Delhi District Court
State vs . Ajay Kumar Gupta, on 31 August, 2010
IN THE COURT OF SH. RAKESH SIDDHARTHA,
SPECIAL JUDGE (PC-ACT)-06, TIS HAZARI, DELHI
CC NO. 157/09
Case ID No. 02401R0795272005
STATE Vs. AJAY KUMAR GUPTA,
S/o. Sh. Ved Prakash Gupta,
R/o E-1/6, Krishna Nagar,
Delhi.
FIR NO. : 28/04
U/S : 7, 13(1) (d) & 13 (d) of POC Act.
PS : AC Branch
Date of Institution : 05.09.2005
Judgment reserved on : 21.08.2010
Judgment delivered on : 31.08.2010
JUDGMENT
1. On 09.06.2004, one Surender Pal Singh lodged a complaint in AC Branch with inspector K. S. Pathania, Raid Officer in the presence of Ravinder Kumar, panch witness against one SI Ajay Kumar Gupta for demanding Rs.20,000/- as bribe for facilitating the bail of the complainant.
2. The complainant produced 14 GC notes in the denomination of Rs. 500/- each and one GC note of Rs. 1000/-. The numbers of those GC notes were recorded by the Raid officer. After getting the same checked by panch witness, phenolphthalein powder was applied and right hand of panch witness was got touched to the tainted GC notes and thereafter right hand wash of panch witness was taken in colorless solution of sodium carbonate State Vs. Ajay Kumar Gupta Page No.1/25 which turned pink. The panch witness and complainant were apprised of the consequences of touching the phenolphthalein powder coated GC notes, stating that whosoever would touch or keep the tainted GC notes in his pocket, the hand wash or pocket wash, if taken in colorless solution of sodium carbonate, would turn pink.
3. Thereafter, pink colour solution was thrown away. Raiding party washed their hands with soap and clean water. The Raid Officer handed over the treated GC notes to the complainant, in the presence of panch witness, who kept the same in the right side pocket of his pants.
4. The complainant was instructed to keep the panch witness in close proximity so that he would be able to hear and observe the transaction with the accused SI Ajay Kr. Gupta. The complainant was further instructed to give the bribe money to accused only on his specific demand. Panch witness was also similarly instructed and that he should give a signal, by hurling his hand over his head twice, to the raiding party, once the accused had accepted the bribe.
5. At about 09:30 am, complainant alongwith panch witness, RO Insp. K. S. Pathania, IO Insp. R. S. Chahal and other members of raiding party left AC Branch for Karkardooma courts in a Government vehicle and reached there at about 10:10 am. The Government vehicle was left in the parking area and IO Inspector R. S. Chahal remained in the vehicle alongwith the driver. Complainant and panch witness were again reminded about the instructions given to them earlier and were directed to proceed to the court to meet the accused while the members of the raiding party followed them keeping a reasonable distance and took their suitable positions State Vs. Ajay Kumar Gupta Page No.2/25 outside the court.
6. The Raid Officer did not receive any signal till 10:40 am. He called the complainant and panch witness and inquired from them. Complainant told him that he had received a telephone call from the accused, who told him that the bail application is yet to be heard and he would come outside the court after hearing of the same. Thereafter, Raid Officer again sent the complainant and panch witness towards court no. 1 while he alongwith members of raiding party took suitable positions.
7. At about 11:25 am, complainant and panch witness moved towards parking area and they entered a car and the car moved out of the gate while the members of raiding party followed the car on their govt. vehicle. After traveling a distance of about 500 meters, complainant and panch witness got down from the car and car moved ahead. The raiding team reached the complainant. The Raid Officer inquired from the complainant as to what had happened. The panch witness told him that complainant had sat on the front seat while the panch witness occupied the rear seat and in the moving vehicle accused inquired from the complainant whether he had brought the demanded money to which complainant replied in affirmative. The accused asked the complainant to keep the bribe amount on the dash board of the car and thereafter, he was made to get down from the car alongwith the panch witness. The panch witness and complainant were asked to sit in the government vehicle and they moved towards the direction in which the said car had gone but that car could not be found.
8. After 10 minutes, complainant received a telephone call from the accused. The complainant told the Raid Officer that accused had told him State Vs. Ajay Kumar Gupta Page No.3/25 that the bribe money demanded was Rs. 20,000/- but he had paid Rs. 8000/- only. Complainant further told the Raid Officer that he had told the accused that he could arrange Rs. 5000/- to which accused had asked the complainant to come to Ghazipur Petrol Pump with the amount. Thereafter, raiding team alongwith complainant and panch witness went towards Ghazipur Petrol Pump and on the way, complainant and accused had some talk on the telephone about their positions. At about 12:15 pm, raiding team took the positions at Ghazipur Petrol Pump and blocked the exit by parking the gypsy diagonally. After some time, the said car came and slowed down but the driver on being suspicious accelerated the speed of the car and after hitting the back portion of the govt. vehicle gypsy, the driver of the said car sped away. Raid Officer alongwith raiding party followed the car and in the meantime, PCR was called. However, the said car with the accused could not be traced. Thereafter, raiding party came back to Ghazipur Petrol Pump and Raid Officer interrogated the complainant and panch witness. Thereafter, Raid Officer prepared post-raid report.
9. IO Insp. R. S. Chahal was called to the spot and Raid Officer handed over the relevant documents to him for investigation.
10. The case was registered and charge-sheet filed. Charges were framed.
11. As per the charge, on 09.06.2004, at about 11:30 am, in Karkardooma Court Complex, the accused Ajay Kumar Gupta being SI of police post in EOW of Crime Branch Delhi being a public servant demanded State Vs. Ajay Kumar Gupta Page No.4/25 Rs. 20,000/- for showing favour to complainant Surender Pal Singh while hearing his anticipatory bail application and after hearing of above bail application on the same day he demanded, accepted and obtained Rs. 8,000/- as a motive or reward for showing him favour in the hearing of above bail application and thereby he committed an offence punishable u/s 7 of the Prevention of Corruption Act, 1988.
12. Secondly, on the abovesaid date, time and place, the accused, being employed as above public servant obtained Rs. 8,000/- from the above complainant as a pecuniary advantage for himself by corrupt or illegal means or otherwise by abusing his position as such public servant and thereby he committed an offence of criminal misconduct as specified u/s 13 (1) (d) and punishable u/s 13 (2) of the Prevention of Corruption Act, 1988.
13. Accused pleaded not guilty and claimed trial.
14. In order to prove its case, the prosecution examined 25 witnesses while the accused has examined 7 witnesses in his defence.
15. I have heard the arguments on behalf of the prosecution from Ld. Chief PP who has stated that in the evidence that has been brought on record, the factum of demand has been proven through witness PW5 and further the said fact has been corroborated by PW-13, the panch witness. Acceptance of bribe has also been proven which was witnessed by PW13, the panch witness thereby inculpating the accused under the provisions of sections 7 & 13 of POC Act.
16. I have heard the arguments on behalf of the accused by counsel State Vs. Ajay Kumar Gupta Page No.5/25 Sh. Sandeep Sharma as well as Sh. Sanjay Gupta wherein they state that the demand per se has not been corroborated as it is only PW5 the complainant who has testified to this effect, the said witness was interested witness and subsequently, in presence of the panch witness PW13, no demand or for that matter acceptance of the bribe amount has been proven. In fact, the prosecution has not been able to show the recovery of the alleged tainted GC notes. The case of the prosecution is figment of fertile imagination as no incident of the nature alleged had ever occurred. The accused is accordingly, entitled to acquittal.
17. From the evidence that has come on record as well as the arguments addressed by the respective parties, the following unfolds:-
Before we delve into culpability of the accused in the commission of the offence, it has to be determined whether the requisite sanction for his prosecution had been obtained by the prosecution. The prosecution in this regard had examined Tajinder Luthra, Addl. C.P. as PW4, who has testified that on 24.06.2005 he was posted as DCP (Crime) where a request had been received from the AC Branch together with copy of the FIR, seizure memo, statements recorded u/s 161 Cr.P.C., result of FSL for sanction u/s 19 of POC Act to prosecute the accused Ajay Kumar Gupta, posted as SI in the Crime Branch. The witness has testified that he had gone through the relevant documents placed before him and he had applied his mind. After examining the facts and circumstances of the case, he was of the view that the accused Ajay Kumar Gupta should be prosecuted in this case.
18. Being a competent authority to remove the said accused from his service, the witness had accorded the sanction u/s 19 of POC Act to State Vs. Ajay Kumar Gupta Page No.6/25 prosecute the accused in this case vide order Ex.PW4/A which bears the signature of the witness. The said sanction order was sent to DCP, AC Branch vide covering letter Ex.PW4/B which bears the signature of ACP P. G. Sen at point A. The witness has been cross examined wherein he has admitted that the first page of the sanction, does not bear any date. However, it is the second page on which the signature and date appears. The witness has further testified that he did not receive any draft proforma from the AC Branch.
19. The witness has further denied that Sh. Dinesh Bhatt was the then DCP at the relevant time and as such the accused was working under the said DCP. The witness has denied that he was not competent to grant the sanction to prosecute the accused and that the sanction had been accorded mechanically.
20. Sanction U/s 19 of POC Act is not an idle formality, but it is a sacrosanct act as the future and carrier of a Government official is involved. Hon'ble Supreme Court in Ram Kishan Prajapati Vs. State of U.P., (2000) 10 SCC-43 has stressed that the person according sanction should be a competent person and a sanction accorded by the person not competent to grant the same cannot be held to be a valid sanction. This fact has not been challenged by the accused.
21. Any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio. What the court has to see is whether or not the Sanctioning Authority, at the time of giving sanction, was competent to accord sanction and whether it had applied its mind. The grant of sanction is State Vs. Ajay Kumar Gupta Page No.7/25 not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned.
22. Sanction lifts the bar for prosecution. Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but is not a shield for the guilty. The validity of the sanction would, therefore, depend upon the material placed before the Sanctioning Authority and the fact that all the relevant facts, material and evidence have been considered by the Sanctioning Authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the Sanctioning Authority had considered the evidence and other material, placed before it. This fact can also be established by the extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the Sanctioning Authority.
23. Since the validity of "sanction" depends on the application of mind by the Sanctioning Authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent State Vs. Ajay Kumar Gupta Page No.8/25 mind for any reason whatsoever and was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution.
24. The Hon'ble Delhi High Court in the case of Bhisham Kumar Vs. State 1999 (iii) AD (Delhi) 177, had also applied the test as prescribed in the enunciation of the Hon'ble Supreme Court in the case of Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh 1979 Chandigarh Criminal Cases 113 (SC) and the view taken by the Supreme Court in Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (1997) 7 SCC 622 (supra) , we can say that a valid and tenable sanction had been accorded.
25. The case before this court was initiated by PW5 Surinder Pal Singh who has testified that he was running a business alongwith his father when a FIR had been lodged against him in PS Anand Vihar u/s 420 Cr.PC. The case had been transferred to the Economic Wing where Ajay Kumar Gupta, the accused, was the Investigating Officer of the case. It is testified that Ajay Kumar Gupta had demanded a sum of Rs. 20,000/- for getting the accused (Surinder Pal Singh) released on bail.
26. The bail application was heard on 09.06.2004. For the said purpose, the accused had demanded Rs. 20,000/- assuring the complainant PW5 that he would be released. The accused had called the complainant to Karkardooma Court together with the bribe amount. Being opposed to the practice of demand of bribe, the witness had called AC Branch and had lodged a complaint Ex.PW5/A in the presence of panch witness. A sum of Rs. 8,000/- in the denomination of 14 GC notes of Rs. 500/- and one GC note State Vs. Ajay Kumar Gupta Page No.9/25 of Rs. 1000/- were handed to the Raid Officer who applied phenolphthalein powder on the said GC notes and the Raid Officer gave demonstration of application of phenolphthalein. In consequence to the said application, the complainant PW5 was directed by the Raid Officer to hand over the bribe amount only on specific demand. Similarly, PW13 the panch witness was directed to keep the witness in close proximity so that he would be able to hear the conversation and see the transaction. On completion of the transaction, the panch witness was directed to give a signal. The complainant PW5 kept the GC notes in his pocket and pre raid report was drawn by the Raid Officer on which the witness appended his signature.
27. It is further testified that at about 9:30 am, the raiding team left AC Branch in a govt. vehicle and reached Karkardooma Court at about 10:10 am. The govt. vehicle was parked and a call was made by PW5 the complainant to the accused who instructed the witness to wait for some time.
28. It is after some time that the accused asked PW5 the complainant to wait in the parking lot and thereafter, to get into his Maruti Zen. The complainant as well as the panch witness accordingly, sat in the Maruti Zen. The identity of the panch witness was enquired by the complainant and on being told that PW13 the panch witness was the brother-in-law, his presence was permitted. It is testified that the complainant enquired about his work, to which the accused replied that the same could not be done on the said date but would be done on following date. It is then, by implication, the money was enquired about and on being told that complete amount had been brought, the accused asked PW5 the complainant to keep the same on the dash board. Thereafter, the accused dropped both, the panch witness and the complainant, and went away. It is after sometime between 15-20 min later, State Vs. Ajay Kumar Gupta Page No.10/25 another call was received from the accused who stated that PW5 the complainant was supposed to bring Rs. 20,000/- and in fact only Rs. 8000/- have been paid, accordingly, the complainant was asked to meet the accused in his office in the evening. The complainant stated that his brother-in-law had some money and accordingly, the accused is stated to have told the complainant to bring the said amount at a petrol pump in Ghazipur.
29. What the defence has brought on record through the cross examination of PW5 the complainant is that, that the complainant had taken umbrage to the fact that his house was raided by the accused and his father and brother-in-law were placed in JC by the accused. It is factually correct that the complainant had not been able to testify as to when initial demand had been made and further that the demand had been made when the complainant had been called for the investigation of the pending case against the complainant and his family in the EOW.
30. Whether the testimony of PW5 the complainant is of such a nature where a demand is implicit. It is testified by PW5 that there had been a case against the complainant u/s 420 IPC which was transferred to the EOW Cell where the accused was posted as SI and was the IO of the said case. It is stated that the accused demanded Rs. 20,000/- for getting the complainant released on bail which was to be heard on 09.06.2004. The complainant and the panch witness waited for the accused till 10:40 am when a call was received from the accused enquiring as to where the complainant was and at 11:15 am, on his second call, the complainant met the accused who was sitting in his Maruti zen. As per the complainant, the accused asked where the amount was and whether the amount was complete and thereafter the accused asked the complainant to keep the money on the State Vs. Ajay Kumar Gupta Page No.11/25 dashboard. Thereafter, the complainant was asked to get down from the car together with the panch witness and the car sped away. The raiding party appeared in the gypsy vehicle but the accused could not be traced alongwith his vehicle. It is further testified that after 15-20 minutes, the accused called and stated that Rs. 20,000/- was demanded while Rs. 8000/- had been paid and the remaining was promised to be paid. The accused thereafter, stated that he was standing at a petrol pump in Ghazipur and the complainant should come. The raiding party tried to apprehend the accused but the accused drove the vehicle away after colliding with the gypsy. PW6 HC Dilbagh Singh who was driving the vehicle has proven this fact. But would that suffice to inculpate the accused? The most essential prerequisite condition that is required under the law is that there has to be an unequivocal demand and a consequential acceptance of the bribe under the provisions of POC Act.
31. First of all, the prosecution had to prove that the accused had, in fact, demanded, accepted and obtained bribe from the complainant PW5. Even though, the said fact has also been testified by the panch witness PW13 yet the prosecution in not effecting the recovery of the tainted GC notes could not prove the "obtainment" of bribe by the accused. This proposition has been laid down in the enunciation of the Hon'ble Supreme Court in Subash Parbat Sonvane Vs. State of Gujarat, AIR 2003, SC 2169 wherein it is held that:
Criminal - Corruption - Criminal misconduct by a public servant - mere acceptance money without there being any other evidence would not be sufficient for convicting the accused under Section 13(1) (d) (i) of the Prevention of Corruption Act, 1988 - There must be evidence on record that the accused obtained for himself or any other person State Vs. Ajay Kumar Gupta Page No.12/25 any valuable thing or pecuniary advantage by either corrupt or illegal means or abusing his position as a public servant or he obtained for any person any valuable thing or advantage without any public interest - no evidence that accused demanded money from the complainant - conviction under Section 13 (1) (d) (i) set aside.
32. Further, it has been held by the Hon'ble Supreme Court that:
"The position will, however, be different so far as an offence u/s 5(1) (d) r/w section 5(2) of the Act is concerned. For such an offence, prosecution has to prove that the accused 'obtained' the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption u/s 4(1) of the Act as it is available only in respect of offences u/s 5(1) (a) and (b) - and not u/s 5 (1) (c), (d) or (e) or the Act, the "Obtain"
means to secure or gain (something) as the result of request or effort (shorter Oxford Dictionary). In case of obtainment, the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence u/s 5(1) )(d) of the Act unlike an offence u/s 161 IPC which as noticed above, can be, established by proof of either 'acceptance' or 'obtainment'.
33. The prosecution seeks to raise aspersion as to the guilt of the accused from the fact that after the 'obtainment' of the bribe, the accused had fled away from the scene in as much as in continuation when a blockade was made to apprehend the accused, the accused is stated to have dodged and escaped from the said blockade. The fleeing of the accused does not necessarily raise suspicion on the accused and points towards the guilt as has been held in 1992 SC, page 1433 in Rajender Singh alias Kada Vs. State of Punjab wherein it has been opined that abscondence of the accused is not a State Vs. Ajay Kumar Gupta Page No.13/25 determining factor and the one which could outweigh the other material appearing on the record. This, by itself, does not establish the guilt of the accused.
34. The same proposition was held in 1972 SC, page 110 in Rehman Vs. State of U.P. wherein the Hon'ble Supreme Court was pleased to opine that :
"It is true that the appellant was concealing himself for nearly a month though he must have known that he was wanted by the Police and that he left his wife to face the situation alone. But absconding by itself is not conclusive either of guilt or of a guilty conscience. For, a person may abscond on account of fear of being involved in the offence or for any other allied reason.
35. As regards the non-appearance of the accused before the investigating agency at the stage of the raid, it has been held by the Hon'ble Supreme Court in State of Karnataka Vs. Venkatesh & ors. AIR 1992 SC, page 674 that:
"After giving our thoughtful considerations to the evidence on record, we have not been persuaded to take a view different than the one taken by the learned Sessions Judge and the High Court in this case. The reasoning of the Ld. Sessions Judge and the conclusions arrived at by him in ordering acquittal of the accused-respondents has appealed to us and we, therefore, do not find any cause to interfere with the order of acquittal. The appeal, therefore, fails and is consequently dismissed. The accused respondents are on bail, their bail bonds shall stand discharged."
36. Further in V. Venkata Subbarao Vs. Sate, AIR 2007 Supreme Court 489, it has been specifically held that:
State Vs. Ajay Kumar Gupta Page No.14/25"demand itself had not been proved and in the absence of proof of the demand, the question of raising the presumption would not arise".
37. In regard to the relations between the complainant and the accused, it can easily be deciphered that the complainant could have been harboring ill-will towards the accused. Hence, the prudence requires cautious scrutiny of the testimony of the said complainant and corroboration from an independent source.
38. PW13 Ravinder Kr. Sinha, LDC in the Department of Education has been examined to corroborate the testimony of the complainant Surender Pal Singh PW5. The said PW13 was the panch witness on the said date. The said panch witness has testified that a complaint had been lodged by PW5 Surender Pal Singh who had produced 14 GC notes of Rs. 500/- denomination and one GC note of Rs. 1000/-. After initial instructions, as regards the procedure of the raid and the demonstration of application of phenolphthalein, by the RO, the raiding team was constituted. It is further testified that after leaving the AC Branch in Govt. vehicle, the raiding team reached Karkardooma Court in about 45 minutes and the vehicle was left in the parking. It is further testified that the panch witness together with the complainant went inside the court complex near the gate while the members of the raiding party took their positions. Even after waiting for sometime, no one appeared and then the complainant made a call and also received one that the accused would be coming in a short while. On arrival of the accused, the complainant and the panch witness were asked to sit in the car of the accused. The accused had told the complainant that the case of the complainant had been adjourned. Thereafter, the complainant took out the State Vs. Ajay Kumar Gupta Page No.15/25 treated GC notes from his pocket. The accused directed the complainant to place the same on the dash-board, to which the complainant complied and after traversing for a short distance, the accused stopped the car and asked the complainant to disembark from the vehicle and then the accused sped away in his vehicle. The raiding team reached the spot after a few minutes and enquired as to what had happened. On being told of the incident, the raiding team followed but failed to locate the accused. It is also testified that after sometime, the complainant received another call from the accused stating that the complainant had given less money than the agreed amount and he should pay more. To this, it is testified, the complainant had said that he had Rs. 5000/- more which was required by the accused to be brought to Ghazipur Petrol Pump.
39. It is further testified by the witness PW13 that at Ghazipur Petrol Pump the accused had become suspicious of the presence of the raiding team and had fled from the spot after colliding with the police vehicle, which had been so parked to stop the accused but the accused managed to dodge his way out. The govt. vehicle followed but could not trace the accused.
40. The testimony of PW13 the panch witness is in conformity with the testimony of PW5 the complainant. The narrative version of ocular witness seem to be in conformity but whether the circumstances also support the assertion of the prosecution. There is a possibility of tutoring of witness. PW5, the complainant, has admitted in his cross examination that he had read his statement outside the court before appearing as a witness.
41. PW13 the panch witness has been cross examined who has vacillated from the fact that they had entered the court building but in the State Vs. Ajay Kumar Gupta Page No.16/25 cross examination there is a complete denial of the same. Furthermore, the panch witness, PW13, has contradicted the complainant in regard to the knowledge of adjournment of his bail application as well as the raising of the demand of bribe. As far as the testimony of PW13, in regard to the call made to the complainant by the accused and the content of his conversation is concerned, the same are res gestae. It has also been observed in the testimony of PW13 that there is a total variance in regard to his appointment as a panch witness.
42. As testified by the panch witness, PW13, the accused had fled from the scene at Ghazipur petrol pump and thereafter he had not been seen by the investigating team or by the complainant and even the panch witness until his surrender on 28.6.2004. It is testified that the GC notes were not recovered from the custody of the accused.
43. The accused seeks to discredit the testimony of PW13 the panch witness. On 28.6.2004, when the accused had surrendered at the AC Branch the panch witness was given an opportunity to see the accused, this fact has been admitted by PW13 the panch witness. Furthermore, the panch witness has admitted that he is visually handicapped but despite his handicap he can read and write. The panch witness has also admitted to the fact that he had been a panch witness once, prior to the present case.
44. The charge against the accused is that the accused had demanded a bribe of Rs. 20,000/- for getting the complainant released on bail. The demand is stated to have been made to the complainant, the proof of such demand is imperatively to be made for inculpating the accused under the provisions of POC Act but the same has not been corroborated by any other State Vs. Ajay Kumar Gupta Page No.17/25 witness. As per the testimony of PW13, after sitting in the vehicle of the accused, it is testified that the accused had talked to the complainant but an explicit demand had not been made in his presence. It is testified that after the initial talk, the complainant is stated to have extended the GC notes towards the accused who instead of accepting the same in his hand had asked the complainant to keep the money on the dash board of his car. This may not be exclusively termed as demand but the conduct that followed by necessary implication can be constituted as a demand. The fact remains, if there had been a demand, there should have been a consequential acceptance of the bribe amount. The panch witness, PW13, has testified that the same had been kept on the dashboard. The matter would have clinched and the testimony of PW5 alongwith the testimony of PW13 the panch witness would have been credible, had there been a subsequent recovery of the treated GC notes. There is no recovery, nor was there any immediate apprehension of the accused. The panch witness, PW13, has admitted that he did not hear a specific demand made by the accused and it was only when the complainant extended the money, the accused is stated to have asked him to keep the same on the dash board. It is nigh impossible for a person seeking bribe or any illegal gratification that he would do so in the presence of a stranger even if it be the brother-in-law of the bribe giver. In G. V. Nanjundiah Vs. State (Delhi Administration), 1987 SC, 2402 it was held that :
"As per the allegation of the contractor and the other members of the raiding party, the contractor purchased a basket of fruits and also some cartons of sweets so as to justify the entrance of Verma into the house of the appellant. It was arranged that Verma would also be a witness to the handing over of the bribe money to the appellant. This is also a very unusual and State Vs. Ajay Kumar Gupta Page No.18/25 unnatural feature in the prosecution story. It is common sense that a person would not accept bribe in the presence of a stranger. One significant fact that may be pointed out here is that although it is alleged that the appellant had agreed to be present in his house at 7:00 pm for the purpose of taking bribe he was absent and came back at 8:00 pm.
45. A three Judge Bench in M. Narsinga Rao Vs. State of A.P. 2001 (1) SCC, 691 has held that:
"while dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification, observed ... we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length."
46. The hon'ble Supreme Court in State of Punjab Vs. Sohan Singh, AIR 2009 SC, 1887 has held that:
"The circumstantial evidence in regard to the alleged commission of the offence by the respondent was not sufficient to establish the case of bribery in the light of the ingredients thereof."
47. Further, it was observed by the hon'ble Supreme court that:
"The High Court, as noticed herein afore, upon consideration of the materials brought by the prosecution has also found serious discrepancies in regard to the events taken place prior to the raid."
"... The prosecution has also not been able to State Vs. Ajay Kumar Gupta Page No.19/25 establish that any demand had been made by the respondent."
"... It is now well settled that if two views are possible, this Court, ordinarily, in exercise of its jurisdiction under Article 136 of the Constitution of India, would not interfere with the judgment of the High Court."
48. In Darshan Lal Vs. Delhi Administration, AIR 1974 SC, 218 it was held that:
"There is thus no independent reliable corroboration of the statements of Niranjan Lal and Anand Bihari Lal as regards the first offer. Lastly, in this background it was proper to look for unimpeachable evidence as to the passing of the currency note from Niranjan Lal to the appellant. We have already indicated certain important circumstances which cast doubt on that story.
"Having regard to all these circumstance, we think it is a fit case where the courts below should have required independent and trustworthy corroboration of the evidence of Niranjan Lal and Satish Chandra who had laid the trap."
49. In Ram Prakash Arora Vs. State of Punjab, AIR 1973 SC 498 at p. 501 this Court, speaking about the evidence of trap witness, observed:
"(They) were interested and partisan witness. They were concerned in the success of the trap and their evidence must be tested in the same way as that of any interested witness and in a proper case the court may look for independent corroboration before convicting the accused person".
50. PW25 Dr. Madhulika Sharma, Asstt. Director (Chemistry), FSL State Vs. Ajay Kumar Gupta Page No.20/25 has been examined to determine the presence of phenolphthalein powder in the car. The report is Ex.PW8/B and as per the said report, the swab was taken and the same tested positive for phenolphthalein. This, however, is highly improbable and cannot be relied upon as it is an admitted fact that the vehicle in question which is alleged to have been involved in the commission of the offence on 09.06.2004, while the swab was taken on 08.07.2004, was not in the custody of accused. The presence of phenolphthalein cannot be said to be a possibility as the vehicle was stated to be in the custody of PW7 Sanjay Gupta, who is the sibling of the accused on 30.06.2004. Hence, it cannot be said that the phenolphthalein powder could have remained in the places found by the witness PW25, the chemical analyser, had it been present. Furthermore, the prosecution has failed to show that since the date of the surrender of the said vehicle on 30.6.2004, the said vehicle was kept in sealed and isolated condition till the investigation by PW25. Witness of fact who is also an ocular witness stands on a better pedestal than evidence of chemical analyst. The result of the said investigation vide Ex.PW8/B cannot be said to be beyond reproach and cannot be relied upon.
51. The testimony of PW13 also does not inspire any confidence in as much as, in the entirety of the evidence, that has been brought on record by the prosecution, the fact that is reflected is that the raid was constituted by PW22 the Raid Officer at 8:30 am and by 9:30 am, the raiding team had left the AC Branch for Karkardooma Court. In fact, the complaint had been prerecorded and handed over to the RO in the presence of PW13 the panch witness at about 8:30 am while it is admitted by the RO that the panch witness, PW13, R. K. Sinha reported at AC Branch at 9:00 am and it is further admitted by the RO that it took about one hour for the preraid proceedings. The RO has also testified to the fact that the panch witness State Vs. Ajay Kumar Gupta Page No.21/25 PW13 was present when the complaint PW5/A was written by the complainant. PW13, when examined, has testified that he reported in the office of AC Branch at 9:40 am. His office timing was from 9:30 am. And furthermore, the raiding team left the AC Branch at 10:00 am. and it took 45 minutes to reach Karkardooma court i.e. it would have been 10:45 am.
52. The aforesaid testimony clearly indicates the fallacy of the prosecution in as much as if the said events are placed chronologically, it is nigh impossible for the complainant to come at 8:30 am and narrate his complaint to the RO, thereafter draft the said complaint and the RO to complete the entire raid proceedings within a period of one hour when it is admitted by the RO that by 9:30 am the entire team had left the AC Branch for Karkardooma courts. The prosecution case, in this regard, falls flat and cannot be given any consideration to inculpate the accused. V. Venkata Subbarao Vs. State represented by Insp. of Police (AP) (Supra), has further held that there is high impact on reliability and the events beyond ones comprehension when a trap is laid in 40 minutes which generally takes 2-3 hrs. In the instant case, as has been observed, PW13 the panch witness had reported, as per his testimony, at the AC Branch at 9:40 am and the raiding team had left the AC Branch at 10:00 am. However, the RO has a variant testimony wherein he states that the raiding team had left the AC Branch at 9:30 am. This being so, the said raid loses its reliability to be credible and hence culpability cannot be fastened on such evidence.
53. The inconsistency, in regard to the testimony of the witnesses who were involved in the raid, raises suspicion to the factum of the raid as PW22 Insp. K. S. Pathania, the RO on the said date, has testified that they had followed the panch witness and the complainant to the court alongwith State Vs. Ajay Kumar Gupta Page No.22/25 the raiding team had constituted a "nakabandi" but the RO, PW22, is not sure on which floor the said "nakabandi" was done. In fact, a person not aware of the situation of the room, it would not have been possible to reach the court no. 1 as the topography of Karkardooma Court is not simple. While PW13, on the other hand, has testified that they had never entered the court complex but had remained outside within the confines of the boundary only. This is highly irregular in as much as two different versions of the same event have been brought on record by the prosecution. Hence, the evidence, the prosecution relies upon, lacks certainty.
54. In the entirety of the evidence, proved on the record, It is an admitted fact that the complainant PW5 Surender Pal had placed GC notes amounting to Rs. 8000/- on the dashboard. The same has been corroborated by PW13 Ravinder Kr. Sinha, the panch witness. But as regards the demand, the witness PW13 is at variance. The main ingredient is missing.
55. The defence has relief upon the prosecution witness PW7 Sanjay Kr. Gupta, who is the sibling of the accused and has been examined in regard to the surrender of the accused as well as the fact that the vehicle which is alleged to have been used by the accused was in fact owned by the sister-in- law of the accused and also the fact that on the relevant date and time the prosecution witness PW7 had the custody of the said vehicle as has been testified that he had gone alongwith the accused to the AC Branch on 28.6.2004, where the accused surrendered before the IO vide arrest memo Ex.PW6/A. On 30.6.2004, the said witness handed over Maruti car bearing no. DL-9C-F-2129 to the IO. The witness has testified that on 9.6.2004, he was in possession of the said vehicle as his own vehicle had been sent to the garage. The carbon copy of Job card of his own vehicle is Ex.PW7/DA. The State Vs. Ajay Kumar Gupta Page No.23/25 witness has also testified that there had not been any collision with the said vehicle while the same remained in the custody of the witness. The judgment of the trial court passed by Sh. Satish Kumar Arora, Ld. MM, Karkardooma Court has negated the possibility of any damage to both the vehicles i.e. the vehicle driven by the accused and the govt. vehicle used in the raid. This fact falsifies the prosecution case of the damage and the incident of petrol station at Ghazipur. In fact, the alleged incident of acceptance of bribe sans the recovery would raise suspicion to the case of the prosecution.
56. The testimony of PW7 is in support of the accused as the said witness is the sibling of the accused and it is evident that he would be coming in support of the accused.
57. If the said testimony of the aforesaid witness PW7 is to be believed, then the vehicle bearing no. DL-9C-F-2129 could not have been with the accused and it is then the case of the prosecution would fail. The law requires to give equal credence to the evidence adduced by the parties that is to say, the evidence led in defence is not of any lesser value than the prosecution. In fact, the law requires the prosecution to prove its case under strict conditions while the accused is given the laxity of disproving the case of the prosecution and proving its own by mere preponderance of probabilities.
58. We have a case where the prosecution seeks to inculpate the accused under the provisions of section 7 &13 POC Act, who is stated to have demanded and accepted bribe amount and had neither touched the GC notes which were phenolphthalein coated nor had he taken the same in his State Vs. Ajay Kumar Gupta Page No.24/25 possession as it was stated to have been kept on the dash board, as per the testimony of PW5, the complainant and PW13, the panch witness. We also have a witness in the form of PW7, a prosecution witness and a sibling of the accused, who has stated that the vehicle was in his possession. Despite the surrender and handing over of the vehicle to the IO, no recovery of the GC notes could be effected. This being a case, the prosecution has failed to prove the factum of demand as well as the acceptance which is shrouded in suspicion as the prosecution has not been able to effectuate recovery of the amount stated to have been given to the accused and hence, it cannot be said that the prosecution on the basis of evidence adduced has been successful in inculpating the accused directly or for that matter even through circumstantial evidence of unerring certainty manifesting the guilt of the accused ensuring that conjunctures or suspicion do not take place of legal proof. The prosecution has not been able to prove successfully that the accused had made a demand of bribe and had accepted the same. In consequence, the accused is entitled to benefit of doubt and he is acquitted. His Bailbond is cancelled and surety discharged.
File be consigned to record room.
Announced in the open court today on 31st August, 2010.
(RAKESH SIDDHARTHA) SPECIAL JUDGE (PC-ACT)-06 TIS HAZARI, DELHI State Vs. Ajay Kumar Gupta Page No.25/25