Delhi District Court
State vs . 1. Mohar Singh on 21 September, 2012
IN THE COURT OF SHRI B.R. KEDIA, SPECIAL JUDGE07
(CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
C.C.NO. : 27/12
Unique Case ID : 02401R0058542009
STATE VS. 1. MOHAR SINGH
S/o Sh. Rati Ram,
R/o RZ/B1/24, Raghu Nagar,
Pankha Road, New Delhi.
2. DAYA NAND
S/o Late Sh. Ram Diya,
R/o Village Biland Pur,
Distt. Sonipat, Haryana.
FIR NO. : 22/2007
U/S : 7/13 of Prevention of Corruption
Act, 1988 r/w Section 120B IPC
P.S. : Anti Corruption Branch, Delhi
Date of Institution 10.02.2009
Judgment reserved on 17.09.2012
Judgment delivered on 21.09.2012
C.C. No. 27/12 Page No. 1 of 29
JUDGMENT
1. The precise case of the prosecution is that on dated 11.04.2007 complainant Naresh Kumar S/o Om Prakash went to Anti Corruption Branch, Delhi and got lodged his complaint Ex.PW2/A regarding initial demand of bribe of Rs.20,000/ which was scaled down to Rs.4,500/ by the accused Mohar Singh posted as SI/Incharge and accused Daya Nand posted as HC at Police Post Sector 16, Rohini, Delhi for not booking the complainant for offence punishable U/S 120 B IPC in connection with stealing of iron by his Guard.
2. The gist of the said complaint is that the complainant Naresh Kumar had been doing business of security service and on 10.04.2007 at about 05:45 am he received Phone call from Parshuram Institute, Rohini that his Guard had sold certain iron to the Kabadi. Thereafter, he reached said Institute and came to know that his Guard had been taken to Police Post, Sector16, Rohini, on which he reached there where accused Mohar Singh and Daya Nand threatened to implicate him with the Guard in the said case for offence punishable U/S 120 B IPC and demanded Rs.20,000/ which was scaled down to Rs.4,500/ for not implicating him in said case. The complainant had agreed to pay said bribe amount at about 06:00 pm on 11.04.2007 at C.C. No. 27/12 Page No. 2 of 29 the Police Post Sector16, Rohini and since he was against giving of bribe, so he went to Anti Corruption Branch and got his Complaint lodged before the then Inspector Sunil Kumar, Raid Officer PW20 in presence of Panch witness Azad Singh PW5.
3. The further case of the prosecution is that the complainant has produced Rs.4,500/ in the form of 9 GC notes of Rs. 500/ each before the Raid Officer PW20 who noted down the serial numbers of said GC notes in the Preraid Poceedings Ex.PW2/B and treated the said GC notes with phenolphthalein powder. Thereafter, Raid Officer PW20 gave demonstration to the Panch witness and complainant by getting touched the right hand of the Panch witness with that treated currency notes and wash of the right hand of the Panch witness in the colourless solution of sodium carbonate which turned into pink colour. Thereafter, said GC notes were handed over to the complainant and Panch witness was instructed to remain close with the complainant and to overhear the conversation between the complainant and the person demanding the bribe amount and to give signal by moving his right hand twice over his head after being satisfied that the bribe has actually been given. C.C. No. 27/12 Page No. 3 of 29
4. That at about 05:20 p.m., PW20 Raid Officer along with complainant, Panch witness, Inspector D.L. Negi and other members of the Raiding team left Anti Corruption Branch in a government vehicle for Police Post Sector16, Rohini and reached there at about 06:05 p.m. The government vehicle was kept at a distance and Inspector D.L. Negi and Driver remained in the vehicle. The complainant and Panch witness went towards Police Post Sector16, Rohini. Raid Officer alongwith the members of the raiding team took suitable position. At about 06:22 p.m. complainant and Panch witness came back and informed the Raid Officer that accused Mohar Singh had gone with some persons in a Car and asked them to wait. Thereafter, they went back to the Police Post as per the instruction of the Raid Officer.
5. Further, case of the prosecution is that at about 08:30 p.m. on receiving the predetermined signal from Panch witness, Raid Officer alongwith the Raiding team went inside the Police Post where Panch witness informed that the accused Daya Nand had demanded and accepted the bribe money of Rs.4,500/ from the complainant.
6. Thereafter, Raid Officer after disclosing his identity C.C. No. 27/12 Page No. 4 of 29 challenged the accused Daya Nand that he had demanded and accepted the bribe of Rs.4,500/ from the complainant. On his directions, Panch witness recovered bribe amount of Rs.4,500/ from right back pocket of his uniform pant and compared the serial numbers of those GC notes with serial numbers mentioned in Preraid Proceedings Ex.PW2/B and the same tallied. That recovered GC notes were taken into possession vide seizure memo Ex.PW2/C. Thereafter, right hand wash of accused Daya Nand was taken in colorless solution of sodium carbonate which turned into pink and solution was transferred into two empty small clean bottles which were sealed with the seal of SK and were marked as RHWI & RHW II by pasting slips thereon which were signed by Raid Officer, complainant and Panch witness. Thereafter, pant of the accused was taken off and wash of right back pocket of uniform pant of accused Daya Nand was also taken in colourless solution of sodium carbonate which turned into pink and solution was transferred into two empty small clean bottles which were sealed with the seal of SK and were marked as RSBPPWI and RSBPPWII. Raid Officer also seized pant of the accused Daya Nand and sealed the same with the seal of SK and prepared two Sample Seals on two separate sheet of papers. Said bottles, Pant pullanda and Sample seal were seized vide Seizure C.C. No. 27/12 Page No. 5 of 29 Memo Ex.PW2/D. Raid Officer drawn up the Post Raid Proceedings Ex.PW5/A and prepared Rukka Ex.PW20/A and sent the same through Ct. Yogesh Kumar to PS Anti Corruption Branch for registration of the case.
7. The further case of the prosecution is that the Raid Officer called the then Inspector D.L. Negi PW18/IO at the spot and handed over him the custody of accused Daya Nand, case property, recovered GC notes of Rs.4,500/, Seizure Memo, copy of Raid Record and Documents etc. for purpose of Investigation. IO took up the Investigation, prepared the Site Plan Ex.PW18/A, arrested the accused Daya Nand vide Arrest Memo Ex.PW5/C and conducted his personal search vide Memo Ex.PW5/B. IO received the Rukka and copy of FIR Ex.PW8/A and got accused Daya Nand medically examined and thereafter, he was put in the lock up and case properties were deposited with the MHC(M). During the course of investigation, relevant case properties were sent to FSL and FSL Report was obtained. During the course of investigation, SI Mohar Singh was arrested vide Arrest Memo Ex.PW19/C and his personal search was conducted vide Memo Ex.PW19/B. Biodata, Posting Order and Sanction of the accused were obtained during the course of the C.C. No. 27/12 Page No. 6 of 29 investigation. IO on recording the statement of the witnesses and after completion of the Investigation, prepared the chargesheet and filed in the court.
8. After compliance with the provision U/S 207 of Cr.P.C and after hearing both sides on the point of charge, charge for offence punishable U/S 7 and U/S 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988 were framed against both the accused persons on 13.08.2010 to which they pleaded not guilty and claimed trial.
9. Thereafter, in order to bring home the guilt of the accused, the prosecution got examined 21 prosecution witnesses namely Ct. Raju N., a formal witness as PW1, Naresh Kumar, Complainant as PW2, ACP Prem Nath, as formal witness as PW3, SI K.L. Meena, a formal witness as PW4, Azad Singh, Panch witness as PW5, Brij Mohan, a formal witness as PW6, Manish Aggarwal, the then DCP, Sanctioning Authority as against the accused Daya Nand as PW7, SI Anand Kumar, a formal witness as PW8, Sh. N.S. Bundela, the then DCP, NorthWest Delhi, Sanctioning Authority as against accused Mohar Singh as PW9, Dr. Rajinder Singh from CFSL as PW10, C.C. No. 27/12 Page No. 7 of 29 Inspector Rajni Saroha, a formal witness as PW11, Lal Dev Yadav, a formal witness as PW12, Narain Singh, a formal witness as PW13, HC Vikal Singh, a formal witness as PW14, HC Surender Kumar, a formal witness as PW15, Ct. Yogesh Kumar, a formal witness as PW16, HC Om Prakash, a formal witness as PW17, The then Inspector D.L. Negi, IO as PW18, Inspector Rajesh Kumar, Part IO as PW19, Inspector Sunil Kumar, Raid Officer as PW20 and P.K. Gautam from CFSL as PW21.
10. After closure of the PE, statement of both the accused under Section 313 Cr.P.C. were recorded in which both the accused denied about any demand and acceptance of the bribe from the complainant and they claimed to be falsely implicated in this case. However, accused have got examined Naresh Kumar, UDC as DW1, HC Shailender as DW2, HC Pradeep as DW3, Ct. Jagdish Prasad as DW4 and SI Bal Kishan as DW5 in their defence evidence and thereafter, DE was closed.
11. I have heard Final Arguments as addressed by Sh. Sandeep Sharma, Adv. Ld. Counsel for the accused Mohar Singh, Sh. Sanjay Gupta, Adv. Ld. Counsel for the accused Daya Nand and Sh.Vinod C.C. No. 27/12 Page No. 8 of 29 Kumar Sharma, Ld. Addl. PP for the State and perused the relevant record, including written submissions as filed on behalf of both the accused persons.
12. It is submitted by Ld. Counsel for the accused Mohar Singh that this accused is innocent and has been falsely implicated in this case. It is further added by him that this accused Mohar Singh has neither demanded nor accepted any bribe from the complainant. It is further added by him that PW2/Naresh Kumar complainant has even not deposed anything as against this accused regarding any demand and acceptance of bribe. It is also added by him that this accused was not even present at the spot at the time of alleged demand and acceptance of bribe. It is further added by him that even PW5/Azad Singh, Panch witness has also not deposed anything regarding demand and acceptance of any bribe as against this accused Mohar Singh. It is further added by him that PW5/Azad Singh Panch witness clearly deposed that he did not know accused Mohar Singh nor he had seen him during the incident. It is further added by him that as there is no material on record as against this accused Mohar Singh to establish demand and acceptance of bribe and hence, this accused deserves to be acquitted. It is also added by him that on 10.04.2007 this accused C.C. No. 27/12 Page No. 9 of 29 vide DD No. 5 Ex.DW2/A left at 03:15 am alongwith Police Staff for Baba Ramdev Shivir at Japani Park and returned back vide DD No. 9 at 07:40 am and then remained in the PP till 01:40 pm and then left for petrolling and therefore, there was no question for any meeting with the complainant on 10.04.2007. It is also added by Ld. Counsel that similarly this accused was not present at the relevant time on dated 11.04.2007 at the Police Post as he had gone alongwith ASI Bal Kishan with the Juveniles for producing them in the Juvenile Court but as they got late, they were directed to produce the Juveniles in the court of Duty MM, Rohini and accused Mohar Singh moved application Ex.DW4/A for taking PC Remand of Juvenile Om Prakash and they have reached Juvenile Home, Delhi Gate at about 06:30 pm and handed over the custody of other Juvenile there. It is also added by Ld. Counsel that none of the PWs have deposed anything regarding demand and acceptance of any bribe as against this accused Mohar Singh. It is also added by Ld. Counsel that as the CDs were not played in the court being found broken, the alleged conversation could not be proved. Ld. Counsel for accused thus urged for acquittal of this accused Mohar Singh.
13. Similarly, it is submitted by Ld. Counsel for the accused Daya C.C. No. 27/12 Page No. 10 of 29 Nand that this accused is innocent and has neither demanded nor accepted any money from the complainant and prosecution has failed to prove said facts and hence, this accused deserves to be acquitted. It is also added by him that though the prosecution is duty bound to prove the initial demand of bribe as well as the subsequent demand of bribe at the crucial time of transaction against the accused but same could not be established by the prosecution in the present case. It is also added by him that PW2/Naresh Kumar complainant had not deposed anything regarding demand and acceptance of the bribe as against this accused. It is also added by him that said complainant has even disowned his complaint Ex.PW2/A and has not deposed anything as against this accused. It is also added by Ld. Counsel that PW5/Azad Singh Panch witness has also not deposed about demand of bribe as against this accused and said PW5 has also clearly deposed that he has not heard any conversation between the accused and the complainant. It is also added by him that even the alleged recovery of the GC notes could not be established by the prosecution and as the Recovery Memo of GC Notes Ex.PW2/C and Seizure Memo of the washes Ex.PW2/D do not find bear the signature of the accused and could not be properly proved and the recovery in this respect could not be established by the prosecution. It is also added by him that C.C. No. 27/12 Page No. 11 of 29 even the Post Raid Proceedings including the Wash Proceedings were found to have not conducted at the spot but were conducted at the Office of Anti Corruption Branch as per the likings of the IO which is clearly found established from the deposition of PW2/complainant and PW5/Panch witness and therefore, same is fatal for the case of the prosecution. It is also added by him that since the currency notes and pant of accused were produced in unsealed condition before the court, the possibility of tampering of the same cannot be ruled out. It is also added by him that the mere recovery in the absence of the proof of demand as against the accused is not sufficient to establish the offence as against the accused. It is also added by him that as there are several contradiction on various aspects in the deposition of PWs which falsify the case of the prosecution. It is also added by Ld. Counsel that since the CD was produced in broken condition in the court and hence, could not be played in the court, the alleged conversation in the CD could not be proved. It is also added by Ld. Counsel that the IO had not seized the original Chips of the Mobile Phone containing the alleged conversation and even the secondary CDs have been seized after about 10 months and as it could not be duly proved, same can be of no help for the prosecution. It is also added by him that even the Sanction as granted by PW7 concerning the accused Daya C.C. No. 27/12 Page No. 12 of 29 Nand is legally invalid and show nonapplication of mind. It is also added by him that the innocence of this accused also found from the deposition of DWs and same falsify the case of the prosecution. It is also added by him that as the prosecution has miserably failed to prove its case beyond reasonable doubt, accused deserve to be acquitted and in support of his contention referred and relied upon following judgments:
1. 2009 (4) RCR (Cr.) 217 SC, "State Vs. Dnyaneshwar Rao"
2. 1976 SCC (Cr.) 566 SC, "Rabindra Kr. Vs. State"
3. 2007 Cr.L.J. 754 SC, "V. Venkata Subarao Vs. State"
4. 1980 SCC (Cr.) 121, "Pannalal Rathi Vs. State"
5. 2009 (4) RCR (Cr.) 880 Delhi, "Ram Chander Vs. State"
6. AIR 2003 SC 2169, "Subhash Parbat Vs. State"
7. AIR 2010 SC 1589, "Banarasi Das Vs. State"
8. 2010 (2) RCR (Cr.) 285 SC, "Javed Masood Vs. State"
9. AIR 2007 SC 489, V. Venkata Subbarao Vs. State"
10. (2006) 1 SCC 401, "T. Subramaniam Vs. State"
11. AIR 2003 SC 2169 (Supra), "Subhash Parvat Vs. State"
12. 2010 (4) LRC 73 Delhi, "Bhagwan Singh Vs. State"
13. 2011 (1) CC Cases 219 Delhi, "Roshan Lal Vs. State"
14. AIR 1979 SC 1408, "Suraj Mal Vs. State"
C.C. No. 27/12 Page No. 13 of 29
15. AIR 2010 SC 1589 (Supra), "Banarasi Dass Vs. State"
16. JT 1987 (1) SC 281, "Bal Kishan Vs. State"
17. 2009 (2) RCR (Cr) 812 SC, "State Vs. Mohan Lal"
18. 2003 Cr.L.J. 4286 (Calcutta), "Kailash Chand Vs. State"
19. 2006 (1) RCR (Cr.) 421 SC, "State Vs. Rashid Mulani"
20. AIR 2006 SC 628, "State Vs. K. Narsimhachary"
21. 1994 (1) CCC 509 Delhi
22. 1993 (1) CCC 316 Delhi
23. 2004 (3) RCR (Cr.) 774 SC, "Anil Sharma Vs. State"
14. To the contrary, it is submitted by Ld. Addl. PP for the State that the prosecution by examining 21 PWs have clearly established its case as against both the accused persons and therefore, both the accused deserve to be convicted for the charged offences. It is further added by Ld. Addl. PP for the State that mere fact that PW2 Naresh Kumar complainant has turned hostile being won over by the accused persons can be of no help for the accused persons. It is further added by Ld. Addl. PP for the State that PW5 Panch witness has clearly deposed as against the accused regarding demand and acceptance of bribe. It is further added by Ld. Addl. PP that there is no reason as to why PW5 Panch witness, PW18 IO and PW20 Raid Officer could C.C. No. 27/12 Page No. 14 of 29 falsely implicate the accused persons specifically when they have no prior enmity against the accused persons. It is also added by Ld. Addl. PP that Audio CDs and the Transcription and the FSL Result substantiate the offence as against the accused persons. Ld. Addl. PP for the State thus urged for conviction of both the accused persons for the charged offence.
15. That during the course of argument, it is submitted by Ld. Counsel for the accused Mohar Singh that this accused is innocent and has been falsely implicated in this case. It is further added by him that this accused Mohar Singh has neither demanded nor accepted any bribe from the complainant. It is further added by him that PW2/Naresh Kumar complainant has not deposed anything as against this accused regarding any demand and acceptance of bribe. It is also added by him that this accused was not even present at the spot at the time of alleged demand and acceptance of bribe. It is further added by him that even PW5/Azad Singh, Panch witness has also not deposed anything regarding demand and acceptance of any bribe as against this accused Mohar Singh. It is further added by him that PW5/Azad Singh Panch witness clearly deposed that he did not know accused Mohar Singh nor he had seen him during the incident. It is C.C. No. 27/12 Page No. 15 of 29 further added by him that as there is no material on record as against this accused Mohar Singh to establish demand and acceptance of bribe and hence, this accused deserves to be acquitted. Similarly, it is submitted by Ld. Counsel for the accused Daya Nand that this accused is innocent and has neither demanded nor accepted any money from the complainant and prosecution has failed to prove said facts and hence, this accused deserves to be acquitted. It is also added by him that though the prosecution is duty bound to prove the initial demand of bribe as well as the subsequent demand of bribe at the crucial time of transaction against the accused but same could not be established by the prosecution in the present case. It is also added by him that PW2/Naresh Kumar complainant had not deposed anything regarding demand and acceptance of the bribe as against this accused. It is also added by him that said complainant has even disowned his complaint Ex.PW2/A and has not deposed anything as against this accused. It is also added by Ld. Counsel that PW5/Azad Singh Panch witness has also not deposed about demand of bribe as against this accused and said PW5 has also clearly deposed that he has not heard any conversation between the accused and the complainant.
16. From the perusal of the record, it is reflected that C.C. No. 27/12 Page No. 16 of 29 PW2/Naresh Kumar who is the complainant and prime witness of the prosecution is found to have not supported the stand of the prosecution and despite searching cross examination by Ld. Addl. PP, no material to substantiate the stand of the prosecution could be extracted from him. As said PW2/Naresh Kumar, complainant has not deposed anything regarding demand and acceptance of bribe by the accused from him. Said PW2/Naresh Kumar, complainant has deposed that he has been running business of Security Service and in April 2007 he received a Phone call from Parshuram Institute that his Guard had been apprehended while committing theft of iron and thereafter, he reached there and coming to know that his Guard has been taken to PP Sector16, Rohini, he went there and talked to 23 Police persons who threatened to implicate him in the said case and thereafter, matter was settled for Rs.10,000/ out of which he gave Rs. 5,500/ to one Police Official and assured to pay the balance amount on next day and thereafter, he was let off by them. He also deposed that he did not know the names of Police Officials who met him in the PP or anyone to whom he had paid Rs.5,500/. Said PW2/complainant further deposed that on the next day he went to AC Branch and met SHO and handed over him a written complaint but said complaint is not on record as it was torn by the SHO and his C.C. No. 27/12 Page No. 17 of 29 signatures were obtained on the blank papers. He specifically deposed that the Complaint Ex.PW2/A though bears his signature at point A but he do not know the contents in the said Complaint. He has also deposed that he had not given the names of Police Officials in the Complaint which he had given to the SHO. Said PW2/complainant further deposed that he alongwith Inspector Sunil Sharma and some other persons left AC Branch and reached PP Sector16, Rohini. He further deposed that he went inside PP and found one person in Police Uniform but without name plate and asked him about the IO of the case regarding theft of iron by his Security Guard but as said IO was not present, he waited for him about one hour and when he did not turned up, he talked to Inspector Sunil Sharma on his mobile phone and as per his instruction he had given GC Notes of Rs.4,500/ to said Police Official who was present in the PP. Said PW2/complainant has specifically deposed that said Police Official to whom he had given Rs.4,500/ was not present in the court. Said PW2/complainant further deposed that after sometime as per the instruction of Inspector Sunil Sharma he reached AC Branch and remained there for about 22 ½ hours. He specifically deposed that his signatures were obtained by Raid Officer on some papers, some of which were blank and some were written and thereafter, he left AC C.C. No. 27/12 Page No. 18 of 29 Branch.
17. Said PW2/Complainant, Naresh Kumar is found to have been cross examined by Ld. Chief PP on behalf of the State but no material to help the stand of the prosecution could be extracted from him. He has denied the specific suggestion of Ld. Chief PP that Complaint Ex.PW2/A is the same Complaint which he had handed over to the Raid Officer in the AC Branch. He also denied the suggestion that Preraid Proceedings were held by the Raid Officer before the Raid. Said PW2/complainant is found to have completely denied regarding the suggestion of Ld. Chief PP concerning demand of the bribe by the accused Daya Nand from him as he has deposed in this respect as under : "I do not know any police official in the name of Daya Nand. It is further wrong to suggest that in the meanwhile HC Daya Nand came to us and demanded the GC Notes in the presence of panch witness................................................................................. It is further wrong to suggest that after sometime said Daya Nand came in the uniform and again demanded the bribe C.C. No. 27/12 Page No. 19 of 29 amount.................................................................................. It is further wrong to suggest that said Daya Nand took me to one temporary tea shop and demanded the bribe amount and I gave the GC notes to said Daya Nand who accepted the same in his right hand and kept the same in the back right pocket of his pant."
Said PW2/complainant is found to have not supported the stand of the prosecution regarding the recovery of the GC Notes, taking Handwash and Pant wash of accused Daya Nand and Postraid Proceedings and seizure of Audio CDs from him by the IO. Said PW2/complainant is thus found to have not deposed anything as against both the accused for demand and acceptance of bribe from him.
18. Similarly, from the deposition of PW5/Panch witness Azad Singh, it is also reflected that he has not deposed anything as against accused Mohar Singh as he has deposed that he do not know accused Mohar Singh and deposed in this respect as under : "I do not know accused Mohar Singh Meena present in the court today. I had not seen this person on the day of incident."
C.C. No. 27/12 Page No. 20 of 29
19. Furthermore, from the deposition of said PW5/Panch witness Azad Singh, it is also reflected that he has not deposed anything regarding demand of bribe by the accused Daya Nand from the complainant. Said PW5/Panch witness has categorically denied the suggestion of Ld. Addl. PP in this respect and has deposed as under : "It is incorrect to suggest that the said person in plain cloth started demanding money from the complainant on the pretext of giving the money to chowki incharge upon which complainant declined and told him that he would give the money to chowki Incharge himself otherwise chowki incharge would demand the money again from me................................................................. It is incorrect to suggest that while talking, the said person with the complainant came out of the gate followed by me and as soon as we reached near the gate said person again demanded the money but complainant declined to give the money and after a short time that person further asked the complainant to accompany him upto the market............................................. C.C. No. 27/12 Page No. 21 of 29 It is incorrect that accused Dayanand when he came after wearing the uniform he demanded money from the complainant after calling him but this time also complainant refused to give the money and on this head constable Dayanand went back inside the police post and after a short time he came out and went towards the ring road on his scooter and we both kept waiting there for Chowki incharge."
20. Furthermore, said PW5/Panch witness Azad Singh has reiterated in the cross examination by Ld. Counsel for the accused Daya Nand that no specific demand was made by anyone from the complainant in his presence as he has deposed in this respect as under : "It is correct that no specific demand was made by anybody from the complainant in my presence. I did not hear any conversation between the complainant and accused."
In view of the aforesaid deposition of PW5/Panch witness, C.C. No. 27/12 Page No. 22 of 29 it is clearly reflected that he has not deposed anything as regards the demand of bribe by any of the accused from the complainant at the spot.
21. In view of the aforesaid deposition of both most material PWs i.e. PW2/Naresh Kumar, complainant and PW5/Azad Singh, Panch witness, it is clearly reflected that the prosecution has failed to establish regarding the factum of "demand of bribe" by the accused persons from the complainant and therefore, the presumption as contemplated U/S 20 of Prevention of Corruption Act, 1988 cannot be attracted in this case and my said view is found supported from the judgment as rendered by Hon'ble Supreme Court of India in the case reported as AIR 2007 SC 489 "V.Venkata Subbarao vs. State represented by Inspector of Police, A.P." In Para 24 of the said judgment, it was observed by Hon'ble Supreme Court of India as under: "Submission of the learned counsel for the State that presumption has rightly been raised against the appellant, cannot be accepted as, inter alia, the demand itself had not been proved. In the absence of a proof of demand, the question of raising the presumption would C.C. No. 27/12 Page No. 23 of 29 not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of a presumption only if a demand is proved".
22. In the absence of proof of "Demand of bribe" by the accused persons, I am of the considered view that the accused persons cannot be held liable for penal provisions U/S 7 and Section 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988 and my said view is found supported from the following judgments: (1)2006 (1) SCC 401 "T.Subramanian Vs. State of Tamil Nadu"
(2) 2005 Crl.L.J. 1136 "State of H.P. Vs. Sukhdev Singh Rana"
(3) 2007 Crl.L.J. 2919 "State of M.P.vs. Anil Kumar Verma"
(4) 2006 (3) RCR (Crl.) 796 "Amrit Lal vs. State of Punjab"
(5) 2000 Crl,.L.J. 4591 "State of M.P. Vs. J.B.Singh"
(6) 2006 (1) RCR (Crl.) 314 "L.K.Jain vs. The State"
(7) 2005 (4) RCR (Crl) 716 "R.V.Subba Rao Vs. State"
(8) AIR 1979 SC 1408 "Suraj Mal Vs. State"
(9) 1992 (3) RCR (Crl.) 139 "Pritam Singh vs. State of Haryana"
(10) 2009 (4) LRC 275 (SC) "State of Maharastra Vs. Dnyaneshwar Laxman Rao Wankhede"
C.C. No. 27/12 Page No. 24 of 29
23. Furthermore, though it is the stand of the prosecution that the complainant Naresh Kumar has got recorded the conversation regarding the bribe through his mobile phone and submitted two Audio CDs to the IO/Inspector Rajesh Kumar PW19 which were seized on dated 13.02.2008 vide Mark PW2/B and on the basis of said CDs, the Transcription Ex.PW11/A was got prepared in the presence of Panch witness Sh. Lal Dev Yadav/PW12 but said stand of the prosecution could not found to be substantiated due to following reasons : (A) During the course of deposition PW2/complainant Naresh Kumar has not deposed to the effect that he has got recorded the alleged conversation of bribe through his Mobile Phone. (B) There is no explanation by the IO as to why the original Chip of the Mobile of the complainant containing the alleged conversation of bribe was not seized from the complainant by him. (C) There is no explanation by the IO as to why Two Audio CDs were seized from the complainant on dated 13.02.2008 i.e. after more than 10 months of the incident and not earlier, in case it was available with the complainant.
(D) PW2/complainant Naresh Kumar has categorically denied about seizure of any such Audio CD by the IO from him as he has C.C. No. 27/12 Page No. 25 of 29 specifically denied the suggestion of Ld. Chief PP in this respect as under : "It is wrong to suggest that the C.D. (Audio) was seized by the IO of the present case. (Vol. The signatures at Point A on the seizure memo Mark PW2/B does not bear my signatures). It is further wrong to suggest that the seizure memo Mark PW2/B was prepared at the time of handing over of the C.D. and thereafter I put my signatures at Point A."
(E) PW12/Panch witness Lal Dev Yadav who has signed on the Seizure Memo of Audio CD Mark PW2/B and the Transcription of Audio CD Ex.PW11/A has neither deposed that said Audio CDs were delivered by the PW2/complainant Naresh Kumar to the IO in his presence nor deposed the Transcription of the CD was prepared in his presence. As said PW12/Panch witness Lal Dev Yadav has deposed in this respect as under: "On 13.2.2008, I was posted as Horticulture Assistant in Director Horticulture Development Department, 11th floor, MSO Building, ITO, New Delhi. On that day I had joined the investigation of this case as panch witness. On C.C. No. 27/12 Page No. 26 of 29 that day Inspector Rajesh Kumar told me that he had received two CDs. Inspector Rajesh Kumar checked both the CDs in computer but I could not identified and understand the voices therein. On that day file could not be completed so I was asked by Inspector Rajesh Kumar to come next day. However I was not on duty on the next day but on the instruction of the inspector Rajesh Kumar I also went on the next day to meet him and waited for inspector Rajesh Kumar upto 3.00pm. Thereafter I met to Duty officer who told me that inspector Rajesh Kumar was busy somewhere in Mehrauli area so I was asked by the duty officer to go from there. I can identify my signatures. Seizure memo of audio CD Ex.PW2/B bears my signature at point B. Memo of transcription of CD copy A, Ex.PW11/A bears my signature at points B." (F) Said PW12/Lal Dev Yadav in his cross examination by Ld. Addl. PP had denied the specific suggestion that two Audio CDs were taken into possession from complainant Naresh Kumar as he has deposed in this respect as under : "It is wrong to suggest that two audio CDs were taken C.C. No. 27/12 Page No. 27 of 29 into possession from Naresh Kumar."
(G) Said PW12/Lal Dev Yadav in his cross examination by Ld. Counsel for accused Mohar Singh has further deposed in this respect as under : "The CDs when checked, it was found that it contains inaudible voice. On hearing the CD, I told that the voices were not clearly audible to me.
The transcription Ex.PW11/A was prepared by the inspector on its own. As the voices were not clear the same were not got identified by anyone in my presence. Vol. the transcription must be prepared by the person who had identified the voices. I signed over the transcription as I was directed to do so by the IO." (H) The Audio CD Mark A was produced in the court in broken condition during trial and therefore, said Audio CD could not be played in the court and its Transcription Ex.PW11/A could not be verified and substantiated.
24. In view of the aforesaid deposition of PW2/complainant Naresh Kumar and PW12/Panch witness Lal Dev Yadav whereby denying the Seizure of Audio CDs by the IO from the complainant C.C. No. 27/12 Page No. 28 of 29 Naresh Kumar and preparation of the Transcription of CD by the IO on 13.02.2008 and specifically keeping in mind that as the CD Mark A being found in broken condition could not be played in the court during the trial, its Transcription Ex.PW11/A being suffer from several infirmities, can be of no help for supporting the stand of the prosecution.
25. In view of the aforesaid discussion, I have no hesitation to safely conclude that as the prosecution has failed to establish its case as against the accused persons for the charged offence and therefore, both the accused persons namely Mohar Singh and Daya Nand are ordered to be acquitted of the charged offence. Resultantly, their bail bonds stand cancelled and their sureties stand discharged. Announced in the open court on this 21st day of September, 2012 (B.R. Kedia) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC,Delhi C.C. No. 27/12 Page No. 29 of 29