Delhi District Court
State vs . Sahi Ram Tanwar on 26 April, 2011
IN THE COURT OF SHRI B.R. KEDIA, SPECIAL JUDGE07
(CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
C.C.NO. : 41/11
Unique Case ID : 02401R0737682005
STATE VS. SAHI RAM TANWAR
S/o Sh.Prabhati Ram
R/o 176B, Sector11D,
Model Town
DLF, Faridabad,
Haryana
FIR NO. : 43/04
U/S : 7/13 Prevention of Corruption
Act, 1988 & Section 201 IPC
P.S. : ANTI CORRUPTION BRANCH,
DELHI
Date of Institution 18.08.2005
Judgment reserved on 05.04.2011
Judgment delivered on 26.04.2011
JUDGMENT
1. The precise case of the prosecution is that on dated 13.8.2004 complainant Kashyap Mankodi S/o Amrit Lal Mankodi C.C. No. 41/11 Page No. 1 of 41 went to Anti Corruption Branch, Delhi and got lodged his complaint Ex.PW5/A regarding demand of bribe of Rs.5,000/ by the accused Sahi Ram Tanwar posted as Area Zonal Inspector in the office of Assessor and Collector, Property Tax, MCD, Lajpat Nagar, New Delhi for assessing the house tax at lower rate on the property bearing No.79A, A/14, Kalkaji Extension, New Delhi of the complainant.
2. The gist of the said complaint is that as the rateable value of complainant's property bearing No.79A, A/14, Kalkaji Extension, New Delhi was raised exparte and coercive action was taken, the complainant was constrained to file a petition before the Hon'ble High Court wherein order was passed directing the MCD for reassessment with the direction to the complainant to meet the accused and submit requisite documents on 9.8.2004. It is further alleged that the accused visited the house of the complainant on 11.8.2004 and asked him to see him in his office where accused ultimately demanded bribe of Rs. 5,000/ for assessing the property tax on the said property of the complainant on lower side. Since the complainant was against giving of bribe, so he went to Anti Corruption Branch and got his complaint lodged before the then Inspector R.S.Khatri, Raid Officer PW 8 in presence of Panch witness A.N.Seth PW 9.
C.C. No. 41/11 Page No. 2 of 41
3. The further case of the prosecution is that the complainant has produced 50 GC notes of Rs. 100/ each before the Raid Officer PW8 who noted down the serial number of said GC notes in the pre raid proceedings Ex.PW5/B and treated the said GC notes with phenolphthalein powder. Thereafter, Raid Officer PW8 gave demonstration to the Panch witness and the 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 raising his both hands and to give a ring through his mobile phone to Raid Officer after being satisfied that the bribe has actually been given.
4. The further case of the prosecution is that at about 1:30 p.m., PW8 Raid Officer along with complainant, Panch witness, Inspector Sukhbir Singh, SI Rakesh Saini, Ct.Jai Prakash and Driver of the raiding party left Anti Corruption Branch in a government vehicle for MCD office, Lajpat Nagar and reached there at about 2:20 C.C. No. 41/11 Page No. 3 of 41 p.m. Government vehicle was left near the MCD office and Inspector Sukhbir Singh and Driver remained in the vehicle. The complainant and Panch witness went inside the MCD office and other members of the raiding team followed them and took suitable position outside the said office of MCD.
5. The further case of the prosecution is that at about 3:00 p.m. on getting the predetermined signal from the Panch witness, the Raid Officer, alongwith the raiding team rushed inside the MCD office. Thereafter, the Raid Officer, complainant and Panch witness reached in a Hall at the first floor but the accused was not found in his cabin and therefore, they searched for the accused but he was not traceable. The Raid Officer informed about the same to the Deputy Assessor & Collector and Joint Assessor & Collector who also got searched for the accused but it was futile. Thereafter, Raid Officer seized the Application of the complainant Ex.PA, the Copy of Assessment Order Ex.PC from the Assessment File vide Seizure Memo Ex.PW1/A. Raid Officer also seized the Copy of Assessment Order Ex.PB from the complainant vide Memo Ex.PW1/B and also prepared the Post Raid Proceedings Ex.PW5/B1. Raid Officer prepared Rukka Ex.PW2/A and sent the same through Ct. Jai prakash for registration of the case.
C.C. No. 41/11 Page No. 4 of 41
6. The further case of the prosecution is that the Raid Officer called Inspector Sukhbir Singh PW3 IO at the spot and informed him that the accused had run away after receiving the bribe money and delivered him Seizure Memo Ex.PW1/A alongwith documents Ex.PA and Ex.PB and also Seizure Memo Ex.PW1/B alongwith the Valuation Report Ex.PC. IO received original Rukka Ex.PW2/A and copy of FIR Ex.PW3/B and the complainant, Panch witness and raiding team left the spot. Thereafter, IO searched for the accused in his house but he was not found and ultimately on 27.8.2004 accused surrendered in the court and was sent to JC. On 6.9.2004, the accused refused to participate in the TIP proceedings Ex.PW3/C. During the course of Investigation on 08.9.2004 accused was taken on police custody remand but the bribe amount could not be got recovered. During course of Investigation, IO seized copy of Office Order dated 16.6.1997 Mark A1, Bio data of accused Ex.PW3/D through Seizure Memo Ex.PW3/E, Attendance Register Ex.PW3/F vide Seizure Memo Ex.PW3/G and obtained the Sanction Order Ex.PW3/H vide Covering Letter Ex.PW3/H1. IO on recording the statement of the witnesses and after completion of the Investigation, prepared the chargesheet and filed in the court.
C.C. No. 41/11 Page No. 5 of 41
7. After compliance with the provision U/S 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 Section 13 (1)(d) of the Prevention of Corruption Act, 1988 and U/S 201 IPC was framed against accused on 08.05.2006 to which accused pleaded not guilty and claimed trial.
8. Thereafter, in order to bring home the guilt of the accused, the prosecution got examined 9 prosecution witnesses namely Sh.S.C. Yadav, the then Deputy Assessor & Collector, Central Zone, MCD, Lajpat Nagar, a formal witness as PW1, Ct. Jai Prakash who took Rukka and got FIR registered, a formal witness as PW2, Inspector Sukhbir Singh, IO as PW3, Ms. Archana Sinha, the then MM who conducted the TIP Proceedings Ex.PW4/C a formal witness as PW4, Kashyap Mankodi, complainant as PW5, Sh. Hira Lal, the then Assistant Assessor & Collector, Central Zone, Lajpat Nagar, a formal witness as PW6, Sh.Chander Bhushan Kumar, the then Deputy Commissioner, Central District, MCD Delhi, the Sanctioning Authority, a formal witness as PW7, Inspector R.S.Khatri, Raid Officer as PW8 and Sh. A.N.Seth, Panch witness as PW9. C.C. No. 41/11 Page No. 6 of 41
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 further added that complainant was having grudge against him as his Bank account was attached for recovery of House tax arrears. He also added that he was not present in the office when the raid was conducted and claimed to have been falsely implicated in this case. However, the accused has preferred not to examine any witness in his defence.
10. I have heard Final Arguments as addressed by Sh.Ramesh Gupta Ld. Sr. Adv. accompanied with Sh.Bharat Sharma, Adv., Ld. Counsel for the accused and Ms. Alka Goel, Ld. APP for the State and perused the relevant record.
11. It is submitted by Ld. Counsel for the accused that the complainant had a grudge as against the accused because of attachment of his bank account for clearance of the House tax arrears and therefore, the accused has been falsely implicated by the complainant in this case. It is further added by Ld. Defence Counsel that as the complainant is accomplice his deposition cannot be looked C.C. No. 41/11 Page No. 7 of 41 into unless corroborated in material particular. It is further added by Ld. Counsel for the accused that since no preliminary enquiry was conducted regarding the allegation in the complaint Ex.PW5/A before registration of the FIR to ascertain about the veracity of said complaint, therefore the subsequent Investigation is bad and vitiate the entire trial. It is further added by Ld. Counsel for the accused that since the Sanction Order Ex.PW3/H has been passed by the Sanctioning Authority mechanically without proper application of mind and requisite particulars are not mentioned in the Sanction Order, therefore, said Sanction is not valid and entire proceedings stand vitiated. It is further added by Ld. Defence Counsel that since the accused has been chargesheeted U/S 7/13 of the Prevention of Corruption Act, 1988 besides U/S 201 IPC but since no requisite Sanction U/S 197 Cr.P.C.has been obtained and only Sanction U/S 19 (1) of Prevention of Corruption Act, 1988 has been granted, said Sanction is not legally valid and hence, accused deserves to be acquitted on this count itself. It is also added by Ld. Defence Counsel that the prosecution has failed to prove the demand and acceptance of the bribe by the accused from the complainant, which is fatal for the case of the prosecution and therefore, the accused deserves to be acquitted. It is also added by Ld. Defence Counsel that C.C. No. 41/11 Page No. 8 of 41 since the complainant was having grudge as against the accused, his deposition cannot be treated as trustworthy and the Panch witness PW9 has clearly deposed that he had not seen the demand and acceptance of the bribe by the accused from the complainant and there is no recovery of any bribe amount from the accused, the prosecution has miserably failed to establish its case of demand and acceptance of the bribe of Rs.5,000/ by the accused from the complainant and hence, accused deserves to be acquitted. It is further added by Ld. Counsel for the accused that though PW8 Inspector R.S.Khatri (Raid Officer) deposed that he was informed by Panch witness about demand and acceptance of bribe amount of Rs.5,000/ by the accused but PW9 Panch witness has not deposed anything regarding this aspect. It is further added by Ld. Counsel for the accused that the deposition of PW8 Raid Officer cannot be treated as trustworthy and reliable as he was interested for the success of raid. It is further added by Ld. Counsel for the accused that since there was no recovery of any bribe money from the accused, the presumption as contemplated U/S 20 of Prevention of Corruption Act, 1988 cannot be attracted in the present case and therefore, the entire onus to prove its case lies on the prosecution, which it has failed to discharge and therefore, the accused deserves to be acquitted. It is further added by Ld. Counsel C.C. No. 41/11 Page No. 9 of 41 for the accused that mere absconding by the accused does not establish case U/S 201 IPC against the accused. Ld. Counsel for the accused in support of his contentions referred and relied upon the following judgments: (1) 1971 Cr.L.J. 523 (2) AIR 1963 SC 74 (3) AIR 1971 SC 2156 (4) AIR 2009 SC 2022 (5) AIR 2003 SC 2169
12. To the contrary, it is submitted by Ld. APP for the State that the prosecution by examining 9 PWs has clearly established its case as against the accused and therefore, the accused deserves to be convicted for the charged offence U/S 7 and 13 (2) of Prevention of Corruption Act, 1988 and U/S 201 IPC. It is further added by Ld. APP for the State that the deposition of the complainant PW5 is found supported from the deposition of PW8 Raid Officer and there is no reason to disbelieve the same. It is further added by Ld. APP that PW9 Panch witness was hostile on certain aspects being owned over by the accused and same can be of no help to the accused. It is further added by Ld. APP that the Sanctioning Authority has passed the C.C. No. 41/11 Page No. 10 of 41 Sanction Order after going through all the relevant material and Sanction Order is legally valid. It is further added by Ld. APP that since the process of demand and acceptance of the bribe by the accused cannot be treated as discharge of official duty on the part of the accused and therefore, no Sanction U/S 197 Cr.P.C. is required. It is further added by Ld. APP that the prosecution has duly proved its case concerning the demand and acceptance of the bribe of Rs.5,000/ by the accused from the complainant but mere fact that said amount could not be recovered from the accused as he ran away from the spot, it can be of no help of the accused. It is further added by Ld. APP that since the accused has refused to participate in TIP Proceedings so due adverse inference can be drawn against him. It is further added by Ld. APP that the presumption U/S 20 of the Prevention of Corruption Act, 1988 can be validly drawn as against the accused. Ld. APP 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, the accused deserves to be convicted.
13. Ld. APP in support of her contention referred and relied upon the following judgments: (1) 2011 CRL. L. J. 975 C.C. No. 41/11 Page No. 11 of 41 (2) (2011) I AD (Criminal) 457 (3) (2006) 12 SCC 277 (4) 1998 CRL. L.J. 863
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 per Section 19 (1) (c) of Prevention of Corruption Act, 1988. In order to prove the Sanction, the prosecution has examined PW7 Sh.Chander Bhushan Kumar, the then Deputy Commissioner, Central District, MCD Delhi who has categorically deposed that in April 2005 he was posted as Deputy Commissioner, Central District, MCD Delhi and had received the request from Anti Corruption Branch alongwith the copies of the FIR, Raid Report, Seizure Memo, Statements recorded under Section 161 Cr.P.C., to grant Sanction U/S 19 of Prevention of Corruption Act, 1988 to prosecute the accused Sahi Ram Tanwar posted as Area Zonal Inspector in MCD and on going through the documents as placed before him very carefully and applying his mind and after examining the facts and circumstances of the case, he was of the view that accused should be prosecuted and being competent authority to remove the accused from service, he had accorded the Sanction Ex.PW3/H bearing his signature at point A. I am of the C.C. No. 41/11 Page No. 12 of 41 considered view that said PW7 Sh.Chander Bhushan Kumar, the then Deputy Commissioner, Central District, MCD Delhi was competent to remove the accused from service as he was the appointing authority as found reflected from Biodata of the accused Ex. PW3/D. He had specifically denied the suggestion of Ld. Defence Counsel that he had accorded the Sanction in a mechanical manner without application of mind. He further denied the suggestion of Ld. Defence Counsel that no document relating to this case was placed before him.
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. Furthermore, in the case reported as 2004 (13) SCC 487, Shankar Bhai Lalji Bhai Vs. State of Gujrat, it was observed by C.C. No. 41/11 Page No. 13 of 41 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. By taking cue from the aforesaid judgments 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 was passed mechanically without proper application of mind as I am of considered view that the Sanction has been validly granted by PW7 Sh. Chander Bhushan Kumar, the then Deputy Commissioner, Central District, MCD, Delhi who was competent to do so.
18. I also do not find any force in the submission of Ld. Defence Counsel to the effect that since the accused has been chargesheeted U/S 7/13 of Prevention of Corruption Act, 1988 besides U/S 201 of IPC but as the requisite Sanction U/S 197 Cr.P.C. has not been obtained and only Sanction U/S 19 (1) of Prevention of Corruption Act, 1988 has been granted, said Sanction is legally improper and the accused deserves to the acquitted on this count C.C. No. 41/11 Page No. 14 of 41 itself. I am of the considered view that once Sanction U/S 19 of the Prevention of Corruption Act, 1988 has been granted for prosecuting the accused, there is no necessity for obtaining further Sanction U/S 197 Cr.P.C. only because of the fact that the accused has been chargesheeted also under certain penal provision of IPC besides penal provision under Prevention of Corruption Act, 1988. My said view is found supported from the judgment as rendered by full bench of Hon'ble Allahabad High Court in the case reported as Smt. Neera Yadav Vs. CBI, 2006 (2) RCR (Criminal) 765. The basic issue involved in the said case was regarding the requirement of additional Sanction by the State Government U/S 197 Cr.P.C. for prosecuting a serving public servant under provision of Prevention of Corruption Act, 1988 as well as Indian Penal Code, when Sanction under 19 of the Prevention of Corruption Act, 1988 has been granted by the Central Government. As the Division Bench delivered two different opinions on the question of requirement of additional Sanction U/S 197 Cr.P.C., matter was referred to be answered by the full bench and after detailed discussion full bench of Hon'ble Allahabad High Court concluded in Para 127 as under: "In view of the aforesaid, answers to the aforesaid three questions are as follows:
C.C. No. 41/11 Page No. 15 of 41
(I) For prosecution under Prevention of Corruption Act, 1988, once sanction under Section 19 of the said Act is granted, there is no necessity for obtaining further sanction under Section 197 of the Code of Criminal Procedure.
(II) Where a public servant is sought to be prosecuted under the provisions of Prevention of Corruption Act read with Section 120B, I.P.C., and sanction under Section 19 of Act of 1988 has been granted, it is not at all required to obtain sanction under Section 197 Cr.P.C. from the State Government or any other authority merely because the public servant is also charged under Section 120B, I.P.C.
(III) The offences under the Prevention of Corruption Act, 1988 as well as charge of criminal conspiracy, cannot be said to constitute "acts in discharge of official duty."
19. During the course of the arguments, it is submitted by Ld. Counsel for the accused that since no preliminary enquiry was conducted regarding the allegation in the complaint Ex. PW5/A before registration of the FIR to ascertain about the veracity of said complaint and therefore, subsequent investigation is bad and it vitiated the entire trial. It is found clear from the perusal of the record C.C. No. 41/11 Page No. 16 of 41 that FIR in the present case has not been registered merely on the basis of said complaint Ex. PW5/A. It is revealed from the record that after lodging of the said complaint Ex. PW5/A, Pre Raid Proceedings Ex.PW5/B was got conducted and thereafter, in pursuance of the same, raid was conducted being led by PW8, Inspector R.S. Khatri (Raid Officer) and only after finding that the accused had demanded and accepted the bribe amount of Rs. 5,000/ from PW5 Kashyap Mankodi complainant and thereafter, the accused ran away with the bribe amount from the spot and on the basis of the same Post Raid Proceedings Ex.PW5/B1 was conducted and ultimately in pursuance of the Rukka Ex.PW2/A as sent by PW 8 (Raid Officer), FIR bearing No.43/04 dated 13.8.2004 copy of which is Ex. PW3/B has been registered as against the accused. In view of the same, I do not find any infirmity in the process of registration of the FIR relating to the present case and subsequent investigation in this respect and therefore submission of Ld. Defence Counsel on this count appears to be legally misconceived and can be of no help for the accused.
20. That during the course of argument, it is submitted by Ld. Counsel for the accused that the prosecution has failed to prove about the demand and acceptance of the bribe by the accused from the C.C. No. 41/11 Page No. 17 of 41 complainant and same is fatal for the case of the prosecution and therfore, accused deserves to be acquitted. It is further added by Ld. Defence Counsel that since the complainant was having the grudge against the accused, his deposition cannot be treated as trustworthy and Panch witness PW 9 has clearly deposed he had not seen the demand and acceptance of bribe by the accused and as there is no recovery of the bribe amount from the accused, the prosecution has failed to establish its case of demand and acceptance of the bribe amount of Rs. 5,000/ by accused from the complainant and Ld. Counsel for the accused thus urged for acquittal of the accused on this count. On the other hand, it is submitted by Ld. APP for the State that the facts regarding the demand and acceptance of the bribe by the accused from the complainant have been successfully proved by the prosecution from the deposition of the complainant PW5 and Raid Officer PW 8 and mere fact that PW9 Panch witness has turned hostile by being won over by the accused, can be of no help for the accused.
21. In order to prove that the accused had demanded and accepted the bribe amount of Rs. 5,000/ from the complainant, the prosecution is found to have examined PW5 Kashyap Mankodi, Complainant, PW8 Inspector R.S. Khatri, Raid Officer, and PW9 Sh. C.C. No. 41/11 Page No. 18 of 41 A.N. Seth Panch witness. PW5 complainant Kashyap Mankodi has clearly deposed in the court that since he was having a flat no. 79A, Pocket A/14, Kalkaji Extension, New Delhi and ratable value of said flat was suddenly increased by officials of MCD for calculating House tax, he filed a petition in the Hon'ble High Court on which he was directed to appear before the accused on 09.08.2004 but accused was not found present in his office on that day. Thereafter on 11.08.2004 accused called him in his office and initially demanded bribe of Rs. 9,000/ and ultimately agreed to receive bribe of Rs. 5,000/ for reassessment of the House tax of the complainant and therefore said PW5 complainant went to Anti Corruption Branch on 13.08.2004 and lodge his complaint Ex. PW5/A. Said PW5 further deposed regarding the preraid proceeding Ex. PW5/B. Said PW 5 also deposed that at about 1:30 pm he alongwith other members of the raiding team left the Anti Corruption Branch in a government vehicle for the office of Assessor and Collector, Property Tax MCD, Lajpat Nagar, New Delhi and reached there within one hour. He alongwith Panch witness went inside the office of MCD and other members of the raiding party took suitable position near said office. He alongwith the Panch witness went inside the room of the accused and as some other persons were found sitting with the accused they waited for C.C. No. 41/11 Page No. 19 of 41 1015 minutes and after those persons left, accused called him. Said PW5 Complainant has clearly deposed regarding the demand and acceptance of the bribe by the accused Sahi Ram Tanwar as he has deposed in this respect as under: " Accused gave me copy of an order and he asked me to come out and we came out to the corridor near the stairs and there accused demanded the bribe amount. I took out those GC notes from my pocket and handed over the same in his right hand and he kept the same in right pocket of his pant. Thereafter, panch witness went away to give predetermined signal to the raiding party and in the meantime accused went to the toilet. By the time members of raiding party arrived at the spot the accused slipped away from the stair case of back side."
Said PW 5 in his cross examination by Ld. Defence Counsel is found to have denied certain material specific suggestion put to him by Ld. Defence Counsel and reiterated about demand and acceptance of bribe by accused as found reflected from his deposition in this respect as under: C.C. No. 41/11 Page No. 20 of 41 "It is wrong to suggest that accused has neither demanded nor accepted the amount. It is wrong to suggest that the accused has not met me on 13.08.2004 and he has not gone to the toilet. It is wrong to suggest that accused did not slip away as the accused was not present in the office. Vol. The accused was very much present in the office and demanded and accepted the bribe amount."
22. PW9 Panch witness A.N.Seth has clearly deposed before the court that on 13.08.2004 he was on duty as a Panch witness in the Anti Corruption Branch and complainant got lodged his Complaint Ex.PW5/A in his presence which bears his signature at point C and he has also narrated about the Pre Raid Proceedings Ex.PW5/B. He further deposed that at about 01:30 p.m., he alongwith the complainant, Inspector Khatri, Inspector Sukhbir Singh and other members of the raiding team left the Anti Corruption Branch in a government vehicle for MCD Office, Lajpat Nagar, New Delhi and reached there at about 22:30 p.m. He further deposed that he alongwith the complainant went to the first floor of the MCD Office and other members of the raiding party took suitable position on the ground floor. He further deposed that he alongwith the complainant C.C. No. 41/11 Page No. 21 of 41 entered in a cabin in a Hall where accused was found sitting and busy with some person and after sometime that person went away and the complainant and accused went out from the cabin and he followed them. Said PW9 further deposed about the demand and acceptance of the bribe by the accused as he has deposed in this respect as under: "The transaction took place between the complainant and accused in front of bathroom but I did not see the accused while accepting the money from the complainant. When I reached near the complainant he was standing alone and perhaps the accused was inside the toilet. I enquired from the complainant with gesture and he replied that work had been done."
Said PW9 also deposed about the postraid proceeding Ex.PW5/B1 bearing his signature at point C. Said PW9 in his cross examination by Ld. Defence Counsel is found to have denied certain material specific suggestion put to him by Ld. Defence Counsel as found reflected from his deposition in this respect as under: " It is wrong to suggest that no complaint was written in my presence. It is wrong to suggest that no pre raid proceedings were conducted at Anti Corruption Branch. It is wrong to C.C. No. 41/11 Page No. 22 of 41 suggest that I have not met the accused in his cabin. It is wrong to suggest that accused has not gone out with the complainant from the cabin. It is wrong to suggest that I have seen the complainant and accused standing outside the bathroom."
23. Furthermore, PW8 Inspector R.S. Khatri, Raid Officer is found to have deposed regarding lodging of the complaint Ex.PW5/A by the complainant in the presence of Panch witness on dated 13.08.2004 and thereafter, the preraid proceeding Ex.PW5/B was carried out by him. Said PW8 further deposed that at about 1:30 pm he alongwith the complainant, Panch witness and other members of raiding team left Anti Corruption Branch for MCD Office, Lajpat Nagar and reached there at about 2:30 pm. He further deposed that complainant and Panch witness went inside the MCD Office but other members took suitable position outside the MCD Office. He further deposed that at about 3:00 pm on receiving the predetermined signal given by Panch witness, he alongwith raiding team rushed inside the MCD Office but accused was not found in his cabin and Panch witness told him that accused Sahi Ram Tanwar had demanded and accepted bribe of Rs. 5,000/ from the complainant. C.C. No. 41/11 Page No. 23 of 41
24. From the perusal of the deposition of PW5 Complainant, PW8 Inspector R.S. Khatri (Raid Officer) and PW 9 A.N. Seth Panch witness it is clearly reflected that when the raiding party on getting the predetermined signal from the Panch witness rushed inside the MCD Office and searched for the accused, he was not found traceable. PW 8 Raid Officer further deposed that he informed regarding the absconding of the accused to his Senior Officer, Deputy Assessor and Collector and Joint Assessor and Collector who also searched for the accused but he was found to have ran away from his office after accepting the bribe amount. Said PW8 further deposed as under : " I took into possession the application of the complainant Ex.PA and the copy of assessment order Ex.PC which bears the signatures of complainant at point Z from assessment file of property no. A14/79A, Kalkaji in the presence of Sh. S.C. Yadav, Dy. Assessor and collector vide memo Ex. PW1/A which bear my signatures at point B. I also took into possession the assessment order Ex. PB from the complainant vide memo Ex. PW1/B which bear my signatures at point C. I interrogated the complainant and panch witness. The key of motor cycle and the helmet of Sahi Ram C.C. No. 41/11 Page No. 24 of 41 Tanwar was found on his table and his motor cycle was found parked in the parking. Thereafter, I prepared post raid proceedings Ex. PW5/B1 which bear my signatures at point C."
25. The aforesaid deposition of PW8 Raid Officer regarding the abscondance of the accused from his office at the time of the raid on dated 13.08.2004 and seizure of application and copy of assessment order regarding the property of the complainant from the office table of the accused and seizure of key of motor cycle and helmet of the accused from his office table also found corroborated from the deposition of PW 1 Sh. S.C. Yadav, the they Deputy Assessor and Collector, Central Zone, MCD, Lajpat Nagar in this respect as said PW1 has deposed as under: "On 13.08.2004, I was posted as Dy. Assessor and Collector in the above said office. On that day, at about 3:20p.m. Inspector R.S. Khatri from Anti Corruption Branch came in my office and I along with Sh. Yogesh Kumar Verma Joint Assessor and Collector had tried to trace the accused Sahi Ram but he could not be traced as he was not present in the office at that time. The search of the table of the accused Sahi Ram was conducted C.C. No. 41/11 Page No. 25 of 41 and one property tax file along with order was recovered. One helmet, and one key of the motor cycle lying on the table. Said file along with order were taken into possession vide seizure memo Ex.PW1/A bearing my signature at point A. The application addressed to Assessment and Collection Department is Ex.PA and the assessment order dated 11.08.04 Ex.PB. Another copy of assessment order dated 11.08.04 was seized by the police vide seizure memo Ex.PW1/B. The said copy is Ex.PC. Two motor cycles of accused Sahi Ram were also found parked in the MCD Parking and same were also seized in this case."
The aforesaid deposition of PW1 has gone unrebutted being not challenged by the accused.
26. Furthermore, from the perusal of the Attendance Register Ex.PW3/F which was seized by the IO PW3 Inspector Sukhbir Singh vide seizure memo Ex. PW3/G it is clearly reflected that the accused had come to his office on 13.08.2004 and had marked his presence regarding his arrival in the office but there is no endorsement regarding the departure of the accused on said day i.e. 13.08.2004. It is further revealed from the record that the accused was found C.C. No. 41/11 Page No. 26 of 41 absconding since 13.08.2004 and has ultimately surrendered before the court in this case on 27.08.2004 and was sent to JC. The accused has failed to give any explanation regarding his abscondance from his office since the time of raid on 13.08.2004 till his surrender in the court on 27.08.2004. Said conduct regarding abscondance on the part of the accused without any explanation in this respect cannot be ignored because of the allegation against the accused regarding his abscondance after receipt of the bribe amount on 13.08.2004, in view of relevancy of said fact as contemplated U/S 8 of the Indian Evidence Act. In the case reported as AIR 1976 SC 449 "Maha Singh Vs. State (Delhi Administration) while dealing with the relevancy of the conduct of the accused it was observed by Hon'ble Supreme Court of India in Para 39 as under: "But all the same the conduct of the accused would be relevant under Section 8 of the Evidence Act if his immediate reactions to the illegal overture of the complainant or his action in inserting unwanted something in his pocket were revealed in the form of acts accompanied then and there or immediately thereafter by words or gestures reliably established. There is no evidence to support an innocent piece of conduct. In the entire circumstances of the case we agree with the High Court that it was not against the wishes of the C.C. No. 41/11 Page No. 27 of 41 accused that the money passed from the hands of the complainant into his pocket."
The fact that the accused has neither given any explanation in his statement U/S 313 Cr.P.C. regarding his abscondance from his office at the time of raid by police on 13.08.2004 till his surrender in the court on 27.08.2004 nor has led any evidence in this respect to justify the reason of his abscondance for such long period of 14 days i.e. from 13.08.2004 to 27.08.2004 and the conduct on the part of the accused about his hasty disappearance from his office at the time of raid by the police team, corroborate the stand of the prosecution that the accused has slipped away immediately after demand and receipt of the bribe amount of Rs. 5,000/ from PW5 complainant.
27. During course of arguments, it is submitted by Ld. Counsel for the accused that in a trap case the position of the complainant is that of an accomplice and his statement cannot be acted upon unless corroborated in material particular. He further added that since the complainant had a grudge against the accused because of attachment of his Bank account for clearance of the House tax arrear and therefore, this accused has been falsely dragged by the complainant in this case. So far as the contention that the statement of the C.C. No. 41/11 Page No. 28 of 41 complainant cannot be acted upon without corroboration is concerned, it is appropriate to refer to the case of Dewan @ Vasudeva and etc. V/s The State 1988 Crl. L.J. 1005 where it was held by Hon'ble High court of Kerala as under : ''True, the person who pays the gratification is, in a way, an accomplice in the offence, when his role is viewed from a wide angle. But before his evidence is dubbed as unworthy of credit without corroboration, a pragmatic or realistic approach has to be made towards such evidence. If the bribegiver voluntarily goes to the offender and persuades him to accept the bribe , his position is that of an undiluted accomplice and it is a rule of prudence to insist on independent corroboration such evidence. On the other hand, if the giver of gratification was persuaded to give it, he actually becomes a victim of persuasion by the offender. To name him an accomplice and to reject his testimony due to want of corroboration, would sometimes, be unrealistic and imprudent .The court must always bear in mind that insistence on corroboration for the evidence of accomplice is not on account of any rule of law, but is a caution of prudence. The density of the C.C. No. 41/11 Page No. 29 of 41 stigma to be attached to a witness as an accomplice depends upon the degree of his complicity in the offence. Suspicion towards his role as an accomplice should vary according to the extent and nature of his complicity. It must be considered in each case whether the bribe giving or payment of gratification was done in such a way that independent persons had no occasion to witness such acts. '' Furthermore, in another case reported as State of U.P. vs. Dr.G.K.Ghosh AIR 1984 SC 1453 it was observed by Hon'ble Supreme Court as under: "By and large a citizen is somewhat reluctant rather than anxious, to complain to the Vigilance Department and to have a trap arranged even if illegal gratification is demanded by a Government servant. There are numerous reasons for the reluctance. In the first place, he has to make a number of visits to the office of Vigilance Department and to wait on a number of officers. He has to provide his own currency notes for arranging a trap. He has to comply with several formalities and sign several statements. He has to C.C. No. 41/11 Page No. 30 of 41 accompany the officers and participants of the raiding party and play the main role. All the while he has to remain away from his job, work, or avocation. He has to sacrifice his time and effort while doing so. Thereafter, he has to attend the court at the time of the trial from day to day. He has to withstand the searching cross examination by the defence counsel as if he himself is guilty of some fault. In the result, a citizen who has been harassed by a Government officer, has to face all these hazards. And if the explanation offered by the accused is accepted by the court, he has to face the humiliation of being considered as a person who tried to falsely implicate a Government servant, not to speak of facing the wrath of the Government servants of the department concerned, in his future dealings with the department. No one would therefore be too keen or too anxious to face such an ordeal. Ordinarily, it is only when a citizen feels oppressed by a feeling of being wronged and finds the situation to be beyond endurance, that he adopts the course of approaching the Vigilance Department for laying a trap. His evidence cannot therefore be easily or lightly brushed aside. Of course, it cannot be gainsaid that it C.C. No. 41/11 Page No. 31 of 41 does not mean that the court should be oblivious of the need for caution and circumspection bearing in mind that one can conceive of cases where an honest or strict Government official may be falsely implicated by a vindictive person to whose demand, for showing favours, or for according a special treatment by giving a gobye to the rules, the official refuses to yield."
Furthermore, it is not the case where the complainant had been frequently giving bribe to the accused or public servant. Beside this, in the present case, the deposition of the complainant PW5 is found corroborated even from the deposition of PW9 A.N. Seth/Panch witness coupled with the Complaint Ex.PW5/A and Post Raid Proceedings Ex.PW5/B1 and subsequent conduct on the part of the accused whereby absconding from his office hastily at the time of the police raid on dated 13.08.2004 till his surrender in the court on 27.08.2004 and failure on the part of the accused to give any explanation regarding his abscondance for said period of 14 days. No doubt from the deposition of PW5 Complainant it is reflected that his Bank account was attached by MCD for recovery of the House tax for which the complainant filed application in the MCD but there is nothing on record that the complainant had entertained any personal C.C. No. 41/11 Page No. 32 of 41 grudge as against the accused so as to falsely implicate him in the present case and therefore, I do not find any force in the submission of Ld. Defence Counsel in this respect.
28. In view of the aforesaid material as available on the record, I am of the considered view that the factum regarding the demand and acceptance of bribe of Rs. 5,000/ by the accused Sahi Ram Tanwar from the complainant PW5 Kashyap Mankodi on 13.08.2004 in the office of the accused and immediately thereafter the abscondance of the accused from his office at the time of police raid have been duly proved by the prosecution through the deposition of PW5 Complainant, PW8 Inspector R.S. Khatri Raid Officer, PW9 A.N. Seth Panch witness, PW1 Sh. S.C. Yadav coupled with the contents of complaint Ex.PW5/A, Post Raid Proceedings Ex.PW5/B1 and in view of the same, I do not find any force in the submission of Ld. Defence Counsel to the effect that the prosecution have failed to establish its case of demand and acceptance of bribe of Rs.5,000/ by the accused from the complainant.
29. During the course of the arguments, it is submitted by Ld. Defence Counsel that as the Raid Officer is an interested witness for success of his raid and therefore, his deposition cannot be treated as C.C. No. 41/11 Page No. 33 of 41 trustworthy and reliable. I do not find any force in the submission of Ld. Counsel for the accused in this respect. Reference is placed on case of Hazari Lal V/s State ( Delhi Admn ) AIR 1980 Supreme Court 873. In that case the allegations against the accused who was a police officer was that he demanded bribe from the complainant for release of his scooter rickshaw which was seized by the police. The trap was laid and the accused was caught red handed. However, during trial complainant turned hostile and deposed that when he went to the police station on first occasion to obtain delivery of his scooter rickshaw it was not the accused that was present but one Hawaldar was present and it was not the accused but that Hawaldar who demanded bribe of Rs. 60/ from him and when he went to the police station along with punch witness he found accused there and asked him to take a sum of Rs. 60/ and return the scooter rickshaw. He stretched his hand with the money towards the pocket of accused 's trouser but accused said the money might be paid to the person for whom it was meant for. He refused to receive the money and jerked complainant's hand with his hand as a result of which the notes came to be flung across the wall into neighboring room. He deposed that accused neither demanded the amount from his nor accepted the amount. The punch witness who went along with the complainant C.C. No. 41/11 Page No. 34 of 41 could not be examined as he became insane and other punch witness turned hostile. The conviction was based on the statement of trap officer and the Hon'ble Supreme Court held as under: "We are not prepared to accept the submission of Shri Frank Authony that he is the very Police Officer who laid the trap should be sufficient for us to insist upon corroboration. We do wish to say that there is no rule of prudence which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In facts and circumstances of a particular case a Court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally, in the facts and circumstances of another case, the Court may unhesitatingly agent the evidence of such an officer."
30. Besides that in the case reported as AIR 1998 SC 1474 State of U.P. Vs. Zakullaha it was held by the Hon'ble Supere Court of India that the evidence of trap officer in a bribe case can be acted upon even without the help of any corroboration and similar view was held in following judgments : C.C. No. 41/11 Page No. 35 of 41 (1) Prakash Chand vs. State (Delhi Administration) AIR 1979 SC 400 (2) Hazari Lal vs. Delhi Administration AIR 1980 SC 873
31. I also do not find any force in the submission of Ld. Defence Counsel that since there was no recovery of any bribe amount from the accused, the presumption as contemplated U/S 20 of Prevention of Corruption Act, 1988 cannot be attracted in the present case. No doubt as the accused is found to have slipped away from the spot immediately after the receipt of the bribe amount of Rs.5,000/ from the complainant and remained absconded from 13.08.2004 to 27.08.2004 (till his surrender in the court) for which no explanation could be given by the accused and the bribe amount could not be recovered from the accused but the same cannot be treated as a bonus for the accused. Furthermore, from the Bare perusal of the Section 20 of the Prevention of Corruption Act, 1988 it is clearly reflected that mere nonrecovery of the bribe amount will not automatically dislodge the legal presumption as made available as against the accused. Once the accused is found to have accepted the bribe amount it is for him to explain in which capacity he had accepted the same. C.C. No. 41/11 Page No. 36 of 41
32. 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 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.C.C. No. 41/11 Page No. 37 of 41
33. 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 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."
C.C. No. 41/11 Page No. 38 of 41
34. 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."
35. It was held in the case reported as State of AP Vs. Kommaraju Gopala Krishna Murthy 2000 (9) SCC 752, that when the amount is found to have passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification. That burden was not discharged by the accused herein.
36. 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 C.C. No. 41/11 Page No. 39 of 41 the accused. I am also of considered view 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 relating to demand and acceptance of bribe by the accused.
37. In view of the aforesaid discussion, I have no hesitation to safely conclude that the prosecution has successfully established its case as against the accused Sahi Ram Tanwar for the offence punishable U/S 7 and 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988. Since the accused has been found guilty for the said main offence, I am not inclined to convict the accused for the ancillary offence as contemplated U/S 201 IPC. My said view is found nourished from the judgment reported as "AIR 1953 SC 131, Smt. Kalawati and Anr. Vs. The State of H.P." as rendered by Hon'ble Supreme Court of India wherein it was observed in middle part of Para 22 as under: "Section 201 is not restricted to the case of a person who screens the actual offender, it can be applied even to a person guilty of the main offence, though as a matter of practice a Court will not convict a person both of the main offence and under S. 201"
C.C. No. 41/11 Page No. 40 of 41
38. The net result of the aforesaid discussion is that the accused Sahi Ram Tanwar is found guilty and resultantly stand convicted for offence punishable U/S 7 and 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988. Hence, he be heard separately on the point of sentence.
Announced in the open court on this 26th day of April, 2011 (B.R. Kedia) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC,Delhi C.C. No. 41/11 Page No. 41 of 41