Ms. Rajdipa Behura, Mr. Philomon Kani, Mr. Ashray Behura, Ms. Neha Dobriyal, Ms. Simrat v. STATE OF DELHI

Judgment

1. The present appeal has been filed against the judgement of conviction dated 11.09.2009 and order on sentence dated 14.09.2009 passed by Special

Judge, Delhi in Criminal Case No. 39/2002 arising out of FIR No. 08/2001 registered under Sections 7/13 of Prevention of Corruption Act, 1988 (hereinafter, referred to as „PC Act‟) at P.S. Anti-Corruption Branch, Delhi. Vide the impugned judgement, the appellant was convicted for the offences under Sections 7 and 13(1)(d) of PC Act and vide the order on sentence, he was directed to undergo rigorous imprisonment for a period of two years along with fine of Rs. 10,000/- on each count, in default whereof, to undergo further simple imprisonment for a period of three months. The Signature Not Verified Digitally Signed By:GAUTAM ASWAL Signing Date:28.02.2025 19:08:05 CRL.A. 697/2009 sentences were directed to run concurrently. The appellant was given the benefit of Section 428 Cr.P.C.

2. In the chargesheet, the prosecution alleged that the complainant Chattar Singh,being in garment business, applied for sales tax registration. One Insp. Sandeep Yadav who was verifying his application, on 10.01.2001, demanded a bribe of Rs. 5,000/- from the complainant but later during their meeting on 01.02.2001, the demand was reduced to Rs. 3,000/-. Sandeep Yadav asked complainant to come to his office with the bribe amount on

02.02.2001. Aggrieved with the demand, the complainant approached Anti- Corruption Branch on the same day and gave a complaint to Insp. Sudesh Kumari (the Raiding officer) in presence of the panch witness Om Prakash Gupta. The complainant arranged Rs.3,000/- in cash in the form of five GC notes in the denomination of Rs.500/- and Rs.100/- each. In pre-trap proceedings, the serial numbers of GC notes were noted in presence of the panch witness and complainant, and the notes were also treated with Phenolphthalein powder. A trap was organised. The Raid officer alongwith complainant, panch witness and other members of the raiding team reached the Sales Tax Office, ITO at 2.50 P.M. One another person namely Mr. Sanjeev Miglani, who was complainant‟s Chartered Accountant also accompanied the raiding party. Though Sandeep Yadav was not there, the appellant, a Sales Tax Officer, met the complainant and bribe of Rs. 1500/- was recovered from him. The Raid officer also recovered Rs. 200/- from one Reena Sapra, the stenographer. The wash of both the hands of the appellant and wash of left pocket of his shirt were taken separately in the solution of sodium carbonate which turned pink. The appellant and co-accused Reena Signature Not Verified Digitally Signed By:GAUTAM ASWAL Signing Date:28.02.2025 19:08:05 CRL.A. 697/2009 Sapra were thereafter apprehended.

3. In the trial, a total of 13 witnesses were examined by the prosecution to prove its case. The complainant was examined as PW7, Om Prakash Gupta the panch witness as PW10A and the Trap Laying/Raid Officer Sudesh Kumari was examined as PW12. Sanjeev Miglani, the CA was examined as PW2. Besides above, the other witnesses were formal in nature relating to various aspects of investigation. On the other hand, the appellant, in his statement recorded under Section 313 Cr.P.C. claimed that he was innocent and that he had been falsely implicated in the case. Vide the impugned judgement, while the appellant was convicted, the co-accused Reena Sapra was acquitted of all charges.

4. On behalf of the appellant, the impugned judgment has been assailed on the ground that the testimonies of the material witnesses do not support the prosecution case. Besides, the depositions also do not inspire confidence being full of material improvements and that the impugned judgement has been passed on the basis of surmises and conjectures. The alleged demand was ascribed to Insp. Sandeep Yadav only and not to the appellant. The complaint does not even mention the appellant‟s name.

5. Learned APP on the other hand vehemently opposed the present appeal and submitted that the Trial Court rightly convicted the appellant on basis of sufficient material gathered against him.

6. I have heard learned counsel for the parties and gone through the record.

7. To establish an offence under Section 7 or 13 of the PC Act, the Signature Not Verified Digitally Signed By:GAUTAM ASWAL Signing Date:28.02.2025 19:08:05 CRL.A. 697/2009 factum of prior demand for illegal gratification by the public servant has to be proved as a fact in issue. Mere proof of acceptance would not by itself be sufficient and proof of demand is a sine qua non for securing a conviction under Sections 7 and 13 (1)(d) (i) and(ii) of the PC Act. Gainful reference can be made to the decision in B. Jayaraj v. State of Andhra Pradesh1, where the Supreme Court has categorically observed that :- “ 8….. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive in so far as the offence under Section 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.” The Constitution Bench later affirmed the aforesaid decision in the case of Neeraj Dutta v. State (Government of NCT of Delhi)2 and held that :- “88. What emerges from the aforesaid discussion is summarised as under: 88.1 (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and(ii) of the Act. 88.2 (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. 88.3 (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence. 88.4 (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind: (i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and