Delhi District Court
Such The Reliance Placed On Varkey ... vs . State Of Kerala on 4 December, 2012
CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96
1
IN THE COUR T OF RAJIV MEHRA
SPECIAL JUDGE CBI (PC ACT)
KARKARDOOMA COURTS : EAST DISTRICT
DELHI
RC 60 (A)/95
AC NO. 59/11/96
CBI
VERSUS
1. Ashok Chawla
S/o Late Sh. Sohan Lal Chawla
R/o M-34, Pratap Nagar,
Delhi
2. Kamal Agnihotri
S/o Late Sh. Om Prakash
R/o 276, Prakash Mohalla,
East of Kailash,
New Delhi
JUDGMENT
1. The case of the prosecution is that on 24.7.95 on a source information the CBI team alongwith the three independent witnesses namely J.C. Sharma official of FCI, K.L. Anand and Karam Chand both officials from the office of Income Tax made a surprise CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 2 check visit in the office of Sub Registrar IV C-Block, Vikas Sadan, New Delhi as the information was that the officials of the office of Sub Registrar- IV were indulging in corrupt practices and habitually accepting illegal gratification from public as motive and reward for discharging their official duties and delivering documents pertaining to registration of various documents.
2. It is claimed that on 24.7.95 at about 4.00 pm public witness J.C. Sharma was sent inside the office of Sub Registrar- IV with a direction to discretely watch and observe the proceedings. The case of the CBI is that at about 4.30 pm J.C. Sharma came out and confirmed the information that officials of the Sub Registrar Office were receiving money for which no receipt or any other acknowledgement was being given. Upon this information Inspector Rajesh Kumar leading the raiding party accompanied by three independent witnesses and members of the raiding party entered in the office of Sub Registrar-IV and apprehended Kamal Agnihotri A2 a private person when he was allegedly handing over few currency notes to the official namely Ashok Chawla A1 working as LDC in the said office in the presence of cashier P.C. Kathuria and UDC R.C. Yadav. He also found that Surjit Singh Sub Registrar and two private persons Narender Kapoor and Ramesh Kr. Arora were also present in the office. As per the case of the CBI one of the independent witness J.C. Sharma recovered G.C. Notes held by A1 Ashok Chawla in his right hand. On counting it came to be Rs. 2500/- each note of CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 3 the denomination of Rs. 100/-. The alleged search of the office table of A1 led to the recovery of a further sum of Rs. 5000/- kept in the left office drawer of his official table. The search of the office table of the cashier P.C. Kathuria by Inspector Rajesh Kumar led to the recovery of a sum of Rs. 35,000/- beside Rs. 4738/- lying on the relevant page for 24.7.95 of the Fee Register of the said cashier while the said Fee Register reflected the total collection for that day was Rs. 4381/-. The personal search of the accused Kamal Agnihotri led to the recovery of 11 receipts besides some other articles and cash amount for which a separate search memo was prepared.
3. The case of the CBI is that on inquiry it was revealed by A1 Ashok Chawla and A2 Kamal Agnihotri that amount was being transacted by them for expediting the delivery of documents submitted by A2 Kamal Agnihotri.
4. Inspector Rajesh Kumar prepared a complaint and on the basis of the same FIR No.60A/95 was registered.
5. The CBI filed a charge sheet against accused Ashok Kumar and Kamal Agnihotri who were apprehended while transacting the money for the offence under Section 120-B IPC read with Section 7 and 13 (2) read with 13 (1) (d) of PC Act 1988.
6. The initial cognizance was taken in the matter only CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 4 against the above said two accused. After compliance of the requirement of Section 207 Cr.P.C. by a detailed order dated 20.3.2002 passed by Ld. Special Judge CBI A1 Ashok Chawla has been charged under Section 7, 13 (1) (a) read with Section 13 (2) and also under Section 13 (1) (d) read with Section 13 (2) PC Act 1988 whereas A2 Kamal Agnihotri has been charged for the offence under Section 12 of the PC Act 1988 for abetting commission of the offence under Section 7 PC Act by A1 Ashok Chawla a Public Servant. Both of them pleaded not guilty and claimed trial.
7. Accused P.C. Kathuraia was summoned in exercise of power under Section 319 Cr.P.C by the order dated 9.10.2002. This order was successfully challenged by him before the Hon'ble High Court wherein vide order dated 22.7.2009 the Hon'ble High Court has quashed the summoning order qua this accused.
8. To prove its case prosecution has examined 11 witnesses. They may be clubbed into three groups. First is the group of three public witnesses arranged by CBI for the raid, the group of CBI officials and rest of the witnesses. Out of them PW-1 J.C. Sharma, PW-4 K.L. Anand and PW-5 Karam Chand falls in first group. PW-2 Inspector Rajesh Kumar TLO and PW-8 S.K. Peshin are the CBI officials who alongwith PW-11 Rajiv Chadha IO of the case falls in the second group. The rest of the witnesses falls in the third group which includes PW-3 G.S. Patnayak who had given the CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 5 sanction to prosecute A1 in the instant case. Sh. G.S. Patnayak was working as Deputy Commissioner Delhi at the relevant time and he has proved his sanction order as Ex.PW3/A. PW-6 Kishan Gopal Atree is in building construction business. As per his evidence he had hired the services of Kamal Agnihotri who was a Deed Writer to prepare some documents of his business for which stamp papers were purchased by A2 for which he paid him a sum of Rs. 600/- as service charges. PW-10 is Satish Sharma a Real Estate Agent and as per him he often visit the office of Sub Registrar for the Registration of documents through Advocate on payment of professional charges. This witness PW-10 Satish Sharma was shown one Lease Deed (D-15) of Sh. O.P. Aggarwal and his wife Smt. Laxmi Aggarwal and the executant of the deed according to the witness have affixed their signatures in his presence. According to PW-10 this lease deed was got registered by him through one Advocate Ashok Kumar Gupta. The witness was also shown receipt no. 076925 Ex.P5 which according to him bears signature of Sh. O.P. Aggarwal affixed in his presence. PW-7 is Sh. S.H. Zafri who at the relevant time was posted as ADM in different capacities and was also looking the work of Registrar of Documents. PW-9 is Sh. Shyam Chand who was working as a Sub Registrar on 24.8.95 and was holding the dual charge of the two offices at INA and at Asaf Ali Road. This witness has stated about the procedure and the duties of the staff in the office of the Sub Registrar and he has also spoken about the records being prepared and maintained in the office of Sub CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 6 Registrar.
9. The statement of the two accused was recorded separately under Section 313 Cr.P.C and both of them claimed their false implication by the CBI. Accused Ashok Chawla A1 while not admitting that a sum of Rs. 2500/- was recovered from him while taking the amount from A2 Kamal Agnihotri has not denied and disputed the recovery of a sum of Rs. 5000/- from his office drawer claiming that this amount was handed over to him on that very date by his brother Naresh Chawla to meet his part of the contribution of the monthly expenses of his parents residing with Ashok Chawla A1 maintaining separate kitchen. To support this stand A1 Ashok Chawla has examined his brother Naresh Chawla as DW-1. A2 Kamal Agnihotri has also denied of his involvement in the alleged transaction with Ashok Chawla of handing over to him a sum of Rs. 2500/- and he has also denied recovery of all the receipts Ex.P5 to P15 except one receipt Ex.PW6/1 (P13) for which he claims to have come to the office of Sub Registrar on 24.7.95. Beside Naresh Kumar the defence has also examined Sh. Ram Brat Yadav working as UDC as DW-2 in the office of Sub Registrar when this raid was conducted by CBI on 24.7.95.
10. I have heard the Ld. PP and also the defence counsel at length. The defence has also submitted their written synopsis.
CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 7
11. It is submitted by the Ld. PP that in the present case CBI has proved on record by adducing sufficient reliable evidence that a raid was conducted in the office of Sub Registrar on 24.7.95 on a source information. The CBI has also proved on record through the testimony of PW-2 Rajesh Kumar TLO corroborated by the testimony of PW-8 DSP S.K. Peshin and also corroborated by the testimony of independent witnesses PW-1 J.C. Sharma, PW-4 K.L. Anand and PW-5 Karam Chand the offering of the amount of Rs. 2500/- by A2 Kamal Agnihotri to A1 Ashok Chawla. According to the Ld. PP the Court is duty bound to raise a presumption under Section 20 PC Act that this money was being transacted knowing it to be bribe by both A1 and A2 and it was being accepted as a motive or reward for doing or forbearing to do an official act by A1 in favour of A2. It is submitted by the Ld. PP that the prosecution through ocular as well as documentary evidence has proved on record the recovery of currency notes used in the transaction which are Ex. P4 to P27 and at the same time the prosecution has also proved by adducing convincing and reliable evidence the recovery of 11 slips/receipts from the possession of A2 which proves that A2 was working as a liasion/tout in the office of the Sub Registrar to get his work done through the officials of the office by abetting them to indulge into corrupt and illegal practices.
12. It is submitted by the Ld. PP that prosecution has also proved the recovery of a further sum of Rs. 5000/- from the office CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 8 table of A1 Ashok Chawla. According to him even Ashok Chawla has not denied this recovery but has come out with an explanation that this amount was handed over to him by his brother Naresh Chawla examined as DW-1 to meet his part of the contribution of monthly expenses of his parents residing alongwith Ashok Chawla maintaining separate kitchen. According to the Ld. PP this version is an after thought and is only to be disbelieved. It is further submitted that the recovery of the further amount of Rs. 5000/- proves that the accused Ashok Chawla was habitually accepting the bribe by using corrupt practices and abusing his office. According to the Ld. PP the statement of DW-2 R.B. Yadav is only to be disbelieved for the reason that it is not expected on his part to give a truthful statement against his own colleague working in the same office.
13. On the other hand it is submitted by the Ld. defence counsel that the charge against the two accused in this case under different provisions of PC Act was framed with allegation that a sum of Rs. 2500/- was given by A2 Kamal Agnihotri and accepted by A1 Ashok Chawla as a motive or reward for official favour ' for expediting the delivery of documents' and a sum of Rs.5000/- was recovered from the table of Ashok Chawla which he had habitually obtained as an illegal gratification.
14. It is submitted by the defence counsel that it is in the evidence of PW-9 Shyam Chand working as Sub Registrar and DW-2 CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 9 R.B. Yadav that P.C. Kathuria was working as cashier in July, 1995 who would issue the receipts after receiving the documents for registration after collecting the registration fee and would record the date of delivery of the document on the said receipt. According to the Ld. defence counsel there is no evidence that accused Ashok Chawla was connected with the delivery of the documents and it is rather proved from the evidence of PW-8 DSP S.K. Peshin and DW-2 R.B. Yadav that Vinod Kumar LDC was the officer working in the office of Sub Registrar at the relevant time and was responsible and dealing with delivery of documents. It is submitted that accused Ashok Chawla has no role in expediting the delivery of registered documents and as such the very genesis of the case of the prosecution that bribe was allegedly given to Ashok Chawla for expediting the delivery of the documents is not proved. He has also been relying upon Sunil Kumar Sharma V. State (CBI) 2007 (2) JCC 1315 submitting that case of acceptance of any bribe by A1 Ashok Chawla from A2 Kamal Agnihotri is thus not existing and the prosecution case must fail.
15. It is submitted by the defence counsel that there is no evidence to show that any registered document was delivered prior to the date mentioned in the receipts Ex.P5 to P15 allegedly recovered from A2 Kamal Agnihotri. According to the defence counsel Kamal Agnihotri was only in possession of one of the receipt Ex.P13 bearing no. 075435 and on 24.7.95 he had come to the office CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 10 to take the delivery of the document pertaining to this very slip which was presented for registration in the office of Sub Registrar on 12.6.95 in the name of Parmod Kapoor relating to a will (D-18) executed by Parmod Kumar in favour of Krishan Kumar Atree (PW-6) which was due for delivery on 24.7.95 i.e. date of raid. According to the defence counsel all the rest of the slips Ex.P5 to P15 other than P13 have been planted upon Kamal Agnihotri A2 by the CBI in order to prove their case and they were never recovered from him. It is submitted these receipts were picked up by the CBI from the table of delivery clerk Vinod Kumar and were also collected by the other independent persons presence of whom has not been disputed and denied in the office at the time of the raid even by PW-2 Inspector Rajesh Kumar or PW-8 DSP S.K. Peshin. According to the defence counsel these independent persons on the date of the raid on 24.7.95 had come to the office of Sub Registrar to collect their documents and some of the receipts were also collected from them and planted by the CBI upon A2 Kamal Agnihotri. According to the defence counsel the IO has not prepared any seizure memo of the receipts recovered by him from the table of Vinod Kumar and also from the independent public persons. According to the defence counsel the CBI has not examined any of the public person present in the office of Sub Registrar to say that there was any monetary transaction between them and A1 for delivery of the registered documents.
CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 11
16. It is next submitted by the defence counsel that in the course of the investigation the IO has collected certain original documents and certain office copies relating to these receipts Ex.P5 to P15 and according to the procedure stated both by PW-9 Shyam Chand working as Sub Registrar in dual capacity at the relevant time and also by DW-2 R.B. Yadav working in the same office of the Sub Registrar on the date of the raid, if the originals have been delivered then only the office copies will be available. According to the defence counsel the recovery of the office copy against some of the receipts Ex.P5 to P15 would prove that originals against the same has already been delivered and there is no question of such receipts being found in possession with A2 Kamal Agnihotri.
17. According to the defence counsel the CBI in the instant case has been able to collect the original documents against receipts P5 Ex.PW10/1 having the date of delivery as 22.6.94, P8 (D-17) having date of delivery 14.7.95, P9 (D-19) having date of delivery 21.7.95 and receipt P14 (D-20) having date of delivery 21.7.95 and original of last two documents were released by the Court later on after raid and also against receipt P13 Ex.PW6/1 having date of delivery as 24.7.95 which was in possession of Kamal Agnihotri A2 whereas against the other receipts P6 (D-22), P10 (D-21) and P12 (D-16) only the copies were found to be on record and no copy of the document was found against receipt P7, P11 and P15 was an illegible slip.
CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 12
18. It is submitted by the defence counsel that there is no evidence to show that any registered document was delivered prior to the due date. There is no evidence that any document was deposited by accused Kamal Agnihotri for registration. There is only evidence of PW-6 Krishan Gopal Atree on record that he had hired the services of Kamal Aghnihotri as a deed writer but even he does not talk about any money being paid to Kamal Agnihotri A2 for payment of bribe for expediting the delivery of registered documents.
19. It is next submitted by the defence counsel that none of the independent witnesses has supported the case of the CBI on the point of transaction of exchange of money by A2 to A1 has taken place in their presence as claimed by CBI. According to him PW-1 J.C. Sharma has denied of going into the room of the Sub Registrar before raid on 24.7.95 to have a discreet watch , he has also denied of his having seen that Kamal Agnihotri A2 was handing over currency notes to A1 Ashok Chawla in his presence or about the recovery of the same from Ashok Chawla or search of the drawer of Ashok Chawla in his presence. The Ld. defence counsel submitted that PW-4 K.L. Anand has not supported the prosecution case and he too has not seen the exchange of money himself as claimed by the prosecution. According to defence counsel PW-5 Karam Chand the other independent witness was declared hostile and the affirmative answers given by PW-5 in cross examination is of no CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 13 benefit to the case of the CBI in view of the judgment Verkey Joseph V. State of Kerala 1993 Cr.L.J 2010 (SC).
20. According to defence counsel Inspector Rajesh Kumar TLO PW-2 himself is an accused in a case of accepting illegal gratification of Rs. 70,000/- for showing favour to an accused which he was investigated and PW-8 DSP S.K. Peshin was served with a notice under Section 340 Cr.P.C for perjury in a case as admitted by him and as such the testimony of either of the two witnesses cannot be relied upon and caste a doubt about the fairness of the investigation in the present case.
21. Next it has been submitted by the defence counsel that CBI himself has admitted the presence of witness Ramesh Kumar, Uday Singh and Narender Kumar in Surprise Check Memo Ex.PW1/A and site plan Ex.PW1/D but none of them has been cited as a witness by the prosecution. According to the defence counsel they were natural witnesses and withholding of them would lead to draw adverse inference and would show that investigation has not been done fairly in this case.
22. It is next submitted by the defence counsel that the statement of the three independent public witnesses have been recorded by the IO after about four months whereas the statement of PW-2 Inspector Rajesh Kumar and PW-8 DSP S.K. Peshin have CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 14 been recorded after about 5 months without any satisfactory explanation of delay in recording their statements as such.
23. Next it was submitted by the defene counsel that the prosecution has not been able to prove the recovery of the amount of Rs. 5000/- from the official table of accused Ashok Chawla A1 was an ill gotten money. The CBI has not adduced any evidence to that effect. It is submitted that on the other hand by his own statement of A1 Ashok Chawla under Section 313 Cr.P.C and also by the examination of his brother Naresh Chawla as DW-1 the defence has proved the source of money. He has been relying upon the judgment Munshi Parsad V. State of Bihar 2001 (III) AD SC 477 submitting that the evidence of the defence is also required to be given due weightage and is also relying upon Roy Singh V. State 2008 (III) AD Delhi High Court for the similar preposition.
24. In the light of the rival submissions of both the parties the whole controversy may be narrowed down to the aspect whether any money of Rs.2500/- allegedly being offered by A2 to A1 has been proved by the reliable and convincing evidence and whether the explanation offered by A1 Ashok Chawla about the recovery of the amount of Rs.5000/- should be believed or not.
25. In the present case PW2 Inspector Rajesh Kumar is TLO of the case. In the course of evidence Rajesh Kumar has supported CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 15 the case of the prosecution on all the relevant details by proving the date of raid, the members of the raiding party and also about the recovery of the amount of Rs.2500/- being offered by A2 to A1 and also about the recovery of Rs.5000/- from the table of A1 Ashok Chawla during the raid. This testimony also finds due corroboration from the statement of PW-8 DSP S.K. Peshin. Even factum of raid and recovery of the amount of Rs.5000/- from the table of A1 Ashok Chawla is not being disputed and denied by the accused who has come out with a defence that this amount of Rs.5000/- was handed over to him by his brother Naresh Kumar Chawla DW-1 on the date of raid on 24.07.1995 by dropping to his office for his part of contribution to meet the monthly expenses of his parents residing with Ashok Chawla A1.
26. It is submitted by the defence counsel that none of the independent witnesses cited by the prosecution in support have seen this transaction in the office. However as may be noted from the record itself that in support of their case the prosecution has also been relying upon the Surprise Check Memo Ex.PW1/A and also personal search memo of A1 Ashok Chawla dated 24.07.1995 Ex.PW1/B, personal search memo of A2 Kamal Agnihotri dated 24.07.1995 Ex.PW1/C and also upon site plan Ex.PW1/D. All the prosecution raiding party witnesses including independent witnesses namely PW-1 J.C. Sharma, PW-2 Inspector Rajesh Kumar, PW-4 K.L. Anand, PW-5 Karam Chand and PW-8 S.K. Peshin have made a CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 16 statement to the effect that all the aforesaid documents were prepared in the office of Sub Registrar in the course of the raid itself on the date of incident on 24.07.1995. The Surprise Check Memo Ex.PW1/A duly supports the statement of PW-2 and PW-8 and authenticity about the contents of this document has not been disputed and denied even by independent witnesses PW1 J.C. Sharma and PW-5 Karam Chand and PW-4 K.L. Anand has expressed his reservation about Ex.PW1/A for the reason that he is unable to recall certain facts as narrated in Ex.PW1/A but has not disputed that it was not prepared by the CBI in the office of Sub Registrar in the course of raid on 24.07.1995.
27. This document Ex.PW1/A i.e. Surprise Check Memo is the main document and gives all details about the factum of raid conducted by the CBI on 24.07.1995 on the basis of source information and also about the details of the raid and recovery of the amount of Rs.2500/- being offered by A2 to A1 in the office at the time of the raid and also about the recovery of Rs.5000/- from the office table of A1 Ashok Chawla.
28. It may also be noted from the record in the instant case that it is not the fact situation that the eye witnesses PW-1 J.C. Sharma, PW-4 K.L. Anand and PW-5 Karam Chand have not been supporting the case of the prosecution at all. All these three public witnesses have affirmed that on the date of incident they had gone to CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 17 the office of CBI alongwith the CBI raid team. The statement of PW-1 J.C. Sharma is unsupportive to the CBI case only to the extent that he was not sent inside the office to have a discreet watch before raid actually conducted in the office of Sub Registrar on 24.07.1995 or that he had himself seen the transaction of exchange of money between A2 and A1 in the course of the raid. However as may be seen from the last part of his cross examination he has denied the suggestion that the documents were not prepared in the course of the raid at the spot itself.
29. Similarly as may be noted from the statement of PW-4 and PW-5 both of them have also been supporting the case of CBI of their being a member of the raiding party and witnessing the incident. They have also supported the case of the prosecution on the point that all the documents Ex.PW1/A, Ex.PW1/B, Ex.PW1/C and Ex.PW1/D were prepared at the spot itself. PW-5 has been declared hostile only for the reason that he was unable to recall certain details and as such when he was confronted with the statement given by him to the police, he recalled the same and gave the answers. As such the reliance placed on Varkey Joseph Vs. State of Kerala 1993 Cr.L.J. 2010 SC will not be of any help to the defence. The Varkey Joseph was a case of murder u/s 302 IPC and leading questions were permitted to be put to the witness eliciting answer in 'yes' or 'no' without declaring him hostile upon which the Hon'ble Apex Court had frowned upon. Same is not the fact situation in the CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 18 present case. It may be kept in mind that in the present case the statement of PW-5 was being recorded in the court after about 13 years of the date of incident. It is not fact situation that he is completely hostile but a perusal of his statement shows that he was not able to recall the exact details of the incident for which reason he was declared hostile by the prosecution. In Himanshu @ Chintu Vs. State (2011) 2 SCC 36 it was held that dependable part of the evidence of a hostile witness can be relied on. Similarly in the case of PW-4 K.L. Anand as may be seen from his evidence on record it is not his evidence that he is not supporting the case of the prosecution on the date of incident on 24.07.1995. He has admitted that he was a member of raiding team. He has also admitted that he made a visit to the office of Sub Registrar alongwith the CBI team and other independent members. He, however, was only unable to recall whether PW-1 was a member or not. It may be kept in mind that PW-1 was an independent officer from the different office whereas PW-4 and PW-5 both were from the office of Income Tax and PW-4 vividly recollects that PW-5 from his office was also joined with him in the CBI raid. The statement of PW-4 has also been recorded after lapse of considerable time and in this fact situation if he does not recall the exact details but corroborate the case of the prosecution on material terms then it cannot be presumed that they are not supporting the prosecution case. In Bhagwan Dass Vs. State 2011 (3) CC Cases SC 61 it was held that it is the duty of the court to separate the grain from the chaff. In Abdul Nawaj vs. State of West CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 19 Bengal 2012 (5) Scale 357 it was held that a discrepancy would be minor if it did not effect with the substratum of the prosecution case or impact on the core issue. It was held that in such an event the minor discrepancy may be ignored.
30. In the present case also the discrepancies sought to be pointed out that none of the independent witness has himself having seen the transaction of exchange of money between A1 and A2 is not factually correct completely in as much as only PW-1 and PW-4 is not supporting the details of their having seen the transaction of money in the office of Sub Registrar and this part of their statement is only to be ignored considering them not to be so significant and also keeping in view the fact that otherwise none of the witness has denied of his being a part of the CBI team on the date of incident of raid conducted on 24.07.1995 and their visit to the office of the Sub Registrar with the raiding party members.
31. The contention that testimony of PW-2 cannot be relied upon for the reason that he himself was involved in a case of bribe details of which has been given in the course of his evidence and accepted by him too and similarly statement of PW-8 DSP S.K. Peshin cannot be believed for the reason that he was also served with a notice u/s 340 Cr.P.C. for perjury is only to be rejected as nothing has been pointed out that testimony of either of them suffers from any infirmity in the present case or either of them has committed CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 20 any misconduct qua the investigation of the present case. Then moreover PW-8 has deposed that he has since been discharged in the said notice and there is no cross examination of the witness on this point.
32. It may be noted from the evidence on record that defence has not even challenged the recovery of the currency notes offered by A2 to A1 as deposed by PW-2 Inspector Rajesh Kumar and proved by him as Ex.P4 to Ex.P27 which is also corroborated by PW-8 DSP S.K. Peshin. There is no reason for the prosecution witness to falsely implicate the two accused in the present case. They neither have any previous enmity nor any other motive has been attributed for their doing so. The presence of both the witnesses in the office of Sub Registrar stands admitted by the defence of his own. The factum of raid has been admitted by the defence of his own. The transaction of exchange of money has been proved by testimony of both PW-2 and PW-8 and in considered view of this Court finds sufficient corroboration from the testimony of PW-1, PW-4 and PW-5 independent public witnesses.
33. The contention that the prosecution has failed to prove that there was no reason for A2 to offer any amount of Rs.2500/- to A1 would only to be rejected for the reason of the presence of the direct evidence through testimony of PW-2 and PW-8 who themselves have witnessed this transaction and also having support CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 21 from documentary evidence Ex.PW1/A Surprise Check Memo prepared at the spot itself. There is eye witness account of PW-2 and PW-8 on this aspect. Their testimony prove the recovery of this amount of Rs.2500/- from the possession of A1. In Madhukar Bhaskar Rao Joshi Vs. State of Maharashtra 2000 (3) CC Cases (SC) 180 the accused was found in possession of the currency notes. The Court held that an inference has to be drawn that this gratification was accepted as motive or reward for doing or for bearing to do any official work.
34. Since the prosecution evidence has established the recovery of the amount of Rs.2500/- from the possession of A1 through the testimony of PW-2 and PW-8 which is found to be worthy of belief, under these facts the Court is under an obligation u/s 20 of P.C. Act, 1988 to draw the presumption that this money was accepted by A1 only for doing some official favour to A2 and for this reason the reliance placed upon by the defence upon Sunil Kumar Sharma V. State (CBI) 2007 (2) JCC 1315 will not be of any help. What was the favour which A1 could do is only confined to A1 and A2 and the absence of any direct evidence will not be a mitigating factor against the presumption. The facts coming on record sufficiently prove that this amount of Rs.2500/- was recovered from and voluntarily accepted by A1 Ashok Chawla. The simple denial of not getting into any such transaction with A2 will not be of any help to him. The evidence is cogent and reliable and finds due corroboration CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 22 from the documentary evidence on the point that this money of Rs. 2500/- was accepted voluntarily by A1 from A2. The defence of denial sought to be raised by A1 is only to be disbelieved and it is to be held that prosecution has brought reliable and convincing evidence on record to show that A1 accepted the money of Rs.2500/- from A2 by way of gratification.
35. In M. Narsimha Rao V. State of A.P. (2001) 1 SCC 691 it was held that the only condition for drawing the legal presumption under Section 20 of the Act is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The Section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that the accused has accepted or agreed to accept the gratification.
36. In State of M.P. V. P. Vasudeo Rao 2003 (3) CC Cases (SC) 420 it was held that the only requirement under the law is that it must be proved that accused has accepted or agreed to accept gratification. Direct evidence is one of the mode but not the only mode through which this can be proved. The proof of facts depends upon the degree of probability of its having existing. Standard required for reaching supposition is that of a prudent man acting in any important matter concerning him.
37. In State of Maharashtra V. Dayaneshwar Laxman Rao CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 23 Wankhede (2009) 15 SCC 200 it was held that to arrive at the conclusion that there has been a demand of illegal gratification it is the duty of the Court to take into consideration the facts and circumstances brought on record in their entirety and for the said purpose, undisputedly the presumptive evidence as laid down in Section 20 of the Act must also be taken into consideration.
38. In C.M. Girish Babu V. CBI Kochin High Court of Kerala AIR 2009 SC 2022 it was held that it is well settled that the presumption to be drawn under Section 20 is not an inviolable one. The accused charged with the offence could rebut either through the cross examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to dispute the presumption the same would stick and then it can be held by the Court that the prosecution has proved that the accused received the amount towards gratification.
39. In Krishna Ram V. State of Rajasthan (2009) 11 SCC 708 it was held that once it is proved that the money was recovered from the possession of the accused the burden of rebutting the presumption shifts upon the accused. The accused is liable to rebut through cross examination or by adducing reliable or convincing evidence such presumption invoked by the Court.
40. In Narender Champak Lal Trivedi & Ors. V. State of CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 24 Gujrat 2012 (VI) AD (SC) 71 it was held that presumption under Section 20 is obligatory. It is a presumption of law and caste an obligation on the Court to apply it in every case brought under Section 7 of the Act. The Court held that this presumption is rebuttable one. It was found that in that case the explanation offered by the accused was not accepted as there was no evidence on the basis of which it can be said that presumption has been rebutted.
41. In the instant case the prosecution has proved with the convincing testimony of PW-2 and PW-8 that A1 was found in possession of the amount of Rs. 2500/- offered to him by A2. There is no reason to disbelieve the recovery of the amount of Rs. 2500/- from A1. Now the burden was upon A1 to rebut the presumption that amount recovered from him was otherwise other than gratification. The simple denial of any such transaction cannot be of any benefit to the accused. It is to be presumed that the accused Ashok Chawla did not discharge the burden shifted upon him.
42. A defence has also been raised on the point by A2 submitting that A2 was found only in possession of one receipt P-13 and rest all have been planted on him. As may be seen the personal search memo of A2 was prepared by IO PW-11 Rajiv Kumar Chadha. PW-11 was the best witness to speak about this document and also about the recovery of 11 receipts as shown by him recovered from the accused alongwith other documents and money. There is no CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 25 cross examination of PW-11 that this document Ex.PW1/C personal search memo of A2 has not been correctly prepared by him. There is no cross examination of PW-11 that there is no recovery of 11 receipts from A2 and they have been planted upon him. The defence if any about the denial of the recovery of 11 receipts from the possession of A2 has only been raised by the counsel of A1 and not by A2 in his own defence. There is no cross examination by A2 of any of the witness disputing the recovery of these 11 receipts from his possession. In absence of the same it is to be presumed that same were recovered from A2 only and document Ex.PW1/C has been correctly prepared. This would only support the case of the prosecution that A2 was working in liaison or as a tout in the office of Sub Registrar.
43. It is submitted by the Ld. defence counsel for A1 that DW-2 R.B. Yadav was found working in the same office and he has deposed against any such transaction happening in the office of Sub Registrar at the time of raid. He has also been relying upon Munshi Prasad Vs. State of Bihar 2001 (III) AD SC 477 where it was held that defence evidence has to be given due weightage and also upon Rai Singh Vs.State 2008 (III) AD DHC to the same proposition.
44. There is no doubt to the proposition as propounded in the abovesaid two judgments. But again the analysis of the evidence is the matter based on facts and circumstances of each case. In the CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 26 instant case DW-2 is working in the same office of A1. It appears to be very difficult for him to depose against his own colleague. The evidence of prosecution is otherwise overwhelming and in the presence of the same it is difficult to accept the evidence of DW-2 given contrary to the case of the prosecution.
45. Similarly the contention sought to be raised by the defence that the witness Ramesh Kumar, Uday Singh and Nareder Kumar witnessing document Ex.PW1/A Surprise Check Memo and also in document Ex.PW1/D site plan have not been cited as witnesses by the prosecution and it would draw an adverse inference against them is only to be rejected. The prosecution is at liberty to prove its case through own reliable documents and witnesses. It was held in Bunty @ Guddu V. State of M.P. 2003 (3) CC Cases HC 306 and also in Hukum Singh & Ors. V. State of Rajasthan 2000 (3) CC Cases (SC) 64 that Public Prosecutor is expected to produce evidence in support of the prosecution case and not in derogation of the case. It was held that if there was too many witnesses on the same point , the Public Prosecutor is at liberty to choose two or some amongst them alone so that the time of the Court can be saved. Applying this ratio in the present case the non examination of the above said witnesses will not be of any adverse impact to the case of the prosecution.
46. Similarly the question of 4/5 months delay in recording CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 27 the statement under Section 161 Cr.P.C by the IO of the independent witnesses PW1, PW4, and PW-5 and also of PW-2 and PW-8 will not lead to the inference that there is any manipulation unless there is any evidence to the contrary so adduced by the defence. The question that there is any delay in recording the statement is a question of facts and circumstances in each and every case. It has also to be seen whether this delay was caused deliberately to cause any manipulation in the investigation. Nothing to this effect has been shown on record in the present case. The defence on this point is only to be rejected being meritless.
47. As far as the recovery of amount of Rs.5000/- from the office table of Ashok Chawla A1 is concerned the A1 has come out with explanation that this amount was contributed by his brother Naresh Chawla examined as DW-1. However it appears the DW-1 is only deposing to save his brother in the present case. In the totality of the facts and circumstances it may be noted that this defence that the amount of Rs.5000/- was contributed by his brother Naresh Chawla DW-1 has been taken first time by the accused Ashok Chawla in the course of his statement u/s 313 Cr.P.C. No such suggestion has been given by him to any of the prosecution witness or to the IO that this amount was collected by accused or his brother. The defence is only an afterthought and is only to be disbelieved.
48. On the basis of evidence analysed and understood there CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 28 remains no shadow of doubt that in the present case there was a voluntary acceptance of the amount of Rs.2500/- offered by A2 to A1 and this voluntary acceptance constitutes the offence u/s 7 P.C. Act.
49. Similarly the explanation regarding the recovery of amount of Rs.5000/- from the office table of A1 Ashok Chawla since has not been found trustworthy which coupled with accepting of the abovesaid amount of Rs.2500/- would prove that this amount was habitually accepted by A1 as an illegal gratification as a motive or reward without any public interest and the said facts and circumstances prove that he has committed offence u/s 13(1)(a) read with Section 13(2) P.C. Act.
50. Since prosecution has not been able to prove any demand preceding the recovery of the amount the accused Ashok Chawla is acquitted of the charge u/s 13(1)(d) framed against him in view of the law laid down by the Hon'ble Supreme Court in State of Tamil Nadu Vs. A Parthiban 2006 (11) 477 where it was held by the Hon'ble Supreme Court that acceptance of illegal gratification whether preceded by demand or not would be covered by penal provision of Section 7 of the Act but if the acceptance of illegal gratification is pursuant to the demand by the public servant then it would fall u/s 13(1)(d) of the Act. This judgment was also followed in Jasbir Singh Vs. State of Punjab 2011 (4) CC Cases 549 where it was held that to make out an offence u/s 7 or section 13(1)(a)(b) CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 29 read with Section 13(2) the prosecution could establish acceptance of bribe, but if the accused is charged with the offence u/s 13(1)(d) read with Section 13(2) of the Act the demand which preceded acceptance will have to be established by the prosecution to clamp the accused under the said provision as the word 'obtain' implied in Section 13(1)(d) presupposes the demand which was already made.
51. Similarly the prosecution has also established the offence u/s 12 of abetment qua A2 Kamal Agnihotri by adducing sufficient reliable and convincing ocular evidence and documentary evidence. Both the accused are held guilty.
Dictated and announced in the open Court on 27.11.2012.
( RAJIV MEHRA ) SPECIAL JUDGE CBI (PC ACT) EAST DISTRICT KKD COURTS: DELHI CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 30 IN THE COURT OF RAJIV MEHRA SPECIAL JUDGE CBI (PC ACT) KARKARDOOMA COURTS : EAST DISTRICT DELHI RC 60 (A)/95 AC NO. 59/11/96 CBI VERSUS
1. Ashok Chawla S/o Late Sh. Sohan Lal Chawla R/o M-34, Pratap Nagar, Delhi
2. Kamal Agnihotri S/o Late Sh. Om Prakash R/o 276, Prakash Mohalla, East of Kailash, New Delhi ORDER ON SENTENCE
1. Heard the Ld. PP for the CBI and defence counsel Sh. S.P. Minocha for A1 and A2.
2. It is submitted by the Ld. PP that corruption is corroding like a cancer in the society. There should be no lineancy or sympathy with corruption cases. He prays for the strictest CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 31 punishment for the two accused involved in this case so that it should go as a lesson to the others in the society. He has been relying upon the judgment of the Hon'ble Supreme Court reported in Narender Champak Lal Trivedi and Ors. V. State of Gujrat 2012 VI AD (SC)
71.
3. Ld. defence counsel submits that punishment should go in accordance with various circumstances relating to the accused also and the agony the accused has suffered. According to him in this case both accused have been facing trial for the last 14 years without seeking any adjournment on their part. According to him A1 remained suspended from the service. It is submitted that A1 has two children who are students and his wife all dependent upon him. In addition his aged mother of the age of 70 years is also residing in the same house with him. The mother according to the defence counsel is financially supported partly by the accused and partly by his brother and it is only A1 who is taking care of her day to day life. According to him there has to be a parity towards the offence and the offender. According to the counsel the corruption by itself is a term of wide description but on the same time the amount involved has to be taken into consideration. It is submitted that in this case even as per prosecution the amount involve is Rs. 2500/-. According to him A1 would also loose his all service benefits post conviction. He has been relying upon the judgment of our own High Court in the matter of Ram Ratan V. State 2011 - LAWS (DLH) - 3-213. For A2 it is CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 32 submitted by him that his father has expired and his mother is again an aged lady dependent upon him. He also has two school going children and is the sole bread earner in the family. All the responsibilities of mother and family has fallen upon him. His sentence should also be minimum.
4. Both convicts in this case were caught red handed in the course of a trap laid by CBI in the office of Sub Registrar INA, New Delhi. The corruption as we feel, hear and see is rampant everywhere in this country. It has almost become a norm in our daily life without check. It is not only retarding the efficiency in public service but also adversely affecting the moral of the persons working diligently, truthfully, honestly and devotedly. Everyone in society except the two parties who may be gainer for some times and some reason, is suffering on account of corruption.
5. As lamented by the Hon'ble Supreme Court in the matter of Narender Champak Lal Trivedi and Ors. V. State of Gujrat 2012 VI AD (SC) 71 corruption is corroding the spine of our nation and in the ultimate eventuality making the economy sterile. Corruption does not deserve any lineancy or sympathy.
6. One given mode to deal with the corruption is to take all stringent measures within the bounds of law. One such measure is CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 33 to provide punishment as given by the statute. The delay in trial or the family responsibilities cannot be considered as a mitigating factor looking into the gravity of the offence otherwise the accused in every case will come with one or the other such like grounds. The Hon'ble Supreme Court in State of A.P. Vs. V.V. Vasudeo Rao (2004) 9 SCC 319 which was also relied upon in last para of Ram Ratan V. State (Supra) too had declined to consider the protracted trial as a mitigating factor.
7. In the present case the prosecution has established that A1 Ashok Chawla has taken a bribe amount of Rs. 2500/- offered to him by A2 Kamal Agnihotri who abetted him in the commission of offence. The prosecution by the recovery of a further sum of Rs.5000/- from the office drawer of the A1 has also established that he was habitually accepting gratification as a motive for discharging his official act.
8. The interest of justice would be adequately met if A1 Ashok Chawla is sentenced to undergo three years R1 for each of the offences under Section 7 and 13 (1) (a) read with Section 13 (2) of the PC Act separately. He is also imposed with a fine of Rs. 5000/- separately for his committing the offence under Section 7 of the PC Act and a fine of Rs. 10,000/- for his committing the offence under Section 13 (1) (a) read with Section 13 (2) of the Act. In default of payment of fine he shall also undergo SI for three months for each of the two offences. The sentence for both the substantive CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 34 offence shall run concurrently.
9. As far as accused Kamal Agnihotri is concerned the prosecution has established on record that he was having 15 receipts with him at the time when he was apprehended by the CBI team. The giving of extra bucks was thought to be an easy way out by A2 to get his work speedily done in the office of the Sub Registrar. The money given by him to the public officials in the office of Sub Registrar as a bribe not only takes care of the difficulties in getting the work done in the office but also put the extra speed for his work in the office. He is an equal partner in the commission of the crime with A1. He is sentenced to undergo R1 for a period of one year for the offence under Section 12 of the PC Act and is also imposed with a fine of Rs. 5000/-. In case of default of payment of fine he will also undergo further SI for a period of three months.
10. Both accused be also given benefit of Section 428 Cr.P.C.
11. ORDER IS MADE ACCORDINGLY. File is consigned to record room.
Dictated and announced in the open Court on 4.12.2012.
( RAJIV MEHRA ) SPECIAL JUDGE CBI (PC ACT) EAST DISTRICT KKD COURTS: DELHI CBI V. Ashok Chawla & Anr.
AC NO. 59/11/96 35