Delhi District Court
State vs . 1. Y.P. Talwar on 29 November, 2013
IN THE COURT OF SHRI B.R. KEDIA, SPECIAL JUDGE07
(CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
C.C.NO. : 48/12
Unique Case ID : 02401R0097952012
STATE VS. 1. Y.P. TALWAR
S/o Sh. Madan Lal
R/o H.No. F45, Ground Floor,
Naraina Vihar,
New Delhi110028.
2. VEENA SHARMA
W/o Sh. Narender Kumar,
R/o C31, Ashoka Niketan,
Delhi.
FIR NO. : 04/2009
U/S : 7/13 of Prevention of Corruption Act,
1988
P.S. : Anti Corruption Branch, Delhi
Date of Institution 03.02.2012
Judgment reserved on 25.11.2013
Judgment delivered on 29.11.2013
C.C. No. 48/12 Page No. 1 of 50
JUDGMENT
1. The precise case of the prosecution is that on dated 16.02.2009 the complainant Ankur Goel S/o Sh.Vinod Goel came to Anti Corruption Branch and got lodged his Complaint Ex.PW28/A which was marked to the then Inspector Hira Lal, IO/PW30 regarding demand and acceptance of bribe of Rs.40,000/ by the accused Y.P.Talwar who was posted as Assistant Commissioner (East), Food & Supply Department, from the complainant for passing Confirmation Order for shifting at the changed address of Fair Price Shop No.6871 namely M/s Goel & Co., being run by the father of the complainant.
2. The gist of the said complaint is that the FPS No.6871 namely M/s Goel & Co., was being run by the father of the complainant initially at Shop No. 105B, East Azad Nagar but as the said Shop was not functional there, it was closed by the Food & Supply Department. But as Application Form for reopening of the said Shop was made in the Department and order was made in this respect but in the meantime, the landlord of said Premises rented out the Premises to some other person. Thereafter, on obtaining permission from C.C. No. 48/12 Page No. 2 of 50 Sh.Narender Mohan, the then AC (East), Food & Supply Department, they opened said FPS at Premises No.18B, East Azad Nagar, temporarily for a period of 3 months. Thereafter, in February 2008 they filed an application for obtaining the confirmation order for running said FPS from said Premises but came to know that their File was lying pending due to several objections by Sh.Y.P.Talwar, Assistant Commissioner (East) Food & Supply Department, Dayanand Vihar. Thereafter, in September 2008, the complainant met accused Y.P.Talwar regarding this matter at his Office, on which he demanded bribe of Rs.40,000/ for doing the needful. Thereafter, when the father of the complainant once again approached the accused Y.P.Talwar along with the Letter issued by Sh.Harshvardhan, MLA, the accused abused him. Thereafter, the complainant met the officials at Anti Corruption Branch and apprised them about the matter and they advised him to get record the conversation of demand of bribe. Thereafter, the complainant talked to accused Y.P.Talwar on his Mobile phone and as per his assurance, the complainant moved required application seeking temporary permission for 3 months on enhancement of the size of the Shop and thereafter, complainant met accused Y.P.Talwar at his Office, on which accused Y.P.Talwar demanded bribe from him and at the instructions of accused C.C. No. 48/12 Page No. 3 of 50 Y.P.Talwar, complainant paid bribe of Rs.20,000/ to accused Veena Madam and accused Y.P.Talwar asked him to pay the balance amount of Rs.20,000/ on next day. But as the complainant could not pay the remaining amount of Rs.20,000/ to accused Y.P.Talwar on next day, accused Y.P.Talwar issued Show Cause Notice to them. Thereafter, the complainant on enhancing the size of the premises had met accused Y.P.Talwar and had talked with accused Y.P.Talwar as well as accused Veena Madam and got recorded the said conversation regarding the bribe through his Mobile Phone. Thereafter, the complainant along with one Parmeshwar went to the Office of accused Y.P.Talwar on dated 16.01.2009 and the accused Y.P.Talwar after getting the order passed on back date took the remaining bribe amount of Rs.20,000/ from said Parmeshwar. Since the complainant was against giving of bribe, he went to Anti Corruption Branch and got his complaint lodged on dated 16.02.2009.
3. The further case of the prosecution is that said Complaint Ex.PW28/A was marked to PW30/Inspector Hira Lal, IO for registration of the case, on which he made endorsement which is Ex.PW30/A and got registered the FIR, copy of which is Ex.PW23/B and thereafter, took up the Investigation. During the course of the C.C. No. 48/12 Page No. 4 of 50 Investigation, IO got prepared the CD of said conversation dated 01.01.2009 as recorded by the complainant through the Mobile Phone and CD Mark CD1 was kept in a pullanda sealed with the seal of HL and the copy of said CD, Mark CD2 was kept open for the purpose of Investigation and both said CDs were seized vide Seizure Memo Ex.PW7/A and thereafter, the voice of accused Y.P.Talwar was got identified on playing of said CD. The accused Y.P.Talwar was arrested vide Arrest Memo Ex.PW7/D and his personal search was conducted vide Memo Ex.PW7/E. The File of FPS No.6871 of M/s Goel & Co., and File Movement Register were seized by the IO vide Seizure Memo Ex.PW7/B. After taking the consent of the accused Y.P.Talwar vide Memo Ex.PW13/A, his sample voice was taken at FSL vide Audio Cassette Mark A and copy of the same is Mark B and the same were seized vide Seizure Memo Ex.PW13/B. During the course of Investigation, IO obtained the Memory Chip containing the conversation between the complainant and the accused persons vide Seizure Memo Ex.PW12/A. IO also seized the File Movement Register containing the movement of File of M/s Goel & Co. vide Seizure memo Ex.PW3/A. IO also seized Peon Book from the Office of Joint Commissioner, Food & Supply Department vide Seizure Memo Ex.PW8/A. IO also obtained the Biodata of the accused Y.P.Talwar C.C. No. 48/12 Page No. 5 of 50 which is Ex.PW21/B and Transfer Posting order of accused Y.P.Talwar is Ex.PW20/A. During Investigation, the IO also obtained the voice sample of complainant Ankur Goel as well as accused Veena Sharma at FSL after taking their consent in this respect. During course of Investigation, the relevant case properties were sent to FSL and FSL Results were obtained. IO also obtained the Sanction for prosecution as against the accused Y.P.Talwar as well as accused Veena Sharma. IO on recording the statement of the witnesses and after completion of the Investigation initially filed the chargesheet as against the accused Y.P.Talwar and thereafter, filed the supplementary chargesheet as against the accused Veena Sharma in the court.
4. 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 & 13(2) r/w 13 (1) (d) of Prevention of Corruption Act, 1988 was framed against the accused Y.P.Talwar and charge for offence punishable U/S 12 of Prevention of Corruption Act, 1988 was framed against the accused Veena Sharma on dated 14.05.2013 to which both accused pleaded not guilty and claimed trial.
5. Thereafter, in order to bring home the guilt of the accused, C.C. No. 48/12 Page No. 6 of 50 the prosecution got examined 30 prosecution witnesses namely Ved Prakash, the then Food Supply Officer, a formal witness as PW1, Sunil Kumar, the then Food Supply Officer, a formal witness as PW2, Madan Mohan Kotnala, the then PA to Joint Commissioner, Food & Supply Department, a formal witness as PW3, Sushil Kumar Dagar, a formal witness as PW4, Parmeshwar Dayal as PW5, Virender Pawar @ Pappu, the then Security Guard in the Office of Food & Supply Department, Dayanand Vihar as PW6, Sh.Sanjiv Kumar, a formal witness as PW7, Sandeep Sabherwal who was working as LDC in the Office of Joint Commissioner, Food & Supply Department, a formal witness as PW8, Satish Kumar who was working as Peon in the Office of Assistant Commissioner (East), Food & Supply Department, Dayanand Vihar as PW9, Neeraj Tanwar, a formal witness as PW10, Arun Kumar Goel, a formal witness as PW11, Jitender Kumar Sharma, a formal witness as PW12, Bhagwati Prasad, a formal witness as PW13, Karnail Singh, the then SI in Anti Corruption Branch, a formal witness as PW14, Manoj Singh, who was working as LDC in the Office of AC (East), Dayanand Vihar, a formal witness as PW15, Sh. Ramashanker Singh, a formal witness as PW16, Sh.S.B.Shashank, the then Addl. Secretary (Vigilance), Food Supply & Consumer Affairs Department, GNCT Delhi, who has accorded the Sanction on the C.C. No. 48/12 Page No. 7 of 50 approval of the Lt. Governor against accused Y.P.Talwar as PW17, Dr.C.P.Singh, Assistant Director (Physics), FSL, Rohini as PW18, R.K.Gaur who is successor to the Office of accused Y.P.Talwar, a formal witness as PW19, A.K.Singh, the then Assistant Commissioner (Admn.), Food & Supply Department, Govt. of Delhi, a formal witness as PW20, Sh.Kapil Dev Tehran, the then Assistant Commissioner (East), Food & Supply Department, a formal witness as PW21, Dhirender Kumar Singh, a formal witness as PW22, HC Deena Mani, the then Duty Officer, PS AC Branch, a formal witness as PW23, HC Surajpal from PS AC Branch, a formal witness as PW24, Tara Dutt, Peon in the Office of Joint Commissioner, Food & Supply Department, Govt. of Delhi, a formal witness as PW25, Vijender Singh, Administrative Officer, Delhi Health Services, a formal witness as PW26, ACP Balwant Singh, Part IO as PW27, Ankur Goel, complainant as PW28, Dr.N.V.Kamat, Director, Health Services,Delhi, Sanctioning Authority as against accused Veena Sharma as PW29 and the then Inspector Hira Lal/IO as PW30.
6. After closure of the PE, statement of accused under Section 313 Cr.P.C. were recorded in which the accused persons denied about any demand and acceptance of the bribe from the complainant. C.C. No. 48/12 Page No. 8 of 50 Accused claimed to be falsely implicated in this case having no concern with the alleged offence.
7. I have heard Final Arguments as addressed by Sh. Yogesh Kumar Verma, Adv. Ld. Counsel for the accused Y.P.Talwar, Sh. H.P.Aditya, Adv. Ld. Counsel for accused Veena Sharma and Sh. I.U.H.Siddiqui, Ld. Addl. PP for the State and perused the relevant record.
8. It is submitted by Ld. Counsel for the accused Y.P.Talwar that this accused was working as Assistant Commissioner (East), Food & Supply Department, Dayanand Vihar, Delhi up to 15.01.2009 but he has neither demanded nor accepted any bribe from the complainant for passing Confirmation Order for shifting of the Fair Price Shop No. 6871 in the name of M/s Goel & Co., to the changed address. It is further added by him that even otherwise the prosecution has failed to establish regarding the demand and acceptance of any bribe from complainant as against this accused Y.P.Talwar and therefore, this accused deserves to be acquitted. It is further added by him that various PWs i.e. PW28 Ankur Goel/complainant, PW5 Parmeshwar Dayal and PW6 Virender Pawar @ Pappu have not supported the stand C.C. No. 48/12 Page No. 9 of 50 of the prosecution regarding the demand and acceptance of the bribe as against this accused Y.P.Talwar. It is further added by him that PW28 complainant though deposed that he has paid Rs.20,000/ to one Veena Madam, who claimed herself the PA to Assistant Commissioner but said Veena Madam was not present in the Court and thus, the complainant has not identified said accused Veena Sharma and therefore, the stand of the prosecution regarding acceptance of bribe of Rs.20,000/ by accused Veena Sharma on behalf of accused Y.P.Talwar could not be proved. It is further added by him that PW28/ complainant has not supported the case of the prosecution and has denied various suggestions as put to him by Ld. Addl. PP for the State. It is further added by him that said PW28/complainant has also deposed that he had no conversation with the accused Y.P.Talwar in respect of demand of any bribe for any work. It is further added by him that the accused Y.P.Talwar was from DANICS Cadre and therefore, the prior permission from the Department of Home Affairs was required for according permission for Sanction for prosecution as against said accused but as no such prior permission from Department of Home Affairs was obtained and therefore, Sanction Order is legally Invalid. It is further added by him that even said Sanction Order Ex.PW17/B is legally Invalid as PW17 Sh.S.B.Shashank was not C.C. No. 48/12 Page No. 10 of 50 competent to sign said Sanction Order. It is further added by him that even Ex.PW17/A, the Approval Order of the Lt. Governor reflect non application of mind and therefore, the Sanction Order Ex.PW17/B is legally Invalid. It is further added by him that the FSL Report cannot be looked into as the FSL, Delhi is not Notified U/S 79 (A) of Information and Technology Act, 2008. It is further added by him that as PW18 Dr.C.P.Singh has not mentioned regarding basis of his opinion in the FSL Report and as he has not demanded the Mobile Phone wherein the recording was alleged to have been made and therefore, said FSL Report cannot be looked into against the accused. It is further added by him that even PW30 ACP Hira Lal/IO could not state as to who has prepared the Transcript of the conversation and as to when it was prepared and as it does not bear signature of anyone, said Transcript of conversation cannot be looked into. It is further added by him that PW25 Tara Dutt has inserted the entry No.133A in the Diary Register in the record of 15.01.2009 and also entered the movement of file of M/S Goel & Co., in the Peon Book in connivance with the officials of PS AC Branch as well as the complainant in order to falsely implicate the accused Y.P.Talwar. It is further added by him that even said PW28/complainant has denied to have produced any Memory Card containing the alleged conversation to the IO and C.C. No. 48/12 Page No. 11 of 50 therefore, the contents of the same cannot be looked into. Ld. Counsel for the accused thus urged for acquittal of this accused and referred and relied upon following judgments: 2008 Crimes 137 (Delhi), 2011 (1) JCC 102, Criminal Appeal No.963/2008 Delhi, Criminal Appeal N0.132/2004 Delhi, Criminal Appeal No.45/2003 Delhi, AIR 1987 SC 2402, 1988 Cr.L.J. 756, AIR 1992 SC 644, Criminal Appeal No.387 of 1987, (P&H High Court), 2001 Cr.L.J. 116, 2002 Cr.L.J.2787 and Criminal Appeal No.945/2003 SC.
9. Similarly, it is submitted by Ld. Counsel for the accused Veena Sharma that even as per the case of the prosecution, the only allegation against this accused is that she had accepted bribe of Rs. 20,000/ on behalf of the accused Y.P.Talwar from the complainant Ankur Goel and therefore, charge for offence punishable U/S 12 of Prevention of Corruption Act has been framed as against this accused but the prosecution has failed to establish said case against this accused and hence, this accused deserves to be acquitted. It is further added by him that PW28/complainant has not deposed anything regarding acceptance of any such bribe amount from him by this accused as said PW28/complainant though has deposed that he paid Rs.20,000/ to Veena Madam but said Veena Madam was not present in the Court and C.C. No. 48/12 Page No. 12 of 50 thus, said PW28/complainant has not identified this accused as the person who has accepted Rs.20,000/ from the complainant and therefore, this accused deserves to be acquitted. It is further added by him that though said PW28/complainant has deposed that on 15.01.2009, said Veena Madam has called him on his Mobile Phone and informed him that accused Y.P.Talwar has been transfered and asked him to bring bribe amount of Rs.40,000/ on the same day for getting the work done but the IO has not collected any Call Detail Record of Mobile Phone in this respect and therefore, the identity of said Veena Madam could not be established. It is further added by him that PW28/complainant has not deposed anything as against this accused and had denied various suggestions as put to him in his cross examination by Ld. Addl.PP. It is further added by him that the accused Veena Sharma was not working as PA to accused Y.P.Talwar and there was no occasion on the part of this accused to receive any bribe amount on behalf of accused Y.P.Talwar. It is further added by him that even PW6 Virender Pawar has also denied the various suggestions put to him in his cross examination by Ld. Addl. PP. It is further added by him that the contents of the CD containing the alleged conversation and the Transcript of alleged conversation cannot be looked into as PW28/complainant denied to have delivered the C.C. No. 48/12 Page No. 13 of 50 Memory Chip to the IO and the Mobile Phone in which the alleged conversation was recorded was not seized by the IO from the complainant and no document to connect the complainant with the Mobile Phone/Memory Chip was seized by the IO and PW30/IO has not deposed as to who has prepared the said Transcript of conversation. It is further added by him that the FSL Report as prepared by PW18/Dr.C.P.Singh also cannot be looked into as he has not maintained the entire record for Waveform Analysis nor given proper reason in support of his opinion and therefore, said FSL Report cannot be looked into. It is further added by him that the Sanction Order Ex.PW29/A has been passed by the Sanctioning Authority Dr.N.V.Kamat mechanically without proper application of mind and therefore, said Sanction Order is legally Invalid. It is further added by him that as the prosecution has failed to establish the offence punishable U/S 12 of Prevention of Corruption Act as against the accused Veena Sharma, she deserve to be acquitted.
10. To the contrary, it is submitted by Ld. Addl. PP for the State that the prosecution by examining 30 PWs have clearly established its case as against both the accused and therefore, both the accused deserve to be convicted for the charged offence. It is further added by C.C. No. 48/12 Page No. 14 of 50 Ld. Addl. PP for the State that the case of the prosecution stands fully established against both the accused persons through the deposition of various PWs including PW28 Ankur Goel/complainant, PW30 ACP Hira Lal/IO, PW25 Tara Dutt, PW12 Jitender Kumar Sharma, PW1 Ved Prakash, PW2 Sunil Kumar and there is no reason as to why said PWs would falsely implicate the accused persons specifically when there is no previous enmity as against the accused by them. It is also added by Ld. Addl. PP for the State that Sanctioning Authority have rightly passed the Sanction Order as against both the accused persons after due appreciation of the relevant material and they were competent to do so and therefore, there is no infirmity in the Sanction Orders as against both the accused. It is also added by Ld. Addl. PP that the deposition of PW28/complainant cannot be washed off merely because of the fact that he has been declared hostile by being won over by the accused persons. It is further added by him that even said PW28/complainant has clearly deposed that he had paid Rs.20,000/ as bribe to accused Veena Madam. It is further added by him that mere fact that PW28/complainant has denied about handing over the Memory Chip to the IO, cannot be treated as reliable as said part of deposition is found falsified from the deposition of PW12 Jitender Kumar Sharma, who is a witness to seizure of said Memory Chip C.C. No. 48/12 Page No. 15 of 50 which was seized vide Memo Ex.PW12/A. It is further added by him that the case of the prosecution also found supported from the FSL Report which is based on scientific evidence and there is no reason to disbelieve the same. It is further added by him that there is no reason as to shy PW30/IO would falsely implicate the accused persons. Thus Ld. Addl. PP urged for conviction of both the accused persons for the charged offence.
11. 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 the both the 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 Y.P.Talwar that the accused Y.P.Talwar was from DANICS Cadre and therefore, the prior permission from the Department of Home Affairs was required for according permission for Sanction for prosecution as against said accused but as no such prior permission from Department of Home Affairs was obtained and therefore, Sanction Order is legally Invalid. It is further added by him that even said Sanction Order Ex.PW17/B is legally Invalid as PW17 Sh.S.B.Shashank was not competent to sign said Sanction Order. It is C.C. No. 48/12 Page No. 16 of 50 further added by him that even Ex.PW17/A, the Approval Order of the Lt. Governor reflect nonapplication of mind and therefore, the Sanction Order Ex.PW17/B is legally Invalid. Similarly, it is submitted by Ld. Counsel for the accused Veena Sharma that the Sanction Order Ex.PW29/A has been passed by the Sanctioning Authority Dr.N.V.Kamat mechanically without proper application of mind and therefore, 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 have rightly passed the Sanction Orders as against both the accused persons after due appreciation of the relevant material and they were competent to do so and therefore, there is no infirmity in the Sanction Orders as against both the accused.
12. That in order to prove the Sanction concerning the accused Y.P.Talwar, the prosecution has examined PW17 Sh.S.B.Shashank, the then Addl. Secretary (Vigilance), Food Supply & Consumer Affairs Department, GNCT of Delhi who has categorically deposed that on 21.12.2011 he was posted as Addl. Secretary (Vigilance), Food Supply & Consumer Affairs Department, GNCT of Delhi and a request was received in the Office of Hon'ble Lt. Governor for grant of Sanction for prosecution as against accused Y.P.Talwar, the then Assistant C.C. No. 48/12 Page No. 17 of 50 Commissioner (East), Food Supply & Consumer Affairs, Delhi and after going through the relevant material and carefully examining the case record, Hon'ble Lt. Governor was pleased to pass Order for Sanction for prosecution as against the accused Y.P.Talwar and copy of the Approval Order of Hon'ble Lt. Governor in this respect is Ex.PW17/A and in pursuance of the same, said PW17 stated to have signed the Sanction Order Ex.PW17/B by order and in the name of Hon'ble Lt. Governor, Delhi and said Sanction Order bears his signature at all pages at point A. Said PW17 in the cross examination by Ld. Counsel for the accused Y.P.Talwar added that he being the Head of Vigilance of Food Supply & Consumer Affairs Department, GNCT of Delhi, was competent to sign the said Sanction Order by virtue of the order and in the name of Hon'ble Lt. Governor, Delhi. He further added that as per the official prevailing practice, no separate authorisation in this respect is required. He also denied the suggestion of Ld. Counsel that the noting portion from point X to X1 on Ex.PW17/A is contradictory to said Sanction Order Ex.PW17/B. Said PW17 has further added that as accused Y.P.Talwar being not directly recruited as DANICS Officer, prior permission of Department of Home Affairs was not required for according permission for his prosecution Sanction. He has also clearly denied the suggestion of Ld. Counsel for C.C. No. 48/12 Page No. 18 of 50 the accused Y.P.Talwar that he was not competent to sign said Sanction Order Ex.PW17/B or that he has signed the said Sanction Order mechanically.
13. Similarly, to prove Sanction concerning the accused Veena Sharma, the prosecution found to have examined PW29 Dr.N.V.Kamat, Director, Health Services, Delhi, Directorate of Health Services, Govt. of NCT of Delhi, who has categorically deposed that on 22.06.2012 he was posted as Director, Health Services, Delhi, Directorate of Health Services, Govt. of NCT of Delhi and the File containing the complaint, FIR, Memos, Statement of witnesses and other documents collected during Investigation, were placed before him and on going through the material on record and applying his mind and being Authority competent to remove the accused Veena Sharma from service who was posted as UDC, he accorded the Sanction for prosecution as against the accused Veena Sharma and said Sanction Order is Ex.PW29/A bearing his signature at point A. Said PW29 in the cross examination by Ld. Counsel for the accused Veena Sharma had denied the suggestion that he has accorded the Sanction without considering the incriminating material against accused Veena Sharma in a mechanical manner.
C.C. No. 48/12 Page No. 19 of 50
14. Furthermore, in the case reported as "2011 V A.D. (Delhi) 1 Kiran Pal Singh Vs. State" while dealing with the similar aspect relating to Sanction, in Para 6 of the Judgment, it was observed by Hon'ble Delhi High Court as under:
"It is settled legal position that draft sanction order can be placed before competent authority along with the material and if the competent authority after perusing the material signs the draft sanction order, it cannot be said to suffer from nonapplication of mind. In Indu Bhushan Chatterjee Vs. State of West Bengal, AIR 1958 SC 148, wherein the sanction order was prepared by the police and put before the sanctioning authority by the personal branch of his Office and that before according the sanction he went through all the relevant papers put before him, it was held by the Hon'ble Supreme Court to be a valid sanction". C.C. No. 48/12 Page No. 20 of 50
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. 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 C.C. No. 48/12 Page No. 21 of 50 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 submission of the learned counsel that the sanctioning order to prosecute the appellant C.C. No. 48/12 Page No. 22 of 50 was not legal".
17. Furthermore, in the case reported as 2013 VI AD (SC) 458 "State of Maharashtra through CBI Vs. Mahesh G. Jain" while dealing with similar aspect of Sanction of prosecution as against public servant, it was observed by Hon'ble Supreme Court of India after considering various earlier Judgments, in Paragraph 13 as under: "13. From the aforesaid authorities, the following principles can be culled out:
a) It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
b) The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution.
c) The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him.
C.C. No. 48/12 Page No. 23 of 50
d) Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
e) The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
f) If the sanctioning authority has perused all the material placed before him and some of them have not been proved that would not vitiate the order of sanction.
g) The order of sanction is a prerequisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity."
18. 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 C.C. No. 48/12 Page No. 24 of 50 absence of anything to show that any defect or irregularity therein caused failure of justice, that plea is without substance."
19. 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 persons to the effect that said Sanction Order Ex.PW17/B concerning the accused Y.P.Talwar and Sanction Order Ex.PW29/A concerning the accused Veena Sharma are legally Invalid. I am of considered view that the Sanction concerning the accused persons have been validly granted by the competent Authority on proper appreciation of the material on record.
20. During the course of the arguments, it is submitted by Ld. Counsel for the accused Y.P.Talwar that this accused was working as Assistant Commissioner (East), Food & Supply Department, Dayanand Vihar, Delhi up to 15.01.2009 but he has neither demanded nor accepted any bribe from the complainant for passing Confirmation Order for shifting of the Fair Price Shop No.6871 in the name of M/s Goel & Co., to the changed address. It is further added by him that even otherwise the prosecution has failed to establish regarding the C.C. No. 48/12 Page No. 25 of 50 demand and acceptance of any bribe from complainant as against this accused Y.P.Talwar and therefore, this accused deserves to be acquitted. It is further added by him that various PWs i.e. PW28 Ankur Goel/complainant, PW5 Parmeshwar Dayal and PW6 Virender Pawar @ Pappu have not supported the stand of the prosecution regarding the demand and acceptance of the bribe as against this accused Y.P.Talwar. It is further added by him that PW28 complainant though deposed that he has paid Rs.20,000/ to one Veena Madam, who claimed herself the PA to Assistant Commissioner but said Veena Madam was not present in the Court and thus, the complainant has not identified said accused Veena Sharma and therefore, the stand of the prosecution regarding acceptance of bribe of Rs.20,000/ by accused Veena Sharma on behalf of accused Y.P.Talwar could not be proved. It is further added by him that PW28/ complainant has not supported the case of the prosecution and has denied various suggestions as put to him by Ld. Addl. PP for the State. It is further added by him that said PW28/complainant has also deposed that he had no conversation with the accused Y.P.Talwar in respect of demand of any bribe for any work.
21. Similarly, during course of arguments, it is submitted by Ld. C.C. No. 48/12 Page No. 26 of 50 Counsel for the accused Veena Sharma that PW28/complainant has not deposed anything regarding acceptance of any such bribe amount from him by this accused as said PW28/complainant though has deposed that he paid Rs.20,000/ to Veena Madam but said Veena Madam was not present in the Court and thus, said PW28/complainant has not identified this accused as the person who has accepted Rs.20,000/ from the complainant and therefore, this accused deserves to be acquitted. It is further added by him that though said PW28/complainant has deposed that on 15.01.2009, said Veena Madam has called him on his Mobile Phone and informed him that accused Y.P.Talwar has been transfered and asked him to bring bribe amount of Rs.40,000/ on the same day for getting the work done but the IO has not collected any Call Detail Record of Mobile Phone in this respect and therefore, the identity of said Veena Madam could not be established. It is further added by him that PW28/complainant has not deposed anything as against this accused and had denied various suggestions as put to him in his cross examination by Ld. Addl.PP. It is further added by him that the accused Veena Sharma was not working as PA to accused Y.P.Talwar and there was no occasion on the part of this accused to receive any bribe amount on behalf of accused Y.P.Talwar. It is further added by him that even PW6 C.C. No. 48/12 Page No. 27 of 50 Virender Pawar has also denied the various suggestions put to him in his cross examination by Ld. Addl. PP.
22. To the contrary, during the course of arguments, Ld. Addl. PP for the State has submitted that that the case of the prosecution stands fully established against both the accused persons through the deposition of various PWs including PW28 Ankur Goel/complainant, PW30 ACP Hira Lal/IO, PW25 Tara Dutt, PW12 Jitender Kumar Sharma, PW1 Ved Prakash, PW2 Sunil Kumar and there is no reason as to why said PWs would falsely implicate the accused persons specifically when there is no previous enmity as against the accused by them. It is also added by Ld. Addl. PP that the deposition of PW28/complainant cannot be washed off merely because of the fact that he has been declared hostile by being won over by the accused persons. It is further added by him that even said PW28/complainant has clearly deposed that he had paid Rs.20,000/ as bribe to accused Veena Madam. It is further added by him that mere fact that PW28/complainant has denied about handing over the Memory Chip to the IO, cannot be treated as reliable as said part of deposition of complainant is found falsified from the deposition of PW12 Jitender Kumar Sharma, who is a witness to seizure of said Memory Chip C.C. No. 48/12 Page No. 28 of 50 which was seized vide Memo Ex.PW12/A. It is further added by him that the case of the prosecution also found supported from the FSL Report which is based on scientific evidence and there is no reason to disbelieve the same.
23. PW28/complainant has initially deposed that his father Vinod Goel was having Fair Price Shop No.6871 in the name of M/S Goel & Co., at Premises No.105B, East Azad Nagar but as it was non functional, the license was suspended by Food Department and thereafter, on their moving application their license was restored in the year 2007 but in the meantime, as the Owner of said Premises had let out the premises to some other person, after obtaining permission from Sh.Narender Mohan, Assistant Commissioner (AC) (East), Food & Supply Department, they opened their Shop at Premises No.18B, East Azad Nagar, temporarily for a period of 3 months and thereafter, for getting Confirmation Order in this respect, they filed required application in their Circle No.42, Jagat Puri but said application was not cleared due to several objections raised by accused Y.P.Talwar posted as Assistant Commissioner (East), Food & Supply Department, Dayanand Vihar. The complainant further deposed that thereafter his father met Local MLA Sh.Harshvardhan and apprised him about the C.C. No. 48/12 Page No. 29 of 50 matter and produced one letter to the accused Y.P.Talwar as issued by Sh.Harshvardhan to which accused Y.P.Talwar responded that there was no point in getting such letters from Political Leader. He further deposed that one Madam met his father outside the Office on that day and asked him to pay Rs.40,000/ for getting the work done and thereafter, he along with his father again met Sh.Harshvardhan and apprised him regarding said demand of bribe and on his asking, he along with his father met Sh.Rakesh Mehta, the then Secretary of Legislative Assembly and apprised him about the matter and as per his advise, they met Sh.I.D.Shukla, the then DCP, Anti Corruption Branch for redressal of their grievances. From the perusal of the record, it is reflected that PW28/complainant Ankur Goel is found to have turned hostile on various aspects and was therefore cross examined by Ld. Addl. PP on behalf of the State. Said PW28/complainant in the cross examination by Ld. Addl. PP admitted to be correct that he has given the Complaint Ex.PW28/A in the AC Branch and said Complaint bears his signatures at point A. From the perusal of said Complaint Ex.PW28/A, it is clearly reflected that the complainant has stated therein as to in September 2008 when he met accused Y.P.Talwar, Assistant Commissioner (East), Food & Supply Department at his Office at Dayanand Vihar, for getting the Confirmation Order for C.C. No. 48/12 Page No. 30 of 50 shifting of their Fair Price Shop at the changed address of 18B, East Azad Nagar, the accused Y.P.Talwar has demanded bribe of Rs. 40,000/ to which he expressed his inability and the accused Y.P.Talwar responded to the complainant that he did not know the way to get the work done and asked him to get closed their said Shop. Said PW28/complainant further found to have stated in said Complaint that when his father met accused Y.P.Talwar and produced the letter of Sh.Harshvardhan, accused Y.P.Talwar abused him. The complainant has further stated in the said Complaint that as he was against payment of bribe to accused Y.P.Talwar, he was constrained to approach Anti Corruption Branch. No doubt, the complainant in his cross examination by Ld. Addl. PP, has added that the facts of the portion A to A in said Complaint was written by him at the dictation of official of the AC Branch but the said part does not inspire any credence in view of the fact that the official of AC Branch has no reason to have such information which is supposed to be disclosed only by the complainant. Furthermore, said aspect of demand of bribe by the accused for passing Confirmation Order for shifting of said Fair Price Shop in the name of M/S Goel & Co.,at the changed address of 18B, East Azad Nagar, also found corroborated from the attending facts and circumstances. From the perusal of the deposition of PW20 C.C. No. 48/12 Page No. 31 of 50 Sh.A.K.Singh coupled with the copy of TransferPosting Order Ex.PW20/A and deposition of PW19 Sh.R.K.Gaur, it is clearly established that the accused Y.P.Talwar was posted as Assistant Commissioner (East), Food & Supply Department from 04.01.2008 up to 15.01.2009.
24. Furthermore, though accused Y.P.Talwar was transfered vide Order dated 15.01.2009 but his keen interest in getting the order passed on dated 16.01.2009 by showing on back date of 15.01.2009 relating to said File of M/S Goel & Co., for shifting of the FPS No.6871 at the changed address i.e. B18, East Azad Nagar also strengthen the stand of the prosecution as regards the demand of bribe of Rs.40,000/ by the accused Y.P.Talwar from the complainant for getting passing of the said Order.
25. PW25 Tara Dutt who was posted as Peon in the Office of Joint Commissioner, Food & Supply Department, has clearly deposed that in the evening of 16.01.2009 while he was present in the said Office, accused Y.P.Talwar came from inside the Room of Sh.S.S.Rathor, Joint Commissioner and insisted him to diarise the file of M/s Goel & Co., on the plea that it was an urgent matter and when C.C. No. 48/12 Page No. 32 of 50 said PW25 stated that was the work of LDC Sandeep Sabherwal, who was not present there and even he was not aware as to how to make entries, on which accused Y.P.Talwar insisted him to do the same and he would tell the procedure in this respect. Said PW25 further deposed that on instructions of accused Y.P.Talwar, he made entry in the Diary Register on back date i.e. 15.01.2009 in between other entries and gave Diary No.133A. He further deposed that thereafter, he entered the movement of said File in the Peon Book of AC (East) and Sh.Satish, the Peon of AC (East) who had accompanied with accused Y.P.Talwar put his signatures in the Peon Book against relevant entry for the receipt of said File and said relevant entry of Peon Book in this respect is Ex.PW25/A which bears the signatures of said Satish at point X. Said PW25 further deposed that after taking said File of M/S Goel & Co., accused Y.P.Talwar left his Office. Said PW25 in the cross examination by Ld. Counsel for the accused Y.P.Talwar has deposed that he did not know if the order for transfer of accused Y.P.Talwar was passed on 15.1.2009. He denied the suggestion of Ld. Counsel that he had made the entry in connivance with the officials of AC Branch as well as the complainant. He further deposed that he had not gone through the said File but reiterated that said File was brought to him by accused Y.P.Talwar. I do not see any reason to disbelieve the C.C. No. 48/12 Page No. 33 of 50 said deposition of PW25 Tara Dutt which is also found corroborated from the deposition of PW9 Satish Kumar, who was working as Peon in the Office of accused Y.P.Talwar during relevant period as he has deposed in this respect as under : "On 25.3.2009 I was called at the Office of AC Branch where I had seen the Peon Book Ex.P2 in which there is an entry diary no.1117/AC/East dated 15.1.2009 which pertains to the file of Goel and Company, FPS No.6871(C42) and the same is marked to Joint Commissioner (East) but this file was not taken by me to the Head Quarter at the Office of Joint Commissioner (East) ITO, New Delhi. But the said file was received by me from the Office of Joint Commissioner (East) ITO, New Delhi vide Diary No.133A at page no.86 of the said Peon Book dated 16.1.2009 and the said file was received by me from one Tara Dutt, the Peon. I had not made any entry of receipt in the said Peon Book. The said file was handed over by me to the accused Y.P.Talwar. My statement was recorded C.C. No. 48/12 Page No. 34 of 50 by the IO."
26. The aforesaid deposition of PW9 Satish Kumar is also found supported from the deposition of PW8 Sandeep Sabherwal, who was working as LDC in the Personnel Branch of Joint Commissioner, Food & Supply Department as he has deposed in this respect as under: "The said Peon Book belongs to the Office of Joint Commissioner (Admn.), Food & Supply Department and same is w.e.f. 6.10.08 to 6.3.2009 containing pages from 1 to 141. The said Peon Book contains the entries regarding sending of files concerned. There are so many entries made by me in the said Peon Book.
However the entry at serial no.133A at page no.86 of said Peon Book dated 16.1.2009 (encircled with red ink and is marked 'X'), is not in my handwriting and the said entry is in the handwriting of one Peon working at that time whose name is Tara Dutt. I identifies his writing as I had seen him signing and writing during the course of my duty hours. At the serial no.133A on which Diary No.1117/AC/East dated 15.1.2009 was not C.C. No. 48/12 Page No. 35 of 50 written in my handwriting. I had seen the Register concerned in this regard. The said facts were told me by the IO and my statement was recorded to this effect."
27. The aforesaid part deposition of PW8 Sandeep Sabherwal is also found corroborated from the deposition of PW10 Neeraj Tanwar, who has deposed in this respect as under: "On 3.3.2009 I was working as Statistical Assistant at 5/9, Under Hill Road, Transport Department, GNCT of Delhi and on that day I was deputed as Panch witness at PS AC Branch. I had reached there. One Mr. Madan Mohan Kotnala, PA to Joint Commissioner, Food & Supply Department, Vikas Bhawan, New Delhi was also present there who had produced one File Movement Register 2009 containing page 1 to 570 having entries up to page no.64 in which there was an entry no.133A regarding 1117/AC/East dated 05.01.2009, Goel Stores, FPS 6871/C42 on which entries of JC/East dated 15.1.2009 and AC/East dated 15.1.2009 were written and the same C.C. No. 48/12 Page No. 36 of 50 were taken into possession vide Seizure Memo already Ex.PW3/A bearing my signatures at point B. My statement was recorded by the IO."
28. Similarly, PW3 Madan Mohan Kotnala who was working as PA to Joint Commissioner, Food & Supply Department, who had produced the File Movement Register of the year 2009 from his Office has also deposed in this respect as under: "On 3.3.2009 I was working as P.A. to Joint Commissioner, Food & Supply Department, K Block, Vikas Bhawan, New Delhi2. On that day I was called in Anti Corruption Branch. I had taken with me the file movement register of the year 2009 which contained Page no.1 to 570 and there were entries up to Page no.64 and entry no.133A was regarding the file no. 1117/AC/East dated 5.1.2009, Goel Stores, FPS/6871/C42 on which the entry no. JS/East/15.1.2009 to Assistant Commissioner East, dated 15.1.2009 were written. The said Register was seized by the IO vide Seizure Memo Ex.PW3/A C.C. No. 48/12 Page No. 37 of 50 which bears my signatures at point A. The Peon Book was also seized vide said Seizure Memo. The File Movement Register is Ex.P1 and the Peon Book is Ex.P2 are the same which were produced by me to the IO. My statement was recorded by the IO."
29. The aforesaid material as available on the record clearly reflect the conduct on the part of accused Y.P.Talwar for getting passing of the said order in favour of M/S Goel & Co., even after his transfer from said post of Assistant Commissioner (East), Food & Supply Department by showing back date of 15.01.2009 and there is no satisfactory explanation by the accused Y.P.Talwar in this respect and same also strengthen the stand of the prosecution regarding the demand of bribe of Rs.40,000/ by the accused Y.P.Talwar from the complainant earlier in getting passing of the said Confirmation Order for shifting of the FPS No.6871 of M/S Goel & Co., at the changed address.
30. I do not find any force in the submission of Ld. Counsel for the accused Y.P.Talwar to the effect that since PW28 Ankur C.C. No. 48/12 Page No. 38 of 50 Goel/complainant has turned hostile and was cross examined by Ld. Addl. PP on behalf of the State and not supported the case of the prosecution and therefore, his deposition is fatal for prosecution. In the Judgment reported as AIR 1991 SC 1853 Khujji @ Surender Tiwari vs. State of M.P., it was observed as under: Para 6: ".................................... Counsel for the State is right when he submits that the evidence of a witness, declared hostile, is not wholly effaced from the record and that part of the evidence which is otherwise acceptable can be acted upon. It seems to be well settled by the decisions of this court "Bhagwan Singh vs. State of Haryana (1976) 2 SCR 921 : (AIR 1976 SC 202): Rabinder Kumar Dey vs. State of Orissa, (1976) 4 SCC 233 :(AIR 1977 SC 170) and Syed Akbar v. State of Karnataka, (1980) 1 SCR 95: (AIR 1979 SC 1848) that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be C.C. No. 48/12 Page No. 39 of 50 dependable on a careful scrutiny thereof. In the present case the evidence of the aforesaid two eye witnesses was challenged by the prosecution in crossexamination because they refused to name the accused in the dock as the assailants of the deceased. We are in agreement with the submission of the learned counsel for the State that the trial Court made."
31. In view of the aforesaid material available on record, I am of considered view that the Judgments as referred by Ld. Counsel for accused Y.P.Talwar can be of no help for said accused being not applicable in this case.
32. In view of the aforesaid discussion, I have no hesitation to safely conclude that the prosecution has successfully established its case regarding the demand of bribe of Rs.40,000/ in September 2008 from the complainant Ankur Goel by the accused Y.P.Talwar, who was working as Assistant Commissioner (East), Food & Supply Department, Dayanand Vihar, Delhi, for getting passing of Confirmation Order for shifting of Fair Price Shop No.6871 in the name of M/S Goel & Co., at the changed address i.e. 18B, East Azad C.C. No. 48/12 Page No. 40 of 50 Nagar, Delhi and thereby found accused Y.P.Talwar guilty for the offence punishable U/S 7 of the Prevention of Corruption Act, 1988 as I am of the considered view that mere demand of bribe or solicitation by public servant also amount to commission of the offence as contemplated U/S 7 of Prevention of Corruption Act, 1988 and my said view is found corroborated from the Judgment as reported in "AIR 1958 M.P. 157 Mubarak Ali Vs. State" where in Para 11, it was observed as under: "The Learned Deputy Government Advocate contends that the report lodged by Mr. Bhalla in this case was only about the attempt to obtain illegal gratification, which is different from an offence under S. 161 IPC and the offence is not completed till the bribe is accepted. But I am afraid his contention is not acceptable to me. On referring to S. 161 IPC, I find that mere demand or solicitation by a public servant amounts to the commission of an offence under S. 161 of the Indian Penal Code. Here according to the report lodged with the police, the Assistant Station Master is alleged to have asked for a bribe of annas 8 per box from the C.C. No. 48/12 Page No. 41 of 50 complainant. If this fact is true, the accused has committed an offence under S. 161 IPC which runs thus:
"Whoever being or expecting to be a public servant, accepts or obtains, or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official function, favour or disfavour to any person, or for rendering or attempting to render any service or dissservice to any person, with the Central or any State Government or Parliament or the Legislature of any State or with any public servant, as such, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
33. Now, with regard to the second part of the case of the prosecution i.e. the acceptance of part bribe amount of Rs.20,000/ by the accused Y.P.Talwar from the complainant through coaccused C.C. No. 48/12 Page No. 42 of 50 Veena Sharma, who was working as LDC under accused Y.P.Talwar and further obtaining the remaining bribe amount of Rs.20,000/ from the complainant through his Uncle Parmeshwar Dayal in January 2009, all the material prosecution witnesses relating to said aspects are found to have not supported the stand of the prosecution. As PW28 Ankur Goel/complainant though deposed that he paid Rs.20,000/ to one Veena Madam on dated 16.01.2009 but has not identified the accused Veena Sharma in the Court as the same Veena Madam to whom he had paid Rs.20,000/. Furthermore, said PW28/complainant even in the cross examination by Ld. Counsel for the accused Veena Sharma has reiterated that accused Veena Sharma was not the lady to whom he has paid Rs.20,000/ as bribe in the Office. Thus, from the deposition of PW28/complainant, it is clearly reflected that he has completely denied regarding the payment of part bribe amount of Rs.20,000/ to accused Veena Sharma for onward delivery of the same to accused Y.P.Talwar.
34. Though it is the stand of the prosecution that said part bribe amount of Rs.20,000/ was accepted by accused Veena Sharma, who has handed over the same to Virender Pawar @ Pappu, who was posted as Security Guard in the Office of accused Y.P.Talwar and thereafter, in that evening said Virender Pawar @ Pappu had finally delivered C.C. No. 48/12 Page No. 43 of 50 said amount of Rs.20,000/ of bribe to the accused Y.P.Talwar, but even said Virender Pawar @ Pappu, who has been examined as PW6, is also found to have completely denied regarding the said stand of the prosecution. As said PW6 Virender Pawar @ Pappu has deposed that he was working as Security Guard in the Office of Food & Supply Department, Dayanand Vihar since 2006 and in the year 2009, accused Y.P.Talwar was working as Assistant Commissioner (East). He also deposed that the accused Veena Madam was working as LDC there. He further deposed that there has never been any transaction of money from anyone between him and the accused nor he had received any amount from anyone and given to the accused during his tenure. Said PW6 was found to have been cross examined by Ld. Addl. PP and said PW6 has clearly denied the suggestion in this respect and deposed as under: "It is wrong to suggest that I stated in the said statement that sometimes ago, one Sh.Ankur Goel was visiting the said Office for his file and in connection of the said file on the demand of accused Y.P.Talwar, Rs.20,000/ were received by accused Smt.Veena and the same were handed over to me by her for keeping the same safely and in the evening C.C. No. 48/12 Page No. 44 of 50 when accused Y.P.Talwar was going to his home and was sitting in a white colour gypsy, I had handed over the packet of Rs.20,000/ to him and I had not kept even a single rupee for myself from that packet."
35. Furthermore, PW5 Parmeshwar Dayal is also found to have not supported the stand of the prosecution regarding delivery of the part bribe amount to accused Y.P.Talwar. As said PW5 Parmeshwar Dayal has deposed that he has been running Fair Price Shop No.6729 at Kanti Nagar Extension and Ankur Goel has been running Fair Price Shop No.6871 at 18B, East Azad Nagar and Ankur Goel used to treat him as his Uncle. He further deposed that Fair Price Shop of Ankur Goel was to be shifted in the area of Azad Nagar. Said PW5 Parmeshwar Dayal is found to have been cross examined by Ld. Addl. PP and he has denied various material suggestions as put to him in this respect as he has deposed in this respect as under: "It is wrong to suggest that I stated in the said statement that on 16.1.2009 at about noon time Ankur Goel had called me on phone and he had requested me to come to the office of Assistant Commissioner East, Food & Supply C.C. No. 48/12 Page No. 45 of 50 Department, Dayanand Vihar and when I reached there, Ankur Goel was already present there and thereafter, we both reached in the Room of Assistant Commissioner East Sh.Yashpal Talwar where the accused Yashpal Talwar asked Ankur Goel if he had brought the money and thereafter, I told the accused that the money would be given after completion of the work (confronted with portion B to B of statement Ex.PW5/A where it is so recorded).
It is further wrong to suggest that thereafter at that time the concerned file was taken by the accused Yashpal Talwar to HQ ITO and he told us to meet him there at ITO Office and after sometime we met the accused outside the Office at ITO and the accused informed us that the work has been done and he further asked Rs.40,000/ and on this I asked the accused to give me the order, thereafter the accused told that the file has been signed by the concerned Officer and the order would be given to us after reaching the Office and thereafter, on receiving the copy of order, Rs.20,000/ were given to him in his Office by Ankur Goel in my presence and that my statement was recorded by the IO which was read C.C. No. 48/12 Page No. 46 of 50 over to me and admitted to be correct (confronted with portion C to C of statement Ex.PW5/A where it is so recorded)."
36. During the course of the arguments, it is submitted by Ld. Counsel for the accused Y.P.Talwar that PW30/Inspector Hira Lal,IO could not state as to who has prepared the Transcript of the conversation and as to when it was prepared and as it does not bear signature of anyone, said Transcript of conversation cannot be looked into. Similarly, it is submitted by Ld. Counsel for the accused Veena Sharma that the contents of the CD and the Transcript of conversation cannot be looked into as PW28/complainant denied to have delivered the Memory Chip to the IO and the Mobile Phone in which the alleged conversation was recorded, was not seized by the IO from the complainant and no document to connect the complainant with the Mobile Phone/Memory Chip was seized by the IO and IO has not deposed as to who has prepared the said Transcript of conversation. I found force in the said submission of Ld. Counsel for the accused persons as from the perusal of said Transcript of conversation, it is clearly reflected that said Transcript of conversation Mark PW30/A does not found bear signature of anyone showing as to who has C.C. No. 48/12 Page No. 47 of 50 prepared Transcript. Furthermore, PW30/IO in the cross examination by Ld. Counsel for the accused Y.P.Talwar has clearly admitted that said Transcript of conversation Mark PW30/A does not bear signature of anybody and he could not state as to who has prepared the said Transcript. Thus, prosecution could not establish about the author and source of said Transcript of conversation nor as to when it was prepared and as to how the same was obtained by the IO and therefore, I am of the considered view that the contents of the CD and Transcript of conversation do not deserve consideration and hence, I found force in the submission of Ld. Counsel for the accused persons in this respect.
37. In view of the aforesaid deposition of PW28 Ankur Goel/complainant, PW6 Virender Pawar @ Pappu who was working as Security Guard in the Office of accused Y.P.Talwar and PW5 Parmeshwar Dayal, so called Uncle of the complainant, I have no hesitation to safely conclude that the prosecution has failed to establish regarding acceptance of any bribe amount by accused Veena Sharma on behalf of the accused Y.P.Talwar from the complainant or acceptance of any bribe amount by accused Y.P.Talwar from the complainant through Parmeshwar Dayal and therefore, the second limb C.C. No. 48/12 Page No. 48 of 50 of charge relating to the offence punishable U/S 13 (2) r/w Section 13(1) (d) of Prevention of Corruption Act, 1988 could not be established as against the accused Y.P.Talwar. Similarly, the offence punishable U/S 12 of the Prevention of Corruption Act, 1988 for which the accused Veena Sharma has been charged with, also could not be established by the prosecution.
38. The net result of the aforesaid discussion is that as the prosecution could not succeed to establish the offence punishable U/S 12 of the Prevention of Corruption Act, 1988 as against the accused Veena Sharma for which she was charged with, said accused Veena Sharma stands acquitted of said the charged offence. However, as the prosecution could succeed in establishing its case only for offence punishable U/S 7 of Prevention of Corruption Act, 1988 as against accused Y.P.Talwar, said accused Y.P.Talwar is held guilty and convicted for offence punishable U/S 7 of Prevention of Corruption Act, 1988. But as the prosecution could not succeed in establishing the offence punishable U/S 13 (2) r/w Section 13(1) (d) of Prevention of Corruption Act, 1988 as against accused Y.P.Talwar, said accused Y.P.Talwar stands acquitted of said part of the charged offence. C.C. No. 48/12 Page No. 49 of 50
39. Since the accused Veena Sharma stands acquitted, her bail bond and surety bond stand discharged.
40. As accused Y.P.Talwar stands convicted for offence punishable U/S 7 of Prevention of Corruption Act, 1988, let said accused Y.P.Talwar be heard separately on the point of sentence. Announced in the open court on this 29th day of November, 2013 (B.R. Kedia) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC, Delhi C.C. No. 48/12 Page No. 50 of 50