Delhi District Court
State vs Jai Bhagwan Kataria on 28 July, 2010
State V/s Jai Bhagwan Kataria
IN THE COURT OF SH. A. S. YADAV SPECIAL JUDGE
DELHI
C C No. 72/2006
State V/s Jai Bhagwan Kataria,
s/o Sh. Sube Singh,
r/o H. No. 478, V&PO,
Khanjhawala Teen Pana Delhi-81
F. I. R No. : 08/2006
Under Section : 7/13 of Prevention of Corruption
Act.
Police Station : Anti Corruption Branch
Date of Institution 16.9.2006
Judgment reserved on 19.7.2010
Judgment prononced on 27.7.2010
JUDGMENT
In brief case of prosecution is that Delhi Jal Board used to hire private tankers for supply of water on monthly basis. Two tankers bearing No. DL-ILC-4685 and HR-69-1642 of complainant Sudershan (PW-8) were hired by Delhi Jal Board for supplying of water. The case of the complainant is that his tankers used to be hired since 1998 by Delhi Jal Board, Najafgarh Zone. However since the accused J.B. Kataria, Zonal Engineer was posted in that zone he had started harassing him and he had been serving notice on him as to why his tankers should not be disengaged and his tanker No. DL-ILC-4685 was disengaged and for re- engagement of his tanker No. DL-IC-4865 he submitted an application CC No. 72/2006 Page No. 1 of 47 State V/s Jai Bhagwan Kataria few days before 30.1.2006 and when he met accused for re-engagement of his tanker accused asked him to come with a bribe amount on 31.1.06 in between 1:00 to 2:00PM. The complainant was against giving the bribe. He went to Anti Corruption Branch where he wrote his complaint Ex.PW1/A before raid officer Inspector Sunder Dev (PW-9) in presence of panch witness Ajay Kumar Tripathi (PW-4).
2 Prosecution case further is that complainant Sudershan took with him Rs. 2500/- i.e. five GC note of Rs. 500/- each. The Sr. number of those GC notes were recorded in the pre raid proceedings Ex. PW4/B by the raid officer and numbers of those GC numbers were got checked through panch witness.Those GC notes were treated with phenolphthalein powder. The Raid Officer gave demonstration by asking the panch witness to touch his right hand with those GC notes and thereafter the wash of right hand of panch witness was taken in a water like solution that turned pink. This way the Raid Officer explained the purpose of treating the GC notes with phenolphthalein powder. Panch witness was instructed to remain close with the complainant and to see the transaction and after being satisfied that he had actually seen the transaction he was instructed to give signal by hurling his hand over his head.
3 The raiding team left Anti Corruption Branch at 10.30 AM in government vehicle and reached DJB Office Najafgarh at about 12.00 Noon. The government vehicle was left at side of office and Insp. Satish Sharma Investigating Officer remained in the government vehicle along with the driver. The complainant and panch witness were sent inside CC No. 72/2006 Page No. 2 of 47 State V/s Jai Bhagwan Kataria office of DJB and Raid Officer along with other members of raiding team followed them by keeping suitable distance. At about 12.10 PM complainant and panch witness entered in room no. 113 on the first floor. After some time they came out from the room and informed the Raid Officer that Jai Bhagwan Kataria was not available in his room. They were instructed to go back and wait for him. At about 1.15 PM Raid Officer received pre determined signal from panch witness and he along with members of raiding team rushed to the spot ie room no. 113. Panch witness informed the Raid Officer that accused Jai Bhagwan Kataria had demanded and accepted bribe money of Rs. 2500/- from the complainant with his right hand and after counting the same with both the hands had kept the same in right side pocket of his jacket. Raid Officer introduced himself as inspector of Anti Corruption Branch and challenged the accused that he had taken the bribe of Rs. 2500/- from the complainant and offered his search as well as search of members of raiding team before taking the search of accused but accused refused to do so and became perplexed. On the directions of Raid Officer panch witness recovered the bribe money of Rs. 2500/- from right pocket of the jacket of the accused. The sr number of those recovered GC notes were compared with the sr number mentioned in pre raid report Ex. PW4/B which tallied. Those recovered GC notes were taken into possession vide seizure memo Ex. PW4/C. The wash of both the hands of accused Jai Bhagwan Katraia and wash of right pocket of his jacket were taken separately in colourless solution of sodium carbonate which turned pink and the CC No. 72/2006 Page No. 3 of 47 State V/s Jai Bhagwan Kataria solution was transferred in six empty, small, clean bottles. The bottles were thereafter sealed with the seal of SD. Marked paper slips RHW-I-II, LHW-I-II and RSJPW-I-II were pasted on those bottles after obtaining the signature of panch witness and complainant thereon. Raid Officer prepared the sample seal and the bottles, sample seal and pulanda of jacket were taken into possession vide memo Ex. PW4/D. Raid Officer drawn the post raid proceedings Ex. PW4/E and prepared rukka Ex. PW9/A. 4 The prosecution case further is that thereafter raid officer called Insp. Satish Sharma ( investigating officer ) at the spot and handed over to him the custody of accused, case property, recovered GC notes of Rs. 2500/- exhibits of case seizure memo and copy of raid report. Investigating officer prepared site plan Ex. PW10/A at the instance of complainant and panch witness. He arrested the accused vide arrest memo Ex. PW 4/F and took his personal search vide personal search vide memo Ex. PW4/G. Accused was got medically examined and thereafter Investigating Officer along with accused went to P.S. Civil Lines and accused was lodged in lockup of PS Civil lines and Investigating Officer deposited the case property with MHCM PS Civil Lines. During the course of investigation Investigating Officer sent first part of exhibits to FSL Rohini for chemical analysis and later on FSL report Ex. PW10/C was received. He sent request for obtaining sanction for prosecution of the accused and lateron sanction order Ex. PW3/A was received and after completion of investigation charge sheet was filed in the court. CC No. 72/2006 Page No. 4 of 47
State V/s Jai Bhagwan Kataria 5 After complying with the provisions of Section 207 Cr. P. C. and after hearing the Ld. Addl. PP for the state and ld. Counsel for accused charges were framed against the accused.
6 In order to prove its case prosecution examined 10 witness. 7 Thereafter statement of accused was recorded u/s 313 Cr. P. C wherein he denied about the demand and acceptance of the bribe amount. He claimed to be innocent and falsely implicated in this case. He examined ten witnesses in defence i.e K. N. Jha ( DW1 ), Raj Singh ( DW2), Head Constable Pradeep Kumar ( DW3), Head Constable Main Singh ( DW4 ), Satish Kumar Kataria ( DW5 ), Brijesh Rai ( DW6 ), K. K. Vashist ( DW7 ), Constable Rajesh Kumar ( DW8 ), R. K. Singh ( DW9 ) and S. S. Rana ( DW 10 ).
8 I have heard Sh. Alok Saxena Ld. Addl.PP for State and Sh. S. K. Bhatnagar ld. counsel for accused at length. Apart from making oral submissions ld defence counsel has also submitted written submissions running into 12 pages. Along with written submissions he had also filed annexures and he has cited 45 judgments in support of his contentions. He has referred to 1993 Crl. L. J 2878, 1985 Crl. L. J. 563, 1991 Crl. L. J. 2541, 2002 ( 45 ) All Cri SEE 446, 1995 ( 2 ) Crimes 85, 2001 ( 3 ) Crimes 309, AIR 1984 SC 684, AIR 1971 SC 677, AIR 2006 SC 628, 1999 Crl. L. J. 4407, 1996 Crl. L. J. 391, 1998 Crl. L. J. 756, AIR 1979 SC 1408, 1981 3 SCC 69, II ( 1998 ) CCR 17, 2003 ( 2 ) CCR 1 page 17, 2003 Cr. L. J 4286, 2002 Supreme Court 486, 1992 Cri L. J. 2430, 1999 CrI L. J. 4407, 1981 Cri L. J. 142, 1981 BLJR 122, 1998 Cr. L. J. 3155, CC No. 72/2006 Page No. 5 of 47 State V/s Jai Bhagwan Kataria 1988 CRI L. J 152, AIR 1987 SC 2402, III ( 2002) CCR 17, AIR 1976 SC 91, AIR 1987 SC 2402, AIR 1980 SC 1558, (1992 ) 3 Crimes 112, 1994 Cr. L. J 1833, AIR 1871 SC 1520, 2008 ( 2 ) KLJ 625, 1981, Cr. L. J. 1691, 2003 Cr. L. J. 4286, 470 Crimes III 1989, AIR 1952 C 354, 1973 Cr. L. J. 1958, 2006 ( 1 ) JCC 42, ( 2003 ) 3 SCC 272, 3 BOM LR 562, 1977 CRI. L.J. 254, 2000 ( 1 ) CC Cases head constable 195, AIR 2005 Supreme Court 3123, 2006 ( 1 ) Crime 200, 1992 (2) 651, 2006 (1 ) Crime 200, 2007 and Cri, L. J. 2919.
9 I have gone through the authorities cited by ld. defence counsel very carefully. They were rendered in particular facts and circumstances of the case and are not applicable in the facts and circumstances of the present case for the reasons discussed hereinafter. 10 It is submitted by ld defence counsel that sanction order Ex. PW3/A is defective and shows non application of mind. It was not mentioned in the sanction order that accused was competent to re engage the tanker. It is further submitted by him that sanction has been granted for the prosecution of the accused u/s 7/13 Prevention of Corruption Act and section 120-B IPC and for any other offences punishable under any other provision of law in respect of acts aforesaid. It is submitted by ld. defence counsel that no charge sheet was filed against accused u/s 120-B IPC so there was no question of sanction being granted for the prosecution of accused u/s 120-B IPC. It is further submitted by him that PW3 was not competent to accord section u/s 120- B IPC. On the other hand it is submitted by ld. Addl. PP for state that CC No. 72/2006 Page No. 6 of 47 State V/s Jai Bhagwan Kataria bare perusal of the sanction order shows due application of mind. It is further submitted by him that even otherwise sanctioning authority appeared in the court and categorically deposed that he accorded the sanction after due application of mind. In order to appreciate the rival contentions it is appropriate to look at the sanction which is reproduced as under :-
WHEREAS it is alleged that Shri J. B. Kataria s/o Shri Sube Singh R/o flat No. 340, Pkt-I, Sector 12, Dwarka, New Delhi-75, functioning as Z. E. ( SW ) II ( Najafgarh Zone ) and being a public servant, in discharge of his official duties abused his official position and demanded, accepted and obtained Rs. 2500/- ( Rupees two thousand five hundred only ) on 31.1.2006 at Room No. 113, ( F. F. ) Delhi Jal Board Office, Najafgarh Zone, from Shri Sudershan S/o Shri Umed Singh R/o VPO Mundela Kalan, New Delhi for re-engaging his vehicle No. DL- ILC/4685 in DJB for supply of Delhi Jal Board water through his said water tanker.
AND WHEREAS the said act of Shri J. B. Kataria, ZE, Delhi Jal Board constitutes an offence punishable u/s 7/13 POC Act No. 49 of 1988 & 120-B IPC.
AND WHEREAS, I, Gyanendra Srivastava, Member ( Administration ), Delhi Jal Board being the authority competent to remove Shri J. B. Kataria, ZE from service, after examining carefully the material placed before me in regard to the said allegations and the circumstances of the case, consider that the said Shri J. B. Kataria, ZE, Delhi Jail should be prosecuted in the court of law for the said offence. CC No. 72/2006 Page No. 7 of 47
State V/s Jai Bhagwan Kataria NOW THEREFORE, I , Gyanendra Srivastava Member ( Administration ) Delhi Jal Board to hereby accord sanction under section 19 ( 1 ) ( c ) of POC Act, 1988 for the prosecution of the said Shri J. B. Kataria, ZE, Delhi Jal Board, for the said offence and any other offences punishable under any other provisions of law in respect of acts aforesaid and for the taking of cognizance of the said offences by a court of competent jurisdiction.
11 In order to prove sanction prosecution examined PW3 Sh. Gynender Shrivastava who categorically deposed that a request was received in his office for grant of sanction u/s 19 of Prevention of Corruption Act to prosecute accused Jai Bhagwan Kataria along with copies of FIR, raid report, seizure memos , statements recorded u/s 161 Cr. P. C and he had gone through the documents placed before him very carefully and had applied his mind and after examining the facts and circumstances of the case he was of the view that accused Jai Bhagwan Kataria should be prosecuted in this case and being competent authority to remove accused from the service he accorded sanction Ex. PW3/A and sanction was sent to DCP Anti Corruption Branch vide covering letter Ex. PW3/B. In h is cross examination he denied the suggestion that sanction order was already typed and he has only put his signature on that without application of mind. It is evident from the statement of sanctioning authority that after considering the relevant documents he accorded the sanction Ex. PW3/A. Simply because sanction was also granted for prosecution of the accused u/s 120-B IPC does not mean that the CC No. 72/2006 Page No. 8 of 47 State V/s Jai Bhagwan Kataria sanction was defective. Sanctioning authority is not a legal expert. Sanction authority had detailed the facts and had accorded sanction for the prosecution of the accused as he has demanded and accepted the bribe amount of Rs. 2500/- from the complainant. Here it is appropriate to refer to the case of State of Maharashtra and ors V/s Ishvar Piraji Kelpatri & ors. 1996 Cri. L. J. 1127, where Hon'ble Supreme Court had laid down that if the Authority according sanction makes statement that while signing the order of sanction, it had personally scrutinized the file and had arrived at required satisfaction , it is not necessary to look for, that there was application of mind or not or that material on record was examined by the concerned officer or not before according sanction, especially when order prima facie shows that, he had done so. In the case C. S. Krishnamuthy V/s State of Karnataka, 2005 IV AD (SC) 141, the Apex court in para 7 of the judgment has held as under:- 7.
This sanction order was proved by Mr. V. Parthasarthy, Deputy General Manager of Bangalore Telecom as PW 40 , he was competent authority to accord sanction and he accorded the sanction for prosecution of accused for the alleged offence on 28th February, 1990 as per Ex.P.83 . He deposed that S. P., CBI sent a report against the accused and he perused the report and accorded the sanction as per Ex. P.83 . He deposed that he was satisfied that there was a case for prosecuting the accused for the alleged offence. He admitted that he received a draft CC No. 72/2006 Page No. 9 of 47 State V/s Jai Bhagwan Kataria sanction order and a draft sanction was also examined by vigilance cell and then it was put up before him. He also deposed that before according sanction he discussed the matter with the vigilance cell. He also admitted that he was not a law man, therefore, he discussed the legal implication with a legally qualified officer in the vigilance cell. He has denied the suggestion that he did not apply his mind in according sanction. It is no doubt true that the sanction is necessary for every prosecution of public servant, this safeguard is against the frivolous prosecuting against public servant from harassment. But the sanction should not be taken as a shield to protect corrupt and dishonest public servant
12 Reference is placed on case of Indu Bhushan Chaterjee V/s State of West Bengal AIR 1958 Supreme Court, 148 where it was held that it is not for the sanctioning authority to judge truth of allegations made against the accused by calling for the records of the case. It is enough if he goes through all the relevant papers put before him and is satisfied that it was necessary in the ends of the justice to accord sanction.
CC No. 72/2006 Page No. 10 of 47
State V/s Jai Bhagwan Kataria 13 Ld. counsel for accused has cited 1985 Crl. L. J. 563, 1991 Crl. L. J 2541, Uday Narain V/s State of UP 2002 ( 45 ) All Criminal SEE 446, 1995 (2 ) Crimes 85, 2001 ( 3 ) Crimes 309, AIR 1984 SC 684 and AIR 1979 SC 677. The authorities cited by ld defence counsel are not applicable to the facts and circumstances of the present case in view of the aforesaid discussion.
14 Simply because the sanctioning authority has mentioned section 120-B IPC in the sanction order, the same has not resulted into failure of justice. The charge against the accused is not that he entered into criminal conspiracy with any other person to extract illegal gratification. Here it is relevant to refer to State by Police Inspector V/s T. Venkatesh Murthy 2004 ( 4 ) Crimes 7 ( SC ) where it was held that merely because there is any omission, error or irregularity in the matter of according sanction, it does not effect validity of proceedings unless the court record the satisfaction that such error, omission or irregularity has resulted in the failure of justice. There was no failure of justice. The sanction was properly accorded by the sanctioning authority after due application of mind.
15 It is submitted by ld defence counsel that accused was working as Zonal Engineer. He had no concern with the engaging of tankers and an application for engaging of the tanker was to be made to the Executive Engineer and the work order was also to be issued by the Executive Engineer. It is further submitted by him that in fact complainant had not submitted any application for re-engaging of his tanker. It is CC No. 72/2006 Page No. 11 of 47 State V/s Jai Bhagwan Kataria submitted by him that since the accused was not the concerned person so there was no occasion for him to demand the bribe. Ld. defence counsel along with written arguments submitted a reply sought under RTI as to whether complainant Sudershan @ Sonu applied for deployment of his water tanker No. DL 1LC 4865 in the month of December 2005 for engagement of said water tanker for the month of January 2006 in the office of EE ( SW ) II and the answer was that Sudershan has not made any application for deployment of his water tanker in Dec 2005 for engagement of water tanker for January 2006. It is significant to note that the information was sought to the effect whether an application was moved in December for the deployment of Tanker No. 4685 for the month of January 2006. The information was not sought whether any application was moved for deployment of tanker No. 4685 for the month of January. It is significant to note that PW6 who was EE at the relevant time stated that according to record the copy application given by complainant to engage his above said vehicle for the month of January 2006 is not traceable. In his cross examination he admitted that in December 2005 two tankers of Sudershan were deployed i.e. tanker No. HR 69 1642 and DL 1LC 4685 and in January 2006 only one tanker was deployed. He further stated in his cross examination that Sudershan did not apply for engagement of tanker No. 4685 in the month of January 2006. Earlier he stated that application for deployment was not traceable. It is significant to note that complainant in his examination in chief categorically deposed that in January 2006 he applied for engagement of his tanker no. 4685 and in his CC No. 72/2006 Page No. 12 of 47 State V/s Jai Bhagwan Kataria cross examination he denied the suggestion that he gave application for deployment of tanker No. 4685 to JE Ishwar Singh on 30.1.2006. He stated application for deployment of tanker No. 4685 was given by him in Jan 2006 in between 20th to 25th January. He denied the suggestion that JE Ishwar Singh has marked the file to accused on 30.1.2006 and the file was given to him. He denied the suggestion that he withdrew his application on 30.1.2006. It is evident from the suggestion given to the complainant that he did apply for the engagement of tanker no. 4685 in January 2006. In fact Ex PW6/C shows that application given by complainant to engage his vehicle No. 4685 for the month of January 2006 was not traceable and it was submitted that same would be produced as and when traceable. Accused examined Brijesh Rai ( DW6) who had brought the daily diary register containing the entries made on 30.1.2006. He deposed that vide entry No. 1123 the application was received from Ishwar Singh JE on 30.1.2006 regarding engaging of tanker 4685. The file was brought to him by complainant himself and since accused was not available in the office at that time complainant took back the file and he obtained the signature of the complainant at point B on Ex. PW6/A. In his cross examination he admitted that his register starts with an entry no. 1 dated 2.4.2004 and the last entry number is 1226. He admitted that there is not even a single signature of any person like the one contained against entry no. 1223. He denied the suggestion that the entry is not bearing the signature of complainant. In fact complainant has denied that he signed the register. No body has signed against any entry CC No. 72/2006 Page No. 13 of 47 State V/s Jai Bhagwan Kataria from entry no. 1 to entry no. 1226 except entry no. 1223 which is dated 30.1.06. The complainant has denied the suggestion that signature against entry no. 1223 pertains to him. It itself shows that signature of the complainant have been forged. DW6 admitted in his cross examination that no person has ever brought in person any file to him and no person has ever taken a file in person from him. It is very strange that procedure was deviated in respect of entry no. 1223. In fact nothing of that sort has transpired and DW6 being colleague of the accused deposed in favour of accused just to help him. It is significant to note that even as per him file was sent to him by JE Ishwar Singh on 30.1.06. It does not mean that application for engaging of tanker 4685 was made by complainant on 30.1.06. The application was deliberately misplaced as that would have shown that complainant has submitted application prior to 30.1.06 for the engagement of the tanker. DW6 went to the extent of deposing that at that time accused was not available in the office. Complainant specifically deposed that accused has met him in the office on 30.1.06. PW6 also stated in his cross examination that whosoever wants to engage his tanker he has to submit an application either to the EE or to the Zonal Engineer. Admittedly accused was Zonal Engineer at the relevant time. He further stated in his cross examination that duty of accused was to put estimation, justification of work and monitoring of tankers. He further stated that work order is given by EE and not by zonal Engineer. It is true that work order is to be given by EE but it is equally true that justification of the work is to be given by the Zonal Engineer. Hence to say that CC No. 72/2006 Page No. 14 of 47 State V/s Jai Bhagwan Kataria accused had no role to play was without basis. Ld. counsel for the accused has referred to the case of State V/s Narasimhachary AIR 2006 Supreme Court 628 where it was held that accused was merely a recommending authority and not the valuation or the final authority and accused was not an outward clerk for issuance of property valuation certificate and the said certificate was already forwarded and signed by the final authority before alleged demand of bribe by the accused. It was held that aforesaid circumstances create suspicion about the demand of bribe hence acquittal order was found to be proper. The facts of that case were entirely different. Here in this case the vehicle of accused was not already engaged and complainant and panch witness categorically deposed that when complainant asked accused about his work accused demanded bribe and then accepted the bribe. Law is well settled that it does not matter whether the public servant was competent to do the work or not. Reference is placed in a case reported as Chaturdas Bhagwandas Patel Vs The State of Gujarat: 1976 (3) SCC 46 referred in State of Andhra Pradesh Vs C. Uma Maheswar Rao & Anr: 2004 V AD (SC) 176, where it has been held by the Apex Court that the question whether a person has an authority to do the act for which the bribe is accepted is of no consequence. In case reported as Gopal Singh Vs. CBI:ILR (2005) II Delhi 35 the Hon'ble High Court of Delhi in para 22 observed as under:
It has to be added that in cases under Prevention of Corruption Act, the prosecution is under no obligation to CC No. 72/2006 Page No. 15 of 47 State V/s Jai Bhagwan Kataria prove that a public servant demanding bribe was in a postilion to help the person from whom the bribe was being demanded. The prosecution succeeds the moment it is shown that a public servant had accepted some money from someone, which was not legal remuneration, the presumption under Section 20 of the Act comes into play shifting the burden upon the public servant to explain as to why he had received the money. A public servant may misguide, mislead or befool his victim to pay him illegal gratification knowing fully well that he is not in a position to help him and as such, it can be no defence for him to say that since he was not in a position to help the complainant/victim , the money received by him does not amount to illegal gratification.
Even explanation (d) to section 7 which is reproduced as under makes it clear that it does not matter whether the person demanding bribe was in a position to do the work or not.
"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. Similar view was taken in case of Dhaneshwar Narain Saxena Vs. Delhi Administration, 1962 (1) Crl. L.J. 203 (S.C). 16 It is submitted by ld defence counsel that prosecution has failed to prove that accused demanded and accepted the bribe amount. it is further submitted by him that prosecution has failed to prove recovery of bribe amount from the accused. On the other hand it is submitted by Sh. CC No. 72/2006 Page No. 16 of 47
State V/s Jai Bhagwan Kataria Alok Saxena Ld. Addl.PP for State that it is proved from the statement of complainant that accused demanded and accepted the bribe amount and the statement of complainant in this regard is fully corroborated by the panch witness. It is further submitted by him that it is also proved from the statement of complainant, panch witness and Raid Officer that bribe amount was recovered from the right pocket of jacket of accused. I find force in the submission of ld. additional PP for the state. It is proved beyond doubt from the statement of complainant and panch witness that accused demanded and accepted the bribe amount. It is also proved from their statement that bribe amount was recovered from right side jacket pocket of accused. Complainant PW8 categorically deposed that accused discontinued his tanker bearing no. DL 1LC 4685 and he applied in Jan for re-engaging his tanker and on 31.1.2006 he met accused and accused asked him to do Sewa Pani and he asked him to come along with Rs. 2500/- for re engaging his tanker. He categorically deposed that he went to Anti Corruption Branch where he gave his complaint Ex. PW4/A in presence of panch witness. He deposed about pre raid proceedings. He deposed about departure of raiding party from Anti Corruption Branch . He further deposed as under :-
I along with panch witness went inside the room of the accused and there we did not find anyone. We came back to the raiding party and informed them about the non-availability of the accused. The Raid Officer instructed me to go in the office and wait there. we came CC No. 72/2006 Page No. 17 of 47 State V/s Jai Bhagwan Kataria back at the office and started waiting for the accused after some time accused accused came and I wished him and accused sat on his chair and we also sat on the chairs. I inquired from the accused about my work. Thereafter, accused asked from me whether I had done which ever told by him to me. I replied in affirmative. (Thereafter I took out those GC notes from my pocket and gave in the right hand of the accused and he counted the same with the help of his both the hands and he kept the same in the right side pocket of his shirt. Thereafter panch witness went out from the room gave pre determined signal to the raiding party and members of raiding party came there and Raid Officer disclosed his identity and challenged the accused that he had accepted bribe from me. Accused became perplexed and admitted his guilt.) Raid Officer offered his search as well as the search of the raiding party to the accused before taking search of accused but accused refused to do so. Raid Officer recovered those treated GC notes from the right side pocket of the jacket of the accused. The sl. no of those recovered GC notes were tallied with sl. no. mentioned in pre raid proceedings which tallied. Those treated GC notes were taken into possession vide seizure memo Ex. PW4/C which bear my signature at point B. Thereafter both the hands and right pocket of the jacket of the accused were dipped separately in some water type solution which turned into pink. That solution was transferred into six bottles which were sealed and marked paper slips were pasted on those bottles CC No. 72/2006 Page No. 18 of 47 State V/s Jai Bhagwan Kataria which were signed by panch witness and the Raid Officer as well as by myself. Those bottles were also taken into possession vide seizure memo Ex. PW4/D which bear my signature at point B. The jacket of the accused was converted into pulanda with the seal of Raid Officer and that pulanda was also taken into possession vide seizure memo Ex. PW4/D. 17 No suggestion was given to him in cross-examination that pre raid proceedings Ex.PW4/B were not conducted before leaving for raid. No suggestion was given to him in cross-examination that the numbers of GC notes were not recorded in pre raid proceedings or that no demonstration was given. No suggestion was given to him in his cross- examination that he along with panch witness had not entered in the room of the accused. No suggestion was given to the complainant (PW-8) that he did not visit Anti Corruption Branch on 31.1.06 or complaint Ex.PW4/A was not written by him in Anti Corruption Branch before panch witness and raid officer. No suggestion was given to him in cross-examination that when he along with panch witness met accused in the room of the accused he did not inquire from the accused about his work. No suggestion was given to him in cross-examination that thereafter accused did not ask him whether he had done whatever was told to do. No suggestion was given to him in cross-examination that he has not taken out the GC notes from his pocket or that the accused has not accepted the GC notes with his right hand or that accused has not counted the GC CC No. 72/2006 Page No. 19 of 47 State V/s Jai Bhagwan Kataria notes with the help of both the hands. No suggestion was given to him that accused had not kept the GC notes in the right side pocket of his jacket. No suggestion was given to him that panch witness had not given the pre determined signal. No suggestion was given to him that when Raid Officer challenged the accused about acceptance of bribe amount accused did not perplex. No suggestion was given to him that wash of both of the hands of the accused were not taken at the spot. No suggestion was given to him that wash of right pocket of the jacket was not taken at the spot. He denied the suggestion that his signatures were obtained on blank papers or that no writing work was done at the spot. He denied the suggestion that accused neither demanded nor accepted the bribe amount or that the bribe amount was not recovered from the accused. The statement of complainant regarding all incriminating evidence against the accused virtually remained unchallenged. It is settled law if the statement of witness remained unchallenged on material point it is deemed to have been admitted. It is proved from the statement of the complainant that he went to Anti Corruption Branch where his complaint Ex. PW4/A was recorded in presence of panch witness PW4. It is proved from his statement that he along with the panch witness went to the room of the accused and there accused demanded bribe from him and he took out bribe amount from his pocket and gave to the accused which was accepted by the accused with his right hand and thereafter accused counted the bribe with his both hand and thereafter accused kept the same in right pocket of his jacket.
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State V/s Jai Bhagwan Kataria 18 The statement of complainant is fully corroborated by the panch witness. Panch witness categorically deposed that complaint came to Anti Corruption Branch and gave complaint Ex. PW4/A to Raid Officer in his presence. He deposed about pre raid proceedings. Regarding post raid proceedings he deposed as under :-
We went to the room of ZE where we did not find anyone. The staff member told us that so far the person against whom the complaint has been made has not come. We waited there for some time. Information was also sent to raiding party about non arrival of concerned person and we were instructed to wait in that very room. The accused present in the court came to his room at about 1.15 PM. The complainant wished accused. The accused asked the complainant to sit on the chairs lying opposite him. The complainant inquired from the accused about his work. The accused inquired from the complainant whether he had done what was told to him. The complainant replied in affirmative. Thereafter complainant took out those GC notes of Rs. 500/- from his pocket and extended towards the accused. The accused accepted the same in his right hand and counted the same with the help of both the hands and thereafter kept the same in the right pocket of his leather jacket.
Thereafter, I gave pre determined signal by hurling my hand over my head. The members of raiding party immediately came at the spot and Raid Officer inquired from me about the incident and I told him that CC No. 72/2006 Page No. 21 of 47 State V/s Jai Bhagwan Kataria accused had demanded and accepted the bribe of Rs. 2500/- from the complainant and kept the same in his right pocket of his jacket. The Raid Officer disclosed his identity and challenged the accused. The accused became perplexed. The Raid Officer offered his search before taking search of the accused but accused refused to do so. On the instructions of Raid Officer, I took the search of the accused and recovered those treated GC notes from right pocket of the jacket of the accused.
19 Again no suggestion was given to the panch witness that complaint Ex PW4/A was not recorded in his presence or that he did not accompany complainant to the office of the accused or that complainant did not inquire from the accused about his work or that accused has not demanded bribe amount from the complainant or that accused has not accepted the bribe amount with his right hand or that accused has not counted the bribe amount with his both the hands or that accused has not kept the bribe amount in right pocket of his jacket. Though panch witness was cross examined at length by ld defence counsel but nothing material was elicited in cross-examination. Panch witness has fully corroborated the statement of the complainant in all material particulars. It is proved beyond doubt from his statement that accused accepted and demanded the bribe amount and after counting the bribe amount with his both the hands had kept the same in right pocket of his jacket. 20 Apart from complainant and panch witness Raid Officer also proved the recovery of the bribe amount from the right pocket jacket of CC No. 72/2006 Page No. 22 of 47 State V/s Jai Bhagwan Kataria accused. Raid Officer categorically deposed that after receiving signal from panch witness he went to room no. 113. Panch witness informed him that accused had demanded and accepted the bribe amount of rs. 2500/- from the complainant with his right hand and after counting the same with both the hands he had kept the same in right pocket of his jacket. He categorically deposed that when he challenged the accused about acceptance of bribe amount accused became perplexed and on his instruction the bribe amount was recovered by the panch witness from the right pocket of jacket of accused.
21 It is submitted by ld defence counsel that as per the complainant bribe amount was recovered by the Raid Officer from the right side pocket of the jacket of the accused whereas panch witness deposed that bribe amount was recovered by him from the right side pocket of jacket of accused. It is submitted by him that this contradiction in the statement of panch witness and complainant makes the recovery of the bribe amount from the accused doubtful. I do not find any force in the submission of ld. defence counsel. It is significant to note that panch witness has categorically deposed that bribe amount was recovered by him from the right side pocket of the jacket of accused and his statement was fully corroborated by the Raid Officer. It is proved from the statement of complainant, panch witness and Raid Officer that post raid proceedings Ex. PW4/E were drawn at the spot. It is categorically mentioned in the post raid proceedings that bribe amount was recovered from the right side pocket of the jacket of accused. No suggestion was put to the CC No. 72/2006 Page No. 23 of 47 State V/s Jai Bhagwan Kataria complainant and panch witness in the cross examination that post raid proceedings Ex. PW4/E were not drawn at the spot. May be with the passage of time complaint forgot as to who recovered the bribe amount from the right side pocket of the jacket of the accused. It is certain that the bribe amount was recovered from the right side pocket of the jacket of the accused.
22 Both the complainant and panch witness categorically deposed that accused after accepting the amount with his right hand counted the same with his both hands and thereafter kept the same in right pocket of his jacket. They have categorically deposed that washes of both the hands and wash of right pocket of the jacket were taken at the spot. The wash of right hand was filled up in two bottles which were marked RHW-I-II. The wash of left hand was filled up in two bottles LHW- I-II and the wash of right side pocket of the jacket was also filled up in two bottles which were marked RSJPW-I-II. The bottles were duly signed by the complainant, panch witness and Raid Officer and these are Ex. P6 to P11. Investigating Officer categorically deposed that he deposited the case property with MHCM.
23 PW2 head constable Ranjit Singh deposed about deposit of case property with him by the Investigating Officer Insp. Satish Sharma ( PW10 ). He also deposed that on 8.2.2006 the first parts of the exhibits were sent to FSL Rohini through constable Kishan Pal vide RC No. 247/21. He proved the relevant entries Ex. PW2/A. FSL report Ex. PW10/C was received during investigation which gave positive test for CC No. 72/2006 Page No. 24 of 47 State V/s Jai Bhagwan Kataria phenolphthalein powder. The importance of phenolphthalein test was underline by the Hon'ble Supreme Court in Som Parkash V/s State of Delhi AIR 1974 Supreme Court 989 , where in para 10 it is held as under:
"But the ................ of course , the oral evidence of Pws 1 and 4 by itself, if believed, as rightly believed by the High Court, proves the passing of the money when challenged by P.W.7. The fact is indisputable that the hands, the handkerchief and the inner lining of the trouser pocket of the accused turned violet when dipped in soda ash solution. From this the State Counsel argues that on no hypothesis except that the notes emerged from the accused 's pocket or possession can the triple colour change be accounted for. The evidence furnished by inorganic chemistry often outwits the techonology of corrupt officials, provided no alternative reasonable possibility is made out. The appellant offers a plausible theory, PW 1 kept the notes with him and h is hands thus carried the powder. He gave a bottle of coke to the accused and the bottle thus transmitted particles of phenolphthalein to the latter 's hands. He ( the accused ) wiped h is face with the handkerchief and put it into his trouser pocket thus contaminating the lining with the guilty substance. Moreover, the inner lining was dipped by PW 7 with his hands which had the powder. Thus, all the three items stand explained, according to him. These recondite CC No. 72/2006 Page No. 25 of 47 State V/s Jai Bhagwan Kataria possibilities and likely freaks have been rejected by both the courts and we are hardly persuaded into hostility to that finding. It is but meet that science-oriented detection of crime is made a massive programme of police work, for in our technological age nothing more primitive can be conceived of than denying the discoveries of the sciences as aids to crime suppression and nothing cruder can retard forensic efficiency than swearing by traditional oral evidence only thereby discouraging the liberal use of scientific research to prove guilt."
24 It is proved from the FSL report that accused handled the bribe amount with his both hands and same was kept in the right pocket of the jacket. It is submitted by ld defence counsel that solution which was prepared at the time of demonstration was filled up in these bottles. I do not find any force in the submission of ld. defence counsel. Panch witness PW4 categorically deposed that the solution which was prepared at the time of demonstration was thrown away and thereafter they washed their hands . He denied the suggestion that solution which was prepared at the time of demonstration was not thrown away and rather the same was put up in these bottles. The statement of panch witness is fully corroborated by complainant ( PW8 ) who deposed that solution prepared at the time of demonstration was thrown away and thereafter they washed their hands. He denied the suggestion that that solution was not thrown away by Raid Officer and that solution was later on filled up in the bottles Ex. P6 to P11. Raid Officer also deposed that solution which was CC No. 72/2006 Page No. 26 of 47 State V/s Jai Bhagwan Kataria prepared at the time of demonstration was thrown away and thereafter they washed their hands. He denied the suggestion that that solution was not thrown away and was planted on the accused.
25 It is proved from the statement of complainant , panch witness and Raid Officer that solution which was prepared at the time of demonstration was thrown away and thereafter they washed their hands and the bottles Ex. P6 to P11 are containing the solution of washes of the hands of the accused and right side pocket of jacket of accused taken at the spot. It is submitted by ld defence counsel that the jacket and currency notes were not sent to FSL and an adverse inference is to be drawn against prosecution. He has referred to 1992 Crl. L. J 2430. The facts of that case were different. In this case it is proved from the statement of complainant and panch witness that accused handled the bribe amount with his both hand. The washes of his both the hands were taken separately and wash of right pocket of his jacket was also taken separately and one set of wash was sent to FSL. It isuseful to refer to Raughbir Singh V/s State of Punjab AIR 1976 Supreme Court 91 where it was held that when a trap is laid for a public servant, it is desirable that marked currency notes which are used for the purpose of trap are treated with phenolphthalein powder so that handling of such marked currency notes by public servant can be detected by chemical process and the court does not have to depend on the oral evidence which is some time of a dubious character for the purpose of deciding the fate of public servant. Here in this case apart from the statement of CC No. 72/2006 Page No. 27 of 47 State V/s Jai Bhagwan Kataria complainant and panch witness it is also proved from FSL report that accused handled the GC notes with his both hands and the GC notes were kept in the right pocket of the jacket.
26 It is submitted by ld defence counsel that in fact the accused was not wearing jacket Ex. P12 rather he was wearing coat and tie and this jacket Ex. P12 was planted on the accused. It is submitted by him that in fact complainant was wearing the jacket P12. Complainant PW8 categorically denied the suggestion that jacket Ex. P12 pertains to him and the same was planted on the accused. Panch witness also denied the suggestion that jacket Ex. P12 did not belong to the accused and the same was planted on the accused. It is significant to note that it was not suggested to panch witness that jacket P12 belonged to complainant. Raid Officer categorically denied that jacket P12 belonged to complainant and was planted on the accused. It is submitted by ld defence counsel that opportunity was not given to the accused to peruse the jacket at the time of final arguments. There was no question of giving any opportunity to peruse the jacket P12 at the time of final arguments. Complainant , panch witness and Raid Officer categorically deposed that accused was wearing jacket Ex. P12 at the time of incident. Jacket was produced in the court when the statement of complainant, panch witness and Raid Officer were recorded and the same was duly exhibited as P12 in their statement in presence of accused and his counsel and accused has taken a plea that jacket did not belong to him and planted on him but the same was categorically denied by complainant, panch witness and Raid Officer. CC No. 72/2006 Page No. 28 of 47
State V/s Jai Bhagwan Kataria Accused examined his brother Satish Kataria (DW-5) to show that he was wearing coat and tie at the time of incident and not jacket. DW-5 deposed that on 31.1.06 he was called by Investigating Officer of this case at Anti Corruption Branch and he reached there at 7:00PM and there he was handed over one coat, watch, tie, ring and mobile phone of his brother Jai Bhagwan Kataria. In his cross-examination he admitted that arrest memo Ex.PW4/F bears his signature. In fact his signatures were obtained on the arrest memo just to inform him about the arrest of the accused. The personal search memo of the accused was prepared and the same is Ex.PW4/G which shows that a black purse pertaining Rs.3000/- and one ID card of the accused was recovered from his personal search. This witness has deposed falsely that the coat and tie of the accused was handed over to him. In fact it was proved beyond doubt from the statement of complainant, panch witness and raid officer that accused was wearing jacket Ex. P-12 at the time of incident. 27 Ld. counsel for accused submitted that mere recovery of money divested from circumstances under which it was paid is not sufficient to convict the accused. In support of his contention he has referred to case of Anand Swroop V/s State 1988 Crl. L. J. 756, Surajmal V/s State of Delhi AIR 1979 SC 1048 , Bansi Lal Yadav V/s State of Bihar (1981) 3 SCC 69, Ved Parkash V/s State of H. P II 1998 CCR, 17. I do not find any force in the submission of ld. defence counsel . It is not a case of mere recovery of bribe amount from the accused. In this case it is proved from the statement of complainant and panch CC No. 72/2006 Page No. 29 of 47 State V/s Jai Bhagwan Kataria witness that accused categorically demanded the bribe amount and accepted the bribe amount and thereafter counted the bribe amount with his both hands and then kept the same in the right pocket of his jacket. 28 Though it is proved from the statement of complainant and panch witness that accused demanded and accepted the bribe amount even otherwise when the bribe amount is recovered from the accused it is for the accused to explain that money received by him was not illegal gratification. Here it is useful to refer to Three Judge Bench of Hon'ble Supreme Court in Raghubir Singh V/s State of Haryana AIR 1974 SC 1516 wherein it was held that the very fact that the accused was in possession of marked currency notes against the allegations that he demanded and received the amount is 'res ipsa-loquitur." 29 In fact in Sita Ram V/s State of Rajasthan AIR 1975 Supreme Court 1432 and Surajmal V/s State AIR 1979 Supreme Court 1408 it was held that mere recovery of GC notes has no relevance. The matter regarding presumption u/s 20 of the Prevention of Corruption Act came up before the Four Judge Bench of Hon'ble Supreme Court in case of Dhanwant Rai Balwant Rai Desai V/s State AIR 1964 Supreme Court 575 considered this fact and held as under:-
Therefore, the court has no choice in the matter, once it is established that the accused person has received a sum of money which was not due to him as a legal remuneration. Of course, it is open to that person to show that though that money was not due to him as legal remuneration, it was legally due to CC No. 72/2006 Page No. 30 of 47 State V/s Jai Bhagwan Kataria him in some other manner or that he had received it under a transaction or an arrangement which was lawful. The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words ' unless the contrary is proved ' which occurs in this provision make it clear that the presumption has to be rebutted by ' proof ' and not by a mere explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted. Something more than raising a reasonable probability, is required for rebutting a presumption of law. The bare word of the appellant is not enough and it was necessary for him to show that upon the established practice his explanation was so probable that a prudent man, ought in the circumstances, to have accepted it."(emphasis supplied ).
30 It is also useful to refer to the decision of Hon'ble Supreme Court in case of M. Narsinga Rao V/s State of A.P. 2001 (1 ) SCC 691 rendered by Three Hon'ble Judges of Supreme Court . In that case accused demanded a bribe of Rs. 500/- from a milk transporting contractor for recommending the payment of an amount due to the CC No. 72/2006 Page No. 31 of 47 State V/s Jai Bhagwan Kataria contractor. The accused was caught red handed while accepting the bribe amount. Accused took the plea that currency notes were stuffed into his pocket. During trial complainant and panch witness did not support the prosecution case and it was argued before Hon'ble High Court that it is not possible to draw any presumption against the delinquent public servant in the absence of direct evidence to show that the public servant demand bribe. The Hon'ble High Court held as under :-
"It is true that there is no direct evidence in this case that the accused demanded and accepted the money. But the rest of the evidence and the circumstances are sufficient to establish that the accused had accepted the amount and that gives rise to a presumption under Section 20 of the Prevention of Corruption Act that he accepted the same as illegal gratification, particularly so, when the defence theory put forth is not accepted."
31 The Hon'ble Supreme Court up held the view taken by the Hon'ble High Court. The Hon'ble Supreme Court also discussed the case of Sita Ram V/s State of Rajasthan 1975 Supreme Court 1432 Suraj Mal V/s State AIR 1979 Supreme Court 1408 and held that there is no case of the accused that the said amount was received by him as the amount which he was legally entitled to receive or collect from complainant. It was held in State of AP V/s Kommaraju Gopala Krishna Murthy 2000 ( 9 ) SCC 752 that when amount is found to have been passed to the public servant the burden is on public servant to CC No. 72/2006 Page No. 32 of 47 State V/s Jai Bhagwan Kataria establish that it was not by way of illegal gratification. That burden was not discharged by the accused.
32 It is submitted by ld defence counsel that is is unusual for a bribe taker to count the bribe amount and also unnatural for a person to accept the bribe amount in presence of stranger. He has referred to the case of 1998 Crl. L. J. 3155 and AIR 1987 SC 2420. It was so stated by the Hon'ble High Court and the Hon'ble Supreme Court in the aforesaid cases in peculiar facts and circumstances of those case. It is not stated by Hon'ble Supreme Court and Hon'ble High Court that in no case the bribe taker would count the money or would not count the money in presence of stranger. It is significant to note that in this case the bribe amount was accepted by the accused from the complainant when accused was all alone in his room. PW4 categorically stated in cross examination that at the time when accused accepted the bribe amount no body else from the office of accused was present. Similarly complainant in his cross examination stated that at that time only accused was present and no body else. So when accused accepted the bribe amount he was alone and no body else was present there and in order to ensure that complainant had given the demanded amount or not the accused had counted the GC notes.
33 It is submitted by ld defence counsel that panch witness was a stock witness. He was not an independent witness. He along with written arguments submitted some information obtained by him as to how many time Mr. Ajay Kumar Tripathi was assigned duty as panch witness CC No. 72/2006 Page No. 33 of 47 State V/s Jai Bhagwan Kataria and as per the information received by him Mr. Ajay Kumar Tripathi was assigned duty of panch witness on 6.9.2004, 8.1.2005, 7.5.2005, 29.9.2005, 31.1.2006 and 14.5.2007. It is submitted by him that this shows that panch witness was well known to the officials of Anti Corruption Branch and he was their preferred witness hence he ceases to be independent witness. He has referred to case of G. V. Nanjundiah V/s State of Delhi AIR 1987 Supreme Court 2404. In that case both he panch witnesses i.e one Mr. R. N. Khanna and Mr. R. L. Verma were working in the same office and Mr. R. N. Khanna admitted in his cross examination that he had earlier joined 3-4 such raids for the traps organized by CBI and both those panch witnesses were called by DSP from their office for the purpose of trap case for being a trap witness. The facts of that case were entirely different. Here in this case PW4 panch witness was not called by the Raid Officer from his office. He was already there in the office of Anti Corruption Branch on duty as a panch witness as per roaster. He was assigned that duty on 28.12.2005 to be panch witness on 31.1.2006. In fact in Anti Corruption Branch list of the persons who are to be panch witnesses are sent by their respective departments in advance and as per the list of January 2006 which is also sought by accused under RTI and is filed along with written arguments for the month of January 2006 there were 31 persons who are on duty as panch witness. On every date different person was on duty as a panch witness. The information which was sought by the accused under RTI regarding the dates on which PW4 was on duty itself shows that he was sent on CC No. 72/2006 Page No. 34 of 47 State V/s Jai Bhagwan Kataria duty after a gap of 4-5 months. The panch witnesses are drawn from different offices and it is not in the hand of Raid Officer to ask for panch witness by name. In the case cited by ld. defence counsel the pan ch witnesses were called by the Raid Officer itself from their department. Panch witness in his cross examination deposed that he joined as panch witness in one another case and he reported to Anti Corruption Branch as per duty roaster. It is not that he was joined as panch witness on all the dates when he was put on duty. He joined as a panch witness in one another case apart from this case. It was not within his power to ask for duty as panch witness. He happened to be there on account of duty roaster. It is a matter of chance as to who happens to be on duty as per roaster. By any stretch of imagination such witness cannot be termed as an interested witness and not independent witness. 34 It is submitted by ld defence counsel that panch witness is a fourth Class employee and his statement cannot be believed. I do not know from where ld defence counsel gathered that PW4 Sh. Ajay Kumar Tripathi is a fourth class employee. At the time of givinkg of statement Mr. Tripathi was working Oil Ghani Mistry ( OGM ) in the Ministry of Udyog Sadan. He is a technical person and cannot be termed as fourth class employee. Even otherwise there is no law that statement of fourth class employee cannot be believed. Here it is relevant to refer to the case of Kishan Chand Mangal V/s State of Rajasthan 1983 Crimes 20 ( SC ). In that case the two panch witnesses were clerks and it was argued that panch witnesses being petty clerks and it would be unwise and dangerous CC No. 72/2006 Page No. 35 of 47 State V/s Jai Bhagwan Kataria to place implicit reliance on their testimony. The Hon'ble Supreme Court held as under :-
It is unfortunate that thirty five years after independence and in this age of common man, there is still not the eclipse of high brow. Sanctity of word made dependent upon the office held or wealth acquired is a nauseating phenomenon. Truth is neither the monopoly nor the preserve of the affluent or of highly placed persons. In a country renunciation is worshipped and the grandeur and wild display of wealth frowned upon, it would be the travesty of truth if persons coming from humble origin and belonging to office wise, wealth wise lower strata of society are to be disbelieved or rejected as unworthy of belief solely on the ground of their humble position in society, the converse unfortunately appears to be true.
35 It is submitted by ld defence counsel that as per rukka Ex. PW9/A the same was sent to Anti Corruption Branch through head constable Nand Kumar at 1.25 PM. However Raid Officer stated that rukka was sent at 4.30 PM and on the basis of this rukka FIR was registered at 6.30 PM and Investigating Officer received the FIR at 8.25 PM. It is submitted by him that complainant stated that entire team left the spot after 30-35 minutes. Ex. PW9/A no where provides that rukka was sent at 1.25 PM. It is specifically stated in Ex. PW9/A that the date of incident is 31.1.2006 and the time is 1.25 PM and rukka was sent at 4.30 CC No. 72/2006 Page No. 36 of 47 State V/s Jai Bhagwan Kataria PM. In the rukka Ex. PW9/A 1.25 PM depicts the time of incident and the time of sending of rukka is 4.30 PM. It is further submitted by ld defence counsel that in this case FIR was registered after completion of investigation and raid and in such circumstances FIR looses its sanctity. He has referred to 1981 Crl. L. J. 1691. It is significant to note that complainant went to Anti Corruption Branch and gave complaint Ex. PW4/A regarding demand of bribe by the accused and that complaint was duly recorded. Pre raid proceedings were conducted. Complainant, panch witness and Raid Officer categorically deposed about the pre raid proceedings and their statements virtually remained unchallenged in this regard. The raids are conducted in total secrecy . After the apprehension of accused the rukka was prepared and on the basis of that rukka the FIR was registered. It is not necessary to register the FIR before proceeding for raid. Here it is useful to refer to the case of Sanjay Poddar V/s CBI 103 ( 2003 ) DLT 801. In that case it was held by the Hon'ble High Court after referring to State of UP V/s Bhagwant Kishore Joshi 1964 Criminal Law Journal 140 (SC), P. Sirajuddin V/s State of Madras 1971 Criminal Law Journal 523 ( SC ), State of Haryana V/s Bhajan Lal 1992 Criminal Law Journal 527 ( SC) that in the absence of any prohibition in the Criminal :Procedure Code, express or implied it is open to the police officer to make preliminary inquiries before registering an offence and making a full scale investigation. In Sirajuddin 's case ( supra ) the Hon'ble Supreme Court while considering the case of registration of FIR against a public servant, was of opinion that before an FIR is lodged CC No. 72/2006 Page No. 37 of 47 State V/s Jai Bhagwan Kataria against such an individual there must be some suitable preliminary investigation of the allegations made by the responsible officer . The Hon'ble Supreme Court warned the danger of registering an FIR straight way as " such a report would do in calculable harm not only to the officer in particular but the to department he belong. "
36 It is submitted by ld defence counsel that there is lot of contradiction in the statement of complainant, panch witness and Raid Officer. Along with the written submission he filed annexure F detailing the contradictions in the statement of complainant, panch witness and Raid Officer . For instance he has pointed out that complainant deposed that he reached Anti Corruption Branch on 31.1.06 at about 8.45/9.00 AM whereas panch witness deposed that complainant come at 9.40 AM and Raid Officer deposed that complainant came at 9.30 AM. The complainant deposed that complaint was regarding sewa pani and accused demanded Rs. 2500/- for re engaging his tanker whereas panch witness deposed that complaint was regarding demand of bribe for re engaging of tanker and Raid Officer deposed that complaint was regarding demand of Rs. 2500/- by Jai Bhagwan Kataria for engaging the tanker. Complainant deposed that they reached DJB office at 11.00/1200 noon. Panch witness deposed that they reached about 1200 noon and Raid Officer deposed that they reached at about 1200 noon. Regarding passing of money complainant deposed that he inquired from the accused about his work and then accused in turn asked if he had done whatever was told by him to him and he replied in affirmative and thereafter passed CC No. 72/2006 Page No. 38 of 47 State V/s Jai Bhagwan Kataria the GC notes to the accused whereas panch witness deposed that complainant inquired from the accused about his work and accused inquired from him whether he had gone what was required him to do. The contradictions pointed out by ld defence counsel cannot be termed as contradiction in strict sense. The contradictions means a contrary version given by a witness. For instance A says his complaint was recorded by B an inspector in presence of C an independent witness and C says that in his presence A never came and his complaint was never recorded. Slight variations in time does not amount to contradiction at all. It is appropriate to look at the law laid down by the Hon'ble Supreme Court regarding contradictions in case of Bharuda Broginbhai Harjibhai V/s State of Gujrat AIR 1983 SC 753 wherein it was held that discrepancies which do not go to the root of the matter and shake the basic version of the prosecution should not be attached undue importance. Their Lordships have enumerated following reasons for arriving at this conclusion:-
" By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
2 Ordinarily, it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. Thus mental faculties, CC No. 72/2006 Page No. 39 of 47 State V/s Jai Bhagwan Kataria therefore, cannot be expected to be attuned to absorb the details.
3 The powers of observance differ from person to person, what one may notice, another may not. An object or movement might emboss image on one person's mind, whereas it might go unnoticed on the part of another.
4 By and large people cannot accurately recall a conversation and reproduce the very words used by them on heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder.
5 In regard to exact time of an incident or the time duration of an occurrence, usually, people make their estimates by guess-work at spur of moment, at the time of interrogation and one cannot expect people make very precise or reliable estimates in such matters. Again, it depends upon the time-sense of individuals which varies from person to person.
6 Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
7 A witness though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and CC No. 72/2006 Page No. 40 of 47 State V/s Jai Bhagwan Kataria out of nervousness mix-up facts, get confused regarding sequence of events, or fill up details of imagination at the spur of moment. The sub-
conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved, though the witness is giving a truthful and honest account of the occurrence witnessed by him, perhaps it is a sort of psychological moment."
37 Hon'ble Supreme Court has very appropriately held that by and large a person cannot recalled a conversation and reproduced the very words used by them or heard by them. They can only recall the main purport of conversation and it is unrealistic to expect a witness to be a human take recorder. There is no contradiction in the statement of complainant, panch witness and Raid Officer. As discussed above statement of complainant is fully corroborated by panch witness regarding demand acceptance and recovery of bribe amount. The minor contradictions pointed by ld defence counsel are totally insignificant and likely to occur with the passage of time. The conduct of the accused is very material. Complainant and panch witness categorically deposed that when Raid Officer challenged the accused about the acceptance of the bribe amount accused became perplexed. Raid Officer also deposed that when he challenged the accused about the acceptance of bribe amount he became perplexed. Accused did not give any explanation about the acceptance of the bribe amount or about the recovery of bribe amount CC No. 72/2006 Page No. 41 of 47 State V/s Jai Bhagwan Kataria from him. Here it is useful to refer to the judgment of the Apex Court reported as Parkash Chand V Delhi Admn. AIR 1979 SC 400 wherein in para 8 of the judgment Their Lordships observed as under :-
It was contended by the ld. Counsel for the appellant that the evidence relating to the conduct of the accused when challenged by the Inspector was inadmissible as it was hit by section 162 Criminal Procedure Code. He relied on a decision of the Andhra Pradesh High Court in D. V. Narisimhan V. State, ( AIR 1969 Andh Pra 271 ) . We do not agree with the submissions of Sh. Anthony. There is a clear distinction between the conduct of a person against whom an offence is alleged which is admissible under section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a Police Officer in the course of an investigation which is hit by sec. 162 Criminal Procedure Code. What is excluded by Sec. 162 Criminal Procedure Code is the statement made to a police officer in the course of investigation and not the evidence relating to the conduct of an accused person ( not amounting to a statement) when confronted or questioned by a police officer during the course of an investigation. For example, the evidence of the circumstances, simpliciter, that an accused person led a police officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, u/s 8 of the CC No. 72/2006 Page No. 42 of 47 State V/s Jai Bhagwan Kataria Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act ( vide Himachal Pradesh Administration Vs. Om Parkash AIR 1972 SC 975)
38 The case of the accused is of total denial. It is submitted by ld defence counsel that complainant is not a person of good character rather he is a known criminal and in order to settle score with the accused he has filed the false complaint. His plea is that he was falsely implicated by the complainant because he made a complaint against him is of no relevance as he was caught red handed while demanding and accepting the bribe from the complainant. Accused in his defence examined ten witnesses. DW1 K. N. Jha deposed that complainant contested a Lok Sabha Election and he filed an affidavit before Election Commission. That affidavit shows that complainant was involved in case FIR No. 262/2006 u/s 365/384/34 IPC, FIR No. 208/07 U/s 323, 341, 427 and 506 IPC, FIR No. 302/07 U/s 30 Arms Act, FIR No. 378/08 u/s 307/506 IPC. It is true that as per the affidavit furnished by the complainant before the election commission complainant is involved in aforesaid case but in cross examination complainant was confronted only with case u/s 30 Arms Act which was regarding handing over his license weapon to his friend Amit Kumar. In these proceedings the character of the complainant is not involved. Simply because the complainant is involved in number of cases does not mean that any body can get extract illegal gratification from him CC No. 72/2006 Page No. 43 of 47 State V/s Jai Bhagwan Kataria and if he make a complaint against demand of bribe from him he would not be believed because he is involved in criminal cases. The evidence of this witness is of no relevance so far as this case is concerned 39 DW2 proved that telephone no. 25954182 was installed at H. No. 990 Kanjhwala and same is in the name of one Smt. Prem Wati Kataria. Statement of this witness has no relevance. 40 DW3 head constable Pardeep Kumar proved that license Ex. DW3/A of revolver was granted to one Sudesh s/o late Umed Singh. Again it has no relevance.
41 DW4 head constable Main Singh proved case FIR No.302/07 which is already detailed in the statement of DW1. DW5 is brother of the accused whose testimony is already discussed. 42 DW6 is Mukesh Rai . His statement has already been discussed in detail. DW7 K. K. Vashist proved the letter Ex. DW6/DA regarding the apology tendered by complainant. Complainant stated that he was forced to write this apology. He further stated that accused used to harass him. DW8 constable Rajesh proved FIR No. 208/07 which is already detailed. PW9 is Nodal Officer of Bhartiya Airtel. He was asked to prove call details in respect of mobile phone of complainant, accused and Raid Officer but since call details pertains to the year 2006 hence they were destroyed as per the policy. DW10 S. S. Rana is draftman who alleged to have prepared site plan of the spot. Again his testimony is of no relevance as it is proved from the testimony of complainant and trap witness that bribe amount was accepted by the accused in room no. 113. CC No. 72/2006 Page No. 44 of 47
State V/s Jai Bhagwan Kataria It was no where suggested to the complainant, panch witness and Raid Officer that at that time accused was not present in room no. 113 of his office.
43 To recapitulate it is proved from the statement of complainant and panch witness that when they met accused in room no. 113 complainant inquired from the accused about his work and accused demanded bribe from the complainant. Thereafter complainant took out the bribe amount from his pocket and handed over to the accused . Accused counted the bribe amount with his both hands and thereafter kept the same in right pocket of his jacket. The bribe amount was recovered from right pocket of jacket of accused by panch witness in presence of complainant and Raid Officer. The wash of right hand and left hand of accused were taken separately which turned pink. The wash of right pocket of jacket of accused was also which also turned pink. FSL report gave positive test for phenolphthalein powder. 44 In view of detailed discussion above I am of the view that prosecution is able to prove its case against accused Jai Bhagwan Kataria beyond all reasonable doubts. Accused Jai Bhagwan Kataria is accordingly held guilty and convicted for committing offences U/s 7 and 13 (1 ) (d) punishable U/s 13 (2 ) of Prevention of Corruption Act, 1988. Let he be heard on the point of sentence.
Announced in the open court on this 27th July, 2010.
( A. S. YADAV ) SPECIAL JUDGE DELHI CC No. 72/2006 Page No. 45 of 47 State V/s Jai Bhagwan Kataria IN THE COURT OF SH. A. S. YADAV SPECIAL JUDGE DELHI C C No. 72/2006 State V/s Jai Bhagwan Kataria, s/o Sh. Sube Singh, r/o H. No. 478, V&PO, Khanjhawala Teen Pana Delhi-81 F. I. R No. : 08/2006 Under Section : 7/13 of Prevention of Corruption Act.
Police Station : Anti Corruption Branch ORDER ON SENTENCE
I have heard Sh. Alok Saxena Addl. Public Prosecutor for the State and Sh. S. K. Bhagnagar, Advocate for the convict (who is present from custody) on the point of sentence.
2 Ld. counsel for the convict submits that the convict is aged 55 years and has to support his wife, son and daughter of marriageable age and he is the sole bread earner of his family. He further submits that he has to support family of his younger brother also who unfortunately died. It is prayed that a lenient view be taken on the point of sentence. 3 Ld. Addl. Public Prosecutor states that the convict does not deserve any leniency because there is rampant corruption amongst public servants and to curb this evil, deterrent punishment should be imposed. 4 After having heard both the sides and upon perusal of the record, I find that it is difficult to accept the prayer of the convict that a CC No. 72/2006 Page No. 46 of 47 State V/s Jai Bhagwan Kataria lenient view be taken in this case. Corruption is rampant in this country, that it requires all possible measures to remove the same from the polity. Today, it seems that honesty is a very rare need. Very few person muster the courage to report the matter regarding demand of bribe. Otherwise, under compulsion they are forced to pay the same. With the result, bribe takers virtually have no fear. No leniency is to be shown to such offenders.
5 Keeping in view the facts and circumstances of this case, I sentence convict Jai Bhagwan Kataria s/o Sh. Sube Singh to undergo RI for a period of three years & six months and a fine of Rs. 15,000/- (Rs. fifteen thousand) u/s 7 of the Prevention of Corruption Act, 1988 and in default of payment of fine, convict shall undergo SI for a period of three months. Convict is further sentenced to undergo RI for a period of three years & six months and a fine of Rs. 15,000/- (Rs. fifteen thousand) u/s 13 (2) of the Prevention of Corruption Act, 1988 and in default of payment of fine, convict shall further undergo SI for a period of three months. Both the sentences shall run concurrently and the convict shall be entitled to benefit under section 428 Cr. P.C. 6 A duly attested copy of the judgment and this order be supplied to the convict free of costs and thereafter file be consigned to the record room.
Announced in the open court on this 28th day of July, 2010.
( A. S. YADAV ) SPECIAL JUDGE DELHI CC No. 72/2006 Page No. 47 of 47