Delhi District Court
State vs Lakhmi Chand S/O Sh. Hari Singh, on 2 March, 2010
1
IN THE COURT OF SH. A. S. YADAV SPECIAL JUDGE : DELHI
C C No. 07/03
State V/s Lakhmi Chand s/o Sh. Hari Singh,
r/o 320/29, Patel Nagar, Sonepat
Haryana.
F. I. R No. : 48/01
Under Section : 7/13 of Prevention of Corruption Act,
and U/s 420/468/471 IPC.
Police Station : Anti Corruption Branch
Date of Institution 22.1.2003
Judgment reserved on 24.2.2010
Judgment delivered on 26.2.2010
JUDGMENT
Accused Laxmi Chand in August 2001 was posted as UDC in the office of SDM Model Town, Delhi. He demanded bribe of Rs. 500/- from complainant Deepak Jalvi ( PW8 ) for issuing a Surviving Member Certificate. The complainant was against giving of bribe. He went to Anti Corruption Branch and there he gave his complaint Ex. PW8/A to Raid Officer Insp. N. S. Minhas ( PW20) in presence of panch witness Z. A. Khan ( PW10).
2 The gist of the complaint was that Sh. Ravinder Kumar Jalvi elder brother of the complainant died in a road accident on 2 18.3.2001. In order to claim money of insurance etc in respect of his deceased brother Surviving Member Certificate was required and an application was submitted in the office of SDM in April 2001 for the same but despite visiting the office of SDM number of times the said certificate was not issued though as per the government order the same should have been issued within 21 days. On 17.7.2001 complainant met accused in respect of the aforesaid certificate. However accused told complainant that he would issue the certificate to his sister in law. Complainant told accused that job of his sister in law is temporary and she could not get leave. However accused was adamant and under duress the sister in law of the complainant took leave and the complainant and his sister in law went to accused but despite of that the certificate was not issued rather bribe of Rs. 500/- was demanded. Complainant refused to pay Rs. 500/-. Accused declined to issue the certificate without accepting bribe. Complainant told the accused that his young brother has died as such the family is passing through a difficult phase but all that did not move the accused at all. Complainant told the accused that he was not having sufficient money. Thereafter accused told the complainant that he could give for the time being whatever he has and thereafter he would prepare his certificate and he would issue the certificate after receipt of balance payment. On 22.8.2001 under compulsion complainant paid Rs. 200/- to the accused and accused asked him to come on 27.8.2001 in between 10.00 to 11.00 AM along with Rs. 300/-. The complainant went to Anti Corruption Branch and gave his complaint Ex. PW8/A. 3 3 The prosecution case further is that complainant brought with him Rs. 300/- i.e. 03 GC note of Rs.100/- each which he handed over to Raid Officer Insp. N. S. Minhas ( PW20 ) who got those notes checked through panch witness Z. A. Khan (PW10) and noted down their serial number in pre raid proceedings Ex. PW8/C. The GC notes were treated with phenolphthalein powder. The raid officer explained the purpose of treating the GC notes with phenolphthalein powder to the complainant as well as to the panch witness by giving a demonstration. Thereafter the GC notes were handed over to the complainant who kept the same in the pocket of his shirt. Panch witness was instructed to remain close with the complainant and to over hear the conversation between the complainant and the person demanding the bribe amount and to given signal by setting his hairs with his both hands after being satisfied that bribe had actually been given.
4 The prosecution case further is that at about 9.45 AM raid officer, complainant, panch witness Insp. M. S. Sangha along with other members of raiding team left Anti Corruption Branch for SDM Office Rampura in a government vehicle and reached there at about 10.10 AM. The government vehicle was left at some distance away from SDM office. Insp. M. S. Sangha and driver remained in that vehicle. The complainant and panch witness were sent inside the office of SDM and they entered in room no. 8 of SDM office and raid officer along with remaining members of raiding party followed them 4 and took their suitable positions. At about 10.40 am complainant and panch witness came out from the room and started walking towards the gate. Investigating Officer inquired from them as to what happened. Complainant informed the Raid Officer that Laxmi Chand told him that SDM was on leave and complainant would have to come on next day and when he showed his inability to come on next day Laxmi Chand asked him to come at 3.30 PM and told him that he would get the certificate signed from the residence of SDM. 5 The prosecution case further is that at about 3.00 P M complainant and panch witness were again briefed and sent inside the office of SDM and they entered in room no. 8 at 3.10 PM. At about 3.30 PM raid officer received pre determined signal from the panch witness and he along with raiding team reached inside the room no. 8 of SDM office. Panch witness informed him that accused Laxhmi Chand demanded and accepted the bribe money of Rs. 300/- from the complainant with his right hand and kept the same in left pocket of his T. Shirt. Raid officer challenged the accused that he had taken the bribe of Rs. 300/- from the complainant and offered her search as well as search of members of raiding team before taking the search of accused but accused refused to do the same. Accused became perplexed and dropped some paper after crushing the same. On his directions panch witness recovered the bribe amount of Rs. 300/- from the left pocket of T. Shirt of accused and compared sr number of those recovered GC notes with the sr number mentioned in 5 pre raid report Ex. PW8/C which tallied. Those recovered GC notes were taken into possession vide seizure memo Ex. PW8/E. The right hand wash of accused and wash of left pocket of his T. Shirt was taken separately in colourless solution of sodium carbonate which turned pink and the solution was transferred in four small bottles. The bottles were thereafter sealed with the seal of NSM. Marked paper slips RHW-I-II and TSLPW-I II were pasted on those bottles after obtaining the signature of panch witness and complainant thereon. The T. Shirt of accused was taken off and converted into pulanda and sealed with the same seal. Raid Officer prepared the sample seal and the bottles, sample seal and pulanda of pant were taken into possession vide memo Ex. PW8/F. Raid Officer seized the paper which was crushed by the accused vide memo Ex. PW20/A. The crushed paper was Surviving Member Certificate which is Ex. PW10/A. The original Surviving Member Certificate Ex. PW10/B was also seized by Raid Officer vide memo Ex. PW8/G. Raid Officer drawn the post raid proceedings Ex. PW8/D and prepared rukka Ex. PW9/D. 6 The prosecution case further that thereafter raid officer called Insp. M. S. Sangha ( investigating officer ) at the spot and handed over to him the custody of accused, case property, recovered GC notes of Rs. 300/- exhibits of case seizure memo and copy of raid report. Investigating officer prepared site plan Ex. PW9/A at the instance of complainant and panch witness. He seized one register 6 Ex. PW3/A vide memo Ex. PW3/B from Sh. N. S. Bhardwaj Head Clerk of SDM Office. He arrested the accused vide arrest memo Ex. PW9/B and taken his personal search vide memo Ex. PW9/C. Thereafter accused was lodged in lockup of PS Civil lines and Investigating Officer deposited the case property with MHCM PS Civil Lines. On the next day Investigating Officer interrogated the accused and recorded his disclosure statement Ex. PW5/A and in pursuance of disclosure statement accused got the round stamp of SDM office and stamp of " J. N. Kataria, SDM, Model Town, Delhi " recovered from the drawer of a table lying in the office of SDM. During the course of investigation it was found that the accused has forged the certificate Ex. PW10/B and Ex. PW10/A-1. ( two copies were prepared ) by appending the signature of Sh. J. N. Kataria , SDM Model Town, Delhi. After that he was transferred and further investigation of the case was conducted by Insp. H. N. Meena who obtained the specimen hand writing and accused Laxhmi Chand. During the course of further investigation Investigating Officer sent the Surviving Member Certificate and specimen hand writing of accused to FSL Malviya Nagar for comparison along with exhibits of the case and later on he received FSL report Ex. PW18/A and PW18/A1. He sent a request for obtaining sanction u/s 19 of Prevention of Corruption Act, and received sanction order Ex. PW15/A. After completion of investigation he filed the challan in the court.
6 After complying with the provisions of Section 207 Cr. P. 7 C. and after hearing the Ld. Addl. PP for the state and ld. Counsel for accused charges were framed against the accused.
7 In order to prove its case prosecution examined twenty witness.
8 Thereafter statement of accused was recorded u/s 313 Cr. P. C wherein he denied about the demand and acceptance of the bribe amount. He claimed to be innocent and falsely implicated in this case.
9 I have heard Sh. D. S. Pawaria Ld. counsel for accused and Sh. Alok Saxena Ld. Addl.PP for State .
10 The first point for consideration is that whether the sanction was properly accorded for prosecution of accused. In order to prove sanction prosecution examined Sh. Kailash Chandra ( PW 15 ) who deposed that on 17.12.2002 he was posted Dy. Commissioner North West Kanjhwala Delhi and he received request from Anti Corruption Branch along with copy of FIR, raid report , seizure memo, statements recorded u/s 161 Cr. P. C. and report of FSL to grant sanction u/s 19 of Prevention of Corruption Act, 1988 to prosecute accused Laxmi Chand . He further deposed that he had gone through the documents placed before him very carefully and applied his mind and after examining the facts and circumstances of the case he was 8 of the view that accused Laxmi Chand should be prosecuted and being competent authority to remove the accused he accorded sanction. He denied the suggestion that he accorded the sanction in mechanical manner without application of mind. He denied the suggestion that he received draft sanction order. It was no where suggested to him that he was not competent to accord sanction. It is proved beyond doubt from his statement that he accorded the sanction after due application of mind. Reference is placed on case State of Maharashtra and ors V/s Ishvar Piraji Kelpatri & ors. 1996 Cri. L. J. 1127, where Hon'ble Supreme Court had laid down that if the Authority according sanction makes statement that while signing the order of sanction, it had personally scrutinised the file and had arrived at required satisfaction , it is not necessary to look for, that there was application of mind or not or that material on record was examined by the concerned officer or not before according sanction, especially when order prima facie shows that, he had done so. In the case C. S. Krishnamuthy V/s State of Karnataka, 2005 IV AD (SC) 141, the Apex court in para 7 of the judgment has held as under:-
This sanction order was proved by Mr. V. Parthasarthy, Deputy General Manager of Bangalore Telecom as PW 40 , he was competent authority to accord sanction and he accorded the sanction for prosecution of accused for the alleged offence on 28th February, 1990 as per Ex.P.83 . He deposed that S. P., CBI sent a report against the accused 9 and he perused the report and accorded the sanction as per Ex. P.83 . He deposed that he was satisfied that there was a case for prosecuting the accused for the alleged offence. He admitted that he received a draft sanction order and a draft sanction was also examined by vigilance cell and then it was put up before him. He also deposed that before according sanction he discussed the matter with the vigilance cell. He also admitted that he was not a law man, therefore, he discussed the legal implication with a legally qualified officer in the vigilance cell. He has denied the suggestion that he did not apply his mind in according sanction. It is no doubt true that the sanction is necessary for every prosecution of public servant, this safeguard is against the frivolous prosecuting against public servant from harassment. But the sanction should not be taken as a shield to protect corrupt and dishonest public servant
11 It is submitted by ld. counsel for the accused that in a trap case the prosecution is required to prove demand . It is submitted by him that complainant did not support the prosecution case at all and even panch witness no where deposed that accused demanded the bribe amount.
12 On the other it is submitted by ld. Addl. PP for the state that though the complainant turned hostile but it is proved beyond doubt from the statement of panch witness that accused accepted the bribe amount from the complainant and it is proved beyond doubt 10 from the statement of panch witness and Raid Officer that bribe amount was recovered from the left pocket of his T. Shirt. 13 It is significant to note that complainant ( PW8 ) specifically deposed that in 2001 his brother Ravinder Kumar had expired in a road accident and his sister in law has applied for the certificate in the office of SDM but the certificate was not issued despite visiting the office of SDM number of times. Thereafter he did not support the prosecution case hence he was cross examined by ld. Addl. PP and when he was cross examined by Ld. Addl. PP he stated that complaint Ex. PW8/A bears his signature at point A. He further stated that complaint Ex. PW8/A is in his hand writing and his elder brother died in road accident on 18.3.2001. However he denied about the demand of bribe by the accused. He further stated that his statement was recorded by the Investigating Officer . However he stated that his statement was recorded by the Investigating Officer of his own and his signatures were obtained on blank papers. When he was cross examined by defence counsel he stated that complaint Ex. PW8/A was written by him on the dictation of Raid Officer at PS. 14 It is evident that this witness had been won over by the complainant that is why he deposed that complaint Ex. PW8/A was written by him on the dictation of Raid Officer. There was no question of complaint Ex. PW8/A being written by the complaint on the dictation of the Raid Officer. It is significant to note that where was 11 the occasion for the Raid Officer to know that Ravinder Kumar, elder brother of complainant died in road accident on 18.3.2001. Where was occasion for him to know that sister in law of the complainant had applied to the office of the SDM for Surviving Member Certificate to obtain insurance claim etc ? Where was the occasion for the Raid Officer to know that the accused is working as UDC in the office of SDM Model Town and complainant had met him ? The complaint Ex. PW8/A is admittedly in the hand writing of the complainant. There is no doubt left that complaint Ex. PW8/A was written by the complainant in his own hand writing in Anti Corruption Branch before proceeding for raid. Bare reading of the complaint would reveal that there was no occasion for the Raid Officer to know about the details enumerated in the complaint.
15 Panch witness categorically deposed that on 27.8.01 he was on duty as panch witness in Anti Corruption Branch. He along with the complainant and members of raiding party went to SDM office Model Town and met the accused and accused asked the complainant to come at 3.00 PM and thereafter at about 3.00 PM he along with the complainant went to the accused and thereafter accused took out certificate and gave to the complainant and complainant took out Rs. 300/- from his pocket and gave in right hand of accused who kept the same in left pocket of his shirt and thereafter he gave the pre determined signal. The Raid Officer inquired from him about the transaction and he informed him that accused had kept the 12 money in right pocket of his T. Shirt and on the instructions of Raid Officer he recovered the money from T. Shirt of the accused. Since he did not recollect about the demonstration given before starting for raid he was cross examined by ld. Addl. PP and in his cross examination by ld. Addl. PP he deposed about the demonstration given before going for raid. He identified the GC notes which the accused accepted and which were recovered from accused. He also identified the Surviving Member Certificate Ex. PW10/B which the accused handed over to the complainant and the same was taken into possession vide memo PW8/G. He also deposed that when Raid Officer challenged the accused accused crumbled the office copy of Surviving Member Certificate and threw the same on the ground and same was lifted from the ground by the Raid Officer and was taken into possession vide memo Ex. PW10/A and that office copy which was crumbled by the accused on the ground is Ex. PW10/A-1. No suggestion was given to the panch witness that when he met the accused along with the complainant accused did not ask him to come at 3.00 PM. No suggestion was given to him that accused did not hand over the certificate Ex. PW10/B to the complainant or the same was not taken into possession vide memo Ex. PW14/G. No suggestion was put to him that the office copy of the certificate which the accused was holding was not thrown by him on the ground after crumbling the same or that the same was not seized vide memo Ex. PW10/A. 13 16 Raid Officer Insp. N. S. Minhas ( PW2 ) also deposed that when he went to the room of accused on receiving pre determined signal panch witness told him that accused demanded and accepted the bribe amount of Rs. 300/- from the complainant with his right hand and kept the same in left pocket of his T. Shirt and thereafter he disclosed his identity and challenged the accused regarding demand acceptance of bribe amount from complainant accused became perplexed and dropped office copy of Certificate which was seized by him and thereafter he offered his search before taking the search of accused but accused refused to do so and thereafter on his instructions panch witness recovered the bribe amount from left T. Shirt pocket of the accused.
17 It is proved beyond doubt from the statement of panch witness that accused accepted the bribe amount from the complainant and kept the same in left pocket of his T. Shirt and handed over the Surviving Member Certificate Ex. PW10/B to the complainant. It is also proved that from the statement of panch witness and Raid Officer that bribe amount was recovered from left pocket T. Shirt of accused. It is also proved from the statement of panch witness and Raid Officer that when the accused was challenged by the Raid Officer he crushed the office copy of the certificate and throw on the ground and that office copy Ex. PW10/A-1 was taken into possession vide memo Ex. PW10/A. 14 18 It is submitted by ld counsel for the accused that in fact the bribe money was forcibly thrusted in the pocket of the accused and accused immediately took out the bribe amount and threw on the ground and same was recovered from the ground. I do not find any force in the submission of ld. defence counsel. It is significant to note that panch witness categorically denied the suggestion that Raid Officer forcibly put the money in the pocket of accused or that accused has pleaded as to why he was implicating an innocent person and thereafter accused had thrown the GC notes on the floor after taking out from his pocket. Raid Officer also denied the suggestion that he forcibly put the money in the pocket of accused and falsely implicated him. He also denied the suggestion that accused took out the money from his pocket and threw on the ground. Why would Raid Officer forcibly put the money in the pocket of the accused. Accused was not knowing the Raid Officer earlier to raid. There was no enmity between the Raid Officer and the accused. There was no occasion for the Raid Officer to forcibly put the money in the pocket of accused. It is proved beyond doubt from the statement of panch witness that accused voluntarily accepted the bribe amount after handing over the certificate to complainant and kept the same in the left pocket of his T. Shirt and thereafter that amount was recovered from left pocket of his T. Shirt by the panch witness in presence of the Raid Officer.
19 It is submitted by ld counsel for the accused that in fact 15 one Mr. Khanna was Tehsildar at the relevant time and on that day Tehsildar was sitting on the seat of accused and was doing some official work and at that time Investigating Officer Insp. M. S. Sangha entered in the room and caught hold of his collar and misbehaved with him and when accused intervened he was falsely implicated. It is submitted by ld. counsel for accused that Mr. O. P. Khanna ( PW12 ) categorically stated that he was manhandled by Insp. M. S. Sangha and when accused intervened he was falsely implicated in this case. In fact Mr. Khanna had no regard for the truth. Since he had retired from the service he deposed falsely in favour of accused. Is it possible for an Insp. to caught hold of a Sr. Officer like Tehsildar by his collar while he was sitting in his office. Why would the Insp. manhandle the tehsildar when he has nothing to do with the matter. It is further significant to note that statement of Mr. Khanna was recorded by the Investigating Officer u/s 161 Cr. P. C. The accused was arrested in his presence and he signed the arrest memo Ex. PW9/B on the day of raid itself and thereafter he was again joined in the investigation on 4.9.01 when he handed over the documents containing the admitted signatures of SDM J. N. Kataira and those documents were seized vide memo Ex. PW5/A1. If he was manhandled he would have definitely not joined the investigation on 4.9.01. The Investigating Officer would not join a person in the investigation whom he had manhandled. Panch witness categorically denied that Mr. O. P. Khanna was manhandled by the Raid Officer. The statement of Mr. O. P. Khanna was only to the effect that accused was arrested in his 16 presence vide arrest memo Ex. PW9/B and also the admitted hand writing of the then SDM Sh. J. N. Kataria was seized vide memo Ex. PW5/A1 and when he was cross examined by ld defence counsel he spoke about his manhandling by the Investigating Officer. Mr. O. P. Khanna in fact deposed against the prosecution because by the time he had retired. In fact he had respect for truth. He forget that accused was arrested while delivering the copy of Surviving Member Certificate and accepting the bribe amount and the bribe amount was recovered from the accused. It is proved beyond doubt that accused was dealing with the case of issuing of Surviving Member Certificate to the widow of deceased Ravinder Kumar. PW6 Chatarpal categorically deposed that on 10.7.2001 accused Laxhmi Chand had given the application of Smt. Sunita Jalvi along with affidavit and copy of ration card and he had gone to the area where she was residing and conducted inquiry and submitted his report Ex. PW6/A to the accused on 30.7.2001. His statement remained unchallenged regarding material fact. Similarly PW11 Sanjay Dhankar deposed that though the order was passed on 7.7.01 copy of which is Ex. PW13/B whereby he was assigned the duty of issuing the certificate. However charge was not handed over to him by the accused. It is proved that accused handed over the Certificate Ex. PW10/B to the complainant while accepting the bribe amount. It is proved from the statement of panch witness that whey they met the accused in his office on 27.8.2001 accused asked the complainant to come next day as the SDM was on leave and thereafter complainant requested the accused 17 to issue the certificate on the same very day and then the accused asked the complainant to come at 3.30 PM and when they went to the accused at 3.30 PM accused gave the certificate and accepted the money. So much was the greed of bribe on the part of the accused that even though the SDM was not there he forged his signature on the certificate Ex. PW10/B and Ex. PW10/A1 and handed over the same to the complainant. Accused made the disclosure statement while in custody and thereafter he got recovered the stamps which was used on the certificate. It is submitted by ld. counsel for accused that in fact before conducting raid the Raid Officer has not sought the permission of senior officers and in support of his contention he has referred to 1997 Criminal Law Journal 1670. The facts of that case were entirely different and the Hon'ble High Court of Allahabad has no where stated that in no case raid can be conducted without the permission of Sr. Authority. More over on that day SDM was on leave. Even PW 12 O. P. Khanna stated that SDM was on leave. O. P. Khanna being Tehsildar was next senior person and in his presence the accused was arrested and his signatures were obtained on the arrest memo Ex. PW9/B. 20 It is further submitted by ld defence counsel that prosecution has failed to prove the demand and in the absence of that mere acceptance of bribe amount has no relevance. He has referred to State of Maharashtra V/s Dnyaneshwar Laxhman Rao Wankhede 2009 ( 4 ) RCR (Criminal) 21. The facts of that case were 18 entirely different. The panch witness who was witness to the transaction died during the pendency of matter and no other witness was available to prove the prosecution case and also the complainant went to the house of the accused and it was held that if accused intended to take the amount he would have accepted the same in his house itself and there was no reason to ask the complainant and the witnesses to meet him at a public place that is near Veterinary Hospital. He also referred to V. Kannan V/s State Represented by Inspector of Police VII ( 2009 ) SLT Page 1. In that case it was held that prosecution is bound to prove demand and acceptance. There cant be any dispute about the preposition of law laid down by Hon'ble Supreme Court . He has also referred to A. Subair V/s State of Kerala ( 2009 ) ( 3 ) LRC 86. Again the facts of that case were entirely different. In that case the complainant was not examined and why it was not possible to tender him in evidence was not explained. It was held that in the absence of examination of complainant there was no substantive evidence to prove factum of demand. He has also referred to case of Meena V/s State of Maharashtra 2000 ( 2 ) RCR ( Criminal ) 661. In that case allegations against the accused was that she accepted bribe of Rs. 20/- from the complainant. In that case the bribe amount was not recovered from the complainant but from the table and the lady constable who reached first after receiving the signal was not examined. Hence it was held that mere recovery of currency note of Rs. 20/- that too lying on the pad of table by itself cannot be held to be proper.
1921 Regarding demand it is useful to refer the case of M. Narsinga Rao V/s State of A. P. ( 2001 ) SCC 691 rendered by Three Judge Bench of Hon'ble Supreme Court . In that case complainant was to get some amount from Andra Pradesh Dairy Development Corporation for transporting milk to the milk chilling center and appellant was the manager of chilling center. Appellant demanded a bribe of Rs. 500/- from the complainant for sending the recommendation in favour of the complainant for payment. Appellant was caught red handed while accepting the bribe amount. During trial complainant and panch witness turned hostile. Complainant denied having paid any bribe to the appellant and also denied that appellant demanded the bribe amount. However the appellant was convicted by the ld. Spl. Judge and conviction was up held by Hon'ble High Court and Hon'ble Supreme Court. The scope of presumption under section 20 of Prevention of Corruption Act was discussed in detail. It is useful to refer to para no. 8, 14 and 17 as under
8 Mr. L. Nageshwara Rao, learned counsel for the appellant adopted a twin contention. first is that the presumption under section 20 of the Act could be drawn only when the prosecution succeeded in establishing with direct evidence that the delinquent public servant accepted or obtained gratification. That premise cannot depend on an inference for affording foundation for the legal presumption envisaged in Section 20 of the Act, according to the learned counsel. The second limb of his contention is that it is not enough that some currency notes were 20 handed over to the public servant to make it acceptance of gratification. Prosecution has a further duty to prove that what was paid amounted to gratification, contended the counsel.
14 When the sub-section deals with legal presumption it is to be understood as in terrorem i.e in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification.
The section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act.
17 Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the court can draw an inference and that would remain 21 until such inference is either disproved or dispelled. It was further held that from the proved facts court can legitimately draw a presumption that appellant received or accept the currency notes of his own volition. In that case also both the complainant and the independent witness turned hostile yet the Hon'ble Supreme Court held that from the proved facts court can legitimately draw an inference. The proved facts in this case are that complainant went to Anti Corruption Branch and gave complaint Ex. PW8/A. Raid was organized. Accused accepted the bribe amount from the complainant and kept the same in left pocket of his T. Shirt. Accused handed over the Certificate Ex. PW10/B to the complainant. The certificate was recovered from the complainant. Accused was holding the office copy of certificate i.e. Ex. PW10/A1 and that copy of certificate was thrown by him on the ground and it was picked up from the ground after crumbling and seized vide memo Ex. PW10/A. It is also useful to refer to case of Kishan Chand Mangal V/s State of Rajasthan 1983 Crimes 20 ( SC ). In that case accused/appellant visited the factory of complainant Rajinder Dutta on 20.11.1974 and demanded the bribe but Rajinder Dutta died before trial and it was contended that in the absence of complainant the prosecution has failed to prove that bribe was demanded by the accused from Rajinder Dutta on 20.11.74. The Hon'ble Supreme Court held as under:-
If appellant did not visit the factory of Rajendra Dutt on November 20,1974, and made no 22 overtures, demanding the bribe, on what rational hypothesis can one explain the visit of Rajendra Dutta to the office of Dy. S. P. ACD on November 22, 1974 his producing currency notes worth Rs. 150/- a superior officer like the Dy. S. P. ACD making all arrangements for the trap and the raiding party gong to the house of the accused on November, 22 1974. The visit of Rajendra Dutt soon followed by the raiding party at the house of the accused on November 22, 1974, is admitted. Coupled with this, the fact that Keshar Mal, PW2 in his evidence stated that after Rajendra Dutt entered the room in which appellant was sitting, Rajendra Dutt on entering the room asked the appellant, 'Hello, how do you do'. He further stated that the appellant replied, ' I am sick and suffering from cold'. He deposed that thereafter the appellant asked, 'Have you brought the money', whereupon complainant Rajendra Dutt replied, 'Yes, I have brought the money'. He further stated that thereafter Rajendra Dutt took out the amount of currency notes from his diary and gave the same to the appellant who took the amount and kept it under the pillow on the cot. If there was no prior demand the subsequent events remain explained as also the demand as deposed to by PW2 Kesar Mal.
22 Once it is proved that the tainted currency notes were recovered from the accused then it was for him to explain that money received by him was not illegal gratification. Here it is useful to refer to Three Judge Bench of Hon'ble Supreme Court in Raghubir 23 Singh V/s State of Haryana AIR 1974 SC 1516 wherein it was held that the very fact that the accused was in possession of marked currency notes against the allegations that he demanded and received the amount is 'res ipsa-loquitur." 23 It is submitted by ld defence counsel that mere recovery of the GC notes has no relevance. In Sita Ram V/s State of Rajasthan AIR 1975 Supreme Court 1432 and Surajmal V/s State AIR 1979 Supreme Court 1408 it was held that mere recovery of GC notes has no relevance. The matter regarding presumption u/s 20 of the Prevention of Corruption Act came up before the Four Judge Bench of Hon'ble Supreme Court in case of Dhanwant Rai Balwant Rai Desai V/s State AIR 1964 Supreme Court 575 considered this fact and held as under:-
Therefore, the court has no choice in the matter, once it is established that the accused person has received a sum of money which was not due to him as a legal remuneration. Of course, it is open to that person to show that though that money was not due to him as legal remuneration, it was legally due to him in some other manner or that he had received it under a transaction or an arrangement which was lawful. The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the 24 accused is reasonable and probable. It must further be shown that the explanation is a true one. The words ' unless the contrary is proved ' which occurs in this provision make it clear that the presumption has to be rebutted by ' proof ' and not by a mere explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted. Something more than raising a reasonable probability, is required for rebutting a presumption of law. The bare word of the appellant is not enough and it was necessary for him to show that upon the established practice his explanation was so probable that a prudent man, ought in the circumstances, to have accepted it."(emphasis supplied ).
24 It is further significant to note that the accused was dealing with the matter. Accused made entry at page No. 112 of register Ex. PW3/A which was seized by the Investigating Officer vide memo Ex. PW3/B. The application of Smt. Sunita Jalvi i.e. sister in law of the complainant was entered in this register by the accused in his own hand writing and it is proved from FSL result that this entry was made in the hand writing of the accused. Not only that accused forged the signature of SDM J. N. Kataria on certificate Ex. PW10/A1 and Ex. PW10/B. In fact he prepared these certificates. It is proved 25 from the FSL report Ex. P21/A duly proved by Sh Amilal ( PW21 ) Sr. Scientific Assistant ( documents ) that accused is the author of these forged certificates. The hand written portion including the signature on these certificates are in the hand writing of the accused. It is useful to refer to case of Ramanathan V/s State of Tamil Nadu AIR 1978 SC 1204 where it was held that court would not be justified in rejecting the opinion of expert who has examined the markings under comparison.
25 It is submitted by ld defence counsel that during investigation the Magistrate has no power to direct the accused to give specimen signature. He has referred to case of State of Haryana V/s Jasbir Singh and another 2003 Criminal Law Journal 5054 as well as Rakesh Bisht V/s CBI 1 ( 2007) DLT 103 ( Criminal). Here in this case the specimen hand writing of the accused was obtained by the Investigating Officer during investigation and there is no bar that Investigating Officer cannot obtain the specimen hand writing of the accused during investigation and if the accused is asked to give specimen hand writing it does not violate Article 20 ( 3 ) of the Constitution. This aspect was considered by the Full Court i.e. 11 Judges of the Hon'ble Supreme Court in case of State of Bombay V/s Kathi Kallu Oghad AIR 1961 Supreme Court 1808 where it was held that if the specimen hand writing is taken from accused while he was in custody it does not violate article 20 (3 ) of the constitution. More over in this case the specimen hand writing of 26 the accused was taken in presence of independent panch witness Y. K. Chadha ( PW7) and no suggestion was given to him that any force was used on the accused while obtaining specimen hand writing. 26 It is proved beyond doubt that accused forged the certificate Ex. PW10/B and Ex. PW10/A1 and he handed over the certificate Ex. PW10/B to the complainant while accepting the bribe amount.
27 It is further submitted by ld defence counsel that complaint Ex. PW8/A disclosed the commission of cognizable offence and it was mandatory for the police to record the First Information Report before conducting the investigation. He has referred to Kaku Singh and Others V/s State of Punjab 2008 ( 3 ) RCR Criminal, Ramesh Kumari V/s State 127 ( 2006) DLT 636 ( SC ) and Bijoy Singh and another V/s State of Bihar 2003 SCC ( Criminal ) 1093 and Ganesh Gajoi V/s State of Assam 2009 ( 4 ) LRC 145 ( SC ).
There can't be any dispute about the preposition of law laid down in the aforesaid cases. However it is not that the moment an information is received about the commission of cognizance offence the case is to be registered immediately. The police can always make preliminary inquiry before registration of the case. Here it is useful to refer to the case of Sanjay Poddar V/s CBI 103 ( 2003 ) DLT 801. In that case it was held by the Hon'ble High Court after referring to State of UP V/s Bhagwant Kishore Joshi 1964 Criminal Law Journal 140 (SC), P. 27 Sirajuddin V/s State of Madras 1971 Criminal Law Journal 523 ( SC ), State of Haryana V/s Bhajan Lal 1992 Criminal Law Journal 527 ( SC) that in the absence of any prohibition in the Criminal :
Procedure Code, express or implied it is open to the police officer to make preliminary inquiries before registering an offence and making a full scale investigation. In Sirajuddin 's case ( supra ) the Hon'ble Supreme Court while considering the case of registration of FIR against a public servant, was of opinion that before an FIR is lodged against such an individual there must be some suitable preliminary investigation of the allegations made by the responsible officer . The Hon'ble Supreme Court warned the danger of registering an FIR straight way as " such a report would do in calculable harm not only to the officer in particular but the to department he belong. "
28 In this case only a complaint regarding the demand of bribe was there before the Anti Corruption Branch . The raid was conducted by the Raid Officer and once the named official was caught red handed while accepting the bribe amount the rukka was sent by the Raid Officer to the Anti Corruption Branch for the registration of the case and thereafter the case was registered. Thereafter the investigation was carried out by the Investigating Officer .
In view of the above discussion, I am of the view that prosecution is able to prove its case against accused Lakhmi Chand u/s 7/13 of Prevention of Corruption Act, 1988 and u/s 468 IPC 28 beyond all reasonable doubt. Accused Lakhmi Chand is accordingly held guilty and convicted for committing offences U/s 7 and 13 (1 ) (d) punishable U/s 13 (2 ) of Prevention of Corruption Act, 1988 and u/s 468 IPC. No case is made out against the accused u/s 420 IPC. Let he be heard on the point of sentence.
Announced in the open court on this 26th February , 2010.
( A. S. YADAV ) SPECIAL JUDGE DELHI 29 IN THE COURT OF SH. A. S. YADAV SPECIAL JUDGE : DELHI C C No. 07/03 State V/s Lakhmi Chand s/o Sh. Hari Singh, r/o 320/29, Patel Nagar, Sonepat Haryana.
F. I. R No. : 48/01 Under Section : 7/13 of Prevention of Corruption Act, and U/s 420/468/471 IPC.
Police Station : Anti Corruption Branch ORDER ON SENTENCE
I have heard Sh. Alok Saxena Addl. Public Prosecutor for the State and D. S. Pawaria, Advocate for the convict (who is present on bail) on the point of sentence.
2 Ld. counsel for the convict submits that the convict is aged 43 years and has wife and two school going children to support and he is the sole bread earner of his family. It is prayed that a lenient view be taken on the point of sentence. 3 It is submitted by ld. Addl. PP for state that during the cross examination of Raid Officer it has come that convict is also involved in other case of issuance of bogus ST certificates. During the 30 course of arguments it is admitted that a charge sheet has been filed in that case and convict has been charged in that case. It is submitted by ld. counsel for convict that he is wrongly charged in that case and appeal is pending in the court of Learned ASJ against charge. It is further submitted by ld. counsel that court cannot take cognizance of that case while hearing arguments on the point of sentence as it is not a case of previous conviction. It is further submitted by him that accused is not a previous convict. Ld. Addl. Public Prosecutor states that the convict does not deserve any leniency because there is rampant corruption amongst public servants and to curb this evil, deterrent punishment should be imposed.
4 After having heard both the sides and upon perusal of the record, I find that it is difficult to accept the prayer of the convict that a lenient view be taken in this case as he has demanded the bribe for issuance of Surviving Member Certificate which was required by the widow and her kids as her husband expired in an accident and he issued the certificate after forging the signature of SDM through the SDM was on leave on that day. Corruption is rampant in this country, that it requires all possible measures to remove the same from the polity. Today, it seems that honesty is a very rare need. Very few person muster the courage to report the matter regarding demand of bribe. Otherwise, under compulsion they are forced to pay the same. With the result, bribe takers virtually have no fear. No leniency is to be shown to such offenders.31
5 Keeping in view the facts and circumstances of this case, I sentence convict Laxhmi Chand s/o Sh. Hari Singh to undergo RI for a period of three and half years and a fine of Rs. 10,000/- (Rs. ten thousand) u/s 7 of the Prevention of Corruption Act, 1988 and in default of payment of fine, convict shall undergo RI for a period of six months. Convict is further sentenced to undergo RI for a period of three and half years and a fine of Rs. 10,000/- (Rs. ten thousand) u/s 13 (2) of the Prevention of Corruption Act, 1988 and in default of payment of fine, convict shall further undergo RI for a period of six months. Convict is further sentenced to undergo RI for a period of three years and a fine of Rs. 10,000/- (ten thousand ) u/s 468 IPC and in default of payment of fine to undergo further RI for a period six months. All the sentences shall run concurrently and the convict shall be entitled to benefit under section 428 Cr. P.C. 6 A duly attested copy of the judgment and this order be supplied to the convict free of costs and thereafter file be consigned to the record room.
Announced in the open court on this 2nd day of March 2010 ( A. S. YADAV ) SPECIAL JUDGE DELHI 32