Delhi District Court
State vs Sunita Sharma on 23 January, 2025
IN THE COURT OF DEEPALI SHARMA
SPECIAL JUDGE: PC ACT: ACB-01:
ROUSE AVENUE COURT COMPLEX: NEW DELHI
CNR No. DLCT11000372-2021
CC No. 54/2021
FIR No. 29/2015
U/S: 7/13 of Prevention of Corruption Act
PS: Anti Corruption Branch
State
Versus
Sunita Sharma
W/o Parvesh Sharma,
r/o H.No. 4A, Una Enclave,
Mayur Vihar, Phase-I,
Delhi.
Date of Institution : 06.10.2021
Date of Arguments : 04.01.2025
Date of Judgment : 23.01.2025
Appearance :
For the State : Sh. Sukhbeer Singh,
Ld. Chief Public Prosecutor
For accused : Sh. Vikas Arora, adv.
JUDGMENT
1. Briefly stated the facts of the case are that on
28.10.2015 at about 11:30 am, Insp. Kailash Chand was called by
DCP, ACB at his office where the complainant Sh. Sudhanshu
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Kumar Mishra was present. Insp. Kailash Chand was directed to
take necessary action regarding the complaint of Sh. Sudhanshu
Kumar Mishra. Insp. Kailash Chand took the complainant to his
office at ACB and the panch witness Anil Kumar Kaushal was
called there. Sh. Sudhanshu Kumar Mishra handed over one hand
written complaint to Insp. Kailash Chand in which he stated that
he was working as an accountant with one Harish B. Gupta and
Company. The said firm used to look after the accounts of
various companies. Their firm was also handling the work of one
Dynamic India Exports. Dynamic India Exports had authorized
the complainant for looking after the work of sale tax
registration. The complainant went to Trade and Tax Office at
ITO for Sale Tax registration of Dynamic India Exports where he
met the Inspector of Ward no. 51 and 43, whose name he did not
know. He gave all the papers to that lady Inspector and after
checking the papers, she told him that it will cost Rs.10,000/- for
inspection. The complainant asked her what was the money for,
at which she told him that for every inspection, Rs.10,000/- is the
cost which goes till the higher levels including VATO and other
staff members. No inspection can be conducted without giving
money. If he wanted the work to be done, then he will have to
give Rs.10,000/- at which the complainant out of compulsion
agreed to give Rs.10,000/- for getting his legitimate work done.
About 13-14 days earlier, the lady Inspector went for inspection
and the complainant took Rs.8,000/- from the owner of Dynamic
India Exports namely CA Gaurav Dawar and handed it over to
Madam. She was asking for remaining Rs.2,000/- of bribe
money and was saying that till entire amount of Rs.10,000/- is
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 2 of 87
received, no work will be done and he could take the documents.
The complainant further alleged in his complaint that Madam
will not do any work without taking money. He had brought
Rs.2,000/- to ACB to take action against the lady Inspector and
to remove corruption from the VAT Department. He did not have
any personal grudge against the lady Inspector and VAT
Department and he wanted action to be taken against them.
2. Insp. Kailash Chand went through the complaint Ex.
PW7/A and verified the facts of the complaint from the
complainant. The panch witness also read the complaint and
verified the facts from the complainant and after satisfying
himself, he signed the complaint and Insp. Kailash Chand
countersigned the complaint Ex.PW7/A. The complainant
handed over two GC notes of Rs.1,000/- each and their serial
numbers were noted in the pre-raid report prepared by Insp.
Kailash Chand who applied phenolphthalein powder on the
aforesaid GC notes and he also gave demonstration of the
speciality of the phenolphthalein powder to the complainant and
panch witness. After demonstration, RO Insp. Kailash Chand
handed over powder smeared GC notes to the complainant and
he put the same in the right pocket of his wearing blue pant. The
panch witness was directed to remain with the complainant and
to hear and watch the transaction between the complainant and
the bribe seeker. RO also directed the panch witness to give
signal by waving his right hand over his head two times after the
bribe seeker had accepted the bribe from the complainant on
demand. The complainant was directed to hand over the bribe
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amount when the same was demanded by the bribe seeker.
Thereafter, the RO, panch witness and complainant cleaned their
hands with soap and water. The pink solution was also thrown
away and the vessels were cleaned with the help of soap and
water.
3. A raiding team was constituted comprising Insp.
B.K. Singh, W/HC Kiran, Ct. Sanjay Malik, Ct. Ashok alongwith
the complainant and panch witness. Thereafter the raiding team
left for the Trade and Tax Office, ITO, Delhi at about 12:30 pm
and the raid was conducted at the 5 th floor of the aforesaid office
and the accused Sunita Sharma was apprehended at the instance
of the panch witness who told that she had accepted the bribe
amount on demand from the complainant. The panch witness
further stated that the accused counted GC notes with both her
hands and put the bribe money in the almirah. The panch witness
got recovered the bribe money from the almirah which was kept
in a file in the almirah. The right hand wash and the wash of file
cover was taken in colourless sodium carbonate solution which
turned pink. The pink solution was kept in sealed glass bottles
which were seized by the RO. The recovered GC notes were also
seized by the RO vide seizure memo Ex.PW1/B. The file cover
was also kept in a sealed envelope. The sealed exhibits i.e. the
hand-washes and file wash alongwith the sealed envelope and
sample seal were taken into possession by the RO vide seizure
memo Ex.PW1/A. Seal after use was handed over to the panch
witness. The RO prepared the raid report Ex.PW12/A and a
rukka Ex.PW12/B was prepared on the raid report. The rukka
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was handed over to Ct. Sanjay Malik for registration of the FIR.
Meanwhile, Insp. B.K. Singh was called at the spot through Ct.
Ashok. Insp. B.K. Singh reached the spot and the RO apprised
him about the case and handed over the seizure memos, currency
notes, sealed exhibits and the accused to him. IO Insp. B.K.
Singh enquired about the raid from RO. Thereafter, RO Insp.
Kailash Chand left the spot.
4. Necessary investigation was conducted by IO Insp.
B.K. Singh. IO made enquiries from the panch witness and the
complainant and prepared a site plan at their instance vide
Ex.PW7/D. Thereafter they all returned to the office of ACB
alongwith the accused and case property. The DO handed over
the copy of FIR Ex.PW6/C and the original tehrir to the IO. IO
recorded the statements of panch witness and the complainant.
The accused was interrogated and arrested vide arrest memo
Ex.PW1/C. Her personal search was conducted by W/HC Kiran
vide personal search memo Ex.PW1/D. Documents i.e. authority
letter dated 19.10.2015 Ex.PW5/A, photocopy of PAN card of
Sudhanshu Kumar Mishra Ex.PW7/F, photocopy of provisional
certificate of registration dated 29.07.2015 issued by Trade and
Taxes, GNCT of Delhi Ex.PW7/G, were handed over to the IO
by the complainant and were seized vide seizure memo
Ex.PW7/E. The IO deposited the sealed exhibits in the
Malkhana. On 03.11.2015, the sealed exhibits were sent to FSL,
Rohini for examination.
5. Upon transfer of IO Insp. B.K. Singh, further
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investigation of the case was handed over to Insp. Hemant
Kumar Mishra on 28.09.2016. Insp. Hemant Kumar Mishra
issued notice U/s 91 Cr.P.C. vide Ex.PW15/A seeking
information/documents from Trade and Taxes Department
regarding appointment, posting orders, attendance record etc. In
response to the notice, a reply Ex.PW4/A dated 29.11.2016
alongwith documents Ex.PW4/B to Ex.PW4/G were received.
Another reply dated 31.05.2017 Ex.PW4/H alongwith the
documents Ex.PW4/J to Ex.PW4/L was received. The IO also
recorded the statements of the witnesses and also examined Sh.
S.S. Bajwan, Supervisory Officer of the accused to know the
procedure of Sale Tax registration and other facts. He also
produced certain documents which are Ex.PW11/A.
6. Upon transfer of Insp. Hemant Kumar, further
investigation of the case was assigned to Insp. Ramesh Narang
who recorded statements of CA Harish Gupta and supplementary
statement of the complainant. Subsequently Insp. Hemant Kumar
was transferred and further investigation was assigned to Insp.
Rajesh Shah. IO Insp. Rajesh Shah obtained the sanction U/s 19
of P.C. Act. A request letter was sent for grant of sanction
against the accused through ACP Rajrani Sharma vide
Ex.PW17/A. On receipt of sanction against the accused U/s 19
of P.C. Act and finalization of chargesheet, the same was filed in
court against accused Sunita Sharma U/s 7/13 of P.C. Act.
7. After completion of investigation, charge-sheet was
filed against the accused Sunita Sharma u/s 7/13 PC Act, 1988 on
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06.10.2021 and cognizance of offence was taken against the
accused on 20.11.2021. Thereafter, accused was summoned and
after hearing arguments, on 08.04.2022 charge for the offence
under Section 7 & 13 (i) (d) of PC Act punishable u/s 13 (2) of
PC Act was framed, to which accused pleaded not guilty and
claimed trial.
8. In order to prove its case, prosecution has examined
18 witnesses. Brief summary of deposition of prosecution
witnesses is as under:-
i.(a) PW1 W/ASI Kiran deposed that on 28.10.2015, RO
Insp. Kailash Chand conducted a raid. The raiding party
comprised of her, complainant, panch witness, Ct. Sanjay Malik
and two drivers. They left the office of ACB at about 12:30 pm
for ITO in two vehicles. After parking the vehicles in service
lane at ITO they had gone to the 5th Floor of building i.e. in the
office of VAT. Panch witness and complainant went inside the
room of the office of Trade and Tax Office while they stood
outside the room. After about 5 to 10 minutes, panch witness
came outside the room and gave signal to the raiding party. After
that they all went inside the room. The panch witness apprised
the raiding party that madam i.e. accused Sunita Sharma had
taken money. PW1 correctly identified accused Sunita Sharma
before court while stating that she was pointed out by the panch
witness to be the person who had accepted the bribe. Panch
witness also apprised the raiding party that the accused had put
the bribe money in the almirah in the room. PW1 deposed thatCC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 7 of 87
the panch witness also pointed out the almirah and stated that the
money was kept there which was accepted by the accused. PW1
took out the bribe money from the file cover which was kept
inside the almirah and which was pointed out by the panch
witness. The amount was Rs.2,000/- i.e. two GC notes in the
denomination of Rs.1,000/- each. PW1 handed over the file
cover alongwith the GC notes to the RO. The right and left hand
wash of the accused was taken in colourless solution and it
turned pink. The wash of the file cover was also taken in
colourless solution and it also turned pink. The hand-wash of the
right and left hand of the accused which had turned pink was
kept in two glass bottles each and the mouths of the same were
closed with the help of the cloth and sealed with the seal of KC
by the RO. The wash of the file cover was also kept in two glass
bottles and mouth of the same was closed with the help of cloth
and sealed with the seal of KC. PW1 identified her signature on
the seizure memo of the exhibits Ex.PW1/A. The file cover was
kept in yellow envelope and was sealed with the seal of KC by
the RO. The seal after use was handed over to the panch witness
by the RO. The sealed exhibits i.e. handwash of left hand was
marked as LHW-I and LHW-II and the right handwash was
marked as RHW-I and RHW-II and the sealed envelope
containing the file cover was marked as FCW. The sealed
bottles containing the wash of file cover were marked as FCW-I
and FCW-II. Earlier the GC notes, which were recovered at the
instance of panch witness by her from the almirah, were also
taken into police possession and seized by seizure memo by the
RO after comparing the serial numbers of the GC notes with theCC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 8 of 87
serial numbers mentioned in the pre-raid report. PW1 identified
her signatures on the seizure memo of the GC notes Ex.PW1/B.
PW1 signed all the sealed exhibits i.e. glass bottles and also on
the file cover. After some time, Insp. B.K. Singh, IO came at the
spot. The panch witness and the complainant were enquired by
Insp. B.K. Singh. IO also prepared site plan at the instance of
complainant and panch witness. Thereafter accused alongwith
the raiding team, complainant and panch witness came at ACB.
PW1 deposed that she alongwith the panch witness and
complainant was also interrogated at ACB. The accused was
arrested at ACB and personal search of the accused was taken by
her. PW1 identified her signatures on the arrest memo and
personal search memo of accused Ex.PW1/C and Ex.PW1/D
respectively. After medical examination of accused, she was
remanded to judicial custody. PW1 correctly identified the the
bottle marked FCW-I as Ex.PW2/Article-3, bottle marked RHW-
I as Ex.PW2/Article-2, glass bottle marked LHW-II containing
light pink colour solution as Ex.PW1/Article-4, glass bottle
marked RHW-II containing light pink colour solution as
Ex.PW1/Article-5, glass bottle marked FCW-II containing light
pink colour solution as Ex.PW1/Article-6 and one yellow
envelope containing one file cover having 10 documents as
Ex.PW1/E. PW1 also identified one white colour envelope
containing two GC notes of Rs.1,000/- each denomination serial
number of which were compared with the serial numbers
mentioned in the pre-raid report and found to be correct as
Ex.PW1/F (colly).
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i.(b) On a leading question put by Ld. Addl. PP for the
State, PW1 affirmed that they had reached the 5 th floor, Trade
and Tax Office, ITO, Delhi at about 01:00 pm and the
complainant and panch witness had entered the room of the
accused prior to the raid at 01:10 pm.ii.(a) PW2 Dr. Subhra Kumar Paul, SSO (Chemistry),
FSL, Rohini, Delhi, deposed that he was posted at FSL, Rohini
as SSO (Chemistry) since 04.06.2010. On 03.11.2015, three
sealed glass bottles were received in FSL, Rohini, Delhi in case
FIR No.29/15, PS ACB. The parcels were sealed with the seal of
K.C. which were marked as RHW-I containing pink colour
transparent solution with sediment described as right hand wash
of accused Sunita Sharma; LHW-I containing pink colour
transparent solution with sediment described as left hand wash of
accused Sunita Sharma and FCW-I containing pink colour
transparent solution with sediment described as wash of file
cover.
ii.(b) On chemical and thin layer chromatography (TLC)
examination, Exhibit RHW-I, LHW-I and FCW-I were found to
contain phenolphthalein and sodium carbonate. He filed his
detailed report regarding aforesaid chemical examination
Ex.PW2/A. He correctly identified the case property i.e. bottle
marked LHW-I Ex.PW2/Article-1, bottle marked RHW-I
Ex.PW2/Article-2 and bottle marked FCW-I Ex.PW2/Article-3.
iii. PW3 Harish Gupta – chartered accountant, with
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whom complainant Sudhanshu Mishra used to work.
iv.(a) PW4 L.K. Gautam deposed that in the year 2016, he
was posted as Assistant Commissioner, Vigilance, Department of
Trade and Taxes, Govt. of NCT of Delhi, Vyapar Bhawan, I.P.
Estate, New Delhi. A letter was received in their office from
ACB, GNCT of Delhi for furnishing details and providing
documents in respect of Smt. Sunita Sharma, VATI. He prepared
the reply dated 29.11.2016 Ex. PW4/A of the said letter and
annexed the requisite documents regarding Smt. Sunita Sharma,
VATI i.e. certified copies of biometric attendance report for the
month of October 2016 Ex.PW4/B, transfer order dated
07.02.2014 Ex.PW4/C, posting order dated 13.02.2014
Ex.PW4/D, orders dated 07.11.2014 and 05.05.2016 Ex.PW4/E
and Ex.PW4/F. PW4 further deposed that he had also provided
the reply dated 09.12.2016 Ex. PW4/G regarding the query of the
investigating agency in the present case FIR relating to Smt.
Sunita Sharma, VATI. PW4 further deposed that the documents
annexed with the reply received from ward no. 48 and 51 running
into five pages Mark-X (colly).
iv.(b) On 31.05.2017, he had issued a letter Ex. PW4/H to
Assistant Commissioner, HR Branch, Department of Trade and
Taxes, Govt. of NCT of Delhi to provide charter of duties of
VATI and posting order of Smt. Sunita Sharma, VATI in Ward
no. 51. The copy of the letter was sent to Sh. Hemant Mishra,
Inquiry Officer, ACB, Vikas Bhawan. PW4 further deposed that
on 04.07.2017, he had prepared a reply Ex. PW4/I regarding the
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queries of the investigating agency and also annexed the requisite
documents i.e. Circular no. F.III/CST/Estt./130/2000/
PFP(I)9386-9387 dated 29.08.2008 Ex. PW4/J and posting Order
dated 13.02.2014 Ex. PW4/K regarding posting of Smt. Sunita
Sharma in KCS and another Order no.
F.III/66/DT&T/2005/Estt./Pt.I dated 31.05.2014 Ex. PW4/L
showing the posing from KCS to Zone-V. PW4 identified
signatures of Ms. Neeraja R. Kumar on Ex. PW4/J, PW4/K and
PW4/L as he had seen her while writing and signing in his
ordinary course of duties.
v. PW5 Gaurav Dawar – partner of M/s Dynamic India
Exports at A-61, Baljeet Nagar, New Delhi.
vi. PW6 Retired SI Bhoop Singh was the Duty Officer,
who proved the DD no. 11 Ex. PW6/A; DD No. 18 Ex. PW6/B;
copy of FIR no. 29/2015, PS ACB Ex.PW6/C; his endorsement
on the rukka Ex.PW6/D; DD no. 23Ex. PW6/E and D.D. No. 25
Ex. PW6/F. PW6 also proved DD no. 24 dated 28.10.2015 of PS
ACB Ex. PW6/G which was in the handwriting of Insp. Kailash
Chand and PW6 identified his signatures and handwriting on the
same. PW6 also proved DD no. 26 dated 28.10.2015 Ex. PW6/H
recorded by Insp. B.K. Singh and PW6 identified his handwriting
and signature on the same.
vii. PW7 Sudhanshu Kumar Mishra – complainant.
viii.(a) PW8 Anil Kumar Kaushal – panch witness deposed
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that on 28.10.2015, he was posted as JE in the Irrigation and
Flood Control, Govt. of NCT of Delhi and his duty was as a
panch witness at ACB and reached there at about 10:00 am. At
about 11:30 am, he was called by Insp. Kailash Chand in his
office with complainant Sudhanshu Mishra. Complainant
Sudhansu Mishra himself wrote a complaint in his presence and
handed over the same to Insp. Kailash Chand. PW8 also went
through the contents of the complaint already Ex.PW7/A and put
his signatures thereupon. Thereafter, complainant handed over
Rs.2,000/- i.e. two notes of Rs.1,000/- denomination to the Insp.
Kailash Chand, who gave demonstration by putting some
chemical on the currency notes and thereafter he was asked to
touch those notes and his hands were put into some water like
solution i.e. sodium carbonate at which the colour of the solution
turned pink. Thereafter, the pink solution was thrown and he
cleaned his hands. He was briefed by RO to accompany the
complainant and in case any transaction of bribe took place and
if the bribe was accepted, he was asked to give signal by waving
his hand two times over his head. Thereafter, at about 12:00
noon, PW8 alongwith complainant and some other police
officials including one lady constable and Insp. Kailash Chand
left for raid in two government vehicles. At about 12:50 pm,
they reached at ITO at Trade and Tax Office and stopped the
vehicles at about 200 meters away from the office of Trade and
Tax Department. Thereupon, PW8, complainant and raiding
team proceeded for the Trade and Taxes Department and reached
at the 5th floor of Trade and Tax Department. The team remained
outside and he and complainant were instructed to go inside the
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room of the accused. Thereafter, at about 01:10 pm, he
alongwith complainant went inside the room of the accused.
PW8 correctly identified the accused Sunita Sharma before court.
PW8 further deposed that accused was doing her work in the said
room and she proceeded for taking lunch and at that time
complainant Sudhanshu Mishra asked the accused ” jo tumhara
hai wo le lo” and thereupon the complainant took out Rs.2,000/-
i.e. two GC notes of Rs.1,000/- denomination and handed over
the same to the accused, who after accepting the same kept those
GC notes in a file. Accused after putting the file in almirah,
started proceeding for lunch and in the meantime, PW8 gave
signal at which the raiding team came there and lady constable
took search of the accused but nothing was recovered from the
possession of the accused. Thereupon PW8 was enquired and he
told that the bribe money was kept by the accused in a file lying
in almirah. Thereafter, the raiding team took the search of the
almirah and in one of the file, bribe amount of Rs.2,000/- was
recovered. Thereafter, accused was brought to verandah i.e.
outside the room and the raiding team took both handwash of the
accused and the colour of the solution changed to pink.
Thereafter wash of the file from which bribe amount was
recovered was also taken and the colour of the solution also
turned pink. The raiding team sealed and packed the solution.
After that the raiding party alongwith the accused returned back
to ACB.
viii.(b) PW8 correctly identified glass bottle containing
light pink liquid marked LHW-I as Ex.PW-2/Article-1; another
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glass bottle containing white liquid marked RHW-I as Ex.PW-
2/Article-2; one glass bottle containing pink colour liquid
marked FCW-I as Ex.PW-2/Article-3; three bottles containing
light pink liquid, marked as LHW-II, RHW-II and FCW-II as Ex.
PW-1/Articles-4 to 6 respectively; one file cover containing ten
papers as Ex.PW-1/E; two GC notes of Rs.1000/- denomination
as Ex. PW-1/F (colly).
viii.(c) On being cross-examined by the Ld. Addl.P.P. for
the State, PW8 affirmed that his statement u/s 161 Cr.P.C. Ex.
PW8/A was recorded at ACB after the raid by the IO on
28.10.2015. PW8 also affirmed that the serial number of the GC
notes provided by the complainant were mentioned in the pre-
raid report Ex. PW7/B by the RO at ACB. PW8 also affirmed
that he was asked by the RO to touch the powder smeared notes
with his right hand for which the demonstration was given at the
ACB and thereafter the powder smeared notes were handed over
to the complainant by the RO and the complainant put the
aforesaid notes in the left side pocket of his blue colour jeans
pant and the bottle of the remaining phenolphthalein powder was
handed over to the duty officer of the ACB. PW8 affirmed that
after the demand of bribe was made by the accused, the
complainant took out the powder smeared notes from his pocket
and handed over the same to the accused.
viii.(d) PW8 stated that he did not remember whether the
bribe i.e. two notes of Rs.1,000/- denomination were counted by
the accused with both her hands. PW8 voluntarily stated that the
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accused had not demanded the amount but the complainant said
“jo tumhara hai wo le lo “. He also affirmed that the serial
numbers of the recovered GC notes from the file cover were
tallied with the serial numbers of the GC notes mentioned in the
pre-raid report and were found to be correct. PW8 denied that
he stated to the police and it so happened that at the instance of
the RO, he retrieved the file cover containing the bribe of
Rs.2,000/- from the almirah.
viii.(e) PW8 admitted that the sealed exhibits i.e. handwash
were marked as RHW-I, RHW-II, LHW-I and LHW-II; exhibits
of file cover wash were marked as FCW-I and FCW-II. PW8
also affirmed that the recovered currency notes were taken into
police possession vide seizure memo Ex.PW1/B and the exhibits
LHW-I, LHW-II, RHW-I, RHW-II, FCW-I, FCW-II, sealed
pulanda containing file and sample seal were also taken into
police possession vide seizure memo Ex.PW1/A. He affirmed
that the seal after use was handed over to him by the RO. He
also affirmed that the accused was arrested at ACB and
documents i.e. arrest memo and personal search memo of the
accused Ex.PW1/C and Ex.PW1/D respectively were signed by
him. He denied that accused made a demand of bribe from the
complainant and on her asking, complainant handed over
Rs.2,000/- as bribe. PW8 denied that he was deliberately
deposing that accused had not specifically demanded the bribe in
order to save the accused.
ix. PW9 ASI Vinay Pal deposed that on 28.10.2015, he
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was posted as MHC(M), PS Civil Lines and IO Insp. B.K. Singh
deposited the case property and sealed exhibits in the present
case in which regard he made entry in the Register no. 19 at
serial no. 1009 Ex.PW9/A. He further deposed that on
03.11.2015, the exhibits in the present case were sent to FSL,
Rohini through Ct. Sanjay vide RC no.130/21/15 Ex. PW9/B on
the instructions of the IO and he made entry to the said effect at
point X of entry Ex.PW9/A and Ct. Sanjay handed over to him
the acknowledgment of case acceptance Ex.PW9/C. He further
deposed that on 06.01.2016, Ct. Leela Ram collected the FSL
result and sealed exhibits from FSL on the instructions of the IO
and deposited the same in the Malkhana and he made entry to the
said effect at point Y of Ex.PW9/A. The result was handed over
to the IO of the present case by Ct. Leela Ram.
x. PW10 Aakash Kumar produced the original duty
roster of panch witness for the month of October 2015 of Civil
Division-IV, Irrigation and Flood Control Department, Delhi
Ex.PW10/A.
xi. PW11 Sh. S.S.Bajwan deposed that on 10.08.2017,
he was posted as Assistant Commissioner in Department of
Trade and Taxes, Vyapar Bhawan, ITO, New Delhi, and he
joined the investigation of the present case and visited the office
of ACB. He further stated that the document i.e. Procedure of
Registration Ex. PW11/A was bearing his signature at point A
and the queries which were put to him by ACB officials were
replied in writing. He further stated that the document already
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Mark-X annexed with the said file bears his signatures on all 17
pages i.e. page no. 78 to 94 of the charge-sheet.
xii.(a) PW12 Insp. Kailash Chand – Raid Officer, who
deposed regarding the raid proceedings and proved the raid
report Ex. PW12/A. He deposed that on the basis of raid report
Ex. PW12/A, he prepared a rukka Ex.PW12/B, which he handed
over to Ct. Sanjay Malik for registration of case. PW12 called
Insp. B.K. Singh through Ct. Ashok. Insp. B.K. Singh reached at
the spot and PW12 apprised him regarding the success of the raid
and also handed over to him the seizure memo, currency notes,
sealed exhibits and the accused. Insp. B.K. Singh also enquired
from him regarding the raid and thereafter PW12 was asked to
leave the spot. PW12 left for ACB at about 03:30 pm.
xii.(b) PW12 correctly identified the case property i.e.
sealed glass bottles containing pink solution marked LHW-II
Ex.PW1/Article-4, marked RHW-II Ex.PW1/Article-5, marked
FCW-II Ex.PW1/Article-6, marked LHW-I Ex.PW2/Article-1,
marked RHW-I Ex.PW2/Article-2, marked FCW-I
Ex.PW2/Article-3, one file cover alongwith the papers
Ex.PW1/E and one white colour envelope containing two GC
notes of Rs.1000/- denomination Ex.PW1/F (colly).
xiii. PW-13 ACP Ramesh Kumar Narang deposed that in
the month of April 2018, the further investigation of the present
case was assigned to him alongwith the case file and during
investigation, he had recorded statements of two witnesses i.e.
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 18 of 87
CA Harish Gupta and also recorded supplementary statement of
complainant Sudhanshu. In the year 2020 he was transferred and
he handed over the case file in the office of the ACB.
Xiv. PW14 Inspector B.K. Singh – IO of the case.
xv. PW15 ACP Hemant Kumar Mishra deposed that
on 28.09.2016, investigation of present case was assigned to him.
FSL result of exhibits of this case was already placed on the file
and the result was positive. During investigation, he issued notice
to the Additional Commissioner, Vigilance Department of Trade
and Tax, GNCT of Delhi dated 03.10.2016 Ex.PW15/A to
provide certain documents and information. In response to the
notice, PW15 received reply dated 29.11.2016 alongwith the
documents Ex.PW4/B to Ex.PW4/G provided by Trade and
Taxes Department Ex.PW4/A. PW15 also received a reply dated
31.05.2017 Ex. PW4/H alongwith the required documents
Ex.PW4/J, Ex.PW4/K and Ex.PW4/L from Trade and Taxes
Department. During investigation, he had also recorded
statement of proprietor of M/s. Dynamic India Exports Sh.
Gaurav Dawar U/s 161 Cr.P.C. He had also interrogated the
accused in his office on 24.03.2017 to clarify certain facts. He
had also examined Sh. S.S. Bajwan, Supervisory Officer of the
accused to know the procedure of the sales tax registration and
other facts of the case on 10.08.2017. Certain documents
(relating to the procedure of registration adopted by the Trade
and Taxes Department) running into 17 pages Ex. PW11/A were
also produced by him during his examination. On 26.04.2018, he
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 19 of 87
was transferred from ACB and he handed over the case file to
Insp. Ramesh Narang.
xvi.(a) PW16 ASI Sanjay Malik – member of the raiding
team to whom the RO handed over the rukka with direction to
get the case FIR registered at PS ACB. At about 03:30 pm, he
left the spot alongwith rukka and went to PS ACB and reached
there at 04:00 pm. He handed over the rukka to Duty Officer SI
Bhoop Singh who got the case FIR registered. Thereafter, when
Insp. B.K. Singh alongwith other members of raiding team,
panch witness, complainant and accused reached at ACB and he
handed over the copy of FIR alongwith original rukka to him.
xvi.(b) PW16 also joined the investigation on 03.11.2015,
when he collected the sealed exhibits alongwith Road Certificate
from MHC(M) of PS Civil Lines and deposited the sealed
exhibits, forwarding letter etc. at FSL and received the
acknowledgment Ex. PW16/B alongwith copy of RC Ex.
PW16/A from the FSL, which he handed over to the MHC(M),
PS Civil Lines.
xvii. PW17 Insp. Rajesh Kumar Shah deposed that on
22.07.2020, the investigation of the present case was assigned to
him and he received the file from previous IO ACP Ramesh
Narang. Draft charge-sheet was already prepared by the previous
IO and the sanction U/s 19 of PC Act was to be obtained. He got
issued one request letter for grant of sanction against the accused
through ACP Raj Rani Sharma Ex.PW17/A. He identified
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 20 of 87
signature of ACP Raj Rani Sharma on Ex. PW17/A as he had
seen her while writing and signing during his ordinary course of
duties. On 31.03.2021, sanction U/s 19 of PC Act against the
accused was received. He finalized the charge-sheet and filed the
same in the court.
xviii. PW18 Udit Prakash Rai deposed that in March
2021, he was working as Director, Education, Govt. of NCT of
Delhi. In August 2020, a request was received from Vigilance
for grant of prosecution sanction U/s 19 of PC Act against
accused Sunita Sharma who was earlier posted in VAT
Department and thereafter, she was transferred to Education
Department. He being the competent authority to grant the
sanction, after perusal of the documents i.e. copy of FIR, FSL
report and statements of witnesses etc. and considered the same
and after applying his mind, accorded sanction U/s 19 of PC Act
against accused Sunita Sharma Ex.PW18/A. The sanction order
was sent to the forwarding authority i.e. ACP, ACB.
9. During course of trial, on 08.04.2022 ld. Counsel for
the accused admitted document i.e. suspension order of accused
dated 15.01.2016 Ex. A1.
STATEMENT OF ACCUSED :
10. After conclusion of prosecution evidence,
statements of accused was recorded under Section 313 Cr.P.C
wherein she denied the correctness of all the incriminating
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 21 of 87
circumstances appearing in evidence against her and stated that
she was innocent and falsely implicated in the present case.
11. Accused further stated that she has not committed
any offence. The entire case against her was instituted on the
basis of the absolutely false and fabricated allegation made by
the complainant. The investigating agency has also not
conducted the investigation in a fair and impartial manner.
Despite there being enough material to falsify the allegations
against her the police officers have ignored relevant material to
make out a false case against her to support the false allegations
of the complainant. She further stated that she had not demanded
any gratification to the tune of Rs. 10,000/- for issuance of
registration certificate, nor had she received any amount in
furtherance of the alleged demand. The entire allegations are
false. She had never met the complainant before 28.10.2015 i.e.
the day of the incident, when an absolutely false case was
fastened upon her. On 28.10.2015 some people came to her
office and asked her to accompany them stating that a complaint
has been received against her. She questioned them about the
particulars but they insisted that she should accompany them and
stated that they will apprise her about the entire situation at the
station. They did not inform any of her superior officers despite
the fact that she was being taken away during working hours. No
raid or any kind of proceedings were conducted at her office as
claimed by the police. No demand was made by her, nor bribe
was paid to her, neither was there any recovery of money at her
instance. No hand wash procedure was done at her office, the
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 22 of 87
police officials just came and on their asking she accompanied
them, they even took one file from the VAT office without any
permission or intimation to any superior officer. Mr. Ajay Tagra,
who was also working in the department, had a desk outside her
office cubical witnessed this. After reaching the police station
she was forcefully made to sign some papers and when she
refused, she was told that in case she refused, she would be
arrested. Out of fear she complied with directions of the police
officers there. Despite that, she was detained in the ACB Office
while the police officials were busy fabricating false documents.
All the documents/evidence/material has been created and
fabricated by the police after she was deceitfully taken to the
police station, no documentation of any kind was done at her
office. The alleged bribe money has been planted to make out a
false case against her. Thereafter she was falsely arrested in this
case. Accused further stated that she was posted in the Trade and
Taxes Department since June 2014 and had an unblemished
service record. She was In-charge of Ward No. 41 and 43 and
due to the transfer of the inspector of the ward 51, she was
randomly given charge of ward 51 under which the application of
M/s Dynamic India Export was made. As per record, M/s
Dynamic India Export had applied for grant of VAT certificate
on 29.07.2015 by submitting their documents and applying
through the online portal. Being a VATI, she was assigned the
duty to visit the premises of the applicant to inspect/verify the
genuineness of the documents and existence of the business at
the stated premises. The inspections were required to be surprise
inspections, which were conducted after receiving the online
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 23 of 87
applications. In respect of M/s Dynamic India Exports she had
conducted the surprise inspection of the premises on 14.10.2015
and as the dealer was not found functioning, she submitted her
report. As per the procedure of registration when the dealer was
not found functioning then the status of the dealer on the DVAT
website was updated as cancelled. The outcome of the
application can be checked online by the dealer. This was where
her purview/jurisdiction in the capacity of a VATI ends. When
she submitted the report and cancel the registration of the dealer
that was the final report and the same could not be changed by
anyone, in fact no particulars for example dates etc. can also be
changed by anyone. In case the dealer desires a revisit, they
were required to put forth a request to the VATO. The VATI has
no concern or power in that respect. The registration of Dynamic
India Exports stood cancelled on 16.10.2015 which was prior to
19.10.2015, when the allegations of demanding gratification for
issuing registration certificate was made. After cancelling the
registration, she could not have changed it, as such she could not
have issued any registration certificate. Therefore the allegation
of demanding gratification for issuing registration certificate in
itself was absolutely false and incorrect. She was being punished
for doing her job diligently, the complainant had levelled
absolutely false and fabricated allegations against her to
implicate her in this false case with the sole intention of seeking
vengeance as she had cancelled the registration of Dynamic India
Export. Accused further stated that there was a departmental
enquiry conducted against her and after completion of enquiry
she was exonerated and her suspension was revoked in January
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 24 of 87
2020.
12. Accused preferred to lead evidence in her defence
and has examined two defence witnesses.
i) DW1 Ajay Kumar Tagra deposed that he was
working as Assistant Section Officer (ASO) with Irrigation and
Flood Control Department, GNCT of Delhi. From August 2012
till May 2016, he was posted as UDC with Sales Tax Department
(VAT), Ward no. 43, 5th Floor, I.P. Estate, Vyapar Bhawan. He
knew accused Sunita Sharma as he had worked with her. She
was Inspector, VAT of Ward no. 43 during his posting in the
VAT Department. He was having his seat in the same room in
which accused Sunita Sharma was having her cabin. On
28.10.2015 at about 01:15-01:30 pm, he was sitting at his seat
and was working at around lunch time, then suddenly 4-5 persons
entered the room. When he enquired from them, one of them
told him that they are from ACB and directed him to remain
seated on his seat. Thereafter, they met with accused Sunita
Sharma and confirmed her identity and thereafter they made
enquiries from her and told her that there was a complaint against
her and they took her with them. The whole incident must have
taken place within 4-5 minutes. DW1 further deposed that the
cabin of accused Sunita Sharma had glass on the upper portion of
the wall partition below. He could see what was happening
inside but he could not hear. The table of accused Sunita Sharma
had a computer system kept on it. There was an iron almirah with
doors in her cabin. He heard the conversation between the ACB
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 25 of 87
officials and accused outside her cabin as she was out of her
cabin for lunch. He had heard that money had been recovered
from accused Sunita Sharma. He did not see the actual recovery
taking place. Nothing else took place in his presence. No one
from the police officials or accused Sunita Sharma came back to
the office thereafter in his presence. He was present in his office
on 28.10.2015 throughout the day. He further stated that may be
able to identify the site plan of room in which Ward no. 43 was
situated. Site plan already Ex.PW7/D was shown to DW1 and
after seeing the same, DW1 said that his table was placed in the
room at point A-2 and he used to sit facing the cabin of accused
Sunita Sharma.
ii) DW2 Yogesh Aggarwal, Assistant Section Officer,
Vigilance Branch, Education Department, produced the
Departmental Enquiry file of accused Sunita Sharma. He
deposed that the enquiry was conducted by Sh. L.S. Yadav,
Enquiry Officer. The Enquiry Officer submitted his report dated
28.06.2019 Ex.DW2/B (colly) whereby accused Sunita Sharma
after the enquiry was exonerated. Thereafter suspension revoke
order dated 31.12.2019 Ex. DW2/A (colly) was published by Sh.
H. Rajesh Prasad, Commissioner (State Taxes) whereby it was
concluded that the charges against accused Sunita Sharma were
found not proved and the suspension of Sunita Sharma was
revoked. The memorandum of charge Ex. DW2/C (colly) on the
basis of which departmental enquiry was conducted was issued
on 30.06.2016 .
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 26 of 87
13. Thereafter defence evidence was closed by the ld.
Counsel for the accused.
ARGUMENTS :
14. It is argued by Ld. Chief P.P. for the State that the
accused had demanded bribe amount of Rs. 10,000/- for issuance
of VAT certificate and processing of the VAT application of M/s
Dynamic India Exports. The said amount was demanded from
the complainant and initially an amount of Rs. 8000/- was
handed over to the accused and further amount of Rs. 2000/- was
to be given to the accused at the time of issuance of VAT
Certificate. Pursuant thereto a complaint was made by the
complainant Sudhanshu Kumar Mishra at ACB and a raid was
conducted and upon demand by the accused, the complainant
handed over Rs. 2000/- to the accused in the presence of panch
witness and the accused was caught red handed. The bribe
amount of Rs. 2000/- i.e. two GC notes of denomination of Rs.
1000/- each was also recovered from the file in the almirah in the
room of the accused. It is stated that the hand-washes and the
file wash turned pink. It is stated that the FSL result Ex. PW2/A
regarding the hand washes and the file wash indicates presence
of Phenolphthalein and Sodium Carbonate. It is urged that the
raid proceedings have been described in detail by the
complainant and the testimony of the panch witness and raid
officer also corroborates the version of the complainant. It is
stated that even though PW3 and PW5 have not supported the
prosecution case on some points, however, their testimony and
the testimony of complainant PW7 and the panch witness PW8
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 27 of 87
alongwith testimony of the raid officer PW12 and other witnesses
alongwith the FSL result Ex. PW2/A cumulatively proves the
guilt of the accused Sunita Sharma beyond reasonable doubt and
hence she is liable to be held guilty of the offences she is charged
with.
15. On the other hand, it is contended by ld. Counsel for
the accused that the prosecution has failed to prove “demand” of
bribe amount by the accused, which is an essential ingredient of
Section 7 of PC Act. It is urged that it is settled law that mere
recovery of currency notes without proof of demand would not
establish an offence u/s 7 as well as 13(1)(d) of PC Act. It is
urged that there are material contradictions, improvements and
embellishments in the testimony of the complainant PW7 over
his initial complaint Ex. PW7/A and the testimony of the
complainant is not worthy of reliance. It is urged that the
testimony of the complainant PW7 is not corroborated in material
particulars. It is urged that even the panch witness PW8 has not
supported any demand having been made by the accused at the
spot. It is also urged that there are contradictions in the
testimony of the raiding team members including the
complainant PW7, panch witness PW8, W/HC Kiran PW1 and
the raid officer PW12 on material aspects relating to recovery of
bribe money and the hand-wash proceedings conducted during
raid. It is urged that the prosecution has not even been able to
prove acceptance of the bribe amount by the accused. It is
accordingly argued that neither demand nor acceptance of the
bribe amount by the accused has been established on record and
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 28 of 87
hence, the accused is liable to be acquitted of the offence she is
charged with.
16. In support of his contentions, ld. Counsel for the
accused has relied upon the judgments in the matters of (1)
Mahal Singh vs. State of Delhi, (2023) SCC OnLine Del5334;
(2) K.Shanthamma vs. State of Telangana, (2022) 4 SCC 574; (3)
State of U.P. vs. Jagdish Singh Malhotra, (2001) 10 SCC 215; (4)
Union of India Through Inspector CBI vs. Purnandu Biswas ,
(2005) 12 SCC 576, (5) State of A.P. vs. T.Venkasteswara Rao,
(2004) 13 SCC 227 and (6) Gulam Mahmood A.Malek vs. State
of Gujrat, 1980(Supp) SCC 684.
17. I have heard ld. Counsel for the parties and perused
the record.
18. Before appreciating evidence in this case, it is
important to note that even in a case under Prevention of
Corruption Act, 1988, the onus is on the prosecution to prove the
the foundational facts. The Hon’ble Supreme Court in A. Subair
v. State of Kerala [(2009) 6 SCC 587] while dwelling on the
purport of the statutory prescription of Sections 7 and 13(1)( d) of
the Act ruled that the prosecution has to prove the charge
thereunder beyond reasonable doubt like any other criminal
offence and that the accused should be considered to be innocent
till it is established otherwise by proper proof of demand and
acceptance of illegal gratification, which are vital ingredients
necessary to be proved to record a conviction.
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 29 of 87
19. The Constitution Bench of Hon’ble Supreme Court
in Neeraj Dutta vs. State, Govt. of NCT of Delhi, Crl. Appeal no.
1669 of 2009, with regard to the nature and quality of proof
necessary to sustain a conviction for offences under Section 7 or
13 (1) (d) (i) & (ii) of the PC Act, summarized as under :-
” 68. (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.
(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.
(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.
(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 receives the illegal
gratification, it is a case of acceptance as per
Section 7 of the Act. In such a case, there
need not be a prior demand by the public
servant.
(ii) On the other hand, if the public servant
makes a demand and the bribe giver accepts
the demand and tenders the demanded
gratification which in turn is received by the
public servant, it is a case of obtainment. InCC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 30 of 87
the case of obtainment, the prior demand for
illegal gratification emanates from the
public servant. This is an offence under
Section 13 (1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the
offer by the bribe giver and the demand by
the public servant respectively have to be
proved by the prosecution as a fact in issue.
In other words, mere acceptance or receipt
of an illegal gratification without anything
more would not make it an offence under
Section 7 or Section 13 (1)(d), (i) and (ii)
respectively of the Act. Therefore, under
Section 7 of the Act, in order to bring home
the offence, there must be an offer which
emanates from the bribe giver which is
accepted by the public servant which would
make it an offence. Similarly, a prior
demand by the public servant when accepted
by the bribe giver and in turn there is a
payment made which is received by the
public servant, would be an offence of
obtainment under Section 13 (1)(d) and (i)
and (ii) of the Act.
(e) The presumption of fact with regard to the
demand and acceptance or obtainment of an
illegal gratification may be made by a court of
law by way of an inference only when the
foundational facts have been proved by
relevant oral and documentary evidence and
not in the absence thereof. On the basis of the
material on record, the Court has the discretion
to raise a presumption of fact while
considering whether the fact of demand has
been proved by the prosecution or not. Of
course, a presumption of fact is subject to
rebuttal by the accused and in the absence of
rebuttal presumption stands.
(f) In the event the complainant turns ‘hostile’,
or has died or is unavailable to let in his
evidence during trial, demand of illegal
gratification can be proved by letting in the
evidence of any other witness who can again
let in evidence, either orally or by
documentary evidence or the prosecution can
prove the case by circumstantial evidence. The
trial does not abate nor does it result in an
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 31 of 87
order of acquittal of the accused public
servant.
(g) In so far as Section 7 of the Act is
concerned, on the proof of the facts in issue,
Section 20 mandates the court to raise a
presumption that the illegal gratification was
for the purpose of a motive or reward as
mentioned in the said Section. The said
presumption has to be raised by the court as a
legal presumption or a presumption in law. Of
course, the said presumption is also subject to
rebuttal. Section 20 does not apply to Section
13 (1) (d) (i) and (ii) of the Act.
(h) We clarify that the presumption in law
under Section 20 of the Act is distinct from
presumption of fact referred to above in point
(e) as the former is a mandatory presumption
while the latter is discretionary in nature.”
20. The Hon’ble Supreme Court in State of Maharashtra
Vs. Dnyaneshwar Laxman Rao Wankhede Crl.Appeal No. 1350
of 2009, d.o.d. 29.07.2009 held that the foundational facts must
be established by the prosecution. It was also observed that that
while invoking the presumption under section 20 of PC Act, the
court is required to consider the explanation offered by the
accused, if any, only on the touch stone of preponderance of
probability and not on the touch stone of proof beyond all
reasonable doubt. The Hon’ble Supreme court made the
following observations in this regard:
“16. Indisputably, the demand of illegal
gratification is a sine qua non for constitution
of an offence under the provisions of the Act.
For arriving at the conclusion as to whether all
the ingredients of an offence, viz., demand,
acceptance and recovery of the amount of
illegal gratification have been satisfied or not,
the court must take into consideration the factsCC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 32 of 87
and circumstances brought on the record in
their entirety. For the said purpose,
indisputably, the presumptive evidence, as is
laid down in Section 20 of the Act, must also
be taken into consideration but then in respect
thereof, it is trite, the standard of burden of
proof on the accused vis-`-vis the standard of
burden of proof on the prosecution would
differ. Before, however, the accused is called
upon to explain as to how the amount in
question was found in his possession, the
foundational facts must be established by the
prosecution. Even while invoking the
provisions of Section 20 of the Act, the court
is required to consider the explanation offered
by the accused, if any, only on the touchstone
of preponderance of probability and not on the
touchstone of proof beyond all reasonable
doubt.”
21. As regards raising of presumption under section 20
of the PC Act, it was held in Mukut Bihari Vs State of Rajasthan,
2012 (11) SCC 645 as under :-
“The law on the issue is well settled that
demand of illegal gratification is sine qua non
for constituting an offence under the 1988
Act. Mere recovery of tainted money is not
sufficient to convict the accused, when the
substantive evidence in the case is not
reliable, unless there is evidence to prove
payment of bribe or to show that the money
was taken voluntarily as bribe. Mere receipt of
amount by the accused is not sufficient to
fasten the guilt, in the absence of any
evidence with regard to demand and
acceptance of the amount as illegal
gratification but the burden rests on the
accused to displace the statutory presumption
raised under section 20 of the 1988 Act, by
bringing on record evidence, either direct or
circumstantial, to establish with reasonable
probability, that the money was accepted by
him, other than as a motive or reward as
referred to in Section 7 of the 1988 Act. WhileCC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 33 of 87
invoking the provisions of section 20 of the
Act, the court is required to consider the
explanation offered by the accused, if any,
only on the touchstone of preponderance of
probability and not on the touchstone of proof
beyond all reasonable doubt. However, before
the accused is called upon to explain as to
how the amount in question was found in his
possession, the foundational facts must be
established by the prosecution. The
complainant is an interest and partisan witness
concerned with the success of the trap and his
evidence must be tested in the same way as
that of any other interested witness and in a
proper case the court may look for
independent corroboration before convicting
the accused persons.”(emphasis supplied)
22. As regards drawing of presumption, it has been held
in Madhukar Bhaskarrao Joshi Vs State of Maharashtra, (2000) 8
SCC 571 as under:-
“The premise to be established on the facts for
drawing the presumption is that there was
payment or acceptance of gratification. Once
the said premise is established the inference to
be drawn is that the said gratification was
accepted “as motive or reward” for doing or
forbearing to do any official act. So the word
“gratification” need not be stretched to mean
reward because reward is the outcome of the
presumption which the court has to draw on
the factual premise that there was payment of
gratification. This will again be fortified by
looking at the collocation of two expressions
adjacent to each other like “gratification of
any valuable thing”. If acceptance of any
valuable thing can help to draw the
presumption that it was accepted as motive or
reward for doing or forbearing to do an
official act, the word “gratification” must be
treated in the context to mean any payment for
giving satisfaction to the public servant who
received it.” (emphasis supplied)CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 34 of 87
23. The presumption under section 20 of the PC Act is
rebuttable either through cross-examination of witnesses of
prosecution or by adducing reliable evidence as held in C. M.
Girish Babu vs CBI, Cochin High Court of Kerala (2009) 3 SCC
779.
24. In State of Punjab v. Madan Mohan Lal Verma ,
(2013) 14 SCC 15, the Hon’ble Supreme court made the
following observations as regards the burden of proof upon the
prosecution and the accused in light of presumption under section
20 PC Act.:
“11. The law on the issue is well settled that demand of
illegal gratification is sine qua non for constituting an
offence under the 1988 Act. Mere recovery of tainted
money is not sufficient to convict the accused when
substantive evidence in the case is not reliable, unless
there is evidence to prove payment of bribe or to show
that the money was taken voluntarily as a bribe. Mere
receipt of the amount by the accused is not sufficient to
fasten guilt, in the absence of any evidence with regard
to demand and acceptance of the amount as illegal
gratification. Hence, the burden rests on the accused to
displace the statutory presumption raised under Section
20 of the 1988 Act, by bringing on record evidence,
either direct or circumstantial, to establish with
reasonable probability, that the money was accepted by
him, other than as a motive or reward as referred to in
Section 7 of the 1988 Act. While invoking the
provisions of Section 20 of the Act, the court is
required to consider the explanation offered by the
accused, if any, only on the touchstone of
preponderance of probability and not on the touchstone
of proof beyond all reasonable doubt. However, before
the accused is called upon to explain how the amount in
question was found in his possession, the foundational
facts must be established by the prosecution. The
complainant is an interested and partisan witness
concerned with the success of the trap and his evidence
must be tested in the same way as that of any other
interested witness. In a proper case, the court may lookCC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 35 of 87
for independent corroboration before convicting the
accused person. (Vide Ram Prakash Arora v. State of
Punjab [(1972) 3 SCC 652 : 1972 SCC (Cri) 696 : AIR
1973 SC 498] ,T. Subramanian v. State of T.N. [(2006)
1 SCC 401 : (2006) 1 SCC (Cri) 401] , State of Kerala
v. C.P. Rao [(2011) 6 SCC 450 : (2011) 2 SCC (Cri)
1010 : (2011) 2 SCC (L&S) 714] and Mukut Bihari v.
State of Rajasthan [(2012) 11 SCC 642 : (2013) 1 SCC
(Cri) 1089 : (2013) 1 SCC (L&S) 136] .)” (emphasis
supplied)
25. Viewed in light of law discussed herein-above, it
has to be examined as to what extent the prosecution has
succeeded in proving the charge against the accused.
TESTIMONIES OF MATERIAL PUBLIC WITNESSES:
26. PW3 Harish Gupta deposed that he was a Chartered
Accountant by profession. In the year 2015, his office was at
Azadpur, Office no. 101, Usha Kiran Building, New Delhi. On
28.10.2015, Sudhanshu Mishra (complainant) was working at his
office as office boy, who used to look after field duty as well as
office work of various departments. On that day, at about 08:30
pm, Sudhanshu Mishra came to his office and told him that he
had some issue with the VATI Ms. Sunita Sharma as she was
demanding money i.e. Rs.3,000/- in the matter of M/s Dynamic
India Exports and that he arranged the money on his own and
that he later approached the ACB and gave complaint against the
VATI which led to raid. PW3 further deposed that the proprietor
of the firm M/s Dynamic India Exports was one Mr. Gaurav
Dawar, who was introduced by him to his office boy SudhanshuCC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 36 of 87
for further formalities in Trade and Taxes Department. He was
not aware of any issue between Sudhanshu and VATI until
Sudhanshu informed him on 28.10.2015 after 08:30 pm. He was
cross-examined by ld. Counsel for the accused.
27. PW5 Gaurav Dawar deposed that in the year 2015,
he alongwith his partner Sh. Pankaj Mehta started a partnership
firm in the name and style M/s Dynamic India Exports at A-61,
Baljeet Nagar, New Delhi. They had hired Sh. Harish Gupta,
Chartered Accountant, for the sales tax registration and other
work of the firm. Sh. Harish Gupta had asked him to give
authority letter to one Sh. Sudhanshu Mishra, for obtaining
registration number/certificate from the Sales Tax Department.
Sh. Sudhanshu Mishra was staff of Sh. Harish Gupta at that time
and PW5 gave an authority letter dated 19.10.2015 Ex. PW5/A to
Sudhanshu Mishra for obtaining the registration number/
certificate from the Sales Tax Department. The other dealings on
behalf of the firm were done by Sh. Harish Gupta, Chartered
Accountant.
28. On being cross-examined by Ld. Addl. PP for the
State, PW5 denied that during the process of registration, he had
made part payment of Rs.8,000/- to Sudhanshu Kumar Mishra as
professional fee. He further denied that he had been won over
by the accused and that is why he was not disclosing the fact
regarding payment of Rs.8,000/- to Sudhanshu Mishra.
29. On being cross-examined by the Ld. Counsel for the
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 37 of 87
accused, PW5 deposed that the authority letter Ex.PW5/A in
favour of Sudhanshu Mishra was given by him at the office of
Sh. Harish Gupta. He stated that the VAT inspector conducted a
surprise visit pursuant to his application for registration of VAT.
PW5 did not receive any phone call from the VATI prior to the
visit at his office address which was mentioned in his application
for registration of VAT. PW5 did not remember as to when the
visit of VATI took place at his office. He stated that the VATI
had visited his office for inspection 2-3 weeks before 19.10.2015
but he was not too sure.
30. PW5 further deposed that he was informed by his
CA Sh. Harish Gupta that his registration for VAT had been
cancelled. PW5 could not tell when the information was given
to him by the CA. PW5 never had any communication or talk
with Sudhanshu, who was working in the office of his CA. PW5
also had no conversation, talk or discussion with regard to
registration of VAT or visit of VATI with Sudhanshu. PW5
never had any talk with Sudhanshu or with his CA Harish Gupta
with regard to any bribe to be paid to anyone or to the VATI. He
further deposed that there was never any discussion between him
and Sudhanshu regarding payment of bribe of Rs.10,000/-.
31. PW7 Sudhanshu Kumar Mishra was the
complainant, who deposed that on 28.10.2015, he was working in
a CA firm namely Harish B. Gupta and Company, as Accountant.
The said firm was looking after trade and taxes work of different
concerns. He had received an authority letter on 19.10.2015 Ex.
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 38 of 87
PW5/A from Gaurav Dawar, partner of Dynamic India Exports,
to collect the RC and to do VAT related work of the said
company. After receiving the authority letter on 19.10.2015, he
had visited the VAT Department, Trade and Taxes Building, ITO
to collect the RC of Dynamic India Export. The RC was being
issued by VATI and Rs.10,000/- was demanded for the issuance
of the aforesaid RC. He had visited the Trade and Taxes office
two times after 19.10.2015. During inspection which took place
after 19.10.2015, VATI Sunita Sharma had demanded
Rs.10,000/- from CA Gaurav Dawar and pursuant to the demand,
Rs.8,000/- were paid to the accused on the asking of PW7
telephonically, by CA Gaurav Dawar. The outstanding amount
of bribe of Rs.2,000/- was to be paid by him later when the RC
was to be issued by the VATI i.e. accused Sunita Sharma. PW7
correctly identified accused Sunita Sharma before the court.
PW7 further deposed that the certificate was not issued as the
remaining amount of Rs.2,000/- was not paid.
32. PW7 stated that he had visited the office of ACB 3-4
days prior to 28.10.2015 to make a complaint against the VATI.
He met with IPS Sh. Ishwar Singh at ACB office and on his
direction he met with Insp. Kailash Chand and Insp. B.K. Singh
at ACB and the modalities of raid were finalized. One panch
witness was called at the office, who was JE of Delhi State
Government, but PW7 did not remember his name. PW7 had
taken two GC notes of Rs.1,000/- denomination which were to be
paid as bribe to the accused. He handed over the aforesaid GC
notes to Insp. B.K. Singh. The serial number of the GC notes
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 39 of 87
were taken down on a paper. Powder was applied on the
aforesaid notes in front of him and panch witness. A
demonstration was given regarding the aforesaid powder. The
notes were touched by the panch witness and his handwash was
taken which turned pink. After the demonstration the powder
smeared notes were handed over to him in front of panch witness
by the RO and he was directed by the RO that he should put his
right hand over his head after coming out from the office. The
panch witness was also directed that he should witness the entire
proceedings and he should also make sure that the bribe was not
given forcibly.
33. At about 12:30 noon, PW7 alongwith panch witness
and two lady Constables, Insp. B.K. Singh, Insp. Kailash Chand
proceeded from the office of ACB in two separate vehicles and
reached at Trade and Taxes Department Building ITO. Before
entering into the office, the RO took the mobile phones of all the
raiding team members. Both the vehicles were parked at a
distance of 200 meters outside the Trade and Taxes Building.
34. PW7 further deposed that initially the panch witness
went inside the office and sat there. Thereupon the RO directed
PW7 to go inside the office. The raiding party dispersed and took
their position. PW7 went inside the Ward no. 43 where accused
was present. He told her to issue the RC and stated ” balance
payment laaya hoon”. Thereupon accused demanded the balance
payment of bribe of Rs.2,000/- from him. PW7 requested her to
issue the RC. Thereupon PW7 handed over the bribe amount of
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 40 of 87
Rs.2,000/- to Sunita Sharma. The panch witness witnessed all the
proceedings while sitting on the chair lying in the office.
Thereafter, PW7 came outside the office. Panch witness kept
sitting inside the office. PW7 went to the gallery of the office
and gave the pre-determined signal to the members of the raiding
party. Thereupon, the lady Constable entered and then Insp.
Kailash Chand with his team entered the office. Insp. Kailash
Chand introduced himself as officer of ACB and told the accused
that she had taken the bribe amount. The accused told that she
had not taken any bribe. Insp. Kailash Chand asked the accused
to search the entire team but she refused. Thereafter, Insp.
Kailash Chand showed his Identity Card. The Constable took
search of the purse of the accused but bribe money was not
found. Thereupon the files lying in the iron almirah in the office
of accused were checked one by one and in one of the files lying
in the almirah, the bribe amount was recovered. Thereafter, the
serial number of the bribe amount was confirmed from the panch
witness. Thereafter, both the hands of the accused were put into
the glass and the colour of the water turned pink/red. Thereafter,
the hand-wash was kept in five to six glass bottles. The mobile
phone of accused was checked by the RO. They remained there
and RO left the room to meet the Commissioner of Taxes.
Thereafter PW7 came down from the office alongwith some
members of the raiding party. The accused was brought down by
lady Constables. They were made to sit in different vehicles and
brought to ACB office. After the raid Insp. Kailash Chand
telephonically informed IPS Sh. Ishwar Singh about the success
of raid. After that statement of PW7 was recorded by Insp.
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 41 of 87
Kailash Chand. PW7 further deposed that the file cover was also
put into some liquid at the office of Trade and Taxes and it also
turned pink. The bribe amount and the file cover were also
sealed by the IO Insp. Kailash Chand at ACB office in his
presence.
35. PW7 further stated that the complaint dated
28.10.2015 Ex. PW7/A was written by him prior to proceeding
for raid. PW7 also identified his signature on the raid report
Ex.PW7/B (colly), seizure memo of the exhibits i.e. LHW-I,
LHW-II, RHW-I, RHW-II, FCW-I and FCW-II Ex.PW1/A,
seizure memo of the currency notes Ex.PW1/B, arrest memo and
personal search memo of the accused Ex.PW1/C and Ex.PW1/D
respectively.
36. PW7 also correctly identified the case property i.e.
three sealed glass bottle containing light pink liquid marked
LHW-I as Ex.PW-2/Article-1, marked RHW-I as
Ex.PW-2/Article-2; marked FCW-I as Ex.PW-2/Article-3 and
three other sealed glass bottles containing light pink liquid and
marked LHW-II, RHW-II and FCW-II as Ex. PW-1/Articles-4 to
6 respectively. PW7 also correctly identified one file cover
containing ten papers as Ex. PW-1/E by stating that from the said
file cover the bribe amount was recovered. PW7 also correctly
identified two GC notes of Rs.1000/- denomination, serial
number of which were mentioned in the pre-raid report and the
seizure memo as Ex. PW-1/F (colly). PW7 stated that the said
notes were given to the accused after she demanded the bribe and
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 42 of 87
pursuant to the demand the said notes were accepted by accused,
which were recovered from the file cover.
37. On being cross-examined by Ld. Addl. PP for the
State, PW7 stated that his statement dated 28.10.2015 Ex. PW7/C
was recorded after the raid. PW7 affirmed the suggestion that
after going through his written complaint at ACB before the raid,
the same was read by the panch witness Anil Kumar Kaushal and
after satisfying himself, he alongwith Insp. Kailash Chand had
also put their respective signatures on his complaint. PW7 also
affirmed that after the demonstration given by the RO, the
powder smeared notes were handed over to him by the RO and
he put the same in the left side pocket of his jeans pant; that he
was directed to keep the panch witness with him during the entire
proceedings so that the panch witness could listen and see the
entire process of demand and acceptance of bribe; that he was
also directed to hand over the bribe amount when the same was
demanded by the accused; that the panch witness was directed to
remain with him to see and hear the entire process of demand and
acceptance of bribe by the accused and after the bribe was
accepted by the accused, he had to give signal to the raiding party
by raising his right hand two times over his head. PW7
voluntarily stated that the IO was explaining about giving signal
to panch witness when he was also present there and he was
under impression that he was asking both of them to give the
signal after acceptance of bribe and that is why he deposed that
he gave signal while coming in the gallery after acceptance of
bribe by the accused and he gave the signal by waving his right
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 43 of 87
hand over his head. PW7 stated that firstly he came outside the
office and put his hand on his head on which RO asked him “ho
gaya” and he replied yes and thereafter panch witness followed
him and gave signal. PW7 affirmed that after the demonstration
given at the ACB office regarding the powder smeared notes the
pink solution i.e. the handwash of the panch witness was thrown
away and the glasses were cleaned with the help of soap and
water and he alongwith panch witness and the RO also cleaned
their hands with soap and water; that the bottle containing the
remaining phenolphthalein powder was handed over to DO after
demonstration; that after reaching the office, he and the panch
witness were again briefed by the RO there and thereafter he
alongwith the panch witness together reached at the 5 th floor of
the Trade and Taxes Office, ITO, Delhi, where he pointed out the
office of the accused to the panch witness and where the accused
was sitting and at about 01:10 pm, he alongwith the panch
witness entered the office of the accused. PW7 also affirmed the
suggestion that after receiving the amount of bribe from him,
accused counted the notes with both her hands and after that she
kept the currency notes in a file cover and put the file cover in an
almirah; that when the raiding team entered the office of the
accused after receiving the pre-determined signal, the panch
witness narrated the entire proceedings to Insp. Kailash Chand
and on the instructions of Insp. Kailash Chand, the panch witness
took out one file cover containing the bribe amount from inside
the almirah; that two powder smeared currency notes of
Rs.1000/- were recovered from the file cover and the serial
numbers of the currency notes were compared with the serial
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 44 of 87
numbers mentioned in the pre-raid report and found to be correct
and the recovered bribe amount was seized at the office of the
accused. He affirmed that the right hand wash of the accused was
taken firstly and the colourless solution which turned pink was
kept in two separate glass bottles and their mouths were sealed
with the seal impression of KC with the help of cloth and both
the bottles were marked as RHW-I and RHW-II. PW7 also
affirmed that after that the left hand wash of the accused was
taken and the colourless solution which turned pink was kept in
two separate glass bottles and their mouths were sealed with the
seal impression of KC with the help of cloth and marked as
LHW-I and LHW-II. He also affirmed that the file wash was also
taken at the office of the accused from which the bribe amount
was recovered and the colourless solution which turned pink i.e.
file wash was kept in two separate glass bottles and the mouth of
the bottles were sealed with the seal of KC with the help of cloth
and marked as FCW-I and FCW-II. He further affirmed that he
had put his signatures on the labels affixed on all the sealed
exhibits. He further affirmed that the file cover was kept in a
yellow colour envelope and was sealed with the seal of KC and
was taken into police possession vide seizure memo Ex. PW-1/A
and Ex. PW-1/B and RO had put the seal impressions of KC on
two plain papers and thereafter seal was handed over to the panch
witness. He further affirmed that Insp. B. K. Singh also came
there and prepared site plan Ex. PW7/D at his instance and as of
panch witness and thereafter they all returned back to the office
of ACB. He affirmed that Insp. B. K. Singh interrogated him and
the panch witness and arrested the accused at the office of ACB
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 45 of 87
vide arrest memo and personal search memo Ex. PW-1/C and Ex.
PW-1/D. He affirmed that he handed over the documents i.e.
photocopy of authority letter dated 19.10.15 Ex. PW5/A,
photocopy of my PAN card Ex. PW7/F and photocopy of
Provisional Certificate of registration dated 29.07.15 issued by
Department of Trade & Taxes, GNCT of Delhi Ex. PW7/G,
which was downloaded from the Website of department, and
same were taken into police possession vide seizure memo
Ex.PW7/E.
38. PW7 further affirmed the suggestion that on
28.10.15 prior to the raid, the accused had stated to him “jab tak
2000 rupaye bakaya nahi doge tab tak certificate of registration
nahi milega” and pursuant to the demand, he had paid the bribe
amount of Rs.2000/- which was accepted by accused and later on
recovered from the file cover kept in the almirah by the accused.
PW7 affirmed that since long time has lapsed, he could not
recollect the entire facts. He further affirmed that he had written
the complaint dated 28.10.15 in the office of ACB on the same
day and after that raid proceedings were initiated by ACB. PW7
was cross-examined in detail by ld. Counsel for the accused.
39. It is settled law as discussed hereinabove that in
order to prove an offence under Section 7 P.C. Act proof of
demand and acceptance of illegal gratification by the public
servant has to be proved as a fact in issue by the prosecution and
the same is a sine qua non in order to sustain conviction of the
accused under Section 7 and 13(1)(d)(i) & (ii) of PC Act. It has
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 46 of 87
further been held that the prosecution has to first prove the
demand of illegal gratification and subsequent acceptance as a
matter of fact. The same can be proved either by direct evidence
which can be oral or documentary. The said fact in issue can
also be proved by circumstantial evidence in absence of direct
evidence.
DEMAND OF ILLEGAL GRATIFICATION :
40. It is alleged by the prosecution that accused Sunita
Sharma demanded a bribe amount of Rs. 10,000/- from the
complainant Sudhanshu Kumar Mishra who was authorized by
M/s Dynamic India Exports for VAT registration and the
complainant paid Rs. 8,000/- to her as advance and thereafter on
28.10.2015 remaining bribe amount of Rs. 2000/- was demanded
by the accused and accused accepted the said bribe money from
the complainant for issuance of the VAT Registration Certificate
of M/s Dynamic India Exports.
41. The prosecution has relied upon the testimony of
PW7 complainant Sudhanshu Kumar Mishra to prove demand of
bribe by accused Sunita Sharma. In reference to the initial
demand of bribe by accused Sunita Sharma, PW7 deposed that
after receiving the authority letter on 19.10.2015 Ex. PW5/A, he
had visited the VAT Department, Trade and Taxes Building, ITO
to collect the Registration Certificate of M/s Dynamic India
Export. The Registration Certificate was being issued by VATI
and Rs.10,000/- was demanded for the issuance of the
Registration Certificate. PW7 had visited the Trade and Taxes
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 47 of 87
office two times after 19.10.2015. During inspection which took
place after 19.10.2015, VATI Sunita Sharma had demanded
Rs.10,000/- from CA Gaurav Dawar and pursuant to the demand
Rs.8,000/- were paid to the accused on the asking of PW7
telephonically, by CA Gaurav Dawar. The outstanding amount
of bribe of Rs.2,000/- was to be paid by him later, when the
Registration Certificate was to be issued by the VATI i.e.
accused Sunita Sharma.
42. Hence, as per the testimony of PW7, accused Sunita
Sharma had demanded Rs. 10,000/- at the time of inspection
(which was carried out after 19.10.2015) from CA Gaurav Dawar
and pursuant thereto Rs. 8000/- was paid to the accused by CA
Gaurav Dawar, at the asking of PW7 telephonically. Rs. 2,000/-
was to be paid later at the time of issuance of Registration
Certificate by the VATI i.e. the accused and the same was not
issued as the remaining amount of Rs. 2,000/- was not paid.
43. Perusal of the complaint Ex. PW7/A of Sudhanshu
Mishra reveals that in his complaint he stated that he went to
Trade and Tax Office at ITO for Sale Tax registration of
Dynamic India Exports where he met the Inspector of Ward no.
51 and 43, whose name he did not know. He gave all the papers
to that lady Inspector and after checking the papers, she told him
that it will cost Rs.10,000/- for inspection. The complainant
asked her what was the money for, at which she told him that
Rs.10,000/- is the cost for every inspection, which goes to the
higher levels including VATO and other staff members. No
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 48 of 87
inspection can be conducted without giving money. If he wanted
the work to be done, then he will have to give Rs.10,000/- at
which the complainant out of compulsion agreed to give
Rs.10,000/- for getting his legitimate work done. About 13-14
days prior to the complaint, the lady Inspector went for
inspection and the complainant took Rs.8,000/- from the owner
of Dynamic India Exports namely CA Gaurav Dawar and handed
it over to her.
44. Accordingly, the contents of the complaint Ex.
PW7/A are at variance with the testimony of the complainant
PW7 before the court in as much as, as per the complaint Ex.
PW7/A, the demand of Rs. 10,000/- was made from the
complainant by the accused for the purpose of conducting
inspection, whereas in his testimony PW7 deposed that Rs.
10,000/- were demanded at the time of inspection from CA
Gaurav Dawar for the purpose of issuance of registration
certificate. Furthermore, it is stated in the complaint that the
complainant took Rs. 8000/-from CA Gaurav Dawar and gave it
to the accused, whereas in his testimony recorded before the
court, the complainant stated that the amount of Rs. 8000/- was
paid by CA Gaurav Dawar to the accused, which was
telephonically asked by the complainant. The complainant was
also confronted with the relevant portions of the complaint Ex.
PW7/A in this regard.
45. In the context of the inspection conducted at the
office of M/s Dynamic India Exports, PW7 in his cross-
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 49 of 87
examination also stated that he did not remember the date when
the accused visited the registered address of M/s Dynamic India
Exports in the present case. He further deposed that he was not
present at the said office when VATI i.e. the accused visited
there. He deposed that the VATI used to call for inspection
sometimes 1-2 days before the inspection and sometimes on the
day of inspection to the proprietor on the registered number or on
the alternate number provided at the time of filing application.
He stated that at the time for applying for VAT certificate, the
telephone numbers of party i.e. proprietor M/s Dynamic India
Exports were mentioned and that the call regarding visit of VATI
at the business premises of M/s Dynamic India Exports was
made to the party. He also stated that he did not know the time
when VATI went for inspection in the present case. The party
i.e. proprietor of M/s Dynamic India Exports informed Harish
Gupta i.e. PW3 only regarding receiving phone call from VATI
for inspection. After the inspection the party informed Harish
Gupta about the inspection and no information was given to him
by the party regarding the inspection. Hence, it emerges that
PW7 did not have any information regarding the inspection.
Pertinently, PW7 deposed that after the inspection the party had
informed Harish Gupta PW3 about the inspection and no
information was given to him by the party.
46. It is noteworthy that in this regard PW5 Gaurav
Dawar, proprietor of M/s Dynamic India Exports, has also stated
that he did not have any conversation with PW7 Sudhanshu
regarding visit of VATI or regarding any bribe amount to be paid
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 50 of 87
to VATI. These facts demolish the version of the complainant
PW7 in his testimony recorded before the court that Rs. 8000/-
were paid to the accused at the time of inspection by CA Gaurav
Dawar’ at the asking of PW7. The testimony of the complainant
is thus also inconsistent with his complaint Ex.PW7/A on this
account as per which it was the complainant who had handed
over Rs. 8,000/- to the accused VATI, at the time of inspection,
after taking the same from Gaurav Dawar, thereby implying that
the complainant was present at the office of M/s Dynamic India
Exports when the inspection took place whereas the complainant
in his cross examination has stated that he was not present at the
office at the time of inspection and did not have any information
about the inspection.
47. Hence, there are contradictions/discrepancies on
material points in the testimony of the complainant PW7 viz a viz
his initial complaint Ex.PW7/A, the testimony of the complainant
is thus not wholly reliable and it hence cannot be acted upon
without due corroboration.
48. It may also be noted that in his cross-examination by
ld. Counsel for the accused, the complainant PW7 stated that
between 19.10.2015 and before the raid, he visited the VAT
office two times regarding the present case and on both visits he
met with the VATI but he did not remember the dates or time of
those visits. He was aware about the office room of the VATI
which was in Ward no. 51 at floor no. 4 th or 5th of the building.
He came to know about the details of the VATI including her
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 51 of 87
name, Ward number after the online application for registration
was filed on behalf of the party. PW7 himself enquired about the
office room of the VATI from the VAT Department and
thereupon he came to know about her name, room number etc.
This information was collected by him on 19.10.2015. The
telephone number of accused was not informed to him by Gaurav
Dawar, Proprietor of M/s Dynamic India Exports nor he had
taken the same from the accused or anyone else. He never made
a prior appointment for meeting the VATI/accused through
phone or otherwise and used to visit presuming that she would be
available in her office. During both his visits after 19.10.2015,
he was able to meet the VATI/accused.
49. From the aforesaid deposition of PW7 it is manifest
that he came to know about the details of the accused i.e. her
name, Ward number, room number etc. after filing the on-line
application for registration and he had found the said details on
19.10.2015 itself. Perusal of the complaint Ex. PW7/A dated
28.10.2015 reveals that the complainant has not revealed the
name of “lady Inspector” in his complaint, however, he stated
that he met the Inspector of Ward No. 43 & 51 who demanded
bribe for conducting inspection. It is intriguing that the name of
the lady Inspector was also not revealed to the RO before
conducting the raid despite the fact that the complainant, who
was a regular visitor to the VAT office, was aware of her name
even on 19.10.2015 and the complaint Ex. PW7/A was filed
subsequently on 28.10.2015.
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 52 of 87
50. The Prosecution has also relied upon the statement
of CA Gaurav Dawar, partner of M/s Dynamic India Exports
and PW3 Harish Gupta, Chartered Accountant to prove demand
by accused Sunita Sharma.
51. Perusal of testimony of CA Gaurav Dawar PW5,
partner of M/s Dynamic India Exports reveals that he did not
support the complainant’s version regarding payment of Rs.
8000/- to the accused by him. He was cross-examined by ld.
Addl.P.P. for the State wherein he denied that during the process
of registration he had made part payment of Rs. 8,000/- to
Sudhanshu Kumar Mishra as professional fees.
52. In his cross-examination by ld. Counsel for the
accused, PW5 deposed that the surprise visit of VATI took place
at his office prior to 19.10.2015 which might be 2-3 weeks before
19.10.2015. He further deposed that he never communicated
with Sudhanshu i.e. the complainant, who was working in the
office of his CA and he did not have any conversation regarding
registration of VAT or visit of VATI with Sudhanshu. PW5 also
deposed that he did not have any talk with Sudhanshu or his CA
Harish Gupta regarding payment of any bribe of Rs. 10,000/- to
anyone or to VATI.
53. Hence, the version of PW7, complainant, regarding
inspection having taken place after 19.10.2015 is not
corroborated by the testimony of PW5 as PW5 stated that the
same took place before 19.10.2015. PW5 Gaurav Dawar also did
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 53 of 87
not corroborate the testimony of PW7 regarding demand of Rs.
10,000/- from him by the accused. PW5 also did not support the
prosecution version regarding payment of Rs. 8,000/- by him to
the accused at the time of inspection.
54. As regards demand, PW3 Harish Gupta, Chartered
Accountant, with whom PW7 Sudhanshu Mishra used to work
deposed that on 28.10.2015 Sudhanshu Mishra told him that he
had some issue with VATI Sunita Sharma and that she was
demanding Rs. 3000/- in the matter of M/s Dynamic India
Exports. Hence, PW3 did not depose regarding any demand of
Rs.10,000/- by accused Sunita Sharma. The demand of Rs.
3000/- by accused Sunita Sharma was told to him by PW7
Sudhanshu Mishra on 28.10.2015 and not prior thereto and the
said information is hearsay. Moreover in his cross-examination
by accused, PW3 deposed that his client i.e. proprietor of M/s
Dynamic India Exports, Gaurav Dawar, was not aware of any
issue between VATI and Sudhanshu. PW3 also deposed that his
client had informed him about the visit of the accused for
inspection which was 4-5 days prior to 28.10.2015.
55. Accordingly, neither the testimony of PW3,
employer of the complainant Sudhanshu Mishra, nor the
testimony of PW5, proprietor of M/s Dynamic India Exports,
have supported the version regarding demand of Rs. 10,000/- by
accused Sunita Sharma nor they have deposed about payment of
Rs. 8,000/- to accused Sunita Sharma by Gaurav Dawar PW5 at
the time of inspection or at any other time.
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56. As discussed, the testimony of the complainant PW7
is not wholly reliable being inconsistent with his handwritten
complaint Ex. PW7/A. The testimony of the complainant is also
not corroborated by the testimony of PW3 and PW5 who have
not supported the prosecution version regarding the initial
demand of Rs. 10,000/- by the accused. Accordingly, the initial
demand of Rs. 10,000/- is not proved on record.
57. As regards the demand of Rs. 2000/- made at the
spot i.e. Ward No. 43, Department of Trade and Taxes, GNCT of
Delhi, at the time of raid, PW7 deposed that he went inside Ward
No. 43 where the accused was present and he told her to issue the
RC and stated that “balance payment laya hoon”. Thereupon the
accused demanded balance payment of bribe amount of Rs.
2000/- from him and PW7 requested her to issue the RC.
Thereafter PW7 handed over the bribe amount of Rs. 2000/- to
accused Sunita Sharma.
58. In his cross-examination by ld. Addl.P.P. for the
State, the complainant PW7 affirmed that on 28.10.2015 before
the raid, the accused had told him “Jab Tak 2000 rupaye bakaya
nahi doge, tab tak certificate of registration nahi milega” and
pursuant to the demand PW7 paid the bribe amount of Rs. 2000/-
which was accepted by the accused and lateron recovered from
the file cover kept in the almirah by the accused.
59. In his cross-examination by ld. Counsel for the
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 55 of 87
accused, PW7 deposed that he was getting a salary of Rs. 1500/-
per month from Sh. Harish Gupta, CA, while he was working
with him. He also stated that he used to receive his salary in cash
from CA Harish Gupta. He was not doing any other job at that
time. He used to keep the cash salary with him. He had zero
balance in his bank account opened under Pradhan Mantri Jan
Dhan Yojna. PW7 also stated that on 28.10.2015 in the morning
he informed Harish Gupta that he will go to the office of VAT
for receiving the certificate of M/s Dynamic India Exports.
Thereafter he did not talk with Harish Gupta as his phone was
taken by ACB Officials when he went there. PW7 deposed that
he had taken Rs. 2000/- from Harish Gupta towards remaining
bribe amount on 27.10.2015 which were two currency notes of
Rs. 1000/- each.
60. Accordingly, from the aforesaid cross-examination
of PW7 it is manifest that at the time of raid on 28.10.2015 he
was working with Harish Gupta-CA and was drawing a salary of
Rs. 1500/- per month in cash. He had taken Rs. 2000/- to be
handed over to the accused as bribe money from Harish Gupta on
27.10.2015.
61. In this regard, PW3 Harish Gupta – CA deposed that
he was informed by PW7 on the evening of 28.10.2015 that he
had some issue with VATI Ms. Sunita Sharma as she was
demanding Rs. 3000/- in the matter of M/s Dynamic India
Exports and that he arranged the money on his own and later
approached the ACB and gave the complaint against her leading
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 56 of 87
to the raid.
62. Though the source of the amount to be handed over
as bribe is not material, however, as per the testimony of PW3
Harish Gupta, PW7 Sudhanshu Mishra had arranged money on
his own, whereas PW7 deposed that he had taken Rs. 2000/- in
the denomination of Rs. 1000/- each from PW3 Harish Gupta on
27.10.2015 which was to be given as bribe to the accused. As
discussed, the testimony of PW7 complainant, who is the witness
of demand of money, is not wholly reliable and cannot be relied
upon unless corroborated. The version of PW7 regarding source
of bribe money of Rs. 2000/- to be Harish Gupta PW3 is not
corroborated through the testimony of PW3 Harish Gupta, who
stated that the complainant had arranged money on his own.
63. The prosecution has also relied upon the testimony
of panch witness PW8 to prove demand of bribe amount of Rs.
2000/- by the accused from the complainant PW7, at the time of
raid. On the point of demand, the panch witness PW8 deposed
that at about 01.10 pm he alongwith the complainant went inside
the room of the accused, who was doing her work in the said
room, and she proceeded for taking her lunch. At that time the
complainant Sudhanshu Mishra told the accused ” Jo Tumhara
Hai Vo Le Lo” and thereupon the complainant took out Rs
2000/- i.e. two GC notes of denomination of Rs. 1000/- each and
handed them over to the accused who after accepting them kept
them in a file.
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 57 of 87
64. In his cross-examination by ld. Addl.P.P. for the
State, the panch witness PW8 deposed that he did not remember
whether the bribe amount i.e. two GC notes of Rs. 1000/- each
denomination were counted by the accused with both her hands
and he further volunteered that the accused had not demanded the
amount but the complainant said “Jo Tumhara Hai Vo Le Lo” .
PW8 also denied that that he had stated to the police and it so
happened that the accused made a demand of bribe from the
complainant and on her asking the complainant handed over Rs.
2000/- as bribe. He further denied that he was deposing falsely
that the accused had not specifically demanded the bribe in order
to save the accused.
65. In his cross-examination by ld. Counsel for the
accused, PW8 Panch witness deposed that when they entered the
room of the accused, the accused was busy in her work and the
complainant told after 8-10 minutes to the accused that ” Jo
Tumhara Hai Vo Le Lo”. PW8 denied the suggestion that the
complainant did not say so to to the accused and stated that he
had not informed the IO in his statement that the complainant had
asked the accused “Jo Tumhara Hai Vo Le Lo”.
66. From the testimony of PW8 it is manifest that the
complainant had stated to the accused ” Jo Tumhara Hai Vo Le
Lo”. PW8 has specifically denied that the bribe money of Rs.
2000/- was handed over to the accused upon demand by her.
PW8 was also confronted with his statement in that regard.
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 58 of 87
67. Accordingly, PW8 has specifically denied handing
over of the bribe money to the accused by the complainant upon
any demand being made by the accused and has stated that it was
the complainant who told the accused “Jo Tumhara Hai Vo Le
Lo”. The words “Jo Tumhara Hai Vo Le Lo” uttered by the
complainant do not reveal any demand of illegal gratification by
the accused at the time of raid.
68. Accordingly, the testimony of PW7 remains
uncorroborated on the point of demand of Rs. 2000/- at the spot
from the testimony of PW8 the panch witness.
69. It is also noteworthy that the reason for demand of
bribe has been stated by PW7 to be issuance of Registration
Certificate of M/s Dynamic India Exports by the accused. In this
regard, PW7 deposed that he had visited VAT office, ITO to
collect the RC and the outstanding demand of bribe of Rs.
2000/- was to be paid by him when the RC was to be issued by
the accused. He also deposed that the RC was not issued as the
remaining amount of Rs. 2000/- was not paid. PW7 in his
testimony also stated that at the time of raid he told the accused
to issue the RC and told her ‘balance payment laya hoon’ and
thereupon the accused demanded the balance payment of bribe
amount of Rs.2000/- from him and PW7 told her to issue the RC.
In his cross-examination by the Ld. Addl.P.P. for the State, PW7
also affirmed that before the raid on 28.10.2015, the accused had
told him that “Jab Tak 2000 rupay bakaya nahi doge, tab tak
certificate of registration nahi milega” i.e. the complainant will
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 59 of 87
not get the certificate of registration till the remaining amount of
Rs. 2000/- was not given. In his cross-examination by ld.
Counsel for the accused, PW7 deposed that balance bribe of Rs.
2000/- was to be paid to accused before collecting the original
registration certificate. He also deposed that he visited at the
office of VATI/accused twice before the raid and informed CA
Harish Gupta that the accused had not given the registration
certificate as she was demanding Rs. 2000/- at which Harish
Gupta told him that as the party had given Rs. 8000/- already,
therefore, she should issue the registration certificate.
70. PW7 deposed that he visited the VAT office on
19.10.2015 after receiving the authority letter Ex.PW5/A. Firstly
he went to the office of VATI at 12.30 pm as VATI had not
approved the issuance of certificate and on that day he did not
visit the office of VATO. He again said that he firstly visited
the VATI office on 19.10.2015 as approval was pending due to
payment of balance money i.e. bribe of Rs.2,000/- to the VATI.
PW7 deposed that it was within his knowledge that VATI had
not approved the certificate as balance payment of bribe amount
was not given.
71. It is deposed by PW3 that M/s Dynamic India
Exports did not get any VAT Certificate. It is also not the case of
prosecution that the VAT certificate was given to the
complainant at the time of raid after handing over of Rs. 2000/-
by the complainant to the accused. Hence, even as per the
prosecution case, despite handing over of Rs. 2000/-, no VAT
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 60 of 87
Registration Certificate was given by the accused to the
complainant at the time of raid.
72. On the other hand, the accused in her statement
recorded u/s 313 Cr.P.C. stated that as per record, M/s Dynamic
India Export had applied for grant of VAT certificate on
29.07.2015 by submitting their documents and applying through
the online portal. Being a VATI, she was assigned the duty to
visit the premises of the applicant to inspect/verify the
genuineness of the documents and existence of the business at
the stated premises. The inspections were surprise inspections,
which were conducted after receiving the online applications. In
respect of M/s Dynamic India Exports she had conducted the
surprise inspection of the premises on 14.10.2015 and as the
dealer was not found functioning, she submitted her report. As
per the procedure of registration when the dealer is not found
functioning then the status of the dealer on the DVAT website is
updated as cancelled. The outcome of the application can be
checked online by the dealer. This was where her
purview/jurisdiction in the capacity of a VATI ended. When she
submitted the report and cancelled the registration of the dealer
that was the final report and the same could not be changed by
anyone, infact no particulars i.e. dates etc. could be changed by
anyone. In case the dealer desired a revisit, they were required to
put forth a request to the VATO. The VATI had no concern or
power in that respect. The registration of Dynamic India Exports
stood cancelled on 16.10.2015 which was prior to 19.10.2015,
when the allegations of demand of gratification for issuing
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 61 of 87
registration certificate was made. After cancelling the
registration, she could not have changed it, as such she could not
have issued any registration certificate.
73. The prosecution has examined PW11 S.S.Bajwan,
who was posted as Assistant Commissioner in the Department of
Trade and Taxes, proved the documents i.e. procedure for
registration alongwith other documents Ex. PW11/A (running
into 17 pages). The procedure for registration as provided by
him in his capacity as Assistant Commissioner, Trade and Taxes
Department, is as follows :
74.(a) “The Application of Registration is submitted online
on DVAT portal and the same is reflected in login ID of VATI of
the concerned ward. The VATI is required to carry out physical
inspection of the proposed business premises of the applicant to
verify the details given in the application. If VATI is satisfied
that the applicant has submitted all the relevant documents
required for the purpose of registration and the applicant is doing
his business as mentioned in application, the inspection report is
submitted online by him/her and said file is transferred in ID of
VATO and VATO concerned issues the certificate of registration
through online system to the applicant.
(b) In case the dealer is not found functioning at the
given address, the VATI submits online inspection report and
dealer is not found functioning at the given address. In that case,
the status of Dealer on DVAT website is shown as cancelled. In
case the applicant approaches the ward with the request of revisit
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 62 of 87
the premises by VATI, the ward in charge/VATO may mark the
application for revisit by VAT through online system. At this
point of time file is again transferred to the I D of VATI. The
VATI is again required to visit the premises of the dealer and
then submit his/her report.
(c) In case applicant does not make any request for
revisit a show cause notice is issued in form DVAT10 to the
applicant directing to submit his reply within a stipulated time. If
reply is not received, the application for registration is
cancelled.”
75. In his cross-examination PW11 deposed that he was
the incharge of Ward No. 51 but at the relevant time the
additional charge of Inspector of his Ward was with the accused.
There used to be one Inspector in each ward of Trade and Taxes
Department. He stated that the application of M/s Dynamic India
Exports was cancelled on 16.10.2015 as per document Mark-X
handed over by him to the IO. Thereafter no request for revisit
was given to him. In case any party wished to request for revisit,
it had to be made to the Ward Incharge (VATO/Assistant
Commissioner). VATI had no concern with the request of
revisit. PW11 further deposed that accused was posted at Ward
No. 41 and 43 at the relevant time, which was also on the same
floor as Ward No. 51 which has on the fifth floor of the Trade
and Taxes Department, ITO. He stated that the raid in the
present case was conducted in the Ward in which the accused had
regular posting i.e. Ward No. 41 and 43. PW11 stated that the
matter in which the raid was conducted pertained to his ward i.e.
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 63 of 87
Ward No. 51. PW11 also deposed that in case it came to the
knowledge of VATO that the registration process had been
cancelled by VATI then VATO used to issue online show cause
notice to the party. He stated that the show cause notice Mark-C
(filed alongwith the charge-sheet) was issued by him to the party
M/s Dynamic India Exports. PW11 affirmed that in case the
registration was cancelled by VATI on his login ID in his report,
the same including the particulars such as date etc. could not be
changed. PW11 also deposed that in case the registration was
approved by VATI the party could download the same from
website and there was no requirement to visit at the office of the
VATI.
76. PW3 Harish Gupta, Chartered Accountant,
employee of complainant PW7 deposed in his cross-examination
by the accused that he was aware of the process of applying for
VAT certificate. He deposed that firstly, an online application
for VAT Certificate is made alongwith documents. Thereafter
the concerned VAT official was required to visit the address and
verify the documents and address. The inspection is conducted
to verify the documents and the existence of business at the given
address. If everything was found in order, then the VATI
approved the application and thereafter the Certificate was
issued. The VAT certificate was generally delivered at the
business address by post. However, the same could also be
picked up by hand by the owner of the concerned business or his
authorized representative. PW3 further deposed that if upon
inspection, the VATI found that the information given is
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 64 of 87
incorrect or the address is not a business address, then the VATI
used to reject the application. The rejection was updated on the
website and the same could be checked online. He further
deposed that upon rejection same had to be reapplied through a
fresh application and there was no other solution. However, at
times the outcome of the application was not uploaded on the
system and due to client pressure, they used to send their office
boy to VATI to know the reason why the certificate was not
issued and in case there was any discrepancy in certificate then
they used to supply the said document by hand to the VATI.
77. In this regard, PW3 further deposed that if a VATI
after inspection submitted its report recommending cancellation
of the registration process of issuance of VAT certificate, then no
one could change the entry in system and the only solution
available to the applicant was to apply afresh. He deposed that as
per document Mark-B i.e. Dealer Profile of M/s Dynamic India
Exports [which was supplied to the IO by PW4 and marked in his
testimony as a part of documents Mark-X (colly)], the date of
registration of VAT was 29.07.2015 and the date of cancellation
of the certificate was 16.10.2015. He further stated that the date
of registration means the date of application for issuance of VAT
certificate. As per document Mark-B, after the inspection, the
VATI had already cancelled the registration process of Dynamic
India Exports and the date of cancellation was 16.10.2015.
78. Pertinently, PW3 deposed that M/s Dynamic India
Exports did not get any VAT certificate.
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 65 of 87
79. PW3 also deposed that show cause notice for
cancellation of registration was issued by VATO on 01.12.2015
to M/s Dynamic India Exports vide Mark-C [which was supplied
to the IO by PW4 and marked in his testimony as a part of
documents Mark-X (colly)]. He deposed that the same was
issued by the VATO to call upon the concerned party when the
department decides to cancel the registration for any reason
including if the discrepancies were found during inspection.
80. Regarding the procedure concerning VAT
registration, PW7 in his cross-examination by ld. Counsel for the
accused deposed that he was assisting Sh. Harish Gupta CA, in
accounts as well as in field work by visiting offices. He had
visited VAT office many times between 2013 to 2017. Initially
for about one and a half years, Sh. Harish B. Gupta used to
accompany him to the VAT office and other departments and
after he learnt some work, then he used to visit those offices
alone. He deposed that he had pursued 10-15 cases of VAT
registration during his employment with Harish Gupta. He
further stated that when he was working with Harish Gupta he
was aware of the structure of VAT Department regarding powers
and duties of VATO, the number of VATIs being managed by
VATO, VAT zones, number of Wards in a zone etc. PW7
deposed that in the year 2015, application for obtaining VAT
number was to be applied online. Soft copy of documents used
to be uploaded with the application and thereafter a hard copy
thereof alongwith signatures and stamp of the applicant were to
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 66 of 87
be deposited at the office of VAT. After applying for VAT
number the provisional registration certificate was provided
immediately through the system. In case of deficiency of any
document or any error in the application, the same was updated
on website of the VAT department and the same could be
checked after logging in by using user ID and password. They
used to check the website regularly for any updates.
81. PW7 also stated that as per his experience the VATI
after inspection used to upload the information regarding visit
within a day or two on the website. He did not remember
whether after inspection by the VATI remarks regarding
approval or cancellation of the VAT certificate was reflected on
the website. He also deposed that only VATO can see on the
internal server whether the VATI had issued the certificate and
the same was not visible to the general public. He denied that
after the approval/cancellation of registration by the VATI, the
same can be seen by the concerned party by login into the VAT
website. He did not remember whether after inspection by the
VATI or prior to 19.10.2015, the party, Harish Gupta or he
himself checked any update on the website of VAT Department,
though PW7 also deposed that he as well as Harish Gupta used to
check the website regularly for the purpose of updation regarding
any application applied by their office for grant of registration
certificate.
82. PW7 also deposed in his cross-examination by ld.
Counsel for the accused that the original certificate after
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 67 of 87
inspection and approval by the VATI could be collected from the
office of VATO at the VAT Department and original certificate
was not uploaded on the website. As per his work experience,
one could visit the office of VATO for collection of original
certificate after one day of the inspection.
83. He stated that he had visited the office of VATI
firstly on 19.10.2015 as the VATI had not approved the issuance
of certificate. PW7 again stated that he first visited the VATI
office on 19.10.2015 as approval was pending due to payment of
balance money i.e. bribe of Rs. 2000/- to VATI. He stated that it
was in his knowledge that VATI had not approved the certificate
as balance payment of bribe amount was not given.
84. Hence, from the testimony of PW11 discussed
herein-above it emerges that at the time of raid he was Incharge
of Ward no. 51 and the matter in which raid was conducted also
pertained to that ward. Ward No. 51 was situated on the fifth
floor of Trade and Taxes Department, New Delhi. The accused
was posted in Ward No. 41 and 43 which was also located on the
same floor but in a different wing. The accused had additional
charge of Inspector of Ward No. 51 at the relevant time.
85. Perusal of record reveals that as per document
Mark-B placed on record by the prosecution i.e. documents
supplied by PW4 Sh. L.K. Gautam, Assistant Commissioner, the
Department of Trade and Taxes to the IO and filed alongwith the
charge-sheet, the date of registration of M/s Dynamic India
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 68 of 87
Exports is indicated to be 29.07.2015 and the date of cancellation
is mentioned as 16.10.2015.
86. During investigation PW11 S.S.Bajwan, Assistant
Commissioner, also supplied documents to the IO alongwith the
procedure for registration Ex. PW11/A. The said documents
included application for registration dated 29.07.2015 of the
applicant M/s Dynamic India Exports bearing reference no.
R21584599 and online VATI verification report dated
16.10.2015 in respect of application no. R21584599. As per the
said VATI verification report, the date of visit i.e. inspection in
respect of M/s Dynamic India Exports was 14.10.2015. The said
report further mentions that the premises was not found
functioning and eventually the issuance of DVAT certificate was
not recommended.
87. Accordingly, as per the aforesaid documents on
record i.e. the VATI verification report, the inspection of the
premises of M/s Dynamic India Exports was carried out on
14.10.2015 and the VATI verification report dated 16.10.2015
did not recommend issuance of VAT certificate to the applicant.
The Dealer Profile also indicated that the VAT certificate had
been cancelled and the cancellation date was 16.10.2015.
88. In this regard, PW11 also deposed that the
application of M/s Dynamic India Exports was cancelled on
16.10.2015 and there was no application for re-visit. He stated
that the show cause notice Mark-C was issued by him to M/s
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 69 of 87
Dynamic India Exports. He also stated that in case the
registration was cancelled by VATI on his login ID in his report,
the same including the particulars such as date etc. cannot be
changed. He stated that once the registration was approved by
VATI the same could be downloaded from the website by the
party and there was no requirement to visit at the office of VATI.
89. Perusal of testimony of PW3 Harish Gupta, who
was a Chartered Accountant, himself reveals that he was aware
of the process of making online application for registration of
VAT certificate and has explained the procedure in detail. He
stated that the rejection of the application for VAT certificate can
be checked online. He further stated that VATI after inspection
submitted report recommending cancellation of registration, then
no one can change the entry in the system. He also stated that the
date of cancellation of VAT certificate of M/s Dynamic India
Exports was 16.10.2015 as per document Mark-B (which was
furnished by PW4 to the IO and placed on record alongwith the
charge-sheet).
90. Perusal of testimony of PW7 also reveals that he
was conversant with the process of registration of VAT
certificate and had visited that office many times between 2013
to 2017. Initially Sh. Harish Gupta PW3 used to accompany him
to VAT office and and after PW7 understood the work, he used
to visit VAT office alone. PW7 had pursued about 10-15 cases
of VAT registration during his employment with Harish Gupta.
Hence, PW7 was not a novice to the process of VAT registration
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 70 of 87
and was well versed with the same. He also stated that they used
to check the website regularly for updates.
91. Perusal of the aforesaid testimonies and documents
reveals that the Certificate of M/S Dynamic India Exports stood
cancelled on 16.10.2015, whereas the complainant has deposed
that he had visited the VAT office two times after 19.10.2015,
when he received the authority letter Ex. PW5/A. The
complainant PW7 also stated that the demand was made after
19.10.2015 by VATI Ms. Sunita Sharma during inspection
which took place after 19.10.2015. However, as per the VATI
verification report dated 16.10.2015 the inspection had already
been carried out on 14.10.2015 and thus as on 19.10.2015
nothing further remained to be done by VATI i.e. accused Sunita
Sharma. It may also be noted that it is deposed by PW3 that
once the VATI submits the inspection report recommending
cancellation of VAT certificate, then no one can change the entry
in the system. Similarly, PW11 also deposed that if the
registration was cancelled by VATI on login ID in his report, the
same including the particulars i.e. date etc. cannot be changed.
Hence, in the present case, once the accused VATI submitted the
online VATI verification report recommending cancellation on
16.10.2015, in reference to inspection carried out on 14.10.2015,
the said report could not be altered. PW3 also deposed that the
rejection is updated on the website and the same could be
checked online.
92. It may also be noted that after inspection the VATI
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 71 of 87
could submit the report recommending cancellation of
registration and thereafter no change could be made in the system
once the entry was made in the system. It is deposed by PW7
that the original certificate after inspection and approval by
VATI could be collected from the office of VATO at VAT
Department and the original certificate was not uploaded on the
website. As per his work experience one could visit the office of
VATO for collection of original certificate after one day of the
inspection and he also stated that as per his experience the VATI
after inspection used to upload the information regarding the visit
on the website within a day or two. Pertinently, PW7 also stated
that he had visited the office of VATI on 19.10.2015 as VATI
had not approved the issuance of certificate and stated that it was
within his knowledge that the VATI had not approved the
certificate as the balance payment of bribe amount was not given,
thereby implying that as on 19.10.2015 he was aware that VATI
had not approved the issuance of certificate. There was thus no
occasion for him to visit the VATI on 19.10.2015 or thereafter to
obtain the VAT Certificate as he was already aware that the
accused had not approved the issuance of VAT Certificate.
93. Additionally, in this regard PW11 Sh. S.S.Bajwa
deposed that in case the registration was approved by VATI the
party could download the same from the website and there is no
requirement to visit at the office of VATI. Hence, in either case
there was no reason to go to VATI for collection of the
registration certificate. If the VAT registration was cancelled,
same could be checked online and if the application was allowed
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 72 of 87
then as per the complainant the same could be collected from the
office of VATO and infact as per PW11 the VAT certificate
could also be downloaded from the website and there was no
requirement to visit the office of VATI. In this regard in his
cross-examination DW1 Ajay Kumar Tagra also deposed that the
procedure in the office was that a file for registration was
processed by him at the relevant time when he was posted as
UDC with the Sales Tax Department (VAT), Ward No.43, Fifth
Floor, Sales Tax Office. Thereafter the file was put before the
VATO(STO), who would mark it to the Inspector for field visit.
After the field visit the Inspector would prepare the report and
submit it to VATO/STO for further processing. DW1 deposed
that he used to maintain the record of the files. In these
circumstances and in view of the testimony of PW3, PW7 and
DW1, it emerges that the VAT Certificate was not to be collected
by the applicant from the VATI but could be collected from the
office of VATO.
94. In background of these facts and also the fact that
the complainant PW7 and Harish Gupta, his employer PW3,
were well versed with the procedure of registration of VAT
Certificate, there was no occasion for PW7 to have visited the
accused VATI on 19.10.2015 or thereafter to obtain VAT
certificate from accused Sunita Sharma as the registration of M/S
Dynamic India Exports already stood cancelled on 16.10.2015.
Hence, the reason for demand of bribe is not established on
record.
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 73 of 87
95. As discussed, the complainant PW7 is not a witness
who is wholly reliable and his testimony remains uncorroborated
by the testimony of PW3 and PW7 on the point of demand. The
testimony of PW7 is also not corroborated by the testimony of
PW8 on the point of demand of Rs. 2000/- at the spot by the
accused. The reason of demand of bribe by the accused from the
complainant is not established on record, hence the version of the
complainant regarding demand of bribe of Rs. 2000/- by the
accused at the spot is also doubtful. It may also be noted that the
complainant PW7 stated that he told the accused ” balance
payment laya hu” and thereupon the accused demanded balance
payment of bribe of Rs. 2000/- from him. As discussed
hereinabove, the initial demand of Rs. 10,000/- and payment of
Rs. 8000/- to the accused as bribe money is not proved on record.
In these circumstances, the words “balance payment laya hu”
cannot be understood without the context of any previous
demand and acceptance of bribe. Hence, the words ” balance
payment laya hu” do not have any significance in absence of
proved prior demand and acceptance. Moreover, as discussed
PW8 panch witness has categorically stated that no demand was
made by the accused and the accused had stated “Jo Tumhara Hai
Vo Ley Lo” which also does not imply demand of Rs. 2000/- by
the accused. The complainant PW7 in his cross-examination by
the Ld. Addl.P.P. for the State affirmed the suggestion that the
accused had stated to him before the raid that ” Jab tak 2000/-
rupaye bakaya nahi doge, tab tak certificate of registration nahi
milega” and pursuant to the demand he paid the bribe amount of
Rs. 2000/-. It may also be noted that the said words ascribed toCC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 74 of 87
the complainant have not been stated by the complainant PW7 in
his examination-in-chief nor by the panch witness PW8 during
recording of his testimony and PW8 has denied any demand
having been made by the accused. Additionally, the said words
are also not mentioned in the rukka Ex. PW12/B or in the initial
statement of the complainant recorded u/s 161 Cr.P.C. Ex.
PW7/C on 28.10.2015. The said words ” Jab tak 2000/- rupaye
bakaya nahi doge, tab tak certificate of registration nahi milega”
were mentioned for the first time in the statement of the
complainant recorded subsequently on 26.09.2019 by the IO u/s
161 Cr.P.C. and hence much reliance cannot be placed upon the
said words which have merely been affirmed by the complainant
on a suggestion being put to him by ld. Addl.P.P. for the State in
his cross-examination, considering that the testimony of the
complainant PW7 itself contains contradictions on material
points viz-a-viz his initial complaint and is otherwise not
corroborated on material particulars.
96. Accordingly, the prosecution has not been able to
prove beyond reasonable doubt the initial demand as well as
demand of Rs. 2000/- by the accused at the spot. Hence, the
prosecution has not been able to establish on record any demand
for illegal gratification by the accused.
ACCEPTANCE OF ILLEGAL GRATIFICATION :
97. It is settled law that mere receipt of money by the
accused in absence of proof of demand is not sufficient to make
out a case u/s 7 PC Act. In the case of P. Satyanarayana Murthy
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 75 of 87
AIR 2015 SC 3549, it was held by the Hon’ble Supreme Court as
under:
“21. In State of Kerala and Anr. v. C.P. Rao,
this Court, reiterating its earlier dictum, vis-à-
vis the same offences, held that mere recovery
by itself, would not prove the charge against
the accused and in absence of any evidence to
prove payment of bribe or to show that the
accused had voluntarily accepted the money
knowing it to be bribe, conviction cannot be
sustained.
22. In a recent enunciation by this Court to
discern the imperative pre-requisites of
Sections 7 and 13 of the Act, it has been
underlined in B. Jayaraj in unequivocal terms,
that mere possession and recovery of currency
notes from an accused without proof of
demand would not establish an offence Under
Sections 7 as well as 13(1)(d)(i) & (ii) of the
Act. It has been propounded that 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 proved. The
proof of demand, thus, has been held to be an
indispensable essentiality and of permeating
mandate for an offence Under Sections 7 and
13 of the Act. Qua Section 20 of the Act,
which permits a presumption as envisaged
therein, it has been held that while it is
extendable only to an offence Under Section 7
and not to those Under Section 13(1)(d)(i) &
(ii) of the Act, it is contingent as well on the
proof of acceptance of illegal gratification for
doing or forbearing to do any official act. Such
proof of acceptance of illegal gratification, it
was emphasized, could follow only if there
was proof of demand. Axiomatically, it was
held that in absence of proof of demand, such
legal presumption Under Section 20 of the Act
would also not arise.
23. The proof of demand of illegal
gratification, thus, is the gravamen of the
offence Under Sections 7 and 13(1)(d)(i) & (ii)
of the Act and in absence thereof,
unmistakably the charge therefore, would fail.
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 76 of 87
Mere acceptance of any amount allegedly by
way of illegal gratification or recovery thereof,
dehors the proof of demand, ipso facto, would
thus not be sufficient to bring home the charge
under these two sections of the Act. As a
corollary, failure of the prosecution to prove
the demand for illegal gratification would be
fatal and mere recovery of the amount from
the person accused of the offence Under
Sections 7 or 13 of the Act would not entail his
conviction thereunder.” (Emphasis supplied)
98. Accordingly, for the purpose of Section 7 of PC Act
there has to be a specific demand of illegal gratification and mere
acceptance or handing over of money would not suffice. In the
present case demand of bribe money is not proved on record and
even acceptance and recovery of bribe money from the accused
has been vehemently disputed by the accused.
99. As per the seizure memo Ex. PW1/B the bribe
amount of Rs. 2000/- i.e. 2 GC notes of denomination of Rs.
1000/- each Ex. PW1/F (colly), were recovered from the almirah
in the office of accused from under a file. The file cover
alongwith papers is Ex. PW1/E. In this regard PW12 IO/Insp.
Kailash Chand deposed that the left hand and right hand wash of
the accused was taken in colourless Sodium Carbonate solution
which turned pink and the pink solution was kept in sealed glass
bottles. The glass bottles containing the left handwash and the
right handwash of the accused are Ex. PW2/Article-1 (LHW-1),
Ex. PW1/Article-4 (LHW-II), Ex. PW2/Article-2 (RHW-I), Ex
PW1/Article-5 (RHW-II). The wash of the file cover from
beneath which the bribe amount was recovered was also taken
and the colourless Sodium Carbonate solution turned pink, which
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 77 of 87
was also kept in glass bottles. The file cover wash are Ex.
PW2/Article-3 (FCW-I) and Ex. PW1/Article-6 (FCW-II). The
file cover was got dried and seized. The aforesaid hand-washes
and the file cover were seized vide seizure memo Ex. PW1/A.
100. As per the FSL result Ex. PW2/A the sealed glass
bottles exhibit RHW-1, LHW-I and FCW-I i.e. right handwash,
left handwash of the accused and the file cover wash, were found
to contain Phenolphthalein and Sodium Carbonate.
101. In the context of acceptance of bribe money of Rs.
2000/- i.e. two GC notes of denomination of Rs. 1000/- each, the
complainant deposed that he handed over the bribe amount of Rs.
2000/- to the accused. The panch witness was witnessing all the
proceedings while sitting on the chair lying in the office.
Thereafter, PW7 went out of the office and the panch witness
remained sitting there. Thereupon PW7 went to the gallery of the
office and gave pre-determined signal to the members of the
raiding party and the raiding team reached there and the accused
was caught red handed. He further deposed that during raid
proceedings the Constable took search of the purse of the
accused but bribe money was not there. Thereupon the files
lying in the iron almirah in the office of the accused were
checked one by one and in one file lying in the almirah, the bribe
amount was recovered. Thereafter the bribe amount was
confirmed from the panch witness.
102. In his cross-examination by ld. Addl.P.P. for the
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 78 of 87
State, PW7 stated that when IO was explaining about giving
signal to panch witness, PW7 was also present there and he was
under impression that the IO was asking both of them to give
signal after acceptance of bribe, therefore he had deposed that he
gave a signal after coming to the gallery. He stated that firstly he
came outside and gave signal at which RO asked him ” Ho gaya”
and PW7 affirmed. Thereafter the panch witness followed him
and gave the signal. PW7 also affirmed the suggestion of Ld.
Addl.P.P. for the State that after receiving the bribe amount, the
accused counted the notes with both her hands and thereafter she
kept the currency notes in a file cover and put the file cover in an
almirah. He further affirmed that the panch witness took out one
file cover containing the bribe amount from inside the almirah
from which two powder smeared currency notes of Rs. 1000/-
each were recovered.
103. Regarding the raid proceedings, the panch witness
PW8 deposed that the complainant took out Rs. 2000/- and
handed over the same to the accused who after accepting the
same kept those GC notes in a file. The accused kept the file in
the almirah and started proceeding for lunch and meanwhile PW8
gave signal at which the raiding team came there and the lady
constable started taking search of the accused but nothing was
recovered from the possession of the accused. Thereupon PW8
was enquired and he told that the bribe money was kept by the
accused in a file lying in the almirah. Thereafter the raiding team
took search of the almirah and in one of the file the bribe amount
of Rs. 2000/- was recovered. In his cross-examination by ld.
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 79 of 87
Addl.P.P. for the State, PW8 denied that he had retrieved the file
cover containing bribe of Rs. 2000/- from the almirah. In his
cross-examination by the ld. Counsel for the accused, PW8 stated
that the raiding team took search of the almirah of the room. The
almirah was having doors. The door of the almirah was opened
by raiding team and it was not locked at that time. It took about
5-7 minutes in searching the file in the almirah. PW8 stated that
he pointed out the almirah in which the file was kept. PW8 did
not remember from which shelf of the almirah the file containing
the bribe amount was taken out. He could not tell whether the
said file was lying on the top, middle or at the bottom of the piles
of the files in the shelf of the almirah.
104. As regard recovery of the bribe amount, the raid
officer PW12 Insp. Kailash Chand deposed that at about 01.15
pm the panch witness came outside the office and gave pre-
determined signal to the raiding party and they raided there.
PW12 also deposed that he asked W/HC Kiran to take cursory
search of the accused and that he had directed the panch witness
to recover the bribe, which the accused had kept in the almirah
and on his direction the panch witness got recovered the bribe
from the almirah which was kept beneath a file in the almirah. In
his cross-examination by ld. Counsel for the accused, PW12
stated that complainant did not accompany the panch witness at
the time of giving the pre-determined signal nor did the
complainant give any signal. Panch witness informed them that
the accused after accepting the bribe money kept the same in the
almirah. The panch witness after opening the almirah searched
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 80 of 87
the GC notes which were found lying on the slab of the almirah
and upon those GC notes some files were lying. He stated that
the GC notes were recovered from beneath the files and not from
inside any file.
105. PW1 W/ASI Kiran was also a part of the raiding
team and regarding recovery of the bribe amount she deposed
that the panch witness came out of the room and gave signal to
the raiding party and thereafter they all went inside. PW1 also
deposed that panch witness apprised the raiding party that the
accused had taken money and had put the same in the almirah in
the room and also pointed out the almirah in which the money
was kept. PW1 stated that she took out the bribe money from the
file cover which was kept inside the almirah that was pointed out
by the panch witness. In her cross-examination by the ld.
Counsel for the accused, PW1 stated that she took out the file,
then opened the same then checked the GC notes and then
handed over the GC notes and the file to the RO. The file had
some papers but she did not know the contents of the said papers.
She stated that the almirah from where she took out the file was
an open rack. She did not remember as to on which shelf of the
rack, the file was lying, however, it was one of the middle shelf.
The file having currency notes was lying on the top of other files
placed in the middle shelf.
106. As regards recovery of bribe money PW16 Ct.
Sanjay Malik – member of the raiding team, deposed that the
panch witness recovered the bribe amount from a file lying in the
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 81 of 87
almirah. In his cross-examination by ld. Counsel for the accused
PW16 deposed that the panch witness took out the file from the
almirah and after opening the file the bribe money was taken out.
107. From the testimony of witnesses of recovery i.e.
PW1, PW16, complainant PW7 and the panch witness PW8, it is
revealed that the bribe money i.e. two GC notes of Rs. 1000/-
denomination were not recovered from the person of accused
Sunita Sharma and were recovered from the almirah kept in her
room. Their testimony also reveals that signal was given to the
raiding team by the panch witness. Though the complainant
PW7 stated that the signal was given by him, however,
subsequently he explained that the signal was also given by the
panch witness. Even though the Raid Officer has specifically
stated that no signal was given by the complainant, however, the
said discrepancy is a minor discrepancy and does not detract
from the prosecution version that a signal infact had been given
to the raiding team by the panch witness after which the raiding
team entered the room of the accused.
108. It may however be noted that PW1, PW16, PW7 and
PW8 have all stated that the bribe amount was recovered from a
file kept in the almirah. PW8 Panch witness specifically stated
that the accused after accepting the GC notes amounting to Rs.
2000/- and kept them in a file and thereafter she kept the file in
the almirah. PW8 did not remember whether the bribe amount
i.e. two notes of Rs. 1000/- denomination were counted by the
accused with both her hands. The complainant PW7 in his cross-
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 82 of 87
examination by ld. Addl.P.P. for the State affirmed the
suggestion that after receiving the bribe amount from him, the
accused counted the notes with both her hands and thereafter she
kept the currency notes in a file cover and put the file cover in an
almirah. Noticeably the suggestion as regards the place of
recovery of the bribe amount being from inside the file cover has
been put to the complainant by the prosecution. Hence, as per
the testimony of PW7 and PW8, the accused after accepting the
bribe amount kept the bribe money in a file and kept that file in
the almirah and the bribe amount was also recovered from inside
a file kept in the almirah.
109. Perusal of the seizure memo Ex. PW1/A reveals that
it is mentioned therein that the file was recovered from the
almirah in the office of accused Sunita Sharma under which the
bribe amount of Rs. 2000/- was hidden. The file was of
‘Khakhi” colour on which “ALRO SALES” was written and it
contained ten papers and the said seizure memo further mentions
the proceedings regarding file wash etc. In his testimony
recorded before the court, PW12 specifically stated that he
directed the panch witness to recover the bribe which the accused
had kept in the almirah and on his direction the panch witness got
recovered the bribe amount which was kept beneath a file in the
almirah.
110. Hence, there is a material contradiction regarding
the place from which the bribe money was recovered in as much
as the complainant PW7 and panch witness PW8 have stated that
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 83 of 87
the bribe money was kept by the accused in a file cover after
accepting it and thereafter the file was kept in the almirah and the
bribe money was recovered from inside the file cover which was
kept in the almirah. PW1 W/HC Kiran and PW16 Ct. Sanjay
Malik also stated that the bribe money was recovered from the
file cover. The said fact regarding recovery is in clear
contradiction to the version of PW12 Raid Officer that the panch
witness got the bribe money recovered from beneath a file kept in
the almirah and also stated that the bribe money was lying on the
slab of the almirah and other files were lying upon those GC
notes. He specifically stated that the GC notes were recovered
from beneath the files and not from inside any file. The seizure
memo Ex. PW1/A also categorically mentions that the bribe
money was recovered from under a file. Hence, there is a
material contradiction in version of PW7, PW8, PW1 and PW16
on one hand and the version of PW12 and the seizure memo Ex.
PW1/A regarding the place of recovery of bribe money. The said
contradiction being a material contradiction cannot be brushed
aside.
111. It is also noteworthy that as per the prosecution
version and as also deposed by PW12 Raiding Officer, the bribe
money was recovered by the panch witness from the almirah. In
this regard, the panch witness PW8 denied the suggestion of the
Ld. Addl.P.P. for the State that he had recovered the file cover
containing the bribe amount of Rs. 2000/- from the almirah.
PW1 W/HC Kiran deposed that the panch witness pointed out at
the almirah and she took out the bribe money from the file cover
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 84 of 87
which was kept inside the almirah. PW7 complainant stated that
the Constable took search of purse of accused but bribe money
was not found there. Thereupon the files lying in the iron
almirah in the office of the accused were checked one by one and
the bribe amount was recovered from one of the files lying in the
almirah. Thereafter the serial number of the bribe amount was
confirmed from the panch witness and in his cross-examination
by ld. Addl.P.P. for the State PW7 affirmed the suggestion that
the panch witness took out one file cover containing bribe
amount from inside the almirah. Hence, there are contradictions
in the testimonies of PW12 raid officer, who stated that the panch
witness recovered the bribe money from the almirah from under
the files; PW8 panch witness who denied the suggestion that he
had recovered the bribe money; PW1 who stated that she had
recovered the bribe money from the file cover kept in the almirah
which was pointed out by the panch witness and PW7 who
affirmed the suggestion of ld. Addl.P.P. for the State that the
bribe money was recovered by the panch witness from a file
cover kept in the almirah. Hence, besides the factum regarding
place of recovery of the bribe money, there are discrepancies in
the testimony of the above witnesses regarding who recovered
the bribe money at the time of raid.
112. It is also pointed out by ld. Counsel for the accused
that there are contradictions in the testimony of the aforesaid
witnesses regarding the place where the handwash proceedings
were carried out. In this regard, PW1 has deposed that the
proceedings of handwash took place at the table which was lying
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 85 of 87
at Point-A2 marked in the site plan Ex. PW7/D. PW8 deposed
that after recovery of the bribe amount from the almirah and
apprehension of the accused, they all came outside the room of
the accused towards the gallery where the lift was installed. All
the exhibits relating to handwash etc. were taken on a table in the
gallery outside the room of the accused. It may be noted that
Point-A2, which was pointed out by PW1, is in the hall in which
the room of the accused was located whereas PW8 has stated that
the handwash proceedings took place in the gallery where the
lifts were installed. On the other hand, in this regard, Const.
Sanjay Malik PW16 deposed that the proceedings regarding
hand-wash were conducted in the room of the accused. PW12
Raid Officer also deposed that the proceedings of hand-wash of
the accused were done in her room near the almirah and not in
the area shown at Point-A5 in the site plan Ex. PW7/D. Hence,
even the version of Raid Officer PW12 and PW16 Const. Sanjay
Malik is at variance with the version of panch witness PW8 and
PW1 W/HC Kiran regarding the place where the hand-wash
proceedings were carried out. Though such variations and
contradictions may not be material contradictions, however,
cumulatively, in the background and given circumstances of the
present case where even recovery itself has been rendered
doubtful, these discrepancies cannot be ignored.
113. Accordingly, in the present case the prosecution has
not been able to prove demand of bribe by the accused beyond
reasonable doubt. Even the acceptance of bribe money has not
been proved beyond doubt in as much as there are material
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 86 of 87
contradictions regarding the recovery of bribe money and
proceedings in that regard.
114. It is only if the factum of demand of gratification
and acceptance thereof is proved that presumption under section
20 of PC Act can be invoked by the Court to presume that the
demand was for a motive or reward for doing any official act. In
the present case the prosecution has not been able to establish
beyond reasonable doubt either demand of illegal gratification by
the accused or its acceptance by the accused to hold the accused
guilty of the charged offences.
115. In view of foregoing discussion, the prosecution has
failed to prove its case against the accused beyond reasonable
doubt. Accordingly, accused Sunita Sharma is given benefit of
doubt and she is acquitted of the charged offences. Her bail bond
stands cancelled and surety stands discharged.
116. File be consigned to Record Room after due
compliance. Digitally signed
DEEPALI by DEEPALI
SHARMA
SHARMA Date: 2025.01.23
Announced in the open Court 16:45:17 +0530
on 23rd January, 2025 ( Deepali Sharma )
Special Judge (PC Act) (ACB-01)
Rouse Avenue Courts Complex
New Delhi
CC No.54/2021 FIR No. 29/2015 , PS ACB, State vs. Sunita Sharma Page 87 of 87