Delhi District Court
State vs . Om Prakash Chopra on 22 August, 2014
IN THE COURT OF SHRI B.R. KEDIA, SPECIAL JUDGE07
(CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
CC.NO. : 03/14
Unique Case ID : 02401R0210032014
STATE VS. OM PRAKASH CHOPRA
S/o Sh. Hukum Chand,
R/o House No. 02,
Village Bakkarwala, New Delhi.
FIR NO. : 02/11
U/S : 7 & 13 of Prevention of Corruption
Act, 1988
P.S. : Anti Corruption Branch, Delhi
Date of Institution 06.05.2014
Judgment reserved on 13.08.2014
Judgment delivered on 22.08.2014
JUDGMENT
1. The precise case of the prosecution is that on dated 25.04.2011 complainant Sh. Jagdish Prasad S/o Late Sh.Banarsi Das C.C. No. 03/14 Page No. 1 of 50 who was an old man aged about 72 years, went to Anti Corruption Branch, Delhi and got lodged his complaint Ex.PW3/B regarding demand of bribe of Rs.1500/ by the accused Om Prakash Chopra who was working as Record Keeper in the Office of Sub RegistrarII, Kashmere Gate, Delhi for getting issuance of certified copy of the Old Record relating to the Property No.238, T.Extension, Ist floor, Vishwas Park, Uttam Nagar, Delhi.
2. The gist of the said complaint is that the complainant Jagdish Prasad had negotiated to purchase the Property No. 238, T.Extension, Ist floor, Vishwas Park, Uttam Nagar, Delhi and had given advance amount of Rs. 1 Lac to the seller of the said property. Therefore, the complainant had applied for the certified copy of Old Record of said property in the Office of Sub RegistrarII, Kashmere Gate, Delhi, for which the Record Keeper accused Om Prakash Chopra had demanded bribe of Rs.1500/ from the complainant for getting issuance of the required certified copy and the accused had asked the complainant for the said purpose on the evening of 25.04.2011. Since the complainant was against giving of bribe, he went to Anti Corruption Branch and got his complaint lodged before the then Inspector Naresh Kumar, Raid Officer PW11 in presence of Panch C.C. No. 03/14 Page No. 2 of 50 witness Vinay Saxena, PW5.
3. The further case of the prosecution is that the complainant has produced 3 GC notes of Rs. 500/ each before the Raid Officer PW11 who noted down the serial number of said GC notes in the pre raid proceedings Ex.PW5/A and treated the said GC notes with phenolphthalein powder. Thereafter, Raid Officer PW11 gave demonstration to the Panch witness, complainant by getting touched the right hand of the Panch witness with that treated currency notes and wash of the right hand of the Panch witness in the colourless solution of sodium carbonate which turned into pink. Thereafter, said GC notes were handed over to the complainant and Panch witness was instructed to remain close with the complainant and to overhear the conversation between the complainant and the person demanding the bribe amount and to give signal by waiving his right hand over his head twice after being satisfied that the bribe has actually been given.
4. That at about 4:30 p.m., PW11 Raid Officer along with complainant, Panch witness, Inspector Roop Lal and other members of the raiding party left Anti Corruption Branch in a government vehicle and reached at Ritz Cinema, Kashmere Gate, Delhi. Government C.C. No. 03/14 Page No. 3 of 50 vehicle was parked at some distance, Inspector Roop Lal alongwith the Driver remained in the vehicle. Complainant and Panch witness went inside the Office of the accused at Sub Registrar OfficeII, Kashmere Gate and the members of the Raiding team took suitable position.
5. The further case of the prosecution is that at about 5:00 p.m. on receiving the predetermined signal from Panch witness, Raid Officer alongwith the raiding team reached the spot where Panch witness informed that the accused had demanded and accepted bribe of Rs.1500/ from the complainant with his right hand and kept the same in his right hand. Thereafter, Raid Officer after disclosing his identity challenged the accused that he had demanded and accepted the bribe of Rs.1500/ from the complainant and offered his search but accused declined. On his directions, Panch witness recovered bribe amount of Rs.1500/ from the right hand of the accused and compared the serial number of that GC notes with serial number mentioned in pre raid proceedings Ex.PW5/A and the same tallied. That recovered GC notes were taken into possession vide seizure memo Ex.PW5/C. The wash of right hand of the accused was taken in colorless solution of sodium carbonate which turned into pink and solution was transferred into two empty small clean bottles which were sealed with the seal of NKD and C.C. No. 03/14 Page No. 4 of 50 were marked as RHWI & RHWII by pasting slips thereon which were signed by Raid Officer, complainant and Panch witness. Those bottles and sample seal were taken into possession vide Seizure Memo Ex.PW5/D. The Raid Officer also drawn up the post raid proceedings which is Ex.PW5/B and prepared rukka and sent the same through Ct. Krishan Kumar to PS Anti Corruption Branch for registration of the case.
6. The further case of the prosecution is that the Raid Officer called Inspector Roop Lal PW4, IO at the spot and handed over him the custody of the accused, case property and relevant documents etc. for purpose of Investigation. I.O. took up the Investigation, prepared the Site Plan Ex.PW4/A. IO recorded the statement of complainant and Panch witness, interrogated the accused and arrested the accused vide Memo Ex.PW4/B and conducted the personal search of the accused vide Personal Search Memo Ex.PW4/C. The IO also collected the certified copy of the Sale Deed Ex.PW4/E from the complainant vide Seizure Memo Ex.PW4/D. IO also received original rukka and copy of FIR, got accused medically examined and thereafter, went to PS Civil Line where he deposited the case property, exhibits and articles of personal search with the MHC(M) and the accused was put in the lock C.C. No. 03/14 Page No. 5 of 50 up. During the course of Investigation, the relevant exhibits were sent to FSL for chemical analysis and later on FSL Report Ex.PW2/A was received. Biodata of the accused Ex.PW1/B and Sanction Order Ex.PW1/A for launching prosecution against the accused were also received by the IO. IO on recording the statement of the witnesses and after completion of the Investigation, prepared the chargesheet and filed in the court.
7. After compliance with the provision U/S 207 of Cr.P.C and after hearing both sides on the point of charge, charge for offence punishable U/S 7 and 13 (2) r/w Section 13 (1) (d) of the Prevention of Corruption Act, 1988 was framed against accused on 29.05.2014 to which accused pleaded not guilty and claimed trial.
8. Thereafter, in order to bring home the guilt of the accused, the prosecution got examined 11 prosecution witnesses namely Sh.Dharampal, Division Commissioner, Delhi, Sanctioning Authority against the accused as PW1, Sri Narain, Assistant Director (Chemistry), FSL, Rohini, Delhi as PW2, HC Suraj Pal, the then Duty Officer at PS AC Branch, a formal witness as PW3, the then Inspector Roop Lal/Part IO as PW4, Vinay Saxena, Panch witness as PW5, C.C. No. 03/14 Page No. 6 of 50 Ct.Krishan Kumar who had taken the rukka from the spot and got registered the FIR, a formal witness as PW6, HC Ram Kumar, the then MHC(M), PS Civil Line, a formal witness as PW7, Ct.Anil Kumar who had deposited the relevant case property at FSL, Rohini and subsequently, collected the FSL Report and remaints of the exhibits from FSL,a formal witness as PW8, HC Jai Krishnana, a formal witness as PW9, Inspector B.K.Singh, the last IO as PW10 and Inspector Naresh Kumar/Raid Officer as PW11.
9. After closure of the PE, statement of accused under Section 313 Cr.P.C. was recorded in which the accused denied about any demand and acceptance of the bribe from the complainant. Accused claimed to be falsely implicated in this case having no concern with the alleged offence. The accused in his defence got examined one Mokhtar Mahto, Record Keeper from the Office of Sub Registrar, Kashmere Gate as DW1 and thereafter, DE was closed.
10. I have heard Final Arguments as addressed by Sh. Yogesh Kumar Verma Adv. Ld. Counsel for the accused and Sh.Vinod Kumar Sharma, Ld. Addl. PP for the State and perused the relevant record. C.C. No. 03/14 Page No. 7 of 50
11. It is submitted by Ld. Counsel for the accused that the accused has neither demanded nor accepted any bribe from the complainant Jagdish Prasad and even otherwise, the prosecution has failed to prove about the said aspects and hence, the accused deserves to be acquitted. It is further added by Ld. Counsel for the accused that the complainant Jagdish Prasad who was the most material witness of prosecution could not be examined as a prosecution witness during course of trial and therefore, same is fatal for the case of the prosecution. It is further added by Ld. Counsel for the accused that even PW5 Vinay Saxena, Panch witness has not deposed regarding any demand of bribe by the accused from the complainant and therefore, the demand of bribe as against the accused could not be proved by the prosecution. It is further added by Ld. Counsel for the accused that as said PW5/Panch witness was declared hostile and was cross examined by Ld. Addl. PP on behalf of the State and therefore, his deposition deserves to be kept out of consideration. It is further added by Ld. Counsel for the accused that as the IO has not seized any Agreement to Sell relating to said property No.238, T. Extension, Ist Floor, Vishwas Park, Uttam Nagar, Delhi which was stated to be purchased by the complainant, the same is fatal for the prosecution. It is further added by Ld. Counsel for the accused that the Raid Officer is an interested C.C. No. 03/14 Page No. 8 of 50 witness for success of his raid and therefore, his deposition cannot be treated as trustworthy and reliable. It is further added by Ld. Counsel for the accused that nonexamination of the previous Owner of the said property by the IO as a PW is also fatal for the case of the prosecution. It is further added by Ld. Counsel for the accused that the IO had not seized the Application Form for obtaining the certified copy of Old Record of said property nor seized the Register containing the Receipt of the said Application from the Office of the accused and same are also fatal for the case of the prosecution. It is further added by Ld. Counsel for the accused that though the complainant in his Complaint Ex.PW3/B stated that he had applied for the certified copy of the Old Record of said property in the Office of the accused on 13.04.2011 but same is falsified from the deposition of DW1 Mokhtar Mahto coupled with copy of the entry of the Register Ex.DW1/A showing that the required certified copy was applied by the complainant on dated 19.04.2011. It is further added by Ld. Counsel for the accused that PW5/Panch witness is a stock witness of the police as he has joined duty as Panch witness several times at Anti Corruption Branch and he has deposed under the fear of the official of Anti Corruption Branch, therefore, his deposition cannot be treated as trustworthy and reliable. It is further added by Ld. Counsel for the accused that this accused was C.C. No. 03/14 Page No. 9 of 50 merely working as Record Keeper in the Office of Sub RegistrarII, Kashmere Gate, Delhi and he was not competent for preparation of the certified copy of the required record and therefore, there was no occasion on the part of this accused to demand any bribe from the complainant in this respect. It is further added by Ld. Counsel for the accused that though other persons were available in the Office of the accused but none of them was joined in the Raid Proceedings and same falsify the case of the prosecution. It is further added by Ld. Counsel for the accused that even otherwise, no proceedings were conducted at the spot and all the documents were prepared after raid in the Office of Anti Corruption Branch and same also falsify the case of the prosecution. It is further added by Ld. Counsel for the accused that mere recovery of the money in the absence of demand of bribe can be of no help for the prosecution. It is further added by Ld. Counsel that PW1 Dharampal, Divisional Commissioner has passed the Sanction Order mechanically without application of his mind merely on the draft proforma sent by the Anti Corruption Branch and therefore, said Sanction Order is legally Invalid and the accused deserves to be acquitted on this count itself. Ld. Counsel for the accused thus urged for acquittal of this accused and referred and relied upon following Judgments: 2011 (3) CC Cases (HC) 328, AIR 2010 SC 1589, 2008 C.C. No. 03/14 Page No. 10 of 50 (4) Crimes 137 and Criminal Appeal No.206/2002, Date of Decision 25.03.2011, P.S.Yadav Vs. CBI.
12. To the contrary, it is submitted by Ld. Addl. PP for the State that the prosecution by examining 11 PWs have clearly established its case as against the accused and therefore, the accused deserves to be convicted for the charged offence U/S 7 and 13 (2) of Prevention of Corruption Act, 1988. It is further added by Ld. Addl. PP for the State that the complainant Jagdish Prasad could not be examined as a PW during trial as he has expired earlier and his Death Verification Report is available on record. It is further added by Ld. Addl. PP that no doubt PW5/Panch witness in his examination in chief could not depose regarding all the facts but in his cross examination on behalf of the State, he has clearly deposed regarding all the facts substantiating the case of the prosecution against the accused. It is further added by Ld. Addl. PP that mere fact that PW5/Panch witness was declared hostile and was cross examined on behalf of the State, does not mean that the entire deposition of said PW5 will be thrown out of the consideration. It is further added by Ld. Addl. PP that there is no reason as to why PW4 the then Inspector Roop Lal/Part IO, PW5 Vinay Saxena/ Panch witness, PW10 Inspector B.K.Singh/Part IO and PW11 Inspector C.C. No. 03/14 Page No. 11 of 50 Naresh Kumar/Raid Officer would falsely implicate the accused specifically when there is no previous enmity as against the accused by them. It is further added by Ld. Addl. PP that there is no explanation by the accused as to how 3 GC notes of Rs.500/ each which were initially lying with the complainant were recovered from the right hand of the accused and the same substantiate the case of the prosecution against the accused. It is further added by Ld. Addl. PP that PW5/Panch witness has clearly deposed regarding the demand, acceptance and recovery of the bribe amount as against the accused and there is no reason to disbelieve the same. It is also added by Ld. Addl. PP that PW1/Sanctioning Authority has rightly passed the Sanction Order against the accused on due appreciation of the relevant material and said Sanction Order is legally valid and there is no infirmity on the said Sanction Order. Ld. Addl. PP for the State has added that the prosecution has been successful in establishing its case as against the accused for the charged offence and hence, the accused deserves to be convicted.
13. The first and foremost question having significant bearing on the fate of this case is whether prosecution has proved that valid Sanction has been accorded by the Competent Authority as against the C.C. No. 03/14 Page No. 12 of 50 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 that PW1 Dharampal, Divisional Commissioner has passed the Sanction Order mechanically without application of his mind merely on the draft proforma sent by the Anti Corruption Branch and therefore, said Sanction Order is legally Invalid and the accused deserves to be acquitted on this count itself. To the contrary, it is submitted by Ld. Addl. PP on behalf of the State that PW1/Sanctioning Authority has rightly passed the Sanction Order against the accused on due appreciation of the relevant material and said Sanction Order is legally valid and there is no infirmity on the said Sanction Order.
14. That in order to prove sanction concerning the accused Om Prakash Chopra, the prosecution had examined PW1 Dharampal, Divisional Commissioner, Delhi who had categorically deposed that on on receipt of the request along with copies of FIR, Raid Report, Seizure Memo, statement U/S 161 Cr.P.C., FSL Report as received from Anti Corruption Branch to prosecute the accused Om Prakash Chopra, UDC/ the then Record Keeper at Sub Registrar Office, Kashmere Gate, Delhi, the said documents were placed before him and after going through the same and applying his mind and after C.C. No. 03/14 Page No. 13 of 50 examining the facts and circumstances of the case, and he being the Competent Authority to remove accused Om Prakash Chopra from service, he accorded Sanction for launching prosecution as against accused Om Prakash Chopra and said Sanction Order is Ex.PW1/A bearing his signature at point A. In the crossexamination by Ld. Defence Counsel, said PW1 has clearly deposed that he has not received any proforma of sanction draft from AC Branch before according Sanction. He has categorically denied the suggestion of Ld. Defence Counsel that he had accorded the Sanction for prosecution of the accused in mechanical manner without applying his mind or that he was not competent to accord Sanction for prosecution or that a draft sanction was sent by AC Branch in response to which he issued the Sanction Order mechanically.
15. 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 C.C. No. 03/14 Page No. 14 of 50 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".
16. 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.
17. In the case reported in "2011 I AD (CRI.) (S.C.) 1, Kootha Perumal Vs. State (through) Inspector of Police, Vigilance & Anti C.C. No. 03/14 Page No. 15 of 50 Corruption", it was held in Para 14 by Hon'ble Supreme Court of India as under: "Keeping in view the aforesaid statement of law, it would not be possible to conclude that the sanction order in the present case was not valid. Ex.P2 with the present appeal is the copy of the sanction order. A perusal of the same would show that the sanctioning authority has adverted to all the necessary facts which have been actually proved by the prosecution in the trial. Upon examination of the material facts, the sanctioning authority has certified that it is the authority competent to remove the appellant from the Office. It is specifically stated that the statements of the witnesses have been duly examined. Sanction order also states that the other materials such as copy of the FIR as well as other official documents such as the different mahazars were carefully examined. Upon examination of the statements of the witnesses as also the material on record, the sanctioning authority has duly recorded its satisfaction that the appellant should be prosecuted for the offences, as noticed above. We, therefore, find no merit in the submission of the learned counsel that the sanctioning order to prosecute the appellant was not legal".
C.C. No. 03/14 Page No. 16 of 50
18. 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.
d) Grant of sanction is only an administrative function and the sanctioning authority is C.C. No. 03/14 Page No. 17 of 50 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."
19. 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 C.C. No. 03/14 Page No. 18 of 50 concerned, in the absence of anything to show that any defect or irregularity therein caused failure of justice, that plea is without substance."
20. Furthermore, so far as giving of the opportunities of hearing to the accused is concerned, the Law is very clear that the Sanctioning Authority is not required to give any opportunity of hearing to the accused before according Sanction and my said view is nourished from the Judgment as rendered by Hon'ble Supreme Court of India, in the case reported as "Superintendent of Police (CBI) Vs. Deepak Chaudhary", 1996 Crl. J. 405 (SC).
21. By taking cue from the aforesaid judgments and applying the same to the facts of the present case, I do not find any force in the submission of Ld. Counsel for the accused to the effect that said Sanction Order Ex.PW1/A concerning the accused is legally Invalid. I am of considered view that the Sanction concerning the accused has been validly granted by the competent Authority on proper appreciation of the material on Record.
22. That during the course of argument, it is submitted by Ld. C.C. No. 03/14 Page No. 19 of 50 Counsel for the accused that the accused has neither demanded nor accepted any bribe from the complainant Jagdish Prasad and even otherwise, the prosecution has failed to prove about the said aspects and hence, the accused deserves to be acquitted. It is further added by Ld. Counsel for the accused that the complainant Jagdish Prasad who was the most material witness of prosecution could not be examined as a prosecution witness during course of trial and therefore, same is fatal for the case of the prosecution. It is further added by Ld. Counsel for the accused that PW5/Panch witness is a stock witness of the police as he has joined duty as Panch witness several times at Anti Corruption Branch and he has deposed under the fear of the official of Anti Corruption Branch, therefore, his deposition cannot be treated as trustworthy and reliable. To the contrary, it is submitted by Ld. Addl. PP for the State that the complainant Jagdish Prasad could not be examined as a PW during trial as he has expired earlier and his Death Verification Report is available on record. It is further added by Ld. Addl. PP that no doubt PW5/Panch witness in his examination in chief could not depose regarding all the facts but in his cross examination on behalf of the State, he has clearly deposed regarding all the facts substantiating the case of the prosecution against the accused. It is further added by Ld. Addl. PP that mere fact that PW5/Panch witness C.C. No. 03/14 Page No. 20 of 50 was declared hostile and was cross examined on behalf of the State, does not mean that the entire deposition of said PW5 will be thrown out of the consideration. It is further added by Ld. Addl. PP that there is no reason as to why PW4 the then Inspector Roop Lal/Part IO, PW5 Vinay Saxena/ Panch witness, PW10 Inspector B.K.Singh/Part IO and PW11 Inspector Naresh Kumar/Raid Officer would falsely implicate the accused specifically when there is no previous enmity as against the accused by them. It is further added by Ld. Addl. PP that there is no explanation by the accused as to how 3 GC notes of Rs.500/ each which were initially lying with the complainant were recovered from the right hand of the accused and the same substantiate the case of the prosecution against the accused.
23. In order to prove that the accused had demanded and accepted the bribe amount from the complainant, the prosecution is found to have examined PW4 the then Inspector Roop Lal/Part IO, PW5 Vinay Saxena/ Panch witness, PW10 Inspector B.K.Singh/Part IO and PW11 Inspector Naresh Kumar/Raid Officer. PW5 Vinay Saxena/Panch witness has clearly deposed before the court that on dated 25.04.2011, he was on duty as a Panch witness in the Anti Corruption Branch and complainant lodged his Complaint Ex.PW3/B C.C. No. 03/14 Page No. 21 of 50 regarding demand of bribe by accused Om Prakash Chopra to supply certain papers and said Complaint bears his signature at point A. He has also narrated about the Pre Raid Proceedings Ex.PW5/A which bears his signature at point A. He further deposed that he along with Raiding team reached at Kashmere Gate near the Office of Sub Registrar at about 4:50 p.m. and thereafter, he along with the complainant went inside the Office of accused. As regards the demand and acceptance of bribe by the accused said PW5 Vinay Saxena, Panch witness has specifically deposed in his cross examination by Ld. Addl. PP as under: "It is correct that I had stated to the police that after the raiding team reached near the office of Sub Registrar, Kashmere Gate, I along with the complainant went inside the office of Om Prakash Chopra, UDC. It is correct that I had stated to the police that the accused had demanded and accepted Rs.1500/ from the complainant and retained the said Rs.1500/ in his right hand. It is correct that I had stated to the police that thereafter, the Raid Officer gave his introduction to the accused and offered their search. It is correct that I had stated to the police that C.C. No. 03/14 Page No. 22 of 50 I was instructed by the Raid Officer to recover the said amount from the hand of the accused and thereafter, I recovered said amount of Rs.1500/ from the right hand of the accused and the numbers of said 3 GC notes of Rs.500/ each were tallied with the numbers of the GC notes as noted earlier."
24. Said PW5 Panch witness has further deposed about taking right hand wash of the accused in solution of Sodium Carbonate which turned into pink colour and transferring the said solution in two bottles having labels RHWI & RHWII bearing his signature and signature of the complainant and seizure of the same vide seizure memo Ex.PW5/D bearing his signature at point A. Said PW5 also deposed about the arrest of the accused vide Arrest Memo Ex.PW4/B which bears his signature at point B and about his personal search vide Memo Ex.PW4/C bearing his signature at point B. He has also deposed about the seizure memo of the certified copy Ex.PW4/D which bears his signature at point B. Said PW5 has duly identified the sealed bottle containing pink colour Mark RHWI & RHWII as Ex.P1 and P2 respectively and 3 GC notes of Rs.500/ each as Ex.P3 to P5. C.C. No. 03/14 Page No. 23 of 50
25. Said PW5 Panch witness in his cross examination by Ld. Defence Counsel has added that the complainant had written the complaint Ex.PW3/B in his presence and he categorically denied the suggestion of Ld. Defence Counsel that the complaint was written after the Raid on the dictation of the Raid Officer. Said PW5 has clearly denied the suggestion of Ld. Defence Counsel on various pertinent aspects as under: "It is wrong to suggest that I have deposed under the fear of the police. It is further wrong to suggest that no money was accepted by the accused. It is further wrong to suggest that nothing was recovered from the hand of the accused. It is wrong to suggest that accused was brought immediately to the office of AC Branch and all the documents were prepared after the raid in the office of AC Branch. It is further wrong to suggest that I had identified the signature at the instance of police. It is further wrong to suggest that no certified copy was supplied on that day as the office time was over." C.C. No. 03/14 Page No. 24 of 50
26. The material part of the deposition of PW5 Panch witness is found corroborated from the deposition of PW11 Inspector Naresh Kumar, Raid Officer. PW 11 Inspector Naresh Kumar, Raid Officer is found to have deposed regarding lodging of the complaint Ex.PW3/B by the complainant in the presence of Panch witness on dated 25.4.2011 and thereafter, the preraid proceeding Ex.PW5/A was carried out by him. Said PW11 further deposed that at about 4:30 p.m. he alongwith the complainant, Panch witness and other members of raiding team left Anti Corruption Branch and reached at Ritz Cinema, Kashmere Gate. He further deposed that complainant and Panch witness went inside the Office of Sub RegistrarII, Kashmere Gate, Delhi and at about 5:00 p.m., on receiving the predetermined signal given by Panch witness, he alongwith raiding team reached the spot and Panch witness informed him that the accused had accepted the money after demand and bribe amount was lying in the right hand of the accused as said PW11 has deposed in this respect as under: "At about 5:00 p.m. Panch witness came out from the office and passed the prefixed signal. I along with the other members of the raiding team reached in the office. The accused was present C.C. No. 03/14 Page No. 25 of 50 there as well as complainant and Panch witness. Panch witness informed me that accused had accepted the money after demand and the bribe amount was lying in the right hand of the accused. I disclosed my identity to the accused and offered my personal search as well as personal search of accompanying police official. But accused refused to take our personal search. Thereafter, I directed the Panch witness to recover the bribe amount from the accused. Panch witness recovered the bribe amount from the accused. The numbers of GC notes were tallied with preraid report and they were found to be same."
27. Said PW11/ Raid Officer has further deposed about the seizure of said 3 GC of Rs.500/ each vide Seizure Memo Ex.PW5/C which bears his signature at point X. He has also deposed regarding the seizure of two bottles Mark RHWI & RHWII containing the pink colour right hand wash of the accused in the solution of sodium carbonate vide Seizure Memo Ex.PW5/D which bears his signature at C.C. No. 03/14 Page No. 26 of 50 point X. Said PW11 also deposed that he has carried out the Post Raid Proceedings Ex.PW5/B and added that the PreRaid Proceedings Ex.PW5/A and Post Raid Proceedings Ex.PW5/B bear his signature at point X. He further deposed that said Pre Raid Proceedings and Post Raid Proceedings were signed by the complainant in his presence at point Y. Said PW11 has clearly identified two sealed bottles Mark RHWI & RHWII as Ex.P1 and Ex.P2 respectively and 3 GC notes as Ex.P3 to P 5. Said PW11/ Raid Officer in his cross examination by Ld. Defence Counsel has denied various pertinent suggestions put to him by Ld. Defence Counsel as he has deposed in this respect as under: "It is wrong to suggest that no Pre Raid Proceedings were conducted in the Office of AC Branch. It is wrong to suggest that no documents were prepared in the Office of AC Branch before leaving for the Raid.................................................................................... It is wrong to suggest that no demand was made by the accused and nothing was recovered from the possession of the accused............................................... It is wrong to suggest that no proceedings were conducted in the Office of the accused. It is further C.C. No. 03/14 Page No. 27 of 50 wrong to suggest that all the documents were prepared in the Office of AC Branch. I also did not seize any Register by which certified copy was applied. It is wrong to suggest that nothing was recovered from the possession of the accused."
28. So far as complainant Jagdish Prasad is concerned, it is revealed from the record that the Summons as issued against the complainant Jagdish Prasad, was received back unexecuted with the Report that he has already expired on 03.09.2011 and thereafter, the SHO, PS Anti Corruption Branch has also submitted the Verification Report regarding the death of the complainant Jagdish Prasad on dated 03.09.2011 and copy of the Death Certificate in this respect was also placed on record. Therefore, the complainant Jagdish Prasad could not be examined as a PW before this Court during trial. However, the Complaint forming the basis of FIR relating to the present case has been duly proved as Ex.PW3/B. PW5 Vinay Saxena/Panch witness has also clearly deposed that on 25.4.2011, he was performing duty as Panch witness in Anti Corruption Branch where the complainant had written the Complaint Ex.PW3/B in his presence and said Complaint bears his signature at point A. He has also deposed that said C.C. No. 03/14 Page No. 28 of 50 Complaint was regarding demand of bribe by Om Prakash Chopra to supply certain papers. Said deposition of PW5/Panch witness regarding lodging of the Complaint Ex.PW3/B by the complainant Jagdish Prasad in presence of PW5 Vinay Saxena/Panch witness also found corroborated from the deposition of PW11 Inspector Naresh Kumar/Raid Officer and I do not see any reason to disbelieve the same. From the perusal of said Complaint Ex.PW3/B, it is clearly reflected that the accused Om Prakash Chopra who was posted as Record Keeper in the Office of Sub RegistrarII, Kashmere Gate had demanded bribe of Rs.1500/ from the complainant for giving the Certified Copy of the Old Record relating to Property No.238, T.Extension, First Floor, Vishwas Park, Uttam Nagar, Delhi and had asked the complainant to come to his Office on that evening for the said purpose. No doubt, in the said Complaint the complainant had stated that he has applied for the Certified Copy of the required document on 13.04.2011 but from the perusal of deposition of DW1 coupled with the Certified Copy of required document Ex.PW4/E, it is revealed that it was applied on 19.04.2011 but the discrepancy regarding the date in this respect cannot be over emphasized specifically when it appears from the Complaint Ex.PW3/B that the complainant Jagdish Prasad was an Old man of 72 years. I do not see C.C. No. 03/14 Page No. 29 of 50 any reason why the complainant who was an Old man of 72 years would falsely lodge complaint against the accused regarding the demand of bribe of Rs.1500/ specifically when there was no previous enmity by the complainant against the accused. I am also of considered view that nonexamination of the complainant Jagdish Prasad as a PW because of his earlier death cannot be treated as a bonus for the accused specifically when the Complaint Ex.PW3/B, PreRaid Proceedings Ex.PW5/A, Post Raid Proceedings Ex.PW5/B have been duly proved through the deposition of PW5/Panch witness as well as PW11 Inspector Naresh Kumar/Raid Officer and I do not see any reason to disbelieve the contents of the same.
29. PW11 Inspector Naresh Kumar/Raid Officer has clearly narrated about the Pre Raid Proceedings Ex.PW5/A and Post Raid Proceedings Ex.PW5/B as carried out by him. He has also deposed that said Pre Raid Proceedings and Post Raid Proceedings were signed by the complainant in his presence as he has deposed in this respect as under: "The preraid proceedings is already Ex.PW5/A which bears my signature at point X and post raid proceedings is already Ex.PW5/B which C.C. No. 03/14 Page No. 30 of 50 bears my signature at point X. Pre raid proceedings and post raid proceedings were signed by complainant in my presence at point Y. I can identify the writing and signature of the complainant Jagdish Prasad as I have seen him signing the documents in my presence (complainant has expired)."
30. From the perusal of the record, it is clearly reflected that PW11/Raid Officer has drawn the Post Raid Proceedings Ex.PW5/B which found bear the signature of PW5/Panch witness at point A, signature of the complainant Jagdish Prasad at point Y and signature of PW11 Raid Officer at point X.
31. I am of the considered view that said Post Raid Proceedings Ex.PW5/B being in the nature of Panchnama which is duly signed by the complainant and Panch witness is duly admissible and reference can be made to the case of Santa Singh vs. State of Punjab AIR 1956 Supreme Court 526 wherein it was held that mere presence of the police officer when a statement is made does not by itself render such a statement inadmissible. So long as a panchnama is a mere record of C.C. No. 03/14 Page No. 31 of 50 the things heard and seen by panchas and does not constitute a statement communicated to a police officer in the course of investigation by him and it would not fall within the mischief of section 162 of the Code.
32. From the perusal of the said Post Raid Proceedings Ex.PW5/B, it is clearly reflected that the accused Om Prakash Chopra had demanded and accepted the bribe amount of Rs.1500/ from the complainant and said amount has been recovered by the Panch witness from right hand of the accused and the serial number of those GC notes found tallied with the serial number as mentioned in the Pre Raid Proceedings Ex.PW5/A and said recovered GC notes were seized vide Seizure Memo Ex.PW5/C.
33. During the course of the argument, it is submitted by Ld. Defence Counsel that PW5/Panch witness is a stock witness of the police as he has joined duty as Panch witness several times at Anti Corruption Branch and therefore, his deposition cannot be treated as trustworthy and reliable. No doubt, PW5/Vinay Saxena in his cross examination by Ld. Defence Counsel has added that he has joined duty as Panch witness at Anti Corruption Branch for about 1516 times C.C. No. 03/14 Page No. 32 of 50 and had participated in the Raid Proceedings as Panch witness once but said fact itself cannot brand him as a stock witness of police in view of the fact that he has been asked to join as a Panch witness not as per his sweet will but as per the Official Roaster as prepared by the Anti Corruption Branch in usual course of official nature and therefore, I do not find any force in the submission of Ld. Defence Counsel in this respect.
34. It is also revealed from the record that the right hand wash of the accused with colourless solution of sodium carbonate was taken and the same turned into pink colour and said wash as contained in the bottle Mark RHWI has given positive test for the presence of phenolphthalein and sodium carbonate as per FSL Report Ex.PW2/A which establish that the said treated 3 GC notes of Rs.500/ each were handled and accepted by the accused and ultimately it was recovered from him.
35. I do not find any force in the submission of Ld. Defence Counsel to the effect that since PW5 Vinay Saxena/Panch witness has turned hostile and was cross examined by Ld. Addl. PP and therefore, his deposition deserves to be kept out of consideration. In the C.C. No. 03/14 Page No. 33 of 50 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 dependable on a careful scrutiny thereof. In the C.C. No. 03/14 Page No. 34 of 50 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."
36. In view of the above material as available on record, I am of the considered view that the factum regarding the demand and acceptance of bribe of Rs.1500/ by the accused from the complainant have been found established from the deposition of PW5 Vinay Saxena/Panch witness, PW11 Inspector Naresh Kumar/Raid Officer, PW4 the then Inspector Roop Lal/Part IO coupled with the content of Complaint Ex.PW3/B, Seizure Memo of the GC notes Ex.PW5/C, Seizure Memo of two bottles Mark RHWI & RHWII, Post Raid Proceedings Ex.PW5/B and Seizure Memo Ex.PW4/D relating to seizure of Certified Copy of Sale Deed Ex.PW4/E from the complainant.
37. During the course of the argument, it is submitted by Ld. C.C. No. 03/14 Page No. 35 of 50 Counsel for the accused that the Raid Officer is an interested witness for success of his raid and therefore, his deposition cannot be treated as trustworthy and reliable. I do not find any force in the submission of Ld. Counsel for the accused in this respect. Reference is placed on case of Hazari Lal V/s State ( Delhi Admn ) AIR 1980 Supreme Court
873. In that case the allegations against the accused who was a police officer was that he demanded bribe from the complainant for release of his scooter rickshaw which was seized by the police. The trap was laid and the accused was caught red handed. However, during trial complainant turned hostile and deposed that when he went to the police station on first occasion to obtain delivery of his scooter rickshaw it was not the accused that was present but one Hawaldar was present and it was not the accused but that Hawaldar who demanded bribe of Rs. 60/ from him and when he went to the police station along with punch witness he found accused there and asked him to take a sum of Rs. 60/ and return the scooter rickshaw. He stretched his hand with the money towards the pocket of accused 's trouser but accused said the money might be paid to the person for whom it was meant for. He refused to receive the money and jerked complainant's hand with his hand as a result of which the notes came to be flung across the wall into neighboring room. He deposed that accused neither demanded the C.C. No. 03/14 Page No. 36 of 50 amount from his nor accepted the amount. The punch witness who went along with the complainant could not be examined as he became insane and other punch witness turned hostile. The conviction was based on the statement of trap officer and the Hon'ble Supreme Court held as under: "We are not prepared to accept the submission of Shri Frank Authony that he is the very Police Officer who laid the trap should be sufficient for us to insist upon corroboration. We do wish to say that there is no rule of prudence which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In facts and circumstances of a particular case a Court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally, in the facts and circumstances of another case, the Court may unhesitatingly agent the evidence of such an officer." C.C. No. 03/14 Page No. 37 of 50
38. Besides that in the case reported as AIR 1998 SC 1474 State of U.P. Vs. Zakullaha it was held by the Hon'ble Supreme Court of India that the evidence of trap officer in a bribe case can be acted upon even without the help of any corroboration and similar view was held in following judgments: (1) Prakash Chand vs. State (Delhi Administration) AIR 1979 SC 400 (2) Hazari Lal vs. Delhi Administration AIR 1980 SC 873.
39. During the course of the arguments, it is submitted by Ld. Counsel for the accused that as the IO has not seized any Agreement to Sell relating to said property No.238, T. Extension, Ist Floor, Vishwas Park, Uttam Nagar, Delhi which was stated to be purchased by the complainant, the same is fatal for the prosecution. It is further added by Ld. Counsel for the accused that nonexamination of the previous Owner of the said property by the IO as a PW is also fatal for the case of the prosecution. It is further added by Ld. Counsel for the accused that the IO had not seized the Application Form for obtaining the certified copy of Old Record of said property nor seized the Register containing the Receipt of the said Application from the Office of the C.C. No. 03/14 Page No. 38 of 50 accused and same are also fatal for the case of the prosecution. I do not find any force in the aforesaid submission of Ld. Counsel for the accused as I am of the considered view that mere lapse on the part of the IO cannot be a escape ground for the accused specifically when adequate incriminating material for the charged offence are available on record. I am of the considered view that criminal justice should not be made casualty of wrongs committed by the IO and my said view is found nourished from the judgment as rendered by Hon'ble Delhi High Court in the case reported as "2000 (I) A.D. (Delhi) 67 Manoj @ Manu Vs. State of Delhi." In the case reported as "State of Rajasthan Vs. Kishore (1996 SCC (Crl) 646)" it was observed by Hon'ble Supreme Court of India that mere fact that the investigating officer committed irregularity or illegality during the course of investigation would not and does not cast doubt on the prosecution case nor trustworthy and reliable evidence can be cast aside to record acquittal on that account. Furthermore, in another case reported as "Ram Bihari Yadav Vs. State of Bihar and Ors. (1998(4) SCC
517)" it was observed by Hon'ble Supreme Court of India as under: "If primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and C.C. No. 03/14 Page No. 39 of 50 confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice". The view was again re iterated in "Amar Singh Vs. Balwinder Singh and Ors. (2003 (2) SCC 518)."
40. During course of arguments, it is submitted by Ld. Defence Counsel that as this accused was merely working as Record Keeper in the Office of Sub RegistrarII, Kashmere Gate, Delhi and he was not competent for preparation of the certified copy of the required record and therefore, there was no occasion on the part of this accused to demand any bribe from the complainant in this respect. I do not find any force in the said submission of Ld. Defence Counsel. Law is well settled that it does not matter whether the public servant was competent to do the work or not and reference can be placed in the case reported as Chaturdas Bhagwandas Patel Vs. State of Gujrat, 1976(3) SCC 46 as referred in State of Andhra Pradesh Vs. C. Uma Maheshwar Rao and Anr. 2004, V AD (SC) 176, wherein it has been held by Hon'ble Supreme Court of India that the question whether a person has an authority to do the act for which bribe is accepted, is of no consequence. In the case reported as Gopal Singh Vs. CBI, ILR C.C. No. 03/14 Page No. 40 of 50 (2005) II Delhi 35, It was observed by the Hon'ble Delhi High Court in Para 22 as under: "It has to be added that in cases under PC Act, the prosecution is under no obligation to prove that a public servant demanding bribe was in a position to help the person from whom the bribe was being demanded. The prosecution succeed the moment it is shown that a public servant had accepted some money from someone which was not legal remuneration. The presumption U/S 20 of the Act comes into play shifting the burden upon the public servant to explain as to why he had received the money. A public servant may misguide, mislead or befool his victim to pay him illegal gratification knowing fully well that he is not in a position to help him and as such it can be no defence for him to say that since he was not in a position to help the complainant/victim the money received by him does not amount to illegal gratification."
41. During the course of arguments, it is submitted by Ld. C.C. No. 03/14 Page No. 41 of 50 Defence Counsel that though other persons were available in the Office of the accused but none of them was joined in the Raid Proceedings and same falsify the case of the prosecution. I do not find any force in the said submission of Ld. Defence Counsel in view of the fact that since an independent witness i.e. PW5 Vinay Saxena/Panch witness had already been joined in the proceedings by the PW11/Raid Officer, nonjoining of any other person available at the spot cannot be over emphasized. My said view is also found supported from the judgment reported as 2011 V AD (DELHI) 500, Anna Wankhade Vs. Central Bureau of Investigation (Through State), wherein it was held in Para 21 as under: "21. There is no dispute with regard to the proposition regarding desirability of association of independent witnesses by the police so as to lend more credence and authenticity to the case, but there is also no dispute that nonassociation of the independent witnesses per se for any reason whatsoever was in itself not enough to discard the prosecution witnesses or throw away the case as a whole. In the present case, CBI associated two independent witnesses on the C.C. No. 03/14 Page No. 42 of 50 written requisition made to the office of NDMC. Since the prosecution/CBI already had two independent witnesses, who had been informed and apprised about the technicalities involved in the procedure during the trap proceedings, it was not necessary for the IO to have joined other public witnesses at the time of apprehension. May be to avoid the risk of such a raw public person getting won over or being unable to understand the proceedings at the last moment of raid, that the IOs usually avoid associating public witnesses at that stage in such type of cases."
42. During the course of the arguments, it is submitted by Ld. Counsel for the accused that no proceedings were conducted at the spot and all the documents were prepared after Raid in the Office of AC Branch and same also falsify the case of the prosecution. I do not find any force in the submission of Ld. Defence Counsel as PW5/Panch witness as well as PW11/Raid Officer and PW4/Part IO have clearly denied the suggestion of Ld. Defence Counsel in their cross examination in this respect. As PW5/Panch witness has deposed in this respect as under: C.C. No. 03/14 Page No. 43 of 50 "It is wrong to suggest that I have deposed under the fear of the police. It is further wrong to suggest that no money was accepted by the accused. It is further wrong to suggest that nothing was recovered from the hand of the accused. It is wrong to suggest that accused was brought immediately to the office of AC Branch and all the documents were prepared after the raid in the office of AC Branch. It is further wrong to suggest that I had identified the signature at the instance of police. It is further wrong to suggest that no certified copy was supplied on that day as the office time was over."
43. Similarly, PW11/Raid Officer has categorically denied the suggestion of Ld. Defence Counsel in his cross examination as under: "It is wrong to suggest that no proceedings were conducted in the Office of the accused. It is further wrong to suggest that all the C.C. No. 03/14 Page No. 44 of 50 documents were prepared in the Office of AC Branch."
44. Similarly, PW4 the then Inspector Roop Lal/Part IO has also denied the similar suggestion of Ld. Defence Counsel in his cross examination as he has deposed in this respect as under: "It is wrong to suggest that no proceedings were conducted at the spot and all the documents were prepared in the Office of AC Branch. It is wrong to suggest that nothing was recovered from the possession of the accused.
It is further wrong to suggest that all the documents were prepared in the Office of AC Branch. It is further wrong to suggest that I have deposed falsely. It is wrong to suggest that I did not investigate the case properly and fairly."
45. I do not find any force in the submission of Ld. Counsel for the accused that alleged recovery of the treated GC notes as against the C.C. No. 03/14 Page No. 45 of 50 accused is not sufficient to convict the accused for the charged offence. Once the accused is found to have accepted the bribe amount, it is for him to explain as to in which capacity he has accepted the same.
46. In the case of Dhanvantrai Balwantrai Desai V/s State of Maharashtra, AIR 1964 Supreme Court 575 it was held as under: "Therefore, the court has no choice in the matter, once it is established that the accused person has received a sum of money which was not due to him as a legal remuneration. Of course, it is open to that person to show that though that money was not due to him as legal remuneration, it was legally due to him in some other manner or that he had received it under a transaction or an arrangement which was lawful. The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occurs in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a mere explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the C.C. No. 03/14 Page No. 46 of 50 Court finds its existence to be probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted.
47. It is also useful to refer to the decision of Hon'ble Supreme Court in case of M.Narsinga Rao V/s State of A.P. 2001 (1) SCC 691 rendered by Three Hon'ble Judges of Supreme Court. In that case accused demanded a bribe of Rs. 500/ from a milk transporting contractor for recommending the payment of an amount due to the contractor. The accused was caught red handed while accepting the bribe amount. Accused took the plea that currency notes were stuffed into his pocket. During trial complainant and panch witness did not support the prosecution case and it was argued before Hon'ble Court that it is not possible to draw any presumption against the delinquent public servant in the absence of direct evidence to show that the public servant demand bribe. The Hon'ble Court held as under: "It is true that there is no direct evidence in this case that the accused demanded and accepted the money. But the rest of the evidence and the circumstances are sufficient to establish C.C. No. 03/14 Page No. 47 of 50 that the accused had accepted the amount and that gives rise to a presumption under Section 20 of the Prevention of Corruption Act that he accepted the same as illegal gratification, particularly so, when the defence theory put forth is not accepted."
48. It is also useful to refer to the case of B. Noha V/s State of Kerela & Another 2006 VI AD ( Criminal ) 465 ( SC ) where it was held as under: "that when it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deducted from the facts and circumstances obtained in the particular case."
49. It was held in the case reported as State of AP Vs. Kommaraju Gopala Krishna Murthy 2000 (9) SCC 752, that when the amount is found to have passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification. That burden was not discharged by the accused herein. C.C. No. 03/14 Page No. 48 of 50
50. Once the bribe amount is recovered from the accused it is for the accused to explain as to how the bribe amount landed in his person. In the present case, the accused Om Prakash Chopra has not given any justifiable explanation as to how bribe amount of Rs.1500/ landed in his right hand from which it was recovered. The accused in his statement U/S 313 Cr.P.C.has taken the stand that he is innocent and falsely implicated in this case by the complainant as he has never demanded and accepted any bribe from the complainant but said bare plea of the accused appears to be meritless and the Judgments as referred by Ld. Defence Counsel being not applicable in the present case, can be of no help for the accused.
51. In view of the aforesaid materials as available on the record, I am of the considered view that the presumption as contemplated U/S 20 of the Prevention of Corruption Act,1988 could not be rebutted by the accused Om Prakash Chopra.
52. In view of the aforesaid discussion, I have no hesitation to safely conclude that the prosecution has successfully established its case as against the accused Om Prakash Chopra for the charged C.C. No. 03/14 Page No. 49 of 50 offence and therefore, the accused Om Prakash Chopra is held guilty and convicted for offence punishable U/S 7 and 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988.
53. Let accused Om Prakash Chopra be heard separately on the point of sentence.
Announced in the open court on this 22nd day of August, 2014 (B.R. Kedia) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC,Delhi C.C. No. 03/14 Page No. 50 of 50