Delhi District Court
State vs Bishamber Nath Vij, on 15 January, 2010
1 Bishamber Nath Vij
IN THE COURT OF SH. A. S. YADAV SPECIAL JUDGE : DELHI
C C No. 0709
State V/s Bishamber Nath Vij,
s/o Late Sh. Chunni Lal Vij,
r/o C-6B/171, Janakpuri,
Delhi.
F. I. R No. : 28/02
Under Section : 7/13 of Prevention of Corruption Act,
Police Station : Anti Corruption Branch
Date of Institution 18.11.2002
Judgment reserved on 11.1.2010
Judgment delivered on 14.1.2010
JUDGMENT
In brief the case of the prosecution is that on 30.5.2002 complainant Simar Preet Singh was looking after the factory of his uncle Satinder Singh 's shoe making factory at A-69, Naraina Industrial Area. At about 3.30 PM accused B. N. Vij who was Asst Engineer in DESU visited the aforesaid factory along with the officials of Enforcement Branch, DESU and checked all the four meters which were installed in the factory. Thereafter the other officials of Enforcement Branch left the factory but accused stayed back and told the complainant that he was using the electricity more than the sanctioned load and threatened the complainant for disconnection of 2 Bishamber Nath Vij the electricity as well as imposition of heavy fine and he demanded a bribe of Rs. 20,000/- for not doing so. Complainant told the accused that the factory belongs to his uncle who was not there and his father was also not there and asked him to collect the bribe amount after one or two days but accused insisted on having the bribe amount at that very time and further threatened the complainant that in case bribe amount was not paid he would get the electricity disconnected. Thereafter complainant telephoned the officials of Anti Corruption Branch . The officials of Anti Corruption Branch came to the factory of the complainant which was at premises No. A-46, Phase-I, Naraina Industrial Area and there the complaint Ex. PW4/A was recorded by the Raid Officer in presence of panch witness P. C. Sharma ( PW6). 2 The prosecution case further is that complainant supplied Rs. 20,000/- i.e. 40 GC note of Rs.500/- each . Raid Officer Insp. Ranbir Singh ( PW11 ) got those notes checked through panch witness P. C. Sharma (PW6) and noted down their serial number in pre raid proceedings Ex. PW4/B. The GC notes were treated with phenolphthalein powder. The raid officer explained the purpose of treating the GC notes with phenolphthalein powder to the complainant as well as to the panch witness by giving a demonstration. Thereafter the GC notes were handed over to the complainant who kept the same in the left pocket of his shirt. Panch witness was instructed to remain close with the complainant and to over hear the conversation between the complainant and the person demanding the bribe 3 Bishamber Nath Vij amount and to given signal by moving his hand over his head after being satisfied that bribe had actually been given. 3 The prosecution case further is that at about 6.50 PM raid officer, complainant, panch witness Insp. R. S. Khatri along with other members of raiding team left premises No. 46-A, Naraina Industrial Area in government gypsy and reached near factory No. A- 69 Naraina Industrial Area at about 7.00 PM and parked the vehicle at some distance and Insp. R. S. Khatri and driver remained in that vehicle. The complainant and panch witness left the vehicle as per direction of Raid Officer and raid officer along with remaining members of raiding party followed by keeping a suitable distance. At about 7.05 PM complainant and panch witness entered factory No. A- 69 Phase-I, Naraina Industrial Area.
4 The prosecution case further is that at about 7.10 PM raid officer received pre determined signal from the panch witness who came at the main gate of the factory for giving the signal. Raid Officer along with raiding team reached inside the said factory and saw that accused was sitting on one sofa. Complainant and Panch witness informed him by pointing out towards the accused that he was Asst Engineer and panch witness informed the Raid Officer that accused demanded and accepted bribe money of Rs. 20,000/- with his right hand and kept the same in left pocket of his shirt. Raid officer challenged the accused that he had taken the bribe of Rs.
4 Bishamber Nath Vij 20,000/- from the complainant and offered his search as well as search of members of raiding team before taking the search of accused but accused refused to do so and became perplexed. On his directions panch witness recovered the bribe amount of Rs. 20,000/- from left shirt pocket of accused. and compared sr number of those recovered GC notes with the sr number mentioned in pre raid report Ex. PW4/B which tallied. Those recovered GC notes were taken into possession vide seizure memo Ex. PW4/C. The right hand wash and left shirt pocket wash of accused Bishember Nath Vij was taken separately in colourless solution of sodium carbonate which turned pink and the solution was transferred in four small bottles. The bottles were thereafter sealed with the seal of SK. Marked paper slips RHW- I-II, LSSPW-I-II were pasted on those bottles after obtaining the signature of panch witness and complainant thereon. The shirt of accused Bishember Nath Vij was converted into pulanda and same was taken into possession along with bottles vide memo Ex. PW4/A. Raid Officer drawn the post raid proceedings Ex. PW4/E and prepared rukka Ex. PW11/A. 5 The prosecution case further that thereafter raid officer called Insp. R. S. Khatri ( investigating officer ) at the spot and handed over to him the custody of accused, case property, recovered GC note of Rs. 20,000/- exhibits of case seizure memo and copy of raid report. Investigating officer prepared site plan Ex. PW9/A at the instance of complainant and panch witness. He arrested the accused 5 Bishamber Nath Vij vide personal search memo Ex. PW4/F. Thereafter accused was medically examined in Aruna Asaf Ali Hospital and from their Investigating Officer along with accused went to PS Civil Lines where he deposited case property with MHCM and the accused was put in the lock up. During the course of investigation Investigating Officer collected the bio data and transfer posting order of the accused. During the course of investigation the exhibits were sent to FSL for chemical analysis and later on FSL report Ex. PZ was received . He also sent request for obtaining sanction u/s 19 of Prevention of Corruption Act, 1988. However the department informed him that sanction was not required as the accused has ceased to be a public servant after disbundling of DVB and after completion of investigation filed the challan in the court.
6 After complying with the provisions of Section 207 Cr. P. C. and after hearing the Ld. Addl. PP for the state and ld. Counsel for accused charge was framed against the accused . 7 In order to prove its case prosecution examined 11 witness.
8 Thereafter statement of accused was recorded u/s 313 Cr. P. C wherein he denied about the demand and acceptance of the bribe amount. He claimed to be innocent and falsely implicated in this case. He examined DW1 Som Nath Vij in support of his defence.
6 Bishamber Nath Vij 9 I have heard Sh. R. S. Singhal ld. counsel for accused and Sh. Alok Saxena Ld. Addl.PP for State.
10 In this case no sanction was required for the prosecution of the accused. Investigating Officer Insp. Raj Singh Khatri (PW 9) categorically deposed that DVB was disbundled wef 1.7.2002 hence the accused ceased to be public servant wef from 1.7.2002. More over the bio data Ex. PY of the accused shows that he retired on 30.9.2002 and hence other wise ceased to be public servant at the time of filing of charge sheet on 18.12.2002. Law is settled that if a person ceases to be public servant then no sanction is required. Reference is placed on case of S. A. Venkatraman V/s State AIR 1958 S.C 107.
11 It is submitted by ld counsel for accused that prosecution has failed to prove that accused demanded and accepted the bribe amount. On the other hand it is submitted by Sh. Alok Saxena Ld. Addl.PP for State that it is proved beyond doubt from the statement of complainant Samar Preet Singh ( PW4 ) and panch witness P. C. Sharma ( PW6) that accused demanded and accepted the bribe amount. I do not find any force in the submission of ld. defence counsel as it is proved beyond doubt from the statement of complainant and panch witness that accused demanded and accepted the bribe amount. Complainant categorically deposed that while he was present in the factory of his uncle at A-69 Naraina 7 Bishamber Nath Vij Industrial Area accused came to the factory along with 2-3 persons and told that they had come to check the electricity meter. They were allowed to check the meters and after 15 minutes accused came to him and told him that he was using the electricity more than the sanctioned load. He asked the accused to come on the next day as factory owner had gone out of Delhi. Accused threatened him that a bill of Rs. five to six lac would be raised and the electricity would be disconnected. He again requested the accused to come on the next day as by that time his uncle would come. Thereafter accused demanded bribe of Rs. 20,000/- for not raising the bill and disconnecting the electricity . Thereafter he came outside the office and informed the Anti Corruption Branch through telephone about this incident. Thereafter officials of Anti Corruption Branch came. He further deposed about the pre raid proceedings which were conducted at his factory at A-46, Naraina Industrial Area. He further deposed that thereafter he along with the raiding team went to A-69 Naraina Industrial Area in the government vehicle which was left at some distance. He went to the factory and accused demanded bribe from him . Thereafter he took out the treated GC notes from his shirt pocket and handed over the same in the right hand of accused which he kept in his shirt pocket. In the meantime panch witness gave pre determined signal to the members of raiding party. Members of raiding party came inside the factory and disclosed their identity to the accused. He informed the Raid Officer that accused had taken bribe of Rs. 20,000/- from him and kept the same in pocket of his shirt.
8 Bishamber Nath Vij Thereafter GC notes were recovered from shirt pocket of accused. In his cross examination he stated that after checking the meters accused alone came in his office. The other officials have left the factory.
12 The statement of the complainant is fully corroborated by PW6 Panch Witness who categorically deposed that as soon as he along with the complainant entered the office of factory A-69 Naraina Industrial Area accused asked the complainant about the bribe amount and complainant told the accused that he he has brought the bribe amount. Thereafter complainant took out GC notes and extended towards the accused who accepted the same with his right hand and kept the same in left pocket of his shirt and thereafter he came at the main gate of office and gave pre determined signal. Thereafter Raid Officer came at the spot . He told the Raid Officer about the conversation and money transaction between the complainant and accused. Raid Officer thereafter disclosed his identity to accused and challenged him that he had accepted bribe from the complainant and Raid Officer thereafter recovered GC notes from left pocket shirt of accused. The number of those GC notes were tallied by panch witness which were found to be same. It is proved from the statement of complainant and panch witness that accused demanded the bribe amount and accepted the same with his right hand and kept the same in left pocket of his shirt.
9 Bishamber Nath Vij 13 It is submitted by ld counsel for accused that there are vital contradiction in the statement of panch witness and complainant. It is submitted by him that complainant deposed that when Raid Officer came at the spot on the receipt of the signal from panch witness he told the Raid Officer that accused had taken a bribe of Rs. 20,000/- from him and thereafter Raid Officer recovered those GC notes from pocket shirt of accused. Whereas panch witness deposed that he disclosed the Raid Officer about the transaction and the conversation which took place between the complainant and accused and thereafter Raid Officer recovered the GC notes from left shirt pocket of the accused. It is further submitted by ld defence counsel that as per the post raid proceedings Ex. PW4/E the bribe amount was recovered by the panch witness on the asking of the Raid Officer whereas both complainant and panch witness deposed that bribe amount was recovered by Raid Officer. Even Raid Officer deposed that on his direction panch witness recovered the bribe amount from the left pocket shirt of the accused. None of the contradiction pointed by ld defence counsel goes to the root of the case. These contradictions are likely to occur with the passage of time. The fact remains even as per the statement of complainant and panch witness that accused demanded and accepted the bribe amount and same was recovered from left pocket shirt of accused. 14 More over accused has not disputed about the acceptance of Rs. 20,000/-. The plea of the accused is that his friend 10 Bishamber Nath Vij Som Nath Vij was in need of a handycam and he told his friend that he knew one Darshan Singh who is NRI and usually go abroad and he would ask Darshan Singh to bring a handycam. It is submitted by ld defence counsel that thereafter accused along with his friend Som Nath Vij went to Darshan Singh and gave him Rs. 20,000/- for handycam. However Darshan Singh neither gave handycam to Som Nath Vij nor returned his amount despite repeated reminders. It is further submitted by ld defence counsel that since accused was demanding the amount of Rs. 2000/- constantly from Darshan Singh as a result Darshan Singh was annoyed and Darshan Singh along with his brother Satvinder Singh and Baldev Singh conspired to get the accused falsely implicated in this case. It is submitted by him that accused has never demanded bribe amount. Rather the amount given to him was the one which was taken by Darshan Singh from Som Nath Vij. Accused examined Som Nath Vij in defence. 15 I do not find any force in the defence of the accused and the same has been concocted by the accused. It is significant to note that the complainant categorically deposed that accused stayed back and other members of enforcement branch left the factory and PW5 Raja Ram Parashar who was also a member of Enforcement Team categorically deposed that accused stayed back and accused made a request to Executive Engineer that he was not feeling well and Executive Engineer directed the accused either to go to his office or to his house. No suggestion was put to PW5 that accused never 11 Bishamber Nath Vij told the XEN that he was not feeling well. What was the need for the accused to tell lie to his Executive Engineer about his health. Accused deliberately stayed behind to obtain illegal gratification from the complainant on the threat of disconnecting of electricity. The complainant categorically deposed that when the Raid Officer challenged the accused , accused became perplexed. No suggestion was given to the complainant that when the Raid Officer challenged the accused regarding the acceptance of bribe amount accused did not perplex rather accused told the Raid Officer that he had not accepted the bribe amount rather he had accepted the amount which was given by his friend Som Nath Vij to father of complainant for bringing a handycam. Similarly no suggestion was given to panch witness that accused told the Raid Officer when he was challenged by the Raid Officer about acceptance of bribe amount that he had not accepted the bribe amount rather this amount was given to the father of complainant for bringing handycam camera. Similarly no such suggestion was given to Raid Officer that when he challenged the accused about the acceptance of bribe amount. Accused has not stated so because in fact the story of handing over of Rs. 20,000/- to Darshan Singh for bringing a handycam camera was concocted subsequently. Accused has moved a detailed bail application but he has not mentioned in his bail application that he has not accepted the bribe amount rather the amount was accepted by him in the circumstances stated above.
12 Bishamber Nath Vij 16 It is submitted by ld defence counsel that Darshan Singh along with his brothers entered into conspiracy to falsely implicate the accused. There is no question of PW3, Satinder Singh, PW12 Darshan Singh and their brother Baldev Singh entering into conspiracy to get the accused falsely trapped in this case. Complainant categorically deposed that on that day he was looking after the factory of his uncle Satvinder Singh as his uncle had gone to Chandigarh. He denied the suggestion that his uncle Satvinder Singh was very much present in the factory on that day. Satvinder Singh ( PW3 ) also categorically deposed that on that day his nephew i.e the complainant was looking after his factory as he had gone to Chandigarh along with his wife and his son. Investigating Officer also stated in his cross examination that Satvinder Singh was not present at the spot. PW12 Darshan Singh also denied that Satvinder Singh was present. He categorically stated that when he went to the factory of his brother he was not there.
17 It is submitted by ld counsel for accused that PW5 in his cross examination stated that the owner of the factory Satvinder Singh was present. This witness was from the department of accused and just to help the accused he might have stated so. There is no occasion for him to know about Satvinder Singh. 18 It is submitted by ld counsel for accused that in fact Baldev Singh, uncle of the complainant was known to the accused. In 13 Bishamber Nath Vij support of his contention ld. counsel for the accused has relied upon the testimony of DW1 Som Nath Vij who deposed that accused was auditor of Chiniot Biradari Sabha in Haridwar and that Sabha used to publish a directory and he placed on record the directory Ex. DW1/1 for the year 1993-94 showing that an advertisement was given by Madan Plastic Manufacturer of PVC Footware, A-71 Naraina, Phase-I, New Delhi. It is not in dispute that this factory is owned by Sh. Baldev Singh , uncle of complainant. Simply because an advertisement was given by the aforesaid Baldev Singh in that directory some where in the year 1993-94 almost ten years before the incident does not mean that Baldev Singh was knowing the accused. Darshan Singh to whom the money is alleged to have been given for bringing handicam camera specifically denied that he was knowing the accused earlier to raid.
19 The complainant, his father and his uncle's were having number of factories. It is next to impossible that persons of such stature would instead of returning the amount if taken from a person would falsely get that person trapped under the guise of returning the money. The defence of accused is mere concoction. 20 The defence taken by the accused is highly improbable and is after thought. The accused visited the factory of the complainant along with Enforcement team and he stayed back just to take the illegal gratification though he told the Executive Engineer that 14 Bishamber Nath Vij he was not feeling well and Executive Engineer advised him either to return to the office or to go to his office but neither he went to his office nor went to his house rather he stayed back in the factory to receive the illegal gratification. He came to the factory bearing No. A- 69 Naraina Industrial Area at about 3.30 PM and he stayed in the factory upto 7.00 PM when he was caught red handed while accepting the bribe amount. When complainant requested to come other day as the owner of factory was not there. He was adamant to receive the bribe amount and threatened to disconnect the electricity of the factory if bribe amount was not paid. Finding no alternative complainant was forced to report to Anti Corruption Branch and complainant asked official of Anti Corruption Branch to come to his factory at A-46 Naraina Industrial Area where the pre raid proceedings were conducted and thereafter raiding team visited factory A-69 Naraina Industrial Area where the accused was waiting and the accused was caught red handed while accepting the bribe amount. 21 It is proved beyond doubt from the statement of complainant and panch witness that accused received the bribe amount with his right hand and kept the same in left pocket of his shirt. Accused has also admitted about the receipt of the amount. The defence taken by the accused is a mere concoction. Here it is useful to refer to the case of T. Shanker Prasad V/s State of A. P. 2004 SC 1242 where Hon'ble Supreme Court held that presumption to be drawn u/s 20 of the Prevention of Corruption Act, is a presumption of 15 Bishamber Nath Vij law and it has to be rebutted by proof and not by explanation which may seem to be plausible. Accused has failed to establish his defence even by preponderance of probabilities. 22 It is useful to refer to Five Judge Bench judgment of Hon'ble Supreme Court in C.I.Emden V/s State of UP AIR 1960 SC 458 . In that case accused accepted a sum of Rs. 375 from the complainant and he took the plea that he had taken the same as a loan for meeting the expenses for the clothing of the children who were studying in school. His plea was disbelieved by the Hon'ble Supreme Court and it was held that in order to raise the presumption u/s 20 of the Prevention of Corruption Act, 1988 (under the old Act it was section 4 ) prosecution has to prove that accused received the stated amount and the said amount was not legal remuneration then the condition prescribed by the section is satisfied. Here in this case definitely the amount received by the accused was not his legal remuneration. Ld. defence counsel has referred to the case of Sita Ram V/s State of Rajasthan AIR 1975 Supreme Court 1432 and Surajmal V/s State AIR 1979 Supreme Court 1408 and contended that mere acceptance of money does not mean that accused has accepted the illegal gratification. It is submitted by him that prosecution is required to prove that accused accepted illegal gratification. I do not find any force in the submission of ld. defence counsel . It is proved beyond doubt from the statement of complainant and panch witness that accused demanded and accepted the illegal 16 Bishamber Nath Vij gratification.
23 Hon'ble Supreme Court in case of State of Andra Pradesh V/s V. Vasudeva Rao AIR 2004 Supreme Court 960 considered the case of Sita Ram V/s State of Rajasthan AIR 1975 Supreme Court 1432 and Surajmal V/s State AIR 1979 Supreme Court 1408 and also considered the case of Dhanwant Rai Balwant Rai Desai V/s State AIR 1964 Supreme Court 575 and C. I. Emden (Supra ) and reiterated the view laid down by the Hon'ble Supreme Court in case of Dhanwant Rai and C. I. Emden. In C. I. Emden's case Hon'ble Supreme Court rejected the defence of accused that amount accepted by him was towards a loan. It was held that when receipt is admitted it is for the accused to prove as to how the presumption under section 20 is not available as per force the presumption arises and became operative. Hon'ble Supreme Court also relied upon the judgment of Three Judge Bench of Hon'ble Supreme Court in case of Raughbir Singh V/s State of Punjab AIR 1974 SC 1516 wherein it was held that very fact that the accused was in possession of marked currency notes against an allegation that he demanded and received the amount is " res ipsaloquitur" . 24 Here it is also useful to refer to the case of M. Narsinga Rao V/s State of A.P. 2001 (1 ) SCC 691 where the Hon'ble Supreme Court 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 PW1. It was held in the decision in State of 17 Bishamber Nath Vij AP V/s 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.
In view of the above discussion, I am of the view that prosecution is able to prove its case against accused Bishamber Nath Vij beyond all reasonable doubt. Accused Bishamber Nath Vij is accordingly held guilty and convicted for committing offences U/s 7 and 13 (1 ) (d) punishable U/s 13 (2 ) of Prevention of Corruption Act, 1988 . Let he be heard on the point of sentence.
Announced in the open court on this 14th day of January, 2010.
( A. S. YADAV ) SPECIAL JUDGE DELHI 18 Bishamber Nath Vij IN THE COURT OF SH. A. S. YADAV SPECIAL JUDGE : DELHI C C No. 0709 State V/s Bishamber Nath Vij, s/o Late Sh. Chunni Lal Vij, r/o C-6B/171, Janakpuri, Delhi.
F. I. R No. : 28/02 Under Section : 7/13 of Prevention of Corruption Act, Police Station : Anti Corruption Branch ORDER ON SENTENCE
I have heard Sh. Alok Saxena Addl. Public Prosecutor for the State and Sh. R. S. Singhal, Advocate for the convict (who is present on bail) on the point of sentence.
2 Ld. counsel for the convict submits that the convict is aged 68 years and has wife and one son. It is further submitted by ld defence counsel that convict is diabetic and for that reason his kidneys have also been affected and he is taking the medicine constantly. It is prayed that a lenient view be taken on the point of sentence.
3 Ld. Addl. Public Prosecutor states that the convict does 19 Bishamber Nath Vij not deserve any leniency because there is rampant corruption amongst public servants and to curb this evil, deterrent punishment should be imposed.
4 After having heard both the sides and upon perusal of the record, I find that it is difficult to accept the prayer of the convict that a lenient view be taken in this case. Corruption is rampant in this country, that it requires all possible measures to remove the same from the polity. Today, it seems that honesty is a very rare need. Very few person muster the courage to report the matter regarding demand of bribe. Otherwise, under compulsion they are forced to pay the same. With the result, bribe takers virtually have no fear. No leniency is to be shown to such offenders.
5 Keeping in view the facts and circumstances of this case, I sentence convict Bishamber Nath Vij, s/o Sh. Chunni Lal Vij, to undergo RI for a period of three years and a fine of Rs. 40,000/- (Rs. forty thousand) u/s 7 of the Prevention of Corruption Act, 1988 and in default of payment of fine, convict shall undergo SI for a period of four months. Convict is further sentenced to undergo RI for a period of three years and a fine of Rs. 40,000/- (Rs. forty thousand) u/s 13 (2) of the Prevention of Corruption Act, 1988 and in default of payment of fine, convict shall further undergo SI for a period of four months. Both the sentences shall run concurrently and the convict shall be entitled to benefit under section 428 Cr. P.C. 20 Bishamber Nath Vij 6 A duly attested copy of the judgment and this order be supplied to the convict free of costs and thereafter file be consigned to the record room.
Announced in the open court on this 15th day of January, 2010.
( A. S. YADAV ) SPECIAL JUDGE DELHI 21 Bishamber Nath Vij