R.C. Sharma vs State(Cbi)
2009 Latest Caselaw 496 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+      Crl. A. No. 329/1997


%                                Reserved on      : 05.02.2009
                                 Date of decision : 11.02.2009


       R.C.SHARMA                           ... Appellant
                           Through: Mr. K.B.Andley, Sr. Adv. with Mr. M.L.
                           Yadav, adv.

                                   Versus

       STATE(CBI)                            ...Respondent

Through: Mr. Ganesh Pandey Adv. for CBI

CORAM:

HON'BLE MR. JUSTICE MOOL CHAND GARG

1. Whether the Reporters of local papers may be allowed to see the judgment? Yes

2. To be referred to Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

MOOL CHAND GARG, J:

1. Appellant has filed this appeal under section 374 C.r.P.C. to

assail the judgment dated 29.08.1997 passed by the learned

Special Judge, Delhi Convicting him under Section 7 & 13 of

Prevention of Corruption Act 1988 (hereinafter referred to as the

Act) and sentencing him to undergo R.I. for three and a half

years as well as to pay fine of Rs.2000/- and in default to

undergo three months R.I. on both the counts separately with the

condition that both the sentences will run concurrently.

2. Briefly stating the facts of this case are that PW5 Dr. Shyam

Gupta, who is running a Path Laboratory, in the name & style of

Nirmal X-ray and diagnostic centre at A4/22-23, Shiv Market,

Paschim Vihar, and had given a contract work of renovation

including installation of water connection of the above said shop

to the Complainant Ashok Arora in August, 1993 and on

28.10.1993 he allegedly demanded and accepted a sum of

Rs.1,000/- from Sh. Ashok Arora (PW-1) as illegal gratification as

a consideration for providing of water connection in the aforesaid

premises as application along with the required documents was

submitted under the signatures of Dr. Shyam Gupta to Zonal

Engineer(water) West Zone office, Rajouri Garden, New Delhi. No

water connection was given till 26.10.1993. Thus, on 26.10.1993

complainant Ashok Arora met accused R.C. Sharma Junior

Engineer and requested him for doing the needful. Accused

R.C.Sharma demanded a bribe of Rs.1000/- for the aforesaid

work and directed the complainant to pay the bribe amount by

28.10.1993. Ashok Arora, who was not interested to pay the

bribe approached Anti Corruption Branch of Central Bureau of

Investigation and made the written complaint on 27.10.1993

(Ex. PW -1/A) lodged by Ashok Arora (PW1)with the S.P.(ACB),

CBI, the relevant portion of which reads as under :

"Written complaint dated 27.10.93 by Shri Ashok Arora s/o Shri C.L.Arora r/o 66 A LIG Flat Rohtak Road, New Delhi - 63. It is alleged that Dr.Shyam Gupta S/o Shri Ram Kumar Gupta is running Path. Laboratory Nirmal X Ray and diagnostic Centre at A4/22-23 Shiv Market, Paschim Vihar where I had given a work of renovation including water connection of the above-said shop to me in August 1993, I am working as property dealer/petty contractor. I submitted an application along with required documents for water connection at the said address, duly signed by Dr.Shyam Gupta was submitted to GE Water West Zone Office Rajouri Garden New Delhi but no water connection was given till 26.10.93. As per the request of Sh. Shyam Gupta, I met Sh. R.C. Sharma, Junior Engineer, MCD, Peera Garhi Store, Paschim Vihar and requested for arranging water connection, Sh. R.C. Sharma demanded a bribe from me of Rs. 1000/- and directed me to pay the same amount by 28.10.93 on the submission of which a bill will be prepared along with the file and my water connection will be passed. I did not want to pay the bribe hence I pray for necessary action to be taken."

3. On the basis of the said complaint, present case was registered

and investigation was entrusted to Inspector Javed Siraj. He

organised a trap party comprising of two independent witnesses

namely Shri Govind Rajan(PW2) and Nawab Khan(PW4) besides

other officials of CBI. During the pre-raid proceedings on

28.10.1993 complainant brought RS.1000/- in the form of GC

note of Rs.500/ and five GC notes of Rs. 100 each for being used

as trap money. The currency notes were treated with the

phenolphthalein powder and the demonstration was shown to

the raiding party. The same GC notes were given to the

complainant who was directed to pass the same to R.C.Sharma

only in the event of the specific demand. Shri Nawab Khan was

given the role of the shadow witness and to hear the

conversation between complainant and the accused and to

watch the proceedings.

4. Thereafter, the trap party reached the MCD office, Peera Garhi

Store, Paschim Vihar on 28.10.93 at 12.10pm. Later on at 12.20

pm accused R.C.Sharma came on his two wheeler scooter and

stopped on the Kachcha road of the Peera Garhi Store, Paschim

Vihar. There he demanded in the presence of the two shadow

witnesses and accordingly, the complainant Ashok Arora handed

over the tainted money to the accused, who accepted money in

his right hand and after counting the money with both hands, he

kept the same in the left pocket of his short and went to his

office on scooter. At the pre- appointed signal of the complainant

the trap party members rushed towards accused and he was

caught by his wrists. Tainted money of Rs. 1000/- was recovered

from left front pocket of the shirt of the accused by other

independent witness (PW2). Numbers of the said GC notes were

compared and tallied with the numbers already noted down in

the handing over memo. The necessary formalities of taking right

hand/left hand and left pocket wash of shirt of the accused done

at the spot which was turned pink and were sealed in separate

empty bottles with the seal of the CBI.

5. After completing the investigation a police report under section

173 C.R.P.C was filed before a Special Judge Delhi, who took

cognizance of the case against the appellant and held the trial.

6. The prosecution in order to support its case examined 10

witnesses namely Ashok Arora PW1 (complainant), Govind

Rajan, PW2 , Chief officer, Zonal Office, UCO Bank, Ashok Kumar

PW3, Nawab Khan PW4, Dr, Shyam Gupta PW5, Munshi Ram

PW6, S.C.Vashisht PW7, S.K.Peshin, Dy.S.P PW8, Shri V.S.Bisaria,

Senior scientific officer, CFSL PW9 and Ved Prakash Inspector,

CBI PW10 who conducted the investigation. Thereafter, the

statement of the appellant under section 313 C.r.P.C. was

recorded and statement of defence witness on behalf of the

appellant was recorded

7. It is thereafter that vide impugned judgment dated 29.08.1997,

the Special Judge held that the case of the prosecution with

regard to demand and acceptance of bribe by the appellant with

a view to help the complainant in getting the water connection

by misusing his official position was proved. Thus, the Special

Judge convicted the Appellant under section 7 and 13 of the Act

and sentenced him to undergo R.I for 3 years and Six months

and to pay fine of Rs.2,000/- and in default to undergo 3 months

R.I aforesaid on both the counts though the sentence were to run

concurrently. The appellant is presently in jail.

8. The Ld. Counsel for the appellant has assailed the Judgment of

conviction and order of sentence primarily on the following

grounds:

i) That the sanction for the prosecution was invalid inasmuch

as PW-3 Sh. Ashok Kumar, Additional Commissioner, MCD

who accorded the sanction has not applied his mind as the

entire material collected during investigation was not

placed before him for consideration. It is submitted that

DW-2, Sh. B.P. Pandey proved exhibit D.W.-2/A forwarding

letter of the sanctioning authority for the sanction of

prosecution of the accused which shows that only S.P.'s

report was placed before the Sanctioning Authority which

also the sanctioning authority was requested to keep

secret. It is submitted that when the Sanction was

accorded, no evidence against the appellant was collected

by the Investigating Agency inasmuch as neither the

complainant was examined by that date and therefore the

question of application of mind to due verification of the

facts could not arise. In this regard reliance has also been

placed upon the judgment delivered by the Apex Court in

State of Karnataka Vs. Amrit Jain (2008) 1 SCC (Crl.) 130

ii) That Ashok Arora the complainant had no authority and to

offer a bribe to the appellant which fact has been admitted

by Dr. Shyam Gupta (PW-5) who was the owner of the

premises and who wanted water connection to be installed

in his cross-examination and thus, the complaint filed by

Sh. Ashok Arora is without any consequence.

iii) That it has come on record that the appellant who was

working as Junior Engineer (Water) at the relevant time

had already sanctioned grant of water connection before

the date when the alleged bribe has been demanded and,

therefore, there was no occasion for him to have

demanded the bribe as alleged. In this regard reliance has

also been placed upon the statement of PW-6, Sh. Munshi

Ram statement made by the appellant under Section 313

Cr.P.C.

9. On the other hand the Counsel for the CBI submitted that the

judgment of the special judge is fully justified. It has been

submitted that the demand of bribe, its acceptance as well as

the recovery of the tainted money was proved by the witnesses.

It is stated:

(i) That in a trap case the deposition of the complainant

cannot be brushed aside and needs no independent

corroboration yet the other witnesses have corroborated

his testimony.

(ii) The motive to ask for the bribe stands proved by the

complaint Ex. PW -1/A. The very fact that the tainted

money was passed on to the appellant and recovered from

his possession raises a strong presumption under section

20 of the Act about the demand and acceptance of bribe

money which is corroborated by the fact that the same

money which was given to the accused was recovered

from him.

(iii) Regarding the validity and sanction it is submitted that Sh.

Ashok Kumar, Addl. Commissioner (Water) D.W.S. & S.D.

Undertaking, MCD, who was the sanctioning authority in

his testimony submitted that he has gone through the

entire evidence on record and the S.P's report before him

and satisfied himself that it was a fit case for grant of

sanction.

(iv) That testimony of complainant regarding the initial demand

was fully corroborated by the other members of the

raiding party and, thus the arguments that it requires

independent corroboration has no legs to stand.

v) The statement of Sh. Munshi Ram (PW-6) itself goes to

show that the appellant had calculated the development

charges on 13.10.1993 and made endorsement on the

application exhibit PW-6/C. There is nothing on record to

suggest that the complainant was aware about the

calculation of the development charges by the appellant on

13.10.1993 more over there is no dispute that the

appellant was posted in the concerned department and

was dealing with sanction of water connections. It is an

internal matter as to when the appellant has granted a

sanction but the fact is that as on the date the bribe was

demanded the water meter had not been installed.

10. I have given my thoughtful consideration to the submissions

made by the learned counsel appearing for the appellant and

that of the learned public prosecutor including the written

submissions of the appellant. I have also gone through the lower

court record and the judgments cited by the parties.

11. In this case sanction order Ex.PW-3/A dated 30.11.1993 has been

proved by Ashok Kumar (PW3), who was the sanctioning

authority by appearing in the witness box, where he stated that

he cannot admit or deny the fact that aforesaid file was routed to

him through Sh. Manohar Kulbey (Additional Director of

Vigilance), MCD Delhi. The only point raised by the learned

counsel for the appellant is that only S.P.Report is being sent

along with the said letter for grant of sanction and without

perusing the entire material the sanction was granted. I do not

find any infirmity in the sanction accorded by the Sanctioning

Authority. Even otherwise, it is well settled that adequacy or

inadequacy of the material before the sanctioning authority

cannot be gone into by us by sitting as a court of appeal over the

sanction order. In this regard reference can also be made to a

judgment delivered by the Apex Court in the case of R.

Sundrajan Vs. State [2006 (12) SCC 749], wherein it was

held:-

"12. There is no dispute that the sanction order was passed by the competent authority.

13. Dr. A. Chelliah, learned Counsel for the appellant, however, submitted that the sanction order was vitiated as there was no material on which it could have been passed. We do not agree.

14. In this connection, it may be mentioned that we cannot look into the adequacy or inadequacy of the material before the sanctioning authority and we cannot sit as a Court of appeal over the sanction order.

The order granting sanction shows that all the available materials were placed before the sanctioning authority who considered the same at great details. Only because some of the said materials could not be proved, the same by itself, in our opinion, would not vitiate the order of sanction. In fact in this case there was abundant material before the sanctioning authority, and hence we do not agree that the sanction order was in any way vitiated.

There is no merit in this appeal. Hence it is dismissed."

12. The sanction order Ex. PW3/A reads as under :-

"SANCTION ORDER

Whereas it is alleged that Shri Ramesh Chand Sharma S/o Shri Mahipal Singh while functioning as Junior Engineer Water-II, West Zone, MCD Peera Garhi Store Paschim Vihar, New Delhi, on 28.10l93 demanded and accepted a sum of Rs. 1,000/- from Shri Ashok Arora S/o Shri C.L.Arora R/o 66 A LIG Flat Rohtak Road, New Delhi -63, as illegal gratification other than his legal remuneration for giving a water connection at A-4/23 Shiv Market, Paschim Vihar, New Delhi.

Whereas it is further alleged:-

(i) That Dr.Shyam Gupta S/o Shri Ram Kumar Gupta is running a Path.

Laboratory Nirmal X-Ray and diagnostic Centre at A-4/22-23, Shiv Market, Paschim Vihar and had given a wok of renovation including water connections of the above said shop to Shri Ashok Arora in August, 1993. Application along with required documents for water connections at the said address duly signed by Dr.Shyam Gupta was submitted to ZE Water West Zone Office Rajouri Garden, New Delhi but no water connection was given till 26.10.93. On 26.10.93 Shri Ashok Arora met Shri R.C. Sharma, Junior Engineer, MCD Peera Garhi Store, Paschim Vihar and requested for arranging water connection, Shri R.C. Sharma demanded a bribe of Rs. 1,000/- from Shri Ashok Arora and directed him to pay the bribe amount Rs. 1,000/- by 28.10.93.

(ii) That Shri Ashok Arora was not willing not willing to pay the bribe, hence he got lodged a written complaint to SP CBI ACB New Delhi on 27.10.93 at 7.50 PM. A case was registered and entrusted to Inspector Javed Siraj for laying a trap. A Trap Party consisting of two independent witnesses S/Shri S. Gobind Rajan and Nawab Khan and other officers of CBI ACB had been constituted on 28.10.93. All the legal formalities were observed. Shri Nawab Khan was directed to act as shadow witness in order to over-hear the conversation and see the transaction of bribe money between complainant and Shri R.C. Sharma. Shri Ashok Arora was directed to pass on the treated G.C. Notes of Rs. 1000/- to Shri R.C. Sharma on his specific demand of bribe only and also to give signal by scratching his head by his left hand to the trap party. A handing over memo incorporating the numbers of the treated G.C. Notes and all the pre-trap proceedings, was prepared and signed by all including above said Independent witnesses.

(iii) That the trap party along with complainants left CBI office at 11.10 AM and reached near MCD Peera Garhi Store, Paschim Vihar and waited for the arrival of the accused.

(iv) That at about 12.20 PM Shri R.C. Sharma, JE came and stopped his Scooter on the Kacha Road of Pera Garhi Store, Paschim Vihar and demanded the bribe money from the complainant in the presence of Shri Nawab Khan. On this Shri Ashok Arora handed over the treated G.C. Notes of Rs.1000/- to the accused Shri R.C. Sharma who accepted by his right hand and after counting with both hands he put the same in his upper left side shirt pocket and went to his office by Scooter.

(v) That on receipt of the pre appointed signal at about 12.25 hrs. all the members of trap party rushed and Shri R.C. Sharma was caught by wrists. The tainted money of Rs. 1000/- was recovered in the form of one G.C. Note of Rs. 500/- and five G.C. Notes of Rs. 100/- each from his left side upper shirt pocket. The numbers of these recovered G.C.Notes tallied with the numbers mentioned in the handing over memo. Washes of both hands and upper shirt pocket wore by Shri R.C. Sharma was taken separately which turned pink in colour. These washes were transferred in three separate glass bottles and sealed with CBI seal. A site plan of the place of occurrence was prepared. All

necessary formalities were completed and a recovery memo incorporating all the proceedings was prepared and signed by all.

3. And whereas the said facts constitute offence punishable u/s 7 and 13(2) r/w 13(1)(d) of the P.C. Act, 1988.

4. And whereas I, Ashok Kumar, Addl. Commissioner (Water) being the authority competent to remove the said Shri Ramesh Chand Sharma S/o Shri Mahipal Singh, Junior Engineer, MCG (Water), West Zone from service, after carefully examining the material placed before me with regard to the aforesaid allegation and circumstance of the case and applying my mind considered that the said Shri Ramesh Chand Sharma S/o Shri Mahipal Singh should be prosecuted in the court of law for the said offence.

5. Now, therefore, I, Ashok Kumar, Addl. Commissioner (Water) do hereby accord sanction under Section 19(1)(c) of Prevention of Corruption Act, 1988 (Act 49 of 1988) for prosecution of said Shri Ramesh Chand Sharma, Junior Engineer for the said offence and any other offence punishable under other provision of law in respect of the act aforesaid and for taking cognizance of the said offence by the court of competent jurisdiction."

13. PW3 in his testimony has deposed that the sanction order was

passed by him after fully and carefully examining the allegations

contained in the material placed before him and in the

circumstances of the case which persuaded him to grant

prosecution of R.C.Sharma the appellant herein. In the cross-

examination of PW-3 nothing has been brought to show that

what particular document was not shown to him which may have

prevented him to grant the sanction. Once the Sanctioning

Authority appeared in the witness box and was subject to cross-

examination the plea of the petitioner that the sanction was not

valid is of no consequence. Therefore, it cannot be said that

sanctioning authority has granted sanction for prosecution

mechanically. Thus, there is no infirmity in the order granting

sanction and there is also no need to refer to the other

judgments cited by the appellant on this point.

14. Now coming to the question regarding the initial demand made

by the accused on 26.10.93 as alleged in the complaint Ex.

PW1/A submitted by complainant PW1 who appeared and

deposed on oath before the Ld. Special Judge that he was

awarded a contract by Dr.Shyam Gupta wherein he has to

construct a laboratory and diagnostic centre. He has stated that

he was also supposed to obtain a sewer and water connection for

the said premises and this regard he obtained the application

from Dr. Shyam Gupta and submitted in the MCD office Rajouri

Garden, New Delhi. According to him the sewer connection was

granted but the water connection was not sanctioned for more

than two months and as such he contacted the accused who was

the JE for the aforesaid work in that area. It is pertinent to

mention that the aforesaid contract has been corroborated by

PW5 (Dr. Shyam Gupta). It is further submitted by the

complainant that he met with the accused on 26.10.1993 in

regard to the delay in grant of sanction for the water connection

and accused demanded a bribe of Rs.1000/- for the aforesaid

work and added beside this amount some more amount would

have to be paid to Zonal Engineer and asked him to pay the

same by 28.10.1993 so that his file could be prepared and his

connection be sanctioned. Thus aforesaid version of the

complainant stands proved by the success of the trap laid by CBI.

15. The submission made on behalf learned counsel for the appellant

that in this case as admitted by Dr. Shyam Gupta no authority

was given to Sh. Ashok Arora to offer a bribe to the appellant

and, therefore, his question of grant of offering bribe by Sh.

Ashok Arora to the appellant cannot be believed. Despite the

fact that Dr. Shyam Gupta had accepted in his cross-examination

that he had not authorized Sh. Ashok Arora to offer the bribe the

factum of demand and acceptance of the bribe by the appellant

ampli proved by the witnesses examined by the petitioner even

if without any authority, the complainant had no authority to

offer the bribe the very fact that the water connection had not

been provided unless the bribe was offered which was not

acceptable to the complainant and rightly so because he was not

authorized to offer the bribe, he brought this fact to the notice of

the SP(ACB) and it is on that basis that a complaint was

registered against the appellant which had been further

investigated after laying down a trap and wherein the notes

which was brought by the complainant were found in possession

of the appellant and thus, the argument made by the learned

counsel are of no consequence.

16. Insofar as the submission that the appellant had already

sanctioned water connection and this fact is admitted by PW-6

Mr. Munshi Ram this does not help the appellant's case. It is a

matter of fact that as on the date when the bribe was offered

and accepted and the water connection was not provided by

then there is nothing on record to show that after recommending

the grant of water connection this fact had become known to the

complainant or Dr. Shyam Gupta and that any letter was written

on behalf of the department that such sanction had already been

accorded.

17. Taking into consideration all these facts I find no merit in the

appeal and accordingly the appeal is dismissed. The order of

conviction is maintained. Looking into the allegations made

against the appellant, I also do not feel it a case where this Court

should cause any interference in respect of the punishment

awarded to the appellant, that is, the order of sentence is also

confirmed.

18. Consequently the appeal is dismissed with the directions to the

appellant to surrender before the concerned Special Judge, Delhi

within a period of 15 days from today, failing which his bail

bonds will stand forfeited and an appropriate action shall be

taken by the learned Special Judge, Delhi for securing the

attendance of the appellant including issuance of notice to his

surety and taking such other action as is permissible in law to

ensure that the appellant undergoes the remaining part of

sentence awarded to him after giving him the benefit of Section

428 of Cr.P.C. subject to his depositing the fine, in case he has

not already deposited the same.

19. With the above directions the appeal is disposed of.

20. Trial Court record be sent back forthwith.

MOOL CHAND GARG, J.

FEBRUARY 11, 2009 nm/anb