Vinod Kumar Garg vs State (Government of National Capital Territory of Delhi)

money recovered was the currency notes that were treated and noted in the pre- raid proceedings – The contradictions as pointed out were insignificant when juxtaposed with the vivid and eloquent narration of incriminating facts proved and established beyond doubt – Given the time gap of five to six years, minor contradictions on some details were bound to occur and are natural – The witnesses are not required to recollect and narrate the entire version with photographic memory notwithstanding the hiatus and passage of time – Picayune variations do not in any way negate and contradict the main and core incriminatory evidence of the demand of bribe, reason why the bribe was demanded and the actual taking of the bribe that was paid, which are the ingredients of the offence under ss. 7 and 13 of the Act, that have been proved and established beyond reasonable doubt – Documents prepared contemporaneously affirmed the primary and ocular evidence – Therefore, there was no good ground and reason to upset and set aside the findings recorded by the trial court that were upheld by the High Court.

Prevention of Corruption Act, 1988: s.20 – Presumption as to acceptance of illegal gratification – In the case at hand, the condition precedent to drawing a legal presumption that the accused demanded and was paid the bribe money was proved and established by the incriminating material on record – Thus, the presumption under s.20 of the Act was applicable for the offence committed by the appellant under s.7 of the Act – Appellant was found in possession of the bribe money and no reasonable explanation was furnished that may rebut the presumption. Prevention of Corruption Act, 1988: s.17 – Procedural lapse – Effect on prosecution case – Contention of appellant that investigation was not conducted by the police officer by the rank and status of the Deputy Superintendent of Police or equal, but by Inspector (PW-5) and Inspector (PW-7) – Held: The contention is rejected for the reason that while this lapse would be an irregularity and unless the irregularity has resulted in causing prejudice, the conviction will not be vitiated and bad in law – Appellant did not allege or even argue that any prejudice was caused and suffered because the investigation was conducted by the police officer of the rank of Inspector. Prevention of Corruption Act, 1988: s.19 – Sanction for prosecution – Appellant challenged the validity of sanction order – Held: There was no error in the sanction order – What the law requires is the application of mind by the Sanctioning authority on the material placed before it to satisfy itself of prima facie case that would constitute the offence – Sanctioning authority in his cross- examination was clear and categoric that he had received the report of the Investigating Officer along with the kalandra of oral and documentary evidence – Sanctioning authority examined and considered the relevant material in the form of oral and documentary evidence that were a part and parcel of the kalandra. Prevention of Corruption Act, 1988: s.19(1) – A mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby – s.19(1) of the Act is matter of procedure and does not go to the root of the jurisdiction and once the cognizance has been taken by the court under the Code, it cannot be said that an invalid police report is the foundation of jurisdiction of the court to take cognizance and for that matter the trial.

Dismissing the appeal, the Court

HELD: 1.1 The deviations between the testimonies of PW2 and PW-3 does not mean that the demand and payment of bribe, the trap and seizure of the bribe paid is not proved. The Inspector who had conducted the raid (PW-5) had deposed about the recovery of bribe money on lines similar to the version of PW-2 and PW-3. Turning to the question of washing the polythene bag, the hand-wash and the pant wash of the appellant, PW-5 had stated that phenolphthalein powder was applied to the currency notes and after the appellant was detained the polythene packet was washed and the wash was transferred to the bottles marked P1 and P2 which were taken into possession. The polythene bag was also seized. The aforesaid exhibits, i.e. P1 and P2 and the papers prepared have been accepted and proved in evidence by PW-2 and PW-3. [Paras 8, 9] [1145-B-C; 1146-A-C]

1.2 Regarding the hand-wash, PW-2 could not recollect full facts and had stated that as far as he could remember, the appellant had given his hand-wash and the polythene bag was also washed. PW-2 had identified his signature on the bottles NATIONAL CAPITAL TERR OF DELHI)

containing the wash of the polythene bag and also the signature on the papers prepared. PW-3 had stated that the pant wash was not done. Ex facie the hand wash and the pant wash were not done as the coated money was put in the polythene bag. Polythene bag was washed and the wash kept in the bottles as has been deposed by PW-5. Minor discrepancy and inability of PW-2 and PW-3 to remember the exact details of whether or not the handwash or pant wash was done would not justify acquittal of the appellant. [Para 10] [1146-C-E]

1.3 The contradictions that have crept in the testimonies of PW-2 and PW-3 and on the question of the total amount demanded or whether PW-2 had earlier paid Rs.500/- are immaterial and inconsequential as it is indisputable that the bribe was demanded and taken by the appellant on the fateful day. The variations as highlighted lose significance in view of the proven facts on the recovery of bribe money from the pant pocket of the appellant, on which depositions of PW-2, PW-3 and PW-5 are identical and not at variance. The contradictions as pointed out and noted are insignificant when juxtaposed with the vivid and eloquent narration of incriminating facts proved and established beyond doubt and debate. It would be sound to be cognitive of the time gap between the date of occurrence, 3rd August 1994, and the dates when the testimony of PW-2 was recorded, 9th July 1999 and 14th September 1999, and that testimony of PW-3 was recorded on 18th December 2000 and 30th January 2001. Given the time gap of five to six years, minor contradictions on some details are bound to occur and are natural. The witnesses are not required to recollect and narrate the entire version with photographic memory notwithstanding the hiatus and passage of time. Documents prepared contemporaneously affirm the primary and ocular evidence. Therefore, there is no good ground and reason to upset and set aside the findings recorded by the trial court that were upheld by the High Court. [Para 11] [1146F-H; 1147-A-D]

State of U.P. v. Dr. G.K. Ghosh (1984) 1 SCC 254 : [1983] 3 SCR 993 – relied on.

2. On the question of reason for the demand and payment of the bribe, the complainant (PW-2) is categoric that he had taken industrial shed on hire from PW-6. The shed did not have an electricity meter. PW-6 had denied having given the said shed on rent and was declared hostile. The testimony of PW-6 is, however, highly doubtful and not trustworthy, for he had failed and avoided to answer the question from whom he had purchased the shed. The fact that the shed did not have an electricity connection as deposed to by PW-2 has not been challenged. PW2 in his cross-examination had specifically denied the suggestion that he has not taken the shed on hire/rent. Interestingly, in the cross-examination one of the suggestions put to PW-2 was that he had given an application for electricity connection to the predecessor of the appellant and not to the appellant, thus, suggesting that PW-2 wanted installation of an electricity meter for the shed. Therefore, the contention of the appellant that PW2 had falsely deposed that he had taken the industrial shed on hire which did not have an electricity connection is not accepted. The deposition of PW-2 that he wanted an electricity connection to be installed in the shed should be accepted. [Para 12] [1146F-G; 1147-A-C]

3. The statutory presumption under Section 20 of the Act can be confuted by bringing on record some evidence, either direct or circumstantial, that the money was accepted other than for the motive or the reward under Section 7 of the Act. The standard required for rebutting the presumption is tested on the anvil of preponderance of probabilities which is a threshold of a lower degree than proof beyond all reasonable doubt. In the case at hand, the condition precedent to drawing such a legal presumption that the accused has demanded and was paid the bribe money has been proved and established by the incriminating material on record. Thus, the presumption under Section 20 of the Act becomes applicable for the offence committed by the appellant under Section 7 of the Act. The appellant was found in possession of the bribe money and no reasonable explanation is forthcoming that may rebut the presumption. Further, the recovery of the money from the pocket of the appellant has also been proved without doubt. Therefore, money was demanded and accepted not as a legal remuneration but as a motive or reward to provide electricity connection to PW-2 for the shed. [Paras 13, 14] [1149-C-F] NATIONAL CAPITAL TERR OF DELHI)

4. PW-1 had issued and granted sanction for prosecution of the appellant. He had deposed that the appellant was working as an inspector in DESU and he was the competent officer to remove him. He had, after carefully examining the allegations contained in the material placed before him, granted the sanction for prosecution vide. PW-1 was specifically cross-examined and questioned whether “he had received the copy of the statement of the witnesses recorded under Section 161 of the Code or the C.F.S.L report”. It is obvious that he had not asked for and received these reports or the statements under Section 161 of the Code. PW-1 in his cross- examination was, however, clear and categoric that he had received the report of the Investigating Officer along with the kalandra of oral and documentary evidence. The witness it is apparent may not be familiar with the statements under Section 161 of the Code etc., but he had certainly examined and considered the relevant material in the form of oral and documentary evidence that were a part and parcel of the kalandra. [Paras 16, 17] [1150-A-B; 1151-D-F]

5. The last contention of the appellant is predicated on Section 17 of the Act and the fact that the investigation in this case was not conducted by the police officer by the rank and status of the Deputy Superintendent of Police or equal, but by Inspector (PW-5) and Inspector (PW-7). The contention has to be rejected for the reason that while this lapse would be an irregularity and unless the irregularity has resulted in causing prejudice, the conviction will not be vitiated and bad in law. The appellant has not alleged or even argued that any prejudice was caused and suffered because the investigation was conducted by the police officer of the rank of Inspector. [Para 19] [1153-C-D]

Mohd. Iqbal Ahmed v. State of A.P. (1979) 4 SCC

172 : [1979] 2 SCR 1007 – relied on.

6. A mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby. Section 19(1) of the Act is matter of procedure and does not go to the root of the jurisdiction and once the cognizance has been taken by the court under the Code, it cannot be said that an invalid police report is the foundation of jurisdiction of the court to take cognizance and for that matter the trial. The conviction of the appellant under Sections 7 and 13 of the Act is upheld. [Paras 20, 21] [1153-F-G; 1154-A]

State of Karnataka v. Ameerjan (2007) 11 SCC 273 : [2007] 9 SCR 1105 ; State of Maharashtra v. Mahesh G. Jain (2013) 8 SCC 119 : [2013] 3 SCR 850 ; Ashok Tshering Bhutia v. State of Sikkim (2011) 4 SCC 402 : [2011] 3 SCR 242 – relied on.