Crl.App. 15/2007 & 4/2007 Page 1 of 32 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.App. 15/2007 % Date of reserve: 17.03.2009 Date of decision: 02.04.2009 YOGESH KUMAR … APPELLANT Through: Mr.Ramesh Gupta, Advocate Versus STATE ...RESPONDENT Through: Mr. Navin Sharma, APP for state WITH + Crl.App. 4/2007 NEERAJ DUTTA … APPELLANT Through: Mr. K.K.Sud, Sr. Advocate with Mr. Ramesh Gupta, Advocate Versus STATE ...RESPONDENT Through: Mr. Navin Sharma, APP for state CORAM: HON’BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes MOOL CHAND GARG, J. 1. This order shall dispose of the aforesaid two appeals which arise out of the common judgment dated 13.12.2006 delivered by the Special Judge in CC No. 48/01, whereby the Special Judge has Crl.App. 15/2007 & 4/2007 Page 2 of 32 convicted the appellant, Yogesh Kumar, under Section 12 of the Prevention of Corruption Act, 1988 (hereinafter referred to as “the Act”) and appellant, Neeraj Dutta under Section 7 & 13(2) of the Act. Thereafter, vide order dated 14.12.2006, the Special Judge sentenced Yogesh Kumar to undergo RI for two years and to pay a fine of Rs.10,000/- and in default of payment of fine to undergo SI for three months, while Neeraj Dutta, has been sentenced to undergo RI for three years and a fine of Rs. 15,000/- and in default of payment of fine to undergo SI for six months, under Section 13(2) of Act, she has been further sentenced to undergo R.I. for 2 years & fine of Rs. 5000/- & in default S.I. for 4 weeks. 2. The genesis of the prosecution‟s case lies in the complaint Ex.PW5/A recorded by Inspector O.D. Yadav (PW6) on 17.4.2000 which has been made by Shri Ravijit Singh before the Anti Corruption Branch (ACB) which was signed not only by the complainant but also by the shadow witness PW-5, Shri S.K.Awasthi, who has proved the complaint before the trial court. It reads as under:- “I am doing business of sale purchase of cars at Shop No. A-71, Vikas Puri, New Delhi for the last 8 years by the name and style of M/s Sethi Motors and in that shop there was no electricity meter installed and on 6.5.1995 I applied for the meter and electric meter bearing K.No.133158 was installed and after few months, I noticed that electricity meter was not there and that Ms.Neeraj Dutta had got the electric meters of several persons installed in that market and I also met her and today on 17.4.2000 at about 7.30 am. I received a telephone call from Ms.Neeraj Dutta, who is Inspector of DVB in Janak Puri area, and she told me to meet her at her home if I wanted to get installed an electricity meter. I reached at her home at about 8.00 am in the morning and Ms.Neeraj Dutta demanded Rs.15,000/- cash for installation of electric meter and finally she agreed to accept Rs.10,000/- and Ms.Dutta told me to get ready the electricity bill papers and Rs.10,000/- as bribe and she will come between 3.00 to 4.00 pm at my shop to collect the same and thereafter within three days my electric meter would be installed. I agreed to pay the bribe on account of duress. I am against taking and Crl.App. 15/2007 & 4/2007 Page 3 of 32 giving bribe, I have no grudge against Ms. Neeraj Dutta nor have any dealings with her. Legal action be taken. I have brought the bribe amount of Rs.10,000/- with me”. Sd/- Sd/- Sd/- Complainant S.K. Awasthi 3. On the basis of the aforesaid complaint, PW6 the raid officer recorded pre-raid proceedings Ex.PW5/B which also bear the signatures of PW-5 Shri S.K. Awasthi. At that time, the money brought by the complainant to the tune of Rs. 10,000/- in the form of 20 GC notes of Rs. 500/- each, was also taken into possession vide Ex.PW5/C after treating the same with phenolphthalein powder & was given back to the complainant, after explaining him the procedure to be followed. A raiding party was constituted of which PW-5, 6 and 7 are the important members. PW-5 accompanied the complainant, who offered Neeraj Dutta the amount of Rs. 10,000/- as demanded which amount was then given transferred by Neeraj Dutta to Yogesh Kumar at the same time. On the signal given by the shadow witness the raiding party then came inside the shop where the incident happened and recovered the aforesaid sum from Yogesh Kumar & put the hands of both Yogesh Kumar and Neeraj Dutta in the sodium carbonate solution brought by the raiding party, which turned pink. Thereafter, FIR No.21/2000 was registered against both the appellants. After completing the investigation, the prosecution filed the challan & obtained sanction from PW-1, the sanctioning authority vide Ex.PW1/A. The Special Judge framed charges under Section 7 and 13(2) of the Act against Neeraj Dutta and under Section 12 of the Act against Yogesh Kumar. No charge of conspiracy was found. Crl.App. 15/2007 & 4/2007 Page 4 of 32 4. In order to prove its case the prosecution examined seven witnesses. PW-1 N.P. Singh is the sanctioning authority who proved the sanction Ex.PW1/A. PW-2 T.N. Sethi is a formal witness who produced the service record Ex.PW2/B seized vide seizure memo Ex.PW2/C. PW3 to 5 are formal witnesses regarding the deposit of hand-wash & other exhibits, which was later on transferred to Malkhana. PW-5 Shri S.K. Awasthi is the most important witness as he acted as a punch witness and remained a shadow witness throughout the proceedings right from the time the complaint was made as Ex.PW5/A and was recorded. The demand was made and the money was accepted by Neeraj Dutta, transferred to Yogesh Kumar and was seized and further collection of hand-wash from Yogesh Kumar & Neeraj Dutta. The next witness is Inspector O.D.Yadav, PW-6, who acted as a raid officer which PW-7 ACP Niranjan Singh investigated the matter. At the relevant time he was only an Inspector. 5. Neeraj Dutta in her statement under Section 313 Cr.P.C. has stated that she neither demanded nor accepted any money from the complainant in the form of bribe and stated that she was falsely implicated in this case. However, she also said: “On 17.04.2000 I was posted and working as LDC in DVB in the office at Janak Puri District. On the said date, I was busy in my official duty in a collection camp organized by my department to collect dues from the consumers. In the afternoon of the day in question, I received a telephonic message on my mobile phone from the complainant Ravjit Singh Sethi, deceased wherein he asked me to come his shop as he needed my help in getting the electricity charges deposited. He was living and doing his business in the vicinity where I am residing along with my family. I knew him since I have transacted sale of Maruti Esteem car and purchase of Maruti 800 through him. I reached at the shop of the complaint on 17.04.2000. The complainant met me there. He handed over electricity bill along with a bundle of GC notes requesting me to deposit the said amount in the DVB office. I told him that he could give Crl.App. 15/2007 & 4/2007 Page 5 of 32 the bill and money next day for depositing in DVB but he again and again requested me. At the time co-accused Yogesh Kumar was also there and I handed over to him the bill and the money for depositing the same in DVB.” 6. Neeraj Dutta also examined defence Witnesses. DW-1 who has proved a copy of the demand note Ex.DW1/A which shows that a demand note was issued to the complainant in the sum of Rs.10,515/- for sanctioning additional load in connection with electricity meter No. K 813-133-1580. A Police constable, who appeared as DW2 placed on record copy of the order dated 30.01.2003 declaring Ravijit Singh a bad character. Dharamvir Singh DW3 a constable placed copy of the FIR No. 636/92 as EX.DW3/A while DW4 Had Constable Satyawan placed on record list of 7 cases registered against Ranjit Alias Happy son of Avtar Singh vide Ex.PW5/A. He also placed copy of the FIR No. 471/01 which are exhibits DW5/A and DW5/B. 7. Before the Trial Court it was contended that as she was neighbour of the complainant, and had also sold her car through him, on the day of the raid she with her driver (co-accused Yogesh Kumar) after collecting the dues from the consumer in the camp organized by DVB, went to the shop of the complainant, only because, the complainant wanted her to deposit the electricity bill amount of the complainant. In this regard complainant handed over his electricity bill along with money to deposit the same in DVB which was received by her along with a bill and she handed over the same to co-accused Yogesh Kumar for depositing the same with DVB. Accordingly it was submitted that the defence of accused disclosed in her statement under Section 313 Cr.P.C. was probable whereas evidence of the prosecution was not beyond reasonable doubt. It was further submitted that there were discrepancies about her designation in the Crl.App. 15/2007 & 4/2007 Page 6 of 32 complaint Ex.PW5/A, where she has been referred to as Inspector of DVB whereas she was only an Assistant. It was also stated that since the electricity bill was not taken into possession at the time of the raid and was taken into possession subsequently by PW7 it shows that the case of the prosecution was highly improbable. 8. Appellant Yogesh Kumar has denied having received any bribe money from the complainant and stated that he was only a driver and his services were engaged on day-to-day basis by Neeraj Dutta. He also stated that even on 17.04.2000 he was engaged for a sum of Rs.100/- & that in his presence no conversation took place between the complainant and Neeraj Dutta. According to him, when he entered the shop with Neeraj Dutta the complainant handed over Rs. 10,000/- along with the bill for depositing the same with DVB later to Neeraj Dutta which was later given to him by Neeraj Dutta. It was also submitted that he has simply gone to the spot at the call of the co- accused and he was neither a public servant nor there is any charge of conspiracy and therefore there was no question of convicting him under Section 12 of the Act. 9. However, the Special Judge has believed the case of the prosecution in the light of the complaint Ex.PW5/A and deposition of the witnesses examined by the prosecution and recovery of Rs. 10,000/- from Shri Yogesh Kumar to whom admittedly the said amount was handed over by Neeraj Dutta soon after it was received by her from the complainant. It comprised of same GC Notes which were given to complainant after treatment and the same was taken into possession vide Seizure memo Ex.PW5/C, while the other documents Crl.App. 15/2007 & 4/2007 Page 7 of 32 including the electricity bill was later on taken into possession and was marked as PW7/1. Later exhibited as PW7/A. It was held: 20. It becomes crystal clear from the oral as well as documentary evidence on record that the electricity bill Ex.PW7/1 was not given by the complainant along with the recovered money to accused Neeraj Dutta. Mere assertion of accused Neeraj Dutta of receiving electricity bill (Ex.PW7/1) along with recovered money and similar assertion of co-accused Yogesh Kumar of receiving the electricity bill Ex.PW7/1 along with recovered money from his co-accused cannot be accepted on the face of it as nothing has been brought out by the defence in the cross-examination of material witnesses to substantiate the above assertion of both the accused. This exposes the hollowness of the defence version. 10. The special Judge thus disbelieved the defence of the appellant NeeraJ Dutta and observed, that if the money was to be paid for payment of bills, there is no reason as to why the payment of full amount which was required to be paid i.e Rs. 10,157 was not paid and only Rs. 10,000/- were paid. He also stated that there was clinching evidence of panch witness PW5 and raid officer PW6 and, thus, convicted her. 11. The Special Judge also held appellant Yogesh Kumar guilty under Section 12 of the Act, by making following observations: 22. As regards accused Yogesh Kumar is concerned, I find that he was hand in glove with his co-accused in committing the offence in question by abetting it, otherwise there was no occasion for his accompanying co-accused up to the spot and being present near his co- accused up to the spot and being present near his co- accused as he claims himself to be a mere daily wager driver who was on duty with co-accused on that day only. Had accused Yogesh Kumar been a mere daily wager driver then he would have in normal course remained in the car and would not have come to the spot. It is not the case of this accused Yogesh Kumar that he was called to the shop of the complainant by his co-accused or anyone else to count the money. The plea of accused Yogesh Kumar of being mere daily wager driver cannot be accepted on its face because there is a unchallenged evidence of the Investigating Officer (PW7) to the effect that accused Yogesh had disclosed during interrogation that he was a small time contractor and he gets the work of people done by going to the DVB office. This appears to be more probably as the stand of his co- Crl.App. 15/2007 & 4/2007 Page 8 of 32 accused is that she had handed over the recovered GC notes for depositing the same with DVB. 12. The Special Judge convicted the appellants and sentenced both of them as aforesaid. The aforesaid Judgment of conviction and order of sentence has been assailed by the appellants before this Court on various grounds as mentioned in the Memorandum of Appeals filed separately. 13. In support of the appeal of Yogesh Kumar, Shri Ramesh Gupta his counsel has made the following submissions: I. That in the complaint Ex. 5/A neither any allegation has been made against Yogesh Kumar nor his name appears therein. Therefore, even if the convicting court took the complaint as proved in evidence yet as far as the appellant is concerned he is not involved in demanding the bribe nor he was present at the time of demand of bribe. II. That before convicting a person under the Act it should be proved that he was involved in demand and acceptance of bribe or he should be involved in abetting the demand or acceptance of bribe. III. The material witness, according to prosecution was shadow witness, who accompanied the complainant at the time of giving of bribe who appeared as PW-5 S.K. Awasthy. In his examination in chief at internal page 2 last line he has mentioned “at about 5.20 PM one lady along with one person came to the shop of the complainant. Their names were revealed as Mrs. Neeraj Dutta and Yogesh. Mrs. Neeraj Dutta asked the complainant that she was in a hurry and they should go to the car to discuss/ talk but complainant replied that he will talk in the shop. Mrs. Neeraj Dutta asked the complainant to give papers regarding his electricity meter and Rs. 10,000/- to her as she was in a hurry. Complainant handed over the documents of his electricity meter and treated GC notes of Rs. 10,000/- to Mrs. Neeraj Dutta in her right hand after taking the same out of left pocket of his shirt. Mrs. Neeraj Dutta handed over said GC notes to his associate Yogesh Kumar to count and she told the complainant that his work would be done.” In his cross on page 6 he answers the first question that accused Neeraj Dutta was addressing complainant Sethi as „Bhai Sahib I am in a hurry and complainant should deliver the papers and money to her. Even if the statement of this witness is treated to be true on all count no where he alleges that Neeraj Dutta asked the complainant to give bribe money or complainant stated that he had given bribe money then how Yogesh Kumar, Appellant, would know that Rs. 10,000/- was bribe money which was accepted by Mrs. Neeraj Dutta. Therefore, the entire case taken is true Crl.App. 15/2007 & 4/2007 Page 9 of 32 against Yogesh Kumar lacks basic ingredients of offence that money which was received by Neeraj Dutta and handed over to Yogesh Kumar was demanded and received as bribe money. IV. That there is no allegation that Yogesh Kumar intentionally aided and abetted the crime of demand and acceptance of money. The offence was completed when Neeraj Dutta accepted the money which was handed over to her and till that time appellant had no role to play whatsoever. 14. He also cited a judgment delivered in the case of Dilip Kumar Vs. State & Anr. 2006 (3) JCC 1590 where the proceedings were quashed after the complainant died and before recording of his evidence which comes also under the Prevention of Corruption Act. 15. It has also been submitted that the Special Judge has committed error in holding Yogesh Kumar guilty as an abettor by invoking the provisions of Section 12 of the said Act. In this regard he also made a reference to provisions of Section 107 IPC where the abetment has been defined. The said provision reads as under: 107. Abetment of a thing:-A person abets the doing of a thing, who- First: -Instigates any person to do that thing; or Secondly: -Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly: -Intentionally aids, by any act or illegal omission, the doing of that thing. 16. It is submitted that in view of the provisions contained under Section 107 IPC none of the ingredients which proves abetment have been proved on record by the prosecution. He also submitted that in the present case it was neither the case no evidence has come on record to show that Yogesh Kumar had any role in either demanding the bribe or accepting the bribe from the complainant. Merely because the money was passed over to him by Neeraj Dutta cannot prove that either he was a co-conspirator or was an abettor more so when no Crl.App. 15/2007 & 4/2007 Page 10 of 32 charge under Section 120B IPC has been proved against him. In this regard, he also relied upon judgment delivered in the case of Shri Ram Vs. the State of UP reported as 1975 Crl.L.J. 240 where it has been held: “In order to constitute abetment, the abettor must be shown to have “intentionally” aided to commission of the crime, Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirement of Section 107. A person may, for example, invite another casually or for a friendly purpose and that may facilitate the murder of the invitee. But unless the invitation was extended with intent to the person inviting cannot be said to have abetted the murder. It is not enough that an act on the part of the alleged abettor happens to facilitate the commission of crime. Intentional aiding and therefore active complicity is the gist of the offence of abetment under the third paragraph of Section 107.” 17. Reliance has also been placed upon the judgment delivered by the Hon‟ble Supreme Court in the State of Madhya Pradesh Vs. Mukesh and Ors. (2007) 2 SCC (Cri) 680 where it has been held that: “A person, it is true, abets by aiding, when by any act done either prior to, or at the time of, the commission of an act, he intends to facilitate and does in fact facilitate, the commission thereof would attract the third clause of section 107 of the Penal Code. Doing something for the offender is not abetment.” 18. Similarly, while referring to the judgment delivered in the case of Trilok Chand Jain Vs. State of Assam AIR 1959 SCC 673 it has been submitted that: “to aid the commission of the crime is the gist of the offence of abetment by aid. Such intention on the part of the appellant was lacking in this case.” 19. Having scrutinized the evidence available on record, I do not find that any role was assigned to Yogesh Kumar when the complaint Ex.PW5/A was made by deceased Ravijit Singh. Even in the evidence of the raiding officer including the IO nothing has come to show that the Crl.App. 15/2007 & 4/2007 Page 11 of 32 appellant Yogesh Kumar was a co-conspirator of Neeraj Dutta or was hand in glove with her in having demanded the bribe or in having accepted the bribe. Thus, I find that in so far as this appellant is concerned there being no evidence either to prove conspiracy or to prove abetment, his conviction under Section 12 of the Act cannot be sustained. Accordingly, this appellant is entitled to acquittal. 20. Now coming to the case of Neeraj Dutta, learned senior counsel appearing for her had assailed the judgment of conviction & order of sentence inter alia on the following grounds: (i) Neither Inspector O.D.Yadav nor ACP Niranjan Singh (at that time Inspector) was authorized to investigate this matter in view of the bar contained under Section 17 of the Act, which reads as under: 17 - Persons authorised to investigate:- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 ( 2 of 1974), no police officer below the rank,— (a) in the case of the Delhi Special Police Establishment, of an Inspector of Police; (b )in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan areanotified as such under sub-section (1) of section 8 of the Code of Criminal Procedure, 1973 (2 of 1974), of an Assistant Commissioner of Police; (c) elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank,shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant: Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor without a warrant: Provided further that an offence referred to in clause (e) of sub-section (1) of section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police. Admittedly neither of them was either in the Crl.App. 15/2007 & 4/2007 Page 12 of 32 rank of ACP nor were authorized to investigate the matter by the State Government specifically. (ii) The investigation of the case was not done properly inasmuch as there is no explanation as to what happened to the electricity bill which according to the complainant was to be handed over to Neeraj Dutta at the time of payment of the bribe. Admittedly, neither such bill has been recovered from Neeraj Dutta nor any such bill was treated with phenolphthalein powder. It is submitted that