in a position to do the official act, favour or
service at the time of demand or receipt of gratification . To
constitute an offence under this section it is enough if the public
servant who accept the gratification, takes it by inducing a belief
or by holding out that he would render assistance to the giver "
with any other public servant " and the giver gives the gratification
under that belief. It is further immaterial if the public servant
receiving the gratification does not intend to do the official act, favour
or forbearances which he holds himself out as capable of doing .This
is clear by the last explanation appended to section 161 and
illustration"
85 Our Hon'ble Supreme Court in Mahesh Prasad Vs. state of
UP 1955 AIR (SC) 70 has held as follows:
"Indian Penal Code, 1860, Section 161, Explanation 4 - Public
Servants - Motive or reward for doing to assist another Government
Servant - Whether the accused could or could not do the same, but was
aware of heating - Held guilty of offence under Section 161 of the
Code."
86 In view of the above discussion there is no merit in this
C C No.30/04 36/60
37
argument.
87 It is argued on behalf of accused that Sunita wife of
complainant Jai Parkash was not working as a substitute Safai
Karamchari .
88 PW4 Mani Ram in this regard has deposed as follows:
" I have seen one attendance register it is of ward No.68
Trilokpuri ( D-7) and the same is Ex PW4/A. This register contains the
attendance of the various Karamchari and the entries were made by
Sanitary Guide or ASI. I have seen the entries at page No.8, 59, 61, 89,
101, 129, 143, 144. The attendance of Sunita W/O Jai Pal is
appearing in front of following entries i e 7 ( May 2000) 19 (
25.8.2000 to 25.9.2000) 16, ( 26.9.2000 to 25.10.2000) 25 (
26.11.2001 to 25.12.2001) 17 ( 26.12.2001 to 25.1.2001) 9. ( March
2001 ) 20 ( May 2001) These entries are marked as point A on each
dates on Ex PW4/B-1 to B-7."
89 In his cross examination this witness has stated as follows:
--------------" Sunita was a substitute Safai Karamchari . It
is incorrect to suggest that Sunita was of Lahori category . Substitute
Karamchari used to depute when regular or daily wager Safai
Karamchari on leave or absent. .................................
--------------According to practice name of regular
employee entered first and then daily wagers and thereafter substitute
Safari Karamchari"
90 In this regard PW 6 Dharampal has stated as follows in his
examination in chief :
C C No.30/04 37/60
38
" Jai Pal and his wife Smt Sunita both were Safai
Karamchari MCD Ward 68. Smt Sunita was working under Inderaj.
List was used to prepare MCD office."
91 In his cross examination he has stated as follows:
" Sunita and Jaipal used to work as Safai Karamchari at
different beat. The beat of Jaipal was under Inderraj."
92 PW9 Sunita herself stated that in the year 2001 she was
working as substitute Safai Karamchari in Trilokpuri area. In her
cross examination in this regard she has stated as follows:
" I have been working MCD since long but now I do not
remember the date, month and year of my joining in MCD. Initially I
was posted as Substitute Safai Karamchari ( Abjidar ) . I was
appointed by a Daroga whose name I do not remember now. Again
said his name was Indraj. I do not know what his designation was but
he had appointed me. It is correct that I was appointed 10/11 years
ago from today by Indraj as Abjidar. I do not remember as to how
many other Abjidar were appointed on that day by said Indraj. It is
correct since the day of my appointment till today I am working in the
same beat. Again said I used to be sent any place."
93 From the above discussion it is proved on judicial file that
Smt Sunita wife of complainant Jaipal was working as substitute
Safair Karamchari at the relevant time.
94 It is argued by Ld Defence counsel that on 21.5.2001
complainant was present in his office from 6.30 am to 2.30 pm as he
has marked his attendance in the attendance register all the four times,
C C No.30/04 38/60
39
therefore, he cannot be present in the Office of CBI at about 9.00 AM.
95 Complainant has specifically deposed that on 21.05.2001
he had given his attendance at 6.30 AM, thereafter, he had gone to CBI
Office. He had not given his attendance at 11.30 AM or 2.30 PM.
In this regard complainant has stated as follows:
---------- "On 21.05.2001 Indraj (Daroga) had taken my
attendance. On 21.05.2001 first attendance of mine was taken at 6:30
am at Trilok Puri Chowk (6). Nala was about 200 yards from the
chowk. 20 to 25 persons were working along with me in Nala Gang
including me. I had not given attendance of 11:30 am and 2:30 pm as I
went to CBI office and remained with the CBI officers. I had not taken
leave on that day. "------
----------It is incorrect to suggest that on 21.05.2001 I had gone
to CBI office after 2:30 pm. I had reached CBI office at about 10.00
am.
--------"I have seen the attendance register, my all the attendance
are marked on 19.05.2001 and 21.05.2001 at point A and B. I had
marked my morning attendance at 6.30 am only on 21.05.2001 I
cannot say about remaining attendance how the same have been
marked. It is incorrect to suggest that I am Sarmaidar and all my
attendance are automatically marked-----------"
96 I failed to understand, complainant who was working
as Safai Karamchari how can he be a Sarmaidar.
97 TLO Ajay Kumar in this regard has stated as follows:
-------"It is incorrect to suggest that complainant had not come
C C No.30/04 39/60
40
to office CBI 21.05.2001 as he was on his office duty. The complainant
Jaipal had come in the CBI office around 9.00 am on 21.05.2001 and
he was with us.
Q. According to duty register complainant Jaipal was on duty wef
6.30 am to 2.30 pm.
Ans. Many time people go out of their office during the office ours."
From the above explanation given by TLO and from the
statement of complainant that he had marked his attendance at 6.30 am
only and thereafter he had gone to the CBI office"------------
98 From the above quoted statement of complainant and
TLO, it is proved that on 21.05.2001 at about 9.30 AM, complainant
had gone to the Office of CBI and was not on his duty. This fact has
also been admitted by accused no. 1, which is apparent from the
following suggestions given to complainant in his cross examination
on behalf of accused Lalit Gupta:
-------''It is wrong to suggest that CBI officers also accompanied
to call Vijay S/o Kalicharan."---------
--------''It is wrong to suggest that the register was in my house
and not in the house of Indraj."----------
99 In view of the above referred statement of complainant
and PW11 TLO coupled with the above quoted suggestions given to
complainant on behalf of accused, it is proved that he had gone to the
C C No.30/04 40/60
41
CBI office on 19.5.2001 and 21.5.2001, thus there is no merit in the
argument of accused that complainant was in his office upto 2.30 pm
on 21.5.2001.
100 It is argued by Ld Defence counsel that PW 5 was neither
present on the spot at time of trap nor officially called nor performed
his role correctly. Presence of PW5 Praveen Kumar Gupta in the
Office of CBI and on the spot at the time of trap has been admitted by
accused, which is clear from the following portion of cross
examination of PW5 on behalf of Lalit Gupta:
---------''It is incorrect to suggest that I along with complainant
had gone to the official seat Mr. G. C. Rakheja"----------
--------''It is incorrect to suggest that I was quite far away from
the entry gate MCD from where I was not able to see the sight of the
office."---------
---------''It is incorrect to suggest that the complainant remained
with me through out this period."----------
---------''It is incorrect to suggest that neither I was called
officially nor my senior relieved me to join the raid on 21.05.2001 but I
had joined the proceedings of my own. It is incorrect to suggest that I
had not performed my assigned duty by the CBI officer. It is incorrect
to suggest that signal was not given by Yashpal but it was given by me
twice."----------
-------''It is incorrect to suggest that we had left in two official
vehicle from CBI office to MCD office Trilokpuri for raid purposes.
C C No.30/04 41/60
42
Confronted with the statement U/s 161 Cr.PC U/s 161 Cr.PC from
portion H to H where it is written that raid team left in two vehicles."--
---------
Q Where you had offered your search to accused Lalti Gupta prior to recovery of bribe amount?
Ans. I had not offered to Lalit Gutpa to take my search prior to recovering the bribe amount from his socks.
-------''It is correct that from outside where I was standing I could not see what had happened inside at that time."---------
Presence of PW5 on the spot at the time of trap is also established from the following portion of cross examination of PW11 TLO conducted on behalf of A-1.
--------''Q. I put it to you that your both independent witnesses namely Yash Pal Sharma and Praveen Kumar Gupta retrieved the tainted amount separately?
Ans. It is incorrect. Tainted money was recovered by independent witness Parveen Kumar Gupta and tallied by Yash Pal Sharma and Praveen Kumar Gupta."----------
101 Ld. Defence Counsel argued that in the recorded specimen voice witness has stated his name as Pawan Kumar and date of recording as 21.05.2000 and not 21.05.2001. According to recorded sample voice it is correct. This witness has also signed various documents on the spot like handing over memo Ex PW1/B, recovery memo Ex PW1/C, arrest cum personal search memo of accused Lalit Kumar Ex PW5/A, arrest cum personal search memo of accused Brijpal Ex PW5/B. All these facts proves his physical presence on the C C No.30/04 42/60 43 spot at the time of trap. In view of documentary evidence his presence on the spot cannot be disbelieved merely because there is error in the name and date in the recorded sample voice. This error may be result of slip of tongue, which should be ignored in view of above referred documentary evidence and the admissions made on behalf of A-1 himself. From the above discussion, this Court is of the opinion that there is no merit in the arguments that this witness was not present on the spot.
102 It is argued on behalf of A-1 that no list allegedly prepared by A-1 has been seized by the IO.
103 PW1 has stated that three paper slips were recovered from accused Lalit Gupta at the time of personal search, which are Ex PW1/D, Ex PW1/E and Ex PW1/F. The relevant portion of his statement is as under :-
"The three paper slips were recovered from accused Lalit Gupta at the time of personal search. The paper slips are P.W.1/D, Ex.P.W.1/E and Ex.P.W.1/F. "
104 There is also reference of recovery of these three paper slips in the arrest cum personal search memo of accused Lalit Gupta dated 21.05.2001 Ex PW5/A. 105 PW1 has been cross examined at length on behalf of A-1, however, no question has been put to him challenging the recovery of C C No.30/04 43/60 44 these three slips from him. PW5 has proved the arrest cum personal search memo Ex PW5/A of A-1, which was prepared in his presence. He has also not been cross examined on this point. In these circumstances, recovery of all these three paper slips Ex PW1/D, Ex PW1/E and Ex PW1/F from accused Lalit Gupta proved beyond reasonable doubt.
106 PW7 Sh. G.C.Rakheja, the then Sanitary Inspector of Trilokpuri Ward No. 68 has stated that slips Ex PW1/D was given to him by accused Lalit Gupta. Relevant portion of his statement in this regard is as under :-
"I was working as Sanitary Inspector in the area of Trilok Puri Ward No. 68 in May 2001. I know accused Lalit Gupta present in the Court he was working with me as Assistant Sanitary Inspector. Sh. Prem Prakash was working as Sanitary Guide with me at that time. Om Prakash was working in beat No. 18. Rati Ram was working with me at that time now I do not remember his beat because of my old age. Market No. 4 was under the area of Sh. Dharampal, Sanitary Guide, Slip already Exhibited PW1/D do not contain the name of Sunita Wife of Jaipal. Accused Lalit Gupta use to provide me the list of Safai Karamchari. List used to be prepared on basis of attendance Register. Till 16.05.2001 Lalit Gupta who was posted in my office had submitted the list whatever was received by him however I cannot say whether it was complete or incomplete. In his cross examination, this witness has stated that Ex PW1/D was the list given to him by accused."
107 He has also stated in his cross examination that Ex C C No.30/04 44/60 45 PW1/D is not complete list, but it is a slip.
"I have perused all the three slips Ex PW1/D, E and F. All these three slips bears the signatures of witness Parveen Gupta and Yashpal Sharma. Name of Sunita is not mentioned in Ex PW1/D, However, name of Sunita/Jaipal is mentioned in Ex PW1/E and Ex PW1/F."
108 In view of above discussion, there is no merit in the argument of Ld. Defence Counsel.
109 Independent witness Praveen Kumar Gupta who has recovered the tainted money from the A-1 was working in Northern Railway. He has fully supported the case of prosecution. He has not joined investigation of CBI in any other case except the present one. He was neither knowing the complainant nor the accused prior to this case. He has no affinity with the complainant and no enmity with the accused. Not even a suggestion has been given to this witness on behalf of accused that he was enemical to the accused. In these circumstances, no motive can be imputed to him to depose falsely against accused.
110 According to accused he has been falsely implicated in this case by CBI in place of Inder Raj at the instance of complainant. TLO and independent witness has denied it . CBI is the Prime Investigating Agency of this country. Jaipal, complainant in this case is a Safai Karamchari working in MCD. He is a poor person. In any C C No.30/04 45/60 46 manner, he is not such a personality, who can influence a prime investigating agency like CBI. There is no reason to believe that CBI would falsely implicate the accused at the instance of complainant Jaipal. TLO Inspector Ajay Kumar is also a public servant . He was not alone in the trap team. There were many other CBI officer in the trap team who were also public servant. All the CBI officers were unknown to complainant. They have no enimity with the accused. Even accused has not alleged any ill will of their against him. There is no reason why the TLO and other trap team members who were also public servants will falsely implicate a public servant in this case. There is no reasons why they will falsely depose in the Court against the accused. In these circumstances there is no merit in the arguments that accused has been falsely implicated in this case and witnesses have been falsely deposed against him .
111 Referring Ex PW11/DX i.e. Search cum Seizure memo of accused Lalit Gupta, it is argued by Ld. Defence Counsel that at the relevant time A-1 was at his house. He was called in the CBI Office, his signatures were taken on some paper and falsely implicated in this case. It is argued that in Ex PW11/DX it is mentioned that search of the house No. C-63, West Govabh Park Shahdara was taken, where Lalit Gupta was present.
C C No.30/04 46/60 47112 I have gone through Ex PW11/DX, it is mentioned in it that search of the premises was taken in the presence of Lalit Gupta. All the persons, whose names mentioned in it except Lalit Gupta had signed it, which proves that actually Lalit Gupta was not present in his house at the time of search, but his name inadvertently written in it. Had he been present there, his signatures would have also been taken on Ex PW11/DX. PW11 Ajay Kumar TLO has specifically stated that accused Lalit Gupta was arrested on the spot. Relevant portion of his statement is as under :-
" During the operation, both the accused persons Lalit Gupta and Brij Pal were arrested observing the legal formality and after conducting the personal search. The items found were seized."
113 In this regard, he has again stated as follows :-
" Accused Lalit Gupta was arrested under arrest cum personal search memo after observing the essential formalities. And arrest cum personal search memo was prepared by Sh. Jyant Kashmiri Inspector CBI. Arrest cum personal search memo already Ex PW5/A bears my signatures at point B which I identify, the independent witnesses Sh. Yashpal Sharma and Parveen Gupta and GC Rakhija also signed on the respective point before me in token of its correctness and a copy of the same was also given to accused Lalit Gupta who received in under his signatures at point X in my presence."
114 PW1 Complainant and PW5 Parveen Kumar have also fully corroborated that accused Lalit Gupta was arrested on the spot vide arrest cum personal search memo Ex PW5/A. Both these C C No.30/04 47/60 48 witnesses have not been cross examined on this point. But no suggestion has been given to any of the witnesses including TLO that accused Lalit Gupta was called later on in the CBI Office and his signatures were taken on papers and falsely implicated in this case. 115 In view of above discussion, there is no merit in this argument of Ld. Defence Counsel.
116 It is argued by Ld. Defence Counsel that entire investigation of this case is defective hence accused may be acquitted on this ground alone. Defence cannot take advantage of bad investigation where there is evidence available on the record against the accused. In this regard our Hon'ble Supreme Court in a latest judgment titled Zindar Ali Vs. State of West Bengal & Anr., 2009 III AD (S C ) 7 held as follows:
"Indian Penal Code, 1860 -Secs. 376 and 417 - Immediate disclosure of rape by the prosecutrix - Version of prosecutrix unchallenged - Admission by the accused in village panchayat - Medical evidence also another proof - Accused behind bar for five years - SC held - Defence cannot take advantage of bad investigation where there is clinching evidence available to the Prosecution."
117 Our Hon'ble Supreme Court in Rohtash Vs. State of Rajasthan (2007) 2 SCC (Crl.) 382 has held that that defective investigation would not lead to total rejection of prosecution case.
C C No.30/04 48/60 49118 Our Hon'ble Supreme Court in State of MP Vs Man Singh ( 2007) 2 SCC 390 in this regard has held as follows:
" Criminal Trial- Investigation- Deficiencies in investigation- Effect- Held, cannot be a ground to discard the prosecution version which is authentic, credible and cogent- Criminal Procedure Code, 1973- S.157."
119 In Karnail Singh Vs. State of MP 1995 SCC 977it has been held by Hon'ble Supreme Court that in case of defective investigation it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event it would tantamount to be falling in the hands of an erring Investigating Officer. 120 It is correct that there are some contradictions in the statement of complainant PW1, PW5 and PW11. In a case u/s 7 &13 (1) (d) of P C Act, 1988 demand of bribe, its voluntary acceptance and recovery of the same from the conscious possession of accused are the material points. There is no contradiction in the statements of witnesses on these points. The contradictions pointed out by Ld. Defence Counsel are of minor nature. These contradiction cannot be called material contradictions. Such contradictions are bound to come in the statement of witnesses because of the passage of time and other reason. Court cannot expect a parrot like repetition of the version by C C No.30/04 49/60 50 the witnesses.
121 The law regarding contradiction was considered by the Hon'ble Supreme Court in case of Bharuda Broginbhai Harjibhai V/S State of Gujrat AIR 1983 SC 753 where in it was held that discrepancies which do not go to the root of the matter and shake the basic version of the prosecution should not be attached undue importance. Their Lordships have enumerated following reasons for arriving of this conclusion:
i) " By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.\
ii) Ordinarily, it is so happen that a witness is over taken by events the witness could not have anticipated the occurrence which so often has an element of surprise.
Thus mental faculties, therefore, cannot be expected to be attuned to absorb the details.
iii) The powers of observance differ from person to person, but one may noticed another may not. An object or movement might emboss image on one person's mind, C C No.30/04 50/60 51 whereas it might go unnoticed on the part of another.
iv)By and large people cannot accurately recall a conversation and reproduced the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
v) In regard to exact time of an incident or the time duration of an occurrence, usually, people make their estimate by guess work as spare of moment, at the time of interrogation and one cannot expect people make very precise or reliable estimate in such matter. Again it depends upon the time sense of individuals which varies from person to person.
vi) Ordinarily, a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession of in a short time span. A witness is liable to get confuse or mixed up when interrogated later on.
vii) A witness though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross examination made by counsel and out of nervousness C C No.30/04 51/60 52 mixed up facts, get confused regarding sequence of events., or fill up details of imagination at the spur of moment. The sub conscious mind of the witness sometime so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and an honest account of the occurrence witnessed by him perhaps it is a sort of physiological movement".
122 In view of the law discussed above it cannot be said that the contradiction pointed out by Ld. Counsel for accused are very vital contradictions. These are contradiction which are likely to occur with the passage of time. The Hon'ble Supreme Court in case State of UP V/S M.K. Anthony, AIR 1985 SC 48 has laid down the principle for appreciating the evidence of a witness as under:
" While appreciating the evidence of a witness the approach must be whether the evidence of the witness read as a whole, appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, draw backs and infirmities, pointed out in the evidence as a whole and evaluate them to find out whether, it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render if unworthy of belief. Minor discrepancies of trivial matter, not touching the core of the case, C C No.30/04 52/60 53 hypertechnical approach by taking sentence torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of evidence as a whole."
" Their Lordships further observed:
" Unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations of infirmities in the manner of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention, and reproduction differ with individuals. Cross examination is an unequal dual between the rustic and refined lawyer."
123 I have carefully gone through all the authorities relied upon by Ld. Defence Counsel. There is no dispute with the preposition of law laid down in these authorities, however, the ratio of law laid down in a authority is to be applied according to the facts and circumstances of each case. As discussed above in the case in hand it is well proved that accused Lalit Gupta had demanded the illegal gratification and voluntarily accepted Rs. 3,000/- from complainant for mentioning the name of his wife in the list of regularising the service of Safai Karamchari. It is also proved that this amount of Rs.3,000/- was recovered from his conscious possession. Facts and circumstances C C No.30/04 53/60 54 of all these authorities are not similar to the facts and circumstances of case in hand.
124 Ld. Defence Counsel argued that signatures of witness are not visible on the socks of accused Lalit Gupta. He has also argued that IO had not seized the other socks of accused hence the case of prosecution is doubtful. TLO has specifically stated that he has taken the signatures of witness on the socks but because of the passage of time same might have been faded away He has also stated that he had not seized the right socks of accused because the money was recovered only from the left socks. In this regard, relevant portion of cross examination of TLO is as under:
"We had taken signature of independent witness on the left socks of accused Lalit Gupta. Only the wash turned pink and not the colour of sock turned pink. Witnesses had put their initials on the sock at the time of trap however the same are now fedded away however impression of the same is still available in the fedded form. I do not remember at which stage of investigation RC No. 38/01 was written on the sock, however it is not in my handwriting. This sock was taken in possession during the trap proceeding. I had also signed on this sock however now I find the same are fedded away. It was not necessary that RC No. was written on the same day when I had initialed this sock. It is incorrect to suggest that this sock is not of Lalit Gupta accused. As no money was recovered from right sock hence I had not seized the right sock of Lalit Gupta. This sock was not sealed during the trap proceeding."
125 PW5 Parveen Kumar Gupta has also stated that his C C No.30/04 54/60 55 signatures on the socks have been fedded away. In this regard relevant portion of his cross examination is as under:
"Now I cannot tell on the sock where my signatures are on it and where the signatures of Yashpal are on as the ink has fedded away."
126 I have also perused the left socks of accused Lalit Gupta. It is having fedded impression of ink which also suggests that because of passage of time ink of the signatures of witnesses on it has been fedded away. In these circumstances there is no merit in this argument of Ld. Defence Counsel.
127 Our Hon'ble Supreme Court in State of Punjab Vs. Pohla Singh, 2003 (3) CCC 75 has held as follows:
"Appreciation of evidence - The prosecution is not supposed to meet every hypothetical question raised by the defence -If crime is to be punished in a glosseme way niceities must yield to realistic appraisal."
128 Prevention of Corruption Act is a social legislation enacted with the object to curb illegal activities of public servants, in these circumstances according to the law of interpretation of Statute, its provision should be interpreted so as to achieve its object. Our Hon'ble Supreme Court in Ram Singh Vs. State of MP (2000) 5 Supreme Court Cases-88 has held as follows:
C C No.30/04 55/60 56"Prevention of Corruption Act, 1988 - Nature and interpretation of -Held is a social legislation to curb illegal activities of public servant and should be liberally construed so as to advance its object and not liberally in favour of the accused - interpretation of Statutes -Particular statutes or provisions - Penal statute - Social Legislation - Interpretation of".
129 Hon'ble Supreme Court in Inder Singh Vs State ( Delhi Administration) AIR 1978 Supreme Court 1091 has held as follows:
"Credibility of testimony, oral circumstantial depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect, If a case is proved too perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of fool-proof concoction. Why fake up? Because the Court asks for manufacture to make truth look true? No, we must be realistic".
LEGAL AND FACTUAL ANALYSIS OF ARGUMENTS ON BEHALF OF ACCUSED BRIJ PAL C C No.30/04 56/60 57 130 It is correct that accused Brij Pal was working as Safai Karamchari in Trilokpuri office, Shahdara Zone , MCD. There is no allegation against him in the complaint with regard to demand of bribe. According to the evidence produced by the prosecution complainant Jai Pal handed over bribe amount to accused Brij Pal at the instance of accused Lalit Gupta at the back side of the office. According to evidence of prosecution it is also proved that Brij Pal handed over the bribe amount to accused Lalit Gupta after coming back in the office. There is no evidence on the file to show that accused Brij Pal was having any knowledge that the amount given to him by the complainant was the bribe amount demanded by Lalit Gupta. Recovery of the bribe amount was also not affected from accused Brij Pal. After considering the entire evidence produced by the prosecution on the judicial file it appears that accused Brij Pal had only hold the money for some time without knowing that it was a bribe money. Prosecution has not produced any evidence on the judicial file to show that there was meeting of mind or any agreement between accused Lalit Gupta and Brij Pal to prove that he had connived with Lalit Gupta to facilitate the acceptance of bribe money by accused Lalit Gupta. In these circumstances accused Brij Pal is entitle for benefit of C C No.30/04 57/60 58 doubt.
131 In case U/S 13 (1) (d) of P C Act 1988 prosecution has to prove that :
That accused should be a public servant.
i) That he should used some corrupt or illegal means or otherwise abused his position as a public servant,
ii) That the accused should have thereby obtained a valuable thing or pecuniary advantage.
iii) Such benefit for himself or for any other person.
132 A five Judges Bench of Hon'ble Supreme Court in Dhaneshwar Narain Saxena Vs The Delhi Administration 1962(1) Crl L J 203 ( Vol.64 C.N. 76) has held as follows:
Misconduct by public servant need not be in connection with his own official duty.
" It is not necessary that the public servant in question, while misconducting himself, should have done so in the discharge of his duty. It would be anomalous to say that a public servant has misconduct himself in the discharge of his duty. "Duty" and "misconduct" go ill together. If a person has misconducted himself as a public servant, it would not ordinarily be in the discharge of his duty, but the reverse of it. It is not necessary to constitute the offence under cl (d) of the section that the public servant must do something in C C No.30/04 58/60 59 connection with his own duty and thereby obtain any valuable thing or pecuniary advantage. It is equally wrong to say that if a public servant were to take money from a third person, by corrupt or illegal means or otherwise abusing his official position, in order to corrupt some other public servant, without there being any question of his misconducting himself in the discharge of his own duty, he has not committed an offence under S. S(10) (d) . It is also erroneous to hold that the essence of an offence under S. 5(2) , read with S. 5(1) (d), is that the public servant should do something in the discharge of his own duty and thereby obtain a valuable thing or pecuniary advantage."
133 In view of above discussion it is well proved from the evidence produced by the prosecution that accused Lalit Gupta who was working as Assistant Sanitary Inspector in MCD, as a public servant, had demanded Rs. 5,000/- from Jai Pal and obtained Rs. 3,000/- from him as illegal gratification on the pretext of mentioning name of his wife Sunita in the list of regularising the services of Safai Karamcharis and accepted the same which was recovered from his conscious possession, thus accused has abused his official position. In these circumstances this court is of opinion that prosecution has proved its case beyond reasonable doubts against accused Lalit Gupta, hence he is convicted for the offences punishable U/s 7 & U/s 13 (2) r/w 13 (1 (d) of P C Act, 1988.
C C No.30/04 59/60 60134 As discussed above accused Brij Pal is entitled for benefit of doubt, hence acquitted. Ordered accordingly.
ANNOUNCED IN OPEN COURT (V K MAHESHWARI) TODAY ON 23rd October, 2010 SPECIAL JUDGE: DELHI C C No.30/04 60/60 61
IN THE COURT OF SH. V K MAHESHWARI:SPECIAL JUDGE:TIS HAZARI DELHI Corruption Case No.30/04 R.C.No. 38 ( A)/01/CBI/ACB/New Delhi.
CBI Vs Lalit Gupta S/o R C Gupta r/o 63-
C, DDAColony, West Gorkha Park, Delhi.
( Asstt. Sanitary Inspector) MCD
ORDER ON SENTENCE:
Vide my separate judgment dated 23.10.2010 Lalit Gupta was convicted for the offence punishable U/s 7 & U/s 13(2) r/w 13 1 (d) of P C Act, 1988.
Arguments on sentence heard. It is argued on behalf of convict that he is of 46years of age. He is not a previous convict. He is facing agony of this trial since 2001. He is the sole bread earner of his family. He has to look after his aged parents. He has clean antecedents. He is having no other criminal case against him except the present one. He has young children to look after. It is argued that in these circumstances, C C No.30/04 61/60 62 lenient view may be taken against him.
It is argued by Ld. Senior PP Sh. Brajesh Shukla for CBI that no leniency be shown to him in awarding the sentence as it will be undesirable and will also be against public interest. He has argued that convict is involved in a serious corruption case inspite of being a public servant. he was working in as Assistant Sanitary Inspector in MCD and had received Rs. 3,000/ from Complainant as illegal gratification on the pretext of mentioning the name of his wife in the list of Safai Karamcharis, whose services are to be regularized. He was caught red handed. He should be awarded sever punishment and heavy fine may also be imposed on him.
Corruption is a scourge that not only severally affects progress and development in the society but also posses a grave challenge to governance itself. The United Nations Global Reports on Crime and Justice quotes public opinion surveys in a number of countries, to point out that citizenry in those countries ranks corruption as one among the five most important problems facing their society. More importantly, the public in such countries seriously questions the ability of the Criminal Justice C C No.30/04 62/60 63 Administration to provide any bulwark against corruption. The consequence of such perceptions is a growing public cynicism and distrust in almost all the Government institutions, which is a matter of serious concern. Unfortunately, India ranks prominently high in the list of countries plagued by corruption. Anti Corruption measures in India are perceived by the people to be weak and ineffective. More than corruption itself, it is the widespread public perception that corruption is not or would not be punished, that is detrimental to the society.
After considering all the arguments raised before me, Convict is sentenced to undergo Two years RI along with a fine of Rs.15,000/- (Rs. Fifteen Thousand only ) I D Three months S I U/S 7 and to undergo Two years RI along with a fine of Rs. 15,000/- (Rs. Fifteen Thousand ) I D three months S I U/S 13 (2) R/w Section 13(1) (d) of P C Act 1988. Both the sentences will run concurrently. Benefit of Section 428 Cr P C be also given to accused.
A copy of judgment and this order on sentence be given to convict free of cost. File be consigned to RR.
C C No.30/04 63/60 64ANNOUNCED IN OPEN COURT (V K MAHESHWARI)
TODAY ON 27 Oct, 2010
th
SPECIAL JUDGE:DELHI
C C No.30/04 64/60