Mere relation with accused cannot be ground for conviction under offences of Corruption: High Court of Delhi

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision : 15.02.2021 W.P.(CRL) 321 2021 DR. MOHIT DHAWAN Petitioner Through Mr. Sushil K. Tekriwal Adv. RAKESH ASTHANA & ORS. Respondents Through Mr. Mukul Rohatgi Sr. Adv. with Ms. Diksha Rai Ms. Devanshi Singh and Ms. Palak Mahajan Advs. for R 1 Ms. Tatini Basu St. Counsel for R Mr. Chetan Sharma ASG with Mr. Ajay Digpaul CGSC Mr. Amit Gupta Mr. Vinay Yadav Mr. Akshay Gadeock Mr. Sahaj Garg Mr. Kamal R. Digpaul and Mr. R. Venkat Prabhat Advs. for UOI Mr. Anupam S. Sharma SPP with Mr. Prakarsh Airan and Ms. Harpreet Kalsi Advs. for CBI HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENTThe hearing has been conducted through video conferencing. W.P.(CRL) 321 2021 The present writ petition has been filed by the petitioner criminal writ petition under article 226 of the Constitution of India with the following prayer: enquire Issue writ investigate and the nature of Mandamus commanding directing respondent Nos.2 & 4 jointly collectively individually and severally to forthwith adjudicate consequential criminal prosecution against respondent No.1 under Section 7 & 7A of the Prevention of Corruption Act emerging ensuing and emanating from various criminal complaint(s) filed by petitioner against respondent No.1 more particularly dated 18.9.2019 pending with respondent No.4 and 27.7.2020 17.8.2020 pending with respondent Nos.2 & 4 for more than sixteen months by now who in connivance with other police officers of Chandigarh conspired to obtain undue advantage from the petitioner with the intention to cause improperly and performance of his public duty dishonestly by himself as well as conniving with other public servants firstly by falsely and illegally implicating and intimidating the petitioner by abusing his official position through corrupt means and corrupt activities and further attempting to ·extort money through the said police officers in connivance with them in the garb of settling the matter by exercising his personal influence in contravention of various provision of Prevention of Corruption Act in order to favour the complainant Gertrude D Souza and her spouse Bryan D Souza to dispense his proximate relations he enjoys even today with this couple since years. Command by invoking writ of mandamus to respondent Nos.2 & 4 jointly collectively individually and severally subjecting them to judicial scrutiny and over inaction upon the criminal complaints of petitioner W.P.(CRL) 321 2021 for extending in perpetuity and exhibiting absolute arbitrariness inaction & mercurialness unfairness prejudices whimsical approach respondent No.1 and thus causing gravest irreparable injury to the petitioner. c) Command by respondent Nos.2 and 4 jointly collectively individually and severally petitioner for having grave threats at the hands of respondent No.1 & his accomplices he is getting in recent for providing adequate security invoking writ of mandamus The present case has long history which is evident from the complaint dated 29.10.2017 whereby one lady namely Gertrude D’Souza made complaint against the petitioner as under: “I am US citizen and had been looking for an Affordable Dentist specializing in Implants for a long time. I got to know of Avance Dental Care in Chandigarh. I called them up and was in touch with their Office Manager for a month to understand the credentials of the Dentist Dr. Mohit Dhawan. Mr. Anil his Office Manager painted an extremely rosy picture of how easy and efficiently the entire procedure of two visits would be 321 2021 mentioned that they were not properly aligned with the Bottom teeth he said never mind it s all ok. Normally there is a fitting & trial and many adjustments need to be done. ILL fitting crowns can result in pain and gum erosion. He did a Soddy & hurried job no trial or adjustments whatsoever and I had to return to the USA as is. Dr Dhawan also performed a sinus lift surgery on me without my prior knowledge and me after it was done. I was very conducer and frightened on finding out. In an effort to rectify the rest I met with a leading Dentist in the USA who said putting back the crowns in my upper jaw is absolutely futile since they are totally out of alignment with the bottom teeth and will again come off and two abutments are so loose that must be removed and the implants could fail. He suggested dentures. Dr. Dhawan should have done this in the first place. All in all I have paid $ 1500 for this after returning to the USA and I require a whole bunch of corrective work which is as good as starting all over again. The package Avance offered was a Dental Tourism Package which included the entire dental Implant procedure 5 Star Hotel accommodations return airfares for both trips and sightseeing trips to Taj Agra and Shimla with a detailed itinerary Before our arrival. However the tourism part never happened. As per the contract extractions are includedbut he overcharged me for extractions too. He also overcharged me Sales Tay which was supposed to be included in the total price. Payment had to be 100% and in Advance prior to my surgery. The office Manager preferred payment in US Dollars and cash. But I declined since Indian & US laws do not permit carrying more than US $5 000 cash. I finally paid in Indian Rupees. by cheque. We wanted to stay at The Taj Chandigarh which is one of their hotels we could choose from their Brochure. But W.P.(CRL) 321 2021 Anil insisted on the Park Plaza which he assured was a 7star hotel and far better than Taj where they put up most of their patients & has a contract. We reluctantly accepted. Upon arrival in Chandigarh Dhawan s driver could not find the hotel and turns out to be fames Hotel a 4 star) which according to them was the former Park Plaza. There was no booking in my name and a fresh one was made by Anil on arrival at the hotel. From that moment on the hotel nightmare began. Dr. Dhawan was booking hotels on a day to day basis thru some cheap third party online sites apparently to save money. Every morning the hotel reception kept reminding us that we had to check out before noon that day or be responsible for late checkout. This was very frightening humiliating. I had to change 4 hotels in 6 days because of this his frugal ways Dr. Dhawan continuously made excuses and blatantly lied for everything that went wrong including blaming me for changing hotels. Then out of the blue one of their staff called Amandeep who never in person started recording false distorted events via e mail to me. When confronted Dr. Dhawan told us not to respond to them as the e mails from Amandeep was to protect his job. I believe the intention of these e mails was to record a distorted version of the facts by Avance in the event of a lawsuit. Dhawan had also earlier mentioned that he did get a lawyer s notice from some past overseas patients. I left Chandigarh on August 20 reaching the United States on August 22. On August 24 my complete upper fell off. We crowns and abutments introduced himself W.P.(CRL) 321 2021 contacted Dhawan immediately and asked for help with his emergency Dentist s contact in New York as he promised. He told us he is unable to help us as there is a curfew and no wi fi from Aug 25 30 to retrieve his contacts in New York. Till date we have not received any contact whatsoever. On September 2 we rec d an e mail and phone call from Dhawan informing that a set of temporary dentures had already been couriered. Every Dentist knows Dentures sent by mail to a patient are useless as they are a customized fitting in his Clinic never a remote job. On Sep 4 I called Dhawan he said it would reach in 4 5 days latest on Sept 8. My repeated requests for a courier tracking number via phone and e mails were completely ignored. Finally on Sept 12 Anil emails me an airway bill confirming courier dispatch. The Airway bill is from Nitco Roadways. On checking with Nitco they said it is handwritten and they do not accept such AWE. They also confirmed they have not couriered any shipment from Chandigarh to the USA. On further investigation it was revealed the airway bill was a fake and overwritten by Avance Dental Care. A copy of the forged airway bill and confirmation of this fraud in writing from Nitco is attached. I have since taken a second option with a Dentist in the United States and was told the implants were not placer with laser precision. One of the implants has a possibility of falling off in which case more surgery would be required to correct and replace it. Everything that could go wrong has gone wrong. Since I do not have crowns nor dentures I am unable to eat speak clearly and cannot even meet people or socialize. He has just abandoned my case and my calls and e mails go unanswered. Because he taken all the money in advance and recognizes his shoddy job. fraud and unprofessional work by Dr. Mohit Dhawan and Avance Dental Care I cannot trust Doctor Dhawan nor his work the circumstances of deceit W.P.(CRL) 321 2021 anymore. I now have to look for another Dentist who can complete the implant process which will be very difficult and extremely expensive.” 3. Whereas case of petitioner is that on 07.06.2017 Laura Glowacki from USA had approached petitioner for her dental ailments & decided to visit petitioner s clinic for her treatment. On 30.06.2017 on the recommendation of Laura Gertrude D Souza & Laura Glowacki both decided to visit the petitioner s clinic for together. The complainant initiated a conversation with the petitioner via e mails regarding the queries of her ailment. Petitioner asked the complainant to send her medical dental record X rays & CBCT records on 30.06.2017 wherein the complainant showed her inclination for getting the implant for her upper jaw. From 01 to 07.07.2017 complainant via email shared her CBCT Scan images and also the details of her lower jaw implants done in 2014 2015. The petitioner sent medical questionnaire to the complainant via email and the same was filled by the complainant. Complainant requested the petitioner to resend the list of blood tests required and complainant also sent the copies of her passport & OCIto confirm her identity via email. On 19.07.2017 complainant requested the W.P.(CRL) 321 2021 petitioner to send a copy of contract wherein the petitioner along with sending the copy of the contract also sent dental implant consent form implant restoration contract & implant treatment warranty contract. On 09.08.2017 the complainant & her referral friend Laura reached Chandigarh and on 12.08.2017 finally the complainant was successfully operated for dental implants. It is the case of the petitioner that the complainant tendered a cheque No.861146 of HDFC Bank dated 13.08.2017 however wrote an e mail to the petitioner asking him not to encash the same. Further case of petitioner is that the complainant refused to make payment as agreed on the pretext that she was having relations to high profile persons and named respondent No.1 herein in particular. When she refused to pay the amount he insisted that the amount be paid. The complainant made a partial payment of INR 7 13 437 on 16.08.2018 via cheque no. 861147 of HDFC Bank Bangalore Branch Karnataka substituting the previous Cheque No. 861146. The Cheque got cleared on 19.08.2017. Thereafter the complainant made a complaint against the petitioner and on receipt of the same as alleged various officers from Sector 19 Police Station Chandigarh approached the petitioner and he W.P.(CRL) 321 2021 was taken to the Office of DSP of the area. In the petition there are allegations against the then DGP DSP and other subordinate officers of Chandigarh Police apart from the allegations against the respondent No.1. This Court put a specific query to the learned counsel appearing on behalf of the petitioner whether respondent No.1 sent any communication to petitioner or asked regarding fee of the treatment not to be received from the complainant or money to be extorted from petitioner. The counsel replied in negative however submits that the complainant and the police officers of the Chandigarh police station disclosed the name of respondent No.1 and harassed the petitioner to extort the amount. It is not in dispute that against the police officers of Chandigarh the petitioner has filed petition under Section 156 Cr.P.C. which is pending adjudication and in the said petition there are specific allegations made against respondent No.1 herein but not made party therein. Learned counsel for petitioner submits that since there are allegations of anti corruption against the respondent no.1 therefore he did not file the petition under Section 156Cr.P.C. for registration of FIR against the Respondent no. 1 as it is not maintainable. But the fact W.P.(CRL) 321 2021 remains that petitioner made allegations against other police officers of Chandigarh Police Station including DSP and Director General of Police regarding harassment threat and demand of bribe but there is no explanation as to why he has not made respondent no.1 a party in the said petition filed under Section 156Cr.P.C. It is also not in dispute that the complainant along with her friend came all the way from USA to get treatment from the petitioner and when complainant was not satisfied she did not pay the full amount and thereafter when she developed problems with her implants as mentioned in her complaint she made a complaint asking for the refund of money paid by her. Undisputedly the respondent was not posted at Chandigarh at the relevant time the said officers and the DSP were not under the control of CBI. Respondent No.1 was posted in Delhi and there is no documentary proof whereby it is established that respondent No.1 ever had contacted the petitioner or sent any communication to the officers at Chandigarh. Everything started when the complainant made a complaint against the petitioner which resulted in registration of FIR No.76 2018 against petitioner for the offences punishable under Sections 420 467 468 & 471 W.P.(CRL) 321 2021 IPC. Though the petitioner has made a complaint dated 18.09.2019 to CVC against the respondent no. 1 which was referred to CBI vide its communication dated 18.03.2019 and counsel appearing on advance notice on behalf of CBI on instructions has stated at bar that CBI Office Delhi has no pending complaint filed by the petitioner since the alleged incident has taken place in Chandigarh therefore the said complaint was sent to the Chandigarh Office. In that account the present writ petition is not maintainable before this Court. In addition to above case of petitioner is that he made complaint to CVC and as per law CVC is bound to take action and decide the complaint made by the petitioner against the respondent No.1. 11. On perusal of the petition and after hearing learned counsel for the petitioner there is no iota of evidence which establishes that the respondent No.1 had ever influenced police officers at Chandigarh by any communication. It is the presumption of the petitioner that since respondent no. 1 is known to the complainant he might have influenced the police officers and authorities due to which the petitioner was harassed and threatened. If it is presumed that the complainant is known to the respondent No.1 W.P.(CRL) 321 2021 and if something wrong has happened with her and respondent No.1 had suggested her to take appropriate action in that eventuality the respondent No.1 has not committed any offence. If the said respondent had misused his power being an officer of CBI then certainly action is warranted against the said respondent. A complaint which has been filed before the Divisional CVC and thereafter sent to CBI but has no relevant material on record such authority would not be able to take any action against respondent No.1. 13. However without commenting much on the fact that the petitioner filed petition after petition even up to the level of the Hon’ble Supreme Court of India and the same was dismissed as withdrawn I am of the view as per the complaint no action is warranted upon respondent No.1 and the petition seems to be motivated due to some vindictive purpose. 14. Therefore I hereby find no merit in the present petition and the same is accordingly dismissed with a cost of Rs.20 000 to be paid by the petitioner in favor of Delhi High Court Legal Services Committee within two weeks from today failing which the Registrar General of this Court shall take steps to recover the said amount as per law. W.P.(CRL) 321 2021 FEBRUARY 15 2021 15. The order be uploaded on the website of this Court forthwith. SURESH KUMAR KAIT) W.P.(CRL) 321 2021 

Summary: When court has to decide whether an officer is liable to be charged under laws of corruption for committing bribery, it cannot base its decision merely on a presumption because there has been some sort of acquaintance between the accused and the officer. This was decided in the case of Mohit Dhawan Vs. Rakesh Asthana &amp; Ors [W.P.(CRL) 321/2021] in The High Court Of Delhi by Hon’ble  Justice Suresh Kumar Kait. The facts of the case are that a lady from USA, had approached petitioner for her dental ailments &amp; decided to visit petitioner’s clinic for her treatment. On the recommendation of this lady, Gertrude (complainant in this case) decided to visit the petitioner’s clinic for their treatment together. The complainant initiated a conversation with the petitioner via e-mails regarding the queries of her ailment. Petitioner asked the complainant to send her medical/dental record, X-rays &amp; CBCT records wherein the complainant showed her inclination for getting the implant for her upper jaw. The petitioner sent medical questionnaire to the complainant via email and the same was filled by the complainant. Finally, the complainant was successfully operated for dental implants. It is the case of the petitioner that the complainant tendered a cheque. The complainant refused to make payment as agreed on the pretext that she was having relations to high profile person. The complainant made a complaint against the petitioner and on receipt of the same as alleged; various officers from Police Station, Chandigarh approached the petitioner. In the petition, there are allegations against the then DGP, DSP and other subordinate officers of Chandigarh Police apart from the allegations against the respondent. The counsel for the petitioner submitted that the complainant and the police officers of the Chandigarh police station disclosed the name of respondent No.1 and harassed the petitioner to extort the amount. He further contended that since there are allegations of anti-corruption against the respondent, therefore, he did not file the petition under Section 156 (3) Cr.P.C. for registration of FIR against the Respondent, as it is not maintainable. The court observed that it is the presumption of the petitioner that since respondent is known to the complainant, he might have influenced the police officers and authorities, due to which the petitioner was harassed and threatened. If it is presumed that the complainant is known to the respondent and if something wrong has happened with her and respondent had suggested her to take appropriate action in that eventuality, the respondent has not committed any offence. If the said respondent had misused his power being an officer of CBI, then certainly action is warranted against the said respondent.