Delhi District Court
State vs Bhuvan Chand Sharma on 3 February, 2010
1
IN THE COURT OF SH. A. S. YADAV SPECIAL JUDGE : DELHI
C C No. 106/08
State V/s Bhuvan Chand Sharma
S/o late Sh. Vishnu Dutt Sharma,
R/o B-364, MIG Flat,
East of Loni Road, Shahdara,
Delhi.
Jasbir Singh S/o Late Munshi Ram
Kasba Kandla,Muzaffar Nagar UP
F. I. R No. : 56/01
Under Section : 7/13 of Prevention of Corruption Act,
Police Station : Anti Corruption Branch
Date of Institution 06.06.2002
Judgment reserved on 29.1.2010
Judgment delivered on 01.2.2010
JUDGMENT
In brief the case of the prosecution is that complainant Mohd Yasin (PW6) was running a barber shop at F-16 Shastri Park Main Road, Chand Masjid, Delhi. The said shop was not assessed to house tax. One Mr. Sharma area inspector visited his shop 2-3 times and told him that he would get his file for house tax prepared and demanded a bribe of Rs. 5000/- for the same and when complainant expressed his inability to pay that much amount Mr. Sharma asked him to pay initially Rs. 2500/- and he further told him that he would come to collect the bribe amount at his shop at 11.00 AM on 16.10.2001. The complainant was against giving of bribe. He went to 2 Anti Corruption Branch and where he got his complaint Ex. PW6/A recorded by Raid Officer Insp. Sudesh Kumar ( PW8 ) in presence of panch witness Sanjeev Kumar Mangla ( PW7).
2 The prosecution case further is that complainant brought with him Rs. 2500/- i.e. 02 GC note of Rs.500/- each and 15 GC notes of Rs. 100/- each which he handed over to Raid Officer Insp. Sudesh Kumari ( PW8 ) who got those notes checked through panch witness Sanjay Kumar Mangla (PW7) and noted down their serial number in pre raid proceedings Ex. PW7/A. The GC notes were treated with phenolphthalein powder. The raid officer explained the purpose of treating the GC notes with phenolphthalein powder to the complainant as well as to the panch witness by giving a demonstration. Thereafter the GC notes were handed over to the complainant who kept the same in the pocket of his shirt. Panch witness was instructed to remain close with the complainant and to over hear the conversation between the complainant and the person demanding the bribe amount and to given signal by moving his hand over his head after being satisfied that bribe had actually been given. 3 The prosecution case further is that at about 10.30 AM raid officer, complainant, panch witness Insp. M. A. Salam along with other members of raiding team left Anti Corruption Branch for in a government vehicle and reached at bridge of Shastri Park Main Road. The government vehicle was parked at bridged. Insp. Sukhbir 3 Singh and driver remained in that vehicle. The complainant and panch witness were sent to the shop of complainant and raid officer along with remaining members of raiding party followed them and took their suitable positions. At about 11.45 am two persons came on two wheeler scooter at the shop of barber/complainant. 4 The prosecution case further is that at about 12.00 PM raid officer received pre determined signal from the panch witness and she along with raiding team reached inside the shop of the complainant. Panch witness informed him that the accused Bhuvan Chand Sharma demanded the bribe money and thereafter complainant took out the GC notes from left pocket of his shirt and extended towards accused Bhuvan Chand Sharma and accused Bhuvan Chand Sharma accepted bribe money of Rs. 2500/- with his left hand and transferred the same to his associate (co accsed jasbir ) who counted the same with his both the hands and then kept the GC notes in the fist of his right hand. Raid officer challenged the accused persons that they had taken the bribe of Rs. 2500/- from the complainant and offered her search as well as search of members of raiding team before taking the search of accused persons but accused persons . On her directions panch witness recovered the bribe amount of Rs. 2500/- from the fist of right hand of accused Jasbir Singh and compared sr number of those recovered GC notes with the sr number mentioned in pre raid report Ex. PW7/A which tallied. Those recovered GC notes were taken into possession vide 4 seizure memo Ex. PW6/B. The wash of both the hands of accused Jasbir Singh was taken separately in colourless solution of sodium carbonate which turned pink and the solution was transferred in four small bottles. The bottles were thereafter sealed with the seal of SK. Marked paper slips LHW-I-II (J) and RHW-I-II ( J ) were pasted on those bottles after obtaining the signature of panch witness and complainant thereon. The left hand wash of accused Bhuvan Chand Sharma was taken in colourless solution of sodium carbonate which turned pink and the solution was transferred in two small bottles. The bottles were thereafter sealed with the seal of SK. Marked paper slips LHW-I-II were pasted on those bottles after obtaining the signature of panch witness and complainant thereon. Raid Officer prepared the sample seal and the bottles and sample seal were taken into possession vide memo Ex. PW6/C. Raid Officer drawn the post raid proceedings Ex. PW7/B and prepared rukka Ex. PW8/A. 5 The prosecution case further that thereafter raid officer called Insp. M. A. Salam ( investigating officer ) at the spot and handed over to him the custody of accused persons, case property, recovered GC note of Rs. 2500/- exhibits of case siezure memo and copy of raid report. Investigating officer prepared site plan Ex. PW9/A at the instance of complainant and panch witness. He arrested the accused persons vide arrest memo Ex. PW7/C and D. Investigating Officer seized the two wheeler scooter on which accused persons came vide memo Ex. PW6/E. .Both the accused persons were got 5 medically examined and thereafter they were lodged in lockup of PS Civil lines and Investigating Officer deposited the case property with MHCM PS Civil Lines. During the course of investigation Investigating Officer collected the relevant documents and after completion of investigation filed the challan in the court. 6 After complying with the provisions of Section 207 Cr. P. C. and after hearing the Ld. Addl. PP for the state and ld. Counsel for accused persons charges were framed against the accused persons. 7 In order to prove its case prosecution examined nine witness.
8 Thereafter statement of accused persons were recorded u/s 313 Cr. P. C wherein they denied about the demand and acceptance of the bribe amount. They claimed to be innocent and falsely implicated in this case. They examined DW1 Rajnish Kumar UDC from house tax department, DW2 Zakir Hussain and D2W1 Jagdish in their defence.
9 I have heard Sh. H. K. Sharma ld. counsel for accused and Sh. Alok Saxena Ld. Addl.PP for State.
10 The first point for consideration is whether sanction was properly accorded for prosecution of accused Bhuvan Chand Sharma. 6 The ld. defence counsel for accused Bhuvan Chand Sharma has not addressed any arguments so far as the sanction is concerned. In order to prove sanction prosecution examined PW1 Sh. Ashok Kumar who deposed that on 24.5.2002 he was posted as Dy. Commissioner, Shahdara Zone and on that day after perusal of documents relating to the accused and on being satisfied he accorded sanction Ex. PW1/A to prosecute the accused. In his cross examination he denied the suggestion that he was not competent to accord sanction or that he accorded the sanction without due application of mind. He denied that he received any draft sanction from Anti Corruption Branch. Accused in his statement u/s 313 Cr. P. C. only stated that sanction was accorded without due application of mind. The sanctioning authority had appeared in the court and has proved the sanction Ex. PW1/A . The same is quite detailed and in itself shows due application of mind. The prosecution has proved that the sanction has been accorded by a competent person. Reference is placed on case 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 scrutinised 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. In the case C. S. Krishnamuthy V/s State of Karnataka, 2005 IV 7 AD (SC) 141, the Apex court in para 7 of the judgment has held as under:-
This sanction order was proved by Mr. V. Parthasarthy, Deputy General Manager of Bangalore Telecom as PW 40 , he was competent authority to accord sanction and he accorded the sanction for prosecution of accused for the alleged offence on 28th February, 1990 as per Ex.P.83 . He deposed that S. P., CBI sent a report against the accused and he perused the report and accorded the sanction as per Ex. P.83 . He deposed that he was satisfied that there was a case for prosecuting the accused for the alleged offence. He admitted that he received a draft sanction order and a draft sanction was also examined by vigilance cell and then it was put up before him. He also deposed that before according sanction he discussed the matter with the vigilance cell. He also admitted that he was not a law man, therefore, he discussed the legal implication with a legally qualified officer in the vigilance cell. He has denied the suggestion that he did not apply his mind in according sanction. It is no doubt true that the sanction is necessary for every prosecution of public servant, this safeguard is against the frivolous prosecuting against public servant from harassment. But the sanction should not be taken as a shield to protect corrupt and dishonest public servant
11 It is submitted by ld. counsel for accused Bhuvan Chand Sharma that accused Bhuvan Chand Sharma was merely a bill clerk 8 and was not the area inspector and he was not competent to assess the house tax. It is submitted by him that first of all the property is inspected by the Assistant Zonal Inspector for calculation of the property tax and thereafter a notice is issued to the owner and only thereafter the file is sent to the bill clerk for preparation of the bill and if assessment is not made regarding any property the property tax bill cannot be prepared. It is submitted by him that even PW5 stated in his cross examination that accused was not competent to prepare the assessment file. It is submitted by him that since accused Bhuvan Chand Sharma was not competent to assess the property for the purpose of house tax hence there was no question of his demanding bribe from the complainant. On the other hand it is submitted by Ld. Addl. PP for the state that it really did not matter whether the accused was not competent to assess the property for the purpose of house tax. It is submitted by him that it is proved from the statement of PW5 that accused was working as a bill clerk house tax department, Shahdara Zone. It is further submitted by him that it is proved from the statement of complainant and panch witness that accused demanded and accepted the bribe amount with his left hand and thereafter passed on the bribe amount to co accused Jasbir Singh who counted the same with his both the hands and thereafter retained the bribe amount in his right hand from which the bribe amount was recovered. It is submitted by him that once it is proved that accused being public servant demanded and accepted the bribe amount then it is really immaterial whether the accused was competent to do the job 9 or not. Moreover the plea of the accused that he visited the shop of complainant number of times along with area inspector in connection with house tax. Though complainant denied that accused visited the shop along with area inspector. Law is well settled that it does not matter whether the public servant was competent to do the work or not. Reference is placed in a case reported as Chaturdas Bhagwandas Patel Vs The State of Gujarat: 1976 (3) SCC 46 referred in State of Andhra Pradesh Vs C. Uma Maheswar Rao & Anr: 2004 V AD (SC) 176, where it has been held by the Apex Court that the question whether a person has an authority to do the act for which the bribe is accepted is of no consequence. In case reported as Gopal Singh Vs. CBI:ILR (2005) II Delhi 35 the Hon'ble High Court of Delhi in para 22 observed as under:
It has to be added that in cases under Prevention of Corruption Act, the prosecution is under no obligation to prove that a public servant demanding bribe was in a postilion to help the person from whom the bribe was being demanded. The prosecution succeeds the moment it is shown that a public servant had accepted some money from someone, which was not legal remuneration, the presumption under Section 20 of the Act comes into play shifting the burden upon the public servant to explain as to why he had received the money. A public servant may misguide, mislead or befool his victim to pay him illegal gratification knowing fully well that he is not in a position to help him and as such, it can be no defence for 10 him to say that since he was not in a position to help the complainant/victim , the money received by him does not amount to illegal gratification.
Even explanation (d) to section 7 which is reproduced as under makes it clear that it does not matter whether the person demanding bribe was in a position to do the work or not.
"A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.
12 It is further submitted by ld defence counsel that even as per complaint the bribe was demanded by some Insp. Sharma of house tax department and not by the accused. It is submitted by him that accused was merely working as bill clerk and he was not inspector so there was no question of accused demanding the bribe amount. I do not find any force in the submission of ld. defence counsel. complainant categorically deposed that 3-4 days prior to the raid one Sharma Ji of house tax came to his shop and inquired from him whether the shop has been assessed for the purpose of house tax and he told him that his shop was not assessed and he further told him that he had just constructed the shop and was not in a position to get the shop assessed for the purpose of house tax and he assured him that he would get his shop assessed in future. On next day Sharma Ji again came to his shop and threatened him that it would 11 cost him dear if he would not got his shop assessed and thereafter about 2 days he came to his shop and then he inquired from him that what would be the cost of getting the shop assessed and thereafter he told him that he would have to pay Rs. 5000/- as bribe for assessment of his shop for the purpose of house tax. There was no dispute about the identity of the accused. It is proved from the statement of complainant that accused was the same person who had visited his shop earlier and demanded bribe and on 16.10.2001 accused along with Jasbir Singh came to the shop of complainant and demanded the bribe amount from the complainant. Accused wanted to take advantage of the fact that his full name was not mentioned in the complaint but that was not required. It is a matter of common experience that in day to day life we knows so many persons by their sur name such as Sharma Ji, Gupta Ji, Verma Ji etc and we are seldom keen to know the full name unless we know a person very closely. In this case it is proved beyond doubt that accused was the same person who visited the shop of the complainant on earlier occasion and demanded the bribe amount and on the day of raid he again visited the shop of the complainant along with his associate and was caught red handed while accepting the bribe amount. 13 It is further submitted by ld defence counsel that no reliance can be placed on the statement panch witness as he was stock witness of Anti Corruption Branch. It is submitted by him that PW7 panch witness admitted in his cross examination that he joined 12 5-7 raids as a panch witness. From the statement of panch witness one can say that he was put on duty as a panch witness in Anti Corruption Branch for about 5-7 times but it is equally true that he participated only in his raid. If he was in fact a stock witness then he would have joined every raid. In fact it is not within the hand of an individual to offer himself for duty as panch witness. The list of the panch witness is submitted by their respective department in advance and an individual official has no role in it. To brand such an independent witness as stock witness is totally unjustified. 14 It is further submitted by ld defence counsel that complainant stated in his examination in chief that 2-3 friends of him took him to Anti Corruption Branch. In his cross examination he stated that when he went to Anti Corruption Branch on the day of raid he was accompanied by one Nandu and Abdul Malik and both of them accompanied him for raid and when raiding party reached near his shop Nandu and Abdul Malik got down from the government vehicle. However they did not come to his shop. It is submitted by ld defence counsel that Nandu and Abdul Malik were not joined in the raiding team though they were very much available for the reason best known to the Raid Officer. It is further submitted by him that complainant in his cross examination stated that at the time of raid 2-3 barbers were working at his shops and were present during the raid. It is submitted by him that even those barbers were not joined in the raid. It is significant to note that complainant no where deposed that 13 he give complaint Ex. PW6/A in presence of his friends. He specifically stated that he give his complaint to the police inspector in presence of panch witness. Like wise panch witness deposed that complaint Ex. PW6/A was given by the complainant to the Raid Officer in his presence. No suggestion was put to the panch witness that the friends of the complainant accompanied the raiding team in the government vehicle. Raid Officer categorically stated that when complainant came to Anti Corruption Branch he was not accompanied by any person. She denied that one Nandu and Abdul Malik accompanied the complainant or that they also went to the shop of complainant along raiding team. She also stated that she does not remember if any other person was present inside the shop at the time of raid beside the complainant, both the accused persons and complainant. She denied that she deliberately did not join Nandu and Abdul Malik in the raiding team so that she can exert pressure on the panch witness to testify according the prosecution case. Likewise Investigating Officer denied 2-3 public persons accompanied them when they left Anti Corruption Branch for the raid. He denied that 2-3 barbers were working in the shop when he went there. Neither panch witness, nor raid officer nor Investigating Officer stated that any of the friends of complainant accompanied them when they left Anti Corruption Branch for raid. It may be that some friend of the complaint went with him to Anti Corruption Branch but it is clear that none of the friends of the complainant accompanied the raiding team. Even complainant stated that his friends did not went to his shop along with 14 raiding team. The accused Bhuvan Chand has failed to prove that friends of complainant were present at the time of raid. There was no need to join each and every person in the raid. Panch witness was already there in the raiding team in the form of an independent witness.
15 It is submitted by ld defence counsel that in fact the complaint Ex. PW6/A was not written on 16.10.2001 rather it was written earlier as complainant went to Anti Corruption Branch prior to 16.10.2001 and met the Raid Officer and Raid Officer told him that he should fix the time and place for giving the bribe and then to come to her. Ld defence counsel has stated that complainant in his examination in chief deposed he went to Anti Corruption Branch along with his 2-3 friends and one madam whose name he does not recollect met her in the Anti Corruption Branch and he told the facts to her and she told him that he should fix the time and place for giving bribe and then to inform her. It is significant to note that Raid Officer categorically denied that complainant met her a day before the raid and she asked him to settle the date and time of bribe. May be the complainant went to Anti Corruption Branch a day before but definitely he has not met the Raid Officer Insp. Sudesh Kumari as she has categorically denied about meeting the complainant a day before. Even it is immaterial if the complainant has visited the Anti Corruption Branch a day before. The fact remains the complaint Ex. PW6/A was written by the Raid Officer Insp. Sudesh Kumari on the dictation of the 15 complainant PW6 Mohd Yasin in presence of panch witness ( PW7 ) on 16.10.2001.
16 It is submitted by ld defence counsel that in fact panch witness was not present in Anti Corruption Branch at 9.30 AM i.e. the time at which the complaint Ex. PW6/A alleged to have been recorded. It is submitted by him that panch witness in his cross examination stated that before proceeding to Anti Corruption Branch he was given written instructions by his Executive Engineer and at that time the office of the Executive Engineer was at Basai Darapur and during that time his office hours were from 10.00 AM to 5.00 PM. He further stated that he has not stated in his statement that he reached Anti Corruption Branch at 10.30 AM and he cannot say about the over writing in his statement regarding the time which has been made from 10.30 to 9.30 AM. It is submitted by ld. defence counsel that this over writing itself shows that panch witness reported to Anti Corruption Branch at 10.30 AM and not at 9.30 Am. I do not find any force in the submission of ld. defence counsel. In fact what panch witness stated is that he was instructed by his Executive Engineer to report Anti Corruption Branch at 9.30 AM. He no where stated that on 16.10.2001 firstly he went to his office and then he came to Anti Corruption Branch. If he had gone to his office at 10.00 AM then where was the question of his Executive Engineer telling him that he has to report to Anti Corruption Branch at 9.30 Am. What is evident from his statement is that he was asked to report to Anti Corruption 16 Branch at 9.30 AM by his Executive Engineer and not that firstly he went to his office at 10.00 AM and then he went to Anti Corruption Branch. Simply because there is an over writing in his statement regarding time does not mean that he reported to Anti Corruption Branch at 10.30 AM.
17 Complainant categorically deposed that when his complaint Ex. PW6/A was recorded panch witness was present. Panch witness categorically deposed that he reached Anti Corruption Branch at 9.30 AM and he was called inside by the lady inspector and the complaint Ex.PW6/A was made in his presence by the complainant. Like wise Raid Officer deposed that complainant came to her at 9.30 AM and got his statement Ex. PW6/A recorded in presence of the panch witness.
18 It is submitted by ld defence counsel that in a trap case the prosecution is required to prove that accused demanded the bribe amount. It is submitted by him that there is vital contradiction between the statement of complainant and panch witness regarding the manner in which bribe amount was demanded by accused Bhuvan Chand Sharma. It is submitted by him that complainant in his examination in chief stated that accused Bhuvan Chand Sharma gave a gesture by moving fingers of his hand towards him giving an indication of demand of money from him and thereafter he took out the GC notes from left pocket of his shirt and handed over to accused 17 Bhuvan Chand Sharma and accused Bhvan Chand Sharma accepted the GC notes with his left hand whereas panch witness deposed that after seeing the papers accused Bhuvan Chand Sharma asked the complainant to give the money and no gesture/signal was made by the accused Bhuvan Chand in that respect. It is submitted by him that this vital contradiction in the manner in which the bribe amount was demanded by accused Bhuvan Chand clearly goes on to show that in fact no bribe was demanded by accused Bhuvan Chand Sharma. It hardly matter whether the bribe amount was demanded by gesture or by words. The fact remains that the bribe amount was demanded and same was accepted by accused Bhuvan Chand with his left hand. The post raid proceedings were conducted by the Raid Officer on the asking of the panch witness and in the post raid proceedings panch witness has stated that accused Bhuvan Chand Sharma by gesture of his hand demanded the bribe amount by saying give money. So the bribe amount was demanded by gesture as well as by words and once the bribe amount has been accepted by the accused how does it matter whether it was demanded by gesture or by words. 19 It is further submitted by ld defence counsel that prosecution has failed to prove the acceptance of the bribe amount by the accused persons or about the recovery of the bribe amount from accused Jasbir. It is submitted by ld defence counsel for accused Bhuvan Chand that as per the complainant the bribe amount was accepted by accused Bhuvan Chand Sharma with his left hand and 18 thereafter the bribe amount was transferred by him to accused Jasbir Singh who was with him and Jasbir Singh counted the GC notes with his both hands and kept in pocket of his pant and thereafter Raid Officer came at the spot after receiving signal and Raid Officer took the search of the accused and recovered the bribe amount from the pant pocket of accused but whether it was recovered from left pocket or right pocket he did not recollect. It is further submitted by him that as per the panch witness complainant gave the bribe amount to accused Bhuvan Chand Sharma but he does not remember by which hand accused Bhuvan Chand Sharma accepted the amount and thereafter Bhuvan Chand gave the bribe amount to his associate and his associate kept those GC notes in his hand and thereafter he gave the signal the Raid Officer came at the spot and bribe amount was recovered from associate of the accused. It is submitted by him that panch witness does not remember as to by which hand Bhuvan Chand Sharma accepted the bribe amount and panch witness has also not stated that the bribe amount was counted by the associate of accused Bhuvan Chand Sharma with his both hands and also not stated from which hand of accused Jasbir Singh the bribe amount was recovered. It is significant to note that complainant was cross examined by the ld. Addl. PP in this regard and complainant when cross examined by ld. Addl. PP stated that now he recollect that accused Jasbir Singh after counting the bribe money with his both hands kept the same in his right hand. So complainant recollected that the bribe amount was retained by accused Jasbir Singh in his 19 right hand and the same was recovered from right hand of accused Jasbir Singh by panch witness. Like wise panch witness when cross examined by ld. Addl. PP stated that he recovered the bribe amount from accused Jasbir Singh. It is also significant to note that there was no question of keeping of bribe amount by accused Jasbir Singh in his pocket as no wash of pant pocket was taken as only left hand wash of accused Bhuvan Chand Sharma was taken and wash of both the hands of accused Jasbir Singh was taken. Had the bribe money was recovered from the pant of accused Jasbitr Singh then the wash of pant pocket must have been taken. Raid Officer deposed that when she reached at the spot and disclosed her identity and challenged the accused persons that they have accepted the bribe amount from the complainant. She further stated that accused Jasbir Singh was having those GC notes in his right fist and panch witness recovered the GC notes from right fist of accused Jasbir Singh. It is proved beyond doubt from the statement of complainant and panch witness that bribe amount was accepted by accused Bhuvan Chand Sharma with his left hand and thereafter bribe amount was handed over by him to accused Jasbir Singh who counted the same with his both hands and then retained the bribe amount in his right hand fist and the bribe amount was recovered from right hand fist of accused Jasbir. Complainant specifically deposed that wash of left hand of accused Bhuvan Chand Sharma was taken in a solution which turned pink and the solution was transferred into clean bottles. Likewise wash of both the hands of accused Jasbir were taken separately and the 20 solution turned pink and wash of his both the hands taken separately were filled up in four bottles. Panch witness fully corroborated the statement of the complainant in this regard. The Raid Officer categorically deposed about the washes taken at the spot. FSL report gave positive test for phenolphthalein powder. The scientific test proved that accused Bhuvan Chand Sharma accepted the bribe amount and thereafter the bribe amount was handled by accused Jasbir Singh with his both hands. In order to justify the turning of hand washes pink the accused Bhuvan Chand Sharma has come out with a story that when he reached near the shop of the complainant, complainant wanted to give him documents and the money for being taken to MCD for being given to the concerned inspector and he refused to accept the same by pushing the hand of the complainant in which the complainant was holding the GC notes and thereafter complainant in order to plant the money extended his hand towards Jasbir Singh and Jasbir singh also pushed his hand by saying that he has nothing to do with the matter. Complainant has specifically denied the suggestions given by ld defence counsel in this regard. In fact these suggestions were given by ld defence counsel to explain the washes. Here it is useful to refer to the case of of Som Parkash V/s State of Delhi AIR 1974 Supreme Court 989 , where Hon'ble Supreme Court in para 10 held as under:
"But the ................ of course , the oral evidence of Pws 1 and 4 by itself, if believed, as rightly believed by the High Court, proves the passing of the money when 21 challenged by P.W.7. The fact is indisputable that the hands, the handkerchief and the inner lining of the trouser pocket of the accused turned violet when dipped in soda ash solution. From this the State Counsel argues that on no hypothesis except that the notes emerged from the accused 's pocket or possession can the triple colour change be accounted for. The evidence furnished by inorganic chemistry often outwits the techonology of corrupt officials, provided no alternative reasonable possibility is made out. The appellant offers a plausible theory, PW 1 kept the notes with him and h is hands thus carried the powder. He gave a bottle of coke to the accused and the bottle thus transmitted particles of phenolphthalein to the latter 's hands. He ( the accused ) wiped h is face with the handkerchief and put it into his trouser pocket thus contaminating the lining with the guilty substance. Moreover, the inner lining was dipped by PW 7 with his hands which had the powder. Thus, all the three items stand explained, according to him. These recondite possibilities and likely freaks have been rejected by both the courts and we are hardly persuaded into hostility to that finding. It is but meet that science-oriented detection of crime is made a massive programme of police work, for in our technological age nothing more primitive can be conceived of than denying the discoveries of the sciences as aids to crime suppression and nothing cruder can retard forensic efficiency than swearing by traditional oral evidence only thereby discouraging the liberal use of 22 scientific research to prove guilt."
20 It is submitted by ld. counsel for the accused that as per the prosecution case complainant handed over documents pertaining to his shop to the accused Bhuvan Chand Sharma but documents were not seized by the Raid Officer rather the documents were handed over by the complainant to the Investigating Officer meaning thereby that the documents were never handed over by the complainant to the accused. It is significant to note that complainant no where stated that he handed over the documents to the accused. He only stated that accused Bhuvan Chand Sharma asked him about the documents of the shop i.e registry and electricity bill and thereafter accused Bhuvan Chand demanded the bribe amount. Complainant further stated that he handed over the documents to the police which were seized vide memo Ex. PW6/D. Panch witness also stated in his examination in chief that accused Bhuvan Chand asked the complainant to give the papers and after seeing the papers accused Bhuvan Chand asked the complainant to give the money. He no where stated in his examination in chief that the papers were retained by accused Bhuvan Chand. However, in his cross examination he stated that some documents were handed over by Bhuvan Chand to the complainant which were retained by him. It is significant to note that even accused Bhuvan Chand in his statement u/s 313 Cr. P. C. admitted that complainant himself gave him some papers for being taken and delivered to the concerned official of the 23 house tax meaning thereby he admitted that papers were given to him. May be while accepting the bribe amount he had kept the papers there and in the meanwhile signal was given and both the accused were apprehended and thereafter those very documents were given by the complainant to the Investigating Officer. The fact remains that accused went to the shop of the complainant along with his associate and complainant had shown him the papers pertaining to his shop and those papers were later on seized vide memo Ex. PW6/D. 21 It is submitted by ld. counsel for accused that nothing was done at the spot and both the accused persons were lifted from the shop of the complainant and straight way brought to Anti Corruption Branch and entire proceedings were conducted there. It is submitted by him that the raid team left the spot at 5.30 PM. Complainant in his cross examination stated that raiding team returned to Anti Corruption Branch after the raid at 5.00-5.30 PM. Panch witness in his cross examination stated that the raiding team left the spot at 2.30 PM. Raid Officer deposed that raiding team left the spot at 5.00 PM. Investigating Officer stated that raiding team left the spot at 6. 00 PM. So except the panch witness every body stated that the raiding team left the spot in between 5.00 to 6.00 PM. So far as doing of work at Anti Corruption Branch is concerned it is significant to note that neither the complainant nor the panch witness stated that washes were not taken at the spot or that solutions were 24 not filled up in the bottles at the spot. What they stated is that some writing work was done at Anti Corruption Branch though Raid Officer and Investigating Officer stated that writing work was done at the spot. It is significant to note that in a trap case the essential features are acceptance and recovery of bribe amount. The bribe amount was recovered at the spot, the washes were taken at the spot and the solution was filled up in the bottles at the spot. It is not the duty of the court to find out excuses in the garb some irregularity is conducted by the Investigating Officer such as doing of some writing work in the PS after brining the accused persons to the PS , to acquit the accused. The court has to see whether the essential part of the investigation has been carried out at the spot. It is evident that the essential pat of the investigation was carried out at the spot. Though even as per the statement of Raid Officer and Investigating Officer it is evident that entire proceedings were conducted at the spot. Assuming for the sake of arguments that some writing work was done at Anti Corruption Branch that by itself is no ground to exonerate the accused. 22 The most important thing is that complainant went to Anti Corruption Branch and lodged the report against Bhuvan Chand by referring him Insp. Sharma Ji. The complainant handed over Rs. 2500/- i.e. two GC notes in the denomination of Rs. 500/- each and 15 GC notes in the denomination of Rs. 100/- to the Investigating Officer who applied phenolphthalein powder on those GC notes and handed over to the complainant. It is proved from the statement of the 25 complainant and panch witness that raiding team proceeded towards the spot i.e. shop of the accused. The government vehicle was stopped just before the shop of the accused. Complainant and panch witness went to the shop of the complainant. The accused Bhuvan Chand Sharma along with his associate came to the shop of the complainant at the time already stated. He stopped the scooter and he along with his associate entered the shop of the complainant and there he accepted the bribe amount and handed over the same to his associate. As already discussed it is proved beyond doubt that it is accused Bhuvan Chand Sharma who has demanded the bribe from the complainant. If accused Bhuvan Chand Sharma has not demanded the bribe amount from the complainant then subsequent events i.e. going of the complainant to the Anti Corruption Branch and lodging of the report and coming of accused Bhuvan Chand Sharma with his associate at the shop of the complainant at the appointed time stands unexplained. The defence of accused Bhuvan Chand Sharma was that he knew a cloth seller in that area and he was going along with his associate Jasbir for purchasing the cloth in connection with his marriage. He was stopped on way by the complainant for the purpose of giving some documents and money to be delivered to the official of house tax and thereafter he was falsely implicated in this case. From the statement of accused u/s 313 Cr. P. C it is evident that it is by chance that he happened to pass by the shop of the complainant and he was stopped by the complainant for giving the documents and money to be passed on to some inspector of house 26 tax. Complainant has not dreamt that at the appointed time stated in the complaint Ex. PW6/A accused would pass by his shop and he would hand over the bribe amount to accused Bhuvan Chand Sharma in presence of the panch witness. Unless accused Bhuvan Chand Sharma had told the complainant that he would come to his shop to collect the bribe amount at very time he would have never gone to the Anti Corruption Branch and lodge the report. The very fact that the accused came to the shop of the complainant at the appointed time itself shows that accused has demanded bribe from the complainant and he was caught red handed while accepting the bribe amount. Here it is also useful to refer to Kishan Chand Mangal V/s State of Rajasthan 1983 Crimes 20 ( SC ). In that case accused/appellant visited the factory of complainant Rajinder Dutta on 20.11.1974 and demanded the bribe but Rajinder Dutta died before trial and it was contended that in the absence of complainant the prosecution has failed to prove that bribe was demanded by the accused from Rajinder Dutta on 20.11.74. The Hon'ble Supreme Court held as under:-
If appellant did not visit the factory of Rajendra Dutt on November 20,1974, and made no overtures, demanding the bribe, on what rational hypothesis can one explain the visit of Rajendra Dutta to the office of Dy. S. P. ACD on November 22, 1974 his producing currency notes worth Rs. 150/- a superior officer like the Dy. S. P. ACD making all arrangements for the trap and the raiding party gong to the house of the accused on 27 November, 22 1974. The visit of Rajendra Dutt soon followed by the raiding party at the house of the accused on November 22, 1974, is admitted. Coupled with this, the fact that Keshar Mal, PW2 in his evidence stated that after Rajendra Dutt entered the room in which appellant was sitting, Rajendra Dutt on entering the room asked the appellant, 'Hello, how do you do'. He further stated that the appellant replied, ' I am sick and suffering from cold'. He deposed that thereafter the appellant asked, 'Have you brought the money', whereupon complainant Rajendra Dutt replied, 'Yes, I have brought the money'. He further stated that thereafter Rajendra Dutt took out the amount of currency notes from his diary and gave the same to the appellant who took the amount and kept it under the pillow on the cot. If there was no prior demand the subsequent events remain explained as also the demand as deposed to by PW2 Kesar Mal.
23 It is lastly submitted by ld defence counsel for accused Bhuvan Chand that in fact complainant got accused trapped falsely just to avoid assessment of his shop for the purpose of house tax. In support of his contention he has relied upon the statement of DW1 Sh. Rajnish Kumar UDC House Tax Department and DW2 Sh. Zakir Hussain.
24 I have carefully considered the statements of DW1 and DW2 and instead of helping the accused their statement is against 28 the accused. As per the statement of DW1 the properties of Shastri Park which he has mentioned in his statement were assessed for the purpose of house tax from April 2001 and survey was carried out some where in October 2001 and August 2001. This shows that the properties in Shastri Park were being inspected for the purpose of house tax during the time when accused approached the complainant for the preparation of his file and it corroborates the statement of complainant that accused approached him for getting his file prepared for the purpose of house tax. DW2 testified that accused Bhuvan Chand Sharma was attached to an inspector who assessed house tax in respect of his property. Statement of DW1 and DW2 is of no relevance so far as the defence of the accused Bhuvan Chand is concerned.
25 It is submitted by ld counsel for accused Jasbir Singh that prosecution has failed to prove that accused Jasbir Singh entered into conspiracy with co accused Bhuvan Chand Sharma to extract bribe from the complainant. It is submitted by him that it is not the prosecution case that when on earlier occasions accused Bhuvan Chand Sharma visited the shop of the complainant accused Jasbir accompanied him. It is further submitted by him that accused Jasbir is a private person and complainant has not stated a word against accused Jasbir Singh except that money after acceptance by accused Bhuvan Chand Sharma was handed over to him who counted the same and retained the money in his right hand from which the money 29 was recovered. It is submitted by him that complainant in his cross examination stated that Jasbir never demanded any bribe from him.
Neither complainant nor panch witness attributed anything to Jasbir Singh so far as the demand of bribe amount is concerned. In fact accused Jasbir Singh has not uttered even a single word at the time of transaction to show that either he was a conspirator or an abettor. Mere recovery of bribe amount from him would not go on to show that he was a conspirator. At the maximum he was an innocent receiver of money. Here it is useful to refer to the judgment of Hon'ble High Court in case of Ashok Kumar V/s State Criminal Misc ( Main ) 374 of 2005 decided on 30.8.2006. In that case Ashok Kumar a private person along with tehsildar went to the house of complainant. The complainant told tehsildar that she has brought the money but also requested to reduce the amount and then Ashok Kumar who was sitting nearby said " Sahib Ne Pehle Hi Paise Kam Kar Diye Hein " . Apart from this utterance nothing was attributed to Ashok Kumar. The charge was framed by ld. Special Court. However he was discharged by the Hon'ble High Court by observing that this by itself was not sufficient to constitute conspiracy.
26 Similarly in this case apart from mere acceptance of money which was handed over to him by the accused Bhuvan Chand Sharma no other role has been attributed to Jasbir Singh. Admittedly he was not named in the complaint. I am of the considered view that prosecution has failed to prove that accused Jasbir Singh who simply 30 accompanied accused Bhuvan Chand Sharma has entered into conspiracy with Bhuvan Chand Sharma to extract money from the complainant.
In view of the above discussion I am of the view that prosecution has failed to prove its case against accused Jasbir Singh. Accused Jasbir Singh is acquitted. However prosecution is is able to prove its case against accused Bhuvan Chand Sharma beyond all reasonable doubt. Accused Bhuvan Chand Sharma is accordingly held guilty and convicted for committing offences U/s 7 and 13 (1 ) (d) punishable U/s 13 (2 ) of Prevention of Corruption Act, 1988 . Let he be heard on the point of sentence.
Announced in the open court on this 1st February 2010.
( A. S. YADAV ) SPECIAL JUDGE DELHI 31 IN THE COURT OF SH. A. S. YADAV SPECIAL JUDGE : DELHI C C No. 106/08 State V/s Bhuvan Chand Sharma S/o late Sh. Vishnu Dutt Sharma, R/o B-364, MIG Flat, East of Loni Road, Shahdara, Delhi.
F. I. R No. : 56/01 Under Section : 7/13 of Prevention of Corruption Act, Police Station : Anti Corruption Branch ORDER ON SENTENCE
I have heard Sh. Alok Saxena Addl. Public Prosecutor for the State and S. P. Minocha, Advocate for the convict (who is present on bail) on the point of sentence.
2 Ld. counsel for the convict submits that the convict is aged 40 years and has wife ( who is in family way expecting her first child ) and old mother to support and he is the sole bread earner of his family. It is prayed that a lenient view be taken on the point of sentence.
3 Ld. Addl. Public Prosecutor states that the convict does not deserve any leniency because there is rampant corruption 32 amongst public servants and to curb this evil, deterrent punishment should be imposed.
4 After having heard both the sides and upon perusal of the record, I find that it is difficult to accept the prayer of the convict that a lenient view be taken in this case. Corruption is rampant in this country, that it requires all possible measures to remove the same from the polity. Today, it seems that honesty is a very rare need. Very few person muster the courage to report the matter regarding demand of bribe. Otherwise, under compulsion they are forced to pay the same. With the result, bribe takers virtually have no fear. No leniency is to be shown to such offenders.
5 Keeping in view the facts and circumstances of this case, I sentence convict Bhuvan Chand s/o Sh. Vishnu Dutt Sharma to undergo RI for a period of three years and a fine of Rs. 15,000/- (Rs. fifteen thousand) u/s 7 of the Prevention of Corruption Act, 1988 and in default of payment of fine, convict shall undergo SI for a period of six months. Convict is further sentenced to undergo RI for a period of three years and a fine of Rs. 15,000/- (Rs. fifteen thousand) u/s 13 (2) of the Prevention of Corruption Act, 1988 and in default of payment of fine, convict shall further undergo SI for a period of six months. Both the sentences shall run concurrently and the convict shall be entitled to benefit under section 428 Cr. P.C. 33 6 A duly attested copy of the judgment and this order be supplied to the convict free of costs and thereafter file be consigned to the record room.
Announced in the open court on this 3rd day of February, 2010 ( A. S. YADAV ) SPECIAL JUDGE DELHI 34