Delhi District Court
(1) Sujit Biswas vs . State Of Assam, Criminal on 7 November, 2013
1
IN THE COURT OF SH. N. K. SHARMA, SPECIAL JUDGE,
(PC ACT)-02, (CBI),TIS HAZARI COURTS, DELHI.
RC No.36(A)/2004
CBI / ACB / NEW DELHI
CC No.11/11
ID No.02401R0678382005
CBI
VS
SURENDER KUMAR
S/O GYAN SINGH,
ASSISTANT ENGINEER -I,
PWD DIVISION (KASHMERE GATE, DELHI)
SUB DIVISION - I,
BABU JAGJEEVAN RAM MEMORIAL HOSPITAL
JAHANGIRPURI, DELHI.
DATE OF INSTITUTION : 25.07.2005.
DATE OF ARGUMENTS : 24.10.2013.
DATE OF JUDGMENT : 31.10.2013.
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JUDGMENT
1. Vide this judgment, I will dispose off the CBI criminal case referred to herein above filed by the CBI on 25.07.2005.
2. Briefly stated, this case was registered on 27.07.2004 on the written complaint of Hem Raj S/o Sh. Ishwar Singh, R/o Sultan Bhawan, Village Bamnoli, New Delhi-45 under Section 7 of PC Act, 1988 against Sh. Surender Kumar, Assistant Engineer-I, PWD, Division-13 (Kashmere Gate), Sub Division-I, Babu Jagjeevan Ram Memorial Hospital, Jahangirpuri, Delhi on the allegation that initially the accused Surender Kumar demanded bribe amount of Rs.20,000/- and subsequently agreed to accept Rs.17,000/- as an illegal gratification from the complainant Hem Raj for clearing the pending bills amounting to Rs.4,83,000/- of M/s. Kumar Construction Company relating to the work carried out by the said company in which complainant was working as Engineer.
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3. During investigation of the case, a trap team comprising of Inspector Anil Kumar (TLO), Inspector Praveen Ahlawat and Inspector Amreek Raj, Sub Inspector Ajit Singh and Sub Inspector Prem Nath was constituted. The presence of two independent witnesses Brij Mohan and Ganga Ram Meena was arranged to witness the trap proceedings. All the pre-trap proceedings were duly incorporated in the Handing Over Memo duly signed by the team members, complainant and both the independent witnesses. During the pre-trap proceedings, the demonstration was given by SI Ajit Singh with the help of witness Ganga Ram Meena. Another witness Brij Mohan was deputed to act as a shadow witness. The bribe amount of Rs.17,000/- was produced by the complainant Hem Raj.
4. Before Pre-Trap proceedings, Verification of the demand of bribe by the accused was confirmed by recording the conversation between the accused and the complainant in presence of two independent witnesses and same was incorporated in the Pre-Trap Verification Memo. The said 3 of 84 4 conversation recorded in a digital recorder was transferred by SI Prem Nath into two audio cassettes. Out of them, one was duly sealed, signed and marked as Q-1 and the other was kept for the purpose of investigation. The verification revealed that the accused had agreed to accept Rs.17,000/- instead of his earlier demand of Rs.20,000/- and called the complainant at about 03.30 PM at Babu Jagjeevan Ram Memorial Hospital, Jahangirpuri, Delhi for the transaction of bribe.
5. During the investigation, as part of Pre-Trap Proceedings, a digital SVR-240 recorder was arranged and carried to the spot for recording the likely conversation between the complainant and the accused. On reaching Babu Jagjeevan Ram Memorial Hospital, Jahangirpuri, the trap party and the witness took position outside the PWD office, Jahangirpuri, Delhi in discreet manner. The shadow witness was asked to accompany the complainant and the said digital recorder was handed over to the complainant with the direction to switch on the same before entering the office of the accused. The complainant 4 of 84 5 entered the office of the accused where two persons namely S.K. Dogra, JE and Bhalla, Contractor were sitting inside the room of the accused. At this, the complainant and shadow witness waited for a few minutes outside the office room of the accused. However, when the said two persons sitting inside the room of accused did not leave the room, the complainant entered the room and occupied a chair as offered by the accused. The shadow witness remained outside the room as no chair was vacant there. After sometime when the two other persons left the office, the complainant had conversation with the accused. The accused demanded bribe through gesture of his right hand and the complainant took out the tainted bribe money from his right side pant pocket and extended the same to the accused. The accused accepted the same with his right hand and kept it in the drawer of his table. The accused then queried " Kitne Hain". At this moment, the shadow witness entered in the office room of the accused on the plea of asking the key from the complainant. The complainant handed over the keys to the shadow witness and 5 of 84 6 asked him to wait outside so as to avoid suspicion in the mind of accused. When the shadow witness left the room, accused directed his peon to raise the curtain. After this, accused took out the tainted bribe money from his table drawer and counted the same with both of his hands. Thereafter, he kept the same inside the said drawer and locked the same.
6. After the transaction was over, the complainant gave a pre-fixed signal in the mobile phone of Trap Laying Officer (TLO) after which the TLO with other trap team members entered in the room and challenged the accused for having demanded and accepted the bribe of Rs.17,000/- from the complainant for passing the bills pending with the accused but he remained mum. The accused was apprehended through his right and left wrist. The washes of both the hands of the accused were taken in solution of sodium carbonate which turned into pink colour. The washes showed that the accused handled the tainted GC notes. The GC notes were recovered by the recovery witness Ganga Ram Meena from the table drawer of the accused. The witnesses 6 of 84 7 tallied the numbers of recovered tainted GC notes with the numbers noted in Handing Over Memo and declared the same to be tallying.
7. The Samsung digital recorder was taken back from the complainant and the conversation heard in presence of witnesses which confirmed the demand and acceptance of bribe by the accused from the complainant. The conversation was transferred into two audio cassettes. One of them was duly sealed, signed and marked as Q-2 and the other was kept for the purpose of investigation.
8. Recovery Memo was prepared on the spot incorporating all the post-trap proceedings duly signed by the complainant, CBI Team members and both the independent witnesses. During the post-trap proceedings, the shadow witness Brij Mohan corroborated the version of the complainant as stated above. The recording done at the time verification and during the trap clearly established that the accused had accepted the bribe of Rs. 17,000/- from the complainant. During the trap proceedings, the 7 of 84 8 office room of the accused was searched and concerned MB's and file related with the work of the complainant's company was seized. During the investigation, the print out of the mobile phone of the complainant was also obtained, which establishes that there was a conversation between the complainant and the accused as mentioned above.
9. After the completion of proceedings of laying of the said trap, the investigation of this case was transferred to SI R.C. Sharma, CBI / ACB, New Delhi. In compliance of provisions of PC Act, 1988 Sub Inspector R.C. Sharma obtained permission from the Hon'ble Court for conducting the investigation into this case.
10. Investigation has revealed that the Agreement bearing no. 82/EE/PWD-13/03-04 dated 05.01.2004 pertaining to repair of roof of shed (8 nos.) old SPS damaged toilet block (old) and cycle stand at Govt. Sr. Sec. School, Jahangirpuri, Delhi, Division No, 13 was awarded to M/s. Kumar Construction Company and the said work was being carried out by the company. On completion of the said work by M/s Kumar Construction Company, the bill 8 of 84 9 amounting to Rs.4,83,076/- was pending with the Department which was to be forwarded by the accused to the division. The said bill was recovered from the office of the accused during the course of the investigation. Relevant witnesses from PWD were examined who proved the records.
11. During investigation, two sealed bottles containing washes marked as "RHW" and "LHW" were sent to CFSL for chemical examination. The CFSL vide its report no. CFSL/2004/C-0545 dated 11.08.2004 has confirmed the presence of phenolphthalein in the solution.
12. During investigation of the case, the specimen voice of the accused was obtained after observing all the legal formalities and Voice Recording Memo dated 28.07.2004 was prepared which was signed by both the independent witnesses. The specimen voice has been marked as S-1.
13. During investigation, audio cassettes containing telephonic conversation between accused and the complainant before and during the trap marked as Q1 and Q2 and the audio 9 of 84 10 cassette containing specimen voice of accused marked as S-1 were also sent to CFSL for tendering their expert opinion on voice spectrographic examination. The CFSL vide their report no. CFSL/2004/P-0546 dated31.01.2005 has given the positive opinion on the same.
14. During investigation of the case, all the relevant documents were collected and concerned witnesses were examined.
15. According to the prosecution, accused Surender Kumar has demanded and accepted bribe amount of Rs.17,000/- from the complainant Hem Raj as illegal gratification in order to clear the pending bills of the complainant and thereby abused his official position as public servant. Thus, accused Surender Kumar committed an offence punishable under Section 7 & 13 (2) R/w 13 (1)(d) of the PC Act, 1988. The sanction for prosecution U/s 19 of the PC Act, 1988 against the accused Surender Kumar was obtained from the Competent Authority and pursuant thereto, the charge sheet was filed in the Court on 27.07.2004.
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16. On appearance of the accused Surender Kumar, copies of the charge sheet and documents were supplied to him.
17. After hearing the arguments, Learned Predecessor vide order dated 21.10.2005 framed charge against accused Surender Kumar under Section 7 and 13 (2) read with Section 13 (1) (d) of the PC Act. Accused Surender Kumar pleaded not guilty and claimed trial, hence this trial.
18. In support of its case the CBI examined the following 14 witnesses in all :-
PW-1:- Sh. B. Majumdar, Director General (Works) CPWD, Nirman Bhawan, New Delhi, who was the Sanctioning Authority. He has identified his signatures on Sanction Order Ex. PW-1/A. PW-2:- Dr. Rajinder Singh, Principal Scientific Officer and HOD Physics, CFSL, New Delhi, has identified the voice of accused Surender Kumar vide his report Ex. PW-2/A. PW-3:- Sh. Sandeep Kumar Dogra, Junior 11 of 84 12 Engineer, Division-A, CPWD, I. P. Bhawan, ITO, New Delhi, has deposed that during the year 2004 he was posted as Junior Engineer (Civil), Sub Division-I and on 27.07.2004 while he was sitting in his office room he saw many persons inside the office room of accused Surender Kumar (correctly identified). He also identified complainant Hem Raj who was working as contractor with PWD as on that day he was sitting in the office room of accused Surender Kumar.
PW-4:- Sh. Hem Raj S/o Sh. Ishwar Singh, R/o Village Bamnoli, Delhi-77, is the complainant of the present case. He has proved the signatures of Sh. Pankaj Kumar, Partner of M/s Kumar Construction Company on Work Agreement Ex. PW-4/A. He has also identified his signatures on the photocopy of letter of M/s. Kumar Construction Company Ex. PW-4/B, by which he was authorized as the representative of the said company. (objected to). He has also proved his handwriting and signatures on letter Ex. PW-4/C vide which he requested the Executive Engineer 12 of 84 13 to make their payment. He has also identified his signatures on Complaint Ex. PW-4/D, Handing Over Memo Ex. PW-4/E, Pre-Trap Verification Memo Ex. PW-4/F, Recovery Memo Ex. PW-4/G, Pre-Trap Transcript Ex. PW-4/H, Voice Identification Memo Ex. PW-4/I as well as on the Spot Conversation Transcript Ex. PW-4/J. He has also identified the GC Notes Ex. P-1/1 to Ex. P-1/34 as the same which were tainted and given to the accused and thereafter recovered from the accused.
PW-5:- Sh. V.K. Jain, S/o Late Sh. R. M. Jain, retired as Executive Engineer, PWD, Delhi, R/o 57-B, DDA Flat, Masjid Moth Phase-II, New Delhi, has deposed that accused Surender Kumar was working in his office as Assistant Engineer. He has correctly identified accused Surender Kumar before the Court. He has also identified his signature on Work Agreement Ex. PW-4/A. He has also identified his endorsement and signature on the letter Ex. PW-4/C, vide which he had asked accused Surender Kumar, 13 of 84 14 AE to report the position of work. He has also proved the file Ex. PW-5/A, relating to running bills and final bills related to work awarded to M/s Kumar Construction Company. He has also identified his signature on the Schedule of Work Ex. PW-5/B. He also proved the Register of Site Ex. PW-5/C, bearing his signature on the cover and first page of the said register.
PW-6:- Sh. Sudhir Bhatia, LDC, Office of Super Engineer of PWD, Civil Building, Maintenance Circle, M-23, Western Yamuna Bank, IP Estate, New Delhi has deposed that he was working as Sub Divisional Clerk in the office of the Assistant Engineer, PWD, Sub-Division-I, Babu Jagjeevan Ram Hospital, Jahangirpuri, Delhi. He has deposed that accused Surender Kumar was working as Assistant Engineer at that time. He has identified the accused Surender Kumar before the Court. He has further deposed that initially the running bill or final bill is prepared by Junior Engineer Incharge on the basis of MB. Thereafter, he prepared the copy of bill and then 14 of 84 15 submit to Assistant Engineer for onward processing. He has identified his handwriting on file Ex. PW-5/A. PW-7:- Sh. Pankaj Kumar S/o Sh. A. K. Prasad, C-2/112, Printer Apartment, Sector-13, Rohini, Delhi-85, has deposed that in the year 2004, he was a Partner of M/s. Kumar Construction Company. He has further deposed that complainant Hem Raj was an employee of the said partnership firm and his company had authorized complainant Hem Raj to execute the job in question. He identified his signatures on the Work Agreement Ex. PW-4/A. He has also proved the letter Ex. PW-4/B and letter Ex. PW-4/C. PW-8:- Sh. Gyan Chand S/o Sh. Sohan Lal, R/o A-13, Mahindra Park, Near Adarsh Nagar, Delhi-33, has deposed that he remained posted as Junior Engineer in PWD Division no. 13, Kashmere Gate, Delhi since October 2002 till year 2007. After seeing file (D-24), containing 15 of 84 16 Contract / Agreement Ex. PW-4/A, executed between PWD, Delhi and M/s Kumar Constructions Company he deposed that the said contract awarded to contractor for repairing of roof of sheds (8 nos. Old SPS), damaged toilet blocks (old) and Cycle stand at GGSS School, D- Block, Jahangirpuri, Delhi. He has identified his signatures on the Measurement Book nos. 3595 Ex. PW-3/DB, 3598 Ex. PW-3/DD, 3648 Ex.
PW-3/DC and 3652 Ex. PW-3/DE. He has also admitted that the relevant entries made on the aforesaid Measurement Books nos. 3595 Ex.
PW-3/DB, 3598 Ex. PW-3/DD, 3648 Ex.
PW-3/DC and 3652 Ex. PW-3/DE are in his handwriting. He has identified the signatures of accused Surender Kumar on the carbon copy of the first running bill Ex. PW-8/A contained in File (D-12) Ex. PW-5/A. He has further deposed that on completion of the said work by the contractor he had prepared the abstract of Final Nill for a sum of Rs.5,47,174/- payable to M/s Kumar Constructions Company and after recoveries against the contractor the amount came down to 16 of 84 17 Rs.4,83,076/-. He has further deposed that all these facts including his certificate are recorded in his handwriting on page nos. 67 to 69 of MB Book Ex. PW-3/DE under his signatures. After seeing the final bill Ex. PW-6/DB he has further deposed that the same was prepared by Sub Divisional Clerk on the basis of measurement entries recorded by him in the Measurement Books Ex. PW-3/DB to Ex. PW-3/DE.
PW-9:- Sh. C.L. Bansal S/o Late Sh. Babu Ram, Retired Govt. Servant, R/o 141-D, Pocket-4, Phase-I, Mayur Vihar, Delhi, has deposed that he had worked as a Senior Scientific Officer & HOD Chemistry Division, CFSL, Delhi. He has proved his report Ex. PW-9/1 vide which he has examined two sealed bottles. He has opined that Exhibits LHW and RHW gave positive tests for the presence of Phenolphthalein and Sodium Carbonate.
PW-10:- Sh. Brij Mohan Sharma S/o Sh.
Dayanand Sharma, Government Servant, R/o 17 of 84 18 C-467, Saraswati Vihar, Delhi-34. He is the independent witness of the present case. He has identified his signatures on the cassette Q-1, Ex. P-2, on the Inlay Card, on the cloth wrapper Ex. P-3, on the Handing Over Memo Ex. PW-4/E, on the Pre-Trap Verification Memo Ex. PW-4/F, on the Recovery Memo Ex. PW-4/G. PW-11:- Sh. Ganga Ram Meena, S/o Late Sh. R.L. Meena, Superintendent of Customs, ICD, Tuglakhabad, New Delhi. He is the Independent witness of the present case.
PW-12:- Inspector Prem Nath, CBI, ACU-V, CGO Complex, New Delhi has deposed that on 27.07.2004 he was posted as Sub Inspector in CBI/ACB, New Delhi. On that day, on the directions of SP, CBI he assisted Inspector Anil Kumar in laying the trap in the present case. He identified his signatures on the Handing Over Memo Ex. PW-4/E, on the Recovery Memo Ex. PW-4/G, on the Specimen Voice Recording Memo Ex. PW-10/PX-6 and on the Voice 18 of 84 19 Identification Memo Ex. PW-4/I. PW-13:- Inspector Anil Kumar, SHO, PS Sagarpur, Delhi is the Trap Laying Officer of the present case, who has deposed that the present case was registered on 27.07.2004 under the signatures of Sh. S.C. Tiwari, the then SP, CBI / ACB, New Delhi. He identified the signatures of Sh. S.C. Tiwari on the copy of the said FIR Ex. PW-13/A. He has further deposed that on 27.07.2004, the then SP CBI has called him in his chamber and introduced him to complainant Hem Raj. He further deposed that the then SP, CBI handed over the written complaint dated 27.07.2004, Ex. PW-4/D of Complainant Hem Raj to him, on the first page of the said complaint SP, CBI has written a note for verification & registration of the present case and to lay a trap. He has identified the signatures of the then SP, CBI on the complaint Ex. PW-4/D. He has correctly identified accused Surender Kumar in the court. He has identified his signatures on Pre- trap Verification Memo Ex. PW-4/F, Handing 19 of 84 20 Over Memo Ex. PW-4/E, Recovery Memo Ex.
PW-4/G, Arrest cum Personal Search Memo Ex. PW-10/PX-1, Office Search cum Seizure Memo Ex. PW-10/PX-2, Production cum Seizure Memo Ex. PW-10/PX-3, Rough Site Plan Ex.
PW-10/PX-4, Charge Handing Over Memo Ex. PW-10/PX-I, Voice Identification Memo Ex. PW-4/I, Specimen Voice Recording Memo Ex. PW-10/PX-6, Transcription Ex. PW-4/H, Transcription Ex. PW-4/J. PW-14:- Inspector R.C. Sharma, CBI, Bank Securities and Fraud Cell, New Delhi is the Investigating Officer of this case.
19. After conclusion of the prosecution evidence, statement of the accused under Section 313 Cr. P.C was recorded. The accused has denied his involvement in commission of offence and has stated that he has been falsely implicated in this case by the complainant.
20. In his defence, accused has examined Sh. R. Sivakumar, Financial Officer, Office of Chief Engineer, New Delhi 20 of 84 21 Zone-III, CPWD, Sewa Bhawan, R.K. Puram, New Delhi as DW-1, who had brought the original file relating to M/s Kumar Construction Company. He has proved Ex. DW-1/A, Ex. DW-1/B and Ex. DW-1/C.
21. After the completion of the defence evidence, the case was fixed for final arguments. I have heard final arguments of Sh. J. S. Wadia, Learned PP for CBI and Sh. B. S. Rai, Advocate, Ld. Counsel for accused Surender Kumar and perused the record. Ld. Defence counsel for accused has addressed oral arguments and also filed written submissions running into 72 pages. As the detailed written submissions has been filed on behalf of the accused, which are on the judicial file, hence on account of brevity, the same are not incorporated in this judgment.
22. Ld. PP for the CBI has argued that the prosecution has proved its case that accused Surender Kumar being public servant while working as Assistant Engineer-I, PWD, Division-13, Kashmere Gate, Delhi, initially demanded Rs.20,000/- and subsequently agreed to accept Rs.17,000/- for clearing the 21 of 84 22 pending bills of M/s. Kumar constructions Company from the complainant Hem Raj and on 27.07.2004 he accepted Rs. 17,000/- from the complainant. It has been further argued that Prosecution has proved its case beyond reasonable doubts against the accused, hence he may be convicted.
23. It has been argued by Sh. B. S. Rai, Advocate, Ld. Counsel for the accused that accused has been falsely implicated in the present case by the complainant in connivance with Sh. Pankaj Kumar as the complainant has grudge against the accused because the jhuggis which were made by the complainant Hem Raj, were demolished by the accused.
24. It has been further argued by the Ld. Defence Counsel that both the independent witnesses i.e. Shadow Witness Brij Mohan Sharma and Recovery Witness Ganga Ram Meena have turned hostile and they have not supported the case of the Prosecution as well as there are contradictions in the testimonies of the witnesses. The whole case of the Prosecution is fabricated and concocted one. It has been further submitted by the Ld. 22 of 84 23 Defence Counsel that accused may be acquitted. Ld. Counsel for accused has placed reliance on the following citations :-
(1) SUJIT BISWAS VS. STATE OF ASSAM, CRIMINAL APPEAL NO. 1323 OF 2011.
(2) SMT. MEENA BALWANT HEMKE VS. STATE OF MAHARASHTRA, (2000) 2 ACR 1143 (SC). (3) BABU LAL BAJPAI VS. STATE OF UP, 1994 CRL. L. J. 1383 (ALLAHABAD).
(4) STATE OF KERALA & ANR. VS. C. P. RAO, 2011 (3) C.C. CASES(5) 182.
(5) PANALAL DAMODAR RATHI VS. STATE OF MAHARASHTRA, (1979) 4 SUPREME COURT CASES
526.
(6) T. SUBRAMANIUM VS. THE STATE OF TAMIL NADU, AIR 2006, SUPREME COURT 836.
(7) GULAM MAHMOOD A. MALEK VS. STATE OF GUJRAT, AIR 1980 SC 1558.
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24
(8) V. VENKRATA SULAHRAO VS. STATE
REPRESENTED BY INSPECTOR OF POLICE 2007(I) CRIMES 101 (SC).
(9) ROSHAN LAL SAINI VS. CBI 2011(1) JCC 102.
(10)KALYAN KUMAR GOGOI VS. ASHUTOSH AGNIHOTRI & ANOTHERS, AIR 2011 SUPREME COURT 760.
(11)BANARSI DASS VS. STATE OF HARYANA 2010(3) JCC 1844.
(12)RAM SINGH VS. COL. RAM SINGH, AIR 1986 SC 3. (13)DINESH DINKAR PARADKAR VS. STATE OF MAHARASHTRA, (2011) 4 SCC 143.
(14)NILESH DINKAR PARADKAR VS. STATE OF MAHARASHTRA (2011) 4 SCC 143.
(15)M. PYADI VS. STATE OF A.P., (2004) CRL. L. J. NOC 24 of 84 25 (AP) 163.
(16)STATE OF UP VS. JAGDISH SINGH MALHOTRA, (2001) 10 SCC 215.
(17)SHANKAR LAL VS. STATE, 2002(2) CRIME 118. (18)P. PARASUMI REDDY VS. STATE OF AP, (2011) VIII SCALE 625.
(19)SMT. MEENA BALWANT HEMKE VS. STATE OF MAHARASHTRA, (2005) 5 SCC 211.
(20)SURAJIT SARKAR VS. STATE, 2013 VII AD (SC) 435. (21)MOHD. IQBAL AHMED VS. STATE, AIR 1979 SC 677. (22)RUDRAPPA RAMAPPA JAINPUR & OTHERS VS. STATE OF KARNATAKA, 2004 (2) JCC 1172.
(23)GULAM MAHAMOOD A. MALIK VS. STATE OF GUJARAT, AIR 1980 SC 1558.
25 of 84 26 (24)V. VENKATA SUBHARAO VS. STATE, 2007(1) CRIME 101 (SC).
(25)SURAJ MAL VS. STATE (DELHI ADMINISTRATION), AIR 1979 SC 1408.
(26)C. MAGESH VS. STATE OF KARNATAKA, AIR 2010 SC 2768.
(27)STATE OF H. P. VS. SUKHVINDER SINGH, 2004 (1) C.C.CASES (SC)297.
(28)STATE OF RAJASTHAN VS. SMT. KALKI & ANR. 1981 SCR (3) 504.
(29)RAKESH KAPOOR VS. STATE OF HP, CA NO. 1839 OF 2013.
(30)BANARSI DAS VS. STATE OF HARYANA, 2010(3) JCC 1842.
(31)SATPAL NEGI VS. STATE OF HARYANA, 1996(1) CRIMES 408 (HC).
26 of 84 27 (32)A. SUBAIR VS. STATE OF KERALA, (2009) 6 SCC
587. (33)STATE OF MAHARASHTRA VS. DNYANESHWAR LAXMAN RAO WANKHEDE, 2009 (4) C. C. CASES (SC) 31.
(34)SYED PEDA AOWLIA VS. THE PUBLIC PROSECUTOR, HIGH COURT OF AP, HYDRABAD, 2008 (3) JCC 1806.
(35)SHARAD BIRDHICHAND SARDA VS. STATE OF MAHARASHTRA, (1984) 4 SCC 116.
(36)BABU VS. STATE OF KERALA, (2010) 9 SUPREME COURT CASES 189.
(37)AMARPAL (RAJPAL) VS. STATE 2010 VII AD (DELHI) 696.
(38)SURAJ SINGH VS. STATE OF UP, VI(2008) SLT, 492.
27 of 84 28 (39)TORAN SINGH VS. STATE OF MP, AIR 2002 SC 2807.
(40)STATE OF MAHARASHTRA VS. WASUDEO RAMCHANDRA KAIDALWAR, (1981) 3 SCC 199. PUBLIC SERVANT & SANCTION
25. The first point for consideration is as to whether the proper sanction for prosecution was accorded before initiation of prosecution against the accused persons or not as required under Section 19 (1) of Prevention of Corruption Act, 1988, which is mandatory and reads as under:-
"19. Previous Sanction necessary for Prosecution:-
(1) No Court shall take cognizance of an offence punishable under Section 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction, -
(a) in the case of a person who is employed in connection with the affairs of the union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
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(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his Office."
26. The undisputed position is that the accused Surender Kumar was working as Assistant Engineer-I, PWD, Division-13, (Kashmere Gate), Sub Division-I, Babu Jagjeevan Ram Memorial Hospital, Jahangir Puri, Delhi and accused did not dispute this fact in his statement recorded under Section 313 Cr. P. C. Therefore, it stands proved that accused Surender Kumar was public servant within the meaning of Section 19 of the PC Act, 1988.
SANCTION FOR PROSECUTION AGAINST THE ACCUSED SURENDER KUMAR.
27. The evidence on record shows that on 18.07.2005, the 29 of 84 30 Sanction Order was accorded for launching Prosecution under Prevention of Corruption Act against accused Surender Kumar by PW-1 Sh. B. Majumdar, Director General(Works), CPWD, New Delhi, who deposed that he was working as Director General, CPWD, New Delhi since November, 2004 and he was the Competent Authority to remove Assistant Engineer from service. He has further deposed that he accorded the sanction for prosecution against the accused Surender Kumar after going through the material placed by CBI before him that is FIR, statements of witnesses and relevant documents. He has further deposed that after carefully examining the documents and applying his mind, he accorded the Sanction Order Ex. PW-1/A. He has identified his signatures on Sanction Oder Ex. PW-1/A.
28. On the other hand, Ld. Counsel for the accused Surender Kumar argued that the Sanction order was passed without application of mind. It has been further argued by the Ld. Defence Counsel that the Sanction Order has been passed by the Sanctioning Authority in a mechanical manner and on the basis of 30 of 84 31 Draft Sanction Order which was supplied by the SP/CBI.
29. I have gone through the Sanction Order Ex. PW-1/A. From the bare reading of Ex. PW-1/A, it is clear that PW-1 Sh. B. Majumdar after carefully examining the documents supplied by the CBI such as statements of witnesses, FIR and relevant documents placed before him with regard to the aforesaid allegations and circumstances of the case and after applying his mind, consider that accused Surender Kumar, be prosecuted in the court of law for the said offences. Therefore, consideration by the Competent Authority of all these records implies application of mind. In my view the order fulfills the requisites of a valid sanction. It cannot be said that sanction is granted without application of mind by the authority.
30. Moreover, when the Sanction Order itself is eloquent enough, then in such case only formal evidence has to be produced that the sanction was accorded by a Competent Person with due application of mind. Reliance is placed on the Judgment titled as C. Krishnamurthy Vs. State of Karnataka (2005) 4 31 of 84 32 Supreme Court Cases 81.
31. Accused Surender Kumar has failed to extract anything in his favour in the cross examination of PW-1.
32. In view of the above discussion, this point is decided in favour of the CBI and against the accused and it is held that the prosecution obtained valid sanction order Ex. PW-1/A for prosecution from the competent authority for trial of the accused.
GRATIFICATION AND CRIMINAL MISCONDUCT.
33. Before adverting to the discussion of this case, it would be useful to have a look upon the relevant provisions of law. Charges against accused Surender Kumar were framed for the trial of offences punishable under Section 7 and 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988, which are reproduced as under:-
"7.Public Servant taking gratification other then legal remuneration in respect of an official act.- "Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other 32 of 84 33 person, any gratification, whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, Corporation or Government Company referred to in Clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less then 6 months but which may extend to 5 years and shall also be liable to fine."
"13. Criminal Misconduct by a Public Servant.
(1) A Public servant is said to commit the offence of criminal misconduct;
(a) to (c) .......... (d) if he, - (i) by corrupt or illegal means, obtains for himself
or for any other person any valuable thing or 33 of 84 34 pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or ***** (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less then one year but which may extent to 7 years and shall also be liable to fine."
34. In order to convict the accused, for the above mentioned offences, prosecution has to prove:
(i) that accused was public servant on the date of commission of alleged offences;
(ii) that by abusing his position as public
34 of 84 35 servant, he demanded Rs.20,000/- as gratification/bribe from complainant Hem Raj, Engineer of M/s. Kumar Constructions Company,
(iii) that by abusing his position as public servant, he accepted Rs.17,000/-
gratification; and
(iv) that gratification/bribe was taken as a motive or reward for clearing of the bill in respect of repairing of roofs of 8 sheds (old SPS) damaged toilet block (old) and Cycle Stand at D-Block Government Senior Secondary School, Jahangirpuri, Delhi.
That Accused was public servant on the Date of Commission of alleged offences.
35. PW-1 has deposed that he was the Competent Authority to take disciplinary action against Assistant Engineer. It is an undisputed fact that the accused Surender Kumar was Assistant Engineer at the time of the commission of alleged offence and 35 of 84 36 therefore, he was a public servant.
That by Abusing his position as public servant, accused demanded Rs.20,000/- as Gratification / bribe from complainant Hem Raj and accepted Rs.17,000/- for clearing of the bill.
36. For the sake of convenience and to avoid repetition of discussion and evidence, points nos. (ii) to (iv) are dealt with together.
37. It is also clear that in order to bring home the charge under Section 7 of the PC Act, the Prosecution is required to prove that the accused accepted or obtained or attempted to obtain illegal gratification from any person and in order to establish the guilt of the accused under Section 13(2) read with Section 13 (1) (d) of the PC Act, 1988 also, the Prosecution is required to establish that the accused by corrupt or illegal means or by using his official position, obtained advantage or a valuable thing for himself or for any other person. Thus, it is obvious that two essential components to be proved for bringing home the 36 of 84 37 charge under Section 7 & Section 13 (2) read with Section 13 (1)
(d) of the PC Act, 1988, are the demand and acceptance of the bribe.
DEMAND, ACCEPTANCE & RECOVERY
38. For arriving at the conclusion as to whether all ingredients of an offence, viz-demand, acceptance and recovery of amount of illegal gratification have been satisfied or not, all the facts and circumstances brought on record in its entirety has to be considered.
39. As held by the Hon'ble Supreme Court of India in the case of "Balram Vs State of Maharashtra" reported in 2008 (14) SCC 779, every acceptance of illegal gratification whether preceded by a demand or not would be covered by section 7 of the PC Act, 1988, but if acceptance of illegal gratification is in pursuance of a demand by a public servant then it would also fall under Section 13 (1) (d) of PC Act, 1988. The essential ingredients of Section 7 are (i) that the person accepting the gratification should be public servant, (ii) that he should accept 37 of 84 38 the gratification for himself and that the gratification should be as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show in the exercise of his official function, favour or disfavour to any person. The crucial question would be whether the accused had demanded any amount as gratification to show any official favour and whether the said amount was paid by the complainant and received by the accused as consideration for showing such special favour.
40. The complaint Ex. PW-4/D triggered the registration of the FIR, the pre-trap, trap and post trap proceedings, nailing of the accused, submission of charge sheet and extensive trial to bring home the guilt against the accused Surender Kumar.
41. It has been argued by the Ld. Defence counsel that there was no motive for the accused Surender Kumar to demand and to accept the bribe money from the complainant. On the other hand, the Ld. PP for CBI has argued that the bill of the work which was done by the complainant was pending with the accused and for clearing of the said bill, accused demanded Rs.
38 of 84 39 20,000/- and accepted Rs. 17,000/- on 27.07.2004 from the complainant. Ld. PP has drawn my attention to the testimony of PW-4 Hem Raj.
42. I have gone through the testimony of PW-4 Complainant Hem Raj, who has deposed that he was working as Engineer with M/s. Kumar Construction Company and his company was awarded work of repairing of roofs of 8 sheds (old SPS) damaged toilet block (old) and Cycle Stand at D-Block Government Senior Secondary School, Jahangir Puri, Delhi vide Work Agreement Ex. PW-4/A. He has further deposed that his company authorized him vide letter Ex. PW-4/B dated 15.01.2004 (Objected to)for execution of the said work and also to sign all the work register of the said work.
43. PW-4 Hem Raj has deposed that the said work had completed by them on 15.05.2004. The said work was being supervised on behalf of PWD by Sh. Gian Chand JE and accused Surender Kumar, who was posted as Assistant Engineer. He has correctly identified the accused Surender Kumar before the Court.
39 of 84 40 PW-4 has further deposed that they had received Rs.3,57,000/- approximately from PWD as running bill / first bill and besides this about Rs.4,75,000/- was still payable to them by PWD on 15.05.2004 when they completed the work, as final bill. PW-4 has further deposed that JE Gian Chand has prepared final bill in this regard in the Measurement Books and thereafter, he sent the bills and the Measurement Books to accused Surender Kumar. PW-4 has also deposed that he visited daily to the accused Surender Kumar for clearing the bill but he called him again and again. Then he (PW-4) wrote a letter dated 09.06.2004 Ex. PW-4/C to Executive Engineer on behalf of his company for making their payment. The Executive Engineer marked the letter Ex. PW-4/C to AE i.e. accused Surender Kumar, who still did not sent their bill for payment despite his (PW-4) visit.
44. PW-4 Hem Raj has deposed that then the accused started finding fault in their work and a date was fixed for removing the defects in the work and accordingly whatever defects were pointed out by the accused Surender Kumar at the 40 of 84 41 spot, he (PW-4) got removed those defects at the spot by engaging the labour. Still accused Surender Kumar did not forward their bill for payment and demanded commission of Rs. 20,000/- @ 4 % of their due payment for clearing the bills. PW-4 further deposed that he visited the accused 5-7 times then he lodged a complaint Ex. PW-4/D with the CBI on 27.07.2004. Thereafter, SP, CBI Sh. Tiwari called a Inspector Anil Kumar and PW-4 was made to call the accused on telephone from CBI Office. On telephone (Mobile Phone), he told the accused that he was not having Rs.20,000/- but only Rs.17,000/- then accused asked to bring those Rs.17,000/- in his office at Babu Jagjivan Ram Memorial Hospital, Jahangirpuri, Delhi. The conversation was recorded in an Audio Cassette in the presence of two Inspectors of Excise Department namely Brij Mohan and Meena.
45. PW-4 has further deposed that he produced the GC Notes of Rs.17,000/- in the denomination of Rs.500/- each in CBI Office and in the CBI Office, some powder was applied on the same and a practical demonstration of change of colour was 41 of 84 42 given and the smeared notes were put in his right side pocket of the pant.
46. PW-4 Hem Raj has also deposed that the trap team including him and independent witnesses and CBI Officers left CBI office for the office of accused at Babu Jagjivan Ram Memorial Hospital, Jahangirpuri, Delhi. Thereafter he and one independent witness went inside the office of the accused and other persons of the trap team remained outside and took suitable positions. Many persons were sitting in the office room of the accused and as such they both waited for the accused outside his office room. Meanwhile, one seat in the office room of the accused became vacant and as such, he went inside and before entering the office room of the accused he switched on the recorder and went alone as only one seat was vacant.
47. He has further deposed that at that time Mr. Dogra and Mr. Bhalla were sitting there and taking tea and thereafter, they both i.e. Dogra and Bhalla left the office room of the accused. Thereafter, accused demanded the bribe amount by gestures of 42 of 84 43 his right hand, then PW-4 took out the tainted notes from right side pocket of his pant and handed over the same to the accused, who accepted the same in his right hand. PW-4 has also deposed that while he was handing over the tainted money to the accused on his demand, at that time, the shadow witness also entered the office room of the accused and immediately the accused kept that money in Drawer of his table. While entering the office room of the accused, the shadow witness took the excuse of demanding keys of the vehicle from him (PW-4). Thereafter, accused rebuke his guard /Baildar who used to stand outside the office room of the accused and then on the direction of the accused, the Baildar pulled the curtain of the office room of the accused.
48. PW-4 has further deposed that then the accused opened the drawer of his table and simultaneously asked him "Kitne Hain"
he told him "Pata Nahai Gin Ke Nahi Laya". Then accused started counting the tainted notes and told him "ye to Satra Hai", on this PW-4 told him "itne Hi Hai". Accused calculated the 43 of 84 44 figures on the Calculator and asked him "Kam Hai, Jyada Bante Hai", PW-4 asked him "Kaise". Accused told him that by calculating @ 4% and he had shown him the figures thus arrived in the calculator, he told PW-4 "Hazaar Us Ke Bante Hai" and "Hazaar Us Ke Bante Hai". Accused was referring Rupees One Thousand for getting and signing completion certificate. Then accused again kept the tainted money in the drawer of his table and locked it.
49. PW-4 Complainant Hem Raj has further deposed that thereafter he requested the accused to sign the bill, who told him to accompany him to the site. On this, he (PW-4) told accused what will he do at the site where he had visited several times. Accused told him to visit site once more. Then, he (PW-4) requested accused to wait for five minutes. He took his mobile phone from his left side pant pocket and gave a ring to Inspector Anil Kumar, whose number already feeded in his mobile phone. Immediately, the CBI trap team entered the office room of the accused and disclosed their identify by showing their identity 44 of 84 45 cards and accused was caught hold of by both of his wrists. Accused was challenged by the CBI team that he had demanded and accepted Rs.17,000/- from the complainant Hem Raj to which accused admitted having accepted.
50. PW-4 has also deposed that he informed the trap team that the accused kept the tainted money in the drawer of his table and then the keys of the drawer were demanded by the CBI team from the accused, who gave the same by taking out from his pant pocket. The tainted money was taken out from the drawer of the accused by the independent witness.
51. During the testimony of PW-4 Complainant Hem Raj, the cassette was played and PW-4 has identified his voice as well as the voice of accused Surender Kumar during the conversation which held over telephone during the pre-trap verification on 27.07.2004. The conversation was as follows:-
MYSELF : SAHEB 17 HI MILE HAI WHO TO.
MYSELF : 17,000 MILE KAAM CHAL JAYENGA.
45 of 84
46
OTHER SIDE
SURENDER KUMAR : HA HA.
SURENDER KUMAR : 17 KYA.
MYSELF : 17000 NIKLE ITNE HI THE MERE.
SURENDER KUMAR : KITNE NIKLANE THE.
MYSELF : 17 HI THE 17 KA HI CHEQUE MILA
THA UDHAR.
SURENDER KUMAR : ACHA ACHA.
52. During the testimony of PW-4 Complainant Hem Raj, the cassette was played and PW-4 has identified his voice as well as the voice of accused Surender Kumar during the conversation which held over at the spot on 27.07.2004. The conversation was as follows:-
MYSELF : 17 HAI JI. MERE KHAYAL SE, HA 17
HI HAI... 17 HAI JI.
OTHER SIDE
SURENDER KUMAR : KITNE KA BILL HAI.
46 of 84
47
MYSELF : 4.83 HAI JI... ABHI AAP KAATOGE
TOH NAHI. HAAN JI.
SURENDER KUMAR : HAAN. MEI TOH DHAIYE KA ANDAJA LAGA RAHA THA.
53. PW-12 Inspector Prem Nath has deposed that on 27.07.2004, he was posted as Sub-Inspector in CBI, ACB, New Delhi and on that day, SP, CBI called him in his office and asked him to assist Inspector Anil Kumar in a trap case. He has further deposed that he recorded the introductory voices of Independent witnesses Ganga Ram Meena and Brij Mohan Sharma. Thereafter, complainant Hem Raj made a call from a mobile phone to accused Surender Kumar. This conversation between complainant and the accused was recorded in Digital Voice Recorder and thereafter the said recording was played in presence of all the members present including independent witnesses namely Ganga Ram Meena and Brij Mohan Sharma. During this conversation, accused Surender Kumar had demanded Rs.20,000/- which was reduced to Rs.17,000/- after 47 of 84 48 negotiations and called the complainant to come to his office at Babu Jagjivan Ram Hospital.
54. PW-12 has further deposed that he transferred the recorded voice data from Digital Voice Recorder to Sanyo Compact Cassette. Thereafter, the cassette marked as Q-1 was sealed with the cloth wrapper and CBI seal was affixed thereon. The signatures of the independent witnesses were also taken on the cassette slip and cloth wrapper. Another cassette was prepared for investigation purpose.
55. PW-12 Inspector Prem Nath has also deposed that thereafter trap team was constituted. The written complaint of the complainant was narrated by Hem Raj to all the members of the trap team including independent witnesses. Complainant Hem Raj produced Rs.17,000/- in denomination of 34 GC notes of Rs. 500/- each. Sub Inspector Ajeet Singh treated the GC notes with Phenolphthalein Powder and Ganga Ram Meena was instructed to keep those GC notes in the right side pant pocket of complainant Hem Raj. The trap team members conducted a 48 of 84 49 search of each other to make ensure that nobody is carrying any incriminating material / thing with them.
56. PW-12 has further deposed that at around 4 PM, they reached the office of the accused at Babu Jagjivan Ram Hospital in two government vehicles and parked the vehicles at some safer distance and took position as per directions of TLO. Thereafter, the shadow witness Brij Mohan Sharma and the complainant Hem Raj went inside the office of the accused. He has also deposed that on receiving the signal, Inspector Praveen Ahlawat and SI Ajeet Singh alongwith other team members rushed towards the office of accused and caught hold the accused with the wrist and asked that he has received Rs. 17,000/- from the complainant Hem Raj. On this, accused remained mum. After some time, accused accepted that he has received Rs.17,000/- from complainant.
57. PW-12 has deposed that complainant Hem Raj told that accused had taken the GC notes in his right hand and counted with both hands and kept the same in the drawer of his table.
49 of 84 50
58. PW-12 Inspector Prem Nath has also deposed that thereafter independent witness Ganga Ram Meena was directed to take out the GC notes from the drawer of the accused as instructed by the TLO. The digital recorder which was handed over by him to the complainant was taken back and the recording of the same was played in the presence of all the trap team members and the complainant. The voice recorded in the digital voice recorder was transferred in two blank audio cassettes through Sanyo Compact Cassette Recorder / Player. Signatures of both the independent witnesses were also taken on the cassette inlay card. One of the cassette was sealed with the cloth wrapper and both the independent witnesses signed on the cloth wrapper. Another cassette was prepared for the investigation purpose.
59. PW-12 Inspector Prem Nath has deposed that on 28.07.2004, both the independent witnesses and the complainant were called in the CBI Office and the specimen voices of the accused Surender Kumar was recorded in Sanyo Compact 50 of 84 51 Cassette Recorder and thereafter the said cassette having sample voice of accused Surender Kumar was sealed with the CBI seal and the signatures of independent witnesses were also taken. Specimen Voice Recording Memo was prepared.
60. PW-13 Inspector Anil Kumar, who is the Trap Laying Officer in the present case, has deposed that on 27.07.2004, he was called by his SP in his chamber and he was introduced to the complainant Hem Raj. A handwritten complaint dated 27.07.2004 of complainant Hem Raj was handed over to him. On the first page of the said complaint, SP had written a note for verification and registration of the case and to lay a trap. Thereafter, he brought the complainant to his chamber and arranged two independent witnesses namely Brij Mohan Sharma and Ganga Ram Meena. The witnesses were informed of the details of the complaint in presence of the complainant. He directed the complainant Hem Raj in presence of the independent witnesses to contact accused Surender Kumar, who was working as AE in PWD, Division no. 13, Janhagirpuri, Delhi, from his own Mobile 51 of 84 52 phone No. 9811860355 for verification of demand. The complainant contacted the accused and the conversation between the complainant and the accused was recorded on the digital recorder in the presence of both the independent witnesses. From the conversation, it was clear that the accused had demanded Rs.17,000/- from the complainant and asked him to come to his office at 3.30 PM on 27.07.2004. Thereafter, the said conversation was transferred in new blank audio cassette with the help of tape recorder. The said cassette was sealed with the seal of CBI and was also signed by both the independent witnesses. The pre trap verification memo Ex. PW-4/F was prepared in presence of independent witnesses.
61. PW-13 has further deposed that thereafter trap team was constituted including Inspector Amreek Raj, Inspector Praveen, SI Ajeet Singh and SI Prem Nath. All the trap team members were introduced with the complainant and the witnesses. The complaint was also shown to them and they had satisfied themselves with the complaint. Thereafter, complainant 52 of 84 53 had produced Rs.17,000/- consisting of 34 GC notes of Rs.500/- each denomination and the details of the same are mentioned in the Handing Over Memo Ex. PW-4/E. He has further deposed that the said GC notes treated with Phenolphthalein Powder by SI Ajeet Singh to show the demonstration.
62. PW-13 has also deposed that the treated notes were kept in right side front pant pocket of the complainant with the directions to hand over the bribe money to the accused only on his specific demand. Thereafter, personal search of the complainant was taken and he was not allowed to keep any incriminating thing with him. After that personal search of all the witnesses and trap team members was taken and they were not allowed to keep anything incriminating with them. Thereafter, all the trap team members including independent witnesses had washed their hands with soap and water. He has also deposed that digital recorder and tape recorder were also arranged by them through SI Prem Nath.
63. PW-13 has deposed before the Court that the trap team 53 of 84 54 including witnesses had left the CBI Office from Jahangirpuri at 3.30 PM and reached Jahangirpuri at about 4.00 PM. The digital tape recorder was handed over to the complainant with the directions to switch on the same before entering in the office of accused and Brij Mohan Sharma was directed to remain present with the complainant to see the transaction of bribe money and over hear the conversation between complainant and the accused. The other witness Ganga Ram Meena remained with them. The complainant and shadow witness Brij Mohan Sharma went to the office of accused and other team members took suitable positions in the compound. He has further deposed that before entering the office of accused, his (PW-13) mobile phone number was fed into the mobile of the complainant and he was asked to make a call on his mobile no. 9868235012 after transaction of bribe amount. The shadow witness was also directed to give signal by scratching his head by both of his hands after the transaction of bribe amount is over.
64. PW-13 has further deposed before the court that after 54 of 84 55 sometime, the shadow witness was seen coming out but he did not give any signal. Thereafter, at about 4.36 PM, he had received a miss call from the complainant on his mobile. After receipt of this miss call, he alongwith independent witness Ganga Ram and other team members entered in the office of accused, who was sitting on the chair and the complainant was sitting on his opposite side. Accused was apprehended from both of his wrists by Inspector Praveen and SI Ajeet Singh. PW-13 has further deposed that after showing his identity to accused, he (accused) was challenged by him by saying that he has accepted the bribe money from the complainant. On this, accused kept mum for sometime and later on, he told him that he had taken the money for some other person but he could not disclose the name and identity of the said other person.
65. PW-13 Inspector Anil Kumar has also deposed that on being asked from the complainant, he told that when he alongwith shadow witness came to the office of accused, two other persons were sitting with the accused in his office, so they had waited for 55 of 84 56 sometime outside the office, later on he entered in the office and the shadow witness remained outside as there was no extra chair lying. After sometime both said other persons left the office of the accused and thereafter accused demanded the bribe amount with gesture with his right hand. After that the complainant handed over the bribe amount to the accused which he took from his right hand and kept the same in the drawer of his table. After that, accused asked him "Kitne hein." On this, the complainant told the amount to the accused, who took out the bribe amount from the drawer and counted the same with his both hands and again kept the same in the drawer.
66. PW-13 has further deposed that thereafter the independent witness Ganga Ram Meena was also directed to recover the bribe amount, who recovered the same from the drawer of the table of the accused. The bribe amount was counted and 34 GC notes of Rs,500/- denomination each were recovered by the independent witness Ganga Ram Meena and the numbers of recovered GC notes were tallied with numbers of 56 of 84 57 GC notes mentioned in Handing Over Memo Ex. PW-4/E.
67. PW-13 has deposed that the digital tape recorder was taken back from the complainant and was heard in presence of witnesses, which confirmed bribe transaction. The said conversation so recorded in the digital tape recorder was then transferred into new audio cassette and the same was sealed with the seal of CBI after obtaining signatures of both independent witnesses. The seal with which bottles were sealed and whose impressions were also taken on Recovery Memo Ex. PW-4/G, was then handed over to independent witness Ganga Ram Meena.
68. PW-2 Dr. Rajinder Singh, Principal Scientific Officer and HOD Physics, CFSL, New Delhi, has deposed that on 03.08.2004, he received three sealed parcels from SP, CBI, New Delhi and his result of examination have been described in his report dated 31.01.2005 Ex. PW-2/A. Result of examination is as under:-
"The auditory examination of questioned voice 57 of 84 58 marked exhibit Q-1(A) & Q-2(A) and specimen voice of Sh. Surender Kumar marked exhibit S-1(A) recorded in cassette marked exhibit S-1 reveal that questioned voice marked exhibits Q-1(A) & Q-2(A) are similar to the specimen voice marked exhibit S-1(A) in respect of their linguistic and phonetic features.
The voice spectrographic examination of questioned voice samples marked exhibits Q-1(a1), Q-1(a2), Q-2(a1) & Q-2(a2) and specimen voice samples marked exhibits S-1(a1), S-1(a2), S-1(a3) & S-1(a4) reveal that the questioned voice samples marked Q-1(a1), Q-1(a2), Q-2(a1) & Q-2(a2) are similar to specimen voice samples marked exhibits S-1(a1), S-1(a2), S-1(a3) & S-1(a4) respectively in respect of their formants frequencies distribution, intonation pattern, no. of formants and other general visual features in voicegrams. Hence, the voice marked exhibits Q-1(A) & Q-2(A) are the voice of the same person whose 58 of 84 59 specimen voice is marked exhibit S-1(A) (Surender Kumar) beyond reasonable doubt.
69. Complainant PW-4 Hem Raj, PW-12 SI Prem Nath, PW-13 Inspector Anil Kumar and PW-2 Dr. Rajinder Singh have been cross examined at length on behalf of the accused Surender Kumar, however, nothing favourable to accused has come out from their cross examination so as to disbelieve their testimonies.
70. In view of the aforesaid discussion coupled with the report Ex. PW-2/A of Dr. Rajinder Singh, it is clear that accused Surender Kumar has deliberately kept the Final Bill with him and demanded the bribe money. Hence, I am of the opinion that Prosecution has successfully proved that accused Surender Kumar being a Public servant while working in the capacity of Assistant Engineer-1, PWD, Division No. 13, Kashmere Gate, Delhi, had demanded the bribe money.
71. To prove the acceptance of the Bribe Money by the accused Surender Kumar, Prosecution has examined PW-9 C. L. 59 of 84 60 Bansal, who has deposed that on 03.08.2004, two sealed bottles alongwith the forwarding letter and specimen seal were received in the office of CFSL, New Delhi from SP, CBI, ACB, Block-IV, CGO Complex, New Delhi. He has further deposed that the seals on the bottles were compared with the specimen seals, which tallied with each other and were intact. Bottle no. 1 contained 180 ml. (approximately) pink liquid with sediments - Ex. RHW and the Second Bottle contained 175 ml. (approximately) pink liquid with sediments Ex. LHW.
72. PW-9 C. L. Bansal has further deposed that his result of examination has been described in his report dated 11.08.2004 Ex. PW-9/1. Result of Analysis is as under:-
"The Exhibits RHW and LHW gave positive tests for the presence of Phenolphthalein and Sodium Carbonate."
73. 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, wherein para 10, it is held 60 of 84 61 as Under:-
"..........of course, the oral evidence of PWs 1 and 4 by itself, if believed as rightly believed by the High Court, proves the passing of the money to the accused and its production by him when challenged by PW-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
61 of 84 62 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 (he accused) wiped his face with the handkerchief and put it into his trouser pocket thus contaminating the lining with the guilty substance. Moreover, the inner lining was dipped by PW-7 with his hands which had the powder. Thus, all the three items stand explained, according to him. These recondite 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 62 of 84 63 nothing cruder can retard forensic efficiency then swearing by traditional oral evidence only thereby discouraging the liberal use of scientific research to prove guilt."
74. 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 the purpose of trap, are treated with Phenolphthalein Powder so 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 63 of 84 64 dubious character for the purpose of deciding the fate of the public servant."
75. From the above discussion, presence of Phenolphthalein Powder on the right hand and left hand of accused Surender Kumar is proved. There is no explanation on behalf of accused as to how Phenolphthalein Powder has appeared on his right hand and left hand.
76. The Hon'ble Supreme Court in Roop Singh Vs State of Punjab, AIR 1991 Supreme Court 1125, in this regard, has held as follows:-
"Prevention of Corruption Act (2 of 1947), S.5 - Offence of accepting bribe-Nothing to doubt testimony of Prosecution witnesses-Defence by accused that he was victim of conspiracy - Not supported by evidence on record-Failure of accused to explain presence of Phenolphthalein Powder on his hand-Held,evidence of prosecution witnesses was sufficient to prove 64 of 84 65 offence against accused - Conviction of accused was proper."
77. From the above discussion, it is also proved that tainted money of Rs.17,000/- was recovered from the drawer of the table of the accused Surender Kumar by the independent witness Ganga Ram Meena. This version has also been corroborated by PW-12 SI Prem Nath and PW-13 TLO/Inspector Anil Kumar. The recovery of the tainted money from the drawer of the table of the accused indicates that he had received the illegal gratification knowingly.
78. In a prosecution for the offence of bribery the conduct of accused is relevant U/s 8 of Evidence Act. When the accused was challenged regarding acceptance of the bribe amount, he kept mum. Accused Surender Kumar has not given any explanation regarding the recovery of the tainted money from the drawer of his table.
79. From the above discussion, it is again proved that accused Surender Kumar accepted Rs.17,000/- voluntarily and 65 of 84 66 consciously which was recovered from the drawer of his table.
80. During the course of arguments, the Ld. Counsel for accused Surender Kumar has argued that the accused has been falsely implicated in the present case by the complainant in connivance with Sh. Pankaj Kumar (PW-7) as the complainant has grudge against accused Surender Kumar as the accused has demolished the jhuggies made by the complainant at Babu Jagjivan Ram Hospital Complex, Jahangirpuri, Delhi for his labour.
81. I have gone through the testimony of PW-4 Complainant Hem Raj and PW-7 Pankaj Kumar. Perusal of the same, it reveals that during the cross examination of PW-4 and PW-7, no suggestions have been given to them regarding the demolition of jhuggis by the accused Surender Kumar. However, the accused has given suggestion to PW-3 Sandeep Kumar Dogra, during his cross examination, regarding the demolition of jhuggis, who (PW-3) deposed that he was not aware if those jhuggis were under the possession of complainant Hem Raj.
66 of 84 67
82. Even the accused has not brought on record any evidence to show that the accused has demolished the jhuggis, which were made by the complainant at Babu Jagjivan Ram Hospital Complex, Jahangirpuri, Delhi. Hence, the point raised by Ld. Defence counsel is of no avail to the accused.
83. Ld. Defence Counsel has also argued that the complainant Hem Raj was not authorized person or employee or partner of M/s. Kumar Construction Company.
84. On the other hand, it has been argued by the Ld. PP that the Prosecution has filed a photocopy of letter dated 15.01.2004 Ex. PW-4/B vide which complainant Hem Raj was authorized by M/s. Kumar Construction Company to execute the work Agreement Ex. PW-4/A and to sign all the work registers of the Work Agreement Ex. PW-4/A.
85. Ld. PP has also pointed out the attention of the court on the testimonies of PW-4 complainant Hem Raj and PW-7 Pankaj Kumar. PW-4 complainant Hem Raj has deposed before the Court that he was working as Engineer with M/s. Kumar 67 of 84 68 Construction Company in the year, 2004 and his company authorized him vide letter dated 15.01.2004 for execution of Work Agreement Ex. PW-4/A which was executed between PWD and their Company.
86. PW-7 Pankaj Kumar has deposed before the Court that in the year, 2004 he was partner of M/s. Kumar Construction Company and had been dealing in construction business. He has further deposed that Sh. Hem Raj was an employee of the said partnership firm and the said partnership firm had entered into a contract with PWD for repairing of roof sheds and damaged toilets at Jahangirpuri.
87. PW-7 after seeing the photocopy of letter Ex. PW-4/B, has deposed before the Court that the above said letter dated 15.01.2004 was written by him to Executive Engineer, PWD, Division-13 (NCT), Delhi.
88. In view of testimonies of PW-4 and PW-7, it is clear that PW-4 complainant Hem Raj has been authorized by PW-7 for execution of Work Agreement Ex. PW-4/A. 68 of 84 69
89. Ld. Defence Counsel has argued that the Pre Trap Verification Memo is a fabricated document because the same was not prepared by PW-12 SI Prem Nath, who was a Verifying Officer in this case. Ld. Defence Counsel has further argued that the Pre Trap Verification Memo Ex. PW-4/F was prepared by PW-13 TLO Inspector Anil Kumar.
90. I have perused the testimonies of PW-12 SI Prem Nath and PW-13 TLO / Inspector Anil Kumar. Perusal of the same, it reveals that PW-12 SI Prem Nath has deposed before the Court that he was asked to assist Inspector Anil Kumar in the present case and during the Pre Trap Proceedings, he assisted PW-13 TLO Inspector Anil Kumar.
91. In view of the same, It is immaterial that the Pre Trap Verification Memo Ex. PW-4/F was prepared by PW-13 TLO / Inspector Anil Kumar.
92. The contradictions pointed out by Ld. Defence Counsel are of minor nature. These contradictions cannot be called material contradictions. Such contradictions are bound to come in 69 of 84 70 the statement of the witnesses because of the passage of time and other reason. Court cannot expect a parrot like repetition of the version by the witnesses.
93. The law regarding contradiction was considered in the case of State of U. P. Vs M. K. Anthony, AIR 1985 SC 48, wherein it was held that despite discrepancies in the statement made in the court by the material witnesses if their testimonies fully inculpate the accused, conviction can be based on such evidence. The observations were made by the Apex Court 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 formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities, pointed out in the evidence as a whole and 70 of 84 71 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 it unworthy of belief. Minor discrepancies on trivial matter not touching the core of the case, hyper technical 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."
94. 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 or infirmities in the matter of trivial details. even honest and truthful witness may differ in some 71 of 84 72 details unrelated to the main incident because power of observation, retention, and reproduction differ with individuals. cross examination is an unequal dual between the rustic (witness) and refined lawyer."
95. In another case of Bharuda Broginbhai Harjibhai Vs State of Gujarat AIR 1983 SC 753, wherein it was held that discrepancies which do not go to the root of the matter and shake the basic version of the prosecution should not be attached undue importance. The reasons given in that judgment for arriving at this conclusion as under:-
"1) By and large a witness cannot be expected to possess photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
2) Ordinarily, it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an 72 of 84 73 element of surprise. Thus, mental faculties, therefore, cannot be expected to be attuned to absorb the details.
3) The powers of observance differ from person to person, what one may notice, another may not.
An object or movement might emboss image of one person's mind, whereas it might go unnoticed on the part of another.
4) By and large people cannot accurately recall a conversation and reproduce the very words used by them 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.
5) In regard to exact time of an incident or the time duration of an occurrence, usually, people make their estimates by guess work on spur of moment at the time of interrogation and one 73 of 84 74 cannot expect people make very precise or reliable estimates in such matters. Again, it depends upon the time-sense of individuals which varies from person to person.
6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
7) A witness though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details of imagination on the spur of moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved, though the 74 of 84 75 witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological moment."
96. In view of the law discussed above, it cannot be said that the contradictions pointed out by learned Counsel for accused Surender Kumar are very vital contradictions. These contradictions are likely to occur with the passage of time.
97. Ld. Defence Counsel has argued that the Work was completed on 06.09.2004, hence there was no occasion for the accused to demand the bribe from the complainant Hem Raj. He has drawn the attention of the court on the cross examination of PW-5 V. K. Jain, Executive Engineer. During the cross examination, question was put to PW-5 that the work was not completed as the seven defects were raised by JE Gyan Chand on 12.08.2004 and the witness i.e PW-5 replied that the defects were pending on 12.08.2004.
98. On the other hand, it has been argued by the Ld. PP that the Work was completed on 15.05.2004 and the final bill was 75 of 84 76 prepared on the basis of Measurement Book Ex. PW-3/DB to Ex. PW-3/DE.
99. Ld. PP has drawn the attention of the Court on the testimonies of PW-8 JE Gyan Chand, PW-6 Sudhir Bhatia, LDC and PW-5 V. K. Jain, Executive Engineer.
100. PW-8 Gyan Chand, JE has deposed before the Court that accused Surender Kumar was his Assistant Engineer in CPWD. PW-8 has further deposed that he used to make entries in the Measurement Book regarding work carried out by the Contractors and the bills used to be prepared by him on the basis of the measurement entries recorded in the Measurement Book after preparing the abstract of the measurements. The bills after preparation used to be submitted to the Assistant Engineer, the next higher authority, who used to conduct test check personally by visiting the site of the measurements recorded in the Measurement Book. The concerned AE after the aforesaid physical verification would make his endorsement in the Measurement Book under his signatures and then would sent the 76 of 84 77 same for checking of calculations and preparation of the bill in the prescribed proforma to the concerned Clerk in the office of Sub Divisional Office of the Sub Divisional Officer i.e. the Assistant Engineer concerned.
101. PW-8 Gyan Chand, JE, after having seen the Measurement Books Ex. PW-3/DB to Ex. PW-3/DE, has deposed before the Court that the relevant measurement entries pertaining to the aforesaid work are in his handwriting and bears his signatures. He has also seen the file Ex. PW-5/A which contains the carbon copy of First Running bill pertaining to the work paid to M/s. Kumar Constructions Company. He has also identified the signatures of accused Surender Kumar on Ex. PW-8/A.
102. He has further seen Final Bill Ex. PW-6/DB in file Ex. PW-5/A and after seeing the same, he has deposed that the same was prepared by concerned Sub Divisional Clerk on the basis of Measurement Entries recorded by him in the Measurement Books Ex. PW-3/DB to Ex. PW-3/DE. He has further deposed that the said final bill Ex. PW-6/DB was prepared 77 of 84 78 for Rs.5,42,484/- after deduction and the said amount had to be actually paid to the Party but it was pending for payment to the Contractor before the incident subject matter of the present case took place.
103. PW-6 Sudhir Bhatia has deposed that in the year 2004 he was working as Sub Divisional Clerk in the Office of Assistant Engineer, PWD, Sub Division No. 1, Babu Jagjivan Ram Hospital, Jahangir Puri, Delhi and accused Surender Kumar was working as Assistant Engineer in Sub Division No.1 at that time.
104. PW-6 has also seen file Ex. PW-5/A related to work order which was awarded to M/s. Kumar Constructions Company for repair of roofs and sheds, damage toilet blocks and cycle shed etc. at Government Senior Secondary School, Jahangirpuri, Delhi. After having seen the copy of first running bill in file Ex. PW-5/A, he has deposed that the same is in his handwriting which he prepared on the basis of entries recorded by (PW-8) Sh. Gyan Chand, JE in Measurement Book. After preparation of the running bill, he submitted it to Assistant Engineer and payment to 78 of 84 79 this bill was made to M/s. Kumar Constructions Company.
105. PW-6 has also seen the copy of final bill of M/s. Kumar Constructions company pertaining to Work Agreement in File Ex. PW-5/A. After seeing the same, he has deposed that the copy of final bill is also in his handwriting and he had prepared the same on the basis of entries recorded in Measurement Books recorded by Sh. Gyan Chand, JE. The final bill was for Rs.5,42,484/-. He put up the final bill of M/s. Kumar Constructions Company alongwith Measurement Book Ex. PW-3/DE to accused Surender Kumar, AE for onward processing. Sh. Gyan Chand JE, directly put up final bill and Measurement Book to accused Surender Kumar on 20.07.2004.
106. PW-6 has further deposed Accused Surender Kumar called him and directed him to check the calculation and prepare the copy of the final bill. He put up the copy of final bill to AE within one or two days of 20.07.2004.
107. PW-5 V. K. Jain has deposed that he remained posted as Executive Engineer, PWD, Division-13, Kashmere Gate, Delhi 79 of 84 80 for the period 02.07.1997 to 31.10.2004. He has further deposed that file Ex. PW-5/A is related to running bills and final bills related to work awarded to M/s. Kumar construction Company. The copy of running bills of M/s. Kumar Construction company are in this file which was prepared by accused Surender Kumar. He has further deposed that (PW-8) Gyan Chand JE had prepared extract of cost for second and final bill on 20.07.2004.
108. In view of the testimonies of the witnesses, I am of the opinion that the Final Bill was prepared on the basis of Measurement Book Ex. PW-3/DB to Ex. PW-3/DE and the same was put up with the Measurement Books before the accused Surender by PW-8 Gyan Chand, JE on 20.07.2004, when the Work was completed by M/s. Kumar Constructions Company. Thereafter, after checking the calculation and preparing the copy of the final bill, PW-6 Sudhir Bhatia has again put up the same to accused Surender Kumar, AE within one or two days of 20.07.2004.
109. Moreover, the testimony of PW-7 Pankaj Kumar also 80 of 84 81 shows that the work was already completed and he wrote a letter dated 09.06.2004 Ex. PW-4/C addressed to Executive Engineer, PWD-13, New Delhi stating that the work mentioned therein had been completed on 15.05.2004 and requested for final payment.
110. The submissions of the Ld. Defence Counsel regarding the defects, which have been raised by Sh. Gyan Chand, JE on 12.08.2004, are of no force because the defects have been raised by Sh. Gyan Chand, JE on 12.08.2004, which is after the date of trap i.e. 27.07.2004.
111. Ld. Defence Counsel has argued that both the independent witnesses i.e. Shadow witness Brij Mohan Sharma and Recovery witness Ganga Ram Meena have turned hostile and they have not supported the case of the Prosecution. The whole case of the Prosecution is fabricated and concocted one. He has also stated that accused in his statement recorded under Section 313 Cr. P. C. has submitted that the witnesses are manipulated and interested witnesses and they have deposed on the tutoring of by the CBI.
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112. In case reported as "State of UP Vs. Dr. G.K. Ghosh, AIR 1984 SC 1453, it was held that :-
"In case of offence of demanding and accepting illegal gratification, depending on their circumstances of the case, the court may feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the police officers even if the trap witnesses turned hostile or are found not to be independent.
When besides such evidence there is circumstantial evidence which is consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty in upholding the prosecution case."
113. In upholding the present case still further Hon'ble Supreme Court has laid down in Hazari Lal Vs State of Delhi, (Delhi Admn.), AIR 1980 SC 873 that :-
"Where the evidence of the police officer who laid 82 of 84 83 the trap is found entirely trust worthy, there is no need to seek any corroboration. There is no rule of prudence, which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In the facts and circumstances of a particular case a court may be declined to act upon an 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. It is all a matter of appreciation of evidence and on such matters there can be no hard and fast rule, nor can there be any precedential guidance."
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114. Cumulative perusal of the entire evidence led by the Prosecution and briefly discussed in the foregoing pages, it stands established that the accused Surender Kumar demanded and accepted the bribe which was recovered from the drawer of his table in the form of tainted money.
115. In view of the aforesaid discussion, I am of the opinion that the prosecution has successfully brought home the guilt to the accused Surender Kumar, of having committed offences he has been charged with. Therefore, accused Surender Kumar is held guilty and convicted for having committed offences punishable under Section 7 and 13(2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988.
ANNOUNCED IN THE OPEN COURT TODAY I.E. ON 31.10.2013.
(N. K. SHARMA) SPECIAL JUDGE (PC ACT)(CBI):02 DELHI.
84 of 84 85 IN THE COURT OF SH. N. K. SHARMA, SPECIAL JUDGE, (PC ACT)-02, (CBI),TIS HAZARI COURTS, DELHI. RC No.36(A)/2004 CBI / ACB / NEW DELHI CC No.11/11 ID No.02401R0678382005 CBI VS SURENDER KUMAR S/O GYAN SINGH, ASSISTANT ENGINEER -I, PWD DIVISION (KASHMERE GATE, DELHI) SUB DIVISION - I, BABU JAGJEEVAN RAM MEMORIAL HOSPITAL JAHANGIRPURI, DELHI.
DATE OF INSTITUTION : 25.07.2005.
DATE OF ARGUMENTS : 24.10.2013.
DATE OF JUDGMENT : 31.10.2013.
ORDER ON SENTENCE : 07.11.2013.
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ORDER ON SENTENCE:-
1. Vide my separate judgment announced on 31.10.2013, accused Surender Kumar is held guilty and convicted for the offences punishable under Section 7 and Section 13(2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988.
2. It has been argued by Sh. B. S. Rai, learned counsel for convict Surender Kumar that he is 56 years of age and is not a previous convict. He is the sole bread earner of his family. He has clean antecedents. He is facing agony of this trial since 2005.
3. It has been submitted that accused has to look after his mother and father, who are very old and in the age period of 75-78 years and are also suffering from various ailments as well as from old age problems.
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4. It has been further submitted that accused has to look after his wife, who has gone into depression since August, 2010 and his son, who has also gone into depression from September, 2008.
5. It has been further submitted that the accused has five sisters and out of them, one is still unmarried, who is of marriageable age. It is prayed that in these circumstances, lenient view may be taken against him.
6. It has been argued by the learned PP Sh. J. S. Wadia for CBI that no leniency be shown to the Convict in awarding the sentence as it will be undesirable and will also be against public interest. He has argued that convict is involved in a serious corruption case inspite of being public servant. He should be awarded severe punishment and heavy fine may also be imposed.
7. Taking into consideration, submissions made on behalf of the Convict and the Prosecution, I am of the 87 of 84 88 view that if following sentences in this case are awarded, it shall serve the ends of justice:-
8. For offence punishable under Section 7 of PC Act, 1988, Convict Surender Kumar is sentenced to undergo R. I. for a period of two years alongwith a fine of Rs.20,000/-(Rs. Twenty Thousands Only) and in default of payment of fine, he shall undergo S. I. for a further period of two months.
9. For offence punishable under Section 13(2) read with Section 13(1)(d) of PC Act, 1988, Convict Surender Kumar is sentenced to undergo R. I. for a period of 3 years alongwith a fine of Rs.30,000/-(Rs.
Thirty Thousands Only) and in default of payment of fine, he shall undergo S. I. for a further period of three months.
10. It is further directed that all the substantive sentences shall run concurrently. Benefit of Section 428 Cr. P. C. be also given to the convict.
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11. A copy of Judgment and this order on sentence be given to the convict free of cost. File be consigned to Record Room.
(N. K. SHARMA) SPECIAL JUDGE (PC ACT)(CBI):02 DELHI/07.11.2013 89 of 84 90 RC No.36(A)/2004 CBI / ACB / NEW DELHI CC No.11/11 CBI VS. SURENDER KUMAR.
07.11.2013.
File taken up on the application under Section 389 of Cr. P. C. moved by learned counsel for convict Surender Kumar for suspension of sentences.
Present:- Sh. J. S. Wadia, Ld. PP for CBI.
Convict Surender Kumar is present.
Sh. B. S. Rai, learned Counsel for Convict Surender Kumar has filed an application under Section 389 (3) Cr. P. C. for suspension of Sentence.
Heard. Convict Surender Kumar remained on bail during the trial of this case and he has not misused the liberty of the bail and attended the court on each date of hearing. This fact is also not disputed by the Ld. PP. Convict Surender Kumar is 90 of 84 91 directed to furnish the Bail Bond in the sum of Rs.25,000/- with one surety in the like amount. Bail Bond with one surety furnished and the same are accepted upto 06.01.2014.
A copy of this order be given dasti to the convict. File be consigned to Record Room.
(N. K. SHARMA) SPECIAL JUDGE (PC ACT)(CBI):02 DELHI /07.11.2013 91 of 84 92 RC No.36(A)/2004 CBI / ACB / NEW DELHI CC No.11/11 07.11.2013 Present:- Sh. J. S. Wadia, Ld. PP for CBI.
Convict Surender Kumar is present with counsel Sh. B. S. Rai, Advocate.
Vide separate order on sentence, Convict Surender Kumar is sentenced to undergo R. I. for a period of two years alongwith a fine of Rs.20,000/-(Rs. Twenty Thousands Only) for the offence punishable under Section 7 of PC Act, 1988, in default of payment of fine, he shall undergo S. I. for a further period of two months.
Convict Surender Kumar is also sentenced to undergo R. I. for a period of 3 years alongwith a fine of Rs.30,000/-(Rs. Thirty Thousands Only) for the offence punishable under Section 13(2) read with Section 13(1)(d) of PC Act, 1988, in default of 92 of 84 93 payment of fine, he shall undergo S. I. for a further period of three months.
It is further directed that all the substantive sentences shall run concurrently. Benefit of Section 428 Cr. P. C. be also given to the convict.
A copy of Judgment and this order on sentence be given to the convict free of cost. File be consigned to Record Room.
(N. K. SHARMA) SPECIAL JUDGE (PC ACT)(CBI):02 DELHI/ 07.11.2013 93 of 84