| SooperKanoon Citation | sooperkanoon.com/1258719 |
| Subject | Land Acquisition |
| Court | Delhi High Court |
| Decided On | May-14-2026 |
| Case Number | CRL.A./179/2004 |
| Judge | Hon'Ble Ms. Justice Chandrasekharan Sudha |
| Appellant | Sunil Kumar |
| Respondent | STATE |
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 11.05.2026
+ CRL.A. 179/2004 SUNIL KUMAR .....Appellant Through: Mr. K.N. Balgopal, Sr. Advocate with Mr. Yash Bhushan Aggarwal, Mr. Athar Alam, Mrs. Sumbul Athar, Mr. Vilao Kense, Ms. Nitiya Nambiar and Mr. Lungnim A Shihak, Advocates.
STATE .....Respondent Through: Mr. Utkarsh, APP for State with SI Bheem Singh, P.S. A.C.B, GNCTD, Delhi.
1. In this appeal filed under Section 374(2) of the Code of
Criminal Procedure, 1973, (the Cr.P.C.) the sole accused, in C.C.
No. 117/1994 on the file of the Special Judge, Delhi, assails the
13.02.2004 as per which he has been convicted and sentenced for
the offences punishable under Sections 7 and 13(2) read with
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Section 13(1)(d) of the Prevention of Corruption Act, 1988 (the PC
Act).
2. The prosecution case is that on 29.11.1989, at about
01:50 P.M., at House no.349/5, Mangolpur Khurd, Delhi, the
accused, while working as, Inspector DESU (Delhi Electricity
Supply Undertaking), Zonal Office, Sector-III, Rohini, Delhi,
demanded, accepted and obtained ₹1500/- from PW4 for
installation of electricity meter at the aforementioned address, i.e.,
the residence of PW4. Accordingly, as per the charge-sheet/final
report dated 25.02.1992, the accused was alleged to have
committed the offences punishable under Sections 7 and 13(2)
read with Section 13(1)(d) of the PC Act.
3. Sanction for prosecution was accorded by PW5, the
then General Manager (E), DESU, New Delhi, vide Ext. PW5/A
order, dated 12.01.1992.
4. Crime no. 43/1989, was registered on the basis of
PW4/A complaint of PW4. The case was initially entrusted to
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PW13 and then subsequently was transferred to PW10 for
investigation. After completion of investigation by PW10, a
charge-sheet was filed against the accused alleging the commission
of the offences punishable under the aforementioned Sections.
5. When the accused was produced before the trial court,
all the copies of the prosecution records were furnished to him as
contemplated under Section 207 Cr.P.C. After hearing both sides,
the trial court vide order dated 28.09.1993, framed a Charge under
Section 7 and Section 13 of the PC Act, which was read over and
explained to the accused, to which he pleaded not guilty.
6. On behalf of the prosecution, PWs. 1 to 13 were
examined and Exhibits PW2/A-B, PW3/B-C, PW4/A-H, PW4/J-K,
PW5/A, PW7/A, PW8/A, PW10/A-E and PW13/A-B were marked
in support of the case.
7. After the close of the prosecution evidence, the accused
was questioned under Section 313(1)(b) Cr.PC. regarding the
incriminating circumstances appearing against him in the evidence
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of the prosecution. The accused denied all those circumstances and
maintained his innocence. He submitted that he had neither
demanded nor had accepted any money from PW4. Electricity
meter could not have been installed at the residential premises of
PW4 as the premises fell within an unelectrified area. This can be
inferred from the testimony of PW4 who admitted that the
Executive Engineer had also mentioned that the meter could not be
installed in the said premises. He further submitted that even after
the trap proceedings, the meter was installed only at the house of
PW4’s uncle.
8. No documentary evidence was adduced in support of
the defence case.
9. On consideration of the oral and documentary evidence
on record and after hearing both sides, the trial court vide the
impugned judgment dated 09.02.2004 held the accused guilty of
the offences punishable under Sections 7 and 13(2) read with
Section 13(1)(d) of the PC Act. Vide order on sentence dated
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13.02.2004, the accused has been sentenced to undergo rigorous
imprisonment for a period of 18 months each along with fine of
₹5000/- each, and in default of payment of fine, to undergo further
rigorous imprisonment for five months each for the offences
punishable under Sections 7 and 13(1)(d) of the PC Act. The
sentences have been directed to run concurrently. Aggrieved, the
accused has preferred this appeal.
10. It was submitted by the learned Senior counsel for the
appellant/accused that the very substratum of the prosecution case
is intrinsically improbable and contrary to the materials on record.
It was urged that as per the Charge framed against the
appellant/accused, he is alleged to have demanded and accepted
illegal gratification for installation of an electricity meter at House
no. 349/5, i.e. the residence of PW4, while the latter himself has
admitted in his testimony that the meter could not be installed at
his residence as it is situated in an unelectrified area, which is
beyond the permissible limit of 100 feet from the main electric
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pole and that the same had also been categorically informed to him
by the Executive Engineer. Attention of this Court was drawn to
certain documents forming part of the DESU record in order to
explain the official position regarding non-installation of
electricity connection at PW4’s premises. Admittedly the said
documents had not been formally exhibited or brought in evidence.
The learned Senior Counsel, however, submits that even dehors
the said documents, the testimony of PW4 itself remains
categorical and uncontroverted to the effect that both the
appellant/accused and the Executive Engineer had informed him
that the electricity meter could not be installed at House No.349/5
since the same was situated beyond the permissible distance of 100
feet from the main electric pole.Therefore, this establishes that no
electricity connection could be legally granted in the said premises
and hence, the very root of the prosecution case, namely, the very
basis of the demand becomes doubtful, goes the argument.
Reliance was placed on the dictum in Ved Prakash Maurya v.
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State (NCT of Delhi), 2025 SCC OnLine Del 10660, wherein this
Court held that when the alleged work either stood already
completed or could not legally be processed by the accused, the
very motive or occasion for demand becomes inherently
improbable. Reliance was also placed on Har Swarup Verma v.
State (NCT of Delhi), 2025 SCC OnLine Del 8628, wherein this
Court held that when the prosecution fails to demonstrate that the
accused was in a position to extend the alleged official favour, the
very premise of demand becomes doubtful.
10.1. It was further argued that, even going by the testimony
of PW4, at the time of the alleged transaction, the meter could not
be installed at his house, but at the residence of his uncle, situated
nearby. The learned Senior counsel emphasised that this admission
demolishes the prosecution case as the alleged bribe was
purportedly demanded for installation of meter at House no. 349/5.
It was argued that PW4 kept changing his stand by first alleging
that the meter was to be installed in his own house and later stating
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that the same was to be installed in his uncle’s premises and that
such vacillating testimony renders PW4 to be an unreliable
witness. To augment his contention the learned Senior counsel
relied on the dictum in Rajesh Gupta v. State, (2022) 20 SCC
793, wherein the Apex Court held that the sole testimony of the
complainant, being that of an interested witness, cannot ordinarily
be relied upon in the absence of corroboration from independent
evidence. Reliance was also placed on the dictum in State of
Punjab v. Madan Mohan Lal Verma, (2013) 14 SCC 153,
wherein the Apex Court held that the complainant in a trap case is
an interested and partisan witness and his testimony must be
scrutinized with caution and, in an appropriate case, independent
corroboration should be insisted upon.
10.2. It was further contended that the prosecution has failed
to prove the necessary element of “demand”, which is sine qua non
for conviction under Section 7 and 13 of the PC Act. The learned
Senior counsel pointed out that there are material inconsistencies
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in the testimonies of PW4, PW6 and PW9 regarding the alleged
demand, acceptance and recovery of the tainted currency notes. It
was urged that PW6, the panch witness did not fully support the
prosecution case and also as per the prosecution itself, the recovery
of tainted money and the apprehension of the accused took place in
another premises, which has been stated to be PW4’s uncle’s
house. It was further submitted that mere recovery of tainted
currency notes or positive hand-wash/pocket-wash tests are
insufficient in law unless demand and voluntary acceptance are
first proved beyond reasonable doubt. Reliance was placed on the
dictum in B. Jayaraj v. State of A.P., (2014) 13 SCC 55, wherein
the Apex Court held that mere recovery of currency notes, without
proof of demand, cannot constitute an offence under Sections 7
and 13(1)(d) of the PC Act and in Neeraj Dutta v. State (NCT of
Delhi), (2023) 18 SCC 251, wherein the Constitutional Bench
reiterated that mere possession or recovery of tainted money is
insufficient unless demand and acceptance are proved beyond
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reasonable doubt. Further, it was contended that the proof of offer
by the bribe giver and demand by the public servant are
foundational facts, which must first be established before
conviction can follow by relying on the dictum in Rajinder
Kumar v. CBI, 2026 SCC OnLine Del 1421.
10.3. It was next contended that there was no sufficient
verification of PW4’s allegations prior to the laying of the trap and
the entire pre-raid exercise appears to have been conducted
mechanically and in undue haste. It was submitted that as per the
testimony of PW9, PW4 arrived at the A.C. Branch around 9:00
A.M. and within a very short span of time the complaint was
recorded and the pre-raid proceedings were completed and the
raiding party departed. It was also pointed out that the prosecution
failed to examine Head Constable Balbir Singh, who, according to
PW9, had conducted the demonstration during the pre-raid
proceedings. It was argued that non-examination of such a material
witness creates a serious dent in the prosecution case. Reliance
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was placed on the dictum in Ram Prashad v. State (NCT of
Delhi), 2026 SCC OnLine Del 1899, wherein this Court held that
absence of proper verification of the complaint and deficiencies in
the investigation and contemporaneous record cast doubt on the
prosecution case and that suspicion, however strong, cannot take
the place of proof.
10.4. The Learned Senior Counsel submitted that there are
material contradictions regarding the place of apprehension of the
appellant, the manner in which the tainted money was allegedly
recovered and the sequence in which the post-raid proceedings
were conducted. It was urged that while one witness stated that the
tainted money was thrown on the ground by the appellant upon
seeing the raiding party, another witness gave a materially
different version regarding recovery of the said amount. It was also
submitted that no independent witness from the locality or from
the alleged premises was joined by the prosecution despite the
alleged proceedings taking place in a residential area. The learned
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Senior counsel contended that the inconsistencies regarding the
manner and place of recovery cast a serious doubt upon the
genuineness of the trap proceedings. Reliance was placed on the
that material inconsistencies in the prosecution version regarding
trap proceedings, timing, post-raid formalities and wash
proceedings render the prosecution case doubtful and entitle the
accused to benefit of doubt.
10.5. It was lastly argued that the prosecution has failed to
establish the foundational facts necessary for drawing the statutory
presumption under Section 20 of the PC Act by placing reliance on
the dictum in State of Punjab v. Madan Mohan Lal Verma,
(2013) 14 SCC 153, wherein the Apex Court held that before the
burden shifts to the accused under Section 20 of the PC Act, the
prosecution must first establish the foundational facts regarding
demand and acceptance. Reliance was also placed on the dictum in
Neeraj Dutta (supra) and B. Jayaraj (supra), to contend that in
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the absence of proof of demand, the statutory presumption under
Section 20 cannot be invoked. Reliance was again placed on the
dictum in Har Swarup Verma (supra), wherein this Court
reiterated that where the chain of demand, acceptance and recovery
is not established through credible and consistent evidence, the
accused is entitled to benefit of doubt. It was, therefore, submitted
that the impugned judgment of conviction and order on sentence
are unsustainable in law and deserve to be set aside.
11. Per contra, the learned Additional Public Prosecutor
submitted that the prosecution has successfully established the
demand and acceptance of illegal gratification by the appellant
through the testimonies of PW4, PW6 and PW9 coupled with the
recovery of tainted currency notes and the positive hand-wash and
pocket-wash proceedings. It was submitted that the contention of
the appellant that the electricity meter could not legally be installed
at PW4’s premises is wholly immaterial in view of the settled legal
position that the offence under the PC Act stands attracted upon
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proof of demand and acceptance of illegal gratification irrespective
of whether the public servant was actually capable of extending the
alleged official favour and placed reliance on the dictum in Trilok
Chand Jain v. State of Delhi, (1975) 4 SCC 761, wherein the
Apex Court held that the question whether the accused was
actually in a position to show favour to the complainant is not of
significance once illegal gratification is demanded and accepted,
which has been reiterated by the High Court of Kerala in Dr. V.
Sebastian v. City Hospital (P) Ltd., (1985) 57 Comp Cas 453.
11.1. It was further submitted that merely because the alleged
conversation regarding demand was not overheard by the trap
laying officer (TLO) or the panch witness would not by itself
render the prosecution case doubtful by placing reliance on the
dictum in State of U.P. v. Zakaullah, 1998 SCC (Cri) 456,
wherein it was categorically held that non-hearing of the
conversation between the complainant and the accused by other
witnesses is no ground to reject the prosecution case once recovery
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of tainted money from the accused stands established. It was
argued that in the present case, the presence of the appellant at the
relevant premises, the recovery of tainted currency notes and the
positive wash proceedings sufficiently corroborate the prosecution
version regarding demand and acceptance of bribe.
11.2. The learned prosecutor further submitted that the
conduct of the appellant in throwing the tainted currency notes
upon seeing the raiding party constitutes a strong incriminating
circumstance against him by relying on the dictum in Hazari Lal
v. State (Delhi Administration), AIR 1980 SC 873, wherein the
Apex Court held that an attempt by the accused to throw away the
tainted money upon arrival of the raiding party constitutes a
relevant incriminating circumstance supporting the prosecution
case. It was submitted that the said conduct of the appellant lends
assurance to the prosecution version regarding conscious
possession and acceptance of illegal gratification.
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11.3. It was further pointed out by the learned prosecutor that
the defence has failed to legally establish the alleged
contradictions sought to be elicited from the prosecution witnesses.
The learned prosecutor submitted that the procedure prescribed
under Section 145 of the Indian Evidence Act, 1872 (the Evidence
Act) for proving contradictions was not duly followed by the
defence during trial and placed reliance on the dictum in
Tahsildar Singh v. State of U.P., AIR 1959 SC 1012, to contend
that unless contradictions are duly proved in accordance with law,
the same cannot be read in evidence or relied upon by the defence.
It is submitted that the alleged inconsistencies sought to be pointed
out by the appellant, therefore, cannot materially discredit the
prosecution case.
11.4. The learned prosecutor lastly submitted that the
prosecution has duly established the foundational facts necessary
for invoking the presumption under Section 20 of the PC Act. It
was submitted that the recovery of tainted currency notes from the
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appellant, coupled with the positive hand-wash and pocket-wash
proceedings conducted at the spot, clearly establish conscious
acceptance of illegal gratification by the appellant. It was further
contended that the defence has failed to furnish any plausible
explanation regarding possession of the tainted currency notes and,
therefore, the statutory presumption under Section 20 of the PC
Act operates against the appellant.
12. Heard both sides and perused records.
13. The only point that arises for consideration in the
present appeal is whether there is any infirmity in the impugned
14. I shall first briefly refer to the materials on record relied
on by the prosecution in support of the case. PW4 submitted a
written complaint, i.e., Exhibit PW4/A dated 29.11.1989 in the
office of the Anti-Corruption Branch (ACB) in which he has stated
thus: - He is a resident of House No. 349/5, Village Mangolpur
Khurd, where he resides along with his wife and children. His
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house does not have electricity. In an effort to secure electricity
connection, he met Shri Sunil Kumar, Inspector, DESU, Sector
No. III, Rohini, Delhi (the accused), about a month back, at which
time, Inspector Sunil Kumar (the accused) proposed conducting a
site inspection. After inspecting the aforementioned house, the
accused instructed him to pay the security deposit and obtain a
letter from the Chairman, DESU of his area and demanded a bribe
of ₹2,000/-, asserting that the meter would be installed only upon
receipt of the said payment (2000 पये मुझे बतौर र त दो जब मीट लगेगा).
Thereafter on 09.10.1989, PW4 deposited the security deposit of
₹525/- vide receipt no. 462182 at the office of DESU in Rohini. He
further stated that despite the payment of the security deposit, he
had been making frequent visits to the office of DESU only to be
harassed by Inspector Sunil Kumar (the accused), who continued
to insist that the meter would not be installed until ₹2,000/- bribe
was paid. (और जब से DESU ऑिफस के च र लगा रहा ँ मगर ी सुनील कुमार
इं ै र DESU मुझे बड़ा परे शान कर रहा है और कहता है िक जब ही मीटर लगेगा जब 2000
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पये दोगे). In the afternoon of 28.11.1989, when he met Inspector
Sunil Kumar (the accused) again to plead for the installation of the
meter, the latter responded by saying, "How many times do I have
to tell you? Give ₹2,000/- and get the meter installed, otherwise I
will reject the meter application.” (िकतने बार बतलाना पड़े गा 2000 पये दो
और मीटर लगालो वरना मीटर को Reject कर दू ं गा) On this, when he responded,
"Sunil Kumar Sahib, I am a poor man” (सुनील कुमार साहब म तो गरीब
आदमी ँ ), the accused reduced his demand and responded by saying,
"Fine, give ₹1,500/- by tomorrow afternoon, i.e., 29.11.1989, and I
will come to your house and install the meter" (ठीक है कल िदनां क
29.11.1989 को दोपहर तक 1500 पये दे दे ना और घर पर आकर मीटर लगवा दू ं गा) and
hence, out of sheer compulsion, he agreed to the same, though he
is against giving of bribe. (जो मने मजबूरी समझकर हाँ भर ली वरना म र त लेने दे ने
के खलाफ ँ ). PW4 further stated that that Shri Sunil Kumar (the
accused) was scheduled to arrive at his house on the afternoon of
29.11.1989, to collect the ₹1,500/- bribe for the said installation.
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14.1. PW4, when examined before the trial court, more or
less stood by his case in Ext. PW4/A and deposed that after his
initial meeting with the accused, someone came to his house and
inspected it in his absence. Thereafter, when he again met the
accused, the latter told him that a meter could not be installed in
his house, but could instead be installed at a distance of about 100
feet in the lane. Subsequently, when PW4 met the zonal Executive
Engineer, he also confirmed that the meter could only be installed
at a distance of 100 feet in the lane and advised him to apply for
the meter and thereafter meet the accused. Thereafter, when PW4
met the accused, the latter stated that he could sanction a meter,
provided that the former pays some money for "KHARCHA
PAANI”. PW4 further deposed that on 27.11.1989, he met the
accused again and that the accused again insisted that the former
would have to pay ₹2,000/- as a bribe to the latter; otherwise, he
would cancel the meter thereby forfeiting the security deposit
made by PW4, upon which the former requested the latter to grant
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him three days’ time. PW4 further deposed that though the accused
initially demanded ₹2,000/- to be paid by 22.11.1989 11:00 A.M.,
he requested the accused to accept ₹1,500/- initially as he would
not be able to arrange the whole amount. PW4 further deposed that
on 29.11.1989, he went to the A.C. branch and lodged Ext. PW4/A
complaint, in the presence of PW6, the panch witness. Thereafter,
he provided ₹1,500/- in the denomination of ₹100/-, i.e., fifteen
currency notes of ₹100/- each. PW4 further deposed in detail
regarding the pre-trap proceedings which has been recorded vide
Ext. PW4/B. PW4 further deposed that he was instructed to stay
close to PW6, the panch witness and to speak with the accused in a
manner that would allow the panch witness to overhear their
conversation and witness the transaction and that PW6 was
instructed to give a signal once he was satisfied that the money had
been accepted as bribe by the accused.
14.2. PW4 further deposed that he, along with the entire trap
team left for his house in a government vehicle, which was parked
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near a service station about 300 yards away. He along with the
panch witness sat inside the house while the remaining members
of the raiding party took positions near the boundary wall. By
around 01:40 P.M., the accused arrived and entered the house and
when he offered the latter tea, he refused and demanded the money
by stating that he had other commitments. Thereafter, he took the
money from his pocket to give it to the accused, he asked the latter
as to where the electric meter would be installed. The accused took
the money in his right hand and placed it in the right-side pocket of
his pants and informed him that the meter would be installed in his
uncle's house situated nearby and not in the lane. PW4 further
deposed that the panch witness gave the pre-arranged signal by
moving his hand over his head and upon reaching his uncle's
house, officers from the ACB arrived there. He further deposed
that the accused, on seeing the officials, took the money from his
pocket and threw it on the ground. PW9, the TLO, disclosed his
identity and challenged the accused, who became nervous and
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attempted to flee, however, he was successfully secured. PW4
further deposed that the panch witness was asked to pick up the
currency notes and compare the serial numbers in the same with
the numbers recorded in the pre-raid report. On comparison, the
numbers tallied.
14.3. PW4 further deposed that the right hand of the accused
was washed in a solution which turned pink. The right-side pocket
of the pants of the accused was also washed in a freshly prepared
solution, which also turned pink. PW4 further deposed that the two
bottles of hand wash i.e., P16 and P17, and pant wash, i.e. P18 and
P19 were labelled, sealed in front of him and seized vide Ext.
PW4/D memo and Ext. PW4/E memo respectively and that he had
affixed his signatures on the labels. He also deposed that the pants
of the accused was seized vide Ext. PW4/F memo and the currency
notes P1 to P15 were seized vide Ext. PW4/C seizure memo. At
this juncture, the prosecutor sought permission of the trial court to
put leading questions to the witness on the ground that he had
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deviated from his statement made before the police on the aspect
of the initial demand. The request was allowed. On further
examination by the prosecutor, PW4 deposed that he had been
meeting the accused for about 15 days and that the conversation
regarding the amount of ₹1,500/- had taken place on 27.11.1989
and 28.11.1989.
14.4. PW4, in his cross-examination, admitted that the meter
was not installed based on his initial application. He had sent a
lawyer notice, pursuant to which the accused called him and
obtained a fresh application in the name of his son.The meter was
ultimately issued in the name of his son. PW4 denied the
suggestion that his first application was rejected because his house
was situated in an unelectrified area. PW4 further deposed that he
had met the Executive Engineer, who told him that the connection
would not be granted in his name as he had caused the accused
(Sunil Kumar) to be arrested. PW4 deposed that he was never
informed that a meter could not be provided on the ground that his
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house was situated in an unelectrified area. PW4 further deposed
that he had met the accused about 10 to 15 times before the date of
the latter’s arrest. He further deposed that he had borrowed
₹1,500/- from his brother-in-law, namely, Baljit Singh. According
to PW4, 28.11.1989 was his weekly rest day and that no departure
entry is made on the said day. PW4 further deposed that the
accused had raised alarm when he was apprehended; however, no
one came to the spot on hearing the cries of the latter as his house
is situated away from the village and the area is not populated. The
accused was apprehended inside a room in house no. 349/4. The
currency notes were picked up from inside the said room. When
the accused tried to run away, he was apprehended by PW9 and
Head Constable Balbir Singh. PW4 further deposed that the hand
wash and the pocket wash of the accused was taken by Head
Constable Balbir Singh.
15. PW6 (the panch witness), U.DC, ITI, Malvia Nagar,
Delhi, deposed that either on 29.11.1989 or 30.11.1989, he was
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present on duty at the A.C. Branch as a panch witness. On the said
day, PW4 had come to the ACB, and the latter’s statement was
recorded in his presence. He also testified regarding the pre-raid
formalities done in the Office of the ACB, which according to him
was recorded in Ext. PW4/B report in which he had signed. After
completing the formalities, they proceeded to the house of PW4
situated in a village. He and PW4 went inside the house, while the
other members of the raiding team took positions outside the
house. Shortly thereafter, the accused arrived. PW4 offered the
accused tea, which the latter declined. PW4 then took the money
and gave it to the accused. The accused took the money in his
hand. Then the accused and PW4 proceeded to the place where the
connection was to be given, at which time, he gave the pre-
arranged signal. The raid team came and proceeded to the place
where the accused and PW4 had gone. However, he remained at
PW4’s house. PW6 further deposed that he was thereafter taken to
the place where PW4 and the accused had gone and was shown the
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currency notes which had been recovered from the accused, which
were checked and tallied. When the hand wash of the accused was
taken at the ACB, the colour of the water turned pink. The pocket
wash of the accused's pants also turned pink.
15.1. The prosecutor sought the permission of the trial court
to “cross-examine” PW6 on the ground that he was resiling from
his earlier statement made to the police. The request was allowed.
On further examination by the prosecutor, PW6 deposed that the
accused may have accepted the money in his right hand. However,
he could not recall the same precisely. He further deposed that the
house where the connection was to be given is situated opposite
PW4’s house, where he had gone along with PW4. PW6 denied
having accompanied the raiding team to the house where PW4 and
the accused had gone. He denied having stated to the police that
the accused had kept the money in the right pocket of his pant. He
denied having stated to the police that when the Inspector
disclosed his identity, the accused had taken out the money from
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his pocket and thrown the same on the ground or that the accused
had become nervous and had attempted to run away. He denied
seeing the Inspector picking up the currency notes from the
ground. However, PW6 admitted that the Inspector had handed
over the currency notes and asked him to tally their numbers with
the pre-raid report. He had tallied their numbers and found them to
be the same. PW6 was unable to recall if the hand wash of the
accused had been taken at the spot. However, he admitted that the
hand wash and the pocket wash of the accused which turned pink
had been transferred into two glass bottles, which were sealed and
labelled and that he had affixed his signatures on the labels. PW6
admitted his signature on Ex. P20 pants. He also admitted that
Exts. P1 to P15 are the currency notes recovered from the spot.
PW6 further admitted his signature in Ext. PW4/G raid
proceedings; Ext. PW4/C, Ext. PW4/D, Ext. PW4/E and Ext.
PW4/F seizure memos. He also admitted that Ext. PW4/G had
been prepared in his presence and that he had read the same. PW6
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also admitted his signature in Ext. PW4/J seizure memo prepared
relating to the scooter in which the accused had arrived at the spot.
However, he deposed that he does not know whether the scooter
had been seized on the same day. But he admitted that Ext. PW4/J
was prepared in his presence and that he had read the same and
thereafter signed it. PW6, in his cross-examination, denied the
suggestion that the accused had not accepted the money and that
no hand wash or pocket wash had been taken in his presence. PW6
also denied the suggestion that he had testified the incriminating
parts at the instance of the police.
16. PW9, the TLO, broadly supported the prosecution case.
He deposed that Ext. PW4/A complaint of PW4 was recorded in
the presence of PW6, the panch witness, who was present in the
ACB. PW4 and PW6, the panch witness, after being briefed, were
sent ahead to proceed with the transaction with the accused.
According to PW9, at about 11:45 A.M., the accused arrived on
Scooter No: DBI 4868, and after parking the scooter outside the
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house, he entered PW4’s house, i.e. House No. 349/5. At about
01:50 P.M., PW6 gave the pre-arranged signal by moving his hand
over his head and upon receiving the signal, he along with all the
members of the raiding party reached the spot. He apprehended the
accused with the assistance of Head Constable (HC) Bir Singh,
disclosed his identity and challenged the accused. On seeing the
raiding party, the accused threw the money on the ground. The
notes were picked up from the ground by PW6, the panch witness
and they were seized vide Ext. PW4/C memo. PW9 further
deposed in detail regarding the post trap formalities.
16.1. PW9, in his cross examination, deposed that PW4 had
arrived at the office of the ACB at about 09:00A.M. PW6, the
panch witness, was present when the complaint of PW4 was
recorded. According to PW9, he had applied phenolphthalein
powder on the currency notes during the pre-raid formalities and
that it was HC Balbir Singh who had given the demonstration. It
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was HC Balbir Singh who had taken the hand wash of the accused.
But the same has not been mentioned in the post-raid report.
17. PW5, the Sanction Officer, deposed that he had gone
through the police file and the judicial file of the case and after
considering the allegations against the accused and the
circumstances, granted sanction order vide Ext. PW5/A Sanction
18. PW13, Inspector deposed that on 29.11.1989, he had
accompanied the raiding party headed by PW9 TLO. He did not
participate in the raid proceedings. He was standing away from the
place. After the raid, he was entrusted with the investigation of the
case at around 02:00 P.M., when PW9 handed over the accused,
the case property and the documents prepared. He prepared
Ext.PW13/A site plan at the instance of PW4 and PW6. After
completing the formalities, including the recording of statements,
deposited the case property in the malkhana, that is, bottles marked
A1 and B1 along with pant pullandas and the scooter. Thereafter,
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he went to the office of ACP, K.P. Singh, ACB, Police Station and
entrusted bottles numbered B2 and A2 along with the sample seal,
who kept it locked in his office almirah and sealed it. The ACP,
retained the key of the almirah and handed back the seal to him.
On 30.11.1989, he went to the office of the ACP on which day,
K.P. Singh checked the almirah in his presence, which was found
intact. The seal was broken open, the almirah unlocked and the
bottles marked A2 and B2 handed back to him. He deposited the
said samples in the office of the CFSL. As long as the case
property remained in his possession, the same was not tampered
with.
18.1. PW13, in his cross-examination, admitted that the
office of ACP is not a notified malkhana.
19. The appellant/accused has found guilty of the offences
punishable under Section 7 and Section 13(1)(d) read with Section
13(2) of the PC Act. It is now well settled that, to bring home an
offence under Section 7 of the Act, the prosecution must establish:
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(i) that the accused was a public servant; (ii) that there was a
demand of illegal gratification; and (iii) that such gratification was
voluntarily accepted by the accused as a motive or reward for
doing or forbearing to do any official act. Similarly, for an offence
under Section 13(1)(d) punishable under Section 13(2), the
prosecution is required to prove that the public servant, by corrupt
or illegal means or by abusing his position, obtained for himself or
for any other person any valuable thing or pecuniary advantage.
Crucially, the foundational requirement for both provisions is the
proof of demand and acceptance of illegal gratification.
20. The learned senior counsel for the appellant/accused
drew the attention of this Court to the charge framed by the trial
court, which reads thus:- “FIRSTLY that on 29-11-89 at about 1-50 P.M.
you while working as Inspector DESU, Zonal Office Sector-III, Rohini,
Delhi - a public servant in discharge of your official duties, by corrupt and
illegal means or otherwise abusing your official position, demanded,
accepted and obtained Rs. 1500/- at House No. 349/5, Mangolpur Khurd,
Delhi as illegal gratification other than legal remuneration from Shri
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Jagwinder Singh s/o, Om Parkash, r/o. H. No. 349/5, Mangolpur Khurd,
Delhi, in consideration for installation of electricity meter at his
abovementioned residence and thereby committed an offence punishable
under Section 7 of the Prevention of the Corruption Act, 1988 and within my
cognizance”.
(Emphasis Supplied)
21. Referring to the Charge, the argument advanced was
that the materials on record show that the house bearing number
impossible for the appellant/accused to have acceded to the
demand of PW4 for installing an electric meter at the aforesaid
residence. In this regard, reliance was particularly placed upon an
internal communication purportedly issued by the Executive
Engineer stating that the premises was situated beyond the
permissible distance from the existing electric mains and that steps
were being taken to cancel the case and refund the security
amount. However, the said documents were never formally proved
or exhibited or even marked during the course of trial through any
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competent witness. It is a settled law that a document is required to
be produced and proved according to law to be called evidence.
Whether such evidence is relevant, irrelevant, admissible or
inadmissible, is a matter of trial (See Hardeep Singh vs. State of
Punjab, 2014 (3) SCC 92). In the absence of formal exhibition
and proof of the said documents, this Court cannot read the
contents thereof as substantive evidence. Significantly, during the
course of arguments, the learned Senior Counsel for the appellant
also fairly confined his submissions primarily to the oral testimony
of PW4 and did not seriously dispute that the said departmental
documents had not been duly proved during trial. Consequently,
no substantive benefit is lent to the appellant on the basis of such
unproved DESU record.
22. Be that as it may, PW4 in his chief-examination
admitted that the accused had informed him that the meter could
not be installed in his house and that the same could be installed at
a distance of about 100 feet in the lane. PW4 also admitted that he
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had met the Executive Engineer of the zone, who also had
informed him that the meter could be installed at a distance of 100
feet in the lane. The accused, when questioned under Section
313(1)(b) Cr.P.C. submitted that even after the raid, the meter was
installed at the house of PW4’s uncle. This aspect is not disputed
by PW4. Even if no electric meter could be installed at house
number 349/5, that alone would not automatically result in
throwing out the entire prosecution case because the other
materials on record also needs to be looked into, which I proceed
to consider.
23. I have already referred to the testimony of PW4 in
detail. PW4 stood by his version when cross-examined. Nothing
was brought out in his cross-examination to disbelieve his
testimony. It has not been shown that PW4 has an axe to grind
implicate the accused or that there is any reason(s) for him to
falsely against the accused. It is true that PW6, the panch witness,
is partially hostile to the prosecution case. However, PW6
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supported the prosecution case in all material particulars except to
the extent that he was not present when PW9 apprehended the
appellant/accused, at which time the accused is stated to have
thrown the currency notes on the floor. But PW6 admits all the
other aspects of the prosecution case. He admitted that he along
with the raiding team and PW4 had proceeded to the house of
PW4, to which place the accused had also come. PW6 also
admitted that when the accused arrived at the house of PW4, the
latter had offered him tea which the appellant/accused declined,
and thereafter PW4 had taken the money and handed it over to the
accused. It is true that PW6 deposed that he had not accompanied
PW4 and the accused to the house situated opposite the house of
PW4 for the purpose of installation of the electric meter. He also
deposed that he had not seen the accused being apprehended by
PW9 or the accused, on seeing the raiding party, throwing the
currency notes on the floor. However, PW6 admitted that he was
later taken to the said house and that on the instructions of PW9,
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he had checked the serial numbers of the currency notes handed
over to him and that the same had tallied with the ones recorded in
the pre-raid report. He also admitted his signatures in the
documents prepared by PW9 contemporaneously.
24. Another pertinent aspect to be noticed is that PW6 in
his cross-examination denied the suggestions put to him by the
defence counsel that the accused had not accepted the money and
that no hand wash or pocket wash had been taken in his presence.
This testimony of PW6 has to be read along with the testimony of
PW4 and PW9. The accused has no explanation as to why he went
to the house of PW4 on the said day. If it was impossible for the
electric meter to have been installed at the house of the accused,
and if he had already informed PW4 about the same, the question
that arises is as to why he went to the house of PW4 on the said
day. The accused has no explanation whatsoever for the same.
Merely because PW6 partially turned hostile is no reason to
disbelieve his entire testimony. It is well settled law that the
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testimony of a witness is not liable to be discredited in toto merely
because he does not support the prosecution case on certain
aspects. The portion of his testimony which inspires confidence
and finds corroboration from other relatable evidence can be
always relied on. [See State of U.P. v. Ramesh Prasad Misra
and Anr., (1996) 10 SCC 360]. The testimony of PW6 has to be
read along with the testimony of PW4 and PW9.
25. It is true that no independent witnesses were examined
to establish the prosecution case. However, no materials/evidence
has come on record to show that any independent witnesses were
present in and around the place of occurrence. According to PW4
the accused, on being apprehended by PW9, had raised alarm, but
nobody came as the place of occurrence is situated away from the
village and not in a thickly populated area.
26. The contention of the appellant that the conversation
regarding the demand was not overheard by PW6 or the other
members of the raiding party also does not persuade this Court to
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discard the prosecution case. As held in Zakaullah (supra),
merely because the conversation between the complainant and the
accused was not overheard by independent witnesses would not be
a ground to reject the prosecution case once recovery of tainted
money from the accused is established.
27. The non-examination of HC Balbir Singh is also of no
consequence in this case as evidence has to be weighed and not
counted. The complainant in a case of this nature is not an
accomplice and the question to be considered is whether his
testimony can be relied on or believed to substantiate the
prosecution case of demand of the bribe. It is not always necessary
that his testimony has to be corroborated by independent evidence.
The hand wash and pocket wash proceedings stood duly proved
through PW4, PW6 and PW9. The relevant bottles and exhibits
were produced before the trial court and identified by the
witnesses. Merely because one member of the raiding team was
not examined would not ipso facto render the entire prosecution
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case doubtful when the material aspects of the trap proceedings
otherwise stand established through cogent evidence.
28. The reliance placed by the appellant on the dicta in B.
Jayaraj (supra), Neeraj Dutta (supra), Madan Mohan Lal
Verma (supra), and Rajesh Gupta (supra) also does not advance
the appellant’s case in the peculiar facts of the present matter. As
are established. There can be no quarrel with the proposition laid
down in the aforesaid decisions that proof of demand is sine qua
non for conviction under the PC Act and that mere recovery of
tainted money is not sufficient in the absence of proof of demand
and acceptance. However, unlike the cases relied upon by the
appellant, in the case on hand, there exists direct evidence of
demand through the testimony of PW4, which receives substantial
corroboration from the surrounding circumstances, recovery of
tainted money, positive wash proceedings and the testimony of
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PW9. Therefore, the foundational facts regarding demand and
acceptance stand duly established. Similarly, the reliance placed by
the appellant on the judgments in Ved Prakash Maurya (supra)
and Har Swarup Verma (supra) is distinguishable on facts. In the
said cases, the prosecution evidence regarding demand itself was
found to be doubtful and there were serious deficiencies regarding
the authority of the accused to process the alleged work coupled
with material inconsistencies in the prosecution case. In the case
on hand, however, the prosecution has succeeded in establishing
through reliable oral and documentary evidence that the appellant
had demanded and accepted illegal gratification from PW4 in
connection with the installation of the electricity connection. The
regarding the exact place of installation would not efface the
evidence regarding demand and acceptance.
29. Here it is also apposite to note that PW9, when
examined before the trial court, deposed that Ext. P16 to P19
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bottles contain white liquid and the court also observed the same.
As held in Ram Naresh Pandey v. State, 2013 SCC OnLine Del
2751, that fading or disappearance of pink colour over a period of
time is a natural phenomenon and does not in any manner discredit
the prosecution case and that phenolphthalein, being an acid-base
indicator, turns pink only in an alkaline medium when the pH
value exceeds 8, and may subsequently become colourless if the
pH level falls below 8 due to passage of time or change in
chemical composition of the solution. Mere absence of pink colour
at a later stage does not negate the fact that the solution had turned
pink at the time of trap, particularly when contemporaneous
evidence and Ext. PW8/A CFSL report clearly establish the same.
30. At this stage, it also becomes relevant to notice that the
appellant, in his statement recorded under Section 313 Cr.PC.,
merely denied the prosecution allegations and raised the defence
that the meter could not have been installed at PW4’s house as it
fell within an unelectrified area. Though the burden upon the
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accused to rebut the statutory presumption under Section 20 of the
PC Act is not as onerous as that cast upon the prosecution, the
accused is nevertheless required to place on record some material
to probabilise his defence. In the present case, except for bare
denial, no convincing explanation has been furnished by the
appellant regarding his presence at the scene of occurrence; the
recovery of tainted currency notes and the hand wash and pocket
wash turning pink.
31. The learned Senior counsel’s attempt to point out
contradiction(s) in the testimony of the prosecution witnesses
regarding the manner of recovery, throwing of the currency notes,
etc., can also not succeed as the contradictions were never duly
proved as per the procedure contemplated in Section 145 of the
Evidence Act. [See Tahsildar Singh (supra); Satpal v. Delhi
Administration, 1976 (1) SCC 727 and Delhi Administration. v.
Lakshman Kumar 1985 KHC 741: (1985) 4 SCC 476).
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32. Yet another argument advanced is regarding the
discrepancy relating to the time at which the accused reached the
scene of occurrence. According to PW4, the accused arrived at his
house by 01:40 P.M. However, PW9 deposed that the accused
arrived at about 11:45 A.M. This was pointed out as another major
defect in the prosecution case. It is true that such a discrepancy is
seen. However, PW9 also deposed thatPW6 had given the signal at
01:50 P.M., pursuant to which the accused was apprehended and
remaining formalities completed. In the facts and circumstances of
the case on hand, this discrepancy regarding the time alone cannot
be a ground to throw out the entire prosecution case in the light of
the testimony of PW4, PW6 and PW9, whom I find no reasons to
disbelieve.
33. It was also pointed out by the learned Senior counsel
for the appellant/accused that no verification seems to have been
done on the complaint of PW4 and that PW9 and team had acted in
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haste even without conducting any preliminary enquiries regarding
the genuineness of the complaint.
34. PW9 deposed that PW4 had reached the office of ACB
at 09:00 A.M. The exact time at which the formalities were
completed or the exact or approximate time at which PW4 and
PW6 along with raiding team left the office of the ACB is not
borne out from the materials on record. Therefore, I do not find
any materials on record to conclude that the formalities were
completed in haste.
regarding demand and acceptance of illegal gratification, the
statutory presumption under Section 20 of the PC Act stands
attracted against the appellant/accused. The appellant herein has
failed to rebut the said presumption either through cross-
examination of prosecution witnesses or through independent
defence evidence. Consequently, this Court finds no reason(s) to
disbelieve the prosecution version. In view of the aforesaid
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discussion, this Court is of the considered opinion that the trial
Court has correctly appreciated the evidence on record and has
rightly recorded the conviction of the appellant. The findings do
not suffer from any perversity or illegality warranting interference
in appellate jurisdiction.
36. In the result, the appeal, sans merit, is dismissed.
37. Applications, if any, pending, shall stand closed.
p’ma/mj
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