48. Reliance Was Further Placed Upon ... vs . State (Delhi on 7 May, 2015

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Delhi District Court

48. Reliance Was Further Placed Upon ... vs . State (Delhi on 7 May, 2015

      IN THE COURT OF SURINDER KUMAR SHARMA
 SPECIAL JUDGE, P.C. ACT (CBI)  09, CENTRAL DISTRICT 
                TIS HAZARI : DELHI 

                              CC No.  45/11
                            R.C. No. 104(A)/95



Central Bureau of Investigation

                   Versus

Shri Jeevan Ram Gupta
Son of Shri Lakhmi Chand Gupta
A38, Munirka
New Delhi. 



Date of Institution                   :   07.04.2010
Date of Arguments                     :   09.04.2015
Date of Judgment                      :   28.04.2015



JUDGMENT

1. The accused Sh. Jeevan Ram Gupta was chargesheeted by the CBI for the offences punishable under Sections 7 and 13 (1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988. CC No. 45/11 He was put on trial for the said offences.

Case of the Prosecution

2. The accused at the relevant time was working as Accounts Officer, Land Management, Delhi Development Authority, Vikas Sadan, INA, New Delhi. The complainant Sh. Uttam Prakash was working as a Contractor with DDA and was engaged in the demolition of unauthorized constructions in SouthWest Zone, Rohini, Delhi. After completion of certain works, the complainant submitted his bills for payment and the same were pending with the accused Sh. Jeevan Ram Gupta. The complainant Sh. Uttam Prakash went to the office of the accused on 24.11.1995. At that time, three files of the complainant were pending with the accused. The accused demanded Rs. 500/ per file for clearing the files pertaining to the bills of the complainant. The complainant was not willing to pay the bribe to the accused. He made a written complaint in the office of Superintendent of Police, CBI, Anti Corruption Branch, New Delhi, on 24.11.1995.

CC No. 45/11

3. On the complaint of the complainant Sh. Uttam Prakash, a case was registered. Thereafter, Inspector Rajesh Kumar, Trap Laying Officer (TLO) joined two independent witnesses namely Sh. Mahesh Kumar Sharma and Sh. Ravi Kant. Both the said independent witnesses verified the facts mentioned in the complaint of Sh. Uttam Prakash and they satisfied themselves regarding the demand of bribe made by the accused Sh. Jeevan Ram Gupta. The complainant produced three currency notes of Rs. 500/ denomination each. The said Government currency notes were treated with Phenolphthalein powder by Inspector Virender Thakran, who also gave practical demonstration. The independent witness Sh. Ravi Kant touched the said Government currency notes with his right hand fingers and thereafter he was asked to dip his fingers in the freshly prepared colourless solution of Sodium Carbonate. As a result of which the colourless solution of Sodium Carbonate turned pink in colour.

4. Handing Over Memo was prepared which was signed by both the independent witnesses and the other members of the trap party. The treated GC notes were kept in the left upper shirt CC No. 45/11 pocket of the complainant Sh. Uttam Prakash, after taking his personal search. The other members of the trap party also took their mutual search. The complainant Sh. Uttam Prakash was asked to handover the tainted money to the accused Sh. Jeevan Ram Gupta on his specific demand of the bribe and not otherwise. Sh. Mahesh Kumar Sharma was deputed as a shadow witness and he was asked to remain close to the complainant, in order to overhear the conversation between the complainant and the accused. The shadow witness was also directed to give signal to the trap party by scratching his head with his right hand as soon as the bribe was given to the accused. All the members of the raiding party washed their hands with soap and water before proceeding to DDA Office. The trap party also took with it Rs. 50/ and other necessary material required in the trap.

5. The trap party left the CBI office at 3.15 p.m. on 24.11.1995 and reached the office of the accused at Vikas Sadan at 3.30 p.m. The complainant Sh. Uttam Prakash and the shadow witness Sh. Mahesh Kumar Sharma were directed to go to the office of the accused. The other members of the raiding party CC No. 45/11 remained outside the room of the accused. The complainant Sh. Uttam Prakash and the shadow witness Sh. Mahesh Kumar Sharma went inside the room of the accused. The accused objected the presence of the shadow witness in the room. After some conversation, the complainant asked the shadow witness Sh. Mahesh Kumar Sharma to go outside the room of the accused. Then, the accused asked the complainant to give him at least Rs. 1000/ as bribe instead of Rs. 1500/. Then, the complainant went outside the room of the accused on the pretext of soothing the shadow witness Sh. Mahesh Kumar Sharma who was feeling humiliated as the accused had told him to go outside. The complainant then told Sh. Mahesh Kumar Sharma about the demand of bribe made by the accused and again went inside the room of the accused Sh. Jeevan Ram Gupta. The complainant then took two GC notes of Rs. 500/ denomination each from his upper left side shirt pocket and handed over the same to the accused Sh. Jeevan Ram Gupta, who accepted the same with his right hand. The accused then counted the currency notes with his both hands and kept the same in the left side pocket of his pant.

CC No. 45/11

6. The shadow witness Sh. Mahesh Kumar Sharma was standing near the sliding door of the room of the accused from where he was able to watch the transaction which took place between the complainant and the accused. After the tainted money was accepted by the accused, the shadow witness Sh. Mahesh Kumar Sharma gave the pre determined signal to the trap party. Then immediately, the members of the trap party went inside the room of the accused Sh. Jeevan Ram Gupta. Inspector Rajesh Kumar disclosed his identity and asked the accused about the bribe accepted by him from the complainant. The other independent witness Sh. Ravi Kant recovered two GC notes of Rs. 500/ denomination each from the left side pant pocket of the accused. The serial numbers of currency notes were compared with the serial numbers mentioned in the Handing Over Memo, which tallied with the same. The personal search of the complainant was also taken and the third currency note of Rs. 500/ denomination was recovered from the complainant. The currency notes recovered from the possession of the accused were seized. Fingers of both the hands and inner lining of the left side pant pocket of accused Sh. Jeevan Ram Gupta were dipped separately in the colourless solution of Sodium CC No. 45/11 Carbonate, which was prepared at the spot. The solution in all the three cases turned pink in colour. The said solutions were transferred into three separate empty clean glass bottles and the same were sealed with the CBI seal. The recovery memo was prepared at the spot in which posttrap proceedings were mentioned. The said memo was signed by the independent witnesses and the members of the trap party. Investigation was carried out and statements of the witnesses were recorded. After completion of the investigation, chargesheet was filed against the accused on 16.01.1997. However, the accused was acquitted vide order dated 27.01.2010 for the reason that the sanction for prosecution of the accused was not valid and was bad in the eyes of law.

7. After retirement of the accused from the service, a fresh charge sheet was filed against him without obtaining sanction for prosecution.

8. The accused was summoned by the Court. The accused approached the Hon'ble Delhi High Court and sought quashing of the summoning order and the proceedings initiated against CC No. 45/11 him. Vide order dated 08.02.2012, Hon'ble Delhi High Court declined the plea of the accused.

9. On 07.10.2011, my Ld. Predecessor framed charge against the accused for the offences punishable under Sections 7 and 13 (2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988. The accused pleaded not guilty to the charge and claimed trial.

10.To bring home the charges against the accused, the prosecution has examined 10 witnesses. The statement of accused was recorded under Section 313 Cr.P.C., wherein, he alleged his false implication at the instance of Sh. K.J. Alphons, Commissioner, Land Management. The accused stated that his relations with Sh. Alphons were strained as the accused disobeyed to follow the illegal dictates and commands of Sh. K.J. Alphons. The accused denied having demanded or accepted any bribe from the complainant.

11. In defence evidence, accused Sh. Jeevan Ram Gupta has examined as many as nine witnesses.

CC No. 45/11 Evidence of the Prosecution

12. In this case, the most material witness is the complainant Sh.

Uttam Prakash, who has been examined by the prosecution as PW4. He has stated that he was working as Contractor with DDA, MCD etc. since 1974. The accused was known to him as the accused was working as Accounts Officer in the DDA. He used to visit the accused. The accused used to receive the files from the office of the Commissioner, Land Management for checking the accounts. The job of the accused was to check the calculation etc. and then to forward the file to the Member (Finance) for approval. The complainant had three files pending with the accused for payment of his bills. The complainant stated that he was unable to tell the exact date, however, in the month of November 1995, he approached the accused with the request to clear his pending files. The complainant requested the accused to clear the files at the earliest as the complainant had to make the payments to the labour, petrol pumps and towards hiring of the equipments etc. The accused told the complainant that he would clear the files within one or two days. Then again, the complainant visited the accused with the CC No. 45/11 request to clear his files. The accused told the complainant that if the complainant wanted the early clearance of the files, the files would be cleared only with 'tarike se'. The complainant was told by the accused to make payment of Rs. 500/ per file for clearance of the files. The complainant further stated that he went to CBI Office for making the complaint against the accused for demanding money from him for clearing the files. He made the complaint to Superintendent of Police, CBI. The complaint dated 24.11.1995 is Ex. PW4/A which is in his handwriting. The complainant further deposed that three currency notes of Rs. 500/ denomination each were taken and their serial numbers were noted. Some powder was applied to the currency notes. The currency notes were kept, thereafter, in the left pocket of his shirt. He also deposed regarding joining of two independent witnesses, namely Sh. Mahesh and Sh. Ravi. The other members of the team were Sh. Rajesh Prasad and one Mr. Peshin, who were from CBI. However, he could not tell the names of the other members of the trap party. He further deposed that he was instructed that one person would accompany him and would witness the payment of money by him (complainant). Then, he along with the other members of CC No. 45/11 the team reached the DDA Office. Then, one person either Sh. Mahesh or Sh. Ravi accompanied him to the room of the accused while other members of the party remained outside. On entering the room of the accused, the accused asked about the person accompanying him. The said person was asked to go out of the room of the accused. He further deposed that the accused demanded Rs. 1500/ from him. Then, the accused took two files and accepted Rs. 1000/ from the complainant and had returned Rs. 500/ to the complainant. The accused accepted the money with his both hands and kept the same in the pocket of his pant. However, this witness could not tell whether the money was kept by the accused in the right or left pocket of his pant. Then the accused asked the complainant to leave and also assured the complainant that he would send the two files to the Director, Land Management. The person who had accompanied the complainant to the room of the accused, gave signal by scratching his head. Soon thereafter, the CBI team came in the room of the accused. The CBI Officials caught hold both the wrists of the accused. The accused asked the CBI Officials as to who were they. Then, the CBI Officials had disclosed their identities. The accused was asked to take off his CC No. 45/11 pant. The currency notes were taken out by the accused from the pocket of his pant and he handed over the same to the CBI Officials. The pocket of the pant of the accused was dipped in the water, which turned pink in colour. The fingers of the accused were also dipped, separately, in the same kind of water which had also turned pink in colour. This witness identified his signatures on the recovery memo Ex. PW1/B, site plan Ex.PW1/C and personal search memo Ex.PW1/F. This witness identified the bottles Ex. P 4,5 and 6. This witness also stated that the serial numbers of the currency notes mentioned in the Handing Over Memo Ex. PW1/A tallied with the recovered currency notes. This witness stated that the pant Ex. P10 must be that of the accused, which was seized at the spot.

13. PW5 is Sh. Mahesh Kumar Sharma. He was a member of the trap party and was deputed as shadow witness. He has stated that in the year 1995, he was working as General Clerk, Grade II in National Building Construction Corporation, Lodhi Road, New Delhi. He knew one Sh. Ravi Kant, who was also working in NBCC. The CBI team came to their office and had CC No. 45/11 taken him and Sh. Ravi Kant with them to join the trap party. He stated that on 24.11.1995, they had first visited the CBI Office and thereafter, the DDA Office. In the CBI Office, one Sh. Uttam Prakash was present who had told CBI that some bribe was being demanded from him by one Sh. Jeevan Ram Gupta, who was working in DDA Office. He further deposed that some powder was applied to the currency notes, which were of Rs. 500/ denomination each. The said currency notes were kept by the Contractor in his pocket. Then, they went to the DDA Office along with the CBI team and Sh. Uttam Prakash. He was instructed to go along with the Contractor to the room of the accused. The remaining members of the team were asked to remain outside. As per the instructions, he along with the Contractor entered the room of Gupta Ji (accused). Then, Gupta Ji asked about him, as to who was he. Then, the Contractor told Gupta Ji that he (PW5) was his 'bhanja'. The complainant told him to go out of the room. Then, this witness came out of the room of the accused and waited outside for one or two minutes and thereafter gave the signal to the CBI team by scratching his head. He was instructed to give the said signal after the payment of the money by the Contractor to the accused. He CC No. 45/11 deposed that he did not see anything after he came out of the room of the accused. He further deposed that he had presumed that within those one or two minutes, the Contractor must have paid the bribe to the accused and therefore, he had given the signal. After he gave the signal, the CBI team came there and opened the door of the room of the accused and entered therein. The CBI team caught hold the hands of Gupta Ji and then had taken out the money from the pocket of the pant of the accused. Thereafter, the fingers of the accused were dipped in a water like solution, which turned pink in colour. The said solution was preserved in a bottle and the same was sealed thereafter. He further deposed that some documents were prepared at the spot, whereupon, he and Ravi Kant had put their signatures. He deposed that three currency notes of Rs. 500/ denomination each were taken out from the pocket of the pant of the accused. This witness identified his signatures on Ex. PW1/B, Ex. PW1/C, Ex. PW1/F, Ex. PW 5/A and Ex. PW1/A. He identified bottles Ex. P4, 5 and 6. He also identified his signatures on three cloth wrappers Ex. P7 to P9. This witness also identified the pant Ex. P10 which the accused was wearing at the relevant time and he put his signatures on the pocket of CC No. 45/11 the said pant from where the money was recovered. This witness identified the three currency notes and deposed that the serial numbers on the said notes tallied with the serial numbers mentioned in Ex. PW1/A and Ex. PW1/B.

14.This witness was crossexamined by Ld. PP with the permission of the Court. In his crossexamination by the Ld. PP, he admitted it to be correct that he had stated in his statement to the IO that he was introduced with the complainant and other CBI Officials in the office of CBI and he was also shown the complaint of the complainant. However, he denied having read the complaint of the complainant in the office of CBI. He admitted that the powder to the currency notes was applied in his presence. He also admitted that demonstration was given before conducting the raid. He admitted that search of the complainant was taken before putting the currency notes in the pocket of his shirt. He also admitted that he was directed to act as shadow witness and to remain close to the complainant for watching and overhearing the conversation between the complainant and the accused regarding the payment of the bribe. He also admitted that his search was taken in the CBI Office. CC No. 45/11 He also admitted that document Ex. PW1/A was prepared in the CBI Office. However, he denied having stated that door was partly opened at the time of giving the bribe. He admitted that in his presence the complainant had told the CBI Officials that the accused had demanded and accepted the bribe of Rs. 1000/ after negotiation and thereafter, the accused kept the money in the left side pocket of his pant after counting the same with his both hands. He admitted that the CBI Officials had informed Sh. V.K. Singhal, the senior officer of the accused who was called to join the proceedings. He admitted that other witness Sh. Ravi Kant was asked to recover the money from the pant of the accused and accordingly, he took out the money from the pocket of the pant of the accused. He admitted that Rs. 1000/ were recovered from the pocket of the pant of the accused. He admitted that in the personal search of the complainant Rs. 500/ was recovered. Serial number of this currency note tallied with the serial number mentioned in Ex. PW1/A. He also admitted that both the hands of the accused were dipped in two separate colourless solutions and pocket of the pant was dipped in other colourless solution separately and the said solutions turned pink in colour. He also admitted that CC No. 45/11 said three solutions were transferred into three bottles Ex. P4 to P6. He also admitted that the personal search of the accused was conducted in his presence vide memo Ex. PW1/F. The site plan Ex. PW1/C was prepared in his presence. He also admitted that two files i.e. Ex. PW1/D and Ex. PW1/E were recovered from the table of the accused.

15. PW1 is Sh. Ravi Kant Sharma. He is the member of the trap party. He has stated that in November 1995, he was posted as Assistant Manager (HRM) in National Buildings Construction Corporation, Lodhi Road, New Delhi. He deposed that on 24.11.1995, he went to the CBI Office at CGO Complex, Lodhi Road, along with his colleague Sh. Mahesh Sharma. There they were shown a complaint by the CBI Officials. This was a complaint of a Contractor regarding demand of bribe made by one Sh. Jeevan Ram Gupta, Accounts Officer in DDA. He identified this complaint Mark P1/1. He read the said complaint. He was also shown three currency notes which were of the Contractor. He stated that after going through the complaint, the name of the complainant was CC No. 45/11 revealed as Sh. Uttam Prakash. The serial numbers of the currency notes were noted down and some powder was applied to the said currency notes. He was told that if the currency notes are touched with the fingers and thereafter if the fingers are dipped in water, then the water would turn red in colour. A demonstration in this regard was given. He touched the currency notes and thereafter he dipped his fingers in the water which turned red in colour. The complainant was present there at that time. The currency notes were handed over to him for giving the same to the accused. It was decided that Sh. Mahesh Kumar Sharma would accompany the Contractor to the room of the accused, while this witness was supposed to stand outside. This witness identified his signatures on Ex. PW1/A. Then, they went to the DDA Office at Vikas Sadan. He along with other CBI officials remained outside the room of the accused, while the Contractor along with the shadow witness Sh. Mahesh Kumar Sharma went in the room of the accused. It was told that after the signal was given by Sh. Mahesh Kumar Sharma, then, he along with the CBI Officials would enter the room of the accused. After sometime, Sh. Mahesh Kumar Sharma came out CC No. 45/11 of the room of the accused and gave the predetermined signal to the members of the trap party. Then, he along with other members of the trap party went inside the room of the accused. The CBI officials had caught hold of both the wrists of the accused. This witness was asked to take out the money from the pocket of the pant of the accused. Then, he took two currency notes of Rs. 500/ denomination each from the pocket of the accused. The serial numbers of the said currency notes were tallied with the serial numbers which were already noted down in the memo prepared in CBI Office. The fingers of both hands of the accused were dipped in separate water, whereupon, both the waters turned red in colour. The said waters were poured in two separate bottles and paper slips were pasted on the said bottles. He put his signatures on the bottles, after seals were affixed on the bottles. The accused was given a lungi and was asked to take off his pant. One pocket of the pant of the accused was washed in the water and thereafter, that water turned red in colour. This water was also transferred into a bottle and the same was sealed. A paper slip was affixed thereupon and he had signed the same. He further deposed that CC No. 45/11 only two currency notes were recovered from the accused. The third note was found in the possession of the complainant. The serial number of this note also tallied with the serial number which was earlier noted down by the trap party. Some written work was done at the spot. He along with Sh. Mahesh Kumar Sharma signed Ex. PW1/B and site plan Ex. PW1/C. The files which were recovered from the table of the accused are Ex.PW1/D and Ex. PW1/E and bear the initials of this witness. The personal search of the accused was taken. This witness identified all the three currency notes which are Ex. P1 to P3. He also identified the three bottles, referred above, which are Ex. P4 to Ex. P6. He identified the three pieces of cloth with which the above said bottles were wrapped and he identified the same Ex. P7 to Ex. P9. He also identified the pant of the accused Ex. P10. He further deposed that the seal after use was given to him which is Ex. P11.

16. PW9 is Inspector Sh. Virender Thakaran. He stated that in the year 1995, he was posted as Inspector and was on deputation with CBI (ACB), New Delhi. He deposed that on 24.11.1995, he was directed to associate with Inspector Rajesh CC No. 45/11 Kumar in a trap case which was lodged on the complaint of a Contractor Sh. Uttam Kumar. This complaint was against Sh. J.R. Gupta who was demanding Rs. 1500/ from Sh. Uttam Kumar for clearing the files of his pending bills. Inspector Rajesh Kumar constituted a team which included two independent witnesses namely Sh. Mahesh Kumar Sharma and Sh. Ravi Kant. All of them assembled in the room of Sh. Rajesh Kumar Inspector in the office of CBI. He was shown the complaint of the complainant. The complainant took out Rs. 1500/ from his pocket (3 currency notes of Rs. 500/ denomination each). The said currency notes were handed over to Inspector Rajesh Kumar, who further handed over the same to him for applying the Phenolphthalein powder to the currency notes. He was also directed to give demonstration and accordingly, he gave the demonstration by asking Sh. Ravi Kant to touch the currency notes with his right hand and thereafter the fingers of Sh. Ravi Kant were dipped in the colourless solution of Sodium Carbonate, which turned pink in colour. The said currency notes treated with the phenolphthalein powder were put in the left side pocket of the complainant by Sh. Rajesh CC No. 45/11 Kumar Inspector. Sh. Mahesh Kumar Sharma was asked to remain with Sh. Uttam Prakash at the time of payment of money to the accused. Sh. Mahesh Kumar Sharma was deputed as a shadow witness and was directed to overhear the conversation between the accused and the complainant. All the members of the team were asked to wash their hands with soap and water, before leaving for DDA Office. Thereafter, all of them left the CBI office at about 3.153.30 p.m. Before that Handing Over Memo Ex. PW1/A was prepared which bears his signature. All the members of the team were asked to take their positions outside the office room of Sh. J.R. Gupta. The complainant and the shadow witness were directed to go inside the room of the accused. After sometime, the shadow witness came out of the room and thereafter he gave the signal by scratching his head. Then, the other members of the team went inside the room of Sh. J.R. Gupta, where they found the complainant sitting in the room along with accused Sh. J.R. Gupta. He caught right hand of the accused and Sh. S.K. Peshin caught hold the left wrist of the accused. The complainant disclosed that he had handed over Rs. 1000/ to the accused which was accepted by the accused with right hand and the accused put the same in the left pocket CC No. 45/11 of his pant. At that time Sh. V.K. Singhal Director of the DDA was also called there. The independent witness Sh. Ravi Kant was asked to take out the money from the left pocket of the pant of the accused and accordingly, he took out two currency notes of Rs. 500/ denomination each from the pocket of the accused. The serial numbers of the said currency notes tallied with the serial numbers which were mentioned in the Handing Over Memo Ex. PW1/A. One currency note of Rs. 500/ denomination was found in the pocket of the complainant. Thereafter, wash of the pocket of the pant of the accused, from where the money was recovered, was taken in the colourless solution of Sodium Carbonate, which turned pink in colour. Both the hands of the accused were dipped in separate solutions of Sodium Cabonate which turned pink in colour. These solutions were transferred into separate bottles and were sealed after wrapping the same with a cloth. Slips were pasted on the bottles, whereupon, the particulars were mentioned. Both the independent witnesses have signed the said slips. The accused was arrested and his personal search was taken vide memo Ex. PW1/F. The site plant Ex. PW1/C was prepared at the spot. CC No. 45/11 This witness identified the complaint Ex. PW4/A which was given by the Contractor against the accused.

17. PW3 is Sh. V.K. Singhal, who at the relevant time was Director, Land Management, DDA. He has stated that the complainant was working as a Contractor with DDA and used to supply trucks etc. to DDA, which were required for demolition of unauthorized constructions. He further stated that on 24.11.1995, the accused was working under him. On 24.11.1995, when he was in his office, he received a call and he was instructed to go to the room of Sh. J.R. Gupta. Accordingly, he went there and found that some CBI Officials and independent witnesses were present there. They told him that Sh. J.R. Gupta had demanded some money from Sh. Uttam Prakash and they had caught him. Then CBI Officers prepared some note which was signed by him. He stated that nothing else had happened in his presence. This witness resiled from his previous statement and was crossexamined by the Ld. PP with the permission of the Court.

18. In his crossexamination by the Ld. PP, PW3 Sh. V.K. Singhal CC No. 45/11 stated that he was not sure if his statement was recorded. He stated that he cannot say if from the pocket of the pant of Sh. J.R. Gupta, the currency notes of Rs. 500/ denomination were recovered in his presence. He also stated that he cannot say that hand washes of the accused were taken in his presence. He stated that he was not present at the time when the hand washes of the accused were taken. He stated that the accused was not asked in his presence to take off his pant in order to take wash of the pocket of the pant of the accused. Even in his cross examination by the Ld. PP, he did not support the prosecution case.

19. PW6 is Sh. K.S. Chhabra. In the year 1996, he was posted as Senior Scientific Officer, Grade I in CFSL, Delhi. He was Head of the Chemistry Division. He has stated that three sealed bottles were received in the CFSL and the said bottles contained pink colour liquid. Bottles were marked as RHW, LHW and LPPW. The said bottles were received from Superintendent of Police, ACB, New Delhi, along with the forwarding letter and specimen seal. He found the seals of the said bottles intact. On analysis RHW, LHW and LPPW gave CC No. 45/11 positive test of Phenolphthalein and Sodium Carbonate. The remnants of the bottles were returned with his seal and the wrappers of the bottles were sealed in a separate envelope. The same were returned along with the report to the Superintendent of Police, ACB, New Delhi. His report is Ex. PW6/A. He identified the said three bottles Ex. P4 to P6 and the cloth wrappers Ex. P7 to P9.

20. PW10 is Sh. Rajesh Kumar. In the year 1995, he was on deputation with CBI and was posted as Inspector in ACB, New Delhi. He stated that on 24.11.1995, one Sh. Uttam Prakash Contractor, lodged a complaint with Superintendent of Police, ACB, against Sh. J.R. Gupta of DDA. He identified the complaint Ex. PW4/A which was given by the complainant, on the basis of which a case was registered. This complaint was marked to this witness by Sh. R.K. Dutta, the then Superintendent of Police. He deposed that the complainant in his complaint has alleged that Sh. Gupta had demanded bribe of Rs. 1500/ from him for clearing his bills. In his complaint, the complainant has alleged that on 24.11.1995, he met Sh. Gupta who had demanded bribe from him. The complaint was marked CC No. 45/11 to him vide FIR No. RC 104/95 (Ex. PW9/A). He joined Sh. Mahesh Kumar Sharma and Sh. Ravi Kant who were employees of NBCC as independent witnesses. Sh. S.K. Peshin DSP, ACB, CBI, Inspector Thakran and Const. Wasan Singh were associated in the trap. In the CBI Office, he has conducted the pretrap proceedings during which the complainant Sh. Uttam Prakash had produced three currency notes of Rs. 500/ denomination each. The said currency notes were treated with Phenolphthalein powder. Sh. Ravi Kant was asked to touch the Phenolphthalein treated notes and thereafter his hand wash was taken in the solution containing Sodium Carbonate. The colourless solution of Sodium Carbonate turned pink in colour, which was thrown away. The remaining Phenolphthalein powder was returned to Malkhana. The independent witnesses were told that if Phenolphthalein powder comes in contact with Sodium Carbonate and water, the solution turns pink in colour. Sh. Mahesh Kumar Sharma was deputed as shadow witness and was directed to remain close to the complainant in order to overhear the conversation and see the transaction of bribe. Sh. Ravi Kant was asked to act as recovery witness. The complainant was instructed to handover CC No. 45/11 the bribe to Sh. Gupta only on his specific demand and not otherwise. The currency notes were put in the pocket of the shirt of the complainant. During pretrap proceedings Sh. Mahesh Kumar Sharma and Sh. Ravi Kant satisfied themselves regarding the genuineness of the complaint. The search of the complainant was taken and he was asked not to carry with him anything else except the three currency notes treated with Phenolphthalein powder. Mutual search of all members of the trap party was also taken and none was allowed to carry anything else except ICards. Copy of FIR, complaint, sealing material, Sodium Carbonate powder, CBI Seal, glass tumblers, bottles, stationary and cash of Rs. 50/ were taken in a bag for further investigation. All the above said proceedings were recorded in the Handing Over Memo Ex. PW1/A. Then, all the members of the team left CBI office at 3.15 p.m. He further deposed that before proceeding from the CBI office all the members of the team had washed their hands with soap and water.

21. This witness further deposed that the trap party reached Vikas Sadan, DDA at 3.45 p.m. The complainant and Sh. Mahesh CC No. 45/11 Kumar Sharma were asked to contact Sh. J.R. Gupta in his room. He along with other members of the party followed them and reached near the room of Sh. J.R. Gupta. At about 4.15 p.m., Sh. Mahesh Kumar Sharma gave the predetermined signal and thereafter he along with Sh. Peshin, Sh. Thakran, Sh. Ravi Kant and Sh. Mahesh Kumar Sharma entered the room of the accused. There complainant Sh. Uttam Prakash and accused Sh. J.R. Gupta were found present there. The complainant and shadow witness Sh. Mahesh Kumar Sharma told that initially both of them had met Sh. J.R. Gupta, but Sh. J.R. Gupta asked Sh. Mahesh Kumar Sharma to go out of his room. The complainant told that after Sh. Mahesh Kumar Sharma had gone out of the room of Sh. J.R. Gupta, Sh. Gupta had demanded bribe from him and it was settled for Rs. 1000/. The complainant disclosed that the accused accepted Rs. 1000/ from him as bribe to make a favourable note regarding his pending bills. The accused was caught hold of with his wrists by Sh. Peshin and Sh. Thakran. The complainant told that the accused after accepting the bribe with his right hand had kept the same in left pocket of his pant. Then, Sh. Ravi Kant was asked to take search of left pocket of the pant of the accused and CC No. 45/11 from there an amount of Rs. 1000/ comprising of two currency notes of Rs. 500/ denomination each were recovered. One currency note of Rs. 500/ denomination was recovered from the possession of the complainant. On comparison, the serial numbers of said three notes tallied with the serial numbers mentioned in the Handing Over Memo. Then, the senior officer of Sh. J.R. Gupta who was of the rank of Director was also called to join the proceedings. Then, the washes of left and right hands of the accused were taken in a Sodium Carbonate Solution which turned pink in colour. The wash of the left pocket of the pant of the accused was also taken in the colourless solution of Sodium Carbonate and the same also turned pink in colour. All the washes were transferred into three bottles which were marked LHW, RHW and LPPW. The labels were put on the said bottles and the same were sealed with the seal of CBI. Sh. Mahesh Kumar Sharma and Sh. Ravi Kant also signed the said three labels. On search of the table of the accused, documents pertaining to the work done by the complainant were also recovered. A rough site plan was prepared showing the positions of the members of the team, immediately before and after the trap was laid. Personal search CC No. 45/11 of the accused was taken. This witness identified the recovery memo Ex. PW1/B. He deposed that site plan Ex. PW1/C was prepared in his presence. Articles seized during the proceedings were seized vide recovery memo Ex. PW1/B. During the investigation, he recorded the statements of the witnesses and thereafter, the investigation was handed over to some other officer. This witness identified the three bottles Ex. P4 to P6. He also identified the pant of the accused which is Ex. P10. He also identified currency notes Ex. P1 to P3.

22. PW7 is Sh. D.D. Negi. He has stated that in the year 1996, he was on deputation with CBI and was posted as Inspector in ACB, New Delhi. Earlier the investigation of this case was being conducted by Inspector Rajesh Kumar and further investigation was entrusted to him. He recorded the statements of three witnesses namely Inspector Rajesh Kumar, Inspector Virender Thakran and Sh. V.K. Singhal Director DDA. Then, he was transferred to Shimla and the investigation was taken over by Inspector P.K. Sharma.

CC No. 45/11

23. PW8 is Sh. P.K. Sharma. He stated that in the year 1996, he was on deputation with CBI and was posted as Inspector in ACB, New Delhi. He had taken over the investigation of this case from Inspector D.D. Negi. He stated that he did not conduct any investigation in this case. He analyzed the case on the basis of the material which was collected by the earlier Investigating Officers, prepared chargesheet and filed the same in the Court.

24. PW2 is Sh. Brij Mohan Meena. He has stated that in March, 2010, he was posted as Inspector with ACB, New Delhi. He stated that in this case, accused was acquitted on some technical ground as the sanction accorded in this case for prosecution of the accused was not proper. On inquiries made by him from DDA, he came to know that the accused has retired from his service. He obtained the copy of superannuation order of the accused which is Ex. PW2/A. Then, he prepared the fresh chargesheet and filed the same in the Court.

25. The statement of the accused was recorded u/s 313 Cr.P.C. CC No. 45/11

The accused in his statement has stated that he was falsely implicated in this case at the instance of Sh. Alphons, Commissioner (Land Management), DDA, with whom he was having strained relations on account of official matters as the accused used to ask the complainant to present his bills for payment as per Rules and regulations. He alleged that the complainant is an interested witness and he has deposed at the instance of Sh. Alphons who wanted to implicate him in one way or the other. He has stated that the money was put in his pocket by the members of the trap party and he is innocent. He stated that the CBI officers are interested witnesses and they have deposed falsely against him. The independent witnesses have also deposed falsely at the instance of CBI. The accused also filed statement u/s 313 (5) Cr.P.C., stating therein that this is a false case and he never demanded or accepted any bribe from the complainant. It was a preplanned trap which was laid in connivance of Sh. Alphons, the complaint and the CBI Officials.

CC No. 45/11 Evidence led by the accused

26. The accused has examined 09 witnesses in his defence evidence.

27. DW1 is Sh. Santosh Kumar who at the relevant time was working as Steno of the accused. He has stated that on 23.11.1995, Notes were dictated to him by the accused and he typed the same in the evening of the same day. On 24.11.1995, he was on leave. He deposed that he had not put any date after he typed the Notes as he was instructed by the accused that the accused himself would put the date as and when he puts his signatures on the said Notes.

28. DW2 is Sh. Mahavir Singh. He was the Peon at the relevant time and was working with the accused. He has stated that as per procedure, after a file was signed by the accused, he used to carry the same to the Section. He further deposed that Sh. Santosh Kumar was posted as Stenographer in the Section in November, 1995. He also deposed that on 24.11.1995, the Steno Sh. Santosh Kumar was on leave.

CC No. 45/11

29. DW3 is Sh. Nirbhay Kumar. He was posted as S.P. (Economic OffencesII), CBI, New Delhi. He has stated that the certificate dated 23.05.2001 was issued to the accused for having attending the CBI Office during the period from 01.12.2000 to 31.03.2001. He also deposed that the accused used to assist the Investigating Officers of the CBI in the cases of the fraudulent allotments of the flats. In this regard, one certificate Ex. DW3/A was issued to the accused. The certificate dated 04.04.2003 is Ex. DW3/B which was issued to the accused by Sh. R.S. Dhankar. The other certificate issued by Sh. R.S. Dhankar in favour of the accused is Ex. DW3/C.

30. DW4 is Sh. Vijay Malik, Retired ACP. He has deposed that the accused assisted the CBI in the investigation of fraud cases. He has stated that certificate dated 05.10.2001 was issued to the accused regarding his assistance in the investigation of the fraudulent allotments of the flats. The accused was very efficient and intelligent. He was found to be hard working officer and his integrity was above board. One certificate Ex. CC No. 45/11 DW4/A was issued to the accused. The letter issued by Sh. Qamar Ahmed is Ex. DW4/B. He deposed that the accused had approached his office for rendering assistance and he was found an expert and therefore, DDA was requested to provide the services of the accused to them.

31. DW5 is Sh. Om Prakash, Retired Director (Finance), DDA.

He deposed regarding nature of duties of the accused and procedure of performing the said duties. The job of the accused was to make payments pertaining to Land Acquisition and Compensation and also pertaining to Land Protection. The accused was not working as Drawing and Disbursing Officer. He deposed that he knew the Contractor M/s. Uttam Prakash and Sons, who had given a threat to this witness while he was working as Accounts Officer (Cash) to make payment to him on the same day. Similar treatment was given by this Contractor to the accused. He stated that office order dated 29.09.1993 which bears the signature of Sh. K.J. Alphons is Ex. DW5/A. The special pay order dated 14.05.1994 is Ex. DW5/B. He deposed that the Finance Member was competent to approve the Notes put by the accused. The documents in File No. CC No. 45/11 F13(74/93/CRC/DDA) are collectively Ex. DW5/C. He deposed that office of the Accounts Officer (Land Management Accounts) was situated on the ground floor in ABlock, Vikas Sadan and a door closer was affixed on the door of the room where the accused used to sit. The noting on page nos. 10 to 14 in File No. F.1(15)/94/LMA are Ex. DW5/G. The notings on page nos. 10,11 and 13 in File No. F 1(209)/91/LM/East Zone/1 are Ex. DW5/E and notings on the said file on page nos. 12 and 13 are Ex. DW5/F. Similarly, this witness proved the notings Ex. DW5/D, Ex. DW5/H, Ex. DW5/I, Ex. DW5/J, Ex. DW5/K, Ex. DW5/L, Ex. DW5/M, Ex. DW5/N, Ex. DW5/O, Ex. DW5/P, Ex. DW5/Q. He stated that the main job of the accused pertained to payments of acquisition and compensation.

32. DW6 is Paramjeet Singh, Deputy Director of DDA. He stated that the ultimate authority to sanction the bill was Director, Land Management, DDA. The accused was working as Senior Accounts Officer. M/s. Uttam Prakash and Sons was the only Contractor with the DDA to perform the work of demolition. The Member (Finance ) was the final authority for CC No. 45/11 giving financial approval for the bills submitted for payment by M/s. Uttam Prakash & Sons. The requirement for submitting the bills was that along with the bills, the details of the equipments on the prescribed challan was also to be submitted. The copy of the requisition vide which the equipments were called for carrying out the demolition on a particular date along with the Log Books were also required to be submitted. The guidelines issued by the Director (LMI) are Ex. PW1/E. He proved documents as Ex. DW6/A to Ex. DW6/D.

33. DW7 is Sh. Jagdish Prasad, Assistant Director, DDA. He has produced the copy of certificate (Ex. PW3/B) dated 04.04.2002 issued by Sh. R.S. Dinkar S.P., CBI.

34. DW8 is HC Satbir Singh of Delhi Police. He has stated that he could not find the original of Ex. DW4/B and he had never worked with Sh. Qamar Ahmed Addl. C.P. and he was not in a position to identify the signatures of Sh. Qamar Ahmed Addl. C.P. CC No. 45/11

35. DW9 is Sh. Qamar Ahmed Chairman of Delhi Minorities Commission and retired Addl. C.P., Delhi Police. He stated that in the year 2001, he was posted in the Crime Branch of Delhi Police. He stated that he was not able to say anything about Ex. DW4/A and Ex. DW4/B. He stated that he does not remember about the investigation of the cases relating to fraudulent allotments of DDA flats which was being investigated by the Crime Branch/EOW.

36. I have heard Sh. A.K. Kushwaha Ld. PP for CBI and Sh. C. Sahai Ld. Counsel for accused. I have also perused the file, the written submissions filed on behalf of the accused and the case law relied upon by the parties.

Arguments of the Ld. PP for CBI

37. It was submitted by the Ld. PP for CBI that in this case CBI has examined as many as ten witnesses and all of them have supported the case of the prosecution. It was submitted that from the statement of complainant Sh. Uttam Prakash, it is proved that the accused demanded bribe of Rs. 500/ per file for CC No. 45/11 clearing three files of the complainant pertaining to the payment of three bills, pending with the accused. The complainant accordingly paid bribe of Rs. 1000/, consisting of currency notes of Rs. 500/ denomination each, to the accused on his specific demand for clearance of two files. The accused accepted the bribe of Rs. 1000/ from the complainant. The currency notes treated with Phenolphthalein powder were recovered from the pocket of the pant of the accused by the trap party. The testimony of the complainant has been corroborated by two independent witnesses i.e. PW1 Sh. Ravi Kant and PW5 Sh. Mahesh Kumar Sharma. The other members of the trap party have also corroborated the prosecution case regarding the recovery of the currency notes from the possession of the accused. The fingers of both hands of the accused were dipped in Sodium Carbonate solution which turned pink in colour. The wash of pocket of the pant of the accused was also taken in Sodium Carbonate solution which also turned pink in colour. It was contended that all the prosecution witnesses are consistent and they have supported each other on all the material points and therefore, the prosecution has been able to prove its case against the accused. The prosecution witnesses CC No. 45/11 could not be shaken from their stand during their cross examinations and hence, there is no reason to disbelieve the statements of the prosecution witnesses. It was contended that from the statements of the witnesses, the prosecution has been able to prove that the accused being a public servant has demanded illegal gratification, on 24.11.1995, of Rs. 500/ per file from the complainant Sh. Uttam Prakash for clearing his pending files for payment of bills. The complainant paid an amount of Rs. 1000/ to the accused for clearance of his two pending files. The accused being a public servant has accepted the illegal gratification from the complainant by misusing his office. The tainted money was recovered from the possession of the accused.

Arguments on behalf of the accused

38. It was contended by the Ld. Counsel for the accused that the accused is innocent and has been falsely implicated in this case at the instance of Sh. K.J. Alphons, Commissioner, Land Management, DDA, with whom the accused was having strained relations on account of official work. It was CC No. 45/11 contended that Sh. K.J. Alphons was having a grudge against the accused as the accused did not follow and obey the illegal orders given by Sh. Alphons.

39. It was further contended that the accused was very strict in his official work and he used to do official work as per Rules and procedure. The complainant was not following the Rules and norms for payment of the bills. Sh. K.J. Alphons used to pressurize the accused to clear the bills of the complainant without following the Rules and procedure. The accused insisted for following due procedure for clearance of the bills of the complainant. On this account, the complainant and Sh. K.J. Alphons were annoyed with the accused as the complainant wanted the payment of his bills, either by hook or by crook. Sh. K.J. Alphons also wanted that the payment of bills should be made to the complainant without following the Rules and procedure. Sh. Alphons used to pressurize the accused to do favour to the complainant regarding the payments of bills. The accused was not in favour of the payment of the bills of the complainant without following the due procedure and norms. On this account, the complainant and Sh. K.J. Alphons were CC No. 45/11 annoyed with the accused and therefore, they had the motive to falsely implicate the accused in this case. Due to this reason, the accused was falsely implicated by the complainant and Sh. K.J. Alphons in connivance with CBI Officials.

40. It was contended that the complainant managed to get huge amount of money from DDA in connivance with Sh. Alphons, without compliance of the guidelines issued by the department for payment of the bills. The accused was instrumental in cancellation of the petrol pump site illegally allotted to Smt. Rashmi Choudhary on the recommendation of Sh. Alphons. On this account, Sh. Alphons was also having a grudge against the accused. The sincerity of the accused was also appreciated by Sh. Anil Kumar Vice Chairman, DDA while dealing with the cancellation of allotment of petrol pump site. The accused was also instrumental in getting the order reversed by Vice Chairman DDA, whereby, Sh. Alphons had ordered the payment of Rs. Four Lacs to Delhi Agricultural Marketing Board. Sh. Alphons issued an order for withdrawal of the work from the accused on 14.07.1994. This all shows that complainant and Sh. K.J. Alphons were in connivance with each other and they bore CC No. 45/11 a grudge against the accused and thus had a motive to falsely implicate the accused in the present case. There was a nexus between Sh. Alphons and complainant to get undue monetary benefit at the cost of the DDA.

41. It was contended that there was no motive on the part of the accused to demand any bribe from the accused. It was contended that the complainant PW4 Sh. Uttam Prakash has not stated in his statement that on 24.11.1995 and before conducting the raid, he visited the DDA office in the morning and came to know that his bills were pending with the accused. It was contended that the complainant has stated falsely in his statement that he came to know that the files were pending with the accused much before the raid of date. It was contended that the files were not pending with the accused for a long period as alleged by the complainant.

42. It was submitted that there was no occasion for the accused to demand any bribe from the complainant as the accused had already dictated necessary Notes for clearance of the files of the complainant, to his Stenographer i.e DW1 Sh. Santosh Kumar CC No. 45/11 on 23.11.1995. Therefore, there could be no motive on the part of the accused to demand any bribe from the complainant. The Stenographer has stated that the Notes Ex. DW1/B and Ex. DW1/C were dictated by the accused on 23.11.1995 and he typed the same on that day at 6.00 p.m. It was contended that under these circumstances, it is clear that the accused never withheld the files pertaining to the bills of the complainant. The complainant was directed to follow the instructions that the bills should be accompanied by the copies of the Log Books etc. in order to avoid double payment, but the complainant was not following the said instructions. This fact is confirmed by DW6 Sh. Paramjeet Singh.

43. It was contended that the accused received the relevant files on 21.11.1995 and 22.11.1995 from Sh. R.C. Mehendiratta SOI and the accused dictated necessary Notes in respect of the said files on 23.11.1995 i.e. prior to the raid and alleged demand of money by the accused. It was contended that this fact has been confirmed and proved by Sh. Santosh Kumar (DW1), who was Stenographer of the accused at the relevant time. It was contended that the accused could not put his signatures on the CC No. 45/11 Notes as the Stenographer was on leave on 24.11.1995 i.e. the date of the raid. It has also been proved by the defence witnesses that the Stenographer Sh. Santosh Kumar was on leave on 24.11.1995. It was contended that under these circumstances, there was no occasion for the accused to demand any bribe from the complainant as he had already dictated the necessary order for the payment of the pending bills, prior to the alleged demand of the bribe by the accused.

44. It was further contended that the alleged demand of money by the accused has not been proved as the same has not been corroborated by the shadow witness PW5 Sh. Mahesh Kumar Sharma, as this witness was not able to overhear the conversation between the complainant and the accused for the reason that at the time of the alleged demand, the shadow witness was not admittedly present inside the room of the accused. The door of the room of the accused was having a door closer and the door was not a sliding one as claimed by the prosecution. The door at the time of the alleged demand by the accused was closed and thus, the shadow witness could not have overheard any conversation which allegedly took place between CC No. 45/11 the complainant and the accused in the room of the accused. The fact that the room of the accused was having a door closer and was not a sliding one has been proved by DW5 Sh. Om Prakash. It was urged that the shadow witness PW5 Sh. Mahesh Kumar Sharma could not see the alleged handing over of the money by the complainant to the accused as the door of the room of the accused was closed at that time. It was contended that the site plan Ex. PW1/C is incorrect.

45. It was also submitted that the complainant is an interested witness, therefore, his statement cannot be relied upon in the absence of corroboration of some independent witness. It was contended that the allegations of demand of bribe by the accused have not been proved. The Ld. Counsel for the accused has relied upon a judgment reported as AIR 1979 Supreme Court 1101, wherein, it was held that the testimony of the complainant regarding demand of money by the accused has to be corroborated and in the absence of any such corroboration his testimony cannot be relied upon. Reliance was also placed upon (2011) 6 Supreme Court Cases 450, wherein, it was held that CC No. 45/11 when there is no corroboration of testimony of complainant regarding demand of bribe by accused, it has to be accepted that complainant's version is not corroborated and therefore, evidence of complainant cannot be relied on.

46. It was submitted that the shadow witness PW5 Sh. Mahesh Kumar Sharma has not corroborated the case of the prosecution in respect of the demand of bribe by the accused. PW5 Sh. Mahesh Kumar Sharma was declared hostile and he was confronted with his statement u/s 161 Cr.P.C. It was submitted that PW5 Sh. Mahesh Kumar Sharma has admitted in his statement that he was sent out of the room of the accused at the instance of the accused and therefore, he could not overhear the conversation between the complainant and accused nor he could see the alleged payment of money made by the complainant to the accused. PW5 Sh. Mahesh Kumar Sharma has deposed that he had presumed that within two minutes after he came out of the room of the accused, the complainant must have paid the bribe to the accused.

47. It was further contended that the money was planted upon the CC No. 45/11 accused. It was contended that the presumption u/s 20 of Prevention of Corruption Act, can not be raised as the recovery has been challenged by the accused on the ground that the money was foisted upon him. Mere recovery of money is not sufficient to draw the presumption u/s 20 of Prevention of Corruption Act. Reliance was placed upon the judgment reported as (2011) 6 Supreme Court Cases 450 (Supra), wherein, it was held that mere recovery of tainted money, divorced from circumstances under which it is paid is not sufficient to convict accused. Reliance was also placed upon a judgment reported as 2009 III AD (S.C.) 213, wherein, also a similar view was led by the Hon'ble Supreme Court.

48. Reliance was further placed upon Suraj Mal Vs. State (Delhi Administration) (1979) 4 SCC 725, wherein, it was held by the Hon'ble Supreme Court that mere recovery by itself cannot prove the charge of prosecution against the accused in the absence of evidence to prove the payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.

CC No. 45/11

49. Reliance was also placed upon AIR 2013 SCC 3368, Judgment dated 03.07.2013 of Hon'ble Delhi High Court in Criminal Appeal No. 132/2004, 2009 (4) Criminal Court Cases 171 (Rajasthan) and Judgment dated 16.10.2014 in Criminal Appeal No. 684/2008 of Hon'ble Delhi High Court.

50. It was also contended that the allegation of the complainant that his three files were pending with the accused is false. It was contended that the complainant in his complaint Ex. PW4/A has stated that his three files were pending for some time with the accused, however, on the day of raid, CBI has seized only two files. The third file was not seized nor any explanation has come on record regarding the existence of third file. Nor any evidence was led in this regard. It was contended that there is no evidence on record to show that the third file was pending with the accused. It was contended that the complainant has made contradictory statements regarding the number of pending files. Therefore, the statement of the complainant cannot be believed. Reliance was placed upon AIR 1979 Supreme Court CC No. 45/11 1408.

51. It was submitted that the prosecution has not been able to prove that the accused has accepted the alleged bribe. It was contended that as the prosecution has not been able to prove the demand of bribe by the accused, therefore, the question of acceptance of bribe has no relevance as the acceptance of bribe germinates through demand. Reliance was placed (2011) 6 Supreme Court Cases 450 (Supra), wherein, it was held that as in the present case the prosecution has failed to prove the demand of bribe by the accused, therefore, the handing over of any money to the accused or any recovery thereof from the accused has no value or importance.

52. It was contended that the statement of the complainant regarding acceptance of bribe is unnatural, contradictory and unbelievable. The reason is that the complainant has stated that accused accepted Rs. 1000/ for clearing his two files, whereas, as per the prosecution case, three files of the complainant were pending with the accused. It was contended that the evidence CC No. 45/11 has also been led contradictory to the prosecution case as somewhere the evidence has come on record that the accused has postponed the clearing of the third file and evidence has also come on record that the accused reduced the demand of Rs. 1500/ to Rs. 1000/ for clearing the three files.

53. It was also contended that PW5 Sh. Mahesh Kumar Sharma has not supported the prosecution case and was declared hostile by the prosecution, and even in his crossexamination this witness did not support the prosecution case on material points regarding the demand and acceptance of money by the accused.

54. It was further submitted that the allegations made in the complaint are false. There is neither any videography nor any tape recorded conversation to corroborate the allegations made in the complaint. It is alleged that the alleged demand of bribe has not been corroborated by any independent witness. The complainant also did not make any effort to report the matter to the senior officers of the accused regarding demand of bribe made by the accused. It was contended that the witnesses have CC No. 45/11 deposed contradictory regarding the amount of money which was allegedly demanded by the accused. The prosecution witnesses are not consistent and sure whether the accused demanded Rs. 1500/ from the complainant or Rs. 1000/ from the complainant.

55. It was further submitted that the English of the complainant is very poor and the words such as "entrusted", "ensuring" and "hold up" have been used by the complainant in his complaint. This clearly shows that the complaint has been dictated by some other person and not written by the complainant of his own.

56. It was argued that the allegations of the complainant that the accused was postponing the clearing of the files is also contradictory to the evidence led by the accused. The prosecution is also not sure whether two files were seized from the accused or three files were seized. The complainant has stated contradictory to the contents of his complaint and therefore, he is not a reliable witness. It was submitted that PW1 Sh. Ravi Kant Sharma has not supported the prosecution case regarding the recovery of money from the accused and CC No. 45/11 thus, the alleged recovery of money from the possession of accused is also doubtful.

57. It was contended that neither the IO i.e. PW9 Inspector Virender Thakaran nor PW10 Sh. Rajesh Kumar TLO, have questioned the complainant regarding the payment of bribe.

58. It was contended that the statement of the complainant regarding payment of bribe is shaky, unnatural, contradictory and thus not believable and reliable.

59. It was submitted that the tainted money was planted upon the accused. The prosecution case regarding the recovery of the money from the left pocket of the pant of the accused is unnatural, inconsistent and unreliable. It was contended that evidence led by the prosecution regarding the recovery of money from the accused, the prosecution witnesses are contradictory.

60. It was contended that PW4 Sh. Uttam Prkash, the complainant, has stated that the accused had taken out the currency notes CC No. 45/11 from the pocket of his pant and handed over the same to CBI officials. On the other hand, PW1 Sh. Ravi Kant Sharma, the recovery witness has deposed that the money was recovered by him from the pant of the accused. It was contended that this is a material contradiction and therefore, the recovery of the money from the accused become doubtful.

61. PW5 Sh. Mahesh Kumar Sharma has given altogether a different version regarding the recovery of money by stating that CBI Officials had taken out the money from the pocket of the pant of the accused. It was also contended that PW3 Sh. V.K. Singhal Director of DDA has also not supported the prosecution case regarding the recovery of money from the possession of the accused as he has stated that nothing was done in his presence and he had only signed the Recovery Memo Ex. PW1/B, which had already been prepared before he reached the office of the accused.

62. It was contended that mere recovery of money is not sufficient to prove the case under Sections 7 and 13 (1)(d) r/w Section 13(2) of Prevention of Corruption Act. The presumption u/s 20 CC No. 45/11 of the Act, cannot be raised in the present case as per the law laid down in the judgments which have been discussed above.

63. It was contended that the evidence has come on record that the complainant has stated that he had shaken hands with the accused and therefore, there is every possibility that Phenolphthalein powder might have been transferred to the hands of the accused during the process of handshake between the complainant and accused.

64. It was contended that statement of PW6 Sh. K.S. Chhabra is of no help for the prosecution as he has deposed that the test was carried out by his Assistant who had prepared the work sheet, where the details have been mentioned. It was contended that the said worksheet has not been produced in the Court and therefore, the report of PW6 Sh. K.S. Chhabra looses its significance and importance for the reason that the same has not been proved in accordance with law.

65. It was also contended that the accused was hard working and dedicated officer of integrity. It was submitted that the accused CC No. 45/11 was granted special pay of Rs. 200/ per month in recognition of his duties and responsibilities. This fact has been proved by DW5 Sh. Om Prakash. The accused has also assisted CBI and Crime Branch of Delhi Police for investigation of the scam of allotment of flats. In recognition of his excellent assistance, he was awarded a certificate by CBI and Delhi Police. The said certificates are Ex. DW4/A and Ex. DW4/B. DW4 Sh. Vijay Malik ACP, has also corroborated this version of the accused. Sh. Anil Baijal has also appreciated the work done by the accused vide his endorsement " Good show. Keep it up."

66. It was contended that on 26.09.1995 Sh. Anil Kumar Vice Chairman of DDA gave remarks "Very good. Seen, well done. Efforts made by Sh. J.R. Gupta, Manager (A/C) L.M. deserves our sincere appreciation." The Note dated 31.05.1995 of the accused was also appreciated by the Member Finance, DDA, on 05.06.1995 as "Seen. Thanks. Good job done by M/LMA". Note of accused dated 04.08.1995 was also appreciated by Member Finance, DDA, vide his endorsement Ex. DW5/L by mentioning "a good job done by Manager LMA." Reliance CC No. 45/11 was placed upon AIR 1987 SC 2402, wherein, it was held that benefit of being honest and intelligent was given to the accused for accepting his plea of innocence.

67. It was contended that the investigation was not conducted properly and the investigation is faulty. The site plan was not correctly prepared as the room of the accused was not having the sliding door. This fact has been confirmed by DW5 Sh. Om Prakash, as this witness has deposed that there was door closer affixed on the door of the room of the accused. This fact was also corroborated by the statement of PW5 Sh. Mahesh Kumar Sharma as he stated that when he came out of the room, the door was closed automatically.

68. It was submitted that PW10 Sh. Rajesh Kumar did not state that by whom the hand washes and pocket washes of the accused were done and by whom the washes were transferred into the bottles and who had sealed the bottles by putting labels on the same. He also did not depose where exhibits were kept and the prosecution has not led evidence that who carried exhibits to CFSL and who had received back the same from CC No. 45/11 CFSL.

69. It was contended that PW7 Sh. Dharam Dev Negi has also partly investigated the case who had simply stated that he had recorded the statements of three witnesses. It was submitted that this IO also did not try to find out the true facts.

70. It was submitted that the prosecution has not been able to prove that the samples, after the same were sealed, remained intact and the same were not tampered with. It was contended that the personal search of the members of the trap party was not taken. There is nothing on record to show that before leaving for DDA office, the members of the trap party had washed their hands with soap and water.

71. It was also contended that the investigation was not conducted fairly and as per law which has caused prejudice to the accused. It was contended that PW8 Inspector P.K. Sharma and PW2 Sh. Brij Mohan Meena have not done any material investigation. It was contended that the faulty investigation has caused prejudice to the accused. It was submitted that the case was CC No. 45/11 registered against the accused without following the normal procedure and without verification of the complaint. The investigation agency has not made any effort to know about the appointing authority of the accused and on this ground the prosecution was held to be bad in law and the accused was made to face trial for a long period and ultimately he was acquitted for want of proper sanction for prosecution of the accused. Two recovered files i.e. D9 and D10 seized during the investigation were not properly examined to find out the defence of the accused. Two Log Books were seized along with the said files, but the same were not produced in the Court for the reason best known to the prosecution. After the acquittal of the accused, subsequent IO did not make any investigation. Therefore, the subsequent charge sheet against the accused has been filed without any investigation. It was submitted that the IO PW10 Rajesh Kumar TLO, has admitted that due to some urgent work, he was not able to go through the seized files i.e. D9 and D10. This shows that the said files were not examined and studied by the IO, which supports the case of the accused that he was innocent. It was contended that the investigation agency has ignored the role of the accused CC No. 45/11 regarding his sincerity and services which he rendered to the CBI and Delhi Police in investigation of various cases. Conclusion

72. The main thrust of argument of the Ld. Counsel for accused was that in the present case the prosecution has failed to prove that the accused has demanded any bribe from the complainant. The argument was supported with the reasoning that in this case the only witness examined by the prosecution to prove the demand of bribe is the complainant PW4 Sh. Uttam Prakash and his uncorroborated testimony cannot be accepted as he is an interested witness. Now, the question is that whether the uncorroborated testimony of the complainant can be accepted or not. As discussed above, at the time when the complainant went inside the room of the accused to pay illegal gratification to him, the shadow witness PW5 Sh. Mahesh Kumar Sharma accompanied him. It is an admitted fact that the shadow witness PW5 Sh. Mahesh Kumar Sharma was sent outside at the instance of the accused. It is also an admitted fact that PW5 Sh. Mahesh Kumar Sharma could not overhear the conversation which took place between the accused and the complainant. CC No. 45/11 Hence, the case regarding demand of bribe by the accused rests entirely upon the statement of the complainant PW4 Sh. Uttam Prakash. I am not in agreement with the contention of the Ld. Counsel for the accused that the uncorroborated testimony of the complainant cannot be accepted. In my view the complainant is not an accomplice and his testimony has to be accepted provided he is a reliable witness. The Ld. PP has placed reliance upon a judgment of Hon'ble Supreme Court in the case of C.M. Sharma Vs. State of Andhra Pradesh reported as (2013) 2 Supreme Court Cases (Criminal) 89, wherein, it was held that evidence of a person who was required by authorities to handover bribe money to the accused in trap is not an accomplice. It was also held that when the evidence of such a witness is found to be reliable, corroboration thereof is not required. Reliance was also placed by the Ld. PP on a judgment of Hon'ble Supreme Court which is reported as 2006 IV AD (Criminal) (S.C.) 465, wherein, it was held that prosecution is not required to prove the demand of bribe by direct evidence and the same can be proved by surrounding circumstances.

CC No. 45/11

73. The Hon'ble Supreme Court of India has held that demand of bribe can be proved by circumstantial evidence. It has been held that in a case where the complainant does not support the demand of bribe by the accused and even the shadow witness also does not support the prosecution case regarding the demand of money by the accused, even then, in such a case, the prosecution can prove the demand of bribe by the accused by other evidence led by the prosecution. In this regard, reliance can be placed upon a recent judgment of Hon'ble Supreme Court of India which was delivered on 21.01.2015 in Criminal Appeal No. 554 of 2012 in the case of Vinod Kumar Vs. State of Punjab.

74. The scrutiny of the statement of the complainant PW4 Sh. Uttam Prakash shows that he has very categorically deposed regarding the demand of bribe by the accused. He was crossexamined at length by the Ld. Counsel for the accused. It is important to note that the complainant PW4 Sh. Uttam Prakash was not crossexamined regarding his deposition in CC No. 45/11 respect of demand of bribe by the accused. Therefore, the testimony of the complainant to the effect that the accused had demanded money from the complainant has remained uncontroverted and unchallenged and, therefore, the same has to be accepted. Reliance can be placed upon the judgment of Hon'ble Delhi High Court which is reported as State Vs. Mohd. Afzal & Ors. 2003 VII AD(Delhi) 1, wherein, it was held that when a witness is not cross examined on any relevant aspect, the correctness of the statement made by the witness can not be disputed. Reliance can also be placed upon the judgment reported as State of Himachal Prasad Vs. Thakur Dass, 1983, Cr.L.J. 1694 1701 (HP), wherein, it was observed that whenever a statement of fact made by a witness is not challenged in crossexamination, it has to be concluded that the fact in question is not disputed. In another case titled as Motilal Vs. State of of Madhya Pradesh, 1990 Cri.l.J. NOC 125 MP, it was observed that if there is no crossexamination of a prosecution witness in respect of a fact it will only show the admission of that fact.

CC No. 45/11

75. It was also argued by the Ld. Counsel for the accused that as the accused did not demand any bribe from the accused and the prosecution has also not been able to prove that the accused has demanded any bribe from the complainant, there is no question of accepting any bribe by the accused from the complainant. Admittedly, the complainant is the only witness who has deposed that he has paid the bribe to the accused. It is also an admitted fact that the shadow witness PW5 Sh. Mahesh Kumar Sharma has not witnessed the payment of bribe by the complainant to the accused, therefore, the case of the prosecution that the bribe was paid by the complainant to the accused rests on the statement of the complainant PW4 Sh. Uttam Prakash.

76. The perusal of the statement of the complainant shows that he has very categorically deposed regarding payment of bribe by him to the accused. It is important to note that the complainant PW4 Sh. Uttam Prakash was not crossexamined by the defence Counsel regarding the statement of complainant in respect of acceptance of bribe by the accused and payment CC No. 45/11 thereof to the accused by the complainant. Therefore, the testimony of the complainant to the effect that the accused had accepted the bribe from the complainant and the complainant paid the bribe to the accused has remained uncontroverted and unchallenged and, therefore, the same has to be accepted in view of the judgments State Vs. Mohd. Afzal & Ors. (Supra), State of Himachal Prasad Vs. Thakur Dass (Supra) and Motilal Vs. State of of Madhya Pradesh (Supra).

77. It is settled position of law that the statement of the complainant regarding payment of bribe to the accused can be accepted without corroboration. Reliance in this regard can be placed upon the judgment of Hon'ble Supreme Court of India in the case of C.M. Sharma Vs. State of Andhra Pradesh (Supra), wherein, it was held that corroboration of testimony of planted bribegiver as to giving and taking of bribe by a shadow witness is not required.

78. It is also settled law that the payment of bribe can be proved by circumstantial evidence and passing of money is not required to CC No. 45/11 be proved by direct evidence. Reliance in this regard can be placed upon a judgment of Hon'ble Supreme Court reported as Hazari Lal Vs. State (Delhi Administration) (1980) 2 SCC

390.

79. The Ld. PP has placed reliance upon the judgment of Hon'ble Supreme Court which is reported as AIR 2001 SC 318, wherein, it was held that it is not necessary to prove by direct evidence that the accused has accepted gratification.

80. The scrutiny of the prosecution evidence shows that all the witnesses have deposed that the tainted money was recovered from the possession of the accused. It was contended by the Ld. PP that as the prosecution has proved that the tainted money was recovered from the possession of the accused, therefore, the presumption under Section 20 of the Prevention of Corruption Act has to be raised in favour of the prosecution. Reliance was placed upon the judgment of Hon'ble Supreme Court which is reported as AIR 2001 SC 318 (Supra), wherein, it was held that the presumption is compulsory and not discretionary. It was CC No. 45/11 also held that when the prosecution proves that the accused received the gratification from the complainant, the Court has to draw presumption that the gratification was accepted as reward for doing public duty.

81. During the course of arguments, it was also contended that the tainted money was planted upon the accused and the accused never demanded or accepted any money from the complainant. In this regard, it is important to note that the accused did not lead any evidence to show that the tainted money was planted upon the accused. He did not even step into the witness box to substantiate this plea and thus, has not offered himself to be crossexamined on this point. It has been discussed above that the complainant has categorically deposed that the bribe was demanded by the accused, the same was paid by the complainant to the accused and the tainted money was recovered from the possession of the accused. The testimony of the complainant in this regard has not been challenged by the accused during the crossexamination of the complainant. Therefore, the testimony of the complainant in this regard has be CC No. 45/11 accepted in view of the judgments referred above i.e. State Vs. Mohd. Afzal & Ors. (Supra), State of Himachal Prasad Vs. Thakur Dass (Supra) and Motilal Vs. State of of Madhya Pradesh (Supra). Hence, this plea of the accused is unsustainable and cannot be believed.

82. The case of the accused is that he was falsely implicated at the instance of Sh. K.J. Alphons, as Sh. Alphons was having a grudge against the accused for the reason that the accused did not use to follow the illegal dictates of Sh. Alphons. The accused has not led any cogent evidence in order to substantiate this plea of false implication at the instance of Sh. K.J. Alphons. He has made this assertion only in his statement under Section 313 Cr.P.C. The statement under Section 313 Cr.P.C. is not an evidence. This was so held in a case reported as Ranjit Mandal Vs. State 1997 Cr.L.J. 1586. Therefore, this plea of the accused cannot be accepted.

83. The contention of the Ld. Defence Counsel that the complainant and the accused were having strained relations as CC No. 45/11 the accused used to insist that the complainant should follow proper procedure for clearance of his bills, is of not much importance. The evidence of a witness cannot be discarded on the ground that the witness and the accused were having strained relations. The fact that the witness was inimical towards the accused by itself cannot be a ground for total rejection of the evidence of such witness. This was so held in the case of Sadhu Singh Vs. State of U.P. AIR 1978 SC 1506. This plea of the accused cannot be accepted in the light of the judgment of the Hon'ble Supreme Court which is reported as 2013 (2) SCC (Criminal) 89 (Supra), wherein, it was held that the plea of accused regarding payment of bribe was improbable in view of the strained relations with the accused from whom the bribe was allegedly demanded, cannot be accepted.

84. The contention of the Ld. Counsel for the accused that the accused has not stated in his statement that on 24.11.1995, before the trap was laid, the complainant visited the DDA office in the morning and came to know that his bills were pending with the accused and on this count his statement becomes CC No. 45/11 doubtful. In this regard, it is to be noted that the complainant has very categorically deposed regarding pendency of his files with the accused and this plea raised by the accused has no effect on the credibility of the complainant, if he is otherwise found trustworthy and reliable.

85. The contention of the Ld. Counsel for the accused that as the accused had already dictated the necessary Notes to his Stenographer DW1 Sh. Santosh Kumar on 23.1.1995, so there was no motive on the part of the accused to demand any bribe from the complainant. The stress of the Ld. Counsel for the accused was that as on 23.11.1995, the accused had already dictated the necessary orders pertaining to the files of the complainant, so there was no occasion for the accused to demand any bribe from the complainant, subsequent to his passing the necessary orders pertaining to the files of the accused.

86. The perusal of the statement of DW1 Sh. Santosh Kumar shows that he had typed the Notes in the evening of 23.11.1995 and he had not put any date thereupon as he was instructed by the CC No. 45/11 accused that the accused would put the date on it as and when he would put his signatures on the same. Now, the question is that as the Notes were dictated on 23.11.1995 and the same were typed on the same day, then what prevented the accused from putting his signatures on the said Notes on 23.11.1995. No explanation has been given by the accused regarding the circumstances which prevented him from signing the Notes on 23.11.1995. Rather, it is revealed that after preparation of the Notes, he did not sign the same on 23.11.1995 and also instructed his Stenographer not to put the date on the said Notes for the reason that he would put the date when he would sign the Notes. This all shows that the accused was to put the date and signatures on the Notes as per his convenience. Therefore, under these circumstances, the testimony of DW1 Sh. Santosh Kumar is of no help to the accused, rather, it goes against the accused for the reason that the accused did not sign the Notes on 23.11.1995 nor permitted his Stenographer to put the date on the Notes on 23.11.1995.

87. Evidence was also led by the accused to show that he was very strict as he used to do the official work as per the Rules and CC No. 45/11 procedure. The arguments advanced by the Ld. Counsel for the accused was that the complainant did not use to follow the proper procedure for the payment of his bills as the complainant did not use to submit the copies of the Log Books etc. along with his bills. The accused always insisted that the complainant should follow the proper procedure. Thus, it is clear that the accused always wanted that the complainant should follow the proper procedure for getting the payment of bills. At the same time, the evidence has been led by the accused that he had already passed the necessary orders on 23.11.1995 regarding the payment of bills of the complainant which were not supported by the copies of the Log Books etc. This means that the accused had passed the necessary orders ignoring the fact that the bills were not properly presented for payment.

88. It is also the case of the accused that the prosecution case is contradictory, as it is not clear that whether the accused demanded Rs. 1500/ or Rs. 1000/ from the complainant or that whether two or three files were pending with the accused. In my opinion, this is not a material aspect or contradiction for the reason that it is only to be seen that whether the accused CC No. 45/11 demanded any bribe from the complainant and whether the complainant paid any bribe to the accused and accused has accepted the same from the complainant. Some minor contradictions were also pointed out by the Ld. Defence Counsel in the statements of the witnesses. It is a fact that with the passage of time the human memory fades away and therefore, such minor contradictions are bound to occur in the statements of witnesses when they are examined after a gap of time. The said contradictions are natural and have to be ignored as they are not fatal to the prosecution case. Reliance in this regard can be placed upon the judgment of the Hon'ble Supreme Court in a case reported as Krishna Pillai Sree Kumar vs. State of Kerala AIR 19811237, wherein, it was held that the prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies etc. go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the incongruities obtaining in the evidence. In the CC No. 45/11 latter, however, no such benefit may be available to it. It was further held that it is a salutary method of appreciation of evidence in criminal cases.

89. It was also contended that PW5 Sh. Mahesh Kumar Sharma has not supported the prosecution case in entirety and was declared hostile by the prosecution. The scrutiny of the statement of PW5 Sh. Mahesh Kumar Sharma shows that he has supported the prosecution case on all the material points. He was not hostile on any material point. Even otherwise, the testimony of a hostile witness cannot be discarded altogether. It is settled position of law that the Court can safely rely upon that portion of the testimony of such witness which supports the prosecution case.

90. The contention of the Ld. Counsel for the accused that the statement of PW5 Sh. Mahesh Kumar Sharma cannot be relied as he has turned hostile, is without any merit. The perusal of his statement shows that he has supported the prosecution case on all the material points. He was crossexamined by the Ld. PP CC No. 45/11 on some aspects. He is not a hostile witness. Even if, for the sake of arguments, we presume that he is a hostile witness, even then, his testimony cannot be washed off altogether. Reliance can be placed upon a judgment of Hon'ble Supreme Court which is reported as (1976) 1 SCC 389, wherein, it was held that even if a witness is crossexamined as a hostile witness, his evidence cannot be completely effaced. The said evidence remains admissible in trial. Similar view was held in Syad Akbar Vs. State of Karnataka (1980) 1 SCC 233. In the Case of Vinod Kumar Vs. State of Punjab (Supra), the Hon'ble Supreme Court has upheld the conviction in a case where the complainant and shadow witness have turned hostile in a bribery case, as the other witnesses had supported the prosecution case.

91. The contention of the Ld. Counsel for the accused that the prosecution case becomes doubtful as neither there is any videography nor any tape recorded conversation to corroborate the prosecution case. This contention is without any merit as such type of evidence is only a corroborative evidence and not CC No. 45/11 the substantiative evidence. There is no requirement under the law that videography and tape recorded conversation is essential to prove the case. It was also pointed out that the complainant is not much educated and the perusal of the complaint shows that it has been drafted on the instructions of someone else. This contention is also without any merit.

92. It was also contended by the Ld. Defence Counsel that the Phenolphthalein powder might have transferred to the hands of the accused while the accused shook hands with the complainant. PW10 Sh. Rajesh Kumar TLO has stated that before proceeding for DDA Office all the members of the team washed their hands with soap and water. But, there was no crossexamination of this witness by the defence counsel on this point. Therefore, his testimony has to be accepted in this regard in view of the judgments State Vs. Mohd. Afzal & Ors. (Supra), State of Himachal Prasad Vs. Thakur Dass (Supra) and Motilal Vs. State of of Madhya Pradesh (Supra). Hence, this contention of the Ld. Defence Counsel is without any force. Thus, it is proved that before proceeding to the office of the CC No. 45/11 accused, the complainant had washed his hands with soap and water, therefore, there is no question of transfer of Phenolphthalein powder to the hands of the accused in the process of handshaking.

93. It was contended that PW3 Sh. V.K. Singhal has not supported the prosecution case. The scrutiny of the deposition of Sh. V.K. Singhal shows that he has deposed that he had come at the spot after the incident was over. Meaning thereby, he was not present at the time of recovery of the tainted money from the possession of the accused. In my view, even if PW3 Sh. V.K. Singhal has not supported the prosecution case, the prosecution case cannot be thrown away on this ground, because it is well settled law that the conviction can be based on the testimony of a sole witness provided he is a reliable and trustworthy. The plurality of evidence is not the rule of law. Reliance in this regard can be placed upon a judgment of Hon'ble Supreme Court which is reported as Jagdish Prasad Vs. State of M.P. AIR 1994 SC 1251. Thus, the fact that Sh. V.K. Singhal has not supported the prosecution case is not fatal to the prosecution CC No. 45/11 case. Reliance can also be placed upon AIR 1940 Oudh 35, wherein it was held that evidence has not to be considered merely as a number of bits of evidence, but the whole and cumulative effect of the same is to be weighed.

94. The other contention of the Ld. Counsel for the accused is that the prosecution has not been able to prove the Report Ex. PW6/A for the reason that PW6 Sh. K.S. Chhabra has not personally analyzed the hand washes and pocket wash of the pant of the accused. In my view, this is not a ground to discard the prosecution version for the reason that PW6 Sh. K.S. Chhabra being Head of the Chemistry Division was not supposed to personally analyze or examine all the samples which were brought there in the department for examination. This chemical examination was done by his Assistant under his supervision. The contention of the Ld. Counsel that the rough notes prepared at the time of examination have also not produced in the Court, is not material as the said rough notes were prepared only for their convenience for preparing the final report. No motive has been alleged on the part of this witness to depose falsely. Moreover, as the demand of bribe, acceptance CC No. 45/11 of bribe and recovery thereof has been proved, so, the contention raised by the Ld. Defence Counsel is of not any importance and is not fatal to the prosecution case.

95. During the course of arguments, it was pointed out that the investigation has not been conducted properly and the same is faulty. Certain instances in this regard were pointed out such as the site plan is not correct and the prosecution has not been able to prove that by whom the samples were taken from CBI office to CFSL, nor evidence has been led as to who had brought back the samples/exhibits from CFSL to the CBI office. However, the accused has not been able to demonstrate any prejudice caused to him on account of the said faulty investigation. Therefore, in the absence of any prejudice having been caused to the accused on account of faulty investigation, the accused cannot drive any benefit. Reliance can be placed upon the judgment of the Hon'ble Supreme Court which is reported as 2009 IV AD (SC)34, wherein, it was observed that the shoddy investigation cannot be a foundation for the accused person to take advantage of shoddiness. The Hon'ble Supreme Court of CC No. 45/11 India, in a case reported as AIR 1988 SC 1850 titled as Ram Bihari Yadav Vs. State of Bihar & Ors., has held that the failure or omission or negligence on part of I.O. cannot affect the credibility of the prosecution version. Reliance can also be placed upon the judgment of the Hon'ble High Court of Delhi in a case reported as 2009 IX AD ( DELHI)71 Ahmed Ali Sardar Vs. State, wherein, the same view was held.

96. All the witnesses have supported the prosecution case. The case is even supported by the independent witnesses i.e. PW1 Sh. Ravi Kant and PW5 Sh. Mahesh Kumar Sharma. No motive has been alleged on their part to falsely depose in the Court.

97. In view of the above discussion and the judgments referred above, the case law relied upon by the Ld. Defence Counsel is of no help for the accused.

98. The fact remains that the complainant has proved a demand of bribe by the accused and acceptance of bribe by the accused as CC No. 45/11 it has been noted above, the testimony of the complainant in this regard has remained uncontroverted and unchallenged and therefore, the same has to be accepted. The recovery of tainted money has been fully proved by the complainant and other two public witnesses. All the witnesses have stood firm and remained unshaken in their crossexaminations and nothing has been elicited to dislodge their testimony. Therefore, from the evidence led by the prosecution, it is proved that on 24.11.1995 the accused being a public servant had demanded bribe from the complainant and he accepted the bribe of Rs. 1000/ from the complainant. It is also proved that the recovery of tainted money was effected from the accused. The prosecution has also been able to prove that the accused being a public servant has committed criminal misconduct and by abusing his position as a public servant and by illegal means obtained a pecuniary advantage to the extent of Rs. 1000/.

99. In view of the foregoing discussion, the prosecution case stands proved and the accused is held guilty for the offences punishable under Section 7 and Section 13(1) (d) r/w Section 13(2) of The Prevention of Corruption Act, 1988. Hence, the CC No. 45/11 accused is convicted thereunder.

100. The accused shall be heard separately on the point of sentence. Announced in the Open Court on 28.04.2015 (Surinder Kumar Sharma) Special Judge, P.C. Act (CBI) 09, Central District, Tis Hazari, Delhi.

CC No. 45/11 IN THE COURT OF SURINDER KUMAR SHARMA SPECIAL JUDGE, P.C. ACT (CBI) 09, CENTRAL DISTRICT TIS HAZARI : DELHI CC No. 45/11 R.C. No. 104(A)/95 Central Bureau of Investigation Versus Shri Jeevan Ram Gupta Son of Shri Lakhmi Chand Gupta A38, Munirka New Delhi.


07.05.2015

Present :          Sh. Mohd. Shakeel Ld. PP for CBI.
                   Convict with Sh. C. Sahai Advocate.

Order on Sentence

I have heard the Ld. Addl. PP for the CBI and Sh. C. Sahai Ld. Counsel for the Convict. I have also perused the file and heard the Convict on the point of Sentence.

CC No. 45/11

It was submitted by the Ld. PP for the CBI that the Convict does not deserve any leniency. It was submitted that the maximum punishment should be warded to the Convict. On 01.05.2015, Sh. A.K. Kushwaha Ld. PP for CBI has also submitted that the Convict should be awarded maximum punishment as provided under the law. He has also contended that a heavy fine should be imposed upon the Convict.

It was submitted by the Ld. Counsel for the Convict that a lenient view should be taken against the Convict. It was submitted that the Convict is a senior citizen aged 72 years and is suffering from various ailments. It was contended that the Convict has faced the trial for a considerable long period and has suffered a lot. The Convict was chargesheeted and earlier he faced trial. He was acquitted of the charges on the ground that the sanction for prosecution of the accused was not proper. Thereafter, the Convict was again chargesheeted and he faced the trial. Now, he has been convicted by this Court. It was submitted that the Convict has remained in JC for about 22 days.

It was submitted by the Convict that he is not keeping well, his wife also requires his assistance as she is bedridden. The Convict also submitted that his financial condition is not good and he is depending solely on a meager amount of about Rs. 14000/ which CC No. 45/11 he is getting as his pension.

In view of the facts and circumstances of the case, I am of the considered view that ends of justice would be met if the Convict is sentenced to undergo RI for one year with a fine of Rs. 5000/ for the offence punishable under Section 7 of The Prevention of Corruption Act, 1988 and RI for two years with a fine of Rs. 7000/ for the offence punishable under Section 13(1)(d) r/w Section 13(2) of The Prevention of Corruption Act, 1988. The Convict is sentenced accordingly.

The Convict shall undergo RI for one year with a fine of Rs. 5000/ for the offence punishable under Section 7 of The Prevention of Corruption Act, 1988, in default of payment of fine, the Convict shall undergo SI for five months. The Convict shall undergo RI for two years with a fine of Rs. 7000/ for the offence punishable under Section 13(1)(d) r/w Section 13(2) of The Prevention of Corruption Act, 1988, in default of payment of fine, the Convict shall undergo SI for seven months. Both the Sentences shall run together. Benefit of Section 428 Cr.P.C. be given to the Convict.

Copy of the Judgment and Order on Sentence be given immediately to the Convict, free of cost. Bailbonds are cancelled. The surety is discharged. The case property be confiscated to the CC No. 45/11 State after the expiry of the period of filing the Appeal.

File be consigned to Record Room.

Announced in the Open Court on 07.05.2015 (Surinder Kumar Sharma) Special Judge, P.C. Act (CBI) 09 Central District, Tis Hazari Delhi CC No. 45/11 CC No. 45/11

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