Delhi District Court
State vs . 1. Lakhi Parsad on 22 May, 2013
IN THE COURT OF SHRI B.R. KEDIA, SPECIAL JUDGE07
(CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
C.C.NO. : 06/13
Unique Case ID : 02401R0246762010
STATE VS. 1. LAKHI PARSAD
S/o Sh. Ohri Lal
R/o H.No.B84, New Sanjay Amar
Colony, Shahdara, Delhi.
2. SATISH KUMAR
S/o Late Sh. Mohan Lal,
R/o H.No. 482, Jawala Nagar,
Near Bada Ramlila Ground,
Shahdara, Delhi.
3. JOY JOSEPH
S/o Sh. Joseph,
R/o H.No. 84C, Pocket A,
Dilshad Garden, Delhi.
FIR NO. : 02/2008
U/S : 7/13 of Prevention of Corruption Act,
1988 & 120 B I.P.C.
P.S. : Anti Corruption Branch, Delhi
C.C. No. 06/13 Page No. 1 of 52
Date of Institution 04.06.2010
Judgment reserved on 16.05.2013
Judgment delivered on 22.05.2013
JUDGMENT
1. The precise case of the prosecution is that on dated 31.01.2008 the complainant Adel Kumar S/o Late Sh.Raja Ram came to Anti Corruption Branch and got lodged his Complaint Ex.PW4/A before the Inspector Y.S.Negi, Raid Officer/PW18 in the presence of Panch witness PW16/Ram Parvesh Kumar regarding initial demand of bribe of Rs.10,000/ which was scaled down to Rs.4000/ by the accused Joy Joseph who was posted as JE in Shahdara North Zone, MCD with the direction for paying the said amount to coaccused Beldar Lakhi Parasd and Satish Kumar in consideration for not demolishing the construction raised by the complainant at his house.
2. The gist of the said complaint is that the complainant was undertaking the finishing work at his newly constructed house at A4/17, Nand Nagri, Delhi after demolishing the old construction and on dated 30.01.2008, JE Joy Joseph along with Beldar Lakhi Prasad visited said house and as complainant was not found present, directed C.C. No. 06/13 Page No. 2 of 52 his brother Manoj Kumar to send complainant at their Office. Therefore, on 31.01.2008 at about 10:00 a.m. the complainant along with his cousin brother Naresh Kumar went to the Office of JE Joy Joseph but came to know that he had gone to PS Nand Nagri for taking police assistance for demolition by MCD in Nand Nagri area. Thereafter, the complainant along with his cousin brother Naresh Kumar went to PS Nand Nagri and met JE Joy Joseph who initially demanded bribe of Rs.10,000/ which was scaled down to Rs.4000/ for not demolishing house of the complainant and asked them to pay said amount to Beldar Lakhi Prasad and Satish Kumar. Thereafter, accused Satish Kumar asked them to deliver the said amount to them between 3:00 p.m. to 3:30 p.m. at T Point Tonga Stand, Nand Nagri. Since the complainant was against giving of bribe, he along with his cousin brother Naresh Kumar went to Anti Corruption Branch and got his complaint lodged before the Inspector Y.S.Negi, Raid Officer PW18 in presence of Panch witness Ram Parvesh Kumar, PW16.
3. The further case of the prosecution is that the complainant has produced 8 GC notes of Rs.500/ each before the Raid Officer PW18 who noted down the serial number of said GC notes in the pre raid proceedings Ex.PW4/B and treated the said GC notes with C.C. No. 06/13 Page No. 3 of 52 phenolphthalein powder. Thereafter, Raid Officer PW18 gave demonstration to the Panch witness, complainant and his cousin brother Naresh Kumar 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 Naresh Kumar, cousin brother of the complainant and Panch witness was instructed to remain close with the complainant and his cousin brother Naresh Kumar and to overhear the conversation between the complainant, his cousin brother and the person demanding the bribe amount and to give signal by moving his right hand twice over his head after being satisfied that the bribe has actually been given.
4. That at about 1:10 p.m., a Mobile call was made from the Mobile phone of the complainant to the Mobile no. 9911224853 of Lakhi Prasad as given to the complainant earlier and thereafter, the conversation between Naresh Kumar and Lakhi Prasad was got recorded in a CD through computer and said CD was kept in a sealed envelope sealed with the seal of YSN and taken into possession. C.C. No. 06/13 Page No. 4 of 52
5. The further case of the prosecution is that PW18/Raid Officer along with Inspector Manoj Kumar, Panch witness, complainant and his brother Naresh Kumar and other members of the raiding party left Anti Corruption Branch in a vehicle at 2:15 p.m. and reached near GTB T.Point at about 2:45 p.m. and vehicle was parked there and Inspector Manoj Kumar alongwith the Driver remained in the vehicle. Complainant, his brother Naresh Kumar and Panch witness went ahead being followed by the Raiding team and stood at 4A/17 Block, T Point Nand Nagri and Naresh Kumar started talking on his mobile phone and thereafter, they moved towards left side and at short distance, the accused Lakhi Prasad and Satish Kumar came on motorcycle and started talking to them. Thereafter, Naresh Kumar took out something from his pocket and delivered to accused Lakhi Prasad who accepted the same in his right hand and kept the same on his right side pocket of pant.
6. The further case of the prosecution is that on receiving the predetermined signal, Raiding team reached at the spot where Panch witness informed that the accused Lakhi Prasad had demanded and accepted bribe at the instance of accused Satish Kumar from Naresh Kumar, cousin brother of the complainant. Thereafter, Raid Officer C.C. No. 06/13 Page No. 5 of 52 after disclosing his identity challenged both the accused that they had demanded and accepted the bribe of Rs.4000/ from Naresh Kumar and offered his search but accused declined. On his directions, Panch witness recovered bribe amount of Rs.4000/ from the right side pocket of pant of the accused Lakhi Prasad and compared the serial number of that GC notes with serial number mentioned in pre raid proceedings Ex.PW4/B and the same tallied. That recovered GC notes were taken into possession vide seizure memo Ex.PW4/D. The wash of right hand of the accused Lakhi Prasad was taken in colorless solution of sodium carbonate which turned into pink and solution was transferred into two empty small clean bottles which were sealed with the seal of YSN and were marked as RHWI & RHWII by pasting slips thereon which were signed by Raid Officer, complainant and Panch witness. The wash of right pocket of the pant of the accused Lakhi Prasad was taken in colorless solution of sodium carbonate which turned into pink and solution was transferred into two empty small clean bottles which were sealed with the seal of YSN and were marked as RSPPWI & II by pasting slips thereon which were signed by Raid Officer, complainant and Panch witness. The said pant of the accused Lakhi Prasad was kept in an envelope sealed with the seal of YSN and said bottles and pant envelope and sample seal were taken C.C. No. 06/13 Page No. 6 of 52 into possession vide Seizure Memo Ex.PW4/E. Raid Officer also drawn up the post raid proceedings which is Ex.PW4/F. During the course of investigation, the accused Joy Joseph also reached at the spot and at instance of accused Lakhi Prasad, accused Joy Joseph was also apprehended. Thereafter, rukka was prepared and sent the same through HC Satdev to PS Anti Corruption Branch for registration of the case and copy of the FIR is Ex.PW8/A.
7. The further case of the prosecution is that the Raid Officer called Inspector Manoj Kumar PW19/IO at the spot and handed over him the custody of the accused persons, case property and relevant documents etc. for purpose of Investigation. I.O. took up the Investigation, prepared the Site Plan Ex.PW19/A. IO interrogated all the accused and arrested them vide Arrest Memo of accused Lakhi Prasad Ex.PW4/G and that of accused Satish Kumar is Ex.PW4/G1 and that of accused Joy Joseph is Ex.PW4/K and conducted personal search of accused Lakhi Prasad vide Memo Ex.PW4/H and personal search of accused Satish Kumar vide Memo Ex.PW4/H1 and that of accused Joy Joseph vide Memo Ex.PW4/K1. IO seized the motorcycle of accused Satish at the spot vide Seizure Memo Ex.PW4/M and Mobile phone of accused Lakhi Prasad vide Seizure Memo C.C. No. 06/13 Page No. 7 of 52 Ex.PW4/N. IO recorded the statement of complainant and Panch witness and other relevant witnesses. IO got medically examined the accused persons and put them in the lock up. During the course of Investigation, IO got prepared the Observation Memo Ex.PW1/A regarding identification of the voice of accused Lakhi Prasad. IO obtained the Biodata of the accused persons which are Ex.PW9/A (colly.), Sanction for prosecution as against accused persons which is Ex.PW14/A. 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 punishable U/S 120B IPC r/w Section 7 and 13 (2) of Prevention of Corruption Act, 1988 and U/S 7 of Prevention of Corruption Act, 1988 r/w Section 120B IPC and U/S 13(2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988 and Section 120B IPC was framed against all the accused persons on 13.08.2010 to which the accused persons pleaded not guilty and claimed trial.
9. Thereafter, in order to bring home the guilt of the accused, C.C. No. 06/13 Page No. 8 of 52 the prosecution got examined 19 prosecution witnesses namely Pushkar Singh, a formal witness as PW1, Pradeep Kumar, a formal witness as PW2, Manoj Kumar, a formal witness as PW3, Adel Kumar, complainant as PW4, Naresh Kumar, cousin brother of the complainant as PW5, Pawan Singh, Nodal Officer from Idea Cellular Ltd., a formal witness as PW6, Israr Babu, Alternate Nodal Officer from Vodafone Mobile Service, a formal witness as PW7, SI Anand Swaroop, Duty Officer, PS Anti Corruption Branch, a formal witness as PW8, Ms.Mamta, Assistant Law Officer, Vigilance Department, North Delhi Municipal Corporation, a formal witness as PW9, Ct.Mohanan, a formal witness as PW10, Ms. Rajni Sehgal, a formal witness as PW11, HC Suraj Pal, a formal witness as PW12, Ct.Shammi, a formal witness as PW13, Sh. Naresh Kumar the then Addl. Commissioner in MCD, Sanctioning Authority as against the accused persons as PW14, HC Om Prakash a formal witness as PW15, Ram Parvesh Kumar, Panch witness as PW16, HC Raj Vardhan, a formal witness as PW17, Inspector Y.S.Negi, Raid Officer as PW18 and Inspector Manoj Kumar, IO as PW19.
10. After closure of the PE, statement of accused under Section 313 Cr.P.C. were recorded in which the accused persons denied about C.C. No. 06/13 Page No. 9 of 52 any demand and acceptance of the bribe from the complainant. Accused claimed to be falsely implicated in this case having no concern with the alleged offence.
11. I have heard Final Arguments as addressed by Sh. Yogesh Kumar Verma, Adv. Ld. Counsel for the accused Lakhi Prasad, Sh.Rashid Hashmi Adv. Ld. Counsel for the accused Satish Kumar, Sh. B.B.Sharma, Adv. Ld. Counsel for the accused Joy Joseph and Sh. Maqsood Ahmad, Ld. Addl. PP for the State and perused the relevant record.
12. It is submitted by Ld. Counsel for the accused Lakhi Prasad that this accused has neither demanded nor accepted any bribe from the complainant and his cousin brother Naresh Kumar and prosecution has failed to prove about the said aspects and hence, said accused deserves to be acquitted. It is also added by Ld. Defence Counsel that PW4/complainant and PW5/Naresh Kumar, cousin brother of the complainant have made several improvements in their deposition in the court as compared to their Complaint Ex.PW4/A and Police Statement respectively and have falsely implicated this accused Lakhi Prasad. It is also added by Ld. Defence Counsel that even the C.C. No. 06/13 Page No. 10 of 52 alleged recovery of the bribe money of Rs.4000/ as against the accused Lakhi Prasad is doubtful and same could not be established as against this accused. It is also added by Ld. Defence Counsel that the documents were not prepared at the spot but were manipulated subsequently at the Office of Anti Corruption Branch and the same falsify the case of the prosecution. It is also added by Ld. Defence Counsel that as the accused Lakhi Prasad was merely working as Beldar in MCD and therefore, he was not competent to stop the demolition of unauthorized construction of the house of the complainant and therefore, there was no occasion on the part of accused Lakhi Prasad to demand and accept any bribe from the complainant through his cousin brother Naresh Kumar. It is also added by Ld. Defence Counsel that as the call detail of the Mobile phone of the accused Lakhi Prasad and complainant were not produced and the alleged conversation in the CD and transcript were not properly proved and therefore, the same cannot be looked into. It is also added by Ld. Defence Counsel that PW18/Inspector Y.S.Negi, Raid Officer is involved in two cases and being Raid Officer, he is interested for the success of his raid and therefore, his deposition cannot be treated as trustworthy and reliable. It is also added by Ld. Defence Counsel that as the prosecution could not establish its case C.C. No. 06/13 Page No. 11 of 52 against this accused, this accused deserves to be acquitted.
13. Similarly, it is submitted by Ld. Counsel for the accused Satish Kumar that this accused is innocent and has been falsely implicated in this case. It is further added by him that there is no evidence as against this accused regarding demand and acceptance of bribe. It is also added by Ld. Defence Counsel that this accused was posted as Beldar in Shahdara, South Zone and his Biodata was also received from Shahdara, South Zone, MCD and this accused had no concern with the other accused and there is nothing on record that he was a party to the criminal conspiracy with other accused persons for extracting bribe from the complainant. It is also added by Ld. Defence Counsel that as various Memos relating to the Raid Proceedings do not bear the signatures of this accused Satish Kumar which falsify the presence of the accused at the spot. Thus, Ld. Counsel added that as there is no incriminating evidence regarding demand and acceptance of bribe as against this accused Satish Kumar, he deserves to be acquitted.
14. Similarly, it is submitted by Ld. Counsel for the accused Joy Joseph that this accused is innocent and has been falsely draagged C.C. No. 06/13 Page No. 12 of 52 in this case as he has never demanded any bribe from the complainant and his brother Naresh Kumar. It is further added by him that neither PW3/Manoj Kumar nor PW4/Adel/Complainant nor PW5/cousin brother of the complainant nor PW16/Panch witness have deposed anything regarding the demand and acceptance of bribe as against this accused. It is also added by Ld. Defence Counsel that this accused had no concern with other two coaccused and cannot be held liable for their acts. It is also added by Ld. Defence Counsel that this accused had not gone to the spot and was arrested by police from his Office and not from the spot. It is also added by Ld. Defence Counsel that on that day i.e., 31.01.2008 this accused was assigned the work of demolition in the area of Nand Nagri and accordingly, he went to PS Nand Nagri and took assistance of police for undertaking demolition and DD No.18B was entered at PS Nand Nagri and thereafter, he remained busy in demolition work in the said area and after demolition, relived the police and DD No.47B dated 31.1.2008, PS Nand Nagri has been entered in this regard. It is also submitted by Ld. Counsel that PW18/Raid Officer and PW19/IO are police officials and interested witnesses and hence, their deposition cannot be treated as reliable. Ld. Counsel has also filed a written submission in support of his said contention and urged for acquittal of this accused. C.C. No. 06/13 Page No. 13 of 52
15. To the contrary, it is submitted by Ld. Addl. PP on behalf of the State that the prosecution by examining 19 PWs have clearly established its case as against the accused persons and therefore, all the accused persons deserve to be convicted for the charged offence. It is further added by Ld. Addl. PP for the State that PW 4 Complainant Adel Kumar, PW5 Naresh Kumar cousin brother of the complainant, PW16 panchwitness, PW18 Raid Officer and PW19 IO have duly supported the case of the prosecution and there is no reason to disbelieve the same specifically when they had no earlier enmity as against the accused persons. Ld. Addl. PP for the State has added that prosecution has been successful in establishing its case as against the accused persons for the charged offence and hence, all the accused deserve to be convicted.
16. In order to prove that accused have demanded and accepted bribe from Naresh Kumar, cousin brother of the complainant, the prosecution is found to have examined PW4/Adel Kumar, complainant, PW5/Naresh Kumar, cousin brother of the complainant, PW16/Ram Parvesh Kumar, Panch witness, PW18/Inspector Y.S.Negi, Raid Officer and PW19/Inspector Manoj Kumar,IO. C.C. No. 06/13 Page No. 14 of 52 PW4/Adel Kumar, complainant has deposed that he had constructed two storeys of his house after demolition and while finishing work was going, on dt. 30.1.2008 his brother told him that one JE along with one Lakhi Prasad came in his absence and instructed him to meet them in their Office. Thereafter, on 31.01.2008, he along with his cousin brother went to MCD Office but came to know that JE had gone to PS Nand Nagri. Thereafter, he along with his cousin brother went to PS Nand Nagri and met accused Lakhi Prasad and saw accused Joy Joseph, JE present but could not talk to him. Thereafter, accused Lakhi Prasad told him that JE was demanding Rs.10,000/ as bribe for not demolishing his house and on his request, it was scaled down to Rs.4000/ by accused Lakhi Prasad. Said PW4/complainant further deposed that as he was against giving of bribe, he along with his cousin brother went to Anti Corruption Branch and lodged Complaint Ex.PW4/A in the presence of one Panch witness Ram Parvesh Kumar and produced 8 GC notes of Rs.500/ each before the Raid Officer. Said PW4/complainant also narrated about Pre raid proceedings Ex.PW4/B. He further deposed that at about 2:15 p.m. he along with the Panch witness, his cousin brother Naresh Kumar, Raid Officer and other members of Raiding team left Anti Corruption Branch in a government vehicle and reached GTB T Point, Nand C.C. No. 06/13 Page No. 15 of 52 Nagri. He further deposed that after parking the vehicle there, he along with his cousin Naresh Kumar and Panch witness moved towards Tonga Stand and members of the Raiding team followed them and took suitable position. He further deposed that thereafter the accused Lakhi Prasad along with accused Satish Kumar had reached and on asking of accused Lakhi Prasad, his cousin Naresh Kumar took GC notes from his pocket and handed over in the right hand of the accused Lakhi Prasad who kept the same in right pocket of his wearing pant. Thereafter, Panch witness gave predetermined signal and members of the Raiding party reached there. He further deposed that thereafter, Raid Officer challenged the accused and thereafter, said GC notes were recovered from the right pant pocket of accused Lakhi Prasad and serial numbers of the GC notes were found tallied with the serial numbers as mentioned in Pre Raid Report and said GC notes were taken into possession vide Seizure Memo Ex.PW4/D which bears his signatures at point A.
17. Said PW4/complainant has also narrated about Post Raid Proceedings Ex.PW4/F which bears his signatures at point A. Said PW4 has clearly identified the recovered 8 GC notes of Rs.500/ each as Ex.P1 to P8, four sealed bottles containing right hand wash and C.C. No. 06/13 Page No. 16 of 52 right pant pocket wash of accused Lakhi Prasad Mark RHWI, RHW II, RSPPWI & RSPPWII Ex.P9 to P12 and pant of the accused Lakhi Prasad as Ex.P13, pant pullanda as Ex.P14 and CD as Ex.PX. Said PW4 in the cross examination by Ld. Addl. PP added regarding the Complaint as filed by him as under: "I am doing M.Phil in Economics. I had written my complaint of my own. It is correct that in my complaint I had mentioned that I met accused Joy Joseph in a side in P.S. Nand Nagri and he demanded bribe of Rs.10,000/ from me and on my pleadings he agreed to accept Rs.4000/."
18. Said PW4 in the cross examination by Ld. Addl. PP added that when both persons were apprehended at the spot, the name of the person who had come along with Lakhi Prasad was Satish Kumar. He also added that accused Lakhi Prasad and Satish Kumar were arrested vide Memo Ex.PW4/G and PW4/G1. Said PW4 also admitted to be correct that when he met accused Lakhi Prasad in PS Nand Nagri, accused Satish Kumar was present along with him. Said PW4 also admitted to be correct that he had mentioned in his complaint that accused Joy Joseph asked him to give money to accused Lakhi Prasad and Satish Kumar who would come to collect the money. Said PW4 C.C. No. 06/13 Page No. 17 of 52 denied the suggestion of Ld. Addl. PP that accused Joy Joseph came at the spot and he was arrested from the spot. In the cross examination by Ld. Counsel for the accused Joy Joseph, said PW4 admitted to be correct that accused Joy Joseph had not demanded any bribe from him nor gave any assurance to him. In the cross examination by Ld. Counsel for the accused Satish Kumar, said PW4 also added that accused Satish Kumar never demanded any bribe from him nor accepted any bribe from him. However, said PW4 added that the bribe was taken in the presence of accused Satish Kumar. He denied the suggestion of Ld. Counsel for the accused Satish Kumar that no bribe amount was given to accused Lakhi Prasad in the presence of accused Satish Kumar. Said PW4 in the cross examination by the Counsel for the accused Lakhi Prasad had denied the suggestion that no demand of bribe was made by the accused Lakhi Prasad or that he has falsely implicated the accused Lakhi Prasad. He also denied the suggestion of Ld. Counsel for the accused Lakhi Prasad that he forcibly tried to give money to the accused Lakhi Prasad.
19. PW5/Naresh Kumar who is the cousin brother of the complainant and deposed to the effect that he along with the complainant went to MCD Office, Shahdara to meet Joy Joseph,JE on C.C. No. 06/13 Page No. 18 of 52 dated 31.01.2008 but as they were informed that he had gone to PS Nand Nagri, they went PS Nand Nagri and saw Joy Joseph talking to the SHO and had not talked with Joy Joseph. He further deposed that accused Lakhi Prasad told them that he would talk to Joy Joseph and gave his mobile number to them. He further deposed that after sometime, Lakhi Prasad told them that he had spoken to Joy Joseph and he was demanding Rs.10,000/ which was settled for Rs.4000/ for saving from demolition of the house of the complainant and Lakhi Prasad demanded said amount from them. He further deposed that he along with the complainant went to the Office of Anti Corruption Branch and lodged Complaint and Panch witness was called and 8 GC notes of Rs.500/ each were produced by the complainant and after treating the said GC notes with phenolphthalein powder, same was handed over to him and thereafter, he along with the Raiding team left Anti Corruption Branch. In the cross examination by Ld. Addl. PP, said PW5 has narrated about the Pre Raid Proceedings Ex.PW4/B and about recording of the conversation between him and accused Lakhi Prasad on Mobile phone of the complainant and Mobile phone of accused Lakhi Prasad. Said PW5 further deposed about handing over the bribe amount of Rs.4000/ to accused Lakhi Prasad on his demand at the spot and accused Satish Kumar was also standing with him. He C.C. No. 06/13 Page No. 19 of 52 further deposed that accused Lakhi Prasad kept said GC notes in his right pant pocket. He further deposed that on giving signal by the Panch witness, the Raiding team reached at the spot and apprehended accused Lakhi Prasad and accused Satish Kumar. Said PW5 also deposed regarding taking of right hand wash and right pant pocket wash of accused Lakhi Prasad which turned into pink colour and transferring of the same in four bottles which were sealed and their signatures were obtained on the same and said bottles were seized. He further deposed that pant of the accused Lakhi Prasad was converted into a pullanda and taken into possession vide seizure memo Ex.PW4/E which bears his signatures. He further deposed that accused Lakhi Prasad and Satish Kumar were taken from the spot to the AC Branch in a Government vehicle via MCD Office Shahadara from where accused Joy Joseph was apprehended and taken to AC Branch office. He also deposed that the arrest memo of the accused Lakhi Prasad is Ex.PW4/G that of accused Satish Kumar is Ex.PW4/G1 and that of accused Joy Joseph is Ex.PW4/K and the personal search memo are Ex.PW4/H, H1 & K1 respectively which bear his signatures. Said PW 5 duly identified the case property. Said PW 5 in the crossexamination by Ld. Counsel for the accused Lakhi Prasad had denied the various suggestions as put to him as under: C.C. No. 06/13 Page No. 20 of 52
"It is wrong to suggest that no money was demanded and accepted by the accused. It is further wrong to suggest that nothing was recovered from the person of the accused. It is further wrong to suggest that money was forcibly thrusted on the person of the accused Lakhi Prasad. It is further wrong to suggest that money was recovered from the ground..................................................................
It is wrong to suggest that no proceedings took place at the spot. It is further wrong to suggest that I intentionally implicated the accused Lakhi Prasad in this case. It is further wrong to suggest that I had made deliberate improvements in the court in my statement to implicate him falsely. It is further wrong to suggest that no recovery was effected in my presence. It is further wrong to suggest that no conversation was recorded by me. It is further wrong to suggest that no money was accepted and kept by the accused in his right side pant pocket and I had made deliberate improvements in my statement to implicate the accused falsely."
20. PW16 Ram Parvesh Kumar Panch witness has deposed before the court on dated 31.01.2008 he was on duty as Panch witness C.C. No. 06/13 Page No. 21 of 52 in AC Branch and two persons namely Adel Kumar and Naresh Kumar came there and lodged a complaint which is Ex.PW4/A bears his signatures at point B. He further deposed that the complainant produced Rs.4000/ in the denomination of Rs.500/ each before the Raid Officer and narrated about the PreRaid Proceedings. He further deposed that he along with the complainant, Naresh Kumar and other members of the Raiding Team left AC Branch and reached at Tpoint near to the house of the complainant. Thereafter, he along with the complainant, Naresh Kumar were proceeding towards the house of the complainant and saw accused Lakhi Prasad standing near the motorcycle and accused Satish Kumar sitting on the motorcycle. He further deposed that the accused Lakhi Prasad demanded the bribe and on his demand Naresh gave bribe money to him. He further deposed that on his giving signal, the Raiding party reached the spot and the accused Lakhi Prasad and Satish Kumar were apprehended. Thereafter, he recovered 8 GC notes of Rs.500/ from the right pocket of pant of accused Lakhi Prasad and the serial number of said GC notes found tallied with the serial number as mentioned in the Pre Raid Report. Said PW 16 had identified his signatures on various documents i.e., complaint Ex.PW4/A, Preraid proceedings Ex.PW4/B, Postraid proceedings Ex.PW4/F. He has also identified C.C. No. 06/13 Page No. 22 of 52 his signatures on various other documents i.e., Ex.PW4/D, Ex.PW4/A, Ex.PW4/L, Ex.PW4/M, Ex.PW4/N, Ex.PW4/G, Ex.PW4/G1, Ex.PW4/K, Ex.PW4/H, Ex.PW4/H1 & Ex.PW4/K1. As said PW16 panchwitness was found hostile on certain aspects, he was cross examined by Ld. Addl. PP. Said PW 16 had identified the 8 GC notes of Rs.500/ each as recovered from the accused Lakhi Prasad as Ex.P1 to Ex.P8 and four bottles mark RHWI & RHWII and RSPPWI & RSPPWII as Ex.P9 to Ex.P12 and pant of accused Lakhi Prasad as Ex.P13 and one CD as Ex.P14. Said PW 16 in the crossexamination by the Ld. Counsel for the accused Lakhi Prasad had denied various suggestions put to him as he deposed in this aspect as under: "It is wrong to suggest that I am not part of Raiding Team during Preraid proceedings. It is wrong to suggest that no money was accepted by the accused Lakhi Prasad in my presence. It is further wrong to suggest that nothing was recovered from the person of the the accused Lakhi Prasad. It is further wrong to suggest that accused Lakhi Prasad was surrounded by the labourers present in the demolition drive on that day. It is further wrong to suggest that accused Lakhi Prasad was distributing the daily wages to the labourers present over there. I do not know if a public servant deposed not as per his C.C. No. 06/13 Page No. 23 of 52 police statement in the court then the department proceedings would be initiated against him. It is wrong to suggest that I am deposing falsely under the pressure of the Anti Corruption officials. It is wrong to suggest that no demand was made by accused Lakhi Prasad."
21. The material part of deposition of PW16/Panch witness and some part of deposition of PW4/complainant is found corroborated from the deposition of PW18/Inspector Y.S.Negi, Raid Officer. Said PW18/Raid Officer is found to have deposed that on 31.01.2008 the complainant Adel Kumar along with his brother Naresh Kumar came to him and has further deposed regarding lodging of the Complaint Ex.PW4/A which bears his signatures at point B1 and that of the complainant at point A and that of Panch witness at point B and thereafter, Pre Raid Proceedings Ex.PW4/B was carried out by him which bears his signatures at point C and that of complainant at point A and that of Panch witness at point B. Said PW18 has also deposed that he along with the complainant, panch witness and other members of the Raiding team left Anti Corruption Branch and reached at GTB, TPoint and vehicle was parked there and Inspector Manoj Kumar and Driver remained in the vehicle. He has also deposed that at about C.C. No. 06/13 Page No. 24 of 52 3:05 p.m. complainant, his brother Naresh and Panch witness stood at 4A/17 Block at TPoint, Nand Nagri, Naresh started talking on his mobile phone and thereafter, they moved towards left side and accused Lakhi Prasad and Satish Kumar came on a motorcycle and started talking with them. He further deposed that on getting pre determined signal, he along with Raiding team reached the spot and surrounded both said accused Lakhi Prasad and Satish Kumar and after disclosing his identity, challenged them that they have demanded and accepted bribe. He also deposed that on his instructions, Panch witness recovered the tainted GC notes from the right side pocket of pant of accused Lakhi Prasad and on checking the numbers of recovered GC notes found tallied with the numbers as noted in the Pre raid Proceedings and said GC notes were taken into possession vide Seizure Memo Ex.PW4/D. He has also deposed regarding the Post raid Proceedings Ex.PW4/F which bears his signatures at point C and that of complainant at point A and that of Panch witness at point B. Said PW18 has clearly identified the case property i.e. 8 GC notes of Rs.500/ each as Ex.P1 to P8, four sealed bottles Mark RHWI & II, RSPPWI & II as Ex.P9 to P12, pant of accused Lakhi Prasad as Ex.P13 and pant pullanda as Ex.P14 and the CD as Ex.PX. Said PW18 in the cross examination by Ld. Counsel for the accused Lakhi C.C. No. 06/13 Page No. 25 of 52 Prasad has denied various suggestions as put to him as he has deposed in this respect as under: "It is wrong to suggest that accused Lakhi Prasad neither demanded nor accepted any money. It is wrong to suggest that accused was arrested falsely at the instance of the complainant who was willing to construct the house unauthorisedly. It is wrong to suggest that to save the house of the complainant, the present raid was conducted as the complainant was known to me."
Said PW18/Raid Officer in the cross examination by Ld. Counsel for the accused Joy Joseph has stated that he did not know if accused Joy Joseph has lodged DD No.18B at PS Nand Nagri for taking police assistance for effecting demolition in the area. He further added that he did not know if the police after rendering assistance for demolition has gone to PS Nand Nagri and lodged their arrival entry vide DD No.47B on that day. Said PW18 has also denied the suggestion as put to him by Ld. Counsel for the accused Joy Joseph as he has deposed in this respect as under: "It is incorrect to suggest that Naresh Kumar and the complainant Adel had not stated that they had any talk with the accused Joy Joseph at PS Nand Nagri. It is incorrect to suggest C.C. No. 06/13 Page No. 26 of 52 that I have falsely implicated the accused Joy Joseph in this case."
22. Similarly, said PW18/Raid Officer is found to have denied various suggestions as put to him in his cross examination by Ld. Counsel for the accused Satish Kumar as he has deposed in this respect as under: "It is wrong to suggest that accused Satish Kumar never asked the complainant in the presence of Panch witness to hand over the bribe amount to accused Lakhi Prasad and on account of that I did not record his separate statement in this respect. It is wrong to suggest that accused Satish Kumar was not deputed in Shahdara North Zone and at the relevant period he was deputed at Shahdara South Zone. It is wrong to suggest that accused Satish Kumar has no concern with the ongoing demolition in the area of Shahdara North Zone as he was deputed in Shahdara South Zone. It is further wrong to suggest that accused Satish Kumar was never sent temporarily to Shahdara North Zone. It is wrong to suggest that accused Satish Kumar has been falsely implicated in this case. It is C.C. No. 06/13 Page No. 27 of 52 wrong to suggest that I am deposing falsely."
23. No doubt PW4/complainant Adel Kumar and his cousin brother Naresh Kumar are found to have turned hostile on certain aspects in order to give clean chit to the accused Joy Joseph but from the perusal of the deposition of PW4/complainant Adel Kumar, it is clearly reflected that said PW4 has deposed that on 31.01.2008, he along with his cousin brother had gone to Anti Corruption Branch and got lodged his Complaint Ex.PW4/A which bears his signatures at point A before one Inspector in presence of Panch witness Ram Parvesh. Said PW4 in the cross examination by Ld. Addl. PP has further added that he was doing M.Phil in Economics and had written his complaint on his own. He also admitted to be correct that in his Complaint, he has mentioned that he met accused Joy Joseph in PS Nand Nagri and he demanded bribe of Rs.10,000/ from him and on his pleadings, he agreed to accept Rs.4000/. Furthermore, in the said Complaint Ex.PW4/A, the complainant has clearly stated that on 30.01.2008, Joseph posted as JE in Shahdara North Zone, MCD along with Beldar Lakhi Prasad had come to his newly constructed house where finishing work was going on and in his absence asked his brother Manoj Kumar to send the complainant at his Office and C.C. No. 06/13 Page No. 28 of 52 therefore, on the next day i.e. 31.01.2008, said complainant along with his cousin brother Naresh Kumar went to the Office of Joy Joseph but on coming to know that he had gone to PS Nand Nagri, they went to PS Nand Nagri and met Joseph there who initially demanded bribe of Rs.10,000/ which was scaled down to Rs.4000/ for not demolishing the construction of the house of the complainant and asked him to pay the said amount to Beldar Lakhi Prasad and Satish Kumar. The complainant has further stated in his said Complaint that thereafter, the accused Satish Kumar asked the complainant to deliver the said amount to them between 3:00 to 3:30 p.m. at TPoint, Tonga Stand, Nand Nagri where they would meet them. In view of the same, the deposition of PW4/complainant to the effect that accused Joy Joseph had not demanded any bribe from him for saving his house, is found falsified from the contents of said Complaint Ex.PW4/A. Furthermore, if the accused Joy Joseph had not come to the house of the complainant on 30.01.2008 and instructed Manoj Kumar, brother of the complainant to send complainant at his Office to meet him then there is no reason as to why complainant along with his cousin brother Naresh Kumar had gone to meet accused Joy Joseph on 31.01.2008 at his Office and thereafter, to the Police Station Nand Nagri to meet said accused Joy Joseph and C.C. No. 06/13 Page No. 29 of 52 thereafter, ultimately filed the Complaint Ex.PW4/A after coming from the PS Nand Nagri on that day. Furthermore, from the perusal of the record, it is clearly reflected that PW18/Raid Officer has conducted the Post Raid Proceedings Ex.PW4/F which bears the signatures of PW4/complainant at point A and that of PW16/Panch witness at point B and that of PW18/Raid Officer at point C.
24. I am of the considered view that said Post Raid Proceedings Ex.PW4/F being in the nature of Panchnama which is duly signed by the complainant and Panch witness is duly admissible and reference can be made to the case of Santa Singh vs. State of Punjab AIR 1956 Supreme Court 526 wherein it was held that mere presence of the police officer when a statement is made does not by itself render such a statement inadmissible. So long as a panchnama is a mere record of the things heard and seen by panchas and does not constitute a statement communicated to a police officer in the course of investigation by him and it would not fall within the mischief of section 162 of the Code.
25. From the perusal of the said Post Raid Proceedings Ex.PW4/F, it is clearly reflected that the accused Lakhi Prasad and C.C. No. 06/13 Page No. 30 of 52 Satish Kumar had reached the spot on a motorcycle between 3:00 to 3:30 p.m. on dated 31.01.2008 and thereafter, the accused Lakhi Prasad had demanded and accepted the bribe amount of Rs.4000/ in the form of 8 GC notes of Rs.500/ each from Naresh Kumar, brother of the complainant at the instance of accused Satish Kumar and kept the same on the right side pocket of his pant and ultimately, 8 GC notes of Rs.500/ each were recovered from pant pocket of accused Lakhi Prasad and the serial number of those 8 GC Notes of Rs.500/ each found tallied with the serial number as mentioned in the Preraid Proceedings Ex.PW4/B and said recovered 8 GC Notes were seized vide Seizure Memo Ex.PW4/D.
26. It is also revealed from the record that wash of the right hand and right side pocket of pant of accused Lakhi Prasad with colourless solution of sodium carbonate were taken and the same turned into pink colour and said wash vide Ex.RHWI and RSPPWI have given positive test for the presence of phenolphthalein and sodium carbonate as per FSL Report Ex.PW19/B which establish that the said treated 8 GC Notes of Rs.500/ each were handled and accepted by the accused Lakhi Prasad.
C.C. No. 06/13 Page No. 31 of 52
27. I do not find any force in the submission of Ld. Defence Counsel to the effect that since PW4/complainant and PW5/Naresh Kumar have not supported the case of the prosecution and has not deposed regarding any demand and acceptance of bribe as against accused Joy Joseph and nothing can be drawn from the deposition of said PWs as against this accused. In the Judgment reported as AIR 1991 SC 1853 Khujji @ Surender Tiwari vs. State of M.P., it was observed as under: Para 6: ".................................... Counsel for the State is right when he submits that the evidence of a witness, declared hostile, is not wholly effaced from the record and that part of the evidence which is otherwise acceptable can be acted upon. It seems to be well settled by the decisions of this court "Bhagwan Singh vs. State of Haryana (1976) 2 SCR 921 : (AIR 1976 SC 202):
Rabinder Kumar Dey vs. State of Orissa, (1976) 4 SCC 233 :(AIR 1977 SC 170) and Syed Akbar v. State of Karnataka, (1980) 1 SCR 95: (AIR 1979 SC 1848) that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as C.C. No. 06/13 Page No. 32 of 52 hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. In the present case the evidence of the aforesaid two eye witnesses was challenged by the prosecution in crossexamination because they refused to name the accused in the dock as the assailants of the deceased. We are in agreement with the submission of the learned counsel for the State that the trial Court made."
28. In view of the aforesaid material as available on the record, I am of the considered view that the factum regarding the demand of bribe of Rs.4000/ by the accused Joy Joseph on dated 31.01.2008 at PS Nand Nagri from the complainant for not demolishing the unathorised construction of house of complainant and subsequent demand and acceptance of said bribe amount of Rs.4000/ between 3:00 to 3:30 p.m. at the spot from the complainant through his cousin brother Naresh Kumar by the accused Lakhi Prasad in the presence of accused Satish Kumar, on behalf of all the accused persons have been found established from the deposition of PW4/complainant Adel C.C. No. 06/13 Page No. 33 of 52 Kumar, PW5/cousin brother of the complainant Naresh Kumar, PW16/Ram Parvesh, Panch witness and PW18/Inspector Y.S.Negi, Raid Officer coupled with the contents of the Complaint Ex.PW4/A, Seizure Memo of GC notes Ex.PW4/D, Seizure Memo of four bottles Mark RHWI & II, RSPPWI & II, sample seal and pant pullanda vide Memo Ex.PW4/E and Post Raid Proceedings Ex/PW4/F.
29. During the course of argument, it is submitted by Ld. Counsel for the accused Lakhi Prasad that PW18/Inspector Y.S.Negi, Raid Officer is involved in two cases and being Raid Officer, he is interested for success of his raid, and therefore, his deposition cannot be considered as trustworthy and reliable. Similarly, it is submitted by Ld. Counsel for the accused Joy Joseph that PW18 and PW19 are police officials and interested witness and hence, their deposition cannot be treated as reliable. I do not find any force in the said submission of Ld. Counsel for the accused persons in this respect. Reference is placed on case of Hazari Lal V/s State ( Delhi Admn ) AIR 1980 Supreme Court 873. In that case the allegations against the accused who was a police officer was that he demanded bribe from the complainant for release of his scooter rickshaw which was seized by the police. The trap was laid and the accused was caught C.C. No. 06/13 Page No. 34 of 52 red handed. However, during trial complainant turned hostile and deposed that when he went to the police station on first occasion to obtain delivery of his scooter rickshaw it was not the accused that was present but one Hawaldar was present and it was not the accused but that Hawaldar who demanded bribe of Rs. 60/ from him and when he went to the police station along with punch witness he found accused there and asked him to take a sum of Rs. 60/ and return the scooter rickshaw. He stretched his hand with the money towards the pocket of accused 's trouser but accused said the money might be paid to the person for whom it was meant for. He refused to receive the money and jerked complainant's hand with his hand as a result of which the notes came to be flung across the wall into neighboring room. He deposed that accused neither demanded the amount from his nor accepted the amount. The punch witness who went along with the complainant could not be examined as he became insane and other punch witness turned hostile. The conviction was based on the statement of trap officer and the Hon'ble Supreme Court held as under: "We are not prepared to accept the submission of Shri Frank Authony that he is the very Police Officer who laid the trap should be sufficient for us to insist upon C.C. No. 06/13 Page No. 35 of 52 corroboration. We do wish to say that there is no rule of prudence which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In facts and circumstances of a particular case a Court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally, in the facts and circumstances of another case, the Court may unhesitatingly agent the evidence of such an officer."
30. Besides that in the case reported as AIR 1998 SC 1474 State of U.P. Vs. Zakullaha it was held by the Hon'ble Supreme Court of India that the evidence of trap officer in a bribe case can be acted upon even without the help of any corroboration and similar view was held in a judgment: Prakash Chand vs. State (Delhi Administration) AIR 1979 SC 400.
31. During the course of argument, it is submitted by Ld. C.C. No. 06/13 Page No. 36 of 52 Defence Counsels that there is nothing on record that accused persons have entered into any criminal conspiracy to demand and accept bribe from complainant. It is well settled that the offence of criminal conspiracy as contemplated in U/S 120A IPC and as punishable under Section 120B IPC is generally hatched in secrecy and privacy and direct evidence in this respect is not required as inference from the attending circumstances validly permissible in this respect. In the present case, PW4/complainant Adel Kumar has clearly deposed that he was doing M.Phil in Economics and had written his Complaint Ex.PW4/A of his own and said Complaint bears his signatures at point A and was lodged by him before Inspector in Anti Corruption Branch in the presence of Panch witness Ram Parvesh. Thus, the complainant has duly owned the contents of said Complaint Ex.PW4/A. He also admitted to be correct that in his Complaint, he has mentioned that he met accused Joy Joseph in PS Nand Nagri and he demanded bribe of Rs.10,000/ from him and on his pleadings, he agreed to accept Rs. 4000/. Furthermore, in the said Complaint Ex.PW4/A, the complainant has clearly stated that on 30.01.2008, Joseph posted as JE in Shahdara North Zone, MCD along with Beldar Lakhi Prasad had come to his newly constructed house where finishing work was going on and in his absence asked his brother Manoj Kumar to send C.C. No. 06/13 Page No. 37 of 52 the complainant at his Office and therefore, on the next day i.e. 31.01.2008, said complainant along with his cousin brother Naresh Kumar went to the Office of Joy Joseph but on coming to know that he had gone to PS Nand Nagri, they went to PS Nand Nagri and met Joseph there who initially demanded bribe of Rs.10,000/ which was scaled down to Rs.4000/ for not demolishing the construction of the house of the complainant and asked him to pay the said amount to Beldar Lakhi Prasad and Satish Kumar. The complainant has further stated in his said Complaint that thereafter, the accused Satish Kumar asked the complainant to deliver the said amount to them between 3:00 to 3:30 p.m. at TPoint, Tonga Stand, Nand Nagri where they would meet them. Said PW4/complainant has narrated about the Pre raid Proceedings Ex.PW4/B. He has further deposed that at about 2:40 p.m. he along with Panch witness, his cousin brother Naresh Kumar, Raid Officer and other members of Raiding team left AC Branch in a government vehicle and reached at Tpoint, Nand Nagri. He further deposed that after parking the vehicle there, he along with his cousin brother Naresh Kumar and Panch witness moved towards Tonga Stand and members of Raiding team followed them and took suitable position. He further deposed that thereafter the accused Lakhi Prasad along with accused Satish Kumar had reached and on C.C. No. 06/13 Page No. 38 of 52 asking of accused Lakhi Prasad, his cousin Naresh Kumar took GC notes from his pocket and handed over in the right hand of the accused Lakhi Prasad who kept the same in right pocket of his wearing pant. Thereafter, Panch witness gave predetermined signal and members of the Raiding party reached there. He further deposed that thereafter, Raid Officer challenged the accused and thereafter, said GC notes were recovered from the right pant pocket of accused Lakhi Prasad and serial numbers of the GC notes were found tallied with the serial numbers as mentioned in Pre Raid Report and said GC notes were taken into possession vide Seizure Memo Ex.PW4/D which bears his signatures at point A. He further deposed that Post Raid Proceedings Ex.PW4/F bears his signatures at point A. He also deposed regarding the apprehension of accused Lakhi Prasad and Satish Kumar at the spot and thereafter, they were arrested vide Memo Ex.PW4/G and Ex.PW4/G1. He also admitted to be correct that accused Joy Joseph asked him to give money to accused Lakhi Prasad and Satish Kumar who would come to collect the money. The factum regarding the demand and acceptance of bribe of Rs.4000/ by accused Lakhi Prasad in the presence of accused Satish Kumar at the spot also found corroborated from the deposition of PW5/Naresh Kumar who is cousin brother of the complainant as said PW5/Naresh C.C. No. 06/13 Page No. 39 of 52 Kumar has deposed about handing over of bribe amount of Rs.4000/ to accused Lakhi Prasad at the spot and accused Satish Kumar was standing with him. He further deposed that accused Lakhi Prasad kept said GC notes in his right pocket of pant. He has also deposed that on giving signal by Panch witness, the Raiding team reached at the spot and apprehended accused Lakhi Prasad and accused Satish Kumar. He has also narrated about the Post Raid Proceedings and duly identified the case property. The factum regarding the lodging of the Complaint Ex.PW4/A by the complainant Adel Kumar in the presence of Naresh Kumar at AC Branch on 31.01.2008 and thereafter, the demand and acceptance of bribe of Rs.4000/ by the accused Lakhi Prasad in the presence of accused Satish Kumar at the spot from the complainant through which his cousin brother Naresh Kumar and subsequent recovery of 8 GC notes of Rs.500/ each from the right pant pocket of accused Lakhi Prasad and carrying out of the Post Raid Proceedings Ex.PW4/F and apprehension of both the accused Lakhi Prasad and Satish Kumar at the spot are found corroborated from the deposition of PW16/Panch witness Ram Parvesh which is further found corroborated from the deposition of PW18/Raid Officer Inspector Y.S.Negi. It is also revealed from the record that the accused Lakhi Prasad and Satish Kumar had reached C.C. No. 06/13 Page No. 40 of 52 the spot on the motorcycle bearing no. DL 7S4J 5850 and said motorcycle was also seized from the spot vide Seizure Memo Ex.PW4/M and said motorcycle found to have belonged to accused Satish Kumar and subsequently, said motorcycle was taken on Superdari by accused Satish Kumar.
32. In view of the aforesaid material as available on the record, I do not find any force in the submission of Ld. Counsel for the accused persons that there is nothing on record that the accused persons have entered into any criminal conspiracy to demand and accept bribe from the complainant. I also do not find any force in the submission of Ld. Counsel for the accused Satish Kumar that said accused was not present at the spot or has no concern with coaccused persons.
33. During the course of argument, it is submitted by Ld. Counsel for the accused Joy Joseph that this accused has not gone to the spot and was arrested by police from his Office and not from the spot. It is also added by Ld. Counsel that on that day i.e. 31.01.2008, this accused was assigned the work of demolition in the area of Nand Nagri and accordingly, he went to PS Nand Nagri and took assistance C.C. No. 06/13 Page No. 41 of 52 of police for undertaking the demolition and DD No.18B was entered at PS Nand Nagri and thereafter, he remained busy in demolition work in the said area and after demolition, relieved the police and DD No.47B dated 31.01.2008 PS Nand Nagri has been entered in this regard. From the perusal of the deposition of PW17/HC Rajvardhan, the then MHC(R) in PS Nand Nagri coupled with copy of DD No.18 B dated 31.01.2008, PS Nand Nagri Ex.PW17/A and copy of DD No. 47B dated 31.01.2008, PS Nand Nagri Ex.PW17/B, I found force in the submission of Ld. Counsel that the accused Joy Joseph has taken assistance of police from PS Nand Nagri at 11:00 a.m. for conducting demolition in the area of Nand Nagri on dated 31.01.2008 and thereafter on conducting the demolition of certain properties of Nand Nagri have relieved the police at about 4:00 p.m.
34. During the course of argument, it is submitted by Ld. Defence Counsel that as the call details of the Mobile phone of accused Lakhi Prasad and complainant were not produced and the alleged conversation in the CD and transcript were not properly proved and therefore, the same cannot be looked into. From the perusal of the deposition of PW6/Pawan Singh and PW7/Sh.Israr Babu, it is reflected that only the copy of the Customer Application C.C. No. 06/13 Page No. 42 of 52 Form of accused Lakhi Prasad Ex.PW6/A and copy of Customer Application Form of complainant Adel Kumar Ex.PW7/A were proved but the call detailed of Mobile phone of said accused Lakhi Prasad and complainant Adel Kumar were not produced and hence, could not be proved on record. It is further revealed from the record that the Transcript of the CD also has not been proved. In view of the same, I found force in the submission of Ld. Defence Counsel that the alleged conversation in the CD and the Transcript cannot be considered. Despite keeping the said CD and Transcript out of consideration as there are adequate material on record as against the accused persons and therefore, nonconsideration of said CD and Transcript cannot be of any help for the accused persons.
35. During the course of argument, it is submitted by Ld. Counsel for the accused Lakhi Prasad that as accused Lakhi Prasad was merely working as Beldar in MCD and therefore, he was not competent to stop the demolition of unauthorised construction of house of the complainant and therefore, there was no occasion on the part of accused Lakhi Prasad to demand and accept any bribe from the complainant through his cousin brother Naresh Kumar. From the perusal of the deposition of PW4/Adel Kumar complainant coupled C.C. No. 06/13 Page No. 43 of 52 with Complaint Ex.PW4/A, it is reflected that accused Joy Joseph along with accused Lakhi Prasad had visited the on going constructed house of the complainant on dated 30.01.2008 and asked brother of the complainant to send the complainant at his Office and thereafter, on next date i.e. 31.01.2008 said complainant along with his brother Naresh Kumar went to the Office of accused Joy Joseph, JE and on coming to know that he had gone to PS Nand Nagri, they went PS Nand Nagri and met the accused Joy Joseph who initially demanded bribe of Rs.10,000/ which was settled for Rs.4000/ for not demolishing the construction of the house of the complainant and asked the complainant to pay the said amount to Beldar Lakhi Prasad and Satish Kumar. The complainant has further stated in his said Complaint Ex.PW4/A that thereafter, accused Satish Kumar asked the complainant to deliver said amount to them between 3:00 to 3:30 p.m. on that day at TPoint, Tonga Stand, Nand Nagri where they would meet them. It is further revealed from the deposition of PW4/complainant, PW5/Naresh Kumar and PW16/Ram Parvesh Panch witness that thereafter, said bribe amount of Rs.4000/ has been demanded and accepted by the accused Lakhi Prasad in the presence of accused Satish Kumar from the complainant through his cousin brother Naresh Kumar at the spot between 3:00 to 3:30 p.m. and said C.C. No. 06/13 Page No. 44 of 52 amount in the form of 8 GC notes of Rs.500/ each have been recovered from the right pant pocket of the accused Lakhi Prasad vide Seizure Memo Ex.PW4/D and the motorcycle bearing no. DL 7S4J 5850 in which both accused had reached the spot, was also seized by PW19/IO vide Seizure Memo Ex.PW4/M from the spot. In view of the aforesaid material as available on record, it is reflected that accused Lakhi Prasad has demanded and accepted the bribe amount of Rs.4000/ as settled by accused Joy Joseph from the complainant through his cousin brother Naresh Kumar in pursuance of the criminal conspiracy hatched by all the accused persons and therefore, I do not find any force in the aforesaid submission of Ld. Counsel for the accused Lakhi Prasad.
36. Besides this, law is well settled that it does not matter whether the public servant was competent to do the work or not and reference can be placed in the case reported as Chaturdas Bhagwandas Patel Vs. State of Gujrat, 1976(3) SCC 46 as referred in State of Andhra Pradesh Vs. C. Uma Maheshwar Rao and Anr. 2004, V AD (SC) 176, wherein it has been held by Hon'ble Supreme Court of India that the question whether a person has an authority to do the act for which bribe is accepted, is of no consequence. In the C.C. No. 06/13 Page No. 45 of 52 case reported as Gopal Singh Vs. CBI, ILR (2005) II Delhi 35, It was observed by the Hon'ble Delhi High Court in Para 22 as under: "It has to be added that in cases under PC Act, the prosecution is under no obligation to prove that a public servant demanding bribe was in a position to help the person from whom the bribe was being demanded. The prosecution succeed the moment it is shown that a public servant had accepted some money from someone which was not legal remuneration. The presumption U/S 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 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."
37. During the course of the argument, it is submitted by Ld. Counsel for the accused Satish Kumar that as various Memos relating to Raid Proceedings do not bear the signatures of this accused Satish Kumar and same falsify the presence of the accused at the spot. From C.C. No. 06/13 Page No. 46 of 52 the deposition of PW4/complainant coupled with Complaint Ex.PW4/A, it is revealed that when the complainant along with his cousin brother Naresh Kumar met accused Joy Joseph at PS Nand Nagri on 31.01.2008, said accused Joy Joseph initially demanded bribe of Rs.10,000/ which was settled for Rs.4000/ for not demolishing the construction of house of the complainant and asked the complainant to pay said amount to Beldar Lakhi Prasad and Satish Kumar. The complainant has further stated in said Complaint Ex.PW4/A that thereafter accused Satish Kumar asked the complainant to deliver the said amount between 3:00 to 3:30 p.m. at TPoint, Tonga Stand, Nand Nagri where they would meet them. It is further revealed from the deposition of PW4/complainant, PW5/Naresh Kumar, PW16/Ram Parvesh Panch witness that the said bribe amount of Rs.4000/ has been demanded and accepted by accused Lakhi Prasad in the presence of accused Satish Kumar from the complainant through his cousin brother Naresh Kumar at the spot and thereafter, both said accused Lakhi Prasad and Satish Kumar were apprehended at the spot and motorcycle bearing no. DL 7S4J 5850 which belong to accused Satish Kumar was seized from the spot vide Seizure Memo Ex.PW4/M. In view of the aforesaid material as available on the record, I do not find any force in the submission of C.C. No. 06/13 Page No. 47 of 52 Ld. Counsel for the accused Satish Kumar that the accused Satish Kumar had no concern with the other accused and he was not present at the spot.
38. I also do not find any force in the submission of Ld. Counsel for the accused Lakhi Prasad that alleged recovery of the treated GC notes as against this accused is not sufficient to convict the accused for the charged offence. Once the accused is found to have accepted the bribe amount, it is for him to explain as to in which capacity he has accepted the same.
39. In the case of Dhanvantrai Balwantrai Desai V/s State of Maharashtra, AIR 1964 Supreme Court 575 it was held as under: "Therefore, the court has no choice in the matter, once it is established that the accused person has received a sum of money which was not due to him as a legal remuneration. Of course, it is open to that person to show that though that money was not due to him as legal remuneration, it was legally due to him in some other manner or that he had received it under a transaction or an arrangement which was lawful. The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the C.C. No. 06/13 Page No. 48 of 52 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."
40. It is also useful to refer to the decision of Hon'ble Supreme Court in case of M.Narsinga Rao V/s State of A.P. 2001 (1) SCC 691 rendered by Three Hon'ble Judges of Supreme Court. In that case accused demanded a bribe of Rs. 500/ from a milk transporting contractor for recommending the payment of an amount due to the contractor. The accused was caught red handed while accepting the bribe amount. Accused took the plea that currency notes were stuffed into his pocket. During trial complainant and panch witness did not support the prosecution case and it was argued before Hon'ble High C.C. No. 06/13 Page No. 49 of 52 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."
41. It is also useful to refer to the case of B. Noha V/s State of Kerela & Another 2006 VI AD ( Criminal ) 465 ( SC ) where it was held as under: "that when it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deducted from the facts and circumstances obtained in the particular case." C.C. No. 06/13 Page No. 50 of 52
42. 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 Lakhi Prasad has not given any justifiable explanation in his Statement U/S 313 Cr.P.C. as to how bribe amount of Rs.4000/ landed in his right side pocket of his pant from which it was recovered.
43. In view of the aforesaid materials as available on the record, relating to the demand and acceptance of bribe of Rs.4000/ (as settled by accused Joy Joseph earlier) by the accused Lakhi Prasad in the presence of accused Satish Kumar in pursuance of the criminal conspiracy hatched by the accused persons, 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.
44. In view of the aforesaid discussion, I have no hesitation to safely conclude that the prosecution has successfully established its case as against all the accused persons for the charged offence. Therefore, all these three accused persons namely Lakhi Prasad, Satish Kumar and Joy Joseph are held guilty and convicted for C.C. No. 06/13 Page No. 51 of 52 offence punishable U/S 120B IPC r/w Section 7/13 of Prevention of Corruption Act, 1988 and U/S 7 of Prevention of Corruption Act, 1988 r/w Section 120B IPC and U/S 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988 and r/w Section 120B IPC.
45. Let all these accused persons be heard separately on the point of sentence.
Announced in the open court on this 22nd day of May, 2013 (B.R. Kedia) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC, Delhi C.C. No. 06/13 Page No. 52 of 52