Delhi District Court
State vs . Subhash Babu Gupta on 31 August, 2012
IN THE COURT OF SHRI B.R. KEDIA, SPECIAL JUDGE07
(CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
C.C.NO. : 67/11
Unique Case ID : 02401R0692852008
STATE VS. SUBHASH BABU GUPTA
S/o Late Sh. Satya Prakash Gupta
R/o B130, Oriental Apartments,
Sector9, Rohini, Delhi.
FIR NO. : 21/2007
U/S : 7/13 of Prevention of Corruption Act,
1988
P.S. : Anti Corruption Branch, Delhi
Date of Institution 07.05.2008
Judgment reserved on 28.08.2012
Judgment delivered on 31.08.2012
JUDGMENT
1. The precise case of the prosecution is that on dated 11.04.2007 complainant Sh. Suraj Mal Sharma S/o Bholar Singh went to Anti Corruption Branch, Delhi and got lodged his complaint Ex.PW6/A regarding initial demand of bribe of Rs.2,000/, out of total C.C. No. 67/11 Page No. 1 of 53 bribe amount of Rs.5500/ by the accused Subhash Babu Gupta who was working as Dealing UDC in Hindu Rao Hospital,Delhi for getting release the balance amount of gratuity, difference of pay scale and new pension refixation of complainant.
2. The gist of the said complaint is that the complainant Suraj Mal Sharma had retired from service as Radiographer in Hindu Rao Hospital in May, 2001. As his gratuity, difference of pay scale and amount of refixation of pension was lying due in Account Branch, MCD, Hindu Rao Hospital, he had made several visits to Hindu Rao Hospital but the Dealing UDC accused Subhash Chand Gupta had not done the needful and ultimately had demanded bribe of Rs.5500/ and asked him to pay initial amount of Rs.2000/ on that day and to pay the balance bribe amount after the work was done. Since the complainant was against giving of bribe, he went to Anti Corruption Branch and got his complaint lodged before the then Inspector Sukhbir Singh, Raid Officer PW9 in presence of Panch witness Anil Kumar Kamra, PW8.
3. The further case of the prosecution is that the complainant has produced 4 GC notes of Rs. 500/ each before the Raid Officer C.C. No. 67/11 Page No. 2 of 53 PW9 who noted down the serial number of said GC notes in the pre raid proceedings Ex.PW6/B and treated the said GC notes with phenolphthalein powder. Thereafter, Raid Officer PW9 gave demonstration to the Panch witness, complainant by getting touched the right hand of the Panch witness with that treated currency notes and wash of the right hand of the Panch witness in the colourless solution of sodium carbonate which turned into pink. Thereafter, said GC notes were handed over to the complainant and Panch witness was instructed to remain close with the complainant and to overhear the conversation between the complainant and the person demanding the bribe amount and to give signal by moving his right hand over his head twice after being satisfied that the bribe has actually been given.
4. That at about 1:05 p.m., PW9 Raid Officer along with complainant, Panch witness, Inspector Mehar Singh and other members of the raiding party left Anti Corruption Branch in a government vehicle and reached Hindu Rao Hospital at about 1:20 p.m. Government vehicle was parked outside the Hospital and Inspector Mehar Singh alongwith the Driver remained in the vehicle. Complainant and Panch witness went inside the Hospital and the members of the Raiding team took suitable position. C.C. No. 67/11 Page No. 3 of 53
5. The further case of the prosecution is that after sometime, complainant, Panch witness and another person came out from the building and started taking tea under a tree infront of tea shop and thereafter at about 1:30 p.m. on getting the predetermined signal from Panch witness, Raid Officer alongwith the raiding team reached the spot where Panch witness informed that the accused had demanded and accepted bribe of Rs.2000/ from the complainant with his left hand and then kept in left pocket of his pant. Thereafter, Raid Officer after disclosing his identity challenged the accused Subhash Babu Gupta that he had demanded and accepted the bribe of Rs. 2000/ from the complainant and offered his search but accused declined. On his directions, Panch witness recovered bribe amount of Rs.2000/ from the left pocket of pant of the accused and compared the serial number of that GC notes with serial number mentioned in pre raid proceedings Ex.PW6/B and the same tallied. That recovered GC notes were taken into possession vide seizure memo Ex.PW6/C. The wash of left hand of the accused was taken in colorless solution of sodium carbonate which turned into pink and solution was transferred into two empty small clean bottles which were sealed with the seal of SS and were marked as LHWI & LHWII by pasting slips thereon which were signed by Raid Officer, complainant and Panch C.C. No. 67/11 Page No. 4 of 53 witness. Thereafter, wash of left pocket of pant of the accused was also taken in colorless solution of sodium carbonate which turned into pink and solution was transferred into two empty small clean bottles which were sealed with the seal of SS and were marked as LSPPWI & LSPPWII by pasting slips thereon which were signed by Raid Officer, complainant and Panch witness. Those bottles, pullanda of pant of accused and sample seal were taken into possession vide Seizure Memo Ex.PW6/D. The Raid Officer also drawn up the post raid proceedings which is Ex.PW6/E and prepared rukka Ex.PW9/A and sent the same through Ct. Krishan Kumar to PS Anti Corruption Branch for registration of the case.
6. The further case of the prosecution is that the Raid Officer called Inspector Mehar Chand PW14, IO at the spot and handed over him the custody of the accused, case property and relevant documents etc. for purpose of Investigation. I.O. took up the Investigation, prepared the Site Plan Ex.PW14/A. IO recorded the statement of complainant and Panch witness, interrogated the accused and arrested the accused vide Memo Ex.PW6/F and conducted the personal search of the accused vide Personal Search Memo Ex.PW6/G. IO received original rukka and copy of FIR Ex.PW11/A, got accused medically C.C. No. 67/11 Page No. 5 of 53 examined and thereafter, went to PS Civil Line where he deposited the case property, exhibits and articles of personal search with the MHC(M) and the accused was put in the lock up. During the course of Investigation, IO received Letter Ex.PW10/A alongwith copies of various documents Ex.PW10/B1 to B9 from the Administrative Officer, Hindu Rao Hospital. IO also obtained Biodata of accused Ex.PW2/A, Posting order of the accused Ex.PW2/B and Ex.PW2/C, Incomplete bills as prepared by the accused Ex.PW2/D (colly.), Leave Application of the accused w.e.f. 22.6.06 to 25.6.06 Ex.PW2/E. IO also obtained Specimen Handwriting and Signatures of the accused running into 6 pages Ex.PW12/A1 to A6 and sent the same alongwith original bills Ex.PW2/D (colly.) and Application for Leave Ex.PW2/E to FSL and subsequently obtained the FSL Report. IO also obtained the Sanction Order Ex.PW1/A. IO on recording the statement of the witnesses and after completion of the Investigation, prepared the chargesheet and filed in the court.
7. After compliance with the provision U/S 207 of Cr.P.C and after hearing both sides on the point of charge, charge for offence punishable U/S 7 and 13 (2) r/w Section 13 (1) (d) of the Prevention of Corruption Act, 1988 was framed against accused on 01.05.2009 to C.C. No. 67/11 Page No. 6 of 53 which accused pleaded not guilty and claimed trial.
8. Thereafter, in order to bring home the guilt of the accused, the prosecution got examined 14 prosecution witnesses namely Sh.Janak Digal, the then Addl. Commissioner (Health), MCD, Sanctioning Authority as PW1, Sh.Devinder Kumar, an employee from Hindu Rao Hospital, a formal witness as PW2, Ct.Yogesh Kumar who has deposited the case property at FSL, a formal witness as PW3, Ct.Kishan Kumar who took rukka and got FIR registered, a formal witness as PW4, HC Surender Kumar, the then MHC(M), PS Civil Lines, a formal witness as PW5, Suraj Mal Sharma, complainant as PW6, Ct. Mohanan A.M. who has brought the FSL Result and remnants of the exhibits from FSL, a formal witness as PW7, Anil Kumar Kamra, Panch witness as PW8, the then Inspector Sukhbir Singh, Raid Officer as PW9, Nandini Bhandari, the then Administrative Officer, Hindu Rao Hospital as PW10, SI Balkishan, the Duty Officer who has proved the copy of FIR, a formal witness as PW11, the then Inspector Heera Lal, Part IO as PW12, Dr. Deepa Verma, Assistant Director (Documents), FSL, Rohini as PW13 and Inspector Mehar Chand, IO as PW14.
C.C. No. 67/11 Page No. 7 of 53
9. After closure of the PE, statement of accused under Section 313 Cr.P.C. was recorded in which the accused denied about any demand and acceptance of the bribe from the complainant. Accused claimed to be falsely implicated in this case having no concern with the alleged offence. The accused has got examined one Shiv Kumar as DW1 and Rajesh Prasad as DW2.
10. I have heard Final Arguments as addressed by Sh. Yogesh Kumar Verma, Adv. Ld. Counsel for the accused and Sh.Vinod Kumar Sharma, Ld. Addl. PP for the State and perused the relevant record.
11. It is submitted by Ld. Counsel for the accused that this accused Subhash Babu Gupta is innocent and has neither demanded nor accepted any bribe from the complainant Suraj Mal Sharma. It is further added by him that the son of the complainant was working as Inspector in Delhi Police and through him, he has falsely implicated this accused due to malafide motive and the complainant is not reliable being interested witness and is an accomplice. It is also added by him that this accused was assigned duty for preparation of bills of difference of Pay arrear and difference of leave encashment and C.C. No. 67/11 Page No. 8 of 53 concerning difference of Pay arrear, it was calculated as Rs.8379/ out of which sum of Rs.8371/ was already paid and only Rs.8/ remained due and similarly, only sum of Rs.2150/ remained due on account of leave encashment difference and the arrears relating to gratuity and new pension refixation of the complainant was being handled by other Department and therefore, the accused was not competent to get released the arrears of the complainant and hence, there was no occasion on the part of this accused to demand and accept any bribe from the complainant. It is further added by him that when the complainant was to get arrears of Rs.2158/ from the bill handled by the accused and there was no reason as to why the accused would agree to pay initial bribe amount of Rs.2000/ and same also falsify the case of the prosecution. It is further added by him that though the complainant stated to have talked to the accused on 9.4.2007 through phone in which the accused alleged to have demanded bribe of Rs. 5500/ and asked him to bring the initial bribe amount of Rs.2000/ on 11.4.2007 but the IO has not bothered to collect phone call record of the accused and the complainant in this respect and same are fatal for the case of the prosecution. It is further added by him that the Sanction Order Ex.PW1/A concerning this accused has been passed by the Sanctioning Authority mechanically without proper application C.C. No. 67/11 Page No. 9 of 53 of his mind on the material on record as blank Sanction Order Format Ex.PW1/DA was found available in the Sanction file and therefore, the said Sanction Order is legally invalid. It is further added by him that even PW8/Anil Kumar Kamra, Panch witness has not deposed anything regarding the demand aspect of bribe as he has not heard the conversation between the accused and the complainant, so the same could not be established by the prosecution. It is further added by him that even otherwise the deposition of said PW8/Panch witness cannot be treated as trustworthy and reliable as he is a tutored witness and has deposed at the instance of the IO. It is further added by him that the hand wash of accused turning into pink colour was because of the fact that accused had shook hand with the complainant as stated by PW9/Raid Officer and therefore, the same cannot be treated as incriminating evidence as against the accused and no further explanation is required from the accused in this respect. It is further added by him that PW9/Raid Officer has admitted in his deposition that presently inner lining of the pant pocket of the accused does not appear to be pink colour and same also goes in favour of the accused. It is further added by him that the Raid Officer being a police official is interested for success of his raid and therefore, his deposition cannot be treated as trustworthy and reliable. It is also submitted by C.C. No. 67/11 Page No. 10 of 53 Ld. Counsel for the accused that despite availability of the independent public witness including the tea vendor at the spot, none of them was joined in the Raid proceedings and same is fatal for the case of the prosecution. Thus, Ld. Counsel thus urged for acquittal of this accused and referred and relied upon certain judgments: Crl. Appeal No.976/2010 K.C.Singh Vs. CBI, judgment dated 10.8.2011, 2009 (2)JCC 1210 Om Prakash Vs. State, 1999 Cr.L.J.1270, 1999 (2) CC Cases 40, Crl. Appeal No.963/2008 Prem Raj Meena Vs. CBI, judgment dated 21.2.2011, 1998 (2) JCC 69, 1994 (1) CC Cases 509 and AIR 1987 SC 689.
12. To the contrary, it is submitted by Ld. Addl. PP for the State that the prosecution by examining 14 PWs have clearly established its case as against this accused and therefore, the accused deserves to be convicted for the charged offence. It is further added by Ld. Addl. PP for the State that the prosecution has clearly established its case regarding demand and acceptance of the bribe as against this accused from the complainant through the deposition of PW6/Suraj Mal Sharma, complainant, PW8/Anil Kumar Kamra,Panch witness PW9/the then Inspector Sukhbir Singh, Raid Officer and PW14 Inspector Mehar Chand/IO and there is no reason to disbelieve them. C.C. No. 67/11 Page No. 11 of 53 It is further added by Ld. Addl. PP that there is no reason as to why PW6/Suraj Mal Sharma, complainant, PW8/Anil Kumar Kamra,Panch witness PW9/the then Inspector Sukhbir Singh, Raid Officer and PW14 Inspector Mehar Chand/IO would falsely implicate the accused specifically when there is no previous enmity as against this accused by them. It is further added by Ld. Addl. PP that the Sanctioning Authority, PW1 has passed the valid Sanction as against this accused after due appreciation of the relevant materials and therefore, there is no infirmity in the said Sanction Order Ex.PW1/A. It is further added by Ld. Addl. PP that the Sanction Order Ex.PW1/A found mentioned all the relevant particulars and is different from the Format Ex.PW1/DA and therefore, it can be of no help for the accused. It is further added by Ld. Addl. PP that the complainant had no knowledge as to who was handling the various aspects of his dues and it is the accused who was the Dealing UDC and had demanded the bribe for getting release of the dues of the complainant and as the accused has created compelling circumstances by withholding the dues, the complainant was compelled to pay the bribe to the accused. It is further added by Ld. Addl. PP that the complainant had already retired in the year 2001 and he was not having any prior enmity with the accused and therefore, there was no reason on his part to lodge C.C. No. 67/11 Page No. 12 of 53 any false complaint as against the accused after about 6 years of his retirement. It is further added by Ld. Addl. PP that the deposition of PW6/ complainant as well as PW8/Panch witness also found corroborated from the FSL Result and there is no reason to disbelieve the same. Ld. Addl. PP for the State has added that the prosecution has been successful in establishing its case as against the accused for the charged offence and hence, he deserves to be convicted.
13. The first and foremost question having significant bearing on the fate of this case is whether prosecution has proved that valid Sanction has been accorded by the Competent Authority as against this accused as per Section 19 (1) of Prevention of Corruption Act, 1988. During course of argument, it is submitted by Ld. Counsel for the accused that the Sanction Order Ex.PW1/A concerning this accused has been passed by the Sanctioning Authority mechanically without proper application of his mind on the material on record as blank Sanction Order Format Ex.PW1/DA was found available in the Sanction File and therefore, the said Sanction Order is legally invalid. Ld. Counsel for the accused referred and relied upon certain judgments: Crl. Appeal No.976/2010 K.C.Singh Vs. CBI judgment dated 10.8.2011, 2009 (2)JCC 1210 Om Prakash Vs. State, 1999 C.C. No. 67/11 Page No. 13 of 53 Cr.L.J.1270, 1999 (2) CC Cases 40. To the contrary, it is submitted by Ld. Addl. PP on behalf of the State that the Sanctioning Authority, PW1 has passed the valid Sanction as against this accused after due appreciation of the relevant materials and therefore, there is no infirmity in the said Sanction Order Ex.PW1/A. It is further added by Ld. Addl. PP that Sanction Order Ex.PW1/A found mentioned all the relevant particulars and is different from the Format Ex.PW1/DA and therefore, it can be of no help for the accused.
14. That in order to prove the Sanction concerning this accused, the prosecution has examined PW1 Sh.Janak Digal, the then Addl. Commissioner (Health), MCD, Delhi who has categorically deposed that Subhash Babu Gupta S/o Sh.S.K.Gupta who was working as LDC in Hindu Rao Hospital had allegedly demanded Rs.5500/ from the complainant Suraj Mal Sharma for releasing the balance amount pertaining to gratuity, difference of pay scale and pension refixation of Suraj Mal Sharma who retired from the post of Radiographer from Hindu Rao Hospital in 2001 and asked him to bring Rs.2000/ on 11.4.2007 and balance amount was to be paid after the work done. He has further deposed that on 11.4.2007 accused Subhash babu Gupta was caught red handed by AC Branch while demanding, accepting C.C. No. 67/11 Page No. 14 of 53 and obtaining bribe of Rs.2000/ from the said complainant in presence of Panch witness Anil Kumar Kamra. Said PW1 further deposed that as he was competent to appoint and remove the accused Subhash Babu Gupta from service/office, after carefully examining the material as placed before him in respect of said facts and allegations and circumstances of the case and after due application of mind, he has accorded the Sanction U/S 19(1) (c) of POC Act, 1988 to prosecute accused Subhash Babu Gupta vide Sanction Order Ex.PW1/A which bears his signature at point A. In the cross examination by Ld. Defence Counsel, said PW1 has added that he had perused the FIR, Raid Report, Statement of witnesses, FSL Report and some other documents. Said PW1 has added that the Sanction File as brought by him contained blank Sanction Order Format Ex.PW1/DA besides other documents but he has categorically denied the suggestion of Ld. Defence Counsel that he had accorded the Sanction without due application of mind and on the basis of Sanction Order Format. Furthermore, from the perusal of the Sanction Order Ex.PW1/A, it is also reflected that all the relevant facts concerning the allegation as against the accused have been duly found mentioned therein.
C.C. No. 67/11 Page No. 15 of 53
15. Furthermore, in the case reported as 2011 V A.D. (Delhi) 1 Kiran Pal Singh Vs. State while dealing with the similar aspect relating to Sanction in Para 6 of the Judgment, it was observed by Hon'ble Delhi High Court as under:
"It is settled legal position that draft sanction order can be placed before competent authority along with the material and if the competent authority after perusing the material signs the draft sanction order, it cannot be said to suffer from nonapplication of mind. In Indu Bhushan Chatterjee Vs. State of West Bengal, AIR 1958 SC 148, wherein the sanction order was prepared by the police and put before the sanctioning authority by the personal branch of his office and that before according the sanction he went through all the relevant papers put before him, it was held by the Hon'ble Supreme Court to be a valid sanction".
16. In the case reported as 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 C.C. No. 67/11 Page No. 16 of 53 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.
17. Furthermore, in the case reported as 2004 (13) SCC 487, Shankar Bhai Lalji Bhai Vs. State of Gujrat, it was observed by Hon'ble Supreme Court of India as under: "So far as the question of Sanction is concerned, in the absence of anything to show that any defect or irregularity therein caused failure of justice, that plea is without substance."
18. In the case reported in 2011 I AD (CRI.) (S.C.) 1, Kootha Perumal Vs. State (through) Inspector of Police, Vigilance & Anti Corruption, it was held in Para 14 by Hon'ble Supreme Court of India as under: "Keeping in view the aforesaid statement of law, it would not be possible to conclude that the sanction order in the C.C. No. 67/11 Page No. 17 of 53 present case was not valid. Ex.P2 with the present appeal is the copy of the sanction order. A perusal of the same would show that the sanctioning authority has adverted to all the necessary facts which have been actually proved by the prosecution in the trial. Upon examination of the material facts, the sanctioning authority has certified that it is the authority competent to remove the appellant from the office. It is specifically stated that the statements of the witnesses have been duly examined. Sanction order also states that the other materials such as copy of the FIR as well as other official documents such as the different mahazars were carefully examined. Upon examination of the statements of the witnesses as also the material on record, the sanctioning authority has duly recorded its satisfaction that the appellant should be prosecuted for the offences, as noticed above. We, therefore, find no merit in the submission of the learned counsel that the sanctioning order to prosecute the appellant was not legal". C.C. No. 67/11 Page No. 18 of 53
19. By taking cue from the aforesaid judgment and applying the same to the facts of the present case, I do not find any force in the submission of Ld. Counsel for the accused to the effect that Sanction Order Ex.PW1/A has been passed mechanically and without application of mind and the judgments as referred by Ld. Defence Counsel can be of no help for the accused in this case being not applicable. I am of considered view that the Sanction concerning the accused Subhash Babu Gupta has been validly granted by PW1 Sh.Janak Digal, the then Addl. Commissioner (Health) MCD, Delhi who was competent to do so.
20. During the course of the argument, it is submitted by Ld. Counsel for the accused that this accused Subhash Babu Gupta is innocent and has neither demanded nor accepted any bribe from the complainant Suraj Mal Sharma. It is further added by him that the son of the complainant was working as Inspector in Delhi Police and through him, he has falsely implicated this accused due to malafide motive and the complainant is not reliable being interested witness and is an accomplice. It is also added by him that this accused was assigned duty for preparation of bills of difference of Pay arrear and difference of leave encashment and concerning Pay refixation arrear, C.C. No. 67/11 Page No. 19 of 53 it was calculated as Rs.8379/ out of which sum of Rs.8371/ was already paid and only Rs.8/ remained due and similarly, only sum of Rs.2150/ remained due on account of leave encashment difference and the arrears relating to gratuity and new pension refixation of the complainant was being handled by other Department and therefore, the accused was not competent to get released the arrears of the complainant and hence, there was no occasion on the part of this accused to demand and accept any bribe from the complainant. It is further added by him that when the complainant was to get arrears of Rs.2158/ from the bill handled by the accused and there was no reason as to why the accused would agree to pay initial bribe amount of Rs.2000/ and same also falsify the case of the prosecution. To the contrary, it is submitted by Ld. Addl. PP for the State that the prosecution has clearly established its case regarding demand and acceptance of the bribe as against this accused from the complainant through the deposition of PW6/Suraj Mal Sharma, complainant, PW8/Anil Kumar Kamra, Panch witness PW9/the then Inspector Sukhbir Singh, Raid Officer and PW14 Inspector Mehar Chand/IO and there is no reason to disbelieve them. It is further added by Ld. Addl. PP that there is no reason as to why PW6/Suraj Mal Sharma, complainant, PW8/Anil Kumar Kamra,Panch witness PW9/the then C.C. No. 67/11 Page No. 20 of 53 Inspector Sukhbir Singh, Raid Officer and PW14 Inspector Mehar Chand/IO would falsely implicate the accused specifically when there is no previous enmity as against this accused by them.
21. In order to prove that the accused had demanded and accepted the bribe amount from the complainant, the prosecution is found to have examined PW6/Suraj Mal Sharma, complainant, PW8/Anil Kumar Kamra, Panch witness, PW9/the then Inspector Sukhbir Singh, Raid Officer and PW14 Inspector Mehar Chand/IO. PW8 Anil Kumar Kamra, Panch witness has clearly deposed before the court that on dated 11.4.2007 he was on duty as a Panch witness in the Anti Corruption Branch and complainant Suraj Mal got lodged his Complaint Ex.PW6/A bearing his signature at point A. Said PW8 has also narrated about the Pre Raid Proceedings Ex.PW6/B bearing his signatures at point A. He further deposed that at about 01:05 p.m. he alongwith the complainant, Inspector Sukhbir Singh, Inspector Mehar Chand and other members of the raiding team left the Anti Corruption Branch in a vehicle and reached Hindu Rao Hospital at about 1:20 p.m. and vehicle was parked at some distance. He further deposed that he alongwith the complainant went towards the Hospital and other members took suitable position. He further deposed that at about 1:25 C.C. No. 67/11 Page No. 21 of 53 p.m. he alongwith the complainant reached outside the GBlock, where they met accused Subhash Babu Gupta and he took them to the tea stall. As regards the demand and acceptance of the bribe by the accused said PW8 Anil Kumar Kamra, Panch witness has deposed in this respect as under: "Thereafter complainant and accused had tea and some conversation took place between them. Then complainant took out those GC notes from his pocket and gave in the left hand of the accused which he kept in the left pocket of his pant."
22. Said PW8 Panch witness has further deposed that on his giving predetermined signal, Raid Officer and other members of the raiding party reached the spot and informed him that accused had taken bribe of Rs.2000/ from the complainant. He has also deposed about the recovery of 4 GC notes of Rs.500/ each from the accused as he has deposed in this respect as under: "Thereafter on the instruction of Raid officer I recovered the bribe money i.e. 4 GC notes in the denomination of Rs.500/ each from the left pant pocket of accused, and numbers of the same were checked from the numbers of C.C. No. 67/11 Page No. 22 of 53 GC note already noted in pre raid report and same were tallied. Recovered GC notes were taken into possession vide seizure memo Ex.PW6/C which bears my signature at point B".
23. Said PW8 has also deposed about taking of left hand wash and left side pant pocket wash of the accused and transferring of the said washes in the bottles Mark LHWI & II, LSPPWI & II. He has also deposed that the sealed bottles and the pullanda of the pant of the accused and sample seal of SS were taken into possession. He also deposed about the drawing the Post Raid Proceedings Ex.PW6/E which bears his signature at point B. He also deposed about the arrest of the accused vide Memo Ex.PW6/F and personal search of accused vide Memo Ex.PW6/G which bears his signature at point B. Said PW8 has duly identified 4 GC notes in the denomination of Rs.500/ each as Ex.P1 to P4 as the same GC notes which were recovered from the left pocket of pant of the accused. Said PW8 on seeing the labels of four sealed bottles mark LHWI & II, LSPPWI & II Ex.P5 to P8 deposed that same bear his signature at points B and same contained the left hand wash and left side pant pocket wash of the accused. He has also identified the pant of the accused as Ex.P9. C.C. No. 67/11 Page No. 23 of 53 Said PW8/Panch witness in his cross examination of Ld. Defence Counsel has specifically denied the suggestion that the accused has neither accepted any amount from the complainant or that nothing was recovered from the accused as said PW8 has deposed in this respect as under: "I immediately gave the signal when he took money and kept in his pant pocket. All the members immediately reached there. It is wrong to suggest that no money was accepted by the accused and nothing was recovered from the accused."
24. PW6/Suraj Mal Sharma, complainant has clearly deposed before the court that on 31.5.2001 he retired from service as Radiographer from Hindu Rao Hospital and the amount of his gratuity, difference of Pay scale, amount of refixation of salary was lying due for which he met accused Subhash Babu Gupta who was posted as Dealing Clerk several times but money was not released to him. He further deposed that on 9.4.2007 when he talked to the accused on phone regarding his case, accused demanded bribe of Rs. 5500/ and called him on 11.4.2007 alongwith part bribe amount of Rs.2000/.
C.C. No. 67/11 Page No. 24 of 53
25. Said PW6/complainant further deposed that as he was against giving of bribe so he went to Anti Corruption Branch on 11.4.2007 at about 12:30 p.m. and lodged his Complaint Ex.PW6/A which bears his signature at point A to Inspector Sukhbir Singh/Raid Officer who joined one Panch witness in the proceedings. He also deposed that he had handed over 4 GC notes of Rs.500/ each to the Raid Officer and narrated about the Pre Raid Report Ex.PW6/B bearing his signature at point A. He also deposed that he along with the Panch witness, Raid Officer and other members of the raiding team left Anti Corruption Branch at about 01:05 p.m. for Hindu Rao Hospital and reached there at about 1:20 p.m. He further deposed that he along with the Panch witness went towards the GBlock and met accused at the gate of GBlock and thereafter, accused brought two tea from the tea stall and they started taking tea and members of the raiding team took suitable position near the tea stall. He further deposed that he introduced Panch witness to the accused as his nephew. Said PW6 regarding demand and acceptance of bribe by the accused has specifically deposed as under: "I enquired from the accused as to when he would start my work on which accused told me that he would start as and when I would give him the money. Thereafter I C.C. No. 67/11 Page No. 25 of 53 took out those treated GC notes from my pocket and gave in the left hand of the accused which he kept in the left pocket of his wearing pant."
26. Said PW6/complainant has also deposed about the Post Raid Proceedings Ex.PW6/E bearing his signature at point A. He specifically has deposed that treated GC notes as recovered from the left side pant pocket of the accused were seized vide memo Ex.PW6/C bearing his signature at point A and serial numbers of the said GC notes tallied with the serial numbers as mentioned in Pre Raid Report. He has also deposed about taking of the left hand wash and left side pant pocket wash of the accused turning pink colour and transferring of the said washes in four bottles which were sealed and were marked as LHWI & II, LSPPWI & II by pasting slips thereon which were signed by him and said bottles, parcel containing pant of accused and sample seal of SS were taken into possession vide Seizure Memo Ex.PW6/D bears his signature at point A. Said PW6/complainant has also deposed regarding arrest of the accused vide Memo Ex.PW6/F and his personal search vide Memo Ex.PW6/G which bears his signature at point A. C.C. No. 67/11 Page No. 26 of 53
27. Said PW6/complainant has clearly identified the 4 GC notes of Rs.500/ each as recovered from the left side pant pocket of the accused as Ex.P1 to P4, four sealed bottles containing washes mark LHWI & II and LSPPWI & II as Ex.P5 to P8, pant of the accused as Ex.P9. Said PW6 in his cross examination by Ld. Defence Counsel has specifically denied the suggestion that the accused has neither demanded nor accepted any money from him and that no money was recovered from the accused as he has specifically deposed in this respect as under: "It is further incorrect to suggest that accused neither demanded nor accepted any bribe money from me. It is further incorrect to suggest that no bribe money was recovered from the accused."
28. The material part of the deposition of PW8/Panch witness and PW6/complainant also found corroborated from the deposition of PW9 Inspector Sukhbir Singh, Raid Officer. PW9 Inspector Sukhbir Singh, Raid Officer is found to have deposed regarding lodging of the complaint Ex.PW6/A by the complainant in the presence of Panch witness Anil Kumar Kamra on dated 11.04.2007 and thereafter, the preraid proceeding Ex.PW6/B was carried out by him. Said PW9 C.C. No. 67/11 Page No. 27 of 53 further deposed that at about 1:05 p.m. he alongwith the complainant, Panch witness and other members of raiding team left Anti Corruption Branch and reached Hindu Rao Hospital and parked vehicle outside the Hospital and Inspector Mehar Chand and Driver remained in the vehicle. He further deposed that complainant and Panch witness went towards GBlock and met accused at main gate of GBlock and started talking and thereafter came at the tea shop and took tea and raiding team took suitable position. He further deposed that at about 1:30 p.m. on receiving the predetermined signal given by Panch witness, he alongwith raiding team reached the spot and he was informed that the accused had demanded and accepted Rs.2000/ as bribe from the complainant with his left hand and then kept in left side pocket of his pant. He also deposed that on his instruction Panch witness recovered the bribe amount of Rs. 2000/ from the accused and on checking, the numbers of the recovered GC notes found tallied with the numbers as noted in preraid report. He also deposed that GC notes were seized vide Seizure Memo Ex.PW6/C bearing his signature at point C and that of complainant at point A and that of Panch witness at point B. He also deposed about the postraid proceeding Ex.PW6/E bearing his signature at point C and that of complainant at point A and that of Panch witness at point B and C.C. No. 67/11 Page No. 28 of 53 seizure of the four bottles containing left hand wash and wash of left side pocket of pant of the accused, sealed parcel of pant of accused and sample seals vide Seizure Memo Ex.PW6/D bearing his signatures at point C and that of complainant at point A and that of Panch witness at point B. He has clearly identified the said recovered GC notes as Ex.P1 to P4, four sealed bottles mark LHWI & II and LSPPWI & II containing left hand wash and left side pant pocket wash of the accused as Ex.P5 to P8.
29. From the perusal of the deposition of PW6/complainant, PW8/Panch witness and PW9/Raid Officer, it is clearly reflected that the Raid Officer, PW9 the then Inspector Sukhbir Singh has drawn the Post Raid Proceedings Ex.PW6/E which found bear the signature of the PW6/complainant at point A and that of PW8/Panch witness at point B and that of the PW9/ Raid Officer at point C.
30. I am of the considered view that said Post Raid Proceedings Ex.PW6/E being in the nature of Panchnama which is duly signed by the complainant and Panch witness is duly admissible and reference can be made to the case of Santa Singh vs. State of Punjab AIR 1956 Supreme Court 526 wherein it was held that mere presence of C.C. No. 67/11 Page No. 29 of 53 the police officer when a statement is made does not by itself render such a statement inadmissible. So long as a panchnama is a mere record of the things heard and seen by panchas and does not constitute a statement communicated to a police officer in the course of investigation by him and it would not fall within the mischief of section 162 of the Code.
31. From the perusal of the said Post Raid Proceedings Ex.PW6/E, it is clearly reflected that the accused Subhash Babu Gupta had accepted the bribe amount of Rs.2000/ from the complainant by his left hand and kept the same in the left side pocket of his pant and said amount has been recovered by the Panch witness from the left side pant pocket of the accused Subhash Babu Gupta and the serial number of those GC notes found tallied with the serial number as mentioned in the Pre Raid Proceedings Ex.PW6/B and said recovered GC notes were seized vide Seizure Memo Ex.PW6/C.
32. It is also revealed from the record that left hand wash and left side pant pocket wash of accused with colourless solution of sodium carbonate were taken and the same turned into pink colour and said wash vide Ex.LHWI and LSPPWI gave positive test for the C.C. No. 67/11 Page No. 30 of 53 presence of phenolphthalein and sodium carbonate as per FSL Report Ex.PW14/B which establish that the said treated 4 currency notes of Rs.500/ each were handled and accepted by the accused and same were recovered from him.
33. In view of the above material as available on record, I am of the considered view that the factum regarding the demand and acceptance of bribe of Rs.2000/ by the accused from the complainant have been found established from the deposition of PW6/Suraj Mal Sharma, complainant, PW8/Anil Kumar Kamra, Panch witness, PW9 Inspector Sukhbir Singh, Raid Officer coupled with the content of Complaint Ex.PW6/A, Seizure Memo of the GC notes Ex.PW6/C, Seizure Memo of four bottles marked as Ex.LHWI&II, LSPPWI & II and pullanda of pant and sample seal vide Ex.PW6/D, Post Raid Proceedings Ex.PW6/E.
34. During the course of the argument, it is submitted by Ld. Counsel that this accused was assigned duty for preparation of bills of difference of Pay arrear and difference of leave encashment and concerning difference of Pay arrear, it was calculated as Rs.8379/ out of which sum of Rs.8371/ was already paid and only Rs.8/ remained C.C. No. 67/11 Page No. 31 of 53 due and similarly, only sum of Rs.2150/ remained due on account of leave encashment difference and the arrears relating to gratuity and new pension refixation of the complainant was being handled by other Department and therefore, the accused was not competent to get released the arrears of the complainant and hence, there was no occasion on the part of this accused to demand and accept any bribe from the complainant. It is further added by him that when the complainant was to get arrears of Rs.2158/ from the bill handled by the accused and there was no reason as to why the accused would agree to pay initial bribe amount of Rs.2000/ and same also falsify the case of the prosecution.
From the perusal of the record, it is reflected that PW6/Suraj Mal Sharma, complainant has deposed that he had retired as Radiographer from Hindu Rao Hospital on 31.5.2001 and his amount of gratuity, difference of Pay scale, amount of refixation of salary was lying due and despite several requests to the accused Subhash Babu Gupta, Dealing Clerk, the dues were not released to him. He has further deposed that accused has ultimately demanded bribe of Rs.5500/ and asked him to bring part bribe amount of Rs. 2000/ on 11.4.2007 for doing the needful. Said PW6 has also C.C. No. 67/11 Page No. 32 of 53 deposed that as he was against giving of bribe so he went to Anti Corruption Branch on 11.4.2007 at 12:30 p.m. and got lodged his complaint Ex.PW6/A to Inspector Sukhbir Singh, Raid Officer. Furthermore, said PW6/complainant has also deposed regarding the demand and acceptance of said bribe amount of Rs.2000/ on 11.4.2007 by the accused as under: "I enquired from the accused as to when he would start my work on which accused told me that he would start as and when I would give him the money. Thereafter I took out those treated GC notes from my pocket and gave in the left hand of the accused which he kept in the left pocket of his wearing pant."
Furthermore, from the perusal of the deposition of PW6/complainant, it is also revealed that the complainant was under
the impression that the total amount due was about Rs.1 Lac as he has deposed in his cross examination in this respect as under: "I had gone to Hindu Rao Hospital for fixation of gratuity, salary difference, washing allowance etc. and total amount was near about 1 Lakh".
C.C. No. 67/11 Page No. 33 of 53
No doubt, the complainant was found entitled for the due of lesser amount but as he was under impression that his due was about Rs.1 Lac, he would have agreed for paying the bribe amount of Rs. 2000/. Furthermore, from the deposition of PW6/complainant, it is also reflected that he was under the impression that it is accused who was dealing with all his dues as he has deposed in this respect in his cross examination by Ld. Defence Counsel as under: "It is correct that different deptts look after gratuity, pension and PF. Vol: at that time, accused was dealing all the departments due to shortage of staff. It is wrong to suggest that the accused was not dealing with all the deptts".
35. Besides this, law is well settled that it does not matter whether the public servant was competent to do the work or not and reference can be placed in the case reported as Chaturdas Bhagwandas Patel Vs. State of Gujrat, 1976(3) SCC 46 as referred in State of Andhra Pradesh Vs. C. Uma Maheshwar Rao and Anr.
2004, V AD (SC) 176, wherein it has been held by Hon'ble Supreme Court of India that the question whether a person has an authority to do the act for which bribe is accepted, is of no consequence. In the C.C. No. 67/11 Page No. 34 of 53 case reported as Gopal Singh Vs. CBI, ILR (2005) II Delhi 35, It was observed by the Hon'ble Delhi High Court in Para 22 as under: "It has to be added that in cases under PC Act, the prosecution is under no obligation to prove that a public servant demanding bribe was in a position to help the person from whom the bribe was being demanded. The prosecution succeed the moment it is shown that a public servant had accepted some money from someone which was not legal remuneration. The presumption U/S 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."
36. During the course of arguments, it is submitted by Ld. C.C. No. 67/11 Page No. 35 of 53 Counsel for the accused that the son of the complainant was working as Inspector in Delhi Police and through him he has falsely implicated this accused due to malafide motive and the complainant is not reliable being interested witness and is an accomplice. No doubt, PW6/complainant has admitted that his son was working as Inspector in Delhi Police but it is not even the case of the accused that the complainant was having any prior enmity against the accused for which he would falsely implicate the accused in this case through his son. So far as the contention of Ld. Counsel for the accused is that the statement of complainant being an accomplice cannot be acted upon without corroboration is concerned it is appropriate to refer to the case of Dewan @ Vasudeva and etc. V/s The State 1988 Crl. L.J. 1005 where it was held by Hon'ble High court of Kerala as under : ''True, the person who pays the gratification is, in a way, an accomplice in the offence, when his role is viewed from a wide angle. But before his evidence is dubbed as unworthy of credit without corroboration, a pragmatic or realistic approach has to be made towards such evidence. If the bribegiver voluntarily goes to the offender and persuades him to accept the bribe, his position is that of an undiluted accomplice C.C. No. 67/11 Page No. 36 of 53 and it is a rule of prudence to insist on independent corroboration such evidence. On the other hand, if the giver of gratification was persuaded to give it, he actually becomes a victim of persuasion by the offender. To name him an accomplice and to reject his testimony due to want of corroboration, would sometimes, be unrealistic and imprudent. The court must always bear in mind that insistence on corroboration for the evidence of accomplice is not on account of any rule of law, but is a caution of prudence. The density of the stigma to be attached to a witness as an accomplice depends upon the degree of his complicity in the offence. Suspicion towards his role as an accomplice should vary according to the extent and nature of his complicity. It must be considered in each case whether the bribe giving or payment of gratification was done in such a way that independent persons had no occasion to witness such acts. '' C.C. No. 67/11 Page No. 37 of 53
37. Furthermore, the Hon'ble Supreme Court in case of M. O. Shamshuddin V/s State of Kerela 1995 ( 2 ) Crimes 284 considered the aspect and the Hon'ble Supreme Court in para 11 has held as under : "Now confining ourself to the case of bribery it is generally accepted that the person offering a bribe to a public officer is in the nature of an accomplice in the offence of accepting illegal gratification but the nature of corroboration required in such case should not be subjected to the same rigorous tests which are generally applied to a case of an approver. Though bribe givers are generally treated to be treated in the nature of accomplices but among them there are various types and gradation In case under the Prevention of corruption Act the complainant is the person who gives the bribe in a technical and legal sense because in every trap case whereever the complainant 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 be succeed. When there is such a demand by the public C.C. No. 67/11 Page No. 38 of 53 servant from a 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 oder 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 cases where a person offers a bribe to achieve his own purpose and where one is forced to offer bribe under a threat or 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 "accomplices' by reason of their being bribe givers, 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. C.C. No. 67/11 Page No. 39 of 53 The extent and nature of corroboration that may be needed in a case may vary having regard to the facts and circumstances".
From the deposition of PWs, it is clearly reflected that the deposition of complainant/PW6 regarding the demand and acceptance of the bribe by the accused from the complainant is also found corroborated from the deposition of PW8/Anil Kumar Kamra, Panch witness who has specifically deposed in this respect as under: "Thereafter complainant and accused had tea and some conversation took place between them. Then complainant took out those GC notes from his pocket and gave in the left hand of the accused which he kept in the left pocket of his pant."
Besides this, the deposition of the PW6/complainant regarding the recovery of the tainted GC notes of Rs.2000/ from the left side pant pocket of the accused and seizure of the said GC notes vide Seizure Memo Ex.PW6/C are found corroborated from the deposition of PW8/Panch witness as well as PW9/Raid Officer. In view of the same, I do not find any force in the submission of Ld. C.C. No. 67/11 Page No. 40 of 53 Counsel for the accused for not relying upon the deposition of the complainant in this respect.
38. During the course of the argument, it is submitted by Ld. Counsel for the accused that though the complainant stated to have talked to the accused on 9.4.2007 through phone in which the accused alleged to have demanded bribe of Rs.5500/ and asked him to bring the initial bribe amount of Rs.2000/ on 11.4.2007 but the IO has not bothered to collect phone call record of the accused and the complainant in this respect and same are fatal for the case of the prosecution.
From the perusal of the deposition of PW6/Suraj Mal Sharma,complainant, it is clearly reflected that he has deposed that on 9.4.2007 when he made the phone call to the accused and enquired about his case, accused told him that he had not touched his case and asked him to spend some money and demanded bribe of Rs.5500/ and bring the initial amount of Rs.2000/ on 11.4.2007. Said PW6/complainant further deposed that as he was against giving of bribe so he went to Anti Corruption Branch on 11.4.2007 at 12:30 p.m. and met Inspector Sukhbir Singh and got lodged his Complaint C.C. No. 67/11 Page No. 41 of 53 Ex.PW6/A.
39. In view of the aforesaid material as available on record, I am of the considered view that mere lapse on the part of the IO for not collecting the phone call details of the accused and the complainant for 9.4.2007, cannot be treated as fatal for the case of the prosecution. Furthermore, I am of the considered view that mere lapse on the part of the IO cannot be a escape ground for the accused specifically when adequate incriminating material for the charged offence is available on record. I am of the considered view that criminal justice should not be made casualty of wrongs committed by the IO and my said view is found nourished from the judgment as rendered by Hon'ble Delhi High Court in the case reported as "2000 (I) A.D. (Delhi) 67 Manoj @ Manu Vs. State of Delhi." In the case reported as "State of Rajasthan Vs. Kishore (1996 SCC (Crl) 646)" it was observed by Hon'ble Supreme Court of India that mere fact that the investigating officer committed irregularity or illegality during the course of investigation would not and does not cast doubt on the prosecution case nor trustworthy and reliable evidence can be cast aside to record acquittal on that account. Furthermore, in another case reported as "Ram Bihari Yadav Vs. State of Bihar and Ors. (1998(4) SCC C.C. No. 67/11 Page No. 42 of 53
517)" it was observed by Hon'ble Supreme Court of India as under: "If primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice". The view was again reiterated in "Amar Singh Vs. Balwinder Singh and Ors. (2003 (2) SCC 518)."
40. During the course of the argument, it is submitted by Ld. Counsel for the accused that as the Raid Officer being a police official is an interested witness for success of his raid and therefore, his deposition cannot be treated as trustworthy and reliable. I do not find any force in the submission of Ld. Counsel for the accused in this respect. Reference is placed on case of Hazari Lal V/s State ( Delhi Admn ) AIR 1980 Supreme Court 873. In that case the allegations against the accused who was a police officer was that he demanded bribe from the complainant for release of his scooter rickshaw which was seized by the police. The trap was laid and the accused was caught red handed. However, during trial complainant turned hostile and deposed that when he went to the police station on first occasion C.C. No. 67/11 Page No. 43 of 53 to obtain delivery of his scooter rickshaw it was not the accused that was present but one Hawaldar was present and it was not the accused but that Hawaldar who demanded bribe of Rs. 60/ from him and when he went to the police station along with punch witness he found accused there and asked him to take a sum of Rs. 60/ and return the scooter rickshaw. He stretched his hand with the money towards the pocket of accused 's trouser but accused said the money might be paid to the person for whom it was meant for. He refused to receive the money and jerked complainant's hand with his hand as a result of which the notes came to be flung across the wall into neighboring room. He deposed that accused neither demanded the amount from his nor accepted the amount. The punch witness who went along with the complainant could not be examined as he became insane and other punch witness turned hostile. The conviction was based on the statement of trap officer and the Hon'ble Supreme Court held as under: "We are not prepared to accept the submission of Shri Frank Authony that he is the very Police Officer who laid the trap should be sufficient for us to insist upon corroboration. We do wish to say that there is no rule of prudence which has crystallized into a rule of law, nor C.C. No. 67/11 Page No. 44 of 53 indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In facts and circumstances of a particular case a Court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally, in the facts and circumstances of another case, the Court may unhesitatingly agent the evidence of such an officer."
Besides that in the case reported as AIR 1998 SC 1474 State of U.P. Vs. Zakullaha it was held by the Hon'ble Supreme Court of India that the evidence of trap officer in a bribe case can be acted upon even without the help of any corroboration and similar view was held in the judgment "Prakash Chand vs. State (Delhi Administration) AIR 1979 SC 400".
41. During the course of the argument, it is submitted by Ld. Counsel for the accused that the hand wash of accused turning into pink colour was because of the fact that accused had shook hand with C.C. No. 67/11 Page No. 45 of 53 the complainant as stated by PW9/Raid Officer and therefore, the same cannot be treated as incriminating evidence as against the accused and no further explanation is required from the accused in this respect. It is further added by him that PW9/Raid Officer has admitted in his deposition that inner lining of the pant pocket of the accused does not appear to be pink colour and same also goes in favour of the accused.
No doubt, PW9/Raid Officer has deposed that the accused on seeing the complainant shook hand with him and started talking with him. Naturally, the accused would have shaken hand with the complainant by his right hand and it is not even the case of the accused that he has shaken his hand by left hand with the complainant but there is no explanation even by the accused as to how his left hand wash has turned pink colour and his left pocket of the pant wash has turned pink colour. Furthermore, mere fact that PW9/Raid Officer has admitted in his deposition that presently inner lining of the pant pocket of the accused does not appear to be pink colour, cannot be over emphasized in view of the fact that Raid Officer has given the said deposition on 15.3.2011 which is after about 4 years of the date of the incident and therefore, the colour might have faded. C.C. No. 67/11 Page No. 46 of 53
It is also revealed from the record that left hand wash and left side pant pocket wash of accused with colourless solution of sodium carbonate were taken and the same turned into pink colour and said wash vide Ex.LHWI and LSPPWI gave positive test for the presence of phenolphthalein and sodium carbonate as per FSL Report Ex.PW14/B which establish that the said treated 4 currency notes of Rs.500/ each were handled and accepted by the accused and same were recovered from him. In view of the same, I do not find any force in the submission of Ld. Counsel for the accused in this respect.
42. During the course of the argument, it is submitted by Ld. Counsel for the accused that despite availability of the independent public witness including the tea vendor at the spot, none joining of any of them in the Raid Proceeding is fatal for the case of the prosecution. I do not find any force in the said submission of Ld. Defence Counsel in view of the fact that since an independent witness i.e. PW8/Anil Kumar Kamra Ahmad, Panch witness had already been joined in the proceedings by the PW9/Raid Officer, nonjoining of any other person available at the spot cannot be over emphasized. My said view is also found supported from the judgment reported as 2011 V AD (DELHI) 500, Anna Wankhade Vs. Central Bureau of C.C. No. 67/11 Page No. 47 of 53 Investigation (Through State), wherein it was held in Para 21 as under: "21. There is no dispute with regard to the proposition regarding desirability of association of independent witnesses by the police so as to lend more credence and authenticity to the case, but there is also no dispute that nonassociation of the independent witnesses per se for any reason whatsoever was in itself not enough to discard the prosecution witnesses or throw away the case as a whole. In the present case, CBI associated two independent witnesses on the written requisition made to the office of NDMC. Since the prosecution/CBI already had two independent witnesses, who had been informed and apprised about the technicalities involved in the procedure during the trap proceedings, it was not necessary for the IO to have joined other public witnesses at the time of apprehension. May be to avoid the risk of such a raw public person getting won over or being unable to understand the proceedings at the last moment of raid, C.C. No. 67/11 Page No. 48 of 53 that the IOs usually avoid associating public witnesses at that stage in such type of cases."
43. I also do not find any force in the submission of Ld. Counsel for the accused that alleged recovery of the treated GC notes as against the accused is not sufficient to convict the accused for the charged offence. Once the accused is found to have accepted the bribe amount, it is for him to explain as to in which capacity he has accepted the same.
44. In the case of Dhanvantrai Balwantrai Desai V/s State of Maharashtra, AIR 1964 Supreme Court 575 it was 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 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 C.C. No. 67/11 Page No. 49 of 53 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."
45. 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 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 C.C. No. 67/11 Page No. 50 of 53 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."
46. It is also useful to refer to the case of B. Noha V/s State of Kerela & Another 2006 VI AD ( Criminal ) 465 ( SC ) where it was held as under: "that when it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deducted from the facts and circumstances obtained in the particular case." C.C. No. 67/11 Page No. 51 of 53
47. It was held in the case reported as State of AP Vs. Kommaraju Gopala Krishna Murthy 2000 (9) SCC 752, that when the amount is found to have passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification. That burden was not discharged by the accused herein.
48. Once the bribe amount is recovered from the accused it is for the accused to explain as to how the bribe amount landed in his person. In the present case, the accused Subhash Babu Gupta has not given any justifiable explanation as to how bribe amount of Rs.2,000/ landed in his left side pocket of his pant from which it was recovered. The accused in his statement U/S 313 Cr.P.C. has taken the stand that he is innocent and falsely implicated in this case by the complainant as he has never demanded and accepted any bribe from the complainant but said bare plea of the accused appears to be meritless and can be of no help for the accused.
49. In view of the aforesaid materials as available on the record, I am of the considered view that the presumption as contemplated U/S 20 of the Prevention of Corruption Act,1988 could not be rebutted by the accused Subhash Babu Gupta and the judgments as referred and C.C. No. 67/11 Page No. 52 of 53 relied by Ld. Counsel for the accused can be of no help for the accused being not applicable in view of the above referred clinching material relating to the demand and acceptance of bribe amount of Rs. 2000/ by the accused Subhash Babu Gupta.
50. In view of the aforesaid discussion, I have no hesitation to safely conclude that the prosecution has successfully established its case as against the accused Subhash Babu Gupta for the charged offence and therefore, the accused Subhash Babu Gupta is held guilty and convicted for offence punishable U/S 7 and 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988.
51. Let accused Subhash Babu Gupta be heard separately on the point of sentence.
Announced in the open court on this 31st day of August, 2012 (B.R. Kedia) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC, Delhi C.C. No. 67/11 Page No. 53 of 53