Delhi District Court
Cb I vs . Sh K C Singh S/O Late L P Singh on 27 July, 2010
1
IN THE COURT OF V .K .MAHESHWARI
SPECIALJUDGE: TIS HAZARI: DELHI
Corruption Case No. 37/2004
CB I Vs. Sh K C Singh S/O Late L P Singh
Head Clerk State Transport
Authority, Under Hill Road,
DELHI
Date of Institution 7.0 9.2002
R.C No. DAI-2001-A-0029/CBI/ACB/New
Delhi
Under Section U/s 7 & U/s 13( 2) r/w 13 (1) ( d) of
P C Act, 1988
Arguments concluded 17.7.2010
on
Date of order 24.7.2010
JUDGMENT:
FACTS OF THE CASE 1 Accused K C Singh , Head Clerk, State Transport CC No. 37/2004. 1/63 2 Authority has been sent for his trial for the offences punishable U/s 7 & U/s 13 (2) r/w 13 (1) ( d) of the Prevention of Corruption Act, 1988 by CBI vide R C No. DAI-2001-A-
0029/CBI/ACB/New Delhi 2 Brief facts as per the case of prosecution are that a written complaint dt. 27.3.2001 was lodged by one Mukesh Kumar Sharma against accused Sh K C Singh, Head Clerk , State Transport Authority, Under Hill Road, Delhi alleging that he has demanded a bribe amount of Rs.5000/- from him through Sh Nawab Khan, partner of Sh Mukesh Kumar Sharma for issuing new permit ( on transfer) of Bus No. DL- IPA 2165 which the complainant had purchased from one Sh Kuldeep Anand.
3 Sh K C Singh, accused was working as Head Clerk in STA Delhi was assigned the duty of general administration and supervision of work of dealing assistant dealing with SUVIDHA Bus service, interstate permit along with other kind of permit as contained in the office order F. No. -1(STA)/Office order /2000/2342-2346 dated 5.7.2000 duly signed by Sh Alok Swaroop, Secretary STA .
4 As per file No. PP/0108 pertaining to vehicle No. DL CC No. 37/2004. 2/63 3 1PA 2165 bus bearing No. DL IPA 2165 was in the name of Sh Kuldeep Anand and copy of permit in the name of Sh Kuldeep Anand is available on the file. Complainant Sh Mukesh Kumar Sharma purchased the said bus from Sh Kuldeep Anand. Sh Kuldeep Anand, requested vide his application dt 11.5.2000 to transfer the permit of the vehicle in favour of Sh Mukesh Kumar Sharma . Original documents were also shown to STA . Notesheet and other relevant documents bears the signatures of accused Sh K C Singh. Sh Mukesh Kumar Sharma deposited the requisite fee in A/C Department of STA and completed the required formalities. In this regard complainant Sh Mukesh Kumar Sharma met Sh K C Singh and requested for helping in issuing fresh permit on transfer on 26.3.2001. On this the dealing officer in the STA, Sh KC Singh, Head Clerk demanded a brine amount of Rs.5000/- from him for issuing new permit on transfer and that too will accept the same from Sh Nawab Khan the other partner of complainant, Sh Mukesh Kumar Sharma. Permit was issued/ transferred vide order dated 27.3.2001 i e the day of the trap in favour of the complainant.
5 During verification the allegations of the complainant was found to be genuine hence a trap party was constituted by Sh S K Lall, Inspector / TLO comprising of CC No. 37/2004. 3/63 4 independent witnesses S/Sh D N Madwal, UDC and Anil Kumar, LDC Food & Supplies department M- Block, Vikas Bhawan, NewDelhi and CBI team members comprising of inspectors S/Sh Jayant Kashmiri, A K Pandey and S.I S/ Sh Prem Nath and R C Sharma.
6 After all other arrangements, the pre- trap formalities were completed before them and the same was duly recorded in the Handing over Memo dated 27.3.2001 properly signed by the witnesses, complainant, his partner and officers of CBI. Though the complaint was filed by Sh Mukesh Kumar Sharma, his partner Sh Nawab Khan was also present since the accused had instructed that he will accept the bribe from Sh Nawab Khan.
7 Trap party alongwith witnesses, and complainant left CBI office at 1140 AM and reached the vicinity of the office of STA Delhi, Rajpur Road, 5/9 Underhill Road, Delhi. The complainant, his partner & shadow witness Sh Anil Kumar were directed to proceed to the said office and contact Sh K C Singh. They went to counter No.13 and after few minutes they came and informed that Sh K C Singh manning counter No.13 has informed that Sh Pravin Desai, Asstt. Secretary is not available on his seat whose signatures are required on the permit. At about 13.00 hrs CC No. 37/2004. 4/63 5 they again approached the counter No.13 manned by Sh K C Singh. At the counter conversation between the accused Sh K C Singh and Sh Nawab Khan had taken place in presence of shadow witness and on demand Sh Nawab Khan paid the bribe amount of Rs.5,000/- to Sh K C Singh. Thereafter shadow witness Sh Anil Kumar gave the pre-fixed signal denoting completion of the transaction of bribe . Immediately, the trap party rushed inside the office and apprehended the accused Sh K C Singh, Head Clerk, STA Delhi who was caught red handed while demanding and accepting a bribe amount of Rs.5,000/- as illegal gratification from Sh Nawab Khan and Sh Mukesh Kumar Sharma, complainant, for the purpose of issuing transfer permit of Bus is the name of Sh Mukesh Kumar Sharma after observing all legal formalities.
8 Thereafter a Recovery Memo was prepared at the spot incorporating details of proceedings of recovery of bribe money from accused signed by team members, witnesses, complainant and his partner. During the post-trap/ Recovery proceedings, the said bribe money was recovered from the accused. The hands & pant washes of accused in colorless solution of Sodium Carbonate in water, turned pink in colour and were duly transferred into glass bottles and the same were CC No. 37/2004. 5/63 6 properly sealed bearing markings LHW,RHW, LSPPW denoting left hand wash, Right hand wash & left side pant pocket wash respectively duly signed by both the witnesses. Numbers of recovered bribe money were tallied with numbers recorded in Handing Over memo by the two independent witness and they correctly tallied. The GC notes (10) of Rs500/- denomination each amounting to Rs.5000/- and the pant of the accused was seized.
9 During investigation, the bottles marked LHW,RHW & LSPPW containing pink colored solution were sent to CFSL for opinion vide letter No. DLI/AC/CR/3/29(A)/2001-DLI/3220 dt 29.03.2001. After chemical examination the CFSL gave positive opinion regarding presence of phenolphthalein and sodium carbonate in the said solution vide report No. CFSL- 2001/C-0176 dated 30.4.2001 . Statement of all relevant witnesses were recorded, sanction for prosecution of accused obtained from competent Authority and relevant documents were collected during the investigation. Charge sheet was filed in the Court after completion of the investigation. CHARGE 10 Copies required U/S 207 Cr P C supplied to accused.
CC No. 37/2004. 6/63 7My Ld. Predecessor after hearing both the parties vide his order dt. 2.9. 2002 had framed a charge against the accused U/s 7 & U/s 13 (2) r/w 13 (1) ( d) of the Prevention of Corruption Act, 1988. Accused pleaded not guilty to the charge and claimed trial. Hence, this trial.
PROSECUTION EVIDENCE 11 Prosecution, in order to prove its case, has produced following witnesses:
PW1 Sh. K S Chhabra, Scientific Officer who has proved his report Ex PW1/A. PW2 Sh Mukesh Kumar Sharma has proved his application/ complaint dated 27.3.2001 Ex PW2/A, handing over memo Ex PW2/B and recovery memo Ex PW2/C. PW3 Sh S S Khullar, has proved sanction order for prosecution of accused which Ex PW3/A. PW4 Sh Parveen Desai, has proved the seizure memo Ex PW4/A vide which certified copy of office order dated 5.7.2001 and certified copy of roaster were seized. Certified copy CC No. 37/2004. 7/63 8 of duty roaster is Ex PW4/B and attendance register / Duty Roaster is Ex PW4/C. He has proved PP Scheme permits file Ex PW4/D. PW6 Sh D N Madwal has proved site plan Ex PW6/A, office search cum seizure memo Ex PW6/B . He has also identified his signatures on handing over memo and recovery memo Ex PW2/B and PW2/C. PW 7 Sh Nawab Khan , has identified his signature on, handing over memo Ex PW2/B. He has also proved the recovery memo Ex PW2/C. PW8 Sh Ajay Kumar DSP has conducted the investigation and filed charge sheet in this case which Ex PW8/A. PW8 (Again ) Sh R C Sharma, one of the trap team member has also proved handing over memo Ex PW2/B ;
recovery memo Ex PW2/C. PW9 Sh Anil Kumar, is the recovery memo has also proved handing over memo Ex PW2/B, recovery memo Ex PW2/C and site plan Ex PW6/C. CC No. 37/2004. 8/63 9 PW10 Sh S K Lall, is the TLO of the case. He has proved FIR Ex PW10/A and has proved the documents already proved by other witnesses.
12 Statement of the accused U/s 313 Cr PC was recorded wherein he has that this is a false case PW7 Nawab Khan was running business of transport in partnership with Sh Mukesh Kumar Sharma. Sh Nawab Khan was having his connection with Sh Jave Khan Ex Head Constable of CBI, Anti Corruption Branch and used to threaten the Govt officials of transport department, Traffic and police department in discharging of their duties. He is a known blackmailer and a criminal against whom several cases had been registered by police department. He neither demanded nor accepted the money from the complainant. He is innocent and has been falsely implicated in this case.
DEFENCE EVIDENCE 13 In his defence accused have examined DW1 Parveen Kumar has proved the file for granting sanction for the prosecution of accused Ex DX-1. DW 2 H C Virender Singh CC No. 37/2004. 9/63 10 has brought the summoned record against Nawab Khan . PW4 ASI Jai Bhagwan has stated that summoned records is not available in his office. PW4 Sh Neeraj Mishra, Ahlmad has brought the file of case FIR No.713/07 PS Badar Pur against Nawab Khan. PW5 Sh Veer Singh proved the copy of minutes of meeting dated 18.1.2008 , order dated 6.6.2008, meeting held on 22.10.2007 and DW 6 Jitnder Kumar, Asstt Almad has proved the summoned file pertaining to FIR No.693/06 title State Vs Nawab Khan.
PROSECUTION ARGUMENTS 14 Ld. Sr PP argued that prosecution has produced complainant, shadow witness and recovery witness besides the TLO and IO and other witnesses. Complainant, shadow witness and recovery witness have fully supported the case of prosecution. TLO has proved various memos prepared by him and also corroborated the evidence given by other witnesses. IO has proved the memos prepared by him and stated that he had recorded statement of witnesses U/S 161 Cr P C correctly. PW3 Ms Sindhu Shree Khullar has proved that accused was working as Head Clerk in the office of STA Under Hill Road, Delhi and she was competent to remove him from his service. She has proved sanction for the prosecution of accused Ex PW3/A. It is argued CC No. 37/2004. 10/63 11 that prosecution has proved its case beyond reasonable doubts against accused, hence accused may be convicted U/s 7 & 13 (1)
(d) of P C Act, 1988.
DEFENCE ARGUMENTS 15 Ld Defence counsel argued that accused was working as Head Clerk in the office of STA, Delhi. He was not authorised to issue route permit. He had completed his work on 23.3.2001 and forwarded the file to Secretary STA, Delhi Sh Parveen Desai who had to issue the route permit and hand over the same to the person concerned himself, thus there was no occasion for the accused to demand bribe for doing any favour to the complainant in issuing the route permit.
16 It is argued by Ld Defence counsel that in this case sanctioning authority has granted the sanction in mechanical manner without applying her mind . Sanctioning authority had received a draft sanction order and had signed the same without going through it which is clear from the fact that wrong date and vehicle No. has been mentioned in the sanction order as appeared in the draft of sanction order.
17 It is argued that prosecution has utterly failed to CC No. 37/2004. 11/63 12 prove that accused had made alleged demand of bribe and the acceptance of the same from the complainant or Nawab Khan. Prosecution has also failed to prove recovery of tainted money from the possession of accused. PW1 Sh K S Chabbra has only countersigned the report hence no reliance can be placed on it.
18 It is argued by Ld. Defence Counsel that date of complaint in Handing Over Memo Ex PW 2/B is mentioned as 26.3.2001 at point DX but investigating agency has not produced any complaint dt. 26.3.2001 on the judicial file. It is argued that name of all the witnesses has been typed on the second page of Handing Over Memo Ex PW 2/B while name of Nawab Khan has not been typed but his signature has been taken. It is argued that PW Nawab Khan and Anil Kumar have deposed that tape recording devices were used in this case but investigating agency has not disclosed it in the charge sheet. It proves the concealment and malafide intention of investigating agency.
19 It is argued that oral evidence produced by the prosecution is full of contradictions hence unreliable therefore no reliance can be placed on the same. It is argued that PW Nawab Khan who has allegedly handed over the bribe money is an extortionist who is running a racket of terrorizing official of STA CC No. 37/2004. 12/63 13 and traffic police . His statement is full of contradictions. He has changed his version several time . He has admitted in his cross examination that he was paying bribe money to traffic police . He has also admitted that he was acting as middle man for paying bribe to traffic police personnel.
20 It is argued by Ld. Defence Counsel that accused Nawab Khan in connivance of one Javed who is retired Head Constable of CBI and a business partner of Nawab Khan has falsely got implicated accused in this case. It is argued that in these circumstances, accused may be acquitted.
21 Ld Defence counsel has placed reliance on following authorities in support of his arguments:-
State through CBI Vs Ravinder Singh , Crimes IV- 1995(2).
N M Rajendran Vs State Rep. Inspector of Police. Crimes VII-1996(3) Prithipal Singh Vs State of Punjab , Crimes IX- 1991(3).
Bishambhar Dayal Srivastava Vs. State of UP Crimes III-1994 (1) Banarsi Dass Vs State of Haryana, 2010(2) C .C CC No. 37/2004. 13/63 14 Cases ( SC) 181.
L K Jain Vs The State through CBI, 2005(3) JCC 1677.
Suraj Mal Vs the State (Delhi Administration) AIR 1979 Supreme Court 1408.
Khilli Ram Vs State of Rajasthan AIR 1985 Supreme Court 79.
Ajit Kumar Somnath Pandya Vs The State of Gujarat, Crimes -II 1992 (1).
Subhash Parbat Sonvane Vs State of Gujarat, 2002 Crl L J 2787.
Harbans Singh Vs State of Punjab 2010 (2) C.C. Cases ( HC) 287.
Ajit Singh Dahiya Vs Director CBI & Ors 2009 (2) C.C Cases ( HC) 339.
I have carefully considered all the arguments raised before me and have gone through the record.
22 U/s 7 of P C Act, 1988 prosecution has to prove that :
(i) The accused was a public servant or expected to be a public servant at the time when the offence was committed.CC No. 37/2004. 14/63 15
(ii) The accused accepted or obtained or agreed to accept or attempted to obtain illegal gratification from some person.
(iii) For himself or for any other person.
(iv) Such gratification was not a remuneration to which the accused was legally entitled.
(v) The accused accepted such gratification as a motive or reward for,
(a) doing or forbearing to do an official act, or
(b) doing 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 some one with the Central or any State Government or Parliament or the Legislature of any State, of with any local authority, Corporation or Government company referred to in Sec. 2 clause © or with any public servant, whether named or otherwise.
PUBLIC SERVANT AND SANCTION 23 It is undisputed that accused was working as Head Clerk in the office of STA Underhill Road Delhi at the relevant time i e during the month of March 2001. This fact has also been proved by PW 3 Ms Sindhu Shri Khuller . Even otherwise it has CC No. 37/2004. 15/63 16 not been disputed on behalf of accused that he was not a public servant.
24 PW3 Ms Sindhu Shri Khullar has stated that on 21.8.2001 she was posted as Secretary- cum -Commissioner Transport Department, Underhill Road Delhi. She was competent to remove K C Singh from his post as a Head Clerk. She had granted sanction for the prosecution of accused KC Singh under her signatures which is Ex PW3/A after going through the record i e complaint, FIR, statement of witnesses placed before her . In her cross examination she has admitted that a draft proforma of sanction order was also received from CBI . However, she has further sated that she had called record and documents relating to the accused from her office. She has denied the suggestion that she had granted sanction without application of her mind and sanction order Ex PW 3/A is verbatim of draft proforma.
25 Ld Defence counsel argued that vehicle No. and date has been wrongly mentioned in the sanction order, similar to that mentioned in the draft perform which proves that sanctioning authority has not applied her mind and merely signed the draft sanction order on dotted lines. It is surprising that Ld Defence counsel has not confronted Sanctioning Authority Ms Sindhu Shri CC No. 37/2004. 16/63 17 with the alleged wrongly mentioned dates when she appeared in the witness box. Infact, all the dates have been correctly mentioned in the sanction order.
26 I have gone through the sanction order Ex PW3/A U/s 19 of P C Act, 1988. It is a detailed order wherein all the relevant facts and circumstances are mentioned with reference to the relevant evidence, therefore, it cannot be concluded that sanctioning authority had not applied her mind while granting sanction in this case.
27 Our Hon'ble Supreme Court has held that where the sanction order itself is a speaking order in such circumstances it is not necessary to prove it by leading evidence that sanctioning authority has applied his due mind. Reliance is placed on C S Krishnamurthy Vs. State of Karnataka 2005 IV AD (S.C.) 141 wherein in para No.9 it is observed as follows:
"Therefore, the ratio is sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself then the satisfaction of the sanctioning authority is apparent by reading the order. In the present case, the CC No. 37/2004. 17/63 18 sanction order speaks for itself that the incumbent has to account for the assets disproportionate to his known source of income. That is contained in the sanction order itself. More so, as pointed out, the sanctioning authority has come in the witness box as witness No.40 and has deposed about his application of mind and after going through the reports of the Superintendent of Police, CBI and after discussing the matter with his legal department, he accorded sanction. It is not a case that the sanction is lacking in the present case. The view taken by the Additional Sessions Judge is not correct and the view taken by learned Single Judge of the High Court is justified."
28 It is correct that sanctioning authority had received a draft proforma of the sanction order, however, sanctioning authority has categorically stated that she had gone through the documents and applied her mind before granting the sanction. She has also denied the suggestion that she had granted sanction without application of mind.
29 Our Hon'ble Supreme Court in this regard in State of Tamil Nadu Vs. Damodaran, 1993 Supreme Court Cases (Crl) 272 has held as follows:
"Prevention of Corruption Act, 147 - Ss. 5 (1) (e) and 5 (2) CC No. 37/2004. 18/63 19 read with S. 161, IPC - Non application of mind and grant of sanction mechanically by sanctioning authority - Basis of acquittal by High Court - High Court deeply influenced in its decision by the fact that a model sanction order was enclosed with the record sent to the sanctioning authority - Held, acquittal not justified - There was no infirmity in the order granting sanction - Criminal Procedure Code, 1973 S. 197".
30 Hon'ble Supreme Court in Indu Bhushan Chatterjee vs. State of West Bengal, AIR 1958 SC page 148 has held as follows :
" In his evidence in Court the Sanctioning Authority stated that the sanction was prepared by the police and put before him by the personnel branch of his office and that before according sanction we went through all the relevant papers put before him. The sanction granted U/S 6 was perfectly valid. The statement of the sanctioning authority did not prove that he merely put his signatures on the readymade sanction presented by the police without applying his mind to the facts of the case. It was not for him to judge the truth of the allegations made against the accused by calling for the record of the connected claim cases or other records in connection with the matter from his office . The paper which were placed before him apparently gave him the CC No. 37/2004. 19/63 20 necessary material upon which he decided that it was necessary in the hands of justice to accord his sanction."
31 Ld Defence counsel has placed reliance on following authorities in support of his arguments on the point that sanction granted on the basis of draft performa / without due application of mind by the sanctioning authority is invalid.
State through CBI Vs Ravinder Singh , Crimes IV- 1995(2). N M Rajendran Vs State Rep. Inspector of Police. Crimes VII-1996(3)Prithipal Singh Vs State of Punjab , Crimes IX-1991(3) and Bishambhar Dayal Srivastava Vs. State of UP Crimes III-1994 (1).
32 I have carefully gone through all these authorities. These authorities are of various High Courts however the authorities relied upon above are of Hon'ble Supreme Court . It is well settled proposition of law that authorities of Hon. Supreme Court prevail over the authorities of Hon'ble High Court. Even otherwise as discussed above in our case it is proved that sanction was granted by Sanctioning Authority after due application of her mind while in these authority it was held that sanction was granted without application of mind hence the sanction for the prosecution of accused was declared invalid in these authorities, CC No. 37/2004. 20/63 21 therefore these authorities are distinguishable even on the facts from the case in hand.
33 In view of above discussion there is no merit in the argument that sanction for the prosecution of accused K C Singh is invalid.
34 There is no merit in the argument that there was no occasion for the accused to demand bribe from the complainant for issuing the route permit because the same was to be handed over to the complainant by Secretary STA . Secretary STA Sh Parveen Desai appeared in the witness box as PW4 . In his examination in chief he has stated as follows:
" I was present in office on 27.3.2001 . The duty of accused on that day was for issuance of permit and to supervise the subordinate staff . He did not have any particular counter. Accused was also present on the seat of the Head clerk."
This witness has further stated in his examination in chief as follows:
" Accused K C Singh was supervising Suvidha Bus Service, Graguate Permit, Inter State Permit, SC Scheme , Old State Carriages, Ex-servicemen, Points to Points permits etc."CC No. 37/2004. 21/63 22
In his cross examination he has stated as follows:
" As per procedure as Assistant Secretary, I shall take the signatures of permit holder in whose favour permit is issued. After my signatures the file shall be sent to the concerned dealing LDC in the branch. Shri Ramesh Kumar was the dealing LDC at that time. The permits would be then sent to the dispatch section of our branch and shall be delivered to the applicant , whosoever appears, shows the receipt of transfer and ask for the same."
35 From the above quoted cross examination of PW4 it is clear that permit had to be delivered to the concerned person from the dispatch section . And not by Secretary STA himself. Thus there is no merit in the argument of Ld Defence counsel in this regard.
36 Moreover, complainant was not aware of the fact that accused had completed his work on 23.3.2001 . In his complaint Ex PW2/A complainant Mukesh Kr has specifically written that K C Singh was demanding Rs.5000/- as illegal gratification for transferring the route permit in his name and is stating that without paying the bribe amount he will not receive the permit.
CC No. 37/2004. 22/63 2337 To constitute an offence under this Section it is enough if the public servant who accepts the gratification takes it by inducing a belief or by holding out that he would render assistance to the giver, " with any other public servant" and the giver, gives the gratification under that belief. It is not the requirement of law that public servant who has accepted money must be in position to do the official act, favour or service at the time of demand or receipt of illegal gratification.
38 Hon'ble High Court of Madras in P. Sabbaraj Vs The State 1995 CRI L J 3440 in this regard has held as follows :
" Prevention of Corruption Act (2 of 1947), S. 5(1)
(d) - Bribery- Proof - Acts of accused, a public servant is taking illegal gratification from complainant for securing him job in some other department - Falls under the mischief of Section 5(1)
(d) and Section 161, Penal Code- Such acts of accused need not be proved to be done in discharge of his official duties."
39 Hon'ble High Court of Bombay in Indur Dayadas Advani Vs The State of Bombay in this regard has held as follows :
CC No. 37/2004. 23/63 24" The section does not require that the public servant must himself have the power or must himself be in a position to perform the act or show favour or disfavor for doing or showing which the bribe has been paid to him . From the last explanation to this section it is clear that it is not necessary in order to constitute an offence under Section 161 that they act for doing which the bribe is given should actually be performed. It is sufficient if a represention is made that it has been or that it will be performed and a public servant, who obtains a bribe by making such representation will be guilty of the offence punishable under this Section, even if he had or has no intention to perform and has not performed or does not actually performed that act. A presentation by a person that he has done or that he will do an act impliedly includes a representation that it was or is within his power to do that act."
40 Hon'ble Supreme Court in Shiv Raj Singh Vs Delhi Administration AIR 1968 SC 1419 in this regard has held as follows :
" When a public servant is charged u/s 161 Penal Code and it is alleged that the illegal gratification was taken by CC No. 37/2004. 24/63 25 him for doing or procuring an official act, it not necessary for the Court to consider whether or not the accused public servant was capable of doing or intended to such an act. Thus although the concealment of the birth of an illegitimate child is not an offence under the Penal code or any other criminal statue, if a public servant obtains money from anybody on that ground he is guilty of grossly abusing his position as a public servant within the meaning of Section 5 (I) (d) of the P C Act and thereby obtain for himself a valuable thing or pecuniary advantage and he can be charge under this section."
41 Hon'ble Supreme Court in Chaturdas Bhagwandas Patel Vs The State of Gujrat (1976) SCC-46 this regard has held as follows :
" Section 161 does not require that public servant must, infact , be in a position to do the official act, favour or service at the time of demand or receipt of gratification . To constitute an offence under this section it is enough if the public servant who accept the gratification, takes it by inducing a belief or by holding out that he would render assistance to the giver " with any other public servant " and CC No. 37/2004. 25/63 26 the giver gives the gratification under that belief. It is further immaterial if the public servant receiving the gratification does not intend to do the official act, favour or forbearances which he holds himself out as capable of doing .This is clear by the last explanation appended to section 161 and illustration"
DEMAND AND ACCEPTANCE :
42 Complainant Mukesh Kumar in his complaint Ex PW 2/A has specifically stated that K C Singh was demanding Rs. 5,000/- as illegal gratification for transferring the route permit in his name and threatening that without paying the same route permit will not be given. Relevant portion of his complaint in this regard is as under:
"
42 Mukesh Kumar has appeared in the court as PW2. He has proved his complaint Ex PW 2/A. Ld. Defence Counsel CC No. 37/2004. 26/63 27 in his cross examination has given a suggestion to this witness that this complaint was written by him on the dictation of Nawab Khan which has been denied by this witness. Except this Ld. Defence Counsel has not given even a suggestion to PW2 that what he had written in the complaint was wrong. Thus contents of complaint are admitted to be true and correct.
43 Ld. Defence counsel has argued that PW2 has not identified the accused as the person who had demanded illegal gratification. PW2 in his examination in chief has stated that some clerk had demanded Rs.5,000/- from him for giving the permit. He had also stated that accused present in the court may be the same person who had demanded the illegal gratification from him. It is also well proved on the file that accused was dealing with the transfer of the route permit of the vehicle of Mukesh Kumar. Thus, from a combined reading of complaint and statement of PW2 made in this court identity of accused as the person who had demanded gratification is well established.
44 PW7 Nawab Khan in his cross examination by Prosecutor, with regard to demand of illegal gratification by accused stated as follows:
" It is correct that subsequently at about 13.00 hours I, CC No. 37/2004. 27/63 28 Mukesh and Anil Kumar again visited counter No.13 manned by the accused. At about 1.30 hours accused had asked me while at about No.13 "Jo Bols Tha Laye HO" When I had informed that I have brought the money, accused said "Lao Do". It is correct that then I took out the tainted bribe amount with my right hand from left side upper pocket of my shirt and gave the same to the accused who accepted the tainted money with his right hand, counted the same with his both hands and kept the same in his left side pant pocket."
45 It is correct that Nawab Khan in his cross examination has admitted that he was paying bribe to traffic police personnels and was also acting as a middle man for paying bribe to traffic police personnels. He has also changed his version in his examination in chief and cross examination various times. Ld. Defence Counsel has also produced material on the judicial file to show that he is not a man of good character. In these circumstances this court is of opinion that Nawab Khan is a man of doubtful character, hence, this court will rely upon only portion of his evidence which is duly corroborated by other evidence.
46 PW9 Anil Kumar, who has acted as shadow witness CC No. 37/2004. 28/63 29 in this regard has stated as follows:
"I, D N Madwal and other CBI officers were in the vicinity of counter No.13. Nawab Khan approached K C Singh. K C Singh asked "Jo Bola Tha Laye Ho" Nawab Khan had replied "Jitna Bola Tha Utna Lauya Huin" K C Singh had asked "Layeye" by extending his right hand. Nawab Khan had taken out the money from his left side wearing pocket of shirt from his right hand and passed on the same in the extended right hand of K C Singh. After taking money K C Singh had kept the same in his right hand side pant pocket again said left hand side pant pocket. Thereafter CBI Inspector caught hold K C Singh. The CBI officials had come after I had given pre-appointed signal by scratching my head"
47 PW8 Sh R C Sharma inspector CBI,ACB in this regard has deposed as follows:
" I was also along with the shadow witness and the complainant. And I could clearly hear the conversation between accused and complainant. The accused asked the complainant "
Jitna Bola Dha Laye Ho" to which complainant reply that " Haa Jitna BolaDha Layea Hoo" Thereafter the bribe amount of Rs.5000/- was handed over by the complainant to the accused on his demand. The accused kept the said amount in his left side pant CC No. 37/2004. 29/63 30 pocket."
48 PW10 Sh. S K Lal TLO in his statement, in this regard, has stated as follows:
"I enquired from complainant and Nawabs Khan in respect of the conversation which had occurred for the transaction. They narrated that K C Singh after seeing them told " "Jo Bola Tha Laye Ho" Then Nawab Khan replied " Ji Jitna Bola Tha Utna Lauya Huin" Thereafter K C Singh demanded by saying "Lao Do". Then Nawab Khan passed on the bribe amount of Rs.5,000/- by saying "Lijiye". Further I asked shadow witness Anil Kumar separately in respect of conversation. Even Nawab Khan and SI R C Sharma confirmed the narration of Nawab Khan."
49 Testimony of CBI officer cannot be rejected merely because they happened to be police officers. It is observed by the Hon'ble Supreme Court in Tahir Vs State ( 1996) 3 SCC 399, no infirmity attaches to the testimony of police officials merely because they belong to the police force. It was observed in Aner Raja Khim Vs The State of Saurashtra AIR 1956 SC 217 that the presumption that a person acts honestly and legally applies as much in favour of police offices as of others. It is not proper and permissible to doubt the evidence of police officers. Judicial CC No. 37/2004. 30/63 31 approach must not be to distrust and suspect their evidence on oath without good and sufficient ground thereof.
50 The statement of Nawab Khan with regard to demand of illegal gratification made by accused K C Singh and the acceptance of same by accused has been duly corroborated by PW Anil Kumar who is an independent witness and nothing such has come out in his cross examination to disbelieve him. PW 8 R C Sharma has also corroborated this version. TLO Sh. H K Lal has also stated that on his enquiry immediately after apprehending accused Nawab Khan and Mukesh had confirmed this version. Thus, this version can be relied upon. Therefore, this court is of opinion that prosecution has proved its case that accused had demanded illegal gratification of Rs,.5,000/- from the complainant which was also accepted by him voluntarily consciously.
RECOVERY 51 With regard to recovery of the bribe money from the accused D N Madwal has has stated as follows:
CC No. 37/2004. 31/63 32"I followed the CBI personnels. They had reached prior to me, however, money was recovered in my presence. I had seen the money in the hand of witness. I had not seen him taking out the money from the accused."
PW6 D N Madwal in his cross examination by the prosecutor has stated as follows:
"I do not remember what the colour of wash was changed and on the direction of CBI I recovered the tainted GC notes of Rs.5,000/- from the pant pocket of accused. CBI had tallied the number of currency notes with the memo and the same were found to be correct."
52 PW9 Sh Anil Kumar in his examination in chief with regard to the recovery of tainted money from accused has stated as follows:
" Inspector of CBI, Jayant Kashmiri had taken out the money from the pocket of accused. Number of currency notes were tallied with the Handing Over Memo by Mr Madwal and myself . The number of recovered GC notes were tallied with the number mentioned in the handing over memo."CC No. 37/2004. 32/63 33
53 PW8 Sh R C Sharma with regard to the recovery of tainted money from the accused has stated as follows:
" The bribe amount of Rs.5000/- was recovered by recovery witness Sh Madwal . The entire post trap proceedings was held in my presence."
54 PW10 Sh S K Lall TLO of this case with regard to recovery of tainted money from the possession of accused has stated as follows:
" Thereafter witness D N Madwal on being directed bring out tainted Rs.5000/- from left side wearing pant pocket of K C Singh and with the help of shadow witness Anil Kumar tailed the recovered bribe amount of Rs.5000/- from the numbers and denominations recording in Handing Over Memo Ex PW2/B. Witness Anil Kumar after tallying, ticked the numbers in Ex PW2/B. Ticking of Anil Kumar on the face of Ex PW 2/B is apparent. After tallying the number and denominations of recovered GC notes ( Ex P1 to P10) from the number of denomination recorded in Ex PW2/B witness confirmed that these are the same notes which were recovered from K C Singh."CC No. 37/2004. 33/63 34
55 According to the case of prosecution D N Madwal had recovered the tainted money from the pocket of accused, however he has not supported the case of prosecution. PW9 Anil Kumar has stated that CBI officer Jayant Kashmiri had recovered the tainted money from the pocket of accused . PW10 H K Lall has specifically deposed that D N Madwal recovered the bribe money from the pocket of accused. This witness has been cross examined at length by Ld Defence counsel, however nothing such has come out in his cross examination so as to disbelieve his statement.
56 The law is that even if the complainant and independent witness have turned hostile, conviction can be made on the solitary statement of the trap officer without corroboration if it inspire confidence. Reference is placed on case on Hazari Lal Vs 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 the trial complainant turned hostile and deposed that when he went to the police station on first occasion to obtain delivery of his scooter rickshaw it was not the accused that was CC No. 37/2004. 34/63 35 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 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 the 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 not rule of prudence which has crystallized into a rule of law, nor indeed any rule of prudence , which requires that the evidence of such officer should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration . In facts and CC No. 37/2004. 35/63 36 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 accept the evidence of such an officer."
57 The Hon'ble Supreme Court in case of State of UP Vs Zakaullah AIR 1998 SC 1474 held " that the evidence of trap officer can be relied upon even without corroboration if it inspire confidence."
58 PW9 Anil Kumar and PW10 H K Lall and PW 2 Mukesh Kumar as well as PW 7 Nawab Khan have specifically deposed that wash of both the hand of accused and that of left pocket of the pant was taken with the sodium carbonate solution which had turned pink. Relevant portion of examination in chief of PW 9 Anil Kumar in this regard is as under:
" Fingers of hands of accused KC Singh were washed thereafter right hand fingers were washed. The colour of wash turned pink in both the cases of both the hands. The wash was kept in glass tumbler. The labels were put on glass tumbler and I put my initials on those slips. Pant of accused was taken off CC No. 37/2004. 36/63 37 after arranging another pant for him. Wash of Left pocket of pant was taken with the Sodium Carbonate solution which had turned pink."
59 PW1 Sh K S Chhabra Senior Scientific Officer CFSL, has stated that on 30.3.2001 three sealed bottles were received in his office having seal intact marked as LHW, RHW and LSTPW containing liquid . On analysis all these samples had given positive tests for phenolphthalein and sodium carbonates. This witness has further stated that remnant were sealed with his seal and wrappers were sealed in one envelope alongwith his seal. He has proved his chemical examination report Ex PW1/A of all these three samples . He has also identified his signatures on the report. In his cross examination he has produced the worksheet and identified the hand writing of his assistant P. Nath which is Ex DA.
60 It proves the presence of phenolphthalein powder on both the hands of accused as well as in left pant pocket of accused . Phenolphthalein powder appeared on the hands of accused and in his left pant pocket because he had received the phenolphthalein quoted GC notes from Nawab Khan and kept the same in his left hand side pant pocket.
CC No. 37/2004. 37/63 3861 The importance of phenolphthalein test was underline by the Hon'ble Supreme Court in Som Parkash Vs State of Delhi AIR 1974 Supreme Court 989, where in para 10 it is held as under:
" ............... of course, the oral evidence of PWs 1and 4 by itself, if believed as rightly believed by the High Court , proves the passing of the money to the accused and its production by him when challenged by P.W 7 . The fact is indisputable that the hands, the handkerchief and the inner lining of the trouser pocket of the accused turned violet when dipped in soda ash solution. From this the State counsel argues that on no hypothesis except that the notes emerged from the accused's Pocket or possession can the triple colour change be accounted for . The evidence furnished by inorganic chemistry often outwits the technology of corrupt officials, provided no alternative reasonable possibility is made out. The appellant offers a plausible theory. PW 1 kept the notes with him and his hands thus carried the powder. He gave a bottle of cake to the accused and the bottle thus transmitted particles of phenolphthalein to the latter's hands. He ( the accused ) wiped his face with the handkerchief and put it into his trouser pocket thus contaminating CC No. 37/2004. 38/63 39 the lining with the guilty substance. Moreover, the inner lining was dipped by PW 7 with his hands which had the powder . Thus, all the three items stand explained, according to him. These recondite possibilities and likely freaks have been rejected by both the courts and we are hardly persuaded into hostility to that finding. It is put meet that science- oriented detection of crime is made a massive programme of police work, for in our technological age nothing more primitive can be conceived of than denying the discoveries of the sciences as aids to crime suppression and nothing cruder can retard forensic efficiency then swearing by traditional oral evidence only thereby discouraging the liberal use of scientific research to prove guilt."
62 In Raghbir Singh Vs State of Punjab (1976) 1 SCC 145 while discarding the oral and documentary evidence laid on behalf of the prosecution is not such as to inspire confidence in the mind of the Court, the Supreme Court observed in para No.11 as follows:-
" We may take this opportunity of pointing out that it would be desirable if in cases of this kind where a trap is laid for a public servant, the marked current notes, which are used for tte purpose of trap, are treated with phenolphthalein power so CC No. 37/2004. 39/63 40 that the handling of such marked currency notes by the public servant can be detected by chemical process and the court does not have to depend on oral evidence which is something of a dubious character for the purpose of deciding the fate of the public servant."
63 PW 6 D N Madwal has not supported the case of prosecution even he has stated that accused had become perplexed when he was apprehended by the CBI officer. Relevant portion of his statement in this regard is as under:
" When CBI apprehended the said person he did not utter a word and kept mum."
64 PW10 H K Lall in this regard has stated as follows:
" I challenged K C Singh of having demanded and accepted illegal gratification he became perplexed and could not offer any reply. He disclosed his identity that he is Head Clerk. He has pointed towards his left side pant pocket where he had kept the bribe amount after accepting the same."
65 In the prosecution for offence of bribery the conduct of accuse is relevant U/S 8 of Evidence Act. When the accused CC No. 37/2004. 40/63 41 was challenged regarding acceptance of bribe amount he kept mum and had not given any explanation.
66 Hon'ble Supreme Court in Parkash Chand Vs Delhi Admn AIR 1979 SC 400 in para No.8 has observed as follows:
" It was contended by the ld. Counsel for the appellant that the evidence relating to the conduct of the accused when challenged by the Inspector was inadmissible as it was hit by section 162 Criminal Procedure Code. He relied on a decision of the Andhra Pradesh Hingh Court in D.V. Narisimhan V.State,(AIR 1969 andh Pra 271). We do not agree with the submissions of Sh. Anthony. There is a clear distinction between the conduct of a person against whom an offence is alleged which is admissible under section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a police officer in the course of an investigation which is hit by sec. 162 Criminal Procedure code. What is excluded by sec. 162 Criminal Procedure Code is the statement made to a police officer in the course of investigation and not the evidence relating to the conduct of an accused person ( not amounting to a statement) when confronted or questioned by a police officer during the course of an investigation. For example, the evidence of the circumstances, simpliciter,that an accused person led a police officer and pointed out the place CC No. 37/2004. 41/63 42 where stolen articles or weapons which might have been used in the commission of the offence where found hidden, would be admissible as conduct, u/s 8 of the evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act(vide Himachal Pradesh Administration Vs. Om Prakash AIR 1972 SC 975
67 At the time of trap accused K C Singh was working at counter No.13 . He was sitting alone inside a close cabin i e counter No.13. In this regard PW 9 Anil Kumar has stated as follows:
" Sh K C Singh used to work at counter No.13 of said Transport Authority. When complainant Sh Mukesh Kumar Sharma and his partner Nawab Khan approached at counter No.13, it was gathered that Sh Parveen Desai, Secretary State Transport Authority was not available on his seat. At about 1/1.5 PM Sh Mukesh Sharma and Nawab Khan again went to counter No 13."
68 In this regard PW 10 S K Lall has stated as follows:-
" Complainant alongwith his partner Nawab Khan CC No. 37/2004. 42/63 43 shadowed by witness Anil Kumar took their position near counter No.13, where K C Singh was found functioning. This counter No.13 was situated on the ground floor building of STC . Other members and witness were vigilant nearby the counter No.13 and keeping their vigil eye on the transaction. .......................
Again at about 1 PM complainant his partner Nawab Khan and shadow witness Anil Kumar, and SI R C Sharma approached counter No.13 , other members took their suitable position as stated above. After 10 minutes we noticed pre fixed signal of shadow witness Anil Kumar. We rushed to the spot and entered from inside at counter No.13 where K C Singh had accepted Rs.5,000/- from Nawab Khan."
69 H K Lall in his cross examination has stated as follows:
" The door was not bolted from inside . 4-5 members of Trap Team including independent witnesses and myself had entered inside the cabin of accused. None else was sitting inside the cabin of accused with accused."
From the above quoted stated of witnesses, it is well proved on the file that accused alone was sitting inside his CC No. 37/2004. 43/63 44 cabin. In these circumstance, how the tainted money reached in his pocket only he alone can explain?
70 From the above discussion, it is proved that accused had voluntarily and consciously accepted the bribed money from Nawab Khan which was demanded by him and the same was recovered from his conscious possession.
71 When it is proved that there was voluntary and conscious acceptance of the money by the accused, there is no further burden cast on the prosecution to prove by direct evidence the demand or motive, in view of Section 20 of PC Act, 1988. It has been held so by our Hon'ble Supreme Court in B. Noha Vs. state of Kerala, 2006 IV AD 465.
72 Our Hon'ble Supreme Court in State of Andhra Pradesh Vs. R Jeevaratnam, 2004 (2) JCC 1161 has held as follows in this regard:
"Prevention of Corruption Act, 1988 - Sec. 20 (1)
-Presumption under - Respondent caught red-handed with the marked money in a briefcase carried by him - Presumption that he accepted illegal gratification arose".CC No. 37/2004. 44/63 45
73 Our Hon'ble Supreme Court in Madhukar Bhaskarrao Josi Vs. State of Maharashtra (2000 (8) SCC 571) has held as follows in this regard:
"The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted 'as motive or reward' for doing or forbearing to do any official act. So the word 'gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premises that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like 'gratification or any valuable thing'. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word 'gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it".
74 This decision was followed by Hon'ble Supreme Court in M. Narsinga Rao Vs. State of A.P. (2001 (1) SCCC
691). wherein it has been held that " There is no case of the CC No. 37/2004. 45/63 46 accused that the said amount was received by him as the amount which he was legally entitled to receive or collect from PW-1. It was held in the decision in State of A P Vs. Kommaraju Gopala Krishna Murthy (2000 (9) SCC 752), that when amount is found to have been passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification. That burden was not discharged by the accused."
75 It is argued by Ld Defence counsel that accused was falsely implicated by the CBI at the instance of Nawab Khan who wants to put undue pressure on the STA officials to get undue benefit through his friend Javed Khan who was working as Head Constable in CBI. PW 10 H K Lall, TLO of the case has specifically denied it . His statement in this regard is as follows:
" I do not any Head Constable Javed Khan in Anti Corruption Branch of CBI. I had joined CBI on deputation in the year 1999 and remained upto June 2001 and thereafter repatriated to my original department . It is not in my knowledge whether during my tenure one H C Javed Khan was working in CBI"......
............... It is wrong to suggest that accused has been falsely implicated in this case at the instance of Nawab Khan CC No. 37/2004. 46/63 47 who wants to put undue pressure on the STA officials to get undue benefit."
76 It is clear from the statement of H K Lall, the Trap Lying Officer that he was on deputation in CBI and even not aware whether any Head Constable named Javed Khan was working in CBI thus there can be no question of falsely implicating accused at the instance of Nawab Khan through Javed. There is no merit in the arguments of Ld Defence counsel.
77 Independent witness Anil Kumar is Government servant who was working as LDC in the office of Food & Supply NCT,Delhi. He is the shadow witness in this case. He has fully supported the case of prosecution and nothing such has come out in his lengthy cross examination conduced by Ld Defence counsel to disbelieve his statement. He was directed by his senior officers to join the investigation of CBI in this case, hence he cannot be termed as witness of the choice of CBI. He has not joined investigation of CBI in any other case except the present one. He was neither knowing the complainant nor the accused prior to this case. He has no affinity with the complainant and no enmity with the accused. In these circumstances, no motive can be imputed to him to depose falsely against accused. Even CC No. 37/2004. 47/63 48 otherwise, nothing such has come in his cross examination to disbelieve his evidence. According to accused he has been falsely implicated in this case by CBI at the instance of complainant /Nawab Khan through Javed Ahmed . It is argued by Ld Defnece counsel that bribe money has been falsely implanted by the CBI on the accused by inserted in his pocket. TLO and independent witness Anil Kumar as well as complainant Mukesh and Nawab Khan has denied it. CBI is the Prime Investigating Agency of this country. Mukesh Kumar, complainant in this case is a ordinary citizen who is facing difficulty even in getting transfer route permit of his vehicle . In any manner he is not such a personality so as to influence a prime investigating agency like CBI. There is no reason to believe that CBI would falsely implicate the accused at the instance of complainant Mukesh Kumar. Independent witness Anil Kumar TLO H K Lall and PW 8 R C Sharma, inspector are public servants unknown to accused and complainant, there is no reason why they will depose falsely against accused. There is no reason why the TLO and other trap team members who were also public servants will falsely implicate a public servant in this case. No enmity/ ill will has been alleged against the TLO and PW R S Sharma even by accused, therefore they are having no motive to falsely implicate the accused in this case. In these circumstances the argument that CC No. 37/2004. 48/63 49 accused was falsely implicated by forcibly putting money in his pocket, at the instance of complainant/ Nawab Khan through Javed does not appeal even to common sense.
78 Our Hon'ble Supreme Court in recent case titled State rep. by CBI, Hyderabad Vs G Prem Raj having similar facts observed as follows:
" Prevention of Corruption Act- Sec.7, 13(1)(d), 13(2) and 20- Appeal against judgment of acquittal - Respondent was working as a Senior Engineer - Respondent - Accused demanded bribe failing which he showed his reluctance to prepare the detailed programme of work- Recovery of bribe money- Full
- fledged departmental enquiry was conducted against the accused- Trial Judge convicted the respondent for the offence charged- Evidence of PW1 suggests that question of payment of Rs.50,000/- as bribe money arose only after the letter Ex P1 was written informing him that he was awarded the contract- Respondent- Accused had, at no point of time, complained to anybody that the amount was thrust in his hand- Held - High Court has not properly viewed that the bribe was demanded for completing the contract- First circumstance- Movement of the respondent - accused out of his office and going to Taj Mahal Hotel after office hours at 6'O clock raises accusing finger CC No. 37/2004. 49/63 50 towards the intentions of the respondent- accused- High Court, without going into the details of th evidence, has merely come to the conclusion that no demand was made - There is no explanation, whatsoever, of this second fact as to how the fingers of the respondent - Accused were soiled with phenolphthalein - High Court has committed an error in ignoring the provision of Section 20 of the Act and ignoring the fact that the presumption had to be raised, and on that basis , it was up to the respondent- accused to explain as to how the amount came in his possession - Evidence of PW1 was corroborated by the evidence of PW2 and PW7 - No reason to falsely implicate the respondent- accused- This was certainly not the jurisdiction on the part of the High Court to directed his reinstatement as senior most Civil Engineer, Civil Department, with all usual retrial monetary benefits inclusive of restoration of seniority etc with immediate retrospective effect."
79 It is argued by Ld Defence counsel that there was huge rush in the office of STA at the time of trap however CBI has not joined any public person present there nor has called any colleague of the accused or his Senior Officer from the STA office. It is correct that public witnesses were available on the spot of trap and CBI had not joined them. It cannot be disputed CC No. 37/2004. 50/63 51 that the public does not want to get dragged in police and criminal case and wants to avoid them, because of long drawn trial and unnecessary harassment. Similar view was taken in Manish Vs State, 2000 VIII AD ( SC) 29 and in A Bhai Vs State of Gujrat, AIR 1980 SC 696. We can't oblivious to the reluctance of a common man to join such raiding parties organized by the police, lest they are compelled to attend police Station and Court umpteen times at the cost of considerable inconvenience to them, without any commensurate benefit. Hence, no adverse inference on account of non-joining of public witnesses in such raid should be drawn, particularly when CBI had already joined two independent witnesses who were also public servants.
80 It is correct that there are several contradiction with regard pre trap proceedings conducted in the CBI office with regard to the name of person bringing the trap money, about the person applying the phenolphthalein powder on the GC notes, about the name of person who had touched the GC notes, etc . These pre trap proceedings are not of substantive in nature . These Pre trap proceedings were conducted to demonstrate the reaction of phenolphthalein powder with the sodium carbonate and to give an idea to the witnesses as to how the the trap proceedings will be conducted. There is also discrepancy in the CC No. 37/2004. 51/63 52 name of person who had recovered the money from the pocket of accused. PW Anil Kumar has stated that Jayant Kashimri had recovered the GC notes from the pocket of accused while H K Lall has stated that Madwal had recovered the GC notes from the pocket of accused. However both the witnesses has confirmed that bribed money was recovered from the pocket of accused.
81 The law regarding contradiction was considered by the Hon'ble Supreme Court in case of Bharuda Broginbhai Harjibhai V/S State of Gujrat AIR 1983 SC 753 where in it was held that discrepancies which do not go to the root of the matter and shake the basic version of the prosecution should not be attached undue importance. Their Lordships have enumerated following reasons for arriving of this conclusion:
i) " By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.\
ii) Ordinarily, it is so happen that a witness is over taken by events the witness could not have anticipated the occurrence which so often has an element of surprise. Thus mental faculties, therefore, CC No. 37/2004. 52/63 53 cannot be expected to be attuned to absorb the details.
iii) The powers of observance differ from person to person, but one may noticed another may not. An object or movement might emboss image on one person's mind, whereas it might go unnoticed on the part of another.
iv)By and large people cannot accurately recall a conversation and reproduced the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
v) In regard to exact time of an incident or the time duration of an occurrence, usually, people make their estimate by guess work as spare of moment, at the time of interrogation and one cannot expect people make very precise or reliable estimate in such matter.
Again it depends upon the time sense of individuals which varies from person to person.
vi) Ordinarily, a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession of in a short time span. A witness is liable to get confuse or mixed up when interrogated CC No. 37/2004. 53/63 54 later on.
vii) A witness though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross examination made by counsel and out of nervousness mixed up facts, get confused regarding sequence of events., or fill up details of imagination at the spur of moment. The sub conscious mind of the witness sometime so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and an honest account of the occurrence witnessed by him perhaps it is a sort of physiological movement".
82 In view of the law discussed above it cannot be said that the contradiction pointed out by Ld. Counsel for accused are very vital contradictions. These are contradiction which are likely to occur with the passage of time. The Hon'ble Supreme Court in case State of UP V/S M.K. Anthony, AIR 1985 SC 48 has laid down the principle for appreciating the evidence of a witness as under:
" While appreciating the evidence of a witness the approach must be whether the evidence of the witness read as a whole, appears to have a ring of truth. Once that impression is CC No. 37/2004. 54/63 55 formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, draw backs and infirmities, pointed out in the evidence as a whole and evaluate them to find out whether, it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render if unworthy of belief. Minor discrepancies of trivial matter, not touching the core of the case, hypertechnical approach by taking sentence torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of evidence as a whole."
" Their Lordships further observed:
" Unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations of infirmities in the manner of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention, and reproduction differ with individuals. Cross CC No. 37/2004. 55/63 56 examination is an unequal dual between the rustic and refined lawyer."
83 Ld Defence counsel argued that FIR No at point D-1 is hand written on Ex PW2/A, name of all the trap team members were typed however name of Nawab Khan has not been typed but his signatures have been taken which shows that Nawab Khan was not present. This question has been put to TLO in his cross examination by Ld Defence counsel . TLO has specifically denied it and stated that Nawab Khan was present on 27.3.2001 at time of pre trap proceedings. Even Nawab Khan himself stated that he was present at the relevant time and signed the handing over memo Ex PW2/A. Merely name of Nawab Khan has not been typed above his signatures does not prove that proceedings were false.
84 Ld Defence counsel argued that date of complaint as 26.3.2001 at point DX in handing over memo Ex PW2/B and it is also mentioned as 26.3.2001 in the statement of Nawab Khan recorded U/S 161 Cr P C . IO has stated that complaint was received by him on 27.3.2001 but he could not made correction on some places. Relevant portion of his statement in this regard is as under:
CC No. 37/2004. 56/63 57" It is correct that in Ex PW2/B date of complaint is mentioned as 26.3.2001 at point DX. It is also correct that at point DX in statement of complainant recorded U/S 161 Cr P C Ex PW10/DA date of complaint is mentioned as 26.3.2001 . It is correct that at point DX in the statement of Sh D N Madwal Ex PW 10/DB date has been mentioned as 27.3.2001 after cutting on figure 6. Vol this has been done for making correction. It is correct that it does snot bear my initial. It is correct that in statement of Nawab Khan recorded U/S 161 Cr P C Ex PW10/Dc date is mentioned as 26.3.2001 at point DX. It is wrong to suggest that complaint was written on 26.3.2001 that is why date 26.3.2001 is mentioned in all the documents. Vol I have received the complaint on 27.3.2001 Vol . I could not make correction at some places."
85 In view of the above statement of TLO there is no merit in this argument of Ld Defence counsel.
86 Ld Defence counsel argued that PW Nawab Khan, Anil Kumar and D N Madwal has admitted that tape recording devise was used in this case . Nawab Khan has admitted that tape recording devised was given to him, however prosecution has CC No. 37/2004. 57/63 58 concealed this fact and has not disclosed in the charge sheet thus the entire investigation is bad hence accused may be acquitted.
87 Defence cannot take advantage of bad investigation where there is evidence available on the record against the accused. In this regard our Hon'ble Supreme Court in a latest judgment titled Zindar Ali Vs. State of West Bengal & Anr., 2009 III AD (S C ) 7 held as follows:
"Indian Penal Code, 1860 -Secs. 376 and 417 - Immediate disclosure of rape by the prosecutrix - Version of prosecutrix unchallenged - Admission by the accused in village panchayat -
Medical evidence also another proof - Accused behind bar for five years - SC held - Defence cannot take advantage of bad investigation where there is clinching evidence available to the Prosecution."
88 Our Hon'ble Supreme Court in Rohtash Vs. State of Rajasthan (2007) 2 SCC (Crl.) 382 has held that that defective investigation would not lead to total rejection of prosecution case.
CC No. 37/2004. 58/63 5989 Our Hon'ble Supreme Court in State of MP Vs Man Singh ( 2007) 2 SCC 390 in this regard has held as follows:
" Criminal Trial- Investigation- Deficiencies in investigation- Effect- Held, cannot be a ground to discard the prosecution version which is authentic, credible and cogent- Criminal Procedure Code, 1973- S.157."
90 In Karnail Singh Vs. State of MP 1995 SCC 977it has been held by Hon'ble Supreme Court that in case of defective investigation it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event it would tantamount to be falling in the hands of an erring Investigating Officer.
91 I have carefully gone through all the authorities relied upon by Ld Defence counsel . In Banarsi Dass Vs State of Haryana, accused was acquitted because prosecution could not established the demand and acceptance of illegal gratification by the accused. In our case as discussed above, demand, acceptance and recovery of illegal gratification is well proved on the judicial file. In L K Jain Vs CBI accused was acquitted because prosecution could not established conscious acceptance of bribe money and recovery of the same from the accused it was held that CC No. 37/2004. 59/63 60 presumption of Section 20 cannot be drawn. As discussed above in our case conscious acceptance and recovery of bribe money well proved . In Suraj Mal Vs State of Delhi, it is held that mere recovery of money from accused is not sufficient to convict him . In our case demand of illegal gratification, conscious acceptance of bribe money and its recovery well proved, therefore fact of our case are different then this case. In Khyali Ram Vs State of Rajasthan accused was acquitted holding that over all story advanced by prosecution was not found true . As discussed above in our case prosecution has proved its case beyond reasonable doubt against accused. In Ajit Kumar Som Nath Pandya Vs State of Gujrat, accused was acquitted because prosecution could not explain the reasonable doubt in its case. In our case prosecution has proved its case beyond reasonable doubt. In Subhas Prabhat VS State of Gujrat, accused was acquitted on the ground that mere acceptance of money by him is not sufficient to convict . As discussed above , in our case demand of illegal gratification, conscious acceptance of bribe money and its recovery is well proved. In Harbans Singh Vs State of Punjab accused was acquitted because of the discrepancy in the statement of shadow witness, because he had stated that recovery was not affected in his presence. As discussed above , in our case recovery of bribe money from the pocket of accused well proved by PW Anil CC No. 37/2004. 60/63 61 Kumar and HK Lall which has also been corroborated Mukesh Kumar and Nawab Khan. In these circumstances, facts and circumstances of our case are different then that of the authorities relied upon by Ld Defence counsel.
92 Our Hon'ble Supreme Court in State of Punjab Vs. Pohla Singh, 2003 (3) CCC 75 has held as follows:
"Appreciation of evidence - The prosecution is not supposed to meet every hypothetical question raised by the defence -If crime is to be punished in a glosseme way niceities must yield to realistic appraisal."
93 Prevention of Corruption Act is a social legislation enacted with the object to curb illegal activities of public servants, in these circumstances according to the law of interpretation of Statute, its provision should be interpreted so as to achieve its object. Our Hon'ble Supreme Court in Ram Singh Vs. State of MP (2000) 5 Supreme Court Cases-88 has held as follows:
"Prevention of Corruption Act, 1988 - Nature and interpretation of -Held is a social legislation to curb illegal activities of public servant and should be liberally construed so as to advance its object and not liberally in favour of the accused -CC No. 37/2004. 61/63 62
interpretation of Statutes -Particular statutes or provisions - Penal statute - Social Legislation - Interpretation of".
94 In case U/S 13 (1) (d) of P C Act 1988 prosecution has to prove that :
i) That accused should be a public servant.
ii) That he should used some corrupt or illegal means or otherwise abused his position as a public servant,
iii) That the accused should have thereby obtained a valuable thing or pecuniary advantage.
iv) Such benefit for himself or for any other person.
In view of above discussion it is well proved from the evidence produced by the prosecution that accused, who was working as Head Clerk in the office STA , as a public servant, had demanded Rs. 5,000/- from Mukesh Kumar as illegal gratification for transferring permit of the vehicle of Mukesh Kumar in his name and accepted the same from Nawab Khan which was recovered from his possession, thus accused abused his official position. In these circumstances this court is of opinion that prosecution has proved its case beyond reasonable doubts against accused, hence accused is convicted for the CC No. 37/2004. 62/63 63 offences punishable U/s 7 & U/s 13 (2) r/w 13 (1 (d) of P C Act, 1988.
announced in open court on ( V. K. Maheshwari) this 24 day of July, 2010 rd SPECIAL JUDGE: DELHI CC No. 37/2004. 63/63 64 IN THE COURT OF V .K .MAHESHWARI SPECIAL JUDGE: (P C Act)-03 CBI) DELHI IN THE COURT OF V .K .MAHESHWARI SPECIALJUDGE: TIS HAZARI: DELHI Corruption Case No. 37/2004 CB I Vs. Sh K C Singh S/O Late L P Singh Head Clerk State Transport Authority, Under Hill Road, DELHI R.C No. DAI-2001-A-0029/CBI/ACB/New Delhi ORDER ON SENTENCE:
Vide my separate judgment dated 24.07.2010 accused was convicted for the offence punishable U/s 7 and Section 13 (2) r/w 13 (1) (d) of P C Act, 1988.
Arguments on sentence heard. It is argued on behalf of convict that he is not a previous convict. He is facing this trial since 2002 and has been regularly attending this Court. He has never tried to delay the proceedings. He is sole bread earner of his family. He is having two children, his son is suffering from Cancer and is undergoing treatment at AIIMS , his daughter is of marriageable age who is studying in B-Tech III year. He has an CC No. 37/2004. 64/63 65 unblemished record of service. It is argued that in these circumstances, lenient view may be taken against him.
It is argued on behalf of CBI that convict is involved in a serious corruption case inspite of being a public servant. He is working as Head Clerk, STA Delhi . He had demanded and accepted Rs.5,000/- as illegal gratification and was caught red handed . He should be awarded maximum punishment and heavy fine may be imposed upon him keeping in view of the provision of Section 16 of PC Act.
Corruption is a scourge that not only severally affects progress and development in the society but also poses a grave challenge to governance itself. The United Nations Global Reports on Crime and Justice quotes public opinion surveys in a number of countries, to point out that citizenry in those countries ranks corruption as one among the five most important problems facing their society. More importantly, the public in such countries seriously questions the ability of the Criminal Justice Administration to provide any bulwark against corruption. The consequence of such perceptions is a growing public cynicism and distrust in almost all the Government institutions, which is a matter of serious concern. Unfortunately, India ranks prominently high in the list of countries plagued by corruption. Anti CC No. 37/2004. 65/63 66 Corruption measures in India are perceived by the people to be weak and ineffective. More than corruption itself , it is the widespread public perception that corruption is not or would not be punished, that is detrimental to the society.
Our Hon'ble Supreme Court in Swatantar Singh Vs. State of Haryana, (1997) 4 S.C.C. 14, has observed that corruption is corroding, like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post. The reputation of corrupt would gather thick and unchaseable clouds around the conduct of the officer and gain notoriety much faster than the smoke.
Hon'ble Supreme Court in the case of State of Madhya Pradesh Vs. Ram Singh 2000 Crl. L.J. 1401 while dealing with the case of a Sub- Inspector, Excise & District Excise Officer, involved in a case under Section 13(1) (e) of the Act, inter-alia observed as follows:-
" Corruption in a civilised society is a disease like cancer, which if not detected in time is sure to maliganise the polity of country leading to disastrous consequences. It is termed as plague which is not only contagious but if not controlled CC No. 37/2004. 66/63 67 spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as Royal thievery. The socio-political system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence shaking of the socio-economic-political system in an otherwise healthy, wealthy, effective and vibrating society."
So the aforesaid sentiments expressed by the Apex court clearly shows that acts of corruption by " Public servants "
deserve to be dealt with an iron hand and such public servants do not deserve any sympathy.
After considering all the arguments raised before me, Convict is sentenced to undergo three years RI along with a fine of Rs.25,000/- (Rs. twenty five thousand) I D Three months S I U/S 7 and to undergo three years RI along with a fine of Rs25,000/-(Rs. twenty five thousand) I D three months S I U/S 13 (2) R/w Section 13(1) (d) of P C Act 1988. Both the sentences will run concurrently. Benefit of Section 428 Cr P C be also given to accused.
A copy of judgment and this order on sentence be CC No. 37/2004. 67/63 68 given to convict free of cost. File be consigned to RR.
ANNOUNCED IN OPEN COURT (V K MAHESHWARI)
TODAY ON 27th JULY 2010 SPECIAL JUDGE:
DELHI
CC No. 37/2004. 68/63