Delhi District Court
State vs Ganpathy on 4 May, 2007
1
CC No. 22/2003
IN THE COURT OF SHRI SUNIL GAUR :SPECIAL
JUDGE: DELHI
CC No.22/2003
State Vs Ganpathy
S/o Shri G. Anantkrishna
R/o 28/234, DVB Colony,
Janak Puri, New Delhi
FIR No.9/2002
under section 7/13 of
Prevention of Corruption
Act 1988.
PS Anti Corruption
Branch, GNCT, Delhi.
JUDGMENT
This is a case of its own kind where accused Ganpathy, a Assistant Accountant of erstwhile Delhi Vidyut Board (herein after referred to be as DVB) posted at Shankar Road Office, Delhi has been charge-sheeted by the Anti Corruption Branch with the allegations that on 20.02.2002 he has demanded and accepted bribe of Rs.200/- from complainant Shri Satish Kumar for adjusting the amount of electricity bills of four months against the payment of Rs.1,62,210/- which was allowed to be paid in installments in respect of the electricity connection provided at his factory premises at 25/15, Vishwas Nagar, Contd.....
2CC No. 22/2003 Delhi and on 27th February, 2002, complainant Satish Kumar got accused Ganpathy trapped in the office room of his senior (PW4) by raiding team of Anti Corruption Branch while accused had purportedly returned back the bribe money to the complainant and the rest of the proceedings conducted at the spot finds mention in post raid report Ex. PW 10/B.
2. The factual position of this case emerging from the complaint dt. 27.2.2002 made by Satish Kumar S/o Shri Bhagwan Dass, R/o 25/15, Vishwas Nagar, Shahdara, Delhi on translation, reads as under :-
''That the electric load of my factory at 25/15, Vishwas Nagar, Delhi was enhanced from 7 KW to 21 KW by DVB and I had preferred an appeal before the Consumer Forum, which was being heard since 21.5.2001 and on the last date, arguments were heard and DVB officials had come to my factory on 9.2.2002 and started checking the load and when they Contd.....3
CC No. 22/2003 found that the electric load used was less than sanctioned load at my factory, and they had broken the glass of the electric meter installed there and had made a case of glass fixing and on 21.2.2002, they directed me to deposit Rs.1,62,210/- and I preferred an appeal before IG (Enforcement) who considered and found my version correct but without any legal action, made installment of the amount of Rs.1,62,210/- to be deposited by me with DVB and out of this amount, payment of amount of four months already paid to DVB by me were to be adjusted in the said amount of Rs.1,62,210/-. I had gone to DVB Office at Shankar Road, where I met with an officer who used to make the installments and requested him to make installments after adjusting my paid bill of four months and he took the said receipt of paid bill and had asked me to sit besides Contd.....4
CC No. 22/2003 him and started doing work of other persons and in the end, he told me that in case, I would pay him Rs.500/- then he will make the installments after deducting four months payment, otherwise not. Under duress, I unwillingly gave him Rs.200/- and he rectified after deducting the receipt amount. Thereafter, I informed I.G. Sahib about it and in my presence, he had talked on phone with SE Shri Kochar of DVB office at Shankar Road, and told me to approach to SE Shri Kochar who will hear me.
I want justice and I do not want back my Rs.200/-. You are requested to take action, so that in future DVB officials do not harass anyone. I had given Rs. 200/- on 20.2.2002.''
3. On 27.2.2002, on the basis of above referred complaint, pre-raid proceedings were drawn and the raid Contd.....
5CC No. 22/2003 was conducted and after successful completion of the raid, FIR No.9/02 was registered and the accused was arrested and after completion of the post-raid proceedings and the investigation, challan was filed in the Court u/s 7/13 of the Prevention of Corruption Act, 1988. Accused was summoned and copy of the challan was supplied to him and thereafter the accused was heard on the point of charge and on 27.11.04, charge u/s 7 read with 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 was framed against the accused and the accused had pleaded not guilty to it and claimed trial.
4. Prosecution has got examined twelve witnesses in all. PW-6 Shri Satish Kumar is the complainant. This witness has testified in detail about the raid proceedings besides proving his complaint. PW-10 Shri Surjit Kumar is the Panch Witness and has deposed about pre-raid, post-raid and investigation proceedings in detail. PW-11 Inspector Parkash Chand is the Raid Officer and PW-12 Inspector K.S. Pathania is the Investigating Officer and both these witnesses have testified about their respective Contd.....
6CC No. 22/2003 role, in detail.
5. PW-1 Shri A. Chakarverty, who was posted as Sr. Manager (HR ) BSES at the relevant time and being the competent authority to the remove the accused from service, has accorded sanction for prosecution of accused Ganpathy vide his Sanction Order Ex.PW1/A . PW-2 Shri C.K. Sood has testified that he was working as Executive Engineer (Enforcement) West Shankar Road and on 19.7.2002 he had issued letter Ex.PW2/A and supplied the copy of bill Ex.PW2/B to the Investigating officer of this case. PW-3 Head Constable Laxmi Narain is the Mohrrar Malkhana and this witness has deposed about Inspector Parkash Chand having deposited Rs.200/- and personal search articles of accused Ganpathy on 27.2.2002 and this witness has proved an extract of copy of malkhana register as Ex.PW3/A.
6. PW-4 Shri S.S. Kochar has testified that on 27.2.2002 he was working as Superintending Engineer in Enforcement, DVB at Shankar Road Office. This witness Contd.....
7CC No. 22/2003 has also testified about receiving telephone call from IG (Enforcement) DVB about one Satish Kumar having approached him with complaint of accused Ganpathy having received Rs.200/- from him as bribe and that this witness has also testified about accused Ganpathy having giving back Rs.200/- to complainant Satish Kumar on 27.2.2002 in his presence and about apprehension of accused there and about personal search of accused having been conducted vide memo Ex.PW4/A. PW-5 Shri O.P. Sharma was posted as Assistant Personal Officer (E) on 15.4.2002 and on that day, on the basis of service record, he had prepared bio-data of accused Ganpathy Ex.PW5/A which was sent to Anti Corruption Branch vide forwarding letter Ex.PW5/B.
7. PW-7 Shri Mahender Pal has testified that on 1.4.2003 he was posted as officer on Special Duty (HR) in BSES Rajdhani Power Limited, Nehru Palace, New Delhi and had forwarded sanction Ex.PW1/A to DCP Anti Corruption Branch vide his covering letter Ex.PW7/A. PW- 8 Head Constable Birju Singh was the member of Contd.....
8CC No. 22/2003 raiding party and has testified about his having taken rukka from Inspector Parkash Chand from the spot to police station Anti Corruption Branch for getting the case registered and after getting the case registered about his having handed over the original rukka and copy of FIR to Inspector Kamaljeet Singh, Investigating officer of this case at Police Station Civil Lines.
8. PW-9 Shri Devasish Bagchi has testified that he had been posted as Inspector General (Enforcement) in DVB up to 30.6.2002. This witness has further deposed about one Inspector of Anti Corruption Branch having contacted this witness and about showing bill/receipt no.11060 of Shri Satish Kumar. This witness has also testified about Satish Kumar having approached to him on 18.2.2002 and requested for installments and this witness had handed over him the said bill after appending his signatures and passing necessary orders.
9. After recording of prosecution evidence, statement of accused Ganpathy was recorded under Contd.....
9CC No. 22/2003 section 313 Cr. P.C. in which the accused has denied the prosecution version existing against him by stating that the witnesses have deposed falsely and that the complainant is an accomplice in the eyes of law, Panch witness has deposed due to fear of departmental action and under pressure of Anti Corruption Branch officials, Raid Officer and Investigating Officer are interested witnesses. Accused has further stated in his statement under section 313 Cr. P.C. as under :-
''I am innocent and have been implicated in this case falsely. I never demanded or accepted any bribe from the complainant and never insisted the complainant to pay me Rs.200/- on 20.2.2002 or any other day for correction of his bill. It is wrong that complainant ever paid me Rs.200/-.
The complainant has lodged a false complaint. I was never called by Mr Kochar as stated above as I never demanded any illegal or unlawful Contd.....
10CC No. 22/2003 gratification of Rs.200/- from the complainant. It is incorrect that complainant ever produced four GC notes to the IO. In fact the IO falsely implicated me by taking GC notes from me as the DESU officers and he were under the influence of PW-9 Debasish Bagchi, IG.
This is a false case. The complainant was harassed by the field staff of the DESU when they visited his factory, as mentioned by him and the complainant further alleged that field staff illegally and unlawfully had broken the glass of the meter in order to raise illegal and unlawful bill against him and the complainant got annoyed with those DESU employees and he could not do against the field staff as they had no permanent place of work as they always go on checking different Contd.....
11CC No. 22/2003 factories, houses and they have been inspecting in a surprising way also so the complainant with vengence made a false complaint against me when he could not get a fresh bill with a lower amount because I was not the officer who could prepare fresh bill but he was compelling me to prepare a fresh bill, somehow, so that he may escape from the payment of heavy bill already raised by the officers of the zone and in that office I had no concern because my duties were only to make the installments and I did not the installments which were legally permissible and the installments were prepared on the same day and I never demanded any illegal or unlawful gratification from the complainant. I never accepted any illegal and unlawful gratification from the complainant and Contd.....
12CC No. 22/2003 there was no question of return of any amount to the complainant as I never accepted the same from the complainant.''
10. Accused has chosen not to lead any evidence in his defence.
11. Upon hearing, Sh. Alok Saxena Addl. Public Prosecutor for the State and Sh. H. R. Dhamija Ld. Counsel for the accused and after critically examining the evidence on record, I proceed to notice the contentions raised by both the sides. Judgments reported in 1998 (2) JCC (Delhi) 69 and 2004 II AD (Cr.) S. C. 139 cited before me have been perused.
12. Ld. Addl. Public Prosecutor for the State contends that the accused had accepted the bribe of Rs.200/- from complainant Satish Kumar for adjusting the amount of electricity bills for four months against the payment of Rs.1,62,210/- which were allowed to be paid in Contd.....
13CC No. 22/2003 installments. It is further contended by Addl. Public Prosecutor for the State that the accused had returned voluntarily the bribe amount to the complainant in the presence of his superior officers as well as in the presence of panch witness and the conduct of the accused itself shows that he had taken bribe from the complainant . Complainant and panch witness and Raid Officer had proved the allegations against the accused.
13. Ld. Defence counsel contends that as per the complaint/FIR, the complainant after giving the bribe went to IG Enforcement of DVB (PW9) who heard him and told him that he had telephoned at DVB office at Shankar Road and he should go to Sh. Kochar Superintending Engineer and he would hear the complainant but the link evidence is missing as neither the complainant nor the Raid Officer was knowing that the accused would allegedly return the bribe money .
14. It is contended by the defence that the delay of seven days in lodging of FIR of this case remains Contd.....
14CC No. 22/2003 unexplained and after fabricating false story , present FIR has been got registered. It is further contended by the defence that R. K. Kochar (PW4) has made improvement in his evidence by volunteering that prior to the raid accused had admitted his claim and this witness has admitted that the aforesaid volunteer part was not disclosed by him to the police and this witness has not been confronted with his police statement because he has claimed that his statement was not recorded by the police after the raid.
15. It is next contended that since panch witness (PW10) has stated in his evidence as well as in his police statement that the accused was compelled to return Rs. 200/- to the complainant , therefore, no statutory presumption can be raised against the accused. It is also contended by the defence that as per the complainant the GC notes were recovered from the hands of the accused from the Raid Officer and he is contradicted by the Raid Officer who has stated in his evidence that the accused had given the GC notes to the complainant and it was the Contd.....
15CC No. 22/2003 complainant who had given the GC notes to the Raid Officer .
16. It is further contended by the defence that description of GC notes alegedly given in bribe by the complainant does not find mention in the complaint or in the evidence of the complainant and the complainant does not tell the date on which he allegedly gave bribe to the accused.
17. It is pointed out by the defence that there is cutting and addition in the last line of the complaint to show that the alleged bribe was given on 20.2.02 and the presence of the panch witness has been subsequently introduced in the complaint Ex. PW6/A.
18. Lastly, it is contended by the defence that the story of the complainant of giving of the bribe to the accused is an after thought as the complainant does not disclose about it to IG (PW9) and despite IG (PW9) telling the complainant to contact Mr. Kochar (PW4) , the Contd.....
16CC No. 22/2003 complainant does not contact him by taking a false plea that Mr. Kochar was not available and in view of the above referred infirmities in the prosecution case, accused deserves to be acquitted.
Nothing else is urged by either side.
19. The crux of the prosecution case is that on 20.2.02 accused had demanded and accepted Rs.200/- from the complainant (PW6) for adjusting the payment of four months electricity bill of complainant (PW6) in the amount of arrears which was to be paid by the complainant (PW6) in installments.
20. About one or two days prior to 27th February, 2002, Sh. S. S. Kochar (PW4) Superintending Engineer, Enforcement of DVB at Shankar Road office is said to have received a phone call from Sh. Devasish (PW9) Inspector General, Enforcement in DVB and the complainant was told by Sh. Devasish (PW9) to go and meet Sh. S. S. Kochar (PW4) for redressal of his grievance . However, complainant (PW6) chose to go to Anti Contd.....
17CC No. 22/2003 Corruption Branch and got his complaint Ex PW6/A and thereafter, raid was conducted by the raiding team of Anti Corruption Branch which was headed by Inspector Prakash Chand (PW11) and accused is stated to have been caught red handed while returning the bribe amount of Rs.200/- to the complainant.
21. To test the probability of the prosecution case, I would first advert to the complaint Ex. PW6/A and upon its perusal , I find that after narrating his version, complainant Satish Kumar has stated in his complaint that IG (Enforcement) of DVB had telephoned Superintending Engineer of DVB office and the IG had told the complainant to go and meet the Superintending Engineer who would listen to him. Strangely, instead of going and meeting the Superintending Engineer, S. S. Kochar (PW4), complainant (PW6) preferred to come to Anti Corruption Branch after a week and make the complaint Ex. PW6/A in which there is no mention of any assurance being given by anybody that the bribe money given by him to accused would be got returned to the complainant .
Contd.....
18CC No. 22/2003
22. Without anticipation of return of the bribe money, how the raid could be conducted is the moot question which remains unanswered. Complainant (PW6) himself has stated in his evidence that despite Inspector General (PW9) (herein after referred to as IG) telling complainant (PW6) to go to Superintending Engineer (PW4) (herein after referred to as SE) , complainant did not contact SE for about a week by putting forward an excuse that SE was not available. Had it been so, then this fact would have been definitely mentioned in the complaint Ex. PW6/A. The absence of aforesaid fact in the complaint adversely reflects upon the prosecution case.
23. Delay of one week in lodging of the FIR of this case assumes importance in view of the fact that the complaint/FIR Ex. PW6/A does not contain the date when bribe of Rs. 200/- was allegedly given by the complainant (PW6) to the accused . However, towards the end of the complaint Ex. PW6/A, one line appears to be added regarding giving of Rs.200/- on 20th February,2002. The added portion in the complaint Ex. PW6/A reads ''YE DO Contd.....
19CC No. 22/2003 SAU RUPAY MAINE 20.2.2002 KO DIYE THAE'' This portion appears to be differently written and its ink is bolder than the ink of the remaining complaint and it is not clear as to whom the complainant had given Rs.200/- and the last added sentence of the complaint is out of context. Not only this, a note on this complaint Ex. PW6/A has been given at point B in different ink to the effect that this complaint has been written in the presence of panch witness Surjeet Singh and it appears to be signed by said Surjeet Singh in different ink . There was no occasion to append certificate at point B on the complaint Ex. PW6/A that it has been written in the presence of panch witness (PW10) because complaint made is just signed by panch witness.
24. Aforesaid features cast grave doubt about the veracity of the prosecution case from the very beginning . Although, SE (PW4) claims that on the day he received phone call from IG (PW9) , he had called the accused and had told the accused that complainant (PW6) would be coming to him and accused should return Rs.200/- and the Contd.....
20CC No. 22/2003 accused had kept mum , but this part of the evidence is an improvement to which no importance can be attached because this witness (PW4) has admitted in his evidence that he did not state this fact to the police.
25. Another reason for not attaching any importance to the above said improvement made by SE (PW4) is that the panch witness (PW10) from the very beginning has maintained that the accused had told the SE (PW4) that he had not taken any money from the complainant (PW6) and if SE (PW4) tells then accused would give Rs.200/- to the complainant.
26. The evidence regarding the spot proceedings have precedence over what was purportedly said earlier by the accused to SE (PW4). Not only the panch witness (PW10) has stated in his evidence that accused was compelled by SE (PW4) to return Rs.200/- to the complainant (PW6) but even SE (PW4) has stated in his evidence that he was told by IG (PW9) that SE (PW4) should ensure that the money is returned to the Contd.....
21CC No. 22/2003 complainant (PW6) by the accused. In this view of the matter, the improved version of SE (PW4) of accused impliedly admitting his guilty by keeping mum is of no consequence.
27. It is evident from the above narration that due to the directions issued by IG (PW9) on phone to SE (PW4) , accused was compelled to give Rs.200/- to the complainant (PW6), although, as per panch witness (PW10), accused was asserting at the spot that he had not taken any money from the complainant (PW6) and he is giving Rs.200/- to the complainant because SE (PW4) was telling him to do so.
28. Even the Raid Officer (PW11) corroborates the version of panch witness (PW10) about accused stating at the spot that he had not taken any bribe from the complainant but still he was giving Rs.200/- to the complainant. This was obviously under pressure from his senior officer (PW4) . It is quite apparent that in a situation in which the accused was , he had no choice but to give Contd.....
22CC No. 22/2003 Rs.200/- to the complainant (PW6) on the directions of his senior (PW4) .
29. Other suspicious circumstances of this case are that if the complainant (PW6) had allegedly given bribe of Rs. 200/- to the accused then as a prudent person he ought to have noted down the sl. no. of the GC notes of the bribe money and to provide authenticity to his version , he should have mentioned in complaint the sl. Numbers of the GC notes stated to have been given in bribe by him to the accused. The vagueness of the complaint/FIR Ex. PW6/A is evident from the fact that it is not even mentioned therein about the denomination of the GC notes purportedly given by the complainant (PW6) to the accused a week earlier than the raid. If the complainant (PW6) was giving bribe unwillingly to the accused then he should have taken somebody with him who could have witnessed the alleged taking of the bribe by the accused from the complainant (PW6) . Any prudent person would have adopted such a course . There is neither oral nor circumstantial corroboration to the version of the Contd.....
23CC No. 22/2003 complainant (PW6) . Rather aforesaid version of the panch witness (PW10) and Raid officer (PW11) makes the version of the accused of being compelled to give Rs.200/- to the complainant at the spot plausible and it stands materially corroborated from the evidence of official witnesses PW4 and PW9 . Thus, bonafides of complainant (PW6) are suspect.
30. As regards the Investigating officer (PW12) is concerned , I find that his evidence does not advance the prosecution case any further because the evidence regarding accused taking bribe from the complainant (PW6) a week earlier than the earlier has not been found by me to be satisfactory and infact , it lacks credibility and in the peculiar facts of this case, the unexplained delay of seven days goes against the prosecution .
31. The evidence regarding the spot proceedings of the alleged return of bribe money by the accused to the complainant (PW6) is discrepant as complainant (PW6) in his evidence has stated that the Raid officer (PW11) had Contd.....
24CC No. 22/2003 recovered the bribe money from the hands of the accused. This is contrary to the prosecution case of accused returning the bribe money to the complainant (PW6) and of Raid officer (PW11) recovering the same from the complainant (PW6) .
CONCLUSION
32. Since the irresistible conclusion arrived at on the basis of the above discussed evidence is that the accused was pressurised to give Rs. 200/- to the complainant (PW6) at the spot, therefore, the so-called recovery cannot be said to be ''the recovery of the bribe money'' so as to raise statutory presumption u/s 20 of the Prevention of Corruption Act, 1988 against the accused.
33. Viewed from any angle, I am of the considered opinion that the pressurised recovery of Rs.200/- from the accused does not satisfactorily establishes the guilt of the accused in a freak case like present one. I have no hesitation what so ever in holding that the prosecution case lacks reasonable probability and the stand of the accused of pressurised recovery is quite probable. As a Contd.....
25CC No. 22/2003 consequence, I extend benefit of doubt to accused Ganpathy s/o Shri G. Anantkrishna and acquit him of the charges framed against him. His bail bond and surety bond stands cancelled. File be consigned to Record Room.
(Announced in the open court on ) (SUNIL GAUR)
Dt. 4th May, 2007. SPECIAL JUDGE: DELHI Contd.....