Delhi District Court
Cbi vs Sunder Lal Sharma S/O Tulsi Ram Sharma on 4 May, 2010
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE (EAST) cum
SPECIAL JUDGE (CBI), KARKARDOOMA COURTS, DELHI.
AC No.02/04
FIR No.RC DAI2003A0038
Under Sec. Sec.7 and 13(2) r/w Sec.13(1)(d) of PC Act.
CBI Versus Sunder Lal Sharma S/o Tulsi Ram Sharma
R/o H51A, Gali No.2, West Karawal Nagar,
Delhi110094.
Date of Institution : 13.01.2004
Date of reserving the order : 15.04.2010
Date of order : 04.05.2010
JUDGMENT
The accused Sunder Lal Sharma (on bail) has been sent to face trial by the Anti Corruption Branch of the CBI, for the offences punishable under Section 7 and 13(2) read with Section 13(1)(d) of PC Act. 2 Briefly stating, the facts of the case are that a written complaint dated 4.7.2003, Ex.PW3/A was made by Shri Sunil Gupta (PW3) (hereinafter shall be referred as complainant) to the CBI to the effect that accused demanded a sum of Rs.500/ as illegal gratification for releasing the commission on the amount of Rs.1.75,000/, deposited by him at Laxmi Nagar Market Post Office on 2.7.2003, on behalf of SAS Agency of his wife, Suman Gupta. The case was registered on 4.7.2003 vide FIR, Ex.PW8/DB and then, the complaint was entrusted to Insp.Amrik Raj (PW8) for investigation. 3 Insp.Amrik Raj (PW8) constituted a trap team, consisting of himself, Insp.Tej Prakash, Insp.S.S. Bhullar, independent witnesses, S/Shri Dharampal (PW9) and K.C. Thukral (PW6) along with the other subordinate staff. AC No.2/2004 CBI Vs. Sunder Lal Sharma Page 1 of 29 The numbers of five GC notes of the denomination of Rs.100/ each, Ex.P1 to Ex.P5, were noted down in the handing over memo, Ex.PW3/BS and the same were treated with phenolphthalein powder. The GC notes were kept in the left side pant pocket of the complainant (PW3) and he was directed to hand over the said money to the accused only on the specific demand of the accused about the bribe. The independent witness, Shri Dharampal (PW9) was directed to act as shadow witness and was also directed to give the signal after the completion of the transaction. A Samsung Digital Recorder was given to the complainant (PW3) for recording the conversation. The pretrap proceedings were recorded in the handing over memo, Ex.PW3/C. 4 The trap party along with the complainant (PW3) and the independent witnesses, left for Laxmi Nagar Market Post Office at about 4.00 PM and reached there at about 4.30 PM. The complainant (PW3) along with the shadow witness, Dharampal (PW9) entered the office of the accused. The rest of the trap team suitable positions outside the post office. At about 4.45 PM, the shadow witness Dharampal (PW9) came out of the post office and gave the pre appointed signal upon which, the trap team rushed inside the office of the accused. In the office, the shadow witness Dharampal (PW9) pointed out towards the accused stating that he had demanded and accepted the bribe amount of Rs.500/ from the complainant (PW3) with his right hand, counted them by both his hands and had kept them in his left hand. The accused was challenged by Insp. Amrik Raj (PW8) for accepting the bribe of Rs.500/ from the complainant (PW3), which the accused denied. The accused was caught hold by both of his wrist. The hands of the accused were washed in the solution of sodium carbonate which turned into pink. The solutions were put into glass bottles, Ex.P6 and Ex.P7, sealed, wrapped with clothes, Ex.P11 and Ex.P12 and marked as LHW, Ex.P9 and RHW, Ex.P8. The search of table, drawers and AC No.2/2004 CBI Vs. Sunder Lal Sharma Page 2 of 29 rack of the accused was taken and the independent witness, K.C. Thukral (PW6) recovered the bribe amount of Rs.500/ from the shelf beneath the files. Separate wash of the file cover, Ex.PW9/A was taken which also turned pink. The solution was put into glass bottle, Ex.P8 sealed, wrapped with cloth, Ex.P13 and marked as FCCW, Ex.P10.
5 The Samsung Digital Recorder was played and the conversation was transferred into two cassettes. Out of the two cassettes, one was sealed. The cassette is Ex.P7, the cover of the cassette is Ex.PW7A. The file, Ex.PW3/F containing the documents relating to the amount deposited by the agency of Suman Gupta was recovered from the table of the accused and then the same was seized. The file Ex.PW3/F contains the certificate, Ex.PW7/1 vide which Rs.250/ were paid to Smt. Suman Gupta. Vide payment slip, E.PW7/2 a sum of Rs.500/ was paid to Smt. Suman Gupta. Vide payment slip, Ex.PW7/3 a sum of Rs.1,000/ was paid to Smt. Suman Gupta. The transcription Ex.PW3/G of the cassette was prepared. The recovery memo, Ex.PW3/D was prepared at the spot. After use, the seal was handed over to the shadow witness, Dhrampal (PW9). The accused was arrested vide personal search cum arrest memo, Ex.PW6/C. A site plan, Ex.PW6/A of the place of bribe transaction was prepared.
6 On 5.7.2003, the cassette containing the conversation between the complainant (PW3) and the accused, was played which was identified. The transcription of the recorded conversations was prepared and a transcription cum voice identification memo, Ex.PW3/E was prepared. The audio cassette is Ex.P14, the cover of the cassette is Ex.P14A and the cloth wrapper is Ex.PW14/B (should be Ex.P14B). A specimen voice recording memo, Ex.PW6/B was prepared. The accused was produced in the court of Special Judge and was AC No.2/2004 CBI Vs. Sunder Lal Sharma Page 3 of 29 remanded to J/C. The further investigation of the case was assigned to SI Praveen Ahlawat (PW10).
7 SI Praveen Ahlawat (PW10) recorded the statements of the witnesses. The washes were sent to the CFSL by the SI. Shri C.L. Bansal, Sr. Scientific Officer, CFSL (PW1) examined the washes and gave the opinion vide his report, Ex.PW1/A. Dr. Rajinder Singh, Principal Scientific Officer, CFSL (PW2) conducted the voice examination of the recorded conversations and gave his opinion vide report Ex.PW2/A. 8 Shri Samar Nanda (PW4), Sr. Superintendent, Post Office, Delhi East Division, granted the sanction under Section 19 (1)(c) of the PC Act, Ex.PW4/A, for the prosecution of the accused, being public servant. 9 After completion of the investigation, the challan was put up in the court where the accused was supplied with the copies of the chargesheet and the documents of the CBI.
10 The charges were framed against the accused on 19.1.2005. Accused was charged for the offences punishable under Section 7 and 13(2) read with 13(1)(d) of PC Act, which reads as under :
"Firstly you Sunder Lal Sharma, being public servant while working as Sub Post Master, Laxmi Nagar Market Post Office, Delhi demanded bribe of Rs.500/ as illegal gratification other than your legal remuneration from the complainant Sh. Sunil Gupta son of P.R. Gupt r/o H.No. 138 J & K Block Laxmi Nagar Delhi for motive or reward for releasing the commission on the amount of Rs.1,75,000/ deposited by him at Laxmi Nagar Market Post Office on behalf of his wife's SAS Agency and you Sunder Lal Sharma demanded and accepted Rs.500/ at about 4.30 pm. On 4.7.03 at the office of Sub Post Master Laxmi Nagar Market Post Office and thereby you committed the offence under section 7 of PC Act 1988 and within my cognizance.
Secondly, you Sunder Lal Sharma while working in the above capacity on 4.7.03 at the abovesaid place and time by corrupt or AC No.2/2004 CBI Vs. Sunder Lal Sharma Page 4 of 29 illegal means or by otherwise abusing your position as public servant obtain the pecuniary advantage to the tune of Rs.500/ from Sh. Sunil Gupta and thereby committed an offence specified in section 13(1)(d) punishable under section 13(2) of PC Act, 1988 and within my cognizance."
11 Accused pleaded not guilty to the charges framed against his and claimed trial.
12 The prosecution has examined ten witnesses in support of its case. Out of those witnesses, PW3 Sh. Sunil Gupta is the complainant. PW6 Sh. K.C. Thukral and PW9 Sh. Dharampal are the independent public witnesses. PW1 Sh. C.L. Bansal examined the washes in CFSL. PW2 Dr. Rajender Singh examined the specimen voices with the voices recorded in the audio cassettes. PW8 Insp. Amrik Raj and PW10 SI Praveen Ahlawat were the investigating officers of the case. PW4 Sh. Samar Nanda, Sr. Superintendent Post Office, Delhi East Devision granted the sanction for the prosecution of the accused. PW5 Sh. D.R. Chauhan was posted as Sub Post Master and PW7 Sh. Umesh Pal was posted in Laxmi Nagar Post Office at the relevant period. 13 The statement of the accused was recorded under Section 313 Cr.PC. The accused has totally denied the present case against him. He has denied of any talk between him and the complainant and making demand of any percentage by him from the complainant. He has stated that the FIR against him as well as the reports of the scientific experts are false and baseless. The documents prepared by the CBI have been fabricated later on to implicate him in this case. He has denied even forming of any raiding party by the CBI. The accused has also denied taking of his any hand washes by stating that the same were planted on him later on. He has denied even of giving any sample voice by him. The sanction was granted mechanically without application of mind. The accused has taken the defence that the complainant was bearing grudge against AC No.2/2004 CBI Vs. Sunder Lal Sharma Page 5 of 29 him due to his strictly following the rules regarding dealing with postal agents. Earlier also, the wife of the complainant made complaint against him. As no action was taken against him on that complaint, the complainant started having enmity with him. She was also having grudge as the accused was entertaining the complainant. All the documents were prepared in the CBI office. No bribe was demanded by him, rather TDS and education cess amounting to Rs.500/ were due upon the wife of the complainant. The present case against him is false for which Suman Gupta, i.e., wife of the complainant has not been produced into the witness box.
14 The accused opted to lead evidence in his defence. The accused dropped the defence witness, namely, Ramesh Chand Madan, Sub Post Master without examining him. He has examined Shri Suresh Kumar, Public Relation Inspector, Krishna Nagar Head Post Office as DW2, who has stated that he has been authorized by his higher officers vide authority letter, Ex.DW2/A to appear in the court. He has stated that as per file No.CR9/218/0203, complaint, Ex.DW2/B was filed by Smt.Suman Gupta against the accused and thereafter, the reply, Ex.DW2/C to the same was given by Sub Post Master. 15 I have heard Shri S. Krishna Kumar, learned PP for the CBI as well as Shri Sanjay Gupta, learned defence counsel for accused. I have also carefully gone through their submissions and the record of the case. 16 The learned APP for the CBI has submitted that from the statements of the complainant and the independent public persons remained associates in the proceedings conducted by the investigating agency, the CBI has proved its case against the accused beyond reasonable doubt. He has further argued that being public servant, the accused has demanded and accepted the illegal gratification from the complainant. The learned APP has AC No.2/2004 CBI Vs. Sunder Lal Sharma Page 6 of 29 submitted that the accused may not be let free and that be convicted for the same.
17 On the other hand, the learned defence counsel for the accused has argued that the FIR against the accused has not been registered after making necessary inquiries, rather it has been lodged directly on the basis of the complaint made by the complainant. The wife of the complainant, namely, Smt.Suman Gupta, who was Postal Agent in the post office, has not been examined by the prosecution. There is no initial demand by the accused from the complainant. The accused had not demanded the percentage of the commission in the shape of bribe amount, rather the amount towards TDS/education cess was due towards Smt.Suman Gupta. The complainant paid Rs.500/ to the accused towards TDS/education cess, but due to previous enmity, he has been booked in the case of demanding bribe from the complainant. The bribe amount was not recovered from the possession of the accused, rather the same was lying beneath the file cover which create suspicion about the case of the prosecution. The FIR is ante time. The documents of seizure and the arrest of the accused have not been signed by him. The statements of the witnesses of the prosecution are contradictory to each other. The information of the arrest of the accused given to his known persons, has not been properly established by the prosecution. There is delay of about six days in sending the exhibits to the CFSL for analysis. The conversation taken place between the accused and the complainant, has not established the demand of bribe by the accused. 18 From the arguments advanced by either side, following questions arises for determination :
(I) Whether the sanction under Section 19 of the PC Act, obtained by the CBI for the prosecution of the accused persons, was defective or not?AC No.2/2004 CBI Vs. Sunder Lal Sharma Page 7 of 29
(II) Whether the accused is guilty for demanding and accepting the bribe amount and for abusing his official position as public servant?
(III) Conclusion. QUESTION (I) 19 It is argued on behalf of the accused that the sanction u/s 19 of
the PC Act, obtained in the present case, for the prosecution of the accused, was defective and invalid in law as the same has been given mechanically. On the other hand, learned APP for CBI has argued that the requisite sanction u/s
19 of the Act was obtained as per law for the prosecution of the accused, being public servants.
20 Section 19 of the Act deals with the sanction required for prosecuting the public servant. The said section reads as under:
"19.Previous sanction necessary for prosecution(1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction
(a) In the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) In the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) In the case of any other person, of the authority competent to remove him from his office."
21 Section 19 of the Act provides protection to an accused who happened to be public servant at the time of taking the cognizance by the court. The purpose of sanction u/s 19 of the Act to have the approval of the competent authority to remove the accused from the office, is just because that at the time of taking the cognizance, he was a public servant. In order to prove the sanction AC No.2/2004 CBI Vs. Sunder Lal Sharma Page 8 of 29 granted for the prosecution of the accused, the CBI has examined Shri Samar Nanda (PW4), Sr.Supdt., Post Office, Delhi East Division. He has stated in his statement before the court that on 25.11.2003, he was posted in the same capacity. The CBI submitted copy of FIR, statements of witnesses, CFSL report and documents before him. After carefully going through the same and applying his mind, he granted the sanction, Ex.PW4/A for the prosecution of the accused in the present case.
22 In the judgment of our own Hon'ble High Court in case titled Ram Chander Versus State (Govt. of NCT of Delhi) (Reported in 2009 Cri. L.J. 4058), it was observed that the sanctioning authority himself proved the sanction order by appearing as witness who has categorically deposed that he granted the sanction after going through the papers produced before him. Once the sanctioning authority has been produced in the court, unless there is anything brought on record which may vitiate the sanction order, the sanction order has to be taken as proved. The Hon'ble Court placed its reliance on the judgment of Hon'ble Supreme Court in the case titled R. Sundrajan Versus State (Reported in 2006 (12) SCC 749). In the present case, the CBI has produced the sanctioning authority, Shri Samar Nanda (PW4), the then Sr.Supdt., Post Office, Delhi East Division. He has proved the sanction order as Ex.PW4/A for prosecuting the accused. The perusal of sanction order dated 25.11.2003, Ex.PW4/A shows that the sanctioning authority after carefully examining the material i.e., FIR, statements of witnesses, handing over memo, recovery memo, CFSL report and other documents placed before him and after applying his mind, granted the sanction for the prosecution of the accused. The accused has not produced anything on the record to show that the sanctioning authority did not apply his mind while granting the sanction for his prosecution. The CBI has, therefore, successfully proved the sanction order Ex.PW4/A by AC No.2/2004 CBI Vs. Sunder Lal Sharma Page 9 of 29 producing the sanctioning authority in the court as PW4. Thus, it cannot be said that the sanction order u/s 19 of the PC Act, was defective or invalid in law and was obtained mechanically without applying the mind.
QUESTION (III) 23 To prove the allegations of demand and accepting the bribe amount, the CBI has led the evidence against the accused. Before dealing with the facts of the case, it is necessary to refer Section 7 and 13(1)(d) of Prevention of Corruption Act, 1988. The definition of the said Act reads as under : "7. Public servant taking gratification other than legal remuneration in respect of an official act Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine."
"13. Criminal misconduct by a public servant. (1) A public servant is said to commit the offence of criminal misconduct,
(a)..................................
(b)..................................
(c)....................................
(d) if he,
(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 AC No.2/2004 CBI Vs. Sunder Lal Sharma Page 10 of 29 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."
24 As per Section 7 of P.C. Act, 1988, it is necessary that at the time commission of offence, the accused should be a public servant and being public servant, he accepted/obtained from any person for himself or any other person any gratification other than legal remuneration as a motive or reward for doing or forbearing to do any official act for showing or forbearing to show, in exercise of his official function, favour or disfavour to any person or for any rendering or attempting to render any service or disservice to any person, shall be punishable.
25 Section 13(1)(d) of the P.C. Act, 1988, provides that it must be proved that the accused should be a public servant and he used some corrupt or illegal means or abused his position as public servant that he should have thereby obtained a valuable thing or pecuniary advantage for himself or any other person.
26 Now, we come to the facts of the present case. In this case, a complaint Ex.PW3/A was received in the CBI office. Thereafter, the FIR Ex.PW8/DB was lodged and the investigation of the case was assigned to Insp.Amrik Raj (PW8), who organized the trap team consisting of complainant (PW3), two independent public witnesses, namely, S/Shri K.C.Thukral (PW6) and Dharampal (PW9) and the CBI officials.
27 Our own Hon'ble High Court in case titled Ram Chander Versus State (Reported in 2009 Cri. L.J. 4058) has framed the guidelines in trap cases, as under : AC No.2/2004 CBI Vs. Sunder Lal Sharma Page 11 of 29
(i) To succeed in such a case, the prosecution is obliged to prove the previous demand of bribe, its acceptance and the recovery of tainted money;
(ii) The demand can be proved by the testimony of complainant as well from the complaint made by him, if proved in accordance with law;
(iii) However, if the complainant is unable to appear for whatever reason such as his death, the demand can be also proved by way of circumstantial evidence;
(iv) A presumption as to the demand of bribe can also be drawn if the tainted money i.e., the money tendered as bribe money is recovered from the possession of the accused, which presumption of course is rebuttable;
(v) However, if the explanation given by the accused about the recovery of such money is false, it may be taken as an adverse circumstance against the accused;
(vi) If the accused gives some defence, that can be scrutinized by the test of preponderance of probability while the prosecution must prove its case beyond reasonable doubt; and
(vii) However, if the explanation given is false, it may be used adversely against the accused and may strengthen the presumption under section 20 of the Act.
28 Keeping in view the legal position in mind, let us examine the case of the prosecution. The learned defence counsel has taken me through the statements of the witnesses of the prosecution and has pointed out various contradictions and discrepancies on the material points in their statements. 29 The complainant (PW3) made the complaint Ex.PW3/A in the CBI office to the effect that the accused was demanding bribe from him as well as from his wife, Smt.Suman Gupta, who was the postal agent in the police, to the tune of 10% out of the commission received by the postal agents. It has AC No.2/2004 CBI Vs. Sunder Lal Sharma Page 12 of 29 further been told to the complainant (PW3) by the accused that in case he would not pay the bribe to him, then further commission of the complainant would not be released to him. The complainant (PW3) was also examined before the court. In that statement, the complainant (PW3) has stated that his wife Smt.Suman Gupta is the agent in the Post Office Laxmi Nagar and he used to help his wife in that work. The accused was making demand of 10% out of 1% commission, awarded to the postal agents. The demand was made from the complainant (PW3) as well as from his wife for which he gave the complaint, Ex.PW3/A in the office of CBI, where Insp.Amrik Raj (PW8) met him. The inspector called the public witnesses, namely, S/Shri K.C. Thukral (PW6) and Dharampal (PW9). The complainant (PW3) gave five currency notes of Rs.100/ denomination each, the numbers of which were noted down and some powder was put on the currency notes. The currency notes were handed over to the complainant (PW3) and he kept the same in his pocket for handing over the same to the accused on his demand. The complainant (PW3) was required to give signal to the raiding party. Dharampal (PW9) was asked to accompany the complainant (PW3) and to give the signal after the payment being made to the accused. The voices of the independent witnesses were recorded in the cassette. Handing over memo Ex.PW3/B was prepared.
30 The complainant (PW3) has further stated that they left the CBI office at about 4 PM and arrived at Laxmi Nagar at about 4.30 PM. The tape recorder was handed over to him vide memo Ex.PW3/C. The complainant (PW3) along with Dharampal (PW9) went to the post office and met the accused. The accused asked the complainant (PW3) whether he had brought something, to which he asked the accused to reduce the amount, but he demanded Rs.500/. The complainant (PW3) handed over Rs.500/ to the accused which was taken by him with his right hand and counted the same with both the hands. AC No.2/2004 CBI Vs. Sunder Lal Sharma Page 13 of 29 Dharampal (PW9) went outside and thereafter CBI officer came there. The hands of the accused were washed in the liquid which turned pink and the said water was seized. Sh. K.C. Thukral (PW6) found the currency notes under the file cover lying in the rack. The number of the currency notes were tallied. The file cover was washed in the liquid which also turned pink and the said file cover was seized. The conversation was heard by CBI officers and the cassette was sealed. Recovery memo Ex.PW3/D was prepared.
31 Complainant (PW3) further stated that on 5.7.2003, transcription cum voice identification memo Ex.PW3/E was prepared. He further stated that one file, Ex.PW3/F containing the documents relating to amount deposited by his wife Smt. Suman Gupta was recovered from the office of the accused. The complainant (PW3) identified the currency notes, Ex.P1 to Ex.P5 as the same which were recovered from beneath the files. He identified the file cover, Ex.P6, beneath which the notes were recovered. The complainant (PW3) also identified the cassette, Ex.P7 and its cover Ex.PW7A and after hearing the conversation of the cassette, and has stated that the transcription Ex.PW3/G is according to the cassette. He has further stated that the accused was arrested. 32 The independent witness, Dharampal (PW9) has also made statement similar to the statement of the complainant (PW3). He has also narrated the facts as were deposed by the complainant (PW3) in his statement before the court. The other public witness, K.C. Thukral (PW6) has stated that at the time of conducting the raid, he remained outside the office of the accused along with the CBI team. On receiving the signal from Dharampal (PW9), he along with the CBI team went inside the office of the accused from where he was apprehended. He has also corroborated the statement of the complainant (PW3) and Dharampal (PW9) while making statement before the court. AC No.2/2004 CBI Vs. Sunder Lal Sharma Page 14 of 29 33 In the present case, the perusal of the complaint, Ex.PW3/A shows that there was no specific initial demand of bribe by the accused. The complainant (PW3) has not specifically mentioned in the complaint as to when the accused demanded the bribe from him and his wife, Smt.Suman Gupta for releasing of their further commission. It has also not been mentioned in the charge sheet as to when the accused made the initial demand of bribe from the complainant (PW3) or his wife. The complainant (PW3) and K.C. Thukral (PW6) have come out with a new story in their crossexamination by stating that the initial demand of bribe was made by the accused in the morning of 4.7.2003 when they had visited the office of the accused. Both the aforesaid witnesses have stated during their crossexamination that they had gone to the office of the accused on 4.7.2003 at about 11.00 AM where some conversation had taken place between the accused and the complainant (PW3) and then, the accused made the initial demand of bribe from him. Shri K.C. Thukral (PW6) has even went to the extent by stating that at that time, the CBI officials had handed over digital recorder to the complainant (PW3) and he was asked to record the conversation of the accused. Interestingly, it is not the case of the prosecution that the complainant (PW3) or K.C. Thukral (PW6) had ever visited the office of the accused in the morning of 4.7.2003. It is also not the case of the prosecution that the tape recorder was given to the complainant (PW3) in the morning of 4.7.2003 for recording the conversation between him and the accused. If any such conversation was ever recorded, then no explanation has been given by the CBI as to why the same has not been placed on record and withheld the material piece of evidence from the court. The chargesheet filed by the CBI, also do not demonstrate whether any such conversation was ever recorded. The main drawback of the case of the prosecution is that when the complainant (PW3) has specifically stated in his complaint, Ex.PW3/A that his wife, AC No.2/2004 CBI Vs. Sunder Lal Sharma Page 15 of 29 Smt.Suman Gupta is the postal agent and he only used to help her in that work. It has also been specifically mentioned in the complaint, Ex.PW3/A, by the complainant (PW3) that the accused had made the demand of bribe from him as well as from his wife. Still, the prosecution has not produced the wife of the complainant (PW3) into the witness box to corroborate his statement of demanding the bribe by the accused. In the absence of statement of material witness in the shape of Smt.Suman Gupta, i.e., wife of the complainant (PW3) from whom also the alleged demand of bribe was made by the accused and particularly when the corroboration has not come from her mouth, it cannot be said that actually the demand of bribe was made by the accused. In the case titled, Ram Chander Versus State (Govt. of NCT of Delhi) (Reported in 2009 (4) RCR (Criminal) 880), the Hon'ble Delhi High Court has observed in para 27 as under : "It has rightly been observed by the trial court that the genesis of a trap case lies in the previous demand of bribe by the accused from the complainant which becomes the basis of laying a trap by the Investigating Agency. Then it is for the Investigating Agency to again prove the demand at the time when the trap was laid and thereafter the question of acceptance and recovery of bribe money also is required to be proved beyond reasonable doubt." 34 The other aspect of the matter is that in the FIR, Ex.PW8/DB the date of suspected offence has been mentioned as 2.7.2003, whereas the date of registration of the FIR has been shown as 4.7.2003 at 1.30 PM. The investigating agency has not explained as to how it came to know about the suspected date of offence particularly when the complaint, Ex.PW3/A was given by the complainant (PW3) in the office of CBI only on 4.7.2003. In the said complaint, the complainant (PW3) has also not whispered a single word as to when the initial demand of bribe was made by the accused. It is also important to AC No.2/2004 CBI Vs. Sunder Lal Sharma Page 16 of 29 note that the complainant (PW3) as well as K.C. Thukral (PW6) have stated during their crossexamination that they left the CBI office on 4.7.2003 at about 11.00 AM and returned back at about 2.30 PM. The perusal of the FIR, Ex.,PW8/DB shows that it was registered at 1.30 PM. The prosecution has failed to explain the reason as to how the FIR was lodged at 1.30 PM when the complainant (PW3), on whose complaint the FIR was registered, was away from the office of CBI at the relevant time.
35 It is also pertinent to note that there is considerable delay in sending the copy of the FIR to the Special Judge. The FIR in the present case was registered on 4.7.2003 whereas its copy was sent to the Special Judge after about three days of its registration, i.e., only on 7.7.2003. The copy of FIR, Ex.PW10/DB bears the endorsement of the Special Judge which clearly shows that it was received by him on 7.7.2003 at 2.20 PM. In the absence of any plausible explanation on the part of CBI for not sending the copy of FIR to the Special Judge on time, it creates doubt about the date of registration of the FIR. It was the duty of the investigating agency to deliver the copy of FIR to the Special Judge within 24 hours of its registration, which it has failed to do so. While dealing with similar aspect, the Hon'ble Supreme Court in case titled, Baldev Singh and Anr. Versus State of M.P. (Reported in 2003 (1) RCR (Criminal) 860) has observed that the copy of the FIR registered at about 2.30 PM on 26.6.93 was sent to the Magistrate on 28.6.1993. The office of the Magistrate was situated at a distance of hardly 100 paces from the police station. It was further observed that no explanation is forthcoming why there was a delay of two days in forwarding the copy of the FIR to the area Magistrate. The possibility of the FIR being ante time and ante date can also not be ruled out. 36 The case of the prosecution is that after reaching the office of the accused, the complainant (PW3) and Dharampal (PW9) contacted him. At AC No.2/2004 CBI Vs. Sunder Lal Sharma Page 17 of 29 that point of time, the accused demanded the bribe of Rs.500/ from the complainant (PW3). In this regard, some conversation had taken place between the complainant (PW3) and the accused, which is allegedly heard by the independent witness, Dharampal (PW9). The said conversation was also recorded in the cassette, Ex.P7 given to the complainant (PW3) by the CBI. The said conversation was converted into transcription, Ex.PW3/G. The complainant (PW3) and independent witness, Dharampal (PW9) have also identified that conversation in cassette, Ex.P7 and have stated that the same had taken place between the complainant (PW3) and the accused on the day of incident and the transcription of the same is Ex.PW3/G. 37 The perusal of the transcription, Ex.PW3/G between the accused and the complainant (PW3) shows that the accused demanded a sum of Rs.500/ from the complainant (PW3). When the complainant (PW3) insisted the accused to settle the amount, then the accused said to him that the amount would be of TDS. The transcription, Ex.PW3/G nowhere shows that there was any demand of bribe towards the commission of 10% from the commission awarded to the postal agents. Rather, the accused was asking the complainant (PW3) to pay him the TDS which is due to him. The complainant (PW3) as well as the other independent public witnesses, namely, K.C. Thukral (PW6) and Dharampal (PW9) have also similarly stated that there was no demand of bribe by the accused, rather the accused was demanding the TDS from the complainant (PW3). The case of the prosecution is that the witness Dharampal (PW9) had accompanied the complainant (PW3) when he had gone to the office of the accused to deliver him the amount of Rs.500/. The witness Dharampal (PW9) has stated during his examinationinchief that at that time, the accused asked the complainant (PW3) "Mera Laye Ho" on which the complainant (PW3) requested the accused to reduce the amount to some extent by saying "Kuchch AC No.2/2004 CBI Vs. Sunder Lal Sharma Page 18 of 29 Kam Badti Kar Lo". Thereafter, the accused told the complainant (PW3) "Mere Paanch Sau Hi Bante Hai".
38 It is pertinent to note that the said witness Dharampal (PW9) has categorically admitted during his crossexamination that he could not hear the conversation between the accused and the complainant (PW3) clearly as he is having hearing problem. The witness, Dharampal (PW9) has also specifically admitted during his crossexamination that the accused did not make any specific demand of Rs.500/ as bribe from the complainant (PW3). The witness also admitted that the complainant (PW3) and the accused had discussed about some TDS/tax at the relevant time. It has also come on the record from the mouth of the independent witness, Dharampal (PW9) that in is presence, the accused had not made any specific demand of bribe of Rs.500/ from the complainant (PW3). From the said conversation, Ex.PW3/G and the statements of the witnesses, there is nothing an iota on the record to show that the accused was demanding Rs.500/ from the complainant (PW3) as bribe for releasing the further commission in his favour. Moreover, the transcription, Ex.PW3/G of the conversation between the accused and the complainant (PW3) also does not show about the existence of any demand of bribe by the accused from the complainant (PW3), rather it also shows that the accused was demanding the TDS/tax from the complainant (PW3). In this regard, the learned defence counsel has referred the judgment in case titled, V.Venkata Subbarao Versus State (reported in 2007(1) RCR (Criminal) 519), in which the Hon'ble Apex Court has observed that in the absence of proof of demand, the question of raising the presumption against the accused, could not arise. The other judgment relied upon by the learned defence counsel is in case titled, T.Subramanian Versus State of T.N. (reported in (2006)1 SCC 401). The Hon'ble Supreme Court has observed in the said case that if the accused offers reasonable and probable AC No.2/2004 CBI Vs. Sunder Lal Sharma Page 19 of 29 explanation based on evidence that the money was accepted by him, other than as an illegal gratification, he would be entitled to acquittal. In the present case also, the accused has offered the reasonable and probable explanation during the evidence that the amount received by him from the complainant (PW3) was not towards bribe, but the same was due towards the complainant (PW3) as TDS/tax. The witnesses of the prosecution have also not disputed the said defence of the accused. Therefore, it is held that the accused had accepted the amount of Rs.500/ from the complainant (PW3) as TDS/tax and not towards the bribe for releasing the due commission of the complainant (PW3). 39 The witnesses of the prosecution have stated that the alleged amount of bribe of Rs.500/ was given to the accused which he accepted from his right hand and thereafter, the said amount was recovered from beneath the file cover, Ex.P6 which was lying in the rack. The case of the prosecution is that after handing over the money to the accused, the witness, Dharampal (PW9) came out of the office and gave signal to the raiding party upon which the raid was conducted in the office of the accused. The accused was apprehended and the search of the alleged bribe money was started and the accused was made to stand in one corner of the room. The members of the raiding party made search of the alleged bribe money in every corner of the office of the accused. The story put forth by the prosecution is not acceptable as if the complainant (PW3) and the witness (PW9) have witnessed the acceptance of bribe money and keeping the same with him, then why both of them have not stated anything about the keeping of the money to the CBI team. If both of them had witnessed the acceptance of bribe by the accused, then it must be in their knowledge as to where the said bribe money was kept by the accused and must have told the same to the members of the CBI on their coming inside the office of the accused, which they have not done so. Apart from this, it is also admitted case of the AC No.2/2004 CBI Vs. Sunder Lal Sharma Page 20 of 29 prosecution that the alleged bribe money of Rs.500/ was not recovered from the possession of the accused. The prosecution has claimed that the amount of Rs.500/ was searched and then taken out by the witness, K.C. Thukral (PW6) from beneath the files. It is interesting to note that during his statement before the court, the witness (PW6) has nowhere stated and rather denied that the money was recovered by him from beneath the file. Similarly, the other independent witness, Dharampal (PW9) has also stated that he did not know as to who took out the money from beneath the files. The learned defence counsel has referred the judgment in case titled, State of Rajasthan Versus Mohan Lal (reported in 2009 (2) RCR (Criminal) 812). In the said case also, the currency notes smeared with powder were recovered from the almirah. No evidence was produced in the said case to show that how the currency notes smeared with powder reached in the almirah. Similarly, in the present case also, no evidence has come out to show that as to how the bribe money reached beneath the file cover which was lying in the rack.
40 The story of the prosecution is also not believable because of the fact that the alleged money was recovered from beneath the file cover, Ex.P6 which was lying in the rack towards the left side of the accused. It is admitted case of the prosecution that when the complainant (PW3) had visited the office of the accused, then he made himself to stand in the left side of the accused where the alleged file cover, Ex.P6 was lying. Therefore, the possibility of planting the alleged amount of Rs.500/ by the complainant (PW3) for false implication of the accused in the present case, cannot be ruled out. If the recovery of the bribe amount was not made from the person of the accused but was made from beneath the file cover, then much more clinching evidence was required to have been furnished by the prosecution, which the prosecution has failed to do so. In this regard, the learned defence counsel has referred the AC No.2/2004 CBI Vs. Sunder Lal Sharma Page 21 of 29 judgment in case titled, Har Bharosey Lal Versus State of U.P. (reported in 1988 Cri.L.J. 1122). In the said also, the money was not recovered from the person of the accused but from the drawer of his table. The Hon'ble Apex Court held that the possibility that somebody or the complainant himself might have kept the said note in the drawer of the accused, cannot be ruled out. 41 The further case of the prosecution is that after accepting the bribe amount of Rs.500/ with his right hand, the accused counted the notes with both his hands and that after his apprehension, both the hands of the accused were washed in the colourless solution of sodium carbonate which turned pink. The handwashes of the accused, marked RHW and LHW, were kept in the separate bottles, Ex.P8 and Ex.P9. On the other hand, the accused has claimed that the complainant (PW3) knowingly and deliberately transferred the phenolphthalein powder from his hands to his hands in the process of shaking his hands, to falsely implicate him in this false case. The witness, Dharampal (PW9) has specifically admitted during his statement before the court that on his coming to the office of the accused, the complainant (PW3) wished the accused by shaking hands with him. Thereafter, after having some talks, the complainant (PW3) handed over the amount of Rs.500/ to the accused allegedly quoted with phenolphthalein powder which is admittedly in the shape of TDS/tax. After receiving the said amount, the accused counted the said notes with both his hands and in the process, his both hands had come in contact with the aforesaid powder.
42 It is the case of the prosecution that there could not have been any powder on the hands of the complainant (PW3) as his handwashes were not taken in the office of the CBI. It has also not been stated by the complainant (PW3) himself in his statement before the court. In this regard, the accused has stated that while demonstrating the procedure in the office of CBI to the AC No.2/2004 CBI Vs. Sunder Lal Sharma Page 22 of 29 independent public witnesses, namely, K.C. Thukral (PW6) and Dhrampal (PW9), the phenolphthalein powder was quoted on the GC notes in the office of the CBI. Thereafter, the said GC notes quoted with powder, Ex.P1 to P5, were handed over to the complainant (PW3) for delivering the same to the accused in his office. The complainant (PW3) took the said notes from the CBI and kept the same in the pocket of his wearing pant. The chemical examiner, Shri C.L. Bansal (PW1) has admitted during his statement before the court that even very small quantity of phenolphthalein powder is enough to produce pink colour solution of sodium carbonate. Therefore, the possibility of presence of phenolphthalein powder on the hands of the complainant (PW3) cannot be ruled out which subsequently had come on the hands of the accused in the process of shaking his hands with him.
43 It is also pertinent to mention here that the location of taking out of the notes by the complainant (PW3) in the office of the accused, has been changed by the independent witness, Dharampal (PW9). According to the complainant (PW3) and the raiding officer, Insp.Amreek Raj (PW10) that the GC notes, Ex.P1 to P5 were kept by the complainant (PW3) in the right side pocket of his wearing pant. But during his statement before the court, the independent witness, Dharampal (PW9) who had accompanied the complainant (PW3) to the office of the accused, had stated that the GC notes, Ex.P1 to P5 were taken out by the complainant (PW3) from the left side pocket of his wearing pant, at the time of handing over the same to the accused. The statement of the independent witness, Dharampal (PW9) is contradicted by the handing over memo, Ex.PW3/B which also speaks that the powder quoted currency notes were kept by the complainant (PW3) in his right side pocket of the wearing pant. Thus, he has completely changed the location of the keeping of the GC notes, by the complainant (PW3).
AC No.2/2004 CBI Vs. Sunder Lal Sharma Page 23 of 29 44 The specimen voice of the accused, Ex.PW6/B was taken by the CBI on 5.7.2003 while he was in the custody of the CBI officials and thereafter, the transcription, Ex.PW3/G of the conversation taken place between the accused and the complainant (PW3), was prepared. Though, the conversation of the transcription, Ex.PW3/G had taken place between the complainant (PW3) and the accused but still, the prosecution has not made the complainant (PW3) as an attesting witness to the said transcription, Ex.PW3/G. The said transcription, Ex.PW3/G is only signed by the independent public witnesses, namely, K.C. Thukral (PW6) and Dharampal (PW9). The said document is also not bearing the signatures of any of the CBI officials including the raiding officer, Insp.Amreek Raj (PW8), what to say of the accused himself. The crossexamination of the raiding officer shows that though the transcription, Ex.PW3/G was got prepared by him, yet he is not the signatory to the same. He has not explained the reason for not putting his signature on the same. The prosecution has also failed to render any explanation for nonsigning the said document by the raiding officer, though got prepared by him. The record shows that the transcription cum voice identification memo, Ex.PW3/E and the specimen voice recording memo, Ex.PW6/B of the accused, prepared on 5.7.2003, also do not bear his signatures. The pubic witness, K.C. Thukral (PW6) has even went to the extent of saying that the transcription, Ex.PW3/G was not prepared in his presence and the same was already got prepared by the CBI officials. He has also stated that he was not made to hear the voices of the complainant (PW3) and the accused before signing the same. In the absence of signatures of the complainant (PW3), or the CBI officials or the accused on the document, Ex.PW3/G, it can safely be said that it is a fabricated document which was already got prepared by the CBI, in order to use the same against the accused.
AC No.2/2004 CBI Vs. Sunder Lal Sharma Page 24 of 29 45 The learned defence counsel for the accused has also taken me through the fact that the transcription, Ex.PW3/G and the report, Ex.PW2/A of the Examiner cannot be read against the accused as his specimen voice had not been obtained by the CBI with the prior permission of the court. He has relied upon the case reported in the case titled Rakesh Kumar Versus State (reported in 2004 (1) JCC 110) in which it was held by our own High Court that specimen handwriting of the accused for comparison by the accused cannot be taken without the permission of the court. In the present case, the raiding officer, Insp.Amreek Raj (PW8) has nowhere stated during his statement that he had taken the specimen voice of the accused with the prior permission of the court. He has also admitted that he had no such order with him of the court for taking the specimen voice of the accused, which makes the case of the prosecution doubtful. As per case of the prosecution, the GC notes were recovered from the office of the accused in his presence vide recovery memo, Ex.PW3/D. The perusal of the aforesaid document shows that it is a five pages documents and the CBI officials had not even cared to get it signed by the accused on any of its pages, in order to show the truthfulness of their case against the accused. The further investigating officer, SI Praveen Ahlawat (PW10) has admitted that "as per procedure, signature of a person is required to be obtained on seizure memo regarding seizure of any article from him". The CBI officials have not followed the said procedure in the present case which goes to show that it is false and fabricated case upon the accused.
46 The learned defence counsel for the accused has also disputed about the intimation of the accused after his arrest. It is the case of the prosecution that as per recovery memo, Ex.PW3/D, the intimation of the arrest of the accused was given to Shri Janardhan Singh, ASP (HQ), Senior Superintendent, Post Office, Karkardooma. The raiding officer, Insp.Amreek Raj AC No.2/2004 CBI Vs. Sunder Lal Sharma Page 25 of 29 (PW8) has falsified the recovery memo, Ex.PW3/D by stating in his cross examination that the intimation of the arrest of the accused was given to the family members of the accused whereas the personal search memo, Ex.PW6/C has been speaking differently. It shows that the intimation about the arrest of the accused was given to the wife of the accused, which creates doubt about the genuineness of the case of the prosecution. Thus, there are different versions of different witnesses/memos about the intimation given to the person regarding the arrest of the accused.
47 The accused has stated that while posted in the post office, the wife of the complainant (PW3), namely, Smt.Suman Gupta, developed enmity with him and she had threatened him to take revenge from him. In support of his defence, the accused has produced Suresh Kumar (DW2), Public Relation Inspector in Krishna Nagar Head Post Office. He has stated that a complaint dated 24.2.2003, Ex.DW2/B was filed by the wife of the complainant (PW3), namely, Suman Gupta against him which was duly replied by him vide reply dated 27.2.2003, Ex.DW2/C. The reply, Ex.DW2/C shows that the accused has mentioned in it that the complaint filed by Smt.Suman Gupta is a false and is an act to take revenge from him when he asked the said Smt.Suman Gupta to follow the procedure in dealing with the post office.
48 The contents of the complaint, Ex.DW2/B and reply thereto of the accused, Ex.DW2/C show that the said complaint was filed by Smt.Suman Gupta, who is the wife of the complainant (PW3). Though, during his cross examination, the complainant (PW3) has denied having filed any complaint against the accused, but this part of the statement made by him, is not believable as the complaint, Ex.DW2/B filed by his wife, bears her signatures as well as the stamp in the name of wife of the complainant (PW3) along with the license number. The best person to deny the filing of the complaint against the AC No.2/2004 CBI Vs. Sunder Lal Sharma Page 26 of 29 accused, was the wife of the complainant (PW3). The wife of the complainant, namely, Smt.Suman Gupta herself has not appeared into the witness box to contradict the reply given by the accused. Had she been appeared into the witness box to rebut the defence of the accused, only then it could be said that the complaint, Ex.DW2/B filed by her against the accused and the reply of the accused, Ex.DW2/C, was correct or not. In the absence of any rebuttal to the reply filed by the accused, it is held that the accused has established his defence beyond reasonable doubt that the wife of the complainant (PW3), namely, Smt.Suman Gupta had given the complaint, Ex.DW2/B against him in his department and when no action was initiated against the accused on her said complaint, then the complainant (PW3) implicated the accused in this false case, in connivance with the CBI officials. It is well settled law that enmity is a double edged weapon and it could be a ground to falsely implicate somebody. Thus, it cannot be ruled out that due to grudge against the accused for not taking any action on her complaint by the postoffice authorities, the complainant (PW3) and his wife had falsely implicated the accused in connivance with the CBI officials, particularly in the light of the statement of the raiding officer, Insp.Amreek Raj (PW8) that he got registered the case against the accused without making any verification of the complaint, Ex.PW3/A, filed by the complainant (PW3). In this regard, the learned defence counsel has taken me through the judgment in case titled, Abdul Rashid Ansari Versus State of UP (reported in 1993 (2) Crimes
261) in which the Hon'ble Apex Court of Allahabad High Court has held that false implication of accused due to enmity cannot be ruled out. He has also relied upon the judgment in case titled Ganapathi Sanya Naik Versus State of Karnataka (reported in AIR 2007 SC 3213). In the said case, the Hon'ble Supreme Court found the plea of the accused plausible that the complainant had AC No.2/2004 CBI Vs. Sunder Lal Sharma Page 27 of 29 serious animosity towards him and that currency notes were put surreptitiously on his table.
49 The learned defence counsel has submitted that while proving the case against the accused, the prosecution has failed to prove the fundamental requirements of criminal law. In this regard, he has taken me through the judgments in case, titled State of Maharashtra Versus Dnyaneshwar Laxman Rao Wankhede (reported in 2009 (4) RCR (criminal)
217) in which it was held that the foundational facts must be established by the prosecution. In the case titled, Ronal Kiprono Ramkat Versus State of Haryana (reported in 2001 (3) RCR (Criminal) 766), it was held that the court cannot expect the accused to establish his defence by the same standard that the prosecution should establish the guilt of an accused beyond reasonable doubt. In another case titled Dr.S.L. Goswami Versus State of Madhya Pradesh (reported in 1972 SCC (Cri.) 258, it was held that the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. Where the onus shifts to the accused and the evidence on his behalf probabilises the plea, he will be entitled to the benefit of reasonable doubt. In the present case also, the prosecution has miserably failed to prove its case against beyond reasonable doubt and rather, tried to shift the onus on the accused to prove his innocence. It is the well settled law that the onus to prove the guilt of the accused is always upon the prosecution which the prosecution cannot shift the same upon the accused. The defence taken by the accused, appears to be reasonable and plausible one.
CONCLUSION 50 In view of the above discussion, it is held that the accused is entitled for the benefit of doubt as the prosecution has miserably failed to prove that there was demand and acceptance of bribe by the accused. The AC No.2/2004 CBI Vs. Sunder Lal Sharma Page 28 of 29 prosecution has also failed to prove the recovery of bribe amount from the possession or at the instance of the accused beyond reasonable doubt. Rather, the story put forth by the prosecution is found to be not acceptable. The defence taken by the accused that he has been falsely implicated in the present case by the complainant (PW3) and his wife, is found to be plausible. The Hon'ble Supreme Court has also observed in the case titled, Kali Ram Versus State of Himachal Pradesh (reported in AIR 1973 SC 2773), that another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, then the view which is favourable to the accused should be adopted.
51 Consequently, while extending the benefit of doubt to the accused Sunder Lal Sharma, he is hereby acquitted from the charges under Section 7 and 13(2) read with 13(1)(d) of Prevention of Corruption Act. His bail bonds are cancelled and surety stands discharged.
52 File be consigned to the record room.
Announced in the open Court ( P.S. TEJI )
Dated: 4.5.2010 District Judge (East)
Special Judge (CBI)
Karkardooma Courts : Delhi
AC No.2/2004 CBI Vs. Sunder Lal Sharma Page 29 of 29