Delhi District Court
State vs . Manoj Kumar on 24 May, 2011
IN THE COURT OF SHRI B.R. KEDIA, SPECIAL JUDGE07
(CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
C.C.NO. : 01/11
Unique Case ID : 02401R0506142008
STATE VS. MANOJ KUMAR
S/o Sh. Niranjan Singh,
R/o H. No. 5, Gali No. 1, Shani
Bazar Road, Johri Pur, PS Gokul
Puri, Delhi.
Also at : Village & PO Ailum,
District Muzafarnagar, U.P.
FIR NO. : 34/07
U/S : 7/13 Prevention of Corruption Act,
1988
P.S. : ANTI CORRUPTION BRANCH,
DELHI
Date of Institution 05.04.2008
Judgment reserved on 13.05.2011
Judgment delivered on 24.05.2011
JUDGMENT
1. The precise case of the prosecution is that on dated 01.08.2007 complainant Mohd. Salim S/o Aladdin went to Anti C.C. No. 01/11 Page No. 1 of 27 Corruption Branch, Delhi and got lodged his complaint Ex.PW3/A regarding subsequent demand of bribe of Rs.500/ besides sum of Rs. 1000/ for bribe as already received by him as consideration for not demolishing the construction of the house of the complainant by the accused.
2. The gist of the said complaint is that the complainant Mohd. Salim was carrying out the construction work on his property bearing No.A69/04, Sri Ram Colony, Rajiv Nagar, Delhi and about one month back HC Jagmal and Ct.Manoj Kumar (accused herein) demanded bribe from him with the threat for demolishing his construction work in case of nonpayment of bribe and out of fear to save his construction, he paid Rs.1000/ towards bribe to the accused. Thereafter, again on 30.07.2007 accused Manoj Kumar alongwith two police officials came to his said house and further demanded sum of Rs.500/ towards bribe and asked him to bring Rs.500/ till 2:00 p.m. on 01.08.2007 and since the complainant was against giving of bribe, so he went to Anti Corruption Branch and got his complaint lodged before the then Inspector Chander Mani, Raid Officer PW3 in presence of Panch witness Amar Pal PW 5.
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3. The further case of the prosecution is that the complainant has produced 5 GC notes of Rs. 100/ each before the Raid Officer PW3 who noted down the serial number of said GC note in the pre raid proceedings Ex.PW3/B and treated the said GC notes with phenolphthalein powder. Thereafter, Raid Officer PW3 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 moving his right hand over his head twice after being satisfied that the bribe has actually been given.
4. That at about 1:40 p.m., PW3 Raid Officer along with complainant, Panch witness, Inspector D.L.Negi, SI Anil Kumar, Ct. Manmohan and Driver Satinder Pal left Anti Corruption Branch in a government vehicle and reached near Bhajan Pura Chowk. Government vehicle was left near the said Chowk and Inspector D.L.Negi and Driver Satinder Pal remained in the vehicle. C.C. No. 01/11 Page No. 3 of 27 Complainant and Panch witness reached at the Kanwar Pandal near Bhajan Pura Chowk and started talking to the accused and other members of the raiding party took suitable position.
5. The further case of the prosecution is that at about 2:10 p.m. complainant, Panch witness and the accused went inside Aggarwal Sweets and at about 2:15 p.m. on getting predetermined signal given by the Panch witness, the raiding team rushed towards the Aggarwal Sweets where the Panch witness stated that the accused Ct.Manoj Kumar who was in police uniform had demanded and accepted bribe of Rs.500/ in his right hand from the complainant and had kept the same in the right side pocket of his pant. Thereafter, Raid Officer after disclosing his identity challenged the accused that he had demanded and accepted the bribe of Rs.500/ from the complainant and offered his search but accused declined and became perplexed. On his directions, Panch witness recovered bribe amount of Rs.500/ from the right side pocket of pant of the accused and compared the serial number of that GC notes with serial number mentioned in pre raid proceedings Ex.PW3/B and the same tallied. That recovered GC notes were taken into possession vide seizure memo Ex.PW3/C. The wash of right hand of the accused was taken in colorless solution of C.C. No. 01/11 Page No. 4 of 27 sodium carbonate which turned into pink and solution was transferred into two empty small clean bottles which were sealed with the seal of CM and were marked as RHWI & RHWII by pasting slips thereon which were signed by Raid Officer, complainant and Panch witness. The Raid Officer also drawn up the post raid proceedings which is Ex.PW3/E and prepared rukka Ex.PW3/F and sent the same through Ct. Manmohan to PS Anti Corruption Branch for registration of the case.
6. The further case of the prosecution is that the Raid Officer called Inspector D.L.Negi PW7 IO at the spot and handed over him the custody of the accused, case property and relevant documents etc. for purpose of Investigation. I.O. took up the Investigation, prepared the Site Plan Ex.PW7/A, arrested the accused vide Arrest Memo Ex.PW5/A and conducted his personal search vide Memo Ex.PW5/B, received original rukka Ex.PW3/F and copy of FIR Ex.PW4/A, 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.PX1 was C.C. No. 01/11 Page No. 5 of 27 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, charge for offence punishable U/S 7 and 13 (2) r/w Section 13 (1) (d) of the Prevention of Corruption Act, 1988 was framed against accused on 09.09.2008 to which accused pleaded not guilty and claimed trial.
8. Thereafter, in order to bring home the guilt of the accused, the prosecution got examined 8 prosecution witnesses namely Ct.Mohanan who has deposited the relevant case property in FSL Rohini from PS Civil Line, a formal witness as PW1, HC Surender Kumar, the then MHC(M) at PS Civil Line, a formal witness as PW2, Inspector Chander Mani, Raid Officer as PW3, SI Anand Kumar, the then Duty Officer in PS Anti Corruption Branch who has proved the copy of the FIR, a formal witness as PW4, Sh.Amar Pal, Panch witness as PW5, Mohd. Salim, complainant as PW6, Inspector D.L.Negi, IO as PW7, Sh.Jaspal Singh, the then DCP, North East District, Delhi who had accorded Sanction for prosecution as against C.C. No. 01/11 Page No. 6 of 27 the accused as PW8.
9. After closure of the PE, statement of accused under Section 313 Cr.P.C. was recorded in which the accused denied about any demand and acceptance of the bribe from the complainant. Accused claimed to be falsely implicated in this case having no concern with the alleged offence. He further added that he alongwith HC Mahesh were on duty in Kanwar Pandal at Bhajan Pura and they had altercation with 45 persons from Anti Corruption Branch who asked about HC Jagmal and thereafter he has been falsely implicated in this case. However, the accused has got examined two witnesses namely Ct. Subhash Chand as DW1 and HC Mahesh Kumar as DW2 in his defence.
10. I have heard Final Arguments as addressed by Sh.Trilok Chand Adv. Ld. Counsel for the accused and Sh.Vinod Kumar Sharma, Ld. APP for the State and perused the relevant record.
11. It is submitted by Ld. Counsel for the accused that Sanction Order in this case has been passed by the Sanctioning Authority mechanically without proper application of mind and therefore, said C.C. No. 01/11 Page No. 7 of 27 sanction is not valid and entire proceedings stand vitiated. It is further added by Ld. Counsel for the accused that the accused has neither demanded nor accepted any bribe from the complainant and prosecution has failed to prove about the said aspects and hence, accused deserves to be acquitted. It is also added by Ld. Defence Counsel that PW5 Amar Pal, Panch witness as well as PW6 complainant Mohd. Salim have turned hostile and have not deposed anything as against this accused and no other PW has deposed anything as against this accused regarding the demand and acceptance of the bribe from the complainant and therefore, the accused deserves to be acquitted. It is further added by Ld. Counsel for the accused that on 01.08.2007 when the accused alongwith HC Mahesh were on duty in Kanwar Pandal, Bhajan Pura, they had verbal altercation with some police personnels from Anti Corruption Branch on their asking about HC Jagmal and thereafter, this accused has been falsely implicated in this case. It is further added by Ld. Counsel for the accused 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 also added that as there are several contradictions in the deposition of Raid Officer and IO, which falsify the case of the prosecution. Ld. Counsel for the accused thus urged for acquittal of C.C. No. 01/11 Page No. 8 of 27 this accused and has referred and relied upon the following judgments: (1)2001 Cr.L.J.3373 (2) AIR 1976 SC 91 (3) 2005 Cr.L.J. 1136 (4) 2005 Cr.L.J.4450 (5) 2005 Cr.L.J.4834
12. To the contrary, it is submitted by Ld. APP for the State that the prosecution by examining 8 PWs have clearly established its case as against the accused and therefore, the accused deserves to be convicted for the charged offence U/S 7 and 13 (2) of Prevention of Corruption Act, 1988. It is further added by Ld. APP for the State that since PW5 Amar Pal, Panch witness and PW6 Mohd. Salim, complainant by being won over by the accused have turned hostile but in view of their part deposition coupled with the deposition of other PWs, prosecution has successfully established its case as against the accused for the charged offence. It is further added by Ld. APP that there is no reason as to why PW3 Raid Officer and PW7 IO would falsely implicate the accused specifically when there is no previous enmity as against the accused by them. It is further added by Ld. APP C.C. No. 01/11 Page No. 9 of 27 that the Sanctioning Authority has passed the Sanction Order on proper appreciation of the material on record and Sanction Order is duly valid and proper. It is further added by Ld. APP that mere discrepancy in the deposition of certain PWs as pointed out by Ld. Counsel for the accused are merely formal in nature and is because of the time gap between the period of incident and deposition of PWs in the court and the case of the prosecution cannot be thrown out merely on the said ground. Ld. APP for the State has added that the prosecution has been successful in establishing its case as against the accused for the charged offence and hence, the accused deserves to be convicted.
13. The first and foremost question having significant bearing on the fate of this case is whether prosecution has proved that valid Sanction has been accorded by the Competent Authority as per Section 19 (1) (c) of Prevention of Corruption Act, 1988. In order to prove the Sanction, the prosecution has examined PW8 Sh. Jaspal Singh, the then DCP, North East District, DAP, Delhi who has categorically deposed that he was competent to remove the accused Manoj Kumar from service and after examining carefully the materials i.e. FIR, Memos, statement of witnesses and other C.C. No. 01/11 Page No. 10 of 27 documents collected during the course of investigation as placed before him and after due application of his mind he had accorded the Sanction U/S 19 of Prevention of Corruption Act, 1988 to prosecute the accused Manoj Kumar vide Sanction Order Ex.PW8/A bearing his signature at point A. He had specifically denied the suggestion of Ld. Defence Counsel that he had accorded the sanction mechanically without proper application of mind. He further reiterated in his cross examination by Ld. Defence Counsel that he had perused all the relevant documents and had accorded the Sanction after due application of mind.
14. In the case reported as State of Maharashtra and ors V/s Ishvar Piraji Kelpatri & ors 1996 Cri.L.J.1127, where Hon'ble Supreme Court had laid down that if the Authority according sanction makes statement that while signing the order of sanction, it had personally scrutinized the file and had arrived at required satisfaction, it is not necessary to look for, that there was application of mind or not or that material on record was examined by the concerned officer or not before according sanction, especially when order prima facie shows that, he had done so.
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15. Furthermore, in the case reported as 2004 (13) SCC 487, Shankar Bhai Lalji Bhai Vs. State of Gujrat, it was observed by Hon'ble Supreme Court of India as under: "So far as the question of Sanction is concerned, in the absence of anything to show that any defect or irregularity therein caused failure of justice, that plea is without substance."
16. In the case reported in 2011 I AD (CRI.) (S.C.) 1, Kootha Perumal Vs. State (through) Inspector of Police, Vigilance & Anti Corruption, it was held in Para 14 by Hon'ble Supreme Court of India as under: "Keeping in view the aforesaid statement of law, it would not be possible to conclude that the sanction order in the present case was not valid. Ex.P2 with the present appeal is the copy of the sanction order. A perusal of the same would show that the sanctioning authority has adverted to all the necessary facts which have been actually proved by the prosecution in the trial. Upon examination of the material facts, the sanctioning C.C. No. 01/11 Page No. 12 of 27 authority has certified that it is the authority competent to remove the appellant from the office. It is specifically stated that the statements of the witnesses have been duly examined. Sanction order also states that the other materials such as copy of the FIR as well as other official documents such as the different mahazars were carefully examined. Upon examination of the statements of the witnesses as also the material on record, the sanctioning authority has duly recorded its satisfaction that the appellant should be prosecuted for the offences, as noticed above. We, therefore, find no merit in the submission of the learned counsel that the sanctioning order to prosecute the appellant was not legal".
17. By taking cue from the aforesaid judgments and applying the same to the facts of the present case, I do not find any force in the submission of Ld. Counsel for the accused to the effect that Sanction Order was passed mechanically as I am of considered view that the Sanction has been validly granted by PW8 Sh.Jaspal Singh, the then DCP, North East District, Delhi who was competent to do so. C.C. No. 01/11 Page No. 13 of 27
18. That during the course of argument, it is submitted by Ld. Counsel for the accused that the prosecution could not prove about the demand and acceptance of bribe by the accused as PW6 Complainant Mohd. Salim and PW5 Panch witness Amar Pal have turned hostile and have not deposed anything against this accused regarding demand and acceptance of the bribe from the complainant. On the other hand, it is submitted by Ld. APP for the State that the facts regarding demand and acceptance of the bribe by the accused from complainant has been successfully proved by the prosecution and mere fact that PW6 complainant Mohd. Salim and PW5 Panch witness Amar Pal by turning hostile being won over by the accused has not identified the accused can be of no help for the accused as considering their part deposition and deposition of other PWs established the case of the prosecution.
19. In order to prove that the accused had demanded and accepted the bribe amount from the complainant, the prosecution is found to have examined PW5 Amar Pal, Panch witness, PW6 Mohd. Salim, complainant and PW3 the then Inspector Chander Mani (Raid Officer). PW5 Amar Pal, Panch witness has clearly deposed before the court that on dated 01.08.2007 he was on duty as a Panch witness in the Anti Corruption Branch and complainant Mohd. Salim got C.C. No. 01/11 Page No. 14 of 27 recorded his Complaint Ex.PW3/A bearing his signature at point B and he has also narrated about the Pre Raid Proceedings Ex.PW3/B bearing his signatures at point B. He further deposed that at about 1:40 p.m., he alongwith the other members of the raiding team left the Anti Corruption Branch in a government vehicle and reached near Bhajan Pura Chowk at about 2:00 p.m. He further deposed that he and complainant reached Kanwar Pandal near Bhajan Pura Chowk and complainant called two police officials including the accused and thereafter, they went to nearby tea stall where they took cold drink. Though, said Panch witness is found to have turned hostile, said PW5 has admitted that the Post Raid Proceedings Ex.PW3/E, Seizure Memo of currency notes Ex.PW3/C, Seizure Memo of exhibits, sealed parcel and sample seal Ex.PW3/D, Arrest Memo of the accused Ex.PW5/A bears his signature.
20. PW6 complainant Mohd. Salim has also deposed that on 01.8.2007 at about 12:30 p.m. he came to the Anti Corruption Branch and gave his statement Ex.PW3/A to Inspector Chander Mani, Raid Officer in presence of Panch witness Amar Pal. Said statement bear his signature at point A and the signature of Amar Pal at point B and signature of Raid Officer at point C. He further deposed that he C.C. No. 01/11 Page No. 15 of 27 delivered 5 GC notes in the denomination of Rs.100/ each to the Raid Officer and number of the said GC notes were noted in the PreRaid Report Ex.PW3/B. He also deposed about the PreRaid Proceedings Ex.PW3/B. He further deposed that he alongwith Inspector D.L.Negi, Panch witness, Amar Pal and other members of the raiding team left Anti Corruption Branch office and reached near Bhajan Pura Chowk at about 2:00 p.m. Said PW6 complainant also deposed that Post Raid Report Ex.PW3/E bears his signature at point A and that of the Panch witness at point B and that of the Raid Officer at point C. He also deposed the Seizure Memo of tainted GC notes Ex.PW3/C, Seizure Memo of exhibits, sample seal and sealed parcel of pant Ex.PW3/D, Arrest Memo of the accused Manoj Kumar Ex.PW5/A and Personal Search of the accused Ex.PW5/B which bear his signatures. Said PW6 complainant is also found to have turned hostile and has not deposed as against this accused regarding the demand and acceptance of the bribe from him.
21. No doubt PW5 Amar Pal, Panch witness and PW6 Mohd. Salim, complainant are found to have turned hostile on certain aspects but from the perusal of the record it is clearly reflected that both of them had deposed that Post Raid Proceedings Ex.PW3/E bear C.C. No. 01/11 Page No. 16 of 27 signature of the Panch witness at point B, signature of the complainant Mohd. Salim at point A and signature of Raid Officer, PW3 Chander Mani at point C.
22. In the Judgment reported as AIR 1991 SC 1853 Khujji @ Surender Tiwari vs. State of M.P., it was observed as under: Para 6: ".................................... Counsel for the State is right when he submits that the evidence of a witness, declared hostile, is not wholly effaced from the record and that part of the evidence which is otherwise acceptable can be acted upon. It seems to be well settled by the decisions of this court "Bhagwan Singh vs. State of Haryana (1976) 2 SCR 921 : (AIR 1976 SC 202): Rabinder Kumar Dey vs. State of Orissa, (1976) 4 SCC 233 :(AIR 1977 SC 170) and Syed Akbar v. State of Karnataka, (1980) 1 SCR 95: (AIR 1979 SC 1848) that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. In the present case the evidence of the aforesaid two eye witnesses was challenged by the prosecution in crossexamination because they refused to name the accused in the dock as the assailants of the deceased. We are in agreement with the submission of the learned counsel for the State that the trial Court made."
23. I am of the considered view that said Post Raid Proceedings Ex.PW3/E being in the nature of Panchnama which is duly signed by C.C. No. 01/11 Page No. 17 of 27 the complainant and Panch witness is duly admissible and reference can be made to the case of Santa Singh vs. State of Punjab AIR 1956 Supreme Court 526 wherein it was held that mere presence of the police officer when a statement is made does not by itself render such a statement inadmissible. So long as a panchnama is a mere record of the things heard and seen by panchas and does not constitute a statement communicated to a police officer in the course of investigation by him and it would not fall within the mischief of section 162 of the Code.
24. From the perusal of the said Post Raid Proceedings Ex.PW3/E, it is clearly reflected that on asking by the accused Manoj Kumar, complainant Mohd. Salim has delivered sum of Rs.500/ to the accused which he accepted in his right hand and kept in the right pocket of his pant and thereafter, said treated 5 GC notes of Rs.100/ each were recovered from the accused Manoj Kumar. It is further revealed from the record that right hand wash of the accused Ex.RHWI and right pant pocket wash of the accused Ex.RSPPWI were found to contain phenolphthalein and sodium carbonate as per FSL Report Ex.PX1.
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25. In view of the above material as available on the record, I am of the considered view that the demand and acceptance of the bribe of Rs.500/ by the accused Manoj Kumar from the complainant PW6 Mohd. Salim found established on record.
26. During the course of the argument, it is submitted by Ld. Counsel for the accused that as the Raid Officer is an 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. C.C. No. 01/11 Page No. 19 of 27 He stretched his hand with the money towards the pocket of accused 's trouser but accused said the money might be paid to the person for whom it was meant for. He refused to receive the money and jerked complainant's hand with his hand as a result of which the notes came to be flung across the wall into neighboring room. He deposed that accused neither demanded the amount from his nor accepted the amount. The punch witness who went along with the complainant 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."
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27. Besides that in the case reported as AIR 1998 SC 1474 State of U.P. Vs. Zakullaha it was held by the Hon'ble Supere Court of India that the evidence of trap officer in a bribe case can be acted upon even without the help of any corroboration and similar view was held in following judgments: (1) Prakash Chand vs. State (Delhi Administration) AIR 1979 SC 400 (2) Hazari Lal vs. Delhi Administration AIR 1980 SC 873
28. During the course of the argument, it is submitted by Ld. Counsel for the accused that there are several contradictions in the deposition of PW3 Raid Officer and PW7 IO on certain aspects which falsify the case of the prosecution and Ld. Counsels pointed out following contradictions: (A) That PW3 Raid Officer deposed that Ct.Mohanan had left the spot at about 4:30 p.m.with the rukka for registration of the FIR and he also left the spot whereas PW7 IO deposed that they returned to Anti Corruption Branch at about 7:00 p.m. (B) That PW3 deposed about the Kanwar Pandal near the spot whereas PW7 IO deposed that there was no Kanwar Pandal at the Chowk near the spot.
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29. I do not find any force in the aforesaid submission of Ld. Counsel for the accused in view of the fact that said contradictions appear to be on formal aspects and cannot be treated as unnatural because of the time gap between the period of incident and the deposition of the PWs before the court. My said view is also found supported from the law laid down by the Hon'ble Supreme Court regarding contradictions in case of Bharuda Broginbhai Harjibhai V/s State of Gujrat AIR 1983 SC 753 wherein it was held that 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.
30. I also do not find any force in the submission of Ld. Defence Counsel to the effect that when the accused alongwith HC Mahesh were on duty in Kanwar Pandal at Bhajan Pura Chowk on 01.8.2007, they had verbal altercation with the officials of Anti Corruption Branch when they asked about HC Jagmal and thereafter, they were taken to the Anti Corruption Branch and accused was falsely implicated in this case. Said defence stand of the accused is found falsified from the material as available on the record. Furthermore, I do not see any reason as to why neither the accused C.C. No. 01/11 Page No. 22 of 27 nor DW2 HC Mahesh have lodged any complaint to the senior police officer regarding false implication of the accused by the police officials of the Anti Corruption Branch in this case.
31. I also do not find any force in the submission of Ld. Counsel 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, it is for him to explain as to in which capacity he has accepted the same.
32. In the case of Dhanvantrai Balwantrai Desai V/s State of Maharashtra, AIR 1964 Supreme Court 575 it was held as under:
"Therefore, the court has no choice in the matter, once it is established that the accused person has received a sum of money which was not due to him as a legal remuneration. Of course, it is open to that person to show that though that money was not due to him as legal remuneration, it was legally due to him in some other manner or that he had received it under a transaction or an arrangement which was lawful. The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation C.C. No. 01/11 Page No. 23 of 27 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.
33. It is also useful to refer to the decision of Hon'ble Supreme Court in case of M.Narsinga Rao V/s State of A.P. 2001 (1) SCC 691 rendered by Three Hon'ble Judges of Supreme Court. In that case accused demanded a bribe of Rs. 500/ from a milk transporting contractor for recommending the payment of an amount due to the contractor. The accused was caught red handed while accepting the bribe amount. Accused took the plea that currency notes were stuffed into his pocket. During trial complainant and panch witness did not support the prosecution case and it was argued before Hon'ble High Court that it is not possible to draw any presumption against the delinquent public servant in the absence of direct evidence C.C. No. 01/11 Page No. 24 of 27 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."
34. It is also useful to refer to the case of B. Noha V/s State of Kerela & Another 2006 VI AD ( Criminal ) 465 ( SC ) where it was held as under: "that when it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deducted from the facts and circumstances obtained in the particular case."
35. It was held in the case reported as State of AP Vs. C.C. No. 01/11 Page No. 25 of 27 Kommaraju Gopala Krishna Murthy 2000 (9) SCC 752, that when the amount is found to have passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification. That burden was not discharged by the accused herein.
36. Once the bribe amount is recovered from the accused it is for the accused to explain as to how the bribe amount landed in his person. In the present case, the accused Manoj Kumar has not given any explanation as to how bribe amount of Rs.500/ landed in his right pocket of his pant from which it was recovered.
37. In view of the aforesaid materials as available on the record, I am of the considered view that the presumption as contemplated U/S 20 of the Prevention of Corruption Act,1988 could not be rebutted by the accused and the judgments as referred and relied by Ld. Counsel for the accused can be of no help for the accused being not applicable in view of the fact and circumstances as available on record relating to the present case.
38. In view of the aforesaid discussion, I have no hesitation to safely conclude that the prosecution has successfully established its case as against the accused Manoj Kumar for the charged offence and therefore, the accused Manoj Kumar is held guilty and convicted for C.C. No. 01/11 Page No. 26 of 27 offence punishable U/S 7 and 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988. Let accused Manoj Kumar be heard separately on the point of sentence.
Announced in the open court on this 24th day of May, 2011 (B.R. Kedia) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC,Delhi C.C. No. 01/11 Page No. 27 of 27