Delhi District Court
Cbi vs Megha Ram And Ors on 27 March, 2024
CNR No. DLCT11-001884-2019
CC No. 422/2019
RC-DAI-2019-A-0020-CBI-ACB-ND
U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018)
IN THE COURT OF NIYAY BINDU, SPECIAL JUDGE (PC ACT) CBI-13
ROUSE AVENUE DISTRICT COURT, NEW DELHI.
Registration No. : CC No. 422/2019
Under Section : 120B IPC r/w Section 7 of PC Act 1988 of The
Prevention of Corruption Act, 1988 (As amended in
2018)
Branch : Anti Corruption Branch/CBI/New Delhi
FIR No. : RC-DAI-2019-A-0020-CBI-ACB-ND
CNR No. : DLCT11-001884-2019
In the matter of: -
CBI
VERSUS
1. SH. MEGHA RAM
S/o. Sh. Tulcha Ram,
R/o. H. No. A-520, 3rd Floor, Double Storey, Near Arya Samaj Mandir,
Kalkaji, New Delhi.
...........ACCUSED NO. 1
2. SH. GOVIND SINGH
S/o. Sh. Mohan Lal
R/o. H. No. C-25, Shiv Durga Vihar, Lakadpur, Faridabad,
Haryana.
...........ACCUSED NO. 2
Name and particulars of complainant : SH. TRIVENDRA KUMAR GUPTA
S/o. Sh. Shital Prasad Gupta,
R/o. B-1500/G, Sangam Vihar,
New Delhi-110080.
Date of Institution : 15.11.2019
Date of reserving judgment : 12.03.2024
Date of pronouncement : 27.03.2024
Decision : CONVICTION
Page No. 1 of 117 (Niyay Bindu)
Special Judge (PC Act) CBI-13,
Rouse Avenue District Court, New Delhi
CNR No. DLCT11-001884-2019
CC No. 422/2019
RC-DAI-2019-A-0020-CBI-ACB-ND
U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018)
J U D G M E N T
INTRODUCTION
1. This is yet another instance of corruption dealt with under the provisions of Prevention of Corruption Act. "Corruption" is being defined as "certain criminal or unethical acts which may be legally or socially unacceptable". The Prevention of Corruption Act was formulated while taking in view the rampant increase in corruption in public sector or government departments. The employees of such departments are called public servants. According to the Cambridge Dictionary, "the meaning of public servant is a person who works for the government or a person employed by local or national government or someone who is employed by a government department." Although, various service rules are being laid down to be followed by the public servants, but out of their personal motives and greed, they put their job, their social reputation and even their soul at stake while they get involved in ill practices like corruption. Out of many types of corruption, bribery is the most common one in government departments. The present case pertains to this very social stigma of bribery which has become a threat to the society itself.
2. In order to understand the repercussions of this crime of bribery, we can also take a glance of the duties of public servants. Out of the said duties, one is to strive to provide efficient and effective public services and that a public servant must strictly comply with the law. All the public servants are governed by service rules, some of which are universal or national in nature while others may be pertaining to the particular department according to the nature of public services the concerned public servant is placed in. Various conduct rules are being laid down in this regard in India.
Page No. 2 of 117 (Niyay Bindu)
Special Judge (PC Act) CBI-13,
Rouse Avenue District Court, New Delhi
CNR No. DLCT11-001884-2019
CC No. 422/2019
RC-DAI-2019-A-0020-CBI-ACB-ND
U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) Section 3(1) of CCS (Conduct) Rules provides that "Every Government servant shall at all times----
(i) maintain absolute integrity;
(ii) maintain devotion to duty; and
(iii) do nothing which is unbecoming of a government servant.
3. In this manner, after the definition clause as given in section 2 of the CCS (Conduct) Rules, the very first rule to be followed pertains to integrity, meaning thereby that a public servant should impart his services with complete honesty and should not involve in corrupt practices.
4. With this background, now we are in a better position to deal with the case in hand.
THE CASE SET UP BY THE PROSECUTION
5. The present case bearing no. RC-DAI-2019-A-0020 was registered against Sh. Megha Ram who was posted as SI at PS Sangam Vihar, New Delhi and Sh. Govind Singh who was posted as ASI at PS Tigri, for the offences punishable under section 120-B of IPC r/w section 7 of PC Act 1988 (as amended in 2018) on the complaint of Sh. Trivendra Kumar Gupta whereby alleging that SI Megha Ram had demanded a bribe for Rs.15000/- from him as accused Sh. Megha Ram (A1) was entrusted with investigation of an FIR bearing no.421/2018, registered against the complainant and his family members and accused Megha Ram (A1) had threatened the complainant pertaining to the FIR that if complainant failed to pay bribe of Rs.15,000/- to Page No. 3 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) him, he would arrest his brother namely Sh. Surendra Prakash Gupta in respect of the aforementioned FIR.
VERIFICATION PROCEEDINGS
6. On the basis of aforementioned complaint, verification proceeding was conducted on 08/06/2019 by Inspector Sh. C.M.S. Negi, CBI, ACB, Delhi in the presence of the independent witness namely Sh. Deepak Singh. During the verification proceedings, it revealed from the recorded conversations that accused Govind Singh (A2) was in active conspiracy with accused Megha Ram (A1). The complainant confirmed that in furtherance to the said conspiracy, the demand of bribe of Rs.15000/- which was made by accused Megha Ram (A1) from the complainant, was actually made through ASI Govind Singh, who was allegedly acting as middleman and thus, the present RC was registered.
TRAP PROCEEDINGS
7. After verification of demand of bribe, a case was registered by CBI. A trap was laid on 10.06.2019, by a trap team consisting of CBI officers, complainant Sh. Trivendra Kumar Gupta, brother of complainant namely Surendra Prakash Gupta and independent witnesses namely Sh. Deepak Singh and Shri Lokesh Kaushik under the leadership of Insp. S.P.Singh. Complainant produced amount of Rs.15,000/- which were treated with phenolphthalein powder and kept in the right side back pocket of the pant of the complainant. Complainant and accused Sh Megha Ram (A1) had telephonic conversation on speaker mode, which was recorded in a memory card using a DVR. Complainant was also equipped with DVR with memory card, to record his Page No. 4 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) conversation with the accused during trap proceedings.
8. During trap proceedings, complainant alongwith his brother Sh. Surendra Prakash Gupta @ Bablu entered the premises of P.S. Sangam Vihar alongwith independent witness Sh. Deepak Singh. After some time, complainant alongwith his brother came out of PS Sangam Vihar. On his signal, trap team went inside police station and apprehended accused Sh. Megha Ram (A1). Later on, the complainant, after hearing the recorded conversation, confirmed that the same conversations were held between him and the accused persons.
9. The investigation revealed that accused Shri Govind Singh (A2) was in conspiracy with accused Sh Megha Ram (A1), in order to demand bribe of Rs. 15,000/- from the complainant, in respect of a criminal case registered at PS Sangam Vihar against complainant and his family members, as the same was being investigated by accused Sh. Megha Ram (A1) and thus, aforesaid facts disclosed commission of offence punishable under section 120-B of IPC r/w section 7 of PC Act 1988 (as amended in 2018) by both the accused persons namely Sh. Megha Ram (A1) and Sh. Govind Singh (A2) as well as substantive offences punishable u/s 7 of the PC Act, 1988 against accused Sh. Megha Ram (A1).
SANCTION
10. After completion of investigation, sanction for prosecution in respect of both the accused persons have been obtained from competent authority.
CHARGE
11. The Ld. Predecessor Court took cognizance of offences in the present charge-sheet and summoned both the accused vide order dated 28.02.2020.
Page No. 5 of 117 (Niyay Bindu)
Special Judge (PC Act) CBI-13,
Rouse Avenue District Court, New Delhi
CNR No. DLCT11-001884-2019
CC No. 422/2019
RC-DAI-2019-A-0020-CBI-ACB-ND
U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) After hearing the parties, charges were framed against both the accused for offences punishable u/s 120-B IPC r/w 7 of The Prevention of Corruption Act, 1988 (as amended in 2018) as well as substantive offence punishable u/s 7 of the PC Act, 1988 (as amended in 2018) against accused Sh. Megha Ram (A1).
12. As per the charges framed, accused Megha Ram (A1), while posted as Sub Inspector at PS Sangam Vihar and accused Govind Singh (A2) while posted as Assistant Sub Inspector at PS Tigri, Delhi, entered into a criminal conspiracy to demand and accept bribe money from the complainant in lieu of reward for official work to be performed by accused Megha Ram (A1) in FIR No.421/2018, PS Sangam Vihar and as consideration for not arresting complainant's brother in that case and that in pursuance to such conspiracy, both the accused while acting as public servant, demanded bribe of Rs.15000/- from the complainant and accused Megha Ram (A1) accepted such bribe amount and hence, both the accused have committed offences punishable U/s 120-B IPC read with Section 7 of Prevention of Corruption Act, 1988 (as amended in 2018) as well as substantive offence punishable u/s 7 of the PC Act, 1988 (as amended in 2018) against accused Sh. Megha Ram (A1).
13. In response to the charges framed against both the accused, both of them pleaded not guilty and claimed trial. The case accordingly proceeded for prosecution evidence.
DESCRIPTION OF PROSECUTION EVIDENCE
14. After framing of charge, prosecution was called upon to prove it's case by examining the witnesses listed in the list of witnesses filed along with the charge-sheet. Availing the same, the prosecution examined total 18 witnesses.
Page No. 6 of 117 (Niyay Bindu)
Special Judge (PC Act) CBI-13,
Rouse Avenue District Court, New Delhi
CNR No. DLCT11-001884-2019
CC No. 422/2019
RC-DAI-2019-A-0020-CBI-ACB-ND
U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018)
15. The prosecution witnesses, examined by the prosecution can be broadly categorized into four categories.
1) The first category of prosecution witnesses consists of Material Witnesses relating to the incident i.e.
a) PW-7 Sh. Trivendra Kumar Gupta (Complainant)
b) PW16 Sh. Surendra Prakash Gupta (Brother of the complainant)
2) The second category of prosecution witnesses are those witnesses who were involved in the investigation of the case at various stages, comprising of:
a) PW-5 Sh. Prateek Johar
b) PW-8 Sh. Deepak Singh (Independent Witness)
c) PW-9 Sh. Lokesh Kaushik (Independent Witness)
d) PW-10 Insp. C. M. S. Negi
e) PW-11 Sh. Pramod
f) PW-17 Insp. S. P. Singh
g) PW-18 Insp. Shyam Rai
3) The third category of prosecution witnesses consists of official witnesses who played an important role for smooth investigation of the case and they are comprising of:
a) PW-1 Sh. Pawan Singh ( Nodal Officer)
b) PW-2 Sh. Atul Thakur
c) PW-12 Sh. Deepak Kumar Tanwar
d) PW-13 Ms. Deepti Bhargava
e) PW14 ACP Sh. Yogesh Malhotra Page No. 7 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018)
f) PW15 Insp. Sunil Kumar
4) The fourth category of witnesses are the miscellaneous prosecution witnesses which comprises of:
a) PW-3 Sh. Surendra Kumar
b) PW-4 Sh. Kamal Kumar
c) PW-6 Sh. Ajay Pratap Singh
16. Before proceeding further, it is pertinent to make a brief mention of the role and deposition of these prosecution witnesses category wise as referred herein above, however, their deposition has also been referred to in respect of the necessary ingredients of the offences with which the accused has been charged viz-a-viz the rival contentions advanced by Ld. Special PP for CBI as well as Ld. Defense Counsels. Even the detailed cross examination of these witnesses is not being mentioned for the sake of brevity, but the same shall be referred to during the course of appreciating the legal as well as factual issues advanced by the parties.
MATERIAL WITNESSES
17. PW-7 Trivendra Kumar Gupta was the complainant and witness of verification and trap proceeding in the present case. He has deposed that in June 2019, he visited CBI office for registration of this case. He was having some dispute with one of his relative in respect of monetary transaction and that relative namely Sh. Suresh Chand Gupta had lodged an FIR at PS Sangam Vihar, Delhi against him, his brother namely Sh. Surendra Prakash Gupta, his son Sh. Yash Pratap and his nephew Sh. Vikas, wherein, he obtained Page No. 8 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) anticipatory bail. He further deposed that IO of that case, namely Megha Ram called him in PS Sangam Vihar a number of times in respect of aforesaid case. On one of such occasions, when complainant went to visit accused no.1, he insisted upon the complainant to call his brother and on another occasion, accused no.1 asked the complainant to call his brother on mobile to ask him to come to the PS and meet the accused and also the accused no.1 himself talked to the brother of the complainant whereby asking him to come straightway to PS. Accused also asked the complainant to meet Govind (A2) and accordingly, the complainant met Govind (A2) and asked accused no.2 to help him. Accused no. 2 Govind, after talking to accused no.1, told the complainant that he has to bear some expenses whereby giving his number and asked the complainant to call him (A2) the next day. Complainant has further deposed that his brother Surendra Prakash Gupta advised him to approach CBI as the police would keep harassing them like that and on next day, the complainant and his brother Surendra Prakash Gupta went to CBI office at CBI Head Quarter. The complainant narrated his circumstances to the CBI officer. He wrote a complaint on a piece of paper and gave the same to CBI officer. The complainant identified the said complaint as Ex.PW7/A.
18. During his examination in chief, the complainant narrated the whole proceedings of verification and trap etc. The complainant/PW7 identified accused Megha Ram in the court but not accused Govind (though he was also present in the court on that day). Although, the said witness narrated the whole proceedings at length, however, on certain points, he resiled from his previous statement, given to the IO and consequently, he was cross-examined by the Ld. PP for the CBI. During the said cross-examination by the Ld. PP for the CBI, Page No. 9 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) the witness was confronted with his statement recorded U/s 161 Cr.PC dated 03.07.2019 as Ex.PW7/P-1.
19. The next material witness was PW16 Sh. Surendra Prakash Gupta. He deposed that on 08.06.2019, he alongwith his brother Trivendra Kumar Gupta went to CBI office and that an FIR bearing no. 421/2018 with PS Sangam Vihar was registered by their relative against him, his brother and other family members wherein his brother Trivendra Kumar Gupta got the bail from the Police Station and his nephew was minor at that time but he himself was not granted bail and IO of the said case, SI Megha Ram asked his brother to arrange for a sum of Rs. 15,000/- for grant of bail to him (PW16). As they were not willing to fulfill the demand of Rs.15,000/- raised by SI Megha Ram, they went to CBI office on 08.06.2019. In the CBI office, his brother gave a written complaint to CBI officer and thereafter, he almost deposed alongwith the same lines as his brother PW7. He further identified his signature on D-2 i.e. Verification Memo dated 08.06.2019, Ex.PW10/A (colly.), D-4 i.e. Handing Over Memo dated 10.06.2010 Ex.PW9/A (colly.), D-5 i.e. Recovery memorandum already Ex.PW9/B(colly.), D-14 i.e. transcription cum voice identification memo Ex.PW9/G (colly.), D-14A i.e. transcription Ex.PW9/H (colly.) on page no. 1, 5 to 25, 29 & 30, part of D-9/A Ex.A2 at point X, Ex.PW10/Article-2 and Ex.PW10/Article-3, part of D-14(A) i.e. transcription of audio file no.190608_1518 Ex.PW9/H (colly.). The witness also identified the voice of independent witness Deepak Singh from the audio file no.190608_1402 contained in Ex.PW10/Article-4. He further identified the voice of his brother i.e. the complainant (PW7) from the audio file no. 190608_1518 contained in Ex.PW10/Article-4 as well as in audio file no.
Page No. 10 of 117 (Niyay Bindu)
Special Judge (PC Act) CBI-13,
Rouse Avenue District Court, New Delhi
CNR No. DLCT11-001884-2019
CC No. 422/2019
RC-DAI-2019-A-0020-CBI-ACB-ND
U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) 190608_1705. He stated that in the said conversation, his brother was referring to him (witness) as 'Bablu' , the same being his nick name and also that the nick name of the complainant was 'Titu'.
WITNESSES INVOLVED IN THE INVESTIGATION
20. PW-5 Sh. Prateek Johar was an independent prosecution witness. He deposed that in the year 2019, he joined the proceedings at CBI office where Insp. Shyam Rai along with Sh. Govind was present. Insp. Shyam Rai, after checking the blankness of a memory card, inserted the same into a recording device and the voice of Sh. Govind was recorded in the aforesaid device. Thereafter, Sh. Govind was frisked and his pockets were checked and all the articles used in the recording proceedings as well as the articles recovered from the person of accused Govind were packed and sealed separately and the said seal was given to him to keep the same in safe custody as same could be required in some proceedings. The witness identified his signatures on the envelope (Ex. PW5/Article-1) wherein the above said articles were kept and on the plastic cover of memory card (Ex.PW5/Article-2). The witness also identified his signature on Ex.PW5/A and Ex. PW5/B. This witness identified accused no.2 i.e. Govind who was present in the court on that day.
21. PW-8 Sh. Deepak Singh was an independent prosecution witness. He deposed that he met the complainant at CBI office wherein he came to know that one SI Megha Ram was demanding bribe from the complainant and the said witness joined the verification proceedings and also that a recorder alongwith a blank memory card was being arranged in his presence. The witness further deposed that he was asked by Insp. Negi to follow the Page No. 11 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) complainant and overhear his conversation with other persons. The witness further deposed that after reaching near the premises of PS Sangam Vihar, he saw the complainant going inside the cabin of SI Megha Ram and kept sitting in the adjacent park to keep a watch over the complainant. After the complainant came out of the said cabin, the witness followed the complainant and when the recorder was played, the witness was present over there. The witness further deposed that he accompanied the team to another PS where they went for the co-accused Govind and on the instructions of Mr. Negi, the witness went inside the PS to watch the activities over there. He saw that complainant and his brother were talking to a third person in police uniform and he informed about the same to Mr. Negi and the conversations of the complainant with Govind were also played in the presence of said witness.
22. It has further come in his evidence that on next Monday, he again joined the proceedings of the case wherein his colleague namely Mr. Lokesh Kaushik was also present there, who was another witness for that day and 8-10 officials of CBI were also there, while Mr. Negi was the team leader. Complainant had brought amount of Rs.15,000/- and on the instructions of Mr. Negi, the present witness and other independent witness Lokesh Kaushik tallied the numbers of currency notes from a typed document containing the said numbers which were found to be correct. The demonstration in respect of phenolphthalein powder was also conducted in presence of said witness. The witness was asked to follow and keep a watch over the complainant. The team reached near PS Sangam Vihar and complainant went inside PS and entered the same chamber on the right side. He took a seat on a chair table kept in front of that chamber. The other person from CBI had also taken seat there only. After sometime, Page No. 12 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) complainant came out of that chamber and gave signal while putting his hand over his face. Complainant came out and they all rushed in that chamber including the team leader and accused Megha Ram was apprehended by two CBI officials. The recovery of trap money was done in the presence of said witness and also after searching the chamber of Megha Ram, some other amount was also recovered. Washes of hands and file cover etc. were taken, packed and sealed in the presence of witness. The specimen voice of Megha Ram was also recorded and the trap money as well as the other related articles were also seized. The witness and Lokesh had signed all the items which were sealed. A map was also prepared at that place, showing the map/sketch of PS. The seal used by CBI officers was given to him and witness produced the said seal during his examination in chief in the court which was thereafter, taken on record as Ex. PW8/Article-1 and sealed by court. The said witness identified Megha Ram (A1) present in the court. The witness also identified his signatures on certain documents including D-2, D-4, D-5, D-6, D-7, D-8, D-9A, D-9B, D-13, D-13A, D-14, D-14A. During his examination in chief, when the audio file no.190610_2210 was played from the memory card Ex.PW8/Article- 2, he identified the voice of accused Megha Ram whereby stating that this recording was done after raid in the cabin of PS Sangam Vihar. The witness also identified his signatures on each of the four bottles pertaining to right hand wash, left hand wash of accused Megha Ram, wash of file cover and wash of paper of the said file.
23. PW-9 Sh. Lokesh Kaushik is another independent witness in the investigation as a member of trap proceedings. He deposed that CBI officer gave instructions to Deepak to remain as shadow witness i.e. to remain nearby Page No. 13 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) the complainant. He himself was instructed to remain outside the PS alongwith others and also he signed the document which was prepared in respect of numbers of currency notes of trap money of Rs.15000/- brought by the complainant. He has further deposed that DVR and blank memory card was arranged wherein his own voice as well as the voice of Deepak, another independent witness, was recorded in that memory card by using the recorder.
24. It is further deposed by him that after the complainant came out of PS on the main gate whereby giving pre-decided signal, all the team members went inside the PS including him (the witness) and accused Megha Ram was apprehended. Washes of both hands of the accused as well as that of the file cover etc. were taken in the presence of the said witness and search of the room of accused Megha Ram was taken whereby the trap money as well as some other amount was recovered. The witness signed the report of proceedings, taken place in the Police Station on that day. The witness again visited CBI office wherein CBI officer gave transcript of the recorded conversations and played the same and he also tallied the transcript with the recordings on the instructions of CBI officer. The witness identified accused Megha Ram (A1). He also identified his signatures on Ex. PW9/A (colly 4 pages), Ex. PW9/B (colly 6 pages), Ex. PW9/C, Ex. PW9/D, Ex. PW9/E, Ex. PW9/F (colly 2 pages) and Ex. PW9/H.
25. PW-10 was C. M. S. Negi, who was the verifying officer, was directed by the SP to conduct verification proceedings in respect of the complaint of the complainant (PW7). He has deposed that for the purpose of verification, he arranged an independent witness namely Sh. Deepak Singh and a DVR as well Page No. 14 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) as a sealed micro SD card/memory card alongwith CBI brass seal and the witness along with Deepak Singh, complainant and his brother proceeded towards PS Sangam Vihar. The witness instructed independent witness to follow the complainant clandestinely and try to overhear his conversation with the suspect officer SI Megha Ram and a DVR in Switched ON mode was given to the complainant while the complainant went inside the PS. For the purpose of verification, a blank memory card was inserted into the DVR and the introductory voice of the independent witness was recorded therein. Thereafter, he alongwith complainant, his brother and independent witness proceeded for PS Sangam Vihar and complainant then went inside the PS and the independent witness also followed him from a safe distance. After about half an hour, the complainant also came out of the PS and DVR was taken back from him and switched off. He was asked to narrate the sequence of events inside the PS. The complainant narrated that he met SI Megha Ram who spoke to him about his demand of Rs.15,000/- and when the complainant requested Megha Ram to decrease the amount of demand, SI Megha Ram advised him to speak to ASI Govind about the same and also to meet him again with ASI Govind, who was earlier posted in PS Sangam Vihar, but has now been transferred to the PS Tigri and who is also conversant with the case of complainant. Thereafter, the recorded conversation was heard and it was found to corroborate the version of the complainant. The team thereafter, returned to the CBI office. A call was made to ASI Govind from the mobile phone of the complainant, wherein the complainant asked ASI Govind to speak to Megha Ram for lowering of his demand. Initially, ASI Govind told complainant that such settlements are not made over phone and that the complainant should visit him in the Police Station. On further requests of the complainant, ASI Govind Page No. 15 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) agreed to speak to SI Megha Ram about his demand and then revert back to the complainant. Thereafter, when ASI Govind did not receive calls, made by complainant on his mobile, the team decided to visit PS Tigri for further verification. Hence, the witness alongwith the complainant, his brother and the independent witness proceeded to PS Tigri and instructed the independent witness to follow the complainant clandestinely and also try to overhear the likely conversation that might take place between the complainant and ASI Govind. The complainant and his brother went inside PS Tigri and the independent witness also followed them from a safe distance. The independent witness reported back after few minutes and after some time, the complainant and his brother also came out of the PS. The complainant narrated that he spoke to ASI Govind about the demand of SI Megha Ram and ASI Govind then spoke to SI Megha Ram over phone about the future course of action and then ASI Govind told the complainant that he had confirmed from SI Megha Ram with respect to the settlement of demand at Rs.15,000/- and also advised the complainant and his brother to meet SI Megha Ram immediately. Thereafter, the recorded conversation was also heard and it was found to be in line with the version of the complainant. ASI Govind was also heard, telling the complainant that they would have to incur almost the same, even if they try for bail.
26. The witness further deposed that the DVR and CBI brass seal with which the DVR, memory card etc. were sealed, were handed over to the independent witness and a memorandum of the proceedings of that day was prepared and signed by all of them. The complainant was instructed to arrange Rs.15,000/- as demanded by SI Megha Ram and report with the same on 10.06.2019 while the Page No. 16 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) independent witness was instructed to report with the DVR and the brass seal on 10.06.2019. The witness identified the complaint dated 08.06.2019 (Ex.PW7/A) as well as the noting and signature of SP on the same. He further identified the verification memo dated 08.06.2019 Ex.PW10/A.
27. It has further come in his evidence that on the basis of the verification dated 08.06.2019, a regular case was registered against SI Megha Ram and ASI Govind. Insp. S.P. Singh was designated as Trap Laying Officer (TLO). A team was also constituted, comprising of the witness as well as some other CBI officials, two independent witnesses namely Sh. Deepak Singh and Sh. Lokesh Kaushik and the FIR, complaint and the verification memo were also shown and explained to all. Thereafter, pre-trap proceedings were conducted wherein the complainant produced Rs. 15,000/-, distinctive numbers of which were noted and a demonstration was also given and explained to all while the GC notes were treated with phenolphthalein powder. Some new blank and sealed memory cards were also arranged by the TLO. A memory card was inserted into the DVR in the presence of the independent witnesses and after ensuring the blankness of the DVR as well as that of the memory card, the introductory voices of both the independent witnesses were recorded. The TLO briefed the complainant and the independent witnesses regarding the procedures at the spot of trap and also gave instructions to them according to their respective roles. The independent witness Sh. Deepak was to be the shadow witness and the other witness Sh. Lokesh was to remain with the CBI team. The complainant, his brother, both the independent witnesses and the CBI team then proceeded to PS Sangam Vihar. In order to ascertain the presence of Megha Ram in his office, a call was made to him from the mobile phone of the complainant and Page No. 17 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) the said call was recorded in the DVR. After reaching the spot, the DVR in switched ON mode was put in the shirt pocket of the complainant and he was directed to proceed to the cabin of accused Megha Ram alongwith his brother. Independent witness Sh. Deepak followed them from a safe distance. After sometime, on being alerted by the TLO, he (the witness) and the other CBI team members rushed towards the cabin of the accused Megha Ram, who was caught hold of by wrist by Insp. S.P. Singh TLO and SI Umesh and TLO challenged accused Megha Ram for having demanded and accepted a bribe of Rs.15,000/- from complainant Sh. Trivendra Gupta. On being directed, the complainant narrated that he was gestured by accused Megha Ram to keep the tainted amount inside the file that was kept on the working table in the cabin of accused Megha Ram and he accordingly, had kept the tainted bribe amount over the first page inside the file. On the directions of the TLO, the tainted bribe amount was recovered by independent witnesses Sh. Lokesh Kaushik. The washes of the fingers of both hands of accused Megha Ram were taken separately using solution of sodium carbonate and water. The washes of both his hands turned pink. The washes of the first paper in the file from which the recovery was made and that of the inside of the same file were also taken separately and both these washes also turned pink. The search of the cabin of accused Megha Ram was also conducted and cash amount of Rs.2,74,960/- was recovered therefrom and the said amount was also seized. The memory card was then taken out of the DVR and a copy of the recordings was prepared. Thereafter, the introductory voices of the independent witnesses as well as specimen voice of accused Megha Ram were recorded. The said DVR, memory cards and other items were separately packed in separate envelopes and sealed with the CBI brass seal and signed by all the concerned persons. The TLO also Page No. 18 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) enquired from accused Megha Ram regarding the role of accused Govind in the instant conspiracy and he was also instructed to call accused Govind and inform about the incident but Megha Ram refused to do so. The trap proceedings were recorded in a memorandum which was read over and explained to all concerned, who thereafter, signed the same. Rough site plan of the spot was also prepared on the direction of the TLO. After completion of the trap proceedings, the brass seal was handed over to the independent witness Sh. Deepak Singh by the TLO. The witness identified accused Megha Ram (A1).
28. The next prosecution witness pertaining to investigation was PW-11 Sh. Pramod who deposed that in the month of February 2020, he was called in the CBI office by Insp. Shyam Rai to observe the proceedings as a witness of the proceedings. He stated that in his presence, Inspector Shyam Rai arranged a recorder and a blank memory card and first of all, his voice was recorded, then the specimen voice of one Mr. Govind was recorded and thereafter, his concluding voice was recorded. Thereafter, the memory card was removed from the recorder machine and same was sealed in an envelope and the proceedings memo was prepared and the sealed envelope as well as memo was signed by him, Inspector Shyam Rai and accused Govind. The witness correctly identifies Mr. Govind in the court.
29. The witness proved on record the specimen voice memo alongwith the rough transcription as Ex. PW11/A (three pages collectively). He stated that the seal after use was handed over to him and he produced the same before the court which was later on exhibited as Ex.PW11/Article-7. The witness further proved on record Ex. PW11/Article-2 (yellow envelope), Ex. PW11/Article-3 Page No. 19 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) (brown envelope), Ex. PW11/Article-4 ( company paper cover packing of memory card), Ex. PW11/Article-5 (plastic cover of memory card) and memory card as Ex. PW11/Article-6. The witness identified his introductory voice from the audio file no. 20210_1456 as well as his concluding voice from the audio file no. 20210_1520 which was played before the court. He also identified the voice of Govind in the audio file no. 20210_1515.
30. PW-17 Insp. S. P. Singh is the Trap Laying Officer to whom the FIR was marked by the then SP Sh. Sudhanshu Dhar Mishra for investigated/laying trap. He deposed that the FIR was handed over to him on 10.06.2019 wherein he constituted a team consisting of two independent witnesses namely Sh. Deepak Singh and Sh. Lokesh Kaushik, Trivender Kumar Gupta (complainant), Surender Prakash Gupta (brother of complainant) and CBI officials including Inspector C. M. S. Negi, Inspector Pramod Tanwar and Inspector Raman Shukla wherein contents of the complaint were read over and explained by the witness to the team members. He has further deposed that the complainant produced GC notes of Rs. 15,000/- distinctive numbers of which were noted down in the Handing Over Memo and thereafter on the direction of the witness, Inspector Pramod Kumar Tanwar gave the demonstration in respect of the effect of phenolphthalein etc. He also instructed independent witness Sh. Lokesh Kaushik to conduct the personal search of the witness and instructed Sh. Deepak Singh to put the tainted bribe money of Rs. 15,000/- in the pocket of the complainant. The witness further deposed that a new memory card was inserted in the DVR and after ensuring the blankness of the same, introductory voices of both the independent witnesses were recorded therein. The witness gave further instructions to Deepak Singh to remain as shadow witness i.e. to Page No. 20 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) remain nearby the complainant and also instructed Lokesh Kaushik to remain outside the PS alongwith others and thereafter the team proceeded towards PS Sangam Vihar. The witness further deposed that on his direction, complainant made a call on mobile of accused no. 1 on speaker mode and the said conversation was recorded in the DVR. The witness after reaching in the vicinity of the said PS, briefed the team members and issued necessary instructions including the signal about the transaction to the team. The witness stated that DVR was handed over to the complainant before he went inside. The witness further deposed that after receiving the pre-decided signal of transaction from the complainant, the witness alerted the other team members and they went inside the room of accused no. 1 and the witness alongwith SI Umesh caught hold of accused no. 1. The witness has further deposed about the procedure of taking hand washes etc. The witness has deposed that on his instructions the complainant narrated that the accused Megha Ram demanded bribe by gesture and directed to put the same in the file lying on the table. Accordingly, he put the tainted bribe money of Rs. 15,000/- in the said file and on the instruction of the witness, Lokesh Kaushik recovered the bribe amount from the said file and both the independent witnesses counted and tallied the numbers/denominations of the currency notes from the handing over memo and thereafter the said amount was packed and sealed with CBI brass seal. Thereafter, on the instruction of the present witness PW17, the residence of accused no. 1 was also searched by Inspector Raj Saurabh and Pramod Tanwar conducted search of his office wherein an amount of Rs. 2,74,960/- was found in the drawer of his office table regarding which Megha Ram could not give plausible reply and the said amount was also seized vide a separate search-cum- seizure-memo. The witness has deposed that the conversations were heard from Page No. 21 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) the DVR in the presence of both the independent witnesses which corroborated the version of both the independent witnesses and the relevant sentences were noted from the conversation and thereafter memory card containing the said recordings was separately packed and sealed and marked as Q2 in RC-20/2019. This witness has stated that thereafter accused Megha Ram was formally arrested vide separate personal search-cum arrest memo Ex. PW9/D and the information of the same was given to HC Satish Duty Officer of PS Sangam Vihar. He has further deposed that thereafter the specimen voice of the said accused was recorded in a new/blank memory card alongwith the introductory and concluding voices of both the independent witnesses and thereafter the said memory card was also duly packed and sealed while the DVR was also packed and sealed in a separate envelope and after completion of these proceedings, the brass seal was handed over to Deepak Singh. The witness has deposed that during the trap proceedings, a site map showing the position of the independent witnesses, accused and the other team members was also drawn on the spot and the same was signed by PW17 himself as well as both the independent witnesses. This witness also identified his signature on almost all the concerned articles pertaining to trap proceedings. The witness has further informed the court that during the trap proceedings, he asked accused Megha Ram to contact accused Govind but he denied for the same and since a number of police officials were present in the premise of the police station, it was decided not to proceed towards PS Tigri and that the role of accused Govind will be looked into during the investigation. The witness identified Megha Ram (A1) who was present in the court.
31. PW18 was Insp. Shyam Rai, who took over the investigation of present Page No. 22 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) case from the TLO Insp. S. P. Singh, on the direction of SP, CBI. It has come in his deposition that he sent the right hand wash, left hand wash, file cover wash and paper wash to CFSL for expert opinion and identified his signatures on D- 15A dated 26.06.2019 whereby stating that he also received the Chemical Examination Report of CFSL. He identified his signatures on arrest cum personal search memo Ex.PW5/A (colly. 2 pages) vide which he arrested accused Govind Singh. He identified his signatures on specimen voice memo Ex.PW5/B. The witness also identified his signatures on various articles including memory card and its company packing etc. The witness also forwarded specimen samples 'S1' and 'S2', recorded conversations 'Q1' and 'Q2' as well as 'S3' to CFSL for expert opinion. The witness further identified his signatures on D-13 i.e. transcription cum voice identification memo i.e. Ex.PW14/A and D-14 i.e. transcription cum voice identification memo i.e. Ex.PW9/G. It is further deposed by the witness that he seized record pertaining to mobile no.9212666694 from Vodafone Idea Limited vide Ex.PW1/A (D-16) as well as from Bharti Airtel vide Ex.PW3/H (D-19) and from Reliance Jio Limited vide Ex.PW4/D (D-23).
32. He further deposed that he also seized the relevant record of duty roaster and posting order of accused Govind Singh from Police Station PS Tigri. The witness also specified that he recorded statements of relevant witnesses as per their versions and he also obtained prosecution sanction against both the accused persons from the competent authority and that the sanction order of accused Megha Ram is Ex.PW2/B while the sanction order of accused Govind Singh is Ex.PW2/C. Page No. 23 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) OFFICIAL WITNESSES
33. PW-12 Sh. Deepak Kumar Tanwar, who was Principal Scientific Officer (Physics) in CFSL, New Delhi, proved on record his report Ex. PW12/A, forwarding letter dated 19.07.2019 and 11.02.2020 as Ex. PW12/B and Ex. PW12/C respectively and he also gave his small introduction. The witness also informed the court about the procedure which was taken up for comparison of the voices between the specimen voices and the questioned voices in the recorded conversations. The said witness also proved certain other articles including envelopes and adapters etc. on record i.e. from Ex.PW12/Article-1 to Ex.PW12/Article-9.
34. PW-13 was Ms. Deepti Bhargava who was working as Sr. Scientific Officer, Grade -II (Chemistry) and she had conducted the lab examination in respect of four sealed glass bottles forwarded by the CBI for the said purpose and gave her expert report which was exhibited as Ex. PW13/A (back to back). She also proved on record the forwarding letter of CBI as Ex. PW13/B (colly. 3 pages) and also the letter sent by Director, CFSL to CBI for collection of original report etc. as Ex. PW13/C. Besides the same, she also proved on record certain articles in respect of the above mentioned four sealed bottles as Ex. PW13/Article-1 to Ex.PW13/Article-5.
35. PW-14 was Sh. Yogesh Malhotra, ACP, PG (Public Grievance Cell), Rohini, Delhi. He deposed that in June 2019, he was posted as SHO, PS Sangam Vihar, Delhi. On 10.06.2019, he went to attend crime review meeting at DCP Office, Hauz Khas, New Delhi at about 03:00 PM/04:00 PM, while in the meeting, he was informed that SI Megha Ram has been trapped by the CBI.
Page No. 24 of 117 (Niyay Bindu)
Special Judge (PC Act) CBI-13,
Rouse Avenue District Court, New Delhi
CNR No. DLCT11-001884-2019
CC No. 422/2019
RC-DAI-2019-A-0020-CBI-ACB-ND
U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) On demand of CBI officials, the witness handed over the certified copy of FIR in respect of which SI Megha Ram was trapped. The witness also mentioned the mobile number of SI Megha Ram as 9212666694 which was being used by him those days and the witness also used to interact with accused Megha Ram. The witness further deposed that in the month of June (later on the witness clarified that it was the month of September) 2019, IO of the CBI called him to CBI office wherein the recorded conversation for voice identification of SI Megha Ram was played. The witness identified his signatures on the transcription cum voice identification memo Ex. PW14/A which was prepared in his presence on 09.09.2019. The transcriptions pertaining to file no.190608_1518 was also proved on record by the witness as Ex.PW14/B while he also identified his signatures on the same. When the audio file no. 190608_1518 was played before the witness, he deposed that this is the same audio file, which was played by the IO at CBI office for identification of voices.
36. PW-15 was Insp. Sunil Kumar, who deposed that since 25.02.2019, he had been working as SHO PS Tigri, South District, New Delhi and that he knows accused no.2 ASI Govind who had worked under him for about three months. The witness further deposed that he was called twice by IO/CBI during investigation of the present case, firstly, he went there on 15.07.2019 for identification of the voice of ASI Govind and later on, on 09.09.2019, when he produced copy of duty register and some orders, received from SIP Branch, South District regarding posting of ASI Govind etc. The witness further deposed that he identified the transcription produced by the IO before him as verbatim conversation of the audio recording previously played before him. The witness identified his signature on the document already Ex.PW9/E and Page No. 25 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) Ex.PW9/F (Collectively). The witness also identified the document D-18 Ex.A-4 (Colly.) and D-18A Ex.A-5 (colly.) which were provided by him to the IO after his attestation on each page.
37. After deposition of these prosecution witnesses, prosecution evidence was closed and accused persons were examined under Section 313 Cr.P.C.
PLEA OF ACCUSED UNDER SECTION 313 CR.P.C.
38. In his statement under Section 313 Cr.P.C., accused no.1 replied that he has never threatened complainant or his brother and never demanded anything from anyone and that the CBI officials have got a false complaint written against him from the complainant and the complaint was dictated to him by the CBI officials. It is also stated that the documents pertaining to various proceedings of the present matter were fabricated and prepared ante-dated. It is also stated that the complainant filed the complaint in order to pressurized him and out of vengeance as to when the accused filed status report in response to application of complainant U/s 156(3) Cr.PC whereby opposing the registration of FIR on the complaint of the complainant, the complainant was offended by the same and that is why he falsely implicated the accused by filing the present case. Accused no.1 opted for leading defence evidence.
39. In the separate statement under Section 313 Cr.P.C. of accused no. 2, he replied that he has neither ever talked to the complainant, nor met him. It is further stated that his sanction order is an invalid sanction which has been accorded without application of mind in a mechanical manner by copying the draft sanction order sent by CBI. It is also stated that the articles and recordings Page No. 26 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) produced by the CBI as evidence are false, fabricated, manipulated and got signed ante-dated and ante-timed. The accused did not opt for producing any evidence in defence.
DEFENCE EVIDENCE
40. Out of two accused persons, only accused no.1 Megha Ram opted to produce defence evidence. During the defence evidence, HC Bhim Singh appeared as DW1 in the witness box and he submitted that at the relevant time, he was posted as Constable at PS Sangam Vihar and he used to do his duties as Chitha Munshi (deployment officer) in the cabin of SI Megha Ram. He further deposed that on 10.06.2019, when he was sitting in the cabin of SI Megha Ram, at around 5.00 pm, two persons came there and Megha Ram conducted some documentation with them while taking their signatures on their identity proof and other documents. He further deposed that 3-4 police officials of the said PS were watching TV in the rest room inside the cabin and SI Megha Ram while asking those 2 persons to leave, also went to rest room and thereafter, one of those two persons took out some money from his pocket and hurriedly put the same inside the file lying on the table and abruptly they went out. The witness has further deposed that 3-4 persons entered inside the cabin and enquired from him about Megha Ram to which Megha Ram responded and was being apprehended by one of those persons. He further stated that they also asked the witness and other police officials to go out and after 10-15 minutes, those persons took away Megha Ram outside the PS. It is further stated that later on, the witness came to know about those two persons, one of whom, put the money inside the file, were Gupta Brothers. It is further deposed that after one and half month, the witness was called by CBI along with duty register in Page No. 27 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) respect of entries of 10.06.2019 and also that CBI official enquired from him about the present case and he narrated the same facts as he had narrated before the court. The witness was duly cross-examined by Ld. PP for CBI.
41. During the cross-examination of the said witness, he deposed that his statement was not recorded by Insp. Shyam Rai. The witness was also confronted with his statement U/s 161 Cr.PC Mark-PX, the contents of which were in contradiction of his deposition before the court to the effect that he narrated the facts of the case before the IO as he has not narrated before the court. Further, the witness declined the suggestion that he was deliberately deposing falsely at the behest of accused Megha Ram being his senior officer and being the defence witness. From the cross examination of the said witness, CBI tried to establish that he was a witness, who, despite of being well aware of the whole circumstances of the case, under which, A1 has been trapped by CBI, deposed in favour of the accused only. An audio file no.190610_1640 was played in front of the witness pertaining to the conversation which took place between accused Megha Ram and Gupta Brothers (complainant and his brother) and the witness deposed that he did not remember as to whether he was present in the cabin of Megha Ram at the time of the said conversation. The witness also deposed that after reaching of CBI team over there, no other proceeding took place in his presence.
42. The deposition of other witnesses shall be considered in the appreciation of evidence as per the context. After completion of evidence, both parties addressed their detailed arguments with respective case laws.
Page No. 28 of 117 (Niyay Bindu)
Special Judge (PC Act) CBI-13,
Rouse Avenue District Court, New Delhi
CNR No. DLCT11-001884-2019
CC No. 422/2019
RC-DAI-2019-A-0020-CBI-ACB-ND
U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) ARGUMENTS OF CBI
43. Ld. PP for the CBI has argued that both complainant Sh. Trivendra Kumar Gupta and his brother Surendra Prakash Gupta have proved the fact as to why complainant had made complaint against Megha Ram. Ld. PP further submitted that the prosecution has proved the fact that accused Megha Ram has demanded Rs.15,000/- as bribe/illegal gratification from the complainant and threatened him that if the complainant fails to pay Rs.15,000/- to him, he would arrest brother of the complainant namely Surendra Prakash Gupta. Prosecution has also proved the fact that since the complainant did not want to pay the bribe amount to accused Megha Ram, therefore, he submitted the complaint to CBI for taking necessary legal action against the accused Megha Ram.
44. It is further argued that the fact of making complaint against accused Megha Ram by the complainant has also been proved by the Verification Officer/PW10 Insp. CMS Negi, who deposed that in the complaint Ex.PW7/A, it was alleged that a case was pending against the complainant and his family members in PS Sangam Vihar, wherein IO Megha Ram (accused no. 1) has been calling the complainant for the past three days and was demanding a bribe of Rs.15,000/- from PW7/complainant and that if the demanded bribe was not paid to Megha Ram, accused Megha Ram would arrest the brother of complainant i.e. PW16 Sh. Surendra Prakash Gupta.
45. Ld. PP has further argued that the contents of the complaint made by the complainant was verified by the Verification Officer Insp. Chandra Mohan Singh Negi (PW10) in the presence of independent witness Deepak Singh (PW8). Ld. PP further argued that the verification proceeding conducted by Page No. 29 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) Insp. C. M. S. Negi has corroborated the fact of the complaint submitted by the complainant vide verification memo Ex.PW10/A. The proceedings of verification has been corroborated by the independent witness PW8 and the brother of the complainant PW16 who also deposed that PW8 was instructed by PW10 (Inspector Negi) to stay close to the complainant as a shadow witness.
46. It is further argued by Ld. PP for the CBI that PW-16 had deposed that after coming out of PS Sangam Vihar, CBI official asked from his brother/PW7 as to what had happened in PS Sangam Vihar and that his brother/PW7 had narrated the same. This fact was corroborated by PW8 and PW10 as well who have also deposed about the narration of the complainant to PW10 about the demand of Megha Ram for Rs.15,000/- as well as his request to Megha Ram for lowering the demand and also the advise of Megha Ram to him to talk to the co-accused ASI Govind about the same and also to meet co-accused ASI Govind. He further deposed that thereafter, the recorded conversation was heard and it was found to corroborate the version of the complainant/PW7 and PW8 had also corroborated the aforesaid fact by deposing that from the recorded conversation, which was played before all of them, it was appearing that bribe was being demanded from the complainant/PW7. PW10 further deposed that a call was made to co-accused ASI Govind from the mobile phone of the complainant/PW7, wherein the complainant/PW7 asked co-accused ASI Govind to speak to accused Megha Ram for lowering the demand of Rs.15,000/- made by accused Megha Ram and that initially, co-accused ASI Govind told complainant/PW7 that such settlements were not made over phone and that the complainant/PW7 should visit co-accused Govind Singh in the PS. Upon requests of complainant/PW7, co-accused ASI Govind agreed to speak to Page No. 30 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) accused Megha Ram about the demand of Rs.15,000/- made by accused Megha Ram and then revert back to the complainant/PW7 and thereafter, the team proceeded to the PS Tigri for further verification.
47. It is further argued by Ld. PP for the CBI that PW10 had deposed that complainant/PW7 and his brother (PW16) after sometime, came out of the PS and PW7 narrated that on his request, co-accused ASI Govind spoke to accused Megha Ram on phone and who told them that he had confirmed from accused Megha Ram that the demand was settled at Rs.15,000/-. PW16 corroborated the aforesaid fact by deposing that he and his brother informed Govind that accused Megha Ram was demanding higher amount of Rs.20-25,000/- and that they also requested co-accused Govind to get the said amount decreased.
48. It is further argued by Ld. PP for the CBI that PW8, PW10 and PW16 had identified the voice of PW8 Deepak Kumar in audio file 190608_1402 and PW7 and PW16 had identified voice of PW7 as well as concerned transcription of the audio file no. 190608-1518. PW10 had identified the voice of complainant/PW7 and co-accused Govind Singh in audio file no. 190608-1705, 190608_1742, 190608_1743 as well as in the file no. 190608_1759. PW8 had also identified the voice of complainant and that of accused Govind in audio file no. 190608_1705 and PW16 had identified the voice of PW7 in the audio file 190608_1705 and 190608_1742.
49. It is further argued by Ld. PP for the CBI that in his deposition, the verification officer PW10 had stated that on the basis of the complaint as well as successful verification of the contents of the complaint, an FIR Ex. PW10/D-
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U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) 2 (colly.) was registered by CBI against both the accused for demanding bribe of Rs.15,000/- from the complainant and this fact has also been corroborated by PW16 and PW17.
50. It is further argued by Ld. PP that after registration of the FIR, a trap team was constituted under the CBI official S. P. Singh consisting of the complainant, his brother, independent witness Deepak Singh and another independent witness Lokesh as well as the other CBI officials wherein on instructions of CBI official, the complainant arranged cash amount of Rs.15,000/- and these facts are being corroborated by PW7, PW8, PW9, PW16 as well as PW17 (TLO) and after the demonstration proceedings conducted by Inspector Pramod Kumar, the team proceeded to PS Sangam Vihar. The independent witness was directed to act as a shadow witness with the complainant and the audio recorder containing a new memory card was kept in the pocket of the complainant and all the conversations which took place between the complainant and accused Megha Ram were duly recorded therein. After coming out of the PS, the complainant gave the pre-decided signal to the team and the team successfully trapped Megha Ram whose cabin was searched wherein separate money was recovered while the trap money was recovered from the file lying on the table in the cabin of accused Megha Ram as complainant pointed out that he kept the amount over there on the instruction of Megha Ram through gesture. It is further argued that all these factual proceedings are being corroborated by PW8, PW9, PW10, PW16 and PW17. It is also pointed out that PW16 has specifically deposed that his brother kept Rs.15,000/- inside a file which was lying on the table of accused Megha Ram in accordance to the previous conversation of his brother with the accused Megha Page No. 32 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) Ram as he was demanding the said amount of Rs.15,000/- and thereafter PW16 and his brother left the room. PW9 has deposed that on the instructions of the CBI officer, he recovered the bribe amount from the file lying on the table of accused Megha Ram and this fact was also corroborated by PW8 and PW16.
51. It is further argued that in the deposition of PW8, PW9, PW10 and PW17, it has come on record that the hand washes as well as the wash of file and that of the first page inside the same were also taken which turned the solution of sodium carbonate into pink and the report of CFSL prepared by PW13 Deepti Bhargava has corroborated the said fact. It is further pointed out by Ld. PP for the CBI that the fact of recovery of a sum of Rs.2,74,960/- from the drawer of the office table of accused Megha Ram has been corroborated by PW8, PW9, PW10 and PW17 and the recording of the specimen voices of both the accused have also been corroborated by the respective prosecution witnesses.
52. It is further pointed out by Ld. PP for the CBI that PW12 has proved the voice examination report Ex. PW12/A who has concluded that the questioned voices are the probable voices of accused Megha Ram whose specimen voice was marked as Ex. S1 (M). It is further argued by Ld. PP that Sh. Yogesh Malhotra PW14 has confirmed the fact that accused Megha Ram was using mobile no. 9212666694 at the relevant time while PW18 Inspector Shyam Rai deposed that during investigation, he seized the record pertaining to the said mobile no. 9212666694 from PW1 Pawan Singh, Nodal Officer, Vodafone Idea Limited vide production cum seizure memo Ex. PW1/A and PW1 confirmed that the said mobile number was being used by accused Megha Ram and mobile no. 9891173195 was used by co-accused Govind and in respect of both Page No. 33 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) the mobile numbers, he provided CDR, CAF etc. to Inspector Shyam Rai (PW18). It is further argued that PW18 Inspector Shyam Rai had deposed that during investigation, he obtained prosecution sanction of both the accused from the competent authority and the said competent authority was also a prosecution witness as PW2, who proved the sanction order in respect of accused Megha Ram as Ex. PW2/B and in respect of co-accused Govind Singh as Ex. PW2/C and identified his signatures on the same. It is further argued by Ld. PP that PW7, PW8, PW9, PW10, PW16 and PW17 have identified the accused no.1 in the court while PW5 and PW11 identified accused no.2 during their respective depositions.
53. On the basis of these arguments, it is submitted by Ld. PP for the CBI that with the help of all the prosecution witnesses, the prosecution has been able to successfully establish the case against both the accused persons beyond reasonable doubt in respect of demand, acceptance, recovery and conspiracy as well and that is why both of them are liable to be convicted accordingly.
CASE LAWS CITED BY CBI Ld. PP for the CBI has relied upon the following judgments:
1. R. M. Malkani Vs. State of Maharashtra (1973) AIR (SC) 157
2. Neeraj Dutta Vs State (Government of GCT of Delhi) 2022 Online SC 1724
3. State of Maharashtra Vs. Damu (2000) SC
4. State of UP Vs. Zakaullah (1998 Crl.L. J. SC 863)
5. Hazari Lal Vs. Delhi Administration (1980 Crl.L.J.580)
6. Vinod Kumar Vs. State of Punjab (2015 (2) Crl.L.J. SC 1442) Page No. 34 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018)
7. State Vs. A. Parthipan (2006 Cr.L.J. 4772 SC) ARGUMENTS OF ACCUSED NO.1
54. It is argued on behalf of accused no. 1 that there is no charge framed for demanding and accepting of any amount on 10.06.2019 and 08.06.2019 against accused Megha Ram. Hence, the prosecution must prove the charges as have actually been framed. In this regard, Ld. Counsel has referred to Soundarajan Vs. State REP. By the Inspector of Police Vigilance Anti Corruption, Dindigul.
55. It is further argued on behalf of accused no.1 that the FIR is dated 10.06.2019 but the verification was conducted on 08.06.2019 and report of the same was prepared on 10.06.2019 and accordingly, this is questionable that TLO who came into picture on 08.06.2019 should have come by 10.06.2019.
56. It is vehemently argued on behalf of accused no.1 that the very basis of the present case which is the complaint, is itself disputed because it has already come on record in the evidence of complainant as PW7 and his brother as PW16 that the original complaint which was actually prepared by the complainant and which was produced by them before the CBI official on their very first visit to CBI office in respect of their alleged grievances, the same was rejected by the CBI officials and torn off and they instructed the complainant to write a fresh complaint and dictated the contents of the complaint to the complainant as it has already come on record in the evidence of both the complainant as PW7 and his brother as PW16. It is also pointed out by Ld. Defence Counsel that although, during the evidence, the said original complaint which the complainant carried with him to CBI office, was torn off but in the Page No. 35 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) documents filed alongwith the charge-sheet or in the evidence produced by prosecution, the fate of the said complaint has not been clarified and also it has not been established by CBI as to why the said original complaint was rejected and why the complainant was asked to write a fresh complaint as per the dictation of CBI official. Accordingly, in the absence of such evidence by prosecution, the very basis of the present case, is itself baseless which calls for granting benefit of doubt to the accused persons.
57. It is further argued by Ld. Defence Counsel that it is nowhere explained by the prosecution or any of it's witnesses as to when the trap proceedings were going on inside the PS Sangam Vihar and when admittedly a number of police officials were present therein, why any of such police officials were not made a witness to the said proceedings and even one of such official; that is HC Bhim Singh who was included in the list of witnesses by CBI, was not produced in the witness box who was otherwise produced by accused no.1 as defence witness who has himself refuted the submissions made by the prosecution witnesses in respect of the incident occurred inside the cabin of accused no.1 during the trap proceedings. It is contended that this very omission of making police officials witness in the present case has not been explained by CBI which creates a doubt upon the case of the prosecution. Moreover, the complainant and his brother as well as the independent witness who were material witnesses of the prosecution have failed to identify the co-accused and this failure also goes against the prosecution as it has failed to establish the alleged conspiracy of the two accused.
58. It is further argued that PW7 and PW16 have nowhere stated in the entire testimony that any demand was made by accused no.1 from any of these Page No. 36 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) witnesses and even PW7/complainant in his cross examination specifically stated that, "it is correct to suggest that Megha Ram never demanded Rs.15,000/- from me." It is further pointed out that PW16 has stated that when SI Megha Ram went to the adjacent room, his brother kept Rs.15,000/- inside a file which was lying on the table of SI Megha Ram which means that the amount was kept in the said file by the complainant without the knowledge of SI Megha Ram.
59. It is further pointed out by ld. Defence Counsel that the CFSL report, relied upon by CBI, is not admissible as the same has not been prepared by a notified expert under the provision of Section 79-A of Information Technology Act. According to ld. Counsel, since CFSL, New Delhi is not notified under Section 79-A, therefore, report given by PW-7 is not admissible in evidence. He submitted that, the term used 'may' in Section 79-A of Information Technology Act should be read as 'shall' and it is mandatory provision. He further submitted that the report of the expert Ex. PW12/A nowhere mentioned that the question voices are being compared with the DVR and even there is no mentioning of DVR in para 1, 3 & 7 of the said report. In addition to the same, it is submitted by the Ld. Counsel that no any specimen voice of the complainant was taken or sent to CFSL so that his voice in the recorded conversations could be identified by an expert and in the absence of the same, the report of CFSL become invalid and inadmissible.
60. Ld. Counsel has further stated that there are many discrepancies in the actual proceedings of the matter as produced by CBI and the evidences put on record by the prosecution, Ld. Counsel has pointed out that in the handing over Page No. 37 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) memo Ex.PW9/A(colly.) (D-4), the brother of complainant is not there in the proceedings but his signatures are apparent on the said document.
61. It is pointed out by ld. Counsel that none of the witness has deposed against accused no.1. It is further argued that the accused has never touched the tainted notes and even there is no allegation by CBI that he has touched the same and the process of turning the solution of hand washes of accused no.1 is only a probability. It is pointed out by Ld. Counsel that firstly, it has already come on record that Gupta brothers (complainant Trivendra Kr. Gupta and his brother Surendra Prakash Gupta) shook hands with accused no.1 which might have transferred phenolphthalein powder from the hands of the complainant to the hand of accused which caused the solution to turn into light pink or very light pink.
62. It is further argued by Ld. Counsel that as it has already come on record that certain documents were signed by the Gupta brothers in front of accused no.1 and as it is already established that when Gupta Brothers were going inside the room of accused no.1, except the tainted amount and DVR, they were not carrying anything else which clarifies that in all probabilities, they borrowed a pen from accused no.1 and then after completion of the documentation etc., they returned the pen to accused no.1 which might have caused the presence of a little amount of phenolphthalein powder on the hands of accused as the powder could easily travel from their hands through the pen used by the complainant and his brother and thereafter used by Megha Ram also in filling up the said documents.
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U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018)
63. It is further argued by Ld. Counsel that the chemical examination report Ex. PW 13/A, also shows that the solution in respect of right hand wash of accused no.1 turned into very very light pink and the solution in respect of left hand wash was colourless while the right hand wash was very very light pink which means the quantity of phenolphthalein in the wash was very very less and hence, much significance cannot be given to these washes. It is also argued by Ld. Counsel that this is not even the case of prosecution that the accused Megha Ram had touched the currency notes or had accepted the same from the complainant or had taken the same out of the file where the complainant alleged to have kept the treated GC notes and even no prosecution witness has stated that the accused had touched or had any occasion to touch the GC currency notes.
64. It is argued by Ld. Counsel that except the solutions turning pink in colour, there is no other document available in evidence to establish acceptance by accused no.1 as CBI is relying upon the contention that he accepted the bribe amount through gesture, but the said gesture cannot be established in absence of direct eye witness to the same as both the complainant as well as his brother have already turned down all the allegations of the prosecution against the accused.
65. Another argument produced by Ld. Counsel for accused no.1 is that the report Ex. PW12/A makes it clear that the auditory analysis of the questioned recording was done by comparing them with the analysis of the specimen voice and no other examination with respect to original DVR was done. Hence, there is no material on record to ascertain without any doubt that the question Page No. 39 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) recordings were recorded in the memory card using the DVR, as claimed by the prosecution, or the recordings have been copied in memory card by some other devise, so as to rule out any possibility of tampering, manipulation or fabrication. No reliance can be placed upon the recordings copied into memory cards without the original device used for recording and in this regard, Ld. Counsel has referred to Ashish Kr. Dubey Vs. State. It is further submitted by Ld. Counsel that even the audio recordings are not conclusive evidence of any demand made by accused Megha Ram by any gesture or by any words, particularly, in view of the deposition of the persons, to whom these alleged words were addressed and also that the audio recordings are not free from all disturbances and even the transcripts of the recordings are not the true transcripts of the alleged recordings. It is also stated that the recorded conversation is otherwise also, not proper evidence and cannot be relied upon. It is further argued that from the alleged conversations on record, it is seen that there are various deviations and no certainty to show agreement of the accused Megha Ram to receive any amount in specific terms and thus he is entitled for benefit of doubt. It is further argued by Ld. Counsel that otherwise also the audio examination is not a perfect science and even the opinion given by the expert is qualified with the word 'Probable' and it has been held by Hon'ble Supreme Court that it is unsafe to base conviction upon opinion of an expert in absence of substantive evidence.
66. It is further argued by Ld. Defence Counsel that the prosecution examined PW14 Sh. Yogesh Malhotra who did not identify the voice of Megha Ram and it is clear from his cross examination that there have been a large number of subordinates working under him and as such it was not practical for Page No. 40 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) him to identify the voice of accused Megha Ram, who had worked with him only for 7-8 months.
67. It is further argued that allegedly the verification proceeding was conducted on 08.06.2019 but there is an unexplained delay in submitting it's report for registration of the FIR as the same was submitted on 10.06.2019 and even if as per the version of PW10, the proceedings concluded late in the night on 08.06.2019, there is no justification for not submitting the report on 09.06.2019. It is also pointed out by Ld. Defence Counsel that PW10, in his cross examination, has submitted that the report of verification proceeding is usually submitted on the same day but the same was not submitted on the same day in the present case. It is also admitted by PW10 in his cross examination that no number was marked on the complaint Ex. PW7/A and this fact has also been admitted by PW18 Insp. Shyam Rai that there is no complaint number or diary number given to this complaint. Moreover, the whole incident which took place inside the PS was narrated by the complainant only and the narration from one person to another falls into the category of hearsay evidence and the same is not admissible in evidence, therefore, the deposition of PW10 is not of much support to the case of CBI.
68. It is further argued by Ld. Defence Counsel that the accused is also entitled to the benefit of doubt as the case of the prosecution was that the accused Govind Singh was acting as a middle man, however, no material prosecution witness has identified accused Govind Singh and there is nothing on record to prove conspiracy between accused Megha Ram and accused Govind Singh, and hence the very basis of the prosecution case has not been Page No. 41 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) proved as against one co-accused, then, the benefit of the same will go to the other accused as well. It is also argued that the prosecution has failed to bring anything on record of meeting of minds on the part of accused persons to establish the charge of conspiracy for the purpose of demanding, obtaining or accepting the bribe amount. Ld. Counsel has strongly argued that no conversation recorded in the audio files relied upon and produced by CBI on record during the evidence shows any demand or acceptance on behalf of accused no.1 even, neither any conspiracy has been proved by any direct witness nor any prior meeting of minds has been established by the prosecution which is a pre-requisite for conspiracy.
69. It is further argued by Ld. Counsel for accused no.1 that there was actually no incident of demand or acceptance of bribe on behalf of accused no.1 from complainant and whatever contents are there in the complaint are all false and fabricated and the same are being motivated because originally there was an FIR pending against the present complainant, his brother and certain other family members wherein SI Megha Ram (accused no.1) was the investigating officer and complainant himself filed a counter complaint against the said FIR which was filed by one of his own relatives and which was pending for investigation. As no FIR was filed on the basis of complaint of the complainant against his said relative, out of vengeance and ill will, complainant filed the present CBI case without any actual circumstances of alleged demand of bribe. It is pointed out by Ld. Counsel that the ill-will of the complainant is very much apparent from the fact that when no FIR was registered on the basis of his complaint in the said PS, he filed an application u/s 156(3) of Cr.PC whereby seeking direction from the court for filing FIR and in the said application, a Page No. 42 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) number of allegations are leveled against the IO of the case SI Megha Ram alleging therein that Megha Ram has been won over and influenced by the opposite party and that is why he was not lodging FIR on the basis of complaint of the present complainant and a document has already been produced in this regard before the present court for reference during the final arguments, contents of which may be referred for corroboration of this argument.
70. Lastly, it is submitted by Ld. Defence Counsel that the prosecution has failed to prove its case and the accused is entitled for benefit of doubt in view of contradictions among the testimonies of the witnesses as well as non- examination of material witnesses, coupled with unreliable electronic evidence and failure to prove demand of bribe beyond reasonable doubt, the evidence produced by the prosecution is insufficient and inconsistent to establish the guilt of the accused beyond reasonable doubt.
71. Ld. Counsel for accused no.1 has quoted certain citations in support of his arguments, same are as follows:
1. Soundarajan v. State, Crl. Appeal No.1592 of 2022, decided on 17.04.2023.
2. Neeraj Dutta Vs State (Govt. of NCT of Delhi) (MANU/SC/0250/2023)
3. Sudesh Kaushik Vs. CBI (MANU/DE/4991/2022)
4. Jagtar Singh Vs. State of Punjab (2023 INSC 279)
5. Hem Chander Vs. State of Delhi (MANU/DE/1934/2013)
6. Nilesh Dinkar Paradkar Vs. State of Maharashtra (2011) 4SCC 143
7. Anil Kumar Tito Vs. State NCT of Delhi (MANU/DE/1742/2015)
8. Ashish Kumar Dubey Vs. State (MANU/DE/0860/2014) Page No. 43 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018)
9. Madan Gopal Singhal and Ors. Vs. State (MANU/DE/1072/2016)
10.Ganga Kumar Srivastava Vs. The State of Bihar (MANU/SC/0420/2005)
11. Aditya Kumar Vs. The State of Rajasthan, Crl. Appeal No.61/2023
12.Ravindra Mahadeo Kothamkar Vs. The State of Maharashtra, Crl. Appeal No.1152 of 2004.
13.Dashrath Singh Chauhan Vs. Central Bureau of Investigation (MANU/SC/1145/2018) ARGUMENTS OF ACCUSED NO.2
72. Arguments are addressed on behalf of accused no.2 whereby submitting that the prosecution has failed to prove the charges framed against accused no.2 and has failed to prove the basic essential ingredients in corruption case and has not brought any material on record to prove the charge u/s 120 B IPC against accused person. It is further argued that A-2 is liable to be acquitted as there is no material against him to establish his connivance with A-1 in commission of alleged/charged offences and also that there are three essential ingredients to bring home guilt of accused in a corruption case and same are (A) Demand, (B) Acceptance and (C) Recovery. It is stated that none of the important prosecution witnesses i.e., PW7,8,9,10 and 16 have deposed against A-2 alleging that any demand was made by A-2.
73. It is further argued that the complainant has named A2 as Govinda, whose profession, the complainant was not knowing, but as a matter of fact, full name of A-2 is ASI Govind Singh and at the relevant time, he was not posted at PS Tigri as has been proved in the testimony of PW-15 Insp. Sunil Kumar and it seems that the complainant is referring to his meeting with some other person Page No. 44 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) by the name of Govinda. Further, this fact deposed by the complainant is against the lines of the prosecution case. Moreover, as per the prosecution case, a verification proceeding was conducted on the same day of lodging complaint with CBI i.e. on 08.06.2019, but in the testimony of complainant, when he says that verification was done after two days, proves that the alleged verification proceedings are nothing except false and fabricated proceedings, as this witness has not deposed anything in this regard. It is further argued that PW7 has denied that any recording was played in his presence and he had identified the voices of A-1 & A-2 on 30.07.2019 and also denied the suggestion of Ld. PP that the documents were signed by him ante-dated without understanding the contents of the documents and also denied the suggestion that A-2 is Govind who has been referred to by him in his testimony as Govinda.
74. It is further argued that independent witnesses Deepak Singh and Lokesh Kaushik have also not brought on record anything incriminating against A2 in their deposition and in the deposition of the verification officer as PW10 also, it is pointed out that a specific question was posed before PW10 in respect of certain missing sentence from the transcription qua Q-2, the witness admitted this fact that a sentence spoken by A2 i.e. "AAPKI MADAD HI KAR SAKTA HUN, MERA TO KUCH LENA DENA NAHI HAI" and that this sentence has been intentionally not reduced in writing by the IO and no investigation has been conducted on this aspect rather this sentence has been intentionally withheld which also shows that the investigation conducted, is tainted. Further, an alleged sentence has been wrongly written in the transcript of File No.190608_1900 (though the alleged recording is disputed and not admitted by A-2 to contain his voice) as "EK HAZAR DO HAZAR WALI BAAT HO TO Page No. 45 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) MERI PHONE PE BAAT KARWA DENA WAHAN JAKE, KAR DEGA"
instead of "EK HAZAR DO HAZAR WALI BAAT HO TO MERI PHONE PE BAAT KARWA DENA WAHAN JAKE, KAR DOONGA".
75. It is further stated that in the deposition of PW15 and PW16 also, nothing incriminating has come up on record against accused no.2. it is specified that the prosecution has relied upon the voice recording as corroborative material in support of its case but the same is also of no help to the prosecution as the report Ex.PW12/A is in itself not conclusive rather it is only "Probable" and the Hon'ble High Court of Delhi in case titled as Ajay Gupta Vs. State (Through CBI) has held "accused cannot be held guilty on the basis of probabilities in a criminal trial". Further the alleged corroborative material i.e. the alleged audio recordings on which the prosecution has placed reliance to prove demand are nothing except false and fabricated and the witnesses have failed to identify the voices in the alleged recordings, which also proves the innocence of the accused. Moresoover, PW-12 Deepak Tanwar is not a voice expert as he has merely undergone training of one month at Germany and he does not have any qualification in the field of linguistic & phonetic and in the training which was allegedly undergone by this witness at Germany, he was not taught examination related to Hindi Language and further few days training does not impart qualification as has been admitted by this witness.
76. It is further argued that PW-12 had used computer & printer for taking the printout of the spectrograms of questioned and specimen voices part of Ex.PW12/D1 and Ex.PW12/D2 and no certificate U/s 65-B of the Evidence Act has been issued in support and correctness of the said spectrograms as has been Page No. 46 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) admitted by him. Further (without admitting its correctness and genuineness), the questioned and spectrograms do not match in terms of its intonation pattern, formants and general characteristics as is evident from these spectrograms, if done with a naked eye. Further the columns filed in the formants in all the spectrograms are filled by assistant Ms. Vimmi Bhatia, which also prima facie shows that PW12 is neither competent to conduct tests nor he has dealt with the exhibits in any manner and even the factum of been assisted or the columns filled by Ms. Vimmi Bhatia in the spectrograms being not mentioned in the report Ex.PW12/A, speaks volumes against this witness. Further, the exhibits were opened for examination on 31.10.2019 and the examination had concluded on 26.05.2020 and during this intervening period, the exhibits were not kept in sealed cover and therefore, the tampering in the exhibits during this intervening period cannot be ruled out. Further, hash value of the exhibits has not been calculated to rule out tempering. It is further argued that the witness has admitted that he has read the two famous books in the field of voice identification namely "Voice Identification Theory and Legal Application", authored by Oscar Tosi and book "Forensic Voice Identification", authored by Harry Hollein. However, this witness has tried to twist regarding the text in these books but the witness has failed to tell the "names of those foreign and Indian writers which are being referred other than the two books referred above". He has also admitted that "the basic principles and guidelines, given in the books authored by Harry Hollein and Oscar Tosi, are followed in conducting the voice examination". Such deposition was intentionally made by the witness as it was disproving him to be an expert and was making his report inadmissible, as in the said two books, it is clearly written that "the examiner must be a qualified professional trained in phonetic and speech science. Two Page No. 47 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) years apprentice in the field work should be required alongwith academic training before a voice examiner is called a qualified professional and this witness has intentionally given an evasive reply to the said question.
77. It is further argued that more so over, from the mere perusal of the auditory sheet also, it cannot be determined as to what percentage of the voice is similar between the questioned and the specimen voices as the same has not been quantified by him in the self-created auditory work sheets part of Ex.PW12/D1 to Ex.PW12/D2. From the mere perusal/examination of the spectrograms with naked eye, it is evident the spectrograms of the alleged questioned & specimen voices do not match at all. Further, it was required to mix unknown voices with the alleged specimen voices and non-doing of the same also renders the report as inadmissible as has been held by the Hon'ble Supreme Court in case titled as "Nilesh Dinkar Paradkar Vs. State of Maharashtra" 2011 (4) Supreme Court Cases 143 that "No attempt was made even to mix voices of B and appellant with some other unidentified voice - In such circumstances, voice identification evidence had little value".
78. It is further argued that CBI has mentioned the names of the alleged speakers in the forwarding letters Ex.PW12/B & Ex.PW12/C and the transcriptions sent with the exhibits with an only motive to get a favourable report as the same were suggestive in nature. Further it has been written "on the theory and practice of voice identification" published by National Research Council, Washington" that voice sample taken under different contexts has error rate as high as 52% and even Harry Hollein in his book has mentioned such errors as 30% and PW12 has admitted this fact qua the text mentioned in the Page No. 48 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) book written by Harry Hollein and showed ignorance about the research of Washington and this in itself shows that PW12 is not an expert and even refrains himself with the work done in the field of voice examination. This is contended that no credence can be given to the report Ex.PW12/A as CFSL of CBI is not notified under section 79-A of the I.T. Act. and even otherwise it is an inconclusive report, which states to be a probable opinion and in criminal foundation of law, no conviction can be based on probability. Further the report Ex.PW12/A has been given in a mechanical manner as CFSL, CBI is under the administrative control of CBI. Further, from the mere perusal of the testimony of PW-12 it is clear that he is not an expert as he has no qualification in linguistic and phonetic field and even does not possess qualification in voice examination field as is evident from the testimony of this witness who have no understanding or knowledge of the basic foundations & usage of the various technical requirements/terms used in voice examination and its implications in the field of voice comparison.
79. It is the case of the prosecution that the alleged transcription of Q-2 (D- 14A) Ex.PW9/H (Colly) consists of two speakers only but when the same was played in court, it contained the voice of a third person also and prosecution is silent in respect of the third speaker which shows that the alleged recordings is nothing except tempered, fabricated and manipulated, even it can be ascertained by this court by hearing the same.
80. On the aspect of acceptance and recovery, it is argued on behalf of accused no.2 that accused No.2 had neither accepted any bribe amount nor any recovery was affected from him rather than the role which is attributed to Page No. 49 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) accused Govind (A-2) is that he had facilitated and mediated as a negotiator in the alleged demand of bribe amount made by accused Megha Ram but the prosecution has miserably failed to bring on record any material to prove the same.
81. Further, on the aspect of conspiracy, it is argued on behalf of accused no.2 that none of the material witnesses have deposed against A-2 to establish his complicity in the crime rather all the material witnesses have specifically deposed that A-2 is a different person and had no role in the present case and even they have failed to identify A-2. It has come in evidence that Govind was very much present at PS Sangam Vihar and the CBI have failed to apprehend him and the same is evident from the deposition of PW-16 Surendra Prakash Gupta.
82. It is argued that the complainant PW7 has deposed that on 10.06.2019, when he went in the room of accused Megha Ram in PS Sangam Vihar, he couldn't find accused No.1 in his room and informed that he will not come on that day, accordingly, thereafter, PS Sangam Vihar, they directly went to PS Tigri to meet Govinda. The person accompanying him (Independent witness) stopped outside the Police Station and he alone went inside the PS, where the alleged Govinda talked with accused no.1 who further informed him that the expenses would be 15,000/-. This fact also belies the prosecution case and also the alleged recordings which contains voice of other person also. Further, it also disproves the facts of the prosecution case because as per the prosecution case, from PS Sangam Vihar, the verification team had returned to CBI office and from there, the team went to PS Tigri and met accused no.2, whereas the factum Page No. 50 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) of meeting with accused no.2 at PS Tigri has been specifically denied by PW-7, even PW-7 didn't identify accused no.2 to be the person whom he met at PS Tigri. It is further argued that PW-7 specifically denied of having any telephonic conversation or talk with Govinda at any occasion or having met Govinda on a day when he gave a complaint to CBI.
83. It is further argued that the prosecution case was registered on the basis of a complaint Ex.PW7/A but there is no whisper of allegation against A2 in the complaint which shows that there was no pre-meeting of mind or conspiracy. It is also alleged that no record of malkhana brought on record is reflecting the date of deposit of case property and Malkhana Incharge has not been examined in this regard.
84. It is specified by Ld. Defence Counsel for A2 that prosecution is required to prove the basic fundamental requirements of criminal law beyond all reasonable doubt, though, there is every presumption against the accused U/s 20 of the Act but the same is not absolute and accordingly, the accused is entitled to be acquitted in this case.
85. Ld. Counsel for accused no.2 has quoted certain citations in support of his arguments, same are as follows:
1. Ajay Gupta Vs. State through CBI
2. Nilesh Dinkar Paradkar Vs. State of Maharashtra, 2011(4) Supreme Court Cases 143
3. State of Rajasthan Vs. Mohan Lal, 2009 (2) RCR (Criminal)
4. State of Maharashtra Vs Dnyaneshwar Laxman Rao Wankhede, Page No. 51 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) 2009(4) C.C. Cases (SC) 31
5. State of Rajasthan Vs. Daulat Ram, AIR 1980 SC 1314
6. Ram Singh Vs. Col. Ram Singh, AIR 1986 SC 3 REBUTTAL BY THE CBI
86. Ld. PP for CBI has argued at length in rebuttal of the arguments addressed by both the Ld. Defence Counsels whereby clarifying many aspects which have been produced or contended on behalf of the accused persons.
87. I have heard the contentions of both the parties and perused the material available on record and heard the relevant conversations as well.
APPRECIATION OF EVIDENCE AS WELL AS ARGUMENTS
88. Before I look into the evidence and appreciate the arguments, it is appropriate to refer to the requirements to establish a case under Section 7 of the Act as well as Section 120-B of IPC under which the charges have been framed against the accused persons in the present case. Same are reproduced as under :-
Ingredients of Section 7 of PC Act, 1988 (after amendment in 2018) The ingredients of offence defined under Section 7 of the Act can be summarized in the following manner :-
1.1 The accused must be working as public servant. 1.2 The accused obtains or accepts or attempts to obtain an undue advantage from the other person directly or through a third party.
1.3 The undue advantage is accepted or obtained or attempted to be obtained, with the intention to perform or cause performance of public duty improperly or dishonestly, or to forbear or cause forbearance to perform such duty either by Page No. 52 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) himself or by another public servant; or 1.4 The undue advantage is accepted or obtained or attempted to be obtained, as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or 1.5 The accused performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty, in anticipation of or in consequence of accepting an undue advantage from any person directly or through a third party.
Ingredients of Section 120-B IPC
89. The ingredients of offence defined under Section 120-B IPC were explained by Supreme Court in "Lennart Schussler v. Director of Enforcement, (1970) 1 SCC 152" in following manner:-
"9. It now remains to be seen whether the alleged agreement which A-1 and A-2 arrived at in Stockholm in 1963 and again in Madras in 1965, would, if established, amount to a criminal conspiracy. The first of the offence defined in Section 120-A of the Penal Code which is itself punishable as a substantive offence is the very agreement between two or more persons to do or cause to be done an illegal act or a legal act by illegal means subject however to the proviso that where the agreement is not an agreement to commit an offence the agreement does not amount to a conspiracy unless it is followed up by an overt act done by one or more persons in pursuance of such an agreement. There must be a meeting of minds in the doing of the illegal act or the doing of a legal act by illegal means. If in the furtherance of the conspiracy certain persons are induced to do an unlawful act without the knowledge of the conspiracy or the plot they cannot be held to be conspirators, though they may be guilty of an offence pertaining to the specific unlawful act. The offence of conspiracy is complete when two or more conspirators have agreed to do or cause to be done an act which is itself an offence, in which case no overt act need be established. It is Page No. 53 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) also clear that an agreement to do an illegal act which amounts to a conspiracy will continue as long as the members of the conspiracy remain in agreement and as long as they are acting in accord and in furtherance of the object for which they entered into the agreement."
INVOLVEMENT OF PUBLIC SERVANT
90. As far as first requirement U/s 7 of Prevention of Corruption Act is concerned, there is no dispute to the fact that at the time of commission of alleged offence, accused no.1 was working as Sub Inspector in Delhi Police and was posted in police station Sangam Vihar while accused no.2 was posted as Assistant Sub Inspector posted at PS Tigri and in this manner, both the accused were public servants at the relevant time.
DEMAND
91. Next factor is element of demand. For the purpose of second requirement, prosecution has to establish that there was demand from the side of accused regarding a gratification and he/they accepted or obtained or agreed to accept or attempted to obtain such gratification from the complainant Sh.Trivendra Kumar Gupta, PW7. Defence has challenged the evidence of prosecution, to say that prosecution failed to prove demand for gratification. As per argument of defence, PW7 i.e. complainant and his brother Sh. Surendra Prakash Gupta i.e. PW16 were the only witnesses of the prosecution to prove demand as well as acceptance and that neither demand nor acceptance was proved because complainant and his brother, both had turned hostile and PW8 was neither reliable nor did he come up with concrete particulars of such demand. Per contra, it is argued by Ld. PP on behalf of CBI that in the absence of direct evidence, the circumstantial evidence has to be taken into account in Page No. 54 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) the present case as the circumstantial evidence is very much available to help the prosecution to prove the case beyond reasonable doubt, therefore, the contentions of the accused in this regard are baseless. In order to create a balance between the rival contentions, the court may look into guidelines set by Hon'ble Supreme Court in respect of demand.
92. In the case of "B. Jayaraj v State of A.P, 2014 (2) RCR (Cr.) 410 SC", Supreme Court made following observations: -
"In so far as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe."
93. It has been held by Hon'ble Apex Court in P. Satyanarayana Murthy Vs The District Inspector of Police, State of A.P. (2015) SCC 152, while placing reliance of B. Jayaraj (supra), that mere possession and recovery of currency notes from the accused without proof of demand would not establish an offence u/s 7 of the P.C. Act. This is because proof of demand is a sine qua non or an indispensable essentiality and a mandate for an offence U/s 7 of the Act.
94. Recently, the Hon'ble Supreme Court of India clarifying the relevant provision of law U/s 7 of P.C. Act in Neeraj Dutta Vs State (Government of GCT of Delhi) (2023) 4 Supreme Court Cases 731 held that:
"88. What emerges from the discussion is summarized as under:
88.1. (a) Proof of demand and acceptance of illegal Page No. 55 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) 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 accused public servant under Sections 7 and 13(1) (d)(i) and
(ii) of the Act.
88.2. (b) In order to bring home the guilt of accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
88.3. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
88.4. (d) ................
88.5. (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 stand. 88.6. (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 order of acquittal of the accused public servant.
88.7. (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 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".
Page No. 56 of 117 (Niyay Bindu)
Special Judge (PC Act) CBI-13,
Rouse Avenue District Court, New Delhi
CNR No. DLCT11-001884-2019
CC No. 422/2019
RC-DAI-2019-A-0020-CBI-ACB-ND
U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018)
95. It is specifically laid down by the Hon'ble Apex Court that :
"In the absence of evidence of the complainant (direct/primary, oral/documentary evidence), it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section (13)(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution."
96. The above mentioned observations of Supreme Court, make it clear that a case under Section 7 of the Act can lie even in absence of evidence of demand, if there is evidence to show that accused voluntarily accepted the money knowing it to be a bribe. In this respect, presumption under Section 20 of the Act also comes into the picture, according to which on proving the factum of gratification being accepted or obtained by the accused public servant, it shall be presumed that he accepted or obtained it as a motive or reward as mentioned in Section 7 of the Act. Thus, in such situation the onus shifts upon the accused to justify the purpose of receiving the gratification. The gratification/undue advantage would be something, which is not a part of legal remuneration for the public servant.
97. In the present case, the complainant and his brother who are the star witnesses of the prosecution had turned hostile which has given an opportunity to the defence to challenge the evidence of prosecution, so as to say that prosecution failed to prove demand for gratification. Thus, in the given circumstances whereby taking enlightenment from the above mentioned guidelines of Hon'ble Apex Court, we have to look into the circumstantial evidence viz. para no.88.3. (c) as well as para no. 88.6. (f). In the backdrop of such legal position, the evidence qua the offences allegedly committed by the Page No. 57 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) accused persons may also be taken into account.
98. So far as demand is concerned, there is no doubt that complainant i.e. PW7 and his brother PW16 were the prime witnesses of prosecution to prove such fact. According to defence, neither demand nor acceptance were proved because complainant had turned hostile and PW8 Sh. Deepak Kumar (shadow witness) was neither reliable nor did he come up with concrete particulars of such demand. Ld. Defence Counsels have also emphasized that although, PW8 was shadow witness, who was ordered to accompany and overhear his conversation with the suspect officer/officers during the verification proceedings as well as the trap proceedings, but he was placed on such a distance that neither he could overhear nor watch the incidents which actually took place inside the respective Police Stations or inside the cabin of the accused no.1 and accordingly, the prosecution has no witness of the spot, benefit of which shall be given to the accused persons. On the contrary, CBI has submitted that even after resiling of these witnesses from their previous testimony, they are still relevant and considerable to prove the case. Ld. PP for CBI has stated that it has been held in State of UP Vs. Zakaullah (1998 Crl.L.J.SC 863) that the evidence of TLO can be relied upon without corroboration and cannot be discarded being interested witness and the same also been laid down in Hazari Lal Vs. Delhi Administration (1980 Crl.L.J.580). Ld. PP has also referred to Vinod Kumar Vs. State of Punjab (2015 (2) Crl.L.J. SC 1442) wherein it was held that trap case does not collapse merely because complainant has turned hostile, if an accused has failed to establish his defence and rebut the presumption. It is further submitted by the Ld. PP for CBI that PW8 could atleast watch the activities from distance and Page No. 58 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) also that the recorded conversations have successfully corroborated the same.
99. In order to settle these rival contentions, we may be guided by the precedents in the following manner:
In State of UP vs Zakaullah AIR 1998 SUPREME COURT 1474, the Hon'ble Supreme Court observed that -
"........merely because a witness has been gained over or has become hostile for some other reason; the trustworthy and reliable testimony of other witnesses cannot be thrown to woods nor the same will be fatal for the case of prosecution".
100. The above mentioned observation of Hon'ble Supreme Court also refutes the arguments of defence that the prosecution has miserably failed to prove the factum of demand as neither the material witnesses have supported the case of prosecution nor the independent witness PW-8 could bring out material things to establish the same during the verification and trap proceedings.
101. In Hazari Lal vs Delhi Administration (1980(2) SCR 1053), wherein one of the independent witnesses could not be examined as he was not mentally fit for the said purpose, still the accused was convicted wherein it was observed by the Hon'ble Supreme Court:
"......We do wish to say that there is no rule of prudence which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence in corroboration. In the facts and circumstances of a particular case a Court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally, in the facts and circumstances of another case the Court may unhesitatingly Page No. 59 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) accept the evidence of such an officer. It is all a matter of appreciation of evidence and on such matters there can be no hard and fast rule, nor can there be any precedential guidance".
102. In Bhagwan Singh Vs. State of Haryana, AIR 1976 SC 202, the Hon'ble Supreme Court held that merely because the court gives permission to prosecutor to examine his own witness describing him as hostile, does not completely efface his evidence. The evidence remains admissible in trial and there is no legal bar to base conviction upon the testimony of such a witness.
103. Previously in Vijay Kumar Vs. State of Tamil Nadu (2021) 3 SCC 687, the Hon'ble Apex Court guided that, "in absence of direct evidence the demand and/or acceptance can always be proved by other evidence such as circumstantial evidence".
104. In State of UP Vs. Anil Singh 1988 SC 1998, Supreme Court has held as under:-
"With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. It is also experienced that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses."
Page No. 60 of 117 (Niyay Bindu)
Special Judge (PC Act) CBI-13,
Rouse Avenue District Court, New Delhi
CNR No. DLCT11-001884-2019
CC No. 422/2019
RC-DAI-2019-A-0020-CBI-ACB-ND
U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018)
105. It is laid down by Hon'ble Apex Court in the recent judgment, Neeraj Dutta (supra) referring to Indian Evidence Act, 1872 section 154-
"the fact that a witness has been declared "hostile" does not result in an automatic rejection of his evidence. Even, the evidence of a "hostile witness" if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a "hostile witness" testimony if corroborated by other reliable evidence."
106. With such approach, I will venture into the evidence related to the allegations of demand as the first material aspect of the case. Although both the accused have targeted the complaint on the basis of which the present case was registered as inadmissible but the prosecution has argued that the most important aspect of the case is that the case itself was registered on the basis of complaint Ex.PW7/A which has been proved on record by the complainant PW7 (though turned hostile) and the same was also corroborated by the other witnesses on record. Although, both accused are trying to establish that the complaint which was actually written by the complainant initially and which he took to the CBI office was not taken by CBI, rather he was asked to write a fresh complaint and the complaint on the basis of which FIR was registered, was dictated by CBI officials and was written down as per the instructions of CBI.
107. On the other hand, when the sequence of incidents is looked into, then it is revealed that when the complainant narrated his story to the CBI Officer while handing over the pre-written complaint, CBI officer told him that he was supposed to give details of the police official against whom he has narrated his Page No. 61 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) grievance and asked the complainant to write a fresh complaint, then and there. Now the most probable reason for asking the complainant to write a fresh complaint by the CBI officer may be that he sensed a lack of consistency between the narration orally given by the complainant and the contents of his written complaint as he had not given the official details of the accused person because the accused was acting in his official capacity and demanded bribe in such capacity only. At this instance, another question arises that on one hand, accused no.1 is contending that complainant had filed the CBI complaint only to take a vengeance upon accused no.1 as the said accused did neither take any action over the complaint given by the complainant at PS Sangam Vihar against his relative/cousin, nor a counter FIR was registered on the basis of his said complaint. Simultaneously, on the other hand, accused is contending that the contents of the complaint were dictated by CBI officer. The scrutiny of these contentions inspires our attention to the fact that there is such a great contradiction in these two contentions that both of these cannot be even juxtaposed with each other. Meaning thereby, that if the contention of vengeance or personal grudges of the complainant against accused no.1 is taken as true, then complainant must be enough motivated and oriented in his purpose and be very clear and doubtless as to what contents he had to put into his complaint so that those contents be sufficient to implicate the said accused and hence, the complainant be successful in taking the alleged vengeance upon the accused. So far as the allegations of collusion and being influenced, mentioned by the present complainant in his application moved before the concerned court U/s 156 (3) of Cr.PC against accused no.1 are concerned, this is considerable that sometimes, the applicant/complainant being aggrieved by some police official/IO of the concerned matter, usually put such allegations upon the IO Page No. 62 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) only with the motive to draw the attention and sympathy of the court towards the aggrieved person. Besides the same, when as per the case of prosecution as well as the contents of the complaint Ex.PW7/A, the accused no.1 was demanding bribe from the complainant whereby threatening that in case, the demand is not fulfilled, the brother of the complainant shall be arrested by accused no.1, then the contention of the accused in respect of vengeance by the complainant upon accused no.1 is having no basis to stand upon. In this context, by any stretch of imagination, it cannot be presumed that the contents of the complaint were dictated by CBI officers, rather, if it is presumed that CBI officers dictated the said contents, then first question arises as to how the CBI officials came to know about the detailed grievances of the complainant against the accused and if it is so, then what happened to the personal grudges and vengeance of the complainant against accused no.1. Second question instantly comes into mind that when the contents of complaint were dictated by the CBI official, the same would have been drafted in a better manner. It is required to mention over here that complainant was neither a person having higher degrees of elementary education, nor any extraordinary skill is shown in his response to the questions posed before him during cross-examination. The crafting skill of this witness can be also ascertain from the complaint given by him to CBI i.e. Ex.PW7/A. We find the same to be in simple language and made in a very rustic manner. This fact corroborates the deposition of the complainant wherein he has specifically deposed that he wrote the complaint himself in his own hand and signed the same which gives much force to the case of prosecution and the contentions raised by the accused no.1 in this regard (vide para no. 56 & 69 of this order) are rendered as baseless. It is pertinent to mention herein that the accused have taken a stand that the original complaint which was taken by Page No. 63 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) complainant PW7 to the CBI office was torn off which was regarding accused Megha Ram for not registering FIR on the complaint of the complainant but if the said contention is taken to be true, then, as a matter of fact, no such conversation regarding non registration of the FIR took place between the complainant and the accused persons during the whole verification and trap proceedings.
108. Ld. Defence Counsel has raised an issue that in his deposition, the complainant has submitted that although he visited the CBI office for the first time in respect of his grievances on 08.06.2019 and next day was a holiday so he was instructed by CBI officer to come again on 10.06.2019 and all the documents have been prepared on 10.06.2019 only and hence there is a gap in filing the complaint on 08.06.2019 and remaining proceedings on 10.06.2019. One more contention is being raised that all the documents pertaining to the various proceedings were prepared ante-dated and anti-timed and hence, inadmissible in evidence. This contention has been clarified on behalf of CBI that except the deposition of the complainant as PW7, all the other prosecution witnesses including the brother of the complainant i.e. PW16 have confirmed that the verification proceedings was conducted on 08.06.2019 itself and PW10 C. M. S. Negi has also deposed that after verification of the contents of the complaint, as the verification proceedings continued late night on 08.06.2019, 09.06.2019 being a holiday, the report of verification was presented to the SP on 10.06.2019 and the FIR was registered on 10.06.2019 on account of which the trap proceedings was fixed for 10.06.2019. Besides the same, the deposition of both the independent witnesses, Trap Laying Officer and Investigating Page No. 64 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) Officer along with the recorded conversations and CDRs have also established that these objections are baseless. These submissions made on behalf of the prosecution are sufficient to refute the contention raised (vide para no.55 & 67 of this order) on behalf of the accused.
109. At this juncture, the contention of accused no.2 can also be considered that the complainant is referring in his evidence as PW7 to one Govinda whose profession he was not knowing and that is why the said Govinda may not be accused no.2 but he must be referring to some third person as even the witnesses failed to identify Govind. In view of this contention, a new question arises as to when Govinda was some other person who was negotiating with the complainant, then how come the mobile phone used by accused no. 2 was recovered from his possession and how come, the location and call details of his mobile number is reflecting in the CDR i.e. Ex.PW1/J (colly.). Otherwise also, this contention raised on behalf of accused no.2 seems to be unacceptable as there is not much difference between "Govinda and Govind" and more specifically when the complainant and his brother both have turned hostile, they can not be expected to identify Govind or his voice as they have actually not done (not identified). With this, the argument raised by Ld. Counsel for accused no.2 (as mentioned in para no.73 of this order), in respect of the identity of Govind/accused no.2, stands refuted.
110. Ld. Defence Counsel for accused no.2 has further argued that neither A2 is named in the complaint nor there is any allegation against him. Although A2 is not named in the complaint i.e.,PW7/A but his name and role has figured out during the verification proceedings. Secondly, all the recorded conversations Page No. 65 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) reveal that at every stage, accused no.2 is playing pivotal role in the whole transaction, rather he is acting as a negotiator between the complainant and accused no.1 in order to maintain a co-ordination between them. Now, if we revert back to the contention of accused no.1 regarding the personal grudges and motif of the complainant against accused no.1, then, nothing helps out to explain as to what made the accused no.2 trapped in the same transaction. With this, the argument raised by Ld. Counsel for accused no.2 (as mentioned in para nos.72 & 83 of this order) stands refuted.
111. As already discussed, when the prime witnesses turned hostile or are not available otherwise, then, the court has to look into the circumstantial evidence. It has been discussed above that even if any witness turns hostile, the part of his testimony which supports the case of the prosecution can be referred to as corroborative evidence in corroboration of the circumstantial evidence. The submission of CBI in respect of accused no.2 that the mobile which was actually used by accused no.2 in his conversations with the complainant or accused no.1 was recovered from the possession of accused no.2 himself is acceptable and this fact was proved on record in the evidence of PW17 Insp. S. P. Singh. In addition to the same, it is also specified by Ld. PP for CBI that from the CDR's of the mobile numbers of the complainant, accused no.1 and accused no.2, the location of these mobiles is established and this fact is confirmed that the above mentioned mobile phone/number was actually being used in the conversations which took place between the three persons and which are being recorded and played during the evidence of different witnesses. As a matter of fact, the CDRs has already been proved on record by PW1 Sh. Pawan Singh, PW3 Sh. Surender Kumar and PW4 Sh. Kamal Kumar and even no plausible Page No. 66 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) objection has been raised by the defence in respect of the authenticity of the said record of CDRs. In light of these facts, much help can be taken in the present case from the recorded conversations between the parties which reflect the intent of each of the speaker as well as the sense in which they are conversing with each other. With this, the argument raised by Ld. Counsel for accused no.2 (as mentioned in para no.72 & 80 of this order) stands refuted.
112. At this stage, this is also considerable that the independent witness Deepak Kumar (PW8) as well as the Trap Laying Officer Insp. S. P. Singh (PW17) have deposed about the narration of the complainant which he gave on both the occasions, firstly, when he came out after talking to accused no.1 at PS Sangam Vihar and secondly, after talking to accused no.2 Govind and coming out from the PS Tigri as the verification team visited both the Police Stations, the verification had to be done in respect of both the accused and with the help of the said testimonies of both the witnesses of the verification proceedings, the allegations of the prosecution are being corroborated. The testimony of Insp. C. M. S. Negi (PW10) in respect of the incidents which took place inside the PS Sangam Vihar as well as inside the PS Tigri, the complainant narrated about the same. It is deposed by PW10 that "complainant narrated that he met SI Megha Ram in the first room on the right side of the premises of the PS and spoke to him about his demand of Rs.15,000/-. He also further narrated that he requested SI Megha Ram to lower his demand as Rs.15,000/- was too much, on which SI Megha Ram had asked him to arrange whatever, he deems fit. The complainant also further narrated that on his further asking for lowering the demand, SI Megha Ram advised him to speak ASI Govind about the same and also to meet him with ASI Govind". The witness further deposed that in respect of visit of Page No. 67 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) complainant to Govind, complainant narrated that "on seeing the complainant and his brother, ASI Govind stood and they then spoke to him about the demand of SI Megha Ram. The complainant further narrated that ASI Govind then spoke to SI Megha Ram over phone and spoke to him about the future course of action in the matter. The complainant also further narrated that after having spoken to SI Megha Ram, ASI Govind told them that he had confirmed from SI Megha Ram that the demand was settled at Rs.15,000/-. He also advised the complainant and his brother to meet SI Megha Ram immediately".
113. This testimony is supporting the case of the prosecution, however, Ld. Defence Counsels have raised a strong objection on the same on the ground of hearsay evidence. Although, the said fact of conversation with the accused persons could have been revealed by the complainant or his brother but when both of them have turned hostile, then, the deposition of the Verification Officer in respect of the narration of the incident given by complainant, becomes relevant and admissible in the terms of Section 6 of Indian Evidence Act, 1872 and proves that the accused persons have actually talked about the transaction in respect of Rs.15,000/- and the same amounts to demand. In order to refute the objection of defence being hearsay evidence, we have to take into account the nature and scope of Section 6 of Indian Evidence Act as mentioned above and the same is reproduced herein:
"6. Relevancy of facts forming part of same transaction. Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant whether they occurred at the same time and place or at different times and places.
114. The above said provision is an exception to the hearsay rule which Page No. 68 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) pertains to the Doctrine of Res Gestae. Res Gestae has been derived from Latin words meaning "things done". It is mainly an exception to the hearsay rule of evidence which refers to "an assertion other than one made by a person while giving oral evidence is inadmissible". In the context of The Indian Evidence Act, 1872, as per the stated words under section 6, facts which though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. This comes under the ambit of res gestae. Mainly it is the test of continuity of actions and community of purpose that make admissible in nature.
115. Res Gestae being admissible as an exception to the hearsay rule can be stated as being a hearsay statement, relating to an extraordinary evidence or condition, that was made while the witness was still under the effect and stress of excitement caused by that event or condition. The reasoning provided behind such statement is that the witness while providing such exceptional hearsay statement lacks reflective capacity due to the event being so starting, and he is only able to speak the truth.
116. It is laid down in Krishan Kumar Malik Vs State of Haryana AIR 2011 SC 2877, that "for bringing hearsay evidence in the ambit of section 6, what is required to be established is that it must almost contemporaneous with the acts and there could not be an interval which would allow fabrication. In other words, the statements said to be admitted as forming part of res gestae must have been contemporaneously with the act or immediately thereafter".
117. If we look into the deposition of above mentioned prosecution witness, Page No. 69 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) from the perspective of Doctrine of Res Gestae as discussed above, the same becomes very much admissible and reliable. Accordingly, the arguments raised on behalf of both the accused persons (as mentioned in para nos.58, 72 & 80) stand refuted.
118. After considering the oral deposition of the witnesses, we are having the corroborative evidence of recorded conversations as well. It is already pointed out by the prosecution witnesses that a new memory card was used for trap proceedings.
119. At this stage, the strong arguments addressed on behalf of Ld. Defence Counsels in respect of the non authenticity and inadmissibility of the recorded conversations are required to be considered. Ld. Defence Counsels have submitted that the same cannot be relied upon by the prosecution as the voice examination is not a perfect science and same is only a probable evidence. The first issue for decision is basically a legal issue, so as to decide that in absence of notification u/s 79-A of Information Technology Act, whether report given by an expert from CFSL, New Delhi regarding examination of electronic evidence, would be admissible in evidence?
120. In order to look for an answer to aforesaid legal issue, we may refer to the relevant law provisions in this regard. Section 79-A of I.T. Act was enacted in the year 2000, which came into force w.e.f. 17.10.2000. This provision provides that the Central Government may for the purposes of providing expert opinion on electronic form evidence, specify, by notification, any department, body or agency as an examiner of electronic evidence. Ld. Defence Counsel for Page No. 70 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) A-1 submitted that the term 'may' used in the aforesaid provision should be treated as 'shall' and hence, notification is mandatory for an agency to be eligible to examine electronic evidence.
121. The provision u/s 79-A I.T. Act or provision u/s 45 A Evidence Act do not say that in absence of such notification, opinion based on scientific examination given by a person well versed or skilled in such science, cannot be admissible in evidence. Unless such bar is created in law, it cannot be read as an extension of section 79-A of I.T. Act that the report given by any other body/lab shall be inadmissible in evidence. Otherwise also, it is well settled proposition that a hyper technical approach should not be adopted while interpreting a report of an expert unless the same results into the defeat of the ends of justice. Therefore, I do not find any occasion to go into the question of intention of legislature while using the term 'may' in Section 79-A.
122. Madras High Court in the case of K. Ramajayam v. Inspector of Police, Chennai reported in 2016 Cr.LJ 1542, facing similar kind of situation observed that-
"It is axiomatic that the opinion of an expert, which is relevant under Section 45 of the Indian Evidence Act, 1872, when accepted by the Court graduates into the opinion of the Court. The Central Government has not yet issued notification under Section 79A of the Information Technology Act, 2000 on account of which Section 45A of the Indian Evidence Act, 1872 remains mute. Therefore, the methods evolved by Kala (PW-23) and Pushparani (PW-24), Scientific Officers of the Tamil Nadu Forensic Sciences Department to analyze and give their opinions on the electronic data, are correct and cannot be faulted."
Page No. 71 of 117 (Niyay Bindu)
Special Judge (PC Act) CBI-13,
Rouse Avenue District Court, New Delhi
CNR No. DLCT11-001884-2019
CC No. 422/2019
RC-DAI-2019-A-0020-CBI-ACB-ND
U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018)
123. It is worth to mention here that the Information Technology Act was enacted in the year 2000, after much advancement in the use of electronic data, transactions being carried out by means of electronic data and other means of electronic communication. It was so enacted to provide safeguards necessary for legal recognition to such transactions. However, recorded conversations were being produced during criminal trial of a case since long and much prior to 2000 and same were duly relied upon by the courts, subject to certain precautionary measures, for the purpose of giving decision in such case.
124. It is also worth to be seen that section 293 Cr.P.C. refers to certain government scientific experts and provides that report of such experts may be used as evidence even without calling that expert before the court. Thus, report of these experts were given special status to become admissible without formally calling such expert to prove the same. In the year 2005, legislature added one more category in section 293 (4) Cr.P.C. to include any other government scientific expert specified by notification by the Central Government for this purpose. This addition took effect from 23.06.2006. Thereafter, legislature again came up with section 45-A Evidence Act, to say that opinion of examiner of electronic evidence referred in Section 79-A of I.T. Act shall be a relevant fact in respect of any information stored in any computer resource or any other electronic devise. Thus, it can be seen that legislature had been taking steps one after another for the purpose of due legal recognition of electronic evidence in formal manner. Thus, section 45 of Evidence Act in itself is enabling provision to accept opinion of such expert in the court proceedings. Obviously, the courts over the passage of time, have evolved certain precautionary measures for the purpose of appreciation of any such opinion.
Page No. 72 of 117 (Niyay Bindu)
Special Judge (PC Act) CBI-13,
Rouse Avenue District Court, New Delhi
CNR No. DLCT11-001884-2019
CC No. 422/2019
RC-DAI-2019-A-0020-CBI-ACB-ND
U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) Their opinion/reports are evaluated on merits, rather than being rejected on the grounds that they are not notified experts. In this manner, the arguments as addressed by both Ld. Defence Counsels (vide para nos.59, 75, 77 & 78 respectively of this order) are being dealt with.
125. Now, I shall deal with the question of credibility of the evidence of recorded conversations. As already mentioned herein above, Ld. Defence Counsel disputed that all these recordings are likely to be tampered and fabricated recordings because it is not established by PW12 that from the date of receiving of the exhibits by him till the date of preparation of his report Ex.PW12/A (colly.), the said exhibits were lying sealed in his possession and during his cross-examination, he informed the court that his assistant Ms. Vimmi Bhatia has also assisted him in his examination of the said exhibits and admittedly the name of Ms. Vimmi Bhatia has nowhere been mentioned in the report Ex.PW12/A (colly.). So far as the credibility is concerned, the witness has submitted in his report as well as in his examination in chief before the court that he has carefully examined the questioned and specimen voices and given his report accordingly and the said report is being duly signed by him then no question arises in respect of tampering of the same even if the exhibits have been dealt with by an assistant of the expert witness because after all, the accountability with respect to the said tampering lies with the expert himself. Further, the witness has clarified during his cross-examination that all the exhibits were kept by him in lock and key and also that the assistance by Ms. Vimmi Bhatia was provided to him under his direction and in his very presence only, therefore, no presumption falls against the expert only for the reason of taking assistance or not mentioning the name of his assistant in the report.
Page No. 73 of 117 (Niyay Bindu)
Special Judge (PC Act) CBI-13,
Rouse Avenue District Court, New Delhi
CNR No. DLCT11-001884-2019
CC No. 422/2019
RC-DAI-2019-A-0020-CBI-ACB-ND
U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) Otherwise also, it is a settled principal of law that if an objection is being raised by one person against the admissibility of a piece of evidence, he has to give some admissible argument or proof in this regard. In absence of the same, a presumption U/s 80 of The Indian Evidence Act, 1872, falls in favour of the report Ex.PW12/A (colly.) as when the same has been produced before the court, purporting to be a record of the evidence given by a witness to take such evidence, the court shall presume the document to be genuine when the same is signed by the person/official preparing the said document. With this, the arguments addressed by Ld. Defence Counsels (vide para nos.59 & 78 of this order) are being dealt with.
126. Ld. Defence Counsel has raised strong objection in respect of the qualification of the expert witness PW12. So far as the qualification of the witness is concerned, he has submitted in his examination in chief that he is M.Sc. (Physics), M.Phil (Physics) and also holding certificate course in Forensic Science along with the one month training at Germany. Moreover, he has stated that he has been examined in more than 570 courts in different cases and he has examined the voice of more than 1000 persons in different cases relating to voice examination, therefore, the qualification of the witness cannot be questioned by the accused because in that case, his report in all the concerned cases shall become inadmissible. Besides the same, it has also been specified by the witness that he is having about 28 years experience in the field of forensic physics of crime exhibits and forensic voice examination and hence, the witness cannot be held to be disqualified for the purpose of giving his report as the experience of such a long period must be given more weightage than any specific degree.
Page No. 74 of 117 (Niyay Bindu)
Special Judge (PC Act) CBI-13,
Rouse Avenue District Court, New Delhi
CNR No. DLCT11-001884-2019
CC No. 422/2019
RC-DAI-2019-A-0020-CBI-ACB-ND
U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018)
127. Ld. Defence Counsel has raised a strong objection in respect of the auditory sheets and spectrograms whereby submitting that the spectrograms of question and specimen voices do not match in terms of its intonation pattern, formants and general characteristics and that the column in the formants in all the spectrograms are filled by assistant Ms. Vimmi Bhatia who is not competent to conduct the test or deal with the exhibits. Ld. Counsel has also pointed out to the cross-examination of PW12 while arguing that the said witness has read two famous books in the field of voice identification, written by Harry Hollein and other book in respect of basic principals and guidelines, authored by Harry Hollein and Oskar Tosi which are being followed in conducting voice examination are not being followed by the said expert relied upon by the prosecution.
128. So far as the auditory worksheet and spectrograms are concerned, it is clarified by the witness PW12 Sh. Deepak Kumar Tanwar that he has examined the contents of Q1 & Q2 containing various conversations and compared the same with the various specimen voices of the speakers. He has further specified that there is every possibility of changes in intonation patterns of the voice of a person. During his cross-examination, he has stated that in the auditory sheets, he has filled and observed 10 linguistic and phonetic parameters during auditory analysis which are matching by more than 95% similarities. During his deposition before the court, PW12 has specified that he adopted prevalent scientific instrument and method of audiography and spectrography. He has further clarified that the above mentioned parameters were being developed/created in their lab by their seniors who were having a Page No. 75 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) long experience of more than 30 years in this field after consulting a lot many books, research books and other related material and different types of training. Now if the witness could not specify the name of any such particular book, the argument of Ld. Defence Counsel cannot sustain that the parameters in the auditory sheets are being filled without conducting any comparison or examination. As per the record, he conducted two sets of examinations before giving his opinion. First of all, he conducted auditory analysis and then examined spectrograms of selected audio files, before reaching to a conclusion. Accordingly, it can be concluded that his opinion/report is based on scientific examination, rather than personal opinion, therefore, same would be admissible in evidence. So far as the above mentioned books as specified by the Ld. Counsel are concerned, although the expert witness has not denied the authenticity of the same but even if, the guidelines given in the said books are being universally followed, then also, the same is not the law of the land so that in case, if any document is prepared in its non-compliance, the same shall be rendered as unconstitutional or inadmissible within the jurisdiction of the said land. Accordingly, the arguments addressed by Ld. Defence Counsels (vide para nos.59, 70, 76 & 78 of this order) are being dealt with.
129. One more objection has been raised by the Ld. Counsel for accused no.1 that expert witness has not examined the DVR which was the original recording device used for recording Q1 and Q2 etc. and therefore, the findings of the said expert in the report cannot be relied upon. In this regard, Ld. PP for CBI has specified that the non-examination of DVR cannot support the defence for the reason that the prosecution witnesses have clarified about the use of DVR and neither tampering with the same is an issue herein, nor the compatibility of Page No. 76 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) DVR for the use of relevant memory cards is being disputed. Rather, PW10 has deposed that a new DVR was arranged wherein a sealed memory card was inserted and after ascertaining the blankness of the memory card, the DVR and memory card were taken up for use in the proceedings and this fact has been corroborated by PW8 (independent witness Deepak) and PW16 ( brother of the complainant namely Surendra Prakash Gupta). It is also pointed out by Ld. PP for CBI that Ld. Defence Counsels have not cross-examined the concerned witness on this point. With this clarification of the prosecution, the objection of defence (as mentioned in para no.65 of this order) stands refuted.
130. This is also notable that when the memory cards were duly sealed without any tampering, then there remained no scope to make any manipulation in the same subsequently. It is further established with the fact that when the parcel of memory card Q1 was produced before the court in duly sealed condition during examination of PW7 (complainant), it was bearing seal of CFSL CBI NEW DELHI and the said witness also identified his signatures with date on all the three articles including the brown envelope, main packet and plastic cover of memory card. The other prosecution witnesses who were examined subsequently also corroborated this fact and identified their signatures on the said articles. These circumstances signify that the memory card Q1 remained in sealed condition till the same was produced before the court, therefore, no question arises in respect of manipulation in the contents of the memory card. Moreover, the factum of preparation of the mentioned transcript of the recorded conversations has also been proved on record by various prosecution witnesses.
Page No. 77 of 117 (Niyay Bindu)
Special Judge (PC Act) CBI-13,
Rouse Avenue District Court, New Delhi
CNR No. DLCT11-001884-2019
CC No. 422/2019
RC-DAI-2019-A-0020-CBI-ACB-ND
U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018)
131. So far as the argument of defence in respect of the electronic evidence as 'probable' evidence is concerned, it is hereby clarified that it is not only the electronic evidence or the report of the expert witness, on the basis of which, the present court is going to draw its conclusion as there is other corroborative material also available on record along with the testimonies of various prosecution witnesses which shall be discussed in the upcoming part of this order. Admittedly, the corroborative value of the electronic evidence and the deposition of the expert witness in respect of the said witness is not being disputed by the defence. In addition to the same, on the basis of the prosecution evidence, it has already proved on record that the electronic evidence, used during the investigation proceedings of the present case, has remained intact and any chance of tampering of the same is being ruled out. With this, when the court is having a number of prosecution evidences to corroborate the report of scientific expert or the contents of electronic evidence available, the arguments of Ld. Defence Counsels to the effect that the accused in criminal trial cannot be convicted on the basis of probabilities become ineffective and the observations of Hon'ble High Court of Delhi in Ajay Gupta (supra) as relied upon by Ld. Defence Counsels are also being rendered as not applicable in the present case. With this, the arguments addressed by Ld. Defence Counsels (vide para nos.59, 75, 76 & 78 of this order) are being dealt with.
RECORDED CONVERSATIONS:-
132. As already observed herein above, prosecution has come up with evidence in respect of demand in the recorded conversations. So far as the articles used in the recorded conversations are concerned, the record shows that they have been intact.
Page No. 78 of 117 (Niyay Bindu)
Special Judge (PC Act) CBI-13,
Rouse Avenue District Court, New Delhi
CNR No. DLCT11-001884-2019
CC No. 422/2019
RC-DAI-2019-A-0020-CBI-ACB-ND
U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018)
133. I had personally heard recordings in all the memory cards i.e. Q1 & Q2. Some extracts are reproduced herein for reference:
Complainant Bhai ko le aaunga. Sir kal baat karwai thi maine Anil Bhai Sahab ki... toh aap ne kaha tha mera kar dena. Maine kaha tha chalo kar dunga.
Accused No.1 Main vohi to keh raha hun. Bhai ko le aao phir.
Complainant Jo aap kahoge. Vo kar dunga.
Accused No.1 Main vo hi to keh raha hun, arrest nahin karunga, sign
ko karwane padenge
Complainant Karwa lena.
Accused no.1 Main keh raha hun na kuchh nahin karunga.
Complainant Theek hai. Acchha ek cheez aur. Vo pandraha hazar
ki keh rahe the woh zayada hain, kuchh kam kar lo.
SI Megha Ram Yaar main ye keh raha hun. Aap le aao, sign karwa do
jo aapki marzi ho vo kar dena......
Complainant Woh to sir theek hai. Ab yahan koi nahin hai. Bus
aap aur main hun. Mujhe bata do ki kya sewa
karni hai. Kyonki main......
Accused No.1 Yaar ek baar aana padega.... bina aaye aap ye socho
na ki main sewa kar dun aur ye cheej khatam ho
jaye toh ye nahin hoga.....
Complainant Kam se kam kya dena pad jayega.
Accused No.1 Mujhe kuchh nahin pata is cheej ka, theek hai. Aap
Govind ji se baat kar lena..... Govind ji ke saath
mein aa jana. Jao....
.............................
Page No. 79 of 117 (Niyay Bindu)
Special Judge (PC Act) CBI-13,
Rouse Avenue District Court, New Delhi
CNR No. DLCT11-001884-2019
CC No. 422/2019
RC-DAI-2019-A-0020-CBI-ACB-ND
U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) Accused No.1 ......Aap Govind ji ko le kar aaye the mere pass mein, main unki baat maanta hun. Theek hai.
Complainant Theek hai. Jaise hi baat ho jayegi. Govind bhai sahab se, main leke aa jaunga.
SI Mega Ram Baat nahin hoyegi, baat karni hai. ....................
134. During the said conversation, when the complainant (PW7) called his brother (PW16) on his mobile on the instructions of accused no.1, accused no.1 himself talked to his brother whereby asking him as to in how much time, he could come to the Police Station and PW16 replied that he shall be there in 10- 15 minutes, then accused no.1 responded in this manner:
Accused No.1 Thane aa jao nahin to aap ke bhai ko arrest kar raha hun.
Thane aa jao aap.
135. Thereafter, accused no.1 continued his conversation with the complainant:
Accused no.1 Jab mere upar-----kiska vishwas nahin hai.
Complainant Pura vishwas hai, bhai sahab.
Accused no.1 Kya pata, kab kahan marwa do.
Complainant Aisi baat lag rahi hai aapko.
Accused no.1 Bilkul lag rahi hai, jo aadmi pachaas Vakilon ki salah leta
hai, jab maine keh dia ki kuchh nahin karna.
.......................
Complainant Sir kal 12 baje tak ka time--
Page No. 80 of 117 (Niyay Bindu)
Special Judge (PC Act) CBI-13,
Rouse Avenue District Court, New Delhi
CNR No. DLCT11-001884-2019
CC No. 422/2019
RC-DAI-2019-A-0020-CBI-ACB-ND
U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) Accused no.1 Govind ji se jaa ke milo yaar.
Complainant mil le raha hun Sir. Accused no.1 Jao. Complainant Theek hai ja raha hun, Sir.
136. The above conversation was recorded during the verification proceedings in the DVR lying in the pocket of the complainant and from the highlighted portions of the conversation, it is very much apparent that in various ways, accused no.1 is insisting upon the complainant to talk to Govind in respect of the deal which has not been directly referred to and he has also insisted the complainant to call his brother to get certain papers signed and even he has said that he shall get them signed certain blank documents but he has to come again after meeting Govind. The aforesaid conversation shows that accused no.1 was aware of the ongoing transaction with the complainant. It must be borne in mind that there cannot be a fixed formula or manner to make demand of bribe.
Demand of bribe may not always be in very specific form. Therefore, the court has to raise inference on the basis of context of conversations between parties and the kind of response being given by the accused.
137. At this stage, an inference can easily be drawn that with the help of certain twisted wordings, accused no.1 is trying to make the complainant do certain things and even he is pressurizing his brother while talking to him on mobile phone to reach the PS where accused no.1 is sitting at the earliest whereby saying that if he (brother of the complainant, PW16) does not follow him (accused no.1) then, he shall arrest his brother (complainant, PW7) which Page No. 81 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) shows that accused no.1 is trying to dominate the complainant and his brother so that they should follow his instructions. Accordingly, a presumption falls in favour of the prosecution that when in the recorded conversations, accused no.1 is insisting upon brother of the complainant (PW16) that if he does not follow him, accused no.1 shall arrest his brother, then he could have threatened the complainant that if he does not follow the instructions of accused no.1 by fulfilling his demands, he shall arrest his brother (PW16) which is the case of the prosecution. Moreover, a reference is being clearly made by the complainant in respect of Rs.15000/-, wherein, accused no.1 has instructed the complainant to talk to Govind in this regard and has also clarified that he has to come again to PS to meet him (accused no.1) and if the complainant is thinking that he shall do the needful (sewa) and the things shall be settled therein, it is not possible. This also shows that the accused no.1 is trying to pressurize the complainant. After listening to the above conversations, it is apparent that there is some demand which the accused no.1 is trying to make the complainant fulfill by following certain directions including meeting and talking to the third person Govind who is accused no.2. The advice of accused no.1 to the PW7 (complainant) to go and meet Govind (accused no.2) and to come again with Govind (accused no.2) by saying "....Aap Govind ji ko le kar aaye the mere pass mein, main unki baat manta hun. Theek hai", is sufficient to establish the relationship between accused no.1 and accused no.2 as a part of conspiracy. With this, the arguments of Ld. Defence Counsels to the effect that the prosecution has miserably failed to establish the conspiracy which requires the pre-meeting of minds of the persons allegedly involved in the conspiracy, are rendered as baseless.
Page No. 82 of 117 (Niyay Bindu)
Special Judge (PC Act) CBI-13,
Rouse Avenue District Court, New Delhi
CNR No. DLCT11-001884-2019
CC No. 422/2019
RC-DAI-2019-A-0020-CBI-ACB-ND
U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018)
138. So far as accused no.2 is concerned, he is very much available in the conversations which took place between the parties as he has talked to the complainant as well as to the accused no.1 separately whereby setting a co- ordination between the two. In the recorded conversations i.e. Q1 file no.190608_1705, speaker Govind is apparently doing his task as a dealer who is talking to the complainant whereby trying to convince him that in his dealing with accused no.1, there shall not be any problem (dikkat) as he himself shall help him out. Some extract of the said conversation are reproduced herein:
ASI Govind Phone pe na ho aisi baten Complainant Bablu se kuchh nahin poochna bhaisahab, dene maine hain
Bablu se kya poochna. Aap Megha Ram Bhaisahab se pooch lo kitne mein baat ban jayegi meri. Pandrah Hazar to unhone mange hi hain. Ek baar baat karke aap mujhe call kar do.
ASI Govind Chal theek hai. Complainant Poochh ke batao Sir.
139. In the other conversation, recorded in file no.190608_1900, speaker 'B' (Govind) is apparently doing his task as a dealer who is dealing both with the complainant and accused no.1 simultaneously in following manner:
Accused no.2 Mere pass subha subha unka (accused no.1) phone aaya.
Aapne kal kara tha phone. Aaj subha automatic phone aaya main ghar se nikal raha tha. Unka phone aaya, mujhse to paise waise ka koi aisa bataya nahin.
Complainant Ek baar baat to kar lo. Accused no.2 Aapko kya kaha ye to batao. Complainant Pandraha Hazar Rupay ke liye bola, Pandraha Hazar Rupay
meri capacity se bahar hain, ek baar baat to kar lo bhaisahab.
Page No. 83 of 117 (Niyay Bindu)
Special Judge (PC Act) CBI-13,
Rouse Avenue District Court, New Delhi
CNR No. DLCT11-001884-2019
CC No. 422/2019
RC-DAI-2019-A-0020-CBI-ACB-ND
U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018)
140. In the above conversation, it is very much apparent that PW7 is bargaining in respect of the demanded amount and insisting upon accused no.2 to lower the said demand after talking to accused no.1. Then, accused no.2 called on the mobile phone of accused no.1 whereby asking as follows:
Accused no.2 Janab inse koi sewa suwa bhi karwani hai kya. Aa gaya, hmm hmm ab kaun reh gaya usmein. Bablu. Chalo theek hai janab. Tumhari pandrah Bees Hazar ki baat hui thi.
Complainant Pandraha Hazar mujhe kaha tha. Pandraha Hazar mujhse maange the.
Accused no.2 Maine aapke samne hi bola hai, ki pandraha bees kee deal hui thi unse.
Complainant Kuchh paise bhi kam karwa do, pandraha hazar bahut zayada hain.
Accused no.2 Ek hazar do hazar wali baat ho to meri phone pe baat karwa dena wahan jaake. Kar dunga.
Accused no.2 Agar koi dikkat aai to main baitha hun. Mere hisab se tum jamanat karwao to itne paise to Vakil bhi le lega tumse.
141. When the said conversations were played before the court during the deposition of the concerned witnesses, the voice of the complainant was duly identified by himself as PW7 as well as by his brother as PW16 and also by PW8, PW9 and PW10. The voice of accused no.1 was identified by PW8, PW9, PW10 and the specimen voice of Govind was identified by PW11. After listening to these conversations, it is very much apparent that accused no.2 has taken the complainant in confidence and convincing him while also talking to accused no. 1 whereby asking as to whether some service has to be taken from Page No. 84 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) the complainant and this service can easily be presumed to be a financial benefit to accused no. 1 or to both of them. This fact is very much clear from the words, "Janab inse koi sewa suwa bhi karwani hai kya". In one of the conversations with the complainant, accused no.1 also informs the complainant that it is not possible if he thinks that only after doing sewa, his purpose shall be solved and he need not to follow further instruction of accused no. 1 which correlates with the above mentioned words uttered by accused no.2. All these instances reflect that accused no.2 is playing his separate role and the same is sufficient to establish the elements of conspiracy. With this, the arguments of Ld. Defence Counsels (vide para nos.58, 72, 80 & 82 of this order) in respect of conspiracy, are rendered as baseless.
142. In respect of the transcripts of the above conversations also, strong objections are being raised by the Ld. Defence Counsel for A2, firstly, he has contended that in the cross-examination a specific question was posed before PW10 that in the alleged audio file No.190608_1900, there are sentences "main aapki madad hi kar sakta hoon mera kuch lena dena nahin hai, na hi meri jeb mein aapna hai" and the same is missing in the transcription Ex.PW9/F which the said PW10 has admitted to be correct. In this regard, although, the said PW10 may not be able to explain as to why the said sentence is missing from the transcription, as it may be an error of official who prepared the transcription. However, even if the same has been incorporated by the CBI in the transcription, then also, accused no.2 cannot take any benefit out of the same because the conversation which is appearing in the transcriptions is sufficient enough to establish the incriminating elements against accused no.2 as a part of the conspiracy. Even if accused no.2 is saying that he had nothing to Page No. 85 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) do with the said transaction as no amount is going into his pocket, then also, no presumption can be drawn in favour of accused no.2 that he may actually not having any concern with the said transaction because he is playing his own role in the whole affairs and it cannot be presumed that he is taking the risk upon his head without hope of any benefit for himself. In addition to the same, if it is taken to be true that nothing was going into his pocket, then, an inference goes against accused no.1 as well that the whole amount is going to the pocket of accused no.1 only and it may be some personal adjustment between the two accused that after the amount comes into the pocket of accused no.1, a reasonable part of the same may go to the share of accused no.2 as well. An inference also goes against accused no.2 from his advice as reflecting in the above conversation with complainant that he should talk to him (accused no.2) one to one as these things are not being settled on phone.
143. Secondly, it is pointed out by the Ld. Counsel for accused no.2 that an alleged sentence has been wrongly written in the transcript of File No.190608_1900 as "EK HAZAR DO HAZAR WALI BAAT HO TO MERI PHONE PE BAAT KARWA DENA WAHAN JAKE, KAR DEGA" instead of "KAR DOONGA".....At the time of playing this conversation before the court, this objection was raised and the court gave its observation to the effect that "although the word is not very much clear but the same may be Denge or Doonga". From these very words, it is apparent that there is some hidden understanding between the two accused because accused no.2 is assuring the complainant that if there is an issue of one thousand or two thousand, accused no.2 shall help out in settlement of the same. This fact can also not be ignored that when accused no.2 is referring to "ek hazar, do hazar", then apparently Page No. 86 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) some money matter is involved between the three speakers. Now if we revert to the objection of Ld. Defence Counsel, it can be easily concluded that when some mutual understanding between the two accused is established then it is immaterial as to which of the two accused is going to settle the same, either accused no.1 (kar dega) or accused no.2 (kar doonga).
144. Thirdly, Ld. Counsel for accused no.1 has stated that there are many discrepancies in the actual proceedings of the matter wherein he has pointed out that in the Handing Over Memo Ex.PW9/A (colly.), the brother of complainant is not there in the proceedings but his signatures are apparent in the document. In this regard, it has been clarified from the deposition of different prosecution witnesses including the brother of complainant i.e. PW16 that he was a part of trap proceedings and he identified his signatures at point Z4 on the said document. It was clarified by the Trap Laying Officer (PW17) during his cross- examination dated 25.10.2023 that the name of brother of the complainant could not be mentioned inadvertently in the column of members of the trap team, same is sufficient to prove that the said witness accompanied the CBI team along with his brother on the said occasion. With this clarification, it is considerable that not mentioning his name being an inadvertent error, is not of a nature to hurt the stand of prosecution. With this, the arguments of Ld. Defence Counsels (vide para nos.60, 70 & 74 of this order) in respect of various inconsistencies pointed out by them, are being dealt with.
145. It is further argued by the Ld. Counsel that in the audio file190608_1900, there are voices only of two persons but in the transcript of the same, a third speaker is referred to as "A" which is not explained by the prosecution. This Page No. 87 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) objection is also not sustainable as conversation has been attributed to speaker "SI Megha Ram" and mentioning of speaker "C" may also be a typographical/technical error. Ld. Defence Counsels have also argued that no concerned "Malkhana Incharge" has been examined before the court, nor any document in respect of entries of the case property in malkhana has been produced on the record. In this regard, it can be considered that if no such witness or record is being produced before the court, the court is not bound to draw an adverse inference against the prosecution on this minor issue. Ld. Counsel for accused no.1 has also submitted that PW14 Sh. Yogesh Malhotra was not a good witness for voice identification of accused no.1 as accused no.1 has only worked for a few months with him while PW14 was SHO of the concerned PS Sangam Vihar. This contention of the defence (vide para no.66 of this order) is baseless because it may be considered that being a junior official of his fraternity, PW14 intentionally avoided to identify the voice of accused no.1 as he stated that one of the voices in the recorded conversation, played before him in the court during his deposition, seemed to be the voice of accused no.1. Moreover, the voice of accused no.1 was duly identified by other witnesses including PW8, PW9 and PW10 which is sufficient to serve the purpose of the prosecution. Accordingly, the objection raised on behalf of accused no.2 (vide para no.79 of this order), has been dealt with.
146. Ld. Counsel for accused no.2 has also argued that the unknown voices were not mixed with the voices of the accused persons so that the admissibility of the recorded conversation could have been fortified.
147. In respect of the above mentioned objections of defence, it has to be Page No. 88 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) taken into account that the inconsistencies referred to by ld. counsels are minor deviations, which do not shake the credibility of substantial facts. Moreover, some minor discrepancies are not treated to be fatal for the case of prosecution. Time and again Supreme Court had been making such observations and a few of them are as follows:
148. In State of Rajasthan Vs. Smt. Kalki and Another, (1981) 2 SCC 752 (FB), Hon'ble Supreme court observed that :-
"In the depositions of witnesses there are always normal discrepancies however honest and truthful they may be. Those discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person."
149. In State of U.P. Vs. M.K. Anthony, AIR 1985 SC 48, Hon'ble Supreme Court held that :-
"While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the Page No. 89 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole......."
150. It is being further observed by the Hon'ble Apex Court that -
"It would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross examination is an unequal duel between a rustic and refined lawyer."
151. Same observations were made by Hon'ble Supreme Court in State Vs. Saravanan & Anr. AIR 2009 SC 152.
152. In Vidhya Rani and Madan Lal Vs. State (Delhi Admn.), Criminal Appeal Nos.186 and 385/1997, it was held that :-
"5. Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious:
a) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
b) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprised. The mental faculties therefore cannot be expected to be attuned to absorb the details.
c) The powers of observation differ from person to person.
What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
d) By an large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It Page No. 90 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) is unrealistic to expect a witness to be a human tape-recorder.
e) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess-work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
f) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
g) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
h) Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important 'probabilities factor' echoes in favour of the version narrated by the witnesses."
153. In view of above-mentioned legal principles, this court do not find some minor discrepancies to be such material discrepancy which may have the effect to discredit the overall testimony of all these witnesses. Therefore, the objections of defence cannot be sustained to doubt the proceedings or documentary evidences. From the testimony of all the witnesses of verification proceedings as well as trap proceedings, alongwith the contents of recordings in Q1 as well as in Q2, it is found that both these two pieces of evidence Page No. 91 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) corroborate and complement each other in respect of events taken place and the demand is well explicit in the circumstantial evidence as well as in the recorded conversation contained in Q1 and Q2 and the same are sufficient to establish the element of demand beyond any doubt. Although, an objection has been raised on behalf of both the accused (vide para no.68, 72, 80 and 82 of this order) that accused no.2 Govind has neither been identified by any material witness nor the conspiracy between the two accused has been proved while the Ld. Counsel for accused no.2 also pointed out that during his cross- examination, PW7 admitted that neither he had any meeting nor any telephonic conversation with accused no.2. In this regard, after considering the oral testimony of the prosecution witnesses other than the material witnesses PW7 & PW16 (who have already turned hostile and accordingly, could not be expected to identify Govind), no doubt remains either in respect of the identification of accused no.2 or the specific role played by him in the whole transaction. In the prosecution evidence, it has also come on record that accused no.2 Govinda was duly identified by PW5 Sh. Prateek Johar as well as PW11 Sh. Pramod Kumar Tanwar in the court and his voice was also identified by these two prosecution witnesses along with PW8 and PW10. In this manner, the contentions raised on behalf of both the accused (vide para nos.68 & 82 of this order) are being refuted. Accordingly, the observations of Hon'ble Supreme Court in 2022, Live Law (SC) 926 as quoted by Ld. Counsel for accused no.1 are also held as not applicable in the circumstances of the present case.
154. In view of the above discussion, no doubt remains in respect of alleged demand being made from the complainant by both the accused who are acting in collusion with each other in pursuance of the alleged conspiracy.
Page No. 92 of 117 (Niyay Bindu)
Special Judge (PC Act) CBI-13,
Rouse Avenue District Court, New Delhi
CNR No. DLCT11-001884-2019
CC No. 422/2019
RC-DAI-2019-A-0020-CBI-ACB-ND
U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) TRAP PROCEEDINGS, ACCEPTANCE AND RECOVERY
155. For the purpose of acceptance, prosecution evidence is dependent upon testimony of PW7 (complainant), PW16 (brother of complainant), PW8 (independent witness), PW9 (independent witness) and PW17 (TLO) as well as the recorded conversations and the evidence of the CFSL expert PW13 who has been examined regarding the chemical examination of different washes being taken during the trap proceedings. Besides the same, prosecution is also relying upon the testimony of PW18 Insp. Shyam Rai, who is the IO of the case. So far as the trap proceeding is concerned, accused have not disputed the fact that CBI team alongwith complainant had reached PS Sangam Vihar on 10.06.2019. Accused no.1 has not disputed the fact as he has admitted in his answer to question no.139 in the statement of accused U/s 313 Cr.PC that PW7 and PW16 came to his room on 10.06.2019. He has also not disputed that he was apprehended by the CBI officers in his own cabin, situated at PS Sangam Vihar.
156. The issue being raised by accused no.1 is that the complainant kept the currency notes in the file lying on his table with his consent or demand through gesture as alleged by the prosecution whereby saying that he was not even knowing that the said currency notes were lying therein as the same were kept in his absence. The accused has taken the plea that PW7 (complainant) alongwith PW16 (brother of complainant) came to him and when he just went inside his cabin, a few steps from the table where the PW7 and PW16 were sitting, as soon as he turned again to the table, both of the said persons have already left without his knowledge that they have put something inside the file lying on his table. It is also disputed by the accused that with the help of any Page No. 93 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) prosecution evidence, the prosecution could not establish gesture as being alleged in the charge-sheet, more specifically when the complainant himself did not support this stand of the prosecution.
157. In order to establish the allegations of the charge-sheet, the oral testimony of the witnesses has to be taken into account. As per the testimony of PW17, Insp. S.P. Singh who was marked the RC registered against SI Megha Ram and ASI Govind by SP Sh. Sudhanshu Dhar Mishra vide Ex.PW10/D2 and who constituted a trap team including Sh. Deepak Singh (independent witness,PW8), Sh. Lokesh Kaushik (independent witness,PW9), complainant Trivendra Kumar Gupta (PW7), brother of the complainant namely Surender Prakash Gupta (PW16), Insp. C. M. S. Negi (PW10), Insp. Pramod Tanwar (PW11) and some other CBI officials. He has stated that the contents of complaint were read over and explained to all the trap team members and complainant produced GC notes of Rs.15000/- as per the previous directions issued to him by the CBI officer and the distinct numbers of the said GC notes were noted down in the handing over memo (Ex.PW9/A). On the directions of PW17, Insp. Pramod Kumar Tanwar treated the GC notes with phenolphthalein powder and also conducted the demonstration in this regard and Sh. Lokesh Kaushik (PW9) conducted the personal search of complainant. All these facts have been corroborated by both the independent witnesses as well as CBI officials and also by PW7 and PW16 to a certain extent as like other witnesses, they have also identified their signatures on the relevant documents.
158. The prosecution witnesses have deposed that a new memory card was inserted in the DVR which was produced by PW8 to whom the same was Page No. 94 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) handed over after verification proceedings and after ensuring the blankness of the memory card, introductory voices of both the independent witnesses i.e. PW8 and PW9 were recorded. Thereafter, being equipped with trap kit and DVR etc., the trap team reached PS Sangam Vihar to trap the suspect officer. The complainant was directed by the TLO not to touch the tainted currency notes which were being kept in his pocket except to the accused no.1 on his specific demand or to any other person on the specific direction of accused no.1. These facts were produced before the court by PW17 and same were corroborated by PW8, PW9, PW10 and by PW16 as well.
159. As a matter of fact, although, independent witness Deepak Kumar (PW8) was instructed to be a shadow witness with the complainant but he could not accompany the complainant to the room of accused no.1 which may be for the reason that the brother of complainant was already accompanying him and also that after seeing two persons along with complainant coming to meet him, he could have become conscious and suspicious about the circumstances, however, the said independent witness was placed on such a distance that the cabin of accused no.1 was visible to him as per the testimony of the independent witness himself. Although, it is already pointed out by Ld. Defence Counsels, no spot witness has been examined by the prosecution when both the complainant as well as his brother have failed to support the case of prosecution, but, in response to the same, Ld. PP has clarified that to certain extent, they have produced certain facts about the incidents which took place inside the room/cabin of accused no.1, though, not producing complete facts.
160. In addition to the same, the recorded conversations which took place Page No. 95 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) between the accused no.1, the complainant and his brother, which were recorded in the memory card inserted in the DVR which was lying in the pocket of the complainant. The said memory card was produced before the court during the deposition of the complainant as PW7 in duly sealed condition when the same was bearing the seal of CFSL, CBI, NEW DELHI and the witness identified his signatures on all the relevant articles. The other prosecution witnesses who were examined subsequently, also corroborated this fact and identified their signatures on the said articles. These circumstances signify that the memory card Q2 remained in sealed condition till the same was produced before the court, therefore, no question arises in respect of manipulation in the contents of the memory card. Moreover, the factum of preparation of the mentioned transcript of the recorded conversations has also been proved on record by various prosecution witnesses.
161. It has come on record through certain prosecution witnesses that when the trap team was proceeding towards PS Sangam Vihar, on the direction of TLO, complainant PW7 called on the mobile of accused no.1 and he talked to him in continuation of his previous conversation which has already been quoted in the previous pages of the present discussion and the said mobile conversation is contained in audio file no.190610_1601 which is being re-produced below:
Complainant Acchha meri Govind Sir se baat ho gai thi SI Megha Ram Achha Complainant Haan, to ve keh rahe the ki Sir se meri baat maine baat kar li hai aur pehle to 15 kahi thi ab vo keh rahe the 15-20 to ab main lekar aa jaun, bhai ko SI Megha Ram Le aav Page No. 96 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) Complainant Haan ji Sir SI Megha Ram Le aav ji le aav Complainant la raha hun Sir
162. From the said conversation, it is very much apparent that the complainant is informing accused no.1 that he has complied with the previous direction issued by accused no.1 to him in respect of talking to accused no.2, so that the transaction may be finally settled, in response to which, accused no.1 has given his permission/acceptance to the complainant to reach him (accused no.1). In this conversation, the complainant is clearly referring to the amount of Rs.15000/- and accused no.1 is pleasantly accepting the same. Now at this stage, a query arises to the mind of a listener of this conversation that, had accused no.1 not been aware of the transaction, he must have quickly responded as to which fifteen-twenty, the complainant (caller) was talking about and in what context, but no such response is being given by accused no.1. This much is sufficient to establish the consent of accused no.1 for acceptance of the bribe amount of Rs.15000/- which the complainant is referring to in the above conversation.
163. After reaching the spot, the complainant (PW7) and his brother (PW16) went inside the room of accused no.1 being equipped with DVR fitted with the memory card and also with the tainted amount kept in the pocket of the complainant, however, the testimonies/evidence in respect of the incident which took place inside the cabin of accused no.1 are different versions. As per the case of prosecution, when the complainant and his brother met accused no.1, Page No. 97 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) accused no.1 got certain documents signed by them and when the complainant asked about the money, accused no.1 instructed him through gesture to keep the money inside the file lying on his working table. However, during his deposition before the court, the complainant took a different stand that when he asked accused no.1 about the money (as what to do with the same), then accused no.1 stood and went aside, the other official of PS who was sitting on the same table, asked the complainant through gesture to keep the amount in the file in which the papers were signed by his brother. Besides the same, the brother of the complainant as PW16, deposed that when accused no.1 went to the adjacent part of his cabin, his brother (complainant/PW7) kept the amount in the file lying on the table in accordance to the previous conversation between his brother and accused no.1. Yet another version has been produced by the defence witness DW1 HC Bhim Singh who deposed that when after getting signed certain documents from the persons (Gupta Brothers), SI Megha Ram went to the room inside his cabin, one of the Gupta Brothers hurriedly kept certain currency notes in the file lying on the table in the cabin and abruptly went out of the room.
164. In order to reach a conclusion, we have to scrutinize all these versions of oral testimonies in the light of contents of the recorded conversations. So far as the complainant is concerned, when he has put his grievances against accused no.1 in his very complaint Ex.PW7/A in respect of the demand of bribe for a sum of Rs.15000/- alongwith threat for arresting his brother, in case the said demand is not fulfilled, however, later on, changed his version before the court during his deposition whereby stating that no demand has ever been raised by accused no.1 from him and the same is sufficient to come to a conclusion that Page No. 98 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) the complainant has been won over by the accused. Accordingly, no reliance can be placed upon the changed/modified version of the complainant who has already been declared hostile by the prosecution. So far as the brother of the complainant (PW16) is concerned, his version is also not acceptable because he has also changed his version to a great extent in favour of accused which brings us to the conclusion that he also has been won over by the accused. Coming up to the defence witness DW1, Ld. Defence Counsel argued that neither the said witness, despite being listed by prosecution as prosecution witness at serial no.8, was examined before the court nor any other police official present in the said Police Station at the time of trap was brought to the witness box in respect of the above said incident. There may be many reasons for the same and one of the said reason came into light when the said witness was produced by accused no.1 before the court and his version in his statement U/s 161 Cr.PC was found to be different from the version which he produced before the court in his deposition. It is apparent on record that the said witness was deposing under the influence of accused no.1 being his junior official and also his colleague and hence, he came to depose in favour of accused no.1 with only purpose to save him without even bothering to stick to truth. Therefore, the version of the said witness cannot be taken into account as he could not give any plausible answer to the questions posed before him by the Ld. PP during his cross-examination and wherein he was also confronted with his statement recorded by CBI U/s 161 Cr.PC but he could not explain the contradiction in both of his versions. In this manner, the argument of Defence Counsel for accused no.1, in respect of not joining the police officials of the Police Station at the time of trap in the proceedings, also becomes irrelevant for the reason that like DW1, the same approach would have been probable approach of other colleagues of accused Page No. 99 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) no.1 also and therefore, it was not advisable to join them in the proceedings. Therefore, I do not find any abnormality with the decision taken by TLO not to join the other police officials of the Police Station in the trap proceedings. Although, defence relied upon the testimony of DW1 for obvious reasons that DW1 had supported accused on this aspect. However, I have already discussed the reasons for deviations appearing in the evidence of DW1, therefore, much attention cannot be given to his deposition. In this manner, the arguments addressed on behalf of accused no.1 (as mentioned in para no.57of this order) stands dealt with.
165. Now, we can consider the deposition of the remaining prosecution witnesses. The testimonies of independent witness Lokesh Kaushik (PW9), Insp. C.M.S. Negi (PW10) and Insp. S. P. Singh (TLO/PW17) in respect of the incident which took place inside the room of accused no.1 in the Police Station just after the complainant gave the pre-decided signal to the trap team are corroborating each other. All have deposed that when the trap team entered the room, the complainant informed about his keeping the money in the file lying on the table in the cabin of accused no.1. It is deposed by PW9 that, "On the instructions of CBI officer, I recovered the bribe amount from the file lying on the table of accused Megha Ram. Complainant had disclosed that the bribe amount was kept by complainant in the file on the direction of accused". Similarly, PW10 has deposed that, "on being directed, the complainant narrated that he was gestured by accused Megha Ram to keep the tainted amount inside the file that was kept on the working table in the cabin of accused Megha Ram and he, accordingly, had kept the tainted bribe amount over the first page inside the file". PW17 Insp. S.P. Singh has also deposed on the same lines whereby Page No. 100 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) stating that, "Thereafter, I asked the complainant to narrate the whole incident. Complainant informed me that the accused Megha Ram demanded bribe by gesture and directed to put the same in the file lying on the table. Accordingly, he put the tainted bribe money of Rs.15,000/- in the said file. Thereafter, I directed the independent witness Sh. Lokesh Kaushik to recover the bribe amount from the said file". The fact of keeping amount in the above mentioned file has been duly corroborated by PW7, PW8, PW9, PW10 and PW16 as well as the report of chemical examination and infact, DW1 has also corroborated the said fact. All the prosecution testimonies are supporting the case of the prosecution, however, Ld. Defence Counsels have raised a strong objection on the same on the ground of hearsay evidence. Although, the said act of the complainant keeping the tainted amount in file was narrated to the trap team members, but when the complainant (PW7) and his brother (PW16) were the two persons, out of the trap team, who only went inside the cabin of accused no.1 failed to support the case of prosecution, then, the deposition of the other trap team members in respect of the narration of the incident given by complainant, becomes relevant and admissible in the terms of Section 6 of Indian Evidence Act, 1872 and proves that the complainant actually kept the tainted amount in the file as per the gesture/instruction of the accused no.1 and the same amounts to Acceptance and factum of recovery of the tainted amount from the said file has already been corroborated above. This is considerable that the other team members did not accompany the complainant and his brother to the cabin of accused no.1 for the obvious reason that the accused could have become suspicious and conscious if a third person would have accompanied the complainant and it also might be possible that accused no.1 could have identified the CBI officials in their true identity. If we look into the deposition Page No. 101 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) of above mentioned prosecution witnesses, from the perspective of Doctrine of Res Gestae as discussed above, the same becomes very much admissible and reliable. In this manner, the arguments of Ld. Defence Counsels (vide para no.64, 72, 80 & 84 of this order) get refuted.
166. After considering the oral deposition of the witnesses, we are having the corroborative evidence of recorded conversations as well. Although, Ld. Defence Counsels have raised a number of objections in respect of the said audio recordings as well as transcripts of the same, but those objections have already been dealt with. I had personally heard the recordings from the memory cards, transcripts of which have already been proved on record by the various prosecution witnesses i.e. Ex.PW9/G (colly). The relevant conversation between the complainant (PW7) and accused no.1 is the 4 th file as the first file relates to introductory voice of independent witness Deepak Kumar (PW8) and second file relates to the introductory voice of other independent witness Lokesh Kaushik (PW9). Initial portion of the said file shows that the accused no. 1 was noting down the personal details of the complainant and that the brother of the complainant was also asking accused no.1 to lower the demanded amount and in the continuation of the said conversation, the complainant is pointing out to some file. The relevant part of the conversation contained in file no.190608_1640 is as follows:
SI Megha Ram Trivendra Kumar Gupta
SI Megha Ram Pita ka kya naam
Complainant Late Sh. Sheetal Prasad
SI Megha Ram Address kya hai aap
Page No. 102 of 117 (Niyay Bindu)
Special Judge (PC Act) CBI-13,
Rouse Avenue District Court, New Delhi
CNR No. DLCT11-001884-2019
CC No. 422/2019
RC-DAI-2019-A-0020-CBI-ACB-ND
U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) Complainant B-1500/H, Sangam Vihar, near Amar Singh Market SI Megha Ram Near Amar Singh Market
167. From this conversation, it is apparent that the details noted down by the accused are that of the present complainant only which confirms the fact of the trap proceedings. In the remaining conversation, it is apparent that brother of the complainant is informing that accused no.2 had told about decreasing the amount. The relevant portion of the conversation is given below:
Complainant's Kitne Paise, Sir ne bol diya tha kuchh kam karne ke liye brother SI Megh Ram Kisne SI Megha Ram Aur aap na main iss cheej ko itna vo kar raha hun aur aap
----
Complainant Chalo Complainant Ji file ----- Complainant's Jaun Sir, Thank you. Brother SI Megha Ram Theek hai aisi koi vo nahi hoti, khaam khwah 100 jagah ki
chakkar kaatne ki bajai ek jagah jana theek hota hai.
Complainant's Theek hai Sir, Thank you. brother SI Megha Ram Jao
168. The last response of the accused signifies that such response must have been given only after receiving the amount. Law does not postulate that the demand must be made vocally. In fact, no particular form of demand has been Page No. 103 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) prescribed in law. Law only requires that there should a demand from the side of accused. Such demand may be conveyed in various manner. Gesture is one of the way to make demand. Therefore, it has to be seen that when demand by accused has already been established, the same was coupled with delivery of currency notes which have been recovered from the particular file(as pointed out by the complainant), then the presumption of gesture by accused no 1 to complainant for keeping the money over there, falls in favour of the prosecution. Thus, I have no doubt at least in respect of demand of Rs.15000/-
made by accused prior to trap proceedings and bargaining to decrease the demanded amount of Rs.15000/- and thereafter, accepting the said amount. This is worth noting that there is no time gap in the whole conversation when the same is physically heard and that when the complainant asked permission from accused no.1 to leave his room, he has pleasantly responded in affirmative which brings us to the conclusion that it is not possible as contended by the defence that the complainant and his brother, after keeping the tainted amount in the file, hurriedly left the cabin of the accused. This fact has also been fortified by the cross-examination of DW1 who was relied upon by accused no.1 as a spot witness and who produced a different version in respect of the proceeding which took place in the cabin of accused no.1 on the relevant date and time.
169. So far as the remaining trap proceedings is concerned, after the pre decided signal was given by the complainant to the team members, TLO along with other team members rushed into the cabin of accused no.1 and when the TLO asked from the complainant about the trap money, the complainant pointed out towards the file lying on the table and on the instructions of TLO, Lokesh Page No. 104 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) Kaushik (independent witness) recovered the tainted amount from the file lying on the table in the cabin of accused no.1. This fact has been established by the testimony of the complainant as PW7, independent witness Lokesh Kaushik as PW9 and Trap Laying Officer Sh. S. P. Singh as PW17. The distinctive money found to be matching with the numbers and denominations as mentioned in the Handing Over Memo Ex.PW9/A (colly.) which has been duly proved on record through the deposition of PW7, PW8, PW9, PW10, PW16 and PW17 and thereafter, the trap money was seized and duly sealed. Thereafter, the hand washes of both hands of the accused were taken separately in the presence of all the team members wherein solution of right hand wash turned into pink colour. Also, the solution of the wash of first paper in the file as well as that of the file cover turned into pink colour.
170. This fact gets corroboration from the testimony of PW13/Ms. Deepti Bhargawa, who affirmed that all four bottles were received by her with seal of CBI and the cloth pieces, with which the same were wrapped, were also found in the parcel of these four bottles at the time of production in the court. All these bottles and cloth wrappers as well as envelope containing cloth wrappers were signed by PW13, before putting the same in the parcel and sealing the parcel with her seal i.e. DB CHEM DIV CFSL NEW DELHI. Her report Ex. PW13/A also confirms and corroborates such testimony of PW13. The said four sealed glass bottles, wherein the all four washes were kept, have also been produced before the court during the evidence of various prosecution witnesses and the same were proved on record during the evidence of independent witness Lokesh Kaushik as Ex.PW9/Article-1 (RHW), Ex.PW9/Article-2 (LHW), Ex.PW9/Article-3 (Wash of Paper) and Ex.PW9/Article-4 (Wash of Page No. 105 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) File Cover). PW13 had found both hand washes as well as the wash of paper and file cover were containing phenolphthalein. Although, Ld. Defence Counsels put technical question during her cross-examination, whereby asking, as to whether the darkness in the pink colour sodium carbonate solution is proportionate to the quantity of phenolphthalein in it, to which, she answered in affirmative whereby clarifying that if the Ph is more than 10, there is possibility that despite presence of phenolphthalein in the solution, the pink colour may degrade or become colourless. Ld. Counsel for accused no.1 has argued that the colour of both hand washes of accused no.1 have been very light pink and very very light pink as mentioned in the report and much significance cannot be given to these washes. However, this factor in itself cannot be a reason to discard her report, which is based on the examination of hand washes, using scientific method. I have no reason to doubt the integrity of PW13, so as to presume that she gave a false report. Hence, I find her report to be reliable piece of evidence.
171. At this juncture, the argument of Ld. Counsel for accused no.1 is to be considered that this is not a case of prosecution that the accused no.1 touched the currency notes with his hands, therefore, the chemical report is only a probability. In context of the other arguments by Ld. Defence Counsel for accused no.1 that on account of shaking his hands with complainant and his brother or taking back his pen after giving them to sign some papers, the phenolphthalein powder from the hands of complainant and his brother might have traveled to the hands of the accused as well as the argument that the colour of solution of hand washes of accused no.1 as reported by the chemical examination expert vide Ex.PW13/A is very very light pink, the argument about Page No. 106 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) touching the currency notes by accused no.1 cannot sustain. Reason being, that before going into the cabin of accused no.1, it has nowhere come on record that the hands of complainant or his brother had any previous touch of currency notes or otherwise of the phenolphthalein powder so that the same could have transferred to the hands of accused no.1, secondly, the court is very much conscious of this fact that chemical examination report is a corroborative evidence which stands in corroboration of other evidences as in the present case, the other stronger and admissible evidences are already available to rely upon. So far as the act of touching of the currency notes by accused no.1 is concerned, in the absence of direct evidence in this regard, it may be presumed that after the currency notes were kept in the file by the complainant, accused might have touched the same as a token of confirmation, otherwise, it may also be possible that he touched only the file cover and not the currency notes and resultantly, the hand washes turned into light pink or very light pink. Therefore, this argument of accused no.1 (as mentioned in para nos.61, 62, 63 & 64 of this order) is not of much help to the accused.
Presumption under section 20 of the Act:-
172. The foregoing discussion on evidence, establishes the existence of demand, acceptance as well as recovery of bribe amount from the accused no.1. In such situation, as far as offence u/s 7 of the Act is concerned, a presumption u/s 20 of the Act comes into play. Section 20 of PC Act, 1988 provides as under:
"20. Presumption where public servant accepts any undue advantage-
Where, in any trial of an offence punishable under section 7 or under section 11 it is proved that a public servant accused of an offence has accepted or obtained or attempted to obtain for Page No. 107 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) himself, or for any other person, any undue advantage from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or attempted to obtain that undue advantage, as a motive or reward under Section 7 for performing or to cause performance of a public duty improperly or dishonestly either by himself or by another public servant or, as the case may be, any undue advantage without consideration or for a consideration which he knows to be under Section 11".
173. In the case of Vinod Kumar v. State of Punjab, 2015 CRL. J. 1442 (SC), Supreme Court quoted observations from other cases with approval and made following observations, which are relevant for the purpose of this case as well:-
"22. .........In a case of bribe, the person who pays the bribe and those who act as intermediaries are the only persons who can ordinarily be expected to give evidence about the bribe and it is not possible to get absolutely independent evidence about the payment of bribe."
From the aforesaid authorities it is clear that a trap witness is an interested witness and his testimony, to be accepted and relied upon requires corroboration and the corroboration would depend upon the facts and circumstances, nature of the crime and the character of the trap witness.
28.In the instant case, PW-8, who was a member of the raiding party had sent the report to the police station and thereafter carried the formal investigation. In fact, nothing has been put to him to elicit that he was anyway personally interested to get the appellant convicted. In our considered view, the decision in S. Jeevanatham (supra) would be squarely applicable to the present case and, accordingly, without any reservation we repel the submission so assiduously urged by Mr. Jain, learned senior counsel for the appellant.
33. In Hazari Lal v. State (supra), a police Constable was convicted under Section 5 (2) of the Prevention of Corruption Act, 1947 on the allegation that he had demanded and received Rs.60/- from the informant who was examined as Page No. 108 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) PW-3 and had resiled from his previous statement and was declared hostile by the prosecution. Official witnesses had supported the prosecution version. Keeping in mind the evidence of the official witnesses the trial Court had convicted the appellant therein which was affirmed by the High Court. A contention was raised that in the absence of any direct evidence to show that the police constable demanded or accepted bribery no presumption under Section 4 of the Act, 1947 could be drawn merely on the strength of recovery of the marked currency notes from the said police constable. Chinnappa Reddy, J. speaking for the two- Judge Bench observed as follows:-
"......It is not necessary that the passing of money should be proved by direct evidence. It may also be proved by circumstantial evidence. The events which followed in quick succession in the present case lead to the only inference that the money was obtained by the accused from PW 3. Under Section 114 of the Evidence Act the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. One of the illustrations to Section 114 of the Evidence Act is that the court may presume that a person who is in possession of the stolen goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. So too, in the facts and circumstances of the present case the court may presume that the accused who took out the currency notes from his pocket and flung them across the wall had obtained them from PW 3, who a few minutes earlier was shown to have been in possession of the notes. Once we arrive at the finding that the accused had obtained the money from PW 3, the presumption under Section 4 (1) of the Prevention of Corruption Act is immediately attracted."
35. ...........It was contended before this court that presumption under Section 20 of the Act can be drawn only when the prosecution succeeded in establishing with direct evidence that the delinquent public servant had accepted or obtained Page No. 109 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) gratification. It was further urged that it was not enough that some currency notes were handed over to the pubic servant to make it acceptance of gratification and it was incumbent on the part of the prosecution to further prove that what was paid amounted to gratification. In support of the said contention reliance was placed on Sita Ram (supra) and Suraj Mal v. State (Delhi Admn.) (1979) 4 SCC 725. The three-Judge Bench referred to Section 20 (1) of the Act, the pronouncements in Hawkins v. Powells Tillery Steam Coal Co. Ltd. (1911) 1 KB 988 and Suresh Budharmal Kalani v. State of Maharashtra(1998) 7 SCC 337 and adverted to the facts and came to hold as follows:-
"From those proved facts the court can legitimately draw a presumption that the appellant received or accepted the said currency notes on his own volition. Of course, the said presumption is not an inviolable one, as the appellant could rebut it either through cross-examination of the witnesses cited against him or by adducing reliable evidence. But if the appellant fails to disprove the presumption the same would stick and then it [pic]can be held by the court that the prosecution has proved that the appellant received the said amount."
38. .........As we notice, the authorities in B. Jayaraj (supra) and M.R. Purushotam (supra) do not lay down as a proposition of law that when the complainant turns hostile and does not support the case of the prosecution, the prosecution cannot prove its case otherwise and the court cannot legitimately draw the presumption under Section 20 of the Act. Therefore the proposition, though industriously, presented by Mr. Jain that when Baj Singh, PW5, the complainant, had turned hostile the whole case of the prosecution would collapse is not acceptable and accordingly hereby rejected. 40. .........The evidence of PW6 and PW7 have got corroboration from PW8. He in all material particulars has stated about the recovery and proven the necessary documents pertaining to the test carried with phenolphthalein powder. The fact remains that the appellant's pocket contained phenolphthalein smeared currency notes when he was searched. It is apt to take note of the fact that the Page No. 110 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) currency notes that have been recovered from the right side of the pant pocket were actually prepared by PW8 by smearing them with phenolphthalein powder. The appellant was caught red-handed with those currency notes. In his statement recorded under Section 313 of Cr.P.C., he has taken the plea that he is innocent and has been falsely implicated due to animosity. No explanation has been given as regards the recovery. Therefore, from the above facts, legitimately a presumption can be drawn that the accused-appellant had received or accepted the said currency notes on his own volition. The factum of presumption and the testimony of PW6 and 7 go a long way to show that the prosecution has been able to prove demand, acceptance and recovery of the amount."
174. Keeping in view the aforesaid legal principles explained by Supreme Court, this court has to look into the relevant part of evidence of PW7, PW16, PW8, PW9, PW10 and PW17 which has already been discussed above whereby the allegations of prosecution are otherwise established by virtue of reliable piece of evidence.
175. So far as the remaining trap proceedings are concerned, after the above mentioned washes were taken, search of the office of the premises of accused no.1 was carried out by Insp. Promod Kumar Tanwar in presence of both the independent witnesses and after the said search, a sum of Rs.2,74,960/- in cash were recovered from the drawer of the same working table on which the above mentioned file was lying. The said amount was also seized and sealed by the CBI trap team vide an admitted document i.e. Office Search Cum Seizure Memo Ex.A-1 (colly.). After completion of necessary proceedings, accused no.1 was arrested vide arrest cum personal search memo Ex.PW9/D wherein both the independent witnesses as well as the Trap Laying Officer have Page No. 111 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) identified their signatures while the independent witness PW9 proved the document on record. In continuation of these proceedings, accused no.2 was arrested and his voice identification was also conducted and these facts have been duly proved on record vide deposition of PW5, PW11 as well as PW17/IO of the case.
176. On the basis of all these proceedings, the bargaining in respect of the bribe amount, demand of bribe, acceptance and recovery of the same as well as the verification and trap proceedings, have been proved on record which leaves no doubt that the demand as well as acceptance of money was done as illegal gratification for doing an unlawful act by the accused.
SANCTION:-
177. In the present case, accused no.2 has also targeted the sanction order as invalid and in his plea u/s 313 Cr.P.C. also, he has raised contention that only draft sanction was sent to PW2 Sh. Atul Thakur who signed the same in mechanical manner without application of mind. Although, it may be true that the contents of sanction order and draft sanction order are same, but this fact in itself cannot be a reason to say that there had not been due application of mind. Ld. Counsel has not specified any mandate in this regard to establish that if the sanction order is verbatim same to the draft sanction order, it results into non application of mind by the sanctioning authority.
178. Same observations made by Delhi High Court may be referred to in this regard which were made in the case of Hari Shankar Sharma v. CBI, (2014) 4 HCC (Del) 577 in the following terms:
Page No. 112 of 117 (Niyay Bindu)
Special Judge (PC Act) CBI-13,
Rouse Avenue District Court, New Delhi
CNR No. DLCT11-001884-2019
CC No. 422/2019
RC-DAI-2019-A-0020-CBI-ACB-ND
U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) "17. Also, merely because the order granting sanction repeats the text of the draft sanction order cannot, ipso facto, mean that it is vitiated by non-application of mind. In Indu Bhusan Chatterjee v. State of W.B. [AIR 1958 SC 1482] , the Supreme Court held that if the competent authority, after perusing the material, signed a draft sanction order, it could not be said to be suffering from non-application of mind. Further, in State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 : AIR 1991 SC 1260] , the Supreme Court held that the order of sanction need not contain the detailed reasons in support thereof. This Court is, therefore, unable to agree with the submission of Mr Chopra that the sanction order stood vitiated on account of non-application of mind by PW 1 to the relevant materials."
179. In this regard, it may be considered that sending draft sanction order by the CBI is only a routine practice with the motive to help the sanctioning authority in framing the sanction order in a proper manner so that no point is left, unattended or un-responded. The sanctioning authority may adopt the same format according to its own understanding and there is no prohibition for the same. The important consideration is that before accepting the format of sanction order, the sanctioning authority himself forms his own independent opinion for according the sanction and that opinion should be formed on the basis of overall appreciation of materials collected during the investigation.
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Special Judge (PC Act) CBI-13,
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U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018)
180. If the testimony of PW2 is referred to, who was un-disputedly the sanctioning authority, then it is well evident that he deposed that request letter for sanction was sent along with copy of FIR along with other documents viz verification memo etc. and that after perusal of the material, he had applied his mind to see under what circumstances, the FIR was registered and role of the alleged accused persons named in the FIR and after being satisfied, he accorded sanction. During his cross-examination, most of the suggestions given by the Ld. Defence Counsel were declined by the said witness. From the testimony of PW-2, I am satisfied that PW-2 did not merely sign the sanction order in mechanical manner, rather before doing so, he went through the materials sent by CBI and thereafter only, he formed his opinion. Accordingly the contention of accused no 2 in respect of Sanction stands disproved.
181. Certain other arguments which are still remaining to be dealt with are also hereby taken into consideration. Ld. Counsel for accused no.1 has vehemently argued that the prosecution must prove the charges as have actually been framed. However, after considering the whole chain of circumstances as well as the deposition, in the light of the above discussion, no doubt remains to conclude that the charges framed against accused no.1 in respect of demand, acceptance and recovery have been duly proved, therefore, the observations of Hon'ble Supreme Court in Soundarajan Vs. State are rendered to be not applicable and the contentions raised by accused no.1 (vide para no. 54 of this order) are rendered to be baseless.
182. Another contention has also been raised by the Ld. Defence Counsels that the complaint i.e. PW7/A is not bearing any CO number or diary number Page No. 114 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) and that TLO has also admitted this fact. In this regard, it is clarified by Ld. PP for CBI that CO number is mentioned on the first page of verification memo Ex.PW10/A (Colly) as CO No. 29/2019. In this regard, this is notable that there is no such admission by TLO in his deposition, however, he has simply stated that it is a matter of record that the complaint is not bearing CO number. In view of the same, as not writing complaint number on the complaint is a minor discrepancy, the said contention of Ld. Defence Counsels becomes forceless.
CONCLUSION
183. I have gone through the case laws cited by both the parties. I find that more than one case law/judgment have been cited by both the parties to illustrate same legal principle, which was not actually required. I have referred to some judgments in my findings, as per requirement at that particular stage to illustrate the applicable legal principle. There cannot be any dispute regarding settled legal principles, however, decision in the case is also dependent upon the specific facts and evidence on the record. I have given my findings accordingly. On the basis of my above mentioned analysis of evidence, I find that accused no.1 while acting in his official capacity, did demand bribe amount of Rs.15000/- and accepted bribe of Rs.15000/- from the complainant, for the purpose of helping him by giving bail to the brother of complainant in respect of an FIR filed against the complainant, his brother and certain other family members. It is also revealed that in the whole transaction, accused no.2 is also involved in the conspiracy wherein he has been negotiating between accused no.1 and the complainant and convincing the complainant in respect of the same. I also find that accused no.1 has abused his official position to obtain aforesaid bribe amount and accused no.2 has acted in collusion with accused Page No. 115 of 117 (Niyay Bindu) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT11-001884-2019 CC No. 422/2019 RC-DAI-2019-A-0020-CBI-ACB-ND U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) no.1 by participating in the whole conspiracy.
184. Before giving the final decision in the present matter, we may seek guidance from the enlightening conclusion given by the Hon'ble Supreme Court in Neeraj Dutta (Supra) in the following words:
"92. Before we conclude, we hope and trust that the complainants as well as the prosecution make sincere efforts to ensure that the corrupt public servants are brought to book and convicted so that the administration and governance becomes unpolluted and free from corruption.
93. In this regard, we would like to reiterate what has been stated by this Court in Swatantar Singh v. State of Haryana:
"6.....Corruption is corroding, like cancerous lymph nodes, the vital veins of the body politic, social fabric of efficiency in the public service and demoralising the honest officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post. The reputation of being corrupt would gather thick and unchaseable clouds around the conduct of the officer and gain notoriety much faster than the smoke."
94. The above has been reiterated in A. B. Bhaskara Rao v. CBI by quoting as under from State of M. P. v. Shambhu Dayal Nagar :
"32. It is difficult to accept the prayer of the respondent that a lenient view be taken in this case. The corruption by public servants has become a gigantic problem. It has spread everywhere. No facet of public activity has been left unaffected by the stink of corruption. It has deep and pervasive impact on the functioning of the entire country. Large-scale corruption retards the nation-building activities and everyone has to suffer on that count."
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Special Judge (PC Act) CBI-13,
Rouse Avenue District Court, New Delhi
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CC No. 422/2019
RC-DAI-2019-A-0020-CBI-ACB-ND
U/section 120B IPC r/w Sec. 7 of PC Act 1988 of The P. C. Act, 1988 (as amended in 2018) DECISION
185. In view of my foregoing discussions, observations and findings, I reach the conclusion that prosecution has successfully proved a case of offence punishable under Section 7 of The Prevention of Corruption Act, 1988 (as amended in 2018), against the accused no.1 as well as the offences against both the accused persons punishable under Section 120-B IPC read with Section 7 of The Prevention of Corruption Act, 1988 (as amended in 2018) beyond all reasonable doubts. Therefore, both the accused Megha Ram and Govind Singh are held guilty for aforesaid offences and are convicted accordingly.
186. Before parting with this judgment, it is relevant to record here that evidence on record of this case confirms that complainant/PW7 did depose falsely before this court, in respect of several facts viz. the factum of demand of money as well as acceptance of the same, keeping tainted money in the file of accused in his presence and with his consent, the identification of accused persons and their voices, date of the verification proceeding etc. He is, therefore, liable to be tried for perjury as per procedure u/s 344 Cr.P.C. Hence, he is being summoned accordingly.
NIYAY Digitally signed
by NIYAY BINDU
Date: 2024.03.27
BINDU 16:37:13 +0530
Announced in the open court (NIYAY BINDU)
today on 27th Day of March, 2024 Special Judge (PC Act) CBI-13,
(This Judgment contains 117 pages) Rouse Avenue Court Complex,
New Delhi.
Page No. 117 of 117 (Niyay Bindu)
Special Judge (PC Act) CBI-13,
Rouse Avenue District Court, New Delhi