Delhi District Court
State vs . 1. Virender Kumar Pal on 3 September, 2011
IN THE COURT OF SHRI B.R. KEDIA, SPECIAL JUDGE07,
(CENTRAL), (PC ACT CASES OF ACB, GNCTD)
, DELHI
C.C.NO. : 40/11
Unique Case ID : 02401R0053822003
STATE VS. 1. VIRENDER KUMAR PAL
S/o Sh. Nand Lal,
R/o H. No. 110, Gali No. 1,
Rameshwar Nagar, Delhi
2. VIRENDER PAL SINGH ARORA @ PRINCE
S/o Sh. Makhan Singh Arora,
R/o H. No. 3142, Punjabi Basti,
Sabzi Mandi, Delhi
FIR NO. : 27/2002
UNDER SECTION : 7/8/13 of Prevention of Corruption Act,
1988 r/w Section 120B IPC
P.S. : Anti Corruption Branch, Delhi
Date of Institution 27.11.2003
Judgment reserved on 29.08.2011
Judgment delivered on 03.09.2011
JUDGMENT
1. The precise case of the prosecution is that on dated 08.05.2002 Inspector Roshan Lal, PW14 (Raid Officer) of Anti C.C. No. 40/11 Page No. 1 of 37 Corruption Branch had received a miscellaneous complaint and during course of his surveillance, he alongwith Sh.V.K.Suman, Panch witness/PW13 reached office of Delhi Vidyut Board (DVB), Shakti Nagar on 16.5.2002 and came to know that the touts used to take money from public persons to get their work done from the said office of DVB. Inspector Roshan Lal met there Mahinder Pal Malhotra/complainant who lodged his complaint Ex.PW11/A. Said Mahinder Pal Malhotra had the work relating to the house of his in laws at 3/27, Double Storey, Vijay Nagar, Delhi regarding the installation of new electricity meter and for removal of the misuse charges. Thereafter, said complainant alongwith the Panch witness met accused No.2 Virender Pal Singh Arora @ Prince and complainant asked him for doing the needful for removal of the misuse charges in the electricity bill and for a new commercial meter connection and delivered him the required papers as asked by him. The complainant also paid Rs.700/ to said accused for file charges. Accused Virender Pal Singh Arora @ Prince also explained the procedure to the complainant and told about the amount to be charged by him and gave him his visiting card and asked him to come on next day. Thereafter, the Raid Officer prepared the proceedings in this respect which is Ex.PW11/B. C.C. No. 40/11 Page No. 2 of 37
2. Further case of the prosecution is that on 17.5.2002 , the Raid Officer alongwith the Panch witness reached DVB office, Shakti Nagar, Delhi where complainant Mahinder Pal Malhotra was already present. Thereafter, complainant alongwith the Panch witness met accused Virender Pal Singh Arora @ Prince who asked the complainant to reach the site i.e. 3/27, Double Storey, Vijay Nagar, Delhi. Thereafter, Raid Officer alongwith the complainant and Panch witness reached the said site. Complainant and Panch witness sat in the drawing room in the house but Raid Officer sat in adjoining room. After sometime, accused Virender Pal Singh Arora @ Prince came there and demanded bribe of Rs.10,000/ apart from legal charges for installation of new electricity meter and removal of the misuse charges. Said accused obtained certain documents from the complainant and asked the complainant to come on 20.5.2002 in the office of DVB at Shakti Nagar, Delhi. The Raid Officer has prepared the proceedings in this respect which is Ex.PW14/A.
3. It is further the case of the prosecution that on 20.5.2002 the complainant came in Anti Corruption Branch at about 10:30 a.m. and produced Rs.10,000/ in the form of 20 GC notes of Rs.500/ each before the Raid Officer in the presence of Panch witness and the Raid C.C. No. 40/11 Page No. 3 of 37 Officer noted down the serial number of said GC notes in PreRaid proceedings Ex.PW11/C in this respect and treated the said GC notes with phenolphthalein powder. Thereafter, Raid Officer PW14 gave demonstration to the Panch witness and 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 been given.
4. That on 20.05.2002 at about 12:30 p.m., PW14 Raid Officer along with complainant, Panch witness, Inspector Sheel Nidhi alongwith 34 members of the raiding party left Anti Corruption Branch in a government vehicle and reached office of DVB, Shakti Nagar, Delhi within 20 minutes. Government vehicle was left at a distance from the office of DVB and Inspector Sheel Nidhi remained in the vehicle. The complainant and Panch witness were sent towards C.C. No. 40/11 Page No. 4 of 37 the office of the DVB whereas the other members of the raiding party followed them and took their suitable position but after sometime, complainant and Panch witness came back and informed Raid Officer that accused Prince has called them on next day. The Raid Officer drawn the proceedings in this respect which is Ex.PW11/D.
5. The further case of the prosecution is that on dated 21.5.2002 complainant and Panch witness came to the Raid Officer at about 11:00 a.m. Serial numbers of the GC notes were again checked and demonstration was given in the similar manner as was given on 20.5.2002. Thereafter, Raid Officer alongwith complainant, Panch witness, Inspector N.S.Minhas and other members of the raiding party left Anti corruption Branch in government vehicle and reached there within 45 minutes. Government vehicle was left at some distance from DVB office and Inspector N.S.Minhas remained in the government vehicle. Complainant and Panch witness went towards the office of DVB and members of the raiding team took suitable position. After sometime, complainant and Panch witness came back and informed the Raid Officer that accused Prince had given one visiting card and asked them to meet one Virender in the DVB Office, Hudson Lane for making the payment and getting their work done. C.C. No. 40/11 Page No. 5 of 37 Thereafter, Raid Officer alongwith raiding team, complainant and Panch witness reached the office of DVB in Hudson Lane in the said government vehicle at about 2:00 p.m. Inspector N.S.Minhas remained in the vehicle and complainant and Panch witness went towards the first floor of DVB Office, Hudson Lane and members of the raiding team took suitable position. After sometime, the complainant and Panch witness alongwith the accused No.1 Virender Kumar came out from the office and after crossing the road went to a shop of property dealer where photostate work was also being done.
6. Further, case of the prosecution is that at about 2:30 p.m., Panch witness gave predetermined signal in pursuance of which members of the raiding party reached at shop of property dealer. Panch witness informed the Raid Officer about the transaction. Thereafter, Raid Officer after disclosing his identity challenged the accused No.1 Virender Kumar Pal and on his instructions Panch witness recovered the bribe money of Rs.10,000/ from the left pant pocket of the accused Virender Kumar and tallied the serial number with the serial numbers as mentioned in the preraid report Ex.PW11/C and said GC notes were taken into possession vide seizure memo Ex.PW11/E. The wash of both hands and left pant C.C. No. 40/11 Page No. 6 of 37 pocket of accused No.1 Virender Kumar Pal were taken in colorless solution of sodium carbonate which turned into pink and solution were transferred into 6 small clean bottles which were sealed with the seal of RL and were marked as RHWI & RHWII, LHWI & LHWII and LSPPWI & II and said bottles were seized vide Seizure Memo Ex.PW11/F. The pant of the accused No.1 Virender Kumar Pal was converted into a pullanda and was seized vide Seizure Memo Ex.PW11/G. Raid Officer also seized visiting card Ex.PW8/C1 (also exhibited as Ex.PC) and another visiting card Ex.PW8/C2 (also exhibited as Ex.PB) and documents Ex.PW8/C3 to C5 and one identity card Ex.PW8/E vide Seizure Memo Ex.PW11/H. Raid Officer also seized documents Mark A1, A2 and affidavit Ex.PW3/A, PW3/B vide Seizure Memo Ex.PW11/J. The Raid Officer also drawn up the post raid proceedings which is Ex.PW11/K and prepared rukka Ex.PW6/D and sent the same through Constable Himmat Singh to PS Anti Corruption Branch for registration of the case.
7. The further case of the prosecution is that the Raid Officer called Inspector N.S.Minhas PW6/ IO at the spot and handed over him the custody of the accused No.1 Virender Kumar Pal, case property, recovered 20 GC notes of Rs.500/ each, seizure memo, copy of raid C.C. No. 40/11 Page No. 7 of 37 report and documents etc. for purpose of Investigation. IO took up the Investigation, prepared the Site Plan Ex.PW6/A, arrested the accused No.1 Virender Kumar Pal and conducted his personal search vide Memo Ex.PW6/B and in his personal search, one technical feasibility form Ex.PW6/C was recovered. He received the original rukka Ex.PW6/D alongwith copy of FIR Ex.PW6/E and got the accused No. 1 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 No.1 was put up in the lock up. Subsequently, accused No.2 Virender Pal Singh Arora @ Prince had surrendered and was arrested vide personal search memo Ex.PW1/A and his specimen handwriting and specimen handwriting of other accused were obtained and the same alongwith the questioned documents were sent to FSL and FSL Report was obtained later on. During the course of investigation IO obtained Bio data of accused No.1 Virender Kumar Pal. IO on recording the statement of the witnesses and after completion of the Investigation, prepared the chargesheet and filed in the court.
8. 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 C.C. No. 40/11 Page No. 8 of 37 punishable U/S Section 7 & 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988 as against accused No.1 Virender Kumar Pal and U/S 8 of Prevention of Corruption Act, 1988 as against accused No.2 Virender Pal Singh Arora @ Prince were framed vide order dated 16.10.2004 to which they pleaded not guilty and claimed trial.
9. Thereafter, in order to bring home the guilt of the accused, the prosecution got examined 15 prosecution witnesses namely Jarnail Singh, a formal witness as PW1, HC Jai Singh, a formal witness as PW2, Sh.Nitin Suri, who is a relative of the complainant and a formal witness as PW3, Inspector C.P.Bhambani, a formal witness as PW4, P.D.Nautiyal, a formal witness as PW 5, Inspector N.S.Minhas, first IO as PW6, Sh.M.L.Sharma, Administrative Officer from Ramjas College, a formal witness as PW7, Inspector Makhan Singh, Part IO as PW8, Sh.Jitender Kapoor, a formal witness as PW9, Constable Himmat Singh, a formal witness, as PW10, Mahinder Pal Malhotra, complainant as PW11, HC Raj Kumar a formal witness as PW12, Sh.V.K.Suman, Panch witness as PW13, Inspector Roshan Lal, Raid Officer as PW14 and Ms. Deepa Verma, Assistant Director, Documents, FSL Rohini as PW15.
C.C. No. 40/11 Page No. 9 of 37
10. After closure of the PE, statement of both the accused under Section 313 Cr.P.C. were recorded. Both the accused in their said statement claimed to be innocent and denied about any demand and acceptance of the bribe from the complainant. Accused No.2 also added that he has received Rs.700/ for preparing the file of the complainant and at the request of the complainant, he has given his visiting card after writing "Mr.Virender please help". Thus both the accused claimed to be innocent and have been falsely implicated in this case. However, the accused have not led any evidence in their defence.
11. I have heard Final Arguments as addressed by Sh. R.S. Singhal, Adv. Ld. Counsel for the accused No.1 Virender Kumar Pal and Sh. Ranjit Singh, Adv. Ld. Counsel for accused No.2 Virender Pal Singh Arora @ Prince and Sh.Vinod Kumar Sharma, Ld. APP for the State and perused the relevant record.
12. It is submitted by Sh. R.S. Singhal, Adv. Ld. Counsel for the accused no.1 Virender Kumar Pal that this accused is innocent and has been falsely implicated in this case. It is also added by him that this accused came to the picture only on 21.5.2002 and he has neither C.C. No. 40/11 Page No. 10 of 37 demanded nor accepted any bribe from the complainant Mahinder Pal Malhotra/PW11 nor the prosecution could establish regarding the demand and acceptance of the bribe as against this accused and therefore, this accused deserves to be acquitted. It is also added by him that the aspect relating to demand of bribe could not be proved by prosecution as against this accused as neither the complainant/PW11 nor the Panch witness/PW13 Sh.V.K.Suman has deposed in this respect. It is also added by Ld. Counsel for accused No.1 that PW13 Panch witness has clearly deposed that he has not heard about any conversation relating to demand of bribe by this accused. It is also added by Ld. Counsel for accused No.1 that even otherwise as PW11/ complainant is an accomplice, so his deposition cannot be treated as reliable unless corroborated but there is no such corroboration in this respect as PW13/Panch witness has not deposed anything as against this accused regarding demand of bribe by him. It is also added by Ld. Counsel for accused No.1 that in the absence of proof of demand of bribe, mere recovery is not sufficient to attract the penal provisions U/S 7 & 13 (2) of Prevention of Corruption Act,1988 and hence, this accused deserves to be acquitted.
13. Similarly, it is submitted by Sh. Ranjit Singh, Adv. Ld. C.C. No. 40/11 Page No. 11 of 37 Counsel for the accused No.2 Virender Pal Singh Arora @ Prince that this accused is innocent and has no concern with the alleged offence and hence, deserves to be acquitted. It is further added by him that this accused has neither demanded nor accepted any bribe from the complainant for inducing any public servant by illegal means for doing any favour for complainant and therefore, no case U/S 8 of the Prevention of Corruption Act, 1988 could be established as against this accused and hence, this accused deserves to be acquitted. It is further added by him that this accused had merely demanded and accepted Rs.700/ from the complainant towards charges for the preparation of the file for the purpose of electric connection as he is an electrician and running electric shop under the name and style of Prince Electric Works at T330, Punjabi Basti, Subzi Mandi, Delhi. It is further added by him that this accused has returned the file to the complainant when it came to his knowledge that the premises of the complainant fall in the jurisdiction of DVB, Hudson Lane and not Shakti Nagar and on the request of the complainant, he has given his visiting card after writing "Mr. Virender please help" and said facts are also found corroborated from the statement of the said accused as recorded under Section 313 Cr.P.C. It is further added by Ld. Counsel for accused No.2 that said bonafide acts on the part of accused No.2 C.C. No. 40/11 Page No. 12 of 37 can no way attract the penal provisions U/S 8 of the Prevention of Corruption Act and hence, this accused deserves to be acquitted. It is further added by him that neither the complainant/PW11 nor the Panch witness/PW13 has deposed regarding any demand and acceptance of the bribe as against this accused and hence, this accused deserves to be acquitted. It is further added by him that PW14 Inspector Roshan Lal/Raid Officer himself has been facing a disproportionate asset case and same has been duly admitted by him and was known to PW11/complainant Mahinder Pal Malhotra earlier and therefore, his deposition cannot be treated as trustworthy and reliable. Thus, Ld. Counsel for accused No.2 urged for acquittal of this accused.
14. To the contrary, it is submitted by Ld. APP for the State that the prosecution by examining 15 PWs have clearly established its case as against the accused persons and therefore, both the accused deserve to be convicted for the charged offences. It is further added by Ld. APP for the State that there is ample evidence on record whereby establishing that the accused No.1 Virender Kumar Pal had demanded and accepted bribe of Rs.10,000/ and accused No.2 Virender Pal Singh Arora @ Prince had demanded and accepted bribe C.C. No. 40/11 Page No. 13 of 37 of Rs.700/ from the complainant and accused No.2 Virender Pal Singh Arora @ Prince was not having any license for doing work of electricity and it is the accused No.2 who induced for payment of bribe of Rs.10,000/ by the complainant to the accused No.1 and therefore, both the accused deserve to be convicted. It is also added by Ld. APP for the State that PW11/complainant as well as PW13/Panch witness have clearly deposed as against the accused persons and there is no reason to disbelieve the same. It is also added by Ld. APP for the State that there are certain lapses on the part of the IO during the course of Investigation but same are formal in nature and cannot be treated as fatal for the case of the prosecution. It is also added by Ld. APP for the State that there is no reason on the part of the complainant to falsely implicate the accused persons. It is also added by Ld. APP for the State that the recovery of bribe amount of Rs.10,000/ from the person of accused No.1 Virender Kumar Pal has been duly established by the prosecution. It is also added by Ld. APP for the State that the prosecution has been successful in establishing its case as against both the accused persons and hence, both accused deserve to be convicted for the charged offence.
15. From the perusal of the record, it is reflected that the C.C. No. 40/11 Page No. 14 of 37 accused No.2 Virender Pal Singh Arora @ Prince has been charged for offence punishable U/S 8 of the Prevention of Corruption Act, 1988. In order to constitute an offence under this Section, three things are essential:
1. Solicitation or offer or receipt of any gratification;
2. such gratification must have been asked for, offered, or paid as a motive or reward for inducing, by illegal or corrupt means, a public servant; and
3. the public servant must do an act or forbear to do an act, render or attempt to render any service or disservice to some person with the Central or State Government or with any public servant named or otherwise.
From the bare perusal of the Section 8 of the Prevention of Corruption Act, it is reflected that it is only a person who with a view to induce a public servant by illegal or corrupt means obtains for himself a gratification that would come within purview of this Section.
16. During the course of the argument, it is submitted by Ld. Counsel for the accused No.2 Virender Pal Singh Arora @ Prince that this accused No.2 had neither demanded nor accepted any bribe from C.C. No. 40/11 Page No. 15 of 37 the complainant for inducing the accused No.1 by corrupt or illegal means for doing any favour to the complainant and therefore, no case U/S 8 of the Prevention of Corruption Act, 1988 is made out against this accused No.2. It is further added by Ld. Counsel for accused No. 2 that this accused No.2 had merely demanded and accepted Rs.700/ from the complainant as his labour charges towards preparation of the file for the purpose of new electricity connection as desired by the complainant as this accused No.2 is an electrician and is running electric shop under the name and style of Prince Electric Works at T330, Punjabi Basti, Subzi Mandi, Delhi. Ld. Counsel for the accused No.2 has further submitted that this accused No.2 has returned the said file to the complainant when it came to his knowledge that the premises of the complainant fall in the jurisdiction of DVB, Hudson Lane and not Shakti Nagar and on the request of the complainant, he has given his visiting card after writing "Mr.Virender please help" and said fact also found corroborated from the statement of the said accused as recorded U/S 313 Cr.P.C.
17. From the perusal of the complaint dated 16.5.2002 Ex.PW11/A as given by the complainant/PW11 Mahinder Pal Malhotra, it is clearly reflected that said complainant has given Rs. C.C. No. 40/11 Page No. 16 of 37 700/ to the accused Virender Pal Singh Arora @ Prince towards file charges. Furthermore, said PW11/Mahinder Pal Malhotra, complainant in his deposition before the court has also stated that accused Prince had taken Rs.700/ from him towards file charges. Said PW11/Mahinder Pal Malhotra, complainant during course of his deposition is found to have denied about demand of any bribe by the accused Prince as in the cross examination by Ld. APP, he has deposed in this respect as under : "Police had recorded my statement. I did not tell the police that on 17.5.02, when accused Prince had come at my house, he told me that I had to spend Rs.860/ as fee for removing charges and Rs. 5,000/ as bribe and I had to pay Rs.4210/ as legal fee and another Rs.5000/ as bribe and accused Prince told me that I had to give Rs. 10,000/ in advance and thereafter, within 15 days my new connection would be installed and misuse charges would be removed."
18. It is further revealed from the record that said PW11/complainant had clearly denied in his deposition the suggestion of Ld. APP to the effect that the accused Prince had demanded Rs. 10,000/ as bribe from him or that on the instructions of said accused C.C. No. 40/11 Page No. 17 of 37 Prince, he had gone to the office of Virender for giving bribe of Rs. 10,000/ as said PW11/complainant in his cross examination by Ld. APP has deposed in this respect as under: "It is wrong to suggest that accused Prince had demanded Rs. 10,000/ as bribe. It is wrong to suggest that I had brought Rs.10,000/ with me in Anti Corruption Branch which were treated by Raid Officer with Phenolphthalein powder. It is wrong to suggest that on the instructions of accused Prince, I had gone to the office of accused Virender to give him bribe of Rs.10,000/".
19. Furthermore, PW13/Sh.V.K.Suman, Panch witness during course of his deposition is found to have deposed concerning the accused No.2 Virender Pal Singh Arora @ Prince as under: "I along complainant went inside the DVB office Shakti nagar while members of raiding team took suitable position. Complainant met accused Prince outside DVB office who told the complainant that his work would be done from Hudson lane, DVB office. The complainant asked accused Prince as to whom he should meet in Hudson Line DVB office. Accused Prince took his C.C. No. 40/11 Page No. 18 of 37 visiting card and wrote "Virender, please help." and he gave the same to the complainant. Thereafter, raiding team went to DVB office Hudson line and we reached there in lunch hours".
Furthermore, said PW13/V.K.Suman, Panch witness in his cross examination by Ld. APP also found to have denied about any demand of bribe by the accused Prince from the complainant as he has deposed in this respect as under: "Police had recorded my statement. I did not tell the police that accused Prince told the complainant that Rs.860/ is charged for fee and Rs.5,000/ would be charged as bribe and Rs.4210/ is charged for new connection."
20. In view of the aforesaid material as available on the record, whereby clearly establishing that the accused No.2 Virender Pal Singh Arora @ Prince had not received any gratification for inducing by corrupt or illegal means the accused No.1 Virender Kumar Pal for doing the works of removal of misuse charges and getting new electricity connection as desired by the complainant and therefore, the prosecution could not establish the offence as contemplated U/S 8 of the Prevention of Corruption Act, 1988 as against the accused No.2 Virender Pal Singh Arora @ Prince.
C.C. No. 40/11 Page No. 19 of 37
21. However, concerning the accused No.1 Virender Kumar Pal it is submitted by his Counsel during the course of argument that this accused came to the picture only on 21.5.2002 and he has neither demanded nor accepted any bribe from the complainant Mahinder Pal Malhotra/PW11 nor the prosecution could establish regarding the demand and acceptance of the bribe as against this accused. It is also added by him that the aspect relating to demand of bribe could not be proved by the prosecution as against this accused as neither the complainant/PW11 Mahinder Pal Malhotra nor Panch witness/PW13 Sh.V.K.Suman has deposed in this respect. It is also added by Ld. Counsel for accused No.1 that PW13/Panch witness has clearly deposed that he has not heard about any conversation relating to demand of bribe by this accused.
22. To the contrary, it is submitted by Ld. APP for the State that there is ample evidence on record thereby establishing the demand and acceptance of bribe of Rs.10,000/ by this accused No.1 Virender Kumar Pal from the complainant. It is further added by Ld. APP that complainant/PW11 as well as Panch witness/PW13 have clearly deposed as against this accused No.1 regarding demand and acceptance of bribe of Rs.10,000/ by him and there is no reason to C.C. No. 40/11 Page No. 20 of 37 disbelieve the same. Ld. APP for the State has also added that the recovery of the bribe amount of Rs.10,000/ from the person of the accused No.1 has been duly established by the prosecution and the accused No.1 has failed to provide any explanation in this respect.
23. In order to prove that the accused No.1 had demanded and accepted the bribe amount of Rs.10,000/ from the complainant, the prosecution is found to have examined PW11/complainant, Mahinder Pal Malhotra, PW13/Panch witness, V.K. Suman and PW14/Inspector Roshan Lal, Raid Officer. PW11/complainant, Mahinder Pal Malhotra as regards the demand and acceptance of the bribe of Rs. 10,000/ by the accused No.1 Virender Kumar Pal has deposed in this respect as under: "Accused Virender asked me to get some documents photocopied and thereafter, I along with him went towards a shop for photostate. I gave photocopies of documents to accused Virender. I also gave those treated GC notes of Rs. 10,000/ to accused Virender in the left hand of the accused and after counting the same with his both hands and kept the same in his pant pocket. In the meantime, I gave predetermined signal and members of raiding party came and apprehended C.C. No. 40/11 Page No. 21 of 37 the accused".
24. Said PW11/complainant, Mahinder Pal Malhotra has also deposed regarding recovery of the tainted GC notes of Rs.10,000/ from the pant pocket of accused No.1 and about turning of his hand wash into pink colour and about the seizure of the bottles containing said pink colour solution and regarding the seizure of the documents regarding the electricity connection from the person of accused No.1 and have narrated about the Post Raid Proceedings Ex.PW11/K as said PW11/complainant has deposed in this respect as under: "The accused Virender was brought near the government vehicle where his hands wash were taken which turned pink and those treated GC notes were recovered from the pant pocket of accused Virender. Those GC notes were taken into possession vide memo Ex.PW11/E. The solution prepared during hand wash and pant pocket wash was transferred into six, empty, clean bottles which were sealed with the seal of Raid Officer and marked paper slips were pasted on those bottles which were signed by myself, panch witness and Raid Officer. Those bottles were taken into possession vide memo Ex.PW11/F which bear my C.C. No. 40/11 Page No. 22 of 37 signature at point A. The pant of the accused was converted into pulanda and was taken possession vide memo Ex.PW11/G which bear my signature at point A. The said visiting card on which accused had written was also taken into possession vide seizure memo Ex.PW11/H which bear my signature at point A. The documents regarding the electricity connection mark A1, A2 and affidavit Ex.PW3/A and B were taken into possession vide memo Ex.PW11/J which bear my signature at point A. The Raid Officer had drawn post raid proceedings Ex.PW11/K which bear my signature at point A."
Said PW11/complainant, Mahinder Pal Malhotra has duly identified said 20 GC notes of Rs.500/ each as recovered from the pant pocket of accused No.1 as Ex.P1 to P20 and six bottles containing the hand washes and pant pocket wash and marked as RHWI, RHWII, LHWI, LHWII and LSPPWI & LSPPWII as Ex.P21 to P26. He has also duly identified the pant of the accused No.1 as Ex.P27 and electricity bill as Ex.PA and the visiting cards as Ex.PB & PC. Said PW11/complainant has specifically denied the suggestion of Ld. Defence Counsel that no money was recovered from the pant pocket of accused Virender Kumar Pal. He has specifically denied suggestion of Ld. Defence Counsel that when he offered some C.C. No. 40/11 Page No. 23 of 37 money to accused Virender, he refused to accept the same and pushed his hands with his both hands.
25. From the perusal of the deposition of PW13/Panch witness, V.K.Suman, no doubt it is reflected that he has deposed that he could not heard about the demand of bribe by the accused Virender Kumar Pal as when he alongwith the complainant and accused Virender Kumar were going to a photostate shop and were crossing the road, as a vehicle came across, he could not cross the road and accused Virender Kumar and the complainant had already crossed the road and reached at the shop of the photostate. Said PW13/Panch witness is found to have not supported the stand of the prosecution by turning hostile on certain aspects but in the cross examination by Ld. APP, he has duly admitted about the seizure of the GC notes vide memo Ex.PW11/E bearing his signature at point B and seizure of 6 bottles containing hand wash and pant wash vide seizure memo Ex.PW11/F bearing his signature at point B, seizure of the pant of the accused Virender vide seizure memo Ex.PW11/G bearing his signature at point B, seizure of electricity bill Ex.PA and visiting card Ex.PB & PC vide seizure memo Ex.PW11/H bearing his signature at point B, seizure of documents in respect of DVB connection mark A1, A2 C.C. No. 40/11 Page No. 24 of 37 Ex.P3A & 3B vide seizure memo Ex.PW11/J bearing his signature at point B. Said PW13/Panch witness has also duly identified 20 GC notes of Rs.500/ each as recovered from the pant pocket of the accused No. 1 Virender Kumar Pal as Ex.P1 to P20, six bottles containing hand washes and pant pocket wash mark RHWI, RHWII, LHWI, LHWII, LSPPWI & LSPPWII as Ex.P21 to P26, the pant of the accused No. 1 as Ex.P27, the electricity bill as Ex.PA and visiting cards as Ex.PB and PC.
26. The material part of the deposition of PW11/complainant and PW13/Panch witness regarding recovery of the tainted GC notes of Rs.10,000/from the left pant pocket of accused No.1 Virender Kumar Pal is found corroborated from the deposition of PW14/Inspector Roshan Lal, Raid Officer as he has deposed in this respect as under: "I instructed the panch witness to recover the bribe money and the panch witness recovered the bribe money of Rs.10,000/ from the left pant pocket of accused Virender Kumar. On my directions, the panch witness compared the sl. no. of those recovered GC notes with the sl. no. mentioned in preraid report Ex.PW11/C, and they tallied. Those recovered GC notes were C.C. No. 40/11 Page No. 25 of 37 taken into possession vide seizure memo Ex.PW11/E which bears my signatures at point C."
Said PW14/Inspector Roshan Lal, Raid Officer is also found to have duly deposed regarding seizure of six bottles containing hand wash and pant wash vide seizure memo Ex.PW11/F bearing his signature at point C, seizure of the pant of the accused No. 1 vide seizure memo Ex.PW11/G bearing his signature at point C, seizure of visiting cards Ex.PB & PC vide seizure memo Ex.PW11/H bearing his signature at point C, seizure of documents in respect of DVB connection mark A1, A2 Ex.P3A & 3B vide seizure memo Ex.PW11/J bearing his signature at point C. Said PW14/Raid Officer has also deposed regarding the post raid proceedings Ex.PW11/K bearing his signature at point X. PW14/Raid Officer has also duly identified 20 GC notes of Rs.500/ each as recovered from the pant pocket of the accused No.1 Virender Kumar Pal as Ex.P1 to P20, six bottles containing hand washes and pant pocket wash mark RHWI, RHWII, LHWI, LHWII, LSPPWI & LSPPWII as Ex.P21 to P26, the pant of the accused Virender Kumar Pal as Ex.P27, the electricity bill as Ex.PA, visiting cards as Ex.PB and PC.
27. It is also revealed from the record that both the hand wash C.C. No. 40/11 Page No. 26 of 37 as well as left pant pocket wash of the accused No.1 Virender Kumar Pal were taken in colourless solution of sodium carbonate and same turned into pink colour and said washes as contained in the bottle mark LHWI, RHWI and LSPPWI gave positive test for the presence of phenolphthalein powder and sodium carbonate as per FSL Report Ex.PW8/B which established that the tainted 20 GC notes of Rs.500/ each were handled and accepted by accused No.1 and ultimately same were recovered from his left pant pocket.
28. In view of the aforesaid material as available on the record, I am of the considered view that the factum regarding the demand and acceptance of bribe of Rs.10,000/ by the accused No.1 Virender Kumar Pal from the complainant have been found established from the deposition of PW11/complainant Malhinder Pal Malhotra, PW13/Panch witness, V.K.Suman and PW14/Inspector Roshan Lal, Raid Officer coupled with the contents of seizure memo of the GC notes Ex.PW11/E, seizure memo of 6 bottles containing both hand washes and pant pocket wash of accused No.1 as mark RHWI, RHW II, LHWI, LHWII and LSPPWI & LSPPWII vide seizure memo Ex.PW11/F, Post Raid Proceedings Ex.PW11/K. C.C. No. 40/11 Page No. 27 of 37
29. During course of arguments, it is submitted by Ld. Counsel for the accused No.1 Virender Kumar Pal that in a trap case the position of the complainant is that of an accomplice and his statement cannot be acted upon unless corroborated in material particular. So far as the contention that the statement of the complainant cannot be acted upon without corroboration is concerned, it is appropriate to refer to the case of Dewan @ Vasudeva and etc. V/s The State 1988 Crl. L.J. 1005 where it was held by Hon'ble High court of Kerala as under : ''True, the person who pays the gratification is, in a way, an accomplice in the offence, when his role is viewed from a wide angle. But before his evidence is dubbed as unworthy of credit without corroboration, a pragmatic or realistic approach has to be made towards such evidence. If the bribegiver voluntarily goes to the offender and persuades him to accept the bribe , his position is that of an undiluted accomplice and it is a rule of prudence to insist on independent corroboration such evidence. On the other hand, if the giver of gratification was persuaded to give it, he actually becomes a victim of persuasion by the offender. To name him an accomplice and to reject his C.C. No. 40/11 Page No. 28 of 37 testimony due to want of corroboration, would sometimes, be unrealistic and imprudent .The court must always bear in mind that insistence on corroboration for the evidence of accomplice is not on account of any rule of law, but is a caution of prudence. The density of the stigma to be attached to a witness as an accomplice depends upon the degree of his complicity in the offence. Suspicion towards his role as an accomplice should vary according to the extent and nature of his complicity. It must be considered in each case whether the bribe giving or payment of gratification was done in such a way that independent persons had no occasion to witness such acts. '' Furthermore, in another case reported as State of U.P. vs. Dr.G.K.Ghosh AIR 1984 SC 1453 it was observed by Hon'ble Supreme Court as under: "By and large a citizen is somewhat reluctant rather than anxious, to complain to the Vigilance Department and to have a trap arranged even if illegal gratification is demanded by a Government servant. There are numerous reasons for the reluctance. In the first place, C.C. No. 40/11 Page No. 29 of 37 he has to make a number of visits to the office of Vigilance Department and to wait on a number of officers. He has to provide his own currency notes for arranging a trap. He has to comply with several formalities and sign several statements. He has to accompany the officers and participants of the raiding party and play the main role. All the while he has to remain away from his job, work, or avocation. He has to sacrifice his time and effort while doing so. Thereafter, he has to attend the court at the time of the trial from day to day. He has to withstand the searching cross examination by the defence counsel as if he himself is guilty of some fault. In the result, a citizen who has been harassed by a Government officer, has to face all these hazards. And if the explanation offered by the accused is accepted by the court, he has to face the humiliation of being considered as a person who tried to falsely implicate a Government servant, not to speak of facing the wrath of the Government servants of the department concerned, in his future dealings with the department. No one would therefore be too keen or too C.C. No. 40/11 Page No. 30 of 37 anxious to face such an ordeal. Ordinarily, it is only when a citizen feels oppressed by a feeling of being wronged and finds the situation to be beyond endurance, that he adopts the course of approaching the Vigilance Department for laying a trap. His evidence cannot therefore be easily or lightly brushed aside. Of course, it cannot be gainsaid that it does not mean that the court should be oblivious of the need for caution and circumspection bearing in mind that one can conceive of cases where an honest or strict Government official may be falsely implicated by a vindictive person to whose demand, for showing favours, or for according a special treatment by giving a gobye to the rules, the official refuses to yield."
Furthermore, it is not the case where the complainant had been frequently giving bribe amount to the accused No.1 or any other public servant. Beside this, in the present case, the deposition of the complainant/ PW11 is found corroborated even from the deposition of PW13/ V.K.Suman,Panch witness and PW14/ Inspector Roshan Lal, Raid Officer coupled with the Post Raid Proceedings Ex.PW11/K and C.C. No. 40/11 Page No. 31 of 37 I do not see any reason to disbelieve the same and hence, do not find any force in the submission of Ld. Counsel for accused No.1 on this count.
30. I also do not find any force in the submission of Ld. Counsel for the accused No.1 that the alleged recovery of the treated GC notes as against the accused No.1 Virender Kumar Pal is not sufficient to convict the said 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.
31. Three Judges Bench of Hon'ble Supreme Court in the case reported as Raughbir Singh V/s State of Punjab AIR 1974 SC 1516 held that very fact that the accused was in possession of marked currency notes against an allegation that he demanded and received the amount is "res ipsaloquitur".
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 C.C. No. 40/11 Page No. 32 of 37 not due to him as a legal remuneration. Of course, it is open to that person to show that though that money was not due to him as legal remuneration, it was legally due to him in some other manner or that he had received it under a transaction or an arrangement which was lawful. The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occurs in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a mere explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted."
33. Furthermore, it is also useful to refer to the decision of Hon'ble Supreme Court in case of M.Narsinga Rao V/s State of C.C. No. 40/11 Page No. 33 of 37 A.P. 2001 (1) SCC 691 rendered by Three Hon'ble Judges of Supreme Court. In that case accused demanded a bribe of Rs. 500/ from a milk transporting contractor for recommending the payment of an amount due to the contractor. The accused was caught red handed while accepting the bribe amount. Accused took the plea that currency notes were stuffed into his pocket. During trial complainant and panch witness did not support the prosecution case and it was argued before Hon'ble High Court that it is not possible to draw any presumption against the delinquent public servant in the absence of direct evidence to show that the public servant demand bribe. The Hon'ble High Court held as under: "It is true that there is no direct evidence in this case that the accused demanded and accepted the money. But the rest of the evidence and the circumstances are sufficient to establish that the accused had accepted the amount and that gives rise to a presumption under Section 20 of the Prevention of Corruption Act that he accepted the same as illegal gratification, particularly so, when the defence theory put forth is not accepted."
34. Furthermore, in another case reported as B. Noha V/s State of Kerela & Another 2006 VI AD ( Criminal ) 465 ( SC ) it was held in para 10 as under: C.C. No. 40/11 Page No. 34 of 37 "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."
Moreover, in another case reported as State of AP Vs. Kommaraju Gopala Krishna Murthy 2000 (9) SCC 752 it was held 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.
35. 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 No.1 Virender Kumar Pal has not given any explanation as to how bribe amount of Rs.10,000/ landed in his left pant pocket from which it was recovered. From the perusal of the record it is clearly reflected that the accused No.1 Virender Kumar Pal has neither stated anything in his statement U/S 313 Cr.P.C. as to how the bribe amount landed in his left pant pocket nor adduced any evidence in his defence in this respect nor could state C.C. No. 40/11 Page No. 35 of 37 as to why his left hand wash as contained in bottle mark LHWI and right hand wash as contained in bottle mark RHWI and left pant pocket wash as contained in bottle mark LSPPWI have given positive test for the presence of phenolphthalein and sodium carbonate as found established from the contents of the FSL Report Ex.PW8/B.
36. In view of the aforesaid materials as available on the record, I am of the considered view that the presumption as contemplated U/S 20 of the Prevention of Corruption Act,1988 could not be rebutted by the accused No.1 Virender Kumar Pal.
37. The net result of the aforesaid discussion is that the prosecution could not be successful in establishing its case as against accused No.2 Virender Pal Singh Arora @ Prince for the charged offence U/S 8 of Prevention of Corruption Act, 1988 and therefore, said accused No.2 Virender Pal Singh Arora @ Prince stands acquitted. However, as the prosecution succeeded in establishing its case as against accused No.1 Virender Kumar Pal, said accused No.1 Virender Kumar Pal stands convicted for offence punishable U/S 7 and 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988.
C.C. No. 40/11 Page No. 36 of 37
38. Let the accused No.1 Virender Kumar Pal be heard separately on the point of sentence.
Announced in the open court rd on this 3 day of September, 2011 (B.R. Kedia) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC, Delhi C.C. No. 40/11 Page No. 37 of 37