Delhi District Court
State vs . Guru Prasad on 12 July, 2013
IN THE COURT OF SHRI B.R. KEDIA, SPECIAL JUDGE07
(CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
C.C.NO. : 49/12
Unique Case ID : 02401R0344962012
STATE VS. GURU PRASAD
S/o Sh. Pancham,
R/o C121, Lakhi Ram Park,
P.S.Aman Vihar, Delhi86
FIR NO. : 39/2008
U/S : 7/13 of Prevention of Corruption Act,
1988
P.S. : Anti Corruption Branch, Delhi
Date of Institution 11.07.2012
Judgment reserved on 05.07.2013
Judgment delivered on 12.07.2013
JUDGMENT
1. The precise case of the prosecution is that on dated 11.12.2008 the complainant Ram Avtar S/o Sh. Ram Dev came to C.C. No. 49/12 Page No. 1 of 49 Anti Corruption Branch and got lodged his Complaint Ex.PW5/A before the Inspector Dharamvir Singh, Raid Officer/PW17 in the presence of Panch witness PW10/Mahinder Singh Lakra regarding initial demand of bribe of Rs.10,000/ which was later on scaled down to Rs.5000/ besides Rs.1400/ already received by the accused Guru Prasad who was posted as UDC in Slum and J.J. Department, MCD, Jwala Puri, Delhi in consideration for not sealing and the cancellation of allotment of the House of the complainant.
2. The gist of the said complaint is that House No.D5/5, Sultan Puri was alloted in the name of the father of the complainant and the adjacent House i.e. D5/4 was purchased by them and thereafter, they jointly built up both said Houses. On 20.11.2008, one Notice from the Office of Assistant Director, Slum Department, Jwala Puri thereby asking for the documents relating to the said House was received by them and in pursuance of the same, the complainant sent the relevant documents by post. Thereafter, on 3.12.2008, the accused Guru Prasad came to their House and introduced himself as Inspector in Slum Department of MCD, Jwala Puri and as per his instructions, when the complainant met him at his Office, he obtained an Application from the complainant to the effect that he has already C.C. No. 49/12 Page No. 2 of 49 submitted the relevant documents and demanded bribe of Rs.10,000/ for saving their House from sealing and cancellation of allotment and thereafter, on 5.12.2008, the complainant has sent part amount to the accused through his friend Vrindavan and requested for time for balance amount. On 5.12.2008, the complainant came to the Office of Anti Corruption Branch and the complainant was provided with one Recording Instrument to get recorded the conversation with the accused and one Police man also accompanied him to the MCD Office, Jwala Puri. The accused agreed for taking Rs.5000/ balance besides Rs.1400/ received and said conversation was got recorded by the complainant and said Recording Instrument was deposited in the Office of Anti Corruption Branch by the complainant. Since on 5.12.2008 the accused during conversation had stated that the large share of the bribe amount goes to the Senior Officers and small amount of bribe would remain with him, the complainant on 10.12.2008 again obtained Recording Instrument from the Office of Anti Corruption Branch and sent the same with his friend Hari Om for talking to the Assistant Director (Senior Officer of the accused) and after talking to him, said Recording Instrument was again deposited in the Office of Anti Corruption Branch by the complainant. The accused has demanded for the balance bribe amount of Rs.5000/ to C.C. No. 49/12 Page No. 3 of 49 be payable to him outside his Office during lunch time on that day i.e. 11.12.2008 otherwise he would initiate the file for demolition of House of the complainant. As the complainant could arrange only Rs.2000/, he brought the said amount but as he was against giving of bribe, he went to Anti Corruption Branch and got his complaint lodged before the Inspector Dharamvir Singh, Raid Officer PW17 in presence of Panch witness Mahinder Singh Lakra, PW10.
3. The further case of the prosecution is that on dated 11.12.2008 at about 10:00 a.m. when Raid Officer/the then Inspector Dharamvir Singh, PW17 was present at PS Anti Corruption Branch, said Complaint Ex.PW5/A was marked to him and complainant Ram Avtar met him and thereafter, Raid Officer called Panch witness Mahinder Singh Lakra, PW10 who had also gone through the said Complaint and talked to the complainant. Thereafter the complainant produced the 4 GC notes of Rs.500/ each. The Raid Officer PW17 noted down the serial number of said GC notes in the preraid proceedings Ex.PW5/B and treated the said GC notes with phenolphthalein powder. Thereafter, Raid Officer PW17 gave demonstration to the Panch witness, complainant by getting touched the right hand of the Panch witness with that treated currency notes C.C. No. 49/12 Page No. 4 of 49 and wash of the right hand of the Panch witness in the colourless solution of sodium carbonate which turned into pink. 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 taking off his spectacles after being satisfied that the bribe has actually been given.
4. On that day at about 11:00 a.m. SI Karnail Singh produced 2 CDs to the Raid Officer which were played on Computer and the complainant on seeing the same stated that the CDs were containing the sting operation conducted on 5.12.2008 and 10.12.2008, the said CDs were marked as C1 and copy of the same as Mark C1/1 and said CD Mark C1 was converted into a pullanda sealed with the seal of DVS and CD Mark C1/1 was kept open for Investigation purpose and both said CDs were taken into possession vide Seizure Memo Ex.PW5/F.
5. That PW17 Raid Officer along with complainant, Panch witness, Inspector Harish Kumar and other members of the Raiding party left Anti Corruption Branch in a Government vehicle at about C.C. No. 49/12 Page No. 5 of 49 12:15 p.m. on dated 11.12.2008 and reached near Rohtak Road, Jwala Puri in front of DTC Depot and vehicle was parked there and Inspector Harish Kumar alongwith the Driver remained in the vehicle. Complainant and Panch witness proceeded towards the Office of the accused and stood at the Main Gate where Mohan Soni, friend of the complainant also joined them and the members of the Raiding team took suitable position.
6. The further case of the prosecution is that at about 1:30 p.m. accused came out from his Office and started talking with the complainant and thereafter, the accused, complainant and Mohan Soni reached inside the nearby Park and raiding team also followed them. The accused along with complainant and Mohan Soni sat on an open bench lying in the Park and Panch witness sat on the grass behind them and raiding team took suitable position. Complainant took out the GC notes from his shirt pocket and handed over the same to the accused on which the Panch witness gave the predetermined signal and the Raiding team reached at the spot and surrounded the accused who was having GC notes in his right hand. Complainant informed the Raid Officer that accused had demanded and accepted bribe of Rs.2000/ from him and kept the same in his right hand. Thereafter, C.C. No. 49/12 Page No. 6 of 49 Raid Officer after disclosing his identity, offered the search of Raiding team to the accused for which he declined. On his directions, Panch witness recovered the 4 GC notes of Rs.500/ each from the right hand of the accused and compared the serial number of that GC notes with serial number mentioned in pre raid proceedings Ex.PW5/B and the same tallied. That recovered GC notes were taken into possession vide seizure memo Ex.PW5/D. The wash of right hand of the accused 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 DVS and were marked as RHWI & RHWII by pasting slips thereon which were signed by Raid Officer, complainant and Panch witness. Two specimen seals of DVS were prepared. Said two bottles along with two specimen seals of DVS were taken into possession vide Seizure Memo Ex.PW5/E. Raid Officer also drawn up the post raid proceedings which is Ex.PW5/C and prepared Rukka Ex.PW17/A and sent the same through Ct. Manoj Kumar to PS Anti Corruption Branch for registration of the case and copy of the FIR is Ex.PW1/A.
7. The further case of the prosecution is that the Raid Officer called PW16/Inspector Harish Kumar IO at the spot and handed over C.C. No. 49/12 Page No. 7 of 49 him the custody of the accused, case property and relevant documents etc. for purpose of Investigation. I.O. took up the Investigation, prepared the Site Plan Ex.PW16/A. IO interrogated the accused and arrested him vide Arrest Memo Ex.PW10/A and conducted personal search vide Memo Ex.PW10/B. Accused was medically examined and thereafter, put up in the lock up and case property was deposited in malkhana of PS Civil Line. During course of investigation,relevant exhibits were sent to FSL, Rohini and subsequently, FSL Report was obtained. During course of Investigation, IO obtained Biodata of the accused which is Ex.PW11/A. During the course of Investigation, accused was asked to give his voice sample vide Notice Ex.PW18/D for which the accused gave refusal which is Ex.PW18/E. IO also obtained the sample voice of the complainant as well as Mohan Soni, friend of the complainant and preserved the same in audio cassettes. IO also obtained the Sanction for launching the prosecution as against the accused which is Ex.PW6/A. During course of investigation, IO recorded the statement of complainant and Panch witness and other relevant witnesses. IO on recording the statement of the witnesses and after completion of the Investigation, prepared the chargesheet and filed in the court.
C.C. No. 49/12 Page No. 8 of 49
8. After compliance with the provision Under Section 207 of Cr. P. C. and after hearing both sides on the point of charge, charge for offence punishable U/S 7 and 13 (2) r/w 13(1) (d) of Prevention of Corruption Act, 1988 and U/S 419/420 IPC was framed against accused on 01.10.2012 to which the accused pleaded not guilty and claimed trial.
9. Thereafter, in order to bring home the guilt of the accused, the prosecution got examined 18 prosecution witnesses namely HC Satya Prakash, Duty Officer, a formal witness as PW1, HC Jitender, a formal witness as PW2, Ct. Krishnan Dasan, a formal witness as PW3, Ct.Manoj Kumar, a formal witness as PW4, Ram Avtar, complainant as PW5, Promila H. Bhargav, Sanctioning Authority against the accused as PW6, Kamal Singh, Assistant Director, North Zone, Jwala Puri, a formal witness as PW7, Dr.C.P.Singh, Assistant Director (Physics), FSL, Rohini, a formal witness as PW8, Sukhbir Singh, a formal witness as PW9, Mahinder Singh, Panch witness as PW10, C.S.Negi, Assistant Director, Commercial Estate, DDA, a formal witness as PW11, HC Jai Prakash, the then MHC(M), PS Civil Lines, a formal witness as PW12, Karnail Singh, the then SI, PS AC Branch who has prepared the CDs from the recording done by the C.C. No. 49/12 Page No. 9 of 49 complainant, a formal witness as PW13, Ct.Suresh Kumar, a formal witness as PW14, Hari Om Khandelwal who is friend of the complainant, a formal witness as PW15, Inspector Harish Kumar, IO as PW16, the then Inspector Dharamvir Singh, Raid Officer as PW17 and Inspector Meghraj, Last IO as PW18.
10. After closure of the PE, statement of accused under Section 313 Cr.P.C. was recorded in which the accused denied about any demand and acceptance of the bribe from the complainant. Accused claimed to be falsely implicated in this case by the complainant at the instance of his friend Mohan Soni who was having enmity against the accused. Thereafter, the accused in support of his defence has got examined two DWs namely Satyabir Sharma as DW1 and Ramashankar as DW2.
11. I have heard Final Arguments as addressed by Sh. Rakesh Beniwal, Adv. Ld. Counsel for the accused and Sh.Maqsood Ahmed, Ld. Addl. PP for the State and perused the relevant record.
12. It is submitted by Ld. Counsel for the accused that this accused Guru Prasad is innocent and has neither demanded nor C.C. No. 49/12 Page No. 10 of 49 accepted any bribe from the complainant Ram Avtar and prosecution has failed to prove about the said facts and hence this accused deserves to be acquitted. It is also added by Ld. Defence Counsel that the accused was merely working as UDC in Slum and J.J.Department, MCD, Jwala Puri and was not competent for passing any order for sealing and cancellation of the allotment of the House of the complainant and therefore, there was no occasion on the part of this accused to demand and receive any bribe from the complainant in this respect. It is also added by Ld. Defence counsel that the complainant has filed the false complaint as against the accused at the instance of his friend Mohan Soni who was having enmity as against the accused as accused had taken initiative for registration of the FIR No.119/07, PS Aman Vihar on dated 13.11.2007 as against said Mohan Soni and his associates and accused had refused to receive the License Fee regarding Plot No.D5/42 to be deposited by said Mohan Soni on the basis of bogus documents. It is also added by Ld. Defence Counsel that as the complainant has lodged false complaint against the accused and his deposition is contradictory in nature and hence, cannot be treated as reliable and trustworthy. It is also added by Ld. Defence Counsel that there are several contradictions in the deposition of PW5 complainant, PW10 Panch witness, PW17 Raid Officer which falsify C.C. No. 49/12 Page No. 11 of 49 the case of the prosecution and pointed out several contradictions in the deposition of said PWs. It is also added by Ld. Defence Counsel that as the Sanctioning Authority has granted Sanction mechanically and as IO has recorded statement of several PWs after receipt of the Sanction Order and therefore, said Sanction Order Ex.PW6/A is legally Invalid. It is also added by Ld. Defence Counsel that as PW10 Panch witness could not state about the purpose of giving of money by the complainant to the accused and therefore, the demand aspect of the bribe against the accused could not be proved. It is also added by Ld. Defence Counsel that the proceedings were not conducted at the spot but were conducted at the Office of Anti Corruption Branch. It is also added by Ld. Defence Counsel that the accused had received Rs.1400/ from the complainant against the License Fee on 08.12.2008 and he has deposited the same in the Office on 23.12.2008 and even PW7 Kamal Singh has also deposed in this respect which reflects the innocence of the accused. It is also added by Ld. Defence Counsel that despite the availability of the public persons near the spot in the Park as admitted by the complainant, nonjoining of any of them in the Raid Proceedings falsify the case of the prosecution. It is also added by Ld. Defence Counsel that the Raid Officer is the interested witness for the success of the Raid and therefore, his C.C. No. 49/12 Page No. 12 of 49 deposition cannot be treated as reliable. It is also added by Ld. Defence Counsel that the accused has rightly refused for giving his voice sample to the IO with the apprehension that the same might be misused by the IO. Thus, Ld. Counsel urged for the acquittal of this accused.
13. To the contrary, it is submitted by Ld. Addl. PP for the State that the prosecution by examining 18 PWs have clearly established its case as against this accused and therefore, the accused deserves to be convicted for the charged offence. It is further added by Ld. Addl. PP for the State that the prosecution has clearly established its case regarding demand and acceptance of the bribe as against this accused from the complainant through the deposition of PW5/Ram Avtar, complainant, PW10/Mahinder Singh, Panch witness, PW17/the then Inspector Dharamvir Singh, Raid Officer and PW16 Inspector Harish Kumar/IO and there is no reason to disbelieve them. It is further added by Ld. Addl. PP that there is no reason as to why PW5/Ram Avtar, complainant, PW10/Mahinder Singh, Panch witness, PW17/the then Inspector Dharamvir Singh, Raid Officer and PW16 Inspector Harish Kumar/IO would falsely implicate the accused specifically when there is no previous enmity as against this C.C. No. 49/12 Page No. 13 of 49 accused by them. It is further added by Ld. Addl. PP that PW6 has rightly passed the Sanction Order Ex.PW6/A as against the accused Guru Prasad on perusal of the relevant materials and mere fact that statement of certain formal PWs were recorded by the IO after obtaining the Sanction Order, cannot be a ground for throwing out the said Sanction Order. It is also added by Ld. Addl. PP that mere contradictions in the deposition of certain PWs as pointed out by Ld. Defence Counsel are usual and normal in nature and the same cannot be treated as fatal for the case of the prosecution. It is also added by Ld. Addl. PP that as the accused has refused to give consent for his voice sample as per Ex.PW18/D and therefore, adverse inference can be drawn against him in this respect. It is also added by Ld. Addl. PP that PW8 Dr.C.P.Singh has clearly deposed that there was alteration in the CD containing the conversation and as Transcript of said CD clearly show the incriminating material as against the accused. It is also added by Ld. Addl. PP that the tainted GC notes were recovered from the accused and there is no explanation by the accused as to why he accepted the money from the complainant and same also goes against the accused. It is also added by Ld. Addl. PP that prosecution has been successful in establishing its case as against the accused for the charged offence and hence, he deserves to be convicted, C.C. No. 49/12 Page No. 14 of 49 accordingly.
14. The first and foremost question having significant bearing on the fate of this case is whether prosecution has proved that valid Sanction has been accorded by the Competent Authority as against the accused Guru Prasad as per Section 19 (1) of Prevention of Corruption Act, 1988. During course of argument, it is submitted by Ld. Counsel for the accused that as the Sanctioning Authority has granted Sanction mechanically and as IO has recorded statement of several PWs after receipt of the Sanction Order and therefore, said Sanction Order Ex.PW6/A is legally Invalid. To the contrary, it is submitted by Ld. Addl. PP on behalf of the State that PW6 has rightly passed the Sanction Order Ex.PW6/A as against the accused Guru Prasad on perusal of the relevant materials and mere fact that statement of certain formal PWs were recorded by the IO after obtaining the Sanction Order, cannot be a ground for throwing out the said Sanction Order.
15. That in order to prove the Sanction concerning this accused Guru Prasad, the prosecution has examined PW6 Ms.Promila H. Bhargav, the then Commissioner, (Personnel), DDA, Delhi who C.C. No. 49/12 Page No. 15 of 49 has categorically deposed that on 29.10.2009 while she was posted as Commissioner, (Personnel), DDA, Delhi, the case file containing the complaint, FIR, Memos, statement of PWs and other relevant documents related to the Investigation were placed before her and on going through the same and applying her mind and getting herself satisfied and being the authority competent to remove the accused Guru Prasad from service, who was posted as UDC in DDA and was on deputation in Slum & J.J. Department, MCD, Jwala Puri at the time of commission of the offence, she accorded the Sanction for prosecution as against said Guru Prasad and said Sanction Order is Ex.PW6/A which bears her signatures at point A. Said PW6 in the cross examination by Ld. Defence Counsel has denied the suggestion that she had accorded the Sanction mechanically without application of her mind or that she had not gone through the relevant record. She also denied the suggestion of Ld. Defence Counsel that Draft of the Sanction was sent to her by Anti Corruption Branch. I am of the considered view that mere fact that the IO had recorded statement of certain formal PWs after the receipt of the Sanction Order, cannot nullify the validity of said Sanction Order Ex.PW6/A.
16. In the case reported as State of Maharashtra and ors V/s C.C. No. 49/12 Page No. 16 of 49 Ishvar Piraji Kelpatri & ors 1996 Cri.L.J.1127, where Hon'ble Supreme Court had laid down that if the Authority according Sanction makes statement that while signing the order of Sanction, it had personally scrutinized the file and had arrived at required satisfaction, it is not necessary to look for, that there was application of mind or not or that material on record was examined by the concerned officer or not before according sanction, especially when order prima facie shows that, he had done so.
17. Furthermore, in the case reported as 2004 (13) SCC 487, Shankar Bhai Lalji Bhai Vs. State of Gujrat, it was observed by Hon'ble Supreme Court of India as under: "So far as the question of Sanction is concerned, in the absence of anything to show that any defect or irregularity therein caused failure of justice, that plea is without substance."
18. In the case reported in 2011 I AD (CRI.) (S.C.) 1, Kootha Perumal Vs. State (through) Inspector of Police, Vigilance & Anti Corruption, it was held in Para 14 by Hon'ble Supreme Court of India as under: C.C. No. 49/12 Page No. 17 of 49 "Keeping in view the aforesaid statement of law, it would not be possible to conclude that the sanction order in the present case was not valid. Ex.P2 with the present appeal is the copy of the sanction order. A perusal of the same would show that the sanctioning authority has adverted to all the necessary facts which have been actually proved by the prosecution in the trial. Upon examination of the material facts, the sanctioning authority has certified that it is the authority competent to remove the appellant from the office. It is specifically stated that the statements of the witnesses have been duly examined. Sanction order also states that the other materials such as copy of the FIR as well as other official documents such as the different mahazars were carefully examined. Upon examination of the statements of the witnesses as also the material on record, the sanctioning authority has duly recorded its satisfaction that the appellant should be prosecuted for the offences, as noticed above. We, therefore, find no merit in the submission of the learned counsel that the C.C. No. 49/12 Page No. 18 of 49 sanctioning order to prosecute the appellant was not legal".
19. By taking cue from the aforesaid judgment and applying the same to the facts of the present case, I do not find any force in the submission of Ld. Counsel for the accused to the effect that PW6/Sanctioning Authority has passed the Sanction Order mechanically and as IO had recorded statement of some PWs after obtaining the Sanction Order, therefore, said Sanction Order Ex.PW6/A is legally Invalid. I am of considered view that the Sanction concerning the accused Guru Prasad has been validly granted by PW6 Ms.Promila H. Bhargav, the then Commissioner (Personnel), DDA, Delhi who was competent to do so.
20. During the course of the argument, it is submitted by Ld. Counsel for the accused that this accused Guru Prasad is innocent and has neither demanded nor accepted any bribe from the complainant Ram Avtar and prosecution has failed to prove about the said facts and hence this accused deserves to be acquitted. It is also added by Ld. Defence Counsel that the accused was merely working as UDC in Slum and J.J.Department, MCD, Jwala Puri and was not competent C.C. No. 49/12 Page No. 19 of 49 for passing any order for sealing and cancellation of the allotment of the House of the complainant and therefore, there was no occasion on the part of this accused to demand and receive any bribe from the complainant in this respect. It is also added by Ld. Defence counsel that the complainant has filed the false complaint as against the accused at the instance of his friend Mohan Soni who was having enmity as against the accused as accused had taken initiative for registration of the FIR No.119/07, PS Aman Vihar on dated 13.11.2007 as against said Mohan Soni and his associates and accused had refused to receive the License Fee regarding Plot No.D5/42 to be deposited by said Mohan Soni on the basis of bogus documents. It is also added by Ld. Defence Counsel that as the complainant has lodged false complaint against the accused and his deposition is contradictory in nature and hence, cannot be treated as reliable and trustworthy. It is also added by Ld. Defence Counsel that as PW10 Panch witness could not state about the purpose of giving of money by the complainant to the accused and therefore, the demand aspect of the bribe against the accused could not be proved. To the contrary, it is submitted by Ld. Addl. PP for the State that the prosecution has clearly established its case regarding demand and acceptance of the bribe as against this accused from the complainant through the C.C. No. 49/12 Page No. 20 of 49 deposition of PW5/Ram Avtar, complainant, PW10/Mahinder Singh, Panch witness, PW17/the then Inspector Dharamvir Singh, Raid Officer and PW16 Inspector Harish Kumar/IO and there is no reason to disbelieve them. It is further added by Ld. Addl. PP that there is no reason as to why PW5/Ram Avtar, complainant, PW10/Mahinder Singh, Panch witness, PW17/the then Inspector Dharamvir Singh, Raid Officer and PW16 Inspector Harish Kumar/IO would falsely implicate the accused specifically when there is no previous enmity as against this accused by them. It is also added by Ld. Addl. PP that PW8 Dr.C.P.Singh has clearly deposed that there was alteration in the CD containing the conversation and as Transcript of said CD clearly show the incriminating material as against the accused. It is also added by Ld. Addl. PP that the tainted GC notes were recovered from the accused and there is no explanation by the accused as to why he accepted the money from the complainant and same also goes against the accused.
21. In order to prove that the accused had demanded and accepted the bribe amount from the complainant, the prosecution is found to have examined PW5/Ram Avtar, complainant, PW10/Mahinder Singh, Panch witness, PW17/the then Inspector C.C. No. 49/12 Page No. 21 of 49 Dharamvir Singh, Raid Officer and PW16 Inspector Harish Kumar/IO. PW10 Mahinder Singh, Panch witness has clearly deposed before the court that on dated 11.12.2008 he was on duty as a Panch witness in the Anti Corruption Branch and complainant Ram Avtar got lodged his Complaint Ex.PW5/A. Said PW10 has also narrated about the Pre Raid Proceedings. He further deposed that he alongwith the complainant and other members of the raiding team reached near DTC Depot, Nangloi and parked the vehicle there. Thereafter, he alongwith the complainant proceeded towards the Office of the accused and the raiding team followed them. He further deposed that the complainant gave phone call to the accused who came out from his Office and asked the complainant to go nearby Park. As regards the demand and acceptance of the bribe by the accused said PW10 Mahinder Singh, Panch witness has deposed in this respect as under: "Thereafter, we went to said Park and sat on the bench. Thereafter, on asking by the accused, the complainant delivered the bribe amount which the accused retained in his right hand. Thereafter, on giving my signal, the Raiding team reached the spot and surrounded the accused."
C.C. No. 49/12 Page No. 22 of 49
22. Said PW10/Panch witness has also deposed regarding the recovery of bribe amount from the accused and regarding the turning into pink colour of right hand wash of the accused in a solution and taking of said solution in small glass bottles. He has also deposed that the recovered GC notes were taken into possession vide Seizure Memo Ex.PW5/D which bears his signatures at point B and the sealed bottles containing hand wash were seized vide Seizure Memo Ex.PW5/E which bears his signatures at point B. He has also deposed that the Raid Officer carried out the Proceedings at the spot and Post Raid Proceedings is Ex.PW5/C which bears his signatures at point D1. He has also deposed regarding arrest of the accused vide Arrest Memo Ex.PW10/A and Personal Search Memo of accused Ex.PW10/B which bears his signatures at point A. Said PW10 has duly identified 4 GC notes of Rs.500/ each as recovered from the accused as Ex.PX (colly.), two sealed bottles Mark RHWI & RHWII as Ex.P1 and P2 and the CD as Ex.P4.
23. As said PW10 Mahinder Singh, Panch witness was found hostile on certain aspects, he was cross examined by Ld. Addl. PP for the State and as regards the demand of the bribe as against the accused, said PW10 has further deposed as under: C.C. No. 49/12 Page No. 23 of 49 "It is correct that at about 11:10 a.m. SI Karnail Singh came and produced 2 CDs which were played in the computer and I had also seen the same and it was verified regarding the demand of bribe by the accused. It is correct that I along with complainant, SI Karnail Singh signed on the said CDs and said CDs were marked as C1 and C1/1."
..............................................................................................
"It is correct that the accused had demanded the bribe from the complainant after sitting on the bench in the park and thereafter, the complainant took out 4 GC notes of Rs.500/ from his shirt pocket and delivered the same to the accused who accepted the same in his right hand and asked the complainant whether that is the complete bribe amount i.e. Rs.5000/ on which complainant stated that he could arrange only Rs. 2000/ and the balance will be given by him later on."
24. Said PW10/Panch witness has denied the specific suggestion of Ld. Defence Counsel in his cross examination that the C.C. No. 49/12 Page No. 24 of 49 accused had not taken Rs.2000/ from the complainant in his presence or that he has falsely deposed at the instance of the IO. As he has deposed in this respect as under: "It is wrong to suggest that accused had not taken Rs.2000/ from complainant in my presence. It is wrong to suggest that being a public servant I have deposed against the accused. It is further wrong to suggest that as per the instructions of IO, I had falsely deposed in present case against the accused. It is further wrong to suggest that the case proceedings were not conducted in my presence or that I had signed on the documents afterwards. It is wrong to suggest that I am deposing falsely."
25. PW5/Ram Avtar, complainant has clearly deposed before the court that out of the House No.D5/4 & 5, Sultan Puri, one House was in the name of his mother and one House was in the name of his father and when the Mansion was affixing tiles in said House in the year 2008 and complainant was not present, the accused came at their House and introduced himself as Inspector, MCD and asked his family members to send the Owner of the House to MCD Office, Jwala Puri along with original documents. The complainant further C.C. No. 49/12 Page No. 25 of 49 deposed that on 03.12.2008, he along with his friend Vrindavan met accused in his Office where the accused frightened him that their House can be demolished and told him that he would reach at the Shop of Mohan Soni in the evening and on that evening, the accused reached at the Shop of Mohan Soni and demanded Rs.10,000/ from the complainant to save the House of the accused from demolition on which the complainant requested for time. The complainant further deposed that on 05.12.2008 he had sent Rs.1000/ through his friend Vrindavan to the accused. He further deposed that on that day, he went to Anti Corruption Branch and narrated about the incident and was provided with the Recording Instrument to record the conversation with the accused. Thereafter, he along with his friend Mohan Soni reached the Office of the accused and met him and recorded his conversation. The accused demanded from him whatever the money he has brought on which he delivered him Rs.400/ as available with him at that time and thus, the complainant had paid to the accused Rs.1400/ in total. The complainant further stated that in the said conversation, the accused settled for Rs.5000/ more to be paid to him and stated that only petty sum of Rs.500/ to 1000/ would come as his share and remaining amount would be paid to Senior Officers. He further deposed that on the same day evening, he C.C. No. 49/12 Page No. 26 of 49 returned the Recording Instrument in the Office of Anti Corruption Branch and again on 10.12.2008, he went to Office of Anti Corruption Branch and was provided with the Recording Instrument to get record the conversation with Senior Officers of the accused but the same could not be materialised. He further deposed that on 11.12.2008, he again went to Anti Corruption Branch and got lodged his Complaint Ex.PW5/A which bears his signature at point A and produced 4 GC notes of Rs.500/ each to the Police Official and narrated about the Pre Raid Proceedings. He further deposed that he along with the Raiding team reached near the Office of the accused in the lunch time at about 1:00200 p.m. and his friend Mohan Soni also reached there. He further deposed that after talking to his friend Mohan Soni, the accused came out from his Office. Said PW5 regarding demand and acceptance of bribe by the accused has specifically deposed as under: "The accused took me to a nearby park being followed by Mohan Soni and Panch witness. On asking by the accused for the money, I told him that I had brought only Rs.2000/ and handed over the same 4 GC notes of Rs.500/ to the accused. The accused accepted the said money in his right hand and probably kept in the pocket of his pant. C.C. No. 49/12 Page No. 27 of 49 Thereafter, on giving signal by the Panch witness, the raiding party reached at the spot."
26. Said PW5/complainant has also deposed about the Post Raid Proceedings Ex.PW5/C bearing his signature at point D. He has also deposed about the recovery of the GC notes from the accused which were seized vide Seizure Memo Ex.PW5/D which bears his signatures at point A. He has also deposed regarding taking of hand wash of the accused which turned into pink colour and transferring of the said washes in two empty clean bottles which were sealed and were marked as RHWI & II by pasting slips thereon which were signed by him and said bottles were seized vide Seizure Memo Ex.PW5/E bears his signature at point A. Said PW5/complainant has also deposed that Seizure Memo of the CDs Ex.PW5/F which bears his signatures at point A. He also deposed that police had prepared Transcription which is Ex.PW5/G which bears his signatures at point A. He has also deposed that he had handed over property documents which were seized vide Seizure Memo Ex.PW5/H and photocopies of said documents are Mark A (colly.) running into 9 pages and bears his signatures at point A. C.C. No. 49/12 Page No. 28 of 49
27. Said PW5/complainant has clearly identified the 4 GC notes of Rs.500/ each as recovered from the accused as Ex.PX (colly.), two sealed bottles containing hand washes Mark RHWI & RHWII as Ex.P1 and P2 and the CD through which the Transcript was prepared is Ex.P4. The audiovideo CD Ex.P7 was played on the computer of the Court and on seeing/hearing the same, the complainant has identified the voice as well as the picture and stated that the said CD contained the voice of accused regarding the conversation.
28. Said PW5 in his cross examination by Ld. Counsel for the accused has specifically denied various suggestions as put to him as he has deposed in this respect as under: "It is wrong to suggest that no recording of the conversation with the accused was made on dated 05.12.2008 and 10.12.2008. It is wrong to suggest that no bribe amount of Rs.400/ was delivered to the accused on dated 05.12.2008. It is wrong to suggest that the accused had not demanded further amount of Rs. 5000/. It is wrong to suggest that I had written said complaint Ex.PW5/A not as per my own but at the C.C. No. 49/12 Page No. 29 of 49 instance of official of AC Branch. It is wrong to suggest that on 11.12.2008 accused had not demanded and accepted bribe amount of Rs.2000/ or that the same was not recovered from him. It is wrong to suggest that no hand wash of the accused was taken at the spot. It is wrong to suggest that the entire writing proceedings were conducted at the office of AC Branch or that I had signed the same later on at the Office of AC Branch. It is wrong to suggest that I have filed a false complaint as against the accused at the instance of my friend Mohan Soni who intend to grab the property bearing no. D5/4243 and D3/85 by depositing license fee and same was declined by the accused and said Mohan Soni had enmity as against the accused as the accused has pursued one case bearing FIR No.119/07, PS Aman Vihar dated 13.11.2007 as against Mohan Soni. It is further wrong to suggest that Rs.1400/ were paid to the accused towards part payment of license fee of our property bearing no.D5/5 for the period from 01.01.1977 to 30.11.2008 and the receipt of said amount C.C. No. 49/12 Page No. 30 of 49 was got issued from the concerned Department and thereafter, balance amount of Rs.2010/ remained outstanding."
29. The material part of the deposition of PW10/Panch witness and PW5/complainant also found corroborated from the deposition of PW17 the then Inspector Dharamvir Singh, Raid Officer.
30. From the perusal of the deposition of PW5/complainant, PW10/Panch witness and PW17/Raid Officer, it is clearly reflected that the Raid Officer, PW17 the then Inspector Dharamvir Singh has drawn the Post Raid Proceedings Ex.PW5/C which found bear the signature of the PW5/complainant at point D and that of PW10/Panch witness at poinD1 and that of the PW17/ Raid Officer at point X.
31. I am of the considered view that said Post Raid Proceedings Ex.PW5/C being in the nature of Panchnama which is duly signed by the complainant and Panch witness is duly admissible and reference can be made to the case of Santa Singh vs. State of Punjab AIR 1956 Supreme Court 526 wherein it was held that mere presence of the police officer when a statement is made does not by itself render C.C. No. 49/12 Page No. 31 of 49 such a statement inadmissible. So long as a panchnama is a mere record of the things heard and seen by panchas and does not constitute a statement communicated to a police officer in the course of investigation by him and it would not fall within the mischief of section 162 of the Code.
32. From the perusal of the said Post Raid Proceedings Ex.PW5/C, it is clearly reflected that the accused Guru Prasad had accepted the part bribe amount of Rs.2000/ from the complainant by his right hand and kept the same in his right hand at the spot and said amount has been recovered by the Panch witness from the right hand of the accused and the serial number of those GC notes found tallied with the serial number as mentioned in the Pre Raid Proceedings Ex.PW5/B and said recovered GC notes were seized vide Seizure Memo Ex.PW5/D.
33. It is also revealed from the record that right hand wash of accused with colourless solution of sodium carbonate was taken and the same turned into pink colour and said wash vide Ex.RHWI & RHWII gave positive test for the presence of phenolphthalein and sodium carbonate as per FSL Report Ex.PW18/B which establish that C.C. No. 49/12 Page No. 32 of 49 the said treated 4 currency notes of Rs.500/ each were handled and accepted by the accused and same were recovered from him.
34. From the perusal of the deposition of PW5/complainant, it is reflected that he has recorded the conversation between him and the accused on 05.12.2008 through the Recording Instrument provided to him from the Office of Anti Corruption Branch and two similar sets of CDs i.e. Mark C1 and Mark C1/1 were prepared by PW13/Karnail Singh and the CD Mark C1 was converted into a parcel and sealed with the seal of DVS which was sent to FSL and after examining the same, PW8 Dr.C.P.Singh has prepared the FSL Report Ex.PW8/A clearly stating therein: "There is no indication of any form of alteration." Another CD Mark C1/1 was kept open by the IO for the purpose of Investigation. Furthermore, from the perusal of the deposition of PW5/complainant, it is reflected that police had prepared the Transcription Ex.PW5/G which bears his signatures at point A reflecting said conversation between the accused and the complainant dated 05.12.2008 and perusal of the same clearly reveal about the demand and acceptance of part bribe amount by the accused. Furthermore, from the perusal of the deposition of PW18/Inspector Meghraj, Last IO, it is reflected that the accused has C.C. No. 49/12 Page No. 33 of 49 refused to give his sample voice for the purpose of comparison to the IO vide Refusal in writing by the accused on mere plea that his voice can be misused, which is Ex.PW18/E and therefore, adverse inference can be drawn against the accused in this respect.
35. In view of the above material as available on record, I am of the considered view that the factum regarding the demand of the bribe by the accused and subsequent acceptance of part bribe amount of Rs.2000/ from the complainant by the accused at the spot on dated 11.12.2008 have been found established from the deposition of PW5/Ram Avtar, complainant, PW10/Mahinder Singh, Panch witness, PW17 Inspector Dharamvir Singh, Raid Officer coupled with the content of Complaint Ex.PW5/A, Seizure Memo of the GC notes Ex.PW5/D, Seizure Memo of two bottles marked as Ex.RHWI&II and sample seal vide Ex.PW5/E, Post Raid Proceedings Ex.PW5/C and FSL Report Ex.PW18/B.
36. During the course of the argument, it is submitted by Ld. Counsel for the accused that the accused was merely working as UDC in Slum and J.J.Department, MCD, Jwala Puri and was not competent for passing any order for sealing and cancellation of the allotment of C.C. No. 49/12 Page No. 34 of 49 the House of the complainant and therefore, there was no occasion on the part of this accused to demand and receive any bribe from the complainant in this respect. I do not find any force in the said submissions of Ld. Counsel for the accused.
37. Besides this, law is well settled that it does not matter whether the public servant was competent to do the work or not and reference can be placed in the case reported as Chaturdas Bhagwandas Patel Vs. State of Gujrat, 1976(3) SCC 46 as referred in State of Andhra Pradesh Vs. C. Uma Maheshwar Rao and Anr. 2004, V AD (SC) 176, wherein it has been held by Hon'ble Supreme Court of India that the question whether a person has an authority to do the act for which bribe is accepted, is of no consequence. In the case reported as Gopal Singh Vs. CBI, ILR (2005) II Delhi 35, It was observed by the Hon'ble Delhi High Court in Para 22 as under: "It has to be added that in cases under PC Act, the prosecution is under no obligation to prove that a public servant demanding bribe was in a position to help the person from whom the bribe was being demanded. The prosecution succeed the moment it is shown that a public servant had accepted some money from someone C.C. No. 49/12 Page No. 35 of 49 which was not legal remuneration. The presumption U/S 20 of the Act comes into play shifting the burden upon the public servant to explain as to why he had received the money. A public servant may misguide, mislead or befool his victim to pay him illegal gratification knowing fully well that he is not in a position to help him and as such it can be no defence for him to say that since he was not in a position to help the complainant/victim the money received by him does not amount to illegal gratification."
38. During the course of the argument, it is submitted by Ld. Counsel for the accused that despite the availability of the several public persons near the spot in the Park as admitted even by the complainant, nonjoining of any of them in Raid Proceeding falsify the case of the prosecution. I do not find any force in the said submission of Ld. Defence Counsel in view of the fact that since an independent witness i.e. PW10/Mahinder Singh, Panch witness had already been joined in the proceedings by the PW17/Raid Officer, nonjoining of any other public person available at the spot cannot be over emphasized. My said view is also found supported from the C.C. No. 49/12 Page No. 36 of 49 judgment reported as 2011 V AD (DELHI) 500, Anna Wankhade Vs. Central Bureau of Investigation (Through State), wherein it was held in Para 21 as under: "21. There is no dispute with regard to the proposition regarding desirability of association of independent witnesses by the police so as to lend more credence and authenticity to the case, but there is also no dispute that nonassociation of the independent witnesses per se for any reason whatsoever was in itself not enough to discard the prosecution witnesses or throw away the case as a whole. In the present case, CBI associated two independent witnesses on the written requisition made to the office of NDMC. Since the prosecution/CBI already had two independent witnesses, who had been informed and apprised about the technicalities involved in the procedure during the trap proceedings, it was not necessary for the IO to have joined other public witnesses at the time of apprehension. May be to avoid the risk C.C. No. 49/12 Page No. 37 of 49 of such a raw public person getting won over or being unable to understand the proceedings at the last moment of raid, that the IOs usually avoid associating public witnesses at that stage in such type of cases."
39. During the course of the argument, it is submitted by Ld. Counsel for the accused that the Raid Officer is the interested witness for the success of the Raid and therefore, his deposition cannot be treated as trustworthy and reliable. I do not find any force in the submission of Ld. Counsel for the accused in this respect. Reference is placed on case of Hazari Lal V/s State ( Delhi Admn ) AIR 1980 Supreme Court 873. In that case the allegations against the accused who was a police officer was that he demanded bribe from the complainant for release of his scooter rickshaw which was seized by the police. The trap was laid and the accused was caught red handed. However, during trial complainant turned hostile and deposed that when he went to the police station on first occasion to obtain delivery of his scooter rickshaw it was not the accused that was present but one Hawaldar was present and it was not the accused but that Hawaldar who demanded bribe of Rs. 60/ from him and when he went to the C.C. No. 49/12 Page No. 38 of 49 police station along with punch witness he found accused there and asked him to take a sum of Rs. 60/ and return the scooter rickshaw. He stretched his hand with the money towards the pocket of accused 's trouser but accused said the money might be paid to the person for whom it was meant for. He refused to receive the money and jerked complainant's hand with his hand as a result of which the notes came to be flung across the wall into neighboring room. He deposed that accused neither demanded the amount from his nor accepted the amount. The punch witness who went along with the complainant could not be examined as he became insane and other punch witness turned hostile. The conviction was based on the statement of trap officer and the Hon'ble Supreme Court held as under: "We are not prepared to accept the submission of Shri Frank Authony that he is the very Police Officer who laid the trap should be sufficient for us to insist upon corroboration. We do wish to say that there is no rule of prudence which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In facts and circumstances of C.C. No. 49/12 Page No. 39 of 49 a particular case a Court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally, in the facts and circumstances of another case, the Court may unhesitatingly agent the evidence of such an officer."
Besides that in the case reported as AIR 1998 SC 1474 State of U.P. Vs. Zakullaha it was held by the Hon'ble Supreme Court of India that the evidence of trap officer in a bribe case can be acted upon even without the help of any corroboration and similar view was held in the judgment "Prakash Chand vs. State (Delhi Administration) AIR 1979 SC 400".
40. During the course of argument, Ld. Counsel for the accused submitted that there are several contradictions in the deposition of PWs which falsify the case of the prosecution and pointed out several contradictions in the deposition of said PWs as under: (A) PW17 Raid Officer stated that the Complaint Ex.PW5/A was marked to him whereas PW5 complainant stated that he has delivered the Complaint directly to the Inspector Dharamvir Singh. (B) PW10 Panch witness stated that accused was called through phone by the complainant on the asking of Raid Officer but Raid C.C. No. 49/12 Page No. 40 of 49 Officer deposed that Mohan Soni had called the accused. (C) PW5 complainant has stated that the distance from the Office of the accused to said Park was 100150 meters whereas PW10 Panch witness stated that it was about 4050 meters.
(D) PW17 Raid Officer stated that the accused along with the complainant and Mohan Soni sat on an open bench in the Park and Panch witness sat on the grass behind them but PW10 Panch witness stated that complainant was sitting on the bench and accused was standing before him.
(E) PW5 complainant stated that public witness was available at the spot but PW10 Panch witness stated that no public person was available at the spot.
(F) PW5 complainant had stated that they had talked for about 1015 minutes at the Park but PW17 Raid Officer stated about the talks in the Park for about 23 minutes.
(G) PW17 stated that the Raiding team remained behind the trees but PW5 complainant stated that the Raiding team remained outside the boundary wall of the Park.
(H) PW10 Panch witness stated that money was recovered by Inspector Dharamvir Singh but PW17 Raid Officer stated that it was recovered by Panch witness at his instance.
C.C. No. 49/12 Page No. 41 of 49 (I) PW5 complainant stated that they remained at the spot for about 40 minutes but PW10 Panch witness stated that they remained at the spot about 23 minutes.
(J) PW10 Panch witness stated that they left PS Anti Corruption Branch in a Maruti Van whereas PW17 Raid Officer stated that they left the PS Anti Corruption Branch in a Maruti Gypsy.
41. I am of the considered view that the aforesaid contradictions in the deposition of various PWs cannot be treated as fatal for the case of the prosecution as such discrepancies in the deposition of PWs appears to be natural and formal in view of the time gap between the date of incident and the date of deposition in the court and therefore, said variation cannot be overemphasized. My said view is also found supported from the Law laid down by Hon'ble Supreme Court of India regarding contradictions in case of Bharuda Broginbhai Harjibhai V/s State of Gujrat AIR 1983 SC 753, wherein it was held that discrepancies which do not go to the root of the matter and shake the basic version of the prosecution should not be attached undue importance. Furthermore, in the case reported as Krishna Pillai Sree Kumar Vs. State of Kerala, AIR 1981 SC 1237, it has been held that Inconsistencies here and discrepancies C.C. No. 49/12 Page No. 42 of 49 there are the shortcoming from which no criminal case is free. The main thing to be seen is whether the inconsistencies etc. go the root of the matter.
42. During the course of the argument, it is submitted by Ld. Defence Counsel that as PW10/Panch witness could not state about the purpose of giving of money by the complainant to the accused and therefore, the demand aspect of the bribe against the accused could not be proved. I do not find any force in the said submission of Ld. Defence Counsel in view of the fact that PW10/Panch witness has stated regarding the demand of bribe as against the accused as under: "Thereafter, we went to said Park and sat on the bench. Thereafter, on asking by the accused, the complainant delivered the bribe amount which the accused retained in his right hand. Thereafter, on giving my signal, the Raiding team reached the spot and surrounded the accused."
Said PW10/Panch witness in the cross examination by Ld. Addl. PP. has further deposed regarding the demand of bribe as under: "It is correct that the accused had demanded the bribe C.C. No. 49/12 Page No. 43 of 49 from the complainant after sitting on the bench in the park and thereafter, the complainant took out 4 GC notes of Rs.500/ from his shirt pocket and delivered the same to the accused who accepted the same in his right hand and asked the complainant whether that is the complete bribe amount i.e. Rs.5000/ on which complainant stated that he could arrange only Rs. 2000/ and the balance will be given by him later on."
43. The aforesaid deposition of PW10/Panch witness regarding the demand and acceptance of bribe is also found corroborated from the deposition of PW5/complainant as the complainant has also deposed in this respect as under: "The accused took me to a nearby park being followed by Mohan Soni and Panch witness. On asking by the accused for the money, I told him that I had brought only Rs.2000/ and handed over the same 4 GC notes of Rs.500/ to the accused. The accused accepted the said money in his right hand and probably kept in the pocket of his pant. Thereafter, on giving signal by the Panch witness, the C.C. No. 49/12 Page No. 44 of 49 raiding party reached at the spot."
In view of the aforesaid deposition of PW5/complainant and PW10/Panch witness as regards the demand and acceptance of the bribe as against the accused, I do not find any force in the submission of Ld. Defence Counsel to the effect that the complainant had lodged false complaint against the accused at the instance of his friend Mohan Soni who was having enmity as against the accused.
44. I also do not find any force in the submission of Ld. Counsel for the accused that alleged recovery of the treated GC notes as against the accused is not sufficient to convict the accused for the charged offence. Once the accused is found to have accepted the bribe amount, it is for him to explain as to in which capacity he has accepted the same.
45. In the case of Dhanvantrai Balwantrai Desai V/s State of Maharashtra, AIR 1964 Supreme Court 575 it was held as under: "Therefore, the court has no choice in the matter, once it is established that the accused person has received a sum of money which was not due to him as a legal remuneration. Of course, it is open to that person to show that though that money was not due to him as legal remuneration, it was legally due to C.C. No. 49/12 Page No. 45 of 49 him in some other manner or that he had received it under a transaction or an arrangement which was lawful. The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occurs in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a mere explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted."
46. It is also useful to refer to the decision of Hon'ble Supreme Court in case of M.Narsinga Rao V/s State of A.P. 2001 (1) SCC 691 rendered by Three Hon'ble Judges of Supreme Court. In that case accused demanded a bribe of Rs. 500/ from a milk transporting contractor for recommending the payment of an amount due to the contractor. The accused was caught red handed while accepting the C.C. No. 49/12 Page No. 46 of 49 bribe amount. Accused took the plea that currency notes were stuffed into his pocket. During trial complainant and panch witness did not support the prosecution case and it was argued before Hon'ble High Court that it is not possible to draw any presumption against the delinquent public servant in the absence of direct evidence to show that the public servant demand bribe. The Hon'ble High Court held as under: "It is true that there is no direct evidence in this case that the accused demanded and accepted the money. But the rest of the evidence and the circumstances are sufficient to establish that the accused had accepted the amount and that gives rise to a presumption under Section 20 of the Prevention of Corruption Act that he accepted the same as illegal gratification, particularly so, when the defence theory put forth is not accepted."
47. It is also useful to refer to the case of B. Noha V/s State of Kerela & Another 2006 VI AD ( Criminal ) 465 ( SC ) where it was held as under: "that when it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deducted from the facts and circumstances obtained in the particular case." C.C. No. 49/12 Page No. 47 of 49
48. Once the bribe amount is recovered from the accused it is for the accused to explain as to how the bribe amount landed in his person. In the present case, the accused has not given any justifiable explanation in his statement U/S 313 Cr.P.C. as to how part bribe amount of Rs.2000/ landed in his right hand from which it was recovered. In view of the aforesaid materials as available on the record, I am of the considered view that the presumption as contemplated U/S 20 of the Prevention of Corruption Act,1988 could not be rebutted by the accused.
49. In view of the aforesaid discussion, I have no hesitation to safely conclude that the prosecution has successfully established its case for offence punishable U/S 7 and U/S 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988 as against the accused. However, on careful analysis of the deposition of PW5/complainant Ram Avtar as it is reflected that the accused had come to the House of complainant in his absence and introduced himself as Inspector, MCD to the family members of the complainant and no such family member has been examined as PW, I am of the considered view that the prosecution has failed to establish the offence as punishable U/S 419 C.C. No. 49/12 Page No. 48 of 49 and 420 IPC against the accused.
50. The net result of the aforesaid discussion is that accused Guru Prasad is found guilty and convicted for offence punishable U/S 7 and U/S 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988 .
51. Let this accused be heard separately on the point of sentence.
Announced in the open court on this 12th day of July, 2013 (B.R. Kedia) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC, Delhi C.C. No. 49/12 Page No. 49 of 49