State (Nct Of Delhi) vs Devender Singh
2013 Latest Caselaw 4902 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : 21st AUGUST, 2013
                                DECIDED ON : 25th OCTOBER, 2013

+                         CRL.A. 760/2012

       STATE (NCT OF DELHI)                   ....Appellant
                Through : Mr.M.N.Dudeja, APP.

                                    versus

       DEVENDER SINGH                                   ....Respondent
               Through :            Mr.Mohd.Shamikh, Advocate.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. State has come in appeal to question the correctness of a

judgment dated 29.10.2010 of learned Special Judge (P.C. Act)-06, Tis

Hazari Courts, Delhi, by which the respondent - Devender Singh was

acquitted of the charges. The respondent has contested the appeal.

2. On 29.03.2001, Ram Kumar lodged a complaint in Anti

Corruption Bureau alleging demand of ` 11,000/- as bribe by Mr.Panwar,

AE, DDA to clear payment for execution of work order in the sum of

`21,950/-. The complainant was able to arrange ` 6,000/- for payment.

Insp.N.S.Minhas carried out pre-raid formalities and associated

R.S.Chopra as panch witness. Allegations were that ` 6,000/- were paid as

bribe to Devender Singh (the appellant) on the directions of Harpal Singh

(since expired). ` 6,000/- were recovered from the possession of the

appellant. Post-raid formalities were carried out. Both, Devender Singh

and Harpal Singh were arrested. Statements of the witnesses conversant

with the facts were recorded. After completion of investigation, a charge-

sheet under Sections 7/13 POC Act and 120 B IPC was submitted in the

Court in which both Devender Singh and Harpal Singh were charge-

sheeted. During the pendency of the proceedings, Harpal Singh expired

and proceedings against him were dropped as abated. The prosecution

examined fifteen witnesses to prove the charges. In 313 statement, the

appellant pleaded false implication. After appreciation of evidence and

considering the rival contentions of the parties, the Trial Court, by the

impugned judgment, acquitted the appellant as the prosecution was not

able to establish the charges beyond reasonable doubt.

3. I have heard the learned counsel for the parties and have

examined the record. The moot question before the Trial Court was if

complainant - Ram Kumar was entitled to receive ` 21,950/- from DDA

for execution of work order for the payment of which demand of

`11,000/- was allegedly made as illegal gratification. The burden was

heavily upon the prosecution to establish that it was the legal

remuneration which the complainant - Ram Kumar was entitled to receive

and the respondent or his associate - Harpal Singh was legally competent

in their official capacity to sanction or clear the payment. In the complaint

(Ex.PW-13/A) complainant did not give detailed information as to when

the work order for boring a tube-well was awarded to him, when it was

executed. PW-2 (R.K.Bhandari), who accorded sanction under Section 19,

POC Act for Devender Singh's prosecution admitted in the cross-

examination that he had not seen or examined if any work was entrusted

to the complainant or it was executed by him. He revealed that some

documents were on record to show that no work was entrusted or executed

by the complainant. PW-6 (Mam Chand), SO, Horticulture from October,

1994 to 17.04.2000 stated that he had got bored one hand-pump in June,

2000 from one Ved Prakash and he was paid ` 600/- / 700/-. In the cross-

examination, he denied having any acquaintance with the complainant -

Ram Kumar. He was not aware if any work was ever assigned to Ram

Kumar by DDA. PW-3 (Naginder Parshad Singh) also corroborated his

testimony and deposed that Ved Prakash, contractor, was given material to

install the pump and the boring work was done by him. He also denied

any acquaintance with Ram Kumar. PW-10 (Latoor Hasan), Deputy

Director, Horticulture Division in DDA in 2001 proved work order

(Ex.PW-10/A) provided to M/s. Ram Kumar on 04.01.2001. He however,

deposed that no work was done regarding the said work order. On

05.02.2002, he, Ved Prakash, Ram Kumar and Investigating Officer

visited the alleged spot where the work order was to be executed.

However, Ram Kumar was unable to specify the area where the work was

done by him. In the cross-examination, he was categorical to state that

complainant - Ram Kumar had not done any work and no bill was raised

by him. The work for which payment was being claimed by the

complainant had already been done by other contractor - Ved Prakash.

Apparently, there was no cogent and worthwhile evidence on record to

establish if pursuant to work order (Ex.PW-10/A) dated 04.01.2001 any

work was carried out by the complainant to claim payment of ` 21,950/-.

In his statement as PW-14, Ram Kumar, admitted that he was working

with one contractor - Ved Prakash for boring of tube-wells in the year

2001. Relations between them became strained subsequently. In the cross-

examination, the complainant revealed that tube-well was bored in the

year 2000 with the assistance of Ved Prakash and he owed him a sum of `

28,000/-. He further admitted that he did the boring jointly with Ved

Prakash. Ved Prakash was not examined during investigation to ascertain

execution of work order. The Raid Officer, Insp. N.S.Minhas, admitted in

the cross-examination that the correctness of the complaint was not

verified. He did not verify whether any payment was due to the

complainant from DDA office. PW-11 (Insp. M.S.Sanga), Investigating

Officer, admitted that he had made enquiries from the complainant for

asking money for work which was not done by him. The complainant did

not institute any civil proceedings for recovery of his dues. He did not

lodge any complaint with the senior officers for non-payment of the legal

remuneration. It is unclear as to when & whom he submitted the bills for

payment. It is again not clear as to who was the concerned Officer to clear

the bills. For release of a paltry amount ` 21,950/- a huge demand of `

11,000/- as illegal gratification cannot be expected to be made or paid. In

the complaint (Ex.PW-13/A), the complainant did not specifically name

Devender Singh or Harpal Singh to have demanded illegal gratification

from him. In his Court statement, he attributed demand of bribe to both

Devender and Harpal Singh and for that he was duly confronted with the

statement made to the police. No doubt, a public officer has no right to

demand any bribe; but when he is hauled up to answer a charge of having

taken illegal gratification, the question whether any motive, for payment

or acceptance of bribe at all existed is certainly relevant and a material

fact for consideration. It is an important factor bearing on the question as

to whether the accused had received the gratification as a motive or

reward for doing or forbearing to do any official act or for showing any

favour or disfavour in the exercise of his official functions. In the instant

case, DDA was not legally liable to pay ` 21,950/- to the complainant -

Ram Kumar as he could not prove execution of any work pursuant to the

work order awarded to him. The appellant - Devender Singh and his

associate Harpal Singh were not capable to sanction any such

unauthorised payment.

4. The prosecution witnesses have given divergent version as to

when and by whom the bribe amount was demanded. The complainant

allegedly executed the work awarded to him in February, 2000 for which

work order was issued to him on 04.01.2001. The complaint was lodged

on 29.03.2001. The delay in claiming the payment and lodging the report

has remained unexplained. Complainant's statement could not be

corroborated by any independent public witness as PW-13 (Ram Swaroop

Chopra) joined as panch witness expired before he could be cross-

examined by the appellant. Even if examination-in-chief recorded on

03.07.2007 is considered, it does not substantiate the complainant's

version regarding demand of bribe prior to the lodging of the complaint on

29.03.2001. PW-13 did not depose if the complainant had named the

appellant Devender to have demanded bribe. He was not categorical as to

which of the accused Devender Singh and Harpal Singh had demanded

illegal gratification in the office. On scrutinising his testimony, it appears

that the demand was raised for the first time on the day of incident. Both

panch witnesses and the complainant have given inconsistent version

about the arrival of Harpal Singh at the spot. In the absence of demand of

bribe which the prosecution could not establish beyond reasonable doubt,

there was no cogent material to base conviction under Sections 7/13 POC

Act. The demand and acceptance of the money for doing a favour in

discharge of official duties is sine qua non to the conviction. Mere

recovery of tainted money from the accused by itself is not enough in the

absence of substantive evidence of the demand and acceptance. It is also

settled in law that statutory presumption under Section 20 of the Act can

be dislodged by the accused by bringing on record some evidence, either

direct or circumstantial, that the money was accepted other than the

motive or reward as stipulated under Section 7 of the Act. It is obligatory

on the part of the Court to consider the explanation offered by the accused

under Section 20 of the Act and the consideration of the explanation has

to be on the anvil of preponderance of probability. It is not to be proven

beyond all reasonable doubt. From the very inception, the defence of the

appellant was that the money was thrusted in the pocket and was not

meant as bribe for clearance of the bill. Appeal against the acquittal is

considered on slightly different parameters compared to an ordinary

appeal preferred to this Court. When an accused is acquitted of a criminal

charge, a right vests in him to be a free citizen and this Court is cautious

in taking away that right. The presumption of innocence of the accused is

further strengthened by his acquittal after a full trial, which assumes

critical importance in our jurisprudence. The Courts have held that if two

views are possible on the evidence adduced in the case, then the one

favourable to the accused, should be adopted.

5. In the light of above discussion, I approve the findings of the

Trial Court and find that the prosecution failed to prove its case beyond

reasonable doubt. Considering all the facts and the circumstances of the

case, I find no infirmity in the impugned judgment. The appeal is

unmerited and is consequently dismissed. Trial Court record be sent back

forthwith.

(S.P.GARG) JUDGE OCTOBER 25, 2013/tr