Delhi District Court
State vs . Sanjeev Kumar Page 1 Of 31 on 31 July, 2014
1
IN THE COURT OF SH. NAROTTAM KAUSHAL,
SPECIAL JUDGE (PC Act)05, (ACB), (CENTRAL),
TIS HAZARI COURTS, DELHI
STATE
Versus
Sanjeev Kumar
S/o Late Shri Babu Lal
R/o D2/210, Sector 11,
Rohini, Delhi.
Corruption Case No. : 10/2013
FIR No. : 36/2010
Case Identification No.: 02401R0161262013
Police Station : Anti Corruption Branch
Under Section : 7/13 of Prevention of
Corruption Act, 1988.
CHALLAN INSTITUTED ON : 02.04.2013
JUDGMENT RESERVED ON : 31.07.2014
JUDGMENT PRONOUNCED ON : 31.07.2014
JUDGMENT
1.1 Accused Sanjeev Kumar S/o Babu Lal working as Assistant Sanitary Inspector (ASI) in Municipal Corporation, Delhi (MCD) has been charge sheeted by PS ACB for offence punishable u/s 7 & 13 of Prevention of Corruption Act ( hereinafter called as POC Act ). As per the State Vs. Sanjeev Kumar Page 1 of 31 2 case of the prosecution, one Neeraj Jain, a Property Dealer/Builder by profession lodged a complaint at PS ACB regarding demand of bribe by the accused. Complainant Neeraj Jain was constructing a building on plot No. B1/51, Kiran Garden, Uttam Nagar, Delhi on contract basis. Construction material was piled up on the road verge. Accused in his capacity as Assistant Sanitary Inspector visited the spot and demanded money, under a threat to issue challan. He also threatened of getting the construction stopped. On 30.08.2010 accused met the complainant at the under construction site at about 1.00 PM and demanded Rs. 5,000/ as bribe, under a threat of stopping the construction. Joginder Singh S/o Randhir Singh R/o C29, Gulab Bagh, Om Vihar, Uttam Nagar was also present at that time. 1.2 On the aforesaid complaint, Inspector Roop Lal was appointed as Raid Officer. He associated Ramesh Chander as panch witness and constituted a raiding team. Panch witness went through the complaint and signed the same. Inspector Roop Lal (hereinafter called the RO) noted down the serial numbers of GC notes brought by complainant. He demonstrated the use of phenolphthalein powder by applying the same on GC notes, touching the right hand of panch witness with the treated GC notes and washing the same in Sodium carbonate solution. Panch witness and complainant were instructed to remain close to each other and complainant was instructed to do the transaction in such a manner that it was audible and visible to the State Vs. Sanjeev Kumar Page 2 of 31 3 panch witness. Panch witness was instructed to give a signal on completion of transaction.
1.3 Raiding team along with complainant Neeraj Jain and panch witness Ramesh Chander left PSACB at about 11.00 AM and reached Metro Pillar No. 722, Najafgarh Road where vehicles were parked. Complainant, panch witness and raid party left for Jain Properties, Shop No. G1, Kiran Garden, Uttam Nagar, Delhi where accused had been called to collect the bribe. Complainant and panch witness entered the shop and members of the raiding team took suitable positions outside the shop. Sometime later one person entered the shop and shortly thereafter panch witness gave the predetermined signal. Raiding team entered the room and apprehended the accused on the pointing out of panch witness that the said person had demanded and accepted bribe from the complainant. The treated GC notes were recovered from his possession. On comparison of the serial numbers they were found to be the same which the complainant had made available. Hand wash proceedings were carried out. Rukka was prepared and FIR was got registered.
1.4 After conclusion of investigation, challan was filed in the court on 02.04.2013. Cognizance of the offence was taken. Accused was summoned to face trial. On appearance of the accused, provisions of sec.207 Cr.P.C. were complied with.
State Vs. Sanjeev Kumar Page 3 of 31 4
2. After hearing the accused on charge, Charge for offences punishable u/sec.7 & 13 (i) (d) r/w/sec.13 (2) of the POC Act was ordered to be framed vide order dated 06.06.2013. Accordingly charge was framed against the accused to which he pleaded not guilty and claimed trial.
3.1 Prosecution, in support of its case, examined 16 witnesses. Complainant Neeraj Jain has been examined as PW11 to prove his complaint, consequent to demand of bribe by the accused. He also deposed about the raid wherein accused was apprehended while demanding and accepting bribe of Rs. 5,000/. Joginder Singh (PW8) is a friend of the complainant. He has deposed that he was present with the complainant on 30.08.2010 when accused came at under construction house. Despite his best efforts accused persisted on his demand of bribe. He has further been cited to prove the lodging of complaint on 30.08.2010 by Neeraj Jain at PSACB. Ramesh Chand (PW7) was associated as a panch witness to the raid proceedings. He has proved the demonstration of use of phenolphthalein powder by Raid Officer. He has also deposed about the arrival of accused at the shop of complainant and conscious acceptance of Rs. 5,000/ as bribe for non issuance of the challan for the Malba which was encroaching the road. He deposed having given predetermined signal to the raiding team, arrival of the Raid Officer, search of the accused and recovery of GC notes from the left side front pocket of his shirt. State Vs. Sanjeev Kumar Page 4 of 31 5 3.2 Ct. Kuldeep Singh (PW6) was a member of the raiding team. He has deposed carrying of rukka prepared by RO from the spot to the police station for registration of FIR. He handed over rukka to ASI Ramesh Kumar (PW9) who was working as Duty Officer and he recorded the FIR.
3.3 HC Ram Kumar (PW10) was MHC(M), PS Civil Line. He has proved the deposit of case property and personal search articles of the accused at the malkhana by Inspector Naresh Kumar. Ct. Suresh Kumar (PW5) had carried the case property containing hand wash and shirt pocket wash to FSL, Rohini on 28.10.2010 and had deposited the same at FSL. Both these witnesses have proved safe custody of case property during the period it remained in their respective custody. Ct. Krishan Kumar (PW1) had collected the FSL report and remnants from FSL, Rohini on 9.2.2011. Dr. Madhulika Sharma (PW15) proved her report Ex. PW13/D regarding presence of phenolphthalein powder and Sodium Carbonate in the left hand wash and left side shirt pocket wash of the accused.
3.4 B.P. Tanwar (PW2) was Administrative Officer in MCD, West Zone. He had handed over biodata of the accused to the IO. Janak Digal (PW4) the then Additional Commissioner ( Establishment, MCD, Delhi ) proved grant of sanction u/s 19 of the POC Act for prosecution of the accused. Rakesh Kumar Singh (PW3), Sanitary Inspector in MCD deposed that accused was his subordinate on State Vs. Sanjeev Kumar Page 5 of 31 6 11.06.2010 and was deputed in Kiran Garden, Uttam Nagar. He was competent to challan for violations of DMC Act within the area of his jurisdiction.
3.5 Mangey Ram (PW14), Assistant Registrar, Office of RCS proved that Ramesh Chander (PW7) was on panch witness duty at PSACB on 30.08.2010. ACP Roop Lal (PW12) was the Raid Officer. Inspector Naresh Kumar Dahiya (PW13) was the IO of this case. ACP Ravinder Tyagi (PW16) was the part IO who has submitted the charge sheet in the court.
4.1 Incriminating evidence that came up against the accused was put to him and his statement u/s 313 Cr. P.C. was recorded. He admitted that he was posted as Assistant Sanitary Inspector at Uttam Nagar on 30.08.2010 and was competent to challan violations of provisions of DMC Act. He denied having visited the under construction site of complainant Neeraj Jain and having demanded Rs. 5,000/ as bribe for not challaning him for encroachment on the road. He denied Joginder Singh having spoken to him in this context. He stated that he had been called on 31.8.2010 by Neeraj Jain to remove some debris from the road. He reached there at about 12.00 noon along with other employees namely Ram Saran and Jagbir but he was picked up and falsely implicated by the IO of this case. He denied having demanded or accepted any bribe from the complainant. He denied his right hand wash or shirt pocket wash were transferred in State Vs. Sanjeev Kumar Page 6 of 31 7 four small bottles. He further stated that he had been falsely implicated at the instance of Joginder Singh who was President of RWA. Said Joginder Singh was annoyed with him on account of transfer of some safai karamchari.
4.2 Accused sought opportunity to lead defence evidence and examined one witness. Ram Saran (DW1) has deposed that he was a Safai Karamchari in MCD and was working under the control of accused. On 31.08.2010 he was present with the accused when Neeraj Jain telephonically called him. Accused along with witness Ram Saran and other safai karamchari Jagbir reached the spot where witness and accused were forcibly picked up by police officials and brought to PS ACB. Joginder had been asking him to deliberately create blockages in the drain and then clean them on his asking so as to impress the residents of area. He deposed that accused had been falsely implicated at the instance of Joginder Singh.
5. I have heard Shri Sanjay Soni, Ld. Additional PP for the State and Shri Neeraj Arora, Ld. defence counsel.
6. Shri Sanjay Soni, Additional PP for the State has argued that from the testimony of complainant Neeraj Jain (PW11) his friend Joginder Singh (PW8) and panch witness Ramesh Chander (PW7), demand and acceptance of bribe is proved beyond reasonable doubt. Raid Officer ACP Roop Lal (PW12) along with complainant and panch witness proved the recovery of treated GC notes from the possession of State Vs. Sanjeev Kumar Page 7 of 31 8 the accused. Presence of phenolphthalein powder in the hand wash and pocket wash of shirt of the accused corroborates the oral testimonies of aforesaid eye witnesses. The entire link evidence of case property has been proved. It is further argued that the accused has no justifiable explanation for his presence at the shop of the complainant. He had reached the spot on an invitation by the complainant which lends credence to the oral testimonies of eye witnesses. Shri Soni has relied upon the law laid down in Joginder Singh Malik Vs CBI 2014 III AD (Delhi) (Crl) 334.
7.1 Shri Neeraj Arora, Ld. defence counsel has argued at length and submitted that there was no cause of action for the accused to show any favour or disfavour to the complainant. He did not possess the capacity to provide any service to the complainant. The entire case has been orchestrated by Joginder Singh, who was President of Uttam Nagar RWA and who was annoyed with the accused on account of transfer of one safai karamchari.
7.2 It is next argued by Shri Arora that there are material inconsistencies in the statements of Complainant, Panch witness, Joginder Singh and the Raid Officer. There is no corroboration to the material aspect of the prosecution case. There is no evidence of the complainant being a builder carrying out construction of House No. B1/51, Kiran Garden, Uttam Nagar, Delhi. Accused has been implicated at the instance of Joginder Singh. Joginder Singh was State Vs. Sanjeev Kumar Page 8 of 31 9 present all through out the raid from the initial stage of lodging of complaint till return of raiding team to PSACB but his presence has been concealed by the Raiding Officer and Investigating Officer for no justifiable reasons. There is no evidence of demand of bribe or conscious acceptance thereof. Two employees of MCD namely Ram Saran (DW1) and one Jagbir Singh were present with the accused. One of them was brought to PSACB but IO has concealed this fact also. Ld. counsel has disputed the presence of ACP Roop Lal (PW12), RO of the case at the time of raid. It is argued that during his cross examination PW12 has not been able to disclose any fact which indicates that he had merely signed the documents while sitting at PS ACB and had actually not conducted the raid. A serious objection has been raised regarding deposit of case property in the malkhana on 31.08.2010. It was demonstrated from the call log details of the mobile phone of accused that the same was used on 01.09.2010 till about 11.15 AM. The prosecution case of deposit of personal search articles on 31.08.2010 is belied from the fact of the phone having been used on 1.9.2010 till about 11.15 AM.
8. I have heard the Ld. counsels and with their assistance perused the evidence on record and judgments relied upon by the Ld. defence counsel and Additional P.P. for the State. Analysis of the evidence that has come up on record leaves gaping holes in the prosecution story. All the material witnesses contradict each other State Vs. Sanjeev Kumar Page 9 of 31 10 and make totally inconsistent story. I shall now discuss the evidence that has come up on record and demonstrate the hollowness of the prosecution cases.
( I ) Satisfaction of Raid Officer before raid. 9.1 Complainant Neeraj Jain (PW12) in his testimony as well as, in his complaint Ex. PW7/A, has claimed himself to be a Property
Dealer and also that he had taken contract for construction of house No. B1/51, Kiran Garden, Uttam Nagar, Delhi. He has further deposed that building material was lying on the road and accused had served a notice upon him for removing the encroachment. Similar statement has been made by Joginder Singh (PW8). Raid Officer ACP Roop Lal (PW12) on being cross examined by Ld. defence counsel, deposed that he cannot pin point the spot where building material was lying. He did not know the distance or location of building material from the shop of complainant. He did not visit the site where the construction was being carried out. He did not remember if complainant had told him of any notice having been served upon him by the accused for removal of the building material. Inspector Naresh Kumar Dahiya (PW13), IO of the case on being cross examined deposed that he did not collect any documentary proof that Neeraj Jain was engaged in construction business. He did not ask him to furnish details of employees engaged by him in construction. He had not collected any document to State Vs. Sanjeev Kumar Page 10 of 31 11 substantiate that Neeraj Jain had taken contract for building H. No. B1/51, Kiran Garden, Uttam Nagar, Delhi. He did not visit the aforesaid premises during investigation. He did not visit the location where debris was stated to be lying. He had not recorded statements of employees of complainant. He had not recorded statement of complainant that notice was served upon him by the accused under DMC Act. He had recorded case diaries on 27.12.2010 and 07.01.2011 regarding directions to complainant to make available copy of challan/notice. He had also issued notice u/s 91 Cr.P.C. to the complainant and Superintendent, Sanitary Office to make available copy of challan/notice issued to the complainant by the accused. 9.2 From the evidence as noticed above, it can be gathered that there is no evidence on record except the bald statement of Neeraj Jain and Joginder Singh that construction was being carried out at plot No. B1/51, Kiran Garden, Uttam Nagar, Delhi. Statement of Joginder Singh does not carry any weight as he is an interested person. IO has not recorded the statement of owner of said premises or the workers engaged by complainant. Neither the RO nor the IO made any effort to visit the site and satisfy themselves as regards genuineness of this avernment. The alleged notice/challan issued by accused was not produced by the complainant and could not be summoned from the Sanitary Office of MCD. There is, thus, no corroboration documentary or otherwise, on record, to substantiate the oral State Vs. Sanjeev Kumar Page 11 of 31 12 testimony of complainant that he was raising construction and had encroached upon the road for which accused threatened him to stop construction and demanded bribe under the said threat. Raid Officer before conducting the raid did not ask the complainant to make a phone call in his presence to satisfy himself as regards the genuineness of complaint. Hon'ble High Court of Delhi in Hari Singh Yadav Vs State Criminal Appeal No. 464/04 decided on 18.02.2014 set aside the judgment of conviction, interalia, for the reason that trap had been laid without verifying the truth in the allegations made by the complainant.
II Evidence of initial demand dated 30.08.2010. 10.1 Prosecution has relied upon the testimony of
complainant Neeraj Jain (PW11) & Joginder Singh (PW8) to prove demand of Rs. 5,000/ as bribe by the accused on 30.08.2010. Neeraj Jain (PW11) in his examination in chief deposed that on 30.08.2010 at about 11.30 AM accused came at the construction site and instructed him to remove the building material and issued him a notice. He also threatened to get the construction work stopped and demanded Rs. 5,000/ as bribe. At that time his friend Joginder Singh was also present with him. On being cross examined by Ld. Chief PP, he said that accused had come to his construction site at about 1 0' clock. On being cross examined by Ld. defence counsel, he deposed that he had not met the accused at the construction site on 30.08.2010. Notice had State Vs. Sanjeev Kumar Page 12 of 31 13 been issued and served upon labour working at the site who in turn had handed over the notice to him at his shop. He further deposed that he had not handed over notice to the IO and cannot produce the same before the court.
10.2 Joginder Singh (PW8) on this part of the prosecution case deposed that on 30.08.2010 at about 11.00 AM, he was present with Neeraj Jain at latter's office. He had called the accused and advised him not to demand bribe from the complainant. On being cross examined by Ld. Chief PP he admitted that he was present with Neeraj Jain at the under construction house on 30.8.2010 where accused arrived at about 1.00 PM. Witness, however, denied the suggestion that accused demanded Rs. 5,000/ as bribe. On being cross examined by Ld. defence counsel he deposed that on 31.08.2010 ( wrongly typed as 30.08.2011 ) he had called the accused at a shop near the office of Neeraj Jain by sending a message through a safaikaramchari.
10.3 From the evidence as noticed above, no view can be formed as regards the time and place of meeting between accused, complainant and Joginder Singh. There is also no direct evidence of the accused having demanded bribe during this meeting. Complainant Neeraj Jain (PW12) took a somersault in his cross examination and denied having met the accused on 30.08.2010. Joginder Singh (PW8) deposed having met the accused at the under construction house but State Vs. Sanjeev Kumar Page 13 of 31 14 denied the suggestion of demand of bribe in his presence. Though, he admitted the suggestion that despite his best efforts accused was rigid on the issue of demand of bribe from the complainant; however, in my opinion this suggestion by Ld. Chief PP cannot be sufficient to hold beyond reasonable doubt that accused made the aforesaid demand from the complainant on 30.08.2010.
10.4 Prosecution case as regards the most material aspect of first demand, whereon edifice of trap and subsequent proceeding is built, does not stand proved at all. Complainant totally denies meeting the accused on that day and at that time. His friend Joginder Singh admits the meeting which complainant has denied but denies demand of bribe. The issuance and service of challan/notice by the accused is also not proved. No such notice/challan was ever produced by the complainant, during investigation. IO Naresh Kumar (PW13) has deposed that despite his best efforts, notice could not be procured from the office of Sanitary Inspector. The prosecution has thus failed to prove any such notice/challan having been served by the accused on the complainant, which was the basis of alleged demand of bribe. I, thus, hold that prosecution has failed to prove any meeting between the complainant and the accused on 30.08.2010 at about 1.00 PM at under construction site and demand of Rs. 5,000/ at that time.
(III) Evidence of demand of bribe at the time of trap. 11.1 To prove demand of bribe at the time of trap, prosecution State Vs. Sanjeev Kumar Page 14 of 31 15 case rests upon the testimony of Neeraj Jain (PW11) and panch witness Ramesh Chander (PW7). Neeraj Jain (PW11) has deposed that he had left PS ACB for the raid at about 10.00 AM. They reached at his shop at about 11.30 AM and from his shop he made a phone call to accused and accused assured that he was reaching the shop. On arrival of the accused, he negotiated with him for reducing the bribe amount but accused did not agree. He talked to the accused saying that bribe demanded was on the higher side. On being cross examined by Ld. Chief PP, he deposed that Raid Officer sent him inside the shop at 12. 15 PM and accused arrived at 12.55 PM ( wrongly typed as 21.55 PM). He also admitted that accused demanded Rs. 5,000/ from him in the presence of panch witness. On being cross examined by Ld. defence counsel he deposed that he had telephonically spoken to the accused on 31.8.2010 about 2/3 times in the presence of Joginder Singh and had not told the IO about the phone calls. On reaching metro pillar No. 722, 300 meters from his shop RO had briefed him. He had then proceeded with Joginder Singh in his car who dropped him at his shop. His shop was closed when he reached there and he opened the same. He did not remember if he had stated to the IO that he talked to the accused and negotiated to reduce the bribe amount. He has been confronted with his statement recorded during investigation where it was not so recorded.
11.2 Panch witness Ramesh Chander (PW7) on this part of State Vs. Sanjeev Kumar Page 15 of 31 16 prosecution case is absolutely silent in his examination in chief. He has deposed that on arrival of the accused in the shop complainant handed over treated GC notes to the accused saying that this was the amount which he had asked for. On a Court question being asked about nature of money, the witness answered that on the basis of contents of the complaint he could infer that the amount paid was towards the demand of accused for not challaning him. On being cross examined by Ld. Additional PP, he deposed that he had told the IO that on entering the shop, accused started talking to the complainant and demanded Rs. 5,000/ from him. On being cross examined by Ld. defence counsel he admitted that Joginder Singh had accompanied them to the shop of Jain Property Dealer and they had traveled in the same vehicle. Shop of Jain Property Dealer was already open when they reached there and an employee of Neeraj Jain was present at the shop. He did not know if accused was accompanied by other persons. 11.3 Though, prosecution is silent about the presence of Joginder Singh at the time of raid. However, Joginder Singh (PW8) in his cross examination deposed that RO, IO and Neeraj Jain traveled with him in his car from PSACB. During this journey complainant made two phone calls to the accused.
11.4 Raid Officer is silent about the phone calls made by complainant to the accused. Call Detail record of said phone calls has also not been seized. On cross examination by Ld. defence counsel, State Vs. Sanjeev Kumar Page 16 of 31 17 ACP Roop Lal (PW12) was unable to explain as to how the time of meeting with accused was fixed. He had not recorded this fact in any of the proceedings.
11.5 From the evidence as noticed above, it is apparent that prosecution has concealed the fact of Joginder Singh accompanying the Raiding team from PS to the spot. Complainant Neeraj Jain (PW11), panch witness Ramesh Chander (PW7) and Joginder Singh himself have deposed about his presence from police station to the shop of the accused. RO and IO have not tendered any explanation for not indicating his presence and for not associating him in this part of investigation, though he was apparently present. The time of arrival of accused for the trap is also shrouded in mystery. Who fixed the time with him and when the time was fixed is not on judicial record. Complainant and his friend Joginder Singh and also panch witness have deposed that complainant made phone calls to the accused, which fact has been washed out by the RO and IO. Neeraj Jain and Ramesh Chander have both not deposed in examination in chief regarding demand of bribe by the accused on his arrival at the shop. However, on being cross examined by Ld. prosecutor, they have both deposed that accused demanded Rs. 5,000/ from Neeraj Jain. Thus, it can be concluded that complainant Neeraj Jain and panch witness Ramesh Chander have deposed before the court, on being cross examined by prosecutor, that accused demanded Rs. 5,000/, on his State Vs. Sanjeev Kumar Page 17 of 31 18 arrival at his shop. However, the evidenciary value of these statements when tested against the inconsistencies and concealments leave a doubt about their correctness. The version of Neeraj Jain that he had negotiated with the accused at the time of demand of bribe is inconsistent and contrary to the testimony of panch witness Ramesh Chander (PW7) who has not deposed about any such negotiation at the time of trap. Both the material witnesses also contradict each other, about the status of shop of complainant, when they reached there. Complainant deposed that he opened the shop, whereas, panch witness has deposed that shop was already open. This contradiction may not be on a material aspect, nonetheless, demonstrates that the witnesses are not ad idem.
(IV) Acceptance of bribe at the time of trap. 12. 1 Neeraj Jain (PW11) has deposed that after negotiating
with the accused for reduction of the bribe, he took out treated GC notes from upper left pocket of his shirt and gave them to the accused who accepted the same in his left hand and kept them in upper left pocket of his shirt. Panch witness Ramesh chander (PW7) has deposed that on arrival of accused, complainant handed over treated GC notes to the accused and he kept the money in front pocket of his shirt saying that there was no hurry to have paid the amount. On being cross examined he deposed that on arrival, accused sat on chair on the right of Neeraj Jain. He did not know if accused was accompanied by State Vs. Sanjeev Kumar Page 18 of 31 19 two other persons.
12.2 On analysis of the evidence as noticed above, it can be gathered that both the witnesses have deposed about the accused having accepted treated GC notes from the complainant and having kept the same in his left side pocket of shirt.
(V) Recovery of treated GC notes 13.1 Neeraj Jain (PW11) has deposed that on acceptance of treated GC notes, panch witness gave a predetermined signal and
raiding team entered the room. Panch witness told the RO that accused had kept the bribe money in upper left pocket of his shirt. Notes were got recovered and taken into possession. Washes of the hand and pocket were taken and transferred to bottles. Panch witness Ramesh Chander (PW7) has also deposed in similar terms. Raid Officer ACP Roop Lal (PW12) has also deposed that on receiving the predetermined signal he entered the shop of complainant and on his instruction panch witness recovered the treated GC notes from the left front pocket of shirt of the accused. Serial number of recovered GC notes were found to be matching with the serial number of notes treated with phenolphthalein powder before the raid. He has also deposed about the hand wash and shirt pocket wash of the accused, sealing and seizing of bottles and shirt. On being cross examined he did not remember the time and date of return of sealed by the panch witness. He deposed that it was most likely return on the next day. State Vs. Sanjeev Kumar Page 19 of 31 20 13.2 PW7 has also deposed that shirt of accused was converted into pulanda and sealed at the spot. Ramesh Chander (PW7) on being cross examined deposed that shirt of accused was got removed in PS ACB. Neeraj Jain (PW11) during his cross examination has deposed that accused traveled from his shop to PS ACB in vest without a shirt. He was provided a shirt by his family members at PS ACB. Inspector Naresh Kumar Dhahiya (PW13) has further compounded the confusion when he answered in crossexamination that accused was wearing a shirt when he was handed over to his custody. RO/Inspector Roop Lal (PW12) has deposed that shirt of the accused was got removed and sealed in a pulanda at the spot and was seized, vide seizure memo Ex.PW7/D. The witness has not explained in his testimony as to when, where and how and if it all accused was provided a shirt. Neeraj Jain (PW11) has also deposed that shirt pocket wash was taken at PSACB. The proceedings supposedly carried at the spot, therefore, become doubtful.
13.3 From the evidence as noticed above, it can be made out that all the three witnesses have deposed about treated government currency notes having been recovered from the pocket of shirt of the accused. However, they have inconsistently deposed about the sealing and seizing of shirt of the accused. Prosecution is unable to prove beyond reasonable doubt that shirt of accused which was allegedly found stained with phenolphthalein powder, was sealed and seized at State Vs. Sanjeev Kumar Page 20 of 31 21 the spot of recovery. Some element of doubt thus is introduced about the proceeding, regarding recovery of treated GC notes from the possession of accused.
14.1 From the discussion of evidence as noticed above, the prosecution case as regards demand of bribe on 30.08.2010 i.e. prior to trap and on 31.8.2010 at the time of trap are not proved beyond reasonable doubt. The factum of acceptance of treated GC notes and recovery from the possession of the accused at the time of trap are sufficiently deposed by the prosecution witnesses, but suspicious circumstances surrounding the case introduce any element of doubt about the correctness of allegations, the progress of trap and the trap proceedings. It is settled preposition of law that proof of demand of bribe is sine qua non; without the proof of demand of bribe, mere recovery is not sufficient to indict the accused. In B. Jayaraj Vs State of A.P. 2014 (2) RCR (Criminal) 410, the Hon'ble Supreme Court has held as under: ' In so far as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute th said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position State Vs. Sanjeev Kumar Page 21 of 31 22 has been succinctly laid down in several judgments of this Court'.
14.2 Reliance by Shri Soni, Ld. Additional PP on Joginder Singh Malik's case (supra ) is misplaced. Presumption u/s 20 of the PC Act cannot be raised unless prosecution proves beyond reasonable doubt conscious demand and conscious acceptance of bribe. Mere proof of acceptance or recovery cannot invoke presumption u/s 20 of the POC Act. In Joginder Singh Malik's case presumption was drawn as conscious demand and conscious acceptance of bribe had been proved beyond reasonable doubt.
14.3 Similar view was taken by the Hon'ble Supreme Court in Rakesh Kapur Vs State of Himachal Pradesh reported as 2013 (1) RCR (Criminal) 211. Over and above the doubtful circumstances noticed above, the following circumstances also create a doubt as regards the case of prosecution.
15. It shall be apposite to enumerate the contradictions and inconsistencies in the statements of witnesses on various aspects of the raid and investigation. When read individually, the circumstances may not look glaring but when read together they leave impression in the mind of the court that the approach of Raid Offer and Investigating Officer has been extremely casual. The circumstances create a doubt in the mind of the court as regards the entire case against the accused.
(a) LINK EVIDENCE State Vs. Sanjeev Kumar Page 22 of 31 23 MHC (M) Ram Kumar (PW10) has proved entry in register no.19 regarding deposit of case property and personal search articles, as Ex.PW10/A. He has deposed that the same were deposited with him by Inspector Naresh Kumar Dahiya (PW13). However, Inspector Naresh Kumar (PW13), when confronted with the Call Log Record of Mobile Phone of the accused, which was recovered during his personal search and deposited in the personal search articles; answered to a court question that possibly personal search articles were got deposited on the next day, through a constable. He did not remember the name of such constable. It is very pertinent to mention that the Call Log Record of the mobile phone of the accused indicated 3 calls having been made to telephone no.20298556 on 01.09.2010, till 11:15 AM. In another answer, during his crossexamination, Naresh Kumar (PW13) has deposed that the personal search articles of the accused had been deposited in the Malkhana at about 08:30 PM on 31.08.2010. In my opinion, there is absolutely no justifiable explanation with the IO, as to how the mobile phone of accused was used almost 14 hours after it had been deposited in the Malkhana. Obviously, the entry in register no.19 regarding deposit of personal search articles of the accused is false and fabricated If the defence is able to demonstrate conclusively that the part entry regarding deposit of personal search articles is false, a doubt is created about the remaining part of the entry regarding deposit of case property. Moreover, as discussed in para 13.2 above, the time of sealing and State Vs. Sanjeev Kumar Page 23 of 31 24 seizing of shirt of accused is also doubtful. Seal of RO was in his custody on the very next day and as demonstrated above, case property was not deposited in malkhana till the next day.
(b) FIRST COMPLAINT WITHHELD BY THE PROSECUTION Complainant Neeraj Jain (PW11), in his examination in chief has proved complaint dated 31.08.2010 having been made by him at PSACB. Copy, whereof, was exhibited as Ex.PW7/A. During cross examination, he deposed that on 30.08.2010, he had gone to PSACB and stayed there for about 1 hour. 'He had given a written application on that day. Complaint Ex.PW7/A was given on 30.08.2010'. He was put a court question to clarify the date of complaint, as complaint Ex.PW7/A was dated 31.08.2010. In answer to the court question, he deposed that he did not remember if the complaint written on 30.08.2010 was submitted to the IO or not. Complaint Ex.PW7/A was, however, written on 31.08.2010, as it bears the date of 31.08.2010. Analysis of the statement of complainant as noticed above, leaves no room for doubt that a complaint was written on 30.08.2010, as well. Raid Officer or Investigating Officer have not explained as to why the said complaint was not taken on record. The contents of the first complaint are very material and have been apparently withheld, causing prejudice to the defence. In fact presumption u/s 114(g) of Indian Evidence Act can be invoked against the prosecution that the complaint was withheld as it would have benefited the accused. The Hon'ble Supreme Court in State Vs. Sanjeev Kumar Page 24 of 31 25 Mohanlal Shamji Soni Vs Union of India & Anr. 1991 (3) RCR (Criminal) 182 has held as under: ' Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be unfavourable to the party withholding such evidence, the Court can draw a presumption under illustration (g) to Section 114 of the Evidence Act'.
(c) ACCUSED HAVING BEEN BROUGHT TO PSACB AFTER
THE RAID.
It is the case of the prosecution that after being
apprehended and arrested at the spot, accused was taken for medical examination to Aruna Asaf Ali Hospital and then brought to PSCivil Lines, where he was put in the lockup. IO/Inspector Naresh Kumar Dahiya (PW13) has so deposed. However, two of the material prosecution witnesses have deposed differently. Ramesh Chander - Panch witness (PW7), during crossexamination by ld. defence Counsel deposed that shirt of the accused was got removed at PSACB. His family members had been contacted to send spare clothes but till his stay in PSACB, clothes had not been sent by the family members. He has further deposed that accused was still in PSACB when he left the same and was present throughout the proceedings at PSACB. Similarly, Neeraj Jain (PW11), in his examination in chief on 23.01.2014, has deposed that accused traveled in vest, without shirt, from his shop to PS State Vs. Sanjeev Kumar Page 25 of 31 26 ACB. He was provided shirt by his family members at PSACB. This testimony of Neeraj Jain (PW11) and Ramesh Chander does cause a doubt on the testimony of IO/ Inspector Naresh Kumar Dahiya (PW13) about accused having been put in the lock up at PSCivil Lines after being brought from Aruna Asaf Ali Hospital. There is no explanation as to why accused was brought to PSACB, unless his signatures were to be obtained on proceedings supposed to have been done at the spot.
(d) SHIRT HAVING BEEN SEIZED AT THE SPOT From the Statement of witnesses, as noticed in sub para (c) above, there is a contradiction whether accused was wearing a shirt when he left the spot after his arrest or not. As discussed in 13.2 para above, sealing and seizure of shirt of accused at the spot has become doubtful, causing dent in the spot proceedings.
(e) RECOVERED GC NOTES HAVING BEEN PUT IN THE ENVELOPE
Ramesh Chander (PW7), in reply to a court question, during crossexamination by ld. defence counsel answered that treated GC notes recovered from the pocket of shirt were kept in an envelope and sealed. Constable Kuldeep (PW6), who was also a member of the raiding team, has deposed that recovered currency notes were kept in an envelope but not sealed. There is no crossexamination of Ct. Kuldeep (PW6) by the State or a suggestion that the currency notes, after the recovery, were not kept in envelope. However, other witnesses to the State Vs. Sanjeev Kumar Page 26 of 31 27 recovery have not deposed about the recovered GC notes having been kept in an envelope.
(f) CONCEALMENT ABOUT PRESENCE OF JOGENDER SINGH i) Complaint Ex.PW7/A, apparently written by the
complainant at PSACB on 31.08.2010 in the presence of RO, records that Jogender Singh had come with him, who advised him to file a complaint at PSACB. Neeraj Jain - complainant (PW11) has ofcourse deposed in the examination in chief itself that on 31.08.2010, he went with Joginder Singh to PSACB and gave his complaint. During his crossexamination by ld. defence counsel, he further deposed that he had come with Jogender Singh on the day of trap in his vehicle. They had returned to his shop in the same vehicle at the time of trap. After dropping him at his shop, Jogender had left with his car. He has also deposed that after the raid, he traveled with Jogender Singh in his car to PSACB. Witness has also deposed that at the time of writing his complaint, Jogender Singh was with him and he had advised him about the contents of the complaint. Ramesh Chander - Panch witness (PW7), during his cross examination by ld. defence counsel deposed that Jogender Singh reached the room of Raid Officer, where he was present, after he had read the complaint. He further admitted that Jogender Singh accompanied them to the shop of Jain Property Dealer (Spot of occurrence) and they traveled in the same vehicle. He also returned with State Vs. Sanjeev Kumar Page 27 of 31 28 them to PSACB, after the raid and left PSACB simultaneous to departure of the witnesses. RO/ Inspector Roop Lal (PW12) also acknowledges the presence of Jogender Singh; though, he initially tried to wish away his presence. In crossexamination by ld. defence counsel, he deposed that Jogender Singh had not come to his room on 31.08.2010. However, in the later part of the crossexamination, he voluntarily stated that Jogender Singh had left from PSACB and had not joined the raid. Jogender Singh (PW8) has ofcourse deposed that on 31.08.2010, he reached PSACB at 09:30 AM with the complainant, where complaint was lodged by Neeraj Jain. During crossexamination by ld. defence counsel, he deposed that raiding team left PSACB in Maruti Van. Both the Inspectors and Neeraj Jain sat in his car when the team left for the raid.
ii) From the evidence as noticed above, the presence of Jogender Singh on 31.08.20140 at PSACB with the complainant before the raid and his traveling from PSACB to the spot, with the raiding team is sufficiently proved. He is also stated to have returned to PSACB after the raid with the complainant. However, excluding him from the proceedings seems deliberate and conscious effort by the Raid Officer & Investigation Officer. This becomes significant in view of the defence evidence that Jogender Singh was annoyed with accused and had a score to settle.
16.1 Accused has examined Ram Saran (DW1) as sole State Vs. Sanjeev Kumar Page 28 of 31 29 defence witness. Ram Saran (DW1) who is a safai karamchari in MCD and was working under the control of the accused at the relevant time has given a different version of the proceedings on day of trap. He has deposed that he was present with the accused on 31.8.2010. At about 11.30 AM accused received a phone call from one Jain and they reached in about 15 minutes at Kiran Garden, Matiala Road. Accused had directed him to pick up his broom and other tools to clean a drain at Matiala Road. On reaching the spot, Joginder Singh President of RWA was present along with Mr. Jain and 6/7 police officials. Accused and the witness were bundled in a vehicle and brought to PS ACB. At about 6.00 PM they were instructed to arrange spare cloths and new shirt was purchased for the accused by Joginder. He has further deposed that he had been transferred by the accused on the asking of Joginder to the area of Om Vihar but subsequently brought back to the area of Kiran Garden, against the wishes of Joginder. On being cross examined by Ld. Additional PP he deposed that he had not lodged any complaint before police or the court or his department that he had been forcibly taken to PSACB on 31.08.2010. His broom and tools were misplaced, for which he had not informed MCD. 16.2 Presence of Ram Saran (DW1) at the spot at the time of alleged money transaction and then having been brought to PSACB with accused is admitted by prosecution witness as well. Complainant Neeraj Jain (PW11) has deposed that Ram Saran @ Baba had come to State Vs. Sanjeev Kumar Page 29 of 31 30 his shop with the accused for collection of bribe and was brought to PS ACB with the accused. His presence at the shop at the time of trap and then subsequently at PS ACB has thus been with held by the RO and IO. The only explanation for concealing his presence could be to compromise with the truth and project a wrong version. Defence version may not stand proved, but definitely causes a doubt about the prosecution version, which is an apparent attempt to conceal the complete truth.
16.3 Shri Sanjay Soni, Ld. Prosecutor has argued that the arrival of the accused at the shop of complainant remains unexplained at the end of accused and inference, thus, can be drawn that he had come to collect the bribe. In my opinion the Ld. Prosecutor is trying to unsettle the legal preposition that prosecution has to prove its case beyond reasonable doubt. In fact, there is also a doubt whether the accused had actually entered the shop of the complainant or not. His arrest memo Ex. PW7/F records the place of arrest as shop No. G2, Kiran Garden, Matiala Road, Uttam Nagar, Delhi; whereas the address of complainant's shop is G1, Kiran Garden, Matiala road, Uttam Nagar, Delhi. The place of arrest as indicated in Arrest memo, lends credence to the defence version that accused along with safai karamchari Ram Saran had reached near the shop of the complainant on being asked to reach there for cleaning some drain and were picked up from there.
State Vs. Sanjeev Kumar Page 30 of 31 31
17. For the reasons stated in Para nos. 9 to 16, I find that prosecution has failed to prove beyond reasonable doubt that accused had demanded any illegal gratification from the complainant in connection with discharge of his official duties. The amount recovered from the possession of the accused is not proved beyond reasonable doubt to be an amount towards bribe. Prosecution has, thus, failed to prove the charges framed against the accused. Accused is, therefore, acquitted of all the charges for offence punishable u/sec.7 & 13 of the POC Act.
18. However, in terms of sec.437 (A) Cr.P.C., accused is directed to furnish a bail bond for the amount of Rs.50,000/ with one surety in the like amount, to appear before the appellate court, as and when such notice is issued, in respect of any appeal, which may be filed against this judgment.
File be consigned to Record Room.
Announced in the open Court (NAROTTAM KAUSHAL)
on 31.07.2014 SPECIAL JUDGE (PC ACT)05
(ACB), TIS HAZARI COURTS
DELHI
State Vs. Sanjeev Kumar Page 31 of 31