Delhi District Court
State vs . 1. Devender Singh on 29 October, 2010
IN THE COURT OF SH. RAKESH SIDDHARTHA,
SPECIAL JUDGE (PCACT)06, TIS HAZARI, DELHI
Unique Case ID No. 02401R0059132002
CC No. 171/09
STATE Vs. 1. Devender Singh
S/o Sh. Netra Pal Singh,
R/o 1/4782, Balbir Nagar Extn.
Shahdara, Delhi32
2. Harpal Singh
S/o Sh. Ved Singh,
C403, Unique Apartment,
Sector6, Dwarka, Delhi.
FIR NO : 18/2001
U/S : 7 & 13 (1) (d) & 13 (2) POC Act
PS : AC Branch
Date of institution : 25.06.2002
Judgment reserved on : 18.10.2010
Judgment delivered on : 29.10.2010
JUDGMENT
1. On 29.03.2001, one Ram Kumar lodged a complaint against Devender Singh and Harpal Singh, employees of DDA, for demanding a sum of Rs. 11,000/ as bribe, in respect of passing of bill for boring of tube State Vs. Devender Singh etc. Page No. 1/23 well. The complaint was recorded by Insp. N. S. Minhas, Raid Officer in the presence of R. S. Chopra, panch witness.
2. The complainant produced 3 GC notes of Rs. 1000/ each and 6 GC notes of Rs. 500/ each before Inspector N. S. Minhas, Raid Officer who recorded the numbers of the same in pre raid report. After getting the same checked through panch witness, phenolphthalein powder was applied on the GC notes and right hand of panch witness was got touched to the tainted GC notes and thereafter right hand wash of panch witness was taken in colorless solution of sodium carbonate which turned pink. The panch witness and complainant were apprised of the consequences of touching the phenolphthalein powder coated GC notes by stating that whosoever touches or keeps the tainted GC notes in his pocket, hand wash or pocket wash, if taken in colorless solution of sodium carbonate, would turn pink.
3. The hands of panch witness were got washed with the soap and that solution was thrown away. Thereafter, the tainted GC notes were given to the complainant who kept the same in the right pocket of his kurta.
4. The panch witness was instructed to remain close to the complainant and overhear the conversation between complainant and the accused and also observe the incident. He was further instructed to give the signal to raiding party by hurling his hand over his head, after being satisfied State Vs. Devender Singh etc. Page No. 2/23 that the bribe had actually been given.
5. The complainant was instructed to keep the panch witness close to him and to talk and to transact with accused in such a manner so that the panch witness would be able to hear and see the transaction between them. And he should give the bribe money on specific demand. The the Raid Officer recorded pre raid proceedings.
6. On the day, at about 2:20 pm, complainant alongwith panch witness, RO Inspector N. S. Minhas, IO Inspector M. S. Sangha and other members of raiding party left AC Branch for DDA Horticulture Office, Shakarpur, Delhi in a government vehicle and reached there at about 2:50 pm. The Government vehicle was parked on the main road and IO Insp. M. S. Sangha and driver were left in the govt. vehicle.
7. The complainant and panch witness were again instructed and sent inside the DDA Office and the RO alongwith the members of raiding party followed them and took suitable positions near the DDA office.
8. At about 4:30 pm, panch witness gave pre determined signal. The Raid Officer alongwith the raiding team reached at the spot and went inside the room where accused Devender Singh and Harpal were found sitting and panch witness and complainant were also present there. State Vs. Devender Singh etc. Page No. 3/23
9. The Raid Officer asked the panch witness as to what had happened and panch witness told him that accused Devender had taken bribe money of Rs. 6000/ from the complainant with his right hand, on the direction of accused Harpal, and had kept the same in the left pocket of his shirt, after counting the same with the help of both the hands.
10. The Raid Officer disclosed his identity as an AC Branch official to the accused Devender Singh and Harpal and challenged them that they had taken Rs. 6000/ from the complainant as bribe. The RO offered the accused Devender Singh the search of the members of raiding team, before taking his search but he declined.
11. At the instruction of the Raid Officer, the panch witness recovered the bribe money of Rs. 6000/ from the left pocket of the shirt of accused Devender. The numbers of the recovered GC notes were got compared with the numbers of GC notes recorded in the preraid report which tallied. The recovered GC notes were seized vide seizure memo.
12. Thereafter, the right and left hand wash of accused Devender Singh were taken, separately, in the colorless solution of sodium carbonate which gave positive result. The same were transferred into four clean glass bottles and sealed with the seal of NSM.
State Vs. Devender Singh etc. Page No. 4/23
13. The left pocket wash of the shirt of accused Devender Singh was also taken in similar manner which also gave positive result. The solution was transferred into two clean glass bottles and sealed with the seal of NSM. The shirt of accused Devender Singh was converted into sealed parcel which was also sealed with the same seal. RO recorded the post raid proceedings.
14. IO Insp. M. S. Sangha was called at the spot and the exhibits / case property and accused were handed over to him and after recording of statements etc. and on completion of investigation, charge sheet was filed.
15. The charges were framed against the accused persons. As per the charge, on 29.03.2001, at about 4:30 pm, in the office of SDO, DDA, Horticulture Department, Shakarpur, Delhi accused Devender Singh, while being employed as SO in |Horticulture Department of DDA and accused Harpal Singh while being employed as an Assistant Director in the Horticulture Department, DDA and as such being public servants, demanded accepted and obtained illegal gratification of Rs. 6000/ from one Ram Kumar as a motive or reward and in consideration for clearing his bill of Rs. 21,950/ for boring of a tube well and thereby committed an offence punishable u/s 7 of the POC Act, 1988.
State Vs. Devender Singh etc. Page No. 5/23
16. Secondly, that both the accused on the abovesaid date, time and place, accepted/obtained pecuniary advantage of Rs. 6000/ from the aforesaid complainant Ram Kumar by corrupt or illegal means or by otherwise abusing their positions as such public servants and thereby they committed an offence of criminal misconduct as specified u/s 13 (1)(d) and punishable u/s 13(2) of the POC Act, 1988.
17. Both the accused pleaded not guilty and claimed trial.
18. The prosecution had examined fifteen witnesses to substantiate the charge.
19. I have heard the arguments on behalf of prosecution wherein Sh. Abdul Aleem, Addl. PP has submitted that the accused stands inculpated as during the raid, accused Devender Singh was found sitting in the room and accused Harpal Singh was called. Accused Harpal Singh inquired as to the amount and stated that the said amount should be handed over to accused Devender Singh from whom it was recovered and the hand wash also tested positive of the presence of phenolphthalein. Cumulatively the prosecution has proven the demand as well as acceptance and the complicity between the two accused. However, the accused Harpal Singh Tomar died during the proceedings and as such the case against him stood abated. As regards the accused Devender, the evidence is highly incriminating against him and his State Vs. Devender Singh etc. Page No. 6/23 complicity and acceptance of GC notes and the hand wash is sufficient to incriminate him.
20. Sh. R. S. Singhal, counsel for the accused has however denied the allegations and has stated that the complainant has held himself as a contractor whereas there was no contractual obligation that was being completed by him in as much as there was no money due to the complainant as the complainant himself has admitted that the bill was raised by contractor Ved Prakash and not by him for boring tubewell in the year 2001. It is also suggested that the tainted GC notes were, in fact, thrust in the pocket of the accused Devender and there was no voluntary acceptance.
21. Whether the prosecution was competent to bring up the charge against the accused and to prosecute him with the same is determinate from the fact whether the prosecution had obtained a requisite sanction from the competent authority. The sanction is sine quo non for prosecution of a public official.
22. Sanction U/s 19 of POC Act is not an idle formality, but it is a sacrosanct act as the future and career of a Government official is involved. The grant of sanction has been amply elucidated in Bhisham Kumar Vs. State, 1999 (3) AD Delhi 173. The test prescribed by the Hon'ble Supreme Court in Mohd. Iqbal Ahmad Vs. State of Andhra Pradesh, 1979 State Vs. Devender Singh etc. Page No. 7/23 Chandigarh Crl. Cases 113 (SC) have to be complied with.
23. The law regarding the sanction is strict in its requirement that is to say that there has to be a valid sanction before trial can commence. Granting of sanction U/s 19 of POC Act is prerequisite for prosecution. The facts that go to the root of the whole matter are required to be placed before the sanctioning authority before it can accord sanction.
24. A bare reading of Section 19 of POC Act would indicate that it aims at preventing harassment and vexatious prosecution of public servant. It assures that honest public servant should not be placed in a position to oblige everyone and may incur displeasure of some of them on refusal to do so. This displeasure may even result in vexatious and malicious prosecution for offence relating to discharge of their official duties. Hence a reasonable protection is afforded to public servants in their discharge of their duties so that the public servants continue performing their duties and obligation undeterred by vexatious and unnecessary prosecution.
25. PW2 R.K. Bhandari, who was Engineer Member of DDA in June 2002, is the sanctioning authority and has been examined to determine whether the requisite sanction u/s 19 of POC Act had been accorded or not. PW2 has testified that in June, 2002 posted as such he had received documents relating to Devender Singh Panwar posted as SO in Horticulture State Vs. Devender Singh etc. Page No. 8/23 Department, No.7, DDA Shakarpur. On perusal of the same and due application of mind, the witness was satisfied that accused was required to be prosecuted for the offence and as such had accorded sanction u/s 19 which is Ex.PW2/A on which the signatures are appended at point A. PW2 was competent to appoint and dismiss the accused.
26. The witness has been cross examined as regards the documents he has perused and had relied upon to accord sanction. The witness has testified that he did not recall the documents nor had he mentioned the same on the body of the sanction order.
27. The requirement of law in this regard is that the sanctioning authority should have perused the documents and only after due application of mind and deliberation that the sanction should be accorded. On perusal of the sanction order PW2/A ,I am satisfied that a valid and authentic sanction order had been passed.
28. The case was initiated on a complaint lodged by PW14 Ram Kumar who has testified that he was working with one contractor Ved Prakash in boring tube wells. The witness had worked with him in DDA building and an amount of Rs. 21950/ was due from DDA in regard to boring tube wells. The witness had visited DDA office number of times but his payments were not released. The witness is stated to have contacted State Vs. Devender Singh etc. Page No. 9/23 accused Devender Singh and Harpal Singh (since deceased). They had stated to have asked for bribe of Rs. 11000/. They had asked the complainant to come on 29.3.01 alongwith the amount in the afternoon. The complainant is stated to have arranged Rs. 6000/. But being averse to giving bribe he had lodged a complaint in the AC Branch which is Ex.PW13/A.
29. Alongwith the complaint the complainant handed over 3 GC Notes of Rs.1,000/ each and 6 GC notes of Rs.500/ each. Serial no. of notes were recorded and phenolphthalein powder was applied to the same. Demonstration of the purpose and consequences of the same were given. The complainant and the panch witness entered the room of the accused Devender Singh who called accused Harpal Singh. Accused Harpal stated to have enquired whether the complainant had brought the amount. It is stated that only Rs. 6000/ could be arranged. Accused Harpal Singh had said that the work order for release of the amount would be canceled. Thereafter accused Harpal Singh asked the complainant to hand over the said amount to accused Devender Singh. Accused Devender Singh counted the GC notes and kept the same in left side pocket of his shirt. Accused Harpal Singh stated to have said that work could be done only after payment of amount. The panch witness gave pre determined signal. Raid officer descended on the accused after divulging his identity had challenged the accused for accepting bribe.
State Vs. Devender Singh etc. Page No. 10/23
30. Hand wash of accused Devender Singh was taken and the GC notes were recovered. The case property had been identified. The witness had been cross examined at length. Who has testified that he knew the accused as they were introduced by Ved Prakash. The amount sought was for the well bored in 2000 with the assistance of Ved Prakash. Ved Prakash is stated to have owed a sum of Rs. 28,000/ to the complainant.
31. It is suggested to the accused that infact the amount was towards a pipe and the filter to be procured by the accused for the complainant and accordingly had forced the said amount on to the accused and in fact the accused had not voluntarily accepted the tainted GC notes.
32. The question then arises is whether the testimony of PW14 can be taken as gospel truth. The law has diverse view in this regard. A school of thought places the complainant the giver of the bribe to be an accomplice and as such his testimony is to be taken with suspicion and as such corroboration is a necessity. On the other hand, it is also believed that at times, the testimony of the complainant can be taken on the face value and relied upon for inculpating the accused.
33. Is the nature of present case such, where no corroboration is required, can the testimony of complainant be taken on the face value? For State Vs. Devender Singh etc. Page No. 11/23 corroborative purposes the prosecution has, in this regard, incorporated the panch witness PW13 Ram Swaroop Chopra. He was examined by the prosecution but before he could be cross examined, the said witness is stated to have died. Hence, his testimony is of no assistance to the prosecution.
34. In Babu Lal Bajpai Vs. State of U.P., AIR 1994 SC 1538, the Ho'ble Supreme Court had held that:
"The case of the accused is that the complainant had tried to thrust the money in his picket and he had resisted the said attempt, and thrown down the money on the floor. This version of the accused has been supported by the prosecution witness Raghubir Singh who is the adjacent shopkeeper and in whose shop the testing of ultra violet rays on the currency notes was made. Since he was aware of what was going to happen, he had naturally moved near the shop of the trap. Accordingly, to this witness he was standing outside the said shop and had heard the conversation inside the shop where the trap was laid. There is no reason why this witness who is a stranger both to the prosecution as well as to the accused would support the version of the accused, as stated above, if that was not the true version. The trial court has also relied upon, and according to us rightly, this version of the said prosecution witness.
State Vs. Devender Singh etc. Page No. 12/23 These are two of the most important reasons given by the trial court for acquitting the accused. The High Court has ignored these reasons and has tried to substitute its own finding which unfortunately is based on surmises. We are, therefore, more than satisfied that this was not a case where any interference with the finding of the trial Court was called for. In the circumstances, we are of the view that the impugned order of the High Court deserves to be set aside and the appellantaccused should be acquitted for both the charges."
35. Where the case, as made out, has the basis only in the testimony of complainant PW14, corroboration not forthcoming from the panch witness, corroboration has to be sought aliunde. As there was no eye witness to the demand, it is only through the presumption that the demand can be deciphered and whether the same had been voluntarily accepted has to be determined.
36. In this regard, Hon'ble Delhi High Court in Rajinder Prasad Vs. State, 1990 (19) DRJ 332 has held that :
"where there are serious discrepancies in prosecution story which is devoid of substantive evidence to prove the charge of bribery, then mere recovery of the State Vs. Devender Singh etc. Page No. 13/23 bribe money without explanation of circumstances under which the same was paid would not be sufficient for conviction.
37. In Panalal Damodar Rathi Vs. State of Maharashtra, AIR 1979 SC 1191, it has been held that:
"It will be seen that the version of the complainant that the appellant asked the complainant whether he had brought the money and that the complainant told him that he had and that the appellant asked him to pay the money to the second accused is not spoken to by the panch witness PW3. According to panch witness on the complainant asking the appellant whether his work will be achieved, the appellant assured him in the affirmative and the appellant told the complainant what was to be given to the second accused. It is significant that PW3 does not mention about the appellant asking the complainant whether he had brought the money and on the complainant replying in the affirmative asking the complainant to pay the money to the second accused. Omission by PW3 to refer to any mention of money by the appellant would show that there is no corroboration of testimony of the complainant regarding the State Vs. Devender Singh etc. Page No. 14/23 demand for the money by the appellant. On this crucial aspect, therefore, it has to be found that the version of the complainant is not corroborated and, therefore, the evidence of the complainant on this aspect cannot be relied upon."
"We are conscious of the fact that both the trial court as well as the appellate court accepted the evidence of the complainant and PW3 and found the appellant guilty. Though this court normally will not interfere with the concurrent findings of the Courts below, we feel that on the material placed before us it will be hazardous to base a conviction. The market notes were not recovered from the appellant.
The prosecution case is that the money was paid to the second accused to be handed over to the appellant. The complicity of the appellant is sough to be established by the conversation that took place between the complainant and the appellant in the presence of PW3. The version regarding the conversation as given by the complainant and PW3 is not consistent. In the circumstances, we are constrained to give the benefit of doubt. In doing so, we make it clear that were are not convinced about the innocence of the appellant. We feel on the State Vs. Devender Singh etc. Page No. 15/23 material before us, though there is grave suspicion, the guilt of the accused has not been established beyond reasonable doubt. In the circumstances, we are constrained to give the benefit of doubt to the appellant. In the result, we allow the appeal, set aside the conviction and sentence and acquit the appellant.
38. In the cross examination of PW14, a suggestion has been given that in fact, Rs. 5060/ was the estimated cost of pipe and filter and the amount of Rs. 6000/ was thrust into the pocket of the accused by the complainant. From the said suggestion, it is evident that there was an occasion where the complainant and the accused were facing each other to facilitate the complainant in thrusting the GC notes into the pocket of the accused. Whether the suggestion holds water. For the said purpose, the testimony of employees of DDA, more particularly the employees posted in Horticulture Deptt., are required to be examined.
39. PW10 Latur Hasan, Deputy Director, Horticulture Deptt. has admitted that work had been provided to one M/s Ram Kumar vide order no.
12/HDVII/200001 dt. 04.01.2001 on tender rate of Rs. 21950/. No work was done in regard to the said work order. It is further testified that on 5.2.2002, on a visit to Yamuna River alongwith Ved Prakash, Ram Kumar and IO. The IO had enquired as to the area where the work had been done State Vs. Devender Singh etc. Page No. 16/23 by Ram Kumar. He had failed to identify the area. The witness PW8, Mahender Prakash who was a pump operator in the Horticulture Deptt. has testified that Mam Chand had brought Ved Prakash who had done the boring of the pump. In the cross examination, the witness has admitted that the complainant Ram Kumar had not done any work at the place but it was done by Ved Prakash.
40. The complaint and the testimony of PW14 therefore seem to be without substance when no amount was due to the complainant. The law in this regard has been enunciated in Prakash Chand Vs. State (Delhi Admn.), AIR 1979 SC 400, it has been held that:
"Where the circumstances justify it, a court may refuse to act upon the uncorroborated testimony of a trap witness. On the other hand, a Court may well be justified in acting upon the uncorroborated testimony of a trap witness, if the Court is satisfied from the facts and circumstances of the case that the witness is a witness of truth."
41. The evidence that has come forth is of a complaint and raising of a bill by Ved Prakash. There is no evidence whatsoever that complainant Ram Kumar had raised any bill and that the accused Devender Singh and Harpal Singh had demanded any bribe for passing of the said bill therefore sounds credible.
State Vs. Devender Singh etc. Page No. 17/23
42. The Hon'ble Supreme Court in State of Maharashtra vs. (4) LRC 275 (SC) held Dnyaneshwar Laxman Rao Wankheda 2 009 that : "It is absolutely essential to keep in mind the well settled principles of law that in th event two views are possible to be taken, this court shall not interfere with a judgment of acquittal. There cannot be any doubt that in the event, having regard to the materials brought on record, the court comes to the conclusion on the basis thereof that only one view is possible, a judgment of acquittal may be interfered with."
Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence, viz., demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably, the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis - vis the standard of burden of proof on the prosecution would differ. Before, however, State Vs. Devender Singh etc. Page No. 18/23 the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt."
It is, therefore, highly doubtful that the version of the complainant was true. It is in the aforementioned backdrop only the evidence of DW1 is to be considered. Even otherwise, in our opinion, the prosecution has failed to prove its case. It is, therefore, not a case where the High Court, as has been contended by Ms.Divan, has failed to take into consideration the legal implication of the provision of Section 20 of the Act and / or placed too much reliance on the minor inconsistencies in the statements of the prosecution witnesses."
Even in a case where the burden is on the accused, it is well- known, the prosecution must prove the foundational facts."
43. It is only where work had been performed that payment would be forthcoming but where the prosecution has failed to show that the complainant had performed any work there is no question of any payment. State Vs. Devender Singh etc. Page No. 19/23 It is nigh impossible for raising a bill when the job had not been done by the complainant. PW8 Mahinder Prakash and PW10 Latur Hasan have both, in fact, denied that work had been done by the complainant in as much as PW6 Mam Chand has testified that the boring work had been procured through Ved Prakash and was accordingly paid. The said witness PW6 has maintained that no work was done by any Ram Kumar during his tenure.
44. Analogy can be drawn from 1998 Crl. LJ 3155, Kanhaiyyalal Vs. State of Rajasthan, where it has been held that:
" ... From the prosecution witnesses, it is proved that there was no work of Radhey Shyam pending with the accused appellant therefore he could not have given any money as bribery. Secondly, the case of the prosecution is contradictory to its story. The accused is acquitted."
45. It is difficult to fathom the reason why a complaint had been lodged by the complainant against the accused when the complainant had not performed any job for the DDA. It is admitted by the complainant that in fact the bill of Ved Prakash was due and it was Ved Prakash who owed him money and not that DDA had withheld his payment. This being so, the reason for demand of bribe vanishes and it is for the said reason that guilt cannot be fastened on the accused.
State Vs. Devender Singh etc. Page No. 20/23
46. During the course of the trial, accused Harpal Singh died and the case against him abated. Hence, no order is required to be passed in his regard.
47. The prosecution has failed to show any reason as to why the accused were in a position of authority to demand a bribe. The complainant PW14 has not testified the reason for demand. Any subsequent recovery therefore would not be material as the Hon'ble Supreme Court in Suraj Mal Vs. State (Delhi Admn.) 1979 (4) SCC 725 has held:
" that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to bribe.
48. In 2007 Crl. LJ 2919, State of M.P. Vs. Anil Kumar, it has been held that :
"... Motive for demand of bribe, not proved Contradiction in statement of State Vs. Devender Singh etc. Page No. 21/23 complainantIndependent corroboration necessary."
49. It is settled law that in order to substantiate its case, the prosecution has to prove beyond reasonable doubt that there was a demand of illegal gratification and in consequence, acceptance of the same by the accused. Unless the same is proven on record beyond reasonable doubt, the ingredients of section 13 of the POC Act are not fulfilled. It was incumbent on the prosecution to prove the same.
50. The Hon'ble Supreme Court in S.L. Goswami Vs. State of M.P., AIR 1972, SC 716 had held :
"In our view, the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to State Vs. Devender Singh etc. Page No. 22/23 establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution. Where the onus shifts to the accused, and the evidence on his behalf probabilises the plea he will be entitled to the benefit of reasonable doubt".
51. The demand lacking and the amount, reaching the hand of the accused, has been legally justified and hence the prosecution cannot be said to have established a case beyond reasonable doubts to inculpate the accused of the charges under Section 7 and 13 (1) (d) punishable under Section 13(2) of the POC Act and in consequence thereof, the accused is acquitted of the charge.
File be consigned to record room.
Announced in the open court today on 29th October, 2010 (RAKESH SIDDHARTHA) SPECIAL JUDGE (PCACT)06 TIS HAZARI, DELHI State Vs. Devender Singh etc. Page No. 23/23