[Cites 14, Cited by 0]
Delhi High Court
Dinesh Garg vs C.B.I on 2 April, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 23.03.2026
Judgment pronounced on: 02.04.2026
+ CRL.A. 748/2002
DINESH GARG .....Appellant
Through: Mr. Sameer Chandra, Ms. Vivya
Nagpal, Mr. Ekansh Bansal and
Mr.Aryan Tomar, Advocates.
Versus
C.B.I. .....Respondent
Through: Mr. Atul Guleria, SPP with Mr.
Aryan Rakesh and Ms. Atreyi
Chatterjee, Advocates.
+ CRL.A. 763/2002
V.K. DATTA .....Appellant
Through: Mr. Sunil Dalal, Senior Advocate
with Mr. Raghav Bhalla, Mr. Ankit
Rana, Ms. Shipra Bali, Ms. Zeba
Khan, Advocates.
Versus
NCT OF DELHI .....Respondent
Through: Mr. Atul Guleria, SPP with Mr.
Aryan Rakesh and Ms. Atreyi
Chatterjee, Advocates.
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. These appeals under Section 374 of the Code of
Criminal Procedure, 1973 (the Cr.P.C.) read with Section 27 of the
Prevention of Corruption Act, 1988 ("the PC Act") has been filed by
accused nos. 1 and 2 (A1 and A2) in C.C.No.109/1994 on the file of
the Court of Special Judge, Delhi, challenging the conviction
entered and sentence passed against them for the offences
punishable under Section 7 and 13(1) (d) read with 13(2) of the PC
Act.
2. The prosecution case is that on 20.09.1991, A1,
Assistant Engineer, Flood Control Department, and A2, Junior
Engineer, Flood Control Department, both being public servants,
demanded and accepted ₹900/- each from PW1 as illegal
gratification for facilitating the release of the PW1's running and
final bills.
3. On 20.09.1991, PW1 lodged a complaint, that is, Ext.
PW1/E, with the Anti-Corruption Branch, New Delhi, based on
which, RC No. 57(A)/91-DLI, Ext. PW7/A FIR was registered
alleging commission of the offence punishable under Section 7 of
the PC Act.
4. PW8, Inspector, Anti-Corruption Branch, CBI, New
Delhi, conducted investigation into the crime and on completion of
the same, submitted the charge-sheet/ final report alleging
commission of the offences punishable under the Section 7 read
with 13(2) read with 13(1)(d) of the PC Act.
5. Ext. PW2/A and Ext. PW2/B Sanction Orders for
prosecuting both A1 and A2 was accorded by PW2, Chief Secretary,
Delhi Administration.
6. When the accused persons on receipt of summons
appeared before the trial court, the Court after complying with the
formality contemplated under Section 207 Cr.P.C, and after hearing
them, on 15.07.1992, framed a Charge under Section 7 and 13(l)(d)
r/w 13(2) of the PC Act against both the accused persons, which
was read over and explained to them to which they pleaded not
guilty.
7. On behalf of the prosecution, PW1 to PW8 were
examined and Ext. PW1/A - Q, Ext. PW2/A-B, Ext. PW4/A, Ext.
PW5/A - C, Ext. PW6/A, Ext. PW7/A and Ext. PW8/DA were
marked in support of the prosecution case.
8. After the close of the prosecution evidence, the accused
persons were questioned under Section 313(1)(b) Cr.P.C. regarding
the incriminating circumstances appearing against them in the
evidence of the prosecution. The accused persons denied all those
circumstances and maintained their innocence. Both A1 and A2
submitted that PW1 came to the office of A1 and complained about
the dragline. A1 called A2 and the moment the latter entered A1's
cabin the whole raiding party came inside his cabin and there was a
commotion. Subsequently, they were taken to the CBI office. No
document was prepared at the spot.
9. DW1 and DW2 were examined on behalf of the
accused persons. Ext. D-1 and Ext. D-2 were marked in support of
the defence.
10. On consideration of the oral and documentary evidence
on record and after hearing both sides, the trial court, vide the
impugned judgment dated 03.09.2002, held both the accused
persons, that is, A1 and A2, guilty of the offences punishable under
Section 7 and Section 13(1)(d) read with Section 13(2) of the PC
Act. Accordingly, both the convicts have been sentenced to undergo
rigorous imprisonment for a period of two years each with a fine of
₹5,000/- each under Section 7 of the PC Act and in default of
payment of fine to further undergo rigorous imprisonment for six
months; and rigorous imprisonment for a period of two years each
with a fine of ₹5,000/- each under Section 13(1)(d) read with
Section 13(2) of the PC Act and in default of payment of fine to
further undergo rigorous imprisonment for six months each. The
sentences have been directed to run concurrently. Aggrieved, A1
and A2 have preferred these appeals.
11. The learned counsel appearing for A2 submitted that
the latter has been falsely implicated by PW1 in this case as A2 had
earlier reported vide Ext. PW8/DA complaint dated 27.05.1991
regarding the poor quality of work carried out by the contractor,
pursuant to which he directed stopping of the work and locked the
cement store. However, A2 later found that the contractor, had
broken the lock of the store and resumed the work. It was further
submitted that the trial court erred in not appreciating the fact that
the prosecution had failed to prove that any demand for illegal
gratification had been made by A2. To buttress this contention, the
learned counsel for A2 pointed out several inconsistencies in the
prosecution case, such as the absence of any occasion to demand a
bribe since no bills were pending for payment at the relevant time;
the fact that earlier bills had been cleared without any such demand,
and that A2 was not even present at the spot at the time of the
alleged demand but at the site, as demonstrated from Ext. D1 and
D2 muster rolls and that even the independent witnesses, namely,
PW3 and PW4, had not mentioned anything with regard to the
presence of A2 at the time of the raid or with respect to any demand
for illegal gratification having been made by him to PW1, thereby
further weakening the prosecution case against A2.
11.1. It was further submitted that PW1 has materially
improved his version from what was originally stated in Ext.
PW1/E complaint with regard to the alleged demand of bribery,
inasmuch as no role was attributed to A2 at the initial stage.
Moreover, as per Ext. PW1/E, the alleged demand was for a sum of
₹1,800/- for facilitating the settlement of bills, whereas only ₹900/-
was recovered during the raid. This material discrepancy further
probabilises the version that A2 was not involved in any such
demand from the very inception and has been subsequently
implicated by PW1. It was also submitted that the testimony of
PW4 is completely silent with respect to any demand for illegal
gratification having been made by A2, thereby further weakening
the prosecution case against him.
11.2. It was also submitted that the recovery proceeding
was not proved duly as PW3 did not identify A2 and PW3 was not
sure of the amount of money recovered from A2. The learned
counsel for A2 further pointed out the inconsistencies in the
testimony of PW3 and PW4 with regard to the place of incident, as
the former deposed that the trap took place at the office of A2,
whereas the latter stated that it occurred at the office of A1. It was
further submitted that as many as 11 charge witnesses were dropped
during trial without being examined, including officers, namely,
CW6, CW7, CW8 and CW9, who had allegedly apprehended the
accused by catching hold of his wrists. It was further submitted that
CW14, namely, the contractor on whose behalf PW1 was acting as a
power of attorney holder, was a material witness, inasmuch as PW1
was merely a supervisor, and it was CW14 who was actually aware
of the financial transactions and dealings pertaining to the contracts
and the related bills. Therefore, such withholding of material
witnesses on the part of the prosecution entitles the accused to
invoke the presumption under Section 114 illustration (g) of the
Indian Evidence Act, 1872 (IEA) by drawing an adverse inference
against the prosecution.
12. The learned senior counsel appearing for A1 submitted
that the prosecution has failed to establish any cause for the alleged
demand of bribe by the accused persons. It was contended that this
aspect stands established by the testimony of PW5, who has
deposed that none of the three works had been completed and, as
shown from Ext. PW5/A, the work had not only been halted but the
contractor had also submitted a request letter undertaking that no
claim for damages would be raised against the Department. It was
further submitted that after the foreclosure order, the bill stood at
minus ₹300/-, thereby indicating that the contractor, in fact, owed
money to the Department. It was also pointed out that PW1, in his
testimony, admitted that he was unaware of the exact amount, if
any, payable by the Department. These circumstances, according to
the learned senior counsel, clearly negate the existence of any
occasion or motive for the alleged demand of illegal gratification.
12.1. It was further contended that PW1 was merely
acting as an employee of CW14, the contractor, who, as admitted by
PW1 in his testimony, was the person operating the accounts and
not PW1 himself. Therefore, if any dues were pending, or if any
illegal demand was allegedly made for clearing such dues, the
material evidence to substantiate the same ought to have come from
CW14 and not from PW1. Rather, it was a false proceeding initiated
by PW1 against A1 and A2 due to Ext. PW8/DA complaint given
against his act of pilfering cement from the cement store. It was also
submitted that the prosecution's timeline regarding the registration
of the FIR is also practically not possible as the demand was made
at 10:15 AM at the Shastri Nagar office, after which PW1 is alleged
to have travelled approximately 15 kilometers to the CBI Office at
Lodhi Road, inquired about the complaint procedure, drafted a
handwritten complaint, reached the reception area, met PW7 IO,
obtained an audience with the S.P., received a direction to register
the FIR, and successfully had Ext. PW-7/A FIR registered by 11:15
AM. Furthermore, Exts. D1 and D2 muster rolls conclusively
establish that the accused persons were engaged in official
inspection duties during the relevant time and had no occasion to
meet PW1. By placing such material on record, the accused have
effectively rebutted the presumption and shifted the burden back
upon the prosecution. In such circumstances, it was incumbent upon
the prosecution to discredit or challenge the authenticity of Exts. D1
and D2 muster rolls, which it has failed to do, and the same stand
duly proved by the defence.
12.2. The learned senior counsel appearing for A1
further contended that both PW3 and PW4 are stock witnesses,
whose presence in the proceedings is doubtful, as no requisition for
their participation has been placed on record, despite such
procedure being mandatory. It was further pointed out that, as per
their own testimony, both the witnesses were already present in the
CBI office prior to PW1's arrival, thereby casting serious doubt on
the fairness and credibility of their involvement in the trap
proceedings. Reliance was placed on the dictum in Ved Prakash
Maurya v. State of Delhi, Crl. Appeal No. 45/2010 (Delhi High
Court), Har Swarup Verma v. State of Delhi, Crl. Appeal No.
228/2003 (Delhi High Court), Jagan v. State of Maharashtra, Crl.
Appeal No. 187 of 2012 (Bombay High Court, Nagpur Bench),
Rajinder Kumar v. CBI, Crl. Appeal No. 733/2003 (Delhi High
Court)
13. Per Contra, it was submitted by the Special Public
Prosecutor appearing for the CBI that the impugned judgment does
not suffer from any infirmity warranting interference by this court
as the trial court has duly considered each and every ground raised
in the present appeal and, upon an overall appreciation of the
materials on record, adjudicated the matter on merits.
13.1. It was submitted that both A1 and A2 did not
cross examine PW2, the Sanctioning Authority, and PW6, the
Scientific Officer, with regard to the phenolphthalein test, and
therefore the aspect of the solution turning pink has remained
unchallenged. In such circumstances, it was contended that the
prosecution case on this aspect stands duly proved, and the non-
examination of the witnesses who apprehended the accused persons
during the trap proceedings does not materially affect the
prosecution case. It was also contended that the mere mention or
non-mention of the name of A2 at the stage of registration of Ext.
PW7/A FIR is not of material significance, inasmuch as Ext. PW7/A
FIR is only intended to set the criminal law in motion. It was further
submitted that the demand and acceptance of the bribe amount by
A2 have been duly established through the testimony of PW4,
which is sufficient to sustain the prosecution case against him. It
was also submitted that PW5 has deposed in detail with regard to
the bills raised by PW1 in his capacity as power of attorney holder,
and that the said bills were to be processed and dealt with by A1 and
A2, who were responsible for executing the same.
14. Heard both sides and perused the records.
15. The only point that arises for consideration in the
present appeal is whether there is any infirmity in the impugned
judgment calling for an interference by this Court.
16. I shall first briefly refer to the evidence on record relied
on by the prosecution in support of the case. The initial demand in
this case is alleged to have taken place on 20.09.1991 and the trap
laid on the same day. PW1 submitted a written complaint, that is,
Ext. PW1/E in the office of the Anti-Corruption Branch in which he
has stated thus:- "...I am a power of attorney holder on behalf of
Contractor's M/s Gupta Const. Co. E-1625/4, Najafgarh, N. Delhi.
Two works relating to Construction of boundary wall cum barbed
wire fences at RD - 22471 to 23000 M at Supplementary drain (left
side and Construction of boundary wall cum barbed wire fencing at
RD - 22200 to 21350 M at Supplementary drain (Right side) and
left side also were awarded to M/s Gupta Construction Co. The said
work were started but could not be completed due to encroachment
on the land and the alternative site was not made available by the
deptt. (FCD, D.A). The payments for the work so far executed after
Ist and IInd running bills respectively of the above said works have
not been made to me so far, though I had repeatedly visited the SDO
III, FCD deptt. On 20/9/91, I visited the office of the Flood Control
dept and met Sh. V.K. Dutta, A.E and requested him for expediting
my payments. Sh. Dutta told me that if I want an early payment of
the works done, I will have to pay a bribe of ₹1800/- which will be
equally distributed between him and the J.E Sh. Dinesh Garg. Mr
Dutta told me to pay the bribe money today i.e. 20/9/1991 in the
afternoon in their office at L.M. Bund, Shastri Nagar. I do not want
to give bribe, so necessary action may please be taken against these
officer's"
17. PW1, in his examination-in-chief, deposed that in the
year 1991 he was working as a civil contractor associated with M/s
Gupta Construction Co. on the basis of Ext. PW1/A Power of
Attorney as per which, he was authorised to supervise work and
obtain payments from Government Departments. During the year
1991, he was supervising the construction work relating to
boundary wall cum barbed wire fencing at Nangloi Drain, which
had been allotted to M/s Gupta Construction Co. by the Flood
Control Department. Due to encroachment, the work could not be
completed and so he moved Ext. PW1/C and Ext. PW1/D
applications for foreclosing the work and for release of payment. At
the relevant time, payments were pending with the department and
the officials concerned included A1, Assistant Engineer, and A2,
Junior Engineer, both of whom he identified before the trial court.
According to PW1, A2 was maintaining the measurement book and
preparing the bills, while A1 was inspecting the work and passing
the bills for payment. During August 1991, three of his bills were
pending and he was pursuing the same. On 20.09.1991, he met both
the accused persons in their office and requested for release of
payment. On that day, A1, in the presence of A2, demanded a bribe
of ₹1,800/- for release of the payment and that the amount would be
shared between them. PW1 expressed his inability to arrange the
money immediately, however, he was asked to make the payment
on the same day after lunch. As he did not want to pay the bribe, he
went to the office of the CBI for lodging a complaint. He reached
the office of the CBI at about 11.00-11.15 am, made inquiries, and
thereafter wrote Ex. PW1/E complaint addressed to the SP. He met
PW7 Inspector, who took him to the SP, and thereafter he was
introduced to the panch witnesses, namely, PW3 and PW4, to whom
he narrated the facts. Another CBI officer informed him that a trap
would be laid after confirming that he had brought the bribe
amount. He produced 18 currency notes of ₹100/- each, which were
treated with phenolphthalein powder. PW1 further deposed about
the pre-trap proceedings conducted by the CBI team and Ext.
PW1/E handing over memo was prepared and the numbers of the
currency notes were recorded in Ext. PW1/F memo. PW4 was
directed to remain with him, observe the transaction and give a
signal by scratching his head on acceptance of bribe.
17.1. According to PW1, the raiding party left the
office of the CBI at about 03.00 to 03.15 pm and reached the office
of the accused at about 03.45 pm. He along with PW4 entered the
office room of A1 where both the accused persons were present. On
inquiry, he introduced PW4 as his friend. A1 asked him whether he
had brought the demanded money, to which he replied in the
affirmative. Thereafter, on demand, he handed over ₹900/- to A1,
who accepted the same with his right hand, counted it and kept it in
the right-side drawer of his table. Thereafter, A2 demanded his
share and so he handed over ₹900/- to A2, which he accepted with
his left hand, counted the same and kept it in the left pocket of his
shirt. PW1 further deposed that upon his request for early release of
payment, both accused assured him that the work would be done. In
the meantime, PW4 went out on the pretext of attending the nature's
call and thereafter the raiding party entered the room and
apprehended both the accused persons. The accused persons were
challenged regarding acceptance of bribe but they remained silent.
On being informed by the panch witness, the tainted currency notes
were recovered from the drawer of the table of A1 and from the
shirt pocket of A2. The number of the currency notes tallied with
those mentioned in the handing over memo.
17.2. PW1 further deposed that after recovery of the
tainted currency notes, fresh solutions of sodium carbonate were
prepared and the hand washes of A1 and A2 were taken separately,
which turned pink. The hand washes were preserved in separate
bottles. The inner portion of the left pocket of the shirt of A2 was
also washed in sodium carbonate solution, which also turned pink
and the wash was preserved. PW1 further deposed that the contract
for construction of boundary wall and fencing at Nangloi Drain had
been awarded to M/s Gupta Construction Co. on 22.02.1991. And
that earlier payments had been received by way of cheques from the
department. He further deposed that due to encroachment and
damage caused to the construction, he had lodged an FIR at PS
Mangolpuri and had made requests for alternative site and for
release of payments, but no action was taken by the officials
concerned, including the accused persons.
17.3. PW1, in his cross examination, further deposed
that the work allotted to M/s Gupta Construction Co. pertained to
Nangloi Drain covering specified R.D. points on both left and right
banks. He further deposed that due to encroachment, work on both
sides had been affected and applications had been moved for
foreclosure or alternative assignment. He deposed that no order for
foreclosure had been formally ordered and he could not recall the
exact amount due at the relevant time, though he denied the
suggestion that no amount was payable. He further deposed that one
cheque was received after the raid and denied that no payment was
due. A third work relating to another stretch of the drain had not
commenced and that he had moved Ex. PW1/DA application dated
13.09.1991 in that regard. He further deposed regarding the
procedure of execution of work, stating that cement was issued by
the department on the basis of indent and was stored at site, the keys
of which were shared between the contractor and the Junior
Engineer. He admitted that the Junior Engineer would generally
come at 8 a.m. in the morning to open the store and issue cement.
He could not recall on what dates cement was issued. In further
cross examination, he deposed that at the time of the raid, only one
work was in progress, while two works had been stopped due to
encroachment. He further deposed that he had applied for
foreclosure of those works but was not aware of their status and that
bills in respect thereof had not been prepared at that time. PW1
admitted that after the incident, he was removed from service by the
proprietor and he was not aware of the final payments received.
PW1 further deposed that he had been requiring payment of the
running bill of the ongoing work and final bills of the other works
and estimated that approximately ₹50,000/- was pending. He denied
that no payment was due in respect of the three works. He further
deposed that bills were prepared by the Junior Engineer and passed
by the Assistant Engineer and Executive Engineer. He also deposed
that the work had temporarily stopped due to rains and was restarted
shortly before the trap, and denied that work was continuously in
progress except for cement work. He further deposed that where
work is stopped and not completed, it is foreclosed, and that
payment is made after completion of curing period in cement work
as there was a curing period of seven days for the cement work.
17.4. PW1 further deposed that he could not recollect
the reason for obtaining the signatures of Kailash Chand Gupta on
the Ex. PW1/DB indent for issuance of cement which was prepared
on 13.09.1991 and denied knowledge of any complaint made by A2
regarding pilferage from the cement store. He deposed that
payments were made by cheque in favour of Gupta Construction
Company and that the bank account of the Company was operated
by Kailash Chand Gupta and not by him. He admitted that in Ext.
PW1/E complaint, he had not mentioned that he had met A2 on the
morning of 20.09.1991, nor had he mentioned the time of 10.15
AM, or that the demand of ₹1,800/- was made by A1 in the
presence of A2. PW1 denied that he had any prior acquaintance
with PW7 or that the complaint was false or drafted at the instance
of the latter. He further denied being a witness in any other
corruption case involving PW7. PW1 described the office layout of
A1 and A2, stating that it consisted of a large room partitioned into
two portions, one for the Junior Engineers and clerical staff and the
other for the Assistant Engineer, and that Junior Engineers would
enter the Assistant Engineer's portion when required. PW1 denied
that on 20.09.1991 he had visited the office of the A1 on the pretext
of complaint on dragline or that the A1 had called A2 in that
context.
18. PW4, shadow witness, deposed that on 20.09.1991 he
had gone to the office of the CBI on the directions of the
Administrative Officer of his department along with PW3, where
they met PW7 who introduced him to PW1 and he was appraised of
the contents of Ext.PW1/E complaint, which pertained to a demand
of ₹ 1,800 by A1 for passing the payment. He further deposed about
the pre-trap proceedings conducted in the office of the CBI. He
further deposed that PW1 was instructed to hand over the money
only on specific demand and that he along with the other witnesses
was directed to remain close, observe the transaction and overhear
the conversation. He was instructed to give a prearranged signal by
scratching his head after the money had been passed, and that he
was satisfied that the money was to be given as a bribe. After the
pre-trap proceeding was completed, the raiding party proceeded to
the office of the accused persons at Flood Control Department,
Shastri Nagar. He along with PW1 entered the office while other
members of the raiding party remained outside. Both the accused
present in the room offered them seats. When A1 enquired about his
identity, PW1 introduced him as a friend. PW1 offered money to
A1, who accepted the same and kept it in the drawer of his table.
PW1 gave ₹900/- each to A1 and A2. A2 kept his share in the front
pocket of his shirt. Thereafter, PW4 went out of the room and gave
the pre-arranged signal. Upon receipt of the signal, the raiding party
entered and apprehended the accused persons. A1 and A2initially
did not disclose where the money was kept, whereupon he informed
the officials about the location. Thereafter, PW3 recovered the
tainted currency notes from the drawer of A1 and from the shirt
pocket of A2. PW4 further deposed that the number of the
recovered currency notes tallied with the number noted in Ex.
PW1/F. The hand wash of both the accused persons were taken in
sodium carbonate solution, which turned pink, and the solutions
were transferred into separate bottles and sealed. PW4 identified the
bottles as Ex. P1 to P5. He further deposed that the post trap
proceedings were conducted at the spot. At this juncture, the
prosecutor is seen to have sought the permission of the trial court to
"cross-examine" PW4 on the ground that he was suppressing
material facts.
18.1. On further examination by the prosecutor, PW4
deposed that he could not recollect the exact words of the
conversation between A1 and PW1, but there was discussion
regarding money between them. He could not recollect whether A1
had specifically enquired from PW1 as to whether he had brought
the money, or whether PW1 had replied in the affirmative. PW4
admitted that A1 had demanded money by stating "Lao paise de do"
and had also given some assurance that the work of PW1 would be
done, though he did not remember the exact words. He further
deposed that thereafter A1 accepted the money. A2 had also spoken
regarding his share, though he did not recollect the exact words
used. A2 indicated that he was in a hurry and assured that the PW1's
work would be done after inspecting the site, where after PW1
handed over the money to him. In his cross examination, PW4
denied the suggestion that any enquiry regarding disproportionate
assets was pending against him at the time he became a witness and
that he had become a witness to oblige the CBI.
19. PW3, recovery witness, fully supported the version of
the prosecution case in his examination in chief before the trial
court. In his cross examination, PW3 deposed that the vehicles of
the raiding party were parked across the road opposite the office at
Shastri Nagar and the interior of the office was not visible from the
said location. He deposed that there were two rooms in the office
premises, one where A2 was present, from where recovery was
effected, and another room situated behind it from where A1 was
brought after about 3-4 minutes of his arrival. He further deposed
that the recovery memo was prepared and signed at the spot, while
some further report was prepared at the CBI office, though he did
not recollect the details.
20. PW-5, the then Executive Engineer, Irrigation and
Flood Control Department, Government of NCT of Delhi deposed
that he had taken charge of Supplementary Drainage Division III in
August 1991. Three fencing works had been awarded to M/s Gupta
Construction Company prior to his taking charge, but none had been
completed despite expiry of the stipulated period. One work was
sought to be foreclosed by the contractor due to encroachment,
which request had initially been declined by his predecessor-in-
office but was later approved by him on 06.08.1991 after site
inspection, which is Ext. PW5/A-1. Administrative orders in that
regard were issued on 19.08.1991, which is Ext. PW5/B-1. He
further deposed that two running bills had already been paid prior to
his joining, and after the trap proceedings, a final bill was prepared
which reflected a minus amount of approximately ₹300/-, meaning
the contractor was liable to pay that amount to the department. With
respect to the second work, he deposed that it was lying suspended
and a request dated 13.09.1991 was received from the contractor
seeking issuance of cement to resume work. The cement was
accordingly issued and the work recommenced. PW5 further
deposed that the work was supervised by the Junior Engineer and
Assistant Engineer, measurements were recorded by the Junior
Engineer and checked by the Assistant Engineer, and occasionally
test checked by the Executive Engineer. A2 was the Junior Engineer
and A1 was the Assistant Engineer for all three works. PW5 proved
Ex. PW 1/DB indent for issuance of cement, which was approved
and signed by him on 13.09.1991. He further proved Ext. PW 5/C
cement register, deposing that it was initially issued by his
predecessor-in-office to A1 and thereafter handed over to A2.
Entries regarding issuance of cement were made by the Junior
Engineer and signed by the contractor, and were also checked by the
Assistant Engineer.
20.1. PW5 in his cross examination deposed that in
respect of one work, the final bill showed a minus amount of
approximately ₹300/- payable by the contractor to the department
and no further amount was due to the contractor. In respect of the
second work, where only fencing poles had been erected, running
payments had already been made and no further amount was due.
He further deposed that in respect of the third work; payment could
be made only after completion of curing period of seven days from
the date of cement work. The amount payable to the contractor after
curing was approximately ₹14,000/- after deductions. PW5 deposed
that the contractor had not submitted any bill for the work executed
after issuance of cement till the trap was laid, and that during the
curing period, as per normal practice, contractors do not submit
bills. PW5 admitted that no payment was due to the contractor when
the trap was laid as the curing period had not been completed.
21. Now a brief reference to the defence witness also.
DW1, Cashier, Office of the Executive Engineer, Irrigation and
Flood Control Department produced Ext. D-1 muster roll, which
was initially issued to A1 and thereafter to A2. He also deposed that
Ex. D-2 muster roll was issued to A1, who in turn issued the same
to Ajit Kumar, Junior Engineer.
22. DW2, Junior Engineer, Irrigation and Flood Control
Department, posted in Supplementary Drainage Division No. 3 at
Nangloi deposed that he knows A2, who was in charge of
supervising the work of the supplementary drainage, and that A1
was the Assistant Engineer. A1 used to check up to 50 percent of the
work supervised by him and A2, and that at the time of such
checking, the Junior Engineer concerned and the contractor used to
be present. Entries in Ext. D1 muster roll up to 20.09.1991 are in
the handwriting of A2, and the remaining entries up to 30.09.1991,
in his own handwriting. DW2 deposed that point 'A' in Ex. D1
bears the initials of A1 in token of having checked the work. He
further deposed that point 'B' in Ex. D-2 at three places also bears
the initials of A1 in token of checking. DW2 in his cross
examination identified the initials of A1 in Ex. D2 as the same were
made in his presence. He similarly identified the initials and
handwriting of A2 as the entries were made by the latter at the spot
in his presence.
23. The testimony of the aforesaid witnesses is mainly
relied on by the prosecution to prove the demand and acceptance of
the bribe by A1 and A2/ the appellants herein. As can be seen from
the materials on record, the prosecution case is that both the accused
persons, namely, A1 and A2, while discharging their official duties
as Assistant Engineer and Junior Engineer respectively in the Flood
Control Department, Delhi Administration, demanded illegal
gratification of ₹1,800/- (₹900/- each) from PW1, who was acting
as the power of attorney holder of CW14, the contractor, to whom
the work of construction along the Supplementary Drain had been
awarded in 1991, for the purpose of expediting the payment of
alleged pending dues. The primary question that arises for
consideration is whether the prosecution has succeeded in
establishing beyond reasonable doubt that A1 and A2 had in fact
demanded and accepted illegal gratification as a motive or reward
for performing a specific official act, thereby attracting the offences
punishable under Sections 7 and 13(2) read with Section 13(1)(d) of
the PC Act. It is well settled law that both the offer by the bribe
giver and the demand by the public servant constitute foundational
facts which must be proved by the prosecution. Mere acceptance of
illegal gratification, in the absence of proof of demand, would not
be sufficient to bring home the guilt under Sections 7 and
13(1)(d)(i) and (ii) of the Act, as held by the Hon'ble Apex Court in
Neeraj Dutta v. State (Government of NCT of Delhi), (2023) 4
SCC 731.
24. In the case on hand, on behalf of A1 and A2 a series of
arguments have been advanced to contend that the essential
ingredient of demand by A1 and A2, being public servants, was
never established. At the outset, it was argued that the presence of
A1 and A2 at the office premises at the relevant time is doubtful, by
placing reliance on Ext. D1 and Ext. D2 muster rolls to suggest that
both were not present at the office when the demand is alleged to
have been made but were instead engaged at the inspection site.
25. Exhibits DW1 and DW2 were marked through DW1.
DW1 was never cross examined. According to DW2 in September,
1991, he was working in the Civil Irrigation Flood Control
Department and his duty was at Supplementary Drainage, Division
No.3, Nangloi. According to him, A1 the then, Assistant Engineer
used to check up to 50% of the work which had been supervised by
him and by Dinesh Garg, A2. He further deposed that the junior
engineer concerned as well as the contractor concerned would be
present at the time when the works were being checked. He also
deposed that entries in Ext. D1 up to the date 20.09.1991 are in the
handwriting of A2 Dinesh Garg and that the remaining entries are in
his handwriting. He also identified the signatures of A1 V.K. Dutta
in Ext. D1 and Ext. D2 muster rolls. Neither DW1 nor DW2 were
cross examined regarding the entries made in Ext. D1 and Ext. D2
muster rolls. Ext. D1 and Ext. D2 muster rolls show that on
20.09.1991 both A1 and A2 were at the work site. During the
course of arguments, it was submitted that the work site was about
30 kilometres away from the office of A1 and A2 situated at L.M.
Bund, Shastri Nagar, FCD Complex, New Delhi. Therefore, it was
argued that it was impossible for A1 and A2 to have been present in
their office at 10:15 a.m. as deposed by PW1 in the box.
26. It is true that that no evidence has been brought in
through the examination of the prosecution witnesses or the defence
witnesses regarding the distance from the work site till the office of
A1 and A2. However, this argument advanced on behalf of the A1
and A2 was not disputed by the learned prosecutor. As long as Exts.
D1 and D2 are not disputed it can only be concluded that A1 and
A2 were in fact at the site on the said day. It is true that A1 and A2,
while questioned under Section 313(1)(b) Cr.P.C., admitted that at
the time of trap, which was at about 03.45-04.00 p.m., they were
present in the office. But the exact time or atleast the approximate
time when A1 and A2 returned from the site to the office is not
available from the materials on record. However, as long as, the
entries in Ext. D1 and Ext. D2 Muster rolls are not discredited or
challenged or disputed, there is no reason for this Court to
disbelieve the entries in the same, which would show that A1 and
A2 were at the site on the said day. This aspect raises doubts as to
whether A1 and A2 were in fact in their office when PW1 is alleged
to have met them in the morning at about 10.15 a.m., when the
demand is alleged to have been made.
27. There is yet another aspect which raises doubts in the
mind of the Court regarding the prosecution case. At the risk of
repetition, I once again refer to certain portions in the testimony of
PW1. PW1 in his examination-in-chief deposed that from the
month of August, 1991, three bills were pending and that he was
pursuing the same for payments of the bills. One of the three bills
was required to be foreclosed because the work could not be done
due to encroachment. Though he was following up the bills, the
payment of the bill was not being processed, therefore, he met the
accused persons on 20.09.1991 in their office at about 10:15 a.m.
According to him, the office of the accused is situated at L.M.
Bund, Shastri Nagar, FCD Complex, New Delhi. On 20.09.1991,
he spoke to A1 V.K. Dutta regarding payment of bill in the presence
of A2 Dinesh Garg in their office and requested them to make the
payment of the bills. A1 V.K. Dutta in the presence of A2 Dinesh
Garg demanded ₹1,800/- as bribe for release of payment. A1 also
told him that the amount would be shared equally with A2. He then
requested A1 and A2 that he would make arrangements for the
money within one or two days. But, A1 V.K. Dutta told him that
the payment should be made on that very date sometime after lunch
in the office. As he did not want to pay the bribe, on the very same
day, he proceeded to the office of the CBI where he reached at
about 11-11:15 a.m. He contacted the reception and enquired about
the procedure of action to be taken regard to demand of bribe. He
was asked to give a complaint in writing. He then drafted a
complaint addressed to the Superintendent, CBI and again went
back to the reception. The person at the reception asked him to wait.
After some time PW7 came and introduced himself. He was then
taken to the office of the SP who went through his complaint and
made necessary endorsements thereof. Thereafter, PW7 Inspector
Ramesh Kumar, took him to another room where he was asked to
again wait for some time. After some time, he was called to another
room where he met the panch witnesses, namely, PW4 Vijay Kumar
Arora and PW3 Purshotam Lal Oberoi. The witnesses spoke to him
regarding his complaint and he told them that as bribe was being
asked, he had filed the complaint. Another CBI inspector namely,
Varma asked him whether he had brought the money to which he
replied in the affirmative. Thereafter, he speaks about the pre-trap
proceedings that were taken. The FIR, therefore could have been
lodged only after PW1 gave his complaint and the officials of the
CBI being convinced of the genuineness of the complaint. But Ext.
PW7/A FIR is seen registered on 20.09.1991 at 11:15 a.m. If PW1
is to be believed, he reached the office of the CBI only at 11:15am.
No clarification was sought by the prosecutor on this aspect. If that
be so, the question arises as to whether the Superintendent of
Police, CBI, ACB, New Delhi, had registered the crime even before
PW1 reached the office and gave his complaint? This is yet another
aspect which raises doubts in the mind of the Court.
28. Now, coming to the testimony of PW1 and the panch
witnesses regarding the recovery. According to PW1, the raiding
party left the office of the CBI by about 03.00-03:15 p.m. and they
reached the spot at about 03:45 p.m. He along with PW4, the
shadow witness, went inside the room of A1 V.K. Dutta while the
other members of the raiding party remained outside and took up
their respective positions. When he entered the office room, both
A1 V.K. Dutta and A2 Dinesh Garg were present. They offered
seats and so he as well as PW4 took their seats. He introduced PW4
as his friend. Thereafter, A1 V.K. Dutta asked him whether he had
brought the money which was demanded in the morning to which
he answered in the affirmative. A1 asked him to hand over the
money and so he took out the tainted currency notes from his pocket
and handed over 9 currency notes of ₹100/- to A1 V.K. Dutta which
the latter accepted with his right hand and kept them inside the
right-side drawer of his office table. A2 Dinesh Garg also
demanded his share and so he gave ₹900/- which A2 accepted with
his left hand and kept it inside the left pocket of his shirt. PW4, the
shadow witness, supports this version of PW1. However, PW3, the
recovery witness, in his chief examination deposed thus:-
"...The raiding party then went to Shastri Nagar in the
Flood Control Office. Complainant and Mr. Roda went inside the
office while I remained with the CBI officials outside. We reached
that office around 4 p.m. After some time, CBI staff rushed inside
the office. I also went with them. Mr. Roda informed the Inspector
that the money had been accepted by Jr. Engineer Mr. Garg. The
CBI staff caught hold of both the hands of Mr. Garg. The Inspector
disclosed his identity to Mr. Garg. In the meantime Mr. VK Dutta
was also brought to that room from the adjoining room. The
accused were challenged by the Inspector.
I was asked to recover the money from left side upper pocket
shirt of Mr. Garg. I took out the money. I do not remember exactly
how much money was recovered from the pocket of Mr. Garg. Then
I was asked to recover the money from the table drawer of Mr.
Dutta. That table of Mr. Dutta was in the same room where Mr.
Garg had been caught. I recovered the money lying in the drawer of
the table of Mr. Dutta. The total amount recovered from pocket of
Mr. Garg and from Mr. Dutta was Rs. 1800/-. The numbers of the
currency notes were tallied by me with the handing over memo and
were found to be the same...
(Emphasis supplied)"
28.1. In the cross examination, PW3 reiterated his case
and deposed thus:-
"...The inside of the office of the accused was not visible
from that place. There were two rooms, one in which Mr. Garg was
found and in which the table from which money was recovered was
also lying. There was second room behind the first room from
where Mr. Dutta was brought. Mr. Dutta was brought from the
other room 3/4 minutes after I had reached the spot. After
completing the work, we had gone back to the CBI office. We had
left the Flood Control Office around 6 p.m...
(Emphasis supplied)"
29. The testimony of PW3 is apparently inconsistent with
the testimony of PW1 and PW4. This is yet another aspect which
raises doubts in the mind of the Court regarding the recovery.
30. Further, going by the testimony of PW1, it appears that
PW3 and PW4 were already present in the office of the CBI. If
PW1 is to be believed, he reached the office of the CBI at 11:00-
11:15 a.m, went to the reception, enquired about the formalities,
wrote down the complaint. Thereafter, he went back to the
reception, where he was taken to the room of PW7 who asked him
to wait for some time. Thereafter, he was called to another room
where he met PW3 and PW4 panch witnesses. This has to be read
along with PW7/A FIR, which according to the prosecution was
registered on the very same day at 11:15 a.m. The aforesaid
evidence has also to be read in the background of Ext.8/DA
complaint that was given by A2 dated 27.05.1991, which reads
thus:-
"...Please refer to my earlier letter No. 14, dated 17.5.91 on
the above cited subject. It is stated that the contractor has restarted
the work from 24/5/91. When I reached the site on dated 25.5.91
then I found & pointed out to the contractor that quality of work
was very poor. He was using dry bricks in brick work. The
contractor did not lay the C.C. 1:4:8 as per the drawing and
designing of the work, moreover he was casting the post & was
using 40 mm nominal size against 20 mm nominal size in Cement
concrete work. So I stopped the work & locked the cement store.
Today when I went to site then I found that the lock has been
removed by the contractor from cement store & he was executing
the work. So it is therefore informed you that I will not measure the
works which are not executed as per the drawing & design of the
work..."
31. Further, it has also come out in evidence that there was
no amount due at the time when the demand was alleged to have
been made. It was submitted on behalf of A1 and A2 that there was
no occasion for the accused persons to demand any bribe as no bills
were pending for payment at the relevant time and in any event, the
earlier bills have been cleared without any such demand. A reading
of the testimony of PW5, the executive engineer substantiates this
contention. PW5 deposed that three fencing works had been
awarded to the contractor. However, none of the works had been
completed within the stipulated period. One of the works had to be
foreclosed and the final bill prepared thereafter reflected a minus
amount of approximately ₹300/-, indicating that the contractor was
in fact liable to pay the said amount to the Department. In respect of
another work, running payments had already been released and no
further amount was due. As regards the third work, PW5 deposed
that payment could be made only after completion of the curing
period and that no bill had been submitted by the contractor till the
date of the trap. PW5 admitted in his cross-examination that no
payment was due to the contractor at the time when the trap
proceedings were conducted. In the light of the testimony of PW5, a
loyal prosecution witness, it becomes evident that there was no
subsisting due or liability on the part of the department towards the
contractor at the relevant time. This also raises doubts regarding the
existence of any motive or occasion for the alleged demand of
illegal gratification by A1 and A2.
32. It was further submitted that as many as 14 charge
witnesses (CWs) were dropped by the prosecution without being
examined, including material witnesses such as the officers who
were part of the trap proceedings and were involved in the
apprehension of A1 and A2, such as CW6, CW7, CW8 and CW9
and most significantly CW14, namely, Kailash Chand Gupta, on
whose behalf PW1 was acting as power attorney holder. PW1 while
examined deposed regarding the role of CW14. His testimony
makes it clear that he was merely acting on behalf of M/s Gupta
Construction Company and that the bank account of the said Firm
was operated by CW14, the proprietor. PW1 while cross-examined
admitted that he was unaware of the exact amount due at the
relevant time and that payments were made directly to the
contractor. PW1 also expressed lack of clarity regarding the status
of the foreclosure of works, preparation of bills and filing payments
and even admitted that he had been removed from service after the
incident and was not aware of the final settlement of accounts. In
such circumstances, CW14, being the proprietor and the person
actually dealing with the financial transactions and contractual
obligations was the most competent witness to speak about the
existence of any pending dues. It is no doubt true that evidence has
to be weighed and not counted. It is also true that it is the
prerogative of the prosecutor to decide which of the witnesses in the
witness list needs to be examined. But there must be some reason as
to why crucial or material witnesses are not examined or given up
by the prosecution. The failure of the prosecution to examine the
aforesaid crucial witnesses coupled with the aforesaid
inconsistencies brought out in the materials raise further doubts in
the mind of the Court. It is well settled that a party is bound to lead
the best evidence in its possession, which would throw light on the
issue in controversy and if such material evidence is withheld, the
court may draw an adverse inference under illustration (g) of
section 114 of IEA, notwithstanding that the burden of proof may
not lie on such party as held by the Apex Court in Mussauddin
Ahmed v. State of Assam, (2009) 14 SCC 541.
33. It is no doubt true that Section 20 of the PC Act
mandates a statutory presumption in favour of the prosecution;
however, such presumption is not automatic and can only be
invoked when the prosecution first establishes the foundational
facts, namely, the demand for and acceptance of illegal gratification
by the accused. It is only upon such proof that the burden shifts
upon the accused to rebut the presumption by adducing cogent and
credible evidence and only on the touchstone of preponderance of
probabilities.
34. The aforesaid aspects raise doubts in the mind of the
Court regarding the prosecution case and hence it cannot be held
that the materials on record are sufficient to find the guilt of the
accused persons beyond reasonable doubt. Suspicion, however,
strong cannot take the place of proof. Therefore, I find that the
appellants/ A1 and A2 are entitled to the benefit of doubt. In such
circumstances, it can only be held that the trial court went wrong in
relying on the aforesaid unsatisfactory evidence to conclude
regarding the guilt of the accused persons.
35. In the result, the appeals are allowed. The impugned
judgment is set aside and the appellants/A1 and A2 are acquitted
under Section 248(1) Cr.P.C. for the offences charged against them.
They shall be set at liberty and their bail bonds shall stand
cancelled.
36. Applications, if any, pending, shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
APRIL 02, 2026
p'ma
