Delhi District Court
State vs . Ashok Kumar Phull Etc. on 26 April, 2014
1
IN THE COURT OF SH. NAROTTAM KAUSHAL
SPECIAL JUDGE (PC Act)05, (ACB), (CENTRAL),
TIS HAZARI COURTS, DELHI
STATE
Versus
1.Ashok Kumar Phull
S/o Shri Ram Swaroop
R/o D110, Ground Floor,
East of Kailash,
NewDelhi.
2. Subhash Chander Phull
S/o Shri Ram Swaroop
R/o D110, First Floor,
East of Kailash,
NewDelhi.
Corruption Case No. : 68/2007
FIR No. : 34/2006
Case Identification No. : 02401R1283192007
Police Station : Anti Corruption Branch
Under Section : 7/8/13 (1) (d) of Prevention of
Corruption Act, 1988 &
120B IPC
Date of Institution : 15.12.2007
Date of reserving the Judgment : 23.04.2014
Date of pronouncing the Judgment : 26.04.2014
State Vs. Ashok Kumar Phull etc.
2
JUDGMENT
1.1 One Vijay Kumar Kataria filed a complaint on 26.04.2006 at PS Anti Corruption Branch. As per his complaint he was a registered contractor with Delhi Jal Board and his company namely M/s Kaveri Infrastructure Private Ltd. was engaged in the business of sewer rehabilitation. One of his contracts in NDMC area, had been approved by Delhi Jal Board for which Subhash Chander Phull ( Member, Delhi Jal Board) demanded hefty amount of bribe from him. Since the complainant did not pay the aforesaid demanded bribe, the work was ordered to be retendered. Subhash Chander Phull was not satisifed at this as well and threatened the complainant to order retender of another contract for which complainant had put in tender eight months earlier. He demanded bribe of Rs. 50 lacs to avoid retender. Complainant requested him not to demand bribe as there was no deficiency in his work. At this accused told him that finding deficiency was one minute job for him. Accused then manipulated a complaint from his rival company M/s Envirotec Pvt. Ltd. and demanded Rs. 50 lacs as bribe and threatened that in case bribe was not paid, complainant's company shall be blacklisted. Complainant again spoke to accused in the previous week and explained that Rs. 50 lacs was a very hight amount and he cannot arrange the same at one go. On this accused told him to pay bribe in installments. He told the complainant to hand over the money to his brother Ashok Kumar Phull, who was an State Vs. Ashok Kumar Phull etc. 3 Executive Engineer in Delhi Jal Board. Complainant then told accused to inform his brother that complainant's nephew Sanjay Chugh will meet him to give the bribe. Complainant also gave him the telephone number of his nephew. On 25.04.2006 Ashok Kumar Phull called up his nephew but the call could not mature as the phone was busy. Shortly thereafter they spoke to each other when Ashok Kumar Phull told him to bring as much money as possible, as his brother had so desired. Complainant arranged Rs. 8 lacs which he had brought to PS Anti Corruption Branch, along with his nephew Sanjay. He, therefore, prayed for action against accused.
1.2 On the complaint aforesaid, officials of PS Anti Corruption Branch swung into action. A raiding team was constituted, which included Sham Kumar, panch witness. Serial numbers of currency notes of two packets were noted down. Since a lot of time was being consumed in noting of the serial numbers, therefore serial number of first note in each of the remaining packets was noted. Phenolphthalein powder was applied on the currency notes and were kept in a green polythene, which was also treated with phenolphthalein powder. Use and significance of powder was explained to the complainant and panch witness. Complainant ( Sanjay Chugh ) was instructed to hand over the currency notes only on demand by the accused and to do the transaction in a manner that panch State Vs. Ashok Kumar Phull etc. 4 witness can overhear and see the same. Raiding team left for the spot. On the way Sanjay Chugh received a phone call from accused Ashok Kumar Phull informing him that he was waiting on J.B. Tito Road, in a white Indica car, at the end of flyover from GK side. Sanjay Chugh and panch witness went ahead in the vehicle of complainant, remaining raiding team followed them in a government vehicle. Sanjay Chugh stopped his car near the car of the accused. On demand of the accused he handed over the polythene bag containing treated GC notes to the accused. On predetermined signal being given by panch witness Sham Kumar Talwar, raiding team reached the spot and apprehended the accused. At the instance of panch witness, polythene bag containing treated GC notes was recovered from the possession of accused Ashok Kumar Phull, which was lying on the seat of his car. Proceedings of hand wash of accused were carried out. Sealing and seizing of case property was conducted. Rukka for registration of FIR was prepared. Accused and case property were handed over to the IO. Accused Ashok Kumar Phull was arrested. Statement of witnesses were recorded. 1.3 During investigation it was further revealed that accused Ashok Kumar Phull demanded and accepted bribe at the instance of his brother Subhash Chander Phull. Both of them had been living in the same house. Subhash Chander Phull was working as Member of Delhi Jal Board. IO collected call detail records of the phone numbers of State Vs. Ashok Kumar Phull etc. 5 accused Ashok Kumar Phull and the complainant. Finding sufficient material against both the accused persons, challan was filed in the court.
2.1 Ld. predecessor of this court took cognizance of the offence punishable u/s 7, 8 and 13 of the PC act against both the accused persons. They were summoned to face trial.
2.2 On appearance of the accused persons and after hearing them in detail, charge was framed against both of them vide order dated 03.06.09 for offences u/s 7 & 13 PC Act. Accused persons pleaded not guilty and claimed trial.
3.1 Prosecution in support of its case examined 30 witnesses. Complainant Vijay Kumar Kataria (PW1) is star prosecution witness as regards demand of bribe by accused Subhash Chander Phull. Sanjay Chugh (PW2) and panch witness Shyam Kumar (PW5) are witnesses to the proceeding of 26.04.2006 on which day trap was laid and accused Ashok Kumar Phull was apprehended while accepting Rs. 8 lacs as part bribe on behalf of himself and his brother.
3.2 Gajinder Tomar (PW9) Executive Engineer, Virender Singh Thind (PW10) Chief Engineer, Vijay Kumar Gupta (PW12) Executive State Vs. Ashok Kumar Phull etc. 6 Engineer, Pankaj Kumar Gupta (PW13) Executive Engineer, Ramesh Thakur (PW14) Executive Engineer are all officers of Delhi Jal Board. They have been examined by the prosecution in order to support the averments of Vijay Kumar Kataria (PW1) that a contract decided to be awarded to Kaveri Infrastructure Pvt. Ltd. to be performed in NDMC area, on behalf of Delhi Jal Board, was subsequently decided to be re tendered at the instance of accused Subhash Chander Phull who was working as Member (Drainage), DJB.
3.3 Another set of officials of Delhi Jal Board have been examined to supplement another averment of complainant that accused Subhash Chander Phull was exercising his influence in preparing record for blacklisting complainant's firm M/s Kaveri Infrastructure Private Ltd. Vijay Kumar Babbar (PW11 ) Chief Project Director, M.P. Singh (PW16) Executive Engineer and R.K. Jain (PW19) Chief Engineer and Harish Chander (PW7), Engineer Officer have proved the office notings wherein accused Subhash Chander Phull sought the remarks of aforesaid officials on a complaint against M/s Kaveri Infrastructure Private Ltd. by its rival M/s Envirotec Pvt. Ltd.. R.S. Godboley (PW18) Additional Director (Vigilance ) has also deposed that on complaint against M/s Kaveri Infrastructure Private Ltd. accused Subhash Chander Phull made his remarks. Dinesh Kumar (PW28), UDC, Law Office, Delhi Jal Board deposed that his opinion was sought State Vs. Ashok Kumar Phull etc. 7 regarding enlistment of contractors in context of M/s Kaveri Infrastructure Private Ltd.. Priti Pant (PW15) Executive Engineer has deposed that a letter from NDMC was received on 18.5.2006 which desired that MOU sent to Delhi Jal Board be accepted and signed. 3.4 Vijender Singh Rawat (PW17) Additional Director, Social Welfare, GNCT proved reemployment of accused Subhash Chander Phull as Member (Drainage), Delhi Jal Board w.e.f. 24.02.2006 after his superannuation on 30.01.2006. Ashok Sharma(PW20) Meeting Assistant of Delhi Jal Board proved minutes of various meetings of Delhi Jal Board.
3.5 Ashok Kumar Grover (PW24 ), Chief Manager, PNB, Chirag Delhi proved withdrawl of Rs. 8 lacs from the account of M/s Kaveri Infrastructure Private Ltd. on 26.04.2006. Sanjiv Arora (PW6) proved deployment of vehicle No. DL1Y8988 with accused Ashok Phull. This was the vehicle from which recovery of treated GC notes was effected. Vishal Gaurav (PW22) and Jyotish (PW23) Nodal officers of Bharti Airtel and Hutch/Vodafone proved the call detail records of cell phones used by accused Ashok Kumar Phull and Sanjay Chugh. Arun Mathur (PW30) proved sanction u/s 19 of the PC Act for prosecution of accused Ashok Phull. Dr. Madhulika Sharma (PW29) proved FSL report regarding presence of phenolphthalein powder in hand wash of accused Ashok Kumar Phul.
State Vs. Ashok Kumar Phull etc. 8 3.6 Ct. Ravinder Prasad ( PW25) proved the duty roaster of panch witness Shyam Kumar. HC Shaukat Ali (PW3) and HC Surender (PW4) proved safe custody of case property and samples during the period the same remained deposited in malkhana and were sent to FSL. Retired ACP Chanderhas (PW8) was the raiding officer. Inspector Sunder Dev (PW27 ), Inspector M.K. Johri (PW26) and Retired ACP Surjit Singh ( PW21) remained investigating officers of the present case. They have proved various stages of investigation.
4. Incriminating evidence that had come up against the accused persons was put to them and their respective statements were recorded u/s 313 Cr. P.C. Two supplementary statements U/sec.313 Cr.P.C. were also recorded. Both the accused persons denied any demand of bribe from Vijay Kataria. They denied the pretrap and post trap proceedings. Accused Subhash Chand Phull denied that he had power to tender/ retender any contractor or to enlist /blacklist a contractor. He did not deny having made notes in file regarding complaint against M/s Kaveri Infrastructure Private Ltd. He explained the same to have made in routine discharge of his official duty. Withdrawal of Rs. 8,00,000/ from the account of M/s Kaveri Infrastructure Private Ltd. on 26.4.2006 was denied for want of knowledge. Call detailed records of the cell phones of Ashok Phull and Sanjay Chugh were not denied by Ashok Phull. Recording of FIR , safe State Vs. Ashok Kumar Phull etc. 9 custody of case property, FSL report was also put to the accused persons. They stated the witness to be interested and false. Accused Ashok Kumar Phull explained the trap to have been fabricated at the instance of Vijay Kataria. He explained that Sanjay Chugh had handed over certain documents to him, with respect to some work executed by him as a contractor under his control. They had talked to each other on phone between 4.00 PM to 4.40 PM to fix up the place of meeting for handing over of the documents. He denied knowledge that the bag contained GC notes. He claims to have been falsely trapped by Sanjay Chugh. Accused Subhash Chander Phull explained that he had no financial powers during the period of his reemployment. In a separate inquiry conducted by the government, LG has exonerated him. Both the accused persons sought opportunity to lead defence evidence. In the supplementary statement recorded on 16.11.2013 grant of prosecution sanction with regard to accused Ashok Phull was also put to the accused persons. They explained the sanction to have been granted without application of mind. In Supplementary Statement on 23.04.2014, they explained that they occupied different floors in the same house. 5.1 Accused persons examined 17 witnesses in their defence. Savita, Office Superintendent from Delhi Jal Board was examined as DW1 and DW12. She proved reengagement of Subash Chander Phull after his superannuation and assignment of work as Member (WS) & State Vs. Ashok Kumar Phull etc. 10 (Drainage), on work charge basis. Statutory work was not assigned to him. B.M. Dhaul ( DW13), chief Engineer from Delhi Jal Board deposed about the powers vested in Subhash Chand Phull on his reemployment. R.K. Garg (DW16), Executive Member (Water) Delhi Jal Board deposed that work of rehabilitation of sewer was of the approximate cost of Rs. 23 crores which could be awarded only by Delhi Jal Board headed by Chief Minister, Delhi. Raj Kumar (DW14) Head Clerk, Delhi Jal Board proved the circular issued by Delhi Jal Board regarding financial powers of officials of Delhi Jal Board. Arjun Vasudeva (DW2) an exemployee of EnviroTech Pvt. Ltd. deposed having written a complaint against M/s Kaveri Infrastructure Private Ltd.. L.L. Meena (DW4) Executive Engineer, Delhi Jal Board proved that Sanjay Chugh was also a contractor in Delhi Jal Board.
5.2 Sunil Kumar Mahendru (DW6) Executive Engineer, Delhi Jal Board claims that he was with Ashok Kumar Phull in his car at the time of his trap. He has given a different version of the incident, claiming that Sanjay Chugh handed over a bag containing documents. Some papers were visible in the upper portion of the bag. He claims to be present with the accused and raiding team till 9.30 PM. Rajiv Sharma (DW7), Junior Engineer in Delhi Jal Board has deposed that accused Ashok Kumar Phull and Sunil Kumar Mahendroo left together at about 3.30 PM on 26.04.2006.
State Vs. Ashok Kumar Phull etc. 11 5.3 Accused persons have also examined some witnesses to prove involvement of complainant Vijay Kataria in various cases. HC Ishwar Singh (DW3), HC Sukhdev (DW9) and SI Parveen Badsara (DW8) have proved FIRs No. 170/11 and 162/06 having been registered against complainant Vijay Kataria. M.K. Arora (DW11) UDC, Vigilance Department, Delhi Jal Board proved inquiry report whereby accused Subhash Chander Phull was exonerated.
5.4 Sarat Chander (DW17) a retd. Engineer from Delhi Jal Board was examined by the accused persons to prove the conduct of complainant Vijay Kumar Kataria. He has deposed that he had been falsely implicated in FIR No. 162/07 PS Malviya Nagar, u/sec.176 IPC by a female employee of Vijay Kataria. During a subsequent telephonic conversation between witness and complainant Vijay Kataria, complainant admitted having falsely framed the witnesses as an accused in the rape case. During the same conversation complainant Vijay Kataria also admitted that accused Subash Chander Phull and his brother were 'innocent'. CD and transcript of such conversation was proved by this witness. Inspector Poornima Panthri (DW10) was examined to trace the CD and CFSL report in FIR No. 610/07 PS Malviya Nagar. 6.1 Shri Sanjay Soni, Ld. Additional PP assisted by Shri Vikas Arora, Ld. counsel for the complainant, has argued that from the testimony of Engineers/Officers of Delhi Jal Board, it is established State Vs. Ashok Kumar Phull etc. 12 beyond reasonable doubt that accused Subhash Chander Phull was misusing his position and power as Member, Delhi Jal Board to the detriment of business interest of complainant Vijay Kataria. Ld. Counsels referred to the testimonies of witnesses and files/office notings collected during investigation to show that accused Subhash Chander Phull was instrumental in retendering of contract of desilting/rehabilitation of sewer line, which fell in the area of NDMC. Simultaneously, accused Subhash Chander Phull as Member (Drainage) was trying to push through blacklisting of the firm of complainant Vijay Kataria i.e. M/s Kaveri Infrastructure Private Ltd.. It is also pointed out that in another contract complainant Vijay Kataria had participated in tendering process and being the lowest bidder, expected the contract to be awarded to him. However, the same was also not being processed, due to accused Subhash Chander Phull, as he did not grant appointment for meeting to negotiate the rate. It is thus argued that Subhash Chander Phull was pressurising Vijay Kataria to pay him bribe and threatening him of adverse action in case the bribe was not paid. 6.2 It is next argued that both the accused persons being brothers and occupants of the same house, colluded & conspired with each other and accused Ashok Kumar Phull as part of the conspiracy went to collect the bribe from an agent of the complainant i.e. Sanjay Chugh. Trap proceedings are sufficiently proved in the testimony of State Vs. Ashok Kumar Phull etc. 13 Sanjay Chugh (PW2), Shyam Kumar (PW5) panch witness and Raid Officer Inspector Chanderhas (PW8). Presence of phenolphthalein powder on the hands of the accused and the treated GC notes of Rs. 8 lacs withdrawn from the account of M/s Kaveri Infrastructure Private Ltd., establish beyond reasonable doubt that bribe was demanded and accepted by accused Ashok Kumar Phull in conspiracy with his brother Subhash Chander Phull. The call detailed records prove meeting between accused Ashok Kumar Phull and Sanjay Chugh. 7.1 Ld. defence counsels Sh. Ashok Soni and Shri R.D. Sharma for accused Ashok Kumar Phull and Subash Chander Phull, respectively have strongly contested the case of the prosecution. It is argued that complaint Ex. PW1/A is not a complete document. The allegations contained therein are not specific and no evidence has been led to support the allegations contained therein. There are no specific details of the work allegedly awarded/approved. Reference to a tender in the complaint is also not descriptive. There is no evidence of demand of bribe by accused Subhash Chander Phull. Vijay Kataria (PW1) is not a witness who can be trusted and relied upon. He is himself in custody and involved in several offences. Moreover in his telephonic conversation with Sarat Chander (DW17) he admitted Subhash Chander Phull was innocent. It is next argued that Sanjay Chugh (PW2) is also not a witness who can be relied upon. Witness has withheld and State Vs. Ashok Kumar Phull etc. 14 concealed from the court that he was also a contractor and Delhi Jal Board and was executing a work under the control of accused Ashok Kumar Phull, Executive Engineer. As regards the capacity of accused Subhash Chand Phull to influence tender/ retender, enlistment /blacklisting ; it is argued that Subhash Chander Phull superannuated as Chief Engineer on 30.01.2006 and was reemployed on 24.02.2006. On his reemployment he was only officiating as Member of Delhi Jal Board and did not exercise any statutory powers. Delhi Jal Board is a multi membered body headed by Chief Minister, Delhi and accused was one of those 17 members, and could not have unilaterally shown any favour or disfavour to the complainant. It is also argued that there was no occasion to demand and accept bribe on 26.04.2006, as adverse order/ action had already been passed against the firm of complainant. Moreover, during the alleged period of demand accused was not in employment of Delhi Jal Board, having superannuated and not yet reemployed.
7.2 As regards the incident of trap on 26.04.2006, it is argued that there is no explanation as to why the complainant had himself not delivered the bribe to accused Subhash Chander Phull. Involvement of Sanjay Chugh (PW2) and accused Ashok Kumar Phull is not explained. By trapping Ashok Kumar Phull, complainant has falsely implicated Subhash Chander Phull who happened to be brother of Ashok Kumar State Vs. Ashok Kumar Phull etc. 15 Phull. Subhash Chander Phull had noticed the misconduct of the complainant's company and complainant wanted to take revenge. There is also no evidence as to when the money was withdrawn from the bank. Distance between PS ACB where pretrap proceedings took place and the Chirag Delhi Branch of Punjab National Bank, is about 30 kilometer. Complainant having already reached the PSACB at 10.30 AM, could not have withdrawn the amount from the bank on the same day. Ld. counsels have relied upon the law laid down in State of Punjab Vs Madan Mohan Lal Verma 2013 (10) SCALE, Rakesh Kapoor Vs State of Himachal 2013 (1) Crimes 79 (SC), C.M. Girish Babu Vs CBI AIR 2009 Supreme Court 2022, Satpal Vs Delhi Administration AIR 1976 Supreme Court 294, Suraj Mal Vs State (1979) 4 SCC 725, T. Subramaniam Vs State of Tamilnaidu (2006) 1 SCC 201, Karan Singh Vs State of Haryana AIR 2013 SC 2348 and Delhi High Court Delhi Administration Vs Satish Chand Sharma DRJ 1986 (10) It is thus argued that prosecution case suffers from various improbabilities and contradictions. The testimonies of star prosecution witnesses Vijay Kataria and Sanjay Chugh (PW1 & PW2) cannot be relied upon, as they have both concealed material facts from the court. Accused Subhash Chander Phull having been exonerated in the departmental enquiry, report having been accepted by the Lt. Governor, cannot be held guilty. It is, therefore, argued that prosecution has failed to prove its case beyond reasonable doubt.
State Vs. Ashok Kumar Phull etc. 16
8. I have heard the Ld. counsels and with their assistance perused the record. The present is a peculiar case. It is different from the routine matters, where bribe taker and bribe giver are only two persons. In the present case there are two sets of bribe givers and two sets of bribe takers. It is the case of the prosecution that accused Subhash Chander Phull demanded bribe from Vijay Kataria (PW1 ), which constitute one set of briber taker and bribe giver. In pursuance of the demand so made by Subhash Chander Phull, his brother Ashok Kumar Phull accepted the bribe given by Sanjay Chugh (PW2) on behalf of his uncle Vijay Kataria (PW1). They constitute second set of bribe giver & taker. To adjudicate the controversy, following questions need to be answered.
(i) Whether Subhash Phull demanded Rs. 50 lacs as illegal gratification from Vijay Kataria, as a motive or reward for showing or forbearing to show any favour or disfavour to Vijay Kataria or under a threat to tender/retender contract or to delist his company?
(ii) Whether Ashok Kumar Phull demanded & accepted illegal gratification of Rs. 8 lacs for himself or for his brother Subhash Chander Phull pursuant to demand of Rs. 50 lacs as bribe from Sanjay Chugh?
State Vs. Ashok Kumar Phull etc. 17
(iii) If questions No. 1 and 2 are answered in affirmative, whether Ashok Kumar Phull accepted illegal gratification on behalf of or in conspiracy with his brother Subhash Chander Phull?
I shall now take up each of the aforesaid three questions one by one.
(i) Whether Subhash Phull demanded Rs. 50 lacs as illegal gratification from Vijay Kataria, as a motive or reward for showing or forbearing to show any favour or disfavour to Vijay Kataria or under a threat to tender/retender contract or to delist his company?
9.1 There is only one direct witness to answer this question i.e. complainant Vijay Kataria (PW1 ). However, prosecution has examined several engineers/officers of Delhi Jal Board to prove the conduct of accused Subhash Chander Phull and to support the oral testimony of Vijay Kataria (PW1). One set of officers of Delhi Jal Board namely PW7, PW11, PW16 and PW19 have been examined to prove office notings wherein accused Subhash Chander Phull is making inquiries about the complaint made by a company namely M/s Enviro Tech Pvt. Ltd. which was rival in business to the company of Vijay State Vs. Ashok Kumar Phull etc. 18 Kataria (M/s Kaveri Infrastructure Private Ltd. ). Accused Subhash Chander Phull is also suggesting action against M/s Kaveri Infrastructure Private Ltd. with respect to its enlistment. Second set of engineers/officers of Delhi Jal Board namely PW9, PW10, PW12, PW13 and PW14 have been examined to prove that a work agreed to be awarded to M/s Kaveri Infrastructure Private Ltd. for Desilting/ Rehabilitation of sewer in the area of NDMC, to be performed by Delhi Jal Board as deposit work, was ordered to be retendered. The third set of witnesses of Delhi Jal Board namely PW9 and PW10 have deposed that a work of desilting of trunk peripheral sewer was tendered on 21.10.2005, wherein M/s Kaveri Infrastructure Private Ltd. was the lowest bidder. Final rate was to be settled by accused Subhash Chander Phull by negotiation with M/s Kaveri Infrastructure Private Ltd.. Despite efforts, accused Subhash Chander Phull was not holding the meeting for negotiation and vide his note dated 24.04.2006, he directed that complaint of M/s EnviroTech against M/s Kaveri Infrastructure Private Ltd. be put up on the record of that file. 9.2 Vijay Kataria (PW1) the sole witness to the demand of Rs. 50 lacs as bribe has deposed that in February 2006 he met accused Subhash Chander Phull and he demanded illegal gratification from him in respect of work which was to be awarded to him. Accused Subhash Chand Phull demanded bribe of Rs. 50 lacs / from him for this work State Vs. Ashok Kumar Phull etc. 19 and also threatened that in case the bribe is not given, the work would be retendered. He has further deposed that he had another work in the area of transyamuna, where negotiation was to be conducted with accused Subhash Chander Phull for finalisation of rate. Concerned Chief Engineer told the witness that accused was not giving an appointment for negotiation. The witness has further deposed that accused Subhash Chander Phull threatened to blacklist his firm in case the bribe amount of Rs. 50 lacs was not paid. Accused had also taken a complaint against him, in connivance with his rival company M/s EnviroTech Overseas Pvt. Ltd., for the purpose of blacklisting complainant's company. Accused demanded bribe of Rs. 50 lacs also under the threat of blacklisting complainant's company. This part of testimony of Vijay Kataria (PW1) is challenged by the defence on the ground that accused Subhash Chander Phull stood superannuated on 30.01.2006 and in February 2006 he had not been reemployed. Further, the financial powers of accused Subhash Chader Phull were limited to contracts upto Rs. Three crores, whereas the contract of desilting in NDMC area was of the value of Rs. Twenty three crores. It is also argued that no specific date of demand of Rs. 50 lacs or proof of meeting between the two is proved. The complaint does not give details of the projects.
State Vs. Ashok Kumar Phull etc. 20 10.1.1 There is no dispute to the fact that accused Subhash Chander Phull superannuated on 30.01.2006 and was reemployed as Member Delhi Jal Board on 24.02.2006. However, during the period of about 23 days when accused was not in the office, process for his re employment had already commenced. The proposal for his reemployment had been approved by Delhi Jal Board in its meeting dated 17.01.2006 itself. Minutes of the meeting dated 17.01.2006 have been exhibited as Ex. PW20/B wherein Board considered the proposal dated 13.01.2006 and resolved to appoint him on contract basis w.e.f. 1.2.2006. For ready reference relevant extract of the minutes is reproduced herein below: 'RESOLUTION NO. 1125 ITEM NO. ADMN. 272 Appointment of Shri Subhash Chander as Consultant.
The Board considered the proposal contained in Dir. (A&P)'s letter No. DJB/334 dated 13.01.2006 and resolved to engage him on contract appointment to work as Member (W/S) for a period of 18 months w.e.f. 01.02.2006. The Board further resolved that Shri Subhash Chander, while on contract appointment will continue to enjoy and exercise all the powers of Member (W/S) so that there is no hindrance of any kind in the smooth functioning of the work and the post of Member (W/S) will be kept vacant during this period. The Board further resolved to take action in anticipation of confirmation of minutes.
State Vs. Ashok Kumar Phull etc. 21 10.1.2 A study of the resolution approved on 17.01.2006 establishes that accused Subhash Chander Phull had been assured of his reemployment on contract basis, much before his superannuation. Thus during the interregnum when his formal order of reemployment had not been issued, he was 'expecting to be a public servant' and thus covered in the ambit of section 7 PC Act. Another argument raised regarding the powers vested in accused is also answered in the above quoted resolution, where it was resolved that he will continue to enjoy and exercise all the powers of Member (W/S). Moreover accused being the only technical person in the multi membered DJB, wielded sufficient influence to maneuver the view of the Board. His acceptability and influence in the Delhi Jal Board is reflected in the proposal dated 13.01.2006 and also the minutes dated 8.2.2006 ( Ex. DW1/A )for his reemployment where his expertise and experience is highly complimented. Similar language is also used in the resolution. His reappointment was finally ratified by the Board on 30.03.2006 (Ex. PW18/B).
10.2 It is correct that there is no proof on record of meeting between accused Subhash Chander Phull and complainant Vijay Kataria but there is no cross examination or suggestion to the witness that he did not meet or speak to the accused, during this period of January to February, 2006. It is not disputed that complainant was State Vs. Ashok Kumar Phull etc. 22 regular contractor of Delhi Jal Board performing various contracts. There is usually no restriction to regular visitors to any government office, for meeting officers. During his cross examination PW1 has deposed that for visiting accused Subhash Chander Phull, no entry was required to be made in registers, only name slip had to be sent. Moreover accused cannot be permitted to raise this objection, as the transcript of CD of conversation between Sarat Chander (DW17) and complainant Vijay Kataria (PW1) Mark DA (permitted to be read as exhibit, vide order dated 23.1.2013) indicates that accused and complainant were maintaining social contacts, wherein even families had been meeting each other. I, therefore, find no merit in the argument that complainant has not placed on record any proof of his meeting with accused Subhash Chander Phull.
10.3 The argument that complaint Ex. PW1/A is not a complete document, is also merit less. It is settled law that FIR need not be an encyclopedia of prosecution case. (Manoj Vs State of Maharashtra 1994 (4) SCC 268 ). Complaint is not required to be as deftly drafted as pleadings in civil suit. Moreover the allegations made in the complaint have been detailed by complainant in his testmony as PW1, which has been further corroborated by official witnesses of Delhi Jal Board. State Vs. Ashok Kumar Phull etc. 23 10.4.1 First allegation against the accused by the complainant is with respect to work approved to be awarded to complainant's company for desilting of drain in NDMC area on behalf of of Delhi Jal Board. Vijay Kataria (PW1) has deposed that he had been awarded a contract of desilting/rehabilitation of sewer line, in the area of ITO and Kilokari. Part of this jurisdiction fell in the area of NDMC. Officials of NDMC requested Delhi Jal Board to ask its contractor to continue with the work in the area of NDMC also. Delhi Jal Board took consent from him and processed the file. Work was approved by Delhi Jal Board. Accused demanded illegal gratification from him in respect of this work. Since complainant did not pay the said bribe, the work was re tendered. In support of this allegation of complainant/PW1, prosecution has examined engineers of Delhi Jal Board namely PW10, PW12, PW13, PW14 and PW15. All the aforesaid engineers of Delhi Jal Board have deposed that a decision had been taken to continue desilting/ rehabilitation by Delhi Jal Board, even for the portion of line which fell in the jurisdiction of NDMC. M/s Kaveri Infrastructure Private Ltd. was to execute the work and maintain it for ten years. The work was to be done by Delhi Jal Board through M/s Kaveri Infrastructure Private Ltd. as 'deposit work' for NDMC. The MOU was prepared by Delhi Jal Board and sent to NDMC but NDMC changed certain terms and conditions, which were not acceptable to Delhi Jal Board. Accused was then officiating as Member ( Drainage ) of Delhi Jal Board and file was State Vs. Ashok Kumar Phull etc. 24 put up before him. Reference may also made to minutes of meeting of Delhi Jal Board dated 30.03.2006 (Ex.PW18/B) vide which the Board resolved as under: 'After discussion of the Board decided that since NDMC does not agree to the decision earlier taken. DJB may invite tenders afresh and work for rehabilitation of remaining length of 66" ( 1650mm dia old brick barrel from Q point to Dayal Singh College (NDMC area ) be got done as a deposit work of NDMC.' 10.4.2. The averment of complainant that accused threatened retendering of NDMC project in February 2006 and when the demand made by him was not taken to it logical end; he ensured re tendering is thus established. There is no justifiable explanation on record as to why the work was resolved to be retendered by Delhi Jal Board, when terms of its MOU were not accepted by NDMC. It was not a situation where work by M/s Kaveri Infrastructure Private Ltd. was found to be deficient or more expensive. If the work was to be performed by Delhi Jal Board itself, in the area of NDMC, the decision to retender looks unjustifiable. The argument made by Shri Vivek Arora, Ld. counsel for the complainant that accused by getting this contract rescinded and retendered, flexed his muscles and coerced the complainant to pay bribe, seems plausible.
State Vs. Ashok Kumar Phull etc. 25 10.5 Second allegation by the complainant is about one tender, which he had applied eight months earlier. As PW1 he deposed that one of his projects in the transyamuna area had been pending for finalisation. Accused who was to finally negotiate the rate with the complainant was not affording opportunity of meeting the concerned Chief Engineer. This oral testimony of complainant is fortified by the evidence of official witnesses namely PW9 and PW10. Gajinder Tomar (PW9 ) was working as Executive Engineer (Drainage -X) in the year 2005. He has deposed that desilting of trunk peripheral sewer was to be conducted by super sucker machines. The estimated cost of project was about Rs. 66,00,000/. The draft was approved on 21.10.2005 and tenders were floated. M/s Kaveri Infrastructure Private Ltd. was the lowest bidder, but the rate quoted were higher than the rate justified by the department; negotiation of rates was to be done by the accused. Time and date of negotiation was to be taken from accused. Witness received the file from accused on 24.4.2006 with the remarks to put up detailed report of the work, as well as regarding the complaint lodged against M/s Kaveri Infrastructure Private Ltd. by EnviroTech Overseas Ltd. Virender Singh Thind (PW10) was working as Superintendent Engineer (Drainage X ) and was a step senior to PW9. He has also deposed in the same terms as PW9. The evidence of aforesaid two witnesses, who have no reasons to depose falsely against their own senior colleague, corroborates the complainant's version that accused State Vs. Ashok Kumar Phull etc. 26 had been delaying award of contract to him, for demand of bribe. He also brought on record, a complaint against M/s Kaveri Infrastructure Private Ltd. on the file of this case; which shows his malafides against the complainant.
10.6 Third allegation made in the complaint about the threat by accused to delist complainant's company, is amply proved in the testimony of officers of Delhi Jal Board namely PW7, PW11, PW16 and PW19. File D34 and the notings contained therein are proved by the aforesaid witnesses. Noting Ex. PW16/A proved by M.P. Singh (PW16) refers to letter dated 2.3.2006 forwarded by accused vide diary No. 941 dated 6.3.2006; though this letter dated 6.3.2006 is not on record, apparently accused had sought the views of officials of department on complaint made by M/s EnviroTech Overseas Ltd. against complainant's company M/s Kaveri Infrastructure Private Ltd.. Having not received the comments in time, accused vide another note dated 16/17.03.2006 at page 15 of file D34 required Chief Engineer to expedite the report on his letter diary No. 941 dated 06.03.2006 and required the report to be submitted latest by 21.03.2006. This note dated 16.03.2006 indicates the dogged perseverance by which the accused was persuing a complaint against complainant's company. Not satisfied with the note dated 20.3.2006 (Ex. PW16/A) made by PW16 and approved by PW11 and PW19, accused returned the file State Vs. Ashok Kumar Phull etc. 27 with query vide note dated 21.03.2006 (Ex. PW16/B) regarding general rules of enlisted contractors; remarking that complainant's company was a working contractor and wondering if there shall be implications on his work. Vide another note dated 29.03.2006 (Ex. PW19/A) accused again directed to check if Delhi Jal Board had its own rules of enlistment of contractors and also if action could be initiated against the contractor as per clause 23.2. The study of notings by accused in file D34 establishes beyond all reasonable doubt that accused was clearly pursuing and exploring possibility of delisting/blacklisting complainant's company. This action of accused, is during the period of March 2006, sometime after he is stated to have made a demand of Rs. 50 lacs from the complainant, threatening him of blacklisting his company.
11. On the basis of evidence as discussed in para 10.4 to 10.6 above; there is no doubt that accused Subhash Chander Phull was putting undue pressure on Vijay Kumar Kataria's company namely M/s M/s Kaveri Infrastructure Private Ltd. There is nothing to indicate that action of Subhash Chander Phull was in good faith or for the cause of Delhi Jal Board. For the aforesaid reasons I find no cause to disbelieve the oral testimony of complainant Vijay Kataria that accused Subash Chander Phull made a demand of Rs. 50 lacs as bribe from him under a threat to deprive him of contracts and to blacklist his company. The State Vs. Ashok Kumar Phull etc. 28 accused who was a public servant prior to 31.01.2006 and after 24.02.2006 and was 'expecting to a public servant' during the period 30.01.2006 to 24.02.2006 falls within the ambit of section 7 of PC Act. The demand of illegal gratification made by him to favour or disfavour the complainant by tendering/retendering contract and by threatening to blacklisting him or retender another contract falls within the purview of section 7 of PC Act. I, therefore, hold that prosecution has proved beyond reasonable doubt that accused Subhash Chander Phull committed offence punishable u/s 7 PC Act in respect of demand of Rs. 50 lacs from Vijay Kataria. There is no evidence on record to connect accused Ashok Kumar Phull with this demand of Rs. 50 lacs or his involvement in conspiracy to demand Rs. 50 lacs.
(ii) Whether Ashok Kumar Phull demanded & accepted illegal gratification of Rs. 8 lacs on 26.04.2006 for himself or for his brother Subhash Chander Phull pursuant to demand of Rs. 50 lacs as bribe from Sanjay Chugh?
12.1 Prosecution has examined Sanjay Chugh (PW2) panch witness Shyam Kumar (PW5) and Raid Officer Chanderhas (PW8) to prove this part of prosecution story. Sanjay Chugh (PW2) has deposed that on 26.4.2006 he along with his maternal uncle Vijay Kumar Kataria came to PS ACB at about 12.30 PM. Complaint was given by his uncle State Vs. Ashok Kumar Phull etc. 29 to Inspector Chanderhas. He also appended his signatures on the complaint. Shyam Kumar, panch witness was also associated. Rs. 8 lacs had been brought by Vijay Kumar Kataria in various denominations. Witness proved preraid proceedings wherein use of phenolphthalein powder was explained. He proved the preraid proceedings. He deposed leaving PS ACB at 4.00 PM along with rest of the members of the raiding team. He received a phone call from mobile phone of Ashok Kumar directing him to reach Greater Kailash Meter Workshop, opposite Saddiq Nagar after descending Mool Chand flyover, where accused was waiting in his Indica Car. Witness parked his car in front of the Indica Car. Ashok Kumar Phull got down from the car and came towards him. Witness also stepped out of his car and on the asking of Ashok Kumar Phull whether he had brought the money which was asked to be brought by his brother Subhash Chander Phull, he replied in affirmative and took out the polythene bag from his car and handed over the same to the accused. Accused opened the polythene bag, counted the bundles of GC notes and thereafter returned and occupied the rear seat of his car. Panch witness gave the predetermined signal. Raiding party came and apprehended the accused. He has then deposed about the remaining proceedings of hand wash, seizure of case property etc.. He also identified the accused and case property.
State Vs. Ashok Kumar Phull etc. 30 12.2 On being cross examined by Ld counsel for accused Ashok Kumar Phull, he admitted that in the year 2005 he was awarded a contract of Delhi Jal Board wherein accused Ashok Kumar Phull was Executive Engineer, Incharge. He did not remember if he had received first running payment of the said contract of Rs. 93,385/ on 31.3.2005 during the tenure of accused Ashok Kumar Phull. He did not remember if Ashok Kumar Phull stood transferred from that zone before final payment was issued to him and before completion of work. He admitted that for receiving payment in respect of a contract, contractor has to submit several documents. He did not remember if at the time of raid his final bill in respect of aforesaid work was pending. He denied the suggestion that he had been talking to Ashok Kumar Phull on his cell phone for his signatures in respect of those bills. He denied the suggestion that Ashok Kumar Phull told him to hand over the documents or that he will approve passing of the bill after visiting the site. He further deposed that panch witness was in his car from PS ACB itself. He was confronted with his statement u/s 161 Cr. P.C. where it is recorded that panch witness occupied his car at Defence Colony flyover. He also did not remember if he had received two phone calls from the accused, one at 4.37 PM and another at 4.45 PM. Panch witness came out of his car after polythene bag had been received by the accused. The bag was handed over near the rear side of car of witness. Accused remained there for about two to four minutes. He was confronted with State Vs. Ashok Kumar Phull etc. 31 his statement where he had not mentioned counting of bundles by the accused, but it was recorded that accused checked the money. He denied the suggestion that he had kept papers regarding his tender in the polythene bag. He denied that he had handed over the bag containing tender papers to accused Ashok Kumar Phull. Witness again reiterated that accused Ashok Kumar Phull had checked the polythene bag and counted the bundle of notes. He further deposed that he probably received a missed call from accused Ashok Kumar Phull on 25.04.2006. He had then called up the accused, who asked him to come with bribe money on 26.04.2006. Witness was given another suggestion also as regards the time and place of meeting which he denied. The witness was recalled for cross examination on an application moved u/s 311 Cr. P.C. and record pertaining to work of shifting Mohd. Pur main sewer line was put to him. Letter dated 16.04.2004 by accused Ashok Phull (Executive Engineer ) was admitted by the accused vide which he was required to start the work, though the work was actually started on 14.02.2005. He was also put the cement register and hindrance register which he could not identify. He admitted receiving the first payment of the bill on 31.3.2005. He also admitted the receipt of final bill amounting to Rs. 1,23,669/. He did not remember the name of Executive Engineer, when he accepted the final payment. However, on seeing the measurement book he identified the signatures of Anand Pal EE. He denied knowledge about over writing/cutting in the measurement book. State Vs. Ashok Kumar Phull etc. 32 12.3 Shyam Kumar (PW5) was the panch witness associated on 26.04.2006 by Raid Officer. He deposed that complainant Vijay Kataria and Sanjay Chugh came to PSACB at about 10 or 10.30 AM. Vijay Kataria wrote his complaint Ex. PW5/A in his presence, whereon he signed at point C. He proved the preraid proceedings. He further deposed that at about 12.00 noon raiding team left for raid. He sat in the car of Sanjay Chugh and rest of the members in government vehicle. Sanjay Chugh talked to some person on phone and said person asked him to come to Mool Chand flyover, where flyover descended. At the agreed spot a car was found parked. Sanjay Chugh parked his car by the side of that car, there was verge between two cars. Accused Ashok Kumar Phull came out of the car which was already parked, towards the car of Sanjay Chugh. Sanjay Chugh got down from the driver seat of car and carried the polythene bag with him. On inquiry by Ashok Kumar Phull whether he had brought the bribe amount, Sanjay Chugh replied in affirmative. Ashok Kumar Phull opened the polythene bag and put his hand inside the same and thereafter accepted the same. Thereafter accused Ashok Kumar Phull went to his car along with the bag and sat on the rear seat of his car. Witness has deposed giving predetermined signal to the raiding party which arrived and apprehended the accused. He has proved recovery of currency notes and their seizure. He did not support the prosecution case as regards hand wash to have been conducted in his presence. He identified the currency notes. State Vs. Ashok Kumar Phull etc. 33 12.4 On being cross examined he deposed that both the cars were parked parallel to each other and in between the car there was a verge but the same was not the central verge. He was confronted with his statement recorded by IO wherein his statement as regards inquiry by accused Ashok Kumar Phull having brought bribe money has been differently stated. He was also confronted with his statement where he has stated that accused got the money checked by opening the bag. He denied the suggestion that he did not over hear the conversation between accused and Sanjay Chugh.
12.5 Though, both the aforesaid witnesses were cross examined at length; however, the accused persons have actually not disputed the fact of handing over a polythene bag by Sanjay Chugh to Ashok Kumar Phull on 26.4.2006 after 4.00 PM. Accused persons have examined S.K. Mahindroo (DW6) who claims to be present with Ashok Kumar Phull on 26.04.2006 and having reached the flyover opposite Motor Workshop of Delhi Jal Board after 4.00 PM, where Sanjay Chugh came and handed over the polythene bag to him. Thus factum of meeting with Sanjay Chugh and acceptance of polythene bag by Ashok Kumar Phull is not in dispute. It is the case of the defence that the bag contained certain documents which Sanjay Chugh handed over with respect to clearance of his bill for a contract which he had done under Ashok Kumar Phull as Executive Engineer. Nevertheless the defence sought to be raised as State Vs. Ashok Kumar Phull etc. 34 regards handing over the documents in my opinion has miserably failed to be proved. From the cross examination of PW2, it can be safely concluded that work was done by Sanjay Chugh for shifting of Mohd. Pur main sewer line and Ashok Kumar Phull was the concerned Executive Engineer. The work commenced on 14.02.2005 and the first bill was paid on 31.03.2005 for the amount of Rs. 95,385/. In the cross examination conducted on 13.01.2010, the witness was suggested that Ashok Kumar Phull was transferred from that Zone before final bill was presented and before completion of work. No specific date of transfer of accused has been brought on record. This court fails to understand the occasion for Sanjay Chugh to hand over any document for clearance of final bill, when the accused already stood transferred from the said zone. It is the case of the defence itself that before completion of work accused had been transferred. Witness identified the signatures of Anand Pal Executive Engineer on the final bill. If the accused had been replaced by Anand Pal, there was no occasion for him to clear the bills or scrutinise the documents. No document has been put to witness or proved by the defence to show that on or around 26.04.2006, the final bill of the aforesaid work was still pending and that accused Ashok Kumar Phull was required to clear the same. This court is alive to the legal position that defence is not required to establish any fact beyond reasonable doubt; yet defence taken and suggested ought to be taken to its logical end. By failing to suggest the date when second bill was to State Vs. Ashok Kumar Phull etc. 35 be passed or by failing to prove that accused was still seized of the matter on 26.04.2006, defence would not succeed in creating doubt about the contents of bag. Moreover, if any, documents were handed by Sanjay Chugh to the accused and not seized by the police, the same ought to have been in the possession of accused, which he could have very well produced in court.
12.6 The factum of phone calls between accused Ashok Kumar Phull and Sanjay Chugh on 26.4.2006 on or around 4.00 PM are not disputed by the defence itself, as indicated in the testimony of DW6 S.K. Mahindroo. The same are indicated in the Call Detail record Ex. PW22/A1 to A8 and PW 23/C. Both the parties are ad idem with respect to purpose of calls also, i.e. to fix time and place of meeting. The minor discrepancies as regards the place where panch witness boarded the vehicle of Sanjay Chugh, does not disprove the meeting as the defence itself has not disputed the meeting at Mool Chand flyover. It is immaterial whether panch witness boarded the car at PS ACB or at Defence Colony flyover.
12.7 Ld. defence counsels have challenged involvement of Ashok Kumar Phull and Sanjay Chugh as proxies on behalf of Subhash Chander Phull and Vijay Kataria. It is argued that there is no corroborative evidence on record to indicate that Subhash Chander Phull appointed Ashok Kumar Phull to accept bribe on his behalf. State Vs. Ashok Kumar Phull etc. 36 There is also no evidence that Sanjay Chugh had been directed by Vijay Kataria to hand over bribe money to Ashok Kumar Phull on behalf of Vijay Kataria. In my opinion the testimony of Vijay Kataria and his cross examination on this aspect, is the answer to the challenge posed by the Ld. defence counsels. Vijay Kataria (PW1) has deposed that during his meeting with Subhash Chander Phull he was directed to pay the bribe amount to his brother Ashok Kumar Phull. Witness had informed accused Subhash Chander Phull that his nephew Sanjay Chugh will deliver the bribe amount to Ashok Kumar Phull. While cross examining PW1, ld. counsel for accused Subhash Chander Phull has not challenged this part of his testimony. There is absolutely no cross examination by counsel for Subhash Chander Phull on this aspect. However in cross examination by counsel for accused Ashok Kumar Phull, PW1 reiterated that Subhash Chander Phull had asked him to hand over the bribe amount to his brother Ashok Kumar Phull. Further the bribe amount was sent through Sanjay Chugh as Subhash Chander Phull had desired not to deliver the bribe amount personally and to send the same through someone. There is no suggestion to the witness that this part of his testimony is false. This court, therefore, has no hesitation in holding that accused Ashok Kumar Phull and PW Sanjay Chugh were involved in the transaction of giving and taking of bribe at the instance of Subhash Chander Phull. Bribe handed over by Sanjay Chugh was on behalf of Vijay Kataria.
State Vs. Ashok Kumar Phull etc. 37 12.8 Another challenge to the trap proceeding is that panch witness was not in a position to have heard the conversation between accused Ashok Phull and Sanjay Chugh. The position of vehicles on being parked is also differently stated by Sanjay Chugh (PW2) and Shyam Kumar (PW5). However, this issue is set to rest, as both the witnesses to the occurrence at spot have deposed in similar lines and corroborated each other. Both the witnesses have deposed that accused Ashok Kumar Phull demanded money referring to the demand made by accused Subhash Phull. PW5 has clearly deposed that he was within hearing range of accused and Sanjay Chugh and he heard their conversation. Both the witnesses have also corroborated each other as regards the accused having satisfied himself about the amount by looking into the polythene bag. Minor variation in the depositions regarding the manner of counting of money, would not vitiate the fact proved that accused looked into the bag and satisfied himself as regards the presence of currency notes. This also disproves the suggestion given by Ld. defence counsel that accused was not aware that bag contained the currency notes. This court has already disbelieved the defence version that the bag contained any documents; leaving no doubt about the fact that bag accepted by accused Ashok Kumar Phull contained treated GC notes.
State Vs. Ashok Kumar Phull etc. 38 13.1 To prove the remaining part of raid, prosecution has also examined Chanderhas, Raid Officer (PW8). He has deposed that on receiving the predetermined signal, he along with raiding team reached the spot where panch witnesses disclosed him about the transaction. He introduced himself to Ashok Kumar Phull and challenged that he had taken the bribe of Rs. 8,00,000/. He offered search of the raiding team which accused declined. On his directions, panch witness recovered the bribe money . Serial number of GC notes were compared with serial numbers recorded in preraid report and currency notes were seized.
13.2 Sanjay Chugh (PW2) and Shyam Kumar (PW5) have also deposed in similar terms about the recovery of GC notes. I, therefore, find no reasons to disbelieve this part of testimony of prosecution witnesses regarding recovery of treated GC notes from the possession of accused Ashok Kumar Phull, which were the same notes which were brought by the complainant for the raid.
13.3 Ld. defence counsels have also challenged the identity of these currency notes. It has been argued that notes having been withdrawn from the account of M/s Kaveri Infrastructure Private Ltd. from Chirag Delhi Branch of PNB could not have reached PS ACB by 10/10.30 AM. Referring to the testimony of panch witness PW5, it is State Vs. Ashok Kumar Phull etc. 39 argued that complainant and Sanjay Chugh had reached PS ACB at 10/10.30 AM. However this court does not subscribe to this argument. Vijay Kumar Kataria (PW1) and Sanjay Chugh (PW2) have both deposed having reached PS ACB at about 12/12.30 PM on 26.04.2006. There is no cross examination of both the witnesses on these aspect. Chanderhas (PW8) has also deposed the time of visit of complainant to be 12.15 PM. Lapse by one witness i.e. Shyam Kumar (PW5), would not change the time of arrival of complainant to PS ACB. Moreover, Ashok Kumar Grover (PW24), Chief Manager, PNB, Chirag Delhi was not cross examined by ld. defence counsel to suggest that bundles of the GC notes Ex.P1 to P12 were not withdrawn from his branch on that day. 13.4 Presence of phenolphthalein powder in the hand wash of accused Ashok Kumar Phull has been proved by Dr. Madhulika Sharma, PW29 in her report Ex. PW29/A. Sanctity of case property has been proved by HC Surender (PW4) and HC Shaukat Ali (PW3). 13.5 It has been pointed out by Ld. defence counsel that the Raid Officer Chanderhas (PW8) has deposed that bundles of currency notes were kept in packets and he had applied phenolphthalein powder on the packets as well; whereas the case property when produced in court did not contain the packet wherein the GC notes had been packed. It is, therefore, argued that currency notes produced in State Vs. Ashok Kumar Phull etc. 40 the court are not the same, alternatively the same have been tampered with or the notes recovered from the possession of accused Ashok Kumar Phull were not the ones handed over by Raid Officer after applying phenolphthalein powder to Sanjay Chugh. This court has analysed the testimony of Chaderhas (PW8) and that of other witnesses to the raid. No question was put to Chanderhas (PW8) in his cross examination to clarify about the existence of packets wherein currency notes might have been packed/wrapped. Neither Sanjay Chugh (PW2) nor Shyam Kumar (PW5) have deposed about the currency notes having been wrapped in packets after being treated with phenolphthalein powder. Apparently reference to 'packet' in the testimony of Chaderhas (PW8) is typographical /translation error. Had he actually referred to wrapping or any packets, question to this effect would have been asked in his cross examination. I, therefore, find no merits in this argument as well. 13.6 Sh. Arun Mathur (PW30) has proved grant of sanction for prosecuting accused Ashok Kumar Phull. Since the service of Subhash Chander Phull stood terminated on 30.01.2006, before taking cognizance of offence by this court, there was no necessity to seek sanction for his prosecution , as he had ceased to be a public servant. 13.7 Having held above, that demand, acceptance and recovery of bribe of Rs. 8 lacs stand established, the presumption u/s 20 of the State Vs. Ashok Kumar Phull etc. 41 PC Act is also attracted. Onus was now on the accused persons to rebut the presumption that illegal gratification of Rs. 50 lacs was not as a motive or reward as mentioned in Section 7 PC Act. Prosecution has not been successfully rebutted by the accused persons. I, therefore, hold that recovered treated GC notes of Rs. 8 lacs from accused Ashok Kumar Phull were illegal gratification accepted by him for himself or for his brother Subhash Chander Phull, in conspiracy with him as illegal gratification for showing favour or disfavour to Vijay Kataria in exercise of official functions of Subhash Chander Phull as member Delhi Jal Board.
13.8 I, therefore, hold that prosecution has proved beyond reasonable doubt that on 26.04.2006 at about 4/4.30 PM accused Ashok Kumar Phull was trapped while accepting Rs. 8 lacs as bribe from Sanjay Chugh, which money he had demanded referring to demand by his brother Subhash Chander Phull from Vijay Kataria.
(iii) If questions No. 1 and 2 are answered in affirmative, whether Ashok Kumar Phull accepted illegal gratification on behalf of or in conspiracy with his brother Subhash Chander Phull?
State Vs. Ashok Kumar Phull etc. 42 14.1 Having answered questions No. 1 & 2 in affirmative, it is now to be adjudicated whether accused Ashok Kumar Phul and his brother Subhash Chander Phull acted in conspiracy with each other. 14.2 As noticed above, this case contains two chapters. First chapter is about demand of Rs. 50 lacs as illegal gratification by accused Subhash Chander Phull from Vijay Kataria. Prosecution evidence on this chapter has been discussed in paras 9 & 10 above. There apparently is no involvement of accused Ashok Kumar Phull in this chapter. Accused Ashok Kumar Phull can not, therefore, be indicted for the demand of Rs. 50 lacs, made by Subhash Chander Phull from Vijay Kataria. Though, accused Subhash Chander Phull is proved to have said that money be delivered to his brother Aashok Kumar Phull; yet it can not be held that accused Ashok Kumar Phull was aware of this demand and this arrangement, at that stage.
14.3 However, as regards the second chapter, where Ashok Kumar Phull demanded and accepted Rs. 8 lacs; he can not escape vicarious liability.
14.4 Though, there is no direct evidence on record that accused Subhash Chander Phull and Ashok Kumar Phull spoke to each other and hatched any conspiracy; yet the fact that they both are brothers and State Vs. Ashok Kumar Phull etc. 43 live in the same house, though on different floors is not disputed. In such circumstances meeting and discussion between the two do not require any specific evidence. It is natural for brothers living in the same house, working in the same institution and maintaining cordial relations to meet each other and discuss various aspects. It is settled law that direct or tangible evidence of conspiracy is extremely difficult to be brought on record, since conspiracies are hatched in secrecy. Evidence of occasion to meet or actual meeting is sufficient to infer meeting of minds. If the subsequent conduct further corroborates, inference of conspiracy can be safely drawn. In the present case Sanjay Chugh (PW2) and Shyam Kumar (PW5) have both deposed that Ashok Kumar Phull, at the time of trap demanded money referring to demand by his brother Subhash Chander Phull. As held in para 12.7 above, accused Ashok Kumar Phull had demanded and accepted bribe on 26.04.2006 at about 4.30 PM at the instance of his brother Subhash Chander Phull. 14.5 This court is, therefore, of the considered opinion that prosecution has not been able to prove the charge of conspiracy between both the accused persons as regards the demand of Rs. 50 lacs as bribe from Vijay Kataria. Only Subhash Chander Phull is proved to have demanded the bribe of Rs. 50 lacs from Vijay Kataria. However, conspiracy between two as regards the proceeding of 26.04.2006 when accused Ashok Kumar Phull was trapped accepting Rs. 8 lacs from State Vs. Ashok Kumar Phull etc. 44 Sanjay Chugh on behalf of Vijay Kataria, is established beyond reasonable doubt. Conspiracy between accused persons was framed at a stage subsequent to the demand of Rs. 50 lacs having been made by Subash Chander Phull. I, therefore, hold that prosecution has proved beyond reasonable doubt that accused Ashok Kumar Phull in pursuance of conspiracy with his brother Subhash Chander Phull ( both public servants) abusing his position as public servant demanded and accepted bribe of Rs. 8 lacs from Vijay Kataria through Sanjay Chugh, other than legal remuneration as pecuniary advantage for himself and for coaccused Subash Chander Phull by corrupt or illegal means and thus making them both liable for offence punishable u/s 120B IPC Section 7 PC Act r/w section 120B IPC and section 13(i)(d) punishable u/s 13(2) PC Act r/w section 120B IPC.
15.1 Ld. defence counsels have argued at length as regards the conduct of Vijay Kataria (PW1). It is submitted that he is in custody having been convicted in FIR No. 1A registered by CBI u/s 120B/420 IPC and section 11/13 PC Act. It is also pointed that FIR bearing No. 170/11 PS Malviya Nagar u/s 420/120B IPC stands registered against him. Ld. counsel for the complainant has defended him with the argument that all cases have been registered against him subsequent to the present FIR. Moreover the convictions have not yet become final. This court is of the opinion that testimony of Vijay Kataria (PW1) State Vs. Ashok Kumar Phull etc. 45 which is duly corroborated by documentary evidence and statements of engineers/officer of Delhi Jal Board cannot be disbelieved or junked, merely because he is facing trial or has been convicted in some other proceedings. I, therefore, reject this argument of Ld. defence counsels. 15.2.1 Much hype has been created by Ld. defence counsels on recorded telephonic conversation between Sarat Chander (DW17) and the complainant Vijay Kataria. Transcript of the recorded conversation Mark DA (allowed to be read as Exhibit vide order dated 2.4.2013) has been read by this court. In a long conversation between Sarat Chandar (DW17) and Vijay Kataria, there is one brief reference to accused persons wherein Vijay Kataria is heard claiming that he could have ensured the bail of Ashok Kumar Phull. He has also professed that they were 'innocent'. During the cross examination of Vijay Kataria the transcript and CD were put to him, he denied the CD to be containing his voice. He also denied having stated that both the accused persons were innocent or that he had got them falsely implicated to teach a lesson to officials of Delhi Jal Board.
15.2.2 Having gone through the transcript of recorded conversation and the testimony of Vijay Kataria, recorded in the court, this court is of the opinion that statement recorded under oath cannot be disbelieved over the conversation recorded in stealth and out of State Vs. Ashok Kumar Phull etc. 46 context. Further in view of overwhelming evidence as discussed above in paras 9 to 14above, certificate of innocence allegedly granted by the witness, which he has ofcourse denied, cannot be an escape route for the accused persons.
15.3. It has also been argued by Ld. defence counsels that accused Subhash Chander Phull stood exonerated in Department proceedings which were accepted by the Lieutant Governor, Delhil; therefore, he can not be convicted. I am afraid, this argument of Ld. defence counsel is contrary to the settled law. A full bench of Hon'ble Supreme Court of India in State of NCT Vs Ajay Kumar Tyagi 2012 (9) SCC 685 held as under: Exoneration in departmental proceedings ipso facto would not lead to exoneration or acquittal in a criminal case. It is well settled that the standard of proof in departmental proceedings is lower than that of criminal proceedings. It is equally well settled that the departmental proceedings or for that matter criminal cases have to be decided only on the basis of evidence adduced therein.
16.1 I have also gone through the judgment relied upon by the Ld. defence counsel. In Madan Mohan Lal Verma's and Suraj Mal cases (supra) ' mere recovery of tainted money was held not sufficient to State Vs. Ashok Kumar Phull etc. 47 convict the accused, when substantive evidence was not reliable'. However in the present case as discussed in answer to question 2, the substantive evidence is sufficient and conclusive against the accused persons. In Rakesh Kapur's case (supra) accused was acquitted as there was no material/evidence for demand of bribe. However, in the presence case testimony of PW2 and PW5 establish beyond reasonable doubt, demand and acceptance of bribe. In C.M. Girish Babu's case (supra), appellant proved his innocence by rebutting the presumption drawn u/s 20 of the Act. As discussed in para 13.7 above, accused persons have been unable to rebut the presumption in the present case. In Sat Paul's case absence of corroboration on crucial points was held to be sufficient to record acquittal. In my opinion in the present case, oral testimonies of PW1 and PW2 are corroborated by officers of Delhi Jal Board and files and notings proved by them. In Subramanium's case benefit of doubt was given to the accused when possibility of two views was noticed. In the present case the prosecution evidence is clear and unambiguous to indicate that there is only one view possible, which is of the guilt of the accused persons. In Satish Chander Sharma's case (supra), prosecution was unable to prove that accused was in a position to do a favour to the complainant in his official capacity. This court has discussed in para 10 above that accused Subhash Chander Phull exercised his powers to disfavour the complainant.
State Vs. Ashok Kumar Phull etc. 48 16.2.1 It has also been argued by the Ld. defence counsel that CD of the transcript of the telephonic conversation between complainant Vijay Kataria and DW7 Sarat Chander had been received by the IO prior to submission of challan and he did not conduct fair investigation with respect to the said CD.
16.2.2 I have perused the testimony of ACP Surjit Singh ( PW21) who had filed the challan. In his cross examination conducted by Shri Ashok Soni, ld counsel for accused Ashok Kumar Phull, he explained that the audio CD could have been received in the office of Additional Commissioner, ACB on 13.12.2007 but had not reached him by 15.12.2007, when he filed the challan. The explanation tendered by ACP Surjit Singh seems plausible as files usually take time in travelling from one desk to another in government offices. ACB, Delhi Police though designated as a police station is more like a branch of government. However, this court has already discussed in para 15.2 that the contents of CD cannot be said to be an escape route for accused persons. Reliance by Ld. defence counsel on law laid down in Karan Singh's case (supra) would not help the accused as I do not find that the accused persons were denied fair investigation. 17.1. Defence version of the incident dated 26.04.2006 sought to be proved through DW6 Sunil Kumar Mahendru does not inspire State Vs. Ashok Kumar Phull etc. 49 confidence. In his cross examination by Ld. Additional PP he has deposed not having reported the matter to any authority since 2006. He is an Assistant Engineer, apparently a senior officer; his silence on alleged false involvement of a colleague speaks volume about authenticity of his version. Moreover, his presence in the car of accused Ashok Kumar Phull has not been noticed by any of the prosecution witnesses who were present at the spot. His presence has not even been suggested by the defence to the witnesses of spot i.e. Sanjay Chugh (PW2), Panch witness (PW5) and Raid Officer ( PW8). 17.2 Driver of the car in which accused Ashok Kuar Phull had traveled, has been withheld by the defence. He was apparently under the control of accused Ashok Kumar Phull. Sanjiv Arora (PW6) who had been providing vehicles on contract basis to Delhi Jal Board has deposed that one Amit Saini came to him and requested for deployment of car bearing registration No. DL1Y8988 with Ashok Kumar Phull. On being cross examined by Ld. Additional PP he admitted that he had accepted the proposal of Ashok Kumar Phull regarding deployment of this car. I am, thus, of the opinion that this vehicle and the driver thereof were deployed with Ashok Kumar Phull at his own instance. Driver of this car was the best witness to depose about the occurrence of 26.04.2006. State Vs. Ashok Kumar Phull etc. 50
18. For the reasons stated in para 9 to 17, I am of the opinion that prosecution has proved the guilt of the accused persons beyond reasonable doubt. Accordingly accused Subhash Phull is held guilty for offence punishable u/s 7 PC Act with respect to demand of Rs. 50 lacs as bribe. Both the accused persons namely Subhash Chander Phull and Ashok Kumar Phull are held guilty for the offence punishable u/s 120B IPC with respect to demand and acceptance of Rs. 8 lacs as bribe. They are also held guilty for offence punishable u/s 7 PC Act r/w section 120B IPC and 13 (i) (d) PC Act punishable u/s 13(2) PC Act r/w/sec.120B IPC with respect to demand and acceptance of Rs. 8 lacs as bribe.
Ordered accordingly.
Announced in the open Court (NAROTTAM KAUSHAL)
on 26.04.2014 SPECIAL JUDGE (PC ACT)05
(ACB), TIS HAZARI COURTS
State Vs. Ashok Kumar Phull etc.
51
IN THE COURT OF SH. NAROTTAM KAUSHAL
SPECIAL JUDGE (PC Act)05, (ACB), (CENTRAL),
TIS HAZARI COURTS, DELHI
STATE
Versus
1.Ashok Kumar Phull
S/o Shri Ram Swaroop
R/o D110, Ground Floor,
East of Kailash,
NewDelhi.
2. Subhash Chander Phull
S/o Shri Ram Swaroop
R/o D110, First Floor,
East of Kailash,
NewDelhi.
Corruption Case No. : 68/2007
FIR No. : 34/2006
Case Identification No. : 02401R1283192007
Police Station : Anti Corruption Branch
Under Section : 7/8/13 (1) (d) of Prevention of
Corruption Act, 1988 &
120B IPC
Arguments addressed by:Sh.Sanjay K.Soni, Ld. Addl. PP for the State Sh. Vikas Arora, ld. counsel for the complainant Sh. Ashok Soni, ld. counsel for convict no.1 Sh.R.D.Sharma, ld. counsel for convict no.2 State Vs. Ashok Kumar Phull etc. 52 ORDER ON SENTENCE 1 Vide Judgment dated 26.04.2014, accused Subhash Chander Phull has been held guilty for offence punishable u/sec. 7 of the Prevention of Corruption Act,1988 (hereinafter called as 'the PC Act') with respect to demand of Rs.50 lacs as bribe. Both the convicts namely Subhash Chander Phull and Ashok Kumar Phull have been held guilty for the offence punishable u/s 120B IPC with respect to demand and acceptance of Rs. 8 lacs as bribe. They have also been held guilty for offence punishable u/sec. 7 of the PC Act r/w/sec.120B IPC and 13 (i)
(d) of the PC Act punishable u/sec. 13(2) of the PC Act r/w/sec.120B IPC with respect to demand and acceptance of Rs. 8 lacs as bribe. 2.1 Sh.Sanjay Soni, Ld. Addl. PP assisted by Sh.Vikas Arora, ld. counsel for the complainant has prayed for a stringent sentence. It is argued that convicts do not deserve any lenient approach. They were both senior officers in Delhi Jal Board and indulged into corrupt activities to satisfy their lust for more money. Referring to the law laid down in State of Madhya Pradesh Vs. Ram Singh reported as 2000 LawSuit (SC) 236 and State of Gujrat & Anr. Vs. Hon'ble Mr. Justice R.A.Mehta (Retd.) & Anr. reported as AIR 2013 SC 693, it is submitted that the Corruption in a civilised society is a disease like cancer, which if not detected in time is sure to maliganise the polity of country leading to disastrous consequences. It is termed as plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with State Vs. Ashok Kumar Phull etc. 53 HIV leading to AIDS, being incurable. It has also been termed as Royal thievery. The sociopolitical system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence shaking of socioeconomicpolitical system in an otherwise healthy, wealthy, effective and vibrating society. 2.2 Sh.Ashok Soni & Sh.R.D.Sharma, ld. counsels for convicts have pleaded for lenient sentence. It is submitted that accused Subhash Chander Phull is 68 years of age and is not keeping good health. He is suffering from Parkinsons disease and also from High Blood Pressure. His wife is also suffering from diseases of Blood Pressure. On behalf of Ashok Kumar Phull, it is submitted that his family consists of wife and 3 daughters. He is a patient of Diabetes and High Blood Pressure. He has Cataract in both eyes. His wife is a patient of Accute Intestinal Infection and is also suffering from depression. Though, all his daughters were married, yet the youngest was turned out from her matrimonial home and is litigating against her husband. He is the sole male member in his family. Relevant medical record, relied upon by both the convicts, has been placed.
State Vs. Ashok Kumar Phull etc. 54 3.1 I have heard the ld. counsels and perused the photocopies of medical record. The present is a case of corruption in higher echelons of society. Convict Subhash Chander Phull was occupying one of the highest position in Delhi Jal Board. For an engineer to occupy the position of Member in Delhi Jal Board is dream culmination of his career. Having put in long number of years in service and having been rewarded by extension, the convict was expected to serve the institution and thereby society at large. Instead, he indulged in worst of the practices. Corruption in engineering contracts has multiple action impact on society. The contractor, who agrees to pay bribe would logically add the amount to project cost or alternatively under perform either by using inferior material or by not performing the entire work assigned. In each situation, ultimate sufferer is the taxpayer and the society at large. In my opinion, such a convict is not entitled to any lenient approach. Prayer for considering the medical condition, as a mitigating factor, is declined. 3.2 Convict Ashok Kumar Phull in my opinion is entitled to lenient approch & a lesser punishment as he was not the dominant partner in crime. It is Subhash Chander Phull, who is held to have demanded Rs.50 lacs as bribe and had used the services of his younger brother to accept delivery of the amount. However, he can not escape with the minimum sentence either, as he can be attributed knowledge about the consequences of his actions, which he was performing at the State Vs. Ashok Kumar Phull etc. 55 behest of his elder brother. Ashok Kumar Phull, himself being a public servant very well, knew that the amount being demanded and accepted by him, on behalf of his brother, is illegal gratification.
4 In my opinion, following sentence shall serve the ends of the
Justice:
Srl Offence Committed Punishment Awarded
No. Subhash Chander Phull Ashok Kumar Phull
With respect to Demand of Rs.50 Lacs
1 U/sec.7 of the PC RI for 4 years and a fine
Act of Rs.50,000/. In N.A.
default of payment of
fine SI for 6 months.
With Respect to Demand & Acceptance of Rs.8 lacs
2 U/sec.120B of IPC RI for 2 years and a fine RI for 2 years and a of Rs.25,000/. In fine of Rs.25,000/.
default of payment of In default of
fine SI for 2 months. payment of fine SI
for 2 months.
3 U/sec.7 of the PC RI for 3 years and a fine RI for 2 years and a Act r/w/sec.120B of Rs.50,000/. In fine of Rs.25,000/.
of IPC default of payment of In default of fine SI for 6 months. payment of fine SI for 2 months.
4 U/sec. 13 (i) (d) of RI for 5 years and a fine RI for 3 years and a the PC Act of Rs.50,000/. In fine of Rs.25,000/.
punishable u/sec. default of payment of In default of 13 (2) of the Pct fine SI for 6 months. payment of fine SI r/w/sec.120B of for 2 months.
IPC State Vs. Ashok Kumar Phull etc. 56 5 All the sentences shall run concurrently. Benefit u/s 428 Cr.P.C. be accorded to both the convicts.
Ordered accordingly.
File be consigned to Record Room.
Announced in the open Court (NAROTTAM KAUSHAL)
on 03.05.2014 SPECIAL JUDGE (PC ACT)05
(ACB), TIS HAZARI COURTS
State Vs. Ashok Kumar Phull etc.