Delhi District Court
State vs . Mohd. Afzal on 29 July, 2022
1
In the Court of Dig Vinay Singh: Special Judge (PC Act) (ACB)-02,
Rouse Avenue Courts, Delhi
In re:
CNR No. DLCT110015622019
CC No. 256/2019
State Vs. Mohd. Afzal
FIR No. 03/2013
P.S Anti-Corruption Branch
U/s 7 &13 of POC Act 1988
State ....... Represented by Sh. Zenul Abedeen,
Ld. Chief Prosecutor for the State
Vs.
Mohd. Afzal ..... Represented by Sh. Sanjay Gupta, Advocate
S/o Sh. Jameel Ahmed
R/o Village Phulas Akbar,
PO- Rajupur, Distt. Saharanpur,
Tehsil-Deoband, U.P.
Date of Institution: 17.05.2019
Date of Arguments: 19.07.2022
Date of Judgment: 29.07.2022
JUDGMENT
1. The sole above named accused faced trial for offences U/s 7 & Sec.
13(1)(d) r/w Sec. 13(2) of POC Act, 1988. At the relevant time, accused was working as a Junior Engineer (JE) in DDA. On 12.02.2013, Anil Kumar gave a written complaint in PS ACB stating that the complainant was carrying out some renovation / construction work in Flat no. 330, DDA Flats, Kondli, Gharoli, Delhi-96, which house belonged to his friend CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 1 of 60 2 Mukesh Sharma. Allegedly, the accused came to the flat on 11.02.2013, being area JE and, demanded Rs. 15,000/- bribe from the complainant to allow the renovation work. The said demand was then scaled down to Rs. 6000/-, and the complainant was asked to pay it on 12.02.2013 at about 2.30 PM at the office of accused located in same LIG Flats compound. Along with the complaint, the complainant also furnished 12 currency notes of Rs. 500/- each, totalling Rs. 6000/-, to the Raid Officer (RO, for short). Accordingly, a raid was organised after applying Phenolphthalein Powder on the currency notes and after giving the demonstration of its qualities to the complainant and a Panch witness, namely Jai Prakash. It is the case of investigating agency that the complainant and the Panch witness entered the office of accused at 2.35 PM on 12.02.2013, and at 2.40 PM Panch witness gave the pre-determined signal. Upon it, the accused was apprehended from his office. The Panch witness confirmed that the accused accepted Rs. 6000/- from the complainant, accepting the same with his right hand. The Panch witness also told the RO that after giving bribe, the complainant asked the accused whether the complainant can continue with the renovation work? Then accused counted the currency notes with his both hands and thereafter, the accused asked the complainant to finish the work as quickly as possible and then asked the complainant to go and finish the work. Both hand wash of accused was taken in Sodium Carbonate solution, which turned pink. The pink solution of both hands were separately kept in two different bottles each, which were labelled as LHW-I, LHW-II, RHW-I and RHW-II. One sample each were sent to the FSL, which confirmed presence of 'phenolphthalein' and 'sodium carbonate' in the samples. After obtaining Sanction U/s 19 of POC Act, 1988, the accused was charge sheeted.
2. Accordingly, a charge U/s 7 & Sec. 13(1)(d) r/w Sec. 13(2) of POC Act, CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 2 of 60 3 1988 was framed against accused, to which the accused pleaded not guilty and claimed trial.
3. In support of its case, prosecution examined 21 witnesses. Out of them, complainant Anil Kumar has been examined as PW14; Panch witness Jai Prakash as PW10; RO Inspector Rahul as PW13 and; other two members of the raiding team ASI Jai Krishnan as PW16 & Ct. Anil as PW17. Rest of the witnesses are more or less formal in nature. 3.1. From amongst the formal witnesses;
3.1.1. PW1 ASI Suraj Pal Singh proved registration of FIR by him as Ex.PW1/A; endorsement on rukka Ex.PW1/B and; the relevant entries in DD register as Ex.PW1/C to G. 3.1.2. PW2 Ct. Bijender carried the samples from the malkhana to FSL on 26.02.2013.
3.1.3. PW3 Pankaj Kumar Tiwari proved a notification, vide which Inspectors of Anti-Corruption Branch were empowered to investigate in terms of Sec. 17 of the POC Act.
3.1.4. PW4 K. C. Sharma proved bio data of the accused.
3.1.5. PW5 K. K. Jamuda proved certain communications sent by him in response to the queries of the investigating agency, as Ex.PW5/A to 5/E. 3.1.6. PW6 Mukesh Sharma was the owner of the flat in question. This witness turned hostile to the case of prosecution and claimed that though he did get the repair and construction work done in the flat, but he claimed that he got it done through some labourers and contractors available in the society and not from the complainant. The witness was cross examined by the prosecution after declaring him hostile. He though admitted that he knew the complainant, as the complainant was brother of the seller / previous owner of the flat, but he stood the ground that he did not get any renovation done from the complainant.
CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 3 of 60 43.1.7. PW7 B. P. Singh from DDA proved his response dated 15.10.2018 furnishing some information to the investigating agency as Ex.PW7/A, as also Notice U/s 30 of DDA Act as Ex.PW7/B. 3.1.8. PW8 N. K. Bhardwaj also similarly proved his response dated 11.03.2019 Ex.PW8/A and copy of Sec. 30 of DDA Act Ex.PW8/B. 3.1.9. PW9 Ms. Kavita Goyal from FSL proved that she examined the contents of samples contained in LHW-I and RHW-I and found presence of Phenolphthalein and sodium carbonate in it, vide her report Ex.PW9/A. It may be mentioned here that when during examination of PW9, the bottles LHW-I and RHW-I (Ex.P1 & P2) were produced in the Court, they were found empty.
3.1.10. PW11 Sh. Balvinder Kumar proved prosecution Sanction U/s 19 of POC Act as Ex.PW11/A against the accused.
3.1.11. PW12 S. K. Sharma proved the duty roster of Panch witness (PW10), as Ex.PW12/A. 3.1.12. PW19 HC Jai Prakash was the Malkhana Moharrar of PS Civil Lines where the case property and personal search articles were deposited vide entries in Register no. 19 Ex.PW19/A & B. The witness deposed about the deposition of case property on the date of raid; about sending of the case property to the FSL on 26.02.2013 and; subsequently receipt of the FSL result and the remnants of the case property.
3.1.13. PW21 Vinod Kumar was one of the two drivers who took the raiding team to the spot, in one of the two vehicles. He proved the log books of both the vehicles as Ex.PW20/DE & Ex.PW20/DF, made in his handwriting, claiming that since the other driver SI Preet Singh had to leave for some medical urgency, therefore he made the entries in both the log books.
3.2. From amongst the Material witnesses;
CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 4 of 60 53.2.1. PW13 Inspector Rahul was the RO, whereas PW16 ASI Jai Krishnan & PW17 ASI Anil Kumar were part of the raiding team. These three witnesses supported the case of the prosecution. Their testimonies shall be discussed herein below wherever necessary, for the sake of brevity. Suffice it to note that it is deposed by them that on 12.02.2013 on receipt of complaint the raiding team reached the spot in two government vehicles and the complainant and Panch witness entered the office of the accused at about 2.35 PM and thereafter on receipt of signal from the Panch witness at 2.40 PM, the accused was apprehended from inside his office. From the possession of accused, the currency notes, which were already treated with 'Phenolphthalein', were recovered. Both hand wash of accused was taken in Sodium Carbonate solution, which turned pink and, thereafter the hand washes solution were kept in two separate bottles each for the two hands, which were sealed at the spot; recovery memo etc. were prepared and then rukka was sent through PW16 to PS ACB for registration of FIR. The RO additionally also deposed that before proceeding for raid, on the currency notes of Rs. 6000/- brought by the complainant, Phenolphthalein powder was applied at PS ACB and demonstration of its qualities were given to the complainant as well as the Panch witness, as also necessary instructions were given to the complainant and the Panch.
3.2.2. PW20 Inspector Vinay Malik was the first investigating officer of the case who took investigation from the RO. He deposed that though he accompanied the raid team till near the spot, but he was asked to stay back with the two vehicles, whereas the other raiding team members proceeded forward and then he was called to the spot at about 6 PM by the RO. Upon which he reached there; he was handed over the case property and the documents prepared by the RO and thereafter he prepared site plan;
CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 5 of 60 6arrested the accused; conducted his personal search and then deposited the case property in the malkhana. He also deposed about further investigation conducted by him i.e. sending communications to the concerned Engineers of DDA on different dates, collecting their replies; sending the case property to FSL, i.e. the solution of hand wash.
3.2.3. PW15 Inspector Ashish Kumar & PW18 Inspector K. K. Mishra were further investigating officers, who took over investigation subsequently and deposed about the investigation conducted by them, which is not material enough to be discussed, as they simply collected bio data and other communications from the office of the accused.
3.2.4. PW14 Anil Kumar is the complainant of the case, who turned hostile to the case of prosecution. Whereas, the Panch witness, PW10 Jai Prakash, supported the case of prosecution. Their testimonies shall be discussed hereinafter, in order to avoid repetition.
4. On completion of the prosecution's evidence, all the incriminating evidence was put to the accused in his statement. The accused denied that he demanded, accepted or obtained any bribe from the complainant or anyone. Accused even denied that any complaint was given by the complainant. He claimed that all the documents exhibited in this case were fabricated at PS ACB; the bribe money and the hand washes were planted upon him; he was arrested wrongly and falsely; no writing work was done at the spot by the ACB officials; the FIR is ante-timed; the Sanction granted against him was granted mechanically without application of mind; the entries in the DD registers etc. were all manipulated and; he was implicated in false case. Accused also claimed that he has been implicated by the ACB officials simply for achieving their targets and he claimed that he never visited or inspected the flat in question on 11.02.2013; PW14 had no concern with the said flat and instead a notice of unauthorised CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 6 of 60 7 renovation / construction had already been served upon the flat owner of the flat in question as well as Flat no. 331 under the signature of accused and his Assistant Engineer and the ACB and the present case have been used as a tool to defeat the notices issued by DDA against unauthorised construction / renovation.
5. Accused opted to lead defence evidence and examined one Executive Engineer from DDA, namely Anil Kumar Sehgal, as DW1.
5.1. DW1 simply proved an entry in Branch Diary Register Ex.DW1/A, as per which a communication dated 24.05.2013, written by Mukesh Sharma (PW6) the Flat owner to DDA, was received in DDA. Copy of that letter was also proved as Ex.DW1/A. In the diary register the entry qua this letter is at Serial no. 1808 dated 30.05.2013, i.e. after the incident of the present case. In this letter, PW6 informed the Executive Engineer of DDA that PW6 was not permanently residing in the flat in question and, that he came to know that Anil Kumar (PW14, the Complainant) wrote some complaint against the JE i.e. accused in ACB in which PW14 had claimed that he was renovating the flat in question, whereas PW6 had no relation with PW14 and no work of renovation was assigned by him to PW14. This letter is titled by PW6 as, "informing about the true facts related to the complaint filed against JE MOHD. AFZAL".
6. Arguments of Ld. Prosecutor for the State and Ld. Counsel for the accused were heard. Ld. Counsel for the accused also gave written submissions.
7. On behalf of accused, it is argued that entire investigation conducted by ACB is illegal as ACB was not competent to investigate against the accused, who was a Central Government employee, after the notification of the Central Government dated 23.07.2014 & 21.05.2015, relying upon the case of Govt. of NCT of Delhi Vs. Union of India III (2019) SLT 225, wherein Hon'ble Supreme Court upheld notifications issued by the Central CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 7 of 60 8 Government dated 23.07.2014 & 21.05.2015, as per which jurisdiction of Anti-Corruption Branch was limited to the employees of GNCTD only.
7.1. The notification dated 08.11.1993 (Supra), which declared the Anti-
Corruption Branch of NCT of Delhi as a 'police station' for offence under the Prevention of Corruption Act, 1988, gave it jurisdiction "all over the National Territory of Delhi".
7.2. The subsequent notification dated 23.07.2014 specified that the earlier notification dated 08.11.1993, "shall apply to the officers and employees of the Government of National Capital Territory of Delhi". It also finds mention in the notification dated 23.07.2014 that in pursuance of the Central Government notification of Government of India, Ministry of Home Affairs bearing no. S.O. 183 (E), dated 20.03.1974 and having regard to the guidelines issued by the Central Vigilance Commission over the jurisdiction of CBI and the Anti-Corruption Branch, the Central Government declared that the notification dated 08.11.1993 shall be applicable to the Officers and employees of that government only and, therefore, the above said limitation was inserted in the notification dated 08.11.1993.
7.3. The position was further clarified vide notification dated 21.05.2015, bearing no. SO 1368 (E), by substituting para 2 of the notification dated 08.11.1993, wherein it was specified that the said notification "shall only apply to officials and employees of the National Capital Territory of Delhi subject to the provisions contained in the Article 239AA of the Constitution", and "the Anti-Corruption Branch Police Station shall not take any cognizance of offences against officers, employees and functionaries of the Central Government".
7.4. But then in the present case, the date of incident is 12.02.2013, i.e. much CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 8 of 60 9 prior to the issuance of those notifications limiting the jurisdiction of ACB. It is not in dispute that as on the date of incident the accused was a Central Government Employee and not an employee of GNCTD as he was working in DDA, however, at the relevant time of registration of FIR, there was no jurisdictional bar in ACB registering the FIR or undertaking the investigation. Therefore, reliance placed by the accused upon the case of Government of NCT of Delhi Vs. Union of India (Supra), does not help the case of accused at all.
7.5. The challenge of accused as to jurisdiction of this Court and the jurisdiction of investigating agency to try and investigate, respectively, is even otherwise without any force. Under Section 156 of the Code of Criminal Procedure 1973, any Officer in charge of a police station has jurisdiction to investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII of Cr.P.C.
7.6. Sub Section (2) of Sec. 156 Cr.P.C, specifically provides that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered to investigate under this Section. Under Section 177 of Cr.P.C, which falls in Chapter XIII, it is provided that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. Section 178 further provides that where an offence is committed partly in one local area and partly in another, it may be inquired into or tried by a Court having jurisdiction over any of such local area.
7.7. As the offence of the present case was committed on 12.02.2013, what was applicable was the notification dated 08.11.1993 prior to its CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 9 of 60 10 amendments and therefore even as per that notification ACB had powers to investigate the present offence.
7.8. The contention of accused as to jurisdiction, is therefore rejected.
8. On behalf of accused, it is next argued that even in a PC Act case, onus is upon the Prosecution to prove the basic fundamental requirements and the presumption U/s 20 of PC Act is available only qua Sec. 7 and not Sec. 13 of the Act. It is also argued that U/s 20 of PC Act, the accused can discharge the onus by preponderance of probability alone and he is not required to meet the same standard of proof as the prosecution is.
8.1. In this regard, accused places reliance upon the case of State of Maharashtra Vs Dnyaneshwar Laxman Rao Wankhede 2009 (4) RCR (Criminal), wherein it was held that even in a case where the burden is on the accused, the prosecution must first prove the foundational facts, and it was also held that where two views are possible, the one in favour of the accused should prevail. There is no dispute as to the said legal position. However, the facts of said case are distinguishable as in that case the version of complainant was found to be highly doubtful and unreliable, for various reasons and therefore the case of prosecution was found to be not believable.
8.2. Reliance is also placed by the accused upon the case of State of Punjab Vs. Madan Mohan Lal Verma 2013 (7) LRC 34 (SC), wherein it was held that while invoking section 20 of the PC Act, the Court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not beyond reasonable doubt. It was held that before an accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. In that case it was also held that CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 10 of 60 11 mere recovery of tainted money is not sufficient to convict an accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe (emphasis). Mere receipt of the amount by an accused is insufficient to fasten guilt, in absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. It was also held that burden rests on the accused to displace the statutory presumption u/s 20, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him other than as a motive or reward as referred to in section 7 of the Act.
8.3. Reliance is also placed by the accused upon the case of Hem Chander Vs. State of Delhi 2013 V AD (DELHI) 745, wherein it was held that an accused was required to prove his defence by preponderance of probability only. There is no dispute qua that settled legal position. However, in that case not only the complainant, but also the shadow witness turned hostile to the case of prosecution and therefore mere recovery of the treated notes from the drawer in the room of accused was held to be insufficient. It may be mentioned here that in the said case in para 10, it was observed that prosecution can prove the demand / acceptance either by direct or circumstantial evidence before an inference that the money given was an illegal gratification could be raised.
8.4. Reliance is also placed by the accused upon the case of V. Venkata Subbarao Vs. State 2007 Crl. L.J. 754, wherein also it was held that the burden on an accused in a case of presumption u/s 20, is not of the same standard of proof as that of the prosecution. There is no dispute qua that settled legal position. However, in that case also the facts were completely CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 11 of 60 12 different as in the peculiar facts of that case not only the complainant was held to be untrustworthy, but also the manner of trap proceedings was held to be not reliable as also an innocent officer seemed to have been implicated.
9. Though the accused also challenged the Sanction, claiming that the Sanction was accorded without application of mind by the Sanctioning Authority, but besides making those bald allegations no substantive argument could be raised and nothing substantive could be shown to the Court as to why the Sanction is invalid. The Sanction order clearly mentions as to the material taken into consideration by the sanctioning authority before according the sanction.
9.1. In the case of Vinod Kumar Garg v. State (NCT of Delhi), (2020) 2 SCC 88, it is observed as follows;
"25. On the said aspect, the later decision of this Court in State of Maharashtra v. Mahesh G. Jain [State of Maharashtra v. Mahesh G. Jain, (2013) 8 SCC 119: (2014) 1 SCC (Cri) 515: (2014) 1 SCC (L&S) 85] has referred to several decisions to expound on the following principles of law governing the validity of sanction: (SCC pp. 126-27, para 14) "14.1. It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
14.2. The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution. 14.3. The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it. 14.4. Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence. 14.5. The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 12 of 60 13 sanction order.
14.6. If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction.
14.7. The order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper technical approach to test its validity."
...............
28. This Court in Ashok Tshering Bhutia v. State of Sikkim [Ashok Tshering Bhutia v. State of Sikkim, (2011) 4 SCC 402: (2011) 2 SCC (Cri) 258: (2011) 2 SCC (L&S) 697] referring to the earlier precedents has observed that a defect or irregularity in investigation however serious, would have no direct bearing on the competence or procedure relating to cognizance or trial. Where the cognizance of the case has already been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless a miscarriage of justice has been caused thereby. Similar is the position with regard to the validity of the sanction. A mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby. Section 19(1) of the Act is matter of procedure and does not go to the root of the jurisdiction and once the cognizance has been taken by the court under the Code, it cannot be said that an invalid police report is the foundation of jurisdiction of the court to take cognizance and for that matter the trial." 9.2. In the case of Girish Kumar Suneja v. CBI, (2017) 14 SCC 809, a three judges bench of Supreme Court made following observations: -
"67. In CBI v. V.K. Sehgal [CBI v. V.K. Sehgal, (1999) 8 SCC 501: 1999 SCC (Cri) 1494] it was held that for determining whether the absence of, or any error, omission or irregularity in the grant of, sanction has occasioned or resulted in a failure of justice, the court has a duty to consider whether the accused had raised any objection on that score at the trial stage. Even if it had been raised at the trial and early enough, it would not be sufficient to conclude that there was a failure of justice. Whether in fact and in law there was a failure of justice would differ from case to case but it was made clear that if such an objection was not raised in the trial, it certainly cannot be raised in appeal or in revision. It was explained that a trial involves judicial scrutiny of the entire material before the Special Judge. Therefore, if on a judicial scrutiny of the evidence on record the Special Judge comes to a conclusion that there CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 13 of 60 14 was sufficient reason to convict the accused person, the absence or error or omission or irregularity would actually become a surplusage. The necessity of a sanction is only as a filter to safeguard public servants from frivolous or mala fide or vindictive prosecution. However, after judicial scrutiny is complete and a conviction is made out through the filtration process, the issue of a sanction really would become inconsequential."
10. Before appreciating the other contentions of both the sides, let the testimonies of complainant and Panch witness be discussed here briefly.
11. The complainant Anil Kumar (PW14) deposed that he was a property dealer and building constructor and that in 2013 some renovation work was going on in some flat in Kondli Gharoli, but he did not know the name of owner of flat. At that time, one DDA 'Beldar' came there and demanded Rs. 10,000 to 12,000/- for the renovation work, but ultimately settled it for Rs. 6000/-. Thereafter, he prepared one typed complaint and took it to ACB. But at ACB he was given a plain paper on which afresh complaint was dictated, which he wrote in his handwriting i.e. Ex.PW10/A, bearing his signature, dated 12.02.2013. He claimed that he cannot recollect as to what proceedings were done at ACB before going for raid and that he had given Rs. 6000/- i.e. 12 currency notes of Rs. 500/- each to police. Thereafter, raiding team left for the spot in two different vehicles. He deposed that he was instructed by ACB official to give bribe to Shankar. Then he went inside the office of DDA, where one Junior Engineer was present, who was probably the accused namely Mr. Khan, but Beldar Shankar was not present in the office at that time. Thereafter, he told the JE that bribe of Rs. 6000/- was demanded by Beldar Shankar and then he kept the said amount on the table, beneath a paper weight. Then he came out of the office and gave signal to the raiding team and thereafter raiding team came there. He also deposed that he was sent outside the office and then some proceedings were conducted in the office of JE and then the JE CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 14 of 60 15 and the raiding team came to the office of ACB. In the office of ACB, he was made to sit in a room, some documents were prepared which were got signed from him and his mobile was also taken by the police. 11.1. The complainant was then declared hostile by the Prosecution and was cross examined, in which the witness admitted that he had written the complaint Ex.PW10/A and that in his complaint title was written as "DDA ke JE MOHD AFZAL KHAN dwara rishwat ki maang". But he denied that he on his own wrote the complaint Ex.PW10/A against the accused. The witness admitted that he being friend of PW6 was carrying out renovation in the flat in question and that the flat belonged to PW6. The witness also admitted that he gave Rs. 6000/- currency notes to the police officials in ACB and then he was introduced to a Panch witness; the number of currency notes were noted down by the RO; Phenolphthalein powder was applied on the notes and; its demonstration was given to him and the Panch witness. The witness denied that it was the accused who had come to the flat on 11.02.2013 or that the accused had demanded Rs. 15,000/- for doing renovation work or that the demand was reduced to Rs. 6000/- or that the accused had asked the complainant to come and give the bribe on the next day i.e. 12.02.2013 at 2.30 PM in the office of accused located at LIG Flat, Kondli, Gharoli. Witness even denied that the name of Panch witness was Jai Prakash (PW10) or that any instructions were given to the complainant and Panch witness by the RO before leaving for raid. The witness admitted that the raiding team left for the spot in two government vehicles at 1.45 PM on 12.02.2013; they reached near the spot where the two vehicles were parked and then he along with the Panch witness entered the office of accused, whereas the RO and other members of the raiding team took position outside the office. In the next breath, the witness denied that he along with the Panch witness entered the office of CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 15 of 60 16 the accused and after meeting the accused he told the accused that he had brought the demanded bribe amount of Rs. 6000/- or that thereafter he had asked the accused whether he can carry out the renovation work or that he took out the bribe amount from his pocket of coat and handed it over to accused on his demand or that the accused accepted the same with his right hand and the accused started counting the same or that the accused told the complainant to finish the renovation work as quickly as possible. The complainant also denied about giving of pre-determined signal by the Panch witness to the raiding team and about all other proceedings claimed to have been done at the spot, i.e. regarding apprehension of accused; recovery of bribe amount; hand wash proceedings; seizure proceedings etc. The complainant claimed that he signed certain documents, but cannot recollect whether those documents were prepared at the spot or at the ACB. Qua the seizure memo of currency notes and seizure memo of hand wash, he denied that they were prepared at the spot. He even did not identify the currency notes in the Court. When he was specifically asked during cross examination by the Prosecutor that the accused had demanded bribe on 11.02.2013 or that he also demanded bribe on the date of raid or that accused was paid bribe by him or about its recovery, the complainant denied everything. Though, the complainant admitted his signatures on the bottles containing hand wash solution Ex.P1 to P4, but he did not admit that those were prepared in his presence at the spot. 11.2. When the witness was subjected to cross examination by the accused, he admitted that he went alone inside the room of accused on the date of raid, meaning thereby that he denied entry of Panch witness with him inside the room of accused. Whereas, during cross examination by the Prosecutor at one place PW14 did admit that he along with the Panch witness entered the office of accused on the date of raid. The complainant also claimed CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 16 of 60 17 ignorance as to services of notices upon the owner of the flat regarding illegal renovation.
11.3. Though PW14 turned hostile to the case of prosecution, but it is well settled now that the testimony of a hostile witness does not get completely effaced and the Court may rely upon believable part of the testimony of a hostile witness too. In State of U.P. v. Ramesh Prasad Misra, (1996) 10 SCC 360, Supreme Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required it to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated in Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC 543; Gagan Kanojia v. State of Punjab, (2006) 13 SCC 516; Radha Mohan Singh @ Lal Saheb v. State of U.P., (2006) 2 SCC 450 : AIR 2006 SC 951; Sarvesh Naraian Shukla v. Daroga Singh, (2007) 13 SCC 360 : AIR 2008 SC 320 and Subbu Singh v. State, (2009) 6 SCC 462.
11.4. In testimony of PW14, during cross examination by the prosecution, PW14 admitted that the complaint Ex.PW10/A is in his handwriting on which the title written is "DDA ke JE MOHD AFZAL KHAN dwara rishwat ki maang". He also admitted that the flat in question belonged to his friend Mukesh Sharma in which renovation work was being carried out by him. PW14 also admitted that when he reached PS ACB and gave Rs. 6000/- in the form of 12 currency notes of Rs. 500/- each to the Inspector, he was introduced to one Panch witness and the currency note numbers were noted down by Inspector Rahul. Though the witness could not recollect the name of Panch witness, but he specifically admitted that he was introduced to a Panch witness, and thereafter phenolphthalein powder was applied by the Inspector on the currency notes and CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 17 of 60 18 demonstration of the properties of that powder was given by getting the right hand of the Panch witness touched to those treated currency notes and by thereafter taking right hand wash of Panch witness in a colourless solution of Sodium Carbonate which turned pink and thereafter he kept the currency notes in his left pocket of his coat. PW14 also admitted that thereafter the said pink colour solution was thrown away, Inspector Rahul, this witness and Panch witness all cleaned their hands and then the raiding team left the office of ACB for the spot in two government vehicles. He also admitted that upon reaching the DDA flat compound of Kondli Gharoli, Mayur Vihar, Phase-III, he along with the Panch witness went inside the DDA office at Flat no. 1271 in which the accused used to sit whereas the other raiding team members took position outside the office. In his cross examination by the prosecution, the complainant also admitted having signed the documents, though he did not recollect as to whether those documents were prepared at the spot or at ACB. The witness identified his signatures on the complaint Ex.PW10/A, Ex.PW10/B (Seizure memo of currency notes), Ex.PW10/C (Seizure memo of the sodium carbonate solution), Ex.PW10/D & E (arrest memo and personal search memo), Ex.PW10/PX-2, PX-3 i.e. the raid report; the bottle containing hand wash / pocket wash Ex.P1 to P4 and Ex.PW10/F (sample seal). Though the witness did not support the case of prosecution on other aspects of matter, but the above mentioned aspects admitted by PW14 are reliable, consistent with the case of prosecution, finds corroboration from other witnesses and, can thus be acted upon.
11.5. In his cross examination by the Prosecutor, PW14 did at one place admit that the Panch witness entered the room of accused with him, but in the cross examination by the accused, he retracted that statement. It seems that this fact was falsely stated by the complainant apparently to help the CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 18 of 60 19 accused. There is no reason for this Court to doubt that the Panch witness did enter the room of accused along with the complainant. Not only the Panch witness but also the RO (PW13) as well as other two police official raiding team members PW16 ASI Jai Krishnan and PW17 Ct. Anil categorically deposed that the Panch witness also entered the office of the accused along with the complainant. They also categorically deposed that it was the Panch witness who gave the pre-determined signal and not the complainant. They also deposed that when the raiding team entered the office of the accused, the bribe amount was in the hand of accused and it was recovered from the hand of the accused by the Panch witness in their presence and the currency note numbers matched with the numbers noted on the pre raid report after its recovery from the accused. They also deposed that thereafter the hand wash of the accused was undertaken which turned positive for presence of phenolphthalein.
12. Law nowhere requires that the testimonies of the police officials must be viewed with suspicion. Rather, it is settled that even the testimony of a police official, if found believable, does not need any corroboration and merely because the witness is a police official, his testimony cannot be brushed aside.
12.1. In Girja Prasad v. State of M.P., (2007) 7 SCC 625 : 2007 SCC OnLine SC 1056, it is held as follows;
"25. ..................It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of the complainant or a police official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 19 of 60 20 lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence."
13. On the other hand, PW10 Jai Prakash supported the case of prosecution on all material aspects. He deposed that on 12.02.2013 he was on duty as a Panch witness in PS ACB and at about 12 PM complainant came to PS ACB and gave a complaint which was shown to him and thereafter he countersigned the complaint Ex.PW10/A. The complainant also produced Rs. 6000/- on which some demo procedure was done in which some powder was applied and then Inspector Rahul told that if anybody touches those notes, the hand wash of that person would turn pink when taken in another solution. He also deposed that thereafter the police official washed hand and then the currency notes were handed over to the complainant. The complainant was directed to give money only upon demand by the bribe seeker and not otherwise. He was instructed to remain with the complainant, to watch the whole proceedings of demand and acceptance, and to give pre-determined signal to the raiding team. He claimed that thereafter raiding team left for the spot in two vehicles and reached the spot where the raiding team took position whereas he and the complainant went to one DDA flat in Kondli Gharoli which was office of JE. The accused offered seats to the complainant and the Panch witness and then the complainant told the accused "mein aapke dwara maangey hue paise laya hoon, yeh 6 hain". Thereafter the accused said "okay theek hai". Thereafter the complainant took out the money and handed over the same to the accused, accused took the money and, counted it in his presence. Thereafter this witness gave pre-determined signal to the raiding team and CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 20 of 60 21 the raiding team came to the spot. At that time, the accused was having money in his hand. Then Inspector Rahul asked this witness to take money from the hand of accused and accordingly he took money from the hand of accused and handed it over to Inspector Rahul. Thereafter, hand wash of both the hands of accused were taken in a chemical solution which turned pink. The witness claimed that the pink solution qua the hand wash of accused were kept in one bottle each i.e. total two bottles, on which labels were put and he signed the labels as also the complainant signed those labels. The bottles were then sealed. The currency notes were also sealed by Inspector Rahul in an envelope after tallying the numbers noted down in ACB before they left for the raid. The witness identified the seizure memo of currency notes as well as hand wash Ex.PW10/B & C and identified his signatures on the same. Witness claimed that thereafter the accused was taken to PS ACB where some proceedings were noted down and his signatures were obtained. The witness identified his signatures on the arrest memo and the personal search memo of accused Ex.PW10/D & E, which the witness claimed to have signed in ACB. The witness also identified the two bottles of the right hand wash and left hand wash of accused i.e. Ex.P1 & P2 during his examination in chief and he also identified the unsealed currency notes Ex.P3 and, sample seal as Ex.PW10/F. 13.1. Even this witness was declared partially hostile by the prosecution and was cross examined by the Ld. Prosecutor. In his cross examination by the Ld. Prosecutor, the witness admitted that because of passage of time he could not remember certain facts including the fact whether his hand wash was also taken by Inspector Rahul after demonstration of the qualities of phenolphthalein powder was given to him at ACB. The witness admitted in his cross examination by the prosecution that before proceeding for raid, CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 21 of 60 22 pre raid proceedings Ex.PW10/PX-2 was prepared by Inspector Rahul which he had signed. The witness also admitted that not two, but total four bottles containing pink colour solution were prepared at the spot i.e. two each qua the left hand and right hand wash of the accused and he also identified the other two bottles Ex.P4 & P5. The witness though at one place claimed that out of four bottles only two bottles were sealed, but in the next breath he claimed that all the four bottles were sealed with the seal of 'RHL'. In the cross examination by the Prosecutor, the witness however took a stand that Inspector Vinay Malik did not go with the raid team and did not stay with the drivers and the two vehicles and; Inspector Vinay Malik did not arrest the accused at the spot. The witness also claimed that accused did not ask the complainant to finish the work quickly and accused did not confirm the amount to be Rs. 6000/- after counting it and the accused did not direct the complainant to go and do the renovation work; Inspector Rahul did not offer search of raiding team before search of accused was conducted; Inspector Rahul did not prepare post raid proceedings at the spot, although Ex.PW10/PX-3 did contain his signatures; he did not sign Ex.PW10/PX-3 at the spot. The witness claimed ignorance whether Inspector Vinay Malik was called by Inspector Rahul at the spot or further proceedings were handed over to Inspector Vinay Malik by Inspector Rahul. Though the witness admitted his signatures on the arrest memo Ex.PW10/D in which the place of arrest of accused is shown to be the office of accused, but he claimed that the accused was taken to ACB from the spot and he did not remember as to where the accused was formally arrested.
13.2. The witness was then cross examined by the accused on a subsequent hearing after about 20 days. In his cross examination by the accused, the witness claimed that the date of incident was 12.03.2013, when he went CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 22 of 60 23 PS ACB at about 9.30 AM; it took about 30-35 minutes in completing pre- trap proceedings; no writing work was done by the RO after pre-trap proceedings; no one else was present in the room of accused besides the accused when the complainant and this witness reached there; the accused did not ask identity or introduction of this witness from the complainant; nobody from the raiding team left the spot in his presence till he remained at the spot after apprehension of accused; they remained at the spot for 30- 40 minutes after apprehension of accused; he did not notice whether office of accused was situated in a residential area; he did not sign the site plan Ex.PW10/DA; seal after use was handed over to him which he returned to Inspector Rahul at the time when he was relieved from ACB on that very day; his statement was not recorded; Inspector Rahul accompanied the raiding team while returning from the spot; he remained in the room of accused for about 5-7 minutes before giving signal to the raiding team; the RO kept the two bottles containing pink solution in brown envelope Ex.D1 & D2. The witness also admitted that he had refreshed his memory on 11.09.2019 before he entered the witness box and before his examination in chief was recorded, and that he knew that if he did not support the case of prosecution, departmental inquiry may be initiated against him. However, he clarified that by the words supporting the case of ACB, he meant that he was to state truth.
13.3. Reliability of the Panch witness is attacked by the accused claiming, that in his cross-examination by the accused he claimed that he was on a Panch witness duty in PS ACB on 12.03.2013, whereas the case of prosecution is that raid was conducted on 12.02.2013. Not much can be read in the said stray answer of PW10, as when PW10 appeared for his examination in chief on 11.09.2019 he specifically deposed that the date of incident was 12.02.2013. Reliability of the Panch witness based on said stray CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 23 of 60 24 answer as to the date of raid in his subsequent examination, cannot be doubted. The signature of the Panch witness on complaint Ex.PW10/A bears the date of 12.02.2013, as also the same date is mentioned under the signatures of the complainant and the RO. Therefore, there is no question of the Panch witness going to ACB on 12.03.2013 and not 12.02.2013. Prosecution has also proved Ex.PW12/A which is a duty roster from the office of Executive Engineer, Mechanical Division, Government of NCT of Delhi, signed by Executive Engineer on 05.02.2013 wherein the duty of PW10 in ACB for 12.02.2013 is categorically mentioned. Merely because on the top of the table as to the duty roster on the backside of Ex.PW12/A month of December 2012 is mentioned instead of February 2013, no undue weightage can be given to it as it seems to be a typographical error and a mistake because of copy paste done on computer while preparing the roster. The roster speaks about duty of two officials from that department, both for the month of February 2013 and it also clearly mentions that the said duty roster was issued pursuant to letter dated 21.01.2013 from the office of ACB and therefore it is not possible that pursuant to letter of Anti-Corruption Branch dated 21.01.2013, duty roster for the month of December 2012 was prepared.
13.4. Reliability of PW10 is also attacked by the accused claiming that even PW10 was declared hostile by the prosecution and he too was cross examined. Merely because PW10 was partially declared hostile, his entire testimony cannot be treated as nullity.
13.5. Reliability of PW10 is also attacked on the ground that initially he denied demonstration of the qualities of phenolphthalein powder in his examination in chief. But then in his cross-examination by the State he claimed that because of lapse of time he cannot recollect whether demonstration was given while taking his hand wash etc. Merely because CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 24 of 60 25 PW10 stated that some forensic official was also there in the raiding team, cannot be a reason to doubt veracity of PW10 as no other witness has so claimed. Though, initially PW10 claimed about preparation of two bottles only and also about sealing of notes; preparation of documents at ACB; ignorance about Inspector Vinay Malik; he denied any conversation between complainant and accused after money was handed over; denied offer of search by RO to the accused before recovery; denied preparation of post raid proceedings at the spot; denied arrest of accused at the spot, but none of those facts create any suspicion as to the reliability of PW10. When witnesses are examined in the Court after several years of the incident, these trivial contradictions & omissions are bound to occur and they cannot be read in favour of an accused unless they are on material aspects.
13.6. Merely because PW10 claimed that the pre trap proceedings were completed within 30-35 minutes whereas as per the case of prosecution, it took about one hour 45 minutes, is also not a ground to doubt his veracity. Reliance is placed by the accused in this regard upon the case of V. Venkata Subbarao Vs. State (Supra). In that case the facts were completely different as in the peculiar facts of that case not only the complainant was held to be untrustworthy, but also the manner of trap proceedings were held to be not reliable as also an innocent officer seemed to have been implicated.
13.7. It is argued by the accused that PW10 was a tutored witness as he admitted having refreshed his memory before entering the witness box and in this regard reliance is placed by the accused upon the case of Ramesh Vs. State 2013 (2) LRC 237 Delhi. It is also argued that PW10 cannot be claimed to be an independent witness since he admitted in his cross examination by the accused that he was aware that he can be subjected to departmental CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 25 of 60 26 action if he did not support the case of ACB. This argument also has to be rejected since the witness clarified that by the words supporting the case of ACB, he meant that he was to state truth, which had happened in his presence. Therefore, it cannot be claimed by the accused that whatever PW10 deposed, he deposed falsely under the fear of facing departmental action. Reliance placed by the accused upon the case of Ramesh (supra), to lay stress on the point that when prosecution witness admits that he was briefed by the police officials outside the Court as to what statement is to be given in the Court, the testimony of said witness has to be taken out of consideration. In the said case, no ratio to that effect was laid. Indeed, it was one of the important factor which created doubt about the story of prosecution of that case when one of the witness PW2 admitted the fact that he was briefed by the police officials outside the Court as to what statement he was to give in the Court. It is important to note that in the said case, there were various omissions, contradictions and discrepancies which were material and not trivial and which demolished the very foundation of the prosecution's case and then the cumulative effect of all those discrepancies were found enough to give benefit of doubt to the accused. That case is distinguishable and does not help the case of accused for the above mentioned reasons.
14. Truthfulness of the entire case of prosecution is also sought to be attacked by the accused on the ground that the seizure memos were fabricated later on. The accused doubts the preparation of the seizure memo of currency notes and the hand washes, Ex.PW10/B & C, at the spot claiming that on those documents FIR number exists, whereas the FIR had not been registered or received at the spot till these documents were prepared and PW20 Inspector Vinay Malik did not utter a single word in his deposition that he noted down the FIR at the spot after receiving copy of FIR or even CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 26 of 60 27 at ACB and rather he stated that raiding team members were present when he put those FIR numbers, therefore, the documents should be held to be manipulated. It is also argued that the Panch witness PW10 admitted that these two documents were 'as it is' when he had signed them, whereas PW19 claimed that he too countersigned those two documents after he received the case property in malkhana.
14.1. Even this argument has to be rejected as PW19 HC Jai Prakash was the Malkhana Moharrar who merely countersigned on the seizure memos Ex.PW10/B & C after he received case properties in the malkhana. Specific attention of PW10 was not drawn to the counter signatures of the Malkhana Moharrar before asking PW10 whether those signatures existed before PW10 signed those documents. Similarly, specific attention of PW10 was not drawn to the case particulars written on the top of those two documents.
14.2. Merely because the complainant PW14 expressed ignorance about the place where he signed Ex.PW10/B & C, does not create any suspicion. Inspector Vinay Malik claimed that he appended the FIR number and particulars on the documents as well as exhibits subsequently in the presence of all raiding team members. Inspector Rahul (PW13) specifically claimed that the case particulars on the exhibits P1 to P5 were not in his hand writing, and that Ex.PW10/B & C (except FIR number) were in his hand writing.
14.3. Perusal of the seizure memo of currency notes Ex.PW10/B and the seizure memo of hand wash Ex.PW10/C, reveals that when the documents were prepared the FIR number '03' was not mentioned or written on the documents and was kept blank. It is clear from the handwriting of the said numerical in Ex.PW10/B which is different from the remaining CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 27 of 60 28 handwriting of this document. Rather, in Ex.PW10/C till today the said FIR number '03' is blank and is not written, whereas the other words viz., 'FIR no.', the date, the sections, the PS and even the year of FIR is mentioned in the same handwriting as that of body of the seizure memo. This fact indicates that when these two seizure memos were prepared at the spot, the only number of FIR was left blank and other details were noted. Had these two documents been prepared after registration of FIR, the FIR number would have existed on Ex.PW10/C. 14.4. Reliance is placed by the accused upon the case of Ashok Kumar vs. State 2000 (1) JCC (Delhi) 21, to lay stress on the point that when FIR number was found mentioned on the documents prepared at the spot, the story of prosecution becomes doubtful and its benefit should be given to the accused. Again this case is distinguishable and does not help the case of accused for the reasons that it was a case of NDPS Act in which existence of FIR number on the documents prepared on the spot was not the only ground of suspicion, but also the time of recovery; sending of rukka; registration of FIR, were highly suspicious and there were discrepancies as to the time; the FIR number on the documents was in the same ink and hand writing which indicated that the documents were prepared at the same time and also there was no mention in the malkhana register about deposition of case property and CFSL form and therefore an important link was found to be missing.
14.5. Accused also places reliance upon the cases of Pyare Lal Vs. State, I (2008) DMC 806, to lay stress on the point that all the writing work after raid was carried out at Anti-Corruption Branch. Even that case is distinguishable as the prosecution did not even cross examine PW3 on the said facts in that case. Besides it, the case of prosecution was found to be highly suspicious for various other reasons viz. the manner and CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 28 of 60 29 circumstances which occurred at the time of raid including the fact that the currency notes may have been kept in the diary of accused when the accused went to fetch water for the complainant; the circumstances indicated false implication of the accused; there was a criminal complaint against the complainant of that case; the paper on which bond was prepared allegedly by the accused was not even produced and instead blank paper was produced bearing signature of sister of complainant and also the fact that sister of complainant deposed that when her signatures were obtained on the blank paper, the accused was also present at her house whereas the case of prosecution was completely different. In those circumstances, the version of Panch witness that the currency notes were not sealed at the spot and writing work was done in ACB was given importance by the Court in extending benefit to the accused of that case. That case is distinguishable and does not help the case of accused.
15. It is also argued on behalf of accused that the accused was not in a position to extend any favour or disfavour to the complainant and there was no justifiable reason existing as on the date of raid or even prior to it for the accused to demand bribe from the complainant. Accused places reliance upon a letter Ex.DW1/A written by the owner of house PW6 Mukesh Sharma. In this regard accused also places reliance upon the case of Anil Sharma & Ors. Vs. State of Jharkhand 2004 (3) RCR (Criminal), wherein it was held that equal treatment has to be given to the evidence of prosecution and the evidence of defence. There is no dispute qua that legal position.
15.1. But it is equally settled that merely because a letter has been exhibited in defence evidence, it cannot be treated as a gospel truth. Indeed, Mukesh Sharma claimed that he did not assign any renovation work to the complainant and also the investigating agency did not collect any proof in CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 29 of 60 30 the form of contract or any other evidence to show that Mukesh Sharma assigned the work of renovation to the complainant. Yet the fact that Ex.DW1/A was written after the date of incident, smacks of collusion between the accused and Mukesh Sharma and seems to be an afterthought.
15.2. It is not in dispute that the accused was working as JE of the area and a make shift office of DDA was being operated from Flat no. 1271 of the same residential compound. It is so mentioned in the communications written by the DDA officials to the investigating agency Ex.PW5/A & Ex.PW5/C, clearly. It is also not in dispute that accused himself had issued notice U/s 30 of DDA Act against the flat owner of Flat no. 330 & 331 regarding additions / alterations made in the flat by shifting wall, WC and bathroom and for covering of balconies etc. Those two notices are proved as Ex. PW5/D & E. The issuance of those two notices by the accused qua two flats establishes that indeed some renovation / addition / alteration was being done in the flat in question. In Ex.DW1/A, the communication allegedly written by Mukesh Sharma to DDA does not clarify as to if complainant was not assigned the work of renovation by Mukesh Sharma, who else was getting that renovation actually done at the flat. In Ex.DW1/A, Mukesh Sharma nowhere claimed that he got that renovation done from somewhere else or he himself carried out those renovations.
15.3. Had the complainant not been actually undertaking the renovation work in the flat in question, there was no reason for him to have got himself involved in the present case. Thus, this Court does not find it fit to rely upon Ex.DW1/A in any manner. The same appears to be an afterthought and an attempt to save the accused.
15.4. The claim of accused that the accused had already issued notices U/s 30 of the DDA Act, Ex.PW5/D & E qua Flat no. 330 & 331 and that the CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 30 of 60 31 investigating agency did not collect, and prosecution did not prove whether the accused was in a position to extend any favour to the complainant after issuing those notices, therefore it should be held that the accused had no reason or occasion to demand bribe from the complainant, cannot be accepted. In this regard, reliance is placed by the accused upon the case of Vishal Chand Jain @ V.C. Jain Vs. CBI 2011 (3) RCR (Criminal) to lay stress on the point that in absence of lack of apparent motive for demanding and accepting bribe was a circumstance in favour of the accused. The said case is clearly distinguishable on facts as in that case the very correctness of the complaint and the reliability of the complainant was in question; only the complainant went inside the house of accused at the time of giving money whereas the Panch witness remained outside the house and when the complainant did not support the case of prosecution either on the initial demand or at the time of trap and did not support even the fact of acceptance and rather stated that he had forced the money into the pocket of accused. In those circumstances benefit was given to the accused due to apparent lack of motive for demand and accepting bribe.
15.5. In the present case, Ex.PW5/D & E reveals that those two notices were signed by the accused on 14.11.2012, i.e., prior to the date of trap. But then the fact that the accused had issued those notices and absence of prosecution to prove whether the accused was competent to withdraw those notices, by itself does not go in favour of the accused. It is a matter of common knowledge that JE being the field officer is in the best possible position to further report the senior officers / DDA as to whether the unauthorised construction / renovation / addition / alteration still exists after the notice is served or has been removed by the flat owner / occupant.
15.6. Perusal of Sec. 30 of DDA Act reveals that the purpose of giving notice CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 31 of 60 32 to the owner was to ask the owner to remove the construction, and upon failure of the owner to so remove it, the competent authority was competent to order removal of construction, the expenses of which could be recovered from the owner.
15.7. Accused therefore cannot claim that once those notices were issued, he became functus officio, as he was still competent to report to his superiors that the owner / the complainant / the person who carried out the construction, did or did not comply with the notice U/s 30 of DDA Act. Even otherwise in a trap case, if it is proved beyond reasonable doubt that a public servant demands or accepts or obtains illegal gratification, it becomes immaterial whether the public servant was actually in any manner capable / competent to extend any favour or disfavour.
16. The accused has sought to create doubt about the recovery of currency notes from the possession of accused at the spot and accused argues that even if it is assumed that bribe money was recovered from the possession of accused, recovery by itself cannot suffice to base conviction in a case U/s 7 or 13 of POC Act, 1988. It is argued that since the seizure memo of currency notes Ex.PW10/B or for that matter even seizure memo of the hand washes are not signed by any of the policeman besides Inspector Rahul who were claimed to be part of the raiding team, therefore, their presence at the time of recovery should not be believed. It is also argued that the complainant himself claimed that when the RO reached the spot upon receiving the pre-determined signal, the complainant was sent outside of the office of accused and therefore entire recovery of currency notes etc., is unbelievable.
16.1. In this regard, reliance is placed by the accused upon the case of Lalman Vs. State 1998 (3) C. C. Cases HC 208, wherein the case was under NDPS CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 32 of 60 33 Act where no proper notice u/s 50 was given, vitiating trial; CFSL form was not prepared or sealed with the specimen seals; CFSL form was not sent to the lab with samples; purity of sample drawn were suspected; presence of chance witness was suspicious who was already a witness in another case, and, testimony of witnesses were found to be inconsistence, and therefore absence of signatures of ACP on recovery memo was doubted by the Hon'ble High Court. Therefore, even that case is distinguishable and does not help the case of accused for the above mentioned reasons.
16.2. In the present case, though the complainant did not support the case of prosecution, but an independent public witness i.e. Panch witness (PW10) did support the case of prosecution to the effect that currency notes were accepted by the accused from the complainant and they were recovered from the possession of accused when the raiding team reached the spot. He specifically deposed that when the raiding team entered the office of accused, the accused was having money in his hand and on the asking of RO, this witness took money from the hand of accused, which currency notes were then tallied and were found to be same and even the hand wash of accused turned positive for presence of Phenolphthalein on the hands of accused. This witness has no reason to falsely depose against the accused, rather he is an independent witness.
16.3. The testimony of Panch witness alone is wholly reliable in this case. Yet it is corroborated on all material particulars by the RO Inspector Rahul as well as other raiding team members PW16 & PW17. This Court has no reason to doubt the veracity of those witnesses as to the recovery of the amount from the accused. In the case of A. Kanagrajan Vs. State 2014 SCC Online Madras 11323, quoting para no. 12 of the case of C. M. Sharma Vs. State of A. P. 2011 SAR (Criminal) 76, it was observed that CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 33 of 60 34 corroboration of evidence of a witness is required when his evidence is not wholly reliable and on appreciation of evidence, witnesses can be broadly categorised in three categories viz., unreliable, partly reliable and wholly reliable. In the case of partly reliable witness, the Court seeks corroboration in material particulars from other evidence, whereas in the case of wholly reliable witness, no corroboration is necessary. It would be another matter whether in the present case the said recovery would be a sole circumstance or there are other circumstances to rely against the accused, which is being dealt with hereafter.
17. The accused also attempted to create doubt about the hand wash of accused after his apprehension by raising the following grounds.
17.1. Firstly, it is claimed that the Panch witness at one place claimed that only two bottles were prepared containing hand wash solution and not four bottles, but at a later stage Panch admitted suggestion of Prosecutor that four bottles were prepared. It is also claimed that Panch deposed that the bottles were kept in envelopes whereas the RO did not accept it. It is also claimed that there are contradictions in the testimonies of witnesses as to whether or not cork was placed on the mouth of the bottles before putting cap on it and before sealing it. It is also claimed that the prosecution witnesses could not specify as to which raiding team member took hand wash of the accused at the spot and that all those things create serious doubt about the hand wash of accused taken at the spot.
17.2. None of those things are crucial enough to discard the testimonies of the raiding team members or the Panch witness. The witnesses were examined in the Court after several years of the incident and therefore they cannot be expected to remember every minute detail with a photographic memory. When witnesses are examined after substantial gap of the CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 34 of 60 35 incident, in their deposition in the Court these minor contradictions and omissions are bound to occur. They cannot be given any undue weightage. Testimony of RO as well as PW 16 & 17 specifically mentions that two bottles each of hand wash solution of both the hands of the accused were taken. In such circumstances, there is no reason for this Court to disbelieve that total four bottles containing hand wash were prepared at the spot.
17.3. Similarly, the argument of accused that out of four only two bottles were sent to FSL and the other two were not sent, and also when the two bottles which were sent to FSL and examined by the expert were produced in the Court they were empty, cannot go in favour of the accused for the following reasons. It is also claimed that when the bottle Ex. P-1 & P-2 were produced in the Court for the first time in the testimony of PW9, they were found inside brown envelopes, whereas the FSL report Ex.PW9/A did not specify that after examination bottles were resealed by the expert in any envelope.
17.4. Neither of these two arguments can go in favour of the accused. Usually, two bottles of the hand wash solution of hands or pocket are prepared in such raids and usually out of them only one bottle is sent and got examined from the expert. In the present case also, it was so done. There is nothing suspicious about it. If the accused was so confident, he could have requested the Court at any stage of the matter to get the second sample also tested. But he did not exercise that option. He did not do it for obvious reasons that it would go against him. It is not important whether the two sample bottles examined by the expert, contained any solution or not when they were produced in the Court. What is important is when those bottles were examined by the expert between 5.04.2013 to 25/.04.2013, i.e. within two months of the date of raid, both the bottles indeed contained pink colour liquid with sediments as mentioned in the FSL result. FSL result CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 35 of 60 36 also specifies that both the bottles i.e. left hand wash and right hand wash contained approximately 100 ml solution each. How much of the solution was left after examination and whether anything remained after examination is not known? No question to that effect, as to the remaining quantity of the sample, was asked to the expert PW9 by the accused. It may also be possible that when the bottles were produced after six years of examination by the expert, the solution leaked from the bottle / evaporated. It is normal that the colour of solution and the volume does change because of environmental factors. The malkhana Register no. 19 Ex.PW19/A specifically mentions that when the remnants of the bottle were received in the malkhana on 10.05.2013, brought by HC Deena Mani from FSL, both the bottles were inside envelopes and were duly sealed with the seal of FSL. FSL result also specifically mentions the same seal of 'KG FSL Delhi' affixed on the remnants of the exhibits. Merely because in the FSL result it was not specified that the remnants were kept in the envelope or were sealed without envelope, loses significance as Ex.PW19/A specifies that both the bottles were in envelope when received from FSL with the same seal of FSL and it is also mentioned therein that the bottles seem to have leaked inside the envelope as the envelopes were decaying because of leakage.
17.5. The contention of accused that even otherwise hand wash is a corroborative evidence, is a well-established law and there is no dispute as to it. Reliance is placed by the accused upon the case of P. Parasurami Reddy Vs. State of A.P. 2011 (3) CC Cases (SC) 313 to lay stress on the point that sole evidence of the fingers being soiled in sodium carbonate turning pink was insufficient. Even that case is distinguishable as in that case the complainant admitted in the cross examination that the accused became irritated on seeing the complainant and asked the complainant to CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 36 of 60 37 go away and also not to approach him again and also complainant was driven out of the room when he first approached the accused. This fact coupled with the fact that the complainant remained silent as to what happened after he was turned away by the accused in first meeting with the accused in his office created doubt; if the accused had to accept the bribe he would not have driven away the complainant and would have taken the bribe at that instance since he and the complainant were alone in the office and it would have been the best opportunity for the accused as well as suspicious circumstances of the second instance of not finding the treated currency notes which were allegedly thrown away by the accused despite the fact that there were 9 members in the raiding team, drove the Hon'ble Court to disbelieve the only evidence of fingers of the accused turning positive for hand wash in sodium carbonate solution. Therefore, even that case is distinguishable and does not help the case of accused.
18. The case of prosecution is also claimed to be doubtful on the grounds that there are contradictions in the testimonies of witnesses as to whether the RO left the spot prior to other raiding team members leaving the spot or not; where exactly the accused was put under formal arrest; the time of arrival of Inspector Vinay Malik back to PS ACB; the time of supplying of copy of FIR to IO; as to whether the currency notes were sealed at the spot or not; whether the flats in question were visited by the IO or not; what mode of transport was used by the RO and by PW16 ASI Jai Kishan when they left the spot separately, etc. In this regard, the Court has been taken through the answers given by the raiding team members.
18.1. None of those grounds are adequate enough to create suspicion as to the case of prosecution. As mentioned above, when witnesses are examined in the Court after a long time from the incident, these small contradictions are bound to occur and they cannot be given any undue weightage. In CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 37 of 60 38 Appabhai and Anr. Vs. State of Gujarat 1988 Supp SCC 241, Supreme Court has emphasized that while appreciating the evidence, the court should not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. Similarly, the discrepancies which are due to normal errors of perception or observation should not be given importance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record as a whole and should not disbelieve the evidence of a witness altogether, if it is otherwise trustworthy.
18.2. Similarly, the claim of accused that the accused of this case was taken for medical examination not by the IO, but by some constable and there are contradictions in the testimonies of witnesses as to the taking of accused for medical, is inconsequential and does not affect the merits of the case 18.3. Reliance is placed by the accused upon the case of Om Prakash Vs. State of Haryana AIR 2006 Supreme Court 894, to lay stress on the point that there is contradiction in the present case about sealing / non-sealing of the currency notes. In the said case, before Hon'ble Supreme Court the facts were entirely different and it was a case of abetment/offering bribe in which a suspect in a murder case was alleged to have offered bribe to the complainant police Inspector. The incident took place allegedly early in the morning at residence of complainant in presence of two constables, where presence of constables at the house of complainant police inspector early in the morning could not be explained; there was a long delay in registration of FIR even though the complainant himself was police inspector and police station was located just 50 yards away; the accused was not taken into police station immediately; one constable was not examined and there were discrepancies in the case of prosecution, CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 38 of 60 39 therefore the preparation of sealed parcel containing bribe money was found suspicious, particularly in view of discrepancies in the statements of PW2 & 3 of that case. Therefore, even that case is distinguishable and does not help the case of accused.
19. Similarly, the argument of accused that the log books of both the vehicles used to travel to the spot, Ex. PW20/DE & DF mentions different distance covered by the two vehicles, i.e. in the log book of one of the vehicle distance mentioned is 51 Kms, whereas the in the second vehicles log book, distance mentioned is 42 Kms, and in the FIR the distance from the PS to the spot is mentioned as 40 Kms, is insufficient to conclude that the case is manipulated.
19.1. The distance between PS and spot as mentioned in the FIR is only by approximation noted by the duty officer who did not travel to the spot. Out of the two vehicles, one vehicle was used to transport the accused from the police station ACB to hospital for his medical examination i.e. the vehicle no. DL6C J 4180 and then the accused was also taken from hospital to PS Civil Lines. This fact is clear from DD Ex.PW20/DH. This DD was registered at PS Civil Lines at 8.45 PM and it is mentioned in this DD that accused was put in the lock up of PS Civil Lines after his medical examination. On top right of this document the vehicle no. DL6C J 4180 is noted down indicating that this vehicle was used for the said purpose. Therefore, there is a difference of additional travel of this vehicle than from the second vehicle. No unnecessary benefit qua it can be extended to the accused.
20. Similarly, argument of accused as to doubtful address of the spot and the place of arrest of accused is liable to be rejected. Merely because in Ex.PW10/DA, Ex.PW13/A and Ex.PW1/A, the DDA Flat no. 1271 i.e. the CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 39 of 60 40 flat being used as an office of DDA is not mentioned and merely because Phase 2 or Phase 3 of Mayur Vihar is mentioned on those different documents, cannot create any doubt about the case of prosecution. All the prosecution witnesses from raiding team, including the complainant, deposed that the accused was taken to ACB from his office. Office of accused in the same residential compound is not in dispute.
20.1. Reliance is also placed by the accused upon the case of Raj Pal Vs. State 2014 (6) LRC 307 (Del), to lay stress that when there is a contradiction as to the spot where the proceedings took place, its benefit should be given to the accused. Even this case is distinguishable on facts. In that case, there were contradictions in the testimony of the complainant, the Panch witness and RO as to even the time of raid as well as the place of raid. There was no conclusive evidence as to whether the tainted money was handed over to the accused in the office of the accused or in an open area near petrol pump; the recovery of notes was not proved as the complainant had claimed that he picked up the money from the floor and handed it over to the RO and therefore the spot where the proceedings took place assumed importance. It was also held in that case that the prosecution failed to prove the basic and foundational facts in that case. Therefore, even that case is distinguishable and does not help the case of accused.
20.2. Reliance is placed by the accused in this regard upon the case of Ajay @ Chotu & Ors Vs. State 2012 (4) LRC 273 (Del) (DB), to lay stress on the point that when the place of arrest of accused is doubtful, therefore its benefit ought to go to the accused. Even that case is distinguishable as it was a case of murder in which the story of prosecution was unreliable including the time of lodging of FIR and there was delay in lodging of FIR, independent witnesses were not examined and therefore place of arrest of one of the accused was also suspected by the Court.
CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 40 of 60 4120.3. In the present case, the place of apprehension of accused is not disputed seriously by the accused at any stage of the matter, and all the raiding team members as well as the Panch witness and even the hostile complainant categorically deposed that the accused was apprehended from his office. In a case of Prevention of Corruption Act, the exact place where an accused is formally arrested, be it the place of actual apprehension of accused or the subsequent formal arrest of accused in the police station, is inconsequential. In his statement, the accused did not clarify as to if he was not apprehended from his office on the date of raid, from where was he picked up and then formally arrested in ACB on that day. All that he claims in his statement is that the arrest and other documents were fabricated in ACB. In such circumstances, there is no serious denial by the accused as to the place of his apprehension and in a matter of the nature as the present case is, it is the actual place of apprehension is what is important and the actual place where the accused is formally arrested looses significance. The arrest memo Ex.PW10/D mentions the time of formal arrest of accused at 6.30 PM. In DD no. 29 Ex.PW1/F, it is mentioned that Ct. Jai Kishan arrived at PS ACB with rukka at 5.50 PM. And DD no. 30 Ex.PW1/G reveals that the FIR concluded at 7.40 PM and through Ct. Jai Singh copy of FIR was being sent to Inspector Vinay Malik.
21. Reliance is next placed by the accused upon the case of State Vs. Sunil Kumar @ Sagar 2015 (3) LRC 380 (Del) (DB), to lay stress on the point that site plan is a vital part of investigation and it should be proved to have been prepared as per actual site. Again, site plan would assume importance in a particular kind of cases viz., murder, attempt to murder, robbery etc.. But in a case of Prevention of Corruption Act, particularly trap case, the site plan is not always crucial, particularly in the nature of cases and in the CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 41 of 60 42 facts & circumstances as the present case is.
22. The claim of accused that where two views are possible, one favouring the accused and another favouring prosecution, the view in favour of the accused has to be accepted, is a settled legal position and there is no dispute about it. In this regard, reliance is placed by the accused upon the case of State of Maharashtra Vs. Rashid B. Mulani 2006(1) RCR (Criminal).
22.1. But the question is whether in the present case any probable view in favour of the accused arises or not. Simply because the complainant turned hostile would not be enough to draw a conclusion that a view in favour of accused legitimately arises.
23. It is also argued by the accused that though as per the story of prosecution, after the accused was apprehended from the spot by the RO PW13 and after the case property was seized, the case property and documents were handed over by Inspector Rahul to the subsequent IO Inspector Vinay Malik (PW20), yet in the register no.19 Ex.PW19/A, name of Inspector Rahul (RO) is mentioned as the person who deposited the case property. According to the accused, it reveals manipulation.
23.1. In this regard, accused places reliance upon the case of Surender Singh Vs. State (NCT of Delhi) 2014 (8) LRC 177 (Del), to lay stress on the point that when the case property was deposited in the malkhana by the RO and not by the subsequent IO, it indicated that the RO continued to deal with the whole case without handing over the case property to the subsequent IO. In that case, it was not the only ground to disbelieve the case of prosecution. In that case, the very evidence of sending the hand and shirt wash samples to FSL were found to be doubtful; the evidence of Panch witness as to the conversation between the accused and the CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 42 of 60 43 complainant at the spot was found to be unclear; the fact that FSL report was dated 19.09.2000 whereas the evidence and malkhana register indicated that it was sent to FSL for examination on 11.06.2001 i.e. after the FSL result, raised huge suspicion as to the genuineness of the prosecution's version. Also in that case, the Panch witness specifically mentioned in his cross examination that the complainant and accused were speaking in a low pitch and he could not hear their talks and therefore it was not clear as to whether any demand was made and the cumulative effect of all those circumstances led to giving of benefit of doubt to the accused. Therefore, even that case is distinguishable and does not help the case of accused.
23.2. In the present case, Inspector Vinay Malik (PW20) deposed that he deposited the case property in the malkhana. Similarly, the Malkhana Moharrar (PW19) also deposed that the case property was deposited by Inspector Vinay. Even Inspector Rahul deposed that he did not deposit the case property and it was Inspector Vinay who deposited it. Regarding deposition of case property, no separate DD entry was lodged in PS Civil Lines. Though, there exists DD Ex.PW20/DH, which is regarding putting the accused in the lockup of PS Civil Lines by Inspector Vinay Malik, but there is no mention in this DD about deposition of case property by Inspector Vinay Malik. The malkhana register no. 19 Ex.PW19/A mentions that the case property was deposited not by Inspector Vinay Malik but by Inspector Rahul. For reasons unknown the prosecution did not try to clarify this discrepancy. Though, the Malkhana Moharrar PW19 and Inspector Vinay Malik PW20 claimed that Inspector Vinay Malik deposited that case property and also Inspector Rahul denied that he deposited the case property, yet the document of the prosecution states that it was Inspector Rahul who deposited the case property. However, no CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 43 of 60 44 unnecessary weightage can be given to this fact as it might well be a case where the Malkhana Moharrar, by himself noted down the name of Inspector Rahul instead of Inspector Vinay Malik. Neither the prosecution nor the accused ever attempted to draw attention of PW13, 19 & 20 as to the signature / initials existing in Column no. 3 of Ex.PW19/A seeking explanation from the witnesses as to whose initial exists below the name of Inspector Rahul. The very fact that DD entry Ex.PW20/DH lodged at PS Civil Lines mentions name of Inspector Vinay Malik as the person who locked up the accused in PS Civil Lines at 8.45 PM on the date of incident, indicates that it was Inspector Vinay Malik who went to PS Civil Lines. Although, the Prosecution did not clarify this fact, but on this sole ground accused cannot claim acquittal. Neither attention of RO Inspector Rahul (PW13) nor attention of Inspector Vinay Malik (PW20) were drawn to the initial appearing in Column no. 3 of Register no. 19 Ex.PW19/A to seek clarification whether it bears initial of RO or initial of Vinay Malik. In any case, once it has come in the evidence that the hand wash samples were sealed by the RO at the spot and then handed over to Inspector Vinay Malik, even if in the malkhana register the name of RO figures as the person who deposited it and assuming for the sake of argument that it was the RO who deposited the case property would not make much of a difference in view of convincing evidence as to recovery of currency notes from the possession of accused and the convincing evidence as to taking of hand wash of the accused and then drawing samples from it by the RO.
24. Law is also well settled that to base conviction U/s 7 & 13 of POC Act, proof of demand/acceptance of bribe by an accused is sine quo non. Law is also well settled that merely recovery of currency notes from the possession of an accused and mere positive result of the phenolphthalein test is insufficient by themselves to convict an accused.
CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 44 of 60 4524.1. As discussed above, the complainant turned hostile to the case of prosecution and did not support the case of prosecution as to the demand or acceptance of the bribe amount by the accused and instead claimed that it was some beldar Shankar who came to his flat and demanded bribe on 11.02.2013 i.e. one day prior to the day of raid and that he went with the raiding team to the office of accused on 12.02.2013 for Shankar (beldar), where he did not find Shankar present in the office, but the accused as JE was present, he then kept the bribe amount of Rs. 6000/- on the table in the office of accused.
24.2. A lot of emphasis is made by the accused on the point that even if for the sake of arguments, the version of Panch Witness is accepted on the point that the complainant handed over the currency notes to the accused, yet the fact of demand of bribe by the accused is not established even at the time of trap and in absence of establishment of fact of demand by the accused, accused cannot be held guilty either for Sec. 7 or Sec. 13(1)(d) of POC Act.
24.3. Reliance is placed by the accused upon the case of Mukhtiar Singh Vs. State of Punjab 2017 (3) RCR (Criminal), wherein question of absence of demand of illegal gratification was considered by the Hon'ble Supreme Court, and the facts of that case were that the accused had asked the complainant whether the complainant had brought the amount and then the amount was given to the accused. It was held to be insufficient for conviction u/s 7 or section 13(1)(d) PC Act. In that case the complainant had alleged that earlier also he had paid Rs.3000/- to the accused on demand of accused. But Hon'ble Supreme Court came to a conclusion from the evidence led by the prosecution that in absence of date or time of first demand/ payment and omnibus, vague and sweeping statement and also in absence of examination of the third person in whose presence CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 45 of 60 46 money was paid, rendered the said fact of earlier demand and payment as unbelievable. Qua the demand and payment of Rs.2000/- at the time of trap, Hon'ble Supreme Court observed that the bald allegation of the complainant with regard to demand and payment of Rs. 3000/- as well as the demand of Rs.2000/- remained uncorroborated and also lacked in material facts and particulars and therefore per se cannot form the foundation of a decisive conclusion that such demand in fact had been made. It was observed that viewed in that perspective the statement of complainant and Panch witness in isolation that the accused had inquired whether money had been brought or not can by no means constitute demand and such a stray query ipso facto in absence of any other cogent and persuasive evidence cannot amount to a demand. In that case the prosecution version of demand and acceptance in the police station appeared to be unusual to Hon'ble Supreme Court as also there were contradictions with regard to the location of the transaction relating to Rs.2000/- which rendered it doubtful including the fact that the currency notes were kept allegedly by the accused in card box placed on the table which card box was not even seized and the fact that some Sr. Police officer was alleged to have been involved being known to one of the parties, on an oral appreciation of evidence Hon'ble Supreme Court disbelieved the allegations and thus the accused was acquitted. The said case is thus clearly distinguishable on facts and is of no help to the accused of this case.
24.4. Reliance is also placed by the accused upon the case of G. V. Nanjundiah Vs. State AIR 1987 SC 2402, on the point that no one would accept bribe in the presence of a stranger. The said case is also distinguishable as in the facts of that case it was found by Hon'ble Supreme Court that the testimony of complainant was not trustworthy and rather the accused was CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 46 of 60 47 an honest person as per his service record who did not own any immovable or movable property. In that case though the accused was claimed to have been trapped, but Hon'ble Supreme Court disbelieved the trap witnesses and found them to be not independent witnesses; the circumstances of trap claimed by the prosecution was found to be unnatural and unusual, particularly the fact that the shadow witness was claimed to have entered the house of accused with basket of fruits and some cartons of sweets purchased by the complainant and it was held that it is difficult to believe that accused accepted bribe in presence of a person who carried the fruits to the drawing room of the accused. The said case is also thus clearly distinguishable on facts and is of no help to the accused of this case.
24.5. Reliance is also placed by the accused upon the case of Om Prakash & Anr. Vs. State NCT of Delhi 2013 (9) LRC 137 (Del), on the point that neither demand, nor acceptance alone is sufficient to establish offence under section 5 (1)(d) of the earlier PC Act. Even that case is completely distinguishable on facts, as in that case the attorney in favour of complainant was found suspicious; the owner of the property was not even examined; the dealing clerk who received application for inspection was not examined; insistence of complainant who was working in IB as an Intelligence Officer to get inspection carried out on the same day was found to be unnatural; in the complaint name of one of the accused was absent; there were additions and alteration in the complaint which remained unanswered; the mason working at the site to whom the accused had met allegedly, was not even examined or inquired into; complainant and Panch witness gave contradictory statements on material aspects; the circumstances of not giving bribe in the office of accused and allegedly given outside the office after the accused came out of the office was found to be unbelievable and because of those conflicting versions and CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 47 of 60 48 suspicious version on crucial aspects, unreliable version of complainant, it was held that absence of demand and suspicion as to acceptance was unsafe to base conviction. The said case is also thus clearly distinguishable on facts and is of no help to the accused of this case.
24.6. Reliance is also next placed by the accused upon the case of P. Satyanarayana Murthy Vs. The District Inspector of Police 2015 (4) JCC 2674 to emphasise that proof of demand is indispensable and failure to prove demand for illegal gratification would be fatal to the prosecution and mere recovery of amount cannot lead to conviction. In that case the complainant could not be examined as he had expired. The trial Court had convicted the accused under section 7 as well as section 13(1)(d), but High Court set aside conviction u/s 7 and upheld conviction u/s 13 only. Hon'ble Supreme Court held that in absence of evidence of complainant due to his demise primary evidence of demand was not forthcoming and the testimony of shadow witness did not reproduce the demand as contemplated in law made by the accused to the complainant at the time of trap. Noting that High Court had acquitted the accused u/s 7 of the PC Act already, Hon'ble Supreme Court held that the facts were insufficient to draw finding of guilt for offence u/s 13. It was held by the Hon'ble Supreme Court as follows in para 21 and 22: -
"21. The proof of demand of illegal gratification, thus, is the gravamen of the offence under section 7 and 13(1)(d)(i) & (ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto would thus not be sufficient to bring home the charge under these two sections of the Act.
22. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offencce under section 7 or CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 48 of 60 49 13 of the Act would not entail his conviction thereunder."
24.7. The accused also places reliance in this regard upon the cases of B. Jayaraj Vs. State of AP 2014 (2) RCR (Criminal), on the point that without proof of demand, mere possession and recovery of currency notes from pocket of accused will not bring home offence u/s 7. In that case not only the complainant had turned hostile, but the complainant also claimed that he gave the amount to the accused not as bribe but to be deposited as fees for renewal of license. On the other hand, the Panch witness of that case had simply testified that the contents of complaint were explained to him in presence of complainant who acknowledged the fact of demand by the accused from the complainant for release of some articles of the complainant. It is mentioned in para 8 of the said judgment that besides the complainant the prosecution did not examine any other witness present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused and there was no other evidence to prove that the accused made any demand, therefore evidence of Panch witness was not be relied upon. It is in those circumstances of that case, it was held that the only left circumstance of recovery of tainted currency notes from the possession of accused was insufficient to hold the accused guilty, particularly when accused admitted possession of that money.
25. In the present case, the question is whether 'acceptance' of bribe by accused knowing it to be bribe, sans express demand, is sufficient or insufficient for section 7 of the Act?
25.1. Section 7 of POC Act, as it stood at the relevant time of offence of the present case and before its amendment, provided, that where a public servant accepts or obtains any gratification other than legal remuneration as a motive or reward for doing or forbearing to do any official act etc., or CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 49 of 60 50 where the public servant even agrees to accept or attempts to obtain any such gratification, the said public servant shall be punishable.
25.2. Importantly, in the case of B. Jayaraj (supra), relied by the accused, following observation was made in para 7 by Hon'ble SC;
"7. In so far as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe.............."
25.3. Similarly, reliance placed by the accused upon the case of Subhash Parbat Sonvane Vs. State of Gujarat AIR 2003 SC 2169, on the point that mere acceptance of money was insufficient for convicting an accused under section 13(1)(d) of PC Act, goes against the accused. In the said case, accused was convicted for the offence of section 7 as well as section 13(1)(d) of PC Act by the trial Court. Hon'ble Supreme Court, drawing a distinction as to the requirements of section 7 and section 13 (1) of PC Act, affirmed conviction of the accused under section 7, but set aside conviction u/s 13(1)(d) by partly allowing the appeal. In that case it was held that between section 7 and section 13(1) there is a distinction to the effect that in section 13(1)(d) the legislature did not use the word 'accepts' and emphasized the word 'obtains'. In that case also the complainant had turned hostile and the evidence of Panch witness did not indicate any demand or obtaining the amount by the accused. Rather it came in the evidence of Panch witness that when the complainant and Panch witness went to police chowki where the accused was present, the accused asked the complainant as to why he had come there at that time and when the complainant replied that he has brought one witness with him to be examined and thereafter when the accused asked the CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 50 of 60 51 complainant to come in the evening since writer of accused was not available to record statement, and then the accused started to go towards toilet, the complainant followed the accused and gave something from his pocket to the accused which the accused took and kept in his pocket. From this evidence it was held that demand by the accused from the complainant cannot be inferred nor can it be said that the accused obtained the amount, for the purposes of section 13(1)(d) of PC Act. Still the conviction of accused u/s 7 was upheld by the Supreme Court in the above mentioned facts. Thereby meaning that acceptance of bribe by the accused in those circumstances were held to be sufficient by the Supreme Court to upheld the conviction under section 7 of the Act. In para no.6 of the said judgment the distinction between section 7 and 13(1) is noted as follows:
"6. In section 7 and 13 (1)(a) and (b) of the Act, the Legislature has specifically used the word 'accepts' or 'obtains'. As against this, there is departure in the language used in clause (1)(d) of Section 13 and it has omitted the word 'accepts' and has emphasized the word 'obtains'. Further the ingredient of sub- clause (i) is that by corrupt or illegal means, a public servant obtains any valuable thing or pecuniary advantage under clause
(ii) he obtains such thing by abusing his position as public servant; and sub - clause (iii) contemplates that while holding office as the public servant, he obtains for any person any valuable thing or pecuniary advantage without any public interest. Therefore, for convicting the person under section 13(1)(d), there must be evidence on record that accused 'obtained' for himself or for any other person any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant or he obtained for any person any valuable thing or pecuniary advantage without any public interest."
25.4. A three judges Bench of Hon'ble Supreme Court, in the case of N. Vijayakumar v. State of T.N., (2021) 3 SCC 687: 2021 SCC On Line SC 53, held as follows;
CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 51 of 60 52"26. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in C.M. Girish Babu v. CBI [C.M. Girish Babu v. CBI, (2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1] and in B. Jayaraj v. State of A.P. [B. Jayaraj v. State of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that the accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved........"
25.5. In the case of B. Noha Vs. State of Kerala & Anr., Crl. Appeal No. 1122 of 2006, decided by Hon'ble Supreme Court on 06.11.2006, the facts were that the accused who was working as Health Inspector allegedly demanded and accepted an amount of Rs. 100/- from the complainant of that case on two different dates, for release of articles of the complainant. The accused was trapped. The accused in that case took a defence that he did not receive amount from the complainant, but the complainant came to his office and forcibly put the money into his pocket. Hon'ble Supreme Court observed that when it is proved that there was voluntary and conscious acceptance of money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deduced from the facts & circumstances obtained in the particular case. It was observed as follows in the said case.
"The evidence shows that when PW-1 told the accused that he had brought the money as directed by the accused, the accused asked PW-1 to take out and give the same to him. When it is proved that there was voluntary and conscious acceptance of CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 52 of 60 53 the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deducted from the facts and circumstances obtained in the particular case. It was held by this Court in Madhukar Bhaskarrao Joshi V. State of Maharashtra (2000 (8) SCC 571) as follows:
"The premise to be established on the facts for drawing the 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".
This decision was followed by this Court in M. Narsinga Rao V. State of A.P. (2001 (1) SCC 691). 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."
25.6. Similarly, in the case of Madan Mohan Lal Verma (Supra), in para 7 Hon'ble Supreme Court observed, that mere recovery of tainted money is not sufficient to convict an accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe.
25.7. In the case of C. M. Sharma(Supra), also it was similarly observed in para CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 53 of 60 54 23 and 24 of the judgment. In para 24 of the judgment, it was also held that the positive result of hand wash and pocket of trouser wash of the accused goes to show that the accused voluntarily accepted the bribe.
25.8. Similarly, in the case of C. M. Girish Babu (Supra), in para 8, quoting the case of Suraj Mal v. State (Delhi Admn.) [(1979) 4 SCC 725, it was observed that mere recovery may not be enough unless proof of payment of bribe or the fact that accused voluntarily accepted the money knowing it to be bribe is established.
25.9. The best person and the only available evidence qua demand made from the complainant on 11.02.2013, was the complainant. When he turned hostile, there was no other way the prosecution could have proved that fact of demand dated 11.02.2013 from any other witness.
25.10. But then, conviction of an accused in a given case can be based even on the fact of demand or voluntarily acceptance of the money by the accused knowing it to be bribe is established at the time of trap.
25.11. Again, regarding demand/acceptance of bribe at the spot at the time of trap on 12.02.2013, the complainant did not support the case of prosecution at all. Admittedly, the RO was not present at the time when alleged demand / acceptance by the accused was made from the complainant. The Panch witness also did not depose that it was the accused who expressly demanded the bribe, before the complainant handed over the treated currency notes to him.
25.12. But then, PW10 Jai Prakash the Panch witness, deposed that after he and complainant entered the office of accused, the accused offered them seat and thereafter it was the complainant who had said "mein aapkey dwara maangey huey paise laya hoon, yeh 6 hai" (I have brought the money demanded by you, here is amount of Rs 6000). Thereafter, the accused CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 54 of 60 55 said 'Ok', 'theek hai' (ok, fine) and then the complainant handed over the money to the accused, who took it and counted it in presence of the Panch witness. Thus, it has categorically come in the evidence of the Panch witness that when money was handed over by the complainant to the accused, the complainant specifically said that the complainant had brought the bribe amount of Rs. 6000/- which were demanded by the accused. The accused accepted that amount by saying "okay theek hai". Thereafter, the amount was handed over to the accused, who not only took it but also counted it in his presence. The said money was still in the hand of accused when the raiding team entered his office. It was then recovered from his hands.
25.13. The moment prosecution succeeds in proving beyond reasonable doubt the fact that the accused voluntarily accepted the amount of Rs. 6000/- from the complainant, presumption U/s 20 of the POC Act comes into play and it was for the accused to explain as to for what purpose he received that amount from the complainant.
25.14. In the present case, the defence of the accused has been that of complete denial. The accused simply claimed that he was implicated falsely by Anti- Corruption Branch simply to achieve their target. The said defence taken by the accused is absolutely implausible and does not appeal to common sense. Had it been a case where the bribe seeker was some beldar Shankar, as claimed by the complainant, ACB would not have apprehended the accused. Their so called target could have been achieved by apprehending Shankar. Why would they apprehend the accused? Had it been a case where complainant kept the money on the table, as claimed by the complainant and which is not believable, there was no reason as to why the accused should have picked that amount, particularly when accused was told that it was a bribe amount. If the accused did not accept the CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 55 of 60 56 amount, why his hand wash turned positive for presence of phenolphthalein? The accused does not even claim that for some justifiable reason he picked up the amount kept by the complainant on the table which was not meant for him or was meant for Shankar. The very fact that the accused took that money from the complainant and then also counted it, with absolutely no justification offered by the accused as to for what purpose he took that amount from the complainant, clinches the issue.
25.15. This Court has no reason to doubt the creditworthiness or reliability of the Panch witness. The Panch witness was an independent witness from another department, who had no enmity or grudge against the accused. There was no reason for the Panch witness to have falsely deposed against the accused if the accused did not accept the bribe amount from the complainant in the manner deposed by the Panch witness. There is no reason to suspect reliability of Panch witness for any reason whatsoever.
25.16. The claim of complainant that he had carried another typed complaint to PS ACB on 12.02.2013 and that instead of acting on that complaint, the Anti-Corruption Branch official gave blank paper to the complainant and then dictated complaint Ex.PW10/A is unbelievable for more than one reason. Similarly, the claim of complainant about someone else demanding the bribe is apparently false. First of all, had it been a case, Anti-Corruption Branch could not have named accused Mohd. Afzal Khan in the complaint Ex.PW10/A. Not only on the title of the complaint, but also in the body of complaint name of accused figures repeatedly. The complainant specifically admitted that the complaint Ex.PW10/A is not only in his handwriting which he wrote on 12.02.2013, but it also bears his signature. He also admits that this complaint finds name of accused right on the title of the complaint as the person who demanded bribe. It is CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 56 of 60 57 nobody's case that the complainant disclosed name of accused to Anti- Corruption Branch. It is also nobody's case that anybody in ACB or the Panch witness named the accused for the first time. There was no reason for Anti-Corruption Branch to not act against Shankar or instead name the accused. ACB official had no knowledge that accused was posted as a JE and would be found present in his office on that day at 2.30 PM. The claim of complainant that Ex.PW10/A was written by him on the dictation of ACB official is also not believable for the reason that if whatever was being dictated to the complainant was completely different as to the person who demanded bribe from the complainant, nothing stopped the complainant from not writing the complaint, objecting to it and, not signing it. Name of accused figures in the complaint repeatedly. The complainant never initiated any communication or action against not taking of his actual complaint against Shankar or implication of accused. It is nobody's case that this complaint was fabricated by ACB after apprehension of the accused. Instead, the evidence of complainant himself suggests that this complaint was written prior to the raiding team leaving ACB for the spot. This fact is reinforced in the testimony of the Panch witness and the RO, both of whom categorically deposed that they also countersigned the complaint prior to leaving the ACB for raid. Merely because at one place in the body of complaint name of father of accused is also mentioned, does not in any manner indicate that this complaint was drafted after apprehension of the accused. It can well be a case where the complainant was well aware of name of father of accused since admittedly the accused was JE of the flat compound and his office was also located within the complex. This is particularly possible as the complainant was into the business of construction and he must have come across the accused on various occasions earlier also. In the entire evidence, nothing CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 57 of 60 58 has come on record to even remotely suggest that any of the ACB personnel had any kind of previous acquaintance or grudge against the accused. Therefore, it cannot be even claimed by the accused that some ACB personnel knew the name and father's name of the accused or they got the accused implicated. These facts clearly indicate that the complainant deliberately turned hostile in order to help out the accused, for reasons which are comprehensible. The complainant also never came out during his deposition as to any copy of his so called typed complaint, which he had allegedly taken to ACB on 12.02. 2013. Therefore, the claim of complainant that bribe was demanded by Shankar and not accused, is not believable and appears to be deliberately falsely claimed by the complainant. In any case, no evidence was brought on record from the side of accused also that any beldar by the name of Shankar was posted or working in the office of the accused on the relevant date.
25.17. When the evidence of the Panch witness, the RO, the other two raiding team members PW16 & 17 and, even as per believable part of the testimony of the hostile complainant, is viewed holistically, there is no manner of doubt that the accused was apprehended from his office in flat no. 1217, DDA Flats, Kondli, Gharoli and also that the phenolphthalein treated currency notes were indeed recovered from the possession of the accused. The Panch witness categorically deposed that the complainant handed over the currency notes to the accused after telling the accused that he had brought the amount of Rs 6000 as demanded by the accused, and also that the accused counted the money after receiving after uttering the words 'ok, theek hai'. The Panch witness, the RO and other two raiding team members PW16 & 17 also deposed that when the raiding team entered the room of accused, the currency notes were in the hand of accused and they were taken from his hand by the Panch witness. It may CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 58 of 60 59 also be mentioned here that though complainant claimed that when he did not find beldar Shankar present in the office, he kept the treated currency notes on the table of accused, but the said version is unbelievable and is rather indicating that the complainant did not come up with true account of version which occurred in the office of accused, for the simple reason that had those currency notes been kept on the table, there was no reason as to why the hand wash of accused turned positive for presence of phenolphthalein on his hands.
25.18. Those facts clearly establish 'acceptance' of bribe by the accused knowing it to be bribe. When it is proved beyond reasonable doubt that the accused accepted the amount voluntarily and knowing it to be bribe, absence of express demand by the accused loses significance.
26. Though the prosecution could not prove demand of bribe in any expressive words or gestures by the accused from the complainant at the time of trap, but the very fact that before giving money to the accused the complainant specifically stated that he had brought the money as demanded by the accused and the complainant also specified the amount to be Rs. 6000/- and then the accused received that amount from the complainant and also counted it, proves the fact of acceptance of bribe by the accused, knowing it to be bribe.
27. Accordingly, the prosecution succeeds in proving the fact that the accused did accept the bribe amount voluntarily and knowing it to be bribe from the complainant on the date and time of raid in his office and the fact that the said bribe amount was also recovered from the hands of accused and then his hands tested positive.
27.1. U/s 7 of the POC Act, the said fact of acceptance, in absence of any discharge of burden under section 20, even by preponderance of CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 59 of 60 60 probability by the accused, is sufficient to hold the accused guilty U/s 7 of POC Act.
28. So far as Sec. 13(1)(d) of the POC Act is concerned, as discussed above, and in view of judgment in the case of Subhash Parbat Sonvane (Supra), once the prosecution fails to establish factum of demand by the accused, there would be no question of the accused 'obtaining' the pecuniary advantage or valuable thing, which is necessary to be established to base conviction U/s 13(1)(d) of the POC Act.
29. In the facts & circumstances, the accused is acquitted for the charge of 13(1)(d) of POC Act, but he is found guilty and convicted U/s 7 of POC Act.
Announced in the Open Court on 29.07.2022.
DIG Digitally signed
by DIG VINAY
SINGH
VINAY Date:
2022.07.29
SINGH 11:30:13 +0530
(Dig Vinay Singh)
Special Judge (PC ACT)/ACB-02
Rouse Avenue Courts
New Delhi / 29.07.2022 (r)
CNR No. DLCT110015622019; CC No. 256/2019; State Vs. Mohd. Afzal; FIR No. 03/2013; P.S ACB; Judgment dated 29th July 2022; Page 60 of 60