Delhi District Court
C.B.I vs . on 5 June, 2012
IN THE COURT OF
RAJIV MEHRA : SPECIAL JUDGE CBI (P.C. ACT)
KARKARDOOMA COURTS : EAST DISTRICT
DELHI
Unique ID NO. 02402R0180322006
C.B.I.
Vs.
1. Sh. Inderpal Singh
S/o Sh. Harvansh Singh
R/o E-53, First Floor,
New Ashok Nagar, Delhi-96.
2. Sh. Devender Prasad Yadav
S/o Sh. Sat Narain Prasad Yadav
R/o E-133, New Ashok Nagar,
Delhi-96.
AC NO. 16/11/06
RC NO. 23(A)/2005/DLI
U/s 120-B IPC, Section 7, 13(1)(d) r/w
Section 13(2) P.C. Act, 1988
Date of Institution : 27.03.2006
Date of Arguments: 23.05.2012
Date of Judgment: 29.05.2012
JUDGMENT :
This case was registered on the basis of a written complaint dated 03.05.2005 Ex.PW1/A by Dharamvir Singh against HC Inderpal Singh, Delhi Police, P.S. New Ashok Nagar alleging that Inderpal Singh has demanded a sum of Rs.2000/- on 01.05.2005 failing which has threatened him to implicate him in a false case. Accused Inderpal also took the driving licence of complainant.
2. The complainant is an autorickshaw driver. He had some dispute with autorickshaw owner G. Mohan for which both of them were brought to P.S. New Ashok Nagar. G. Mohan was released after a payment of Rs.1000/- whereas the complainant was detained at P.S. New Ashok Nagar. It has been alleged that on the request of complainant a sum of Rs.2000/- was reduced to Rs.1000/-. These allegations are emerging out of complaint Ex.PW1/A (D-2).
3. After registration of this case the complaint was verified. Complainant produced two GC notes of Rs.500/- each bearing no. 2AM494783 and 4HA913807. CBI arranged two independent witnesses Sh. P.S. Negi UDC, G.S. Works, Meteorological Department, Mausam Bhavan, Lodhi Road, New Delhi and Sh. Ram Kishan S/o Sh. Net Ram, Fireman Grade III, NDMC Palika Kendra, New Delhi. Both independent witnesses were introduced to the complainant and also to the members of trap party. Before laying a trap a practical demonstration of currency notes treated with phenolphthalein powder was conducted. The tainted amount of Rs.1000/- was kept in right side pant pocket of complainant. The complainant was directed to hand over the tainted amount to the accused on his specific demand or to any other person on his direction. The digital recorder was handed over to complainant with the direction to switch on the same before meeting the accused. One of the independent witness Ram Kishan was instructed to act as a shadow witness with the complainant. All the pre-trap proceedings were recorded vide memo Ex.PW1/B (D-3).
4. The CBI team at about 2.30 pm reached near P.S. New Ashok Nagar. Complainant Dharambir alongwith shadow witness Ram Kishan was sent to contact the accused Inderpal Singh at P.S. New Ashok Nagar. The accused was not available in P.S. at that time. His mobile no. 9868761213 was obtained and Inderpal was contacted from a nearby local telephone booth near Evergreen Public School, Vasundhra Enclave, Delhi, by the complainant. Initially the mobile phone of the accused was found switched off. He was again contacted by the complainant and at this time accused Inderpal asked the complainant to reach at Sai Bhog Dhaba in the area.
5. The complainant accompanied with shadow witness Ram Kishan reached the Sai Bhog Dhaba. Accused Inderpal also arrived there. Both of them had a brief conversation which was allegedly recorded on the digital recorder carried by the complainant. HC Inderpal took the complainant on his motorcycle to P.S. New Ashok Nagar leaving behind Ram Kishan. After reaching police station HC Inderpal went inside the P.S. to bring the driving licence of Dharambir while complainant waited outside. In the meantime shadow witness also managed to arrive to the police station with the help of the raiding party. After sometime HC Inderpal came out of the police station and asked the complainant gesturing towards rehriwala on the opposite side of the road to give the bribe amount to him. The complainant accordingly crossed the road and handed over the bribe amount of Rs.1000/- to rehriwala who was later on identified as accused Devender Pd. Yadav A2 who after accepting the same with his left hand passed it on to his wife Smt. Lalita Devi in her right hand. Upon receiving signal from the complainant the CBI team headed by Inspector C.B. Ojha TLO and Inspector A.B. Bhardwaj rushed towards HC Inderpal Singh whereas other members of the party and Inspector Dhall rushed towards accused Devender Pd. Yadav and caught hold him and his wife by their wrist. Smt. Lalita Devi wife of the accused Devender Pd. Yadav on asking the CBI team took out the bribe amount of Rs.1000/- and handed over the same to CBI. The witness P.S. Negi on direction of team took the bribe amount of Rs.1000/- (two GC notes of Rs.500/- each) from Smt. Lalita Devi.
6. HC Inderpal, Devender Pd. Yadav and Smt. Lalita were taken inside the police station where post trap proceedings were conducted and recorded vide memo Ex.PW1/C (D-4). The number of currency notes recovered from accused Devender Pd. Yadav and his wife were compared and found matching with the numbers given in handing over memo Ex.PW1/B. The LHW and RHW of Devender Pd. Yadav and his wife Smt. Lalita Devi were taken separately. On being treated with sodium carbonate the colour of solution in the water turned pink. The hand washes of accused Devender Pd. Yadav and his wife were kept in glass bottles and were sealed with the seal of CBI. The digital recorder was collected from complainant and played. The said recording was transferred into two normal cassettes. One cassette was marked as STR denoting spot trap recording. This cassette was sealed with the seal of CBI. The other cassette was kept for the purpose of further investigation.
7. SI Prem Nath prepared rough site plan Ex.PW9/C (D-5). Accused Inderpal was arrested under intimation to SHO. The arrest cum personal search memo Ex.PW9/B (D-6) was prepared. The driving licence of complainant was recovered from accused Inderpal. Accused Devender Pd. Yadav was also arrested. His personal search was taken vide memo Ex.PW9/D (D-7).
8. During investigation on 04.05.2005 the specimen voice sample of accused Inderpal was recorded vide memo Ex.PW9/E (D-8).
9. During investigation four sealed glass bottles were sent to Director CFSL for chemical examination alongwith forwarding letter Ex.PW9/F (D-9).
10. One sealed audio cassette marked STR containing the spot recording and one sealed audio cassette Mark S-1 having specimen voice sample of accused Inderpal Singh was sent to Director CFSL for voice identification alongwith forwarding letter Ex.PW9/G (D-10).
11. The CFSL report dated 17.05.2005 Ex.PW5/A (D-11) gave positive result of the phenolphthalein powder and sodium carbonate on all the four hand washes. The forensic report dated 29.07.2005 Ex.PW2/1 of the voice identification confirmed the voice mark STR(A) is probable voice of the person whose specimen voice is mark S-1(A).
12. During investigation IO seized the documents D-14 to D-18 dealing with incident of quarrel between complainant and G. Mohan and also the visit of HC Inderpal Singh in pursuance of the same to the place of occurrence and also the duty roaster vide production cum seizure memo Ex.PW6/A (D-13) from Inspector Ashok Tyagi the then SHO P.S. New Ashok Nagar. After obtaining sanction order Ex.PW3/A for prosecution of accused Inderpal Singh as he is a public servant, charge sheet was filed u/s 7 and 13(2) r/w 13(1)(d) P.C. Act. The other accused Devender Pd. Yadav is a private person and no sanction is required for his prosecution from any authority.
13. On the strength of the allegations supported with the statements and documents and forensic reports of voice identification and CFSL examination the court found the existence of primafacie case against both the accused and accordingly handed down a charge u/s 7 and 13(2) r/w Section 13(1)(d) P.C. Act, 1988 against accused Inderpal Singh whereas charge u/s 120-B IPC r/w Section 7 and 13(1)(d) of P.C. Act, 1988 against both accused Inderpal Singh and Devender Pd. Yadav vide order dated 23.05.2007. Both the accused pleaded not guilty and claimed trial.
14. To prove its case the prosecution has examined as many as 12 witnesses. PW-1 is complainant Dharambir Singh. He has deposed about the complaint dated 03.05.2005 Ex.PW1/A has been made by him. The complainant has also deposed about his dispute with G. Mohan the autorickshaw owner. The complainant has also deposed about the demand of bribe amount initially of Rs.2000/- and later on reduced to Rs.1000/- by accused H.C. Inderpal Singh. This witness has also deposed about recording of the pre-trap proceedings vide memo Ex.PW1/B. He also confirmed to the recorded conversation between him and accused Inderpal. He has confirmed of giving two GC notes of Rs.500/- to accused Devender Pd. Yadav on the instructions of accused Inderpal Singh. The witness also deposed about the preparation of transcription of the conversation Ex.PW1/D-1 to D-7.
15. PW-2 is Dr. Rajender Singh, Principal Scientific Officer, Head of physics and Forensic Voice Identification Division having 20 years experience in the field of Forensic Voice Identification. PW-2 as per his deposition has examined more than 800 cases. He has deposed that two parcels were received from SP CBI in intact condition with the seal of CBI. The parcel STR contained the questioned voice of the accused Inderpal whereas the other was normal audio cassette S-1 having specimen voice of accused Inderpal and was exhibited as Ex.S-1(A). He has proved his report as Ex.PW2/1 (D-12). As per his report the questioned voice tallies with that of specimen voice.
16. PW-3 Ajay Chaudhary, DCP has proved the sanction order dated 21.03.2006 as Ex.PW3/A for prosecution of accused Inderpal.
17. PW-4 Attar Singh was a Salesman employed by one Sanjay Kumar Jain in a firm M/s Magic Tent and Caterers at Vasundhra Enclave, Delhi. As per this witness one PCO was running in the name of Smt. Sujata Rani, mother of Sanjay Jain where one STD line and one local line of MTNL was working. According to the witness no record was maintained in the PCO to register the local calls.
18. PW-5 Sh. P. Nath, Retired SSO-II, CFSL, has deposed of having received four sealed bottles with the seal of ACB CBI in CFSL on 05.05.2005. PW-5 gave analysis of these bottles. He has proved his report as Ex.PW5/A. According to him the scientific analysis of bottles gave positive test of the presence of sodium carbonate and phenolphthalein.
19. PW-6 is Inspector Ashok Tyagi SHO P.S. New Ashok Nagar. He identified the accused Inderpal and he has also confirmed of handing over certain documents vide memo Ex.PW6/A.
20. PW-7 is Ram Hari Singh, Sub Divisional Engineer, Mobile Services. He has deposed that mobile no. 9868761213 was working in the name of Inderpal since 24.03.2005 till date. As per him the call records pertaining to this mobile connection for 03.05.2005 is not available.
21. PW-8 is independent witness Ram Kishan. His statement has been recorded on two dates, first on 28.04.2010 and again on 31.08.2010. He was declared hostile by the CBI and was partly cross examined on 31.08.2010 when his statement was deferred for his further cross examination. He went missing after that and could not be further cross examined and so reflected in order dated 21.03.2012.
22. PW-9 C.B. Ojha Inspector is TLO. He identified the endorsement on the complaint Ex.PW1/A. He has proved the FIR as Ex.PW9/A. He also confirmed the pre trap proceedings vide handing over memo Ex.PW1/B and post trap proceedings vide recovery memo Ex.PW1/C. He also confirmed the preparation of personal search memo of both accused, rough site plan, specimen voice recording memo. He also confirmed the sending of the samples to the CFSL for analysis and also about sending of the cassettes for voice identification. He has also proved the arrest cum personal search memo of both the accused vide memo Ex.PW9/B and Ex.PW9/D. According to the witness the driving licence of the complainant was recovered from accused Inderpal Singh (A1) in his personal search. This is also reflected in arrest cum personal search memo of the accused Ex.PW9/B.
23. PW-10 is Inspector S.Q. Ali who was the subsequent IO. He had recorded the statements of witnesses.
24. PW-11 is Inspector Premnath. He has confirmed of preparation of handing over memo Ex.PW1/B and also confirmed the fact of arranging of digital recorder, taking specimen voice.
25. PW-12 is Lalita Devi. She is hostile witness.
26. The public witness P.S. Negi has expired 29.07.2010 and as such he was not examined.
27. The statement u/s 313 Cr.P.C. of both the accused were recorded. Both accused pleaded their false implication.
28. Accused Inderpal Singh has stated that on the day of alleged occurrence, coaccused Devender Kumar, his wife and one minor daughter were surrounded by some persons in civil dress. As per him there was some altercation. It created almost law and order problem. On hearing this he rushed to them as it had happened in front of P.S. Ashok Nagar where he was posted. As per him the persons surrounding those persons became infuriated and angry with him and knowing that he is from police they implicated him in the present case on false allegations. He denied of demanding any bribe from the complainant. As per him the complainant did not pay any bribe amount to him nor on his instructions to any other person.
29. Accused Devender Pd. Yadav has stated that on the day of alleged occurrence, one minor girl was surrounded by some persons in plain clothes and they were scolding her so she started weeping and crying. As per this accused, upon this he and his wife standing nearby rushed to that girl and inquired about it. As per the accused the girl was holding some money in her hand and stated that these persons are taking this money from her. As per the accused they questioned them which infuriated them and the same resulted in altercation. As per this accused thereafter HC Inderpal Singh reached there and inquired from those persons. As per the accused those persons did not tell anything except threatening that they are from CBI. As per the accused these persons brought all three persons to CBI office where they cooked up the present case on false allegations.
None of the two accused led any evidence in defence.
30. It has been submitted by the Ld. PP for CBI that there is ample evidence about the demand of the bribe by accused Inderpal Singh and acceptance of the same by him through accused Devender Pd. Yadav. According to him in the present case PW-1 has proved the demand and acceptance of the bribe money by the accused. The currency notes were recovered from A2 Devender Pd. Yadav. The evidence on this point has also been corroborated by TLO PW9 C.B. Ojha and also by PW-11 Inspector Premnath. The voice conversation of A1 has also been proved by the expert witness Dr. Rajender Singh PW-2. PW-5 P. Nath has also confirmed the CFSL result. The CFSL report gave a positive result of the presence of sodium carbonate and phenolphthalein powder on the hand washes of A2 and his wife Smt. Lalita Devi PW-12. It is submitted that there is no explanation of A2 as to how their hands turned pink if they would not have received the bribe amount. According to PP the transcription Ex.PW1/D1 to D7 further corroborates the demand of bribe amount by A1 from the complainant. According to him there is ample evidence to prove the demand and acceptance of bribe by A1 in conspiracy with A2. It is submitted that the evidence on record prove the substantive offence u/s 7 of P.C. Act, 1988 and 13(1)(d) against A1 and the offence u/s 120B r/w Section 7 and 13(2) r/w 13(1)(d) P.C. Act against both the accused persons.
31. On the other hand the defence counsel has raised number of legal objections and also objections to the merit of the case.
32. It is contended by the defence counsel that first and foremost a bare reading of FIR Ex.PW9/A shows that no offence under the provisions of Prevention of Corruption Act is made out from the allegations therein. According to him even if the allegation in FIR is assumed to be true without admitting, at the best it makes out a case of extortion and criminal intimidation under the provisions of IPC.
33. A1 Inderpal Singh is a public servant. He was working as Head Constable in Delhi Police. The allegations in the complaint Ex.PW1/A shows that upon receiving the complaint he visited the spot and brought both complainant and G. Mohan the other party in dispute to the police station. The accused himself does not dispute this fact in his statement u/s 313 Cr.P.C. As per the allegations G. Mohan was let off after payment of Rs.2000/- to A1 whereas complainant was detained in police station and demand of Rs.2000/- was made from him. The driving licence of complaint has been kept by the A1 and as per the clear allegations made therein the amount of bribe demanded from the complainant was reduced to a sum of Rs.1000/- and he was also threatened to be implicated in a case of theft by A1.
34. The complainant has proved his complaint as Ex.PW1/A in his deposition before the court. The allegation per-se are sufficient to attract the provisions of Prevention of Corruption Act. There is a clear demand of bribe amount by accused Inderpal Singh while discharging his official duties. He is misusing and abusing his official position. In visiting the place of the complainant and bringing them to the police station A1 was not acting in private capacity. He was doing an official act and hence in that process of discharge of duties he demanded a bribe which would be an offence within the mischief of Section 7 of Prevention of Corruption Act. The contention of the Ld. defece counsel that no provision of Prevention of Corruption Act is attracted from the complaint Ex.PW1/A is thus rejected.
35. It has been contended by the Ld. defence counsel that there is no application of mind while giving sanction in this case to prosecute A1. It has been submitted that sanction order Ex.PW3/A does not reflect the material placed before the Sanctioning Authority. In support the counsel has been relying upon the judgment in the matter of Mohd. Iqbal Ahmad vs. State of Andhra Pradesh AIR 1979 SC 677. In this case the sanction was conferred on the basis of a note which formed the subject matter of a resolution of the sanctioning authority. This note was never put up before the sanctioning authority. Similarly the counsel has been relying upon State of Karnataka vs. Ameerjan (2007) 11 Supreme Court Cases 273. In this case an order was issued by the Commissioner of Stamps solely on the basis of a purported report issued by IG Police. During trial the sanction authority did not produce the report of IG Police. The counsel has also been relying upon Om Prakash vs. State & Ors. (CBI) 2009(2) JCC 1210. In this case the sanctioning authority has admitted in cross examination by the defence that draft proforma for subordinate officer of MTNL was received by him and he had put the date when he had signed the same.
36. The sanction in the instant case has been given by DCP Ajay Chaudhary. He has been examined as PW-3. He has proved the sanction order as Ex.PW3/A. The grant of sanction is a mixed question of facts and law. In the present case it may be noted that PW-3 has not been cross examined at all. A reading of the sanction order Ex.PW3/A shows that in the last but one para it has been reflected that the sanctioning authority has considered the relevant material and evidence produced before him before grant of the sanction for prosecution. Even in his examination in chief PW-3 has deposed that such material was considered by him. In view of no cross examination either to the sanction order Ex.PW3/A or to the statement of PW-3 both the statement as well as the order of sanction Ex.PW3/A to be taken as correct and duly proved by the prosecution. The leaving of PW-3 without cross examination is to his own peril of A1.
37. The judgment (supra) relied upon by the defence on the point were based upon their own facts and are not applicable to the facts of the instant case on this point. The contention of the defence that sanction is bad is thus rejected.
38. It is contended by the defence counsel that taking of voice sample of the accused by the investigating agency (CBI) for the purpose of comparison with the trap recording of cassette is bad under the law. The defence counsel has been placing reliance upon Rakesh Bisht etc. vs. CBI 2007 CRI.L.J. 1530 (Delhi High Court) and also on Dwijadas Banerjee vs. State of West Bengal 2005 CRI.L.J.3151 (Calcutta High Court).
39. Both the abovesaid judgments are not of any help to the accused in the present case. In both the cases relied upon (supra) the court at the stage of the investigation was approached to direct the accused to give his voice sample which is not the fact proposition in the present case here. Here in the instant case the voice sample has been collected by the CBI in the course of investigation and same has been sent for comparison with the questioned voice and on the basis of the same PW-2 Dr. Rajender Singh, Principal Scientific Officer and Head of Physics and Forensic Voice Identification Division, CFSL has given his report proved as Ex.PW2/1 that comparison of the two voices revealed that questioned voice is the probable voice of the person given sample voice.
40. In the instant case at the stage of investigation or even at the stage of trial no challenge has been made to the voice sample given by the accused. It is only for the first time in the course of arguments now this challenge has been so made by the accused. Same is only to be rejected being an afterthought. Even otherwise the legal proposition as laid down in the abovesaid two judgments as relied upon by the accused nowhere propounds that voice sample of an accused cannot be collected in the course of investigation. At the best the proposition laid down is that accused cannot be compelled to give his voice sample. If so done it will be violative of Article 20(3) of Constitution of India. Even nowhere in cross examination of TLO and IO any suggestion has been given to them that the voice sample of A1 has been taken against his will nor any defence evidence has been led by the accused on this point. In view of the totality of the facts and circumstances this contention of defence is only to be rejected being misconceived.
41. On merits of the case the ld. defence counsel submits that in Section 7 and 13(1)(d) P.C. Act the main ingredients are demand, acceptance and recovery of the amount from the accused. According to him in the present case there is no evidence to prove that there was any demand on the part of A1. According to him G. Mohan the autorickshaw owner with whom the complainant had initial tiffs and was brought to police station New Ashok Nagar and his brother were the material witness to show any demand of Rs.1000/- was made from them by A1 as alleged. They not being witness is fatal to the prosecution case. It has been submitted by the defence counsel that the complainant examined as PW-1 in his statement at page 5 himself deposed that this demand of Rs.1000/- was made by some other officer having chickenpox marks and not by A1. According to him this demand should be followed by acceptance. According to the counsel in view of the judgment of the Apex Court in Subash Parbat Sonvane vs. State of Gujarat (2002) 5 (Supreme Court Cases) 86 no case is even made out against A2. The counsel is also relying upon the judgment of Hon'ble Supreme Court in K. Subba Reddy vs. State of A.P. (2007) 2 Supreme Court Cases (L&S) 875.
42. As may be noted the complainant has been examined as PW-1. In complaint Ex.PW1/A he makes out a clear case of initial demand made by A1. Even in his deposition before the court the complainant has supported the initial demand and also the subsequent demand made on 03.05.2005 on which date trap was laid against the accused persons. The transcription of audio recording has been proved on record as Ex.PW1/D-1 to D-7. In his statement u/s 313 Cr.P.C. A1 has put through question 39 about said demand so being raised in his audio recording which is a part of audio recording and transcription Ex.PW1/D-1 to D-7 to which he only has denied as incorrect and fabricated. The evidence of the complainant duly prove that bribe amount of Rs. 1000/- by way of two GC notes of Rs.500/- was passed on by him to A2 on the instructions of A1 and this money was recovered from the possession of A2 and his wife. The hand wash of A2 and his wife have been duly proved on record by CFSL report Ex.PW5/A which has been proved by the deposition of PW-5 Sh. P. Nath. The report Ex.PW5/a has confirmed the presence of the phenolphthalein powder and sodium carbonate in the right hand wash and left hand wash of A2 and his wife sent to PW-5 for chemical examination.
43. As may be seen from the evidence coming on record as per his own admission of A1 he had attended the call of dispute between complainant and G. Mohan the autorickshaw owner and brought both of them to police station. These facts have also been proved on record by the departure and arrival entry proved as Ex.PW6/B and Ex.PW6/C record of which has been collected from the SHO Ashok Tyagi examined as PW-6. The arrest cum personal search of A1 proved on record as Ex.PW9/B shows that driving licence of the complainant was recovered from this accused when he was apprehended by the CBI. Complainant has deposed in complaint and also in deposition that his driving licence was kept by A1.
44. The submission of the defence that recovery of driving licence of complainant from A1 is not reliable or for non making of G. Mohan as witness is only to be rejected. The complainant himself is a public person. He has no ill will or grudge against either of the accused to make false deposition against two of them. He was meeting with A1 first time when A1 visited the place where he had tiff with G. Mohan and when he was brought to P.S. New Ashok Nagar and to A2 when he was instructed to pass on the money by A1 on 03.05.2005. Even otherwise no suggestion has been given to the complainant by any of the accused that his testimony is motivated for any such reason or that he has any reason to falsely implicate them.
45. It has been held in Ram Swaroop vs. State of M.P. 2000 Cr.L.J. 1882 (M.P.) for the purposes of proving a case under Ss. 7 and 13 of the Prevention of Corruption Act, the prosecution is obliged to prove that there was demand of money which was not legal or in other words that the public servant was demanding illegal gratification in respect of an official act and he in fact received or obtained the money as an illegal gratification, by corrupt or illegal means or by abusing his position as a public servant, or while holding office as a public servant only then a person can be convicted.
46. In the instant case the prosecution has been able to prove all such ingredients. The demand of money by A1 from the complainant has been duly proved by the testimony of A1. The giving of money and recovery of the same from A2 at the instance of A1 has also been proved by the statement of the complainant.
47. The judgment of Subash Parbat Sonvane vs. State of Gujarat (supra) was the judgment based on its own facts. It will not be of any help to accused. Even the complainant in this case did not support the prosecution version in cross examination in this case and panch witnesses never stated that accused had demanded any amount from the complainant. Similarly in the case of K. Subba Reddy vs. State of A.P. (supra) money was handed over to a person who according to the prosecution was acting as a conduit for handing over the same to the official concerned. The Apex Court held that money handed over to Home Guard (conduit) for passing on to Excise Inspector who had allegedly demanded the same by way of bribe in return of stock register of complainant's wine shop according to whom money was given to him for handing over to one S for the purpose of remitting the same to government treasury. On the appreciation of evidence the Apex Court has held in this case that the evidence coming on record shows that S used to do such work on behalf of shop owners. The Apex Court found that the evidence was not sufficient to convict the Home Guard u/s 7 P.C. Act.
48. Here in the instant case the fact situation is entirely different. The money has been accepted by A2 for A1 when pass over to him by the complainant. A2 has simply kept the bribe amount delivered to him on instructions of A1. No defence evidence has been brought by him on record to show that this money was not passed on to A2 on the instructions of A1. The only plea first time taken in the statement u/s 313 Cr.P.C. by both the accused is that they have been falsely implicated by the CBI when they tried to intervene in a matter when they found that CBI officials were snatching some money from a girl on the road. This defence is absolutely false and shameful to their own knowledge. No defence evidence has been brought proving the same fact on record. The defence thus sought to be raised through statement u/s 313 Cr.P.C. First time now is totally unbelievable and only to be rejected being without support of any factual or legal basis.
49. It has also been contended by the defence counsel that the sole testimony of the complainant is not believable. None of the panch witnesses have been examined in this case.
50. As may be noted from the record one of the panch witness Mr. Ram Kishan was partly examined as PW-8. He was cross examined by the prosecution partly and he did not appear after his statement recorded on 31.08.2010. He was found missing. One FIR of his missing has been made. The other independent witness has expired and for that reason he could not be examined.
51. On this point the ld. PP has been relying upon the judgment of our own High Court in the matter of Satish Chander vs. CBI 2011 (4) C.C. Cases (HC) 599. In this case both the public witnesses turned hostile and the court found the testimony of TLO and complainant trustworthy regarding the execution of trap and recovery of amount and court in this case held that demand of bribe and its acceptance by the accused proved. He has also been relying upon the judgment of Apex Court in C.M. Sharma vs. Sate of A.P. 2011 (2) C.C. Cases (NOC) (SC) 6. The court in this case held that both the ingredients of Section 7 and 13(1)(d)(ii) P.C. Act are satisfied. The positive Sodium Carbonate test vis-a-vis the fingers and right trousers pocket show that the appellant voluntarily accepted the bribe. He has also been relying upon State through CBI vs. Satvir Singh 2011 (1) C.C. Cases (HC) 195. It was held by our own High Court in this case that court is legally bound to raise presumption as fact of demand was duly proved in this case. The trial court in this case found the evidence of the complainant unsafe to rely upon as there was no motive for demanding the bribe. The Hon'ble High Court held the rejecting of testimony for the want of corroboration is contrary to the settled principles of appreciation of evidence. It was held that a court is legally bound to raise presumption u/s 7 and presumption is rebuttable but respondent/accused failed to discharge onus.
52. The Ld. PP has also been relying upon Bhupinder Singh Sikka vs. CBI 2011 (2) C.C. Cases (HC) 186. The court on the facts in this case held that initial demand of bribe has been proved. He is also relying upon Shiv Nandan Dixit vs. State of U.P. 2003 (3)C.C. Cases (SC) 335. The plea that bribe was not received by main accused himself was rejected holding that word obtain for himself connotes not only receiving the bribe money but receipt of any bribe either directly or indirectly.
53. In the case in hand the CBI has proved its case beyond reasonable doubt by the convincing testimony of complainant examined as PW-1. The statement of complainant PW-1 proves not only the fact of raising of the demand of bribe amount by A1 but also giving of the money by him to A2 as per instructions of A1. A2 was working as conduit for A1. The acceptance of the amount by A2 without any inquiry proved his involvement as a co-conspirator with A1.
54. The evidence coming on record duly prove that A1 made a demand of Rs. 1000/- from the complainant and received that amount which on his instructions was passed on to A2. Recovery from A2 has been duly proved. A legal presumption of demanding bribe thus has to be raised as per Section 20 of the Act. Similarly A1 being a public servant has obtained this bribe amount of Rs.1000/- from the complainant through A2 as a pecuniary advantage by corrupt or illegal means or by abusing his position as a public servant. As such charge of criminal misconduct u/s 13(1)(d) punishable u/s 13(2) Prevention of Corruption Act, 1988 has also been proved against A1 and also a charge u/s 120-B IPC r/w Section 7 and 13(1)(d) of P.C. Act against both the accused. They are convicted accordingly.
Announced in the open court
today on 29th May, 2012 ( RAJIV MEHRA )
SPL JUDGE CBI - (PC ACT)
EAST DISTRICT
KKD COURTS : DELHI
29.05.2012
IN THE COURT OF
RAJIV MEHRA : SPECIAL JUDGE CBI (P.C. ACT)
KARKARDOOMA COURTS : EAST DISTRICT
DELHI
C.B.I.
Vs.
1. Sh. Inderpal Singh
2. Sh. Devender Prasad Yadav
AC NO. 16/11/06
RC NO. 23(A)/2005/DLI
U/s 120-B IPC, Section 7, 13(1)(d) r/w
Section 13(2) P.C. Act, 1988
ORDER ON POINT OF SENTENCE
Heard the Ld. PP for CBI and also the counsel for accused on the point of sentence. The counsel for A1 prays for lenient view submitting that A1 is having family of four children all of whom are studying and he has also father of the age of 75 years and there is no other male member to look after the entire family in his absence.
2. A2 is rehriwala. He is having big family of seven children out of which according to defence counsel four are studying and he is the only bread earner in his family.
3. According to the defence counsel both the accused are not previous convicts.
4. A1 in this case has been held guilty for the offence u/s 7 and Section 13(1)
(d) r/w 13(2) of Prevention of Corruption Act, 1988 whereas A2 has been held as working conduit for him and both A1 and A2 have been held guilty for the offence u/s 120-B IPC r/w Section 7 and 13(1)(d) of P.C. Act.
5. The corruption now-a-days has become a gigantic problem. Corruption like a contiguous disease has gone unbound and unbriddled in whole of the system in the country. Forget about eliminating the corruption in the society, now a days even containing corruption is proving to be difficult task. No department whether public or private is untouched from the corruption. The leniency as prayed would only send wrong message everywhere.
6. Keeping in view the gravity of offences, A1 being a public servant is awarded a sentence to undergo Rigorous Imprisonment for a period of two years for the offence u/s 7 and for the offence u/s 13(2) r/w 13(1)(d) P.C. Act and is also to pay a fine of Rs.5000/- under each of the two counts. In default A1 shall undergo simple imprisonment for a period of three months under each count. The sentence under both the counts will run concurrently.
7. A2 is sentenced to undergo Rigorous Imprisonment for a period of six months and is also imposed with a fine of Rs.500/- and in default he is to undergo simple imprisonment for a period of one month.
Both the convicts be given benefit of Section 428 Cr.P.C.
Copy of judgment and order on sentence be given to each of the convict. File be consigned to record room.
Announced in the open court
today on 5th June, 2012 ( RAJIV MEHRA )
SPL JUDGE CBI - (PC ACT)
EAST DISTRICT
KKD COURTS : DELHI