Delhi District Court
State vs . Shiv Kumar Page 1 Of 14 on 24 January, 2015
1
IN THE COURT OF SH. NAROTTAM KAUSHAL, SPECIAL
JUDGE
(PC Act)05, (ACB), (CENTRAL),
TIS HAZARI COURTS, DELHI
Date of Institution : 19.12.2013
Date of reserving the Judgment : 22.01.2015
Date of pronouncing the Judgment : 24.01.2015
Corruption Case No. : 20/2013
FIR No. : 08/2011
Case Identification No. : 02401R0657722013
Police Station : Anti Corruption Branch
Under Section : 7/13 of Prevention of
Corruption Act, 1988
STATE
Versus
Shiv Kumar
S/o Sh. Ramji Gupta
R/o N15/BR13, Indira Vikas Colony,
Nirankari Colony, Delhi09.
JUDGMENT
1.1 One Inder Mohan Verma approached PSACB, Delhi Police by way of his complaint dated 3.10.2011. As per the complaint, one Shiv Kumar, who was working in the office of ZE, Delhi Jal Board, had demanded bribe of Rs. 600/ from him in context of his application for water connection. On the complaint of aforesaid, Inder Mohan Verma, a State Vs. Shiv Kumar Page 1 of 14 2 raiding party was constituted, which included a panch witness Bhagwati Prasad. Raid was conducted at the office of Delhi Jal Board, Sant Nirankari Colony, where accused Shiv Kumar was caught red handed while demanding and accepting bribe of Rs. 600/.
1.2 Raid Officer prepared the raid report, took the hand wash and pocket wash of shirt of the accused, which turned pink indicating presence of phenolphthalein powder, which had been previously applied on the GC notes. Accused was apprehended, arrested and FIR was got registered against him. After conclusion of investigation, charge sheet was filed before this court on 19.12.2013.
2. This court vide order dated 06.01.2014 took cognizance of offence punishable u/sec.7/13 (1) (d) of Prevention of Corruption Act, 1988 (hereinafter referred to as 'the PC Act'). Accused was summoned and provisions of section 207 Cr. P.C. were complied with. Vide order dated 07.03.2014, charge for offences punishable u/sec.7/13(1) (d) r/w section 13 (2) of the PC Act was framed. Accused pleaded not guilty and claimed trial.
3.1 Prosecution in support of its case examined 12 witnesses. HC Suraj Pal (PW5) was the Duty Officer at PS ACB on 3.10.2011. He deposed having received the rukka at 8.00 PM and on the basis thereof he recorded FIR No. 08/11. HC Chander Singh (PW2) was the MHC(M) at PS Civil Line on 3.10.2011. He has proved deposit of exhibits including hand wash/pocket wash bottles, pulanda of shirt of the accused and the State Vs. Shiv Kumar Page 2 of 14 3 recovered GC notes in the malkhana on 3.10.2011. He further deposed that on 9.12.2011 exhibits RHW1 and LSPSW1 were received back from FSL, brought by Ct. Anil Kumar. Prosecution further examined Ct. Anil (PW1), who deposed having collected remnants exhibits and report from FSL, Rohini on 9.12.2011 and deposited the same with MHC(M). Ct. Ashok Kumar (PW4) proved having deposited the exhibits RHW1 and LSPSW1 at FSL, Rohini, on 2.11.2011. HC Ram Kumar (PW3) was MHC(M) on 2.11.2011. He has deposed that he had sent Ex. RHW1 and Ex. LSPSW1 to FSL through Ct. Ashok Kumar. All the four aforesaid witnesses further deposed that case property was not tampered with, as long as it remained in their respective custody.
3.2 Prashant Goyal (PW6), Commissioner, Trade & Taxes, Department of Government of NCT, Delhi proved having granted sanction to prosecute accused Shiv Kumar. A.K. Bhardwaj (PW8) proved the biodata of accused Shiv Kumar.
3.3 Complainant Inder Mohan Verma (PW9) was examined and cross examined by Ld. Additional PP. He did not support the prosecution case, as regards the demand and acceptance of bribe by accused Shiv Kumar. However, he identified his complaint Ex. PW9/A but stated the same to have been recorded after the raid. Panch witness Bhagwati Prasad (PW10) also resiled from his previously recorded statement. He also did not support the prosecution case, as regards the demand and acceptance of bribe at the time of trap.
State Vs. Shiv Kumar Page 3 of 14 4 3.4 Inspector Yash Pal Singh (PW12) was the Raid Officer. He proved the entire preraid and postraid proceedings. He also proved the recovery of treated GC notes from the possession of the accused. Inspector B.K. Singh (PW11) was the IO of the case. He has proved the proceedings carried out by him after the trap had been successfully laid and recovery effected.
4. Incriminating evidence was put to the accused and his statement u/s 313 Cr. P.C. was recorded. He admitted being baildar in Delhi Jal Board on 3.10.2011. He denied having dealt with the application of Inder Mohan Verma, for water connection of his house. He denied having demanded bribe of Rs. 600/ from complainant, in lieu of getting water connection for him. He expressed ignorance about the pretrap proceeding. He denied having reached near the main gate of Sant Nirankari School, carrying the water connection file of complainant. He denied having demanded and accepted bribe from the complainant. He denied recovery of treated GC notes from left side pocket of his shirt. He denied the hand wash and pocket wash with Sodium Carbonate solution or the same turning pink. He denied knowledge of seizure of water connection file of complainant. He claimed the sanction to have been wrongly accorded. He further stated that complainant and panch witness had not supported the case of prosecution and there was no evidence of demand and acceptance of bribe. He had been falsely implicated. He declined the offer to lead evidence in defence.
State Vs. Shiv Kumar Page 4 of 14 5
5. Shri B.B. Bhasin, Ld. Additional Public Prosecutor has argued that though there is no direct evidence of demand and acceptance by accused; yet there are several circumstances, which indicate acceptance of bribe by the accused and raise the presumption u/s 20 of PC Act against him. It is argued that recovery of treated GC notes from the possession of accused, presence of accused at the spot where raid was conducted, presence of phenolphthalein powder on his hands and in his pocket and seizure of water connection file of complainant are vital factors which establish conscious acceptance of bribe by the accused. He has accordingly argued that prosecution u/s 20 PC Act has been raised and there is no evidence to rebut the presumption, on record. Shri Bhasin has relied upon the law laid down by the Hon'ble Supreme Court in M. Narsinga Rao Vs State of A.P.(2001) 1 SCC 691 & Har Prasad Gaur Vs State in Cr. Appeal No. 782/2008 decided on 19.12.2014 by the Hon'ble High Court of Delhi.
6. Shri Yogesh Verma, Ld. defence counsel has argued that there is absolutely no evidence of demand and acceptance of bribe. The complainant has not supported the case regarding demand of bribe by the accused. He has deposed about the presence of another person with the accused, who had demanded the bribe. He has further deposed that complaint was got written by him after he returned from the raid. It is, thus, argued that mere filing of complaint does not prove the demand. Reliance has been placed upon law laid down in Criminal Appeal No. State Vs. Shiv Kumar Page 5 of 14 6 809/2005 titled Roshan Lal Vs State decided on 8.10.2010 by Hon'ble High Court of Delhi. It is argued that panch witness has not supported the case of the prosecution. He had not witnessed any transaction at the spot between the complainant and the accused. Challenging the testimony of Raid Officer/Inspector Yash Pal ( PW12), it is argued that there is no corroboration to his testimony of recovery of treated GC notes from the possession of accused. Assailing the presumption u/s 20 of the PC Act, it is argued that in the absence of demand or conscious acceptance having been proved, presumption cannot be raised. Reliance has been placed upon M. Narsinga Rao Vs State of A.P.(2001) 1 SCC 691 and C.M. Girish Babu Vs CBI 2009 (3) SCC 779.
7. I have heard Ld. counsels and with their assistance perused the record. To prove initial demand of bribe, which lead to lodging of complaint, complainant is the only cited witness. While appearing in the witness box as PW9, complainant Inder Mohan Verma, turned coat. He introduced the presence of a third person namely Parvez, who allegedly made the demand of bribe from him. He deposed that one person would come and stand with him, in the office of accused and the said person offered to facilitate grant of water connection and demanded Rs. 1,000/, which was negotiated and settled at Rs. 600/. He, however, identified his hand writing and signatures on complaint Ex. PW9/A, against accused Shiv Kumar. Nevertheless he diluted the effect of complaint by saying that the same was written after the raid, State Vs. Shiv Kumar Page 6 of 14 7 when the accused had been apprehended. Despite invasive cross examination by Ld. Additional PP he did not support his initial case. Thus, it can be safely concluded that there is no evidence on record of demand of bribe by the accused, prior to the day of trap.
8. To prove demand of bribe at the time of trap, complainant and panch witness are the two cited witnesses. Complainant Inder Mohan Verma (PW9) in his examination in chief did not depose anything about the raid. On being cross examined by Ld. Additional PP, he denied the suggestion that accused Shiv Kumar had demanded Rs. 600/ from him. Panch witness Bhagwati Prasad (PW10) also caused a major dent to the case of the prosecution as regards the demand of bribe, at the time of trap. He deposed in his examination in chief that at the spot of trap, when he was walking with the complainant towards the complainant; he was hit by a cow and had fallen down. By the time he got up, he saw that accused had been apprehended and was being taken away. Cross examination by Ld. Additional PP could not illicit any statement supporting the demand of bribe at the time of trap. There is, thus, no evidence of demand of bribe at the time of trap, as well.
9. As regards acceptance of treated GC notes as bribe, at the time of trap; complainant Inder Mohan Verma (PW9) did not state anything in his examination in chief and denied the suggestion by prosecution that he had handed over treated GC notes to the accused, which he received in his right hand and kept in left side pocket of his State Vs. Shiv Kumar Page 7 of 14 8 shirt. Panch witness (PW10) claimed having fallen down on being hit by the cow and had not heard or seen the transaction. There is, thus, complete vacuum as regards the evidence of conscious acceptance of treated GC notes.
10.1 Prosecution has of course successfully brought on record some evidence regarding recovery of treated GC notes from the possession of the accused. Complainant Inder Mohan Verma (PW9) and panch witness Bhagwati Prasad (PW10) have in unison denied suggestion of recovery of treated GC notes having been made in their presence from the possession of the accused, at the spot. The hand wash and shirt pocket wash proceedings of the accused have also been denied by both of them. However, RO /Inspector Yash Pal (PW12) has deposed about recovery of treated GC notes having been effected from the left side pocket of shirt of the accused. He has also deposed that serial numbers of recovered GC notes, when tallied with serial numbers recorded in raid report were found to be matching. The right hand wash of accused and left side pocket wash of his shirt were taken in Sodium Carbonate solution, which turned pink. The FSL report Ex. PW7/A found presence of Phenolphthalein powder in both the washes. 10.2 Thus, it is sole testimony of RO, which supports the case of prosecution as regard recovery of treated GC notes from the possession of accused, at the spot of trap. The question that would arise before this court is to weigh the sole testimony of RO, viz a viz the retracted State Vs. Shiv Kumar Page 8 of 14 9 testimony of complainant and panch witness. There is no dispute to the preposition that testimony of police officials ought not to be disbelieved, merely for the reasons that they are police officials. However, in the given situation when an independent witness arranged by the raiding team, contradicts the testimony of RO, a doubt is caused therein. It is not a case where testimony of the RO has gone unrebutted and uncontroverted. Two other witnesses of same proceedings have made statements contradictory to that of RO. A doubt is thus created about the proceedings by the panch witness and complainant. Panch witness Bhagwati Prasad (PW10) though admitted his signatures on the raid report but did not depose that the raid report was prepared simultaneous to raid proceeding at the spot. He has rather deposed that the entire proceedings were concluded by the time he could get up after being hit by the cow, at the spot. He has further deposed that after the accused was apprehended at the spot, they returned to PS ACB and treated GC notes were recovered from the pocket of the accused, thereafter. However, he identified his signatures on the raid proceeding. Prosecution chose not to examine him whether the raid report were prepared at the spot. A clear picture as to whether the raid report was prepared and signed at the spot, would have corroborated the testimony of RO. However, on being cross examined by Ld. Additional PP he went on to deny the hand wash and pocket wash proceedings to have been done in his presence. Complainant has of course denied recovery of GC notes and hand State Vs. Shiv Kumar Page 9 of 14 10 wash/pocket wash proceedings to have done at the spot. The court is thus posed with the testimony of RO, which is materially contradicted by the testimony of complainant and panch witness. Fundamental tenet of criminal law, that guilt of the accused ought to be proved beyond reasonable doubt, is hit by the evidence as noticed above. It will, therefore, be unsafe to hold that recovery of treated GC notes from the possession of the accused, at the spot, is proved beyond reasonable doubt.
11. Ld. Additional PP has laid great emphasis on unexplained circumstances. Presence of accused at the spot, recovery of Water Connection file of complainant from the possession of the accused and the recovery of GC notes brought by complainant from the possession of accused are the factors, which have been high lighted by the Additional PP. As discussed in paras 7 to 10 above, demand, acceptance and recovery of GC notes from the possession of the accused is not proved beyond reasonable doubt. Presence of accused at the spot of trap and recovery of Water Connection file of complainant from the possession of the accused, are of course suspicious circumstances; which have not been duly explained by the defence. However, this court is of the opinion that suspicious circumstances alone, which are not the core issue, would not be sufficient to raise the presumption of demand and acceptance of bribe.
12. Sh. Bhasin has also referred to law laid down in Har Prasad State Vs. Shiv Kumar Page 10 of 14 11 Gaur Vs State (Supra) and argued that in the cited case, recovery of treated GC notes from the possession of the accused, as proved by RO was held to be sufficient evidence, to raise presumption u/s 20 of the PC Act. This court has gone through the law laid down in Har Prasad Gaur's (Supra) case. There can be no dispute with the law laid down therein. However in the facts and circumstances of the said case, the testimony of RO had gone unrebutted and unimpeached. The complainant and panch witness had both not stepped into the witness box, as they had both passed away. There was thus no doubt created in the testimony of RO. However, in the present case a major dent has been created in the testimony of RO as complainant and panch witness have both denied the proceedings of recovery, hand wash and pocket wash to have been carried out at the spot. I am, thus, of the opinion that the law laid down in Har Prasad Gaur's (Supra) case is not applicable on the facts of the present case.
13. It can also not be ignored that the Hon'ble Supreme Court in K.S. Panduranga Vs State of Karnataka 2013 Vol. 3 SCC 721 reiterated that demand and acceptance of illegal gratification is sine qua non for constitution of offence under PC Act. It was It was restated as under: It is well settled in law that demand and acceptance of the amount as illegal gratification is sine qua non for constitution of an offence under the Act and State Vs. Shiv Kumar Page 11 of 14 12 it is obligatory on the part of the prosecution to establish that there was an illegal offer of bribe and acceptance thereof.
The law laid down in M. Narsinga Rao's case was relied upon and further deliberated upon by the Hon'ble Supreme Court in C.M. Girish Babu's case, which is later in time. In the said case it has been held as under: 18: In Suraj Mal Vs State (Delhi Admn.) this Court took the view that (at SCC p. 727, para 2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.
20: A three Judge Bench in M. Narsinga Rao V State of A.P. While dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification. State Vs. Shiv Kumar Page 12 of 14 13 14, For the reasons discussed in paras 7 to 13, I am of the opinion that prosecution has failed to proved beyond reasonable doubt that accused Shiv Kumar demanded and accepted bribe from the complainant. In the absence of proving the condition precedent, presumption u/s 20 of the PC Act cannot be attracted. I find no merits in the arguments of Ld. Additional PP that accused has failed to rebut the presumption. Onus is first cast upon prosecution to establish beyond reasonable doubt that there was demand and conscious acceptance of amount by the accused, only thereafter the presumption that the same was illegal gratification can be drawn. Accused is entitled to benefit of doubt and is accordingly acquitted. However, in terms of sec.437 (A) Cr.P.C., accused is directed to furnish a bail bond for the amount of Rs.50,000/ with one surety in the like amount, to appear before the appellate court, as and when such notice is issued in respect of any appeal, which may be filed against this judgment.
15. Before parting with the judgment it shall be pertinent to refer to the conduct of complainant. He has denied that there was any demand of bribe by the accused. He has introduced one Parvesh @ Parvez to have demanded facilitation fee from him. However, he has admitted complaint Ex. PW9/A to be in his hand writing. On being cross examined by Ld. Additional PP, he stated that complaint was not written voluntarily by him. He admitted that he did not mention the name of Parvesh @ Parvez in the complaint. He also stated that he had not lodged State Vs. Shiv Kumar Page 13 of 14 14 any complaint against the RO or IO for having coerced him, in writing false complaint against accused Shiv Kumar. He had also not protested when he was asked to write complaint Ex. PW9/A.
16. From the testimony of complainant as notice above, it is apparent that he is not stating the true facts. Either his complaint Ex. PW9/A was false or his testimony before the court on oath is false. Statement made under oath, before this court shall have to be put on higher pedestal than the signed complaint. I am thus of the opinion that he has made a false charge against the accused, who is a public servant of having committed the offence punishable under PC Act. Complainant has thus committed offence punishable u/s 211 IPC. In my opinion it would be apposite to initiate proceedings u/s 344 Cr. P.C. against the complainant for having made a false statement.
File be consigned to Record Room.
Announced in the open Court (NAROTTAM KAUSHAL)
on 24.01.2015 SPECIAL JUDGE (PC ACT)05
(ACB), TIS HAZARI COURTS
DELHI
State Vs. Shiv Kumar Page 14 of 14