Delhi District Court
State vs . Harish Chand Bachani on 31 May, 2012
IN THE COURT OF SHRI B.R. KEDIA, SPECIAL JUDGE07
(CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
C.C.NO. : 33/12
Unique Case ID : 02401R0232312007
STATE VS. HARISH CHAND BACHANI
S/o Late Sh. Govind Ram Tillu
Mal Bachani,
R/o 744, Krishi Appartment,
Vikas Puri, Delhi18.
FIR NO. : 43/06
U/S : 7/13 Prevention of Corruption Act,
1988
P.S. : ANTI CORRUPTION BRANCH,
DELHI
Date of Institution 06.03.2007
Judgment reserved on 28.05.2012
Judgment delivered on 31.05.2012
JUDGMENT
1. The precise case of the prosecution is that on dated 12.06.2006 complainant Sh. Chattar Singh Rachhoya S/o Prabhu Ram went to Anti Corruption Branch, Delhi and got lodged his complaint C.C. No. 33/12 Page No. 1 of 48 Ex.PW2/A regarding demand of bribe of Rs.5,000/ by the accused Harish Chand Bachani who was working as Survey Officer in J.J. & Slum Department, MCD, Delhi for forwarding the file regarding allotment of land by Slum and J.J. Department, MCD for Rachhoya Public School, Nangloi.
2. The gist of the said complaint is that the complainant was the President of Anusuchit Jati Vikas Sangathan (Regd.) having Office in PhaseII, Nangloi and was running a School in the name of Rachhoya Public School and had applied in Slum & J.J. Department, Delhi for the allotment of land for said School. As the officials of Slum & J.J. Department had declined for allotment of land, he met several dignitaries and on their recommendations, Slum & J.J. Department agreed for allotment of land for their School. On 5.6.2006 Sh.Virender Singh, Surveyor came at the site at BBlock, Nangloi and took measurement and submitted his report to the accused Harish Chand Bachani. Thereafter on 7.6.06 the complainant met the accused, who demanded Rs.5000/ as bribe for doing the needful. Again on 8.6.06 when the complainant contacted the accused through phone, the accused reiterated his said demand of bribe of Rs. 5000/ for forwarding the file after doing the needful and asked him to C.C. No. 33/12 Page No. 2 of 48 bring said amount on 12.6.06 between 2:30 to 3:00 p.m. at his Office. Since the complainant was against giving of bribe, he went to Anti Corruption Branch and got his complaint lodged before the then Inspector Sukhbir Singh, Raid Officer PW9 in presence of Panch witness Jai Prakash Sharma, PW3.
3. The further case of the prosecution is that the complainant has produced 10 GC notes of Rs. 500/ each before the Raid Officer PW9 who noted down the serial number of said GC notes in the pre raid proceedings Ex.PW2/B and treated the said GC notes with phenolphthalein powder. Thereafter, Raid Officer PW9 gave demonstration to the Panch witness, complainant by getting touched the right hand of the Panch witness with that treated currency notes and wash of the right hand of the Panch witness in the colourless solution of sodium carbonate which turned into pink. Thereafter, said GC notes were handed over to the complainant and Panch witness was instructed to remain close with the complainant and to overhear the conversation between the complainant and the person demanding the bribe amount and to give signal by moving his right hand over his head twice after being satisfied that the bribe has actually been given. C.C. No. 33/12 Page No. 3 of 48
4. That at about 1:45 p.m., PW9 Raid Officer along with complainant, Panch witness, Inspector Sunil Kumar and other members of the raiding party left Anti Corruption Branch in a government vehicle and reached near Slum & J.J.Department, Vikas Kutir, ITO, Delhi at about 2:10 p.m. Government vehicle was parked at some distance, Inspector Sunil Kumar alongwith the Driver remained in the vehicle. Complainant and Panch witness went inside the Office of Slum & J.J. Department, Vikas Kutir, ITO and the members of the Raiding team took suitable position.
5. The further case of the prosecution is that at about 2:35 p.m. on receiving the predetermined signal from Panch witness, Raid Officer alongwith the raiding team reached the spot where Panch witness informed that the accused had demanded and accepted bribe of Rs.5000/ from the complainant with his right hand and then kept in left hand and then kept in upper left back pocket of his pant by his left hand. Thereafter, Raid Officer after disclosing his identity challenged the accused that he had demanded and accepted the bribe of Rs.5000/ from the complainant and offered his search but accused declined. On his directions, Panch witness recovered bribe amount of Rs.5000/ from the upper left back pocket of pant of the accused and C.C. No. 33/12 Page No. 4 of 48 compared the serial number of that GC notes with serial number mentioned in pre raid proceedings Ex.PW2/B and the same tallied. That recovered GC notes were taken into possession vide seizure memo Ex.PW2/C. The wash of right hand of the accused was taken in colorless solution of sodium carbonate which turned into pink and solution was transferred into two empty small clean bottles which were sealed with the seal of SS and were marked as RHWI & RHW II by pasting slips thereon which were signed by Raid Officer, complainant and Panch witness. The wash of left hand of the accused was taken in colorless solution of sodium carbonate which turned into pink and solution was transferred into two empty small clean bottles which were sealed with the seal of SS and were marked as LHWI & LHWII by pasting slips thereon which were signed by Raid Officer, complainant and Panch witness. Thereafter, wash of upper left back pocket of pant of the accused was also taken in colorless solution of sodium carbonate which turned into pink and solution was transferred into two empty small clean bottles which were sealed with the seal of SS and were marked as LSHPPWI & LSHPPWII by pasting slips thereon which were signed by Raid Officer, complainant and Panch witness. Those bottles, pullanda of pant of accused and sample seal were taken into possession vide Seizure Memo Ex.PW2/D. The Raid C.C. No. 33/12 Page No. 5 of 48 Officer also drawn up the post raid proceedings which is Ex.PW2/E and prepared rukka Ex.PW9/A and sent the same through Ct. Kapil Dev to PS Anti Corruption Branch for registration of the case.
6. The further case of the prosecution is that the Raid Officer called Inspector Sunil Kumar PW5, IO at the spot and handed over him the custody of the accused, case property and relevant documents etc. for purpose of Investigation. I.O. took up the Investigation, prepared the Site Plan Ex.PW5/A. IO recorded the statement of complainant and Panch witness, interrogated the accused and arrested the accused vide Memo Ex.PW2/F and conducted the personal search of the accused vide Personal Search Memo Ex.PW2/G. IO seized copy of Original Noting of Rachhoya Public School which is Ex.PW2/H. IO received original rukka and copy of FIR Ex.PW5/B, got accused medically examined and thereafter, went to PS Civil Line where he deposited the case property, exhibits and articles of personal search with the MHC(M) and the accused was put in the lock up. During the course of Investigation, IO seized copies of the Letter containing 15 pages vide Seizure Memo Ex.PW2/J. Relevant exhibits were sent to FSL for chemical analysis and later on FSL Report Ex.PW10/A was received. IO also obtained the Sanction Order C.C. No. 33/12 Page No. 6 of 48 Ex.PW6/A. IO on recording the statement of the witnesses and after completion of the Investigation, prepared the chargesheet and filed in the court.
7. 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 against accused on 14.01.2008 to which accused pleaded not guilty and claimed trial.
8. Thereafter, in order to bring home the guilt of the accused, the prosecution got examined 10 prosecution witnesses namely Ct.Kapil Dev, a formal witness as PW1, Chattar Singh Rachhoya, complainant as PW2, Jai Prakash Sharma, Panch witness as PW3, Virender Singh from Slum & J.J. Department, a formal witness as PW4, Inspector Sunil Kumar, IO as PW5, Ashok Kumar, Vice Chairman, DDA, Sanctioning Authority as PW6, HC Shokat Ali, a formal witness as PW7, ASI Ranjit Singh, a formal witness as PW8, The then Inspector Sukhbir Singh, Raid Officer as PW9 and Inspector Harish Kumar, the last IO as PW10.
C.C. No. 33/12 Page No. 7 of 48
9. After closure of the PE, statement of accused under Section 313 Cr.P.C. was recorded in which the accused denied about any demand and acceptance of the bribe from the complainant. Accused claimed to be falsely implicated in this case having no concern with the alleged offence.
10. I have heard Final Arguments as addressed by Sh. Ajay Burman, Adv. Ld. Counsel for the accused and Sh.Vinod Kumar Sharma, Ld. Addl. PP for the State and perused the relevant record.
11. It is submitted by Ld. Counsel for the accused that this accused Harish Chand Bachani is innocent and has neither demanded nor accepted any bribe from the complainant Chattar Singh Rachhoya. It is further added by him that the complainant has falsely implicated this accused due to malafide motive and the complainant is not reliable being interested witness and is an accomplice and he is habitual in lodging similar Complaints against public servants as he has lodged Complaint in the case baring FIR No.8/2001 dated 2.2.2001, PS AC Branch, copy of which is Ex.DW1/A and has also lodged an FIR relating to Crime No. RC/DAI/2001A0028 dated 16.3.2001, copy of which is Ex.D2. It is also added by him that the C.C. No. 33/12 Page No. 8 of 48 Sanction Order Ex.PW6/A concerning this accused has been passed by the Sanctioning Authority mechanically without proper application of his mind on the material on record and therefore, the said Sanction Order is legally invalid. It is further added by him that this accused Harish Chand Bachani was merely posted as Survey Officer in J.J. & Slum Department, MCD and he was not competent to allot the land for the School of the complainant as after the approval of the proposal by the Standing Committee, it is the Commissioner who was competent to allot the land for the School and therefore, there was no occasion on the part of this accused to demand and accept any bribe from the complainant. It is further added by him that though the complainant stated to have talked to the accused through his mobile phone on 8.6.2006 in which the accused alleged to have reiterated the demand of Rs.5000/ from the complainant but the IO has not bothered to collect mobile call record of the accused and the complainant in this respect and same are fatal for the case of the prosecution. It is also added by him that there are several contradictions in the deposition of various PWs on different aspects and same falsify the case of the prosecution. It is also added by him that the Raid Officer being a police official is interested for success of his raid and therefore, his deposition cannot be treated as trustworthy C.C. No. 33/12 Page No. 9 of 48 and reliable. It is also added by him that the contents of the Complaint Ex.PW2/A is false and motivated and there was no occasion on the part of the accused to demand any bribe from the accused as PW4 Virender Singh has submitted his Report on 12.6.06. It is also submitted by Ld. Counsel for the accused that since in the present case the Investigation has been conducted by the Officer of the rank of Inspector and not ACP and therefore, in view of Section 17 of Prevention of Corruption Act, 1988, the IO was not competent to conduct Investigation and hence, it vitiate the entire trial and moved an application in this respect. Ld. Counsel thus urged for acquittal of this accused and referred and relied upon certain judgments: 2007 (2) JCC 1315, 1988 Cr.L.J.756, 1979 Cr.L.J.1087, 1981 Cr.L.J. NOC 160, AIR 1992 SC 644, 2010 Cr.L.J. 2419, 2005 Cr.L.J. 4834, 1992 Cr.L.J.498, 1994 Cr.L.J.3738.
12. To the contrary, it is submitted by Ld. Addl. PP for the State that the prosecution by examining 10 PWs have clearly established its case as against this accused and therefore, the accused deserves to be convicted for the charged offence. It is further added by Ld. Addl. PP for the State that the prosecution has clearly established its case regarding demand and acceptance of the bribe as against this accused C.C. No. 33/12 Page No. 10 of 48 from the complainant through the deposition of PW2/Chattar Singh Rachhoya, complainant, PW3/ Jai Prakash Sharma,Panch witness PW9/the then Inspector Sukhbir Singh, Raid Officer and PW5 Inspector Sunil Kumar/IO and there is no reason to disbelieve them. It is further added by Ld. Addl. PP that there is no reason as to why PW2/Chattar Singh Rachhoya, complainant, PW3/ Jai Prakash Sharma,Panch witness PW9/the then Inspector Sukhbir Singh, Raid Officer and PW5 Inspector Sunil Kumar/IO would falsely implicate the accused specifically when there is no previous enmity as against this accused by them. It is further added by Ld. Addl. PP that the Sanctioning Authority, PW6 has passed the valid Sanction as against this accused after due appreciation of the relevant materials and therefore, there is no infirmity in the said Sanction Order Ex.PW6/A. It is further added by Ld. Addl. PP that mere discrepancy in the deposition of certain PWs as pointed out by Ld. Counsel for the accused are merely formal in nature and is because of the time gap between the period of incident and deposition of PWs in the court and the case of the prosecution cannot be thrown out merely on the said ground. Ld. Addl. PP for the State has added that the prosecution has been successful in establishing its case as against the accused for the charged offence and hence, he deserves to be convicted. C.C. No. 33/12 Page No. 11 of 48
13. The first and foremost question having significant bearing on the fate of this case is whether prosecution has proved that valid Sanction has been accorded by the Competent Authority as against this accused as per Section 19 (1) of Prevention of Corruption Act, 1988. During course of argument, it is submitted by Ld. Counsel for the accused Sanction Order Ex.PW6/A concerning this accused has been passed by the Sanctioning Authority mechanically without proper application of his mind on the material on record and therefore, the said Sanction Order is legally invalid. To the contrary, it is submitted by Ld. Addl. PP on behalf of the State that the Sanctioning Authority, PW6 has passed the valid Sanction as against this accused after due appreciation of the relevant materials and therefore, there is no infirmity in the said Sanction Order Ex.PW6/A.
14. That in order to prove the Sanction concerning this accused, the prosecution has examined PW6 Sh.Ashok Kumar, the then Commissioner, MCD, Delhi who has categorically deposed that Harish Chand Bachani who was working in the capacity of SO in J.J.& Slum Department, MCD, Delhi had allegedly demanded Rs. 5000/ from the complainant Chattar Singh Rachhoya as an illegal gratification for allotment of the land for the purpose of their School C.C. No. 33/12 Page No. 12 of 48 and on the basis of said Complaint, Raid was conducted by AC Branch on 12.6.06 and accused was caught red handed while demanding and obtaining bribe of Rs.5000/. Said PW6 further deposed that he being the Authority competent to remove the accused Harish Chand Bachani from service/office, after examining carefully the material as placed before him i.e. Complaint, FIR, Statement of witnesses, documents collected during Investigation with regard to the said act and allegation and circumstances of the case and after due application of mind, he has accorded the Sanction U/S 19 of Prevention of Corruption Act, 1988 to prosecute accused Harish Chand Bachani vide Sanction Order Ex.PW6/A which bears his signature at point A. In the cross examination by Ld. Defence Counsel, said PW6 has added that he was Commissioner of MCD in 2006 and during his tenure Slum & J.J. Department was under MCD and the accused was working in said Slum & J.J. Department. Said PW6 has denied the suggestion of Ld. Defence Counsel that he had not gone through the relevant documents and had accorded the Sanction on the basis of the draft as placed before him. He has also denied the suggestion that he has accorded the Sanction mechanically and without application of mind. Furthermore, from the perusal of the Sanction Order Ex.PW6/A, it is also reflected that all the relevant C.C. No. 33/12 Page No. 13 of 48 facts concerning the allegation as against the accused have been duly found mentioned therein.
15. 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.
16. 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."
C.C. No. 33/12 Page No. 14 of 48
17. 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 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 C.C. No. 33/12 Page No. 15 of 48 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 submission of the learned counsel that the sanctioning order to prosecute the appellant was not legal".
18. By taking cue from the aforesaid judgment 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 has been passed mechanically as I am of considered view that the Sanction concerning the accused Harish Chand Bachani has been validly granted by PW6 Sh.Ashok Kumar, the then Commissioner, MCD, Delhi who was competent to do so.
19. During the course of the argument, it is submitted by Ld. Counsel for the accused that this accused Harish Chand Bachani is innocent and has neither demanded nor accepted any bribe from the complainant Chattar Singh Rachhoya. It is further added by him that the complainant has falsely implicated this accused due to malafide motive and the complainant is not reliable being interested witness and is an accomplice and he is habitual in lodging similar Complaints C.C. No. 33/12 Page No. 16 of 48 against public servants as he has lodged Complaint in the case baring FIR No.8/2001 dated 2.2.2001, PS AC Branch, copy of which is Ex.DW1/A and has also lodged an FIR relating to Crime No. RC/DA I/2001A0028 dated 16.3.2001, copy of which is Ex.D2. It is also added by him that the contents of the Complaint Ex.PW2/A is false and motivated and there was no occasion on the part of the accused to demand any bribe from the accused as PW4 Virender Singh has submitted his Report on 12.6.06. To the contrary, it is submitted by Ld. Addl. PP for the State that the prosecution has clearly established its case regarding demand and acceptance of the bribe as against this accused from the complainant through the deposition of PW2/Chattar Singh Rachhoya, complainant, PW3/ Jai Prakash Sharma,Panch witness PW9/the then Inspector Sukhbir Singh, Raid Officer and PW5 Inspector Sunil Kumar/IO and there is no reason to disbelieve them. It is further added by Ld. Addl. PP that there is no reason as to why PW2/Chattar Singh Rachhoya, complainant, PW3/ Jai Prakash Sharma, Panch witness PW9/the then Inspector Sukhbir Singh, Raid Officer and PW5 Inspector Sunil Kumar/IO would falsely implicate the accused specifically when there is no previous enmity as against this accused by them.
C.C. No. 33/12 Page No. 17 of 48
20. In order to prove that the accused had demanded and accepted the bribe amount from the complainant, the prosecution is found to have examined PW2 Chattar Singh Rachhoya, complainant, PW3 Jai Prakash Sharma, Panch witness and PW9 Inspector Sukhbir Singh/Raid Officer. PW3 Jai Prakash Sharma, Panch witness has clearly deposed before the court that on dated 12.6.2006 he was on duty as a Panch witness in the Anti Corruption Branch and complainant Chattar Singh Rachhoya got lodged his Complaint Ex.PW2/A bearing his signature at point B. Said PW3 has also narrated about the Pre Raid Proceedings Ex.PW2/B bearing his signatures at point B. He further deposed that at about 01:45 p.m. he alongwith the complainant and other members of the raiding team left the Anti Corruption Branch in a vehicle and reached at ITO, Slum & J.J. Department, MCD, Delhi at about 2:10 p.m. and vehicle was parked at some distance. He further deposed that he alongwith the complainant went inside the Room of the accused and other members took suitable position. Accused was not present at his seat at that time but after sometime accused came at his seat. He further deposed that the accused called the file of the complainant and put a noting on the file and signed the same and cleared the same in his presence. As regards the demand and acceptance of the bribe by the accused said C.C. No. 33/12 Page No. 18 of 48 PW3 Jai Prakash Sharma, Panch witness has specifically deposed in this respect as under: "After completion of file, accused demanded the bribe amount. Thereafter, complainant took out the GC notes from the front left pocket of his kurta and handed over to the accused which was accepted by him in his right hand and thereafter he shifted the same in his left hand and then the accused kept those GC notes in the left back pocket of his pant."
21. Said PW3 Panch witness has further deposed that on his giving predetermined signal, Raid Officer and other members of the raiding party reached the spot and informed him that accused had taken the GC notes of Rs.5000/ from the complainant. He has also deposed about the recovery of said GC notes of Rs.5000/ from the accused vide Seizure Memo Ex.PW2/C. He also deposed about taking of both hand wash and wash of the back pant pocket of the accused and transferring of the said washes in the bottles. He has also deposed that the recovered GC notes were taken into possession vide Memo Ex.PW2/C which bears his signature at point B. He has also deposed that the sealed bottles and the pullanda of the pant of the C.C. No. 33/12 Page No. 19 of 48 accused were taken into possession vide seizure memo Ex.PW2/D which bears his signature at point B. He also deposed about the drawing the Post Raid Proceedings by the Raid Officer Ex.PW2/E which bears his signature at point B. He also deposed about the arrest of the accused vide Memo Ex.PW2/F and personal search of accused vide Memo Ex.PW2/G which bears his signature at point B. He also deposed that photocopies of the File Mark A were seized vide Seizure Memo Ex.PW2/H which bears his signature at point B. Said PW3 has duly identified said 10 GC notes in the denomination of Rs.500/ each as Ex.P1 to P10 as the same GC notes which were recovered from the left back pocket of pant of the accused. Said PW3 on seeing the labels of six sealed bottles mark RHWI & II, LHWI & II, LSHPPW I & II Ex.P11 to P16 deposed that same bear his signature at point B and same were prepared by the Raid Officer in his presence. He has also identified the pant of the accused as Ex.P17 and pullanda of the pant as Ex.P18. Said PW3/Panch witness in his cross examination of Ld. Defence Counsel has specifically denied the suggestion that the accused has neither demanded nor accepted any amount from the complainant or that no recovery was made in his presence or that no PreRaid Proceedings and Post Raid Proceedings were conducted as stated by him as said PW3 has deposed in this respect as under: C.C. No. 33/12 Page No. 20 of 48 "It is further incorrect to suggest that no recovery was made in my presence. It is incorrect to suggest that neither any demand or acceptance was made by accused in my presence. It is incorrect to suggest that neither preraid proceedings nor post raid proceedings were conducted as stated by me in examination in chief. It is incorrect to suggest that all the writing work was done at AC Branch. It is further incorrect to suggest that I had signed on the documents after it were prepared postraid in the AC Branch. It is incorrect to suggest that I have deposed falsely."
22. PW2/Chatter Singh Rachhoya, complainant has clearly deposed before the court that in the year 2006 he was the President of Anusuchit Jati Vikas Sangathan (Regd.) having his Office in PhaseII, Nangloi and a School was being run by the organisation in the name and style of Rachhoya Public School. He further deposed that said organisation has applied for land in Slum & J.J. Department, MCD for their School but it was declined and thereafter, they contacted several dignitaries on which Slum and J.J. Department agreed for allotment of the land in BBlock, Nangloi. He further deposed that Virender Singh, Surveyor came on 5.6.06 and took some measurements and C.C. No. 33/12 Page No. 21 of 48 submitted his report to the accused H.C.Bachani, Surveyor Officer of Slum & J.J. Department. Said PW2 further deposed that on 7.6.06 he met accused who demanded Rs.5000/ towards bribe for allotment of the land to them. As regards the initial demand of bribe of Rs.5000/ by the accused for allotment of the land, PW2/complainant has specifically deposed as under: "On 7.6.06, I met with H.C. Bachani accused is present in the court today, correctly identified. Accused demanded Rs. 5000/ as bribe for allotting the land to us. On 8.6.06 I again contacted the accused on telephone and he repeated his demand and told me that when I would give the bribe then he would send the documents for further proceedings. Accused asked me to come on 12.6.06 in the afternoon along with the bribe money."
23. Said PW2/complainant further deposed that as he was against giving of bribe so he went to Anti Corruption Branch on 12.6.2006 at about 11:30 a.m. and lodged his Complaint Ex.PW2/A which bears his signature at point A, in presence of one Panch witness Jai Prakash Sharma to Inspector Sukhbir Singh/Raid Officer. He also deposed that he had handed over 10 GC notes of Rs.500/ each to the C.C. No. 33/12 Page No. 22 of 48 Raid Officer and narrated about the Pre Raid Report Ex.PW2/B bearing his signature at point A. He also deposed that he along with the Panch witness, Raid Officer and other members of the raiding team left Anti Corruption Branch at about 01:45 p.m. for the Office of the accused at Vikas Kutir ITO, and reached within 1520 minutes. He further deposed that he along with the Panch witness went inside the Room of the accused and members of the raiding team remained outside. Said PW2 regarding demand and acceptance of bribe by the accused has specifically deposed as under: "I asked the accused about my work and he called the file. I informed the accused that whatever has been demanded by him. Thereafter, accused asked me to give the bribe amount and he wrote something on the file and thereafter I gave those treated GC notes in the right hand of the accused which he transferred in his left and kept the same in the left back pocket of his pant."
24. Said PW2/complainant has also deposed about the Post Raid Proceedings Ex.PW2/E bearing his signature at point A. He specifically has deposed that treated GC notes as recovered from the back pant pocket of the accused was seized vide memo Ex.PW2/C C.C. No. 33/12 Page No. 23 of 48 bearing his signature at point A and serial numbers of the said GC notes tallied with the serial numbers as mentioned in Pre Raid Report. He has also deposed about taking of the both hand wash and back pant pocket wash of the accused turning pink colour and transferring of the said washes in six bottles which were sealed and marked paper slips were pasted on those bottles which were signed by Panch witness, Raid Officer as well as by himself and said bottles were taken into possession vide Seizure Memo Ex.PW2/D. Said PW2/complainant has also deposed regarding arrest of the accused vide Memo Ex.PW2/F and his personal search vide Memo Ex.PW2/G which bears his signature at point A. He also deposed about seizure of the photocopies of the File Mark A vide Seizure memo Ex.PW2/H which bears his signature at point A.
25. Said PW2/complainant has clearly identified the 10 GC notes of Rs.500/ each as recovered from the left back pant pocket of the accused as Ex.P1 to P10, Six sealed bottles containing washes mark RHWI & II, LHWI & II and LSHPPWI & II as Ex.P11 to P16, pant of the accused as Ex.P17 and pullanda of the pant of the accused as Ex.P18. Said PW2 in his cross examination by Ld. Defence Counsel has specifically denied the suggestion that the C.C. No. 33/12 Page No. 24 of 48 accused has neither demanded nor accepted any money from him and that no money was recovered from the accused as he has specifically deposed in this respect as under: "It is wrong to suggest that I had lodged a false complaint on 12.06.2006. It is wrong to suggest that neither accused demanded, nor accepted any money. It is further wrong to suggest that no money was recovered from the accused. It is further wrong to suggest that the washes on the pant and the hands have been manipulated. It is wrong to suggest that I am deposing falsely."
26. The material part of the deposition of PW3 Panch witness and PW2/complainant also found corroborated from the deposition of PW9 Inspector Sukhbir Singh, Raid Officer. PW9 Inspector Sukhbir Singh, Raid Officer is found to have deposed regarding lodging of the complaint Ex.PW2/A by the complainant in the presence of Panch witness Jai Prakash Sharma on dated 12.06.2006 and thereafter, the preraid proceeding Ex.PW2/B was carried out by him. Said PW9 further deposed that at about 1:45 p.m. he alongwith the complainant, Panch witness and other members of raiding team left Anti Corruption Branch and reached Office of Slum & J.J.Department, C.C. No. 33/12 Page No. 25 of 48 Vikas Kutir, ITO, Delhi and parked vehicle at some distance and Inspector Sunil Kumar and Driver remained in the vehicle. He further deposed that complainant and Panch witness went inside the Office of the accused and he alongwith other members of raiding team took suitable position. He further deposed that at about 2:35 p.m. on receiving the predetermined signal given by Panch witness, he alongwith raiding team reached the spot and he was informed that the accused had demanded and accepted Rs.5000/ as bribe from the complainant with his right hand and then kept in his left hand and then kept the same in the upper left back pocket of his pant by his left hand. He also deposed that on his instruction Panch witness recovered the bribe amount of Rs. 5000/ from the accused and on checking, the numbers of the recovered GC notes found tallied with the numbers as noted in preraid report. He also deposed that GC notes were seized vide Seizure Memo Ex.PW2/C bearing his signature at point C. He also deposed about the postraid proceeding Ex.PW2/E bearing his signature at point C and seizure of the six bottles containing both hand wash and wash of upper left back pocket of pant of the accused vide Seizure Memo Ex.PW2/D bearing his signatures at point C. He has clearly identified the said recovered GC notes as Ex.P1 to P10, six sealed bottles mark RHWI & II, LHWI C.C. No. 33/12 Page No. 26 of 48 & II and LSHPPWI & II containing both hand wash and upper left back pant pocket wash of the accused as Ex.P11 to P16.
27. From the perusal of the deposition of PW2/complainant, PW3/Panch witness and PW9/Raid Officer, it is clearly reflected that the Raid Officer, PW9 the then Inspector Sukhbir Singh has drawn the Post Raid Proceedings Ex.PW2/E which found bear the signature of the PW2/complainant at point A and that of PW3/Panch witness at point B and that of the PW9/ Raid Officer at point C.
28. I am of the considered view that said Post Raid Proceedings Ex.PW2/E being in the nature of Panchnama which is duly signed by the complainant and Panch witness is duly admissible and reference can be made to the case of Santa Singh vs. State of Punjab AIR 1956 Supreme Court 526 wherein it was held that mere presence of the police officer when a statement is made does not by itself render such a statement inadmissible. So long as a panchnama is a mere record of the things heard and seen by panchas and does not constitute a statement communicated to a police officer in the course of investigation by him and it would not fall within the mischief of section 162 of the Code.
C.C. No. 33/12 Page No. 27 of 48
29. From the perusal of the said Post Raid Proceedings Ex.PW2/E, it is clearly reflected that the accused Harish Chand Bachani had accepted the bribe amount of Rs.5000/ from the complainant and said amount has been recovered by the Panch witness from the left upper back pant pocket of the accused Harish Chand Bachani and the serial number of those GC notes found tallied with the serial number as mentioned in the Pre Raid Proceedings Ex.PW2/B and said recovered GC notes were seized vide Seizure Memo Ex.PW2/C.
30. It is also revealed from the record that both hand wash and left upper back pant pocket wash of accused with colourless solution of sodium carbonate were taken and the same turned into pink colour and said wash vide Ex.RHWI, LHWI and LSHPPWI gave positive test for the presence of phenolphthalein and sodium carbonate as per FSL Report Ex.PW10/A which establish that the said treated 10 currency notes of Rs.500/ each were handled and accepted by the accused and same were recovered from him.
31. In view of the above material as available on record, I am of the considered view that the factum regarding the demand and C.C. No. 33/12 Page No. 28 of 48 acceptance of bribe of Rs.5000/ by the accused from the complainant have been found established from the deposition of PW2/Chattar Singh Rachhoya, complainant, PW3/Jai Prakash Sharma, Panch witness, PW9 Inspector Sukhbir Singh, Raid Officer coupled with the content of Complaint Ex.PW2/A, Seizure Memo of the GC notes Ex.PW2/C, Seizure Memo of six bottles marked as Ex.RHWI & II, LHWI&II, LSHPPWI & II and pullanda of pant and sample seal vide Ex.PW2/D, Post Raid Proceedings Ex.PW2/E.
32. During the course of the argument, it is submitted by Ld. Counsel that this accused Harish Chand Bachani was merely posted as Survey Officer in J.J. & Slum Department, MCD and he was not competent to allot the land for the School of the complainant as after the approval of the proposal by the Standing Committee, it is the Commissioner who was competent to allot the land for the School and therefore, there was no occasion on the part of this accused to demand and accept any bribe from the complainant. As regards the initial demand of bribe of Rs.5000/ by the accused for allotment of the land, PW2/complainant has specifically deposed as under: "On 7.6.06, I met with H.C. Bachani accused is present in the court today, correctly identified. Accused demanded Rs. C.C. No. 33/12 Page No. 29 of 48 5000/ as bribe for allotting the land to us. On 8.6.06 I again contacted the accused on telephone and he repeated his demand and told me that when I would give the bribe then he would send the documents for further proceedings. Accused asked me to come on 12.6.06 in the afternoon along with the bribe money."
Said PW2/complainant further deposed that as he was against giving of bribe so he went to Anti Corruption Branch on 12.6.06 at about 11:30 a.m. and lodged his Complaint Ex.PW2/A which bears his signature at point A, in presence of Panch witness, Jai Prakash Sharma before Inspector Sukhbir Singh, Raid Officer.
33. Besides this, law is well settled that it does not matter whether the public servant was competent to do the work or not and reference can be placed in the case reported as Chaturdas Bhagwandas Patel Vs. State of Gujrat, 1976(3) SCC 46 as referred in State of Andhra Pradesh Vs. C. Uma Maheshwar Rao and Anr. 2004, V AD (SC) 176, wherein it has been held by Hon'ble Supreme Court of India that the question whether a person has an authority to do the act for which bribe is accepted, is of no consequence. In the case reported as Gopal Singh Vs. CBI, ILR (2005) II Delhi 35, It C.C. No. 33/12 Page No. 30 of 48 was observed by the Hon'ble Delhi High Court in Para 22 as under: "It has to be added that in cases under PC Act, the prosecution is under no obligation to prove that a public servant demanding bribe was in a position to help the person from whom the bribe was being demanded. The prosecution succeed the moment it is shown that a public servant had accepted some money from someone which was not legal remuneration. The presumption U/S 20 of the Act comes into play shifting the burden upon the public servant to explain as to why he had received the money. A public servant may misguide, mislead or befool his victim to pay him illegal gratification knowing fully well that he is not in a position to help him and as such it can be no defence for him to say that since he was not in a position to help the complainant/victim the money received by him does not amount to illegal gratification."
34. During the course of arguments, it is submitted by Ld. Counsel for the accused that the complainant has falsely implicated this accused due to malafide motive and the complainant is not C.C. No. 33/12 Page No. 31 of 48 reliable being interested witness and is an accomplice and he is habitual in lodging similar Complaints against public servants as he has lodged Complaint in the case baring FIR No.8/2001 dated 2.2.2001, PS AC Branch, copy of which is Ex.DW1/A and has also lodged an FIR relating to Crime No. RC/DAI/2001A0028 dated 16.3.2001, copy of which is Ex.D2. The mere fact that the complainant has also lodged Complaint in the aforesaid two cases, cannot be a ground for disbelieving the deposition of the complainant specifically when the concerned trial court have rendered judgment in the nature of conviction against the accused therein and appeals are stated to be pending before the Hon'ble High Court. So far as the contention of Ld. Counsel for the accused that the statement of complainant being an accomplice cannot be acted upon without corroboration is concerned it is appropriate to refer to the case of Dewan @ Vasudeva and etc. V/s The State 1988 Crl. L.J. 1005 where it was held by Hon'ble High court of Kerala as under : ''True, the person who pays the gratification is, in a way, an accomplice in the offence, when his role is viewed from a wide angle. But before his evidence is dubbed as unworthy of credit without corroboration, a pragmatic or realistic approach has to be made C.C. No. 33/12 Page No. 32 of 48 towards such evidence. If the bribegiver voluntarily goes to the offender and persuades him to accept the bribe, his position is that of an undiluted accomplice and it is a rule of prudence to insist on independent corroboration such evidence. On the other hand, if the giver of gratification was persuaded to give it, he actually becomes a victim of persuasion by the offender. To name him an accomplice and to reject his testimony due to want of corroboration, would sometimes, be unrealistic and imprudent. The court must always bear in mind that insistence on corroboration for the evidence of accomplice is not on account of any rule of law, but is a caution of prudence. The density of the stigma to be attached to a witness as an accomplice depends upon the degree of his complicity in the offence. Suspicion towards his role as an accomplice should vary according to the extent and nature of his complicity. It must be considered in each case whether the bribe giving or payment of gratification was done in such a way that C.C. No. 33/12 Page No. 33 of 48 independent persons had no occasion to witness such acts. ''
35. Furthermore, the Hon'ble Supreme Court in case of M. O. Shamshuddin V/s State of Kerela 1995 ( 2 ) Crimes 284 considered the aspect and the Hon'ble Supreme Court in para 11 has held as under : "Now confining ourself to the case of bribery it is generally accepted that the person offering a bribe to a public officer is in the nature of an accomplice in the offence of accepting illegal gratification but the nature of corroboration required in such case should not be subjected to the same rigorous tests which are generally applied to a case of an approver. Though bribe givers are generally treated to be treated in the nature of accomplices but among them there are various types and gradation In case under the Prevention of corruption Act the complainant is the person who gives the bribe in a technical and legal sense because in every trap case whereever the complainant is filed there must be a person who has to give money to the accused which in fact is the bribe money which is C.C. No. 33/12 Page No. 34 of 48 demanded and without such a giving the trap cannot be succeed. When there is such a demand by the public servant from a person who is unwilling and if to do public good approaches the authorities and lodges complaint then in order that the trap succeeds he has to give the money. There could be another type of bribe giver who is always willing to give money in oder to get his work done and having got the work done he may send a complaint. Here he is a particeps criminis in respect of the crime committed and thus is an accomplice. Thus there are grades and grades of accomplices and therefore a distinction could as well be drawn between cases where a person offers a bribe to achieve his own purpose and where one is forced to offer bribe under a threat or loss or harm that is to say under coercion. A person who falls in this category and who becomes a party for laying a trap stands on a different footing because he is only a victim of threat or coercion to which he was subjected to. Where such witnesses fall under the category of "accomplices' by reason of their being bribe givers, in the first instance the court has to consider the degree of complicity and then look for corroboration if necessary as a C.C. No. 33/12 Page No. 35 of 48 rule of prudence. The extent and nature of corroboration that may be needed in a case may vary having regard to the facts and circumstances".
From the deposition of PWs, it is clearly reflected that the deposition of complainant/PW2 regarding the demand and acceptance of the bribe by the accused from the complainant is also found corroborated from the deposition of PW3/Jai Prakash Sharma, Panch witness who has specifically deposed in this respect as under: "After completion of file, accused demanded the bribe amount. Thereafter, complainant took out the GC notes from the front left pocket of his kurta and handed over to the accused which was accepted by him in his right hand and thereafter he shifted the same in his left hand and then the accused kept those GC notes in the left back pocket of his pant."
Besides this, the deposition of the PW2/complainant regarding the recovery of the tainted GC notes of Rs.5000/ from the back pant pocket of the accused and seizure of the said GC notes vide Seizure Memo Ex.PW2/C are found corroborated from the deposition of PW3/Panch witness as well as PW9/Raid Officer. In view of the same, I do not find any force in the submission of Ld. Counsel for the accused for not relying upon the deposition of the complainant in this C.C. No. 33/12 Page No. 36 of 48 respect.
36. During the course of the argument, it is submitted by Ld. Counsel for the accused that though the complainant is stated to have talked to the accused through his mobile phone on 8.6.06 in which the accused alleged to have reiterated the demand of bribe of Rs.5000/ from the complainant but IO has not bothered to collect mobile call record of the accused and the complainant in this respect and same are fatal for the case of the prosecution. From the perusal of the deposition of PW2/Chattar Singh Rachhoya,complainant, it is clearly reflected that he has deposed on 7.6.06 when he met accused, he demanded Rs.5000/ as bribe for getting allotment of land. Said PW2/complainant has specifically deposed that on 8.6.06 when he again contacted the accused on telephone, accused repeated his demand and told him that when bribe would be given, he would get the documents for further proceedings and accused asked him to come on 12.6.06 in the afternoon alongwith the bribe money. Said PW2/complainant further deposed that as he was against giving of bribe, he went to AC Branch on 12.6.06 at about 11:30 a.m. and got lodged his Complaint Ex.PW2/A in presence of Panch witness/Jai Prakash Sharma. The aforesaid deposition of PW2 is also found C.C. No. 33/12 Page No. 37 of 48 corroborated from the contents of the Complaint Ex.PW2/A.
37. In view of the aforesaid material as available on record, I am of the considered view that mere lapse on the part of the IO for not collecting the phone call details of the accused and the complainant for 8.6.06, cannot be treated as fatal for the case of the prosecution. Furthermore, I am of the considered view that mere lapse on the part of the IO cannot be a escape ground for the accused specifically when adequate incriminating material for the charged offence is available on record. I am of the considered view that criminal justice should not be made casualty of wrongs 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. (1998(4) SCC C.C. No. 33/12 Page No. 38 of 48
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)."
38. During the course of the argument, it is submitted by Ld. Counsel for the accused that there are several contradictions in the deposition of connected PWs on various aspects which falsify the case of the prosecution and pointed out following contradictions: (A) That PW2 stated that when he alongwith the Panch witness went inside the Room of the accused, he was found sitting whereas PW3/Panch witness deposed that when he alongwith the complainant went inside the Office, came to know that the accused was not present on his seat and after sometime, he came.
(B) That PW2 stated that accused wrote something on the file and thereafter, he gave the treated GC notes to the accused whereas PW3 stated that after completion of the file, the accused demanded C.C. No. 33/12 Page No. 39 of 48 bribe amount (C) That PW2 deposed that Raiding team recovered the GC notes from the back pant pocket of the accused whereas PW3 has deposed that he has recovered the GC notes from the back left pocket pant of the accused.
(D) That PW2 deposed that he has met Virender Singh who told him that he had already submitted his Report whereas PW4/Virender Singh had declined about the same.
39. I do not find any force in the aforesaid submission of Ld. Counsel for the accused in view of the fact that said contradictions appear to be on formal aspects and cannot be treated as unnatural because of the time gap between the period of incident and the deposition of the PWs before the court. My said view is also 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.
C.C. No. 33/12 Page No. 40 of 48
40. During the course of the argument, it is submitted by Ld. Counsel for the accused that as the Raid Officer being a police official 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. 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 C.C. No. 33/12 Page No. 41 of 48 which the notes came to be flung across the wall into neighboring room. He deposed that accused neither demanded the amount from his 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 without corroboration, but, equally, in the facts and circumstances of another case, the Court may unhesitatingly agent the evidence of such an officer."
C.C. No. 33/12 Page No. 42 of 48
41. 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 "Prakash Chand vs. State (Delhi Administration) AIR 1979 SC 400".
42. During the course of the argument, it is submitted by Ld. Counsel for the accused that since in the present case, Investigation has been conducted by the Officer of the rank of Inspector and not ACP and therefore, in view of Section 17 of the Prevention of Corruption Act, 1988, the IO being the rank of Inspector was not competent to conduct the Investigation in the present case and hence, it vitiate the entire trial and also moved an application in this respect. From the perusal of the copy of the Gazette Notification No. F.1 (10)/99 DOV 15551561 dated 15.3.1999 as issued by Govt. of NCT of Delhi as placed on record by Ld. Addl. PP, it is clearly reflected that Inspector of Police working in Anti Corruption Branch, Govt. of NCT, Delhi have been duly authorised to conduct Investigation into any offence relating to Prevention of Corruption Act, 1988. In the present case, the Investigation has been conducted by PW9/the then C.C. No. 33/12 Page No. 43 of 48 Inspector Sukhbir Singh and therefore, I do not find any force in the submission of Ld. Counsel for the accused whereby challenging the competency of the IO in this case.
43. I also do not find any force in the submission of Ld. Counsel for the accused that the mere recovery of the treated GC notes as against the accused Harish Chand Bachani is not sufficient to convict the accused for the charged offence. Once the accused is found to have accepted the bribe amount, it is for him to explain as to in which capacity he has accepted the same.
44. Three Judges Bench of Hon'ble Supreme Court in the case reported as Raughbir Singh V/s State of Punjab AIR 1974 SC 1516 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".
45. 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 C.C. No. 33/12 Page No. 44 of 48 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 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."
46. 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 C.C. No. 33/12 Page No. 45 of 48 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 of Corruption Act that he accepted the same as illegal gratification, particularly so, when the defence theory put forth is not accepted."
47. 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 C.C. No. 33/12 Page No. 46 of 48 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.
48. Once the bribe amount is recovered from the accused it is for the accused to explain as to how the bribe amount landed in his person. In the present case, the accused Harish Chand Bachani has merely taken a evasive stand in his Statement U/S 313 Cr.P.C. to the effect that nothing was recovered from him and therefore, same can be of no help for the accused, specifically when there is ample material on record in the form of deposition of PW2 complainant, PW3 Panch witness and PW9 Raid Officer coupled with seizure memo of bribe amount of Rs.5,000/ vide Memo Ex.PW2/C whereby establishing the recovery of said bribe amount from the back pant pocket of accused.
49. In view of the aforesaid materials as available on the record, C.C. No. 33/12 Page No. 47 of 48 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 and the judgment as referred and relied by Ld. Counsel for the accused can be of no help for the accused being not applicable in view of the above referred clinching material relating to the demand and acceptance of bribe amount of Rs.5000/ by the accused Harish Chand Bachani.
50. The net result of the aforesaid discussion is that the prosecution has been successful in establishing its case as against the accused Harish Chand Bachani for the charged offence. Hence, accused Harish Chand Bachani stands convicted for offence punishable U/S 7 and 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988.
51. Let this accused be heard separately on the point of sentence.
Announced in the open court on this 31st day of May, 2012 (B.R. Kedia) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC,Delhi C.C. No. 33/12 Page No. 48 of 48