Delhi District Court
State vs 1. Rajesh Sharma on 15 July, 2011
IN THE COURT OF SH. RAKESH SIDDHARTHA,
SPECIAL JUDGE (PCACT)06, TIS HAZARI, DELHI
Case ID No. 02401R0061602003
CC No. 186/09
State V/s 1. RAJESH SHARMA
S/o late Sh. Doli Ram Sharma,
R/o Flat No. B2, MCD Flats,
Swami Nagar, Near Panchsheel Park,
New Delhi
2. RAMESH CHAND SHARMA
S/o Sh. Ram Singh
R/o PKI, D/526, Flat No. 4435,
Vasant Kunj, New Delhi.
3. SRI BHAGWAN BHARDWAJ
S/o Sh. Meher Singh Bhardwaj,
R/o D2/2341, Vasant Kunj,
New Delhi.
4. SUNIL GUPTA
S/o Sh. M. D. Gupta,
R/o W137, G. K. II, New Delhi.
FIR No. : 13/2001
U/S : 13(1) (d) & 13(2) POC Act
r/w Section 120B / 420 IPC
Date of Institution : 28.05.2003
Judgment reserved on : 9.06.2011
Judgment delivered on : 15.07.2011
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JUDGMENT
1. On 22.3.2001, investigation of the present case was entrusted to the IO alongwith complaint and a copy of FIR. The complaint was pertaining to the regularization of unauthorized construction on property no. D67, East of Kailash. ACP Abhey Ram had taken the statement of witnesses and had visited the spot and recorded the observation in the case diary. On the basis of statement of witnesses and documentary evidence available in the MCD record, he formally arrested accused Rajesh Kumar, S. B. Bhardwaj and R. C. Sharma, all were the officers of MCD, South Zone. ACP Abhey Ram also formally arrested Sunil Gupta, owner/builder of the said property.
2. The case was registered and chargesheet filed and charges were framed.
3. As per the charge, accused Rajesh Sharma, S. B. Bhardwaj, Ramesh Chand Sharma while employed in MCD and posted in its building department of South Zone and accused Sunil Gupta (Private person) entered into a criminal conspiracy amongst themselves sometime during the month of June to September, 1999 at Delhi for the commission of offences punishable under sections 420 IPC and 13(2) r/w 13(1) (d) of Prevention of Corruption Act, 1988 and thereby all of them committed an offence State V/s Rajesh Sharma etc. Page No. 2/45 punishable u/s 120B IPC r/w Sections 420 IPC and Section 13(2) r/w 13(1)
(d) of Prevention of Corruption Act, 1988.
4. Secondly, that in pursuance of the aforesaid conspiracy all of the accused persons committed the offence of cheating by getting regularized unauthorized construction / deviations from the sanctioned plan in property No. D67, East of Kailash by bringing the case of regularization within the MCD's policy of regularization of unauthorized constructions carried out before 23.7.1998 even though the unauthorized constructions/ deviations in the said property were carried out after 23.7.1998 and thereby all of them committed an offence punishable u/s 420 IPC.
5. Thirdly, that in pursuance of the aforesaid conspiracy, accused Rajesh Sharma, S. B. Bhardwaj and Ramesh Chand Sharma obtained pecuniary advantage for their coaccused Sunil Gupta by getting unauthorized construction carried out by him in the aforesaid property regularized by treating the same having been carried out before 23.7.1998 ignoring the documents submitted by him in support of his request for regularization of unauthorized construction under the policy of regularization of MCD which was applicable to those unauthorized constructions which had been carried out before 23.7.1998 which showed that the unauthorized consternations were carried out after 23.7.1998 and in that manner Sunil Gupta obtained pecuniary advantage because of abuse of their position as State V/s Rajesh Sharma etc. Page No. 3/45 public servants and resorting to illegal means and thereby all the three accused committed the offence punishable u/s 13(2) r/w 13(1) (d) of Prevention of Corruption Act, 1988.
6. Accused pleaded not guilty and claimed trial.
7. In evidence, the prosecution had examined fifteen witnesses to substantiate the charge while the accused had examined two witnesses in their defence.
8. I have heard the arguments on behalf of prosecution wherein Sh. Abdul Aleem, Addl. PP stressed the point that the accused had been in conspiracy and had willfully cheated the department by misrepresenting the construction raised on D67, East of Kailash beyond the permissible limit in as much as apart from permitting the raising of unauthorized construction, the accused had facilitated the contractor Sunil Gupta in raising construction of the third floor.
9. I have also heard the arguments addressed by Sh. Ramesh Gupta, Sr. Counsel on behalf of accused Rajesh Sharma, S. B. Bhardwaj and Sh. Shivesh P. Singh, counsel for accused R. C. Sharma and Sh. Gurdayal Singh, counsel for accused Sunil Gupta. Ld. Sr. Counsel for accused Rajesh Sharma and S. B. Bhardwaj has stressed that the prosecution has neither State V/s Rajesh Sharma etc. Page No. 4/45 brought about evidence that would reflect the complicity of the accused in raising the construction and whatsoever had been done was legally permissible and the same was without the norms of the department. Accused had no hand in the construction of the unauthorized portion or the third floor. Even otherwise, the proposal for compounding was sent by the JE who was required to be on the site and it is on the basis of the said recommendation that the two accused had put up the note before the DC. There was no willful act on the part of the accused.
10. As regards the sanction is concerned, the same is fraught with illegality in as much as no record was seen by the sanctioning authority nor was any material sent as per the IO ACP Ranvir Singh and as such the sanction so accorded was bad in the eyes of law.
11. I have also heard arguments on behalf of the accused Sunil Gupta wherein the entire case of the prosecution has been denied by the accused. The counsel states that the accused, being a contractor, is not liable under the POC Act and the fact that there was no conspiracy or cheating as the builder and contractor he had no reason to falsify the record or misrepresent the year of construction.
12. The Ld. Counsel for accused R. C. Sharma has also addressed and has submitted his written submissions wherein he has submitted that the State V/s Rajesh Sharma etc. Page No. 5/45 accused is not involved in the case as per the charge in as much as the accused was posted in the zone w.e.f. 01.03.1999 to 08.06.1999 and the completion was after the tenure of the accused. The accused is not party to the unauthorized construction or deviation from the sanctioned plan. It is also argued that the sanction, for his prosecution, accorded is illegal and non est.
13. Before we delve into the complicity of the accused in the commission of the offence, as per the charge, it is imperative that the prosecution proves on the record that it had obtained a valid sanction u/s 19 of the POC Act to prosecute the public servant which is sine quo non for prosecution of the accused under the POC Act.
14. The provision of section 19 is an outcome of underlying policy that there should not be unnecessary harassment of public servant. The object is to save the public servant from harassment of malicious prosecution. Valid sanction is prerequisite to the taking of cognizance of the offence as has been held in R. S. Nayak Vs. A. R. Antulay, (1984) SCC (Crl.) 172 wherein the Hon'ble Supreme Court had held that a trial without a valid sanction, where one is necessary under section 6, is a trial without jurisdiction by the court. Section 19 of the Prevention of Corruption Act provides the court to take cognizance of an offence punishable u/s 7, 10, 11, 12, 13 & 15. Valid sanction is the condition precedent to taking cognizance State V/s Rajesh Sharma etc. Page No. 6/45 by the court. It may be noted that the court take cognizance against the offence and not the offender.
15. Section 197 Cr.P.C. affords protection to a public servant not removable from his office save by or with the sanction of the Government against any offence which is alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. The protection is provided in the form that no court shall take cognizance of such offence except with the previous sanction of the Central Government or the State Government as the case may be. The object of the section is to save officials from vexatious proceedings against public servants but it is no part of the policy to set an official above the common law. If he commits an offence not connected with his official duty he has no privilege. But if one of his official acts is alleged to be an offence, the state will not allow him to be prosecuted without its sanction. Section 197 embodies one of the exceptions to the general rules laid down in Section 190 Cr.PC, that any offence may be taken cognizance against the public servant enumerated therein. Before this section can be invoked in the case of a public servant two conditions must be satisfied i.e. (1) that the accused was a public servant who was removable from his office only with the sanction of the State Government or the Central Government, and (2) he must be accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty.
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16. The provision of section 19 is to safeguard the innocent but not to shield the guilty (Gurbachan Singh Vs. State, AIR 170 Delhi 102). The discretion to grant sanction of prosecution is absolute. It cannot be questioned in a court of law (Dharma Swaroop Vs. State AIR 1953 Allahabad 37). Trial without sanction is null & void. If there is no sanction, no cognizance of the offence can be taken at all. The sanction is required for taking cognizance of the offence. Once the cognizance is taken, its utility is exhausted. It is no longer required either for trial or conviction (Ram Pukar Singh Vs. State, AIR 1954 All. 223).
17. In Jaswant Singh Vs. State of Punjab, AIR 1958 SC 124 it was observed that it should be clear from the form of the sanction that the sanctioning authority considered the evidence before it and after a consideration of all the circumstances of the case, sanctioned the prosecution and therefore, unless the matter can be proved by other evidence, in the sanction itself the fact should be referred to indicate that the sanctioning authority had applied its mind to the facts and circumstances of the case.
18. In regard to the sanction, the Hon'ble Supreme court has time and again stressed that it is incumbent on the prosecution to prove that a valid sanction had been accorded by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. State V/s Rajesh Sharma etc. Page No. 8/45 This should be done in two ways either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show the facts placed before the Sanctioning Authority and the satisfaction arrived at by it.
19. Any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio. What the court has to see is whether or not the Sanctioning Authority at the time of giving sanction was aware of the facts constituting the offence and had applied its mind for the same. Any subsequent fact which may come into existence after the grant of sanction is wholly irrelevant. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned.
20. In the Gokulchand Dwarkadas Morarka Vs. King, (1948) 50 BOMLR 399 it was pointed out that :
"The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government has State V/s Rajesh Sharma etc. Page No. 9/45 an absolute discretion to grant or withhold its sanction. It is not concerned merely to see that the evidence disclose a prima facie case against the persons sought to be prosecuted. It can refuse sanction on any ground which commends itself to them, for example, that on political or economic grounds to regard a prosecution as inexpedient. Looked at as a matter of substance it is plain that the Government cannot adequately discharge the obligation of deciding whether to give or adequately discharge the obligation of deciding to give or withhold a sanction without a knowledge of the facts of the case."
21. , In Basdeo Agarawalla Vs. Emperor AIR 1945 F. C. 16) it was pointed out that sanction, under the Act, is not intended to be, nor is an automatic formality and it is essential that the provisions in regard to sanction should be observed with complete strictness.
22. The Hon'ble Supreme Court in State through AntiCorruption Bureau, Govt. of Maharashtra V/s Krishanchand Khushalchand Jagtiani, Criminal Appeal No. 580 of 1996 while considering the provisions of sanction 6 of the Act held that one of the guiding principles for Sanctioning Authority would be the public interest and, therefore, the protection available under Section 6 cannot be said to be absolute.
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23. Sanction lifts the bar for prosecution. It is sacrosanct act which affords protection to government servants against frivolous prosecutions. Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty. The validity of the sanction would, therefore, depend upon the material placed before the Sanctioning Authority and the fact that all the relevant facts, material and evidence have been considered by the Sanctioning Authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the Sanctioning Authority had considered the evidence and other material, placed before it. This fact can also be established by the extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the Sanctioning Authority.
24. Since the validity of "sanction" depends on the application of mind by the Sanctioning Authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon to take a decision one way or the other. Since the discretion to grant or not to grant State V/s Rajesh Sharma etc. Page No. 11/45 sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution.
25. The Hon'ble Delhi High Court in the case of Bhisham Kumar Vs. State 1999 (iii) AD (Delhi) 177, has also applied the test as prescribed in the enunciation of the Hon'ble Supreme Court in the case of Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh 1979 Chandigarh Criminal Cases 113 (SC) and view taken by the Supreme Court in Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (1997) 7 SCC 622.
26. 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. Where the sanction has been accorded by a person who was not competent to accord the said sanction has been held not to be a valid sanction or for that matter where sanction has been accorded without application of mind. The same has also been held not to be a valid sanction. The criteria laid down for the grant of sanction has to fall within the four corners of the requirement of the sanction and any deviation or any omission would vitiate the trial. A trial State V/s Rajesh Sharma etc. Page No. 12/45 without a valid sanction where one is necessary has been held to be a trial without jurisdiction by the court as has been in S.N. Bose Vs. State of Bihar (AIR 1968 Supreme Court) 1292, with the dictum that a trial without a valid sanction renders the proceedings ab initio void but the terminus a quo for a valid sanction is the trial when the court is held upon to take cognizance of the offence.
27. In Kootha Perumal V/s State (through) Inspector of Police, Vigilance & Anti Corruption, 2011 I AD (CRI.) (S.C.) 1, the Hon'ble Supreme Court held that:
"Keeping in view the aforesaid statement of law, it would not be possible to conclude that the sanction order in the present case was not valid. Ex.P2 with the present appeal is the copy of the sanction order. A perusal of the same would show that the sanctioning authority has adverted to all the necessary facts which have been actually proved by the prosecution in the trial. Upon examination of the material facts, the sanctioning authority has certified that it is the authority competent to remove the appellant from the office. It is specifically stated that the statements of the witnesses have been duly examined. Sanction order also states that the other materials such as copy of the FIR as well as other State V/s Rajesh Sharma etc. Page No. 13/45 official documents such as the different mahazars were carefully examined. Upon examination of the statements of the witnesses as also the material on record, the sanctioning authority has duly recorded its satisfaction that the appellant should be prosecuted for the offences, as noticed above. We, therefore, find no merit in the submission of the learned counsel that the sanctioning order to prosecute the appellant was not legal".
28. Granting of a sanction u/s 19 of Prevention of Corruption Act is not a mere formality, it is necessary that all the facts, on which the proposed prosecution is based must be put before the Sanctioning Authority and the burden of proving the same is squarely on the shoulder of the prosecution. If any material facts, which go to the root of the whole matter and investigation, are not brought to the knowledge of the Sanctioning Authority it cannot be said that the Sanctioning Authority applied his mind before granting sanction for prosecution.
29. The bare reading of section 19 would indicate that it aims at preventing harassment and vexatious prosecution of a public servant. It assures that an honest public servant would not be in a position to oblige everyone and may have therefore incurred pleasure of many of them. This displeasure may even result in vexation and malicious prosecution for State V/s Rajesh Sharma etc. Page No. 14/45 offence relating to discharge of his official duties. The legislation therefore thought of providing a reasonable protection to public servant in the discharge of his official duties so that they can continue performing their duties and obligations undeterred by vexation and unnecessary prosecution (Jaswant Singh Vs. State of Punjab (Supra).
30. For the said purpose, PW10 Rakesh Mehta, Chief Secretary had been examined who has testified that on 01.04.2003 he was posted as Commissioner, MCD, Town Hall when it was alleged that Rajesh Sharma DE Building, South Zone, SB Bhardwaj AE (Building), Ramesh Chand Sharma JE (Building) in the discharge of their duty by corrupt or illegal means in connivance with owner builders K. N. Chopra provided undue favour in construction of 3rd floor at D67 unauthorizedly. The aforesaid officials gave the owner benefit of amnesty vide building rules circulated vide circular no. D/999 /Addl./CM(E)/99 dated 01.02.1999 by Additional Commissioner (Engg.) under the relaxed building rules while the policy was for construction carried out before 1998. The officials did not take necessary action against the unauthorized construction and accepted the contention of the owner / builder that the construction was prior to July 1998 without scrutinizing the documents when demolition action should have been initiated against unauthorized construction on the 3rd floor. The aforesaid officials misused their official position in discharge of their official function and thereby committed an offence punishable u/s 13(1) (d) of POC Act r/w State V/s Rajesh Sharma etc. Page No. 15/45 Section 120B IPC.
31. The witness being a competent authority to remove the aforesaid officials from the service, after examining material placed before him carefully in regard to the action, omission etc. and on due application of mind, had accorded sanction against Rajesh Sharma AE (Building), SB Bhardwaj AE (Building) and accused Ramesh Chand Sharma JE ( Building) u/s 19 (1) (C) of POC Act vide sanction order Ex.PW10/A1 and A2.
32. The witness in the cross examination has admitted that he was not aware in regard to the case concerning the said property and that the same had been decided. It is also admitted that the witness had granted sanction vide order dated 01.04.2003 when in fact the original file pertaining to property was not placed before him. Witness was also not sure as to whether the 3rd floor had been completely demolished by MCD or not. The witness had no personal knowledge pertaining to the present case and had relied upon the report of the AC Branch. The witness has further conceded that extra coverage in construction could be compounded by the officers of MCD and that the unauthorized portion had been demolished by MCD between 16.03.2001 and 19.03.2001 which was not brought to the knowledge of the witness or that the compounding fee had been taken in regard to property for extra coverage on 2nd floor.
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33. The order of sanction was challenged through PW14 ACP Ranvir Singh. Even though, the said witness has testified in the cross examination that he did not remember sending any material alongwith the request letter for obtaining the sanction and that the request had been made without any material.
34. The denial of PW14 to the fact of not sending any material for granting of sanction can be ignored and disregarded as he had in fact sent the material collected during the investigation for according sanction. As the witness has testified that due to his ailments, his memory did not support him. This fact can be vouched by a witness whose impeccable testimony supports the case of the prosecution in regard to the material sent for according sanction and that is the competent authority (PW10) himself who had accorded sanction to prosecute the accused on the basis of material placed before him. No corroboration is required. (Hazari Lal vs Delhi Administration 1980 SCR (2)1051).
35. As per the law, a material that was required to be delved into for according a valid sanction has not been enumerated in any way or form but where the dereliction and culpability of the accused manifests from the said material and furthermore, that the accused had misconducted himself by misuse of his official position, the said material would suffice. The primary condition that was required is due application of mind whether the State V/s Rajesh Sharma etc. Page No. 17/45 sanctioning authority had in fact applied its mind and had given a thought as to the legality of the act. The testimony of PW10 has narrated that he had accorded the sanction after examining material placed before him carefully and the dereliction of the accused in their act of omission and commission in their official duty thereby misconducting themselves was evident and he found sufficient material to accord sanction. Under the law, as enunciated by the Hon'ble Supreme Court in Mohd. Iqbal Ahmad V/s State of Andhra Pradesh, 1979 AIR SC 677 :
"What the Court has to see is whether or not the sanctioning authority at the time of giving the sanction was aware of the facts constituting the offence and had applied its mind for the same, by adducing evidence aliunde to show that the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. It is well settled that any case instituted without a proper sanction must fail because this being a manifest difficulty in the prosecution, the entire proceedings are rendered void ab initio.
36. In view of the said fact, it is held that a valid and tenable sanction had been accorded and prosecution could ensue.
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37. The case was initiated at the complaint lodged by PW12 Vijay Kumar who has testified that vide Ex.PW2/A a complaint had been made to AC Branch against accused Sunil Gupta, a Builder and one of the accused, before this court. An agreement pertaining to property No. D67, East of Kailash was executed between the witness and KN Chopra the owner of said property and thereafter agreement to sell was executed between KN Chopra and Sunil Gupta pertaining to said property. The witness has thereafter resiled from his complaint and the prosecution cross examined the witness. The witness has testified that he recollects there was an inaction, collusion and corruption in the conduct of official of MCD, PNB in connivance with KN Chopra the owner of property no. D67 and accused Sunil Gupta Builder. He had brought this illegality to the notice of the MCD officials but the same had evoked no response from the corporation. Complaint had also been made to the MCD office, Town Hall and finally the AC Branch.
38. The witness recollects that vide Ex.Pw2/A KN Chopra was owner of property and on 15.10.98 entered into the said agreement with witness for collaboration of property D67 East of Kailash wherein it was agreed that the witness would construct the building and would be entitled to 2nd floor and above of the proposed building. It was also mentioned that sum of Rs 2 lac was paid as token money to KN Chopra who had received the same. It was also mentioned that the bank had lien on said property to an amount of Rs. 15 to 18 lac which was required to be redeemed. The said State V/s Rajesh Sharma etc. Page No. 19/45 property had been offered as collateral with Industrial Financial Branch, CP and the original property paper were lying with the bank as the bank had advanced loan to the company M/s Breakout overseas Ltd. against the security of the aforesaid property and the liability on the property was to the tune of Rs 1.5 crores. The property could not be relieved without settling the amount standing with PN Bank. It is testified that after entering in to agreement with witness the owner, K.N. Chopra entered into agreement to sell dated 07.04.1999 with Sunil Gupta for a sum of Rs. 9 Lac and as per the agreement Sunil Gupta was entitled to 2nd and 3rd floor of D67 East of Kailash and it was admitted that Sunil Gupta had commenced construction in 1998 and the 2nd and 3rd floor had been raised when no permission from MCD had been obtained by either K.N. Chopra or Sunil Gupta.
39. Number of complaints had been made to MCD. No action followed. It is testified that 3rd floor was constructed in the year 1999 when the amnesty was available to buildings constructed before 1998 and accordingly, the unauthorized construction could not have been sanctioned or compounded. This illegality had been brought to the notice of MCD. Initially there was no action and thereafter the construction on 3rd floor was demolished. The complainant had also lodged complaint with PNB that they would incur a loss of 1.5 crore as the property had been sold to Sunil Gupta without relieving the said property. The witness has conceded that he had entered into an agreement with KN Chopra for a sum of Rs. 22 lac, of which State V/s Rajesh Sharma etc. Page No. 20/45 Rs.2 Lac was paid as an earnest money. However, KN Chopra did not write the NOC and in the meantime entered into an agreement with accused Sunil Gupta. It is also challenged by the counsel for accused Sunil Gupta that a cheque given to KN Chopra by the complainant as earnest money was dishonored and in consequences the dispute arose. The witness is unaware as to whether the suit filed before the High Court was dismissed or not. The complainant, as witness, has also conceded that the sanction had been received from MCD on 15.03.1998 and he was unaware as to the deviations from the sanction plan. It is however admitted that the deviations had been demolished by the MCD. The witness has also admitted that he had had a dispute with K.N. Chopra, the owner of the property. The witness has admitted in the cross that he had never interacted with SB Bhardwaj and other accused nor had he seen them at the spot. It is testified that subsequent to his withdrawal of complaint he had no complaint against the corporation.
40. From the testimony of PW12, it is clear that there was a business transaction between witness and K.N. Chopra in regard to the property D67, East of Kailash. It is only subsequently that the witness had reconciled and had ironed out the differences.
41. Nevertheless, the fact that emerges is that there was a transgression in construction of the building D67 East of Kailash and for the said purpose the aforesaid officials (accused) who were posted in the area State V/s Rajesh Sharma etc. Page No. 21/45 had by their acts of omission permitted the building to be raised to its impermissible height. Notwithstanding the reconciling of the differences subsequently, but on the date of complaint there had been a transgression and the aforesaid accused had facilitated the owners to construct the three floors. The withdrawal of the complaint or making a statement that he does not have any differences or complaint against the owners K.N. Chopra or Sunil Gupta the subsequent purchaser would not absolve the accused of their act of omission resulting in criminal misuse of position. The complaint Ex.PW2/A stands the test the veracity as it has been maintained by PW12 that he had lodged the same and his admission that he had also cited inaction, collusion and corruptions by the official of MCD and PNB who acted in connivance with owner KN Chopra of property no. D67 East of Kailash and accused Sunil Gupta, the builder.
42. The factum of the withdrawal of complaint as testified in the cross examination by the witness does not absolve the accused of their act of omission but only reflects the avarice of the complainant. The witness has also admitted that vide Ex.PW12/A and his affidavit Ex.PW12/B the cause of complaint had been removed and hence he had withdrawn the said complaint but the same is of no consequences as the complaint itself manifest the omission viz a viz the official misconduct of the accused in connivance with the accused Sunil Gupta by entering in a conspiracy to further the said misconduct.
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43. As per Ex.PW2/A the complaint lodged by PW12. The witness has testified that the complaint was against officials of MCD, Green Park and vide investigation conducted by the IO, PW12 ACP Abhay Ram and on the basis of statement of witnesses and documents available in the MCD, the accused herein were arrested. The Investigating Officer Dal Chand had conducted the preliminary inquiry and as per the said inquiry the said Retd. ACP had recommended a departmental inquiry against accused persons namely Rajesh Kumar (EE), SB Bhardwaj and Ashok Kumar (JE). It is admitted that SB Bhardwaj had forwarded the note put by Ashok Kumar on 29.7.99 and Rajesh Kumar forwarded the said note to DC. The witness has denied that case pertains to the recovery of Rs. 2 Lacs. It is however, stated that the case pertains to the omission by the aforesaid officials in permitting the contractor to construct 2nd and 3rd floor of property, which was not permissible. It is of little consequence that the said complaint was withdrawn subsequently as it is admitted by PW12 that the dispute was financial in nature with the owner K. N. Chopra and despite the said withdrawal of complaint vide letter Ex.PW12/A and affidavit Ex.PW12/B, the glaring fact that stood was the edifice of D67, East of Kailash, New Delhi with its unauthorized construction including the illegal 3rd floor.
44. Similarly, PW5 Ashok Kumar AE had been examined the building in the year 1999 as he was posted as JE in South Zone from State V/s Rajesh Sharma etc. Page No. 23/45 08.06.99 to 31.01.2000. When he had inspected the site of property no. D67 East of Kailash on receiving a Telephonic complaint, he found that addition and alterations had been made on the ground floor, 1st floor, 2nd floor and 3rd floor was being constructed. Contractor had shown the sanction plan according to which the report was prepared and placed before AE (Building) which is Ex.Pw5/A. SB Bhardwaj had issued show cause notice to the owner who had submitted the requisite documents. Thereafter owner applied for addition and alternation made by him as well as regularization of 2nd floor. It is testified that RC Sharma was the JE prior to witness in the area where AE was Mr. Bhardwaj and Rajesh Sharma as the Executive Engineer.
45. The witness has admitted in the cross examination that during 11.8.98 to 01.03.99 he was JE of the area and he was required to inspect and find out if any unauthorized construction was carried out in the area. The witness has also admitted that he was suspended from service when he was posted at Sarvodya Enclave and a case had been registered against him regarding unauthorized construction. The witness has admitted that there was a trap and also admitted that he had placed the regularization plan Ex.PW5/E before the AE which was regularized by AE SB Bhardwaj. The witness has admitted that Ex.PW5/A is show cause notice dated 13.07.99 and there is no mention of regularization of deviation plan and application Ex.PW5/B1 does not bear the diary number and as such suspect. State V/s Rajesh Sharma etc. Page No. 24/45
46. It is, however, clear from the testimony of PW5 AE Ashok Kumar that there had been a transgression in construction at the time accused Sri Bhagwan Bhardwaj was the AE and Rajesh Sharma was the ExEngg. It is also an admitted fact that PW5 was in fact posted alongwith the aforesaid accused at the time when unauthorized construction was carried out by accused Sunil Gupta, the contractor herein.
47. The permitting of unauthorized construction in D67, East of Kailash when EE Rajesh Sharma and AE Bhagwan Bhardwaj were responsible for the construction the restriction of construction in confining and permitting the construction within the sanctioned plan, the act of omission is writ large in regard to official duty which, as per the provisions of law under Section 13(1) (d) of the POC Act would have only been possible had the accused being allured or had obtained for themselves or for any other person or for consideration from any person while holding public office, accused would be guilty of offence of criminal misconduct of their official position.
48. What is criminal misconduct? The same is defined as transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior. The word criminalmisconduct in the present context would mean, any act done in violation of duties in the office with an intent to State V/s Rajesh Sharma etc. Page No. 25/45 confer benefit to someone by causing loss to the state. The criminal misconduct can also be inferred from the act of commission or omission of the accused who were public servants.
49. In C.D.S. Swamy V/s State, AIR 1960, SC, page 7, it was held that the court has ample power to raise a presumption where there is a mis conduct of official position, it was held that it is true that Section 5(3) (present Section 20 of the POC Act) of the Act, does not create a new offence but only lays down a rule of evidence, enabling the court to raise a presumption of guilt in certain circumstances a rule which is a complete departure from the established principles of criminal jurisprudence that the burden always lies on the prosecution to prove all the ingredients of the offence charged, and that the burden never shifts on to the accused to disprove the charge framed against him. With reference to the provisions of Section 5(3) of the Act, it has been contended, in the first instance, that the charge of criminal misconduct in the discharge of his official duties, is not confined to the fact as disclosed in his bank accounts with the Imperial Bank of India 467.
"It was next contended that the burden cast on the accused by SubSection (3) of Section 5 of the Act, was not such a heavy burden as lies on the prosecution positively to prove all the ingredients of an offence. In that connection, reference was made to a number of decisions, State V/s Rajesh Sharma etc. Page No. 26/45 particularly Rex V/s Carrbriant (1), to the effect (1) (1943) 1 K.B. 607, referred to under Art 3907 at p. 1511 in Archbold Criminal Pleading Evidence and Practice', 34th Edn. The Hon'ble Supreme Court opined that there is a 1472 fallacy in this arguments. The finding of the High Court and the court below, is that the prosecution had failed to adduce sufficient evidence to prove those particular facts and circumstances of criminal misconduct within the meaning of Section 5(1) (a) of the Act, but the failure to bring the charge home to the accused under Section 5(1) (a), does not necessarily lead to the legal effect contended for. As soon as the requirements of subsection (3) of Section 5 have been fulfilled, the Court will not only be justified in making, but is called upon to make, the presumption that the accused person is guilty of criminal misconduct within the meaning of Section 5(1) (d). In order to succeed in respect of the charge under Section 5(1) (a), the prosecution has to prove that the accused person had accepted or obtained or agreed to accept or attempted to obtain from any person any gratification by way of bribe within the meaning of Section 161 of the IPC. That charge failed because the evidence of PW9 was not accepted by the High Court or the trial court. The charge under Section 5(1) (d) State V/s Rajesh Sharma etc. Page No. 27/45 does not require any such proof. If there is evidence forthcoming to satisfy the requirements of the earlier part of sub Section (3) of Section 5, conviction for criminal misconduct can be had - on the basis of the presumption which is a legal resumption to be drawn from the proof of facts in the earlier part of the subSection (3) aforesaid. That is what has been found by the court below against the accused person. Hence, the failure of the charge under Clause (a) of subSection (1) of Section 5, does not necessarily mean the failure of the charge under Section 5(1) (d). in our opinion, the judgment of the High Court is correct, and the appeal is, accordingly, dismissed.
If the accused is on bail, he must surrender his bail bond."
50. The testimony of PW2, the IO, ACP Abhay Ram supports the case of the prosecution wherein he states that the ASI Bhim Singh had given copy of FIR Ex.PW2/B which was entrusted to him for investigation. The said witness has testified that after recording the statements of the witnesses, he had made observations in his case diary as to his visit to the spot and inspection of the building. The said witness had investigated and found that the compounding fee for unauthorized construction had been deposited and certain other portion of unauthorized construction demolished. It had also been investigated and found that accused S.B. Bhardwaj, Rajesh Sharma and State V/s Rajesh Sharma etc. Page No. 28/45 Ashok Kumar had collectively put up the note on 29.07.1999 which was approved on 15.09.1999 thereby implying that the construction had been completed prior to 23.07.1998 and in consequence, willfully cheating the Department holding out that the construction was within the amnesty period as per the building rules vide circular no. D/999/Addl./CM(E)/1999 dt. 1.2.1999 by Addl. Commissioner (Engg.). The case of the building D67 was not covered under the relaxed rules yet the said accused did not take action against the unauthorized construction and accepted the contention of the owner / builder that the construction was prior to July, 1998. It is further contended by the aforesaid accused misused their official positions in discharge of their official duties and committed an offence under Section 13(1) (d) of the POC Act r/w Section 120B IPC and further by holding out that the construction had been prior to 1998, had cheated the Department.
51. It matters little that subsequently the portion of the third floor which was illegal and which could not be regularized or compounded as testified by PW12 that is the portion complained of had been made and its demolition ensued on 13.03.2001, as admitted by PW10. It is of no consequence as it is the commission of the offence that the accused are before this court. The said fact that it was done in connivance with the accused Sunil Gupta by which conspiracy can be deduced from the circumstances which clearly manifests the omission of accused S. B. Bhardwaj and Rajesh Sharma and the commission of accused Sunil Gupta in State V/s Rajesh Sharma etc. Page No. 29/45 construction of the unauthorized portion inclusive of the third floor.
52. Prosecution has also examined PW11 Vinod Kumar AE (Civil) MCD who has testified that he was working as AE in South Zone building department and had taken charge of area including ward no. 12,13,14. On 16.3.2001 the witness was given file for demolition of unauthorized construction D67 East of Kailash. The police force was requisitioned from PS Lajpat Nagar and the file was received from OI Building. The witness alongwith RK Sharma, SB Bhardwaj and the demolition squad along with police force reached D67 East of Kailash. Some portion of unauthorized construction was demolished on 10.3.2001 and the remaining, of the 3rd floor, on 19.03.2001. The witness had identified the accused.
53. Once it is established that an unauthorized construction had been permitted to be made by the accused, thereby giving benefit to accused Sunil Gupta, presumption would follow that the same had been done for a consideration that is to say that he would have accepted or obtained or agreed to accept or attempted to obtain for himself or for any other person any valuable thing without consideration or for consideration or pecuniary advantage by abusing his position as a public servant.
54. I am fortified in my view by a judgment of the Supreme Court in case M. Narayanan Nambiar vs. State of Kerala, reported as Supreme State V/s Rajesh Sharma etc. Page No. 30/45 Court Reports (1963) Supp. 724, where it has been held as under: "Let us look at the clause "by otherwise abusing the position of a public servant', for the argument mainly turns upon the said clause. The phraseology is very comprehensive. It covers acts done "'otherwise" than by corrupt or illegal means by an officer 731 abusing his position. The gist of the offence under this clause is that a public' officer abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage.
"Abuse" means misuse 1. e. using his position for something for which it is not intended. That abuse may be by. corrupt or illegal means or otherwise than those means. The word 'otherwise' has wide connotation and if no limitation is placed on it, the words 'corrupt, 'illegal', and "otherwise' mentioned in the clause become surplusage, for on that construction every abuse of position is gathered by the clause.
55. In this regard, the Hon'ble Delhi High Court was pleased to hold in State Vs. P.K. Jain & Ors, 2007, Crl.J 4137 that:
"10. .......This country is facing unprecedented rise in corruption. Situation has come to a stage that MCD State V/s Rajesh Sharma etc. Page No. 31/45 officials, due to the corrupt practices, have turned the whole city into a slum by allowing all types of unauthorized construction, encroachment, squatting over public land. Engineers of local body who were supposed to check the unauthorized construction and encroachment of the public land, encroachment of roads, encroachment of pavements, turn a blind eye to all this, since their pockets are warmed and palms are greased."
56. In the entire testimony of PW5, it is clear that he was JE in the area from 11.08.1998 to 01.03.1999 and it was only prior to the said period that R.C. Sharma was JE and construction raised in D67, East of Kailash was prior to the period when admittedly, the construction had been laid in the year 1999. During the said period, no active part had been taken by R. C. Sharma and it was, in fact, Ashok Kumar who was the JE when the plan was sanctioned in the year 1998 and subsequently, on 20.07.1999 when the reply Ex.PW5/D4 in regard to the unauthorized construction had been sent by the owner. This fact has also been vouched by PW10, the sanctioning authority that during its process and according of regularization, accused Ramesh Chand was not posted in the said Zone. It was thereafter dealt with by S.B. Bhardwaj and as admitted by PW5 the same was on the dictation of S. B. Bhardwaj. The connivance of PW5 also manifests from the fact that he had made a note Ex.PW5/D7 to AE S. B. Bhardwaj who approved the same and State V/s Rajesh Sharma etc. Page No. 32/45 placed it before EE Rajesh Sharma who also appended his signature in his approval. In their endeavour to bring about benefit to the owners, a note had been placed by the aforesaid PW5 in connivance with the accused S. B. Bhardwaj and Rajesh Sharma and had been approved and placed before the DC who approved the same.
57. The entire edifice was constructed and was permitted to be constructed in connivance with the attorney of the owner accused Sunil Gupta.
58. The offence charged is under Section 13(1) (d) POC Act r/w Section 120B. Under the provision of law, Section 13(1)(d) the accused must:
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage;
or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public, interest; or State V/s Rajesh Sharma etc. Page No. 33/45
59. What is the requirements under the said law and what are the requirements of which the accused are being made liable.
60. The accused Rajesh Sharma and S.B. Bhardwaj, being public servants had by their act of commission and omission by corrupt or illegal means obtained for themselves or for the other person any valuable thing or pecuniary advantage or by abusing their position as public servants. The pecuniary advantage which is stated to have been procured by the accused S. B. Bhardwaj and Rajesh Sharma is in the shape of third floor and the unauthorized portion of D67, East of Kailash thereby giving benefit to the accused Sunil Gupta.
61. No evidence of negligence has been led nor a case of altruism has been made out to show or to raise a presumption that the said acts of omission and commission, in permitting the accused illegal construction and raising of third floor, was without any gain whatsoever. But nevertheless, by permitting unauthorized construction and raising of third floor by accused Sunil Gupta and further misrepresenting that the construction was prior to 1998, the accused had obtained for themselves and for the coaccused Sunil Gupta valuable thing and at least the valuable thing as regards Sunil Gupta would be an additional floor as well as deviation from the sanctioned plan thereby facilitating financial advantage for the coaccused Sunil Gupta. State V/s Rajesh Sharma etc. Page No. 34/45
62. In this regard, there had been a total criminal conspiracy involving accused S. B. Bhardwaj, Rajesh Sharma and Sunil Gupta.
63. Criminal conspiracy has been defined in Section 120A of the Indian Penal Code, 1860 to mean:
"when two or more persons agree to do, or cause to be done
1. an illegal act, or
2. an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."
64. As regards the punishment for criminal conspiracy is concerned, Section 120 B of the Indian Penal Code reads as under:
Criminal conspiracy is an independent offence. It is punishable separately. Prosecution, therefore, for the purpose of State V/s Rajesh Sharma etc. Page No. 35/45 bringing the charge of criminal conspiracy read with the aforementioned provisions of the Prevention of Corruption Act was required to establish the offence by applying the same legal principles which are otherwise applicable for the purpose of bringing a criminal misconduct on the part of an accused.
A Criminal conspiracy must be put to action in as much as so long a crime is generated in the mind of an accused, it does not become punishable. What is necessary is not thoughts, which may even be criminal in character, often involuntary, but offence would be said to have been committed thereunder only when that taken concrete shape of an agreement to do or cause to be done an illegal act or an act which although not illegal by illegal means and then if nothing further is done by the agreement would give rise to a criminal conspiracy.
Its ingredients are
1. An agreement between two or more persons;
2. An agreement must relate to doing or causing to be done either(a) an illegal act;
(b) an act which is not illegal in itself but is done by illegal means.
What is, therefore, necessary is to show meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by State V/s Rajesh Sharma etc. Page No. 36/45 illegal means.
65. In regard to reaping the benefits of additional floor as well as unauthorized construction, the accused Rajesh Sharma, S.B. Bhardwaj and Sunil Gupta were of one mind and the conspiracy is manifest from the omission of the public servant and the commission by the Contractor in construction. The testimony of PW5 is sufficient to inculpate the accused in their conspiracy to bring about unauthorized construction.
66. The Hon'ble Supreme Court in A. Wati AO V/s State of Manipur, 1996, Crl. L.J. 43:AIR 1996 SC361, in regard to the proof of illegal gratification has held that: "The involvement of the appellant in the conspiracy is so apparent that it cannot be said that there was any straining of the of the circumstances to connect the appellant with the crime.
This Court has said so because the prosecution case is that the appellant was party to the conspiracy in giving the contract in question to A. Sarat Chandra Sharma, (whose earlier firm had been blacklisted) and that too at an extremely exorbitant rate. Through the appellant sought to deny his knowledge about the fact of blacklisting of the earlier firm of Sarat Chandra, this plea has no legs to State V/s Rajesh Sharma etc. Page No. 37/45 stand, because the decision of the Government of Manipur regarding the blacklisting of the firm had been communicated by the appellant himself to the Chief Engineer by his letter of even number date 23rd June, 1978, whereas the present contract had been given to another firm of Sarat Chandra in January, 1979, after the processing had begun in November, 1978. as to the rates being exorbitant, there is a clear finding of the trial Court, which was endorsed by the High Court.
Though, Dr. Dhavan contended in this regard that the rates were those at which supplies had been made earlier, this plea has been discarded by the two Courts below. This being a question of fact based on material on record this court sees no reason to doubt its correctness
67. Further in Ghulam Din Buch Vs. State of J&K, 1996 Crl. LJ 2291 at 2297(SC) : AIR 1996 SC 1568 has held that:
"Government officers entering conspiracy with contractor. Nothing further remains to be said to come to the conclusion that these appellants were rightly found guilty of the charges, which qua them were commission of offences under Section 5(2) of the Act and 120B/109/116/119, State V/s Rajesh Sharma etc. Page No. 38/45 Ranvir Penal Code. At this stage, this Court says something about the commission made by 'J', who had appeared for two of the contractors namely 'H' and 'F' that the charges having only mentioned about Section 5(2) (New Section 13) was not quite explicit inasmuch as it did not spell out which particular misconduct specified in subsection (1) of Section 5 (New Section 13) was being attributed. The counsel further submitted that of all the four types of misconducts taken care of by subsection (1) in its four clauses, it is the one mentioned in clause (d) which could apply, which speaks of abuse of the position by a public servant by "corrupt or illegal means".
The contention of clause was that no corrupt or illegal means had been adopted by the public servants because the contract had been given following invitation to submit tenders which is a known and legal mode of giving contracts; it was also not a corrupt means. There is no force in this contention, as allowed to carry poles at the lowest tendered rates followed by how the N.I.T. Was issued and what happened thereafter, there can be no dispute that the public servants in question did abuse their position. If so deserves to be noted that clause(d) does not speak only about "corrupt or State V/s Rajesh Sharma etc. Page No. 39/45 illegal means" but also takes within its fold obtaining by public servant for himself or for any other person any pecuniary advantage "otherwise" as well"
68. As regards the offence of cheating is concerned, Section 420 IPC reads as under:
"Whoever cheats and thereby dishonestly induces the person deceives to deliver any property to any person or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
69. Bare reading of word "cheating" would suggest that there are two elements thereof, namely, deception and dishonest intention to do or omit to do something. In order to bring a case within the first part of this Section, it is essential that a person who delivers the property should have been deceived before he makes the delivery and, in the second place that he should have been induced to do.
State V/s Rajesh Sharma etc. Page No. 40/45
70. It is in the testimony of PW5 that the accused Rajesh Sharma and S. B. Bhardwaj had facilitated in the permission to regularization by jointly putting up the note before the Commissioner which was accepted on their recommendation and certain portions were regularized. PW2 ACP Abhay Ram also, in his investigation, found the same to be true and has testified as such. The record shows that S. B. Bhardwaj and AE Rajesh Sharma placed the note on 29.07.1999 which was approved by the DC on 15.9.1999 giving an impression that the construction has been made prior to 1998. This aspect spells out an act of cheating that is knowing it to be false the aforesaid public officials had placed the said documents with noting that the construction had taken place prior to 1998.
71. In consequence, the fact that has been churned out from the testimonies of PW5 Ashok Kumar and PW2 ACP Abhay Ram with support from PW7 and PW11 Vinod Kumar that the accused S. B. Bhardwaj and Rajesh Sharma had jointly conspired with accused Sunil Kumar Gupta in facilitating him to gain valuable thing culminating in pecuniary advantage as well as willfully misrepresenting to the department that the building D67, East of Kailash had been constructed prior to 1998 thereby entitled to amnesty.
State V/s Rajesh Sharma etc. Page No. 41/45
72. The Ld. Counsels for the accused have argued that there is inconsistency in the evidence led by the prosecution in as much as the IO Ranvir Singh has deposed in total contradiction to the case of the prosecution and furthermore, the documents do not belie the case of the prosecution.
73. It is settled law that while appreciating the evidence of a witness, the Court should not attach much importance to minor discrepancies which do not shake the basic version of the prosecution and should ignore the errors due to lapse of memory or ignore those statements made by a witness under fear or confusion from imagination on the spur of moment. (Babarali Ahmedali Sayed V/s State of Gujarat, 1991 Crl. LJ 1269 at 1273, 1274)
74. This principle is reiterated by the Supreme Court in the case of Appabhai Vs. State of Gujarat, AIR 1988 SC 696 the relevant discussion is as under at page 700 of AIR:
"The court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observations should not be given importance. The errors due to lapse of memory may be given due allowance. The Court, by calling State V/s Rajesh Sharma etc. Page No. 42/45 into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When doubt arises in respect of certain facts alleged by such a witness, the proper course is to ignore that fact only unless it goes into the3 root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The Courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy"
75. The Supreme Court further referred to the previous judgment of the Supreme Court in the case of Bharwada Bhoginbhai Hirjibhai Vs State of Gujarat, AIR 1983, SC 733 and relied upon the following paragraph at page 756 of AIR "A witness though wholly truthful is liable to be overawed by the Court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on State V/s Rajesh Sharma etc. Page No. 43/45 the spur of the moment. The sub conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
"Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore, cannot be annexed with undue importance. More so, when the all important 'probabilities factor' echoes in favour of the version narrated by the witnesses."
76. On the anvil of the facts enumerated, evidence led and the law as established, it can safely be said that no evidence has been found against accused R.C. Sharma as he had not been posted in the Zone at the relevant time. It has also been found from the testimony of ACP Abhay Ram PW2 as well as PW5 Ashok Kumar himself who had taken active participation in the regularization of the unauthorized portion as well as permitting by the act of omission and commission the illegal construction. No allegations have been made against accused Ramesh Chand Sharma nor has any evidence been adduced which would inculpate the accused Ramesh Chand Sharma. State V/s Rajesh Sharma etc. Page No. 44/45 He is accordingly acquitted. His surety discharged. However, there is sufficient evidence as discussed herein afore to inculpate accused Rajesh Sharma, S.B. Bhardwaj and Sunil Gupta in their complicity in commission of the offence.
77. I, accordingly, hold accused Rajesh Sharma and S. B. Bhardwaj guilty under the provisions of Section 13(1)(d) r/w Sections 120B and 420 IPC. Accused Sunil Gupta is held guilty under the provisions of Sections 420 and 120B IPC. r/w Section 13(1) (d) of POC Act.
To come up for quantum of sentence.
Announced in the open court today on 15th July, 2011. (RAKESH SIDDHARTHA) SPECIAL JUDGE (PCACT)06 TIS HAZARI, DELHI State V/s Rajesh Sharma etc. Page No. 45/45 IN THE COURT OF SH. RAKESH SIDDHARTHA, SPECIAL JUDGE (PCACT)06, TIS HAZARI, DELHI Case ID No. 02401R0061602003 CC No. 186/09 State V/s 1. RAJESH SHARMA S/o late Sh. Doli Ram Sharma, R/o Flat No. B2, MCD Flats, Swami Nagar, Near Panchsheel Park, New Delhi
2. RAMESH CHAND SHARMA S/o Sh. Ram Singh R/o PKI, D/526, Flat No. 4435, Vasant Kunj, New Delhi.
3. SRI BHAGWAN BHARDWAJ S/o Sh. Meher Singh Bhardwaj, R/o D2/2341, Vasant Kunj, New Delhi.
4. SUNIL GUPTA S/o Sh. M. D. Gupta, R/o W137, G. K. II, New Delhi.
FIR No. : 13/2001
U/S : 13(1) (d) & 13(2) POC Act
r/w Section 120B / 420 IPC
Judgment delivered on : 15.07.2011
Order on sentence announced on : 05.08.2011
State V/s Rajesh Sharma etc. Page No. 46/45
ORDER ON SENTENCE
1. It is never too simple and easy to incarcerate a person for his offence and be certain as to whether the sentence so given is commensurate with his act. An overview and humane touch is required when a plea of the plight of the family and the dependents is taken before the court. It is true that we are answerable for our own acts but it is seldom that others are not effected by it. Be it the offence or punishment.
2. Sh. Ramesh Gupta, Sr. Counsel for convicts Rajesh Sharma and S. B. Bhardwaj submits that accused Rajesh Sharma has a grown daughter and a son, both are studying. His children are without their mother and as such it is only the convict Rajesh Sharma who can give financial and social support to them. Prolonged incarceration would be detrimental for the social life of the progenies.
3. As regards, convict S. B. Bhardwaj is concerned the convict has aged parents and grown up children to look after apart from his spouse. He has had a respectable position in his vocation and has had commendations from his peers. His service record was impeccable barring the present case. Prolonged incarceration would also be detrimental to the welfare of his family.
4. Sh. Naresh Gupta, counsel for convict Sunil Gupta has submitted that convict Sunil Gupta is an aged person and a senior citizen. He has a daughter who is of marriageable age. The convict is suffering from a number of age related ailments which would detriate in the hardship of prolonged incarceration. State V/s Rajesh Sharma etc. Page No. 47/45
5. Learned PP for the State submits that convicts Rajesh Sharma, S. B. Bhardwaj and Sunil Gupta do not deserve any leniency being public officials on the date when cognizance was taken and as such they had to manifest honesty and diligence in their functioning, they had misused their official positions for personal gain.
6. The Hon'ble Supreme Court in Swatantar Singh Vs. State of Haryana 1997 4 SCC 14 observed as under : "Corruption is corroding like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service and demoralizing the honest officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently truthfully honestly and devotes himself assiduously to the performance of the duties of his post".
7. After hearing both the sides and upon perusal of the record, I find that it is difficult to accept the prayer of the convicts that they deserve any leniency in this case.
8. Corruption is all pervasive and is a bane of our society. It is the public service that has to manifest honesty and diligence in its functioning so as to give a clean society. Lest the public service degenerates and become a cauldron of corruption, the courts have to step in and send a message that the society shall not State V/s Rajesh Sharma etc. Page No. 48/45 endure this degeneration.
9. The convicts do not deserve any indulgence from the court of law and as such custodial sentence of Rigorous Imprisonment alone would serve as a real deterrent because the conduct of the corrupt government servants deserve to be seriously deprecated and no clemency can be shown. The convict Rajesh Sharma and S. B. Bhardwaj are required to be deprecated as they were public servants and has to manifest probity in their service and was required of them, while no such expectations were required from convict Sunil Gupta, barring the fact that as a citizen certain values were required to be adhered to. Honesty was required from all concerned.
10. I, accordingly, sentence accused Rajesh Sharma and S. B. Bhardwaj to undergo RI for a period of three years with a fine of Rs. 40,000/ each u/s 13(1)(d) of POC Act, 1988 and one year for offence u/s 420 IPC with a fine of Rs. 30,000/ each and in default of payment of fine, each convict shall undergo SI for a further period of three months. The accused are further sentenced to a period of one and half years for offence u/s 120B IPC with a fine of Rs. 30,000/ and in default of payment of fine, each convict shall undergo SI for a further period of three months. All the sentences shall run concurrently. The convicts shall be entitled to benefit u/s 428 Cr.PC.
11. I also sentence the accused Sunil Gupta to undergo RI for a period of one and half years with a fine of Rs. 40,000/ u/s 13 (1) (d) of POC Act, 1988 and one year for offence u/s 420 IPC with a fine of Rs. 30,000/ and in default of State V/s Rajesh Sharma etc. Page No. 49/45 payment of fine, the convict shall undergo SI for a further period of three months. I further sentence accused Sunil Gupta to undergo RI for a period of one and half years for offence u/s 120B IPC with a fine of Rs. 30,000/ and in default of payment of fine, the convict shall undergo SI for a further period of three months. All the sentences shall run concurrently. The convict shall be entitled to benefit u/s 428 Cr.PC.
12. Accused R. C. Sharma has since been acquitted vide judgment dated 15.07.2011.
13. A duly attested copy of the judgment and this order be supplied to the convicts free of costs and thereafter file be consigned to record room. Announced in the open court today on 5th August, 2011 (RAKESH SIDDHARTHA) SPECIAL JUDGE (PCACT)06 TIS HAZARI, DELHI State V/s Rajesh Sharma etc. Page No. 50/45 FIR No. 13/2001 State V/s Rajesh Sharma etc. 05.08.2011 Present : Sh. Abdul Aleem, Addl. PP for state.
All accused present.
Sh. Ramesh Gupta, Sr. Counsel for accused Rajesh Sharma and S. B. Bhardwaj.
Sh. Naresh Gupta, counsel for accused Sunil Gupta. Vide separate order on sentence announced, I sentence accused Rajesh Sharma and S. B. Bhardwaj to undergo RI for a period of three years with a fine of Rs. 40,000/ each u/s 13(1)(d) of POC Act, 1988 and one year for offence u/s 420 IPC with a fine of Rs. 30,000/ each and in default of payment of fine, each convict shall undergo SI for a further period of three months. The accused are further sentenced to a period of one and half years for offence u/s 120B IPC with a fine of Rs. 30,000/ and in default of payment of fine, each convict shall undergo SI for a further period of three months. All the sentences shall run concurrently. The convicts shall be entitled to benefit u/s 428 Cr.PC.
I also sentence the accused Sunil Gupta to undergo RI for a period of one and half years with a fine of Rs. 40,000/ u/s 13 (1) (d) of POC Act, 1988 and one year for offence u/s 420 IPC with a fine of Rs. 30,000/ and in default of payment of fine, the convict shall undergo SI for a further period of three months. State V/s Rajesh Sharma etc. Page No. 51/45 I further sentence accused Sunil Gupta to undergo RI for a period of one and half years for offence u/s 120B IPC with a fine of Rs. 30,000/ and in default of payment of fine, the convict shall undergo SI for a further period of three months. All the sentences shall run concurrently. The convict shall be entitled to benefit u/s 428 Cr.PC.
Accused R. C. Sharma has since been acquitted vide judgment dated 15.07.2011.
Fine paid by all the convicts.
A duly attested copy of the judgment and this order be supplied to the convicts free of costs and thereafter file be consigned to record room.
At this stage, counsels for the convicts have moved applications for suspension of sentence and grant of bail till the time convicts prefer an appeal before the Hon'ble High Court.
Heard.
Applications are allowed. The bail bonds of sureties accepted and the applicants /convicts are enlarged on bail till 04.10.2011.
(RAKESH SIDDHARTHA) Special Judge (PCAct)06 Delhi/05.08.2011 State V/s Rajesh Sharma etc. Page No. 52/45