Delhi District Court
State vs . Ombir Singh Page 1 Of 29 on 10 February, 2015
1
IN THE COURT OF SH. NAROTTAM KAUSHAL,
SPECIAL JUDGE (PC Act)05, (ACB), (CENTRAL),
TIS HAZARI COURTS, DELHI
Date of Institution : 07.07.2014
Date of reserving the Judgment : 05.02.2015
Date of pronouncing the Judgment : 10.02.2015
Corruption Case No. : 04/2014
FIR No. : 05/2012
Case Identification No. : 02401R0308712014
Police Station : Anti Corruption Branch
Under Section : 7/13 of Prevention of
Corruption Act, 1988
STATE
Versus
Ombir Singh
S/o Sh. Kartar Singh
R/o Flat No. 130, Pocket 12, Sector 21,
Rohini, Delhi09.
JUDGMENT
1.1 Accused Ombir Singh has been charged sheeted by PSACB for offences punishable u/s 7 and 13 of Prevention of Corruption Act ( hereinafter called as PC Act ). It is the case of prosecution that one Divakar Prasad approached PSAnti Corruption Branch ( hereinafter called as PSACB) and lodged a complaint on 16.02.2012 against the State Vs. Ombir Singh Page 1 of 29 2 accused alleging that demand of of Rs. 10,000/ as bribe was made by him. It is further the case of the prosecution that two officials of Weight and Measurement Department (hereinafter call as WMD) inspected the factory of the complainant on 7.2.2012 and threatened to issue a challan. As a follow up to the inspection, complainant visited the office of WMD to meet Devender Bist, one of the officials, who had conducted the invspection. Accused Ombir was present with Devender Bist, when complainant visited the office. Accused then took the complainant to one side and made the demand of Rs. 10,000/ as a motive or reward for non issuance of challan/penalty of Rs. 25,000/. The amount of bribe was negotiated at Rs. 7,000/.
1.2 On the complaint aforesaid, Inspector Yash Pal (hereinafter called as RO) constituted a raiding party, which included a panch witness. Raid was conducted at the office of WMD, where accused Ombir Singh was caught red handed while demanding and accepting bribe of Rs. 7000/, from the complainant. The amount of bribe, in the shape of treated GC notes was recovered from the possession of the accused. Hand wash proceedings were conducted with Sodium Carbonate solution, which turned pink. RO prepared raid report & rukka and handed over the accused, exhibits and records to Inspector B.K. Singh (hereinafter called as IO). IO concluded the investigation at the spot. Thereafter, sent the hand wash solution to FSL, collected the bio State Vs. Ombir Singh Page 2 of 29 3 data of accused, sought sanction for prosecution and filed the charge sheet.
2 Charge sheet was submitted before the court on 7.7.2014. Cognizance of the offence punishable u/s 7/13 of PC Act was taken on 15.7.2014 and accused was summoned. On appearance of the accused proceedings u/s 207 Cr. P.C. were complied with. On 15.9.2014 charge for offences punishable u/sec.7/13(1) (d) r/w section 13 (2) of the PC Act was ordered to be framed. Accordingly charge was framed to which the accused pleaded not guilty and claimed trial.
3.1 Prosecution examined 12 witnesses in support of its case. HC Suraj Pal (PW7) was the Duty Officer at PSACB on 16.02.2012. He deposed having received the rukka at 5.15 PM and on the basis thereof he recorded FIR No. 05/12. HC Jai Krishnan (PW5) had carried the rukka from the spot and handed over the same to the Duty Officer. 3.2 HC Chander Singh (PW3) was MHC(M) at PS Civil Lines. He deposed that on 16.02.2012, IO deposited seven GC notes and two bottles containing hand wash of the accused in malkhana. On 24.2.2012 MHC(M) handed over one bottle marked as RHW1 to Ct. Ram Sarup (PW10) to be carried to FSL, Rohini vide road certificate No. 177/21/11. He further deposed that on 20.6.2012 Ct. Krishan (PW2) brought the State Vs. Ombir Singh Page 3 of 29 4 remnants of the exhibit and FSL report from FSL, Rohini and deposited the exhibit with him . All the three aforesaid witnesses deposed that the case property had not been tampered with during the period the same remained in their respective custody.
3.3 Sri Narain (PW1) was Assistant Director ( Chemistry ), FSL, Rohini. He deposed having received bottle marked RHW1 through Ct. Ram Sarup with intact seals, tallying with the specimen seal. He examined the contents of bottle Mark RHW1 and reported presence of phenolphthalein in the same. He proved his report Ex. PW1/A. 3.4 Bhupinder Singh (PW6), Assistant Controller, WMD, GNCT, Delhi proved biodata of accused. Narendra Kumar (PW8) was posted as Secretary in WMD, GNCT and was competent authority to remove accused from service. He deposed having granted sanction for prosecution of the accused vide order Ex. PW8/A. 3.5 Complainant Divakar Prasad (PW4) deposed having made the complaint against the accused regarding demand of bribe. He also proved the preraid proceedings. He specifically deposed about demand, acceptance and recovery of bribe from the accused. Chander Kant Sharma (PW9), LDC from DC office, GNCT, Delhi deposed that he was associated as a panch witness in the raid conducted at the office of State Vs. Ombir Singh Page 4 of 29 5 accused. He also corroborated the complainant as regards lodging of complaint and preraid proceeding. He also fully supported the complainant as regards demand, acceptance and recovery of bribe by the accused, at the spot. However, he deposed that after the accused had been apprehended, he was brought to PS ACB, where serial numbers of recovered GC notes were compared with the serial numbers mentioned in preraid report. He further deposed that hand wash proceedings were done at PSACB. He also deposed that raiding team had used three vehicles to reach the spot. The witness was declared hostile and was cross examined by Ld. Additional PP. On being cross examined by Ld. Additional PP he reiterated the number of vehicles to be three. He denied that serial numbers of GC notes were compared at the juice shop i.e. the spot of recovery. However, he deposed that seizure memo of GC notes was prepared at the spot and all writing work upto preparation of rukka was done at the spot. He further admitted that comparison of serial number of recovered GC notes with number on the preraid report was done at the spot. He denied hand wash proceedings to have been done at the spot.
3.6 RO/Inspector Yash Pal (PW12) deposed that on 16.02.2012 complaint Ex. PW4/A was marked to him by ACP Sahdev Singh. He called the complainant to his room at about 12 O' clock and then called panch witness to his room. He further proved preraid proceedings, State Vs. Ombir Singh Page 5 of 29 6 wherein use of phenolphthalein powder was demonstrated to the complainant and panch witness. He also deposed having briefed the complainant and panch witness about the raid proceeding. He has then further deposed that on reaching the spot complainant and panch witness went to the office of accused and returned shortly thereafter to report that accused was not in his office. On a phone call made to the accused by the complainant, he instructed the complainant to reach a juice shop near the office of WMD. He has further deposed that on receiving the predetermined signal from the panch witness, raiding team nabbed the accused at the juice shop. RO disclosed his identity to the accused and offered search of the team. He has further deposed about recovery of GC notes from the possession of the accused, hand wash proceedings, preparation of rukka, handing over of accused and handing over of case property & raid reports to the IO. 3.7 Inspector B.K. Singh (PW11) IO of the case has deposed having taken over investigation from Inspector Yash Pal (PW12). He has proved various stages of investigation, carried out by him viz arrest of the accused, deposit of case property in malkhana, sending of exhibit RHW1 along with sample seal to FSL, Rohini for analysis, collection of biodata and sanction for prosecution of accused. After conclusion of investigation he submitted the charge sheet in court. State Vs. Ombir Singh Page 6 of 29 7 4 Incriminating evidence was put to the accused and his statement u/s 313 Cr.P.C. was recorded. He did not dispute being a public servant working as Manual Assistant in WMD, GNCT, Delhi. He denied for want for knowledge that Devender Bist and Rajesh Verma had threatened issuance of challan against the factory of complainant. He denied that on 16.2.2012 complainant visited the office of WMD and that he had demanded Rs. 10,000/ from him as illegal gratification for settlement of challan. He denied that the amount was settled at Rs. 7,000/. He disputed the complaint, preraid proceedings and the post raid proceedings. He denied having demanded or accepted Rs. 7,000/ from the complainant at the time of trap. He claimed the hand wash proceedings to have been fabricated against him. He claimed the sanction to have been wrongly granted. He stated that he had been falsely implicated. He was called out of his office by the complainant by making a phone call of an accident involving his close relative. He came out of his office, where complainant shook hand with him and he was nabbed and brought to PSACB. He sought opportunity to lead defence evidence and examined two witnesses.
5 Devender Singh (DW1) deposed that on 7.2.2012 at the time of inspection of the premises of the complainant accused was not with the inspecting team. He identified photographs Mark DW1/C to Mark DW1/E to be the photographs of WMD's office, South Zone, Okhla State Vs. Ombir Singh Page 7 of 29 8 Industrial Area. S.D. Majhi (DW2) has been examined by the accused to prove his plea of alibi. The witness has deposed that on 16.2.2012 accused came to the Standard Laboratory, Tilak Nagar, Delhi at 10.30 AM and remained in the laboratory till about 12.00 noon. 6 Sh. B.B. Bhasin, Ld. Additional PP on behalf of State has argued that complainant and panch witness have fully supported the case as regards demand, acceptance and recovery of bribe. Referring to the testimony of panch witness (PW9), it is submitted that the panch witness was apparently confused about the post trap proceedings, conducted at the spot. He has proved the post raid report to have been prepared at the spot and has simultaneously deposed that accused was nabbed after trap and brought to PSACB. Both the situations are in conflict with each. On being further cross examined, he has deposed that serial numbers of recovered GC notes were compared with the serial numbers recorded in preraid report, at the spot. It is thus argued that minor discrepancy in the testimony of complainant as regards recovery and hand wash proceedings having been done at the spot or at PSACB, shall have to be harmoniously construed to interpret that the raid report, which was written at the spot is correct sequence of evidence. Sh. Bhasin has relied upon the law laid down in Vijay Narin Vs. State of Delhi, reported as Criminal Appeal No.660/08 decided on 29.09.2014 by the Hon'ble Delhi High Court to argue that minor discrepancy in the statement of panch State Vs. Ombir Singh Page 8 of 29 9 witness would not vitiate the otherwise unimpeached evidence. It is further argued that RO/Inspector Yash Pal ( PW12) has diluted the effect of discrepancies in the statement of panch witness. RO has fully corroborated the complainant as regards recovery and hand wash proceeding to have been done at the spot. It is, thus, argued that sanction for prosecution having been proved, the prosecution case stands establish beyond reasonable doubt.
7.1 Dr. M.Y. Khan, Ld. defence counsel has raised doubt on the prosecution case on various counts. It is first pointed out that complaint Ex. PW4/A does not bear any diary number of PSACB. Thus creating the first doubt about the time and date of complaint having been received at PSACB. It is next argued that complainant has not explained the delay in lodging of the complaint. Inspection of his premises was carried out on 7.2.2012 and the complaint is dated 16.2.2012. There is no explanation as to why the complainant did not visit the office of WMD during these 8/9 days. The complaint does not describe the status of accused Ombir. Two of the members of the raiding team have not been cited and examined as witnesses. It is further argued that prosecution has withheld the fact that three vehicles had been taken for the raid. Panch witness (PW9) has insisted that there were three vehicles, whereas other witnesses have mentioned that two vehicles were used for the raid. Referring to the statement of HC Krishan (PW5), it is argued that one State Vs. Ombir Singh Page 9 of 29 10 vehicle was brought back from the spot, by which, he carried the rukka to PS ACB. There were, thus, about 10 members of raiding team including RO, IO and the accused; and only one vehicle available for all of them to return to PS ACB. It is thus argued that prosecution suffers from the vacuum as to how the team traveled from the spot to PS ACB. There is no evidence on record that panch witness Chander Kant Sharma (PW9) was a government official employed as LDC with Government of NCT. 7.2 Pointing out the contradictions in the statements of complainant and panch witness as regards recovery of treated GC notes to have been effected at the spot and the hand wash proceedings to have been done at the spot, it is argued that prosecution has not explained these contradictions. Referring to the testimony of Devender Singh (DW1), it is argued that photographs proved by this witness show that there was no boundary wall of office of WMD. The prosecution story that raiding team entered the boundary wall of the office, is disproved. It is next argued that there was no name plate or separate office of Devender Singh. Last but not the least Sh. Khan has raised the plea of alibi. It is argued that accused had been handed over certain Weights to be got checked/ verified from the Laboratory. He had taken the items from his office on 15.02.2012 to his residence and from his residence gone straight to the laboratory at Tilak Nagar on 16.02.2012. There was no occasion for the complainant to have met him in the office on 16.2.2012. There could State Vs. Ombir Singh Page 10 of 29 11 not have been any demand on 16.2.2012, in the morning hours when the accused was present at Tilak Nagar laboratory from 10.30 AM to 12 O' clock and had not gone to the office. It is thus argued that prosecution has miserably failed to prove its case beyond reasonable doubt. Shri Khan has relied upon the law laid down in Trilok Chand Jain Versus State AIR 1977 SC 666, Chironjilal Vs State of MP 2008 Cr. L.J. 1784, Gaddam Mutyala Rao Vs State of AP 2006 Law Suit (AP) 1415, Arjun Bajirao Kale Vs State of Maharashtra 2009 (4) Crimes 504 (Bom.), Pooran Chandra Rastogi Vs State of UP 1992 Cri. L.J. 2430, Ayyasamy Anr. Vs State 1996 Cr.L.J. 119 and Suraj Mal Vs State (1979) 4 Supreme Courts Cases 725. 8 I have heard the Ld. counsels and with their assistance perused the evidence on record. As per the charge and evidence brought on record, following questions arises for adjudication.
(i) Whether the accused made demand of bribe from the complainant in the morning of 16.02.2012?
(ii) Whether there was demand or acceptance of bribe at the time of trap?
(iii) Whether treated GC notes were recovered from the possession of accused?
9 Before dealing with the questions raised, the preliminary requirements for trial under PC Act to be commenced, need to be State Vs. Ombir Singh Page 11 of 29 12 discussed. Accused Ombir Singh was a Manual Assistant in Weight and Measures Department of Government of NCT. His biodata Ex. PW6/A has been proved, indicating that he was a public servant, governed by CCS Rules. Column No. 13 of the biodata further indicates his disciplinary authoirty was Secretary, WMD. Sh. Narender Kumar (PW8), Secretary, WMD proved the order granting sanction for prosecution of accused Ombir. Thus, the prosecution is established to have crossed first threshold of accused being a public servant and having been granted sanction for his prosecution. Safe custody of case property and link evidence of its safe transportation from Malkhana of FSL and back from FSL to Malkhana has also been proved. FSL report Ex.PW1/A, opining presence of phenolphthalein powder in hand wash solution is also proved.
I shall now deal with the questions raised by this court in para No.8.
(i) Whether the accused made demand of bribe from the complainant in the morning of 16.02.2012?
10.1 Complainant ( PW4) has sworn on oath that on 16.2.2012 he went to the office of WMD and went to the room of Devender Bist where accused was present with Devender Bist. He told Devender Bist that he had come to meet him in the context of his visit to his factory on 7.2.2012 ( so stated in cross examination). On this accused addressed him State Vs. Ombir Singh Page 12 of 29 13 and took him to one side and demanded a bribe of Rs. 10,000/ to settle the issue of challan. The amount was settled at Rs. 7,000/. Prosecution has not cited any other witness to prove this aspect of the case. On being cross examined witness has reiterated his testimony in examination in chief and has rather given further details. He also deposed that he had reached the office on 16.2.2012 at 10.30 AM. He was not told any reason for issuance of challan but was told by the accused that WMD could imposed a penalty of Rs. 25,000/. The answers given by the witness in cross examination were not suggested to be wrong answers. 10.2 Prosecution has not cited any other witness to corroborate the visit of complainant to the office of WMD on 16.2.2012 and the demand made at that time. However, defence has sought to disprove this visit by raising plea of alibi. S.D.Majhi (DW2) has deposed that accused came to Tilak Nagar laboratory at 10.30 AM and handed over some Weights to be analysed at the laboratory. He had brought the Weights, by way of letter Ex. PW2/A, on which the witness had given his acknowledgment. Accused left the laboratory at 12 O' clock. On being cross examined by Ld. Additional PP he deposed that he had not brought the register maintained by him wherein the arrival and departure entry were made. He also admitted that letter Ex.DW2/A was not signed by the accused and that the same did not bear diary and dispatch numbers of the office of the accused and that of the laboratory.
State Vs. Ombir Singh Page 13 of 29 14 10.3 In my opinion the plea of alibi sought to be proved through DW2 falls flat, when letter Ex. DW2/A is examined. The letter dated 16.2.2012 does not bear any dispatch number of the office of the accused from where it is claimed to have been issued. It also does not bear any diary number of the office of laboratory, where the accused is claimed to have carried this letter with the Weights for analysis. Letter issued by one department of Government to another department of Government is presumed to have been issued in discharge of business and presumed to be correct, only if its execution, diary and dispatch are duly proved. On all these counts, the letter fails the test. Its author has not been examined, its dairy & dispatch numbers are not proved. On the contrary, if the letter Ex. DW2/A is presumed to have been duly issued and dispatched; it contradicts the plea of alibi itself. Letter dated 16.2.2012 shall be deemed to have been issued on 16.2.2012, unless proved otherwise. And if it is the case of the accused that it was handed over to him to visit the laboratory for compliance, it shall be presumed that accused was in the office in early hours of 16.02.2012, when the letter was collected by him along with the items to be analysed /verified at the laboratory. This is contrary to the stand of accused that he did not visit his office in the morning on 16.02.2012. This court can not accept the argument of ld. defence counsel that letter dated 16.02.2012 had been handed over to the accused on 15.02.2012. I, therefore, hold that accused has failed to prove his plea of alibi. It is established principle of law that false plea of alibi is a State Vs. Ombir Singh Page 14 of 29 15 circumstance to be read against the accused. This was reiterated by the Hon'ble High Court in Ajitsingh Harnamsingh Gujral Vs. State of Maharashtra reported as 2011 (14) SCC 401. I, therefore, have no reasons to disbelieve the oral testimony of complainant that he went to the office of WMD on 16.2.2012 at about 10.30 AM and the accused demanded a bribe of Rs. 10,000/ from him, which was settled at Rs. 7,000/.
(ii) Whether there was demand or acceptance of bribe at the time of trap?
11.1 To establish this question, case of the prosecution rests upon the testimony of complainant (PW4) and panch witness (PW9). Both the witnesses have proved complaint Ex. PW4/A to have been written by the complainant on 16.2.2012. They further unanimously deposed that Inspector Yash Pal (RO) introduced them to each other and then demonstrated the use of phenolphthalein powder and issued necessary instructions for the raid. They further deposed about preparation of pre raid report and leaving the spot at about 1.30 PM for the office of WMD and reaching there at about 2.15 PM. Panch witness has, however, given the address of WMD to be in Okhla, Phase II. It is a minor discrepancy, which does not go to the root of the matter. They have further deposed that they went inside the office and inquired about accused, who was not present in the office. Complainant made a phone call to the accused State Vs. Ombir Singh Page 15 of 29 16 and was instructed to reach a particular juice shop near the office. Complainant (PW4) has further deposed that accused also reached the juice shop and initially talked about some irrelevant issues and then demanded the bribe amount. On the demand of accused he took out the GC notes from his pocket using his right hand and handed over the same to the accused, who accepted the same in his right hand. Panch witness gave the predetermined signal and the raiding party arrived. On being cross examined PW4 deposed that he had been instructed by the accused to reach his office before 2.00 PM. Accused reached the juice shop at about 2.40 PM. He admitted having made two phone calls to the accused at about 2.40 PM, to ascertain the location of juice shop. 11.2 Panch witness (PW9) has deposed that on arrival of the accused at juice shop, complainant asked him, if his work would be done; accused assured him of his work being done and then accused demanded money from the complainant. The complainant then took out treated GC notes from left upper pocket of his shirt and handed over the same to accused, who accepted the same in his right hand. On being cross examined by Dr. Khan, panch witness reiterated his testimony of his examination in chief and explained that complainant questioned the accused about his challan and accused told him that work had been done and asked him to pay the agreed amount. Accused had asked about his identity and complainant told him that he was his brother. He did State Vs. Ombir Singh Page 16 of 29 17 not talk to the accused or shake hands with the accused but he had done Namaste. He also deposed that complainant had made more than one call to the accused, to ascertain his location.
11.3 From the testimony of complainant and panch witness as noticed above, there is complete corroboration of the prosecution case as regards demand and acceptance of bribe at the spot. Both the witnesses have given a complete account of the proceeding at the spot with natural variation and reiterating the prosecution case. The cross examination by Ld. defence counsel did not project any contradictions or discrepancies; rather further strengthened the prosecution case. I, therefore, hold that prosecution has established beyond reasonable that accused Ombir demanded and accepted bribe of Rs.7,000/ from the complainant on 16.02.2012 at about 2.40 PM, at the Juice Shop near office of WMD.
(iii) Whether treated GC notes were recovered from the possession of accused?
12.1 To prove the recovery of treated GC notes from the possession of the accused, prosecution relies upon the testimony of complainant (PW4), Panch witness (PW9) and Raid Officer Inspector Yash Pal Singh (PW12). Complainant (PW4) has deposed that on pre determined signal given by the panch witness, the raiding party arrived. State Vs. Ombir Singh Page 17 of 29 18 RO disclosed his identity and challenged the accused that he had accepted bribe from complainant. On instruction of Raid Officer, panch witness recovered the GC notes from the right hand of accused. Serial Numbers of GC notes were tallied with the serial numbers mentioned in the preraid report, which had matched. Right hand of accused was washed in Sodium Carbonate solution, which turned pink. There is no pointed crossexamination of the witness by the Ld. Defence Counsel, on the aspect of recovery of treated GC notes and hand wash proceedings. An omnibus suggestion was given that accused did not come to the juice shop or that he was picked up from his office by the Raid Officer. It was also suggested that all paper work was done at PSACB, after returning from the raid. Ofcourse, all the suggestions were denied by the complainant.
12.2.1 Panch witness, Chanderkant Sharma (PW9) has deposed that Raid Officer with his team immediately arrived at the spot i.e. Juice Shop, on predetermined signal given by him and apprehended the accused. RO disclosed his identity to the accused. Accused was put in government vehicle and brought to PSACB. At PSACB, serial numbers of recovered GC notes were tallied with the serial numbers mentioned in preraid report, which matched. The treated GC notes were seized. Right hand of the accused was washed with a solution, which turned pink and the solution was transferred to two bottles, which were also seized. The State Vs. Ombir Singh Page 18 of 29 19 witness was crossexamined by Ld. Addl. PP on this aspect and he gave conflicting answers. Initially, he denied the suggestion that serial numbers of GC notes were compared at the Juice Shop. However, in later part of his crossexamination, he admitted that serial numbers of recovered GC notes were compared with the serial numbers on preraid report, at the spot. He denied seizure memos of GC notes to have been prepared at the spot but he admitted that the writing work upto preparation of rukka, had been done at the spot. He denied hand wash proceedings to have been done at the spot. Dr. M.Y. Khan cross examined the witness at some length but there is no crossexamination on this part of his testimony. However, a suggestion was given that witness was not present at the juice shop with the complainant or that the accused did not visit the juice shop. On another suggestion given by ld. defence counsel, witness volunteered that he had signed all the documents after understanding the contents of the same. 12.2.2 From the evidence of panch witness as discussed above, no definite opinion can be found as regards the postacceptance proceedings, as perceived by this witness. He is blowing hot & cold in the same breath. At one stage, he has deposed that accused was apprehended and brought to PSACB. Some time later, he has deposed that all raid proceedings were drawn at the spot and he had signed the same after understanding the contents thereof. He also deposed the State Vs. Ombir Singh Page 19 of 29 20 seizure memo of GC notes was prepared at the spot. He has also taken a conflicting stand as regards the place, where comparison of serial number of GC notes with the numbers recorded in the preraid report was done. I am, therefore, of the opinion that the evidence of panch witness (PW9), as regards the recovery proceedings having been done at the spot can not be held to be consistent. However, reading of his testimony does give a firm & consistent view that the treated GC notes were recovered from the possession of the accused. Since, there is no crossexamination of the witness or even a contrary suggestion, his testimony can be read to indicate that recovery of treated GC notes was effected from the possession of the accused; though the recovery proceedings might not have been conducted at the spot. 12.3 However, the prosecution has relied upon yet another witness i.e. Inspector Yashpal Singh (PW12), Raid Officer of the case, who also witnessed the recovery proceedings. He has deposed that on receiving the predetermined signal from the panch witness, he rushed to the juice shop with the team. He introduced himself and challenged the accused. The accused was apprehended and enquiries were made from the complainant and panch witness, who informed him about demand & acceptance of bribe by the accused, which he was still holding in his right hand. On his instruction, panch witness recovered the treated GC notes from the accused. Serial Numbers of the recovered GC notes were State Vs. Ombir Singh Page 20 of 29 21 compared with the serial numbers mentioned in preraid report, which matched. Right hand of the accused was washed with the Sodium Carbonate solution, which turned pink. Pink solution was transferred in two bottles, which were sealed and seized. The witness was cross examined by ld. defence counsel at length as regards the location of office of Weight & Measure Department, Juice shop and the presence/ absence of boundary wall surrounding the building. However, there was no cross examination at all as regards the recovery proceedings. 12.4 From the testimony of aforesaid 3 witnesses as discussed above, this court is of the firm opinion that there can not be any doubt about the prosecution case of recovery of treated GC notes from the possession of accused. Complainant and the raid officer corroborate each other on all material aspects. Panch witness has not disputed the recovery, though has made inconsistent statement about the recovery proceedings to have been done at the spot or at the police station. Moreover, the hand wash contained in bottle RHWI has been opined by PW1 to be containing phenolphthalein powder, further, giving support to the prosecution case as regards the recovery of the treated GC notes from the possession of the accused. I, therefore, hold that treated GC notes were recovered from the possession of the accused.
State Vs. Ombir Singh Page 21 of 29 22 13.1 The doubts raised by the Ld. defence counsel as regards the complaint Ex. PW4/A do not stand established. There is no legal requirement for the complaint to have been diarised in PSACB. The delay of 8/9 days pointed out by Ld. defence counsel is actually no delay. The complaint has been filed within a few hours of demand having been made. It is the case of the complainant that demand or bribe was raised on 16.2.2012 in the morning and complaint was made by him on 16.2.2012 itself, before noon. There apparently is a delay of about 8/9 days in the visit of complainant to the office of WMD, from the date of inspection of his factory. The best person to answer and explain this delay was the complainant Dwarka Prasad himself. However, no such question was posed to the witness in his cross examination. 13.2 It has also been argued by Ld. defence counsel that the officials of WMD were not competent to impose any penalty. That, there is no requirement of any renewal of packaging certificate from the office of WMD. Further accused was not one of the Inspectors, who had inspected the premises of complainant. Accused, thus, had no occasion to demand bribe from the complainant. I have given thoughtful consideration to the arguments so raised. The fact of premises having been inspected on 7.2.2012 is not disputed by the defence itself. Inspection report Ex. DW1/A was proved through one of the visiting Inspectors, Devender Singh Bist (DW1). It is not the case of the defence State Vs. Ombir Singh Page 22 of 29 23 that the inspection report, giving clean chit to the inspected premises was served upon the complainant or his representative, at the spot or on any subsequent date. It was not even suggested to the complainant during his cross examination that copy of inspection report/memo was handed over to his representative, after the inspection. I, therefore, find no merit in the argument that complainant had nothing to fear from the aforesaid inspection.
13.3 As regards in competence of accused to have extended help to the complainant, Explanation (d) to section 7 of the PC Act gives the complete answer to this argument. For ready reference, the relevant provision is reproduced herein below:
(d) " A motive or reward for doing ". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.
Thus, prosecution is not required to prove the competence of accused to have helped the complainant. Nevertheless, the fact that the accused is an employee of WMD and was present with Inspector Devender Singh Bist at the time of visit of complainant to the office on 16.2.2012; is sufficient for the complainant to have expected his competence to extend some favour. Though, there is no corroboration to the testimony of complainant that accused was present with Devender State Vs. Ombir Singh Page 23 of 29 24 Singh Bist at the time of his visit to the office on 16.2.2012 at 10.30 AM; however, this fact can be presumed to be correct as the subsequent conduct of accused in having demanded and accepted the bribe at the time of trap is established (as discussed in para no.11). 13.4 It has also been argued by Dr. Khan that there is discrepancy in the prosecution evidence as regards the number of vehicles used for the raid. I have studied the evidence and it is only panch witness, who has claimed that there were 3 vehicles, which went for the raid. Other two witnesses of the raid namely complainant (PW4) and Raid Officer (PW12) have consistently stated that the numbers of vehicles used were two. Moreover, no prejudice is demonstrated to have been caused to the defence if the number of vehicles were 2 or 3. Dr. Khan has also argued that in case there were two vehicles used, there is no evidence on record as to how about 10 persons traveled from the spot to PSACB in only one vehicle, the other vehicle having been taken away by HC Krishanan (PW5), who had carried the rukka. The argument on the face of it does look plausible, however, the same is not borne out from the evidence on record. No question was put to the witnesses namely RO, IO, complainant & panch witness as to how they traveled from the spot to PS ACB. I, therefore, find no merits in this argument. Dr. Khan has also doubted the status of panch witness Chanderkant Sharma (PW9) to be a Government official. However, no question was put to panch witness State Vs. Ombir Singh Page 24 of 29 25 (PW9) in his crossexamination regarding his status. The defence was within its rights to challenge the witness and ask him to furnish his Icard. Having not availed the opportunity, the argument can not be sustained now.
14 Having, thus, successfully proved beyond reasonable doubt that accused had demanded and accepted treated GC notes from the complainant, presumption u/sec.20 of the PC Act that the amount was illegal gratification is raised against the accused, which has not been rebutted. Reliance has been rightly placed by Ld. Addl. PP on law laid down in Vijay Narain's case (supra), where inconsistency in the statement of complainant was ignored and it was held as under: "In light of the fact that the hand washes of the Appellant turned pink, the burden u/sec.20 of the PC Act for the purpose of sec.7, thereof, shifted to the Appellant to show that he did not consciously accept the bribe amount. The Appellant clearly failed to do so in the instant case."
15 I have gone through the judgments relied upon by Dr. M.Y.Khan, ld. counsel for the accused. In Hari Dutt Pandey's case (supra) material witness as well as the IO in their statements recorded before the court had deposed contrary to the documentary evidence relied upon by the prosecution. The case was held to be not proved State Vs. Ombir Singh Page 25 of 29 26 beyond reasonable doubt. As discussed in paras 10 to 12 above, the panch witness, complainant & Raid Officer have consistently proved the case of the prosecution to the hilt. Law laid down in Trilok Chand Jain's case (Supra) is not applicable, as the judgment was rendered in PC Act 1947. Explanation d to sec.7 of PC Act, 1988 being the latest position of law, the said judgment is not applicable. In Chironjilal's case (supra), accused was successfully able to rebut the presumption; whereas, in the present case, the presumption has not been rebutted. In Gaddam Mutyala Rao's case (supra), prosecution witnesses had turned hostile. In the present case, the witnesses have supported the prosecution case, especially on the material aspects each of the witnesses have been extremely consistent. In Arjun Bajirao Kale's case (supra), the evidence of prosecution witnesses were contradictory. In Pooran Chandra Rastogi's case (supra) acquittal was a cumulative effect of several factors viz invalid sanction, GC notes were not treated with phenolphthalein powder and interested/ nonreliable witnesses. This is not the fact situation of the present case. Law laid down in Ayyasamy's case (supra) is not applicable on the facts of present case, as there is no evidence that the material documents were not available to the sanctioning authority. In Suraj Mal's case (supra), the statements of material witness were inconsistent. For the reasons discussed above, I am of the opinion that the law laid down in above referred judgment does not come to the rescue of the accused.
State Vs. Ombir Singh Page 26 of 29 27 16 For the reasons stated in paras nos.9 to 15 above, this court holds that prosecution has proved its case beyond reasonable doubt. The charge for offence punishable u/sec.7 of the PC Act for demand of Rs. 7,000/ as bribe from complainant Divakar Prasad, as a motive or reward for doing or forbearing to do an official work, is proved beyond reasonable doubt. Accused is, thus, held guilty for the offence punishable u/sec.7 of the PC Act. Prosecution has also successfully proved the charge against accused Ombir Singh of demanding & accepting illegal gratification for the amount of Rs.7,000/ other than illegal remuneration, as a pecuniary advantage for himself by corrupt or illegal means, by abusing his position as public servant. Accused is, thus, held guilty for the offence punishable u/sec.13 (2) r/w/sec.13 (i) (d) of the PC Act. Accused is accordingly convicted for the offences punishable u/sec.7 & 13 (2) r/w/sec.13 (i) (d) of the PC Act.
Case Property be destroyed and the GC notes, made available by the complainant, be returned to him against receipt.
Announced in the open Court (NAROTTAM KAUSHAL)
on 10.02.2015 SPECIAL JUDGE (PC ACT)05
(ACB), TIS HAZARI COURTS
DELHI
State Vs. Ombir Singh Page 27 of 29
28
IN THE COURT OF SH. NAROTTAM KAUSHAL,
SPECIAL JUDGE (PC Act)05, (ACB), (CENTRAL),
TIS HAZARI COURTS, DELHI
Corruption Case No. : 04/2014
FIR No. : 05/2012
Case Identification No. : 02401R0308712014
Police Station : Anti Corruption Branch
Under Section : 7/13 of Prevention of
Corruption Act, 1988
STATE
Versus
Ombir Singh
S/o Sh. Kartar Singh
R/o Flat No. 130, Pocket 12, Sector 21,
Rohini, Delhi09.
ORDER ON SENTENCE
1. Vide judgment dated 10.02.2015, Ombir Singh stands convicted for offences punishable u/sec.7 & 13(2) of the Prevention of Corruption Act (hereinafter called as 'the PC Act'). Vide the present order, I shall sentence him for the aforesaid offences.
2. Sh. B.B.Bhasin, Ld. Addl. PP has prayed for a stringent sentence. It is submitted that the convict, who was an employee of Weight & Measures Department, GNCT, Delhi has been found involved in corrupt activity. He demanded and accepted bribe from a factory owner namely Divakar Prasad, as a motive for saving him from imposition of penalty/ challan. His conduct and action do not deserve any lenient approach. Imposition of high fine, to serve as a deterrent has also been prayed for. State Vs. Ombir Singh Page 28 of 29 29
3. Dr. M.Y.Khan, Ld. counsel for the convict has prayed for a lenient approach. It is submitted that convict has a large family to support which includes his mother & mother in law. He has two school going children, who are in 7th class & 11th class, and a wife. There is no other source of income. He is stated to be not involved in any other case. Even, in the present case, he has been falsely implicated.
4. I have heard the Ld. counsels. Considering the large family of convict which is dependent upon him; I am inclined to take a lenient view. I am of the opinion that interest of justice shall be served by sentencing the convict to undergo rigorous imprisonment for a period of 2 years, for the offence punishable u/sec.7 of the PC Act. He shall also be liable to pay a fine of Rs.7,000/ and in default of payment of fine, he shall undergo simple imprisonment for a period of two months. As regards the offence punishable u/s 13 (2) of the PC Act convict shall undergo rigorous imprisonment for a period of 2 ½ years and shall also be liable to pay a fine of Rs.8,000/ and in default of payment of fine, he shall undergo simple imprisonment for a period of three months.
5. Both the sentences shall run concurrently. Convict shall also be entitled to benefit of section 428 Cr PC.
Announced in the open Court (NAROTTAM KAUSHAL)
on 12.02.2015. SPECIAL JUDGE (PC ACT)05
(ACB), TIS HAZARI COURTS
DELHI
State Vs. Ombir Singh Page 29 of 29