Delhi District Court
State vs . Ganesh Kumar Jain on 23 March, 2013
IN THE COURT OF SHRI B.R. KEDIA, SPECIAL JUDGE07
(CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
C.C.NO. : 01/13
Unique Case ID : 02401R0109592011
STATE VS. GANESH KUMAR JAIN
S/o Sh. Mehender Singh Jain,
R/o A27, Kidwai Nagar East,
New Delhi.
FIR NO. : 25/2009
U/S : 7/13 of Prevention of Corruption Act,
1988
P.S. : Anti Corruption Branch, Delhi
Date of Institution 08.03.2011
Judgment reserved on 21.03.2013
Judgment delivered on 23.03.2013
JUDGMENT
1. The precise case of the prosecution is that on dated 04.09.2009 the complainant Brijesh Nandan Jha S/o Vijaykant Jha C.C. No. 01/13 Page No. 1 of 45 came to Anti Corruption Branch and got lodged his Complaint Ex.PW4/A before the then Inspector Dharamvir Singh, Raid Officer/PW13 in the presence of Panch witness PW12/Ravi Shekhar regarding demand of bribe of Rs.2,000/ by the accused G.K. Jain who was posted as UDC in Voter Registration Office, EPIC Centre, Old MCD School Building, Lajpat Nagar, Delhi in consideration for preparing the Election Voter Card of the complainant.
2. The gist of the said complaint is that the complainant had submitted the Application Form for preparation of his Election Voter Card to the accused G.K.Jain at his Office at Lajpat Nagar one month back and when the complainant went to the Office of the accused one week back and asked him about his Election Voter Card, the accused demanded bribe of Rs.2000/ from him for the said purpose. Again one day back when the complainant met accused at his Office, he again demanded Rs.2000/ for preparing the Voter Card of the complainant and thereafter, took the Receipt of the Form from the complainant and asked him to come on next day between 10:00 to 10:30 a.m. at his Office and to pay said amount of Rs.2000/ so that he would get prepared his Voter Card within a week. The complainant has also got recorded the conversation regarding demand of bribe by C.C. No. 01/13 Page No. 2 of 45 the accused from him. Since the complainant was against giving of bribe, on dated 04.09.2009 he went to Anti Corruption Branch and got his complaint lodged before the Inspector Dharamvir Singh, Raid Officer PW13 in presence of Panch witness Ravi Shekhar, PW12.
3. The further case of the prosecution is that on dated 04.09.2009 at about 5:00 p.m.when Raid Officer/Inspector Dharamvir Singh, PW13 was present at PS Anti Corruption Branch, said Complaint Ex.PW4/A was marked to him and complainant Brijesh Nandan Jha met him and thereafter, Raid Officer called Panch witness Ravi Shekhar, PW12 who had also gone through the said Complaint and talked to the complainant. Since the complainant told that he had not brought the bribe amount of Rs.2000/, he was directed by the Raid Officer to bring said amount on next day morning and Panch witness was also directed to come to the Office of Anti Corruption Branch on next day morning and the proceeding of that day i.e. 04.09.2009 was prepared by the Raid Officer which is Ex.PW13/A.
4. The further case of the prosecution is that on 05.09.2009 at about 8:20 a.m. the complainant and Panch witness came to the office of Raid Officer and complainant produced one GC note of Rs.500/ C.C. No. 01/13 Page No. 3 of 45 and 11 GC notes of Rs.100/ each and stated that he could arrange that much amount and stated that he had recorded the conversation between him and the accused and would produce the same later on. The Raid Officer PW13 noted down the serial number of said GC notes in the preraid proceedings Ex.PW12/A and treated the said GC notes with phenolphthalein powder. Thereafter, Raid Officer PW13 gave demonstration to the Panch witness, complainant by getting touched the right hand of the Panch witness with that treated currency notes and wash of the right hand of the Panch witness in the colourless solution of sodium carbonate which turned into pink. Thereafter, said GC notes were handed over to the complainant and Panch witness was instructed to remain close with the complainant and to overhear the conversation between the complainant and the person demanding the bribe amount and to give signal by waiving his hand twice over his head after being satisfied that the bribe has actually been given.
5. That PW13 Raid Officer along with complainant, Panch witness, Inspector Nand Kumar and other members of the Raiding party left Anti Corruption Branch in a private vehicle at about 9:35 a.m. on dated 05.09.2009 and reached at distance of about 100 meters C.C. No. 01/13 Page No. 4 of 45 from the Office of the accused at Lajpat Nagar at about 10:20 a.m. Vehicle was parked there and Inspector Nand Kumar alongwith the Driver remained in the vehicle. Complainant and Panch witness proceeded towards the Office of the accused and the members of the Raiding team followed them and at a distance of about 50 meters from the Office of accused, complainant told that the accused was standing in front of main gate of his Office on the road and thereafter, the complainant along with Panch witness proceeded towards the accused and Raiding team took suitable position.
6. The further case of the prosecution is that the complainant started talking to the accused and they came back towards the parking place and the complainant took bribe amount and gave to the accused who accepted the same in his right hand and started counting with both hands and on receiving the predetermined signal, Raiding team reached at the spot. Thereafter, Raid Officer after disclosing his identity challenged the accused on which he became perplexed and forwarded his right hand along with said GC notes towards Raid Officer. On his directions, Panch witness recovered the said GC notes from the right hand of the accused and compared the serial number of that GC notes with serial number mentioned in pre raid proceedings C.C. No. 01/13 Page No. 5 of 45 Ex.PW12/A and the same tallied. That recovered GC notes were taken into possession vide seizure memo Ex.PW12/B. The wash of right hand of the accused was taken in colorless solution of sodium carbonate which turned into pink and solution was transferred into two empty small clean bottles which were sealed with the seal of DVS and were marked as RHWI & RHWII by pasting slips thereon which were signed by Raid Officer, complainant and Panch witness. The wash of left hand of the accused was taken in colorless solution of sodium carbonate which turned into pink and solution was transferred into two empty small clean bottles which were sealed with the seal of DVS and were marked as LHWI & LHWII by pasting slips thereon which were signed by Raid Officer, complainant and Panch witness. Two specimen seals of DVS were prepared. Said four bottles along with two specimen seals of DVS were taken into possession vide Seizure Memo Ex.PW12/C. Thereafter, on taking personal search of the accused, two prepared Voter I Cards and 9 Receipts of different Applicants including the complainant were recovered from the accused, which were taken into possession vide Seizure Memo Ex.PW11/DA. Raid Officer also drawn up the post raid proceedings which is Ex.PW12/D and prepared Rukka and sent the same through Ct. Manoj Kumar to PS Anti Corruption Branch for registration of the C.C. No. 01/13 Page No. 6 of 45 case and copy of the FIR is Ex.PW2/A.
7. The further case of the prosecution is that the Raid Officer called Inspector Nand Kumar IO at the spot and handed over him the custody of the accused, case property and relevant documents etc. for purpose of Investigation. I.O. took up the Investigation, prepared the Site Plan Ex/PW13/B. IO interrogated the accused and arrested him vide Arrest Memo Ex.PW12/E and conducted personal search vide Memo Ex.PW12/F. IO seized CD containing the conversation between the accused and the complainant vide Seizure Memo Ex.PW4/B. IO seized the Application Form VI of the complainant vide Seizure Memo Ex.PW1/A. IO recorded the statement of complainant and Panch witness and other relevant witnesses. During the course of Investigation, the Biodata of the accused Ex.PW9/A and copy of the relevant documents besides the Sanction Order Ex.PW8/A and FSL Report Ex.PW13/C and Ex.PW13/D were obtained by the IO. IO on recording the statement of the witnesses and after completion of the Investigation, prepared the chargesheet and filed in the court.
8. After compliance with the provision Under Section 207 of Cr. P. C. and after hearing both sides on the point of charge, charge C.C. No. 01/13 Page No. 7 of 45 for offence punishable U/S 7 and 13 (2) r/w 13(1) (d) of Prevention of Corruption Act, 1988 was framed against accused on 28.11.2011 to which the accused pleaded not guilty and claimed trial.
9. Thereafter, in order to bring home the guilt of the accused, the prosecution got examined 13 prosecution witnesses namely Satish Kumar Rawat, a formal witness as PW1, HC Satdev, a formal witness as PW2, Ct. Manoj Kumar, a formal witness as PW3, Brijesh Nandan Jha, complainant as PW4, Satish Kumar Gupta, a formal witness as PW5, Ct. Arun Mathur, a formal witness as PW6, HC Jai Prakash, the then MHC(M), PS Civil Lines, a formal witness as PW7, Major General N.S.Jamwal, the then Deputy Director General, NCC Department, Delhi, Sanctioning Authority for prosecution as against the accused as PW8, Sh.A.K.Malik, Commanding Officer, 3 Delhi Girls Bn., NCC, a formal witness as PW9, Ct. Dinesh Kumar, a formal witness as PW10, Smt.Reeta Lajpal, a formal witness as PW11, Ravi Shekhar, Panch witness as PW12 and the then Inspector Dharamvir Singh, Raid Officer as PW13.
10. After closure of the PE, statement of accused under Section 313 Cr.P.C. was recorded in which the accused denied about any C.C. No. 01/13 Page No. 8 of 45 demand and acceptance of the bribe from the complainant. Accused claimed to be falsely implicated in this case having no concern with the alleged offence.
11. I have heard Final Arguments as addressed by Sh. Yogesh Kumar Verma, Adv. Ld. Counsel for the accused and Sh.Maqsood Ahmed, Ld. Addl. PP for the State and perused the relevant record.
12. It is submitted by Ld. Counsel for the accused that this accused Ganesh Kumar Jain is innocent and has neither demanded nor accepted any bribe from the complainant Brijesh Nandan Jha. It is further added by him that as this accused has been falsely implicated in this case by the complainant due to malafide motive and the deposition of the complainant cannot be treated as reliable. It is further added by Ld. Counsel that even otherwise there is contradiction in the deposition of complainant and the contents of the complaint. It is further added by Ld. Counsel that the demand aspect of bribe as against the accused could not be proved by the prosecution. It is further added by Ld. Counsel that though Anu, friend of the complainant is stated to have accompanied with the complainant in the Raiding Party but said Anu has not been examined C.C. No. 01/13 Page No. 9 of 45 as PW and same falsify the case of the prosecution. It is further added by Ld. Counsel that though PW4/complainant is alleged to have delivered a CD containing the conversation between him and the accused but as said CD was not sent to FSL for examination by the IO, said CD cannot be taken into consideration. It is further added by Ld. Counsel that even PW4/complainant and PW12/Panch witness were declared hostile and were cross examined by Ld. Addl. PP on certain aspects and therefore, their deposition cannot be treated as reliable. It is further added by Ld. Counsel that there are several contradictions in the deposition of various PWs on various aspects which falsify the case of the prosecution. It is further added by Ld. Counsel that PW12/Panch witness has deposed at the instance of police official and is a tutored witness and therefore, his deposition cannot be treated as trustworthy. It is further added by Ld. Counsel that the accused was assigned the duty to maintain Rejection Forms of Voter Card and not issuance of the Voter Card and therefore, the accused was not competent to get prepare and issue Voter Card to the complainant and hence, there was no occasion on the part of this accused to demand any bribe from the complainant in this respect. It is further added by Ld. Counsel that PW13/Raid Officer has not joined any independent public person despite their availability at the C.C. No. 01/13 Page No. 10 of 45 spot, in the Raid proceedings and same falsify the case of the prosecution. It is further added by Ld. Counsel that as PW8 was not competent to accord Sanction as against the accused and has passed the Sanction Order mechanically without proper application of mind and therefore, said Sanction Order Ex.PW8/A is legally Invalid. It is further added by Ld. Counsel that the proceedings were conducted at the Anti Corruption Branch and not at the spot and the same also falsify the case of the prosecution. Thus, Ld. Counsel urged for the acquittal of this accused and referred and relied upon following judgments: 2013 STPL (Web) 208 SC1, 2013 (1) Crimes 92, (SC), 2011 (7) LRC 88, CRL.A 579/2005 DOJ 24.12.2010, 2010 STPL (Web) 243 SC, 2000 (10) SCC 43, 2008 (4) Crimes 137, 2005 (3) JCC 1677, 2005 (1) JCC 230, AIR 1994 (SC) 1538, 1994 (1) CC Cases 509 (HC), 1993 (1) CC Cases 316 (HC), 1980 SCC (Crl.) 121 and AIR 1979 SC 1408.
13. To the contrary, it is submitted by Ld. Addl. PP for the State that the prosecution by examining 13 PWs have clearly established its case as against this accused and therefore, the accused deserves to be convicted for the charged offence. It is further added by Ld. Addl. PP for the State that the prosecution has clearly established its case C.C. No. 01/13 Page No. 11 of 45 regarding demand and acceptance of the bribe as against this accused from the complainant through the deposition of PW4/Brijesh Nandan Jha, complainant, PW12/Ravi Shekhar, Panch witness and PW13/the then Inspector Dharamvir Singh, Raid Officer and there is no reason to disbelieve them. It is further added by Ld. Addl. PP that there is no reason as to why PW4/Brijesh Nandan Jha, complainant, PW12/Ravi Shekhar, Panch witness and PW13/the then Inspector Dharamvir Singh, Raid Officer would falsely implicate the accused specifically when there is no previous enmity as against this accused by them. It is further added by Ld. Addl. PP that PW8 has rightly passed the Sanction Order Ex.PW8/A as against the accused Ganesh Kumar Jain as he was the Head of the Department being Deputy Director General of NCC at the relevant time and accused was permanent employee in his Department and was working in Election Office on diverted duty. Therefore, said PW8 was competent to accord Sanction for prosecution as against the accused and after proper appreciation of material on record, he has passed the Sanction Order which is legally valid. It is also added by Ld. Addl. PP that certain contradictions in the deposition of PWs as pointed out by Ld. Counsel for the accused are merely formal and usual in nature and same cannot be treated as fatal for the case of the prosecution. It is also added by Ld. Addl. PP C.C. No. 01/13 Page No. 12 of 45 that the Judgments as referred and relied upon by Ld. Counsel for the accused, are not applicable in this case. Ld. Addl. PP for the State has added that the prosecution has been successful in establishing its case as against the accused for the charged offence and hence, he deserves to be convicted, accordingly.
14. The first and foremost question having significant bearing on the fate of this case is whether prosecution has proved that valid Sanction has been accorded by the Competent Authority as against the accused Ganesh Kumar Jain as per Section 19 (1) of Prevention of Corruption Act, 1988. During course of argument, it is submitted by Ld. Counsel for the accused that PW8 was not competent to accord Sanction as against the accused and has passed the Sanction Order mechanically without proper application of mind and therefore, said Sanction Order Ex.PW8/A is legally Invalid. To the contrary, it is submitted by Ld. Addl. PP on behalf of the State that PW8 has rightly passed the Sanction Order Ex.PW8/A as against the accused Ganesh Kumar Jain as he was the Head of the Department being Deputy Director General of NCC at the relevant time and accused was permanent employee in his Department and was working in Election Office on diverted duty. Therefore, said PW8 was competent to C.C. No. 01/13 Page No. 13 of 45 accord Sanction for prosecution as against the accused and after proper appreciation of material on record, he has passed the Sanction Order which is legally valid.
15. That in order to prove the Sanction concerning this accused Ganesh Kumar Jain, the prosecution has examined PW8 Sh.N.S.Jamwal, the then Deputy Director General, NCC, Delhi who has categorically deposed that in February, 2010 he was working as Deputy Director General, NCC, Delhi and several documents concerning Ganesh Kumar Jain, an employee of Three Delhi Girls Bn., NCC, who was working on Election duty at Lajpat Nagar, Delhi, were received in his Office and after examining the entire record and finding a prima facie case for corruption as against said Ganesh Kumar Jain, he accorded the Sanction for prosecution as against said Ganesh Kumar Jain on 13.04.2010 which is Ex.PW8/A which bears his signatures at point A. Said PW8 in the cross examination by Ld. Defence Counsel, admitted to be correct that the accused was not marking his attendance or working for the Directorate but added that the accused was on their strength and posted with Directorate, NCC and was on diverted for election duty. He also admitted to be correct that he did not enjoy the power for removing the accused from the C.C. No. 01/13 Page No. 14 of 45 service but added that as the accused was on diverted duty in Election Office under Delhi Government and therefore, he did not enjoy the power of removal but he was authorised to accord the Sanction as he was the Head of the Department being Deputy Director General of NCC at the relevant time and accused was a permanent employee in said Department under him. He categorically denied the suggestion of Ld. Defence Counsel that he was not competent to accord Sanction against the accused. He has further added that he has thoroughly examined the entire material produced before him and the documents perused by him were Complaint, FIR, Memos, Exhibits and copy of Complaint and after complete satisfaction, he has accorded the Sanction. He has categorically denied that a Draft Sanction was put up before him as part of record. Furthermore, from the perusal of Sanction Order Ex.PW8/A, it is also reflected that all the relevant facts concerning the allegation as against the accused Ganesh Kumar Jain have been duly found mentioned therein. Furthermore, from the perusal of the Biodata of the accused Ex.PW9/A, it is clearly reflected that the Disciplinary Authority concerning the accused who was posted as UDC in Three Delhi Girls Bn. NCC was Deputy Director General, NCC and in view of the same, I am of the considered view that said PW8/N.S.Jamwal, the then Deputy Director C.C. No. 01/13 Page No. 15 of 45 General, NCC, Delhi was competent to accord Sanction as against the accused who was employee of the Three Delhi Girls Bn. NCC but working in Election Office in diverted duty and therefore, I do not find any force in the submission of Ld. Counsel for the accused that PW8 was not competent to grant Sanction for prosecution as against the accused.
16. In the case reported as State of Maharashtra and ors V/s Ishvar Piraji Kelpatri & ors 1996 Cri.L.J.1127, where Hon'ble Supreme Court had laid down that if the Authority according Sanction makes statement that while signing the order of Sanction, it had personally scrutinized the file and had arrived at required satisfaction, it is not necessary to look for, that there was application of mind or not or that material on record was examined by the concerned officer or not before according sanction, especially when order prima facie shows that, he had done so.
17. Furthermore, in the case reported as 2004 (13) SCC 487, Shankar Bhai Lalji Bhai Vs. State of Gujrat, it was observed by Hon'ble Supreme Court of India as under: "So far as the question of Sanction is concerned, in C.C. No. 01/13 Page No. 16 of 45 the absence of anything to show that any defect or irregularity therein caused failure of justice, that plea is without substance."
18. In the case reported in 2011 I AD (CRI.) (S.C.) 1, Kootha Perumal Vs. State (through) Inspector of Police, Vigilance & Anti Corruption, it was held in Para 14 by Hon'ble Supreme Court of India as under: "Keeping in view the aforesaid statement of law, it would not be possible to conclude that the sanction order in the present case was not valid. Ex.P2 with the present appeal is the copy of the sanction order. A perusal of the same would show that the sanctioning authority has adverted to all the necessary facts which have been actually proved by the prosecution in the trial. Upon examination of the material facts, the sanctioning authority has certified that it is the authority competent to remove the appellant from the office. It is specifically stated that the statements of the witnesses have been duly examined. Sanction order also C.C. No. 01/13 Page No. 17 of 45 states that the other materials such as copy of the FIR as well as other official documents such as the different mahazars were carefully examined. Upon examination of the statements of the witnesses as also the material on record, the sanctioning authority has duly recorded its satisfaction that the appellant should be prosecuted for the offences, as noticed above. We, therefore, find no merit in the submission of the learned counsel that the sanctioning order to prosecute the appellant was not legal".
19. By taking cue from the aforesaid judgment and applying the same to the facts of the present case, I do not find any force in the submission of Ld. Counsel for the accused to the effect that PW8 was not competent to accord Sanction against the accused and therefore, said Sanction Order Ex.PW8/A is legally Invalid. I am of considered view that the Sanction concerning the accused Ganesh Kumar Jain has been validly granted by PW8 Sh.N.S.Jamwal, the then Deputy Director, General, NCC, Delhi who was competent to do so.
20. During the course of the argument, it is submitted by Ld. C.C. No. 01/13 Page No. 18 of 45 Counsel for the accused that this accused Ganesh Kumar Jain is innocent and has neither demanded nor accepted any bribe from the complainant Brijesh Nandan Jha. It is further added by him that as this accused has been falsely implicated in this case by the complainant due to malafide motive and the deposition of the complainant cannot be treated as reliable. It is further added by Ld. Counsel that even otherwise there is contradiction in the deposition of complainant and the contents of the complaint. It is further added by Ld. Counsel that the demand aspect of bribe as against the accused could not be proved by the prosecution. It is further added by Ld. Counsel that though Anu, friend of the complainant is stated to have accompanied with the complainant in the Raiding Party but said Anu has not been examined as PW and same falsify the case of the prosecution. To the contrary, it is submitted by Ld. Addl. PP for the State that the prosecution has clearly established its case regarding demand and acceptance of the bribe as against this accused from the complainant through the deposition of PW4/Brijesh Nandan Jha, complainant, PW12/Ravi Shekhar, Panch witness and PW13/the then Inspector Dharamvir Singh, Raid Officer and there is no reason to disbelieve them. It is further added by Ld. Addl. PP that there is no reason as to why PW4/Brijesh Nandan Jha, complainant, PW12/Ravi C.C. No. 01/13 Page No. 19 of 45 Shekhar, Panch witness and PW13/the then Inspector Dharamvir Singh, Raid Officer would falsely implicate the accused specifically when there is no previous enmity as against this accused by them.
21. In order to prove that the accused had demanded and accepted the bribe amount from the complainant, the prosecution is found to have examined PW4/Brijesh Nandan Jha, complainant, PW12/Ravi Shekhar, Panch witness and PW13/the then Inspector Dharamvir Singh, Raid Officer. PW12/Ravi Shekhar, Panch witness has clearly deposed before the court that on dated 04.09.2009 he was on duty as a Panch witness in the Anti Corruption Branch and at about 5:00 p.m. he was called by Inspector Dharamvir Singh and introduced him to the complainant Brijesh Nandan Jha who lodged his Complaint Ex.PW4/A which bears his signatures at point B. He further deposed that the complainant told Inspector that he has not brought the bribe amount on that day and would bring the amount on next day morning. Said Inspector also directed him to come in the Office of Anti Corruption Branch on next morning. Thereafter, on 05.09.2009 at about 8:00 a.m. he reached at the Office of Anti Corruption Branch and complainant also reached there. The complainant produced one GC note of Rs.500/ and 11 GC notes of Rs.100/ each before the C.C. No. 01/13 Page No. 20 of 45 Raid Officer. Said PW12 has also narrated about the Pre Raid Proceedings Ex.PW12/A. He further deposed that at about 9:30 a.m. he alongwith the complainant and other members of the Raiding team left the Anti Corruption Branch in a vehicle and parked the vehicle at a distance of Election office of the accused, Lajpat Nagar at about 10:15 a.m. He further deposed that he alongwith the complainant moved towards the Office of the accused and on seeing the accused outside the Office, complainant pointed out towards him and Raiding team took suitable position. He further deposed that the complainant started talking to the accused. As regards the demand and acceptance of the bribe amount, said PW12/Panch witness has deposed as under: "The complainant started talking with the accused and thereafter they proceeded towards our vehicle and on asking of the accused whether the amount of Rs.2000/ has been brought by the complainant and complainant told that he could arrange only Rs.1600/ and has brought the same. On this the accused told the complainant that he was harassing him again and again and has not brought Rs.2000/ and he told him to give the said Rs.1600/ and to pay the balance at the time of receiving of the Voter ICard. Thereafter, the accused C.C. No. 01/13 Page No. 21 of 45 has accepted Rs.1600/ from the complainant. The accused Ganesh Kumar Jain is present in the court today (correctly identified)."
22. Said PW12 further deposed that on his giving pre determined signal, Raid Officer and other members of the raiding party reached the spot and Raid Officer after disclosing his identity challenged the accused on which he became perplexed. He further deposed that on the instructions of the Raid Officer, he recovered said GC notes of Rs.1600/ from the accused and compared the serial number of those GC notes with the serial numbers as mentioned earlier and same found tallied and thereafter, said GC notes were seized vide Memo Ex.PW12/B which bears his signatures at point A.
23. Said PW12 has also deposed about taking of wash of right hand and left hand of the accused which turned into pink colour and transferring of the said washes in the bottles Mark RHWI & II, LHWI & II. He has also deposed that seizure of said bottles and sample seal vide Seizure Memo Ex.PW12/C which bears his signatures at point A. He has also deposed that on taking search of the accused, he recovered two prepared Election ICards and 9 Counter C.C. No. 01/13 Page No. 22 of 45 slips of Voter ICard including one Counter slip of complainant which were taken into possession vide Seizure Memo Ex.PW11/DA which bears his signatures at point A. He also deposed about the drawing the Post Raid Proceedings Ex.PW12/D which bears his signature at point A. He also deposed about the arrest of the accused vide Memo Ex.PW12/E and personal search of accused vide Memo Ex.PW12/F which bears his signature at point A. Said PW12 has duly identified said GC notes as Ex.P1 to P12. Said PW12 on seeing the labels of four sealed bottles mark RHWI & II, LHWI & II deposed that same bear his signature at points B. He has also identified 9 Counterslips and 2 prepared Voter ICard as recovered from the accused as Ex.P18 (colly.). Said PW12/Panch witness in his cross examination of Ld. Defence Counsel denied various suggestions put to him as he has deposed in this respect as under: "It is wrong to suggest that when the accused was apprehended he stated that he had no concern with the said election I Card. It is further wrong to suggest that the accused further stated that he has not been assigned the said area. It is further wrong to suggest that accused did not demand or accepted any money from the complainant. I do not remember the name of the C.C. No. 01/13 Page No. 23 of 45 slip but one slip was of Brijesh Nandan, complainant.......................................................................... It is further wrong to suggest that complainant tried to thrust the money in the hands of accused on which the accused refused to accept the same. It is further wrong to suggest that no talks took place in my presence and I have made deliberate improvements in respect of the talks to implicate him falsely at the instance of officials of AC Branch. It is further wrong to suggest that I had signed all the memos at the instance of the officials of AC Branch. It is wrong to suggest that I am deposing falsely."
24. PW4/Brijesh Nandan Jha, complainant has deposed that he had deposited the Form for obtaining his Voter Card at Lajpat Nagar Office and met accused Ganesh Kumar Jain who stated that he was required to pay money for obtaining his Election Voter Card and as he was not having money, he left mobile number of his friend with the accused. Thereafter, said accused demanded Rs.2000/ from the complainant for preparation of his Voter Card. He further stated that C.C. No. 01/13 Page No. 24 of 45 the accused obtained Receipt of the Form from him and directed him to come at about 10:30 a.m. on 05.09.2009 at his Office. He further deposed that on dated 04.09.2009, he went to Anti Corruption Branch and lodged Complaint Ex.PW4/A which bears his signatures at point A. He further deposed that Inspector Dharamvir Singh called one Panch witness and inquired from him as to whether he was carrying Rs.2000/ on which he told that he was not having Rs.2000/ and thereafter, he asked him to come on next day with money.
25. Said PW4 further deposed that on 05.09.2009 at about 8:15 8:30 a.m. he reached Anti Corruption Branch and met Inspector Dharamvir Singh and delivered one GC note of Rs.500/ and 11 GC notes of Rs.100/ each to him in the presence of Panch witness and his friend. He also deposed about the Pre Raid Proceedings. He also deposed that he along with the Panch witness, Raid Officer and other members of the raiding team left Anti Corruption Branch and reached near the Election Voter Card Office at Lajpat Nagar at about 10:15 a.m. He further deposed that when he along with the Panch witness and his friend Anu were going towards said Election Voter Card Office, the accused was found coming from the side of his Office and Inspector Dharamvir Singh was given the indication that person was C.C. No. 01/13 Page No. 25 of 45 Ganesh Kumar Jain who was demanding money for Election Voter Card. Said PW4 further deposed that he took out Rs.1600/ from his pocket and handed over the same to accused who started counting and while he was doing so, Panch witness gave a predetermined signal on which the Raiding team came to spot and apprehended the accused. He has also deposed regarding recovery of tainted GC notes and taking of the hand wash of the accused which turned into pink colour and transferring the same in sealed bottles. He has also deposed regarding the proceedings at the spot. Said PW4 has also deposed regarding handing over of two CDs to the IO and before CDs were sealed, same was played on computer in Anti Corruption Branch and Report was prepared and Seizure Memo of the CDs is Ex.PW4/B which bears his signatures at point A. Said PW4/complainant has identified the said GC notes as Ex.P1 to P12, four sealed bottles containing washes mark RHWI & II and LHWI & II as Ex.P13 to P16 which bears his signatures at point A, CD as Ex.P17 which bears his signatures at point A.
26. Said PW4 in his cross examination by Ld. Defence Counsel has denied the various suggestions as put to him as he has deposed in this respect as under: C.C. No. 01/13 Page No. 26 of 45 "It is wrong to suggest that I did not talk with accused and I had made a false statement to implicate the accused. It is further wrong to suggest that I never met the accused before the raid and no demand was made from me............................................................................... It is further wrong to suggest that the accused neither demanded nor accepted money from me. It is further wrong to suggest that no money was accepted by the accused.................................................................................. It is further wrong to suggest that accused was immediately brought to the Office of AC Branch and all documents were prepared in the Office of AC Branch. It is further wrong to suggest that nothing was recovered from the possession of the accused."
27. The material part of the deposition of PW12/Panch witness and PW4/complainant also found corroborated from the deposition of PW13 the then Inspector Dharamvir Singh, Raid Officer. PW13 Inspector Dharamvir Singh, Raid Officer is found to have deposed regarding lodging of the complaint Ex.PW4/A by the complainant in C.C. No. 01/13 Page No. 27 of 45 the presence of Panch witness Ravi Shekhar on dated 04.09.2009. He further deposed that complainant told him that he has not brought the bribe amount and he directed him to come along with the amount and also Panch witness to come on next day at about 8:00 a.m.in his Office. The proceedings of said date i.e. 04.09.2009 was prepared by him which is Ex.PW13/A which bears his signatures at point C. He further deposed that on 05.09.2009 at about 8:20 a.m. complainant and Panch witness came to his Office and complainant produced one GC note of Rs.500/ and 11 GC notes of Rs.100/ each and told that he could arrange that much amount and stated that he has recorded the conversation and will produce the same later on. He deposed about the Preraid Proceeding Ex.PW12/A as carried out by him which bears his signatures at point C. Said PW13 further deposed that he alongwith the complainant, Panch witness, Inspector Nand Kumar and other members of raiding team left Anti Corruption Branch at about 9:35 a.m. and parked the vehicle at distance of about 100 meters from the Office of the accused at Lajpat Nagar at about 10:20 a.m. He further deposed that Inspector Nand Kumar remained in the vehicle and when they proceeded towards the Office of the accused, at distance of about 50 meters from the Office, complainant informed him that accused was standing in front of main gate of his Office on C.C. No. 01/13 Page No. 28 of 45 the road. Thereafter, complainant and Panch witness went towards the accused and raiding team took suitable position. He further deposed that complainant and Panch witness reached to the accused and started talking and coming back towards the parking side and stood at distance of about 10 feet from him as he was standing near the fencing of the park. He further deposed that after talk of 12 minutes between complainant and accused, the complainant took out the bribe amount and gave the same to the accused who accepted the same through his right hand and then Panch witness gave predetermined signal. Thereafter, he along with the Raiding Team surrounded the accused who was found counting said GC notes with his both hands. He further deposed that he disclosed his identity and challenged the accused on which he became perplexed and forwarded his right hand along with GC notes towards him. On his instruction Panch witness recovered the bribe amount from the accused and on checking, the numbers of the recovered GC notes found tallied with the numbers as noted in preraid report. He also deposed that GC notes were seized vide Seizure Memo Ex.PW12/B bearing his signature at point B. He also deposed about the postraid proceeding Ex.PW12/D bearing his signature at point B and seizure of the four bottles containing right hand wash and left hand wash of the accused and sample seals vide C.C. No. 01/13 Page No. 29 of 45 Seizure Memo Ex.PW12/C bearing his signatures at point B. He has also deposed that on taking personal search of the accused, two prepared Voter Cards and 9 Receipts of different Applicants including the complainant were recovered from the accused which are Ex.P18 (colly.) and were taken into possession vide Seizure Memo Ex.PW11/DA bearing his signatures at point B. He also deposed that he called Inspector Nand Kumar/IO at the spot and handed over him the accused, case property, Memos etc. He also deposed that as Inspector Nand Kumar/IO had already expired, he identified his signatures and handwriting. He also deposed that Seizure Memo of the Audio CD Ex.PW4/B, Seizure Memo of Application Form No.6 of complainant Ex.PW1/A, Arrest Memo of accused Ex.PW12/E, Personal Search Memo of accused Ex.PW12/F, bear signatures of Inspector Nand Kumar at point B. He has clearly identified the said recovered GC notes as Ex.P1 to P12, four sealed bottles mark RHW I & II and LHWI & II containing right hand wash and left hand wash of the accused as Ex.P13 to P16 and CD as Ex.P17. Said PW13 in his cross examination by Ld. Defence Counsel has clearly denied various suggestions as put to him which are as under: "It is wrong to suggest that the tainted GC notes were recovered from the ground. It is further wrong to suggest C.C. No. 01/13 Page No. 30 of 45 that complainant had forcibly tried to thrust the tainted GC notes upon the accused. It is further wrong to suggest that said Slips were not recovered from the possession of the accused.......................................................................................... It is further wrong to suggest that accused was immediately brought to the Office of AC Branch and all documents were prepared in the Office of AC Branch ....................................................................................... It is wrong to suggest that no money was recovered from the hands of the accused. It is further wrong to suggest that no hand washes were taken and no proceedings were conducted at the spot. It is further wrong to suggest that the complainant was bearing the grudge against the accused and wanted to falsely implicate the accused."
28. From the perusal of the deposition of PW4/complainant, PW12/Panch witness and PW13/Raid Officer, it is clearly reflected that the Raid Officer, PW13 the then Inspector Dharamvir Singh has drawn the Post Raid Proceedings Ex.PW12/D which found bear the signature of the PW4/complainant at point C and that of PW12/Panch C.C. No. 01/13 Page No. 31 of 45 witness at point A and that of the PW13/Raid Officer at point B.
29. I am of the considered view that said Post Raid Proceedings Ex.PW12/D being in the nature of Panchnama which is duly signed by the complainant and Panch witness is duly admissible and reference can be made to the case of Santa Singh vs. State of Punjab AIR 1956 Supreme Court 526 wherein it was held that mere presence of the police officer when a statement is made does not by itself render such a statement inadmissible. So long as a panchnama is a mere record of the things heard and seen by panchas and does not constitute a statement communicated to a police officer in the course of investigation by him and it would not fall within the mischief of section 162 of the Code.
30. From the perusal of the said Post Raid Proceedings Ex.PW12/D, it is clearly reflected that the accused Ganesh Kumar Jain had accepted the part bribe amount of Rs.1600/ from the complainant by his right hand and started counting with his both hands and after being challenged by the Raid Officer became perplexed and forwarded his right hand containing said GC notes i.e., one GC note of Rs.500/ and 11 GC notes of Rs.100/ each which C.C. No. 01/13 Page No. 32 of 45 were recovered by the panchwitness from the right hand of the accused and the serial number of those GC notes found tallied with the serial number as mentioned in the Pre Raid Proceedings Ex.PW12/A and said recovered GC notes were seized vide Seizure Memo Ex.PW12/B.
31. It is also revealed from the record that right hand wash and left hand wash of the accused with colourless solution of sodium carbonate were taken and the same turned into pink colour and said wash vide Ex.RHWI and LHWI gave positive test for the presence of phenolphthalein and sodium carbonate as per FSL Report Ex.PW13/C which establish that the said treated 12 GC notes were handled and accepted by the accused and same were recovered from him.
32. In view of the above material as available on record, I am of the considered view that the factum regarding the initial demand of bribe of Rs.2000/ and acceptance of part bribe amount of Rs.1600/ by the accused from the complainant have been found established from the deposition of PW4/Brijesh Nandan Jha, complainant, PW12/Ravi Shekhar, Panch witness, PW13 Inspector Dharamvir C.C. No. 01/13 Page No. 33 of 45 Singh, Raid Officer coupled with the contents of Complaint Ex.PW4/A, Seizure Memo of the GC notes Ex.PW12/B, Seizure Memo of four bottles marked as Ex.RHWI&II, LHWI & II and sample seal vide Ex.PW12/C, Post Raid Proceedings Ex.PW12/D, FSL Report Ex.PW13/C.
33. In view of the aforesaid material on record, I do not find any force in the submission of Ld. Counsel for the accused that the accused has been falsely implicated in this case by the complainant and to the effect that the demand aspect of bribe as against the accused could not be proved by the prosecution. In view of the aforesaid material as available on the record including the substantive deposition of PW4/complainant and PW12/Panch witness, the mere fact that Anu, friend of the complainant who has not been examined as PW cannot falsify the case of the prosecution.
34. During the course of arguments, it is submitted by Ld. Counsel for the accused that even PW4/complainant and PW12/Panch witness were declared hostile and were cross examined by Ld. Addl. PP on certain aspects and therefore, their deposition cannot be treated reliable. I do not find any force in the submission of Ld. Counsel for C.C. No. 01/13 Page No. 34 of 45 the accused in this respect as in the Judgment reported as AIR 1991 SC 1853 Khujji @ Surender Tiwari vs. State of M.P., it was observed as under: Para 6: ".................................... Counsel for the State is right when he submits that the evidence of a witness, declared hostile, is not wholly effaced from the record and that part of the evidence which is otherwise acceptable can be acted upon. It seems to be well settled by the decisions of this court "Bhagwan Singh vs. State of Haryana (1976) 2 SCR 921 : (AIR 1976 SC 202): Rabinder Kumar Dey vs. State of Orissa, (1976) 4 SCC 233 :(AIR 1977 SC 170) and Syed Akbar v. State of Karnataka, (1980) 1 SCR 95: (AIR 1979 SC 1848) that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. In the present case the evidence of the aforesaid two eye witnesses was challenged by the C.C. No. 01/13 Page No. 35 of 45 prosecution in crossexamination because they refused to name the accused in the dock as the assailants of the deceased. We are in agreement with the submission of the learned counsel for the State that the trial Court made."
35. During the course of arguments, it is submitted by Ld. Counsel for the accused that the accused was assigned the duty to maintain Rejection Forms of Voter Card and not issuance of the Voter Card and therefore, the accused was not competent to get prepare and issue Voter Card to the complainant and hence, there was no occasion on the part of this accused to demand any bribe from the complainant in this respect.
From the perusal of the record, it is reflected that PW4/complainant had deposed that he had deposited the Form for obtaining his Voter Card in the Election Office at Lajpat Nagar. He has further deposed that when he deposited the Form and met accused, he told him that he was required to pay money to get the Voter Card. He also deposed that later on, accused demanded Rs. 2000/ for said purpose. Furthermore, from the perusal of the Complaint Ex.PW4/A, it is also reflected that the accused had C.C. No. 01/13 Page No. 36 of 45 demanded bribe of Rs.2000/ from the complainant for getting issuance of the Voter Card of the complainant. Furthermore, the demand of bribe of Rs.2000/ by the accused from the complainant on dated 05.09.2009 is also found corroborated from the deposition of PW12/Panch witness.
36. Besides this, law is well settled that it does not matter whether the public servant was competent to do the work or not and reference can be placed in the case reported as Chaturdas Bhagwandas Patel Vs. State of Gujrat, 1976(3) SCC 46 as referred in State of Andhra Pradesh Vs. C. Uma Maheshwar Rao and Anr. 2004, V AD (SC) 176, wherein it has been held by Hon'ble Supreme Court of India that the question whether a person has an authority to do the act for which bribe is accepted, is of no consequence. In the case reported as Gopal Singh Vs. CBI, ILR (2005) II Delhi 35, It was observed by the Hon'ble Delhi High Court in Para 22 as under: "It has to be added that in cases under PC Act, the prosecution is under no obligation to prove that a public servant demanding bribe was in a position to help the person from whom the bribe was being demanded. The prosecution succeed the moment it is shown that a public servant had accepted some money from C.C. No. 01/13 Page No. 37 of 45 someone which was not legal remuneration. The presumption U/S 20 of the Act comes into play shifting the burden upon the public servant to explain as to why he had received the money. A public servant may misguide, mislead or befool his victim to pay him illegal gratification knowing fully well that he is not in a position to help him and as such it can be no defence for him to say that since he was not in a position to help the complainant/victim the money received by him does not amount to illegal gratification."
37. During the course of arguments, it is submitted by Ld. Counsel for the accused that PW13/Raid Officer had not joined any independent public person despite their availability at the spot, in the Raid Proceedings and the same falsify the case of the prosecution. I do not find any force in the said submission of Ld. Defence Counsel in view of the fact that since an independent witness i.e. PW12/Ravi Shekhar, Panch witness had already been joined in the proceedings by the PW13/Raid Officer, nonjoining of any other person available at the spot cannot be over emphasized. My said view is also found supported from the judgment reported as 2011 V AD (DELHI) 500, Anna Wankhade Vs. Central Bureau of Investigation (Through State), wherein it was held in Para 21 as under: C.C. No. 01/13 Page No. 38 of 45 "21. There is no dispute with regard to the proposition regarding desirability of association of independent witnesses by the police so as to lend more credence and authenticity to the case, but there is also no dispute that nonassociation of the independent witnesses per se for any reason whatsoever was in itself not enough to discard the prosecution witnesses or throw away the case as a whole. In the present case, CBI associated two independent witnesses on the written requisition made to the office of NDMC. Since the prosecution/CBI already had two independent witnesses, who had been informed and apprised about the technicalities involved in the procedure during the trap proceedings, it was not necessary for the IO to have joined other public witnesses at the time of apprehension. May be to avoid the risk of such a raw public person getting won over or being unable to understand the proceedings at the last moment of raid, that the IOs usually avoid associating public witnesses at that stage in such type of cases."
38. During the course of arguments, it is submitted by Ld. Counsel for the accused that there are several contradictions in the C.C. No. 01/13 Page No. 39 of 45 deposition of PWs and same falsify the case of prosecution and pointed out the following contradictions: (A) PW4/complainant deposed that Inspector Dharamvir Singh recovered the tainted GC notes from the accused whereas PW13/Raid Officer deposed that Panch witness has recovered the tainted GC notes from the accused.
(B) PW4/complainant deposed that his friend Anu had come along with him to AC Branch but PW13/Raid Officer had stated that no such Anu had come along with complainant to AC Branch. (C) PW12/Panch witness deposed that hand wash of the accused was taken at AC Branch but PW13/Raid Officer deposed that the Raid Proceedings were conducted at the spot.
39. I do not find any force in the aforesaid submission of Ld. Counsel for the accused in view of the fact that said contradictions appear to be on formal aspects and cannot be treated as unnatural because of the time gap between the period of incident and the deposition of the PWs before the court. My said view is also found supported from the law laid down by the Hon'ble Supreme Court regarding contradictions in case of Bharuda Broginbhai Harjibhai V/s State of Gujrat AIR 1983 SC 753 wherein it was held that C.C. No. 01/13 Page No. 40 of 45 discrepancies which do not go to the root of the matter and shake the basic version of the prosecution should not be attached undue importance.
40. During the course of arguments, it is submitted by Ld. Counsel for the accused that though PW4/complainant is alleged to have delivered the CD containing the conversation between him and the accused but as said CD was not sent to FSL for examination by the IO, said CD cannot be taken into consideration. From the perusal of the deposition of PW4/complainant along with Seizure Memo of CD Ex.PW4/B, it is reflected that the complainant has delivered CD Mark A1 and copy of said CD Mark A2 to the IO which were seized vide Seizure Memo Ex.PW4/B and CD Mark A1 was sent to FSL but said FSL Report Ex.PW13/D on the result part interalia state that "there are number of inappropriate start/stop characteristics along with gap in the audio recording". Furthermore, the alleged transcript of the CD has not been found to be proved and therefore, I am of the considered view that said CD cannot be taken into consideration.
41. I also do not find any force in the submission of Ld. C.C. No. 01/13 Page No. 41 of 45 Counsel for the accused that alleged recovery of the treated GC notes as against this accused is not sufficient to convict the accused for the charged offence. Once the accused is found to have accepted the bribe amount, it is for him to explain as to in which capacity he has accepted the same.
42. In the case of Dhanvantrai Balwantrai Desai V/s State of Maharashtra, AIR 1964 Supreme Court 575 it was held as under: "Therefore, the court has no choice in the matter, once it is established that the accused person has received a sum of money which was not due to him as a legal remuneration. Of course, it is open to that person to show that though that money was not due to him as legal remuneration, it was legally due to him in some other manner or that he had received it under a transaction or an arrangement which was lawful. The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occurs in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a mere explanation which is merely C.C. No. 01/13 Page No. 42 of 45 plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted."
43. It is also useful to refer to the decision of Hon'ble Supreme Court in case of M.Narsinga Rao V/s State of A.P. 2001 (1) SCC 691 rendered by Three Hon'ble Judges of Supreme Court. In that case accused demanded a bribe of Rs. 500/ from a milk transporting contractor for recommending the payment of an amount due to the contractor. The accused was caught red handed while accepting the bribe amount. Accused took the plea that currency notes were stuffed into his pocket. During trial complainant and panch witness did not support the prosecution case and it was argued before Hon'ble High Court that it is not possible to draw any presumption against the delinquent public servant in the absence of direct evidence to show that the public servant demand bribe. The Hon'ble High Court held as under: "It is true that there is no direct evidence in this case that the accused demanded and accepted the money. But the rest of the evidence and the C.C. No. 01/13 Page No. 43 of 45 circumstances are sufficient to establish that the accused had accepted the amount and that gives rise to a presumption under Section 20 of the Prevention of Corruption Act that he accepted the same as illegal gratification, particularly so, when the defence theory put forth is not accepted."
44. It is also useful to refer to the case of B. Noha V/s State of Kerela & Another 2006 VI AD ( Criminal ) 465 ( SC ) where it was held as under: "that when it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive.
It has only to be deducted from the facts and circumstances obtained in the particular case."
45. Once the bribe amount is recovered from the accused it is for the accused to explain as to how the bribe amount landed in his person. In the present case, the accused Ganesh Kumar Jain has not given any justifiable explanation as to how bribe amount of Rs.1600/ landed in his right hand from which it was recovered. The accused in his statement U/S 313 Cr.P.C. has not given any satisfactory explanation in this respect.
C.C. No. 01/13 Page No. 44 of 45
46. In view of the aforesaid materials as available on the record, I am of the considered view that the presumption as contemplated U/S 20 of the Prevention of Corruption Act,1988 could not be rebutted by the accused and the judgments as referred and relied by Ld. Counsel for the accused can be of no help for the accused being not applicable in view of the above referred clinching material available on record.
47. In view of the aforesaid discussion, I have no hesitation to safely conclude that the prosecution has been successful in establishing its case as against this accused Ganesh Kumar Jain for the charged offence and hence the accused is held guilty and convicted for offence punishable U/S 7 and U/S 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988.
Let this accused be heard separately on the point of sentence.
Announced in the open court on this 23rd day of March, 2013 (B.R. Kedia) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC, Delhi C.C. No. 01/13 Page No. 45 of 45