Order 13

Order Details: COPY OF ORDER
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CNR No.DLCT11-000470-2021; CC No. 65/2021; State Vs.Surender Singh Fonia; FIR No.14/2016; Order on Charge Dated 13th October
2022; Page 1 of 8
In the Court of Dig Vinay Singh: Special Judge (PC Act) (ACB)-02; Rouse
Avenue Courts, New Delhi
State Vs. Surender Singh Fonia
CNR No. DLCT11-000470-2021
CC No. 65/2021
FIR No. 14/2016
PS ACB
Dated; 13-10-2022
ORDER ON CHARGE
1. Brief facts of the case are that on 07.09.2016 complainant Vinod Negi
gave a written complaint in PS ACB alleging that he had filed a consumer
Complaint No. 142/2012 before Consumer Dispute Redressal Forum,
Qutub Institutional Area, Mehrauli, Delhi, in the year 2012, titled as
Vinod Negi Vs. M/s VXL Realtors Private Ltd. On 22.08.2016 after the
hearing of the matter, the President of the Forum told the complainant that
final order would be passed and the same would be sent to the
complainant by post, within 20-25 days.
1.1. But, on 30.08.2016, accused Surender Singh Fonia, who was a member
of Forum, telephoned the complainant at 4.07 PM on his mobile no.
9911142849 from landline no. 011-26565666. In this call, accused
identified himself by revealing his name and by telling the complainant
that he was member of the Forum and he also demanded Rs. 1 Lakh from
the complainant for passing favorable order in the matter of the
complainant, stating that the order of the case of complainant was being
prepared.
1.2. Accused again called the complainant on that very day at 5.55 PM, this
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CNR No.DLCT11-000470-2021; CC No. 65/2021; State Vs.Surender Singh Fonia; FIR No.14/2016; Order on Charge Dated 13th October
2022; Page 2 of 8
time from his mobile no. 9868394038, on the mobile phone of the
complainant mentioned above, and reiterated the demand.
1.3. One more call was made by the accused on 01.09.2016 at 02.19 PM, from
the above-mentioned landline number on the mobile of complainant,
wherein he said that he would pass order in favor of complainant if
complainant is ready to pay Rs. 50,000/-.
1.4. On 01.09.2016 itself, at 06:28 PM, another call was made by the accused
from his mobile number to the mobile of complainant, in which the accused
told the complainant that the complainant can come to the cabin of accused
which was located behind the Forum and collect the order from the accused.
In this call the accused emphasised to bring the bribe amount of Rs. 50,000/-.
1.5. On 05.09.2016, complainant went outside the Forum and contacted the
accused on the mobile of accused, upon which the accused asked the
complainant to wait outside and then the accused came out after 5 minutes
and handed over an unsigned copy of an order and then asked for the
money from the complainant. When the complainant expressed his
helplessness and started negotiating the bribe amount, the accused took
back the copy of the order stating that there was no scope of negotiation.
1.6. Thereafter, the complainant made the complaint on 07.09.2016 in PS
ACB, upon which a raiding team was organized which included a Panch
witness, namely Pradeep Kumar Kheda. In presence of the Panch witness,
the accused demanded and obtained the said amount of Rs. 50,000/- from
the complainant at about 5.10 PM at Main Road, near C-27, Qutub
Institutional Area, New Delhi, near office of Indian Institute of Chemical
Engineers. The accused was apprehended red handed and his right-hand
wash and right-side pocket of pant wash, wherein he had kept the bribe
amount after accepting it from the complainant, were taken in Sodium
Carbonate Solution, as the currency notes given to him were already
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CNR No.DLCT11-000470-2021; CC No. 65/2021; State Vs.Surender Singh Fonia; FIR No.14/2016; Order on Charge Dated 13th October
2022; Page 3 of 8
treated with Phenolphthalein Powder. The wash proceedings confirmed
presence of Phenolphthalein on the hand and pocket of accused.
1.7. The sample washes were sent to the FSL and the FSL result dated
31.01.2018 also confirmed presence of Phenolphthalein and Sodium
Carbonate in the sample solution.
1.8. During investigation, the complainant also handed over a DVD
containing recordings of the telephonic conversations between him and
the accused for the above-mentioned dates and time.
1.9. Sample voice of complainant and accused were also obtained and were
got examined with the questioned audio recording. Vide FSL result dated
18.02.2019, the expert confirmed that the questioned audio recordings
contained voice of accused as well as the complainant. Transcript of those
calls are on record, which also confirms demand of bribe by the accused
at various places.
1.10. Sanction U/s 19 of POC Act, 1988 by the competent authority dated
17.06.2021 for offences U/s 7 & 13 of POC Act is also on record.
2. It is argued on behalf of the accused that though the complaint was made
on 07.09.2016, but the call details were handed over only on 29.09.2016
and therefore there is a delay which creates suspicion. It is also argued
that the CDR's of the land line no. 26565666 obtained by the investigating
agency for the period 01.08.2016 to 31.08.2016 does not support the
version of the complainant as to the date and time of calls made from that
land line to the mobile phone of the complainant. It is also argued that
there is a discrepancy in the case of prosecution as to what colour of
clothes the accused had said that he would be wearing and as to what
actual colour of clothes he was found wearing at the time when he was
apprehended. It is also claimed that when the order in question in the
complaint of the complainant before consumer Forum was already signed
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CNR No.DLCT11-000470-2021; CC No. 65/2021; State Vs.Surender Singh Fonia; FIR No.14/2016; Order on Charge Dated 13th October
2022; Page 4 of 8
on 05.09.2019, there was no occasion for the accused to have sought
bribe. It is also argued that the statements of the Presiding Officer and
other members of Forum have not been obtained and that mobile phone
call details of the accused were not obtained. It is also argued that the
accused was not in a capacity to favor the complainant in the proceedings
before the Forum and therefore there is no question of demand of bribe.
3. None of the arguments raised by the accused are adequate enough to seek
discharge. When there are specific and direct allegations by the
complainant as to demand of bribe by the accused during telephonic
conversation and also in physical presence of complainant for the above
mentioned favor, at the stage of charge these arguments do not help the
accused. The variance between the date and time of call as reflected in the
CDR of the landline can be an error on the part of the complainant in
describing the dates in his complaint. CDR does reveal that there is a call
from the landline on the mobile phone of the complainant on 31.08.2016
at about 04.06 p.m. instead of 30.08.2016. Similarly, there is a call from
this landline on 02.09.2016 at about 11.19 a.m. on the mobile of
complainant, instead of 01.09.2016. Merely because the investigating
agency did not collect the CDR of the mobile phones of the accused and
complainant would not be enough at this stage to give benefit to the
accused. After all the accused was apprehended red handed from the spot
when he demanded and accepted the bribe in presence of an independent
Panch witness. The question whether accused was in any position to
favour the complainant or not is a question of trial and cannot be pre
judged. Similarly, the remaining contentions of the accused are all
question of trial. At this stage even a strong suspicion against an accused
is enough to frame charges.
4. Law regarding considerations at the stage of framing of charges are well
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CNR No.DLCT11-000470-2021; CC No. 65/2021; State Vs.Surender Singh Fonia; FIR No.14/2016; Order on Charge Dated 13th October
2022; Page 5 of 8
settled now.
5. Recently, in the case of M.E. Shivalingamurthy v. CBI, (2020) 2 SCC 768,
Hon’ble Supreme Court summarised the scope at the stage of charge and
observed as follows;
“Legal principles applicable in regard to an application seeking discharge
17.This is an area covered by a large body of case law. We refer to a recent
judgment which has referred to the earlier decisions viz. P. Vijayan v State
of Kerala [P. Vijayan v. State of Kerala, (2010) 2 SCC 398: (2010) 1 SCC
(Cri) 1488] and discern the following principles:
17.1. If two views are possible and one of them gives rise to suspicion only
as distinguished from grave suspicion, the trial Judge would be empowered
to discharge the accused.
17.2. The trial Judge is not a mere post office to frame the charge at the
instance of the prosecution.
17.3. The Judge has merely to sift the evidence in order to find out whether
or not there is sufficient ground for proceeding. Evidence would consist of
the statements recorded by the police or the documents produced before the
Court.
17.4. If the evidence, which the Prosecutor proposes to adduce to prove the
guilt of the accused, even if fully accepted before it is challenged in cross-
examination or rebutted by the defence evidence, if any, “cannot show that
the accused committed offence, then, there will be no sufficient ground for
proceeding with the trial”.
17.5. It is open to the accused to explain away the materials giving rise to the
grave suspicion.
17.6. The court has to consider the broad probabilities, the total effect of the
evidence and the documents produced before the court, any basic infirmities
appearing in the case and so on. This, however, would not entitle the court
to make a roving inquiry into the pros and cons.
17.7. At the time of framing of the charges, the probative value of the
material on record cannot be gone into, and the material brought on record
by the prosecution, has to be accepted as true.
17.8. There must exist some materials for entertaining the strong suspicion
which can form the basis for drawing up a charge and refusing to discharge
the accused.
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CNR No.DLCT11-000470-2021; CC No. 65/2021; State Vs.Surender Singh Fonia; FIR No.14/2016; Order on Charge Dated 13th October
2022; Page 6 of 8
18. The defence of the accused is not to be looked into at the stage when the
accused seeks to be discharged under Section 227 CrPC (see State of J&K v.
Sudershan Chakkar [State of J&K v. Sudershan Chakkar, (1995) 4 SCC 181:
1995 SCC (Cri) 664: AIR 1995 SC 1954]). The expression, “the record of
the case”, used in Section 227 CrPC, is to be understood as the documents
and the articles, if any, produced by the prosecution. The Code does not give
any right to the accused to produce any document at the stage of framing of
the charge. At the stage of framing of the charge, the submission of the
accused is to be confined to the material produced by the police (see State of
Orissa v. Debendra Nath Padhi [State of Orissa v. Debendra Nath Padhi,
(2005) 1 SCC 568: 2005 SCC (Cri) 415: AIR 2005 SC 359]).”
5.1. It was also observed as follows in para 28 in the case of M.E.
Shivalingamurthy (Supra);
“28. It is here that again it becomes necessary that we remind ourselves of
the contours of the jurisdiction under Section 227 CrPC. The principle
established is to take the materials produced by the prosecution, both in the
form of oral statements and also documentary material, and act upon it
without it been subjected to questioning through cross-examination and
everything assumed in favour of the prosecution, if a scenario emerges
where no offence, as alleged, is made out against the accused, it,
undoubtedly, would enure to the benefit of the accused warranting the trial
court to discharge the accused.”
5.2. In the case of Akbar Hussain v. State of J&K, (2018) 16 SCC 85, it was
held as follows;
“5. …...........At the time of framing the charge, the trial court has to consider
the material before it by the investigating officer and form a prima facie
opinion thereupon as to whether it is a fit case for framing of charge under
a particular provision. The standard of proof test, which is to be applied at
the final stage, in order to find out as to whether the accused is guilty or
not on the basis of actual evidence produced is not to be applied at the stage
of framing of the charge. Charge can be framed even when there is a strong
suspicion founded upon materials before the Court, which leads the court
to form a presumptive opinion as to existence of the factual ingredient
constituting the offence alleged.”
5.3. In the case of Mauvin Godinho v. State of Goa, (2018) 3 SCC 358 it was
held as follows;
“12. At the outset it would be pertinent to note the law concerning the framing
of charges and the standard which courts must apply while framing charges.
It is well settled that a court while framing charges under Section 227 of the
Code of Criminal Procedure should apply the prima facie standard. Although
the application of this standard depends on facts and circumstance in each
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CNR No.DLCT11-000470-2021; CC No. 65/2021; State Vs.Surender Singh Fonia; FIR No.14/2016; Order on Charge Dated 13th October
2022; Page 7 of 8
case, a prima facie case against the accused is said to be made out when
the probative value of the evidence on all the essential elements in the
charge taken as a whole is such that it is sufficient to induce the court to
believe in the existence of the facts pertaining to such essential elements or
to consider its existence so probable that a prudent man ought to act upon
the supposition that those facts existed or did happen. However, at this
stage, there cannot be a roving enquiry into the pros and cons of the matter
and weigh the evidence as if he was conducting a trial.”
6. When there are specific allegations against the accused made by the
complainant that the accused called the complainant telephonically and
demanded bribe from him for passing a favorable order and then also
physically met the complainant outside his office on 05.09.2016 when
also he demanded bribe and then finally on 07.09.2016 again the accused
demanded and obtained the bribe, makes out a prima facie case of offence
u/s 7 & 13(2) r/w 13(1)(d) of POC Act, as were applicable on the date of
commission of offence of the present case.
7. Section 7 of the POC Act, as relevant qua the date of offence of this case,
made punishable accepting gratification by public servant other than legal
remuneration in respect of an official act. It provides punishment where a
public servant either accepts or obtains or agrees to accept or even
attempts to obtain from any person any gratification other than legal
remuneration, either for himself or for any other person, as a motive or
reward for doing or forbearing to do any official act or for showing or
forbearing to show any favor or disfavor to any person in exercise of his
official function. Explanation (d) of that section clarifies that even where
a public servant receiving a gratification as a motive or reward for doing
what he does not intend to do or even where he is not in a position to do
or even where he has not done that act, would be covered under this
section.
8. Section 13(1)(d) of the Act, as relevant qua the date of offence, provided
that a public servant commits ‘criminal misconduct’ where he obtains, by
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CNR No.DLCT11-000470-2021; CC No. 65/2021; State Vs.Surender Singh Fonia; FIR No.14/2016; Order on Charge Dated 13th October
2022; Page 8 of 8
corrupt or illegal means, any valuable thing or pecuniary advantage, either
for himself or for any other person; or he obtains it by abusing his position
as a public servant; or he obtains it while holding office as a public servant
without any public interest. Sub section (2) of section 13 makes
punishable the offence of criminal misconduct.
9. The ingredients of both the above mentioned provisions i.e., Section 7 &
13(1)(d) are prima facie satisfied in this case.
10. Accordingly, prima facie there are sufficient material to frame
charges U/s 7 & Sec. 13(2) r/w Sec. 13(1)(d) of POC Act, 1988 against
the accused and let charges be framed.
Announced in Open Court
On 13th October 2022
Dig Vinay Singh
Special Judge (PC Act) (ACB)-02
Rouse Avenue Courts
New Delhi / 13-10-2022 (k)
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