Delhi District Court
Cbi vs Joginder Singh Malik S/O Sh. Baldev ... on 13 October, 2010
1
IN THE COURT OF SH. V K MAHESHWARI :SPECIAL
JUDGE; TIS HAZARI DELHI
Corruption Case No.15/09
CBI Vs Joginder Singh Malik s/o Sh. Baldev Singh,
r/o 222/3 Railway Colony, Delhi
Kishanganj, Delhi-07
R. C No. 3 (A)/09/CBI/ACB/ New Delhi.
Under Section U/s 7 and 13(2) r/w Section 13(1) (d)
of P C Act 1988
Date of Institution of 1.7.2009
case
Arguments concluded 4.10.2010
on
Date of Order 8.10.2010
Judgment
FACTS OF THE CASE
1 According to prosecution this case was registered on the basis of a written complaint dated 19.01.2009 lodged by Shri Harish Kumar Anand S/o Shri Om Prakash Anand alleging that Shri Joginder Singh Malik, Section Engineer, Delhi Division, Northern Railways, Delhi demanded a bribe of Rs. 15,000/- for making the final bills with respect to the following three Work Orders:-
C C No.15/09 1/73 2(i)128W/280/260/07-08/WV/DE-RE dtd. 02.01.2008 for repair of Sewerage System B/Wall and replacement of roof of gang quarters at DE-2DEE and construction of lobby at DEE in the section of SE(W).
(ii)128-W/280/398/07-08/W-V/DE-RE dtd. 02.1.2008 improvement of level crossing gate DEE-RE section under Div.I.Eng. DEE, and
(iii)128W/128/280/530/2006-07/W-V dtd. April 2007 construction of 20 nos. water cooler both on DE-RE section under DEN/DEE.
2 Allegations made in the Complaint were verified on 9.01.2009 in presence of independent witness Shri Sanjay Arora, Administrative Officer, LIC of India, New Delhi. During the verification of complaint, conversation held between complainant and accused Joginder Singh Malik over mobile phone recorded in the presence of independent witness. Thereafter that conversation was transferred in Audio Cassette marked as Q-1.
3 After verification it was decided to lay a trap on Sh. Joginder Singh Malik on 10.1.2009. Trap team led by Inspector S.S. Bhullar TLO, complainant Sh. H.K. Anand, CBI Officer Rajesh Chahal, PI, Sandeep Choudahry, PI, M.K. Upadhyay, SI, Nikhil Malhotra, SI, and two independent witness namely S/Shri Sanjay Arora and Amit Khurana both from LIC, Northern Zonal Office, Jeevan Bharti Building, Connaught Place, New Delhi was C C No.15/09 2/73 3 constituted.
4 Complainant produced a sum of Rs. 15,000/- consisting of 30 numbers of GC notes of Rs. 500/- denomination each, the numbers of the same were recorded in the hading over memo. A practical demonstration regarding reaction of Phenolphthalein powder with the solution of water and Sodium Carbonate was given. Thereafter, the personal search of complainant Sh. Harish Kumar Anand was conducted and he was not allowed to keep any incriminating document/article. The bribe amount of Rs. 15,000/- as mentioned above dully treated with phenolphthalein powder was kept in the right side pant pocket of the complainant by Sh. Amit Khurana the independent witness. The complainant was directed to hand over this bribe amount of Rs. 15,000/- to the accused only on his specific demand and not otherwise or on his specific direction to some other person.
5 A Digital Voice recorder along with few blank audio cassettes and other attachments were arranged for the purpose of recording the possible conversation between the complainant and the accused. Besides, a compact voice recorder was also arranged for transferring the recording from the digital voice recorder into regular audio cassettes. The working of digital recorder was explained to all the trap team members. It was ensured that it does not contain any pre C C No.15/09 3/73 4 recorded voice. Thereafter,formal voices of Shri Amit Khurana and Shri Sanjay Arora, both independent witnesses were recorded in it. It was handed over to the complainant with the direction to switch it on before entering in any conversation with the accused. Thereafter, all the members washed their hands with soap and water. Sh. Sanjay Arora, independent witness was asked to act as a shadow witness and to remain close to the complainant and overhear the conversation and to see the transaction of bribe. Complainant was also directed to give signal to the trap party after the transaction of bribe by rubbing his face with both his hands. All the members except complainant mutually searched each other to ensure that they do not carry any incriminating documents/articles. A handing over memo dated 10.01.2009 was prepared in this regard which was signed by all present including the independent witnesses and complainant.
6 CBI trap team reached near Delhi Cantt. Railway Station at 9.00 hours. After parking the vehicles at safe distance. CBI team moved towards the platform. Complainant accompanied by the shadow witness Sh. Sanjay Arora went to platform No. 4 where the train Queen Merry Express was in the process of departure. Accused was found on duty at the platform no. 4. CBI team members alongwith other independent witness took suitable positions in disguised manner at platform no.4. Complainant contacted the accused and entered in conversation with him.
C C No.15/09 4/73 57 After the departure of train, complainant alongwith accused left the platform and reached railway Crossing No. 12, near the Janak Setu which is near platform no. 4 of Delhi Cantt. Railway Station. The shadow witness remained at a safe distance. Subsequently, the accused and the complainant entered the small railway godown adjacent to railway crossing under the Janak Setu. After 5 minutes, both of them came out and the complainant flashed the pre- appointed signal by rubbing his face with both of his hands.
8 On getting the signal of completion of transaction of bribe, the TLO and other team members including independent witnesses rushed towards the said location and immediately, the right and let hand of Sh. J.S. Malik was caught hold off by SI, Manish Upadhyaya and Inspr. Rajesh Chahal respectively. After disclosing the identities of the team accused was challenged for having demanded and accepting an illegal gratification of Rs. 15,000/- from Sh. Harish Kumar Anand for preparation of final bills of his three work orders. On this accused got perplexed. The digital voice recorder was immediately taken back from the complainant by Sh. Prem Nath, Inspr. The accused was immediately taken inside the said godown where he managed to free his left hand by force and immediately taken out the bribe amount from his left side pant pocket with his left hand and threw the same on the sandy kutcha ground. This act of the accused was seen by all the team members including C C No.15/09 5/73 6 the complainant. Thereafter, the witness Sh. Amit Khurana was directed to collect the said tainted bribe amount from the ground and to tally the same with numbers and denominations mentioned in the Handing Over Memo with the help of other witness Sh. Sanjay Arora which tallied in toto.
9 Complainant narrated the sequence of events and stated that after getting down from his car, he switched on the digital voice recorder. Then, he alongwith the shadow witness reached the platform No.4 of Delhi Cantt. Railway Station where he met accused Joginder Singh Malik who was busy in the departure of Queen's Marry Express. After departure of the Queens Marry Train, the accused Malik took him to the railway crossing No. 2 and then they both entered the small godown of railway under the Janak Setu near the said crossing where they took tea after arranging the same from outside. Then, the accused Joginder Singh Malik demanded bribe of Rs.15,000/- with gestures of hand on which he took out the tainted bribe amount with his right hand from his Right Side Pant Pocket and extended the same towards the accused Joginder Singh Malik who accepted the same with his left hand and kept it in his left side pocket of wearing pant. Then both came out of the said store and he flashed the pre-appointed signal.
10 Colourless solution of Sodium Carbonate and water was C C No.15/09 6/73 7 prepared in a glass tumblers and on direction the accused dipped his left hand fingers in the said solution. On doing, the said colourless solution turned pink, the said pink solution was kept in a clean glass bottle marked as 'LHW'. The bottle was tightly capped and wrapped with the cloth wrapper and sealed with CBI seal. The independent witnesses signed on the said cloth wrapper and on the paper pasted on the bottle.
11 Remaining trap proceedings were then shifted to VIP Lounge to avoid onlookers/crowd. A track pant was arranged for the accused from the market as the tainted bribe amount was kept in his left side pant pocket. The wash of the inner lining of left side pocket of black pant of accused was taken in a freshly prepared colourless solution of sodium carbonate which turned into pink. This pant pocket wash was transferred in neat and clean glass bottle and was marked as "LSPPW", bottle was sealed with CBI seal. The independent witnesses signed on the said cloth wrapper, on the paper pasted on the bottle and on the left side pocket of pant of accused.
12 Digital recorder which was given to the complainant was played and the recording was transferred into separate cassette which was marked as 'Q-2' denoting trap spot conversation. The 'Q-2' was sealed in a cloth wrapper using CBI Seal. The independent witnesses signed on the cloth wrapper.
C C No.15/09 7/73 813 Accused J.S.Malik was arrested for demanding and accepting bribe of Rs.15,000/- from the complainant vide a separate arrest cum personal search memo dated 10.01.2009 at 13:00 hours.
CHARGE 14 Copies required U/S 207 Cr P C supplied to accused. After hearing both the parties vide order dt. 13.8.2009 a charge for the offence punishable U/s 7 & 13 (1) ( d) r/w Section 13 (2) of the Prevention of Corruption Act, 1988 has been framed against accused Joginder Singh Malik. Accused pleaded not guilty to the charge and claimed trial, hence this trial.
PROSECUTION EVIDENCE 15 Prosecution, in order to prove its case, has produced following witnesses:
PW1 Sh. Mohit Lila , Sr. Divisional Engineer-V, Northern Railway Delhi Division has proved sanction order Ex PW 1/A. PW2 Sh. Govind Ram Yadav has proved search cum seizure memo Ex PW 2/A and copy of production cum seizure memo Ex PW 2/B. PW3 Sh. V. B Ramteke, Sr. Scientific Officer, Grade II Chemistry CFSL, New Delhi has proved his report Ex PW 3/A, forwarding letter Ex PW 3/B and paper slips affixed on the bottles Ex C C No.15/09 8/73 9 PW 3/C1 and Ex PW 3/C2.
PW4 Pawan Singh has proved forwarding letter Ex PW 4/A, annexure A Ex PW 4/B, customer Ravi Kumar's I D Document Ex PW 4/B1, customer's Service Agreement Form Ex PW 4/C, customer Joginder Singh's I D Ex PW 4/C1, Annexure B i..e call details of Mobile no. 9990012033 from 8.1.09 to 11.2.09 Ex PW 4/D and all call details of Mobile no. 9990681541 from 8.1.09 to 11.1.09 Ex PW 4/D1.
PW5 Sh. Ashok Kumar has proved three files i.e. D19 to D21 alongwith documents maintained in the office of SC Works, Queens Road Ex PW 5/A to Ex PW 5/C, documents contained in D22, D23 and D24 Ex PW 5/D to Ex PW 5/F. PW6 Sh. Deepak Kumar Tanwar, Sr. Scientific Officer, Grade II Physics, CFSL has proved forwarding letter dt.13.1.2009, Ex PW 6/A, three envelopes Ex PW 6/B1 to Ex PW 6/B-3, his report Ex PW 6/C and forwarding letter dt. 16.6.2009 Ex PW 6/D. PW7 Sh. Rajesh Kumar Sharma has proved third and final addendum/ corundum available in 10 sheets in file D21 Ex PW 7/A, sanction of Addendum in seven sheets Ex PW 7/B, final bill in five sheets Ex PW 7/C, and 8 sheets relating to internal noting, vetting, including correspondence collectively Ex PW 7/D, seizure memo dt. 19.5.2009 Ex PW 7/E and 19 sheets documents collectively as Ex C C No.15/09 9/73 10 PW 7/F. PW8 Sh. Harish Kumar Anand is the complainant. He has proved his written complaint Ex PW 8/A, Handing Over memo Ex PW 8/B, recovery Memo Ex PW 8/C and transcription of both the cassettes Ex PW 8/D and voice Identification cum transcription memo Ex PW 8/D1.
PW9 Sh. Sanjay Arora is a shadow witness. He has proved verification memo dt. 9.1.2009 Ex PW 9/A, two cloth wrappers Ex PW 9/P1 and Ex PW 9/P-2, specimen voice recording memo Ex PW 9/Q-1, rough sketch site plan Ex PW 9/Q-2 and arrest cum personal search memo Ex PW 9/Q-3 and also proved the documents already proved by PW8.
PW10 Sh. A K Rajput has proved the documents already proved by PW5.
PW11 Inspector Surinder Singh Bhullar is the TLO. He has proved RC Ex PW 11/A and also proved other documents already proved by other witnesses.
PW12 Amit Khurana is the recovery witness. He has proved the documents already proved by other witnesses.
PW13 Sh. Vikas Kumar Pathak is the IO of the case. He has proved charge sheet Ex PW 13/A and other documents already proved by other witnesses.
C C No.15/09 10/73 11DEFENCE OF ACCUSED AND DEFENCE EVIDENCE 16 Statement of accused U/s 313 Cr PC was recorded wherein he has refuted all the evidence produced against him by the prosecution. He has stated that complaint is false and motivated. Actually he wanted to remove encroachment made by complainant. He had also got detected his bogus claim. Out of his claim more than Rs.2 lac were deducted just five days before this trap on his objection. In third work he had issued a notice to complainant for executing unauthorised and unapproved work. He did not make any demand of illegal gratification. No bills were pending with him. He was counting the release material and when he turned complainant tried to inserted some money in his pocket which he did not allow with the movement of his hand. As a result of which notes fell down. He is innocent. He has been falsely implicated in this case.
17 Accused in his defence has examined following witnesses:
DW-1 Sh. Deepak Kanda Nodal Officer has proved call details Ex DW1/A, Customer Enrollment Form Ex DW 1/B, certified details of Closed User Group Ex DW 1/C and letter dt. 25.8.2010 Ex. DW1/D. DW2 Sh. Nagender Pd. has deposed orally. He has not proved any document.
DW3 Sh. Om Parkash has proved entry in register containing C C No.15/09 11/73 12 initial of J S Malik in token of having received sim of mobile No. 9717631239 dt. 29.8.2008 Ex DW 3/A. DW4 Sh. Khanoi Ram has deposed orally. He has not proved any document.
DW5 Sh. Vijay Kumar has also deposed orally. He has not proved any document.
PROSECUTION ARGUMENT
18 Ld. Senior Prosecutor Sh. Brajesh Shukla, argued that prosecution has proved its case that accused Joginder Singh Malik was working as Senior Section Engineer (Works) in Delhi Division of Northern Railway on 9.1.2009. Complainant Harish Kumar Anand was a contractor who was executing three work orders. Accused had demanded Rs.15,000/- from complainant for making the final bills of complainant. It is argued that prosecution has proved that accused had demanded illegal gratification of Rs.15,000/- from complainant and also voluntarily accepted the same which was also recovered from the accused.
19 It is argued by Ld Prosecutor that complainant, shadow witness and recovery witness have fully supported the case of prosecution. TLO has also corroborated the version given by these witnesses. Prosecution has also produced all other relevant official C C No.15/09 12/73 13 witnesses to prove its case, who have also fully supported the case of prosecution. It is argued that prosecution has proved its case beyond reasonable doubts against accused, hence accused may be convicted.
DEFENCE ARGUMENTS 20 Ld. Defence Counsel Sh. C Sahai and Sh. A K Ohri addressed oral arguments and have also filed written submissions on behalf of accused. It is argued that accused was working as Sr. Section Engineer at the relevant time, he was neither authorised to make final bills nor to sanction the bills. It is argued that ADEM had to prepare the final bill and sanction the same. Job of a SSE was only to make measurements and to mention the same in measurement books and forward the same to ADEM office. It is argued that date of completion for work No.1 had expired on 30.4.2008. No extension of time of the same was granted according to PW1. Date of completion of work No. 3 expired on 31.12.08. This work was incomplete even upto 20.2.2009 as clear from page 23 of Ex PW 7/D. It was completed on 28.2.2009 as clear from page 24 of Ex PW 7/D. It is argued that regarding work No.2 (Ex PW 5/D-2) a running bill was prepared on 28.4.2009 which is Ex PW 7/B Even after this date, this work was incomplete. Chart Ex PW 5/D-2 shows outstanding amount as nil for all the three bills. It is argued that in these circumstances complainant was not entitled for any payment of C C No.15/09 13/73 14 final bill qua these works.
21 Ld. Defence counsel argued that complainant was aggrieved from the accused thus, he was having motive to falsely implicate him in this case. It is argued that complainant was illegally occupying Railway Godown for vacation of which accused had issued notice to him on the basis of which action was initiated against him. On the objection of accused an amount of about Rs. 3,00,000/- was deducted from the bills of complainant . Because of this reason he has falsely implicated the accused in this case.
22 Ld Defence counsel argued that accused neither demanded any illegal gratification from the complainant nor accepted the same. There is no recovery of tainted money from the person of accused. The alleged recovery of RS.15,000/- from the ground has been falsely shown as recovery from the accused. It is argued that TLO has not carried out pre -trap verification of the complaint. He has relied upon the verification memo prepared by SI Upadhyaya who has not been produced in the witness box by the prosecution, hence adverse inference should be drawn against prosecution. It is argued that prosecution has failed to prove any demand of illegal bribe made by accused, acceptance and recovery of the same by accused. It is argued by Ld. Defence counsel that prosecution evidence is full of material contradictions as mentioned in annexure C C No.15/09 14/73 15 A attached with the written submission of accused, hence the same cannot be relied upon.
23 Ld. Defence counsel argued that PW6 Deepak Kumar Tanwar in his cross examination has admitted that recorded conversation in cassette Q2 having lot of noise, hence the voice recorded in it could not be compared with the voice of accused. It is argued that even complainant in his cross examination has admitted that some sentences as recorded in the transcription Ex PW 8/D are not recorded in cassette Q2. It is argued that in these circumstances no reliance can be placed on recorded conversation and its transcription.
24 As the accused has filed written submissions, which are on judicial file, hence on account of brevity the same are not being repeated in this judgment. It is argued that accused is innocent he may be acquitted.
25 Ld. Defence counsel in support of his arguments has placed reliance on following authorities:
Arjun Bairao Kale Vs. State of Maharashtra, 2018 (1) Criminal Court Cases 093 (Bombay), Jagdish Narain Vs. State of Rajasthan, 2009 (4) Criminal Court Cases 171 (Rajasthan), SureshKumar Vs. State of Haryana, 009 (4) Criminal Court Cases C C No.15/09 15/73 16 962 (P & H), State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede, VI (2009) SLT 439, Babu Lal Bajpai Vs. State of UP, AIR 1994 Supreme Court 1538, Som Nath Vs. State, 1991 (2) CL R 198, State of UP Vs. Ram Asrey 1990 Supreme Court Cases (Crl) 604, State (Delhi Administration) Vs. Satish Chand Sharma 1987 (2) Recent Criminal Reports 254, Krishna Kumar Vs. The Divisional Assistant Electrical Engineer, Central Railway and others AIR 1979 Supreme Court 1912 & Suraj Mal appellant Vs. The State (Delhi Administration) Respondent, AIR 1979 Supreme Court 1408.
PUBLIC SERVANT AND SANCTION 26 U/s 7 of P C Act, 1988 prosecution has to prove that :
(i) The accused was a public servant or expected to be a public servant at the time when the offence was committed.
(ii) The accused accepted or obtained or agreed to accept or attempted to obtain illegal gratification from some person.
(iii) For himself or for any other person.
(iv) Such gratification was not a remuneration to which the accused was legally entitled.
(v) The accused accepted such gratification as a motive or reward for,
(a) doing or forbearing to do an official act, or
(b) doing or forbearing to show favour or disfavour to C C No.15/09 16/73 17 someone in the exercise of his official functions, or ( c) rendering or attempting to render any service or disservice to some one with the Central or any State Government or Parliament or the Legislature of any State, of with any local authority, Corporation or Government company referred to in Sec. 2 clause © or with any public servant, whether named or otherwise.
27 It is undisputed fact that accused at the relevant time was working as Senior Section Engineer ( Works ) in Delhi Division of Northern Railway , thus he is a public servant . Even this fact has not been disputed on behalf of accused during the trial and at the time of addressing final arguments by Ld Defence counsel .
28 PW1 Sh Mohit Lal Senior Divisional Engineer -V Northern Railway Delhi Division has stated that in June 2009 he was working as Senior Divisional Engineer -V Northern Railway Delhi Division by virtue of his post he was competent to remove accused Joginder Singh Malik who was working as Senior Section Engineer ( Works ) in Delhi Division, from his post. After carefully examining all the material i e statement of witnesses and documents of this case he had accorded sanction for the prosecution of accused in this case. He has proved sanction order passed by him Ex PW5/A. This witness has been cross examined at length by Ld Defence counsel but nothing C C No.15/09 17/73 18 such has appeared in his cross examination to disbelieve his statement.
29 Ld. Defence Counsel argued that sanctioning authority has not applied its mind, he has simply signed the draft sanction order sent by CBI. There is no merit in this argument as the sanctioning authority in this regard has specifically deposed as follows:
"In the enclosure I had also received a draft sanction order from CBI. Although draft sanction order was enclosed, I personally gone through all the evidences submitted to me and made myself satisfied regarding adequacy of evidence for according the sanction for prosecution."
30 Our Hon'ble Supreme Court in this regard in State of Tamil Nadu Vs. Damodaran, 1993 Supreme Court Cases (Crl) 272 has held as follows:
"Prevention of Corruption Act, 147 - Ss. 5 (1) (e) and 5 (2) read with S. 161, IPC - Non application of mind and grant of sanction mechanically by sanctioning authority - Basis of acquittal by High Court - High Court deeply influenced in its decision by the fact that a model sanction order was enclosed with the record sent to the sanctioning authority - Held, acquittal not justified - There was no infirmity in the order granting sanction - Criminal C C No.15/09 18/73 19 Procedure Code, 1973 S. 197".
31 Hon'ble Supreme Court in Indu Bhushan Chatterjee vs. State of West Bengal, AIR 1958 SC page 148 has held as follows :
" In his evidence in Court the Sanctioning Authority stated that the sanction was prepared by the police and put before him by the personnel branch of his office and that before according sanction we went through all the relevant papers put before him. The sanction granted U/S 6 was perfectly valid. The statement of the sanctioning authority did not prove that he merely put his signatures on the readymade sanction presented by the police without applying his mind to the facts of the case. It was not for him to judge the truth of the allegations made against the accused by calling for the record of the connected claim cases or other records in connection with the matter from his office . The paper which were placed before him apparently gave him the necessary material upon which he decided that it was necessary in the hands of justice to accord his sanction."
32 Ld Defence counsel placing reliance on Krishan Kumar Vs. The Divisional Assistant Electrical Engineer, AIR 1979, SC page 1912 argued that any officer below the appointing authority of accused cannot grant sanction. I have carefully gone through this authority. This case is under Article 311 (1) wherein it is held by C C No.15/09 19/73 20 Hon'ble Supreme Court as follows:
"Constitution of India, Art. 311 (1) - Removal from service by authority subordinate to that appointing a Civil servant."
Section 19 of P C Act, 1988 deals with the sanction for the prosecution of a public servant. According to this section an officer who is competent to remove the accused from his post can grant sanction for the prosecution of accused. Ratio of law laid down in this authority is not applicable in the case in hand.
33 Our Hon'ble Supreme Court has held that where the sanction order itself is a speaking order in such circumstances it is not necessary to prove it by leading evidence that sanctioning authority has applied his due mind. Reliance is placed on C S Krishnamurthy Vs. State of Karnataka 2005 IV AD (S.C.) 141 wherein in para No.9 it is observed as follows:
"Therefore, the ratio is sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself then the satisfaction of the sanctioning authority is apparent by reading the order. In the present case, the sanction order speaks for itself that the incumbent has to account for the assets disproportionate to his known source of income. That is contained in the sanction order itself. More so, as pointed out, the sanctioning authority has C C No.15/09 20/73 21 come in the witness box as witness No.40 and has deposed about his application of mind and after going through the reports of the Superintendent of Police, CBI and after discussing the matter with his legal department, he accorded sanction. It is not a case that the sanction is lacking in the present case. The view taken by the Additional Sessions Judge is not correct and the view taken by learned Single Judge of the High Court is justified."
34 In this regard, Hon'ble Supreme Court in Superintendent of police (CBI) Vs. Deepak Chaudhary - 1995 SCC (Crl.) 1095 has held as follows:
''We find force in the contention. The grant of sanction is only an administrative function, though it is true that the accused may be saddled with the liability to be prosecuted in a court of law. What is material at that time is that the necessary facts collected during investigation constituting the offence have to be placed before the sanctioning authority and it has to consider the material. Prima-facie, the authority is required to reach the satisfaction that the relevant facts would constitute the offence and then either grant or refused to grant sanction. The grant of sanction, therefore, being administrative act the need to prove an opportunity of hearing to the accused before according sanction does not arise. The High Court, therefore, was clearly in error in holding that the order of sanction is vitiated by violation of the principles of natural justice.''
35 I have carefully gone through the sanction order Ex PW1/A running in four sheets, it is a detailed order having all the material particulars of this case. A bare perusal of this order reflects C C No.15/09 21/73 22 that sanctioning authority has passed this order after due application of his mind. In view of above discussion, this Court is of opinion that prosecution has proved a valid sanction for the prosecution of accused in this case.
DEMAND ACCEPTANCE AND RECOVERY.
36 According to Recovery Memo Ex PW 8/C tainted amount of Rs.15,000/- was recovered by PW 12 Amit Khurana. Prosecution has produced the evidence that accused had demanded illegal gratification of Rs.15,000/- from the complainant and accepted the same which was also recovered from his conscious possession. According to evidence produced by the prosecution accused suddenly after getting his left hand freed thrown away the tainted GC notes from his left side pant pocket, which were recovered by PW12 from the ground. Complainant Harish Kumar, shadow witness Sanjay Arora, recovery witness Amit Khanna and TLO Inspector Surinder Singh have supported this version.
37 PW8 Harish Kumar in this regard has deposed as follows:
" I accompanied by Sh. Sanjay Arora and other trap team members reached on the platform no.4. Joginder Singh Malik present in court was standing near the Engine of Farrey Queen Express which was about to leave the station. There we talked for C C No.15/09 22/73 23 sometimes and after the departure of train I alongwith accused approached the crossing No.12 near Janak Setu at about 50 metres away from platform No.4. Witness Sanjay Arora was all along in disguise form. From there we entered in a small railway godown just adjacent to railway crossing no.12. Sh. Joginder Singh Malik expressed the desire to take tea. We both took tea. After taking the tea Malik demanded the money by gesture as well as orally, however voice was not audible because a train was passing at that time and creating noise. Accused had extended his left hand towards me for receiving the bribe amount. I had taken out the tainted money from my right side pocket of wearing pant and given the same to accused. Accused had kept the money in his left side pant pocket. I gave the pre-fixed signal to CBI team. Inspector Sh. Bhullar followed by all the team members reached the spot and challenged Malik after disclosing his identity for having demanded and accepted illegal gratification of Rs. 15,000/- from me. Accused became perplexed. Digital voice recorder was immediately taken back from me by Inspector Prem Nath. Accused was caught hold by two CBI officers by his both the wrists. Sh. Joginder Singh Malik after getting his hands freed taken out money from his left side pant pocket and thrown the same on the ground. Amit Khurana collected the said tainted GC notes from the sandy ground, tallied from the numbers and denominations recorded in the Handing Over Memo with the help of other witness Sh. Sanjay Arora. After tallying from the Handing Over Memo and counting the same they confirmed that recovered GC notes were the same whose number and denomination recorded in Handing over Memo."
38 Relevant portion of PW9 Sanjay Arora, in this regard is as under:
"Thereafter we all proceeded towards Delhi Cantt Railway Station in two cars . At about 9.00 am we reached near Delhi Cantt C C No.15/09 23/73 24 Railway Station. After alighting from the vehicle I followed complainant as shadow witness and reached at Plat No.4 where Ferry queen express train was about the leave the station. All other team members including Amit Khurana had taken suitable position at plate Form No.4 in disguised manner . I saw that complainant Harish Kr Anand started talking with one person on plate form No.4 who was subsequently identified as J S Malik . After the departure of train complainant along with Sh Malik had gone towards Railway crossing No.12 below Janak Bridge . Accordingly I followed them. Other team members had also shifted their position towards the Rly crossing . After sometime Sh J S Malik and complainant had gone in the godown constructed just adjacent to Rly crossing. We were watching both of them from a distance while they were talking . I had noticed myself both of them talking. I and other persons in order to avoid suspicision on were shifting the positions. After sometime complainant alongwith with J S Malik had came out from godown complainant and flashed pre appointed signal by rubbing his face with his both the hands indicating that transaction of bribe had taken place. Immediately all the team members rushed towards them. Mr Bhullar who was team incharge had challenged the J S Malik that he had accepted the bribe amount of Rs.15,000/- . Accused had became perplexed. Mr Bhullar had also introduced him as well as CBI team . Accused had stated that he may be excuse for his mistake thereafter all the persons had gone inside the godown . Accused was also taken inside the godown by holding his wrist / hand by CBI personnel. The digital voice recorder was also taken back from the complainant. When the accused was being taken inside the godwon, accused after managing his left hand free and took out tainted currency notes from his left pocket and thrown it on the floor .
Thereafter Amit Khurana collected had collected tainted GC notes from godown . Numbers of GC notes were tallied with the numbers mentioned in handing over memo Ex PW8/B and C C No.15/09 24/73 25 were found the same."
"Thereafter solution of different powder was prepared and left hand of Joginder Singh Malik accused was washed with the same and colour of wash become pink. This was preserved in a separate clean glass bottle and sealed. Both the witnesses had signed on the paper wrapper affixed on the glass bottle. A crowd was gathered hence accused was taken to the office of Supdtt. Delhi cantt Railway Station, Shyam Sunder Sharma who had allowed the use of VIP Lounge for FP. Pant of accused was already taken off in the godown after arranging a separate pant for him. However, wash of left side pocket of that pant was taken in VIP lounge with a freshly prepared solution, colour of that wash had also turned pink. That wash was also preserved in a separate clean glass bottle duly sealed and the wrapper affixed on this bottle was signed by both the independent witnesses. Witness has correctly identified the pant, the then worn by accused, on showing to him in this court. Same is Ex P31."
39 Relevant portion of the statement of TLO in this regard is as under:
" On reaching platform No.4 , the departure of Queens Marry train was in progress and it was seen the complainant was seen talking to a person wearing leather jacket which later on revealed that he was Joginder Singh Malik. Shadow witness was seen standing nearby. The rest of the team members along with second witness took appropriate position in disguised manner . After the departure of train at about 9.30 hrs it was seen the complainant along with accused walking towards Railway crossing No.12 followed by shadow witness and the remaining team members. Both accused and complainant stopped near Rly crossing No.12 near Janak Sethu and had some conversation wherefrom they were seen entering a small godown under the Janak Sethu adjacent to Rly crossing No.12. All the team members including both the witnesses took suitable position After about 15 minutes the complainant along with accused were seen coming out of said godown and the complainant was seen C C No.15/09 25/73 26 passing on pre appointed signal by rubbing his face with both his hands. Myself alongwith other team members and both witnesses on seeing the signal rushed towards the said godown where complainant and accused was standing. After disclosing our identity, I challenged accused as to whether he has demanded and accepted bribe ofRs.15000/- from the complainant on which he became perplexed and pleaded guilty ( Objected to, objection will be decided at the time of arguments ) Immediately S I MK Upadhaya caught hold off the right hand and Inspector Rajesh Chahal caught hold off left hand from the wrist of the accused and was taken inside the godown."
"In the meantime, accused got managed to free his left hand and threw the tainted bribe amount from his left side pant pocket on the Kaccha ground . On directions the said amount was recovered by witness Amit Khurana and was tallied with the handing over memo by both witnesses and amount tallied with the handing over memo."
40 Relevant Portion of statement of PW12 Amit Khurana, in this regard, is as follows:
" Complainant Harish Kr Anand shadowed by witness Arora approached J S Malik at Plat Form No.4 of Delhi Cantt Rly station where Marry Queens Train was in the process of boarding and departure. We were also proceeding in disguised form keeping safe distance from complainant to avoid any suspect. Complainant and accused first were talking thereafter they started moving and reached ultimately Rly godown near flyover. We all have taken suitable position near the place of occurrence so that no one can suspect us. Complainant and accused had entered inside the godown . I was in a position to see them but in order to avoid any suspicion I have not seen them. They remained there for about 15 minutes thereafter complainant and Malik came out from the said store .Complainant C C No.15/09 26/73 27 flashed pre fixed signal . We all rushed towards the spot . Inspector Bhuller after disclosing his identity challenged Joginder Singh Malik for having demanded and accepted bribe of Rs.15,000/- from Harish Kr Anand. On being challenged accused became perplexed. Accused was caught hold by his wrist by the two CBI officers . He was taken to godown. Inspector Prem Nath immediately took the digital voice recorder from the complainant . Thereafter we saw that all of a sudden accused Malik had thrown the tainted money on the ground after taking out the same from his left side pant pocket . On being directed I recovered bribe amount from the sandy ground which was thrown by the accused from his left pant pocket. Thereafter I counted and tallied the said GC notes from the number and denomination already recorded in handing over memo i e Ex PW8/B. The recovered GC notes were tallied in toto."
41 From the above quoted portion of statements of witnesses demand of bribe money by the accused, its acceptance and recovery of the same from the conscious possession of accused is proved on the judicial file.
FACTUAL AND LEGAL ANALYSIS OF DEFENCE ARGUMENTS. 42 It is argued by Ld. Defence Counsel that shadow witness
and recovery witness in their cross examination have stated that they have not seen the accused throwing out of GC notes on the ground. It is argued that both these witnesses and even TLO have stated in their C C No.15/09 27/73 28 statements that they were not in position to hear the conversation between the accused and complainant on the spot, hence, prosecution has failed to prove the initial demand.
43 TLO has fully corroborated the version given by complainant that accused suddenly after getting his hand freed forcibly throw out the money after taking out from his left side pant pocket on the ground. In the wash of left side pant pocket of accused presence of phenolphthalein is proved.
44 The law is that even if the complainant and independent witness have turned hostile, conviction can be made on the solitary statement of the trap officer without corroboration if it inspire confidence. Reference is placed on case on Hazari Lal Vs 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 the 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 C C No.15/09 28/73 29 demanded bribe of Rs.60/- from him and when he went to the police station along with panch 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 amount from accepted the amount. The panch witness who went along with the complainant could not be examined as he became insane and other panch witness turned hostile. The conviction was based on the statement of the 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 not rule of prudence which has crystallized into a rule of law, nor indeed any rule of prudence , which requires that the evidence of such officer 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 accept the evidence of such an officer."
45 The Hon'ble Supreme Court in case of State of UP Vs C C No.15/09 29/73 30 Zakaullah AIR 1998 SC 1474 held " that the evidence of trap officer can be relied upon even without corroboration if it inspire confidence."
Testimony of CBI Officer cannot be rejected merely because he happened to be a police officer. It is observed by the Hon'ble Supreme Court in Tahir Vs State ( 1996) 3 SCC 399, no infirmity attaches to the testimony of police officials merely because they belong to the police force. It was observed in Aner Raja Khim Vs The State of Saurashtra AIR 1956 SC 217 that the presumption that a person acts honestly and legally applies as much in favour of police offices as of others. It is not proper and permissible to doubt the evidence of police officers. Judicial approach must not be to distrust and suspect their evidence on oath without good and sufficient ground thereof. In these circumstances, there is no reason to disbelieve the statement of TLO.
46 Prosecution has also produced and proved the recorded conversation between accused and complainant, recorded during the pre trap proceedings from CBI office and on the spot transcription of which is Ex PW 8/D to prove the demand of bribe by the accused and its acceptance.
47 PW4 Pawan Singh Nodal Officer of Idea Cellullar has stated that mobile telephone No.9990012033 was allotted to Joginder C C No.15/09 30/73 31 Singh Malik. Mobile telephone No 9990681541 was allotted to in the name of Ravi Kumar. He has also proved certified copy of call details of mobile phone No. 9990012033 and 9990681541 from 8.1.2009 to 11.1.2009 Ex PW4/D which he had given to the CBI officer under his signatures.
48 Ld. Defence Counsel argued that PW6 Sh. Deepak Kumar, Sr. Scientific Officer, CFSL has stated that voice of accused could not tallied with the recorded voice in cassette Q2. It is argued that even complainant has admitted that transcription of it has not been correctly prepared.
49 It is correct that PW6 has stated that sample voice of accused could not tallied with the voice of accused recorded in Q2 because of the great noise. Transcription Ex PW 8/D is the transcription of both the cassettes Q1 and Q2. There is no dispute with regard to comparison of recorded voice of accused in Q1 with his sample voice. Even Ld. Defence Counsel has not cross examined PW6 in this regard. Dialoges upto S. No. 31 of recorded conversation between complainant and accused are in cassette Q1. Recorded conversation Dialoges at Sl No.32 to 35 in transcription Ex PW8/D are that of cassette Q2. I have carefully gone through the statement of complainant and other independent witnesses in this regard. Complainant, in this regard has deposed as follows:
C C No.15/09 31/73 32"The cassette is played and witness has identified the formal voice of both the independent witnesses appearing initially in the cassette. The cassette was continuously played and witness has identified his voice and the voice of accused as the same is clearly audible.
I was called in the CBI office on 8.6.2009 in the CBI office and I reported accordingly . I have seen transcription dated
8..6.2009 was prepared in my presence and in the presence of both the independent witnesses namely Sh. Amit Khurana and SanjayArora. I indentify my signature at point'A' on all the 8 sheets. This transcription was prepared when I identified the voice of accused person and my voice when the cassette was played in the CBI office. My voice was subscribed by mark 'C' and that of accused was subscribed as marked 'A'. The transcription is runs into 8 sheets."
"Today this cassette is played in the court, I have heard the same as the voice is clearly audible and tallied the same from the transcription. The voice of the complainant are exhibited as EX C1-1 to C31-31 and that of accused are exhibited as EX A1-1 to A31-31.The transcription is Ex PW8/D. The cassette Q1 is now exhibited as EX P32 , cassette cover is EX. P33 , cloth wrapper is Ex P34.
At this stage one brown envelope with intact seal of CFSL marked Q2 is produce by Malkhana Moharar Narender Kumar and the same is shown to the defence counsel also. Envelope is C C No.15/09 32/73 33 opened with the permission of the court from which one cassette in a cassette cover and cloth wrapper is taken out. The cassette is inserted in the cassette player and the same is played with the permission of the court.
50 The witness has identified his voice and the voice of accused in the cassette .The voice of complainant is exhibited from Ex C32-32 to Ex C-35-35. The voice of accused is exhibited from Ex A-32-32 to EX A35-35 in exhibit PW8/D. The cassette mark Q2 is now exhibited as Ex P35, cassette cover is Ex P36 and cloth wrapper is Ex P37.
51 The transcription of both the cassette is contained in Ex. PW8/D and my signature is also on voice identification cum transcription memo at point 'A' and the same is Ex PW8/D1."
52 From the above quoted statement of complainant PW8, it is clear that he had identified his voice and that of accused in the recorded conversation of cassette Q1 and Q2 which have been played to this witness in the court and he has identified the voice of accused in both the cassettes correctly.
53 Entire cross examination of Ld. Defence Counsel of this witness in this regard, is as under:
C C No.15/09 33/73 34"It is correct that word 'YAAR ' is not recorded in the cassette Q1 in the beginning before the word 'Me Yaha par hoo Sarai Mein'. It is also correct that word 'FINAL' is recorded in the cassette in place of ' filai' as mentioned in transcription at point 'D1'. It is correct that words 'WO A D N AUR KUCHH BHI CHAHTA HAI' is not recorded in the cassette Q1 but appeared in the transcription. It is incorrect to suggest that wording 'KITNE PAISE HAIN' is not recorded in the cassette Q2 which is mentioned at point 'A-34 to A-34 in EX PW8/D. It ;is correct that word' HAA KAR DOONGA' is not recorded in the cassette Q2 again said it is not audible as there is lot of disturbance because of the train voice. Now I do not recollect whether accused had/was talking to some one on his mobile phone at the time of this incident. Vol. Accused was having a cup of tea in his hand."
54 From the above cross examination it is clear that all other portion of recorded conversation and its transcription Ex PW 8/D is correct thus can be relied upon. This court will not rely upon the above quoted wording in the cross examination of PW8 which he has admitted as not recorded or not mentioned correctly in the transcription.
55 PW9, Sanjay Arora who is an independent witness in his statement with regard to recorded conversation and its transcription C C No.15/09 34/73 35 has stated as follows:
" Digital recorder was taken from the complainant in my presence which was played and heard before me. The recorded conversation was transferred in the blank cassette with the help of recorder in the shape of machine and the cassette was marked Q2 on the paper slip and I have signed on the same. Specimen voice of Joginder Singh Malik was also taken in my presence. Specimen voice memo was separately prepared. I have seen D-1- i.e. specimen voice recording memo which was prepared in my presence. I have signed on it after going through the contents written therein at point A. Joginder Singh Malik had also signed on it in my presence at point B. The same is Ex PW9/Q1........."
.........."Witness identified his specimen voice, voice of Amit Khurana, the other independent witness and voice of Joginder Singh Malik which was taken at Delhi Cantt. Railway Station. Cotton wrapper and cassette S1 are the part and parcel of Ex.PW PW6/B3."
56 PW12 Amit Khurana who is recovery witness in his statement with regard to recorded conversation has stated as follows:
" At this stage cassette S-1 Ex P-38 played and witness identified his voice, voice of Sanjay Arora as well as Joginder Sigh Malik distinctively ."
57 In this regard he has further stated as follows:
" Voice identification cum transcription memo was also C C No.15/09 35/73 36 prepared which was signed by me at point B and Sanjay Arora has also signed in my presence at point C on Ex PW8/D-1 I have also signed on all the 8 sheets of rough transcription at point C on Ex PW8/D. Contents of exhibit PW8/D are absolutely correct."
58 These witnesses have not been cross examined on this point, by the Ld. Defence Counsel, thus his statement in this regard can be safely relied upon. In view of the fact that voice of accused has been duly identified by both these witnesses in cassette Q1 and Q2 the same can be relied upon.
59 I have carefully gone through the transcription Ex PW 8/D of cassette Q1 and Q2. Relevant reliable portion of the same is as under:
C C No.15/09 36/73 37 C C No.15/09 37/73 38 C C No.15/09 38/73 39 C C No.15/09 39/73 40 C C No.15/09 40/73 41 C C No.15/09 41/73 4260 From the above quoted portion of transcription it is clear that accused was asking complainant to come to him and to talk face to face with him to discuss about the amount . If the accused was not demanding the bribe he should have rebuked the complaint and would not have asked him to come to him and to discuss with regard to amount face to face. From the last portion of Q2 it is also clear that accused had asked how much money he had to which complainant replied Rs.15,000/- for all the three works.
61 Now a days public servants have become wiser enough to avoid detection of their demand/ acceptance of bribe . They take all precautions to conceal the transaction of bribe . Hence, they talk in coded language or in short. In such circumstances, Court cannot expect from the prosecution to produce direct evidence to prove the demand and acceptance of bribe. Court has to draw inference from the circumstances in this regard.
62 The recorded conversation and its transcription have also been corroborated by the evidence of PW8. In the transcription there is reference with regard to demand of tea/taking of tea. Complainant in this regard has also stated in his statement as follows:
"Sh. Joginder Singh Malik expressed the desire to take tea. We both took tea. After taking the tea Malik demanded the C C No.15/09 42/73 43 money by gesture as well as orally, however voice was not audible because a train was passing at that time and creating noise. Accused had extended his left hand towards me for receiving the bribe amount."
63 Had the accused was not interested in the demand/ acceptance of bribe from complainant he would not offered him tea.
64 From a bare reading of the above quoted portion of transcription, demand and acceptance of the same by accused can be well inferred.
65 Ld Defence counsel argued that accused was working as SSE his job was to make measurements and mentioned the same in MB Books and forward the same to ADEM. Accused was not competent to make final bills or to sanction the same, in these circumstances, there was no occasions for him of demanding the bribe for making final bills of complainant.
66 From the statement of PW5 Ashok Kumar Addl Divisional Engineer Northern Railway, it is proved that accused was the incharge of all the three works which were being executed by complainant. Relevant portion of his statement in this regard is as under :
C C No.15/09 43/73 44" After going through the documents in file Ex PW5/D, Ex PW5/E and Ex PW5/F I confirm that Incharge of all these three works, as mentioned therein, was Sh Joginder Singh Malik and these works were awarded to contractor Harish Kumar Anand. No payment of any contractor was directed to be held up from my office. Even in above said exhibits the concerned bills were not held up from my office. After conducting 10% sample check bill was sent to Sr Division V for sanctioning the same. I know accused Joginder Singh Malik who is present in Court today."
67 In this regard PW7 Sh. Rajesh Sharma has stated as follows:
"This case relates to DEE Sub Division, i.e. commonly known as Delhi Sarai Rohilla. Sh. J S Malik, present in the court, was working as Section Engineer (Works) and he was having its office at Pil Mithai. Sh. J S Malik was having the immediate charge of three work order."
68 In this regard, PW10 Sh. A K Rajput has stated as follows:
"I have seen Ex PW 5/Ai.e. D-19, Ex PW 5/B i.e. D-20, Ex PW 5/C i.e. D-21, Ex PW 5/D i.e. D-22, Ex PW 5/E i.e. D-23 and Ex PW 5/F i.e. D-24. These are related with three tender files relating to different work order. All these three work order were in charge of C C No.15/09 44/73 45 Sh. Joginder Singh Malik under ADEN as such these files were pending with him when I took the charge of Loca from him on 1.8.2008."
69 From the above statements of PW5, PW7 and PW10 it is proved beyond reasonable doubt that accused was incharge of all the three works which were being executed by the complainant.
70 Even according to accused himself he has to make measurement of the work done and mentioned the same in MB Books which were sent to ADEM for preparation of final bills .
71 From the statement of PW5 it is also clear that only 10% sample check were made by Additional Divisional Engineer and no payment of any contractor was held by his office as deposed by him and quoted above. Thus it is clear that measurement of work was most important step for preparation of final bills,without which preparation of final bill was not possible.
72 Even otherwise to constitute an offence under Section 7 of P C Act it is enough if the public servant who accepts the gratification takes it by inducing a belief or by holding out that he would render assistance to the giver, " with any other public servant"
and the giver, gives the gratification under that belief. It is not the C C No.15/09 45/73 46 requirement of law that public servant who has accepted money must be in position to do the official act, favour or service at the time of demand or receipt of illegal gratification.
73 Hon'ble High Court of Madras in P. Sabbaraj Vs The State 1995 CRI L J 3440 in this regard has held as follows :
" Prevention of Corruption Act (2 of 1947), S. 5(1) (d) - Bribery- Proof - Acts of accused, a public servant is taking illegal gratification from complainant for securing him job in some other department - Falls under the mischief of Section 5(1) (d) and Section 161, Penal Code- Such acts of accused need not be proved to be done in discharge of his official duties."
74 Hon'ble High Court of Bombay in Indur Dayadas Advani Vs The State of Bombay in this regard has held as follows :
" The section does not require that the public servant must himself have the power or must himself be in a position to perform the act or show favour or disfavor for doing or showing which the bribe has been paid to him . From the last explanation to this section it is clear that it is not necessary in order to constitute an offence under Section 161 that they act for doing which the bribe is given should actually be performed. It is sufficient if a represention is made that it has been or that it will be performed and a public servant, C C No.15/09 46/73 47 who obtains a bribe by making such representation will be guilty of the offence punishable under this Section, even if he had or has no intention to perform and has not performed or does not actually performed that act. A presentation by a person that he has done or that he will do an act impliedly includes a representation that it was or is within his power to do that act."
75 Hon'ble Supreme Court in Shiv Raj Singh Vs Delhi Administration AIR 1968 SC 1419 in this regard has held as follows :
" When a public servant is charged u/s 161 Penal Code and it is alleged that the illegal gratification was taken by him for doing or procuring an official act, it not necessary for the Court to consider whether or not the accused public servant was capable of doing or intended to such an act. Thus although the concealment of the birth of an illegitimate child is not an offence under the Penal code or any other criminal statue, if a public servant obtains money from anybody on that ground he is guilty of grossly abusing his position as a public servant within the meaning of Section 5 (I) (d) of the P C Act and thereby obtain for himself a valuable thing or pecuniary advantage and he can be charge under this section."
76 Hon'ble Supreme Court in Chaturdas Bhagwandas Patel C C No.15/09 47/73 48 Vs The State of Gujrat (1976) SCC-46 this regard has held as follows :
" Section 161 does not require that public servant must, infact , be in a position to do the official act, favour or service at the time of demand or receipt of gratification . To constitute an offence under this section it is enough if the public servant who accept the gratification, takes it by inducing a belief or by holding out that he would render assistance to the giver "
with any other public servant " and the giver gives the gratification under that belief. It is further immaterial if the public servant receiving the gratification does not intend to do the official act, favour or forbearances which he holds himself out as capable of doing .This is clear by the last explanation appended to section 161 and illustration"
77 Our Hon'ble Supreme Court in Mahesh Prasad Vs. state of UP 1955 AIR (SC) 70 has held as follows:
"Indian Penal Code, 1860, Section 161, Explanation 4 - Public Servants - Motive or reward for doing to assist another Government Servant - Whether the accused could or could not do the same, but was aware of heating - Held guilty of offence under Section 161 of the Code."
78 In view of the above discussion there is no merit in this C C No.15/09 48/73 49 argument.
79 Complainant Harish Kr Anand , Shadow witness Sanjay Arora and recovery witness Amit Khurana , TLO Inspector S S Bhullar have stated that wash of left hand of accused and left hand side pant pocket of accused was taken with the solution of sodium carbonate prepared in water which had turned pink in colour . There is no cross examination of any of these witnesses on this point on behalf of accused, thus there is no reason to disbelieve it.
80 PW4 Sh. V P Ramteke Senior Scientific officer CFSL who has chemically examined the left hand wash of accused and wash of the left side pant pocket of the accused has stated that after chemical analysis of both the washes, he found presence of phenolphthalein and sodium carbonate in both the samples of the washes. Thus the presence of phenolphthalein on the hand of accused and left side pant pocket has been confirmed.
81 The importance of phenolphthalein test was underline by the Hon'ble Supreme Court in Som Parkash Vs State of Delhi AIR 1974 Supreme Court 989, where in para 10 it is held as under:
" ............... of course, the oral evidence of PWs 1and 4 C C No.15/09 49/73 50 by itself, if believed as rightly believed by the High Court , proves the passing of the money to the accused and its production by him when challenged by P.W 7 . The fact is indisputable that the hands, the handkerchief and the inner lining of the trouser pocket of the accused turned violet when dipped in soda ash solution. From this the State counsel argues that on no hypothesis except that the notes emerged from the accused's Pocket or possession can the triple colour change be accounted for . The evidence furnished by inorganic chemistry often outwits the technology of corrupt officials, provided no alternative reasonable possibility is made out. The appellant offers a plausible theory. PW 1 kept the notes with him and his hands thus carried the powder. He gave a bottle of cake to the accused and the bottle thus transmitted particles of phenolphthalein to the latter's hands. He ( the accused ) wiped his face with the handkerchief and put it into his trouser pocket thus contaminating the lining with the guilty substance. Moreover, the inner lining was dipped by PW 7 with his hands which had the powder . Thus, all the three items stand explained, according to him. These recondite possibilities and likely freaks have been rejected by both the courts and we are hardly persuaded into hostility to that finding. It is put meet that science- oriented detection of crime is made a massive programme of police work, for in our technological age nothing more primitive can be conceived of than denying the discoveries of the sciences as aids to crime suppression and nothing cruder can C C No.15/09 50/73 51 retard forensic efficiency then swearing by traditional oral evidence only thereby discouraging the liberal use of scientific research to prove guilt."
82 In Raghbir Singh Vs State of Punjab (1976) 1 SCC 145 while discarding the oral and documentary evidence laid on behalf of the prosecution is not such as to inspire confidence in the mind of the Court, the Supreme Court observed in para No.11 as follows:-
" We may take this opportunity of pointing out that it would be desirable if in cases of this kind where a trap is laid for a public servant, the marked current notes, which are used for tte purpose of trap, are treated with phenolphthalein power so that the handling of such marked currency notes by the public servant can be detected by chemical process and the court does not have to depend on oral evidence which is something of a dubious character for the purpose of deciding the fate of the public servant."
83 A suggestion has been given by Ld. Defencel Counsel to the complainant that as the accused had taken a turn and bents slightly at that time complainant tried to thrust and in order to prevent accused had thrown away the currency notes on the ground due to which powder had come on his hands. In other words, it is C C No.15/09 51/73 52 clear from the above stand of accused that he has accepted the presence of phenolphthalein powder on his left hand and left side pant pocket. The explanation given by accused is not acceptable because no such defence has been put to shadow witness , recovery witness and TLO . Complainant has also denied this suggestions . In this regard accused has produced DW 5 whose statement is not trust worthy. It is an after thought defence developed by accused to save him.
84 Hon'ble Supreme Court in Roop Singh Vs. State of Punjab , AIR 1991 Supreme Court 1125, in this regard, has held as follows:
"Prevention of Corruption Act (2 of 1947), S.5 - Offence of accepting bribe - Nothing to doubt testimony of prosecution witnesses - Defence by accused that he was victim of conspiracy - Not supported by evidence on record - Failure of accused to explain presence of phenolphthalein powder on his hand - Held, evidence of prosecution witnesses was sufficient to prove offence against accused
- Conviction of accused was proper."
85 Complainant Harish Kr Anand , Shadow witness Sanjay Arora and recovery witness Amit Khurana , TLO Inspector S S Bhullar have stated that when accused was challenged that he had accepted the bribe, he became perplexed C C No.15/09 52/73 53 and has not given any explanation.
86 Complainant in this regard has deposed as follows:
" Inspector SS Bhuller followed by all the team members reached the spot and challenged the Malik after disclosing his identifyfor having demanded and accepted illegal gratification of Rs.15000/- from me. Accused become perplexed."
87 Shadow witness in his regard has deposed as follows:
" Mr Bhullar who was team incharge had challenged the J S Malik that he had accepted the bribe amount of Rs.15,000/- . Accused had became perplexed. Mr Bhullar had also introduced him as well as CBI team . Accused had stated that he may be excuse for his mistake thereafter all the persons had gone inside the godown ."
88 In this regard TLO has deposed as follows:
" After disclosing our identity, I challenged accused as to whether he has demanded and accepted bribe ofRs.15000/- from the complainant on which he became perplexed and pleaded guilty ( Objected to, objection will be decided at the time of arguments )"C C No.15/09 53/73 54
89 In this regard recovery witness Amit Khurana has stated as follows:
"Inspector Bhuller after disclosing his identity challenged Joginder Singh Malik for having demanded and accepted bribe of Rs.15,000/- from Harish Kr Anand. On being challenged accused became perplexed."
90 No cross examination has been conducted on behalf of accused on this point on any of the above mentioned witnesses. Not even a suggestion has been given to these witnesses that they have falsely deposed in this regard, thus, there is no reason to disbelieve this part of their statement .
91 In a prosecution for the offence of bribery the conduct of accused is relevant U/S 8 of Evidence Act. When the accused was challenged regarding acceptance of bribe amount he kept mum or tender apology and had not given any explanation, now his defence that complainant has forcible inserted money in his pocket appears to be after thought, particularly when no such defence has been put to shadow witness recovery witness and TLO.
92 Hon'ble Supreme Court in Parkash Chand Vs Delhi Admn AIR 1979 SC 400 in para No.8 has observed as follows:
C C No.15/09 54/73 55" It was contended by the ld. Counsel for the appellant that the evidence relating to the conduct of the accused when challenged by the Inspector was inadmissible as it was hit by section 162 Criminal Procedure Code. He relied on a decision of the Andhra Pradesh Hingh Court in D.V. Narisimhan V.State,(AIR 1969 andh Pra
271). We do not agree with the submissions of Sh. Anthony. There is a clear distinction between the conduct of a person against whom an offence is alleged which is admissible under section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a police officer in the course of an investigation which is hit by sec. 162 Criminal Procedure code.
What is excluded by sec. 162 Criminal Procedure Code is the statement made to a police officer in the course of investigation and not the evidence relating to the conduct of an accused person ( not amounting to a statement) when confronted or questioned by a police officer during the course of an investigation. For example, the evidence of the circumstances, simpliciter,that an accused person led a police officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence where found hidden, would be admissible as conduct, u/s 8 of the evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act(vide Himachal Pradesh Administration Vs. Om Prakash AIR 1972 SC 975 C C No.15/09 55/73 56 93 From the above discussion it is again proved that accused Joginder Singh Malik accepted Rs.15,000/- voluntarily and consciously which was also recovered from his conscious possession.
94 When it is proved that there was voluntary and conscious acceptance of the money by the accused, there is no further burden cast on the prosecution to prove by direct evidence the demand or motive, in view of Section 20 of PC Act, 1988. It has been held so by our Hon'ble Supreme Court in B. Noha Vs. state of Kerala, 2006 IV AD 465.
95 Our Hon'ble Supreme Court in State of Andhra Pradesh Vs. R Jeevaratnam, 2004 (2) JCC 1161 has held as follows in this regard:
"Prevention of Corruption Act, 1988 - Sec. 20 (1)
-Presumption under - Respondent caught red-handed with the marked money in a briefcase carried by him - Presumption that he accepted illegal gratification arose".
96 Our Hon'ble Supreme Court in Madhukar Bhaskarrao Josi Vs. State of Maharashtra (2000 (8) SCC 571) has held as follows in this regard:
"The premise to be established on the facts for drawing the C C No.15/09 56/73 57 presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted 'as motive or reward' for doing or forbearing to do any official act. So the word 'gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premises that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like 'gratification or any valuable thing'. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word 'gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it".
97 This decision was followed by Hon'ble Supreme Court in M. Narsinga Rao Vs. State of A.P. (2001 (1) SCCC 691). wherein it has been held that " There is no case of the accused that the said amount was received by him as the amount which he was legally entitled to receive or collect from PW-1. It was held in the decision in State of A P Vs. Kommaraju Gopala Krishna Murthy (2000 (9) SCC 752), that when amount is found to have been 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."
C C No.15/09 57/73 5898 It is correct that there are several contradiction with regard pre trap proceedings conducted in CBI office, with regard to preparation of verification of complaint and on other points as mentioned in annexure filed with the written submissions. These pre trap proceedings are not of substantive in nature . These Pre trap proceedings were conducted to demonstrate the reaction of phenolphthalein powder with the sodium carbonate and to give an idea to the witnesses as to how the trap proceedings will be conducted. There is no requirement of conducting pre trap verification of the complaint however CBI is conducting the same for its own satisfaction.
99 The contradiction mentioned in annexure filed with the written submissions on behalf of accused in any way cannot be called material contradiction. Such contradictions are bound to come in the statement of witnesses because of the passage of time and other reason. These contradictions are not of substantive nature . Court cannot expect a parrot like repetition of the version by the witnesses.
100 The law regarding contradiction was considered by the Hon'ble Supreme Court in case of Bharuda Broginbhai Harjibhai V/S State of Gujrat AIR 1983 SC 753 where in it was held that discrepancies which do not go to the root of the matter and shake the C C No.15/09 58/73 59 basic version of the prosecution should not be attached undue importance. Their Lordships have enumerated following reasons for arriving of this conclusion:
i) " By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.\
ii) Ordinarily, it is so happen that a witness is over taken by events the witness could not have anticipated the occurrence which so often has an element of surprise.
Thus mental faculties, therefore, cannot be expected to be attuned to absorb the details.
iii) The powers of observance differ from person to person, but one may noticed another may not. An object or movement might emboss image on one person's mind, whereas it might go unnoticed on the part of another.
iv)By and large people cannot accurately recall a conversation and reproduced the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
v) In regard to exact time of an incident or the time duration of an occurrence, usually, people make their C C No.15/09 59/73 60 estimate by guess work as spare of moment, at the time of interrogation and one cannot expect people make very precise or reliable estimate in such matter. Again it depends upon the time sense of individuals which varies from person to person.
vi) Ordinarily, a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession of in a short time span. A witness is liable to get confuse or mixed up when interrogated later on.
vii) A witness though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross examination made by counsel and out of nervousness mixed up facts, get confused regarding sequence of events., or fill up details of imagination at the spur of moment. The sub conscious mind of the witness sometime so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and an honest account of the occurrence witnessed by him perhaps it is a sort of physiological movement".
101 In view of the law discussed above it cannot be said that the contradiction pointed out by Ld. Counsel for accused are very C C No.15/09 60/73 61 vital contradictions. These are contradiction which are likely to occur with the passage of time. The Hon'ble Supreme Court in case State of UP V/S M.K. Anthony, AIR 1985 SC 48 has laid down the principle for appreciating the evidence of a witness as under:
" While appreciating the evidence of a witness the approach must be whether the evidence of the witness read as a whole, appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, draw backs and infirmities, pointed out in the evidence as a whole and evaluate them to find out whether, it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render if unworthy of belief. Minor discrepancies of trivial matter, not touching the core of the case, hypertechnical approach by taking sentence torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of evidence as a whole."
" Their Lordships further observed:
" Unless there are reasons weighty and formidable it would C C No.15/09 61/73 62 not be proper to reject the evidence on the ground of minor variations of infirmities in the manner of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention, and reproduction differ with individuals. Cross examination is an unequal dual between the rustic and refined lawyer."
102 Ld Defence counsel argued that complainant was having a motive to falsely implicate the accused in this case because accused has taken action against him, hence complainant is not a trust worthy witness. There is evidence on the file that accused had issued notice against complainant and on the objections raised by accused an amount of about Rs. Three lacs was deducted from his bill. Evidence of complainant cannot be rejected merely on this ground particularly when his evidence has been duly corroborated by other witnesses, recorded conversation and circumstantial evidence.
103 Independent witness Sanjay Arora who is shadow witness was working as Administrative officer in the office of LIC of India and Amit Khurana who is recovery witness was working as Asstt Administrative Officer LIC, are public servants. Both are officers in LIC. Both have fully supported the case of prosecution and nothing such has come out in their lengthy cross examination conduced by Ld Defence counsel to disbelieve their C C No.15/09 62/73 63 statement. They were directed by their senior officers to join the investigation of CBI in this case, hence they cannot be termed as witnesses of the choice of CBI. They have not joined investigation of CBI in any other case except the present one. They were neither knowing the complainant nor the accused prior to this case. They have no affinity with the complainant and no enmity with the accused. Not even a suggestion has been given to both these witnesses on behalf of accused that they were anemical to the accused. In these circumstances, no motive can be imputed to him to depose falsely against accused. According to accused he has been falsely implicated in this case by CBI at the instance of complainant . It is argued by Ld Defnece counsel that recovery of bribe money has been falsely shown by the CBI on the accused by inserted in his pocket. TLO and both the independent witnesses and complainant has denied it . CBI is the Prime Investigating Agency of this country. Harish Kr Anand , complainant in this case is an ordinary contractor who is facing difficulty even in recovery of his bills . In any manner he is not such a personality, who can influence a prime investigating agency like CBI. There is no reason to believe that CBI would falsely implicate the accused at the instance of complainant Harish Kumar. TLO Inspector SS Bhuller is also a public servant . He was not alone in the trap team. There were many other CBI officer in the trap team who were also public servant. All the CBI officers were unknown to complainant. There is no reason why the TLO and other C C No.15/09 63/73 64 trap team members who were also public servants will falsely implicate a public servant in this case. There is no reasons why they will falsely depose in the Court against the accused . No enmity/ ill will has been alleged against the TLO and IO even by accused, therefore they were having no motive to falsely implicate the accused in this case. In these circumstances there is no merit in the arguments that accused has been falsely implicated in this case and witnesses have been falsely deposed against him .
104 Our Hon'ble Supreme Court in recent case titled State rep. by CBI, Hyderabad Vs G Prem Raj having similar facts observed as follows:
" Prevention of Corruption Act- Sec.7, 13(1)(d), 13(2) and 20- Appeal against judgment of acquittal - Respondent was working as a Senior Engineer - Respondent - Accused demanded bribe failing which he showed his reluctance to prepare the detailed programme of work- Recovery of bribe money- Full - fledged departmental enquiry was conducted against the accused- Trial Judge convicted the respondent for the offence charged- Evidence of PW1 suggests that question of payment of Rs.50,000/- as bribe money arose only after the letter Ex P1 was written informing him that he was awarded the contract- Respondent- Accused had, at no point of time, complained to anybody that the amount was thrust in his hand- Held - High Court has not properly viewed that the bribe was C C No.15/09 64/73 65 demanded for completing the contract- First circumstance- Movement of the respondent - accused out of his office and going to Taj Mahal Hotel after office hours at 6'O clock raises accusing finger towards the intentions of the respondent- accused- High Court, without going into the details of th evidence, has merely come to the conclusion that no demand was made - There is no explanation, whatsoever, of this second fact as to how the fingers of the respondent - Accused were soiled with phenolphthalein - High Court has committed an error in ignoring the provision of Section 20 of the Act and ignoring the fact that the presumption had to be raised, and on that basis , it was up to the respondent- accused to explain as to how the amount came in his possession - Evidence of PW1 was corroborated by the evidence of PW2 and PW7 - No reason to falsely implicate the respondent- accused- This was certainly not the jurisdiction on the part of the High Court to directed his reinstatement as senior most Civil Engineer, Civil Department, with all usual retrial monetary benefits inclusive of restoration of seniority etc with immediate retrospective effect."
105 I have carefully gone through the statement of DWs. DW1 has produced the call details of mobile No. 9717631239 wef 5.1.2009 to 10.1.2009 and stated that this mobile number was allotted to Northern Railway. He has proved call details Ex PW1/A , Customer enrollment form Ex DW1/B . DW 3 has stated that sim C C No.15/09 65/73 66 card of mobile No.9717631239 was received by Sh J S Malik vide after signing Ex PW3/A. 106 DW2 Nagender Prasad has stated that he was a trolly man, his duty was with accused on the day of trap . Contractor Harish Kr Anand had come at platform No.4 at about 9.15. pm and had a talk with accused J S Malik regarding the official work. After the departure of train both had come to platform No.1 during that period there was no talk regarding bribe money, after about 15 minutes J S Malik, contractor Anand and he reached to Railway Fatak from platform No.4 . In his cross examination he has stated as follows:
" It is correct that Joginder Singh Malik was caught red handed while accepting bribe by CBI on 10.1.2009. I used to remain at 8 to 10 furlong away from the officer again said steps."
107 He has further stated as follows:
" When the CBI had apprehended the accused I was not present and I became very hurt to hear that my Sahab Mr Malik has been trapped for accepting bribe. I had not seen CBI officer at platform No.4 however Harish Anand was there. It is correct that I have sympathy with accused as he was my Senior."C C No.15/09 66/73 67
108 From the above quoted cross examination of this witness . It is clear that this witness is of no help to accused.
109 DW 4 Khanoi Ram has stated that he went to accused to complaint about his quarter who had asked the contractor Harish to repair the same. There had not been any transaction of demand or acceptance of bribe in his presence. In his cross examination he has stated that subsequently he came to know that CBI had apprehended JS Malik while accepting bribe from Harish Kumar. He has also stated that he was not present on the date of occurrence. On the date of occurrence his duty was to check the railway track. This witness is also of no help to accused.
110 DW5 Vijay Kumar has stated that on 10.1.2009 , his duty was on platform No.4 after departure of train Ferry Queen at about 9.05 am he went to platform No.1 from where he proceeded towards Railway Store. In the Railway store he saw that Sh J S Malik was counting some articles facing the wall and Harish Kumar went towards him and tried to insert something in his pant pocket but Sh Malik avoided the same by striking his hand on the hand of Harish Kumar and he saw that some currency notes had fallen on the ground thereafter Harish Kumar and Mr Malik came out of the Railway store and J S Malik was apprehended near the entrance of store by 3 or 4 persons. According to statement of this witness Sh Malik had C C No.15/09 67/73 68 stopped Harish Kumar from putting currency notes in his pocket by striking his hand on the hand of Harish Kumar. From the foregoing discussion of this judgment it is proved that phenolphthalein powder was found in the left side pant pocket of accused which belies the version of this witness. Except to the complainant this defence has not been put to any other witness i e shadow witness, recovery witness and TLO on behalf of accused in their cross examination. Thus this defence appears to be after thought and untrustworthy.
111 I have carefully gone through all the authorities relied upon by Ld Defence counsel in support of his arguments. In Arjun Bairao Kale Vs. State of Maharashtra, 2018 (1) Criminal Court Cases 093 (Bombay) it is held that mere acceptance of money without demand is not sufficient for conviction of accused. As discussed above in this case demand , acceptance and recovery from accused of tainted money is well proved. In this case testimony of complainant is also corroborated by TLO with regard to recovery of money and from the tape recorded conversation, thus the facts of this case are different then the above authority.
112 In Jagdish Narain Vs. State of Rajasthan, 2009 (4) Criminal Court Cases 171 (Rajasthan) it is held that demand of bribe is very material without which acceptance of bribe does not germinate. As discussed above demand acceptance and recovery in C C No.15/09 68/73 69 the case in hand is well proved.
113 In SureshKumar Vs. State of Haryana, 009 (4) Criminal Court Cases 962 (P & H) it is held that shadow witness was standing at a distance from where he could not hear the demand . As discussed in foregoing pages of this judgment it is proved that shadow witness in this case had seen the accused demanding the bribe by making gesture from his hand . Demand is also proved from the tape recorded conversation hence the facts of this authority are different then the case in hand.
114 In State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede, VI (2009) SLT 439, it is held by Hon'ble Supreme Court that demand is sin qua non for the offence punishable under P C Act and accused has to prove his defence by mere preponderance of probability. There is no dispute with this proposition . As discussed above demand is well proved in this case. Defence of accused is unreliable and untrustworthy as discussed above. Therefore ratio of law laid in this authority is not applicable in this case.
115 Similarly I have gone through the following authorities:
Babu Lal Bajpai Vs. State of UP, AIR 1994 Supreme Court 1538, Som Nath Vs. State, 1991 (2) CL R 198, State of UP Vs. Ram Asrey 1990 Supreme Court Cases (Crl) 604, State C C No.15/09 69/73 70 (Delhi Administration) Vs. Satish Chand Sharma 1987 (2) Recent Criminal Reports 254, Krishna Kumar Vs. The Divisional Assistant Electrical Engineer, Central Railway and others AIR 1979 Supreme Court 1912 & Suraj Mal appellant Vs. The State (Delhi Administration) Respondent, AIR 1979 Supreme Court 1408. Facts and circumstances of all these authorities are different then the facts and circumstances of case in hand therefore the ratio of law laid down in these authorities is not applicable to the facts and circumstances of this case.
116 Our Hon'ble Supreme Court in State of Punjab Vs. Pohla Singh, 2003 (3) CCC 75 has held as follows:
"Appreciation of evidence - The prosecution is not supposed to meet every hypothetical question raised by the defence -If crime is to be punished in a glosseme way niceities must yield to realistic appraisal."
117 Prevention of Corruption Act is a social legislation enacted with the object to curb illegal activities of public servants, in these circumstances according to the law of interpretation of Statute, its provision should be interpreted so as to achieve its object. Our Hon'ble Supreme Court in Ram Singh Vs. State of MP (2000) 5 Supreme Court Cases-88 has held as follows:
"Prevention of Corruption Act, 1988 - Nature and C C No.15/09 70/73 71 interpretation of -Held is a social legislation to curb illegal activities of public servant and should be liberally construed so as to advance its object and not liberally in favour of the accused - interpretation of Statutes -Particular statutes or provisions - Penal statute - Social Legislation - Interpretation of".
118 Hon'ble Supreme Court in Inder Singh Vs State ( Delhi Administration) AIR 1978 Supreme Court 1091 has held as follows:
"Credibility of testimony, oral circumstantial depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect, If a case is proved too perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of fool-proof concoction. Why C C No.15/09 71/73 72 fake up? Because the Court asks for manufacture to make truth look true? No, we must be realistic".
119 In case U/S 13 (1) (d) of P C Act 1988 prosecution has to prove that :
i) That accused should be a public servant.
ii) That he should used some corrupt or illegal means or otherwise abused his position as a public servant,
iii) That the accused should have thereby obtained a valuable thing or pecuniary advantage.
iv) Such benefit for himself or for any other person.
120 A five Judges Bench of Hon'ble Supreme Court in Dhaneshwar Narain Saxena Vs The Delhi Administration 1962(1) Crl L J 203 ( Vol.64 C.N. 76) has held as follows:
Misconduct by public servant need not be in connection with his own official duty.
" It is not necessary that the public servant in question, while misconducting himself, should have done so in the discharge of his duty. It would be anomalous to say that a public servant has misconduct himself in the discharge of his duty. "Duty" and "misconduct" go ill together. If a person has misconducted himself as a public servant, it would not ordinarily be in the discharge of his duty, but the reverse of it. It is not necessary to constitute the offence under cl (d) of the section that the public servant must do something in connection with his own duty and thereby obtain any valuable C C No.15/09 72/73 73 thing or pecuniary advantage. It is equally wrong to say that if a public servant were to take money from a third person, by corrupt or illegal means or otherwise abusing his official position, in order to corrupt some other public servant, without there being any question of his misconducting himself in the discharge of his own duty, he has not committed an offence under S. S(10) (d) . It is also erroneous to hold that the essence of an offence under S. 5(2) , read with S. 5(1)
(d), is that the public servant should do something in the discharge of his own duty and thereby obtain a valuable thing or pecuniary advantage."
121 In view of above discussion it is well proved from the evidence produced by the prosecution that accused, who was working as SSE in the Northern Railway , as a public servant, had demanded Rs. 15,000/- from Harish Kumar Anand as illegal gratification on the pretext of preparing his bills and accepted the same which was recovered from his possession, thus accused has abused his official position. In these circumstances this court is of opinion that prosecution has proved its case beyond reasonable doubts against accused, hence accused is convicted for the offences punishable U/s 7 & U/s 13 (2) r/w 13 (1 (d) of P C Act, 1988.
ANNOUNCED IN OPEN COURT (V K MAHESHWARI) TODAY ON 8th October, 2010 SPECIAL JUDGE: DELHI C C No.15/09 73/73 74 IN THE COURT OF V .K .MAHESHWARI SPECIAL JUDGE: (P C Act)-03 CBI) DELHI Corruption Case No.15/09 R. C No. 3 (A)/09/CBI/ACB/ New Delhi. CBI Vs Joginder Singh Malik s/o Sh. Baldev Singh, R/O 222/3 Railway Colony, Delhi Kishanganj, Delhi-07 ORDER ON SENTENCE:
Vide my separate judgment dated 8.10.2010 accused was convicted for the offence punishable U/s 7 & U/s 13 (2) r/w 13 1 (d) of P C Act, 1988.
Arguments on sentence heard. It is argued on behalf of convict that he is of 45years of age. He is not a previous convict. He is facing agony of this trial since 2009 and remained in J/C for 30 days. He is the sole bread earner of his family. He has to look after his aged parents i e father aged 75 yeas and mother aged 70 years . He has clean antecedents. He is having no other case against him except the present one. He has saved valuable property of Railways from encroachment and was rewarded by his department. It is argued that in these circumstances, lenient view may be taken against him.
C C No.15/09 74/73 75It is argued by Ld Senior PP for CBI that no leniency be shown to him in awarding the sentence as it will be undesirable and will also be against public interest. He has argued that convict is involved in a serious corruption case inspite of being a public servant. who was working as SSE in the Northern Railway , had demanded Rs. 15,000/- from Harish Kumar Anand as illegal gratification on the pretext of preparing his bills and accepted the same which was recovered from his possession. He was caught red handed . He should be awarded severe punishment and heavy fine may also be imposed on him.
Corruption is a scourge that not only severally affects progress and development in the society but also poses a grave challenge to governance itself. The United Nations Global Reports on Crime and Justice quotes public opinion surveys in a number of countries, to point out that citizenry in those countries ranks corruption as one among the five most important problems facing their society. More importantly, the public in such countries seriously questions the ability of the Criminal Justice Administration to provide any bulwark against corruption. The consequence of such perceptions is a growing public cynicism and distrust in almost all the Government institutions, which is a matter of serious concern. Unfortunately, India ranks prominently high in the list of countries plagued by corruption. Anti Corruption measures in India are perceived by the people to be weak and ineffective. More than C C No.15/09 75/73 76 corruption itself , it is the widespread public perception that corruption is not or would not be punished, that is detrimental to the society.
Our Hon'ble Supreme Court in Swatantar Singh Vs. State of Haryana, (1997) 4 S.C.C. 14, has observed that corruption is corroding, like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post. The reputation of corrupt would gather thick and unchaseable clouds around the conduct of the officer and gain notoriety much faster than the smoke.
Hon'ble Supreme Court in the case of State of Madhya Pradesh Vs. Ram Singh 2000 Crl. L.J. 1401 while dealing with the case of a Sub- Inspector, Excise & District Excise Officer, involved in a case under Section 13(1) (e) of the Act, inter-alia observed as follows:-
" Corruption in a civilised society is a disease like cancer, which if not detected in time is sure to maliganise the polity of country leading to disastrous consequences. It is termed as plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as Royal thievery. The socio-political system exposed to C C No.15/09 76/73 77 such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence shaking of the socio- economic-political system in an otherwise healthy, wealthy, effective and vibrating society."
So the aforesaid sentiments expressed by the Apex court clearly shows that acts of corruption by " Public servants " deserve to be dealt with an iron hand and such public servants do not deserve any sympathy.
In view of above discussion, lenient view can also be taken if the reasons are grave, serious and special . In this case, reasons for taking lenient view are common and of ordinary in nature hence this Court is not inclined to accept the plea for lenience raised on behalf of accused.
After considering all the arguments raised before me, Convict is sentenced to undergo Three years RI along with a fine of Rs25,000/- (Rs. Twenty Five thousand) I D Three months S I U/S 7 and to undergo Three years RI along with a fine of Rs25,000/-(Rs. Twenty Five Thousand) I D three months S I U/S 13 (2) R/w Section 13(1) (d) of P C Act 1988. Both the sentences will run concurrently.
C C No.15/09 77/73 78Benefit of Section 428 Cr P C be also given to accused.
A copy of judgment and this order on sentence be given to convict free of cost. File be consigned to RR.
ANNOUNCED IN OPEN COURT (V K MAHESHWARI) TODAY ON 13 Oct. 2010 th SPECIAL JUDGE: DELHI C C No.15/09 78/73