Delhi District Court
State vs . Jasvir Singh on 29 July, 2013
IN THE COURT OF SHRI B.R. KEDIA, SPECIAL JUDGE07
(CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
C.C.NO. : 41/12
Unique Case ID : 02401R0370692012
STATE VS. JASVIR SINGH
S/o Sh. Rohtas Singh
R/o Village & P.O, Titoli,
District Rohtak, Haryana.
FIR NO. : 06/2011
U/S : 7/13 of Prevention of Corruption Act,
1988
P.S. : Anti Corruption Branch, Delhi
Date of Institution 09.08.2012
Judgment reserved on 27.07.2013
Judgment delivered on 29.07.2013
JUDGMENT
1. The precise case of the prosecution is that on dated 27.7.2011 the complainant Rajinder Aggarwal S/o Sh. Devi Ram C.C. No. 41/12 Page No. 1 of 39 came to Anti Corruption Branch and got lodged his Complaint Ex.PW5/A which was marked to the Inspector B.K. Singh, Raid Officer/PW17 regarding initial demand of bribe of Rs.10,000/ by the accused Jasvir Singh who was posted as Constable in PS Bharat Nagar, Delhi in consideration for not demolishing the construction of the House of the complainant.
2. The gist of the said complaint is that the complainant was raising construction of House on Plot No.608609, Bunkar Colony, Ashok Vihar since April, 2011 for which the accused who was posted as Constable in PS Bharat Nagar, had been demanding bribe of Rs.10,000/ from the complainant otherwise he would get demolished the said construction. On that day i.e. on 27.7.2011 also the accused had demanded the said bribe on which complainant assured him to meet him in the evening. But as the complainant was against giving of bribe, he went to Anti Corruption Branch and got his complaint lodged which was marked to the Inspector B.K.Singh, Raid Officer PW17.
3. The further case of the prosecution is that on dated 27.7.2011 at about 2:00 p.m. the Raid Officer received the Complaint C.C. No. 41/12 Page No. 2 of 39 Ex.PW5/A. Thereafter, the complainant met him and produced 10 GC notes of Rs.500/ each before the Raid Officer in presence of Panch witness Vinay Singh. The Raid Officer PW17 noted down the serial number of said GC notes in the PreRaid Proceedings Ex.PW5/B and treated the said GC notes with phenolphthalein powder. Thereafter, Raid Officer PW17 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.
4. On that day at about 3:15 p.m. PW17 Raid Officer along with complainant, Panch witness, Inspector Nand Kumar (since deceased) and other members of the Raiding party left Anti Corruption Branch in two Government vehicles and reached Bunkar Colony, PS Bharat Nagar at about 4:00 p.m. and vehicles were parked C.C. No. 41/12 Page No. 3 of 39 at a distance from the Plot of the complainant. Thereafter, the Panch witness and the complainant proceeded towards the Plot of the complainant and Raiding team took suitable position. Inspector Manoj Kumar along with Driver remained in the said vehicles.
5. The further case of the prosecution is that at about 4:15 p.m. Panch witness gave predetermined signal on which the Raiding team rushed to the spot where Panch witness stated that the accused Jasvir Singh who was in civil dress had accepted bribe of Rs.5000/ from the complainant and kept the same in his right hand. Thereafter, as accused tried to run away, he was apprehended by the Raiding team near the spot. On his directions, Panch witness recovered the 10 GC notes of Rs.500/ each from the right hand of the accused and compared the serial number of that GC notes with serial number mentioned in Pre Raid Proceedings Ex.PW5/B and the same tallied. That recovered GC notes were taken into possession vide seizure memo Ex.PW5/C. 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 BK and were marked as RHWI & RHW II by pasting slips thereon which were signed by Raid Officer, C.C. No. 41/12 Page No. 4 of 39 complainant and Panch witness. Two specimen seals of BK were prepared. Said two bottles along with two specimen seals of BK were taken into possession vide Seizure Memo Ex.PW5/D. Raid Officer also drawn up the post raid proceedings which is Ex.PW5/E and prepared Rukka Ex.PW17/A and sent the same through Ct. Kuldeep to PS Anti Corruption Branch for registration of the case and copy of the FIR is Ex.PW12/A.
6. 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.PW5/H. IO interrogated the accused and arrested him vide Arrest Memo Ex.PW5/F and conducted personal search vide Memo Ex.PW5/G. Accused was medically examined and thereafter, put up in the lock up and case property was deposited in malkhana of PS Civil Line. During course of investigation,relevant exhibits were sent to FSL, Rohini and subsequently, FSL Report Ex.PW17/B was obtained. During course of Investigation, IO obtained Biodata of the accused. During course of investigation, IO recorded the statement of complainant and Panch witness and other relevant witnesses. IO on C.C. No. 41/12 Page No. 5 of 39 recording the statement of the witnesses and after completion of the Investigation, prepared the chargesheet and filed in the court.
7. After compliance with the provision Under Section 207 of Cr. P. C. and after hearing both sides on the point of charge, charge 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 27.11.2012 to which the accused pleaded not guilty and claimed trial.
8. Thereafter, in order to bring home the guilt of the accused, the prosecution got examined 17 prosecution witnesses namely ASI Nirmala Devi, a formal witness as PW1, ACP Dharamvir Singh, a formal witness as PW2, HC Dinesh, the then MHC(R) PS Bharat Nagar, a formal witness as PW3, Sh.R.K.Singh, Nodal Officer, Bharti Airtel Ltd., a formal witness as PW4, Vinay Singh, Panch witness as PW5, Rakesh Sharma, a formal witness as PW6, Mahinder Kumar, a formal witness as PW7, Sri Kishan, a formal witness as PW8, Sh. M.N.Vijayan, Nodal Officer, Tata Teleservice Ltd., a formal witness as PW9, Romil Baniya, the then Addl. DCP, North West District, Sanctioning Authority as against the accused as PW10, HC Ram Kumar, the then MHC(M), PS Civil Lines, a formal witness as PW11, C.C. No. 41/12 Page No. 6 of 39 HC Suraj Pal Singh, the then Duty Officer, PS AC Branch, a formal witness as PW12, Ct. Krishan Kumar, who has deposited the exhibits in FSL Rohini, a formal witness as PW13, Rajinder Kumar Aggarwal, complainant as PW14, Ct. Kuldeep Singh, a formal witness as PW15, ASI Sudarshan, a formal witness as PW16 and Inspector B.K.Singh, Raid Officer as PW17.
9. After closure of the PE, statement of accused under Section 313 Cr.P.C. was recorded in which the accused denied about any demand and acceptance of the bribe from the complainant. Accused claimed to be falsely implicated in this case by the complainant as the complainant was having grudge against him as he had lodged complaint on dated 6.4.2011 regarding unauthorized construction against the complainant in pursuance of which the building of the complainant was demolished by MCD on 11.7.2011. He further added that the complainant had placed building material on the road which was creating obstruction and the residents of the locality had lodged complaint for which the accused telephoned the complainant several times to remove the said building material but the complainant did not pay any heed to the same and has lodged the false complaint against him. Thereafter, the accused in support of his defence has got C.C. No. 41/12 Page No. 7 of 39 examined three DWs namely Ct.Reetu as DW1, Narender Kumar as DW2 and Sumit Anand as DW3.
10. 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.
11. It is submitted by Ld. Counsel for the accused that this accused is innocent and has been falsely implicated by the complainant who is a Builder as he was having grudge against the accused because of the fact that the accused was posted as Beat Constable of the area where the complainant was raising unauthorized construction at Plot No.608609, Bunkar Colony, Ashok Vihar and said Complaint was forwarded vide Entry No.1549 dated 6.4.2011 to the Office of Executive Engineer, Rohini and copy of the Receipt of said Complaint in the Office of Executive Engineer, MCD, Rohini Zone is Ex.DW1/C, on the basis of which Notice dated 29.4.2011 Ex.DW2/A and Ex.DW2/B were issued and another Show Cause Notice dated 9.5.2011, copy of which is Ex.DW2/C was issued and Demolition Order was passed on dated 9.5.2011, copy of which is Ex.DW2/D and ultimately, Demolition action was carried out by the C.C. No. 41/12 Page No. 8 of 39 MCD on the said property of the complainant on dated 11.7.2011 vide Office Noting at point 'X' on Ex.DW2/E. So as the unauthorized construction raised by the complainant on the said property was ultimately demolished on dated 11.7.2011, on the basis of the Complaint as lodged by the accused on 6.4.2011 and as complainant had entertained grudge against the accused and therefore, he had falsely implicated the accused in the present case. It is further added by Ld. Counsel that when the accused had already lodged Complaint on dated 6.4.2011 regarding unauthorized construction as carried out by the complainant at Plot No.608609, Bunkar Colony, Ashok Vihar, Delhi, on the basis of which the MCD had demolished the unauthorized construction of the complainant on dated 11.7.2011, there was no reason on the part of the accused to demand any bribe from the complainant for raising further unauthorized construction at the said property. It is further added by Ld. Counsel that the aforesaid facts regarding lodging of the Complaint on dated 6.4.2011 by the accused regarding the unauthorized construction being carried out at the property of the complainant and thereafter, the issuance of the Show Cause Notice by the MCD, Rohini Zone against the complainant and ultimately, passing of the Demolition Order dated 9.5.2011 by MCD, copy of which is Ex.DW2/D and carrying out the C.C. No. 41/12 Page No. 9 of 39 demolition action by MCD on the said property of the complainant on dated 11.7.2011 vide Office Noting Ex.DW2/A are clearly found established from the deposition of DW1 Ct.Reetu, DW2 Narender Kumar coupled with the relevant documents as exhibited through them. It is further added by Ld. Counsel that after demolition by the MCD of the unauthorized construction as raised by the complainant, on the basis of the complaint lodged by the accused, the complainant on entertaining grudge against the officials of Delhi Police and MCD has stated to see them and said facts are found supported from the deposition of DW3 Sumit Anand. It is further added by Ld. Counsel that as the house of the complainant is situated in the middle of the Gali and there was an electric pole in front of his house and there was a big tree in between the road in front of the house of the complainant and the building materials were lying on the road in front of the house of the complainant, which was causing obstruction in the movement of the residents of the locality and therefore, on their request, the accused being the Beat Constable of the Area had telephoned the complainant many times to remove said building materials from the road side but he did not pay any heed to the request of the accused and has lodged a false complaint against the accused and said facts are also found supported from the deposition of DW3 Sumit Anand. It is C.C. No. 41/12 Page No. 10 of 39 further added by Ld. Counsel that the complainant who has been examined as PW14 in his cross examination has admitted that he was carrying out the construction at the aforesaid property without obtaining any Sanction Plan from the MCD, despite the fact that Sanction Plan was required for raising said construction and therefore, the MCD has rightly carried out the demolition on the property of the complainant on dated 11.7.2011 and said facts have been admitted even by the complainant in his cross examination in this respect. It is further added by Ld. Counsel that the accused has neither demanded nor accepted any bribe from the complainant for raising unauthorized construction by the complainant specifically when the MCD has already demolished the unauthorized construction carried out by the complainant, on the basis of the Complaint as lodged by the accused. It is further added by Ld. Counsel that even PW5 Vinay Singh/Panch witness has not deposed anything regarding the demand of the bribe as against the accused. It is further added by Ld. Counsel that as the complainant was having grudge as against the accused and has falsely implicated the accused in the present case, his deposition which could not be corroborated from the deposition of any other Independent witness and therefore, the same cannot be treated as trustworthy and reliable. It is further added by Ld. Counsel that no Raid Proceedings C.C. No. 41/12 Page No. 11 of 39 were prepared at the spot but were manipulated subsequently at the Anti Corruption Branch and said facts are also found supported even from the cross examination of the complainant. It is further added by Ld. Counsel that even the factum of recovery of the tainted GC notes could not proved due to contradictory deposition of PW5/Panch witness, PW14/complainant and PW17/Raid Officer and same also falsify the case of the prosecution. It is further added by Ld. Counsel that even PW5/Panch witness is a tutored witness and has deposed at the instance of the Police and he has clearly admitted in his cross examination that he has gone through his Police Statement before his deposition in the Court and therefore, his deposition cannot be treated as trustworthy and reliable. It is further added by Ld. Counsel that this accused has been duly discharging his official duties as Beat Constable of the Area in PS Bharat Nagar and therefore, rightly lodged the complaint of the unauthorized construction carried out by the complainant, on the basis of which MCD has demolished the unauthorized construction of the complainant on dated 11.7.2011, for which the complainant entertained grudge against the accused and falsely implicated him in this case. It is further added by Ld. Counsel that the Sanctioning Authority has granted the Sanction as against the accused mechanically and without proper application of mind and C.C. No. 41/12 Page No. 12 of 39 hence, urged for acquittal of this accused. Ld. Counsel referred and relied upon following Judgments in support of his said contentions : (1) (1979) 4 SCC 526 "Panalal Damodar Rathi Vs. State of Maharashtra"
(2) 2002 Cri. L. J. 2787 "Subash Parbat Sonvane Vs. State of Gujarat"
(3) 1996 Cri. L. J. 2273 "M.S. Ramanathan Vs. The State represented by Inspector of CBI Madras"
(4) 2010(3) RCR (Criminal) "Eknath Ganpath Aher & Ors. Vs. State of Maharashtra & Ors.
(5) AIR 1976 Supreme Court 294 "Sat Paul Vs. Delhi Administration"
(6) 2003 Cri. L. J. 3857 "State of Rajasthan Vs. Bhawani and Anr."
(7) 2009(2) RCR Criminal "State of Rajasthan Vs. Mohan Lal." (8) Crl. Appeal No.963/2008 "Prem Raj Meena Vs. CBI." (9) Crl. Appeal No.413/2010 "Braham Singh Bhati Vs. State." (10) 2006 (1) Supreme Court Cases 401 "T.Subramanian Vs. State of Tamil Nadu."
(11) 2008 (4) Crimes 137 (Del.) "Pyare Lal Vs. State." C.C. No. 41/12 Page No. 13 of 39 (12) 2012 (1) CC Cases (HC) 197 "Bahadur Singh Vs. State of Punjab."
(13) AIR 1985 Supreme Court 79 "Khilli Ram Vs. State of Rajasthan."
(14) 1995 Cri. L.J. 3623 "State of Gujarat through CBI Vs. Kumudchandra Pranjivan Shah."
12. To the contrary, it is submitted by Ld. Addl. PP for the State that the prosecution by examining 17 PWs have 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 PW5Vinay Singh/Panch witness, PW14 Rajinder Kumar Aggarwal/complainant and PW17 Inspector B.K.Singh/Raid Officer have duly supported the case of the prosecution. It is further added by Ld. Addl. PP that there is no reason to disbelieve the deposition of PW5 Vinay Singh/Panch witness, PW14 Rajinder Kumar Aggarwal/complainant and PW17 Inspector B.K.Singh/Raid Officer as they had no earlier enmity as against the accused. It is further added by Ld. Addl. PP for the State that though the accused was demanding Rs.10,000/ as bribe but complainant could arrange only Rs.5000/ and therefore, same amount has been tendered by him C.C. No. 41/12 Page No. 14 of 39 to the accused as bribe. It is further added by Ld. Addl. PP for the State that minor contradictions in the deposition of PWs are natural and formal in nature and cannot be a ground for throwing out the case of the prosecution. It is thus added by Ld. Addl. PP that the Sanctioning Authority has rightly passed the Sanction Order after perusal of the relevant materials available on the record and said Sanction Order is legally valid and there is no Infirmity in the same. It is thus added by Ld. Addl. PP 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.
13. 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 this accused 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 Sanction Order as against this accused has been passed by Sanctioning Authority mechanically without proper application of mind on the material on record and therefore, said Sanction Order is legally Invalid and accused deserves to be acquitted. To the contrary, it is submitted by Ld. Addl. PP on behalf of the State C.C. No. 41/12 Page No. 15 of 39 that the Sanctioning Authority, has passed the valid Sanction as against this accused after due appreciation of the relevant materials and therefore, there is no infirmity in the said Sanction Order.
14. That in order to prove the Sanction concerning this accused, the prosecution has examined PW10 Romil Baaniya, the then Addl. Deputy Commissioner of Police, North West District, Delhi, who has categorically deposed that on 20.10.2011 while he was posted as Addl. Deputy Commissioner of Police, North West District, Delhi, one file containing statement of PWs, Copy of Raid Report, Copy of FIR, Seizure Memo, FSL Report relating to sanction for prosecution of Ct. Jasvir Singh was placed before him and on going through the said material and after getting himself satisfied and applying his mind he accorded the sanction U/S 19 (1) (C) of Prevention of Corruption Act, 1988 for the prosecution of accused Ct.Jasvir Singh who was posted at PS Bharat Nagar as he was competent to remove him from his service and Sanction Order is Ex.PW10/A which bears his signatures at point A. In the cross examination by Ld. Defence Counsel, said PW10 denied the suggestion that he did not apply his mind and accorded the Sanction in mechanical way on the basis of draft performa supplied by Anti Corruption Branch. He has also C.C. No. 41/12 Page No. 16 of 39 denied the suggestion of Ld. Defence Counsel that he was not competent to grant Sanction.
15. 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.
16. Further more, 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 the absence of anything to show that any defect or irregularity therein caused failure of justice, that plea is without substance."
17. In the case reported in 2011 I AD (CRI.) (S.C.) 1, Kootha C.C. No. 41/12 Page No. 17 of 39 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 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 C.C. No. 41/12 Page No. 18 of 39 sanctioning order to prosecute the appellant was not legal".
18. 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 Sanction Order has been passed mechanically and without application of mind. I am of considered view that the Sanction concerning the accused Jasvir Singh has been validly granted by PW10 Romil Baaniya, the then Addl. Deputy Commissioner of Police, North West District, Delhi who was competent to do so.
19. During the course of the argument, it is submitted by Ld. Counsel for the accused that this accused is innocent and has been falsely implicated by the complainant who is a Builder as he was having grudge against the accused because of the fact that the accused was posted as Beat Constable of the area where the complainant was raising unauthorized construction at Plot No.608609, Bunkar Colony, Ashok Vihar and said Complaint was forwarded vide Entry No.1549 dated 6.4.2011 to the Office of Executive Engineer, Rohini and copy of the Receipt of said Complaint in the Office of Executive Engineer, MCD, Rohini Zone is Ex.DW1/C, on the basis of which Notice dated C.C. No. 41/12 Page No. 19 of 39 29.4.2011 Ex.DW2/A and Ex.DW2/B were issued and another Show Cause Notice dated 9.5.2011, copy of which is Ex.DW2/C was issued and Demolition Order was passed on dated 9.5.2011, copy of which is Ex.DW2/D and ultimately, Demolition action was carried out by the MCD on the said property of the complainant on dated 11.7.2011 vide Office Noting at point 'X' on Ex.DW2/E. So as the unauthorized construction raised by the complainant on the said property was ultimately demolished on dated 11.7.2011, on the basis of the Complaint as lodged by the accused on 6.4.2011 and as complainant had entertained grudge against the accused and therefore, he had falsely implicated the accused in the present case. It is further added by Ld. Counsel that when the accused had already lodged Complaint on dated 6.4.2011 regarding unauthorized construction as carried out by the complainant at Plot No.608609, Bunkar Colony, Ashok Vihar, Delhi, on the basis of which the MCD had demolished the unauthorized construction of the complainant on dated 11.7.2011, there was no reason on the part of the accused to demand any bribe from the complainant for raising further unauthorized construction at the said property. It is further added by Ld. Counsel that the aforesaid facts regarding lodging of the Complaint on dated 6.4.2011 by the accused regarding the unauthorized construction being carried out at C.C. No. 41/12 Page No. 20 of 39 the property of the complainant and thereafter, the issuance of the Show Cause Notice by the MCD, Rohini Zone against the complainant and ultimately, passing of the Demolition Order dated 9.5.2011 by MCD, copy of which is Ex.DW2/D and carrying out the demolition action by MCD on the said property of the complainant on dated 11.7.2011 vide Office Noting Ex.DW2/A are clearly found established from the deposition of DW1 Ct.Reetu, DW2 Narender Kumar coupled with the relevant documents as exhibited through them. It is further added by Ld. Counsel that the complainant who has been examined as PW14 in his cross examination has admitted that he was carrying out the construction at the aforesaid property without obtaining any Sanction Plan from the MCD, despite the fact that Sanction Plan was required for raising said construction and therefore, the MCD has rightly carried out the demolition on the property of the complainant on dated 11.7.2011 and said facts have been admitted even by the complainant in his cross examination in this respect. It is further added by Ld. Counsel that the accused has neither demanded nor accepted any bribe from the complainant for raising unauthorized construction by the complainant specifically when the MCD has already demolished the unauthorized construction carried out by the complainant, on the basis of the Complaint as lodged by the accused. C.C. No. 41/12 Page No. 21 of 39
However, it is submitted by Ld. Addl. PP for the State that PW5Vinay Singh/Panch witness, PW14 Rajinder Kumar Aggarwal/complainant and PW17 Inspector B.K.Singh/Raid Officer have duly supported the case of the prosecution. It is further added by Ld. Addl. PP that there is no reason to disbelieve the deposition of PW5 Vinay Singh/Panch witness, PW14 Rajinder Kumar Aggarwal/complainant and PW17 Inspector B.K.Singh/Raid Officer as they had no earlier enmity as against the accused. It is further added by Ld. Addl. PP for the State that though the accused was demanding Rs.10,000/ as bribe but complainant could arrange only Rs.5000/ and therefore, same amount has been tendered by him to the accused as bribe.
20. From the perusal of the deposition of PW14 Rajinder Kumar Aggarwal/complainant, it is reflected that 34 days prior to 27.7.2011, the accused Jasvir Singh was insisting for bribe of Rs. 10,000/ from him in respect of the construction as raised by the complainant on his Plot No.608609, Bunkar Colony, Ashok Vihar, Delhi and as the complainant was against giving of the bribe to the accused, he went to Anti Corruption Branch on 27.07.2011 and lodged his Complaint Ex.PW5/A, on the basis of which the Raid C.C. No. 41/12 Page No. 22 of 39 Officer carried out the Raid Proceedings. But from the perusal of the statement of the accused U/S 313 Cr.P.C. as well as deposition of DW1 Ct.Reetu, DW2 Narender Kumar and DW3 Sumit Anand, it is clearly reflected that the accused has lodged Complaint on dated 6.4.2011 regarding the unauthorized construction being carried out by the complainant at Property bearing No.608609, Bunkar Colony, Ashok Vihar, Delhi, which was forwarded through the SHO, PS Bharat Nagar to the MCD, on the basis of which Show Cause Notice was issued by MCD regarding said unauthorized construction and ultimately, Demolition Order dated 9.5.2011, copy of which is Ex.DW2/D was passed by Competent Authority of MCD and demolition action was carried out on the said property of the complainant on dated 11.7.2011 vide Office Note at point 'X' on Ex.DW2/E. The accused had taken the consistent stand in this respect and in his Statement U/S 313 Cr.P.C. has interalia stated as under: "The complainant was bearing grudge against me as I had lodged a complaint of unauthorized construction against the property bearing no. B 608609, Bunkar Colony Phase IV, Ashok Vihar, Delhi. The said complaint was lodged by me on 6.4.2011 in my own handwriting and the same was forwarded by the SHO C.C. No. 41/12 Page No. 23 of 39 to the MCD for taking action on the unauthorized construction in the abovesaid building. It was my duty being a beat constable of the area to inform about the unauthorized construction going on at that time. The said complaint was forwarded vide entry no. 1549 dt. 6.4.2011. On that complaint, an action was taken by the MCD on 11.7.2011 and the building of the complainant was demolished by the MCD. On that day also I was present over there. The said house is situated in the middle of the gali. There was a electric pole on the corner of the house and there was also a big tree in between the road in front of the house of the complainant. The construction material was also lying in front of the house of the complainant. There was a complaint of the resident of that gali that because of the said construction material, they can not move freely in that gali. I telephoned the complainant so many times to remove the said building material from the road, but he did not pay any heed to my request and because of that C.C. No. 41/12 Page No. 24 of 39 reason only he lodged a false complaint against me and got me implicated through the officials of AC Branch."
21. Furthermore, DW1 Ct.Reetu, the then Assistant Reader to SHO, PS Bharat Nagar, is found to have deposed as under: "In the month of April, 2011 I was posted as Assistant Reader to SHO in PS Bharat Nagar. I have brought the Unauthorised Construction Register, PS Bharat Nagar for the period of October 2009 to till date. I used to look after the said Register during that period. As per serial no.72 dated 6.4.2011, a complaint of unauthorised construction was received in the Police Station through Ct.Jasvir Singh and the same was entered in the said Register at point X on Ex.DW1/A (OSR). Today I have also brought the original acknowledgment of the complaint dated 6.4.2011 which was filled up by the accused Jasvir Singh and the same was got deposited by him with MCD, Rohini Zone after diarising the same with the Dispatch Register on C.C. No. 41/12 Page No. 25 of 39 6.4.2011 at serial no.1549 at point X on Ex.DW1/B (OSR). At that time the accused was posted as Beat Constable in Bunkar Colony. On that day, accused Jasvir Singh has lodged four complaints of unauthorised construction in Bunkar Colony, from serial no. 15461549, the name of the accused is mentioned in front of these entries at point Y. Copy of the receipt of the complaint with MCD, Rohini Zone is Ex.DW1/C."
22. Similarly, DW2 Narender Kumar, Head Clerk from MCD, Building Department, Civil Line Zone, Civil Line, Delhi, is found to have deposed as under: "Today I have brought the summoned record of property bearing no.B608609, Bunkar Colony, Bharat Nagar, Delhi. Earlier the area of Bharat Nagar was falling within the jurisdiction of Rohini Zone and now the same has been transferred to Civil Line Zone. As per the record, an FIR of unauthorised construction was issued against the property no. B608609 of C.C. No. 41/12 Page No. 26 of 39 Bunkar Colony on 29.4.2011 on receipt of the complaint and thereafter, a Notice was issued by the concerned JE. Attested copy of the complaint is Ex.DW2/A and attested copy of the Notice is Ex.DW2/B (OSR). Another Show Cause Notice dated 9.5.2011 was also issued against the said property and demolition order was also passed on 9.5.2011. Attested copy of the said Notices are Ex.DW2/C and Ex.DW2/D(OSR). On 11.7.2011, a demolition action was taken on the property and the said noting is at point X on the attested copy of Ex.DW2/E."
23. From the perusal of the aforesaid statement of the accused as recorded U/S 313 Cr.P.C. and the deposition of DW1 Ct.Reetu and DW2 Narender Kumar, it is clearly established that on the basis of the Complaint dated 6.4.2011 of unauthorized construction as raised by the complainant on his Property bearing No.608609, Bunkar Colony, Ashok Vihar, Delhi as lodged by accused Jasvir Singh who was posted as Beat Constable in Bunkar Colony, which was forwarded through the SHO, PS Bharat Nagar vide Serial No.1549 at point 'X' on C.C. No. 41/12 Page No. 27 of 39 Ex.DW1/B and copy of the Receipt of said Complaint in the Office of Executive Engineer, MCD, Rohini Zone on dated 6.4.2011 is Ex.DW1/C, in pursuance of which Notice dated 29.4.2011, copy of which is Ex.DW2/B was issued by the concerned AE (Bldg.), Rohini Zone and as no Reply to said Show Cause Notice was filed on behalf of the complainant herein and as construction was found to be unauthorized and against Building Bye Laws as reflected from the document, copy of which is Ex.PW2/C, in pursuance of which Demolition Order dated 9.5.2011, copy of which is Ex.DW2/D, was passed and ultimately, demolition action was carried out by MCD on dated 11.7.2011 on the unauthorized construction as raised by the complainant in the aforesaid property as found reflected from Office Noting at point 'X' on Ex.DW2/E. But surprisingly, the complainant has not stated regarding the aforesaid facts about the demolition action taken by the MCD on dated 11.7.2011 on the unauthorized construction as raised by him on said Property bearing No. 608609, Bunkar Colony, Ashok Vihar, Delhi, in his Complaint Ex.PW5/A or in his examination in chief during his deposition before this Court. It is only in the cross examination of the complainant/PW14 when the relevant facts in this respect were put by Ld. Defence Counsel to the complainant, he has divulged regarding these aspects as under: C.C. No. 41/12 Page No. 28 of 39 "It is correct that B608 and B609 are two plots of 32 meters each. I started the construction on the said plots in the month of February, 2011. No Plan was got sanctioned by me from MCD. However, the Sanctions Plans are required for construction. I had not given any application to the MCD for obtaining the Sanction Plan for said plots."
............................................................................. I do not know if the demolition order of the construction of said plots was passed on 9.5.2011 as I had not given any reply to the said notices. Copy of said demolition order is Mark DD. It is correct that construction of my said plots were demolished by the MCD on 11.7.2011."
24. In view of the aforesaid material as available on the record, it is clearly established that on the basis of the Complaint dated 6.4.2011 regarding the unauthorized construction as raised by the C.C. No. 41/12 Page No. 29 of 39 complainant on his Property bearing No.608609, Bunkar Colony, Ashok Vihar, Delhi, as lodged by the accused Jasvir Singh who was posted as Beat Constable in said Bunkar Colony of PS Bharat Nagar and said Complaint on being duly forwarded to the SHO, PS Bharat Nagar, has been duly received in the Office of Executive Engineer, MCD, Rohini Zone on same day itself vide Receipt Ex.DW1/C and ultimately, said unauthorized construction of the complainant on the aforesaid property was demolished by MCD on dated 11.7.2011 as found reflected from the Office Noting at point 'X' on Ex.DW2/E, the deposition of the complainant/PW14 to the effect that this accused had been demanding bribe of Rs.10,000/ in respect of the construction of his house at B608609, Bunkar Colony, Ashok Vihar, Delhi about 34 days prior to 27.7.2011 does not appear to be trustworthy and reliable due to the following reasons: (A) When the accused had already lodged Complaint on dated 6.4.2011 regarding the unauthorized construction as raised by the complainant on Plot bearing No. B608609, Bunkar Colony, Ashok Vihar, Delhi and said Complaint after being duly forwarded by the SHO, PS Bharat Nagar, was duly received in the Office of Executive Engineer, Rohini Zone, on same day itself i.e. 6.4.2011 vide copy of Receipt Ex.DW1/C and after compliance of the necessary formalities, C.C. No. 41/12 Page No. 30 of 39 said unauthorized construction of the complainant has been demolished by the MCD on 11.7.2011 as per Office Noting at point 'X' of Ex.DW2/E, I do not see any justifiable reason on the part of the accused to raise any such demand of bribe of Rs.10,000/ from the complainant for any construction on the said property immediately after 1012 days of the demolition action carried by the MCD. (B) The complainant/PW14 in his Complaint Ex.PW5/A has stated that he started raising construction at his Plot No.608609, Bunkar Colony, Ashok Vihar, Delhi in April 2011 when the accused came to him and demanded bribe of Rs.10,000/ from him otherwise he would not allow the said construction but the complainant on one pretext or the other took time from the accused but from 22.7.2011 the accused pressurized the complainant for payment of said bribe amount of Rs. 10,000/. Said stand of the complainant/PW14 as reflected in his Complaint Ex.PW5/A is found falsified from the deposition of the complainant/PW14 as in his cross examination by Ld. Defence Counsel, said complainant/PW14 has stated that the accused met him for the first time 34 days prior to 27.7.2011 as the complainant/PW14 has deposed in his cross examination by Ld. Defence Counsel in this respect as under: "I had not given any application to the MCD for C.C. No. 41/12 Page No. 31 of 39 obtaining Sanction Plan for the said plots. I myself was raising the construction through labourers. I had been visiting the said construction site during construction. 34 days prior to 27.7.2011, the accused met me for the first time near the Shop of the Property Dealer at the corner of our Gali."
(C) From the perusal of the deposition of DW2 Narender Kumar coupled with the Show Cause Notice dated 29.4.2011 as issued by AE (Bldg.), Rohini Zone, copy of which is Ex.DW2/B and Demolition Order dated 9.5.2011, copy of which is Ex.DW2/D and demolition action as carried out by the MCD as per Office Noting as point X on Ex.DW2/E, it is clearly established that after the receipt of the Complaint regarding the unauthorized construction as carried out by the complainant on the Property No.B608609, Bunkar Colony, Ashok Vihar, Delhi, in the Office of Executive Engineer, Rohini Zone, Delhi on dated 6.4.2011 as per Receipt Ex.DW1/C, the necessary official formalities before the demolition were carried out by the Competent Authority of MCD, Rohini Zone and the ultimate demolition action was also conducted by the Competent Authority of MCD, Rohini Zone ultimately on dated 11.7.2011 and in view of the C.C. No. 41/12 Page No. 32 of 39 same, the allegation of the complainant as regards the demand of bribe by the accused from him, 34 days prior to 27.7.2011, in respect of construction at the aforesaid property of the complainant and further demand and acceptance of bribe of Rs.10,000/ by the accused from the complainant on 27.7.2011, do not appear to be reasonable and palatable specifically when the demolition of unauthorized construction of the complainant was carried out not by this accused but by the concerned MCD Authority of Rohini Zone. (D) Though, it is the case of the prosecution that the accused has demanded and accepted bribe of Rs.5000/ from the complainant at the spot on dated 27.7.2011 as found mentioned in the Post Raid Proceedings Ex.PW5/E which was prepared immediately after Raid at the spot by the Raid Officer/PW17 Inspector B.K.Singh but said stand of the prosecution is found falsified from the deposition of the complainant/PW14 as said complainant/PW14 has deposed at one stage as under: "The Pre Raid Report Ex.PW5/B was got typed in the Office of AC Branch after the Raid and I signed the same."
25. In view of aforesaid deposition of PW14/complainant, it is clearly reflected that the Pre Raid Proceedings Ex.PW5/B which is C.C. No. 41/12 Page No. 33 of 39 supposed to have been prepared before proceeding for the Raid but the same has been typed and got prepared in the AC Branch not before the Raid but after the Raid. Therefore, the Post Raid Proceedings Ex.PW5/E which is found written subsequent to the said Pre Raid Proceedings Ex.PW5/B, appears to have been certainly prepared in the Office of AC Branch after the Raid. Said fact also found supported from further deposition of PW14/complainant as he has deposed to the effect that on the apprehension of the accused as public persons gathered there, the Raiding Team along with the accused came to the Office of AC Branch where Raid Officer recovered 10 GC notes of Rs.500/ each as the complainant/PW14 has deposed in this respect as under: "The accused was brought to the Parking place of the vehicle and as the public had gathered there, Inspector B.K.Singh along with the Raiding team members, accused and including us came to office of AC Branch where Raid Officer recovered the said 10 GC notes of Rs.500/ each from the accused."
From the perusal of the aforesaid deposition of PW14/complainant, it is reflected that said 10 GC notes of Rs.500/ C.C. No. 41/12 Page No. 34 of 39 each was recovered by the Raid Officer and not by the Panch witness and it was recovered not at the spot but at the Office of AC Branch which falsify the case of the prosecution as regards the recovery that 10 GC notes of Rs.500/ each were recovered by the Panch witness from the right hand of the accused at the spot as PW17/Inspector B.K.Singh Raid Officer has deposed in this respect as under: "On my instructions, the Panch witness recovered 10 GC notes of Rs.500/ from the right hand of the accused................................"
The aforesaid deposition of PW17/Raid Officer is found falsified even from the deposition of PW5/Vinay Singh Panch witness who has deposed regarding the recovery of GC notes as under: "Raid Officer recovered the GC notes from the pocket of the accused while the accused was made to sit in the vehicle."
26. In view of the aforesaid material available on the record, the allegation of the complainant as regards the demand of bribe by the accused from him for carrying out the construction on his Plot bearing No.608609, Bunkar Colony, Ashok Vihar, Delhi, could not be established specifically when PW5/Panch witness Vinay Singh has C.C. No. 41/12 Page No. 35 of 39 also not deposed anything regarding the demand aspect of bribe as said PW5/Panch witness has deposed in this respect as under: "The complainant introduced me to the accused as his nephew. Complainant told accused that he was troubling him and thereafter, the complainant tried to keep, again said the complainant delivered the said treated GC notes to the accused after taking them out from his pocket."
Said PW5/Panch witness even in his cross examination by Ld. Addl. PP is found to have clearly denied the demand aspect of bribe as against the accused as he has deposed in this respect as under: "It is wrong to suggest that the demand of bribe was first made by the accused and I did not state so before the police (confronted with portion A to A of Statement Ex.PW5/J where it is so recorded). Vol. No demand of bribe was made by the accused from the complainant in my presence."
27. In view of the aforesaid discussion and specifically keeping in mind the aforesaid deposition of PW14/complainant and C.C. No. 41/12 Page No. 36 of 39 PW5/Panch Witness it is clearly reflected that the prosecution has failed to establish about the basic element relating to bribe i.e., "Demand of Bribe" by the accused from the complainant. Since the prosecution has failed to establish regarding the factum of the demand of bribe by the accused from the complainant, the presumption as contemplated U/S 20 of Prevention of Corruption Act, 1988 cannot be attracted in this case and my said view is found supported from the judgment as rendered by Hon'ble Supreme Court of India in the case reported as AIR 2007 SC 489 "V.Venkata Subbarao vs. State represented by Inspector of Police, A.P." In Para 24 of the said judgment, it was observed by Hon'ble Supreme Court of India as under: "Submission of the learned counsel for the State that presumption has rightly been raised against the appellant, cannot be accepted as, inter alia, the demand itself had not been proved. In the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of a presumption only if a demand is proved".
28. In the absence of proof of "Demand of bribe" by the C.C. No. 41/12 Page No. 37 of 39 accused, I am of the considered view that the accused cannot be held liable for penal provisions U/S 7 and Section 13 (2) r/w Section 13 (1)
(d) of Prevention of Corruption Act, 1988 for which he has been charged with and my said view is found supported from the following Judgments: (1)2006 (1) SCC 401 "T.Subramanian Vs. State of Tamil Nadu"
(2) 2005 Crl.L.J. 1136 "State of H.P. Vs. Sukhdev Singh Rana"
(3) 2007 Crl.L.J. 2919 "State of M.P.vs. Anil Kumar Verma"
(4) 2006 (3) RCR (Crl.) 796 "Amrit Lal vs. State of Punjab"
(5) 2000 Crl,.L.J. 4591 "State of M.P. Vs. J.B.Singh"
(6) 2006 (1) RCR (Crl.) 314 "L.K.Jain vs. The State"
(7) 2005 (4) RCR (Crl) 716 "R.V.Subba Rao Vs. State"
(8) AIR 1979 SC 1408 "Suraj Mal Vs. State"
(9) 1992 (3) RCR (Crl.) 139 "Pritam Singh vs. State of Haryana"
(10) 2009 (4) LRC 275 (SC) "State of Maharastra Vs. Dnyaneshwar Laxman Rao Wankhede"
(11) V (2009) SLT 272 A. Subair Vs. State of Kerala
29. In view of the aforesaid discussion, I have no hesitation to safely conclude that the prosecution has failed to establish the guilt of C.C. No. 41/12 Page No. 38 of 39 the accused for the charged offence punishable U/S 7 & 13 (2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988 and therefore this accused Jasvir Singh stands acquitted of the said charged offence.
30. Since this accused Jasvir Singh has been acquitted of the charged offence, his bail bond is cancelled and his surety stands discharged.
Announced in the open court on this 29th day of July, 2013 (B.R. Kedia) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC, Delhi C.C. No. 41/12 Page No. 39 of 39