Delhi High Court
Sita Ram vs Cbi on 4 May, 2020
* IN THE HIGH COURT OF DELHI AT NEW DELHI
CRL.A 358/2013 and CRL.M.A. 2562/2017 (Exemption)
Reserved on : 17.01.2020
Date of Decision : 04.05.2020
IN THE MATTER OF:
SITA RAM ..... Appellant
Through: Mr. Sunil Dalal and Mr.
Devashish Bhadauria, Advocates
versus
CBI ..... Respondent
Through: Mr. Rajesh Kumar, SPP with
Ms. Saumya Johari and
Ms. Santwana, Advocates
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
MANOJ KUMAR OHRI, J.
1. This appeal is directed against the judgment dated 04.02.2013
passed by the Special Judge, CBI-01, Central District, Delhi in CC No.
20/08 in RC 21(A)/06 whereby the appellant was convicted for the
offence punishable under Section 7 & 13(1)(d) read with 13(2) of P.C.
Act, 1988. Further, vide order dated 05.02.2013, the appellant was
sentenced to undergo RI for 3 years for the offence punishable under
Section 7 along with fine of Rs.1 lac in default whereof to undergo SI for
three months. He was also sentenced to undergo RI for 3 years under
Section 13(1) (d) read with 13(2) of the P.C. Act along with fine of Rs.1
lac in default whereof to undergo SI for three months.
2. The facts which are necessary for the disposal of this appeal, as
noted by the trial court, are as follows: -
"1. Executive Engineer, CD-IV, CPWD Pusa had invited
tenders for construction of shed for diesel generator for
KAB-I building, Pusa, New Delhi. Tenders were opened
and complainant Ajit Singh Yadav was called for
negotiations by the accused who was Executive Engineer
in the last week of May 2006. Instead of awarding the
contract to the complainant whose bid was lowest, he
demanded bribe of 2% of the accepted tender value which
was approximately Rs.7,000/-. Accused told the
complainant that in case money is paid, work would be
awarded otherwise tender would be cancelled and fresh
tender will be called for. Complainant then lodged a
complaint on the basis of which instant FIR no. RC-DAI-
2006-A-0021 was registered and was entrusted to N.V.N.
Krishnan for investigation and laying of the trap.
2. A trap team constituting of officers of CBI and two
independent witnesses from NCCF, Nehru Place was
constituted. Complainant was introduced to the team
members who satisfied themselves about genuineness of
the complaint. Complainant also produced Rs. 7,000/-.
Their numbers were noted down. Phenolphthalein
powder was applied to the currency notes and
independent witness Gurender Pal Singh gave
demonstration by touching the notes with his fingers and
thereafter dipping his fingers in solution of sodium
carbonate. Digital voice recorder was called for. Formal
voices of the independent witnesses was recorded therein
and it was handed over to the complainant with
directions to switch it on before contacting the accused. A
KCR-360 with TDK-D-60 audio cassette along with
credit card transmitter was arranged to overhear the
conversation which may take place between accused and
the complainant. Complainant also informed the CBI
officials that accused would not accept bribe in presence
of third person. It was decided not to send a shadow
witness along with the complainant.
3. The team reached near office of the accused at about
12.25 hours. Complainant was directed to contact the
accused, while independent witness Ram Swaroop Yadav
was to discretely follow the complainant. Complainant
went inside chamber of the accused while shadow witness
stood outside. After about 5-10 minutes complainant
came out and gave pre decided signal. Inspector Prem
Nath who was overhearing the conversation also
informed about the completion of the bribe transaction.
Shadow witness also gave the signal and the team
members rushed inside. Accused was found sitting on his
chair. Upon being challenged about accepting the bribe,
he kept silent and then admitted the acceptance. He was
caught from his both wrists. Colourless solution of
sodium carbonate was prepared. Accused dipped his
fingers of both hands one by one. On each occasion,
solution turned pink. It was poured into clean glass
bottles, wrapped and labeled as RHW and LHW. The
bribe amount was recovered lying on a towel spread on
chair of the accused. Their numbers were tallied. Portion
of the towel was also dipped in colourless solution of
sodium carbonate which turned pink again. It was poured
into glass bottle and labeled as TW. Pant of the accused
was got removed. Rear left side of the pant was dipped in
another solution of sodium carbonate. It too turned pink.
It was poured in a bottle and labeled as LRSTPW. The
voice recorders were replayed which confirmed demand
and acceptance of bribe. Accused was arrested. His
personal search was conducted. Subsequently charge
sheet was filed wherein it was prayed that accused be
summoned and tried."
3. After completing investigation, a charge-sheet was filed and the
following charge was framed against the petitioner.
"That on 20.6.06, at the office of Executive Engineer,
Construction Division No. IV, CPWD, IARI Complex,
Pusa, New Delhi you while working as Executive
Engineer in Construction Division No. IV, CPWD, IARI
Complex, Pusa, New Delhi and as such being a public
servant demanded and accepted bribe of Rs. 7000/- other
than legal remuneration from the complainant Shri Ajit
Singh Yadav as a motive or reward forwarding contract
for construction of shed for diesel generator at KAB-I
Building, Pusa, New Delhi and thereby you committed an
offence punishable under section 7 of the Prevention of
Corruption Act 1988 within my cognizance.
Secondly on the above said date and place, you being
employed as above public servant obtained bribe of
Rs.7000/- from the said complainant as a pecuniary
advantage for yourself by corrupt and illegal means or
otherwise by abusing your position as such public servant
and thereby you committed an offence of criminal
misconduct as specified under section 13(i)(d) and
punishable u/s 13(2) of the Prevention of Corruption Act
1988 and within my cognizance."
4. The prosecution in support of its case examined a total of 15
witnesses. In turn, the appellant examined 9 witnesses in his defence.
5. I have heard learned counsels for the parties and also gone through
the trial court records. Mr. Sunil Dalal, learned counsel for the appellant
has raised the following contentions:
(i) The complainant had prior motive and falsely implicated the
appellant with the help of Insp. N.K. Jain, who though was the second
I.O., but was involved in the case from the very beginning and conducted
the trap proceedings. He also referred to the proceedings dated
19.06.2006 in this regard.
(ii) Neither demand nor acceptance of the bribe amount was proved.
(iii) The recovery was not from the person of the appellant and the
testimony of the witnesses is contradictory on this aspect.
(iv) The complaint made to the CBI was belated and show malafides.
(v) Overwriting in the complaint (Ex.PW-6/A) and handing over
memo (Ex.PW-4/A).
6. Per contra, Mr. Rajesh Kumar, learned SPP for the CBI has
supported the impugned judgment and has prayed for the dismissal of the
appeal by contending that the testimony of the complainant and other
witnesses is consistent and reliable.
MATERIAL WITNESSES :
7. Ms. A. Radharani proved the sanction order (Ex.PW1/A).
8. Mahesh Kumar Sharma, UDC, CPWD proved the original NIT
(Notice Inviting Tender) and its attested copy of the relevant pages as
Ex.PW1/A & Ex.PW1/B (Colly) respectively. He deposed that the
appellant was Executive Engineer at the relevant time and his duty was
to publish the tender.
9. Ramesh Kumar, Asst. Accounts Officer, Pay and Accounts Office
(DGW) was examined as PW-3. He deposed that the bid of M/s Ajit
Construction Company (complainant's company) though lowest, was
still 52% higher than the estimated cost. ASW planning prepared the
market rate justification at 38.9% above the estimated cost. He, on
instructions of the appellant, contacted the complainant and thereafter,
negotiations were held between the complainant and the appellant. He
proved the negotiations letter as Ex.PW3/B. He also deposed that prior to
the negotiations, a P.G. letter (Performance Guarantee letter - Ex.PW3/C)
was sent to the contractor. After the issuance of P.G. letter, the appellant
went on leave. The contract was not awarded. In his cross-examination
he stated that the cost of construction of temporary shed was Rs.3 lacs
and the lowest bid of Ajit Construction Company, after negotiations, was
Rs.3,72,319/-. He stated that in case of variation of more than 10%, a
prior approval of the end user (ICAR was the end user in the present
case) was to be taken for awarding the contract. He clarified that the
letter (Ex PW3/C) did not bear the signatures of the appellant and the
same was never issued. He also stated that Insp. N K Jain was present at
the spot who called him to produce documents after the appellant was
apprehended. N.K. Jain conducted the proceedings while sitting on the
seat of the appellant. To the same extent is the testimony of Mr. Suresh
Kumar (PW-5) who deposed that the negotiations took place on
31.05.2006 between the complainant and the appellant.
10. Mehar Singh, Asst. Engineer, CPWD was examined as PW-11. He
deposed that through his letter (Ex.PW4/E), he had forwarded a detailed
estimate to the Divisional Office for inviting tender for construction of
temporary shed for DG Set. He submitted an estimate of Rs.2,76,110/-
for calling tender. He deposed that generally the work is awarded within
15 days after scrutiny but in the present case, the appellant delayed the
negotiation with the lowest bidder and the contract was not awarded till
20.06.2006 i.e., the day of the trap. In his cross-examination, he stated
that at the relevant time, the appellant had very heavy workload of
providing maintenance and construction and in case of variation of more
than 10% between the allotted amount and the tender, justification was
required to be prepared. He stated that the bid of the complainant's
company was for Rs.4,07,539/-.
11. Bhupender Singh Samlok, Executive Engineer, CPWD was
examined as PW-12. He witnessed the recovery of the GC notes lying on
the chair and also the proceedings related to hand wash, pant wash and
towel wash conducted at the spot. He also identified his signature on the
Recovery memo (Ex.PW 4/B). During cross-examination by the ld. PP,
he denied having made any statement under Section 161 Cr.P.C.
12. The complainant, Ajit Singh Yadav was examined as PW-6. He
deposed that in April, 2006 he filled the tender for construction of
temporary shed for the DG Set. The appellant demanded bribe of
Rs.7,000/- for awarding the work which was 2% of the tender value. He
proved his complaint dated 20.06.2006 which was given to SP, CBI as
Ex.PW6/A. He proved the pre trap proceedings and stated that two
independent witnesses were associated with the trap proceedings. He
requested the TLO (Trap Laying Officer) to not to send the shadow
witness along with him. He stated that he had conversation with the
appellant in his room. Although he requested but the appellant refused to
reduce the demand. The appellant demanded Rs.7,000/- as the work
contract was for Rs.3.50 lacs. He handed over the treated GC notes to the
appellant which were accepted by him with his right hand. The appellant
counted the GC notes and kept them under his left thigh. He stated that a
towel was lying on the table on which the appellant was sitting. On his
giving the pre-assigned signal, the CBI team entered and the independent
witness namely, G.P. Singh, recovered the treated GC notes, counted and
tallied them. He identified the recovered GC notes as Ex. P-1 to Ex. P-
14.
In his cross-examination, he denied the suggestion that N.K Jain
was known to him or that N.K Jain helped him by laying the trap. He
admitted that he had worked with the appellant for about 5 years
preceding the trap. He admitted that he had gone to the office of the
appellant on 19.06.2006 as well but did not meet him. He denied the
suggestions that on 19.06.2006 he had gone to the CBI office and met the
independent witnesses. He admitted that the date on the complaint (Ex.
PW6/A) was not put by him. During further cross examination, he
admitted that negotiations between the contractor and CPWD officials
take place for the purpose of 'justification of rate' and even after that
before a contract is awarded. He admitted that on 19.06.2006, he had met
some lower CBI officers. He denied meeting N.K. Jain either on
14.06.2006 or 15.06.2006. He denied the suggestion that since the
appellant had not made complete payments for the earlier contracts, he
wanted to take revenge and falsely implicated the appellant. He was not
aware if the deductions made were reflected in the bills and accounts. He
admitted that he did not file any recovery suit or initiated any arbitration
proceedings.
He also deposed about the conversation recorded on a cassette and
the transcription, however, the same needs no discussion as it was not
relied upon by the trial court as the primary evidence was not produced
in the Court.
It was also observed by the trial court that there was some
overwriting on the digits of date at point 'Y' in Ex.PW6/A (Complaint)
and at point 'X' on the date in ExPW4/A (Handing Over Memo).
13. Ram Swaroop Yadav, was examined as PW-4. He deposed that on
instruction of the Vigilance Officer, he along with G.P. Singh, attended
the office on 20.06.2006. He proved the pre trap proceedings. He
deposed that he was not asked to go inside the office of the appellant and
remained in the compound. After receiving the pre-determined signal
from the complainant, he gave the signal to CBI team and then went
inside the appellant's office along with them. On search of the
appellant's room, GC notes of Rs.7,000/- were recovered from under the
towel lying on the chair. He also proved the proceedings related to
appellant's hand wash, towel wash and pant wash.
In cross examination, he admitted that the instruction to attend the
CBI office were received by him on 19.06.2006. On that day, he went to
CBI office but no trap was laid. He remained there the whole day and
was asked to come on the next date i.e., 20.06.2006. He admitted that the
proceedings were conducted by Insp. N.K. Jain.
14. G.P. Singh, the other independent witness was examined as PW-9.
He deposed that he along with Ram Swaroop Yadav were deputed to the
office of CBI. He along with Ram Swaroop Yadav waited outside the
room of N.K. Jain throughout the day, who asked them to come again on
the next day. N.K. Jain took them to the room of Navneet Krishnan, the
TLO where they met the complainant. He proved the pre trap
proceedings. He stated that after receiving the signal from the
complainant both N.K. Jain & Navneet Krishnan entered the office of the
appellant. Before he entered, the appellant had thrown the GC notes in
the dustbin which were taken out from there probably by N.K. Jain. He
also proved the proceedings related to the hand wash, towel wash and
pant wash.
He was cross examined by the learned PP for the CBI. He denied
the suggestion that he recovered the bribe amount from the appellant and
that N.K. Jain did not recover it from the dustbin.
In his cross examination conducted on behalf of the appellant, he
stated that N.K. Jain, was in-charge of the CBI raiding team. He further
stated that after entering the appellant's room, he saw the treated GC
notes lying on his table. N.K. Jain picked up the notes and gave it to
them to tally. Subsequently, he stated that the notes were lying in the
dustbin. During further cross examination, he stated that on 19.06.2006,
they reported to Insp. N.K. Jain in the CBI office. On 20.06.2006, after
entering the appellant's room, he saw Insp. N.K. Jain sitting on the
appellant's chair who informed him that the appellant had thrown the GC
notes in the dustbin.
15. Navneet Krishnan, TLO (trap laying officer) was examined as
PW-8. He proved the pre-trap, trap and post-trap proceedings. He stated
that on complainant's giving the pre-determined signal, he along with
other team members entered the room and the bribe amount of Rs.7,000/-
was recovered from under his left thigh. He also proved the hand wash
taken after the appellant was apprehended. He denied the suggestion that
Insp. N.K. Jain was also part of the trap proceedings and that the washes
were tampered with. He stated that he could not confirm or deny whether
the Ex.PW4/K was in the handwriting of N.K. Jain. He stated that on
30.06.2006, the investigation of the case was handed over to N.K. Jain.
16. Insp. N.K. Jain, was examined as PW-13. He deposed that the
investigation of the case was handed over to him on 30.06.2006. He
conducted the investigations and after his repatriation, the investigation
was handed over to Insp. S.Q. Ali. In his cross examination he admitted
that there was no document on record to show that he was handed over
the investigation by Insp. Navneet Krishnan on 30.06.2006. He also
stated that he was not associated with the investigation on 20.06.2006
however, he had gone to the spot on the said date at the instructions of
the Senior Officer, as a mob had collected outside the office of the
appellant. He stated that he was stationed outside the office of the
appellant to control the mob. He denied the suggestion that that appellant
was falsely implicated by him at the instance of the complainant. He
admitted his signature and handwriting on Ex.PW4/D-1 and explained
that he had made the entry as the duty officer was not present. He denied
that the washes were tampered with.
17. S.Q. Ali, DSP, CBI was examined as PW-14. He deposed that
investigation was transferred from N.K. Jain to him in the first week of
April, 2007. He prepared the transcription of the conversation (Ex
PW/6B), obtained the sanction and filed the charge-sheet.
18. V.B. Ramtek, Sr. Scientific Officer, CFSL was examined as PW-
10. He proved his report with respect to the test conducted on the right-
hand wash, left hand wash, towel wash & pant wash as Ex.PW10/A.
19. D.K. Tanwar, Sr. Scientific Officer, CFSL was examined as PW-2
to prove his report with respect to the audio cassettes and its
transcription. As noted above, the trial court has discarded the aforesaid
material from consideration.
20. The appellant, in his statement recorded under Section 313
Cr.P.C., denied the prosecution case. He stated that P.G. letter was not
signed as the negotiations in the form of 'justification' were not
completed. He reiterated that he was falsely implicated by Insp. N.K.
Jain at the instance of the complainant. In his defence, he examined total
of 9 witnesses.
DEFENCE WITNESSES
21. Sudhir Kumar Chaturvedi, Asst. Engineer, CPWD was examined
as DW-1. He was initially cited as PW-7 by the CBI however, later he
was dropped. He deposed that on 20.06.2006, when he went to the
appellant's room, he saw one person sitting on appellant's chair and who
identified himself as Insp. N.K. Jain.
22. Vijay Kumar, DW-2 & Shakti Singh, DW-3 were examined to
prove that the two independent witnesses namely Ram Swaroop Yadav
& G.P. Singh were also involved in trap proceedings of other cases as
well.
23. Balbir Singh, Driver of the appellant was examined as DW-4. He
stated that on 20.06.2006, when he brought the appellant from the site at
Pusa to his office, he found somebody sitting on the appellant's chair and
later, he came to know, it was Insp. N.K. Jain. He also stated that, on
being asked, he dropped Insp. N K Jain at his place. When he asked Mr.
Jain to sign in the log book, he refused. In cross examination, he denied
the suggestion that he was not in the office on the day of the incident.
24. Charanjit Pasrija, Executive Engineer, CPWD was examined as
DW-6. He brought the original register of interest-bearing securities
along with cash book etc. He was examined to prove that prior to the
present tender, on two occasions, the appellant had taken steps for
deduction of amount from the payments to be made to the complainant's
company. He deposed that vide letter dated 06.12.2005 (Ex.DW6/A), the
appellant had initiated steps for forfeiture of the performance guarantee
money as well as the earnest money deposited by the complainant in an
earlier contract. Later, on the basis of appellant's aforesaid
recommendation, a letter dated 25.01.2006 for reduction/recovery of
amount of Rs. 1,03,542/- was issued by the department and eventually, a
sum of Rs. 99567/- was recovered from complainant's company vide
documents exhibited as Ex. DW6/D and Ex.DW6/E. He further stated
that deduction/recovery was ordered on account of substandard work
done by the complainant's company in the earlier contract. He referred to
column no. 22 of the register of interest-bearing securities to show an
entry showing the forfeiture of performance guarantee furnished by the
complainant's company. The forfeiture was made on 16.02.2010.
25. T.C. Meena, LDC, CBI was examined as DW-7. He brought the
original visitor register for the entries made for the period 19.06.2006 to
21.06.2006 and 19.07.2006 which were marked as Mark-DW-7/B and
Mark-DW-7/B1 to B3.
26. Narender Kumar, Head Constable, CBI was examined as DW-8.
He proved on record the copies of pages of the Malkhana register,
showing the deposit of articles on 20.06.2006 and 21.06.2006, as
Ex.DW-8/1 (OSR).
27. The appellant also examined Ms. Neeru from 'Truth Labs
Bangalore' with respect to cassettes and conversation however, since the
trial court discarded the said evidence, her testimony needs no
discussion.
28. Learned counsel for the appellant contended that there was no
motive for the appellant to demand bribe. In this regard, he has referred
to the testimony of the complainant where it was stated that the appellant
had told the complainant that work will be awarded only if the bribe
amount of Rs.7,000/- would be paid by the complainant else, the tender
would be cancelled and recalled. It was submitted that the tender was
neither cancelled nor recalled till 20.06.2006, i.e., the day when the
complaint was made and the trap was laid. He also referred to the
testimonies of Ramesh Kumar, Mehar Singh and Mahesh Kumar
Sharma, where it was stated that contract could not have been awarded as
there was shortage of funds and the bid amount exceeded the estimated
amount by over 10% and the same required prior approval of ICAR, the
end user. It was further contended that the complainant had the motive to
falsely implicate the appellant, as on two prior occasions, the appellant
had taken adverse financial action against the complainant in the earlier
contracts. In this regard, reference was made to the testimony of
Charanjit Pasrija (DW-6) as well as the complainant' own testimony
where he had stated that the appellant had earlier advised deductions in
the payments to be released to the complainant's company.
ANALYSIS & CONCLUSION
29. As noted above, the electronic evidence in the form of tape record
was discarded by the trial court as the primary evidence was not
produced in the court.
30. A perusal of the testimonies of the Ramesh Kumar, Mehar Singh
and the complainant would show that the bid submitted by the
complainant's company was 52.03% above the estimated cost. The
justification prepared by the department on the basis of the market rate
came to be 38.90%. As per the normal procedure, the negotiations were
required to be held for the 'justification of rate' but even after adding
10% variation, the bid amount was higher than the approved cost. The
letter dated 31.05.2006 for deposit of P.G. money was admittedly never
sent to the complainant.
31. The demand, acceptance and recovery proved by the prosecution
requires closer scrutiny in light of the contention that the appellant was
falsely implicated. In this regard, the events that took place on
19.06.2006 and the role of Insp. N.K. Jain assumes significance.
32. As per the testimonies of the complainant and Ramesh Kumar, the
negotiations were admittedly held on 31.05.2006. The complainant stated
about the demand of Rs.7000/- by the appellant as the bribe amount for
award of the contract however, neither in the complaint made on
20.06.2006 nor in his testimony any specific details were mentioned as to
when and how the said demand was made. If the demand was made
during the negotiations, the complainant has not provided any
explanation as to why no complaint was made by him to CBI till
20.06.2006.
33. So far as complaint (Ex.PW6/A) is concerned, the same did not
bear any date. Ld. Counsel for the appellant contended that the date of
endorsement was changed from 19th to 20th. The trial court observed that
there was overwriting in the endorsement made on the said complaint at
point 'Y'. The aforesaid fact is of some relevance as in his cross
examination, the complainant admitted that he visited the office of CBI
on 19.06.2006 and met some lower CBI officers. He also admitted that
he had gone to the appellant's office on 19.06.2006.
34. Both the independent witnesses i.e., Ram Swaroop Yadav and G.P.
Singh stated that they had gone to the CBI office on 19.06.2006 and
waited outside Insp. N.K. Jain's office who later asked them to come on
the next day. It is worthwhile to mention that the requisition letter dated
16.06.2006 carried an endorsement dated 20.06.2006 written by Insp.
N.K. Jain to the effect that both the witnesses attended the office of CBI
on 19th and 20th June 2006.
35. The independent witness, Ram Swaroop Yadav deposed that on
20.06.2006, Insp. N.K. Jain introduced them to the complainant and
conducted the pre trap proceedings. He stated that Insp. N.K. Jain was
present throughout the raid and in fact, on the way back, he and G.P.
Singh were accompanied by Insp. Jain in a Jeep of CPWD driven by a
Sikh gentleman. The aforesaid aspect was corroborated by Balbir Singh
(DW-4) who drove that Jeep. The testimony of Ram Swaroop regarding
the role played by Insp. N.K. Jain was duly supported by the testimony
of other independent witness, G. P. Singh. The other prosecution witness
namely Ramesh Kumar and defence witness Sudhir Kumar Chaturvedi
also stated about the presence of Insp. N.K. Jain on the spot and him
conducting the proceedings.
36. Comparing the version of the above witnesses with the testimony
of the Trap Laying Officer i.e., Insp. Navneet Krishnan would show that
the TLO had surreptitiously denied the presence of Insp. N.K. Jain.
Curiously, Insp. N.K. Jain admitted his going to the spot on 20.06.2006
on the pretext of controlling some mob, a circumstance not stated by any
other witness and for which no other material was brought on the record.
Insp. N.K. Jain maintained that he did not enter the office of the
appellant and remained outside, a version which is in stark contrast to the
deposition of independent witnesses.
37. Coming to the aspect of demand. The complainant has not given
any specifics of the initial demand either in his complaint or in his
deposition. On the day of raid, he intentionally asked the TLO not to
send the independent witness along with him to the appellant's office
room. The independent witness remained outside. In these circumstances,
the complainant remained the solitary witness to prove the demand and
acceptance. He stated that he had a conversation with the appellant and
requested him to reduce the demand which was refused. He never
unequivocally stated that the appellant demanded the bribe amount.
According to him, the appellant took the bribe amount in his right hand
and kept it under his left thigh on a towel. Thereafter, he gave a signal
and trap team came inside and recovered the bribe amount.
38. In A. Subair v. State of Kerala reported as (2009) 6 SCC 587, it
was held that the prosecution in order to prove the charge under the
above provisions has to establish by proper proof, the demand and
acceptance of the illegal gratification and until that is established , the
accused should be considered to be innocent.
39. In P. Satyanarayana Murthy v. District Inspector of Police, State of
Andhra Pradesh and Anr. reported as (2015) 10 SCC 152, it was held as
under:
"23. The proof of demand of illegal gratification, thus, is
the gravamen of the offence Under Sections 7 and
13(1)(d)(i) and (ii) of the Act and in absence thereof,
unmistakably the charge therefor, would fail. Mere
acceptance of any amount allegedly by way of illegal
gratification or recovery thereof, dehors the proof of
demand, ipso facto, would thus not be sufficient to bring
home the charge under these two Sections of the Act. As a
corollary, failure of the prosecution to prove the demand
for illegal gratification would be fatal and mere recovery
of the amount from the person Accused of the offence
Under Sections 7 and 13 of the Act would not entail his
conviction thereunder."
40. In somewhat similar circumstances, in Mukhtiar Singh (since
deceased) through his L.R. v. State of Punjab reported as (2017) 8 SCC
136 where no specifics of earlier demand were mentioned and a senior
police officer was accused of helping the complainant, Supreme Court
while acquitting the accused held as under:
"24. It would thus be patent from the materials on record
that the evidence with regard to the demand of illegal
gratification either of Rs. 3,000/- which had been paid or
of Rs. 2,000/- as made on the day of trap operation is
wholly inadequate to comply with the pre-requisites to
constitute the ingredients of the offence with which the
original Accused had been charged. Not only the date or
time of first demand/payment is not forthcoming and the
allegation to that effect is rather omnibus, vague and
sweeping, even the person in whose presence Rs. 3,000/-
at the first instance is alleged to have been paid i.e.
Santosh Singh Lambardar, has neither been produced in
the investigation nor at the trial. In other words, the bald
allegation of the complainant with regard to the demand
and payment of Rs. 3,000/- as well as the demand of Rs.
2,000/- has remained uncorroborated. Further to
reiterate, his statement to this effect lacks in material
facts and particulars and per se cannot form the
foundation of a decisive conclusion that such demand in
fact had been made by the original accused. Viewed in
this perspective, the statement of complainant and the
Inspector Satpal, the shadow witness in isolation that the
original Accused had enquired as to whether money had
been brought or not, can by no means constitute demand
as enjoined in law as an ingredient of the offence levelled
against the original accused. Such a stray query ipso
facto in absence of any other cogent and persuasive
evidence on record cannot amount to a demand to be a
constituent of the offence under Section 7 or 13 of the Act.
25. In addition thereto, not only the prosecution version
of demand and acceptance of illegal gratification in the
police station seems to be unusual, contradictions of the
witnesses, PW-1, PW-2 and PW-5 with regard to the
location of the transaction relating to Rs. 2,000/- also
renders it doubtful. It is also noticeably unusual that the
currency notes when allegedly handed over by the
complainant to the original accused, the same instead of
being keenly kept with him, were placed casually in the
card board box placed on his table. Though the original
accused, apart from imputing his false implication at the
instance of Superintendent of Police Cheena, said to be
the relative of the complainant could not adduce any
evidence to consolidate the same, the fact remains that
this officer at the relevant point of time was indeed
Superintendent of Police at Mohali and was the superior
of PW5 who led the trap operation."
41. So far as the recovery is concerned, material contradictions appear
in the testimony of the two independent witnesses. Whereas Ram
Swaroop Yadav stated that the bribe amount was recovered from under
the towel lying on the chair, the other independent witness G. P Singh
stated that the recovery was made from a dustbin. There is also
discrepancy as to who recovered the bribe amount. Ram Swaroop had
not stated as to who recovered the amount but he stated that the appellant
was caught hold by Insp. N.K. Jain and Insp. Navneet Krishnan, who
informed that the money was recovered from the chair. On the other
hand, both Insp. N.K. Jain and Insp. Navneet Krishnan stated it was G P
Singh, who recovered the amount from the towel. Interestingly, G.P.
Singh deposed that it was Insp. N.K. Jain who recovered the amount
from a dustbin.
42. It has come in the testimony of the prosecution witnesses that
when they entered the appellant's room, they saw that he was
apprehended and Insp. N.K. Jain was sitting on the appellant's chair. The
appellant had also given suggestions on the same lines.
43. In Selvaraj v. State of Karnataka reported as (2015) 10 SCC 230,
Supreme Court while agreeing with the view taken by the trial court,
disbelieved the evidence of recovery on account of contradictions about
the place of recovery. The following observations are apt for the present
case:
"15. ....PW-1 has stated that he found currency notes on
the table, and the accused was standing behind the table.
Whereas K.N. Eregowda, PW-2, has stated that the
currency notes were kept by the accused beneath the book
on the table. Another witness L. Somashekara, PW-8, IO,
has stated that he recovered the money from the drawer
of the table. The versions given by the three witnesses are
different from each other. Even if we ignore the
contradictions between the versions of PW-1 and PW-2,
the contradiction with respect to place of recovery of
money whether it was inside the drawer of table or was
lying on the table beneath the book is material one and
could not have been ignored"
44. It has come on the record that the complainant was a contractor for
CPWD for about 5 years. He was awarded contracts previously. He
admitted that the appellant recommended deductions in earlier contracts
and he neither complained about the appellant nor filed any recovery
suits. The defence witness Charanjit Pasrija (DW-6) proved on record
that sum of Rs.99,567/- was recovered from the complainant's company
on the recommendations made by the appellant for the sub-standard
quality of work done in using GS sheets of different thickness than
required. He also proved the letter dated 06.12.2005 (Ex.DW-6/A) issued
by the appellant, where in relation to another contract, forfeiture of the
PG and earnest money deposited by the complainant was recommended.
On the aforesaid recommendation, the department ultimately deducted
those amounts in the year 2010 vide Ex.DW-6/B and Ex.DW-6/C. In this
regard, the trial court erroneously recorded that since the final deductions
were made subsequently therefore, they were irrelevant. The trial court
failed to notice that although the deductions were made in the year 2010
but the process was initiated on the basis of recommendations made by
the appellant even prior to the tender in question. In both the contracts,
the deductions were recommended prior to the tender involved in the
present case.
45. In the facts and circumstances of the case, the solitary testimony of
the complainant to prove the demand and acceptance is not inspiring
enough. Even, the recovery is shrouded with contradictions.
46. I also find considerable force in the submissions of learned counsel
for the appellant that the conduct of the Investigating Agency in hiding
the role of Insp. N.K. Jain raises considerable suspicion on the
genuineness of the entire trap proceedings.
47. The reliance placed by learned counsel for the CBI on the
decisions in B. Noha v. State of Kerala & Anr. reported as (2007) 1 SCC
(Cri) 711 and State of Gujarat v. Navinbhai Chandrakant Joshi & Others
reported as (2018) 9 SCC 242, is misplaced as in the captioned cases,
there was voluntary acceptance of money and the accused failed to give
any satisfactory explanation. As noted above, the testimony of the
complainant is not reliable enough. Also, the reliance placed by him on
the decision in Narayana v. State of Karnataka reported as (2010) 14
SCC 453 is of no help as in the captioned case, the discrepancies were
held to be minor. Learned counsel also referred to the decisions in Hazari
Lal v. The State (Delhi Admn.) reported as AIR 1980 SC 873 and State
of U.P. v. Zakaullah reported as AIR 1998 SC 1474 to urge that
testimony of official witnesses can be relied upon. In the present case, as
held above, the testimony of Insp. Navneet Krishnan does not inspire
confidence for the reason that not only there are material contradictions
on the aspect of recovery but also on his attempt to hide the presence and
role of Insp. N.K. Jain at the time of raid proceedings. Lastly, reliance
was again misplaced on the decision in State of Andhra Pradesh v. R.
Jeevaratnam reported as 2004 (6) SCC 488 to contend that the appellant
failed to rebut the presumption under Section 20 of PC Act. It is settled
law that the accused is required to rebut the presumption once the
prosecution is able to prove that he accepted the gratification (other than
legal remuneration). In this regard, it is profitable to refer to the decision
of the Supreme Court in C.M. Girish Babu v. CBI, Cochin, High Court of
Kerala, reported as (2009) 3 SCC 779 where it was held as under:
"21. It is well settled that the presumption to be drawn
under Section 20 is not an inviolable one. The accused
charged with the offence could rebut it either through the
cross-examination of the witnesses cited against him or
by adducing reliable evidence. If the accused fails to
disprove the presumption the same would stick and then it
can be held by the Court that the prosecution has proved
that the accused received the amount towards
gratification.
22. It is equally well settled that the burden of proof
placed upon the accused person against whom the
presumption is made under Section 20 of the Act is not
akin to that of burden placed on the prosecution to prove
the case beyond a reasonable doubt.
"4......It is well established that where the burden of an
issue lies upon the accused he is not required to
discharge that burden by leading evidence of proof his
case beyond a reasonable doubt. That is, of course, the
test prescribed in deciding whether the prosecution has
discharged its onus to prove the guilt of the accused; but
the same test cannot be applied to an accused person who
seeks to discharge the burden placed upon him under
Section 4 under the Prevention of Corruption Act. It is
sufficient if the accused person succeeds in proving a
preponderance of probability in favour of his case. It is
not necessary for the accused person to prove his case
beyond a reasonable doubt or in default to incur verdict
of guilt. The onus of proof lying upon the accused person
is to prove his case by a preponderance of probability. As
soon as he succeeds in doing so, the burden shifts to
prosecution which still has to discharge its original onus
that never shifts, i.e.; that of establishing on the whole
case the guilt of the accused beyond a reasonable doubt."
(Emphasis supplied)
(See V.D. Jhingan v. State of U.P. at AIR p. 1764, para
4)"
48. Resultantly, this court is of the view that the prosecution has
failed to prove its case against the appellant. The appellant succeeds and
his appeal is allowed. The appellant's conviction is set aside and he is
acquitted of all the charges. His bail bonds and surety bonds are
discharged.
49. Accordingly, the appeal is disposed of along with the pending
application.
50. A copy of this judgment be communicated to the trial court.
(MANOJ KUMAR OHRI)
JUDGE
MAY 04, 2020
p'ma
