Delhi District Court
State vs . 1. Deepak Sharma on 2 December, 2011
IN THE COURT OF SHRI B.R. KEDIA, SPECIAL JUDGE07
(CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
C.C.NO. : 05/11
Unique Case ID : 02401R0106052006
STATE VS. 1. DEEPAK SHARMA
S/o Sh. Shiv Kumar Sharma
R/o Gali No. 3, Defence Colony,
Murad Nagar, (U.P.)
IInd Address:
New Defence Colony, Back of Railway
Quarter, Gali No.2, Murad Nagar,
Distt. Ghaziabad (U.P.)
2. MANJU AGGARWAL
W/o Sh. Lalit Kumar Aggarwal
R/o 282, Delhi Administration Flats,
Karkardooma Court, Delhi.
FIR NO. : 58/03
U/S : 7/13 Prevention of Corruption Act,
1988 r/w Section 120B IPC
P.S. : ANTI CORRUPTION BRANCH,
DELHI
C.C. No. 05/11 Page No. 1 of 40
Date of Institution 14.02.2006
Judgment reserved on 24.11.2011
Judgment delivered on 02.12.2011
JUDGMENT
1. The precise case of the prosecution is that on dated 05.12.2003 complainant Sh. Satish S/o Shish Pal went to Anti Corruption Branch, Delhi and got lodged his complaint Ex.PW2/A regarding demand of Rs.55/ for sale of stamp paper of Rs.50/ by the accused Deepak Sharma, Salesman of Stamp Vendor Manju Aggarwal at Typist and Stamp Vendor Hall, Karkardooma Court, Delhi, on dated 04.12.2003.
2. The gist of the said complaint is that the complainant had gone to purchase stamp paper of Rs.50/ at Karkardooma Court Complex on 04.12.2003 and met accused Deepak Sharma, Salesman of Stamp Vendor Manju Aggarwal having license no.561, who demanded Rs.55/ as against stamp paper of Rs.50/ and declined to sell said stamp paper unless extra amount of Rs.5/ for stamp paper of Rs.50/ is paid. So the complainant did not purchase said stamp paper from accused Deepak. Since the complainant came to know that C.C. No. 05/11 Page No. 2 of 40 Stamp Vendor used to get commission from the Government for sale of stamp paper and demanding extra amount beyond the amount of the stamp paper appears to be demanding bribe. As the complainant was against giving of any bribe, he went to Anti Corruption Branch and got his complaint lodged before the then Inspector K.S.Pathania, Raid Officer PW7 in presence of Panch witness Prem Chand, PW 6.
3. The further case of the prosecution is that the complainant has produced 1 GC notes of Rs. 50/ and one GC note of Rs.5/ before the Raid Officer PW7 who noted down the serial number of said GC notes in the preraid proceedings Ex.PW2/B and treated the said GC notes with phenolphthalein powder. Thereafter, Raid Officer PW7 gave demonstration to the Panch witness, complainant by getting touched the right hand of the Panch witness with that treated currency notes and wash of the right hand of the Panch witness in the colourless solution of sodium carbonate which turned into pink. Thereafter, said GC notes were handed over to the complainant and Panch witness was instructed to remain close with the complainant and to overhear the conversation between the complainant and the person demanding the bribe amount and to give signal by hurling his hand over his head after being satisfied that the bribe has actually C.C. No. 05/11 Page No. 3 of 40 been given.
4. That at about 12:20 p.m., PW7/Raid Officer along with complainant, Panch witness, Inspector Hem Chand and other members of the raiding party left Anti Corruption Branch in a government vehicle and reached Karkardooma Court Complex. Government vehicle was parked at some distance and Inspector Hem Chand alongwith the Driver remained in the vehicle. Complainant and Panch witness went towards the Stamp Vendor Hall and stood at counter of Stamp Vendor Manju Aggarwal and other members followed by keeping suitable distance.
5. The further case of the prosecution is that at about 1:30 p.m. on receiving the predetermined signal from Panch witness, Raid Officer alongwith the raiding team reached the spot where Panch witness informed that the accused Deepak Sharma had sold the stamp paper of Rs.50/ by taking Rs.55/ from the complainant with his right hand and kept the same near his register lying on the table. Thereafter, Raid Officer after disclosing his identity challenged the accused that he had sold stamp paper of Rs.50/ by charging Rs.55/ from the complainant and offered his search but accused declined. On C.C. No. 05/11 Page No. 4 of 40 his directions, Panch witness recovered said Rs.55/ from the table and compared the serial number of that GC notes with serial number mentioned in pre raid proceedings Ex.PW2/B and the same tallied. That recovered GC notes were taken into possession vide seizure memo Ex.PW2/C. Raid Officer also seized stamp paper of Rs.50/ which is Ex.P3 vide seizure memo Ex.PW2/E. The wash of right hand of the accused Deepak Sharma was taken in colorless solution of sodium carbonate which turned into pink and solution was transferred into two empty small clean bottles which were sealed with the seal of KSP and were marked as RHWI & II by pasting slips thereon which were signed by Raid Officer, complainant and Panch witness. Those bottles and sample seal were taken into possession vide Seizure Memo Ex.PW2/D. The Raid Officer also drawn up the post raid proceedings which is Ex.PW6/A and prepared rukka Ex.PW7/B and sent the same through Ct. Raju to PS Anti Corruption Branch for registration of the case.
6. The further case of the prosecution is that the Raid Officer called Inspector Hem Chand PW4, IO at the spot and handed over him the custody of the accused Deepak Sharma, case property and relevant documents etc. for purpose of Investigation. I.O. took up the C.C. No. 05/11 Page No. 5 of 40 Investigation, prepared the Site Plan Ex.PW4/A. IO took into possession three blank stamp papers Ex.PW4/B2, one stamp Vendor Sale Register Ex.PW4/B1, Three rubber stamps Ex.PW4/B3 (colly) and Rs.3936/ Ex.PW4/B4 (colly) vide seizure memo Ex.PW2/F. IO arrested the accused Deepak Sharma vide Arrest Memo Ex.PW4/C and conducted his personal search vide Memo Ex.PW2/G, recorded statement of complainant and Panch witness, received original rukka Ex.PW7/B and copy of FIR Ex.PW4/D, got accused medically examined and thereafter, went to PS Civil Line where he deposited the case property, exhibits and articles of personal search with the MHC(M) and the accused was put in the lock up. During the course of Investigation, the relevant exhibits were sent to FSL for chemical analysis and later on FSL Report Ex.PW4/E was received. IO on recording the statement of the witnesses and after completion of the Investigation, prepared the chargesheet and filed in the court.
7. After compliance with the provision U/S 207 of Cr.P.C and after hearing both sides on the point of charge, vide order dated 14.7.2008, charge for offence punishable U/S 120B IPC and U/S 7 and 13 (2) r/w Section 13 (1) (d) of the Prevention of Corruption Act, 1988 and Section 120B IPC was framed against accused Manju C.C. No. 05/11 Page No. 6 of 40 Aggarawal and charge for offence punishable U/S 120B IPC was framed as against accused Deepak Sharma to which both the accused pleaded not guilty and claimed trial.
8. Thereafter, in order to bring home the guilt of the accused, the prosecution got examined 8 prosecution witnesses namely Sh.D.R.Saluja, a formal witness as PW1, Sh.Satish, complainant as PW2, Sh.Mahender Singh, the then SDM, HeadquarterI/Collector of Stamp, Headquarter, a formal witness as PW3, Inspector Hem Chand/IO as PW4, Sh.Yaad Ram as PW5, Sh. Prem Chand, Panch witness as PW6, Inspector K.S.Pathania, Raid Officer as PW7 and Ct. Laxmikant, the then Assistant MHC(M) PS Civil Lines, a formal witness as PW8.
9. After closure of the PE, statement of accused under Section 313 Cr.P.C. was recorded in which both the accused claimed to be innocent and have been falsely implicated in this case. Accused Deepak Sharma further added that he was not selling the stamp papers rather he had gone there to purchase stamp paper and was falsely apprehended and implicated in this case. Accused Manju Aggarwal in her statement further added that she had not authorised Deepak C.C. No. 05/11 Page No. 7 of 40 Sharma to sell stamp papers but has authorised one Yaad Ram to sell stamp papers on her behalf from 2.12.03 to 7.12.03 as she was sick.
10. I have heard Final Arguments as addressed by Sh.H.K.Mohur, Adv. Ld. Counsel for the accused Deepak Sharma and Sh.Y.P.S.Ahluwalia, Adv. Ld. Counsel for the accused Manju Aggarwal and Sh.Vinod Kumar Sharma, Ld. Addl.PP for the State and perused the relevant record.
11. It is submitted by Ld. Counsel for the accused Deepak Sharma that this accused is innocent and has been falsely implicated in this case. It is further added by him that the accused Deepak Sharma has not sold any stamp paper to the complainant on 5.12.03 and therefore, there was no occasion on the part of this accused for receiving Rs.55/ as against sale of stamp paper of Rs.50/ from the complainant. It is further added by him that this accused himself has gone to purchase stamp paper at the spot but was falsely apprehended by police of Anti Corruption Branch and implicated in this case. It is further added by him that the deposition of PW2/Satish, complainant, PW6/Prem Chand, Panch witness are not trustworthy and reliable. It is further added by him that there are several contradictions in the C.C. No. 05/11 Page No. 8 of 40 deposition of PWs which falsify the case of the prosecution. It is further added by him that though there were several public witness available at the spot, nonjoining of any of them in the raid proceeding is fatal for the case of the prosecution. It is further added by him that the Raid Officer being interested witness for the success of his raid, his deposition cannot be treated as trustworthy and reliable. Ld. Counsel for the accused thus urged for acquittal of this accused.
12. Similarly, it is submitted by Ld. Counsel for the accused Manju Aggarwal that she is innocent and has been falsely implicated in this case. It is further added by him that this accused has not authorised accused Deepak Sharma to sell stamp papers on her behalf and she had authorised one Yaad Ram to sell stamp papers on her behalf from 2.12.03 to 7.12.03 as she was sick and had also informed the SDM in this respect. It is further added by him that deposition of PW2/Satish, complainant cannot be treated as trustworthy and reliable as there is no reason as to why he had not purchased the stamp paper from Janak Puri which is near to his residence and has gone to Karkardooma Court Complex for purchase of stamp paper which is far away from his residence. It is further added by him that even the C.C. No. 05/11 Page No. 9 of 40 deposition of PW6 Prem Chand/Panch witness cannot be treated as trustworthy as he has joined duty as Panch witness in Anti Corruption Branch several times. It is further added by him that the complaint Ex.PW2/A appears to have been fabricated one as PW6/Panch witness has given the date as 3.12.03 below his signature at point Z therein, though said complaint is stated to have been lodged on 5.12.03. It is further added by him that though independent public witness were available at the spot, nonjoining of any of them in the raid proceedings falsify the case of the prosecution. It is also added by him that PW7/Raid Officer being interested for the success of his raid, his deposition cannot be treated trustworthy and reliable. It is further added by him that the accused Manju Aggarwal was ill from 2.12.03 to 7.12.03 and she was not present at the spot and therefore, she can not be held liable for selling of the stamp paper on excess price. Thus, Ld. Counsel for the accused urged for acquittal of this accused.
13. To the contrary, it is submitted by Ld. Addl.PP for the State that the prosecution by examining 8 PWs have clearly established its case as against both the accused namely Deepak Sharma and Manju Aggarwal and therefore, both the accused deserves to be convicted for the charged offence. It is further added by Ld. Addl.PP for the State C.C. No. 05/11 Page No. 10 of 40 that the prosecution has successfully proved its case through the deposition of PW2/complainant, PW6/Panch witness, PW7/Raid Officer and PW4/IO and there is no reason as to why said PWs would falsely depose as against the accused specifically when there is no previous enmity as against the accused by them. It is further added by Ld. Addl.PP that even the FSL Report duly supported the case of the prosecution. It is further added by Ld. Addl.PP that since PW6/Panch witness was already joined in the raid proceedings, there was no necessity of joining any other public witness available at the spot and therefore, prosecution cannot be faulted on the said count. It is further added by Ld. Addl.PP that both the accused had hatched criminal conspiracy in pursuance of which the accused Deepak was selling stamp papers at premium on behalf of the accused Manju Aggarwal, Stamp Vendor and therefore, both are liable for the same. Ld. Addl.PP for the State has added that the prosecution has been successful in establishing its case as against both the accused for the charged offence and hence, both the accused deserve to be convicted.
14. During the course of the argument, it is submitted by Ld. Counsel for the accused Deepak Sharma that this accused is innocent and has been falsely implicated in this case. It is further added by him C.C. No. 05/11 Page No. 11 of 40 that this accused has not sold any stamp paper to the complainant on 5.12.03 and therefore, there was no occasion on the part of this accused for receiving Rs.55/ as against sale of stamp paper of Rs.50/ from the complainant. It is further added by him that this accused has himself gone to purchase stamp paper at the spot but was falsely apprehended by police of Anti Corruption Branch and implicated in this case. Similarly, it is submitted by Ld. Counsel for the accused Manju Aggarwal that she is innocent and has been falsely implicated in this case. It is further added by him that this accused has not authorised accused Deepak Sharma to sell stamp papers on her behalf and as she had authorised one Yaad Ram to sell stamp papers on her behalf from 2.12.03 to 7.12.03 as she was sick and had also informed the concerned SDM in this respect. It is further added by him that deposition of PW2/Satish, complainant cannot be treated as trustworthy and reliable as there is no reason as to why he had not purchased the stamp paper from Janak Puri which is nearer to his residence and had gone to Karkardooma Court Complex for purchase of stamp paper which is far away from his residence. To the contrary, it is submitted by Ld. Addl.PP for the State that the prosecution has successfully proved its case through the deposition of PW2/complainant, PW6/Panch witness, PW7/Raid Officer and C.C. No. 05/11 Page No. 12 of 40 PW4/IO and there is no reason as to why said PWs would falsely depose as against the accused specifically when there is no previous enmity as against the accused by them. It is further added by Ld. Addl.PP that even the FSL Report duly supported the case of the prosecution. It is further added by Ld. Addl.PP that both the accused had hatched criminal conspiracy in pursuance of which the accused Deepak was selling stamp papers at premium on behalf of the accused Manju Aggarwal, Stamp Vendor and therefore, both are liable for the same.
15. In order to prove that the accused Deepak Sharma had demanded and accepted amount of Rs.55/ for sale of stamp paper of Rs.50/, on behalf of the accused Manju Aggarwal, Stamp Vendor from her sale counter at Karkardooma Court Complex, the prosecution is found to have examined PW2/Satish, complainant, PW6/Prem Chand, Panch witness and PW7/Inspector K.S.Pathania and Raid Officer. PW2/Satish Complainant has clearly deposed before the court that on 4.12.03 he had gone to the Karkardooma Court for purchase of one stamp paper of Rs.50/ and accused Deepak Sharma sitting on the Stamp Vend of Manju Aggarwal, demanded Rs. 55/ as against stamp paper of Rs.50/ and so he did not purchase the C.C. No. 05/11 Page No. 13 of 40 stamp paper. He further deposed that on 5.12.03 at about 11:00 a.m. he went to Anti Corruption Branch and got lodged his Complaint Ex.PW2/A which bears his signature at point A, in the presence of one Panch witness Prem Chand and produced one GC note of Rs.50/ and one GC note of Rs.5/ before the Raid Officer. Said PW2 also narrated about PreRaid Proceedings Ex.PW2/B. PW2 further deposed that thereafter, he along with the Panch witness and raiding team left Anti Corruption Branch in a government vehicle and reached at Karkardooma Court complex at about 1:10 p.m. He along with the Panch witness went to the Stamp Vend of Manju Aggarwal where accused Deepak Sharma was selling the stamp papers and other members of the raiding team followed them and took suitable position. As regards the specific demand of Rs.55/ as against stamp paper of Rs.50/ by the accused Deepak Sharma, said PW2 has deposed as under: "I demanded the stamp paper of Rs.50/ from him and the accused demanded Rs.55/ for the said stamp paper. I tried to give him Rs.50/ but the accused told me that I will have to pay Rs. 55/. The accused thereafter started writing my name on the stamp paper as well as in the register kept by the accused and then handed over the stamp paper to me and I gave the tainted C.C. No. 05/11 Page No. 14 of 40 amount to the accused."
16. Said PW2 has also deposed that at the instance of the Raid Officer, Panch witness lifted the GC notes from the table lying near the register and compared the serial numbers of the same and Raid Officer seized the GC notes vide seizure memo Ex.PW2/C which bears his signature at point A. He also deposed that right hand wash of the accused was taken in solution of sodium carbonate which turned pink and same was transferred into two bottles duly sealed and marked RHWI & II and said bottles and sample seal were seized vide seizure memo Ex.PW2/D bearing his signature at point A. Said PW2 has also deposed about seizure of said stamp paper of Rs.50/ Ex.P3 vide seizure memo Ex.PW2/E bearing his signature at point A. He has also deposed regarding seizure of one Stamp Register, 23 blank stamp papers and cash amount of Rs.3936/ vide seizure memo Ex.PW2/F bearing his signature at point A. He has also deposed that accused Deepak Sharma was arrested vide his Personal Search Memo Ex.PW2/G. Said PW2 has duly identified the recovered GC notes as Ex.P1 and P2 and two bottles containing hand wash solution as Ex.P4 and P5. He specifically denied the suggestion of Ld. Defence Counsel that the Complaint Ex.PW2/A was never made by him or that C.C. No. 05/11 Page No. 15 of 40 he never read its contents. He also denied the suggestion of Ld. Defence Counsel that Panch witness Prem Chand had not met him and put his signature on Ex.PW2/A.
17. Panch witness/Prem Chand, PW6 also deposed that he was deputed on duty as Panch witness in Anti Corruption Branch on 5.12.03 and complainant/Satish got lodged his complaint Ex.PW2/A in his presence before the Raid Inspector K.S.Pathania. He also deposed that complainant had brought one GC note of Rs.50/ and one GC notes of Rs.5/ and handed over the same to the Raid Officer who recorded serial numbers of the GC notes in PreRaid Report Ex.PW2/B. He also deposed about the PreRaid Report Ex.PW2/B as drawn by the Raid Officer. He also deposed about leaving of the raiding team including himself from Anti Corruption Branch at about 12:30 p.m. and reaching Karkardooma Court within 45 minutes. He further deposed that he along with the complainant went to the Stamp Vendor. Said PW6 has deposed regarding the demand and acceptance of Rs.55/ as against stamp paper of Rs.50/ by the accused Deepak Sharma as under: "I along with the complainant also stood in the queue. When the turn of the complainant came he demanded a stamp paper of Rs. C.C. No. 05/11 Page No. 16 of 40 50/ from the accused Deepak Sharma now present in the court today (correctly identified) who was selling the stamp papers. He demanded Rs.5/ more. Thereafter complainant gave him one GC note of Rs.5/. Thereafter accused kept the GC notes in his drawer. The accused accepted the GC note with his right hand. Thereafter accused gave the stamp paper of Rs.50/ to the complainant. Thereafter, I gave predetermined signal by hurling my hand over my head. The members of raiding party immediately came at the spot and apprehended the accused. The Raid Officer disclosed his identity and challenged the accused by saying that he has sold the stamp paper of Rs.50/ for Rs.55/."
18. Said PW6/Panch witness also deposed that serial number of those recovered GC notes found tallied with the serial numbers as mentioned in Pre Raid Report and said GC notes were seized vide seizure memo Ex.PW2/C which bears his signature at point B. He also deposed that the right hand wash of the accused Deepak was taken in some water type solution which turned pink and said solution was transferred into two bottles marked RHWI & II, sealed with the seal of KSP and paper slip affixed therein which were signed by him, C.C. No. 05/11 Page No. 17 of 40 Raid Officer and complainant. He also deposed regarding seizure of said 2 bottles and sample seal vide seizure memo Ex.PW2/D bearing his signature at point B. He also deposed regarding seizure of the stamp paper of Rs.50/ Ex.P3 vide seizure memo Ex.PW2/E which bears his signature at point B. Said PW6 further deposed regarding seizure of some blank stamp papers, one stamp register, Rs.3936/ and some rubber stamps vide seizure memo Ex.PW2/F and regarding arrest of the accused Deepak Sharma vide Personal Search Memo Ex.PW2/G bearing his signature at point B. He also deposed that Raid Officer drawn the Post Raid Proceedings Ex.PW6/A which bears his signature at point A. Said PW6 has duly identified said recovered GC notes as Ex.P1 and P2 and bottles as Ex.P4 and P5.
19. The material part of deposition of PW2/complainant and PW6/Panch witness are also found corroborated from the deposition of PW7/Inspector K.S.Pathania, Raid Officer. Said PW7/Raid Officer is found to have deposed regarding lodging of the complaint Ex.PW2/A by the complainant in presence of Panch witness Prem Chand on 5.12.03 and thereafter, preraid proceeding Ex.PW2/B was carried out by him. Said PW7 further deposed that at about 12:20 p.m. he along with complainant, Panch witness, Inspector Hem Chand C.C. No. 05/11 Page No. 18 of 40 and other members of the raiding team left Anti Corruption Branch and reached Karkardooma Court at about 1:20 p.m. He further deposed that complainant and Panch witness went inside the Main Hall and stood at counter of Stamp Vendor Manju Aggarwal and he alongwith other members of the raiding team took suitable position. He further deposed that at about 1:30 p.m. on receiving pre determined signal given by Panch witness, he alongwith raiding team reached the spot and Panch witness informed that accused Deepak Sharma had sold the stamp paper of Rs.50/ by accepting Rs.55/ with his right hand and had kept the same near the register lying on the table. As PW7/Raid Officer has deposed in this respect as under: "At about 1:30 p.m., I received predetermined signal from panch witness and I along with raiding team rushed to the spot I asked the panch witness, what had happened and he told me that accused Deepak Sharma present in the Court today (correctly identified) had sold the stamp paper of Rs.50/ by taking Rs.5/ extra and he had given the stamp paper to the complainant of Rs.50/ after accepting Rs.55/ with his right hand and had kept the same near the register lying on the table."
20. Said PW7/Raid Officer further deposed that on his C.C. No. 05/11 Page No. 19 of 40 instructions Panch witness picked up the GC notes from the table and on checking serial numbers of the said GC notes found tallied with serial numbers as mentioned in Pre Raid Report Ex.PW2/B. He also deposed that GC notes were seized vide seizure memo Ex.PW2/C. He also deposed regarding seizure of stamp paper of Rs.50/ Ex.P3 vide seizure memo Ex.PW2/E and seizure of 2 bottles containing right hand wash of the accused Deepak vide seizure memo Ex.PW2/D. He has also deposed about the Post Raid Proceedings Ex.PW6/A bearing his signature at point B. He has clearly identified the recovered GC notes as Ex.P1 and P2 and 2 bottles containing right hand wash of accused Deepak Ex.P4 and P5.
21. From the perusal of the deposition of PW7/Raid Officer, PW2/Satish, complainant and PW6/Prem Chand, Panch witness, it is clearly reflected that PW7/Inspector K.S. Pathania, Raid Officer has drawn the Post Raid Proceedings Ex.PW6/A which bear signatures of PW2/complainant, PW6/Panch witness and PW7/Raid Officer.
22. I am of the considered view that said Post Raid Proceedings Ex.PW6/A being in the nature of Panchnama which is duly signed by the complainant and Panch witness is duly admissible and reference C.C. No. 05/11 Page No. 20 of 40 can be made to the case of Santa Singh vs. State of Punjab AIR 1956 Supreme Court 526 wherein it was held that mere presence of the police officer when a statement is made does not by itself render such a statement inadmissible. So long as a panchnama is a mere record of the things heard and seen by panchas and does not constitute a statement communicated to a police officer in the course of investigation by him and it would not fall within the mischief of section 162 of the Code.
23. From the perusal of the said Post Raid Proceedings Ex.PW6/A, it is clearly reflected that the accused Deepak Sharma had demanded and accepted Rs.55/ for sale of stamp paper of Rs.50/ from the complainant and said amount has been recovered by the Panch witness from near the register lying on the table of the accused and the serial number of those GC notes found tallied with the serial number as mentioned in the Pre Raid Proceedings Ex.PW2/B and said recovered GC notes were seized vide Seizure Memo Ex.PW2/C.
24. It is also revealed from the record that the right hand wash of accused Deepak Sharma with colourless solution of sodium carbonate was taken and the same turned into pink colour and said C.C. No. 05/11 Page No. 21 of 40 wash vide Ex.RHWI gave positive test for the presence of phenolphthalein powder and sodium carbonate as per FSL Report Ex.PW4/E which establish that the said treated one GC note of Rs. 50/ and one GC note of Rs.5/ were handled and accepted by the accused Deepak Sharma and ultimately same was recovered from his table.
25. In view of the above material as available on record, I am of the considered view that the factum regarding the demand and acceptance of Rs.55/ for sale of stamp paper of Rs.50/ by the accused Deepak Sharma on behalf of the accused Manju Aggarwal, Stamp Vendor from her counter at Stamp Vendor Hall, Karkardooma Court, Delhi on dated 5.12.03 from the complainant have been found established from the deposition of PW2/Satish, Complainant, PW6/Prem Chand, Panch witness and PW7 Inspector K.S.Pathania, Raid Officer coupled with the contents of Complaint Ex.PW2/A, Seizure Memo of the GC notes Ex.PW2/C, Seizure Memo of two bottles marked as Ex.RHWI &II and sample seal vide Ex.PW2/D, Post Raid Proceedings Ex.PW6/A. In view of the aforesaid material available on the record, I do not find any force in the submission of Ld. Counsel for the accused Deepak Sharma that the said accused has C.C. No. 05/11 Page No. 22 of 40 not sold any stamp paper to the complainant on 5.12.03 and therefore, there was no occasion on his part for receiving Rs.55/ as against sale of stamp paper of Rs.50/ from the complainant. Similarly, in view of the aforesaid material available on the record, I do not find any force in the submission of Ld. Counsel for the accused Deepak Sharma that said accused himself had gone to purchase stamp paper at the spot and was falsely apprehended and implicated in this case by police officials of Anti Corruption Branch. Besides that the said defense stand of the accused Deepak Sharma is further found falsified from the Reply dated 18.02.2004, copy of which is Ex.PW3/B2 as given by the accused Manju Aggarwal in response to Show Cause Notice dated 13.2.04 Ex.PW3/A, as in the said Reply Manju Aggarwal has admitted about the factum regarding sale of the stamp paper by the accused Deepak Sharma from her Stamp Vendor Counter on dated 05.12.03. Therefore, I do not find any force in the submission of Ld. Counsel for the accused Deepak Sharma.
26. That during the course of arguments, it is submitted by Ld. Counsel for the accused Deepak Sharma that there are certain contradictions in the deposition of PWs which falsify the case of the prosecution and Ld. Counsel pointed out the contradictions in the C.C. No. 05/11 Page No. 23 of 40 deposition of PWs as under: (A) PW2/complainant deposed that the accused Deepak Sharma had obtained the GC notes with his left hand whereas PW6/Panch witness deposed that accused Deepak Sharma had obtained the GC notes by his right hand.
(B) PW2/complainant deposed that the accused Deepak Sharma had kept the GC notes in the cashbox whereas PW7/Raid Officer deposed that on his instructions the Panch witness had recovered the GC notes from near the register lying on the table.
I am of the considered view that said contradictions appear to be on formal aspects and because of time gap between the period of incident and deposition of PWs in the court and hence cannot be treated as fatal for the prosecution. My said view is found supported from the law laid down by the Hon'ble Supreme Court regarding contradictions in case of Bharuda Broginbhai Harjibhai V/s State of Gujrat AIR 1983 SC 753 wherein it was held that discrepancies which do not go to the root of the matter and shake the basic version of the prosecution should not be attached undue importance. Furthermore, in the case reported as Krishna Pillai Sree Kumar Vs. State of Kerala, AIR 1981 SC 1237, it has been held that C.C. No. 05/11 Page No. 24 of 40 Inconsistencies here and discrepancies there are the shortcoming from which no criminal case is free. The main thing to be seen is whether the inconsistencies etc. go the root of the matter.
27. During the course of the arguments, it is submitted by Ld. Counsel for the accused persons that despite the availability of several independent public persons at the spot, non joining of any of them in the raid proceedings falsify the case of the prosecution. I do not find any force in the said submission of Ld. Defence Counsel in view of the fact that since an independent witness i.e. PW6/Prem Chand, Panch witness had already been joined in the proceedings by the PW7/Raid Officer, nonjoining of any other person available at the spot cannot be over emphasized. My said view is also found supported from the judgment reported as 2011 V AD (DELHI) 500, Anna Wankhade Vs. Central Bureau of Investigation (Through State), wherein it was held in Para 21 as under: "21. There is no dispute with regard to the proposition regarding desirability of association of independent witnesses by the police so as to lend more credence and authenticity to the case, but there is also no dispute that nonassociation of the C.C. No. 05/11 Page No. 25 of 40 independent witnesses per se for any reason whatsoever was in itself not enough to discard the prosecution witnesses or throw away the case as a whole. In the present case, CBI associated two independent witnesses on the written requisition made to the office of NDMC. Since the prosecution/CBI already had two independent witnesses, who had been informed and apprised about the technicalities involved in the procedure during the trap proceedings, it was not necessary for the IO to have joined other public witnesses at the time of apprehension. May be to avoid the risk of such a raw public person getting won over or being unable to understand the proceedings at the last moment of raid, that the IOs usually avoid associating public witnesses at that stage in such type of cases."
28. During the course of the argument, it is submitted by Ld. Counsel for the accused persons that as the Raid Officer is an C.C. No. 05/11 Page No. 26 of 40 interested witness for success of his raid and therefore, his deposition cannot be treated as 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 C.C. No. 05/11 Page No. 27 of 40 accepted the amount. The punch witness who went along with the complainant 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." C.C. No. 05/11 Page No. 28 of 40
29. 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 the judgment reported as "Prakash Chand vs. State (Delhi Administration) AIR 1979 SC 400".
30. During the course of the arguments, it is submitted by Ld. Counsel for the accused Manju Aggarwal that the accused Manju Aggarwal has not authorised accused Deepak Sharma to sell the stamp papers on her behalf and she had authorised one Yaad Ram to sell stamp papers on her behalf from her Stamp Vendor Counter from 2.12.03 to 7.12.03 as she was sick and had also informed the SDM in this respect. I do not find any force in the said submission of Ld. Counsel for the accused Manju Aggarwal in view of the fact that PW5 Yaad Ram has specifically denied the suggestion of Ld. Counsel for the accused Manju Aggarwal in this respect and I do not see any reason to disbelieve the same. Said PW5 Yaad Ram has deposed in this respect as under: "On 14.7.01 accused Manju Aggarwal accused present in the court today, correctly identified who was stamp vendor had C.C. No. 05/11 Page No. 29 of 40 authorised me to sell the stamp papers for one week at her seat. Thereafter I was never authorised for selling the stamp paper and no agreement was made between the accused and me in this regard and I was never nominated for that work."
..................................................................................................
"However Mark DA does not bear my signature at point A. I do not know if Manju Aggarwal was sick from 2.12.03 to 7.12.03. Voln. I was authorised once by Manju to sell the stamp vendor and at that time my signatures were obtained on 23 papers. It is wrong to suggest that I am deposing falsely. It is wrong to suggest that I was authorised to sell the stamp papers by accused for the period w.e.f. 2.12.03 to 7.12.03 vide mark DA as she was sick during this period."
In view of the aforesaid deposition of PW5 Yaad Ram, it is clearly reflected that he has categorically denied the fact regarding his authorisation to sell stamp papers on behalf of accused Manju Aggarwal at her counter from 2.12.03 to 7.12.03 and he had specifically stated that the copy of the alleged authorisation Mark DA does not bear his signature. I do not see any reason to disbelieve the C.C. No. 05/11 Page No. 30 of 40 said deposition of PW5 Yaad Ram specifically when there is no allegation of prior enmity by him as against the accused Manju Aggarwal. Therefore, the content of the Letter, copy of which is Ex.D2W1/A as given by accused Manju Aggarwal to the concerned SDM whereby intimating that PW5 Yaad Ram had been authorized by her to sell Stamp Papers on her behalf at her counter from 02.12.2003 to 07.12.2003 due to her illness cannot be treated as trustworthy being found contradicted from the deposition of PW5 Yaad Ram and said Letter appears to have been prepared after raid on 05.12.2003 as copy of said Letter has been received in the office of concerned SDM on 18.12.2003. Furthermore, the aforesaid stand of accused Manju Aggarwal is also found falsified from the bare perusal of her Reply dated 18.02.2004, copy of which is Ex.PW3/B2 as given by the accused Manju Aggarwal in response to Show Cause Notice dated 13.2.04 Ex.PW3/A, as in the said Reply Manju Aggarwal has admitted about the factum regarding sale of the stamp paper by the accused Deepak Sharma from her Stamp Vendor Counter on dated 05.12.03. Therefore, I do not find any force in the submission of Ld. Counsel for the accused Manju Aggarwal in this respect.
31. It has been well settled that the offence of criminal C.C. No. 05/11 Page No. 31 of 40 conspiracy is hatched in secrecy and privacy and direct evidence in this respect is not required as inferences from attending circumstances are validly permissible in this respect. In the present case, from the deposition of PW2/complainant, PW6/Panch witness, PW7/Raid Officer coupled with contents of the Complaint Ex.PW2/A, Seizure Memo of the GC notes Ex.PW2/C, Seizure Memo of two bottles marked as Ex.RHWI &II and sample seal vide Ex.PW2/D, Post Raid Proceedings Ex.PW6/A, it is clearly established that it is the accused Deepak Sharma who was selling the stamp papers on behalf of the accused Manju Aggarwal, Stamp Vendor from her Stamp Vendor Counter on premium by charging Rs.55/ as against sale of stamp paper of Rs.50/, in violation of Rule 28 (b)(vii) of the Delhi Province Stamp Rules, 1934 which clearly stipulates that "The vendor shall not demand or accept for any stamp any consideration exceeding the value of such stamp." In view of the same, I have no hesitation to safely conclude that the accused Manju Aggarwal, Stamp Vendor having license no.561, had entered into criminal conspiracy with coaccused Deepak Sharma for sale of the stamp papers on premium from her seat through coaccused Deepak Sharma and therefore, both the accused are liable for the same. From the perusal of the Show Cause Notice dated 13.2.2004, copy of which C.C. No. 05/11 Page No. 32 of 40 is Ex.PW3/A as issued to accused Manju Aggarwal by Collector of Stamps (Headquarter), it is reflected that the accused Manju Aggarwal, Licensed Stamp Vendor was earning commission on the sale of stamp papers from the government and as per Section 2 (c) (i) of the Prevention of Corruption Act, 1988 she was a "public servant"
and she was found to be charging more than the face value of non judicial stamp paper through her salesman Deepak Sharma, she cannot escape from her liability in this respect and vide order dated 31.3.2004, copy of which is Ex.PW3/B, as issued by Collector of Stamps, Stamp Vending License of Manju Aggarwal has been cancelled.
32. During the course of the arguments, it is submitted by Ld. Counsel for the accused Manju Aggarwal that the deposition of PW6/Prem Chand, Panch witness cannot be treated as trustworthy as he has joined as Panch witness in Anti Corruption Branch several time. No doubt PW6/Prem Chand, Panch witness in his cross examination by Ld. Counsel for the accused Manju Aggarwal has stated that he was placed on duty as Panch witness thrice in Anti Corruption Branch and he took part in one raid. He has also added that he had received written order from his office regarding his duty C.C. No. 05/11 Page No. 33 of 40 as Panch witness. Said PW6/Prem Chand has joined duty as Panch witness not as per his sweet will but as per the Official Roaster prepared by the Anti Corruption Branch in this respect and therefore, I do not find any reason to disbelieve his deposition specifically when there is no allegation of enmity by him as against the accused. In view of the same, I do not find any force in the submission of Ld. Counsel for the accused Manju Aggarwal in this respect.
33. During the course of the arguments, it is submitted by Ld. Counsel for the accused Manju Aggarwal that Complaint Ex.PW2/A appears to have been fabricated as PW6/Panch witness has put the date as 3.12.03 below his signature at point Z though the said complaint is stated to have been lodged on 5.12.03. From the perusal of the deposition of PW2/complainant, PW6/Prem Chand, Panch witness, PW7/Raid Officer, it is clearly reflected that Complaint Ex.PW2/A was got lodged by the complainant before the Raid Officer in Anti Corruption Branch on 5.12.03. No doubt, PW6/Panch witness is found to have put the date as 3.12.03 below his signature on the said Complaint and said fact has been clarified by PW6 in his cross examination that by mistake, he has put the date as 3.12.03 though he has joined duty as Panch witness on 5.12.03 and Complaint was C.C. No. 05/11 Page No. 34 of 40 lodged in his presence. Therefore, I do not find any force in the said submission of Ld. Counsel for the accused Manju Aggarwal, to the effect that Complaint Ex.PW2/A appears to have been fabricated.
34. I also do not find any force in the submission of Ld. Counsels for the accused that mere recovery of the treated GC notes as against the accused is not sufficient to convict the accused for the charged offence. Once the accused is found to have accepted the bribe amount in the form of premium on the sale of stamp paper, it is for him to explain as to in which capacity he has accepted the same.
35. 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 C.C. No. 05/11 Page No. 35 of 40 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.
36. 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 C.C. No. 05/11 Page No. 36 of 40 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."
37. 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 in para 10 as under: C.C. No. 05/11 Page No. 37 of 40 "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."
38. 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.
39. Once the bribe amount is proved to have been accepted by the accused it is for the accused to explain as to under what capacity he has accepted the same. In the present case, the accused Deepak Sharma has not given any justifiable explanation as to why he had accepted Rs.55/ in the form of one GC note of Rs.50/ and one GC note of Rs.5/ as against sale of stamp paper of Rs.50/ Ex.P3 from the complainant and said amount of Rs.55/ has been duly recovered C.C. No. 05/11 Page No. 38 of 40 from the table from which the accused Deepak Sharma had been selling the stamp papers from the Stamp Vendor Counter of accused Manju Aggarwal.
40. In view of the aforesaid materials as available on the record, I am of the considered view that the presumption as contemplated U/S 20 of the Prevention of Corruption Act,1988 could not be rebutted by the accused. In view of the same, I have no hesitation to safely conclude that in pursuance of the criminal conspiracy hatched by both the accused Manju Aggarwal and Deepak Sharma to sell the stamp papers on premium the accused Deepak Sharma had demanded and accepted Rs.55/as against sale of stamp paper of Rs.50/ on behalf of the accused Manju Aggarwal from the complainant and ultimately, said amount was recovered from the accused Deepak Sharma.
41. The net result of the aforesaid discussion is that the prosecution has been successful in establishing its case as against both the accused Manju Aggarwal and Deepak Sharma for the charged offence. Hence, accused Manju Aggarwal is held guilty and convicted for offence punishable U/S 120B IPC and U/S 7 and 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988 and accused C.C. No. 05/11 Page No. 39 of 40 Deepak Sharma is held guilty and convicted for offence punishable U/S 120B IPC.
Let both these accused be heard separately on the point of sentence.
Announced in the open court on this 2nd day of December, 2011 (B.R. Kedia) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC,Delhi C.C. No. 05/11 Page No. 40 of 40