Interim Order 9

Order Details: COPY OF ORDER
Pdf Text: CC No.43/2025, FIR No.8/2021, PS: ACB
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IN THE COURT OF SH. VIDYA PRAKASH
SPECIAL JUDGE (PC ACT) (ACB)-01
ROUSE AVENUE COURT COMPLEX: NEW DELHI
CNR NO.: DLCT11-001288-2025
CC NO.: 43/2025
STATE Vs. NARESH KUMAR, ETC.
FIR NO.: 8/2021
PS: ACB
U/S: 7/7A/12 PC ACT
r/w 120-B IPC
ORDER ON CHARGE
1. Vide this order, I shall decide the question of framing of
charge against the accused persons, as also the application
u/s 250 BNSS dated 16.03.2026, seeking his discharge
moved by accused no. 4 namely Dinesh Kumar (A-4).
2. Arguments on the point of charge, as also on the aforesaid
application moved by A-4, have already been heard on
behalf of both the sides. I have duly considered the rival
submissions made on behalf of both the sides in the light
of material available on record, as also the authorities cited
at the Bar.
BRIEF FACTS:
3. As per the charge-sheet, the case of the prosecution is that
complainant namely Sh. Sunny had approached Anti
Corruption Branch [ACB] with handwritten complaint
dated 30.06.2021 regarding demand of bribe of
Rs.70,000/- for issuance of Trade License Certificate to
deal in sale and purchase of e-rickshaws. In the said
complaint, he alleged that he was doing the business of
sale and purchase of e-rickshaws on commission basis and
had applied for said license with Transport Department of
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GNCT of Delhi. In connection therewith, he had met the
officers of concerned department several times. He further
alleged that concerned MLO, Wazirpur Transport
Authority
i.e. A-4, had asked him to talk to one private
person namely Gulshan (A-3) and also provided his
contact number, on which, he talked with A-3,
who eventually asked him to pay the bribe money of
Rs.70,000/- for getting his work done, on the pretext that
said bribe amount would be paid to the concerned officers
of the transport department and the entire work would be
got done by the concerned MLO. The complainant paid
advance of Rs.10,000/- to A-3. After sometime, A-3 made
a call to the complainant and demanded balance money, on
which, he approached the office of ACB and lodged the
said complaint.
4. On the basis of aforesaid complaint, a trap was laid by
ACB officials and accused persons namely Naresh Kumar
(A-1) and Sandeep Kadyan (A-2), who were working as
Peon and Data Entry Operator respectively in the office of
Wazirpur Transport Authority, were allegedly caught red
handed on 30.06.2021 from the said office, while
complainant had handed over Rs.50,000/- in the form of 25
GC notes in the denomination of Rs.2,000/- each smeared
with Phenolphthalein Powder, to A-2, who in turn, had
handed over the said GC notes to A-1 and ultimately, said
GC notes were allegedly recovered from right hand of A-1.
Accordingly, right hand wash of both the said accused
namely Sandeep Kadyan and Naresh Kumar were taken in
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colourless solution of Sodium Carbonate, which turned
into pink colour. Accordingly, a case was registered, vide
FIR No. 08/2021, u/s 7/7A/12 Prevention of Corruption
Act and 120B IPC at P.S. ACB and both the said accused
were arrested on 30.06.2021.
5. During investigation, statement u/s 164 Cr.P.C. of
complainant was got recorded on 10.09.2021; the relevant
exhibits of hand wash of A-1 & A-2 were got deposited in
FSL, Rohini, Delhi for examination and after their
examination, FSL report dated 27.08.2021 was received,
wherein it was opined that
“on Chemical and TCL
examination, exhibits ‘NRHW-I’, ‘SRHW-I’ and
‘SRPPW-I’ were found to contain phenolphthalein and
sodium carbonate”.
6. During further investigation, it was revealed that accused
Dinesh Kumar (A-4), who was working as MLO in
Wazirpur Transport Authority, had called accused Naresh
Kumar (A-1) to his office and had directed him that as and
when accused Sandeep Kadyan (A-2) would bring bribe
money of Rs.50,000/-, he (A-1)) should receive it from
him. It further revealed that A-4 had handed over the
concerned file relating to Trade Certificate Application of
M/s Sunny e-rickshaw to A-2 and had directed him that
someone would come to him in relation with the said file
and would give bribe money of Rs.60,000/- and A-2
should hand over the said bribe money to A-1/peon. It was
also revealed that there was already approval for issuance
of such Trade License Certificate from the Competent
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Authority and such Trade Certificate had to be issued from
the ID of computer system installed in the office of
A-4/MLO Dinesh Kumar, for which, there was demand of
Rs.70,000/- as illegal gratification made by him
through accused Gulshan Mahtta (A-3). In his statement
u/s 164 Cr.P.C., the complainant levelled specific
allegations against A-4 regarding his conspiracy with
co-accused persons for pecuniary benefit of bribe amount
of Rs.50,000/- in lieu of issuance of Trade License
Certificate and also that it was A-4, who had provided the
mobile number of A-3 to the complainant, with direction
that complainant should meet A-3 and also that A-4 was
constantly in touch with co-accused Sandeep Kadyan
(A-2), as per analysis of CDRs of their mobile connection
numbers collected during investigation. Sanctions u/s 19 of
PC Act were accorded by Sanctioning Authorities against
the accused persons namely Naresh Kumar (A-1), Sandeep
Kadyan (A-2) and Dinesh Kumar (A-4) and after
completion of investigation, charge sheet was filed before
the Court.
ARGUMENTS ADVANCED ON BEHALF OF BOTH THE SIDES:
7. After referring to the case of the prosecution as mentioned
in the charge-sheet and the material filed therewith,
Ld. Chief PP vehemently argued on behalf of State that
there is sufficient material available on record, which
makes out
prima facie case for framing of charge in respect
of accused persons namely Naresh Kumar, Sandeep
Kadyan and Dinesh Kumar in respect of offences u/s 7 of
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PC Act (all three being public servants) and S. 120B IPC.
He further submitted that accused no. 3 namely Gulshan
Mahtta (private person) had also conspired with remaining
accused persons and in pursuance of such conspiracy, said
accused had demanded bribe money from the complainant
for getting his work done through the official(s)/public
servant(s) of Wazirpur Transport Authority, thereby
abetting accused nos. 1 and 2 in the commission of offence
punishable under S. 7 of The Prevention of Corruption
Act, 2018 and thus, there is sufficient material which
makes out a
prima facie case against him for the offences
u/s 12 of PC Act and 120-B IPC.
8. Ld. Chief PP further argued that accused no. 4 is named in
the written complaint itself, and said accused had asked the
complainant to talk to accused no. 3 namely Gulshan
Mahtta and had also provided his contact number to him,
and only thereafter, the complainant had met with accused
no. 3, who had eventually asked for the bribe money of
Rs.70,000/- for getting his work done on the pretext that
such bribe amount would be paid to the concerned officers
of the transport department and also that the entire work
would be got done by concerned MLO/accused no.4. He
further contended that accused no. 3 had received advance
money of Rs.10,000/- from the complainant, where-after,
said accused had made a call to the complainant and had
demanded balance money, on which, the complainant
lodged written complaint with ACB and thereafter, trap
was laid by officers of ACB on 30.06.2021 and accused
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no. 1 and 2 were arrested while demanding and accepting
bribe money of Rs.50,000/- from the complainant.
In support of his submissions, Ld. Chief PP also
relied upon written complaint dated 30.06.2021, statement
u/s 164 Cr.P.C. of the complainant, as also the statements
u/s 161 Cr.P.C. of complainant, panch witness namely
Sh. Vinay Dahiya and that of the members of the raiding
team. He also relied upon FSL result, in order to bring
home his point that recovered GC Notes were found to
contain phenolphthalein and Sodium Carbonate on them,
during their examination in the laboratory. He, therefore,
urged that charge in respect of aforesaid offences may be
framed against the accused persons and the application
seeking discharge moved by accused no.4, may be
dismissed.
9.
Per contra, Ld. Counsel of accused nos. 1 and 2
vehemently argued that there is no sufficient material filed
along chargesheet so as to make out any
prima facie case
for framing of charge in respect of any offence against said
two accused persons. He contended that neither these
accused persons are named in the FIR, nor they had
anything to do with the alleged work of the complainant,
nor they were in a position to get his work done, as the
accused no. 1 Naresh Kumar was working on the post of
Peon; and accused no. 2 Sandeep Kadyan was working on
the post of Data Entry Operator in the office of Wazirpur
Transport Authority, Delhi during the relevant period.
He further argued that demand and acceptance of bribe are
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sine qua non to attract the offences punishable u/s 7/7A PC
Act, in support of which submission, he also placed
reliance upon the decisions of Hon’ble Apex Court in
cases titled as
“State of Maharashtra Vs Dnyaneshwar
Laxman Rao Wankhede”, bearing Crl. A. No. 1350/2009
decided on 29.07.2009; and
“B. Jayraj Vs State of A.P.”
reported as 2014 (13) SCC 55.
10. The next limb of argument advanced by Ld. Counsel for
accused nos. 1 and 2 has been that statement u/s 164
Cr.P.C. of complainant Sunny, is somewhat contrary to his
statement u/s 161 Cr.P.C. recorded by IO. The complainant
has stated in his statement u/s 161 Cr.P.C. dated
30.06.2021 that accused Gulshan Mahtta had met him
(complainant) at the gate of the office of Transport
Authority, Wazirpur and after having conversation, both of
them had gone inside the office of said Transport
Authority while talking to each other, where accused
Gulshan Mahtta had pointed him out towards accused
Sandeep Kadyan (A-2) and had told him that A-2 would
get his work done and thereafter, accused Gulshan Mahtta
had left away. However, in his statement u/s 164 Cr.P.C.,
the complainant has stated that he had met with accused
Gulshan Mahtta at the gate of the office of Transport
Authority, where-after, accused Gulshan Mahtta had called
accused Sandeep Kadyan (A-2) outside the office of
Transport Authority and then, he (complainant) had paid
Rs.50,000/- to A-2 at a place under tree situated near the
office of said Transport Authority. He further contended
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that it is nowhere the case of prosecution that the
complainant was previously knowing either of accused
nos. 1 and 2 prior to 30.06.2021, on which date, said
accused were allegedly caught red-handed by the team of
ACB. He submitted that it is quite unbelievable that the
complainant would have paid the amount of Rs.50,000/- to
either of the said two accused who were entirely strangers
to him prior to that day. He, therefore, urged that both the
said accused persons deserve to be discharged in this case.
11. Ld. Counsel for accused no. 3 namely Gulshan Mahtta,
however, fairly conceded on the point of charge and
contended that charge in respect of appropriate offences
may be framed against the said accused.
12. Ld. Counsel for accused no. 4 namely Dinesh Kumar,
however, vehemently argued that said accused has been
falsely implicated and wrongly charge-sheeted in this case
and there is absolutely no material to support the
allegations levelled against him. Ld. Counsel submitted
that in sum and substance, the allegations qua accused no.
4 are that he had conspired with remaining three accused
persons for pecuniary benefit in lieu of issuing Trade
License Certificate. He pointed out from the record that
even as per the case of the prosecution, approval for
issuance of such Trade License Certificate had already
been granted by Competent Authority prior to 30.06.2021
and thus, there was no occasion for said accused to seek
any pecuniary benefit under the garb of showing any
favour to the complainant. He further argued that there is
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no specific or direct allegation regarding demand and
acceptance of bribe against said accused either in the
written complaint lodged by complainant; or even in his
statement u/s 161 Cr.P.C. recorded by IO; or even in his
statement u/s 164 Cr.P.C. recorded by Ld. ACMM-02,
RADC, New Delhi.
13. While referring to the prosecution story alleging that bribe
money was recovered from the possession of accused nos.
1 and 2, Ld. Counsel further argued that there is no
recovery of bribe money either from the possession of
accused no. 4, or even at his instance. He further submitted
that accused no. 4 can not be held responsible for the
illegal act, if any, on the part of accused nos. 1 and/or 2; or
even on the part of accused no. 3. He contended that
merely because accused no. 4 was working as MLO in the
concerned Transport Authority during relevant period; and
A-1 and/or A-2 and/or A-3 would have demanded any
bribe from the complainant in the name of A-4, he cannot
be held liable for their illegal acts, if any, more
particularly, when there is no allegation regarding demand
and acceptance of bribe against A-4 and there is no
concrete material to connect said accused with the
remaining co-accused persons. In this regard, he also
submitted that the prosecution has failed to produce any
material showing that there was meeting of minds amongst
the accused persons; or that all the four accused persons
had agreed to do some illegal act; or an act through illegal
means within the meaning of S. 120B IPC.
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14. Another bone of contention raised on behalf of accused no.
4 has been that said accused has already been exonerated
on merits in the Departmental Enquiry initiated against
him on identical set of allegations that he had demanded
illegal gratification from the complainant through his
conduit namely Gulshan Mahtta (A-3) for issuance of
Trade License Certificate. He submitted that since standard
of proof in criminal case is much higher than that of
departmental proceedings, the first one been of
“strict
evidence beyond doubt” and the second one been
“preponderance of probability”, the criminal prosecution
launched against him, cannot survive since said allegations
could not be proved even on the basis of preponderance of
probability, and thus, there would not be any chance of
such allegations being proved beyond reasonable doubt
against him in criminal trial. To buttress his said
submission, Ld. Counsel also placed reliance upon the
decision of Ho’ble Apex Court in the case of “
Ashoo
Surendranath Tewai Vs The Deputy Superintendent of
Police, EOW, CBI & Anr.” bearing Crl. A. No. 575/2020
decided on 08.09.2020.
15. Based on aforesaid submissions, Ld. Counsel contended
that in the absence of any admissible evidence available on
record and in view of the fact that accused no. 4 has
already been exonerated in Departmental Enquiry on
merits on the same set of allegations, as are levelled
against him in the present criminal case, he is entitled to be
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discharged in this case, by allowing his application seeking
discharge moved by him.
ANALYSIS & FINDINGS:
16. Before dealing with the rival submissions made on behalf
of both the sides, let’s have a look on the legal proposition
at the stage of charge.
17. In case of ‘
Settu v Satate of NCT of Delhi’, bearing CRL.
REV. P. 13/2022 dated 10.03.2022, Hon’ble Delhi High
Court has observed that:
“xxxx
8.It is well settled law that at the stage of framing
of charge, the court has power to shift and weigh
the evidence for the limited purpose of finding
out whether or not a prima facie case against
accused has been made out. When the material
placed before the court discloses great suspicion
against the accused, which has not been properly
explained, the court will be justified in framing
charge. No roving inquiry into the pros and cons
of the matter and evidence is not to be weighed
as if a trial was being conducted. If on the basis
of materials on record a court could come to the
conclusion that commission of the offence is a
probable consequence, a case of framing of
charge exists.
9.To put it differently, if the courts were to think
that the accused might have committed the
offence it can frame a charge, though for
conviction the conclusion is required to be that
accused has committed the offence. At the stage
of framing of a charge, probative value of the
materials on records cannot be gone into, the
material brought on record by the prosecution
has to be accepted as true at that stage. The truth,
veracity and effect of the evidence, which the
prosecutor proposes to adduce, are not to be
meticulously judged, nor any weight is to be
attached to the probable defence of the accused.
It is not obligatory for the judge at that stage of
the trial to consider in any detail and weigh in a
sensitive balance whether the facts, if proved,
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would be incompatible with the innocence of the
accused or not.
10.The standard of test and judgment which is to
be finally applied before recording a finding
regarding the guilt or otherwise of the accused is
not exactly to be applied at this stage of deciding
the matter under Section 227 or under Section
228 of the Code. But at the initial stage, if there
is a strong suspicion, which leads the court to
think that there is ground for presuming that the
accused has committed an offence, then it is not
open to the court to say that there is no sufficient
ground for proceeding against the accused.
While deciding the question of framing of charge
in a criminal case, the court is not to apply
exactly the standard and test which it finally
applies for determining the guilt or otherwise.
11. What is required to be seen is whether there
is strong suspicion, which may lead to the court
to think that there is ground for presuming that
the accused has committed an offence. The
above proposition is supported with law laid
down by the Hon'ble Apex Court and Hon'ble
High Court reported as “Union of India vs.
Prafulla
	Kumar”,
	AIR
	1979
SupreANALYSISme Court 366, “State of
Maharashtra and others vs. Som Nath Thapa and
other” JT 1996 (4) SC 615, “State of Bihar vs.
Ramesh Singh”, AIR 1997 SC 2018: (1997 CRI
LJ 1606), “Umar Amdula Sakoor Sorathia vs.
Intelligence Officer Narcotic Control Bureau” JT
1999 (5) SC 394, “Kalu Mal Gupta vs. State”
2000 I AD Delhi 107.
xxxx”
18. It is well settled legal position that the prosecution is
required to prove its case beyond reasonable doubt.
However, at the stage of framing of charge, the Court has
only to see whether
prima facie case is made out against
the accused. In this regard, it has been held in the case of
‘
Amit Kapoor v. Ramesh Chander’, reported as 2012 (9)
SCC, 460 as under:
“19. At the initial stage of framing of a charge,
the court is concerned not with proof but with a
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strong suspicion that the accused has committed
an offence, which, if put to trial, could prove him
guilty. All that the court has to see is that the
material on record and the facts would be
compatible with the innocence of the accused or
not. The final test of guilt is not to be applied at
that stage.”
19. Similarly, while dealing with the scope of S. 227 and 228
of the Code and the limitations imposed upon the Court at
the initial stage of framing the charge, Hon’ble Apex Court
in case of ‘
State of Bihar v. Ramesh Singh’, reported as
(1977) 4 SCC 39, has held as under:
“Reading the two provisions together in juxtaposition, as they
have got to be, it would be clear that at the beginning and the
initial stage of the trial the truth, veracity and effect of the
evidence which the Prosecutor proposes to adduce are not to
be meticulously judged. Nor is any weight to be attached to
the probable defence of the accused. It is not obligatory for
the Judge at that stage of the trial to consider in any detail and
weigh in a sensitive balance whether the facts, if proved,
would be incompatible with the innocence of the accused or
not. The standard of test and judgment which is to be finally
applied before recording a finding regarding the guilt or
otherwise of the accused is not exactly to be applied at the
stage of deciding the matter under Section 227 or Section 228
of the Code. At that stage the court is not to see whether there
is sufficient ground for conviction of the accused or whether
the trial is sure to end in his conviction. Strong suspicion
against the accused, if the matter remains in the region of
suspicion, cannot take the place of proof of his guilt at the
conclusion of the trial. But at the initial stage if there is a
strong suspicion, which leads the court to think that there is
ground for presuming that the accused has committed an
offence then it is not open to the court to say that there is no
sufficient ground for proceeding against the accused. The
presumption of the guilt of the accused, which is to be drawn
at the initial stage, is not in the sense of the law governing the
trial of criminal cases in France where the accused is
presumed to be guilty unless the contrary is proved. But it is
only for the purpose of deciding prima facie whether the
court should proceed with the trial or not. If the evidence
which the Prosecutor proposes to adduce a to prove the guilt
of the accused even if fully accepted before it is challenged in
cross-examination or rebutted by the defence, if any, cannot
show that the accused committed the offence, then there will
be no sufficient ground for proceeding with the trial. An
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exhaustive list of the circumstances to indicate as to what will
lead to one conclusion or the other is neither possible nor
advisable. We may just illustrate the difference of the law by
one more example. If the scales of pan as to the guilt or
innocence of the accused are something like even at the
conclusion of the trial, then, on the theory of benefit of doubt
the case is to end in his acquittal. But if, on the other hand, it
is so at the initial stage of making an order under Section 227
or Section 228, then in such a situation ordinarily and
generally the order which will have to be made will be one
under Section 228 and not under Section 227."
20. A three-Judge Bench of Hon’ble Supreme Court of India
in the case of ‘
Suptd. & Remembrancer of Legal Affairs,
W.B. v. Anil Kumar Bhunja’, reported as (1979) 4 SCC
274, reminded the Courts that at the initial stage of framing
of charges, the prosecution evidence does not commence.
The Court has, therefore, to consider the question of
framing the charges on general considerations of the
material placed before it by the investigating agency.
At this stage, the truth, veracity and effect of the judgment,
which the prosecution proposes to adduce, are not to be
meticulously judged. The standard of test, proof and
judgment which is to be applied finally before finding an
accused guilty or otherwise is not exactly to be applied at
the stage of framing the charge. Even on the basis of a
strong suspicion founded on materials before it, the Court
can form a presumptive opinion regarding the existence of
factual ingredients constituting the offence alleged and in
that event be justified in framing the charges against the
accused in respect of the commission of the offence
alleged to have been committed by them.
21. Thus, at the stage of charge, neither the probative value of
the evidence nor the sufficiency of material is to be gone
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into. Whether the trial would eventually result into
conviction of the accused or not is also not material.
22. Now adverting back to the facts of the present case.
The rival submissions made on behalf of both the sides
need to be examined on the touchstone of the guiding
principles laid down by Hon’ble Apex Court and
Hon'ble Delhi High Court in the above- referred decisions.
23. As regards accused nos. 1 and 2, it may be noted that both
the said accused were allegedly caught red-handed in the
trap proceedings laid down by the raiding team of PS ACB
on 30.06.2021, while allegedly demanding and accepting
illegal gratification of Rs.50,000/- from the complainant.
Though, the said two accused persons are not named in the
written complaint dated 30.06.2021, however,
mere omission of their names in the written complaint,
would not be sufficient, in the eyes of law, to hold that no
case is made out against them.
24. In the statement u/s 161 Cr.P.C., as also in the statement
u/s 164 Cr.P.C., the complainant namely Sh. Sunny has
categorically stated that he was called at the gate of
Wazirpur Transport Authority at 01:30 pm on 30.06.2021,
by accused Gulshan Mahtta (A-3) and when he reached
there along with raiding team of PS ACB, and met with
A-3, said accused had pointed out towards accused
Sandeep Kadyan (A-2) and had told him that A-2 would
get his work done and also that the complainant should pay
the bribe money to said accused. No only this, he further
stated in both the said statements that accused Sandeep
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Kadyan had demanded and accepted bribe money of
Rs.50,000/- from him, where-after said accused had
handed over said bribe money to accused Naresh Kumar
(A-1) and both the said accused were apprehended on
pre-determined signal given by panch witness namely Sh.
Vinay Dahiya to them. Said statements of complainant are
prima facie duly corroborated by the statement u/s 161
Cr.P.C. of panch witness Sh. Vinay Dahiya, which is found
to be on identical lines.
25. There is no substance in the argument advanced on behalf
of accused nos.1 and 2 that said two accused are entitled to
be discharged in view of discrepancy, as already noted
hereinbefore, appearing in statement u/s 161 Cr. P.C.
vis-à-vis statement u/s 164 Cr.P.C. of the complainant, as
are being relied upon by prosecution, for the simple reason
that it does not go to the root of the prosecution story and
need to be tested on the touchstone of trial. Moreover, the
prosecution has also relied upon FSL result in respect of
right hand wash of accused nos. 1 and 2, as also the right
side pocket wash of the wearing pant of accused Sandeep
Kadyan (A-2), as per which, it has been opined that their
right hand wash solution; and right side pocket wash
solution of wearing pant of A-2, were found to contain
phenolphthalein powder and sodium carbonate during their
examination in the laboratory.
26. There is also no force in the argument that there is no
allegation regarding demand of bribe qua A-1 and A-2;
or that since none of said two accused was in a position to
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get the work of complainant done, there was no occasion
for either of them to demand or receive bribe money from
the complainant. As already noted above, the complainant
and panch witness have specifically stated in their
respective statements u/s 161 Cr.P.C that there was
demand of bribe from complainant by A-2; and also that
A-2 had initially accepted bribe of Rs.50,000/- from the
complainant and thereafter, said accused had handed over
said bribe money to A-1. In case, A-1 namely Naresh
Kumar had no complicity in the commission of alleged
offence, then there was no occasion for him to receive the
bribe money of Rs.50,000/- from A-2. His conduct in
accepting the bribe money of Rs.50,000/- from A-2, would
prima facie go to show that said two accused persons and
A-3 namely Gulshan Mahtta, had conspired together to do
the illegal act of forcing the complainant to pay bribe
money in lieu of issuance of Trade License Certificate for
running his business of sale and purchase of e-rickshaws
and in pursuance of such criminal conspiracy, such bribe
money was paid to A-2 namely Sandeep Kadyan at the
instance of A-3 namely Gulshan Mahtta and thereafter,
A-2 had handed over said bribe money to A-1 namely
Naresh Kumar. Needless to mention here that accused
Naresh Kumar was working on the post of Peon and
accused Sandeep Kadyan was working as Data Entry
Operator (Contractual basis) in Wazirpur Transport
Authority during the relevant period, as per the material
filed along with the charge-sheet.It is
prima facie shown
that the relevant file regarding issuance of Trade License
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Certificate of complainant was being dealt with by accused
Sandeep Kadyan. In this regard, the prosecution has relied
upon the statement u/s 161 Cr.P.C. of PW-2 Mohd. Imran,
wherein, he has stated that on 30.06.2021, accused
Sandeep Kadyan had asked him to bring the file relating to
complainant from the office of DC (OPS), Rajpur Road,
Delhi, and accordingly, he had brought the said file from
the headquarter of Transport Department and had handed
over the same to accused Sandeep Kadyan on that day
itself. For all these reasons, the cited cases of
Dnyaneshwar Laxman Rao Wankhede and B. Jayraj
(supra.), are distinguishable from the facts and
circumstances of the present case. Moreover, both the said
decisions were delivered after the full-fledged trial had
already taken place, whereas this Court is still considering
the question of framing of charge in the present case.
Hence, both the said judgments are of no help to these two
accused persons in any manner.
27. As regards accused namely Gulshan Mahtta, it may be
noted that said accused is not only named by complainant
in the written complaint dated 30.06.2021, but the
complainant has also named him in his statements u/s 161
Cr.P.C. and 164 Cr.P.C., to be the person who had
demanded bribe money of Rs.60,000/- from him for
getting his work done regarding issuance of Trade License
Certificate from Wazirpur Transport Authority. There is
also one supplementary statement u/s 161 Cr.P.C. dated
23.07.2021 of complainant Sh. Sunny, wherein he has
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Page 19 of 41
categorically stated that when he had reached the gate of
Wazipur Transport Authority on 30.06.2021 at 02:20 pm,
accused Gulshan Mahtta had asked him as to whether he
(complainant) had brought the bribe money of Rs.60,000/-,
or not; and it was said accused who had introduced him
with accused Sandeep Kadyan and had told him that
accused Sandeep Kadyan would get his work done through
concerned MLO.
28. In the light of above referred evidence relied upon by the
prosecution and in view of forgoing reasons, Court finds
merit in the submissions made by Ld. Chief PP for the
State that there is sufficient evidence which would
prima
facie show that accused nos. 1 to 3 had hatched criminal
conspiracy amongst themselves to do the illegal act of
demanding bribe money from the complainant in lieu of
issuance of Trade License Certificate for his business of
sale and purchase of e-rickshaws and in pursuance of such
criminal conspiracy, accused persons namely Naresh
Kumar and Sandeep Kadyan, both being public servants,
had demanded and accepted the illegal gratification to the
tune of Rs.50,000/- from the complainant, whereas accused
Gulshan Mahtta had abetted them in the commission of
said crime.
29. Though, the offences under S. 7 A and 12 of PC Act are
also invoked against accused persons namely Naresh
Kumar and Sandeep Kadyan, however, as already noted
above, Ld. Chief PP for State fairly conceded that offence
under S. 12 of the said Act is not at all attracted against
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either of the said two accused, there being no allegation
regarding abatement of offences against them.
Likewise,
there are specific allegations appearing against said two
accused that in pursuance of conspiracy hatched amongst
them alongwith co-accused Gulshan Mahtta, they, being
public servants, had demanded and accepted bribe money
of Rs.50,000/- from the complainant on 30.06.2021 and
were allegedly caught red handed by raiding team of
PS ACB headed by Inspector Kailash Chand and such
bribe money was also allegedly recovered from them.
That being so, the necessary ingredients of offence
punishable under S.7A of PC Act are found to be missing
qua these two accused persons and thus, no case is
made out against them in respect of offences under
S. 7A/12 of PC Act.
30. Further, the offences under S.7/7A of PC Act have also
been invoked against accused Gulshan Mahtta, however,
none of said two penal provisions attracted against him for
the simple reason that said accused was in
disputably a
private person and thus, does not fall within the category
of ‘
public servant’ within the meaning of S.7 of PC Act
and there is no allegation appearing against him that he had
accepted or obtained or attempted to obtain undue
advantage as a motive or reward to induce any public
servant within the meaning of S.7A of the said Act. Hence,
this Court is of the view that
prima facie case for offences
punishable under S.7/ 7A of PC Act is not made out
against him.
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31. In view of above discussion, Court is of the considered
view that
prima facie case in respect of offence u/s 7 of PC
Act read with S. 120-B IPC, is made out against accused
persons namely Naresh Kumar and Sandeep Kadyan,
whereas,
prima facie case in respect of offence u/s 12 of
PC Act read with S. 120-B IPC is made out against
accused Gulshan Mahtta. It is so ordered accordingly.
32. This brings me down to the charges leveled against
accused Dinesh Kumar. As already noted above, it is
alleged in the written complaint dated 30.06.2021, as also
in the FIR, that accused Dinesh Kumar (A-4) had provided
phone number of co-accused Gulshan Mahtta (A-3) to the
complainant in connection with issuance of Trade License
Certificate in favour of M/s Sunny E-Rickshaw regarding
sale and purchase of e-rickshaws. In support of such
allegation, the prosecution has relied upon statements
under S. 161 Cr.PC and S.164 Cr.PC of the complainant,
wherein, he has stated that he had met accused Dinesh
Kumar [the then MLO] in his office for Trade License
Certificate and it was said accused, who had provided him
phone number of co-accused Gulshan Mahtta and had also
informed him that said co-accused would get his
work done.
33. Ld. Chief PP for State vehemently argued that the
aforesaid conduct of accused Dinesh Kumar in providing
contact number of co-accused Gulshan Mahtta for getting
the work of complainant relating to issuance of Trade
License Certificate done, coupled with the fact that
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analysis of CDRs of accused persons, as collected during
investigation, reveals that accused Dinesh Kumar was in
constant touch with co-accused persons namely Sandeep
Kadyan and Gulshan Mahtta on and before 30.06.2021,
would
prima facie show that he had conspired with
remaining co-accused persons, as also his complicity in the
commission of offences alleged in this case. However, said
argument is found to be devoid of any merit.
34. As mentioned earlier, it is the own case of prosecution and
it is an undisputed fact that co-accused Sandeep Kadyan
was working as Data Entry Operator (DEO) in Wazirpur
Transport Authority, where accused Dinesh Kumar was
working as MLO during the relevant period. In this
backdrop, there was nothing unusual in exchange of phone
calls between them, as it would have been quite natural for
both of them to make phone calls to each other in
discharge of their official duties while working in the
said office.
35. Accused Dinesh Kumar has been indicted in this case
primarily on the ground that he had conspired with co
accused persons. The foundation of a criminal conspiracy
is the agreement between two or more persons.
It is the ‘
meeting of minds’ to achieve a common illegal
objective. While a criminal thought alone is not
punishable, the moment it is shared and agreed upon
by another, it transitions into a criminal
conspiracy. The offence is complete as soon as the
agreement is made.
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36. The following are the ingredients of criminal conspiracy:
I. An agreement between two or more persons.
II. The agreement must relate to doing or causing to be
done either (a) an illegal act; or (b) an act, which is not
illegal in itself, but is done by illegal means.
37. It is
trite law that the evidence must establish an unbroken
chain of events that points irresistibly to the existence of a
conspiracy. Mere suspicion, or the fact that some accused
knew each other, is insufficient.
38. In the present case, there is no iota of evidence available
on record, which may irresistibly point out to the existence
of conspiracy between accused Dinesh Kumar and other
accused persons. It is nowhere the case of prosecution that
any of the phone calls exchanged between accused Dinesh
Kumar and co accused Sandeep Kadyan was intercepted;
or there was any call recording, which may in any manner
points out towards existence of any sort of conspiracy
between them, so as to show that accused Dinesh Kumar
had hatched any criminal conspiracy with remaining
accused persons either to commit an illegal act; or any
legal act through illegal means, within the meaning of
S.120-B IPC.
39. In so far as exchange of phone calls between accused
Dinesh Kumar and co-accused Gulshan Mahtta
[private person] is concerned, it may be noted that
prosecution itself has filed one Certificate dated
19.07.2021 [Page no.94 of the charge-sheet] issued by one
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Page 24 of 41
Sh. Jasneet Singh Kalra, as Proprietor of M/s Green
Technologies, wherein it is certified that accused Gulshan
Mahtta was working as Sales Person on commission basis
with the said firm. A bare perusal of said Certificate,
issued on the letterhead of M/s Green Technologies, would
go to show that said firm is stated to be manufacturer of
Battery operated e-rickshaws. Apart from that, the
prosecution has also filed one Receipt bearing no.
R20-21/94 dated 12.02.2021 [Page no.95 of the
charge-sheet] for Rs.10,000/-; computerized copy of ledger
account from 01.04.2020 to 31.03.2021 [Page no.96 of the
charge-sheet] and computerized copy of ledger account for
the period from 01.04.2021 and 17.07.2021 [Page no.97 of
the charge-sheet] of M/s Sunny E-Rickshaw
i.e. firm of the
complainant, which would make it abundantly clear that
M/s Sunny E-Rickshaw had paid Rs.10,000/- to M/s Green
Technologies, with whom co-accused Gulshan Mahtta was
working as Sales Person, to avail its services regarding
issuance of Trade License Certificate for sale and purchase
of e-rickshaws. It is nowhere the case of prosecution that
said receipt was manufactured at subsequent point of time.
In any case, the investigation agency has seized copy of
ledger account of Sunny E-Rickshaw, as was being
maintained by M/s Green Technologies in its books of
accounts, which would clearly show that payment of
Rs.10,000/- made by M/s Sunny E-Rickshaw to M/s Green
Technologies, is duly credited in its ledger account by M/s
Green Technologies. Not only this, said ledger account
statement from 01.04.2021 to 17-07-2021 [Page no.97 of
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the chargesheet] of M/s Green Technologies, would also
show that out of payment of Rs.10,000/- received by it
from M/s Sunny E-Rickshaw, a sum of Rs.3000/- was paid
by it to its sales person/co-accused Gulshan Mahtta on
account of his commission/fee for issuance of Trade
License Certificate. All these documents would go to show
that in fact, the complainant had availed the services of
M/s Green Technologies. Said firm was involved in the
business of manufacturing of battery operated e-rickshaws
and had been providing services to various clients,
including the complainant, through its salesman namely
Gulshan Mahtta (co-accused). Moreover, the allegations
appearing in written complaint dated 30.06.2021 lodged by
complainant, would also corroborate the fact that the
complainant had paid Rs.10,000/- to co-accused Gulshan
Mahtta, which is shown to have been duly accounted for
by said co-accused by depositing the said amount in the
ledger account of complainant maintained with M/s Green
Technologies. In the backdrop of the aforesaid facts and
circumstances, there was nothing wrong in exchange of
phone calls, if any, between accused Dinesh Kumar and
co-accused Gulshan Mahtta, as said co-accused would
have been regularly visiting Wazirpur Transport Authority
as representative of M/s Green Technologies in connection
with process of applications for issuance of such types of
Certificates, as would have been submitted on behalf of its
clients. It cannot be overlooked that accused
Dinesh Kumar, being employed as MLO in the said
Transport Authority during the relevant period, was
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Page 26 of 41
expected to deal with public at large, as also the
representatives of such business entities like M/s Green
Technologies. Moreover, as per the contents of written
complaint dated 30.06.2021, the complainant himself
stated that it was only after his repeated meetings with
MLO [WZ]
i.e. accused Dinesh Kumar, said accused had
asked complainant to speak to co-accused Gulshan and had
provided his contact number to the complainant, which
would go to show that accused Dinesh Kumar would have
provided the contact number of accused Gulshan to the
complainant, out of good gesture so that his work could be
got done. No
mens rea can thus be inferred on the part of
accused Dinesh Kumar, merely, on the ground that he had
provided contact number of co-accused Gulshan to the
complainant, or that phone calls were exchanged between
him and co-accused Gulshan Mahtta on and before
30.06.2021. Hence, in the absence of any substantive piece
of evidence/material collected during investigation and
filed along with the chargesheet, it cannot be said that any
conspiracy was hatched between accused Dinesh Kumar
and co-accused Gulshan Mahtta; or even with other
co-accused persons, in any manner.
40. Though, Ld. Chief PP for State, duly assisted by IO,
vehemently argued that co-accused persons namely Naresh
Kumar and Sandeep Kadyan have confessed in their
respective disclosure statements that they had obtained
bribe money from the complainant on the instructions of
accused Dinesh Kumar, however, said argument lacks
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Page 27 of 41
substance, inasmuch as no evidentiary value whatsoever
can be attached to such disclosure statements made by co
accused persons during police custody, they being hit by
S.25 of Indian Evidence Act. Apart from it, it is settled law
that such disclosure statements made by accused persons,
would not in itself be sufficient to make out
prima facie
case for framing of charge against their co-accused, in the
absence of any substantive evidence/material being
available on record against such co-accused.
41.
Indisputably, it is an admitted position on record that
accused Dinesh Kumar neither demanded, nor accepted
any bribe money from the complainant at any point of
time. Rather, the case of prosecution is that bribe money of
Rs.50,000/- was recovered from the possession of
co-accused persons namely Naresh Kumar and Sandeep
Kadyan. It seems that accused Dinesh Kumar was not even
present in the office of Wazirpur Transport Authority at
the time when the trap proceedings were allegedly laid
therein and co-accused persons namely Naresh Kumar and
Sandeep Kadyan were allegedly caught red handed along
with bribe money of Rs.50,000/- on 30.06.2021.
Had it been the situation where accused Dinesh Kumar
would have also been present in the office at that time,
nothing would have prevented the members of the raiding
team to lay further trap against him as well; and/or to
apprehend him then and there itself, as was done qua
co-accused persons namely Naresh Kumar and Sandeep
Kadyan. Rather, the fact of the matter is that the
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Page 28 of 41
investigating agency did not even arrest accused
Dinesh Kumar throughout the course of investigation.
42. Apart from above, it is important to note that there was no
occasion for accused Dinesh Kumar to demand bribe
money from the complainant. As already noted above,
the complainant alleged in his complaint that co-accused
Gulshan Mahtta had asked him to pay the bribe money in
lieu of issuance of Trade License Certificate for sale and
purchase of e-rickshaws. During investigation, relevant file
regarding issuance of Trade License Certificate in respect
of M/s Sunny E-Rickshaw, was seized by IO. The Office
Notes as are available therein, would go to show that
premises of said firm was duly got inspected on
22.06.2021, in order to consider the feasibility and
availability of infrastructure, as would have been one of
the eligibility conditions for issuance of such
Trade License Certificate. Not only this, recommendation
for issuance of said Trade License Certificate, had already
been made by accused Dinesh Kumar, in the capacity of
MLO, Wazirpur Transport Authority, on 29.06.2021, and
had already been approved by Competent Authority
i.e.
Deputy Commissioner (OPS) on 29.06.2021 itself. In other
words, the approval had already been granted for issuance
of Trade License Certificate in favour of firm of the
complainant even prior to 30.06.2021, on which date,
written complaint was lodged by him regarding demand of
bribe by the officials of Wazirpur Transport Authority.
Accused Dinesh Kumar was working as MLO in the said
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Page 29 of 41
Transport Authority, while co-accused Naresh Kumar and
Sandeep Kadyan were working as Peon and Data Entry
Operator respectively in the said office. Thus, in the
absence of any credible or positive evidence/material being
filed along with the charge-sheet, involvement of accused
Dinesh Kumar cannot be inferred merely because his
sub-ordinates/co-accused persons namely Naresh Kumar
and/or Sandeep Kadyan would have demanded and
accepted bribe money of Rs.50,000/- from the complainant
on 30.06.2021. There is absolutely no concrete material to
show his complicity in the commission of crime by his
sub-ordinate staff.
43. There is another important aspect involved in this case.
It has been contended on behalf of accused Dinesh Kumar
that he has already been exonerated on merits in the
departmental inquiry initiated against him on same set of
allegations, on the basis of which, he has been
charge-sheeted in the present case. Therefore, it has been
argued on his behalf that criminal prosecution should not
continue against him.
44. Before dealing with the aforesaid contention raised on
behalf of accused Dinesh Kumar, it may be noted
that said accused has filed copy of Memorandum
with relevant Annexures-I to IV containing two Articles of
charge framed against him in departmental inquiry,
besides copy of testimony of complainant Sh. Sunny
recorded on 07.12.2023 by the Inquiring Authority in the
said departmental inquiry and copy of order dated
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03.10.2025, whereby he has been exonerated from both the
said charges by the Competent Authority after taking into
consideration the Inquiry Report dated 25.06.2024 of the
Inquiring Authority, alongwith application under S.250
BNSS seeking his discharge moved by him.
45. On direction of the Court, IO got all those documents
verified from the concerned department, where accused
was working during the relevant period and he has filed his
report dated 07.05.2026, along with reply dated 07.05.2026
and relevant documents
i.e. Memorandum dated
12.12.2022, Statement of Articles of Charges, List of
Documents, List of witnesses, Order dated 03.10.2025, and
the testimony of complainant Sh. Sunny recorded on
07.12.2023. A bare perusal of said report of the IO, would
clearly establish that the documents, as are submitted by
accused Dinesh Kumar, along with discharge application,
are genuine and beyond doubt.
46. Now, in order to appreciate the aforesaid contention and
the controversy involved in the matter, it is imperative to
examine the allegations levelled against accused Dinesh
Kumar in the present case, as well as the charges levelled
against him in the departmental proceedings, in
juxtaposition, which read as under:-
Allegations leveled in the
charge-sheet
Charges leveled in the
Departmental Inquiry
Accused, being MLO,
Wazirpur Transport
Authority, had asked the
complainant to talk to
Article-1
While functioning as
MLO, Wazirpur Zonal
Office, Transport
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private person namely
Gulshan (A-3) and had
provided his contact
number, on which, the
complainant talked with
him, who eventually asked
him to pay the bribe of
Rs.70,000/- for getting his
work done on the pretext
that said bribe amount
would be paid to the
concerned officers of the
department and the entire
work would be got done by
the concerned MLO.
Department, GNCTD, he
had demanded illegal
gratification from the
complainant through his
conduit namely Sh.
Gulshan, for issuance of
license.
Co-accused namely Naresh
Kumar and Sandeep
Kadyan, subordinates of
MLO [accused Dinesh
Kumar], were caught red
handed while accepting
bribe money of
Rs.50,000/- from the
complainant
Article-2
While functioning as
MLO, Wazirpur Zonal
Office, Transport
Department, GNCTD, he
failed to exercise proper
supervision over his
subordinates, who were
arrested by ACB.
47. Thus, a bare comparison of the allegations leveled in
criminal case
vis-a-vis departmental proceedings, would
clearly show that both are substantially identical – the
accused MLO had provided the contact number of a
private person namely Gulshan [co-accused], and asked
him to talk with him, who eventually asked him to pay the
bribe of Rs.70,000/- for getting his work of issuance of
Trade License Certificate done.
48. A perusal of the list of witnesses, which forms part of the
charge-sheet, shows that prosecution has cited complainant
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namely Sh. Sunny; panch witness namely Sh. Vinay
Dahiya; and RO/Inspector Kailash Chand, as relevant
witnesses insofar as allegations against accused Dinesh
Kumar/MLO are concerned. This position has also been
affirmed by Ld. Chief PP, on the instructions from the IO.
In the departmental enquiry, the department had also cited
all these three witnesses, who would have been examined
before the Inquiring Authority. Thus, the main witnesses
cited by prosecution in the present criminal case to prove
the allegations against accused Dinesh Kumar, were
examined in the departmental enquiry as well.
49. It is an undisputed fact that in the departmental enquiry of
said accused, the Inquiring Authority, upon careful
appraisal of the material and evidence available on record,
arrived at the conclusion that the charges leveled against
accused Dinesh Kumar, were not proved and returned his
findings, vide his Report dated 25.06.2024, which was
accepted by the Competent Authority, and thus, the said
accused was exonerated from the charges framed against
him, vide order dated 03.10.2025, passed by the then Chief
Secretary, Delhi. The relevant extracts from the order
dated 03.10.2025 are reproduced hereunder:-
“xxxx
And whereas, the inquiring authority submitted his Inquiry
Report dated 25.06.2024 with the following findings:-
Article-1: Not proved
Article-2: Not proved
xxxxx
AND WHEREAS, the undersigned, being the Competent
Disciplinary Authority, has considered the charge sheet,
Inquiry Report dated 25.06.2024, representation of the
charged officer, relevant record / documents, circumstances
and facts of the case, and is of the opinion that the Charged
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Officer should be exonerated from the charges framed against
him vide Memorandum / Charge Sheet
No.F.5/1/DOV/TPT/2021/15144 dated 12.12.2022 since the
prosecution has failed to prove the said charges, and findings
of the Inquiring Authority have been found just and fair;
xxxx”
50. In recent case titled as
‘Ajit Kumar v. State of NCT of
Delhi & Anr.’ having neutral citation 2024:DHC: 9716,
decided on 05.12.2024, Hon’ble Delhi High Court, after
referring to its previous decisions and also relying upon the
decisions of Hon’ble Apex Court, has held that if an
accused has been exonerated and held innocent in the
departmental proceedings after the allegations have been
found to be unsustainable, then the criminal prosecution
premised on the same set of allegations, cannot be
permitted to continue. The justification for the same is that
the standard of proof in criminal cases is
'beyond
reasonable doubt' which is far higher than
'preponderance
of probability', the standard of proof required in
disciplinary proceedings. Relevant portions of the said
judgment are extracted here as under:-
xxxx
19. Since, it is not in dispute that the petitioner has been
exonerated in the disciplinary proceedings from the charge
which is essentially the same as charge framed in the present
case, therefore, the question that needs to be addressed is as
to whether the present FIR can be quashed on the basis of the
exoneration of the petitioner in the departmental proceedings.
20. The answer is not far to seek. This Court in Subhash
Sharma vs. Govt of NCT, Delhi & Ors. 2024 SCC OnLine
Del 3762 relying on various decisions of the Hon'ble
Supreme Court in P.S. Rajya Vs. State of Bihar, 1996 (9)
SCC 1; Lokesh Kumar Jain Vs. State of Rajasthan (2013) 11
SCC 130 and Ashoo Surendranath Tewari Vs. Deputy
Superintendent of Police, EOW, CBI and Anr., (2020) 9 SCC
636, has taken a view that if an accused has been exonerated
and held innocent in the departmental proceedings after the
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allegations have been found to be unsustainable, then the
criminal prosecution premised on the same set of allegations
cannot be permitted to continue. The justification for the
same is that the standard of proof in criminal cases is 'beyond
reasonable doubt' which is far higher than 'preponderance of
probability', the standard of proof required in disciplinary
proceedings. In case the lower threshold could not be met in
the disciplinary proceeding, there is no purpose in
prosecuting the criminal proceedings where the standard of
proof required to establish the guilt is higher. The relevant
paras of Subhash Sharma (supra) reads thus:
"20. In P.S. Rajya (supra), the appellant therein was
exonerated of all the charges in the departmental
inquiry conducted by the Central Vigilance
Commission and the conclusion of exoneration was
concurred by the Union Public Service Commission
which led to the passing of final orders by the President
in favour of the appellant. However, when the appellant
moved the High Court under Section 482 CrPC for
quashing the cognizance of the charge, the High Court
dismissed the petition. The challenge was taken to the
Supreme Court. In the given factual backdrop, the
Hon'ble Supreme Court formulated the following
question in paragraph 3 of the judgment, which reads as
under:
"3. The short question that arises for our
consideration in this appeal is whether the
respondent is justified in pursuing the prosecution
against the appellant under Section 5(2) read with
Section 5(1)(e) of the Prevention of Corruption
Act, 1947 notwithstanding the fact that on an
identical charge the appellant was exonerated in
the departmental proceedings in the light of a
report submitted by the Central Vigilance
Commission and concurred by the Union Public
Service Commission."...
21. Then the Hon'ble Supreme Court answered the
above formulated question and quashed the criminal
proceedings by observing thus:
"17. At the outset we may point out that the
learned counsel for the respondent could not but
accept the position that the standard of proof
required to establish the guilt in a criminal case is
far higher than the standard of proof required to
establish the guilt in the departmental
proceedings. He also accepted that in the present
case, the charge in the departmental proceedings
and in the criminal proceedings is one and the
same. He did not dispute the findings rendered in
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Page 35 of 41
the departmental proceedings and the ultimate
result of it. On these premises, if we proceed
further then there is no difficulty in accepting the
case of the appellant. For if the charge which is
identical could not be established in a
departmental proceedings and in view of the
admitted discrepancies in the reports submitted
by the valuers, one wonders what is there further
to proceed against the appellant in criminal
proceedings......
xxxx xxxx xxxx
23. Even though all these facts including the
Report of the Central Vigilance Commission
were brought to the notice of the High Court,
unfortunately, the High Court took a view that the
issues raised had to be gone into in the final
proceedings and the Report of the Central
Vigilance Commission, exonerating the appellant
of the same charge in departmental proceedings
would not conclude the criminal case against the
appellant. We have already held that for the
reasons given, on the peculiar facts of this case,
the criminal proceedings initiated against the
appellant cannot be pursued. Therefore, we do not
agree with the view taken by the High Court as
stated above. These are the reasons for our order
dated 27-3- 19961 for allowing the appeal and
quashing the impugned criminal proceedings and
giving consequential reliefs."
22. In Lokesh Kumar Jain (supra), an FIR was
registered against the appellant therein alleging
financial irregularities and misappropriation of
Rs.4,39,617/-. In departmental proceedings with
identical charges, the appellant was exonerated on the
ground that it was not clear as to who received the
payments for various transactions as the original and
carbon copies of bills were not available. In the
criminal case, the police also made repeated oral
requests and statutory notices under Section 91 CrPC
but the department of the appellant could not provide
the requisite incriminating documents. The police,
therefore, submitted the final closure report to the
Magistrate after five months of lodging of FIR. But the
Magistrate upon submission of the complainant that he
is ready to cooperate with the police and procure
requisite documents, directed re-investigation under
Section 156(3) CrPC. Thereafter, investigation
remained pending for 12-13 years inspite of the
appellant making request to the police authorities to
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complete the investigation. The appellant move the
High Court under Section 482 CrPC seeking to quash
the FIR lodged against him, but the High Court
declined to quash the FIR. The Hon'ble Supreme Court
allowed the appeal and quashed the criminal
proceedings. Relying upon the decision of PS Rajya
(supra), it was observed as under:
"23. In P.S. Rajya v. State of Bihar, this Court
noticed that the Vide order dated 27.03.1996, the
Hon'ble Supreme Court allowed the appeal
reserving the reasons to be given later, which
were given vide judgment in P.S. Rajya (supra)
appellant was exonerated in the departmental
proceeding in the light of report of the Central
Vigilance Commission and concurred by the
Union Public Service Commission. The criminal
case was pending since long, in spite of the fact
that the appellant was exonerated in the
departmental proceeding for same charge.
24. Having regard to the aforesaid fact, this Court
held that if the charges which are identical could
not be established in the departmental
proceedings, one wonders what is there further to
proceed against the accused in criminal
proceedings where standard of proof required to
establish the guilt is far higher than the standard
of proof required to establish the guilt in the
departmental proceedings.
25.Having regard to the factual scenario, noted
above, and for the reasons stated below, we are of
the opinion that the present case of the appellant
is one of the fit cases where the High Court
should have exercised its power under Section
482 CrPC. It is not disputed by the respondent
that the departmental proceeding was initiated
against the appellant with regard to identical
charges made in the FIR......
xxxx xxxx xxxx xxxx
28. ........Considering the fact that delay in the
present case is caused by the respondent, the
constitutional guarantee of a speedy investigation
and trial under Article 21 of the Constitution is
thereby violated and as the appellant has already
been exonerated in the departmental proceedings
for identical charges, keeping the case pending
against the appellant for investigation, is
unwarranted, the FIR deserves to be quashed."
[Emphasis supplied]
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23. In Radheshyam Kejriwal vs. State of West Bengal
and Anr.,2 the question arose that after the exoneration of
the appellant in the adjudication proceedings under the
provisions of Foreign Exchange Regulation Act, whether
criminal prosecution on the same set of facts and
circumstances can be allowed to be continued. In this
factual backdrop, the Hon'ble Supreme Court observed as
under:
"26. We may observe that the standard of proof in a
criminal case is much higher than that of the
adjudication proceedings. The Enforcement
Directorate has not been able to prove its case in
the adjudication proceedings and the appellant has
been exonerated on the same allegation. The
appellant is facing trial in the criminal case.
Therefore, in our opinion, the determination of
facts in the adjudication proceedings cannot be said
to be irrelevant in the criminal case. In B.N.
Kashyap [AIR 1945 Lah 23] the Full Bench had
not considered the effect of a finding of fact in a
civil case over the criminal cases and that will be
evident from the following passage of the said
judgment: (AIR p. 27)
"... I must, however, say that in answering the
question, I have only referred to civil cases
where the actions are in personam and not
those where the proceedings or actions are in
rem. Whether a finding of fact arrived at in
such proceedings or actions would be
relevant in criminal cases, it is unnecessary
for me to decide in this case. When that
question arises for determination, the
Radheshyam provisions of Section 41 of the
Evidence Act, will have to be carefully
examined."
xxxx xxxx xxxx
38. The ratio, which can be culled out from these
decisions can broadly be stated as follows:
(i) Adjudication proceedings and criminal
prosecution can be launched simultaneously;
(ii) Decision in adjudication proceedings is not
necessary before initiating criminal prosecution;
(iii) Adjudication proceedings and criminal
proceedings are independent in nature to each
other;
(iv) The finding against the person facing
prosecution in the adjudication proceedings is not
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binding on the proceeding for criminal prosecution;
(v) Adjudication proceedings by the Enforcement
Directorate is not prosecution by a competent court
of law to attract the provisions of Article 20(2) of
the Constitution or Section 300 of the Code of
Criminal Procedure;
(vi) The finding in the adjudication proceedings in
favour of the person facing trial for identical
violation will depend upon the nature of finding. If
the exoneration in adjudication proceedings is on
technical ground and not on merit, prosecution may
continue; and
(vii) In case of exoneration, however, on merits
where the allegation is found to be not sustainable
at all and the person held innocent, criminal
prosecution on the same set of facts and
circumstances cannot be allowed to continue, the
underlying principle being the higher standard of
proof in criminal cases.
xxxx xxxx xxxx
39. In our opinion, therefore, the yardstick would
be to judge as to whether the allegation in the
adjudication proceedings as well as the proceeding
for prosecution is identical and the exoneration of
the person concerned in the adjudication
proceedings is on merits. In case it is found on
merit that there is no contravention of the
provisions of the Act in the adjudication
proceedings, the trial of the person concerned shall
be an abuse of the process of the court."
[Emphasis supplied]”
xxx xxx xxx
26. The legal position that emerges is that if an accused
has been exonerated and held innocent in the disciplinary
proceedings after the allegations have been found to be
unsustainable, then the criminal prosecution premised on
the same set of allegations cannot be permitted to
continue. The reasoning for this recourse articulated in
above decisions is that the standard of proof in criminal
cases is 'beyond reasonable doubt' which is far higher
than 'preponderance of probability', the standard of proof
required in disciplinary proceedings. In case the lower
threshold could not be met in the disciplinary proceeding,
there is no purpose in prosecuting the criminal
proceedings where the standard of proof required to
establish the guilt is higher.
xxxx"
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51. Similar view has been taken by Hon’ble Delhi High Court
in its another recent decision in the case titled as
‘
Gurbachan Singh Matta v. Central Bureau of
Investigation’, having neutral citation 2025:DHC: 9367
decided on 27.10.2025.
52. In the cited case of Ashoo Surendranath Tewari (
supra),
Hon'ble Supreme Court, while relying upon the report of
Central Vigilance Commission ("CVC") whereby the CVC
had refused to give sanction for prosecution of the
appellant opining that
prima facie charges do not seem to
be established against the appellant, has observed that
chances of conviction in a criminal trial involving the same
facts appear to be bleak and accordingly, set aside the
judgment of High Court and that of Special Judge,
whereby they had observed that there was no need for
sanction under Section 197 CrP.C. and proceeded against
the petitioner. While making such observations, Hon'ble
Apex Court also referred to Para no. 38(vii) of
Radheshyam Kejriwal (
supra). The relevant observations
of the Hon’ble Apex Court reads as under:
"xxxx
14. From our point of view, para 38(vii) is important and if
the High Court had bothered to apply this parameter, then on
a reading of the CVC report on the same facts, the appellant
should have been exonerated.
15. Applying the aforesaid judgments to the facts of this case,
it is clear that in view of the detailed CVC order dated
22-12-2011, the chances of conviction in a criminal trial
involving the same facts appear to be bleak. We, therefore,
set aside the judgment [Ashoo Surendranath Tewari v. CBI,
2014 SCC OnLine Bom 5042] of the High Court and that of
the Special Judge and discharge the appellant from the
offences under the Penal Code."
[Emphasis supplied]
xxxxxx”
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53. Now adverting back to the facts of the present case.
As already noted hereinbefore, it has been duly shown on
the basis of documents submitted by accused
Dinesh Kumar and duly got verified by IO in view of his
report filed before the Court, that the departmental inquiry
was initiated against said accused on identical set of
allegations, as are leveled against him in the present
criminal case; as also that said accused has already been
exonerated from both the charges on merits in the said
departmental inquiry by the Competent Authority. That
being the position and on examining facts of the present
case on anvil of the principles laid down by Hon’ble Apex
Court and Hon’ble Delhi High Court in the above referred
decisions, this Court finds merit in the argument advanced
on behalf of accused Dinesh Kumar that since said accused
has already been exonerated in the departmental inquiry,
chances of his conviction in the present criminal case on
the same facts, appears to be bleak and therefore, the
present criminal prosecution, which is premised on the
same set of allegations, cannot be permitted to continue, as
such allegations could not be proved against said accused
on the touch stone of the standard of proof requiring
“preponderance of probability” in the departmental inquiry
initiated against him, which is far lesser than the standard
of proof
i.e. “
beyond reasonable doubt” as is required in
the present criminal case.
54. In the light of aforesaid discussion and in view of the
foregoing reasons, this Court is of the considered opinion
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that there is no sufficient material on record, which would
make out any
prima facie case against accused Dinesh
Kumar in respect of any of the offences invoked
against him.
CONCLUSION:
55. In the totality of the facts and circumstances of the case
and in view of foregoing reasons, the Court is of the
considered view that
prima facie case in respect of offence
u/s 7 of PC Act read with S. 120-B IPC, is made out
against accused persons namely Naresh Kumar and
Sandeep Kadyan, whereas,
prima facie case in respect of
offence u/s 12 of PC Act read with S. 120-B IPC is made
out against accused Gulshan Mahtta. However, no
prima facie case is made out against accused Dinesh
Kumar in this case. Consequently, the application under
S.250 BNSS moved by him, is hereby allowed, and
accused Dinesh Kumar is hereby discharged in this case.
However, the bail bonds, already furnished by said
accused, shall remain in force for a period of six months
from the date of this order, in compliance of of S.485
BNSS, 2023 [earlier, S. 437 (A) Cr.PC].
Announced in the open Court
on 8th day of May, 2026
(VIDYA PRAKASH)
SPECIAL JUDGE (PC ACT) (ACB)-01
RACC/NEW DELHI
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