Delhi District Court
State vs Naresh Kumar & Anr. on 4 May, 2007
1
CC No. 03/2000
IN THE COURT OF SHRI SUNIL GAUR: SPECIAL
JUDGE. DELHI.
CC No.3/2000
State Vs Naresh Kumar & Anr.
(1) Naresh Kumar
S/o Shri Bharat Singh,
R/o RZ T-8A, Uttam Nagar,
New Delhi.
(Lineman, MTNL)
(2) Niranjan Singh,
S/o Shri Jagat Singh,
R/o C-6/57-B, Kesho
Puram, Delhi
(JTO, MTNL).
FIR No.8/1995
Under section 7/13 of
Prevention of Corruption
Act 1988 .
PS Anti Corruption Branch
JUDGMENT
Accused Niranjan Singh and Naresh Kumar were Junior Telecom Officer (herein after referred to as JTO) and Lineman, in Shadipur office of Maha Nagar Telephone Nigam Limited (herein after referred to as MTNL) and they are facing trial in this case as on 25th April 1995, accused Niranjan Singh is stated to have demanded bribe of Rs.500/- but had agreed Contd....
2CC No. 03/2000 to accept bribe of Rs.200/- from the complainant Anoop Singh for shifting the telephone connection at his new address and on 26.04.1995 at about 10.40am, accused Niranjan Singh through his co- accused Naresh had purportedly demanded and accepted Rs.200/- as illegal gratification from complainant Shri Anoop Singh S/o late Shri Ram Kalan in consideration for shifting the telephone of the complainant from his house to office and accused Naresh is stated to have been caught red handed outside his office by raiding team of Anti Corruption Branch while accepting bribe money of Rs.200/- from the complainant and what followed thereafter finds mentioned in the post-raid report and the charge- sheet of this case.
2. The factual position emerging from the complaint dated 26.04.1995 of Shri Anoop Singh S/o late Shri Ram Kalan, R/o WZ-61, Shadipur, New Delhi Ex.PW7/A on translation reads as under:-
Contd....3
CC No. 03/2000 ''I am doing the job of Book Publishing at the afore-said address. I have just opened a new office at 2362/1, Shadi Kham Pur, Main Patel Road, New Delhi. I had moved an application in the ofice of Pandav Nagar, Naraina Road, Shadipur Telephone Exchange to get my telephone NO.5700597 installed at my house shifted to my office address but still the same has not been shifted. Yesterday, on 25.4.95, I had visited the Telephone Office at Shadipur where Shri Niranjan Singh, Telephone Inspector had met me to whom I had told my problem and then he told me that work is not done like this, and something would have to be spent. He asked me to come on 26.4.95 between 11.00-12.00am and give Rs.200/- to his Lineman Naresh, and work will be done.
I am against giving and taking bribe but Contd....
4CC No. 03/2000 have agreed under duress. I have brought the bribe amount of Rs.200/-. Action be taken. Heard. Statement recorded is correct.''
3. After the charge sheet was filed in this case, both the accused were summoned and copies of documents/challan were supplied to them and after hearing the accused persons on the point of charge, on 11.03.2003, charge under section 7 and 13 (1) (d) punishable under section 13 (2) of Prevention of Corruption Act 1988 was framed against both the accused persons by my learned predecessor and they had pleaded not guilty and claimed trial.
4. Prosecution has got examined thirteen witnesses in all. Out of which PW-7 Shri Anoop Singh (Complainant) is the most material and star witness of the prosecution case, PW-11 Shri Jagbir Singh (Panch Witness) and PW-12 Inspector Madhu Sudan Rao (Raid Officer) are the material Contd....
5CC No. 03/2000 witnesses while other witnesses are of official or formal in nature.
5. PW-7 Shri Anoop Singh is the complainant and has deposed about pre-raid, post- raid and investigation proceedings conducted in his presence in detail. PW-11 Shri Jagbir Singh is the Panch Witness and this witness has also deposed in detail about the pre-raid, post-raid and investigation proceedings conducted in his presence. PW-12 Inspector Madhu Sudan Rao is the Raid Officer and PW-13 Inspector Soban Singh is the Investigating Officer and they both have deposed about their respective roles about pre-raid, post-raid and investigation of this case.
6. The testimonies of the remaining witnesses of this case is briefly discussed hereunder.
7. PW-1 Shri Ramdhan Gupta was posted Contd....
6CC No. 03/2000 as JTO in West Zone, MTNL and he had produced photocopy of attendance register in respect of both the accused persons Ex.PW1/A and Ex.PW1/B which were taken into possession vide seizure memo Ex.PW1/C. PW-2 Head Constable Attar Singh was posted as MHC(M) at Police Station Civil Lines on 26.4.1995 when Inspector Soban Singh had deposited one bottle RHW-II duly sealed with the seal of MSR and two GC notes of Rs.100/- denomination about which this witness made entry in register no.19 and proved the same as Ex.PW2/A. This witness has further testified that on 11.7.1995 Inspector Soban Singh had deposited one bottle marked RHW-I duly sealed with the seal of FSL about which this witness made entry and proved the same as Ex.PW2/B.
8. PW-3 Shri A.K. Kalia was posted as Deputy General Manager, Administration, Northern Telecom, Kidwai Bhawan, New Delhi on 26.10.1999 and has deposed about his being competent authority to accord sanction for prosecution of the accused Contd....
7CC No. 03/2000 Niranjan Singh, on the request of Anti Corruption Branch, vide his Sanction order Ex.PW3/A. PW-4 Shri S.K. Sharma is also competent Sanctioning Authority who had accorded sanction for prosecution of accused Naresh Kumar vide Sanction Order Ex.PW4/A. PW-5 Shri Surinder Pal Singh had brought the service book of both the accused persons and deposed about the date of their appointment, retirement and about the period their suspension.
9. PW-6 Inspector Ramesh Kaushik is the part Investigating officer and during investigation of this case, this witness has recorded police statement of Shri A.K. Saxena, Junior Telecom Officer, Shadipur Telephone Exchange and also obtained sanction orders Ex.PW4/A and Ex.PW3/A for prosecution of both the accused persons. PW-8 ACP S.K. Sharma has deposed about Inspector Soban Singh (IO) having handed over to him one bottle RHW-I sealed with the seal of MSR which this witness kept in his almirah on 26.4.1995 and also Contd....
8CC No. 03/2000 about his having handed over back the above said bottle to the Investigating officer for depositing the same with CFSL on 27.4.1995. PW-9 Inspector Nagender Singh is also the part Investigating officer who has gone through the documents, prepared the charge-sheet and filed the challan. PW-10 Shri Anil Kumar Saxena has testified that on 25.01.1999 he was posted as JTO in Shadipur Telephone Exchange when Inspector of Anti Corruption Branch met him, he checked the OB register pertaining to the year 1995 and about his having identified the signatures of Inspector Niranjan Singh on the jumper letter dated 24.2.1995 and that the telephone connection in question was activated on 26.4.1995.
10. After recording of prosecution evidence, statements of both the accused persons were recorded under section 313 Cr. P.C. in which both the accused persons have denied the prosecution version existing against them by stating that the witnesses have deposed falsely. Accused Naresh Contd....
9CC No. 03/2000 Kumar has further stated in his statement under section 313 Cr. P.C. as under :-
''I am innocent and have been falsely implicated in this case. On that day, I was absent from my duty because my mother was ill and I had gone to office to hand over the keys of office almirah which were in my possession but suddenly complainant stopped me and after few minutes police reached there and falsely apprehended me.''
11. Accused Niranjan has pleaded in his statement under section 313 Cr. P.C. as well as in supplementary statement under section 313 Cr. P.C. as under :-
''I am innocent and have been falsely implicated in this case. I received the orders for shifting the telephone in the evening of 19.4.1995 and I completed my job Contd....10
CC No. 03/2000
by 23.4.1995 and on 24.4.1995, I sent the Jumper letter along with the record showing thereby that I had completed my part of job.
Activation of the telephone was to be done by record operator to whom I had given the jumper letter mentioned above. At that time, Sh.
Dhanna Ram was the Sr.
Supervisor operator who had
received the above documents.
I was working in Section-III, Shadipur Telephone Exchange and I had completed my job on 24.4.1995.
Completion papers were handed over by me in the department on 24.4.1995.''
12. Both the accused did not opt to adduce evidence in defence.
Contd....
11CC No. 03/2000
13. Sh. V. P. Shrivastav Chief Public Prosecutor for the State and Sh. Rajesh Vashisth Ld. Counsel for the accused Naresh and sh. Surender Adhlakha Ld.counsel for the accused Niranjan have been heard at length and the evidence on record has been analysed in detail.
14. Ld. Chief Prosecutor submits that from the evidence of Raid Officer (PW-12) and Panch Witness (PW-11), prosecution case stands firmly established and it receives corroboration from the evidence of complainant (PW-7) in material particulars and from the FSL Report Ex.PW13/C on record.
15. Sh. Rajesh Vashisth Ld. Counsel for the accused Naresh contends that as per attendance record Ex. PW1/A, accused Naresh was absent from duty on the day of the raid and infact, he had come in the office to hand over the key of the almirah to lineman and he was apprehended and falsely implicated in this case.
Contd....
12CC No. 03/2000
16. It is pointed out by the defence that as per the complainant, the alleged bribe was given in the gallery outside the cabin whereas, as per the site plan of the spot , it was outside the MTNL office . Attention of this court is drawn by the defence to the evidence of the complainant to point out that there was no demand of any bribe by accused Naresh and he had no concern with the activation of the telephone of the complainant.
17. It is argued by the defence that complainant claims that the raiding party had left Anti Corruption Branch at about 10:45a.m. and had reached at the spot at about 11:00a.m. It is also pointed out by the defence that the complainant has stated in his evidence that he had never met the accused prior to the raid and so, the question of prior demand by the accused does not arise.
18. It is next contended by Ld. Defence counsel that panch witness claims that he had given the pre-
Contd....
13CC No. 03/2000 determined signal whereas, complainant asserts that he had given the pre-determined signal and this controversy remains unresolved.
19. It is stressed by the defence that the conduct of the panch witness is not above board as he has stated that he straight away came to Anti Corruption Branch from his house and he has not produced the copy of the order received by him regarding his being on duty in Anti Corruption Branch on the day of the raid. It is next contended by the defence that the complainant demolishes the prosecution case as he has stated in his evidence that accused Niranjan Singh was also present at the spot and infact, accused Niranjan Singh was on leave.
20. It is asserted by the defence that the identity of the recovered GC notes is not established as they do not bear any identification mark. It is also pointed out by the defence that panch witness has Contd....
14CC No. 03/2000 stated in his evidence that the accused Naresh had kept the bribe money in his shirt pocket whereas, complainant has stated in his evidence that accused Naresh was apprehended before he could keep the bribe in his pant pocket.
21. Ld. Defence counsel has further pointed out that as per Raid Officer the time of reaching the spot is about 10:30a.m. whereas, complainant claims to reach at the spot along with the raiding team at about 10:45 a.m. It is next contended by the defence that even Raid Officer has submitted that accused Naresh did not demand any bribe from the complainant at the spot.
22. Ld. Defence counsel has argued that no public witness was joined at the spot and police statement of the Raid Officer has not been recorded in this case . It is next argued by ld. Defence counsel that Raid Officer claims that complainant and panch witness were relieved at the spot whereas, Contd....
15CC No. 03/2000 Investigating Officer has stated that they had accompanied the raiding party back to Anti Corruption Branch .
23. Lastly, it is submitted on behalf of accused Naresh that in view of above referred infirmities in the prosecution case, accused Naresh deserves to be acquitted.
24. Ld. Counsel for the accused Niranjan Singh contends that accused was on leave on that day and Sanction Order Ex. PW3/A discloses non-application of mind as it contains the name of co-accused Naresh instead of the name of accused Niranjan. It is next submitted by ld. Defence counsel that complainant has maintained in his evidence that accused Niranjan Singh had met him at the spot and this is contrary to the prosecution case.
25. Ld. Defence counsel has further pointed out that complainant has stated in his evidence that the Contd....
16CC No. 03/2000 telephone connection had been provided at his new shop on 22.4.95 but it had not been activated as accused Niranjan Singh belong to the ''Out-door staff '' and the job of activation of the telephone connection is of ''In-door staff'' . It is pointed out by the defence counsel that at the time of grant of pre-arrest bail to accused Niranjan Singh , it was stated that the evidence against him was insufficient.
26. It is next contended by the defence that jumper letter was received by accused Niranjan Singh on 19.4.95 and report regarding installation of the telephone connection was made thereon on 24.4.95 and only on 26.4.95 it was made known that annexure C i.e. bonafide certificate was not attached with the report and it was returned without compliance and as per office noting on document Ex. PW10/C, an query was raised as to why the aforesaid objection was not made on 24.4.95 when the report regarding installation of the telephone connection was submitted.
Contd....
17CC No. 03/2000
27. Lastly, Ld. Defence counsel contends that there is no evidence on record to connect accused Niranjan Singh with the offence in question and so, he deserves to be discharged.
Nothing else is urged by either side.
28. The sum and substance of the prosecution case is that MTNL landline phone no. 5700597 working at the house of the complainant was to be shifted to the shop of the complainant and in this regard complainant (PW7) had given an application in the MTNL Telephone Exchange, Shadipur, New Delhi and on 25.4.95, complainant (PW7) had met accused Niranjan Singh, Telephone Inspector for the shifting of the above said telephone and accused Niranjan Singh is stated to have told the complainant (PW7) that the complainant has to spend (KUCH KHARCHA KARNA PADEGA) and had told the complainant to come on the next day i.e. on 26.4.95 at about 11:00 or 12:00 noon and to give Rs. 200/- to his lineman Naresh and the work of the complainant would be Contd....
18CC No. 03/2000 done . It is the prosecution case that on 26.4.95, on the complaint Ex. PW7/A of the complainant (PW7), a trap was laid by raiding team of Anti Corruption Branch at about 10:00a.m., at the MTNL Telephone Exchange, Shadipur , New Delhi and accused Naresh was caught red handed while accepting bribe money of Rs. 200/- from the complainant (PW7) and the spot proceedings are contained in the post raid report Ex. PW7/F.
29. The prosecution case fundamentally rests upon the shoulders of Raid officer (PW12), panch witness (PW11) and complainant (PW7) and after scrutinizing their evidence, I find that the primary and the basic evidence contained in the complaint Ex. PW7/A and the raid reports Ex. PW7/B and Ex. PW7/F stands firmly established from their evidence.
30. Complainant (PW7) is a petty shopkeeper and panch witness (PW11) is a Lower Division Clerk of a Government department and this has to be kept Contd....
19CC No. 03/2000 in mind while appreciating their evidence because power of understanding and observation and retention varies from person to person and it cannot be forgotten that everyone has his own way of recollecting facts . The assault of defence upon the prosecution has to be considered while keeping in view the above said ground reality .
31. Although, complainant (PW7) has been cross examined by Ld. Addl. Public Prosecutor for the State on certain aspects , but I do not find that the complainant is hostile to the prosecution case. Infact, in his over zealousness , complainant (PW7) has stated in his evidence that accused Niranjan Singh was present at the spot on the day of the raid. Infact, he was not present and it is not the prosecution case that accused Niranjan Singh was present at the spot on the day of the raid. Complainant (PW7) has categorically stated in his evidence that accused Niranjan Singh had told the complainant to give the bribe money to accused Naresh. This is factually Contd....
20CC No. 03/2000 correct in the sense that this fact finds mention in the complaint Ex. PW7/A.
32. Since, the existence of the complaint Ex. PW7/A is firmly established , therefore, it constitutes an important link in the chain of the prosecution evidence and neither the evidence of complainant nor of panch witness can be read in isolation. The back ground of the prosecution case finds mention in the complaint Ex. PW7/A which contains crucial evidence of accused Nirajan Singh telling the complainant (PW7) a day prior to the raid that the bribe money of Rs. 200/- be given to his lineman Naresh on the next day between 11:00 and 12:00p.m. (noon) and the work of the complainant would be done.
33. It is crystal clear from the evidence of panch witness (PW11) that accused Naresh had asked the complainant (PW7) at the spot ''if the complainant had brought what was settled earlier'' and reference of this settlement finds mention in the Contd....
21CC No. 03/2000 complaint Ex PW7/A as referred above. Panch witness (PW11) may not have stated in so many words in his evidence that accused Naresh had told the complainant (PW7) ''paisa de do'' . To my mind, vernacular reproduction of what was stated is not required to be made by the witness in his evidence especially when the evidence is recorded after a time lapse of more than a decade.
34. In view of what is observed above, accused Naresh cannot be heard to say that there was no demand of bribe by him. When the prosecution evidence is considered as a whole, it becomes quite apparent that the acceptance of bribe amount by accused Naresh from the complainant at the spot was clearly at the instance of his co-accused Niranjan Singh.
35. It is claimed by accused Naresh as per attendance record, he was absent from duty on the day of raid and he had come to the office to hand Contd....
22CC No. 03/2000 over the key of the almirah to the lineman and he was apprehended and falsely implicated in this case. Absence of accused Naresh from his duty is of no avail because he himself admits his presence at the spot and the plea of coming to the office for handing over the keys to the lineman is far fetched and is not at all plausible and cannot be accepted for the reason that on one hand, he claims that he was absent from duty because his mother was ill but on the other hand, he does not give the name of the lineman to whom he was to hand over the keys of his almirah. In the face of the evidence on record, I am of the considered view that accused Naresh was present at the spot solely for the purpose of receiving the bribe amount from the complainant and he had come at the spot at the instance of his co-accused Niranjan Singh.
36. It is true that the complainant (PW7) in his cross examination by the defence has stated that the bribe money was accepted by the accused Naresh outside office cabin of accused Niranjan but I find Contd....
23CC No. 03/2000 that , he has stated in his chief examination that accused Naresh had come out of the office of accused Niranjan in the compound and the complainant followed him and accused Naresh had told the complainant that he should comply with the wishes of accused Niranjan and the work of the complainant would be done. What the complainant (PW7) has stated in his chief examination is acceptable as the same receives corroboration from the evidence of the panch witness (PW11) , raid officer (PW12) and the site plan of the spot Ex. PW13/A which clearly shows that the spot was outside the MTNL Office . Thus, there cannot be any ambiguity on this aspect.
37. The time of leaving of Anti Corruption Branch and reaching the spot as given by the complainant (PW7) , is at variance with the timings given by the Raid officer (PW12) but I do not find the variation to be much significant . I do not attach any importance to the fact that the complainant has given Contd....
24CC No. 03/2000 the time of reaching the spot at 11:00a.m., whereas, the Raid officer has given the time of reaching the spot as 10:30a.m., because complainant is a petty shopkeeper and his evidence has been recorded after about a decade . To my mind, the discrepancy in the timings is not material and it does not cause any dent in the prosecution case.
38. No doubt, that complainant (PW7) has stated in his cross examination by the defence that he had not met accused Naresh prior to the day of the raid but this by itself does not advance the case of the accused Naresh because there is no cross examination of the complainant and the panch witness regarding how the complainant had identified accused Naresh in the office room of accused Niranajan. In any case, this is not a material aspect as presence of accused Naresh at the spot is otherwise not disputed by this accused.
Contd....
25CC No. 03/2000
39. Although, complainant (PW7) has stated that pre-determined signal was given by him but when cross examined by Ld. Addl. Public Prosecutor for the State, he has stated that due to lapse of time, he had forgotten this fact and may be pre-determined signal was given by the panch witness (PW11). Simply because panch witness (PW11) is not able to produce any order to show that he was on duty in Anti Corruption Branch on the day of the raid , his presence in Anti Corruption Branch and at the spot cannot be doubted because he has graphically deposed in his evidence in respect of complaint and raid report of this case and nothing worthwhile has come out in his cross examination by the defence except that he has stated that accused Naresh had kept the bribe money in his shirt pocket .
40. Aforesaid lapse cannot be fatal to the prosecution case because the evidence of Raid officer (PW12) and the complainant (PW7) is consistent regarding recovery of bribe money from Contd....
26CC No. 03/2000 the hand of the accused Naresh at the spot and in the face of the clinching evidence of the Raid officer (PW12) , no importance can be attached to stray line to the cross exclamation of the panch witness by the defence regarding accused Naresh keeping the bribe money in his shirt pocket. Had it been so, then the shirt wash of accused Naresh would have been definitely taken . Infact, the categoric prosecution case is that the bribe money was still in the hand of accused Naresh when he apprehended at the spot.
41. As the sl. Numbers of the recovered GC notes were tallied with the sl. Numbers of the GC notes mentioned in the pre-raid report Ex. PW7/B, therefore, there was no requirement of putting any identification mark on the recovered GC notes .
42. There was no requirement of the raiding party joining any public witness at the spot because independent panch witness (PW11) was already with the raiding party. Otherwise also, there was no cross Contd....
27CC No. 03/2000 examination of the Raid officer on this aspect by the defence.
43. The evidence of Raid officer (PW12) is assailed by the defence on the ground that he has admitted in his cross examination by the defence that complainant and panch witness were relieved at the spot by the Investigating officer (PW13) and infact, Investigating officer (PW13) has stated in his evidence that they had accompanied the raiding party back from the spot to Anti Corruption Branch . The best person to depose on this aspect is the Investigating officer (PW13) and since the Investigating officer (PW13) has stated in his evidence that the complainant (PW7) and panch witness (PW11) had returned with the raiding party to Anti Corruption Branch, therefore, I have no reason to doubt the evidence of the Investigating officer (PW13) on this aspect. Raid officer (PW12) was not expected to keep a track and state after a lapse of decade exactly about complainant and panch witness Contd....
28CC No. 03/2000 returning to the Anti Corruption Branch from the spot. In any case, what difference it would make if the Raid officer (PW12) has stated that panch witness (PW11) and complainant (PW7) were relieved at the spot because they have not been cross examined on this aspect.
44. The Raid officer (PW12) is mainly concerned with the proceedings till the post-raid proceedings are completed and regarding the raid proceedings , I find that the evidence of the raid officer (PW12) is consistent and reliable . I have no hesitation in placing implicit reliance upon the evidence of the raid officer (PW12) in the light of what is held in the judgment reported in AIR 1998 SC 1474 (State of UP V/s Zakaullah), that is, the evidence of trap Officer can be relied upon even without corroboration if it inspires confidence.
45. Accused Niranjan Singh has tried to pick holes in the order Ex.PW3/A vide which sanction for Contd....
29CC No. 03/2000 his prosecution was granted, by contending that it contains name of co-accused Naresh at one place instead of name of accused Niranjan Singh. A bare perusal of the sanction order Ex.PW3/A makes it clear that in its operative part, it has been stated in so many words that the sanction for prosecution of accused Niranjan Singh in this case is accorded. There is no ambiguity about it. Regarding the typographical error at one place in the sanction order Ex.PW3/A, much capital cannot be made out of the fact that at one place name of accused Naresh Kumar figures therein because it talks about prosecution of accused Niranjan Singh as well as co- accused Naresh Kumar. In any case, there is no cross-examination of the sanctioning authority (PW-4) on this aspect and so there cannot be any meaningful challenge to the sanction order Ex.PW3/A which read as a whole, clearly conveys that after due application of mind, sanction for prosecution of accused Niranjan Singh has been granted as it is clearly stated therein that accused Niranjan Singh had demanded and Contd....
30CC No. 03/2000 accepted bribe through co-accused Naresh.
46. To my mind, no prejudice is caused to accused Niranjan Singh and the so-called mistake in the sanction order Ex.PW3/A, does not disclose any non-application of mind by the sanction authority.
47. The prosecution case from the very beginning is that the bribe was demanded by accused Niranjan Singh for shifting of the telephone of the complainant (PW-7) from his house to his shop and the bribe was not demanded for activation of the said telephone connection. Therefore, accused Niranjan Singh cannot be heard to say that he had already done his job of shifting of the telephone in question from the house to the shop of the complainant on 22.4.1995 and his duty was to look after the outdoor work and the job of activation of the telephone connection was duty of the indoor staff.
Contd....
31CC No. 03/2000
48. Shifting of the telephone connection in question may have been done by 22.4.1995 but without activation of the telephone connection, the work of the complainant cannot be said to be completed. Accused Niranjan Singh may not have been in a position to himself do the work of activation of the telephone connection in question but he could have got it done through the staff at Telephone Exchange, Shadipur, Delhi. The work of the complainant of shifting of his telephone cannot be bifurcated technically and accused Niranjan Singh cannot wriggle out of it by taking a lame plea of completing his part of shifting of the telephone and there being no occasion of demand of bribe by him or of its acceptance later on than 22.4.1995. Unless the telephone connection starts working, the work of the complainant cannot be said to be done. Shifting of telephone impliedly includes that it is made operational.
49. It cannot be said by any stretch of imagination that the complainant would pay bribe Contd....
32CC No. 03/2000 separately for shifting of telephone and would again pay bribe to somebody else for getting it activated.
50. Once it is established from the evidence on record that accused Niranjan Singh demanded the bribe for shifting of the telephone of the complainant, it obviously includes that it is made operational at the place where it was shifted. Complainant is not concerned whether accused Niranjan Singh himself makes the telephone in question operational or get it done.
51. In this view of the matter, evidence of official witness (PW-10) assumes importance as it transpires from his evidence that although accused Niranjan Singh had submitted his compliance report Ex.PW10/C on 24.4.1995 but the said compliance report was not accepted and it was returned back on 26.4.1995 i.e. on the day of the raid with the note at point 'x' thereon which was to the effect that returned without compliance for necessary action as Contd....
33CC No. 03/2000 Annexure-C was not attached. The evidence of official witness (PW-10) makes it clear that Annexure- C is the bonafide certificate i.e. to ensure that subscriber lives at the given address. It is a matter of conjecture as to why the afore-said objection on the compliance report Ex.PW10/C of accused Niranjan Singh was not raised on 24.4.1995 itself. Had accused Niranjan Singh been keen to know about it, then he could have got examined the author of this objection i.e Dhana Ram in his defence.
52. Both the accused have opted not to lead any evidence in the defence. Accused Niranjan Singh was on leave on the day of the raid. But what difference does it make because no active role has been attributed to the accused Niranjan Singh on the day of the raid by the prosecution. The key role of the accused NiranjanSingh was of the day earlier to the raid which stands clearly spelt out in the initial document i.e complaint Ex.PW7/A of accused NiranjanSingh telling complainant (PW-7) to give the Contd....
34CC No. 03/2000 bribe money of Rs.200/- to his Lineman Naresh on the next day between 11.00 a.m. to 12.00 noon and the work of the complainant would be done. Accordingly, on the basis of the complaint, Ex.PW7/A, a trap was laid on the next day and accused Naesh was caught red handed while accepting the bribe amount. The material prosecution case as contained in the raid report is totally in consonance with the complaint Ex.PW7/A and the sequence of events effectively connects accused Niranjan Singh and co- accused accused Naresh directly with the offence in question.
53. To put it concisely, accused Niranjan Singh had accepted the bribe of Rs.200/- through his junior i.e. accused Naresh for doing the work of the complainant and so, in the face of the above discussed evidence on record, I am of the considered opinion that the necessary ingredients of demand, acceptance and the recovery of the bribe amount of Rs.200/- stands fully proved in this case and it is not Contd....
35CC No. 03/2000 necessary that to make the offence complete, there has to be individually demand or acceptance of bribe by each of the accused.
54. This court is aware that the acceptance of money has to be conscious one. To say so, I rely upon the observations made in Noha's case 2006 IV Apex Decisions (Cri) 465 (B. Noha V/s State of Kerala) which are as under:-
''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 deduced from the facts and circumstances obtained in the particular case.''
55. As already observed above, there is evidence of Complainant (PW-7) to the effect that accused Naresh had told the complainant to comply Contd....
36CC No. 03/2000 with the wishes of accused Niranjan Singh and his work would be done. Similarly, there is evidence of Panch Witness (PW-11) to the effect that the accused Naresh had asked the complainant if he had brought what was settled earlier. All this clearly implies that accused Naresh was accepting the bribe money at the behest of his co-accused Niranjan Singh and the acceptance of the bribe money by accused Naresh was conscious one as accused Naresh does not explain as to for what purpose he had taken the money at the spot from the complainant.
56. Since the recovery of bribe money from accused Naresh at the spot stands conclusively established from the evidence on record, therefore, statutory presumption under section 20 of the Prevention of Corruption Act, 1988 instantly arises not only against accused Naresh but also against accused Niranjan Singh because accused Niranjan Singh had accepted the bribe money through his co- accused Naresh.
Contd....
37CC No. 03/2000
57. In judgment reported in 2004 (2) JCC 1161 (State of Andhra Pradesh Versus R Jeevaratnam) , it has been observed as under :-
''Once it is proved that the accused had accepted or agreed to accept any illegal gratification then the presumption under section 20 of the Prevention of Corruption Act automatically arises and proof does not mean direct proof and the very fact that the marked currency notes were recovered then it is for the accused to explain. ''
58. Of-course the statutory presumption raised against both the accused persons is rebuttable one. The plea of accused Naresh in his statement under section 313 Cr. P.C. is of bald denial and he claims that he has been falsely implicated in this case. He gives no reason as to why the complainant (PW-7) , panch witness (PW-11) or the raid officer or the Contd....
38CC No. 03/2000 Investigating officer (PW-13) of this case would falsely implicate him in this case. He has no defence to offer nor any defence has been suggested to the material prosecution witnesses.
59. Similarly, accused Niranjan Singh in his statement under section 313 Cr.PC denies the prosecution case and allege his false implication but gives no reason as to why he has been falsely implicated in this case. He cannot wash his hands of, by simply taking the plea that job of activation of the telephone connection in question was not his and was of indoor staff. This aspect has already been dealt by me in the preceding paragraphs and I have not found any substance in this plea of accused Niranjan Singh. I have no doubt in my mind that both the accused have clearly failed to rebut the statutory presumption which arises against them. CONCLUSION The irresistible conclusion arrived at on the basis of the evidence on record is that prosecution Contd....
39CC No. 03/2000 succeeded in establishing its case against both the accused persons beyond any reasonable doubt. Accused Naresh S/o Bharat Singh and accused Niranjan Singh S/o Jagat Singh are held guilty and are convicted for committing offence u/s 7 and 13(2) of the Prevention of Corruption Act 1988. Let them be heard on the point of sentence on 04.05.2007.
(Announced in the
open court ) (SUNIL GAUR)
SPECIAL JUDGE: DELHI 03.05.07
Contd....
40
CC No. 03/2000
IN THE COURT OF SHRI SUNIL GAUR:
SPECIAL JUDGE. DELHI.
CC No.3/2000
State Vs Naresh Kumar & Anr.
(1) Naresh Kumar
S/o Shri Bharat Singh,
R/o RZ T-8A, Uttam Nagar,
New Delhi.
(Lineman, MTNL)
(2) Niranjan Singh,
S/o Shri Jagat Singh,
R/o C-6/57-B, Kesho
Puram, Delhi
(JTO, MTNL).
FIR No.8/1995
Under section 7/13 of
Prevention of Corruption
Act 1988 .
PS Anti Corruption Branch
ORDER ON SENTENCE
Corruption is corroding social fabric of
efficiency in the public service like cancerous lymph nodes and is demoralizing the honest officers. The efficiency in public service would improve only when the public servants devote their sincere attention and do their duty diligently truthfully, honestly and devote themselves assiduously to the performance of their Contd....
41CC No. 03/2000 duties.
2. Shri Alok Saxena Addl. Public Prosecutor for the State and Shri Rajesh Vashishth counsel for the convict Naresh Kumar and Sh. Surender Adhlakha counsel for the convict Niranjan Singh have been heard on the point of sentence and the record of this case is perused.
3. Ld. counsel for the convict Naresh Kumar submits that the convict is aged 46 years and three minor children and a house wife and there is no one else to look after his family and he has faced trial in this case for about seven years and so, a lenient view on the point of sentence be taken and he be granted the benefit of probation.
4. On behalf of convict Niranjan Singh it is submitted that he is aged 61 years and has got a house wife and three children out of whom two are married and the younger son aged 23 years is Contd....
42CC No. 03/2000 unmarried and unemployed and he has also faced trial in this case for the year seven years.
5. Lastly, it is submitted that convict Niranjan Singh is a diabetic and had undergone by pass surgery in December 1999 and so, a lenient view on the point of sentence ought to be taken.
6. Ld. Addl Public Prosecutor submits that both the convicts do not deserve any leniency as they were hand in glove with each other in openly accepting bribe money of Rs.200/- from the complainant and so they be suitable punished to send a right message to the society.
Nothing else is urged by either side.
7. The prayer of convict Naresh Kumar for grant of probation cannot be considered in view of the specific bar contained in Probation of Offenders Act , 1958 i.e. Section 18 of the above said Act which excludes the application of Probation of Offenders Contd....
43CC No. 03/2000 Act , 1958 to offences under the special Acts like Prevention of Corruption Act, which provides for imposition of minimum sentence.
8. Aggravating and mitigating factors have to be considered by the Court in a dispassionate manner. In cases like present one, sentencing process has to be stern and cannot be tempered with mercy. To protect the society and to deter the corrupt, custodial sentence has to be imposed.
9. After having heard both the sides and upon perusal of the record, I find that it is difficult to accept the prayer of both the convicts to take a lenient view in this case because the gravity of offence cannot be judged from the amount of bribe taken as the virus of corruption is addictive in nature. Merely, because bribe amount is petty, flea bite sentence cannot be imposed because acceptance of bribe is not solitary episode under duress but corruption runs in blood of corrupt public servants who are hindrance to the Contd....
44CC No. 03/2000 progress of our country.
10. In view of the observations made above and the facts of this case, I sentence convict Naresh Kumar to undergo RI for a period of two years and a fine of Rs. 2,000/- (Rupees two thousand only ) u/s 7 of the Prevention of Corruption Act, 1988 and in default of payment of fine, convict shall undergo SI for a period of two months. Convict Naresh Kumar is further sentenced to undergo RI for a period of three and half years and a fine of Rs. 3,500/- (Rupees three thousand and five hundred only) u/s 13 (2) of the Prevention of Corruption Act, 1988 and in default of payment of fine, convict shall further undergo SI for a period of three months.
Convict Niranjan Singh is sentenced to undergo RI for a period of two years and a fine of Rs. 2,000/- (Rupees two thousand only) u/s 7 of the Prevention of Corruption Act, 1988 and in default of payment of fine, convict shall undergo SI for a period of two months. Convict Niranjan Singh is further Contd....
45CC No. 03/2000 sentenced to undergo RI for a period of three and half years and a fine of Rs. 3,500/- (Rupees three thousand and five hundred only) u/s 13 (2) of the Prevention of Corruption Act, 1988 and in default of payment of fine, convict shall further undergo SI for a period of three months.
Both the substantive sentences shall run concurrently and the convict shall be entitled to benefit under section 428 Cr. P.C. A duly attested copy of the judgment and this order be supplied to both the convicts free of cost and thereafter file be consigned to the record room.
(Announced in the (SUNIL GAUR)
open Court on 04th Special Judge:Delhi
May, 2007)
Contd....
46
CC No. 03/2000
Contd....