Delhi District Court
State vs . 1. Ved Kukreja on 27 February, 2012
IN THE COURT OF SHRI B.R. KEDIA, SPECIAL JUDGE07
(CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
C.C.NO. : 14/12
Unique Case ID : 02401R0380342008
STATE VS. 1. VED KUKREJA
W/o Sh. Hans Raj
R/o F25/67, Sec.III, Rohini,
New Delhi.
2. ASHISH GARG
S/o Sh. I.D. Garg
R/o C3/117, Ashok Vihar,
PhaseII, Delhi52.
FIR NO. : 21/2006
U/S : 7/12/13 Prevention of Corruption
Act, 1988
P.S. : ANTI CORRUPTION BRANCH,
DELHI
Date of Institution 13.03.2008
Judgment reserved on 22.02.2012
Judgment delivered on 27.02.2012
C.C. No. 14/12 Page No. 1 of 41
JUDGMENT
1. The precise case of the prosecution is that on dated 16.03.2006, a Raiding party comprising Inspector Sunder Dev (Raid Officer) alongwith Inspector K.S.Pathania, SI Surender Kumar, W/HC Nirmala, Panch witness Prince Garg besides the Driver Yogesh Kumar left Anti Corruption Branch in a government vehicle at about 1:30 p.m. and reached Sales Tax Office near ITO for keeping surveillance as the Raid Officer has the secret information to the effect that the bribe is being taken by the Officers of Sales Tax Department in their Office for settlement of the case files due to closing of the financial year. The members of the Raiding team were briefed about the said information and were instructed to overhear the conversation and see the transaction regarding bribe there. Panch witness was instructed to remain close to the Raid Officer and to follow the directions. Thereafter, the Raiding team went to Ward No. 64 at 7th floor of Sales Tax Office and found several persons present and took suitable position. Raid Officer noticed that the accused Ved Kukreja, Assistant Sales Tax Officer (ASTO) and accused Ashish Garg, CA were sitting opposite to each other inside a cabin and accused Ved Kukreja who was seeing the files, appended her C.C. No. 14/12 Page No. 2 of 41 signatures on the files and saw towards accused Ashish Garg on which accused Ashish Garg took out one white colour envelope from his purse from his pocket and delivered the same to accused Ved Kukreja who after checking the same, kept in the right upper drawer of her office table. Thereafter, the Raid Officer alongwith Panch witness went inside said cabin and after disclosing his identity challenged accused Ved Kukreja that she had taken bribe from the accused Ashish Garg. Thereafter, Raid Officer offered his search to both the accused but they declined. Thereafter, the Panch witness recovered the envelope from the right upper drawer of the table of the accused Ved Kukreja on the instructions of the Raid Officer and on checking, said envelope was found containing 3 GC notes of Rs.500/ each which was taken into possession vide Seizure Memo Ex.PW1/A. The accused Ashish Garg was interrogated who introduced himself as Representative of M/s Shivalik Enterprises Pvt. Ltd. and had come there for getting final assessment of Sales Tax File of the said client. On the basis of said incident, the Raid Officer prepared the Rukka which is Ex.PW9/A and sent the same through Ct.Kishan Pal to PS Anti corruption Branch for registration of the case, on which FIR copy of which is Ex.PW10/A was registered.
C.C. No. 14/12 Page No. 3 of 41
2. The further case of the prosecution is that the Raid Officer called the Inspector K.S.Pathania at the spot and handed over him the custody of both the accused, seizure memo, case property etc. for further Investigation. IO obtained the Assessment Folder 200405 in respect of M/S Shivalik Enterprises Pvt. Ltd. Ex.PW1/J (colly.), Assessment Daily Diary Register mentioning the name of the dealer M/s Shivalik Enterprises Pvt. Ltd. 200405 Ex.PW1/K (colly.), A Sales Tax Department Diary 2005 in respect of Ved Kukreja, Ward No.64 mentioning the name of the dealer M/s Shivalik Enterprises Pvt. Ltd. Ex.PW1/L (colly.) from the possession of the accused Ved Kukreja vide Seizure Memo Ex.PW1/G. IO also took into possession Cash Declaration Register Ex.PW1/M from R.N.Sharma vide Seizure Memo Ex. PW1/F. IO prepared the Site Plan Ex.PW12/A, arrested the accused Ved Kukreja vide Arrest Memo Ex.PW1/B, and prepared personal search Memo of accused Ved Kukreja Ex.PW1/D, arrested accused Ashish Garg vide Memo Ex.PW1/C, prepared personal search Memo of accused Ashish Garg Ex.PW1/E. IO also obtained specimen signature of accused Ved Kukreja Ex.PW1/O and Ex.PW1/P and specimen signature of accused Ashish Garg Ex.PW1/Q and Ex. PW1/R. During course of Investigation, IO sent the relevant material to FSL and subsequently collected the FSL Report C.C. No. 14/12 Page No. 4 of 41 Ex.PW8/A and Sanction Order relating to accused Ved Kukreja Ex.PW11/A. IO on recording the statement of the witnesses and after completion of the Investigation, prepared the chargesheet and filed in the court.
3. After compliance with the provision U/S 207 of Cr.P.C and after hearing both sides on the point of charge, charge for offence punishable U/S 7 and 13 (2) r/w Section 13 (1) (d) of the Prevention of Corruption Act, 1988 was framed as against accused Ved Kukreja and charge for offence punishable U/S 12 of the Prevention of Corruption Act, 1988 was framed as against accused Ashish Garg on 22.01.2009 to which both accused pleaded not guilty and claimed trial.
4. Thereafter, in order to bring home the guilt of the accused, the prosecution got examined 12 prosecution witnesses namely Prince Garg, Panch witness as PW1, Ramesh Kumar who is the owner of M/s Shivalik Enterprises Pvt. Ltd., a formal witness as PW2, HC Krishan Pal Singh, a formal witness as PW3, Girdhari Lal, the then Sales Tax Officer (STO), Ward No.64, Sales Tax Office, ITO, a formal witness as PW4, ASI Ranjit Singh, a formal witness as PW5, C.C. No. 14/12 Page No. 5 of 41 HC Shokat Ali, a formal witness as PW6, ASI Nirmala Devi, a formal witness as PW7, the then Inspector D.L.Negi, last IO as PW8, Inspector Sunder Dev, Raid Officer as PW9, SI K.L.Meena, the then Duty Officer, PSAnti Corruption Branch, a formal witness as PW10, Sh.Narain Swami, the Sanctioning Authority as against the accused Ved Kukreja as PW11 and Inspector K.S.Pathania, IO as PW12.
5. After closure of the PE, statement of accused under Section 313 Cr.P.C. were recorded in which both the accused claimed to be innocent and have been falsely implicated in this case. The accused Ved Kukreja also added that she had never demanded and accepted any bribe. Similarly, accused Ashish Garg also added that he had not delivered any bribe to the accused Ved Kukreja.
6. I have heard Final Arguments as addressed by Sh. S.P.Minocha, Adv.Ld. Counsel for the accused Ashish Garg, Sh.H.K.Sharma, Adv. Ld. Counsel for the accused Ved Kukreja and Sh.Vinod Kumar Sharma, Ld. Addl. PP for the State and perused the relevant record.
7. It is submitted by Ld. Counsel for the accused Ashish Garg C.C. No. 14/12 Page No. 6 of 41 that this accused being a CA was working as Representative of M/s Shivalik Enterprises Pvt. Ltd. for the completion of the assessment work of said firm from the coaccused Ved Kukreja who was working as Assistant Sales Tax Officer (ASTO) on 16.3.2006 and this accused has neither offered nor gave any bribe to coaccused Ved Kukreja. It is further added by Ld. Counsel for this accused that as coaccused Ved Kukreja has passed said Assessment Order Ex.PW4/A on merits, there was no occasion on the part of this accused Ashish Garg to deliver any bribe on behalf of M/s Shivalik Enterprises to the co accused Ved Kukreja. It is further added by Ld. Counsel for this accused that as per the case of the prosecution, the Raid Officer and the Panch witness had seen the alleged transaction of delivering of the bribe amount by this accused to coaccused Ved Kukreja through the cabin glass of adjacent cabin of another ASTO but same is falsified from the fact that another ASTO was on leave on that day and therefore, his cabin was lying locked. It is further added by Ld. Counsel for this accused that since the Raid Officer is an interested witness for success of his Raid and therefore, his deposition cannot be treated as trustworthy and reliable. It is further added by Ld. Counsel for this accused that despite the availability of several independent official staff and public persons near the spot as found reflected from C.C. No. 14/12 Page No. 7 of 41 the deposition of several PWs, nonjoining of any of them at the time of the Raid itself falsify the case of the prosecution. Ld. Counsel pointed out several contradictions in the deposition of various PWs and added that same falsify the case of the prosecution. It is further added by him that the deposition of PW9/Raid Officer and PW12/IO cannot be treated as trustworthy and reliable as they have given evasive reply during course of their cross examination. Ld. Counsel for this accused also pointed out several lapse on the part of the IO i.e. nonjoining of independent official witness/public witness as available at the spot in the Raid Proceedings, mentioning of incorrect time in the Arrest Memo of the accused Ashish Garg as compared to the time as mentioned by the witness to said Arrest Memo, the subsequent adding of the words "with purse" in the Personal Search Memo of the accused Ashish Garg, nonexamination of the Assessment Order by the IO and added that same are fatal for the case of the prosecution. Ld. Counsel for this accused urged for acquittal of this accused Ashish Garg and referred and relied upon following judgments: 2007 (2) JCC 1315, 2010 (3) CC Cases (HC) 593 and 1995 Cr. L.J. 3978.
8. Similarly, it is submitted by Ld. Counsel for accused Ved C.C. No. 14/12 Page No. 8 of 41 Kukreja that this accused is innocent and has neither demanded nor accepted any bribe amount from coaccused Ashish Garg and has been falsely implicated in this case and hence, deserves to be acquitted. It is also added by him that even PW1/Panch witness has not deposed anything regarding the giving of the bribe amount by the accused no.2 to this accused no.1/Ved Kukreja. It is also added by him that the envelope containing the bribe amount of Rs.1500/ has been falsely planted upon the accused by the Raid Officer who is an interested witness for success of his Raid and therefore, said recovery cannot be treated as trustworthy and the accused deserves to be acquitted. It is also added by him that the accused Ved Kukreja has neither demanded nor accepted any bribe from the coaccused Ashish Garg and the prosecution has failed to prove about the said aspect and hence, this accused deserves to be acquitted. It is also added by him that as the Sanction Order in this case has been passed by the Sanctioning Authority mechanically without proper application of mind and therefore, said Sanction is not valid and entire proceedings stand vitiated. It is further added by him that since PW9/Raid Officer and PW12/IO have given evasive reply in response to the query during course of their cross examination on behalf of the accused, they cannot be treated as trustworthy. It is also added by him that C.C. No. 14/12 Page No. 9 of 41 since the adjacent cabin of another ASTO was lying locked as said ASTO was on leave, the stand of the prosecution is that the Raid Officer and Panch witness had seen the alleged transaction of handing over the bribe amount of Rs.1500/ contained in an envelope by the coaccused Ashish Garg to this accused Ved Kukreja through the cabin glass of adjacent cabin is false and fabricated as they had no occasion to see the said alleged transaction. It is also added by him that despite the availability of STO besides other officials of Sales Tax Department near the cabin of the accused, nonjoining of any of them in the Raid Proceedings falsify the case of the prosecution. It is also added by him that this accused is found to have passed Assessment Order in 11 other cases on the same day i.e. 16.3.2006 and no other bribe amount could be recovered from said accused by the prosecution and same also establish the innocence of this accused and false plantation of the envelope containing GC notes of Rs.1500/ by the police upon this accused. It is also added by him that as PW1/Panch witness has remained on duty as Panch witness on several occasions he is a stock witness and has deposed at the instance of the IO and his deposition cannot be treated as reliable. It is also added by Ld. Counsel that the mentioning of the FIR Number in the Seizure Memo of the GC notes Ex.PW1/A, which was made before the C.C. No. 14/12 Page No. 10 of 41 registration of the FIR creates suspicion on the case of the prosecution. Ld. Counsel for this accused thus urged for acquittal of this accused Ved Kukreja and referred a judgment reported as "AIR 1974 SC 1193".
9. To the contrary, it is submitted by Ld. Addl. PP for the State that the prosecution by examining 12 PWs have clearly established its case as against both the accused and therefore, both the accused deserves to be convicted for the charged offence. It is further added by Ld. Addl. PP for the State that the facts regarding the demand and acceptance of the bribe by the accused Ved Kukreja from the co accused Ashish Garg has been successfully proved by the prosecution through the deposition of PW1/Prince Garg, Panch witness, PW9/Inspector Sunder Dev, Raid Officer and PW12/Inspector K.S.Pathania,IO and there is no reason to disbelieve the same. It is further added by Ld. Addl. PP for the State that there is no reason as to why PW1/Prince Garg, Panch witness, PW9/Inspector Sunder Dev, Raid Officer and PW12/Inspector K.S. Pathania, IO would falsely implicate the accused specifically when there is no previous enmity as against the accused by them. It is further added by Ld. Addl. PP that the PW11/Sanctioning Authority has passed the Sanction Order on C.C. No. 14/12 Page No. 11 of 41 proper appreciation of the material on record as against accused Ved Kukreja and Sanction Order is duly valid and proper. It is further added by Ld. Addl. PP that there is no explanation by the accused as to how the envelope containing the bribe amount of Rs.1500/ was lying in the drawer of the Office table of accused Ved Kukreja from which it was recovered. It is further added by Ld. Addl. PP that if both the accused were innocent and were falsely implicated in this case, then why they have not lodged any complaint against the police officials before any competent authority. It is further added by Ld. Addl. PP that the accused Ved Kukreja is found to have passed Assessment Order in various other cases before lunch and therefore, she might have kept the bribe amount received by her in those cases at safer place during lunch hour and therefore, nonrecovery of any bribe in other cases cannot be treated as a plus point for this accused Ved Kukreja. Ld. APP for the State has added that the prosecution has been successful in establishing its case as against both the accused for the charged offence and hence, they deserve to be convicted.
10. The first and foremost question having significant bearing on the fate of this case is whether prosecution has proved that valid Sanction as against accused Ved Kukreja has been accorded by the C.C. No. 14/12 Page No. 12 of 41 Competent Authority as per Section 19 (1) (c) of Prevention of Corruption Act, 1988. In order to prove the Sanction, the prosecution has examined PW11 Sh. R. Narainswami, the then Chief Secretary, Delhi who has categorically deposed that as he was competent to remove the accused Ved Kukreja, ASTO from the service, after examining carefully the material i.e. FIR, Statement of witnesses recorded and documents collected during Investigation by the AC Branch as placed before him with regard to the act and allegation regarding taking of bribe of Rs.1500/ on dated 16.3.2006 by accused Ved Kukreja from the accused Ashish Garg, CA for passing order in case of M/s Shivalik Enterprises Pvt. Ltd., a registered dealer of Ward No.64 and subsequent recovery of the envelope containing said bribe amount from the possession of the accused Ved Kukreja on the spot in the presence of the Panch witness, after due application of mind, he accorded the Sanction U/S 19 of Prevention of Corruption Act to prosecute the accused Ved Kukreja vide Sanction Order Ex.PW11/A bearing his signature at point A and same was forwarded to AC Branch vide Forwarding Letter Ex.PW11/B. He had specifically denied the suggestion of Ld. Defence Counsel that he had mechanically accorded Sanction to prosecute the accused Ved Kukreja.
C.C. No. 14/12 Page No. 13 of 41
11. In the case reported as State of Maharashtra and ors V/s Ishvar Piraji Kelpatri & ors 1996 Cri.L.J.1127, where Hon'ble Supreme Court had laid down that if the Authority according Sanction makes statement that while signing the order of Sanction, it had personally scrutinized the file and had arrived at required satisfaction, it is not necessary to look for, that there was application of mind or not or that material on record was examined by the concerned officer or not before according sanction, especially when order prima facie shows that, he had done so.
12. Furthermore, in the case reported as 2004 (13) SCC 487, Shankar Bhai Lalji Bhai Vs. State of Gujrat, it was observed by Hon'ble Supreme Court of India as under: "So far as the question of Sanction is concerned, in the absence of anything to show that any defect or irregularity therein caused failure of justice, that plea is without substance."
13. In the case reported in 2011 I AD (CRI.) (S.C.) 1, Kootha Perumal Vs. State (through) Inspector of Police, Vigilance & Anti Corruption, it was held in Para 14 by Hon'ble Supreme Court of C.C. No. 14/12 Page No. 14 of 41 India as under: "Keeping in view the aforesaid statement of law, it would not be possible to conclude that the sanction order in the present case was not valid. Ex.P2 with the present appeal is the copy of the sanction order. A perusal of the same would show that the sanctioning authority has adverted to all the necessary facts which have been actually proved by the prosecution in the trial. Upon examination of the material facts, the sanctioning authority has certified that it is the authority competent to remove the appellant from the office. It is specifically stated that the statements of the witnesses have been duly examined. Sanction order also states that the other materials such as copy of the FIR as well as other official documents such as the different mahazars were carefully examined. Upon examination of the statements of the witnesses as also the material on record, the sanctioning authority has duly recorded its satisfaction that the appellant should be prosecuted for the offences, as noticed above. We, therefore, find no merit in the C.C. No. 14/12 Page No. 15 of 41 submission of the learned counsel that the sanctioning order to prosecute the appellant was not legal".
14. By taking cue from the aforesaid judgments and applying the same to the facts of the present case, I do not find any force in the submission of Ld. Counsel for the accused to the effect that Sanction Order was passed mechanically as I am of considered view that the Sanction has been validly granted by PW11 Sh. R. Narainswami, the then Chief Secretary, Delhi who was competent to do so.
15. That during the course of argument, it is submitted by Ld. Counsel for the accused persons that both the accused are innocent and the accused Ved Kukreja had not demanded nor accepted any bribe amount from the coaccused Ashish Garg and they have been falsely implicated in this case. It is also added by them that the envelope containing the bribe amount of Rs.1500/ has been falsely planted upon the accused Ved Kukreja by the Raid Officer. It is also added by Ld. Counsel for the accused persons that as per the case of the prosecution the Raid Officer and the Panch witness had seen the alleged transaction of delivering of the bribe amount by the accused Ashish Garg to the accused Ved Kukreja, through the cabin glass of C.C. No. 14/12 Page No. 16 of 41 the adjacent cabin, another ASTO but same is falsified from the fact that another ASTO was on leave on that day and therefore, his cabin was lying locked and therefore, they had no occasion to see the said alleged transaction. To the contrary, it is submitted by Ld. Addl. PP that the facts regarding the demand and acceptance of the bribe by the accused Ved Kukreja from the coaccused Ashish Garg has been successfully proved by the prosecution through the deposition of PW1/Prince Garg, Panch witness, PW9/Inspector Sunder Dev, Raid Officer and PW12/Inspector K.S.Pathania,IO and there is no reason to disbelieve the same. It is further added by Ld. Addl. PP for the State that there is no reason as to why PW1/Prince Garg, Panch witness, PW9/Inspector Sunder Dev, Raid Officer and PW12/Inspector K.S. Pathania, IO would falsely implicate the accused specifically when there is no previous enmity as against the accused by them.
16. In order to prove that the accused Ved Kukreja had demanded and accepted the bribe amount of Rs.1500/ from the accused Ashish Garg, the prosecution is found to have examined PW1/Prince Garg, Panch witness, PW9/Inspector Sunder Dev, Raid Officer and PW12/Inspector K.S.Pathania,IO. PW1/Prince Garg, Panch witness has deposed that on 16.3.2006 while posted as C.C. No. 14/12 Page No. 17 of 41 Inspector in Transport Department, Delhi, he joined duty as a Panch witness in Anti Corruption Branch and he alongwith Inspector Sunder Dev, Inspector K.S.Pathania, SI Surender Kumar and others proceeded for surveillance in Sales Tax Office, ITO, Delhi. He also deposed that they visited various rooms in said Sales Tax Office in order to check if any official was indulging in demanding and accepting the bribe. He further deposed that at about 2:00 p.m. accused Ved Kukreja came in her office and after reaching in her room she sent out from the office all other persons sitting. He further deposed that they kept waiting and after sometime they entered in the cabin of accused Ved Kukreja and found accused Ashish Garg present inside. He further deposed that when they challenged the accused Ashish Garg and Ved Kukreja regarding demand and acceptance of the bribe, both of them denied but on their stating that they were having recording of the same, they became perplexed. Said PW1 also deposed regarding the recovery of an envelope containing 3 GC notes of Rs.500/ each from the drawer of the table of the accused Ved Kukreja, which were seized vide Seizure Memo Ex.PW1/A bearing his signature at point A. He had also deposed regarding arrest of accused Ved Kukreja vide Arrest Memo Ex.PW1/B and her Personal Search Memo Ex.PW1/D, arrest of accused Ashish Garg vide Arrest C.C. No. 14/12 Page No. 18 of 41 Memo Ex.PW1/C and his Personal Search Memo Ex.PW1/E which bears his signature at point A. He also deposed that the documents Ex.PW1/F and Ex.PW1/G bear his signature at point A. Said PW1 has duly identified said recovered GC notes of Rs.500/ each as Ex.P1 to P3 and the envelope as Ex.P4. Said PW1/Panch witness being found to be resiling from his earlier statement partly, he was cross examined by Ld. Addl. PP and he partly supported the case of the prosecution therein. Said PW1 also added that on the instructions of Inspector Sunder Dev, he recovered the bribe money kept in an envelope from the drawer of the table of the accused Ved Kukreja and on checking the said envelope, 3 GC notes of Rs.500/ each were taken out. Said PW1 also deposed regarding seizure of various documents by the Raid Officer from the possession of the accused Ved Kukreja which were seized vide Seizure Memo Ex.PW1/G and PW1/F bearing his signature at point A. He also deposed that specimen signature of accused Ved Kukreja Ex.PW1/O and specimen signature of accused Ashish Garg Ex.PW1/Q and R were taken which bears his signature at point A. Said PW1 has clearly denied the suggestion of Ld. Defence Counsel to the effect that his deposition regarding recovery of the envelope containing the bribe money from the drawer of the table of the accused Ved Kukreja is false and he has C.C. No. 14/12 Page No. 19 of 41 deposed at the instance of the police falsely.
17. PW9/Inspector Sunder Dev, Raid Officer has deposed that he had information regarding taking of bribe by officials of Sales Tax Department for settlement of the files due to the closing of the year and on 16.3.2006 he alongwith other member of Raiding team left AC Branch for Sales Tax Office and reached there and gave proper instructions to the Raiding team. He further deposed that he alongwith Raiding team went to Ward No.64 at 7th floor and took suitable position. He further deposed that he saw through the cabin glass that accused Ved Kukreja was present in her cabin and accused Ashish Garg was sitting inside said cabin opposite to Ved Kukreja and thereafter, Ved Kukreja who was seeing the files and after putting her signature on the files saw towards accused Ashish Garg and thereafter, accused Ashish Garg took out his purse from his pocket and delivered one envelope to accused Ved Kukreja. As said PW9 has deposed in this respect as under: "I saw that accused Ved Kukreja appended her signatures on the files after checking the same. Thereafter accused Ved Kukreja saw towards accused Ashish Garg. Thereafter accused Ashish Garg took C.C. No. 14/12 Page No. 20 of 41 out his purse from his pocket and took out one white colour envelope in folded condition and extended the same towards accused Ved Kukreja, who accepted the same with her right hand and after checking the same with the help of left hand she kept that envelope in the right upper drawer of her office table."
From the aforesaid deposition of PW9, it is reflected that the accused Ved Kukreja had demanded the bribe not by words but by gesture and thereafter, accused Ashish Garg had delivered the bribe amount contained in an envelope to her. Said PW9 has also deposed that on his instructions, Panch witness recovered said envelope from the right upper drawer of the table of the accused Ved Kukreja and on checking the same, it was found containing 3 GC notes of Rs.500/ each which were seized vide Seizure Memo Ex.PW1/A bearing his signature at point B. Said PW9 also deposed that the accused Ashish Garg on his interrogation introduced himself as Representative of M/s Shivalik Enterprises Pvt. Ltd. Said part of deposition of PW9 is also found corroborated from the deposition of PW2 Ramesh Kumar who has deposed that he had been running the firm M/s Shivalik Enterprises Pvt. Ltd. and had given Power of Attorney to M/s I.D. C.C. No. 14/12 Page No. 21 of 41 Garg & Company for assessment for clearance for the year 200405. He also deposed for this purpose said I.D.Garg & Company had deputed Ashish Garg, Chartered Accountant. Said PW2 has also deposed that copy of said Power of Attorney Ex.PW3/A bears his signature at point A and signature of Ashish Garg at point B. Said PW9 also deposed that he had prepared the Rukka Ex.PW9/A which bears his signature at point A and got the FIR registered. He has also deposed that he called Inspector K.S.Pathania,IO at the spot and handed over him the custody of both the accused, Seizure Memo, case property etc. for the purpose of Investigation. Said PW9 has also duly identified the recovered 3 GC notes of Rs.500/ each as Ex.P1 to P3 and said envelope as Ex.P4.
18. Though during course of argument, it is submitted by Ld. Counsel for the accused persons that as per the case of the prosecution the Raid Officer and the Panch witness had seen the alleged transaction of delivering of the bribe amount by the accused Ashish Garg to the accused Ved Kukreja, through the cabin glass of the adjacent cabin, another ASTO but same is falsified from the fact that another ASTO was on leave on that day and therefore, his cabin was lying locked and therefore, they had no occasion to see the said C.C. No. 14/12 Page No. 22 of 41 alleged transaction. But said submission of Ld. Defence Counsel is found negated from the suggestion put to PW9 by Ld. Counsel for the accused Ved Kukreja whereby admitting that PW9 had seen inside the cabin of accused Ved Kukreja through the cabin glass and same is found reflected from the suggestion of Ld. Counsel for the accused Ved Kukreja and response given by PW9 which are as under: "It is also wrong to suggest that from the fixed glass which was available on one side of the cabin, the register Ex.PW1/K was clearly visible. It is also wrong to suggest that no recovery of envelope or G.C. Notes in the said envelope was made from the office table drawer of the accused. It would be wrong to say that accused Ved Kukreja used to maintain a diary on which she used to enter the details of the names of assessee / dealers whose assessment of sales tax is done by her seritum vise. It is also wrong to suggest that the said diary was also visible from the fixed glass."
19. PW12/Inspector K.S.Pathania, IO has also deposed that on 16.3.2006 he alongwith Inspector Sunder Dev, SI Surender Kumar, C.C. No. 14/12 Page No. 23 of 41 W/HC Nirmala, Panch witness/Prince Garg and Driver Yogesh Kumar left Anti Corruption Branch and reached Sales Tax Office. He further deposed that he alongwith Driver Yogesh remained in the government vehicle and at about 4:45 p.m. he was called at the spot where Inspector Sunder Dev handed over him custody of both the accused Ved Kukreja and Ashish Garg, case property and documents on which he took up the Investigation. He has narrated about the various steps as taken by him during course of the Investigation.
20. In view of the aforesaid material as available on the record including the deposition of PW1/Panch witness, PW9/Raid Officer, PW12/IO, PW2/Ramesh Kumar, I do not find any force in the submission of the Ld. Defence Counsels to the effect that the said envelope containing the bribe amount of Rs.1500/ has been falsely planted upon the accused by the Raid Officer and to the effect that as the Assessment Order has been passed on merits, there was no occasion on the part of accused Ashish Garg to deliver any bribe on behalf of M/s Shivalik Enterprises to the accused Ved Kukreja. Furthermore, in view of the adequate incriminating material regarding the demand and acceptance of the bribe amount by the accused Ved Kukreja from the accused Ashish Garg as available on the case C.C. No. 14/12 Page No. 24 of 41 record, I am of the considered view that the judgments as referred and relied by Ld. Counsel for the accused persons can be of no help for the accused persons.
21. During the course of the argument, it is submitted by Ld. Counsel for the accused that as the Raid Officer is an interested witness for success of his Raid and therefore, his deposition cannot be treated as trustworthy and reliable. I do not find any force in the submission of Ld. Counsel for the accused in this respect. Reference is placed on case of Hazari Lal V/s State ( Delhi Admn ) AIR 1980 Supreme Court 873. In that case the allegations against the accused who was a police officer was that he demanded bribe from the complainant for release of his scooter rickshaw which was seized by the police. The trap was laid and the accused was caught red handed. However, during trial complainant turned hostile and deposed that when he went to the police station on first occasion to obtain delivery of his scooter rickshaw it was not the accused that was present but one Hawaldar was present and it was not the accused but that Hawaldar who demanded bribe of Rs. 60/ from him and when he went to the police station along with punch witness he found accused there and asked him to take a sum of Rs. 60/ and return the scooter rickshaw. C.C. No. 14/12 Page No. 25 of 41 He stretched his hand with the money towards the pocket of accused 's trouser but accused said the money might be paid to the person for whom it was meant for. He refused to receive the money and jerked complainant's hand with his hand as a result of which the notes came to be flung across the wall into neighboring room. He deposed that accused neither demanded the amount from him nor accepted the amount. The punch witness who went along with the complainant could not be examined as he became insane and other punch witness turned hostile. The conviction was based on the statement of trap officer and the Hon'ble Supreme Court held as under: "We are not prepared to accept the submission of Shri Frank Authony that he is the very Police Officer who laid the trap should be sufficient for us to insist upon corroboration. We do wish to say that there is no rule of prudence which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In facts and circumstances of a particular case a Court may be disinclined to act upon the evidence of such an officer C.C. No. 14/12 Page No. 26 of 41 without corroboration, but, equally, in the facts and circumstances of another case, the Court may unhesitatingly agent the evidence of such an officer."
22. Besides that in the case reported as AIR 1998 SC 1474 State of U.P. Vs. Zakullaha it was held by the Hon'ble Supreme Court of India that the evidence of Trap Officer in a bribe case can be acted upon even without the help of any corroboration and similar view was held in the judgment reported as "Prakash Chand vs. State (Delhi Administration) AIR 1979 SC 400".
23. That during the course of arguments, it is submitted by Ld. Counsel for the accused Ashish Garg that there are contradictions in the deposition of various PWs which falsify the case of the prosecution and Ld. Counsel pointed out the contradictions in the deposition of PWs as under: (A) PW9/Raid Officer had denied the suggestion that they had brought Girdhari Lal alongwith them from the spot to the AC Branch whereas PW4 Girdhari Lal deposed that he was taken to the AC Branch alongwith accused Ved Kukreja and Ashish Garg on that day. (B) PW1/Prince Garg, Panch witness deposed that after the C.C. No. 14/12 Page No. 27 of 41 accused persons were apprehended, they were straight away taken to the Anti Corruption Branch whereas PW9/Raid Officer has deposed about carrying out the Raid Proceedings at the spot. (C) PW1/Prince Garg has deposed that they reached Sales Tax Office at about 12:45 p.m. whereas PW9/Raid Officer has deposed that they reached the Sales Tax Office at 2:10 p.m. (D) PW1/Prince Garg has deposed that police prepared certain documents on which he put his signatures in the office of AC Branch whereas PW12/IO has deposed that he has prepared the relevant documents at the spot.
I am of the considered view that said contradictions appear to be on formal aspects and because of time gap between the period of incident and deposition of PWs in the court and hence cannot be treated as fatal for the prosecution. My said view is found supported from the law laid down by the Hon'ble Supreme Court regarding contradictions in case of Bharuda Broginbhai Harjibhai V/s State of Gujrat AIR 1983 SC 753 wherein 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. Furthermore, in the case reported as Krishna Pillai Sree Kumar Vs. State of Kerala, AIR 1981 SC 1237, it has been held that C.C. No. 14/12 Page No. 28 of 41 Inconsistencies here and discrepancies there are the shortcoming from which no criminal case is free. The main thing to be seen is whether the inconsistencies etc. go the root of the matter.
24. During the course of the argument, it is submitted by Ld. Counsel for the accused persons that from the perusal of the deposition of various PWs, it is clearly reflected that several staff members from the Sales Tax Office and public persons were available at the spot but none of them had joined in the Raid Proceedings which falsify the case of the prosecution. I do not find any force in the said submission of Ld. Defence Counsels in view of the fact that since an independent witness i.e. PW1/Prince Garg, Panch witness had already been joined in the Raid Proceedings on dated 16.3.2006 by the PW9/Raid Officer, nonjoining of any other person available at the spot cannot be over emphasized. My said view is also found supported from the judgment reported as 2011 V AD (DELHI) 500, Anna Wankhade Vs. Central Bureau of Investigation (Through State), wherein it was held in Para 21 as under: "21. There is no dispute with regard to the proposition regarding desirability of association of independent witnesses by the police so as to lend more C.C. No. 14/12 Page No. 29 of 41 credence and authenticity to the case, but there is also no dispute that nonassociation of the independent witnesses per se for any reason whatsoever was in itself not enough to discard the prosecution witnesses or throw away the case as a whole. In the present case, CBI associated two independent witnesses on the written requisition made to the office of NDMC. Since the prosecution/CBI already had two independent witnesses, who had been informed and apprised about the technicalities involved in the procedure during the trap proceedings, it was not necessary for the IO to have joined other public witnesses at the time of apprehension. May be to avoid the risk of such a raw public person getting won over or being unable to understand the proceedings at the last moment of raid, that the IOs usually avoid associating public witnesses at that stage in such type of cases."
25. During the course of the argument, Ld. Defence Counsel also pointed out several lapse on the part of the IO i.e. nonjoining of C.C. No. 14/12 Page No. 30 of 41 independent official witness/public witness as available at the spot in the Raid Proceedings, mentioning of incorrect time in the Arrest Memo of the accused Ashish Garg as compared to the time as mentioned by the witness to said Arrest Memo, the subsequent adding of the words "with purse" in the Personal Search Memo of the accused Ashish Garg, nonexamination of the Assessment Order by the IO and added that same are fatal for the case of the prosecution. I do not find any force in the said submission of Ld. Defence Counsel in view of the fact that the aforesaid lapse on the part of the IO appears to be merely formal in nature and I am of considered view that criminal justice should not be made casualty of lapse committed by the IO and my said view is found nourished from the judgment as rendered by Hon'ble Delhi High Court in the case reported as "2000 (I) A.D. (Delhi) 67 Manoj @ Manu Vs. State of Delhi." In the case reported as "State of Rajasthan Vs. Kishore (1996 SCC (Crl) 646)"
it was observed by Hon'ble Supreme Court of India that mere fact that the investigating officer committed irregularity or illegality during the course of investigation would not and does not cast doubt on the prosecution case nor trustworthy and reliable evidence can be cast aside to record acquittal on that account. Furthermore, in another case reported as "Ram Bihari Yadav Vs. State of Bihar and Ors. C.C. No. 14/12 Page No. 31 of 41 (1998(4) SCC 517)" it was observed by Hon'ble Supreme Court of India as under: "If primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice". The view was again reiterated in "Amar Singh Vs. Balwinder Singh and Ors. (2003 (2) SCC 518)."
26. By taking cue from the aforesaid judgments and keeping in mind that the prosecution has brought on record adequate evidence to establish its case as against the accused, I am of considered view that the lapse on the part of the IO as pointed out by Ld. Defence Counsel cannot be treated as fatal for the case of the prosecution.
27. During the course of the argument, it is submitted by Ld. Counsel for accused persons that as PW9/Raid Officer and PW12/IO have given evasive reply in response to various queries during course of their cross examination on behalf of the accused and therefore, it cannot be treated as trustworthy and reliable. From the perusal of the C.C. No. 14/12 Page No. 32 of 41 deposition of PW9/Inspector Sunder Dev, Raid Officer as well as PW12/Inspector K.S.Pathania, IO, it is reflected that no doubt in response to certain queries by Ld. Defence Counsel, they have given the evasive reply by adding that they do not remember regarding the said aspect but the said response is found on various formal aspects and cannot be treated as striking at the base of the prosecution case and therefore, the same cannot be treated fatal for the case of the prosecution.
28. During the course of the argument, it is submitted by Ld. Counsel for the accused Ved Kukreja that the accused Ved Kukreja is found to have passed Assessment Order in 11 other cases on that day and no other bribe amount could be recovered from said accused by the prosecution and same also establishes the innocence of the accused and false plantation of the envelope containing GC notes of Rs.1500/ by police upon this accused. However, it is submitted by Ld. Addl. PP that the accused Ved Kukreja is found to have passed Assessment Order in various other cases before lunch and therefore, she might have kept the bribe amount received by her in those cases at safer place during lunch hour and therefore, nonrecovery of any bribe in other cases cannot be treated as plus point for this accused C.C. No. 14/12 Page No. 33 of 41 Ved Kukreja.
From the perusal of the deposition of PW4/Girdhari Lal who was posted as Sales Tax Officer (STO) at Ward No.64, it is reflected that said PW4 has deposed inter alia that on 16.3.2006 he was posted as STO in Ward No.64 in Sales Tax Department, ITO, Delhi and Ved Kukreja was posted as ASTO in said Ward. Said PW4 has further deposed that before the Sales Tax Assessment of M/s Shivalik Enterprises Pvt. Ltd., Ved Kukreja has assessed 11 other Sales Tax Assessee as mentioned in Daily Case Diary Ex.PW1/L. Said part of deposition of PW4 is also found corroborated from the contents dated 16.3.2006 of the Daily Case Diary as maintained by accused Ved Kukreja which is Ex.PW1/L. It is further revealed from the record that PW1/Prince Garg, Panch witness has deposed that when they had gone inside the Office Room of the accused Ved Kukreja during lunch hour, 34 persons were found sitting there and accused Ved Kukreja was reported to have gone for lunch. He has further deposed that at about 2:00 p.m. when accused Ved Kukreja came inside her Room, she sent out other persons sitting inside. He has further deposed that after waiting for sometime they found the accused Ashish Garg present inside the Office of the accused Ved C.C. No. 14/12 Page No. 34 of 41 Kukreja. In view of the aforesaid material as available on record, it appears that the accused Ved Kukreja had handled 11 other cases as found mentioned in her Daily Case Diary dated 16.3.2006 Ex.PW1/L before lunch hour and therefore, nonrecovery of any other bribe amount except the bribe amount relating to this case from the Office table of the accused Ved Kukreja cannot be treated as plus point for this accused as she had ample time during lunch hour for removal of the bribe amount if any received by her before lunch. In view of the same, I do not find any force in the submission of Ld. Defence Counsel in this respect.
29. I also do not find any force in the submission of Ld. Counsel for the accused Ved Kukreja that the alleged recovery of the treated GC notes as against the accused Ved Kukreja can be of no help for the prosecution as the envelope containing the bribe amount has been falsely planted by the police. Once the accused is found to have accepted the bribe amount, it is for him/her to explain as to in which capacity he/she has accepted the same.
30. Three Judges Bench of Hon'ble Supreme Court in the case reported as Raughbir Singh V/s State of Punjab AIR 1974 SC 1516 C.C. No. 14/12 Page No. 35 of 41 held that very fact that the accused was in possession of marked currency notes against an allegation that he demanded and received the amount is "res ipsaloquitur".
31. In the case of Dhanvantrai Balwantrai Desai V/s State of Maharashtra, AIR 1964 Supreme Court 575 it was held as under: "Therefore, the court has no choice in the matter, once it is established that the accused person has received a sum of money which was not due to him as a legal remuneration. Of course, it is open to that person to show that though that money was not due to him as legal remuneration, it was legally due to him in some other manner or that he had received it under a transaction or an arrangement which was lawful. The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occurs in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a mere explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be C.C. No. 14/12 Page No. 36 of 41 probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted."
32. Furthermore, it is also useful to refer to the decision of Hon'ble Supreme Court in case of M.Narsinga Rao V/s State of A.P. 2001 (1) SCC 691 rendered by Three Hon'ble Judges of Supreme Court. In that case accused demanded a bribe of Rs. 500/ from a milk transporting contractor for recommending the payment of an amount due to the contractor. The accused was caught red handed while accepting the bribe amount. Accused took the plea that currency notes were stuffed into his pocket. During trial complainant and panch witness did not support the prosecution case and it was argued before Hon'ble High Court that it is not possible to draw any presumption against the delinquent public servant in the absence of direct evidence to show that the public servant demand bribe. The Hon'ble High Court held as under: "It is true that there is no direct evidence in this case that the accused demanded and accepted the money. But the rest of the evidence and the circumstances are sufficient to establish that the accused had accepted the amount and that gives rise to a presumption under Section 20 of the Prevention C.C. No. 14/12 Page No. 37 of 41 of Corruption Act that he accepted the same as illegal gratification, particularly so, when the defence theory put forth is not accepted."
33. Furthermore, in another case reported as B. Noha V/s State of Kerela & Another 2006 VI AD ( Criminal ) 465 ( SC ) it was held in para 10 as under: "that when it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deducted from the facts and circumstances obtained in the particular case." Moreover, in another case reported as State of AP Vs. Kommaraju Gopala Krishna Murthy 2000 (9) SCC 752 it was held that when the amount is found to have 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 herein.
34. Once the accused is found to have received the bribe amount it is for him/her to explain in which capacity he/she has accepted the same. In the present case, the accused Ved Kukreja has C.C. No. 14/12 Page No. 38 of 41 not given any justifiable explanation as to how the envelope containing the bribe amount of Rs.1500/ was lying in the drawer of her Office table from which it was recovered. From the perusal of the record, it is clearly reflected that the accused has neither given any justifiable explanation in her statement U/S 313 Cr.P.C. as to how the bribe amount landed in the drawer of her Office table nor adduced any evidence in her defence in this respect.
35. In view of the aforesaid materials as available on the record, I am of the considered view that the presumption as contemplated U/S 20 of the Prevention of Corruption Act,1988 could not be rebutted by the accused.
36. During course of argument, it is submitted by Ld. Counsel for the accused persons that PW1/Panch witness has joined duty as Panch witness on several occasions and as he is a stock witness and has deposed at the instance of the IO, his deposition cannot be treated as reliable. No doubt, PW1/Prince Garg, Panch witness in his cross examination by Ld. Counsel for the accused Ved Kukreja has deposed that he has remained on duty as Panch witness in AC Branch on other occasions also but said fact itself cannot be a ground for branding him C.C. No. 14/12 Page No. 39 of 41 as a stock witness and throwing out his deposition from the consideration zone. Said PW1 in his cross examination by Ld. Counsel for the accused Ved Kukreja has clearly denied the suggestion that he is not a truthful witness. Similarly, said PW1 in his cross examination by Ld. Counsel for the accused Ashish Garg has specifically denied the suggestion that under the pressure from police, he had made false deposition. Furthermore, it is also revealed from the deposition of said PW1 that as he was found resiling from his earlier statement, he has been cross examined by Ld. Addl. PP and said fact also negate the plea of Defence Counsel that said PW1 has deposed falsely at the instance of the police. Furthermore, said PW1/Prince Garg has joined duty as Panch witness in the Anti Corruption Branch on that day i.e.16.3.2006, only as per the Official Roaster of Panch witness as prepared in the Office of Anti Corruption Branch and not as per the sweet will of said PW1. In view of the same, I do not find any force in the submission of Ld. Counsel for the accused persons to the effect that PW1/Panch witness has joined duty as Panch witness on several occasions and as he is a stock witness and has deposed at the instance of the IO, his deposition cannot be treated as reliable.
C.C. No. 14/12 Page No. 40 of 41
37. The net result of the aforesaid discussion is that the prosecution has been successful in establishing its case as against both the accused persons for the charged offence. Hence, accused Ved Kukreja stands convicted for offence punishable U/S 7 and 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988 and accused Ashish Garg stands convicted for offence punishable U/S 12 of Prevention of Corruption Act, 1988.
Let both these accused Ved Kukreja and Ashish Garg be heard separately on the point of sentence.
Announced in the open court on this 27th day of February, 2012 (B.R. Kedia) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC,Delhi C.C. No. 14/12 Page No. 41 of 41