IN THE COURT OF SH. [ENTITY], SPECIAL JUDGE (PCACT)06, [PRECEDENT] Unique Case ID No. 02401R0055702002 [CASE NUMBER] [ENTITY] Vs. [ENTITY], S/o Sh. CP[ENTITY] R/o 1, CWC, Palika Housing Complex, Lodhi Colony, New Delhi FIR NO : 53/2001 U/S : 7 & [SECTION] & 13 (2) [ACT] PS : AC Branch Date of institution : 16.10.2002 Judgment reserved on : 21.10.2010 Judgment delivered on : 29.10.2010 JUDGMENT
1. On 10.02.2003, one [ENTITY] lodged a complaint at AC Branch against one [ENTITY], Jr. Engineer, NDMC, Delhi for demanding a sum of Rs. 2000/ as bribe, for removing a board of Free Parking displayed at the site of parking allotted to the complainant but finally agreed to accept Rs. 1000/. The complaint was written by the complainant himself in the presence of Insp. [ENTITY], Raid Officer and [ENTITY], the panch witness.
2. The complainant produced 2 GC notes of Rs. 500/ each before Inspector [ENTITY], Raid Officer who recorded the numbers of the same in pre raid report. After getting the same checked through panch witness, [ENTITY] powder was applied on the GC notes and right hand of panch witness was got touched to the tainted GC notes and thereafter right hand wash of panch witness was taken in colorless solution of sodium carbonate which turned pink. The panch witness and complainant were apprised of the purpose and consequences of touching the [ENTITY] powder coated GC notes by stating that whosoever touches or keeps the tainted GC notes in his pocket, hand wash or pocket wash, if taken in colorless solution of sodium carbonate, would turn pink.
3. Thereafter, hands of panch witness were got washed with the soap and clean water and the solution was thrown away. The tainted GC notes were given to complainant [ENTITY] who kept the same in left pocket of his shirt.
4. The panch witness was instructed to remain close to the complainant and overhear the conversation between complainant and the accused and also observe the incident. He was further instructed to give the signal to raiding party by hurling his hand over his head twice, after being satisfied that the bribe had actually been given. The complainant was also instructed to keep the panch witness close to him and to talk and to transact with accused [ENTITY] in such a manner so that the panch witness would be able to hear and see the transaction. The complainant was also instructed to give the bribe money on specific demand. The Raid Officer recorded pre raid proceedings.
5. On the day, at about 11:30 am, the complainant and panch witness alongwith RO Inspector [ENTITY], IO Inspector [ENTITY] and other members of raiding party left AC Branch for NDMC office, Hanuman road, Connaught Place in a government vehicle and reached there at about 12:10 pm. The Government vehicle was parked on the main road. IO Insp. [ENTITY] and driver were left in the govt. vehicle.
6. The complainant and panch witness were again instructed and were sent inside the NDMC Office, Hanuman Road. The members of raiding party followed them and took their strategic position. At about 1:00 pm, the panch witness gave pre determined signal to the raiding party. The Raid Officer alongwith the raiding team reached the spot. The Raid Officer asked the panch witness as to what had happened and panch witness told him that accused [ENTITY] had taken bribe money of Rs. 1000/ from the complainant and had kept the same in the drawer of his table.
7. The Raid Officer disclosed his identity as an AC Branch official to the accused [ENTITY] and challenged him that he had taken Rs. 1000/ from the complainant, as bribe. The RO offered the accused the search of the members of raiding team, before taking his search but he declined.
8. At the instruction of the Raid Officer, the panch witness recovered the GC notes from the right side drawer of the table of the accused. The numbers of the recovered GC notes were got compared with the numbers of GC notes recorded in the preraid report which tallied. The recovered GC notes were seized vide seizure memo.
9. Thereafter, right and left hand wash of accused [ENTITY] was taken, separately, in the colorless solution of sodium carbonate which gave positive result. The same was transferred to four clean glass bottles which were sealed with the seal of OPA. Thereafter, wash of right side drawer of the table of accused was taken in colorless solution of sodium carbonate which also gave positive result. That solution was transferred to two empty small, clean bottles which were also sealed with the seal of OPA. The papers of the drawer were converted into pullanda and got sealed with the same seal. Thereafter, RO recorded the post raid proceedings.
10. IO Insp. [ENTITY] was called to the spot and the exhibits/case property and accused were handed over to him and after recording of statements etc. and on completion of investigation, charge sheet was filed.
11. The charges were framed against the accused.
12. As per the charge, accused [ENTITY], while being employed as a Jr. Engineer in NDMC and as such a public servant, on 9.10.2001 demanded and accepted illegal gratification of Rs. 1000/ from the complainant [ENTITY] at Sewa Kendra, NDMC, Hanuman Road, New Delhi at about 1:00 pm, as a motive or reward for removing the board of free parking fixed near Odeon cinema adjacent to the complainant's parking lot and thereby he committed an offence punishable u/[SECTION] of the [ACT].
13. Secondly, on the aforesaid date, time and place accused [ENTITY] obtained Rs.1000/ from the said complainant as pecuniary advantage for himself by corrupt or illegal means or otherwise by abusing his position as such public servant and thereby he committed an offence of criminal misconduct as specified u/[SECTION] and punishable u/[SECTION] of the [ACT].
14. Accused pleaded not guilty and claimed trial.
15. The prosecution had examined 12 witnesses to substantiate the charge while the accused examined 2 witnesses in his defence.
16. I have heard the arguments on behalf of prosecution wherein Sh. [ENTITY], Addl. PP for state submits that the prosecution has been successful in leading evidence to show that the accused had accepted the bribe amount from the complainant in as much as the bribe amount was recovered from the drawer of the table of the accused. the hand wash as well as drawer wash including the papers lying therein had tested positive thereby raising presumption u/[SECTION] of the [ACT]. Once the presumption is raised, it proves that the accused had accepted G.C. Notes notes in consideration for doing or forbearing to do the official act and seeking illegal gratification for the said act.
17. Sh. [ENTITY], Ld. counsel for the accused has vehemently denied the said fact stating that there had been no demand whatsoever and the prosecution has not proven the said fact as the recovery, if any, does not necessarily prove the guilt of the accused but the design on the part of the prosecution to inculpate the accused by placing the G.C. Notes notes in the drawer of the table of accused. The said fact has been proven by the accused as the prosecution witnesses themselves testified that the accused had neither demanded nor voluntarily accepted illegal gratification and as such the accused is entitled to acquittal and discharge.
18. Whether the prosecution was competent to bring up the charge against the accused and to prosecute him with the same is determinate from the fact whether the prosecution had obtained a requisite sanction from the competent authority. The sanction is sine quo non for prosecution of a public official.
19. Sanction U/[SECTION] of [ACT] is not an idle formality, but it is a sacrosanct act as the future and carrier of a Government official is involved. The grant of sanction has been amply elucidated in Bhisham Kumar Vs. [ENTITY], 1999 (3) AD Delhi 173. The test prescribed by the Hon'ble Supreme Court in Mohd. Iqbal Ahmad Vs. [ENTITY] of Andhra Pradesh, 1979 Chandigarh Crl. Cases 113 (SC) have to be complied with.
20. The law regarding the sanction is strict in its requirement i.e. to say that there has to be a valid sanction before trial can commence. Granting of sanction U/[SECTION] of [ACT] is prerequisite for prosecution. The facts that go to the root of the whole matter are placed before the sanctioning authority before it can accord sanction.
21. A bare reading of [SECTION] of [ACT] would indicate that it aims at preventing harassment and vexatious prosecution of public servant. It assures that honest public servant would not be placed in a position to oblige everyone and may incur displeasure of some of them in refusal to do so. This displeasure may even result in vexatious and malicious prosecution for offence relating to discharge of their official duties. Hence a reasonable protection is afforded to public servant in their discharge of their duties so that the public servants continue performing their duties and obligation undeterred by vexatious and unnecessary prosecution.
22. For the said purpose, PW4 Sh. [ENTITY], Managing Director, Khadi & Village Industries Board, Delhi had been examined who was the Chairperson of NDMC on 18.09.2009. It is testified that that allegation of accepting illegal gratification of Rs.1000/ from one [ENTITY] had been leveled against the accused and in consequence thereof, material had been placed before the sanctioning authority pertaining to the said allegation. The witness accorded the sanction after carefully examining the said material vide Ex.PW4/A which is signed by the witness. PW4 was competent to remove the said accused from his service.
23. Even though, a challenge has been made as to the documents perused and not being aware of the facts of the case and according the sanction mechanically. But the said objections are perfunctory in nature and no substantial challenge has been made to the authenticity of the sanction and the authority to accord the prerequisite sanction for prosecution of the accused.
24. The process of trap and subsequent trial of the accused was set in motion by a complaint lodged by PW9 [ENTITY]. The said complainant has testified that in the year 2001 he had a contract of parking lot in D Block, middle circle, Connaught Place. The period of the contract was from 13.08.2001 to 31.12.2001. It is testified that the employees of the witness stated that some persons from the Civil Department of NDMC had raised objection regarding the parking and were demanding Rs. 1000/ for permitting the witness to run the parking. It is testified that one [ENTITY] would collect the money. The witness has admitted that he had not seen the person who had been demanding the bribe. When the employees were asked to name the person who had been demanding the same, it is stated that the employees of the witness stated that one [ENTITY] had come alongwith other officials and the said officials had written "No Parking" on the pillars at the parking site. Being averse to the practice of giving bribe, complaint was lodged with the AC Branch. Two GC notes of Rs. 500 each were handed over to the RO. Panch witness was called. Demonstration of the application and purpose of coating the GC notes with [ENTITY] powder was given and the panch witness was instructed to be present at the time of transaction of the bribe.
25. At 11:30 am., the raiding team left in Govt. vehicle for Sewa Kendra, NDMC, Hanuman Road. The members of raiding team took their strategic positions while the complainant and panch witness went inside the Sewa Kendra where [ENTITY] was found sitting. It is testified that the complainant tried to give the treated GC notes to the accused but the accused refused to accept and he tried to keep the GC notes in the drawer of the table of the accused, fearing that if the said amount was not given to the accused the complainant would be harassed. The panch witness gave the signal and the raiding team apprehended the accused. The hand wash of the accused was taken, as was the drawer of the table. Serial numbers of the GC notes were tallied and on being found identical, they were seized vide seizure memo Ex.PW9/C. Washes of both hands of the accused was taken, the same turned pink and therefore the wash were preserved, sealed and identified. Papers were also seized from the drawer. The case property has been identified.
26. The witness was cross examined by the prosecution wherein it is testified that, as per the complaint, the accused had come to the site and had got "Free Parking" written on the pillars and it is testified that the accused demanded Rs. 2000/ for running the parking site which was reduced to Rs. 1000/. It is through his employees that he came to know of this fact. The witness was cross examined at length by the counsel for accused.
27. The testimony of the complainant, seeking to inculpate the accused for accepting the bribe for removing the "Free Parking" label and permitting the complainant to run the parking space, has vacillated but as a witness has also stated that the bribe amount was accepted. It cannot be clearly determined from the testimony of the complainant whether the accused had accepted the bribe amount or whether the same had been foisted on him per force. For the said purpose, the testimony of PW10 [ENTITY] has to be scrutinized who was the panch witness on the relevant date. It is testified by PW10 that on 9.10.2001, he had reported to the AC Branch at 10:15 am where one [ENTITY] had lodged a complaint Ex.PW9/A in regard to bribe demanded by one JE of NDMC for allowing the complainant to run the parking. After the initial narration of the process and the demonstration of the purpose and consequences of the application of [ENTITY] powder on the GC notes, it is testified that the raiding party left for service center, NDMC, Hanuman Road, Connaught Place at about 12:15 pm.
28. In the presence of the panch witness, the complainant requested the accused to remove the "No Parking" board as he was suffering loss. The accused thereafter asked the complainant to fulfill his part. At this the complainant took out the GC notes and kept the same in the drawer of the table of the accused. But the accused refused. Even then the complainant kept the GC notes in the drawer of the accused. It is testified that the accused tried to return the GC notes to the complainant and it was in the intervening period that the panch witness gave predetermined signal and the raiding team descended on the accused and apprehended him. Hand wash etc. was taken which gave positive result as was the paper kept in the drawer which also tested positive for the presence of [ENTITY]. Case property has been identified. The witness was crossexamined by the prosecution also but the witness has maintained that the accused did not demand or accept the bribe.
29. In the crossexamination, the panch witness has maintained that he had come out of the room of the accused to tell the Raid Officer that the accused was not accepting the money. Despite the said fact, the raid officer entered the room of the accused and apprehended him and took the accused to the Anti Corruption Branch where all the writing work was done.
30. From the entirety of the evidence that has come forth, it manifests that the complainant [ENTITY] PW9 himself has not alleged that the accused had demanded the bribe. In fact, it is testified that he had offered the same but the accused had refused to accept. Despite the said fact, the complainant had placed the same in the drawer of the table of the accused per force. The factum of denial of demand also manifests from the testimony of PW10 the panch witness wherein he has corroborated the fact that accused did not demand and it was the complainant who had placed the GC notes despite the denial of the accused. And further more it was for the said purpose that he had come out of the room to tell the raid officer that the accused was not accepting the bribe but the raid officer nevertheless apprehended the accused and thereafter the accused was brought to the A.C. Branch.
31. As regards the coloration of the hand wash manifesting the presence of [ENTITY] on the hands of the accused is concerned, in this regard the panch witness PW10 has testified that the GC notes were sought to be returned by the accused to the complainant and hence the presence of [ENTITY] on the hands of the accused.
32. The law, in regard to the demand and acceptance of bribe is concerned, requires that there should be a voluntary act of demand and acceptance. Law does not recognize the complainant thrusting the GC notes into the hands or the pocket of the accused which cannot be said to be a voluntary act of acceptance and hence this act would not be sufficient to inculpate the accused.
33. The purpose for which the bribe was sought to be given to the accused is also suspect as neither the complainant nor the prosecution has placed on record the area which was given on contract to the complainant to run his parking. It cannot be said that the complainant for his demand of increasing the area of his Parking lot would bribe the accused. In fact PW10 has testified that the complainant had wanted the accused to remove the "No Parking" sign from the pillars which would itself be illegal and it is a distinct possibility that the accused had been entrapped to accede to the demands of the complainant.
34. The testimony of PW12 Inspector [ENTITY] who was the Raid Officer on the relevant day has also testified contrary to the case of the prosecution, that is, he has testified that the accused had demanded a sum of Rs.2,000/ for removing the board of "free parking". The said amount was reduced to Rs.1,000/.
35. After initial demonstration of the purpose of coating the GC notes with [ENTITY] the raiding party left for NDMC office, Connaught Place. The panch witness and the complainant were given instructions to give the GC notes on specific demand and further more after the transaction the panch witness was required to give pre assigned signal.
36. At about 1.00 p.m. signal was received by the RO and as per PW12 the panch witness had stated that the accused had accepted the bribe of Rs.1000/ and had kept the same in drawer. The accused was challenged and the money was retrieved. Hand wash as well as wash of the paper lying in the drawer were also obtained. The same were sealed, identified and preserved. [ENTITY] was sent and the accused was apprehended and handed over to the IO.
37. The testimony of PW12 [ENTITY] is some what perfunctory in nature as despite the position of accused the RO has shown him to be visible by the raiding party.
38. Where the evidence of the complainant as well as the panch witness do not reflect any demand there cannot be any case by mere proving the recovery of the amount from the accused. In the present case, neither the complainant nor the shadow witness have supported the case of the prosecution and there is no proof that the accused had voluntarily accepted the bribe ([PRECEDENT]). In consequence the factual matrix does not support the case of the prosecution. Hence there is no case that can be said to be made out against the accused. But the case of the accused is also required to be tested on the anvil of legal precedents.
39. The meaning of the word "accept" as per Oxford English Dictionary is to "take or receive (a thing offered) willingly, or with consenting mind : to take formally (what is offered) with contemplation of its consequences and obligations." On the other hand,the word "obtain" as per Oxford English Dictionary, would mean (a) to come into possession or enjoyment of (something) by one's own effort, or by request (b) to procure or gain, as the result of purpose and effort, hence generally, to acquire, get". Thus both the words, "accept" and "obtain" signify an active conduct on the part of the person in accepting or obtaining a thing. Thus if something is thrust into the pocket of a person without his consent and without a request from his side it would not be an acceptance or obtainment of the said thing on the part of the person in whose pocket the same is inserted or thrust, within the meaning of [SECTION] of the Act. [PRECEDENT].
40. SCC In the case M.K.Harshan Vrs. [ENTITY] of Kerala 1996 (11) 7201, where the tainted money was kept in the drawer of the accused who denied the same and said that it was put in the drawer without his knowledge, it has held that: " it is in this context the courts have cautioned that as a rule of prudence, some corroboration is necessary. in all such type of cases of bribery, two aspects are important. firstly, there must be a demand and secondly there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence.
Therefore, the other aspect, namely, acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification. Unfortunately, on this aspect in the present case we have no other evidence except that of PW1. Since PW1's evidence suffers from infirmities, we sought to find some corroboration but in vain.
There is no other witness or any other circumstance which supports the evidence of PW1 that this tainted money as a bribe was put in the drawer, as directed by the accused. Unless we are satisfied on this aspect, it is difficult to hold that the accused tacitly accepted the illegal gratification or obtained the same within the meaning of [SECTION] of the Act, particularly when the version of the accused appears to be probable".
41. In the instant case the situation is more clear than in the cited case as both the complainant and the Panch Witness have testified that the accused had refused to accept the bribe amount in as much as the complainant has testified that he feared that if he did not pay the said amount to the accused, he would be harassed.
42. It is settled law that in order to substantiate its case, the prosecution has to prove beyond reasonable doubt that there was a demand of illegal gratification and in consequence the bribe was accepted by accused. Unless the same is proven on record beyond reasonable doubt, the ingredients of [SECTION] of the [ACT] is not fulfilled.
43. Applying the said yardstick, where the only testimonies available to the prosecution are that of the Raid Officer and the Investigating Officer, it would not be prudent to believe the prosecution but disregard the testimony of [ENTITY] (PW10) who has demolished the case of the prosecution. There is no denying the fact that a complaint had been lodged or for that matter raid was conducted but as testified by PW9 the complainant there was no incident of demand of any bribe and the law in this regard is explicit that a demand is imperative for inculpating the accused.
44. The Hon'ble Supreme Court in Subash Parbat Sonvane Vs. [ENTITY] of Gujarat, AIR 2003, SC 2169 has held that:
"Mere acceptance of money without there being any other evidence, would not be sufficient for convicting the accused u/[SECTION] and [SECTION]. The legislature has specifically used the word "acceptance" or "obtains". As against this, there is a departure in the language used in [SECTION] and it has been omitted the word acceptance and as emphasized the word "obtains".
Further the ingredients of sub clause no.
1 are the corrupt and illegal means.
Therefore for convicting a person u/[SECTION], there must be an evidence on record that accused obtains for himself or for any other person any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant or he obtains from any person any valuable thing or pecuniary advantage without any public interest".
45. Further in [PRECEDENT], it has been specifically held that:
"Mere demand itself had not been proved and in the absence of proof of the demand, the question of raising the presumption would not arise".
46. Evidence has also come on record that the GC notes were recovered from the drawer of the table and as per PW9 the accused had not accepted the bribe but the same were kept in the drawer of the table of the accused and it was at that juncture the accused was apprehended. PW10, who was incorporated as a witness for corroboration purposes, has testified that the accused had refused to accept the GC notes, despite the said fact, the same had been kept in the drawer of the table. It is at this juncture that the accused is stated to have sought to return the GC notes to the complainant and it was then that the [ENTITY] was transferred to the hands of accused giving positive result of presence of [ENTITY].
47. The denial of PW10 to the effect that the accused had demanded or accepted the GC notes and the mere presence of tainted GC notes in the drawer would not suffice in inculpating the accused in the circumstance of the present case. The evidence lacking of the entire requirement of the fact of demanding and accepting bribe, it cannot be said that the prosecution has been successful in inculpating the accused of offence u/[SECTION] of [ACT].
48. In [ENTITY] of Lokayuktha Police Mandya Vs. K.M. Gangadhar, 2008(3) Crimes 532 (Kar) the Karnataka High Court was pleased to hold:
Find that complainant [ENTITY], examined as PW1,has failed to support the prosecution case by deposing to the effect that the accused did not demand any money nor talk anything about the money and also says that even when the complainant tendered the currency notes,the accused refused to take them and they were kept in the table drawer of the accused. Thus the evidence of PE1 fails to establish the first ingredient of demand being made by the accused.
The rest of the evidence on record,though brings out the fact of the currency notes being recovered from the pocket of the accused and his hands being tested positive,yet they themselves are not sufficient to hold that the accused did demand illegal gratification of Rs.500/ from the complainant and received the same. Since the complainant and the shadow witnesses do not speak about the demand made by the accused ,I am of the view that the evidence of the other witnesses placed on record cannot in any way help the prosecution in order to establish the demand made by the accused .
The trial court has, therefore, considered, the position in law by referring to various decisions of the Apex Court in this regard and the view taken by the trial court cannot be said to be an unreasonable view of the material on the record. The decisions referred to by the learned Counsel for the respondent are also in support of the findings recorded by the trial court. Once the demand is not proved and the complainant and the prosecution case,it cannot be said on the basis of mere recovery of the currency notes from the pocket of the accused that the prosecution has proved its case beyond all reasonable doubt.
49. In Suresh Kumar Shrivastava vs [ENTITY] of M.P 1994 CRL, L.J. 3738 a case under [ACT], [SECTION] where allegation of bribery in a trap case was made but no evidence was led that accused either demanded bribe or voluntarily accepted it at the time of trap. Mere recovery of money from accused was found to be not sufficient to raise any presumption against him in absence of motive on part of accused either to demand or to accept bribe,which rendered the prosecution story doubtful. Conviction of accused for offence under [SECTION], [ACT] and [SECTION] of Act was held to be not proper.
50. Furthermore, the Supreme Court of India, in [CASE NUMBER] (Arising out of [CASE NUMBER]) titled as [ENTITY] of Maharashtra vs. Dnyaneshwar Laxman Rao Wankhede held that : It is, therefore, highly doubtful that the version of the complainant was true. It is in the aforementioned backdrop only the evidence of DW1 is to be considered. Even otherwise, in our opinion, the prosecution has failed to prove its case. It is, therefore, not a case where the High Court, as has been c6ontended by Ms. [ENTITY], has failed to take into consideration the legal implication of the provision of [SECTION] of the Act and / or placed too much reliance on the minor inconsistencies in the statements of the prosecution witnesses."
"Even in a case where the burden is on the accused, it is well known, that the prosecution must prove the foundational facts."
"it is also a well settled principle of law that where it is possible to have both the views, one in favour of the prosecution and the other in favour of the accused, the latter should prevail."
51. It was incumbent on the prosecution to lead cogent evidence and to prove the case against the accused beyond shadow of doubt. But the evidence led by the prosecution falls short and hence, it cannot be said that the accused had demanded or sought or obtained bribe from the complainant nor did the accused voluntarily accepted the bribe to be liable under the provisions of [SECTION] & [SECTION] punishable u/[SECTION] of [ACT]. Consequently the accused is discharged of the offence. He is acquitted and his surety is discharged.
File be consigned to record room.
Announced in the open court today on 29th October, 2010 ([ENTITY]) SPECIAL JUDGE (PCACT)06 [PRECEDENT] [ENTITY] Vs. [ENTITY] 29.10.2010 Present: Sh. [ENTITY], Ld. Addl. PP for the [ENTITY].
Accused on bail with counsel Sh. [ENTITY].
Vide separate judgment passed, accused is acquitted. His surety be discharged.
File be consigned to Record Room.
([ENTITY]) SPECIAL JUDGE (PCACT)06 [PRECEDENT]