Bharat Bhushan vs State, Through A.C. Branch, Delhi
2014 Latest Caselaw 696 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                            Date of Decision: 05.02.2014

+                            CRL. A. No.603 of 2010
BHARAT BHUSHAN                           ..... Appellant
            Through:    Mr. Ramesh Gupta, Sr. Adv. with Mr.
                        Bharat Sharma & Mr. Siddharth Gupta,
                        Advs.
                         versus
STATE, THROUGH A.C. BRANCH, DELHI        ..... Respondent
              Through: Mr. Feroz Khan Ghazi, APP.
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                                JUDGEMENT

V.K.JAIN, J. (Oral)

On 11.8.2006 at about 10:00 a.m. the complainant Kailash S/o Nathu Ram came to the Office of the Anti Corruption Branch and made a complaint Ex.PW2/A in the presence of a panch witness Shri Ravinder Kumar. The complainant alleged that on 7.8.2006, he went to Sheikh Sarai Authority to obtain a learner's driving license and met the Inspector and other employees present there but none of them bothered about him. When he was getting down the stairs, one person, who gave his name as Niku, asked him as to whether he wanted to obtain a driving license. He further stated that Niku also told him that the learner's driving license would be issued to him since the Inspector and other employees were well-known to him. The papers of the complainant were checked by that person. After checking the papers he told the complainant that the learner's driving license cannot be issued on that date as he visits the said office only on Mondays, Wednesdays and Fridays and since next Friday was Rakhi day, that person called the

complainant on 11.8.2006 and assured him that the learner's license would be issued on payment of a fee of Rs.1,000/-. He claimed that the justification given by that person for demanding Rs.1,000/- as his fee was that he had to share money with the Inspector and other employees. He also told the complainant that he would have to pay another sum of Rs.500/- after issue of learning license.

2. After the complaint was recorded by Inspector Sunil Kumar, the complainant handed over Rs.1,000/- consisting of one currency note of Rs.500/- and five currency notes of Rs.100/- each to him, in the presence of the panch witness Shri Ravinder Kumar. After noting the numbers of the currency notes they were treated with phenolphthalein powder. Thereafter the panch witness was made to touch the currency notes treated with powder. The hand of the panch witness was washed in the solution of sodium carbonate, which on such wash turned into pink. The currency notes were then handed over to the complainant and a raiding party was organized. The raiding party reached Sheikh Sarai office of the Directorate of Transport at about 12:20 p.m. in a Government vehicle, which was parked there. The panch witness was asked to accompany the complainant, hear the conversation between him and the appellant and then give pre-decided signal after the money had changed hands from the complainant to the appellant.

3. On noticing the pre-decided signal given by the panch witness the raiding party reached the spot where the appellant was present along with the complainant and the panch witness. The appellant was overpowered and apprehended. On the instructions of Inspector Sunil Kumar, the panch witness took out the currency notes treated with phenolphthalein powder from the pocket of the shirt of the appellant and

the said currency notes were then seized after noting down their numbers. The wash of the right hand of the appellant was then taken in sodium carbonate solution, which on such wash, turned into pink thereby indicating that the currency notes which the panch witness had taken out from the pocket of the appellant had earlier been touched by him with his right hand.

4. The appellant, who was charged with the offence under Section 8 of the Prevention of Corruption Act, 1988 (for short 'the Act') having not pleaded to the charged, the prosecution examined as many as fourteen (14) witnesses whereas two (2) witnesses were examined in defence. The complainant came in the witness box as PW2 and stated that on 7.8.2006, when he was getting down from the Sheikh Sarai Transport office, the appellant, Bharat Bhushan, met him and inquired about his work. When he said that he wanted to obtain a learner's license he told him that he (the complainant) would have to spend Rs.1,500/- for the license out of which Rs.1,000/- would be paid for learner's license and Rs.500/- would be given to him when the complainant receives the license. He further stated that since he was against giving bribe he went to the Anti Corruption Branch and met Inspector Sunil Kumar who recorded his complaint Ex.PW2/A. According to the complainant he had brought Rs.1,000/- with him in the denomination of Rs.500/-, which he handed over to Inspector Sunil Kumar who treated them with some powder and returned the said currency notes to him. Thereafter they went to the office of Sheikh Sarai Transport Authority in a vehicle, which was left on the main road. The complainant further stated that he along with panch witness went to the appellant who were present in a vehicle and when the appellant

inquired about money he replied in the affirmative. Thereupon the appellant took the document from him. He also took from him the currency notes in his right hand and kept the same in the left pocket of his shirt. In the meanwhile raiding party reached there and apprehended the appellant. The currency notes were then recovered from the pocket of the appellant and handed over to the raiding officer who seized the same vide memo Ex.PW2/B. He further stated that when wash of the shirt of the appellant was taken it turned into pink and the said wash was thereafter put into empty bottle and duly seized after it was sealed.

This witness was cross-examined by the learned Additional PP on the ground that he was resiling from his previous statement but nothing substantial came out in the cross-examination by the learned Additional PP, except that when he handed over documents to the appellant he called a person named Vijay and on the direction of the appellant, the application form was filled up by Vijay. He also admitted that he was taken to a shop where his photograph was taken and later that photograph was pasted on the application form.

5. PW6 Seema Dudeja stated that she had applied for driving license through M/s. Great Seven Star Driving School and got the license through them. According to her she had lost her permanent license and thereafter the appellant told her that she would have to obtain a duplicate license. She claimed that the appellant got her a license from the Transport Authority for which she paid Rs.500/- to him towards license fee. During cross-examination by the learned Additional PP she maintained that she had given Rs.500/- towards license fee only.

6. PW9 Devi Singh stated that since he wanted to get his driving license renewed, he had a talk with the appellant in this regard who

demanded a sum of Rs.1,200/- for making a learning commercial license. He further stated that the form meant for learning license was filled by him and then he gave Rs.300/- to the appellant. PW10 Mangal Singh stated that in the year 2006, he went to the appellant along with a friend for license and the appellant demanded Rs.500/- for getting the license but he could not pay the said amount to him.

7. PW12 Inspector Sunil Kumar and PW4 Inspector Sunder Dev deposed with respect to the recovery of the currency notes amounting to Rs.1,000/- by the panch witness from the pocket of the appellant on 11.8.2006.

8. In his statement under Section 313 Cr.P.C., the appellant claimed to be innocent and stated that one Sushil Malhotra who was arrested by the police had accepted money from the complainant and he was arrested since he happened to be present at that time with Sushil Malhotra, who was later let off by the police.

9. DW1 Sanjeev Jagota is an official from the Transport Department who stated that they had issued a license to Seven Star Motor Driving Training College and one Mr. Sushil Malhotra was the holder of the said license. DW2 Shri Virender Kumar is another official from the Transport Department who deposied with respect to the renewal of the license of Seven Star Motor Driving Training College.

10. The following are the ingredients of the offence punishable under Section 8 of the Act:

(a) The accused should accept or agree to accept (or even attempt to obtain) gratification from some one. (b) The gratification is for himself or for some one else, (c) It is a motive or reward to induce a public servant by corrupt or illegal means to do or to forbear to do any official

act or to show favour or disfavour to some person etc. The gravamen of the offence is acceptance of or the obtaining or even the attempt to obtain illegal gratification, as a motive or reward for inducing a public servant by corrupt or illegal means. It is not necessary that the person who received the gratification should have succeeded in inducing the public servant. It is not even necessary that the recipient of the gratification should, in fact, have attempted to induce the public servant. The receipt of gratification as a motive or reward for the purpose of inducing the public servant by corrupt or illegal means will complete the offence. But it is necessary that the accused should have had the animus or intent, at the time when he receives gratification that it is received as a motive or reward for inducing a public servant by corrupt or illegal means.

11. Though it has come in the deposition of the complainant that the appellant had demanded and later accepted Rs.1,000/- from him to get a driving license to him, there is no evidence of the appellant having told the complainant either that he would share the money with any official of the Transport Department or that he had influence on the official(s) of Transport Department, which he would use for getting a driving license issued to him. A perusal of the complaint Ex.PW2/A would show that when he went to the office of the Anti Corruption Branch, the complainant alleged that the appellant had told him that he would take Rs.1,000/-, because he (the appellant) had to pay fee to the Inspector and other employees as well. However, no such averment was made by the complainant when he came in the witness box. In fact, he was not even confronted with the aforesaid part of the complaint made by him. Thus, though the prosecution was able to prove that the appellant had

agreed and accepted gratification from the complainant for himself, it has failed to prove that the said gratification was obtained by the appellant, as a motive or reward to induce a public servant by corrupt or illegal means, to do or forebear to do any official act or to show favour or disfavour to the complainant. There is no evidence to prove that a sum of Rs.1,000/- was demanded and/or accepted from the complainant for the purpose of inducing a public servant by corrupt or illegal means.

12. Though PW6 Seema Juneja and PW9 Devi Singh deposed regarding payment of money to the appellant in order to obtain a driving license, neither of them claimed that the money was obtained by the appellant on the representation that he would share the said money with a public servant or would use his influence with a public servant, to get driving license to them. PW-6 maintained that she had paid only the licence fee. PW10 Mangal Singh deposed with respect to appellant demanding Rs.500/- from him for getting a driving license but he also did not claim that the appellant had demanded the aforesaid amount on the representation that he would share that amount with a public servant or would use his influence with a public servant to get a driving license to him. No such representation is necessarily implicit in the conversation which the appellant had with the complainant. Moreover, even the complainant does not claim to have understood the appellant to be representing that he will either share the fee with a public servant or that he has some influence with a public servant, which he would use to get him a driving licence.

Therefore, the prosecution has failed to establish a vital ingredient of the offence punishable under Section 8 of the Act.

13. The learned trial Judge took the view that the appellant was a tout. However, there is no evidence of the appellant being a tout of a public servant. Mere demanding and accepting money for the issue of driving license, by a person who himself is not a public servant, without claiming that the bribe money would be shared with a public servant or that he would somehow prevail upon the concerned public servant to issue a driving license to the money giver does not amount to an offence under Section 8 of the Act nor can such a person be said to be a tout.

14. In fact, in the absence of any such representation from the appellant, the amount demanded and accepted by him could as well be the service charges, particularly when it has come in the deposition of the complainant that not only his application form was got filled-in through a person called by the appellant, he was also taken by him to a photographer where his photograph was taken.

15. For the reasons stated hereinabove, I hold that offence under Section 8 of the Prevention of Corruption Act, 1988 against the appellant could not be substantiated.

The appeal is, therefore, allowed and the appellant is acquitted of the charge under Section 8 of the Prevention of Corruption Act, 1988.

The bail bonds of the appellant are discharged.

The LCR be sent back along with a copy of this order.

FEBRUARY 05, 2014                                           V.K. JAIN, J.
b'nesh/rd