Shri Vijay Kumar Chadha vs C.B.I.
2011 Latest Caselaw 2915 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          Crl. Appeal No.100/2002

                                              Reserved On: 06.04.2011
                                           Date of Decision: 31.05.2011
%

SHRI VIJAY KUMAR CHADHA                       .... APPELLANT
             Through: Mr.Sandeep Sethi, Sr. Advocate with
                      Mr.Anurag Jain, Advocate, for the
                      appellant along with appellant, Mr.Vijay
                      Kumar Chadha, in person.

                                      Versus

C.B.I.                                               .... RESPONDENT
                     Through: Mr.Narender Mann, Special Public
                              Prosecutor for the State/CBI

                                        AND

                           Crl. Appeal No.102/2002

SHRI DALJEET SINGH                             .... APPELLANT
             Through: Mr.Randhir Jain with Ms.Ruchika Jain,
                      Advocate for the appellant along with
                      appellant, Mr.Daljeet Singh, in person.

                                      Versus

STATE (C.B.I.)                                       .... RESPONDENT
                     Through: Mr.Narender Mann, Special Public
                              Prosecutor for the State/CBI

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

1.    Whether reporters of Local papers be                  YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?                YES



Crl. Appeals No.100/2002 & 102/2002                       Page 1 of 32
 3.    Whether the judgment should be                           YES
      reported in the Digest?


M.L. MEHTA, J.

*

1. Both these appeals arise out of the common judgment dated 4th

February, 2002 and the order dated 5th February, 2002 of learned

Special Judge, Sh.R.K. Gauba, in Corruption Case no. 34 of 1993.

Both the appellants/accused were convicted vide impugned

judgment under Section 120-B of the Indian Penal Code

(hereinafter, for short „IPC‟) read with Section 7 & 13 (2) of the

Prevention of Corruption Act (hereinafter, for short „the Act‟).

They both were sentenced to RI of four years with fine of `500/-

each under Section 120-B IPC read with Section 7 & 13 (2) of the

Act. The substantive sentences awarded were to run concurrently.

In default of payment of fine, the accused were to undergo further

RI of three months on each count. Both these appeals were heard

analogously and are being disposed by common judgment.

2. Both the accused were employees of Municipal Corporation of

Delhi (MCD). Accused Vijay Kumar Chadha (for short „VKC‟) was

posted as Junior Engineer whereas accused Daljeet Singh (for

short „DS‟) as peon at the material time in the building department

of South Zone of MCD, Delhi.

3. The prosecution case as gathered from the records is that one

house in Tughlakabad falling in South Zone and owned by

Smt.Hardev Batra (the mother-in-law of the complainant PW1 and

also the mother of PW2), was under some construction/repairs.

Both the accused were allegedly harassing the complainant and

also PW2. On one visit, accused DS came along with labourers

and took away the tools of the plumber from there. While leaving

he also left a word for the owner of the family to meet accused VKC

in the MCD office at Green Park. Both, complainant PW1 and his

brother-in-law, Naveen Kumar (PW2) called on the accused in their

office where both demanded a sum of `10,000/- for allowing

construction/repairs in the said property. The demand was later

reduced to `7,000/-on PW1 and PW2 expressing inability to

arrange `10,000/-. The accused instructed PW1 to come with the

money in the office before noon on 17th November, 1992.

Complainant PW1, instead, approached CBI office and made a

complaint (Ex.PW1/A) seeking necessary action. The matter was

registered and directed to be investigated by S.K. Peshin (PW9),

who was also the Trap Laying Officer. As instructed, PW1 came

along with the bribe money worth `5,000/- which he brought in

the shape of 100 currency notes of `50 denomination. Trap party

was constituted, in which Mahesh Chand Pathak (PW4), a parcel

Clerk of Northern Railway and Jagdeesh Prasad (PW5), Head

Postman, Lodhi Road, were requisitioned for the purpose. They

were introduced to the complainant (PW1) and other members of

the trap party. The numbers of currency notes brought by

complainant (PW1) were noted down. The notes were given usual

phenolphthalein powder treatment. The practical demonstration

about the manner in which powder was used and to react was

given. Tainted currency notes were returned back to the

complainant with a direction to pass it to the accused only on

specific demand. PW4 Mr.Pathak was directed to be shadow

witness and to remain nearby to see the transaction and overhear

the conversation and give signal by scratching over his head. The

pre-trap proceedings were reduced into writing in the handing over

memo (Ex.PW1/B). Trap party reached the MCD office. PW1

accompanied by PW4 went to the office room of the accused VKC

where they met accused DS, who allegedly demanded the settled

amount, but on PW1‟s explaining that he has brought only

`5,000/-, accused DS asked him to wait for the accused VKC, who

was not available at that time. Both PW1 and PW4 waited for him

near the office gate while other members of the trap team waited

nearby. Accused VKC came at about 12.05 PM. PW1 met him and

followed him to his office room at the first floor along with PW4.

Accused DS also followed all of them to the same room and

informed the accused VKC about the reduced amount brought by

PW1. At this, PW1 assured accused VKC that he would arrange

the balance amount by the following day, on which VKC asked DS

to receive the amount brought by him. Accused DS accepted the

tainted notes worth `5,000/- from PW1 with his right hand,

counted them with the help of left hand and kept them in the right

side pocket of his pant. At this stage, PW4 gave the pre-

determined signal, whereupon other members of raiding party

arrived and caught hold of both the accused by their wrists. The

tainted notes were recovered from the right side pocket of pant of

accused DS PW5 counted and compared the numbers of notes

with the numbers noted in the handing over memo Ex.PW1/B and

found them tallying. Thereafter, the wash of fingers of both the

hands of accused DS and right side pocket of his pant were taken

separately which in the process turned pink in the sodium

carbonate solution. Three washes were separately sealed in

different bottles. The amount of `5,000/- and the trouser of

accused DS were taken into possession. All these proceedings

were reduced into writing in recovery memo, Ex.PW2/C. Both the

accused were arrested. On interrogation, it was revealed that

plumbing tools seized by them on the previous day from the house

under construction were lying in a hired truck standing in front of

the MCD office. They were recovered from the said truck and later

on released to the complainant PW1. The three wash bottles were

sent for analysis to CFSL. The analysis report confirmed the

presence of phenolphthalein powder in sodium carbonate. After

obtaining the required sanction of the competent authority [Shri

Pradeep Singh, (PW3)], the accused were sent for prosecution.

4. The accused pleaded not guilty to the charges framed against them

under Section 120B IPC read with Section 7 and Section 13(1)(d)

read with Section 13(2) of the Act. The prosecution examined as

many as 11 witnesses.

5. Incriminating evidence appearing against the accused was put to

them in their statements recorded separately under Section 313

Cr.P.C. Accused VKC admitted that he was posted as JE,

Building Department, South Zone during the relevant period and

the ward where the property in question situated, was being looked

after by him. They both denied knowledge of any

construction/repair work in the property in question. They also

denied having ever visited the house in question or demanding any

bribe or having settled the bribe of `7,000/- or having received

`5,000/-. The accused DS denied having ever worked with

accused VKC. He stated that he has been working as office peon

and not beldar in MCD. VKC also denied the entire evidence

relating to trap. He stated that DS was brought to his room from

outside by CBI officials. With regard to CFSL report, they both

showed ignorance. They also questioned the validity of the

sanction for the prosecution. VKC also stated that the

complainant was an accomplice who got him involved falsely in

order to get rid of demolition of the premises in question by MCD.

He also stated IO (PW9) to be an interested person being the

resident of the locality of the complainant, PW1. Likewise, DS also

claimed having been falsely implicated at the instance of officials of

CBI. No evidence in defence was led by VKC whereas one Rakesh

Kumar (DW1) from the office of South Zone, MCD was examined by

DS as his only witness.

6. Mr.Sandeep Sethi, senior counsel and Mr.Randhir Jain, learned

counsel for VKC and DS, respectively, have assailed the impugned

judgment and order mainly on the ground of lack of sufficient and

reliable evidence against the accused persons. They alleged various

infirmities in the prosecution case as also discrepancies in the

statements of prosecution witnesses. They also alleged the

complainant to be an accomplice and interested witness. Learned

counsel for VKC specifically submitted that there was no evidence

qua this accused regarding demand and also no recovery was

effected from him and that the complainant has made various

improvements in his statement made in the Court. The learned

defence counsel of accused DS submitted that this accused was

not attached with VKC, but was posted as peon and that he had no

authority to take any action against unauthorized

construction/repairs. He also submitted that there was no

evidence of demand against him and that the amount which was

recovered from him was in fact received by him for and on behalf of

VKC.

7. Before adverting to the submissions of learned defence counsel,

some of the facts which are admitted or undisputed may be noted.

It is not in dispute that the premises in question was owned by

Smt. Hardev Batra (mother-in-law of PW1 and mother of PW2).

From the testimonies of PW1 and PW2 it is also borne out that

some unauthorized construction was carried in the said premises.

Though, the unauthorized construction was not booked for any

action, as was borne out from the report Ex. PW6/C of PW6, but in

the event of the same having come to the notice of MCD, action

was to follow against the builder/occupier, which could include

demolition of the construction and also prosecution of the one,

who had undertaken unauthorized construction. It is also proved

from the testimonies of PW1 and PW2 that none of them were

present at the site when the Municipal Officials allegedly came and

took away the plumbing tools in the forenoon of 16th November,

1992. PW1 had attributed to PW2 about the information of visit of

accused DS, who according to PW1 was present at the site. Since

PW2 on his part clarified to be not present there and stated having

come to know from some plumber Satish, the testimony of both

PW1 and PW2 with regard to visit of DS would be taken as hearsay

and not admissible. The matter may not end here. PW2 had also

deposed about the visit of this official 3-4 times earlier also. To the

same effect was the testimony of PW1 regarding the earlier visit of

accused persons at site. About DS‟s earlier visits, PW2 stated that

he had started visiting from the time the construction commenced.

Though, according to PW11, DS was not posted as beldar, but as

peon in the office, admittedly, he was attached with the building

department where VKC was positioned as JE. To the same effect is

the office order Ex.PW10/F, application Ex.PW10/E and also the

sanction order Ex.PW3/A which prove that DS was posted as peon

in the building department. Though, DW1 stated about DS having

been posted as a peon in building department, PW11 Kishori Lal,

posted in the same department at that time deposed about certain

acts performed by him when attached with VKC. This witness was

also attached with VKC as beldar and was on demolition duty. He

stated that on 16.11.1992, he accompanied with other beldars

including DS went to a site in Tughlakabad (premises in question)

for demolition of unauthorized construction, on the instructions of

VKC and seized some implements of plumber. He stated that the

seized articles remained lying in the truck. His testimony

remained unassailed. The seized articles referred to by him are the

same as spoken by PW1 and PW2. There is no reason to doubt the

testimony of this witness, who also corroborates PW1. From all

that is noted in this regard, it comes out to be that DS was posted

as peon in the building department where VKC was JE, but he

(DS) was also being assigned some related works by the JE, may

be that of beldar. In fact, there was no dispute that during the

relevant period DS was posted in the building department where

VKC was posted as JE. It also remained undisputed that both

VKC and DS were present on duty in the office on 17th November,

1992.

8. From Ex.PW3/A it is proved that VKC was posted as JE in the area

where premises in question is located and it fell within his

jurisdiction, may be temporarily since 28th September, 1992.

Office order Ex. PW10/B to PW10/D would also indicate that the

municipal staff of building department were obliged to inspect the

properties in the area, detect the cases of unauthorized

constructions and take suitable action as per law and rules

relevant thereto. Inspector S.K.Peshin (PW9) was resident of CBI

quarters, Kalkaji, New Delhi which happened to be near the

locality of DDA flats where complainant PW1 happened to be

residing. Learned counsel for VKC made reference about the

connivance of PW1 with PW9 and based on that impleadment of

the accused at the instance of PW9. Instead of deferring to discuss

this aspect later, it may right now be stated that this was rightly

dealt with by learned Special Judge who after discussions recorded

that PW9 was only doing his official job and it was irrelevant that

he was residing near the locality of residence of PW1. Having

examined the testimony of PW1 and PW9 in this regard, I do not

find any illegality or infirmity in the findings recorded by learned

Special Judge in this regard.

9. Learned defence counsel submitted that complainant PW1 was not

reliable since he had made lots of improvements in his statement

recorded in the Court and also because he was interested to get rid

of accused VKC to avoid demolition of unauthorized construction.

It may be that in the given facts and circumstances, the testimony

of such a witness may not be reliable, but it should not be

accepted as a general principal that in every case the testimony of

such a witness was to be discarded or branded as interested. All

depends on the facts and circumstances of each case and the

nature of deposition made by such a witness.

10. With regard to the testimony of complainant the Apex Court in the

case of State of UP v. Dr. G.K. Ghosh, AIR 1984 SC 1453

observed as under:-

"24. ...In the case of an offence of demanding and accepting illegal gratification, depending on the 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 official witnesses even if the trap witnesses turn 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 conviction."

11. In the case of Rajender Kumar Sood v. State of Punjab 1983

Crl. LJ 1338 the Division Bench of Punjab and Haryana High

Court while dealing with the proposition whether testimony of

complainant required independent corroboration observed as

under:-

"We are of the opinion that there is no question of the Court insisting upon any such independent corroboration of the complainant in regard to the circumstances of the kind. When a given complainant first visits a public servant for doing or not doing some task for him he does not go to him as a trap witness.

He goes there in a natural way for a given task. To require a witness to take a witness with him at that stage would amount to attributing to the complainant a thought and foreknowledge of the fact that the accused would demand bribe."

12. In the case of State vs. Zakaullah, 1998 SCC (Cr.) 456, it was

held by the Supreme Court that evidence of the bribe giver cannot

be rejected merely because he is aggrieved by the conduct of the

accused. It was further held that nobody over-heard the demand

made by the accused for bribe or the amount was found in the left

pocket of the accused and not in the right pocket, are flippant

grounds which should never have merited consideration.

13. Next is the contention regarding improvements by the complainant

in his statement made in the Court which was allegedly not

specifically dealt with by learned Special Judge. I have with very

cautious approach thoroughly scrutinized the testimony of

complainant (PW1). At the outset it is noted that the complaint

Ex.PW1/A was made by the complainant on a small piece of paper,

in a very short span of 5-7 minutes and even otherwise ordinarily a

complaint does not contain the minute details of the transaction

and conversation between the complainant and the accused.

Further, PW1 has stood a very lengthy cross-examination running

in several pages for several dates and it is seen that he has been

confronted with his statement under Section 161 Cr.P.C. and not

the complaint Ex.PW1/A. Cross-examination has gone into the

micro details and most of the questions are apparently irrelevant. I

may make reference to a few of those confrontations. In answer to

a question put to him in cross-examination, PW1 stated that he got

recorded in his statement (under Section 161 Cr.P.C.) that he was

directed to attend CBI office on 17th November, 1992 by 8.00 AM.

In the statement (under Section 161 Cr.P.C.) it was not so

specifically recorded, but what was recorded was that Inspector

S.K. Peshin (PW9) had directed him to attend CBI office on 17th

November, 1992 at 8:30 am. In answer to another question he

stated that in his statement (under Section 161 Cr.P.C.) it was

recorded that on 17th November, 1992 at 8 a.m. he went to the CBI

office and met SP there. Though it was not recorded in these

words, but it was recorded that he had gone to the office of PW9

and met him there at 8 a.m. Similarly, questions were put to him

that he had got recorded in his statement under Section 161

Cr.P.C. that in the room of SP demonstration of phenolphthalein

powder in sodium carbonate was shown to him and to the

witnesses. He was further asked as to whether he had stated in

statement that currency notes of `5,000/- were produced by him

before CBI, SP. It is seen that what was recorded in statement

under Section 161 Cr.P.C. was not exactly what was put to him,

but in somewhat different manner, and further that all minute

details were not so recorded in his statement. All these are so

micro details that no one seriously tries to remember, nor is even

expected to do so. A witness is not expected to have photogenic

memory, to remember and narrate such micro details from the

beginning to the end. Similarly, it is also not expected either from

the complainant or from the police officials responsible for

recording statement under Section 161 Cr.P.C. to record micro

details. In fact such statements are taken in a haphazard manner.

These statements are, usually a summary of what a witness says

and very often perfunctory. Sometimes, it so happens that the

witness gives the details to the police official in his statement

under Section 161 Cr.P.C., but the latter records only what

appears to him to be relevant and material parts thereof. Such

witness may unnecessarily face hard time in the cross-examination

when confronted with different aspects not found recorded in his

statement under Section 161 Cr.P.C.

14. On the other hand, going through the testimony of complainant

(PW1), it gives an impression about the trust-worthiness of his

deposition. He has described in detail about the exterior and

interior of the office of MCD and that of VKC. All the suggestions

given to him by learned defence counsel for VKC in this regard

have been rightly answered by him. He even answered rightly

about the sitting plan, number of chairs and almirah etc. in the

office of VKC. He categorically stated and maintained about the

complaint having been made by him. He denied the suggestions

that the complaint was recorded subsequently after the arrest of

the accused persons. He also denied that accused VKC was falsely

implicated to get rid of action in respect of illegal construction.

15. Complainant (PW1) has throughout maintained about the demand

of `10,000/- made by accused VKC for allowing unauthorized

construction and subsequently his having agreed to reduce the

same to `7,000/-. He stated that on 17th November, 1992 he

along with PW2 visited the office of VKC where he was not present,

and they met accused DS there. DS inquired about the money

that was to be paid, to which PW1 stated that he has arranged

`5,000/- only. On this accused DS stated either to pay the settled

amount of `7,000/- or wait to talk with VKC. Thereafter, he and

PW2 waited near the gate of MCD office, whereas other members of

the raiding party stood nearby around. When VKC came, he and

PW2 followed to his office, where DS also arrived. VKC inquired

from PW1 about the money he had brought. On his telling that he

(PW1) could arrange only `5,000/- and will pay balance on the

following day, VKC directed him to pay `5,000/- to DS and balance

to him by tomorrow. He also directed DS to take the money and

report him if he had paid the balance on the following day.

Thereupon, he gave tainted notes of `5,000/- to accused DS who

accepted the same by one hand, counted the same and kept the

bribe money in the left side pocket of pant, which he was wearing.

On this, CBI persons arrived and caught hold of both the accused.

Recovery of the tainted money was effected from the pocket of the

pant of DS. In his cross-examination, the complainant also

maintained that at the time of taking bribe, both the accused were

present. He also maintained that he did not offer money to DS as

he was not prepared to accept `5,000/- and on the advice of DS

they waited for accused VKC. There is no doubt that accused DS

did not demand money at this stage, but it stood maintained by

PW1 that he was present when bribe money was demanded by

VKC and that he (DS) had accepted the same. With regard to the

recovery of tainted money from accused DS, there is no dispute.

The defence of accused DS is that he had accepted money for and

on behalf of VKC. However, on behalf of DS a suggestion was put

to PW1 that tainted money had fallen on the ground, from the

hand of PW1, and it was picked up by accused DS. On the other

hand, in the cross-examination on behalf of accused VKC, it was

put to him that DS was brought in the office of VKC and the money

had been already recovered from him (DS).

16. Though the testimony of PW1 itself was sufficient and credible

enough to substantiate the prosecution case, but it also finds

corroboration from the testimony of PW2 and also on material

aspects from the testimonies of PW4, PW5 and PW9. PW2 also

deposed about the implements of plumber having been taken away

by the officials of MCD. PW2 has categorically stated and

maintained about the visit of DS at the premises on 16.11.1992

and his leaving the message there to meet VKC in the office in

connection with unauthorized construction in the premises. He

stated and maintained that he along with PW1 went to the office of

MCD to meet VKC, where they met both the accused. VKC

demanded a sum of `10,000/- from them to escape demolition of

the unauthorized construction. He denied all the suggestions

made on behalf of both the accused persons that they did not

make any demand, nor any amount was paid by PW1, nor any

money was received by accused DS. He was also confronted with

the statement made under Section 161 Cr.P.C. on very minor

aspects which were neither relevant nor material. He also stood a

lengthy cross-examination and fully supported the prosecution

case.

17. Though, PW4 and PW5 became hostile, but on reading their

testimonies as a whole it would be seen that they have

corroborated PW1 and have supported the prosecution case on

material aspects. PW4 narrated the entire version related to the

trap proceedings. He deposed about complaint Ex.PW1/A,

handing over memo Ex.PW1/B, his joining the trap as a shadow

witness and also to a large extent about the minute details about

the proceedings and conversation. There was some inconsistency

in his deposition as he used the word „Saheb‟ uttered by DS as

referring to VKC. In his cross-examination by the prosecutor, he

was put the verbal conversation that took place between PW1 and

VKC, to which he denied as having taken place in his presence.

This conversation cannot be attributed much importance in as

much as he was admittedly at a little distance from PW1 and VKC.

However, when he was confronted with his statement under

Section 161 Cr.P.C., he stated that DS had informed that „Saheb‟

(VKC) had gone to site and shall return within 1-1½ hour and

advised him (PW1) to wait for him. Though, he denied the

suggestion that accused VKC asked PW1 to give money to DS, but

when confronted with his statement under Section 161 Cr.P.C., it

was found recorded that on asking of VKC, PW1 gave `5,000/- to

accused DS. He also admitted that DS accepted money and he

(PW4) gave signal to the raiding party. He also stated that

PW5/Jagdish Prasad had taken search of right pocket of the

accused DS and recovered `5000/- in the shape of 100 notes of

denomination of `50/-. He stated that these notes were the same

which were given by PW1 to DS and that the number of these

notes tallied with the numbers noted in Ex.PW1/3. He further

stated that all the proceedings were taken down in the recovery

memo Ex. PW1/C signed by him. He also corroborated regarding

the procedure followed in taking washes of fingers and pocket of

pant of accused DS separately and the solutions turning pink in

the process. He deposed in favour of the prosecution by denying

the suggestion that no talks took place between PW1 and DS in his

presence and that no money was given to DS. It is noted that a

suggestion was given to PW4 that the amount of `5000/- was

accepted by DS on the directions of VKC. Reading the testimony of

this witness, it would be seen that though he was shaky at some

places, but in the entirety he supported the prosecution case and

also corroborated PW1.

18. Likewise, PW5 who was declared hostile. has also supported the

prosecution case almost on the same lines as PW4. He positively

identified accused DS, referring him to "a boy with small beard",

who met them at the MCD office and had talked with PW1. When

he started giving different version regarding entering MCD office

and the conversation, he was cross-examined by the learned

prosecutor. He stated that when PW1 and PW4 along with PW2

were in the process of climbing stairs, PW4 gave signals to the CBI

officials and the accused DS was apprehended from the gallery.

He denied having seen accused VKC coming around 12:05 p.m.

and talking to PW1 or having seen PW1 and PW4 accompanying

VKC upstairs, followed by DS. He admitted that he had taken

search of accused DS and recovered tainted money Ex.P-1 to P-

100. He also confirmed that the seal which was used for sealing

various exhibits was handed over to him after use. He produced

the brass seal used in the proceedings, at the time of his

deposition. Reading his statement in one go would simply

demonstrate him supportive of prosecution, though somewhat

confused and shaky.

19. The testimony of PW9 is almost identical to that of PW1 and is

supportive of the prosecution case. In fact, he has fully

corroborated the statement of PW1. Whereas some suggestions

were given to PW1 that accused VKC was caught red handed,

tortured and beaten by PW9 at his instance in MCD office and later

in the CBI office and subsequently during police remand, no

suggestion on any of these lines was given to PW9. There is

nothing on record to indicate that accused VKC had, at any stage,

been tortured or manhandled as alleged. He denied the suggestion

that he had fabricated the pre raid proceedings vide memo Ex.

PW1/C. Despite having been subjected to lengthy cross-

examination by the accused persons, nothing was elicited to doubt

the testimony of PW9.

20. PW6, who was the engineer in the building department of MCD

and was on duty at the time of trap, was summoned by the CBI

officials after apprehension of accused persons. He deposed about

the recovery of `5,000/- from the right pocket of the accused DS in

his presence. He also stated about the number of notes tallying

with the numbers as noted down in the handing over memo. He is

a signatory to the recovery memo Ex.PW1/C, prepared in his

presence at the spot. He also denied the suggestion that notes Ex.

P-1 to P-100 were not recovered from accused DS in his presence.

21. PW7 analysed the washes vide report Ex.PW7/A and found the

presence of phenolphthalein powder in sodium carbonate, thereby

confirming that the tainted money was handled by accused DS,

accepted with his hands and kept in his pocket.

22. From the evidence, as noted above, it is clear that accused VKC

had demanded `10,000/- from PW1; that a sum of `5,000/- was

paid by PW1 to DS, as directed by VKC, and that the same was

recovered from DS, and that it was for not taking action against

the unauthorized construction carried out in the house of mother-

in-law of PW1.

23. With regard to the submissions of learned defence counsel that

there were certain discrepancies in the statements of the

witnesses, it may be stated that the discrepancies which have been

pointed out by them are of so trivial nature which are natural and

likely to occur with the passage of time. Learned Special Judge

has dealt with the discrepancies and observed all of them as

irrelevant and trivial. These have been found dealt by him in the

following manner :-

"97. Counsel then referred to the fact that the complaint had alleged initial demand to be for Rs.10,000/- and later settled at Rs.7,000/-. They argued that there is no reason why raid would be arranged with only Rs.5,000/-. This argument is devoid of any substance in that PW1 has clearly shown in his statement that he was able to arrange only such amount of money, and since the amount was less than the settled amount, A-2 had haggled with him while PW1 had insisted on meeting PW1 for attempting get the bribe amount reduced by using some reference.

98. Next contradiction which the counsel alleged was material is in the context of source of trap money. They pointed out that PW1 had claimed he had received the trap money from his mother in law, which was not supported by PW2. I do not read much into this circumstance. The evidence has shown that the affairs of mother of PW2 were being looked after by PW1, her son in law. She was getting the house

constructed through PW1. She thus would not depend on PW2 for such purposes. Demand for bribe was followed up by report to CBI and trap being arranged on the next day. It appears PW2 had no occasion to learn the entire facts inclusive of source of money that had been arranged. It has to be borne in mind that after all it was PW1, and not PW2, who proceeded to lodge report with CBI.

99. Learned defence counsel then submitted that in the complaint and statements under Section 161 Cr.P.C. it had been shown that A-1 had demanded bribe in his office room, whereas in the witness box the witnesses would refer to this meeting prior to the complaint having taken place in the verandah of the office building. This is too trivial and insignificant a contradiction to be given any credence.

100. Learned counsel for A-1 was at pains to argue that in the forenoon of 17.11.92, during conversation that is shown to have occurred between PW1 and A-2, in the entire utterance attributed to A-1, he would not mention the name of A-1, but was only referring to the officer concerned by expressing "Saheb". He argued that PW1 made material improvements in the course of his statement by referring to A-2 having mentioned A-1 by name at such stage. Argument does not appeal to me. A-2 was a menial staffer subordinate to A-1. In the common courtesies extended to superiors he would naturally refer to A-1 as „Saheb‟. This conversation is not to be seen in isolation. It has to be appreciated in the over all facts and circumstances, with the earlier demand directly made by A-1 in presence of A-2, as the back drop, and what followed after this conversation involving A-1 & A-2, and PW1 later in the afternoon. I am not prepared to condemn the evidence of PW1 as suffering from improvements on such count.

101. Defence counsel then submitted that the evidence about handing over of money was contradictory, in that the evidence of PW1 about handing over of the money in the office room is contradicted by evidence of

PW4 indicating handing over of money in the verandah outside the room of A-1, and of PW5 about handing over of money in the stair case.

102. PW5 did create some confusion by deposing about sequence of events almost upside down. But it is clear that he was mixing up the entire facts. Confusion on his part cannot disturb the over all picture that emerges from the evidence of PW1 & PW4. It does appear that A-1 had instructed A-2 to receive the money on his behalf from PW-1. There is possibility that in the wake of this instruction PW1 & A-2 may have come out, and the money was actually handed over just outside the room of A-1. This, however, does not mean that evidence about handing over of money to A-2 becomes suspect. In this context, statement of PW8 about A-2 having been brought from outside to the room of A-1 assumes significance. I do not agree with the submission of learned defence counsel with reference to AIR 1970 Bombay 438 that statement of PW8 creates puncture in the prosecution case. In my view, said statement rather confirms the prosecution case."

24. The contention of learned counsel for VKC was that since the

unauthorized construction had not been booked and no action was

to follow, there was no occasion for VKC to demand bribe from the

complainant. It is noted above that the unauthorized construction

was actively undertaken, but the same was not booked in the

records of MCD. In fact, this fact came to be known when the trial

of the accused commenced or may be during the investigation.

The fact that it was unauthorized and was likely to invite some

trouble for the owner or occupier of the building, was also the

reason for VKC to compel them to pay the bribe. No doubt, the

unauthorized construction was an illegal act on the part of the

owner or PW1, but the accused VKC wanted to take advantage of

the factual situation.

25. It was next submitted by learned defence counsel for VKC that

since money had been recovered from DS, VKC could not be held

guilty. There is neither any logic nor any force in this submission

of learned counsel. The evidence clearly shows that DS received

money on the specific instructions of VKC. Learned counsel for DS,

on the other hand, submitted that he was a small time peon and

was acting on the instructions and directions of VKC, who was his

senior and that the money taken by him was not for himself, but

on the direction and for and on behalf of VKC. Alternatively, he

submitted that if at all any offence was made out against DS, it is

under Section 7 only and not under Section 13(1)(d).

26. For appreciating this contention it would be useful to see the

ingredients of Section 7 and Section 13(1)(d).

The essential ingredients of Section 7 are:

(i) that the person accepting the gratification should be a public servant;

(ii) that he should accept the gratification for himself and 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 essential ingredients of Section 13(1)(d) of the Act are:

(i) that he should have been a public servant;

(ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant, and

(iii) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other person.

27. In identical facts before this Court in the case of Brahma Nand v.

The State of NCT of Delhi, 176 (2011) DLT 192, this Court held

as under:

"Section 7 and Section 13(1) (d) of P.C. Act make it clear that even if money is accepted by a person on behalf of other, he commits offences under Section 7 and 13 (1) (d) of P.C. Act. Words used by the statute in Section 7 of P.C. Act are "acceptance from any person for himself or for any other person any gratification". Similarly, words used by the statute in Section 13 (1) (d) are "if he obtains by corrupt or illegal means for himself or for any other person any valuable thing or pecuniary advantage". A reading of Section 13 and 7 of the P.C. Act makes it clear that if a person has knowledge that money being accepted by him was bribe money for someone else, the offence is complete."

28. Coming back to the role of accused DS in the entire episode, as

discussed above, it is true that no direct demand of bribe money is

attributed to DS by any witness, particularly complainant PW1 and

PW2, but the fact remains that it stands proved on record that he

was present on all material times in the company of VKC,

whenever there was conversation regarding the bribe money

between VKC and PW1. It is also established that he had also

gone along with others to the premises in question and had taken

away the implements from there and had also left a message for

the owner to meet VKC on the following day. Then, he was also

available outside the office of VKC, when PW1 and PW2 had gone

to meet the latter. When PW1 informed him about having brought

a sum of `5,000/- against the settled amount of `7,000/-, he

asked them to wait for VKC. The conversation which took place

and the involvement of DS, as stated above, significantly pointed

towards complicity of accused DS with VKC. His plea that the

money fell down from the hands of PW1 and was picked up by him,

being improbable has already been disbelieved. Since he was

associated with VKC as his peon, further presumption would also

be raised that he was looking towards sharing the booty with VKC.

Assuming that the bribe money was taken by him at the instance

and on the direction of and on behalf of VKC, as submitted by the

learned defence counsel, in the facts and circumstances, still all

the acts of omission and commission of accused DS surely will be

covered within the ingredients of Section 7 as well as Section

13(1)(d) read with Section 120B IPC.

29. Section 20 of the Act provides that where at the trial it is proved

that an accused has accepted or obtained or agreed to accept or

attempted to obtain any gratification (other than legal

remuneration), it shall be presumed unless the contrary is proved,

that he accepted or obtained or agreed to accept or attempted to

obtain such gratification as a motive or reward as mentioned in

Section 7 or, as the case may be, without consideration or for a

consideration which he knows to be inadequate. The requirement

of this Section is only that it must be proved that the accused has

accepted or obtained or agreed to accept or attempted to obtain

gratification. It may be proved by direct evidence as in the present

case. It has been proved from the direct evidence of testimonies of

PW-1 and PW-2 that the gratification was accepted as a motive or

reward for helping the complainant in respect of the unauthorized

construction/repairs.

30. I am fortified in my findings with regard to the applicability of

Section 7 and Section 13(1)(d) from the judgments of Apex Court in

the case of Madhukar Bhaskarrao Joshi v. State of

Maharashtra (2000) 8 SCC p. 571, and A. Subair v. State of

Kerala (2009) 6 SCC 587. In the case of Madhukar Bhaskarrao

Joshi (supra) , the Apex Court held as under:-

"12. The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. So the word 'gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like "gratification or any valuable thing." If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word 'gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it."

31. In the case of A. Subair (supra), the Supreme Court held as

under:-

"The legal position is no more res integra that primary requisite of an offence under Section 13(1)(d) of the Act is proof of a demand or request of a valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be established.

32. The presumption as drawn against the accused as noted above

could not be discharged by them by any means, i.e., neither from

the cross-examinations of prosecution witnesses, nor by cogent

and reliable defence.

33. In view of the analysis of the prosecution case as above, I do not

see any infirmity and illegality in the impugned judgment and

order of the learned Special Judge and therefore, do not see any

reason to interfere with the same.

34. With regard to the quantum of sentence, learned defence counsel

have prayed for lenient view, stating that the case is about 18

years old and accused persons having undergone lots of hardships.

These are the usual type of arguments which are submitted

invariably in all such cases. In the case of State of A.P. v. V.

Vasudeva Rao, (2004) 9 SCC 319, the Supreme Court observed

thus:

"31. In the present case, how could the mere fact that this was pending for such a long time be considered as a "special reason"? That is a general feature in almost all convictions under the Act and it is not a specialty of this particular case. It is a defect inherent in implementation of the system that longevity of the cases tried under the Act is too lengthy. If that is to be regarded as sufficient for reducing the minimum sentence mandated by Parliament the legislative exercise would stand defeated.

35. In the present factual matrix, I am not persuaded to award the

prescribed minimum sentence to accused VKC. However, keeping

in view the position and role of accused DS in the entire set of

circumstances, his case persuades me to impose the minimum

prescribed sentences. Consequently, while maintaining the

conviction of both the accused persons under Section 7 and 13(2)

of the Act read with Section 120B IPC, accused VKC is sentenced

to undergo rigorous imprisonment of two years with fine of `500/-

each on both counts. Accused DS is sentenced to undergo

rigorous imprisonment of six months under Section 7 of the Act

read with Section 120B IPC and rigorous imprisonment of one year

under Section 13(2) read with Section 120B with fine of `500/- on

each count. With this modification in the impugned order on

sentence, rest of the impugned order is maintained. The

substantial sentences awarded shall run concurrently. The period

of custody already undergone by the accused shall be set off. The

accused shall surrender and be taken into custody to undergo

remaining part of imprisonment.

MAY 31, 2011                                              M.L. MEHTA, J.
Dev/ak