Delhi District Court
The Case Of Sunil Kumar Sharma vs . State (Cbi) 139 (2007) Dlt 407 on 31 July, 2010
1
IN THE COURT OF SH. PADAM KANT SAXENA:
SPECIAL JUDGE-IV, (PC ACT) CBI: DELHI.
CC No. 48/2004(Old)
CC NO.15/2008 (New)
Unique I.D. No.02401R0066212002
CBI
Versus
Sh. O.P. Chhabra
S/O Shri Daulat Ram Chhabra
R/o 8A, New Colony (Near Telephone Exchange),
Railway Road, Sonepat (Haryana)
Sr. Accounts Officer (TR),
Mahanagar Telephone Nigam Ltd,,
ISBT, Kashmiri Gate, Delhi-110 006. ...Accused.
Case arising out of:
FIR No. RC58(A)/98-DLI
Dated 14.10.1998
Date of FIR : 14.10.1998
Date of Institution : 04.01.1999
Date of Final Arguments : 27.07.2010
Date of Judgment : 31.07.2010
Case is more than 10 years old.
JUDGMENT:
1. The FIR in question Ex.PW7/A (D-1) had been CC No. 15/2008 1 Of 22 2 registered on the basis of the complaint Ex.PW2/B (D-2). The investigation was entrusted to Inspector Vivek Dhir (PW 7). After completion of the investigation, the charge sheet in question came to be filed against the accused for his trial for commission of offences under Section 7 and 13 (1) (d) r/w 13 (2) of Prevention of Corruption Act, 1988 (for short 'the Act').
2. After appearance of the accused, arguments on charge were heard and on 07.12.2000, charge was framed against the present accused for commission of the aforesaid offences to which he pleaded not guilty and claimed trial.
3. In support of its case, prosecution has examined nine witnesses in all whereafter prosecution evidence stood closed.
4. Thereafter statement of the accused was recorded under Section 313 Cr.P.C., 1973, wherein he pleaded false implication.
5. Accused has examined five witnesses in all in support of his defence.
6. I have heard Shri Mohd. Shakeel, ld. PP for CBI, Sh. Ravi Bassi, ld. defence counsel and have gone through the records carefully.
7. On the basis of the materials available on record of this case, let us try to find out whether prosecution has been able to bring home the guilt of the accused, beyond reasonable doubts or not.
8. In order to hold the accused liable and punishable, in respect of an offence under Section 7 of the Act, prosecution has to prove the following facts:-
(i) that the accused at the time of the offence was or expected to be, a 'Public Servant',
(ii) that he accepted, or obtained, or agreed to accept, or attempted to obtain from some person a gratification, CC No. 15/2008 2 Of 22 3
(iii) that such gratification was not a legal remuneration due to him; and
(iv) that he accepted the gratification in question as a motive or reward, for
(a) doing or forbearing to do an official act; or
(b) showing or forbearing to show favour or disfavour to someone in the exercise of his official functions; or
(c) rendering, or attempting to render, any service or disservice to someone, with the Central or any State Government or Parliament or the Legislature of any State or with any 'Public Servant'.
9. The other offending provision of the Act for violation of which the accused has been charged is Section 13 (1) (d) and the necessary ingredients of the said provisions are as follows:
"(i) that the accused should have been a 'Public Servant';
(ii) that he should have used corrupt or illegal means or otherwise abused his position as 'Public Servant';
(iii) that he should have obtained valuable thing or pecuniary advantage for himself or for any other person.
10. It has been observed by Hon'ble Delhi High Court in the case of Sunil Kumar Sharma Vs. State (CBI) 139 (2007) DLT 407 relied upon by ld. defence counsel that all cases of corruption have two important aspects and they are (i) demand and (ii) acceptance. Unless demand and acceptance of illegal gratification by the public servant charged with under the Act are proved by the prosecution beyond doubt, the presumption provided for in Section 20 of the Act cannot be drawn. Three cardinal principles of criminal jurisprudence are well settled and they are as follows:-
i) that the onus lies affirmatively on the prosecution to prove CC No. 15/2008 3 Of 22 4 its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defence version while proving its case:
ii) that in a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty: and
iii) that the said onus of the prosecution never shifts.
1. According to the prosecution on 13.10.1998, accused was working as Sr. Accounts Officer, MTNL, Kashmere Gate, New Delhi and as such was a 'Public Servant' within the meaning of the said term as defined in Section 2 (c) of the Act. In this regard, there is oral evidence of PW 3 Shri A. Prasad and PW 4 Shri Dinesh Pratap, wherein it was deposed to by them that at the relevant time accused was working as Sr. Accounts Officer in MTNL, Kashmere Gate, New Delhi. Accused also admitted this fact in his statement under Section 313 Cr.P.C., 1973. Even during the course of arguments, it was admitted again by ld. defence counsel that at the relevant time, accused was a 'Public Servant' within the meaning of Section 2(c) of the Act. Hence, no further discussion on this point is called for. I therefore hold that at the relevant time, accused was a 'Public Servant' within the meaning of Section 2(c) of the Act.
2. In the present case, for prosecution of accused, a 'Public Servant', Sanction was granted by PW 3 Shri A. Prasad, Member (Finance) and Secretary to Govt. of India, Department of Telecom, New Delhi in exercise of his power under Section 19 of the Act. Relevant Sanction order is Ex.PW 3/A. This order ex-facie shows that detailed facts of the present case have been mentioned therein. Even the Sanctioning Authority PW 3 Shri A. Prasad entered the witness box & categorically deposed that he had accorded the sanction after applying his mind to the facts & circumstances of the case. During the course of CC No. 15/2008 4 Of 22 5 arguments, ld. defence counsel candidly admitted that the Sanction Order Ex.PW3/A in question is valid in the eyes of law and he is not challenging the same. Hence, it is held that Sanction Order Ex.PW3/A is valid in the eyes of law.
3. Ld. defence counsel has invited my attention to Complaint Ex.PW2/B (D-2) dated 14.10.1998 and submitted that admittedly, this was the first trap case of PW 7 Vivek Dhir and therefore, he wanted to make it a success.
4. In my view, accused cannot be straightaway acquitted merely because this was the first trap case of PW 7 Inspector Vivek Dhir. To expect success in the maiden venture is nothing but a reasonable expectation. But by no stretch of imagination an accused can claim an acquittal solely on this ground.
5. The other submission of ld. defence counsel is that PW 2 Shri Praveen Gupta, the bribe giver is an accomplice and therefore, in the absence of sufficient corroboration, accused is entitled to benefit of doubt as also the acquittal. In cases under the Act the complainant is the person who gives the bribe in a technical and legal sense because in every trap case wherever the complaint is filed, there must be a person who has to give money to the accused which in fact is the bribe money which is demanded and without such a giving the trap cannot succeed. When there is such a demand by the public servant from person who is unwilling and if to do public good approaches the authorities and lodges complaint then in order that the trap succeeds, he has to give the money. There could be another type of bribe giver who is always willing to give money in order to get his work done and having got the work done he may send a complaint. Here he is a particeps criminis in respect of the crime committed and thus is an accomplice. Thus there are grades and grades of accomplices and therefore a distinction could as well be drawn between CC No. 15/2008 5 Of 22 6 cases where a person offers a bribe to achieve his own purpose and where one is forced to offer bribe under a threat of loss or harm that is to say under coercion. A person who falls in this category and who becomes a party for laying a trap stands on a different footing because he is only a victim of threat or coercion to which he was subjected to. Where such witnesses fall under the category of "accomplice" by reason of their being bribe giver, in the first instance the court has to consider the degree of complicity and then look for corroboration if necessary as a rule of prudence. The extent and nature of corroboration that may be needed in a case may vary having regard to the facts and circumstances. This has been so held by the Apex Court in the case of M.O. Shamsudhin Vs. State of Kerala JT1995 (3) S.C.367. In view of this settled legal position, PW 2 Shri Praveen Gupta, the complainant is only a victim of the crime and not an accomplice and argument of ld. defence counsel to the contrary is therefore rejected. Hon'ble Delhi High Court in the case of Sunil Kumar Sharma Vs. State (Supra) had observed that in view of the latest trend of the Supreme Court in its judgments particularly in State of U.P. Vs. Zakaullah 1998 S.C.C. Cr.456, the complainant's evidence does not require any corroboration and the Court can act upon the testimony of the complainant provided the same is trustworthy to be acted upon.
6. Yet, another argument advanced is that both public witnesses viz. PW 5 Ramesh Chand Meena and PW 9 Satbir turned hostile during the course of the trial and therefore there is a prayer that their depositions should be discarded altogether from the zone of consideration. It is well settled that if a witness turns hostile and is cross- examined and contradicted, even then part of his testimony which is in accordance with evidence on record may be relied upon. (Per Jagir Singh Vs. State 1975 Cri. L. J. 1980).
CC No. 15/2008 6 Of 22 7
7. Hon'ble Supreme Court in the case of State of U.P. Vs. Dr. G.K. Ghosh AIR 1984 S.C. 1453 had held that in case of an offence of demanding and accepting illegal gratification, depending on the circumstances of the case, the Court may feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the police officers even if the trap witnesses turn hostile or are found not to be independent. When besides such evidence there is circumstantial evidence which is consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty in upholding the prosecution case.
8. Ld. defence counsel also claims that on 14.10.1998, father of PW 2 Shri Praveen Gupta, the complainant, as per his own admission was with him but significantly, he i.e. the father has not been cited as a witness. Therefore, relying upon the judgment in the case of Sunil Kumar Sharma Vs. State (Supra) it is submitted that withholding father of the complainant creates a serious doubt in the story of the prosecution. On this ground also, there is a prayer for acquittal of the accused.
9. It is significant to note that PW 2 Shri Praveen Gupta, the complainant in his examination-in-chief appearing on Page No. 29 categorically testified that his father remained outside while he along with PW Meena, went inside the room of the accused. Yet again during the course of his cross-examination, PW 2 Shri Praveen Gupta, the complainant interalia deposed that his father was not present during the trap proceedings. So, this means that even as per prosecution, father of the complainant was not present at the time of initial demand of bribe or the actual trap proceedings. In view of these peculiar facts, non-examination of father of PW 2 Shri Praveen Gupta, the complainant is not material and the present case is clearly distinguishable on its own facts from the facts CC No. 15/2008 7 Of 22 8 of the case of Sunil Kumar Sharma Vs. State (Supra) relied upon by ld. defence counsel wherein, the withheld witnesses had actually witnessed the trap proceedings.
10. Ld. defence counsel has very vociferously argued that at the time of the trap, no demand was made by the accused and therefore he is entitled to be acquitted. Reliance in this regard has been placed on a judgment of Hon'ble Madhya Pradesh High Court reported as Navkant Sharma Vs. State of Madhya Pradesh 2009(1) MP HT 492 & Hon'ble Kerala High Court reported as Cherian Lukose Vs. State of Kerala 1968 Crl. L.J. 168.
11. Also according to ld. defence counsel, prosecution has given a new twist to the entire story, which is contrary to Ex.PW2/B (D-2). Ld. defence counsel has invited my attention to the cross- examination dated 19.12.2005 of PW 2 Praveen Gupta, wherein he deposed that he had gone to the office of CBI for the first time two days before raid. So, according to ld. defence counsel it means that as per PW 2 Praveen Gupta, the demand was not made on 13.10.1998 but even earlier. The other contradiction appearing in the record of this case and which has been pointed out by ld. defence counsel is that as mentioned in Ex.PW2/B (D-2), the relevant Demand Notice Ex.PW2/A (D-14) had been received by ordinary post but PW 2 Shri Praveen Gupta, the complainant in his testimony before the Court testified that it had been received by registered post. Yet another contradiction pointed out is that the aforesaid Demand Notice Ex.PW2/A (D-14) had been received on 09.10.1998 whereas, PW 2 Shri Praveen Gupta, the complainant in his cross-examination stated that he did not remember if the said Demand Notice had been received by him in September, 1998. Ld. defence counsel also pointed out that PW 2 Shri Praveen Gupta, the complainant in his cross-examination admitted that he was aware of the fact that the CC No. 15/2008 8 Of 22 9 additional security vide the Demand Note Ex.PW4/A (D-26), photocopy of which was also proved as Ex.PW2/A (D-14) , had been demanded by MTNL for the reason that his bill was much higher than the initial security deposit amount of Rs.5000/-, whereas in Ex.PW2/B (D-2), it was mentioned that he had not understood as to why he was supposed to deposit additional amount. Yet another contradiction pointed out is that according to the case of the prosecution, the Transcriptions Ex.PW2/D (D-6) and Ex.PW2/I (D-7) were prepared at the spot on the day of the trap but PW 2 Shri Praveen Gupta, the complainant had interalia deposed in his cross-examination that the Transcripts were prepared on the next day after the raid. Hence, according to ld. defence counsel benefit of all these contradictions must go to the accused. In this regard, reliance has been placed by ld. defence counsel on a judgment of Hon'ble Delhi High Court reported as Anand Sarup Vs. State 32 (1987) DLT 20.
12. Proceeding further, yet another submission made by ld. defence counsel is that even as per evidence of PW 2 Praveen Gupta, there is a confusion about the alleged date of demand of bribe by the accused about which even I.O. is not clear. Consequently, relying upon the judgments reported as State of Madhya Pradesh Vs. Anil Kumar Verma 2007 Cri.L.J. 2919 and Kitab Singh Vs. State of Rajasthan 1999 Cri.L.J 3590, there is a prayer for acquittal of accused.
13. Also according to ld. defence counsel no inference of demand and receipt of illegal gratification can be made from the mere fact of recovery of money particularly when according to him, accused had not demanded any bribe. In this regard he has relied upon a judgment of the Apex Court reported as Banarsi Dass Vs. State of Haryana JT 2010(3) SC 552.
14. The other point submitted by ld. defence counsel is that no instruction was given by CBI Officer to PW 2 Praveen Gupta, the CC No. 15/2008 9 Of 22 10 complainant that he should pay the tainted money only when there was a demand. In the absence of such direction, the whole investigation is stated to be illegal.
15. Ld. defence counsel during the course of arguments read out to me evidence of PW 2 Praveen Gupta, recorded on 22.2.2005 to say that he being the complainant is not a reliable witness. Further, ld. defence counsel also invited my attention to various contradictions appearing in his evidence to argue that PW 2 Praveen Gupta had made substantial improvements in the Court over his previous statement Ex.PW2/DA recorded under Section 161 Cr.P.C. Therefore, his evidence is stated to be unreliable.
16. Before proceeding further, it would be useful to note that it is well settled by the Apex Court that accused is not entitled to benefit of defective investigation. It was also held that prosecution lapses cannot be allowed to become escape route of criminals. (Refer Vishveshwaran Vs. State 2003 RLR 350 SC).
17. It cannot be lost sight of that the ultimate objective of every system is to arrive at the truth, punish the guilty and protect the innocent. Role of investigative agencies and Courts is that of watch dog and not of a bloodhound. (Refer Sushil Kumar Sharma Vs. Union of India 2005 RLR S.C. 346. In Sakshi Vs. Union of India 2004 RLR S.C. NSC 90 , it was observed by the Apex Court that object of trial is to discover truth.
18. Now reverting back to the facts of the present case, according to the case of the prosecution, demand for obtaining of Rs.500/- was initially made by the accused on 13.8.1998. In this regard, PW 2 Shri Praveen Gupta, the complainant in his oral deposition inter-alia deposed that after receipt of demand notice Ex.PW2/A (D-14) when he met the accused on 13.10.1998 for extension of time, he i.e. the accused CC No. 15/2008 10 Of 22 11 demanded Rs.500/- for the said work. It may be pointed out that original of the said demand notice (D-14) Ex.PW2/A was also proved as Ex.PW4/A ( D-26). The said demand notice is dated 01.09.1998 and the last date of payment mentioned therein is 08.09.1998.
19. There are two rules of practice which must never be forgotten. First: The witness must be cross-examined on all parts of his testimony which it is intended to dispute, otherwise what the witness says in his examination-in-chief will be accepted as true. Second: The attention of the witness must be drawn to any contradiction in his statement or with any previous statement and he must be afforded an opportunity to explain. If that is not done, no argument founded on the contradiction is permissible. This had been so held by Hon'ble Delhi High Court in the case of State Vs. Meena Kumari 1986 RLR 319.
20. A perusal of the deposition of PW 2 Praveen Gupta, the complainant goes to show that he specifically testified in his sworn testimony that for extension of time beyond Diwali in respect of Demand notice Ex.PW2/A (D-14), on 13.10.1998 when he met the accused, he i.e. the accused demanded Rs.500/-. He also proved the complaint Ex.PW2/B (D-2) lodged by him with CBI, wherein also he had levelled allegation of demand of bribe of Rs.500/- on 13.10.1998 for extension of time in respect of demand notice beyond Diwali. So, this shows that evidence of PW 2 Shri Praveen Kumar Gupta, the complainant, about date of initial demand is both creditworthy and trustworthy. This witness was cross- examined at length by ld. defence counsel. During the course of arguments, various contradictions and inconsistencies appearing in his deposition were also pointed out including those mentioned above. Ld. defence counsel also pointed out that during his cross-examination PW 2 Praveen Gupta was confronted with his previous statement Ex.PW2/DA and this showed that he had made improvements over his previous CC No. 15/2008 11 Of 22 12 statement. As per the aforesaid evidence it is clear that this is not a case where no date of demand of bribe was ever mentioned. Therefore judgments in the case of State of Madhya Pradesh Vs. Anil Kumar Verma and Kitab Singh Vs. State of Rajasthan (Supra), relied upon by ld. defence counsel are not applicable and are clearly distinguishable. As held by Hon'ble Punjab & Haryana High Court in the case of Rajinder Kumar Sood Vs. State 1983 Crl.L.J. 1338 in respect of testimony of complainant in regard to demand of bribe before laying of trap, corroboration by independent witness is not necessary. In any case, as per specific evidence of PW 2 Praveen Gupta, bribe was demanded on 13.10.1998 and this is corroborated by Ex.PW2/B. So, there is no question of drawing an inference about demand of bribe. Hence, judgment in the case of Banarasi Dass (Supra), relied upon by ld. defence counsel is not applicable to the peculiar facts of the present case. The discrepancies and inconsistencies pointed out to me are of a minor nature. PW 2 Praveen Gupta consistently maintained that accused had demanded bribe amount of Rs.500/- for extension of time beyond Diwali in respect of Ex.PW2/A and stood by the averments made in Ex.PW2/B.
21. On the question of admissibility of the tape recorded conversation, it is well settled that the contemporaneous dialogue forms part of res gestae and is relevant and admissible under Section 8 of Evidence Act, 1872. In support of his arguments in this regard, ld. defence counsel relied upon the judgments of Hon'ble Bombay High Court delivered in the cases Mehendra Kumar Vs. State of Maharashtra on 24.09.1979 in Crl. Appeal No. 196/74 and State of Maharashtra Vs. Prakash Vishnurao Mane on 21.10.1975 in Crl. Appeal No. 243/73. During the course of arguments, ld. defence counsel also submitted that accused admits the contents of transcriptions Ex.PW2/D (D-6) and Ex.PW2/I (D-7).
CC No. 15/2008 12 Of 22 13
22. Proceeding further, it may be useful to note that the aforesaid pre-trap demand of bribe of Rs.500/- by accused on 13.08.1998 is corroborated by the telephonic conversation which took place between the accused and PW 2 Praveen Gupta, the complainant on 14.10.1998. In this regard it came in the deposition of PW 2 Shri Praveen Gupta, the complainant that on 14.10.1998 before proceeding for actual trap proceedings, there was a telephonic conversation between him and the accused. Further according to him, the said conversation was at the instance of Trap Laying Officer who is none other than PW 7 Inspector Vivek Dhir. Transcription of the said telephonic conversation has been proved as Ex.PW2/D. Relevant cassette Q1 was played in the Court and PW 2 Praveen Gupta, the complainant identified his voice and that of the accused in the said telephonic conversation. This has remained unchallenged in cross-examination by ld. defence counsel. PW 7 Inspector Vivek Dhir, the Trap Laying Officer also referred to this telephonic conversation and transcription. This also remained unchallenged. This took place on 14.10.1998. In this telephonic conversation, PW 2 Praveen Gupta, the complainant referred to his earlier visit on 13.10.1998 to the office of accused and stated that "arrangement of Rs.500/- had been made by him" to which accused responded by saying " Acha, Theek Hai". So, this circumstance also corroborates the stand of PW 2 Praveen Gupta, the complainant about bribe of Rs.500/- having been demanded by accused on 13.10.1998.
23. At the time of arguments with the assistance of ld. defence counsel and ld. PP for the CBI previous statement Ex.PW2/DA of PW 2 Praveen Gupta, recorded under Section 161 Cr.P.C. with which he was confronted, was perused and the facts regarding non bringing of application form and bringing of money by him i.e. PW 2 Praveen Gupta were there though in different words. In giving narrations at different CC No. 15/2008 13 Of 22 14 times, use of different words is bound to occur and not much could be made out therefrom. Mountain should not be allowed to be made out of mole hill. With all humility, I say that the judgment dated 20.01.2009 delivered by Hon'ble Delhi High Court in the case of State Vs. Ved Prakash Gupta & Others, Crl. L.P. No. 180/2007 and relied upon by ld. defence counsel is clearly distinguishable on its own facts and is of no assistance to him.
24. It is the case of CBI that on 14.10.1998, pre- trap proceedings had taken place in the office of CBI. PW 2 Praveen Gupta, the complainant deposed inter-alia that he had taken Rs.500/- i.e. 5 currency notes each of the denomination of Rs.100/- and the same were treated with some powder. Live demonstration was also given & the proceedings were recorded in Ex.PW2/C (D-3). In this regard, there is also deposition of PW 7 Inspector Vivek Dhir, Trap Laying Officer, who inter-alia deposed that the complainant Shri Parveen Gupta produced an amount of Rs.500/- in the form of 5 GC notes of Rs.100/- each in denomination. Their numbers were recorded in the Handing Over Memo. Further according to this witness, on his direction, Inspector P.K. Gunwant applied Phenolphthalein powder to the GC notes and gave practical demonstration of its reaction with solution of Sodium Carbonate by preparing a fresh Sodium Carbonate solution. It also came in his deposition that witness Satyavir Singh was directed to touch the tainted GC notes and dip his fingers in the freshly prepared colourless solution of Sodium Carbonate & when he did so, the solution turned pink. Also according to him, the said solution was thrown away. All the pre-trap proceedings were recorded in the Handing Over Memo Ex.PW2/C (D-3), which bears his signatures at point D on all the pages. So, this evidence clearly shows that on 14.10.1998, GC notes Ex.P2 to Ex.P6, which were treated with phenolphthalein powder had been kept with PW 2 Praveen CC No. 15/2008 14 Of 22 15 Gupta for being handing over the same to the accused. This must have been done with a view to obtain clinching Scientific evidence for connecting the accused with the crime in question.
25. Now, coming to the question of acceptance of bribe money by the accused, there is evidence of PW 2 Praveen Gupta.
26. Ld. defence counsel also submits that no direction was ever given by PW 7 Inspector Vivek Dhir to PW 5 Shri Ramesh Chand Meena. Hence, investigation is stated to be again defective.
27. At the cost of repetition it may be reiterated that defective investigation would straightaway not lead to acquittal of the accused.(Refer Vishveshwaran Vs. State Supra).
28. With regard to acceptance of bribe money by the accused, PW 2 Praveen Gupta, the complainant inter-alia deposed that he accompanied by shadow witness PW 5 Ramesh Chand Meena, went to the office of accused. PW 2 Praveen Gupta further deposed that in this meeting, accused demanded an application and then asked him if he had brought the money. Accused also asked PW 2 Praveen Gupta to put the money on the table. In this regard it appears that PW 2 Shri Praveen Gupta improved upon his earlier version and this is why it is not there in transcription Ex.PW2/I (D-7). The complainant also claimed to have told number of his STD and given it to accused, who wrote it down on a slip of paper. The said slip is Ex.PW2/4(D 21). In this regard, my attention has also been drawn to transcription Ex.PW 2/I(D7) wherein accused also asked the complainant 'if the amount was full/complete'. All these facts were corroborated by the cassette Q2 which was played in the Court and PW 2 Praveen Gupta identified his voice as well as that of accused recorded in the cassette Q2 as also the words spoken by them i.e. PW 2 Praveen Gupta, the complainant himself and the accused. While the relevant cassette Q2 was played in the Court at the time of arguments, at CC No. 15/2008 15 Of 22 16 place X in Ex.PW2/I name "Prem" was audible. However, significantly, in the rest of the conversation appearing in the Transcription Ex.PW2/I, name of any such "Prem" does not appear. It appears to me that as per the said admitted transcription Ex.PW2/I, accused had been admittedly talking to PW 2 Praveen Gupta, the complainant and utterance of the name "Prem" referred to the said complainant by mistake and not to peon 'Prem Singh, who was no where in the picture till then. This could be a human error and merely on account of this, it cannot be said that the recording in the said Cassette Q-2 or the said transcription Ex.PW2/I (D-
7) were tampered with particularly when PW 2 Shri Praveen Gupta, the complainant in his cross-examination categorically admitted that the said Transcription Ex.PW2/I (D-7) was correct. Aforesaid transcription Ex.PW2/I belies the oral deposition of DW 4 Prem Singh about his presence at the spot. Entire evidence of DW 4 Prem Singh is therefore liable to be rejected being an afterthought.
29. It is also the case of the prosecution that PW 2 Praveen Gupta as per direction of the accused had kept the bribe money on his table i.e. the table top of the table of the accused and thereafter went out with the shadow witness PW 5 Shri Ramesh Chand Meena to give pre-appointed signal to the remaining members of the trap team, when in their absence, accused picked up the said bribe amount / illegal gratification and kept it in the drawer of his table. In this regard there is deposition of PW 7 Inspector Vivek Dhir who in his sworn deposition inter-alia deposed that when he challenged the accused of having demanded and accepted bribe of Rs.500/- he i.e, the accused became confused and kept mum. Further according to this witness, later on accused admitted the said fact and on enquiry told that he had kept the bribe money in the middle drawer of his office table. Thereafter on his direction i.e. on direction of PW 7 Inspector Vivek Dhir, the Trap Laying CC No. 15/2008 16 Of 22 17 Officer, Inspector P.K. Gunwant prepared a colourless solution of Sodium Carbonate in a glass tumbler. It is also there in the evidence of PW 7 Inspector Vivek Dhir that fingers of both hands of accused were washed in the two said solutions of Sodium Carbonate, which had been prepared separately and which turned pink in colour. The said pink solutions were deposed to have been kept in two separate bottles, which were marked as RHW and LHW. Further, according to PW 7 Inspector Vivek Dhir, paper slips were pasted on both the said bottles containing the said pink solutions. Bottle marked as RHW was proved in the Court as Ex.PW9/A while the other bottle marked as LHW was proved as Ex.PW9/B.
30. PW 1 Shri K.S. Chabra, Sr. Scientific Officer cum Asstt. Chemical Examiner proved his report as Ex.PW1/A which has remained unchallenged and uncontroverted. Therefore, it is deemed to have been admitted as correct. As per the said admitted report Ex.PW1/A, the aforesaid bottles marked as LHW (Ex.PW9/B) and RHW (Ex.PW9/A) gave positive tests for phenolphthalein and Sodium Carbonate.
31. In view of the nature of the evidence available on record of this case, it is not necessary that the passing of bribe money to the hands of accused should be proved by direct evidence. It is well settled that passing of illegal gratification may be proved by circumstantial evidence. In the instant case, the facts & circumstances of the present case mentioned above clearly show that the aforesaid GC notes Ex.P-2 to Ex.P-6 had been kept by PW 2 Praveen Gupta on the table top of the table of the accused on his direction and when he i.e. PW 2 Praveen Gupta, the complainant went out to give signal, accused picked up the same and kept the same in the middle drawer of his table. Presence of Phenolphthalein powder on the hands of accused with which Ex.P2 to Ex.P6 had been smeared, confirms that accused had accepted/received CC No. 15/2008 17 Of 22 18 the GC notes in question in pursuance of the aforesaid initial demand. Conduct of the accused in confirming from PW2 Praveen Gupta about the bribe money being full/complete on the date of the trap i.e. 14.10.1998 as reflected in the Transcription Ex.PW2/D ( D-6), also confirms complicity of the accused in the crime in question. This evidence also ensures that evidence of PW 2 Shri Praveen Gupta, the complainant is by and large trustworthy. These circumstances clearly distinguish the present case from that which was subject matter of the judgment Ramesh Thete Vs. State of Madhya Pradesh 2010(1) MPHT 408 relied upon by ld. defence counsel.
32. In such a fact situation mentioned above presumption under Section 20 of the Act can be drawn against the accused. In this regard, I am supported by the judgments reported as Hazari Lal Vs. State AIR 1980 SC 873 and Narsinga Rao Vs. State of A.P. AIR 2001 SC 288. In Jhangan Vs. State AIR 1966 SC 1762, it was held that mere receipt of money is sufficient to raise presumption u/s 4 of Prevention of Corruption Act, 1947. A Four Judge Bench of the Apex Court in the case of Dhanvantrai Vs. State of Maharashtra AIR 1964 SC 575 observed that in order to raise the presumption under Section 4(1) of the Act what the prosecution has to prove is that the accused person had received 'gratification other than legal remuneration' and when it is shown that he had received a certain sum of money which was not a legal remuneration, then , the condition prescribed by this Section is satisfied and the presumption thereunder must be raised.
33. As regards handling of G.C. Notes Ex.P2 to Ex.P6, it is significant to note that accused explained the same by stating that while he had gone to the washroom for washing his hands after taking his lunch, PW 2 Praveen Gupta, the complainant kept the same in the drawer of his table. In this regard, during the course of arguments, my attention CC No. 15/2008 18 Of 22 19 had been drawn to his written statement dated 28.03.2008 filed on record by the accused and in view of judgments reported as C. M. Girish Babu Vs. CBI Cochin AIR 2009 S.C. 2022 and G.V. Nanjundiah Vs. State AIR 1987 S.C. 2402 , ld. defence counsel wants me to acquit the accused.
34. It is well settled, as has been held in the case of Sunil Kumar Sharma Vs. State (Supra) that the Evidence Act also does not contemplate that the accused should prove his case with the same strictness and rigour as the prosecution is required to prove a criminal charge. In fact, from the cardinal principles referred to above, it follows that it is sufficient if the accused is able to prove his case by the standard of preponderance of probabilities as envisaged by Section 5 of the Evidence Act as a result of which he succeeds not because he proves his case to the hilt but because probability of his version throws doubt on the prosecution case.
35. At the cost of repetition , it may be reiterated that according to the case of the prosecution PW 2 Praveen Gupta had kept G.C. Notes Ex.P.2 to Ex.P.6 on the table of the accused & not in the drawer of table of accused.
36. First important thing in this regard is that as per his own admission, accused was not there in his room and had gone to the washroom, then how did he i.e. the accused come to know that GC notes Ex.P-2 to Ex.P-6 had been kept by PW 2 Praveen Gupta, the complainant in the drawer of his table, particularly when PW 2 Praveen Gupta has categorically testified that he had kept the same on the table of the accused. So, plea of accused in this regard is false. Why would accused permit PW 2 Shri Praveen Gupta to keep GC notes Ex.P-2 to Ex.P-6 in the drawer of his table and not raise an alarm particularly when as per admission of DW 4 Prem he had gone during lunch time to the room of the accused to deliver Rs.600/- being price of 5 Kgs. of Desi Ghee. So, CC No. 15/2008 19 Of 22 20 this is highly improbable & falsifies defence of the accused.
37. As already stated, accused has tried to explain the handling of the said bribe money by him by putting a suggestion to PW 2 Praveen Gupta in his cross-examination to the effect that bribe money had been kept by him i.e. PW 2 Shri Praveen Gupta, in the drawer of the accused, when he had gone to wash his hands after taking his lunch. It is well settled that suggestion in cross-examination is no evidence. It was held in the case of Khimjibhai Vs. State of Gujarat 1982 Crl.LR (Gujarat) 381 relied upon in the case of Avadh Bihari Amrut Lal Vs. State of Gujarat MANU/GJ/0447/2000 that mere hurling of some such suggestions, which are denied, can hardly take the place of proof or evidence. In that case, it was specifically held that if the accused wanted to establish certain fact, he had to lead evidence on that score. It was reiterated in that case that a suggestion denied by a witness remains only a suggestion and has no evidentiary value at all. Coming back to the present case, significantly, no such suggestion was given by the accused to PW 7 Inspector Vivek Dhir, the Trap Laying Officer when he had asked him about demand and acceptance of bribe money when he initially remained mum and did not respond but later on admitted having demanded and accepted bribe. This is also reflected by Recovery Memo Ex.PW2/F (D-
8). Even PW 2 Praveen Gupta in his examination-in-chief dated 22.02.2005 appearing on Page No. 12 deposed that, at the time of apprehension accused did not give any such explanation. Such a conduct of the accused, immediately after the commission of the offence is a relevant fact and can be taken into consideration. So, the defence taken by him is an after thought. Also significantly no such plea was raised by the accused in his bail application dated 16.10.1998 moved for grant of bail, which has been marked as Ex.C1 at the time of writing the CC No. 15/2008 20 Of 22 21 judgment and is available on record, where the recovery was stated to have been planted, without any further details. This per se is vague and unclear.
38. In the present case, it appears to me that accused has tried to take contradictory stands at different stages which falsify his defence. In his bail application dated 16.10.1998 Ex.C1 filed on 17.10.1998 before Shri Ajit Bharihoke, Ld. Special Judge (as his Lordship then was), the defence taken was not that the tainted money had been kept by PW 2 Praveen Gupta in the drawer of his table but that the alleged bribe money had been planted on him. Then during the course of cross-examination of PW 2 Praveen Gupta, the complainant a suggestion was put to him to the effect that he had kept the bribe money in the drawer when accused had gone to wash his hands after lunch, which he claimed to be wrong. Significantly no witness has deposed on record that PW 2 Praveen Gupta, the complainant put the tainted money in the middle drawer of the table of the accused and in fact, according to PW 2 Praveen Gupta, on the direction of accused he kept it on the table. Then accused examined PW 4 Prem Singh in his defence, who interalia deposed that being Office Peon, on 13.10.1998 he had brought 5 Kgs of Ghee @ 120/- per Kg. for accused and on 14.10.1998 during lunch time accused had paid him Rs.600/-. Significantly, this defence of purchase of Ghee is totally silent while one goes through the written statement dated 28.03.2008 of accused marked as Ex.C 2 at the time of writing the judgment.). So, the defence instead of being probable stands falsified and is an afterthought.
39. Admittedly, the said sum of Rs.500/- was not legal remuneration of the accused but on the face of it, illegal gratification.
40. In view of the aforesaid discussion, I hold that prosecution has been able to prove its case beyond reasonable doubts CC No. 15/2008 21 Of 22 22 against the accused and therefore accused is held guilty for commission of offence under Section 7 & 13(1)(d) r/w Section 13(2) of the Act.
Announced in the (PADAM KANT SAXENA) open court today SPECIAL JUDGE-IV, CBI (PC ACT) i.e. on .31.07.2010. TIS HAZARI, DELHI CC No. 15/2008 22 Of 22