Delhi District Court
Cbi vs Mayank Yadav on 18 November, 2024
IN THE COURT OF SH. SUDHANSHU KAUSHIK :
SPECIAL JUDGE (PC ACT) (CBI)-11 :
ROUSE AVENUE COURT COMPLEX : NEW DELHI
CC No.: 52/22
RC No. 0032022A0033/ACB/CBI/New Delhi
u/Sec: 7 of PC Act, 1988.
CNR No.: DLCT11-000610-2022
CENTRAL BUREAU OF INVESTIGATION
VERSUS
MAYANK YADAV
S/o Sh. Dharmendra Pal Singh Yadav
The then Sub-Inspector
Delhi Police, PS Kishangarh, New Delhi
R/o 2132/1, Isaitola-8, Deen Dayal Nagar
PS Prem Nagar, Jhanshi, U.P.
Present address:
Flat No. D-303, Park Floor-1
BPTP Pride, Sector-77
Faridabad, Haryana
Date of registration of FIR : 12.12.2020
Date of filing of charge-sheet : 30.09.2022
Arguments concluded on : 21.10.2024
Date of Judgment : 18.11.2024
Appearance :
For Prosecution : Sh. Avanish Kumar Chand, Ld. P.P. for the CBI.
For accused persons : Sh. Sanjeev Bhardwaj, Counsel for accused.
CC No. 52/22
CBI Vs. Mayank Yadav Page No. 1 of 102
JUDGMENT
1. Accused Mayank Yadav, a Sub-Inspector of Delhi Police, was sent up for trial for committing an offence punishable under Section 7 of The Prevention of Corruption Act, 1988 (hereinafter referred to as 'PC Act').
Brief Facts as disclosed in the charge-sheet
2. It is the case of prosecution that on 06.06.2022, PW-8 Sh. Paramjeet Singh Khurana (hereinafter referred to as 'the complainant') came at the office of Superintendent of Police, Anti-Corruption Branch, Central Bureau of Investigation (hereinafter referred to as 'CBI') and submitted a handwritten complaint (Ex.PW8/A) alleging that accused Mayank Yadav, who was investigating case FIR No. 508/2020 registered at Police Station Kishangarh, was demanding a bribe of Rs.15,000/- for not arresting his son in the said FIR. In order to verify the allegations, the complaint was marked to PW-7 Ashutosh Tiwari, Inspector, ACB, CBI, Delhi, who decided that complainant shall meet the accused at the police station and their conversation shall be recorded on a Digital Video Recorder (DVR). PW-9 Harinder Singh, an employee of DSIIDC, Delhi Government was joined as an independent witness and was directed to accompany the complainant as shadow witness and remain at a safe distance to over hear the conversation. It has been disclosed that on CC No. 52/22 CBI Vs. Mayank Yadav Page No. 2 of 102 06.06.2022, after fixing a meeting with the accused, complainant went to the police station Kishangarh with a DVR hidden in his turban and recorded the conversation. Over this conversation, accused reiterated the demand of the bribe of Rs.15,000/- and demanded an additional amount of Rs.5,600/- for the paper work involved in preparing the charge-sheet. Rough Transcript of the recorded conversation was prepared. The DVR and the memory card used for recording the conversation were sealed and a verification memo (Ex.PW7/A) was prepared. On verifying the allegations, a case bearing RC No. 0032022A0033 was registered on 07.06.2022 under Section 7 of the PC Act.
3. On registration of the FIR, the investigation was assigned to PW-14 Dharambir Singh, Inspector, CBI, ACB, Delhi (Trap Laying Officer), who constituted a trap team consisting of himself, other officers of CBI and two independent witnesses; Sh. Harender Kumar (PW-9) and Sh. Anil Kumar (PW-11). Preparations were made for executing the trap on 07.06.2022 and apprehending the accused red handed. The members of the team were introduced to each other and were briefed about the purpose of the trap. They were explained about the significance of phenolphthalein powder and its chemical reaction of turning pink after coming in contact with a solution of sodium carbonate and water. Complainant was directed to bring a sum of Rs.15,000/-
CC No. 52/22 CBI Vs. Mayank Yadav Page No. 3 of 102(to be offered as bribe) and he brought the same in the form of seven (7) Government Currency (GC) notes in the denomination of Rs.2000/- each and two (2) currency notes in the denomination of Rs.500/- each. The currency notes were treated with phenolphthalein powder and thereafter, the members of the trap team washed their hands with soap and water. Instructions were given to the complainant not to touch the bribe amount and hand over the same to the accused on his specific demand. PW-9 Harender Kumar was again deputed as a shadow witness to accompany the complainant to the police station for delivering the bribe amount with instructions to see and overhear the entire transaction. In order to record the conversation at the time of the transaction, the sealed DVR which was earlier used in the verification proceedings was opened and a new memory card was inserted therein on which introductory voices of both the independent witnesses were recorded. A pre-trap memo (Ex.PW7/B) was prepared and the members of the trap team were directed to proceed to the Kishangarh police station.
4. The prosecution's case proceeds further that on the way to the police station, at around 01:56 PM, complainant made a whatsapp call on the mobile of accused, who disclosed that he is at Dwarka Court and would be reaching the police station at around 03:00 PM. Complainant made this call while keeping his CC No. 52/22 CBI Vs. Mayank Yadav Page No. 4 of 102 mobile phone on speaker mode and the conversation was recorded on the DVR. At around 02:05 PM, the trap team reached at a spot near the police station and at around 02:08 PM, complainant received a whatsapp call from the accused, who mentioned that he would be reaching the police station within 30 minutes. At around 02.50 PM, complainant received another whatsapp call from the accused over which he disclosed that he had reached the police station. The conversations made over both the calls were recorded on the DVR.
5. It is the prosecution's case that complainant was briefed to go inside the police station to hand over the bribe amount and give signal to the trap team after the completion of transaction. The DVR was hidden in his turban for recording the conversation during the transaction. Complainant and PW-9 went inside while the other members of the trap team took position outside the police station. It has been stated that after handing over the bribe amount to the accused, at around 03:17 PM, complainant came outside and made a whatsapp call on the mobile of PW-14 Inspector Dharambir but the call could not be heard. Thereafter, he made another call informing that the transaction has been completed and the bribe has been handed over to the accused. On receiving the said information, the members of the trap team went inside the police station. PW-14 immediately took the DVR CC No. 52/22 CBI Vs. Mayank Yadav Page No. 5 of 102 from the complainant and switched it off. One of the team members identified the accused from his name plate and he was apprehended by the CBI officials.
6. It has been alleged that the complainant disclosed to the CBI officials that at the time of accepting the bribe, accused kept a white A4 size paper sheet on the table of his cabin and directed him by gestures to put the currency notes on the said paper. He further disclosed that he complied with the directions and thereafter, accused folded the white paper and kept it in the drawer of his table. On being confronted, accused disclosed that after accepting the bribe, he wrapped the currency notes in a white A4 size paper sheet and kept it on an almirah lying outside the CCTNS Room of the police station. On the pointing of the accused, the currency notes were recovered from the top of the almirah. Thereafter, CBI officials took him to a room on the first floor of the police station and carried out the investigation. Numbers of the recovered currency notes were compared with those handed over to the complainant and they were found to be the same. The recovered currency notes were sealed in the presence of independent witnesses. Separate washes of the right and left hand fingers of the accused were obtained and the colour of the both the solutions turned pink. Traces of phenolphthalein powder were also found in the table drawer kept in the cabin of CC No. 52/22 CBI Vs. Mayank Yadav Page No. 6 of 102 accused as well as in the paper in which the bribe money was wrapped. Separate pieces of clothes were taken and rubbed in the table drawer as well as on the paper sheet and on each occasion, the solution of sodium carbonate and water turned pink after the pieces of clothes were dipped in the said solution. In a similar manner, a separate piece of cloth was rubbed on the upper surface of the almirah from where the bribe money was recovered and it was also dipped in the solution of sodium carbonate and water but the colour of the solution remain unchanged. The solutions were kept in separate bottles and the same were labeled and sealed.
7. Necessary documentation was done and the statements of the witnesses were recorded. During the course of investigation, the conversations recorded on the memory cards were heard and transcripts of the same were prepared in the presence of independent witnesses. The specimen voice samples of the complainant and accused were obtained and the same were sent to CFSL for comparison with the recorded conversations. The bottles containing the hand and other washes were also sent to CFSL. Since, accused was a public servant, therefore, requisite sanction was obtained under Section 19 of PC Act. The investigation concluded and the charge-sheet was filed in the court.
CC No. 52/22 CBI Vs. Mayank Yadav Page No. 7 of 1028. Cognizance was taken on the basis of the charge-sheet and the accused was summoned. Copy of the charge-sheet and the documents were supplied to the accused. Arguments were heard on the point of charge and the charge was framed under Section 7 of PC Act to which the accused pleaded not guilty and claimed trial.
Prosecution Witnesses
9. Fourteen (14) prosecution witnesses were examined.
Sanctioning Authority 9.1 PW-1 Sh. Manoj C, Dy. Commissioner of Police (South- West), New Delhi (official granting sanction under Section 19 of the PC Act) deposed that the sanction was granted by him after due application of mind. He mentioned that he perused all the relevant documents and granted the sanction. He mentioned that a vigilance inquiry was carried out against the accused and the report of the inquiry Ex.PW1/A was submitted to him. The sanction order is Ex.PW1/B. Complainant 9.2 PW-8 Sh. Paramjeet Singh Khurana (complainant) supported the prosecution's case. He mentioned about lodging a written complaint with the CBI. He deposed that he met the CC No. 52/22 CBI Vs. Mayank Yadav Page No. 8 of 102 accused at the police station on 06.06.2022 and 07.06.2022. He mentioned that on both the occasions, an independent witness accompanied him and the conversations between him and the accused were recorded on a DVR. He gave an account of the recovery mentioning that the same was effected at the instance of the accused. He deposed about his participation in the investigation and mentioned that accused demanded and accepted the bribe. His detailed testimony has been dealt with in the later part of the judgment.
Independent Witnesses 9.3 PW-9 Harender Kumar (witness to the verification and trap proceedings) narrated the manner in which he was called to CBI office and asked to join the verification proceedings on 06.06.2022. He stated that although, he accompanied the complainant to the police station but the conversation between the complainant and the accused did not take place in his presence. He did not support the prosecution's story that the memory card was sealed in his presence and the seal, after use, was handed over to him. He stated that during his presence, no proceedings in respect to the memory card were conducted on 06.06.2022. He deposed on similar lines in respect of the chain of events of 07.06.2022. He mentioned that on the said day, he accompanied the complainant to the police station but did not CC No. 52/22 CBI Vs. Mayank Yadav Page No. 9 of 102 enter the room where the cabin of the accused was situated. He supported the prosecution's version to some extent in the examination-in-chief but changed his stand during cross- examination. He stated in examination-in-chief that recovery was effected at the instance of the accused but mentioned in cross- examination that the recovery was made independently by the CBI officials. He mentioned that the recovery was made from the top of an almirah and the accused was directed to pick the currency notes. He did not support the complainant's version on material aspects.
9.4 PW-11 Anil Kumar (second independent witness) mentioned that he joined the trap team on 07.06.2022 at around 10:30 AM. He deposed on the lines of PW-9 Harender Kumar by giving a similar account of the preparations made at the office of CBI before proceeding to the spot near police station Kishangarh. He narrated the manner in which the accused was apprehended and the recovery was made. He mentioned that after being apprehended, accused was not telling anything about the bribe money and therefore, he was taken to a room at the police station. He mentioned that accused was slapped by an official of the trap team. He stated that at the time when the accused was slapped by the CBI official, SHO and other police officials reached there and told them not to give beatings to the accused.
CC No. 52/22 CBI Vs. Mayank Yadav Page No. 10 of 102He mentioned that thereafter, he heard a voice claiming that the bribe money has been found. He stated that Insp. Dharambir took the accused to an almirah lying in the corner of the gallery of the police station and directed him to lift the money from the top of the almirah. He conveyed that accused picked the money and handed it over to him. He mentioned that the recovered currency notes were tallied and found to be the same which were kept in the pocket of the complainant. He also stated about the proceedings carried out by the CBI officials after the recovery of the bribe amount. He deposed about his participation in the subsequent investigation pertaining to the preparation of the transcripts.
Witnesses of investigation 9.5 PW-7 Ashutosh Tiwari, Inspector, ACB, CBI (the official carrying out the verification proceedings) justified the investigation and gave an account of the verification proceedings. He deposed that in order to verify the allegations, an independent witness was called and preparations were made to record the conversation between the accused and the complainant. He gave a detailed account of the manner in which the complainant and the independent witness Harender Kumar were sent to the police station on 06.06.2022. He deposed that the conversation pertaining to the demand made by the accused was recorded on CC No. 52/22 CBI Vs. Mayank Yadav Page No. 11 of 102 the DVR and transcripts were prepared. He mentioned that the DVR and the memory card were sealed and the seal was handed over to independent witness Harender Kumar with directions to come again on the next day. He gave a detailed account of the trap proceedings as well as the recovery of bribe money. He stated that the team members apprehended the accused at his cabin on the ground floor. He mentioned that after being apprehended, accused disclosed that he had kept the bribe money on an almirah placed near CCTNS room. He mentioned that the bribe money was recovered from the top of the almirah by the independent witness. He also gave account of the investigation carried out by CBI officials including the collection of the voice samples and the sealing of the bottles containing hand-washes of the accused.
9.6 PW-14 Insp. Dharambir Singh (Trap Laying Office/First Investigating Officer) gave an account of the manner in which the trap was laid. He mentioned the telephonic conversations between the accused and the complainant were recorded on each occasion and transcripts of the same were prepared. He gave a detailed account of the recovery. He mentioned that after being apprehended, accused disclosed that he had kept the bribe money on the top of an almirah lying outside the CCTNS room. He conveyed that on receiving this information, the team members CC No. 52/22 CBI Vs. Mayank Yadav Page No. 12 of 102 took the accused to the spot where the almirah was kept and accused picked the money from the top of the almirah and handed it over to the independent witness Anil Kumar. He stated that the independent witnesses counted and tallied the currency notes with the details noted down in the pre-trap memo. He disclosed that the currency notes were found wrapped in an A4 size white paper. He deposed about the investigation carried out at the room on the first floor of the police station. He deposed that the specimen voice samples of the accused as well as complainant were obtained on separate memory cards. He stated that all the proceedings were carried out in the presence of independent witnesses.
9.7 PW-13 Sh. Ajay Kumar, Addl. Superintendent of Police (Second Investigating Officer) stated that the investigation was assigned to him on 13.06.2022. He mentioned that he collected the relevant documents from the police station Kishangarh and recorded the statements of the witnesses under Section 161 of Cr. P.C. He mentioned that the transcripts of the recorded conversations were prepared and the same were filed along with the charge-sheet. He deposed about collecting the Call Details Record (CDR), Customer Application Form (CAF) and other details pertaining to the mobile phones of the complainant and the accused. He mentioned that the solutions containing the hand CC No. 52/22 CBI Vs. Mayank Yadav Page No. 13 of 102 washes and the other washes were sent to CFSL. He stated that the voice samples and recorded conversations were also sent to CFSL. He mentioned about obtaining the sanction under Section 19 of PC Act.
Nodal Officers of mobile service provider 9.8 PW-2 Sh. Shashank Tyagi, Nodal Officer, Vodafone Idea (official providing the details of the mobile phone of the accused) stated that he provided the CDRs, CAF and GPRS details of the mobile phone of the accused to CBI after receiving a notice from Sh. Rajiv Kumar, SP (CBI). He mentioned that the relevant details were handed over by him vide a covering letter dated 19.08.2022. The certified copies of the CAF, CDRs, GPRS of the call records and the copy of the Aadhar Card of the accused along with a certificate under Section 65B of the Indian Evidence Act are Ex.PW2/A (colly).
9.9 PW-3 Sh. Rajiv Vashisht, Nodal Officer, Bharti Airtel (official providing the details of the mobile phone of the complainant) stated that he provided the CDRs, CAF and GPRS details of the mobile phone of the complainant to the CBI. He mentioned that he handed over the relevant details vide a covering letter dated 01.09.2022. The certified copies of the CAF, CDRs along with a certificate under Section 65B of the CC No. 52/22 CBI Vs. Mayank Yadav Page No. 14 of 102 Indian Evidence Act are Ex.PW3/A (colly).
Expert Witnesses 9.10 PW-4 Ms. Deepti Bhargava, Sr. Scientific Officer, Grade- II, Asst. Chemical Examiner, CFSL (Official giving report on hand and other washes) supported the report given by her in respect of the examined solutions sent for examination in five different bottles. The report given by her is Ex.PW4/A. She deposed that phenolphthalein was found present in each of the solutions. The bottles containing the solutions are Ex.PW1/C to Ex.PW1/J. She deposed that the seals on the bottles were intact till the time they were examined.
9.11 PW-12 Sh. Amitosh Kumar, Asst. Director & Scientific 'C' (Physics), CFSL (official giving report on the voice samples and recordings) supported the report given by him, which is Ex.PW12/B. He deposed that the voice samples and the recordings were received at the office of CFSL in five sealed parcels vide a request letter Ex.PW12/A. He deposed that he carried out the examination and gave the report. He supported the finding given by him in his report.
Witnesses from police station Kishangarh 9.12 PW-5 Insp. Shambhu Nath (SHO, PS Kishangarh) deposed CC No. 52/22 CBI Vs. Mayank Yadav Page No. 15 of 102 that he was present at the police station at the time when the accused was apprehended. He mentioned that at around 03:30 PM, he came out of his room after hearing a commotion at the police station and saw that accused was being manhandled by some persons in civil dress. He stated that it was found on enquiries that the persons in the civil dress were CBI officials. He conveyed that the recovery was not made at the instance of the accused and the same was effected independently by the CBI officials. He deposed that while the CBI officials were making enquiries from the accused, one of them was heard saying that the bribe money has been found kept over an almirah lying at a distance of around 20 feet from the room of the accused.
9.13 PW-6 Insp. Kailash Chand, PS Kishangarh (official, who handed over the relevant documents to the CBI) deposed that in response to a notice dated 08.07.2022, he handed over documents pertaining to the FIR No. 508/2020 to the CBI officials.
9.14 PW-10 ASI Shrikant Malik, PS Kishangarh (witness of the voice identification) identified his signatures on the transcripts but failed to identify the voice of the accused in the recorded conversations. He was declared hostile and cross-examined by the prosecution but he kept reiterating the earlier version that he cannot identify the voice of the accused.
CC No. 52/22 CBI Vs. Mayank Yadav Page No. 16 of 102Statement of Accused
10. On conclusion of prosecution evidence, statement of accused was recorded under Section 313 of Cr. P.C. wherein, he denied the evidence and took the defence of false implication. He stated that that complainant has falsely implicated him and the recovery has been planted. He mentioned that complainant wanted that he should file a cancellation report in FIR No. 508/2023 but he refused to do so and because of this reason, complainant developed a grudge against him. He mentioned that complainant falsely implicated him in the present matter to settle his score.
Defence Witnesses
11. Accused examined four defence witnesses.
11.1 DW-1 Sub-Inspector Kailash (RTI Cell, Vasant Vihar, DCP Office) deposed that accused filed an application dated 04.03.2024 seeking information under the RTI Act and the same was provided to him vide reply dated 01.04.2024. He mentioned that certain documents were also supplied to the accused.
11.2 DW-2 Sub-Inspector Shiv Kumar (Retd.) claimed that he was present at the time when the complainant came to the police station. He stated that he used to take help of the accused in CC No. 52/22 CBI Vs. Mayank Yadav Page No. 17 of 102 certain matters as he was not well versed in English language. He mentioned that on 07.06.2022, at around 03:00 PM, he went to the room of accused and found that one Sardar Ji was standing over there. He deposed that on his request, accused accompanied him to his room and remained there for around 5 to 6 minutes and thereafter, returned to his room. He mentioned that after about 2 to 3 minutes, he heard that some quarrel was going on in the room of the accused. He stated that he came out of his room and in the meantime, the SHO of the police station also came out of his room. He tried to convey that the accused was not present at the spot at the time when the bribe money was found by the CBI officials. He stated that he saw the complainant and other persons standing near an almirah which was lying at a distance of around 10-12 steps away from the room of the accused. He mentioned that he heard somebody claiming that the bribe money has been found. He stated that thereafter, accused was brought out from his room by 4 to 5 persons and taken towards the almirah and after around 1 to 2 minutes, he was taken to the first floor of the police station.
11.3 DW-3 ASI Anil Kumar deposed that he was present in the police station on 06.06.2022 as well as on 07.06.2022. He has conveyed that although, complainant came to the police station on 06.06.2022 but he could not meet the accused as he was not CC No. 52/22 CBI Vs. Mayank Yadav Page No. 18 of 102 present at the police station. He mentioned that on 07.06.2022, at around 03:00 PM, complainant came at the cabin and at the same time, SI Shiv Kumar (DW-2) also entered the room and requested the accused to accompany him to his room. He stated that the accused accompanied SI Shiv Kumar to his room and came back after 6 to 7 minutes and, thereafter, the complainant left the room. He mentioned that after about 2 to 3 minutes, CBI officials entered the room and apprehended the accused. He has deposed more or less on the lines of SI Shiv Kumar (DW-2).
11.4 DW-4 HC Yashwant also deposed that he was present at the police station on 06.06.2022 as well as on 07.06.2022. The witness also deposed on the lines of other defence witnesses. He mentioned that complainant did not meet the accused on 06.06.2022.
Arguments Arguments on behalf of CBI
12. Ld. PP for CBI has argued that prosecution has established its case beyond reasonable doubt. He has submitted that there is overwhelming evidence to substantiate the charge under Section 7 of the PC Act. He has mentioned that complainant has fully supported the prosecution's case and his testimony has remained un-impeached. He argued that independent witnesses have also supported the prosecution's story. He mentioned that although CC No. 52/22 CBI Vs. Mayank Yadav Page No. 19 of 102 there are minor discrepancies in the testimony of the complainant but the same are inconsequential. He contended that minor discrepancies are bound to occur in the testimony of a witness and the same do not raise any doubt over his veracity. He argued that the testimony of the complainant finds corroboration from the recorded conversations. He mentioned that the testimony of the complainant, read in the light of the transcripts of the recorded conversations, leaves no scope for doubt that accused demanded and accepted the bribe from the complainant. He stated that the voice samples and the recorded conversations were sent to the CFSL and the same were examined by an expert. He mentioned that the expert witness has given a positive finding that the voice found on the recorded conversation was that of the accused.
12.1 Ld. PP for CBI has further argued that under the amended provisions of the PC Act, 1988 (as amended by Act 2016 of 2018), the demand of an undue advantage itself constitutes an offence under Section 7 of the PC Act as the same is covered under the phrase 'attempt to obtain'. He contended that the charge under Section 7 of the PC Act stands proved merely by establishing that the public servant demanded the undue advantage and it is not essential to establish the acceptance of the said advantage. He contended that there is cogent evidence to CC No. 52/22 CBI Vs. Mayank Yadav Page No. 20 of 102 establish that accused demanded the bribe on 06.06.2022 as well as on 07.06.2022. He mentioned that complainant is an honest and truthful witness. He argued that the testimony of the complainant is reliable and there is no reason to doubt his version. He has argued that the currency notes were recovered at the instance of the accused. He mentioned that the traces of phenolphthalein powder were found not only in the hand washes of the accused but also in the washes obtained from his drawer as well as from the paper wherein the currency notes were kept. He stated that the CFSL has returned a positive finding about the presence of phenolphthalein powder in the examined solutions and this fact further corroborates the version of the complainant that the bribe amount was duly accepted by the accused.
12.2 Ld. PP for CBI has argued that there might be minor infirmities in the investigation but the same do not affect the outcome of the trial. He has argued that accused does not stand to gain any advantage merely because of the reason that the investigation could have been done in a more meticulous manner. He mentioned that the investigating officer and the members of the trap team have supported the prosecution's case. He stated that these witnesses have also corroborated the version of the complainant. He argued that the currency notes were recovered from the top of the almirah at the pointing of the accused. He CC No. 52/22 CBI Vs. Mayank Yadav Page No. 21 of 102 mentioned that the fact that the recovery was made at the instance of the accused demonstrates that he had knowledge of the place where the bribe money was kept. He stated that after receiving the bribe money, accused had ample opportunity to keep the same on the top of the almirah. He stated that accused has tried to build up a story that he was not present at the police station during the visits of the complainant but there is no evidence to substantiate this story. He mentioned that the CDRs confirm the presence of accused at the police station during the visits of the complainant.
12.3 Ld. PP for CBI has further argued that the testimonies of defence witnesses are not reliable. He mentioned that the defence witnesses are police officials, who were working with the accused and posted at the same police station. He stated that such witnesses are bound to support the version of the accused on account of their familiarity with him. He argued that the testimonies of the defence witnesses need to be discarded. He mentioned that there was no reason for the complainant to falsely implicate the accused in the present matter. He mentioned that no prudent man would go to the extent of taking pains and planting the currency notes to falsely implicate a police official. He stated that each stage of investigation was duly documented and the documents have been proved during trial. He mentioned that the CC No. 52/22 CBI Vs. Mayank Yadav Page No. 22 of 102 sanctity of the case property was also preserved by sealing it at various stages of investigation. He mentioned that there was no possibility of tampering with the sealed case property.
12.4 Ld. PP for CBI has emphasised that the provisions of the PC Act should be read and interpreted in the light of the object of the Act as disclosed in its Preamble. He contended that the purpose of the Act is to nail down and punish the public servants found involved in corrupt activities and the evidence needs to be interpreted and evaluated accordingly. He mentioned that the testimonies of the witnesses, read in the light of documents, establish beyond reasonable doubt that accused committed an offence punishable under Section 7 of PC Act. In support of his arguments, Ld. PP relied upon judgments in the matters of Munna Lal Vs. State of U.P. 2023 Live Law (SC 60), Hema Vs. State Crl. Appeal No. 31/2013, State of Punjab Vs. Karnail Singh AIR 2003 SC 3609, Prahlad Saran Gupta Vs. Bar Council of India, State of U.P. Vs. M.K. Anthony AIR 1985 SC 48, Bhogni Bhai Vs. State of Gujarat AIR 1983 SC 759, Faquira Vs. State of U.P. AIR 1976 SC 915, Iqbal Musa Patel Vs. State of Gujarat 2011 SCC (Crl.) 654 and C.M. Sharma Vs. State of Andhra Pradesh 2013 (2) SCC, Soundarajan Vs. State 2023 SC 424, P. Sarangapani Vs. State of Andhra Pradesh 2023 SCC 1200, Neeraj Dutta Vs. State of NCT of Delhi and CC No. 52/22 CBI Vs. Mayank Yadav Page No. 23 of 102 State of M.P. Vs. Ram Singh 2000 SCC 88.
Arguments on behalf of accused
13. On the other hand, Ld. defence counsel argued that prosecution has miserably failed to establish the charge under Section 7 of the PC Act. Counsel has contended that in order to establish a charge under Section 7 of PC Act, the prosecution is under an obligation to prove demand, acceptance as well as recovery of the bribe money. He mentioned that these ingredients are required to be established to bring home a charge under Section 7 of the PC Act. He mentioned that in so far as the ingredients of the offence are concerned, there is not much change in the position even after the amendment carried out by way of Amendment Act of 2018. He mentioned that the argument of the prosecution that demand itself constitutes an offence under Section 7 of PC Act is misconceived. He contended that the evidence is insufficient to establish the essential ingredients of the offence under Section 7 of the PC Act. He argued that the testimonies of the prosecution witnesses are unreliable. He mentioned that there is no evidence to conclusively establish that accused demanded bribe either on 06.06.2022 or on 07.06.2022.
13.1 Ld. Defence Counsel argued that the independent CC No. 52/22 CBI Vs. Mayank Yadav Page No. 24 of 102 witnesses have not supported the prosecution's case on the aspect of recovery. He contended that the defence witnesses have completely demolished the prosecution's case. He stated that defence witnesses have deposed that complainant never met the accused at the police station on 06.06.2022. He stated that the defence witnesses have further conveyed that the complainant met the accused on 07.06.2022 for a brief period and during this meeting, there was no possibility of demanding the bribe. He mentioned that the testimonies of these witnesses falsify the prosecution's story that accused raised the demand of bribe on 06.06.2022 and 07.06.2022. He has argued that the testimonies of the defence witnesses demonstrate that no demand of bribe was raised by the accused at any point of time. He mentioned that it is settled proposition that the testimonies of defence witnesses should be treated at par with the testimonies of prosecution witnesses. He mentioned that the testimonies of defence witnesses should not be doubted merely because they are police officials.
13.2 Ld. Defence Counsel has further argued that there is evidence on record to show that accused was not present at the police station at the alleged time on 06.06.2022, when the complainant visited the police station. Counsel has argued that although, complainant has deposed that he made normal as well CC No. 52/22 CBI Vs. Mayank Yadav Page No. 25 of 102 as whatsapp calls to the accused but there is no evidence to establish this aspect. He argued that evidence demonstrates that no normal calls were made by the accused to the complainant as otherwise, the same would have been reflected in the CDRs. Counsel submitted that the purported calls, made by the accused to the complainant through whatsapp, could have been easily identified by means of Internet Protocol Detail Report (IPDR) but no efforts were made to procure the same. He has contended that an adverse inference needs to be drawn in view of the fact that the investigating agency deliberately did not collect the said details. Counsel has pointed out that there are contradictions in the testimonies of prosecution witnesses. He has contended that the entire case of the prosecution rests upon the testimony of the complainant but the same is not reliable. He stated that complainant falls under the category of an interested witness and it is unsafe to rely on the uncorroborated testimony of such a witness. He has mentioned that complainant had made material improvements in his testimony. He has contended that there is material on record to show that complainant was in the habit of making frequent complaints against police officials. He argued that complainant wanted that accused should file a closure report in respect of the FIR registered against him and when he failed to do so, he falsely implicated him in the present matter to settle the score. He argued that independent witnesses have not supported CC No. 52/22 CBI Vs. Mayank Yadav Page No. 26 of 102 the testimony of the complainant.
13.3 Ld Defence Counsel argued that there are discrepancies in the documents when the same are read in the light of the testimonies of prosecution witnesses. He contended that the timings mentioned in the verification memos do not match with the testimonies of CBI officials. He mentioned that both the independent witnesses have stated that they did not see the actual transaction. He argued that the recovery is doubtful. He contended that there is evidence to establish that accused was present in his room at the time when the recovery was made by the CBI officials. He has argued that the defence witnesses as well as independent witnesses have categorically deposed that accused was sitting in the room at the time of recovery. He has argued that the recovery has been planted upon the accused. He has contended that there are gaps in the prosecution story and the possibility of false implication cannot be ruled out.
13.4 Ld. Defence Counsel has argued that key witnesses have deposed that CBI officials independently found the bribe money lying on the top of the almirah. He mentioned that investigating officer concocted a false story that recovery was effected at the instance of the accused. He mentioned that prosecution has failed to establish as to how the accused allegedly kept the bribe money CC No. 52/22 CBI Vs. Mayank Yadav Page No. 27 of 102 on the top of the almirah. He stated that this necessary link is missing and no explanation has been tendered in this regard. He contended that the evidence in the form of hand washes of the accused needs to be rejected as there is evidence to show that the investigating officer directed the accused to pick the currency notes from the top of the almirah. He mentioned that the report given by the CFSL in respect of the presence of phenolphthalein powder is also not reliable. He stated that it is the prosecution's case that the phenolphthalein powder was not found in the wash of cloth rubbed on the top of the almirah whereas CFSL has returned a positive finding in respect of all the washes. He stated that CFSL furnished the report in a mechanical manner without performing any test and the report needs to be discarded.
13.5 Ld. Defence Counsel has argued that the recorded conversations are not reliable. He mentioned that none of the prosecution witnesses has identified the voice of the accused. He stated that although, prosecution examined a witness from the same police station but he failed to identify the voice of the accused. He stated that in the absence of the said identification, no reliance can be placed on the recorded conversation. He mentioned that the transcripts of the recorded conversations are also not reliable. He mentioned that deliberate omissions were made in the transcripts and the same were revealed when the CC No. 52/22 CBI Vs. Mayank Yadav Page No. 28 of 102 recorded conversations were played in the court and tallied with the transcripts. He stated that it was found in the recorded conversation that accused refused the offer of the complainant but this aspect was deliberately omitted in the transcripts. He contended that the omissions point towards the tendency of the investigating agency to falsely implicate the accused.
13.6 Ld. Defence Counsel has further argued that there are serious infirmities in the investigation. He stated that prosecution has failed to establish that the memory cards on which the recorded conversations were captured were properly sealed by the investigating officer. He mentioned that the prosecution came up with the story that the memory cards were sealed and the seal was handed over to an independent witness but the independent witness has denied this version. He mentioned that the memory cards were opened and sealed on various occasions but the chain of custody was not maintained. He stated that the investigating officer did not prepare the site plan of the place of recovery. He mentioned that no efforts were made by the investigating officer to preserve the sanctity of the copied data of the memory cards as the hash values were not collected. He stated that the investigation was done in a casual manner and there are discrepancies between the time mentioned on the memos and the chain of events narrated by the prosecution witnesses. He CC No. 52/22 CBI Vs. Mayank Yadav Page No. 29 of 102 mentioned that there is evidence to show that after giving demonstration of the properties of phenolphthalein powder, the CBI team took the remaining powder along with them during the trap proceedings. He contended that no explanation has been tendered by the CBI officials for carrying the said powder to the spot.
13.7 Ld. Defence Counsel has argued that it is the prosecution's version that accused collected the bribe money by directing the complainant to put the same on a paper sheet and, thereafter, kept the same in his table drawer. He mentioned that complainant has stated that accused gave him oral direction to put the bribe money on a paper but the recorded conversation does not support this theory. He mentioned that complainant initially disclosed that accused conveyed him by gestures that he should put the bribe money in the drawer but he changed this version during his examination in the court. He mentioned that prosecution has failed to establish as to how the currency notes kept in the drawer of the accused were found on the top of the almirah. He mentioned that complainant has tried to explain this aspect by deposing that after he went out of the room, accused followed him outside. He stated that this improved version of the complainant further highlights his tendency to implicate the accused. He stated that uncorroborated testimony of the CC No. 52/22 CBI Vs. Mayank Yadav Page No. 30 of 102 complainant cannot form the basis for conviction.
13.8 Ld. Defence Counsel further argued that CFSL Report is false and inadmissible. He has argued that the official who has furnished the report cannot be categorised as an expert witness as he does not possess the requisite qualification and experience. He stated that the official has not undergone any specialised training to analyse and identify the voice samples. He stated that the opinion of such a witness cannot be relied on for a conclusive finding in respect of a recorded conversation. He contended that the expert has not been notified under Section 79A of Information and Technology Act and therefore, his testimony should be discarded.
13.9 In support of his arguments, Ld. Defence Counsel relied upon judgments in the matters of Mahindra Singh Vs. State of M.P. 2022 (7) SCC 157, Sudesh Kaushik Vs. CBI Crl. AppealNo. 629/2009 decided on 08.12.2022, Dashrath Singh Chauhan Vs. CBI Crl. Appeal No. 1276/2010 decided on 09.10.2018, N. Sunkanna Vs. State of Andhra Pradesh Crl. Appeal No. 1355/2015 decided on 14.10.2015, Slevaraj Vs. State of Karnataka Crl. Appeal No. 1172/2008 decided on 18.08.2015, State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede 2009 (4) CC Cases (SC) 31, Parmanand Vs. CC No. 52/22 CBI Vs. Mayank Yadav Page No. 31 of 102 CBI Crl. Appeal No. 132/2004 decided on 03.07.2013, State of Rajasthan Vs. Mohan Lal 2009 (2) RCR (Criminal), Kanti Prasad Vs. State 2014 (3) RCR 570 Delhi, C. Sukumar Vs. State of Kerala Crl. Appeal No. 192/2015, Sunil Kumar Sharma Vs. State (CBI) 2007 (3) Crimes 160 Delhi, B. Jayaraj Vs. State of A.P. 014 (3) JCC 1552, P. Satyanarayana Murthy Vs. The District Inspector of Police & Anr. 2015 (4) JCC 2674 (Supreme Court), Nilesh Dinkar Paradkar Vs. State of Maharashtra, 2011 (4) SCC 143, Prem Singh Yadav Vs. CBI 2011 (2) JCC 1059 Delhi, Chhote Lal Vs. Rohtash & Ors. Crl. Appeal No. 2490/15 decided on 14.12.2023, M.K. Harshan Vs. State of Kerala 1996 (11) SCC 720, Suresh Kumar Vs. State 2009 (4) RCR (Cr.) 608 (P&H), State of Rajasthan Vs. Daulat Ram AIR 1980 SC 1314, State Vs. K. Narsimhachari AIR 2006 SC 628 and Ajay Gupta Vs. CBI Crl. Appeal No. 469/2003, P. Manjunath Vs. State of Karnataka Lokayuktha 2022 SCC Online Kar 1834, Mir Mustafa Ali Hashmi Vs. The State of A.P. Crl. Appeal No. 66/2013 decided on 29.05.2015, Sunil Kumar Sharma Vs. State (CBI) 139 (2007) DLT 407 Delhi, Pyare Lal Vs. State 149 (2008) DLT 425 (DB), Sita Ram Vs. CBI AIR Online 2020 Del 820, Jahan Singh Vs. CBI 2020 SCC Online Delhi 2123, Anil Kumar Tito @ Anil Kumar Sharma @ Titto Vs. State of Delhi Crl. Appeal No. 66/2013 decided on 209.05.2015, Amarjit Singh & Anr. Vs. State (Delhi CC No. 52/22 CBI Vs. Mayank Yadav Page No. 32 of 102 Administration) 1995 JCC 91 Delhi, Ram Dutt Tyagi Vs. State through CBI Crl. Appeal No. 779/2002 decided on 15.05.2024, Joginder Singh Malik Vs. CBI Crl. Appeal No. 1302/2010 decided on 08.12.2022, Mahal Singh Vs. State of Delhi Crl. Appeal No. 618/2000 decided on 01.09.2023 and Dr. S.M. Manna Vs. CBI Writ Petition No. 24119/2022 decided on 22.04.2022.
Analysis and Findings Validity of Sanction for Prosecution
14. It is the prosecution's case that accused committed the offence under Section 7 of the PC Act while being posted as Sub- Inspector in Delhi Police. Since, accused was a public servant, therefore, sanction to prosecute him was required under Section 19 of the PC Act. The sanction order is on record and the same is Ex.PW1/B. PW-1, Sh. Manoj C., Dy. Commissioner of Police is the officer, who accorded the said sanction. He stepped into the witness box and deposed that order of sanction was passed by him after due application of mind. He mentioned that a vigilance inquiry was conducted against the accused. He deposed that on his directions, Sh. Suraj Bhan, Assistant Commissioner of Police, Public Grievance (Vigilance) conducted a vigilance/ preliminary inquiry against the accused and submitted the inquiry report Ex.PW1/A. He identified his signatures on the report and CC No. 52/22 CBI Vs. Mayank Yadav Page No. 33 of 102 mentioned that he signed the same after going through the documents supplied by the CBI. He deposed that he perused all the documents and granted the sanction after due application of mind. It can be seen that the testimony of this witness has remained unblemished. Nothing has come on record during his cross-examination which may demonstrate that the sanction was granted by him in a mechanical manner without due application of mind. The witness categorically denied in cross-examination having received any draft sanction order from the CBI. He deposed that a separate file was being maintained at the office of Dy. Commissioner of Police in respect of sanction granted against an officer. He produced the said file and it was found that it did not contain any draft sanction order from the CBI. Ld. Defence Counsel asked a specific question to the witness as to whether he received a detailed report of Superintendent of Police, CBI along with other documents and the witness not only replied in affirmative but also gave details of the documents received by him for forming an opinion for granting sanction for prosecuting the accused. He denied the suggestion that he was not competent to accord the sanction.
15. The Hon'ble Supreme Court has observed in the matter of State of Maharashtra Vs. Mahesh C. Jain (2013) 8 SCC 119 that an order of sanction by the competent authority indicating CC No. 52/22 CBI Vs. Mayank Yadav Page No. 34 of 102 due application of mind should not be dealt lightly and allowed to be challenged on technicalities. The Apex Court made the following observations:
"16. Presently, we shall proceed to deal with the contents of the sanction order. The sanctioning authority has referred to the demand of the gratification for handing over TDS certificate in Form 16A of the Income-tax Act, the acceptance of illegal gratification by the accused before the panch witnesses and how the accused was caught red handed. That apart, as the order would reveal, he has fully examined the material documents, namely, the FIR, CFSL report and other relevant documents placed in regard to the allegations and the statements of witnesses recorded under Section 161 of the Code and, thereafter, being satisfied he has passed the order of sanction. The learned trial Judge, as it seems, apart from other reasons has found that the sanctioning authority has not referred to the elementary facts and there is no objective material to justify a subjective satisfaction. The reasonings, in our considered opinion, are absolutely hyper- technical and, in fact, can always be used by an accused as a magic trick to pave the escape route. The reasons ascribed by the learned trial Judge appear as if he is sitting in appeal over the order of sanction. True it is, grant of sanction is a sacrosanct and sacred act and is intended to provide a safeguard to the public servant against vexatious litigation but simultaneously when there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. The flimsy technicalities cannot be allowed to become tools in the hands of an accused. In the obtaining factual matrix, we must say without any iota of hesitation that the approach of the learned trial CC No. 52/22 CBI Vs. Mayank Yadav Page No. 35 of 102 Judge as well as that of the learned single Judge is wholly incorrect and does not deserve acceptance."
16. I have perused the sanction order in the light of the testimony of PW-1. I am of the considered opinion that the sanctioning authority granted the sanction under Section 19 of the PC Act after due application of mind. The sanctioning authority considered all the documents as well as the nature of allegations and thereafter, awarded the sanction. Defence has failed to highlight any infirmity in the sanction order. The sanction is valid and it was duly awarded. Now, let us evaluate the evidence, including the testimonies of witnesses, to see if the charge under Section 7 of the PC Ac stands substantiated.
Legal Provisions and Ingredients of Section 7 of PC Act
17. Before evaluating the evidence, it would be appropriate to refer to the relevant legal provisions. The accused has been charged for committing an offence punishable under Section 7 of the PC Act. Section 7 of the PC Act, as amended by way of an amendment, which came into effect from 26.07.2018, reads as under : -
"7. Offence relating to public servant being bribed
- Any public servant who, -
(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty CC No. 52/22 CBI Vs. Mayank Yadav Page No. 36 of 102 improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or
(b) obtains or accepts or attempts to obtain, an undue advantage from any person 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
(c) 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 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
Explanation 1.--For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.
Illustration.-A public servant, 'S' asks a person, 'P' to give him an amount of five thousand rupees to process his routine ration card application on time. 'S' is guilty of an offence under this section.
Explanation 2.-For the purpose of this section,-
(i) the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a person being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or CC No. 52/22 CBI Vs. Mayank Yadav Page No. 37 of 102 by any other corrupt or illegal means;
(ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party."
18. It can be seen that Section 20 of PC Act provides for a legal presumption where public servant accepts any undue advantage. The Section reads as under:-
"20. 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 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 inadequate under section 11"
19. It has been a uniform view of the Supreme Court of India and various High Courts that the proof of demand of bribe by a public servant and its acceptance by him is sine qua non for establishing the offence under Section 7 of the PC Act. This interpretation was given by the Supreme Court of India in the matter of K.S. Panduranga v. State of Karnataka" (2013) 3 CC No. 52/22 CBI Vs. Mayank Yadav Page No. 38 of 102 SCC 721 by making the following observations:
"It is well settled in law that demand and acceptance of the amount as illegal gratification is sine qua non for constitution of an offence under the Act and it is obligatory on the part of the prosecution to establish that there was an illegal offer of bribe and acceptance thereof".
20. In the case of P. Satyanarayana Murthy Vs District Inspector of Police, State of Andhra Pradesh & Anr. (2015) 10 SCC 152, the Apex Court summarized the well-settled law on the subject in the following para:
"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder".
21. In the matter of State of Maharashtra Vs. Dnyaneshwar Laxman Rao (2009) 15 SCC 200, the Supreme Court expressed as under:
"16. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an CC No. 52/22 CBI Vs. Mayank Yadav Page No. 39 of 102 offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence, viz., demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably, the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-`-vis the standard of burden of proof on the prosecution would differ. Before, however, accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt".
22. It is the settled proposition that the burden to prove the guilt of the accused always remains on the prosecution and it does not shift at any stage of the trial. However, by means of a presumption provided under Section 20 of the PC Act, the burden of proof would shift on the accused only when it is shown that he accepted or obtained or agreed to accept or obtained any undue advantage as a motive for reward. It has been held by the Supreme Court of India that even to invoke the presumption under Section 20 of PC Act, it is essential that the demand of CC No. 52/22 CBI Vs. Mayank Yadav Page No. 40 of 102 bribe must have been established. In the matter of B. Jayaraj Vs State of Andhra Pradesh (2014) 13 SCC 55, the Apex Court has held as under:
"9...In so far as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Section 13(1)(d)(i)(ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent".
23. In the matter of Neeraj Dutta Vs State (Govt. of NCT of Delhi) 2023 (4) SCC 731, the Division Bench of Supreme Court of India evaluated the provisions of Section 7 of the PC Act, as it stood prior to the amendment, and summarized the legal position as under:
"xxx
88. What emerges from the aforesaid discussion is summarised as under:
(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and(ii) of the Act.CC No. 52/22 CBI Vs. Mayank Yadav Page No. 41 of 102
(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be CC No. 52/22 CBI Vs. Mayank Yadav Page No. 42 of 102 proved by the prosecution as a fact in issue.
In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13 (1)(d), (i) and (ii) respectively of the Act.
Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence.
Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns hostile or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove CC No. 52/22 CBI Vs. Mayank Yadav Page No. 43 of 102 the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d)(i) and
(ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature.
xxx"
24. The amended provisions of Section 7 of the PC Act came to be interpreted by the Supreme Court in the matter of K. Shanthamma Vs State of Telangana (Crl. Appeal No.261/2022, decided on 21.02.2022) wherein it was observed that the offence under Section 7 of the PC Act relating to public servants taking bribe requires a demand of illegal gratification and the acceptance thereof. The Supreme Court reiterated that the proof of demand of bribe by a public servant and its acceptance by him is sine quo non for establishing the offence under Section 7 of the CC No. 52/22 CBI Vs. Mayank Yadav Page No. 44 of 102 PC Act. The court made the following observations in para-7 of the judgment :
"We have given careful consideration to the submissions. We have perused the depositions of the prosecution witnesses. The offence under Section 7 of the PC Act relating to public servants taking bribe requires a demand of illegal gratification and the acceptance thereof. The proof of demand of bribe by a public servant and its acceptance by him is sine quo non for establishing the offence under Section 7 of the PC Act. In the case of 'P. Satyanarayana Murthy Vs District Inspector of Police, State of Andhra Pradesh and another' (2015) 10 SCC 152, this Court has summarised the well-settled law on the subject in paragraph 23 which reads thus:
23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder."CC No. 52/22 CBI Vs. Mayank Yadav Page No. 45 of 102
25. In the mater of Shrikant Vs State of Karnataka (Crl. Petition No.101560 of 2023, decided on 20.12.2023), the High Court of Karnataka compared and examined the pre-amended and post-amended provisions of 7 of the PC Act as well as the interpretation given by the Supreme Court in various judgments and held that in so far as the ingredients of the offence under Section 7 of the PC Act are concerned, be it pre-amended or post-amended, proof of demand and acceptance of gratification is sine quo non for establishing the allegations. The court held that in case, there is demand but no acceptance, it would not make an offence under Section 7 of the PC Act and if there is acceptance but no demand, still it would not an offence under the said Section. It held that an act alleged under Section 7 of the PC Act should have both the ingredients i.e. demand and acceptance of gratification.
26. Thus, it can be seen that the Supreme Court of India has reiterated in various judicial pronouncements that in order to bring home a charge under Section 7 of the PC Act, there must be a demand and acceptance of the gratification. The proof of demand of bribe by a public servant and its acceptance by him is sine qua non for establishing the offence under Section 7 of the PC Act. In view of the interpretation given by the Supreme Court CC No. 52/22 CBI Vs. Mayank Yadav Page No. 46 of 102 of India, the argument of the prosecution that under the amended provisions of Section 7 of the PC Act, demand of undue advantage itself constitute an offence does not hold ground and the same deserves to be rejected. Now, let us examine the evidence to see if the prosecution has been able to establish both the ingredients of demand and acceptance of illegal gratification.
Demand, Acceptance and Recovery of bribe
27. The genesis of the trap lies in the previous demand of bribe made by the accused from the complainant, which became the basis of laying a trap by the investigating agency. In view of this, it was for the prosecution to prove the demand not only at the time when the trap was laid but also at the time when complainant allegedly met the accused at the police station. Thereafter, the acceptance of the 'illegal gratification' was also required to be proved beyond reasonable doubt. Although, the recovery of the accepted bribe amount is not an essential ingredient of the offence but in case the prosecution has projected a story that the recovery was made at the instance of accused from the spot itself, it must establish the same as it substantiates the aspect of acceptance.
28. In order to establish the demand of bribe, prosecution has banked on the testimonies of the complainant and the CC No. 52/22 CBI Vs. Mayank Yadav Page No. 47 of 102 independent witnesses. Prosecution has also relied on the conversations recorded over the DVR and the transcripts of these conversations. It has been stated that the conversations recorded over the DVR were played in the presence of complainant & independent witnesses and the transcripts of the same were prepared and filed along with the charge-sheet. It is the prosecution's version that relevant memos were prepared at each stage of investigation and the same were signed by the complainant and the independent witnesses. These memos have been placed on record along with charge-sheet.
29. It is the case of the prosecution that the allegations contained in the hand written complaint of the complainant were verified by sending him to the police station on 06.06.2022 along with an independent witness. It has been stated that complainant met the accused at the police station on two occasions i.e. 06.06.2022 and 07.06.2022. On each occasion, PW-9 Harender Kumar, an independent witness, was deputed as a shadow witness to accompany the complainant and overhear his conversation with the accused. It is the prosecution's story that on 07.06.2022, CBI officials joined another independent witness (PW-11 Anil Kumar) as a member of the trap team and he witnessed the entire proceedings including the recovery.
CC No. 52/22 CBI Vs. Mayank Yadav Page No. 48 of 10230. I have perused the testimonies of both the independent witnesses. None of them have deposed that they overheard the conversation between the complainant and the accused. Their testimonies, at best, can be used only to corroborate the statement of the complainant to an extent that he went inside the police station and met the accused on 06.06.2022 and 07.06.2022. Let us first peruse the testimony of PW-9 Harender Kumar. This witness was deputed as a shadow witness to accompany the complainant on 06.06.2022 as well as on 07.06.2022 to overhear his conversation with the accused. PW-7 Ashutosh Tiwari deposed that he joined PW-9 during the verification proceedings on 06.06.2022 and directed him to remain at a safe distance from the complainant and overhear his conversation with the accused. PW-9 has deposed that although, he accompanied the complainant on 06.06.2022 but he did not enter the police station. He stated in cross-examination that on reaching the police station, complainant told him to stay outside and wait at the entrance gate of the police station. He mentioned that complainant alone went inside the police station while he kept waiting outside. He admitted the suggestion of the defence counsel that he was not aware as to what transpired inside the police station on 06.06.2022. He further stated in cross- examination that he met the complainant only after he came out of the police station. Therefore, it can be safely concluded that CC No. 52/22 CBI Vs. Mayank Yadav Page No. 49 of 102 this witness has not heard the actual conversation that took place on 06.06.2022 between the accused and the complainant.
31. Record shows that PW-9 has maintained same position in respect of his visit to the police station on 07.06.2022. He stated that he went to the police station along with the complainant but did not enter the room where the alleged transaction took place. He admitted that he was made a part of the trap team on 07.06.2022. He mentioned that on the said day, Inspector Dharamveer (PW-14) instructed him to remain with the complainant and keep a watch over him as closely as possible. He deposed that he entered the police station with the complainant while the members of the trap team took position outside the police station. He mentioned that on entering the police station, he was stopped by a police official, who started making enquiries about the purpose of his visit. He mentioned that he told the official that he had come to the police station to lodge a complaint in respect of a missing license and the official directed him to go to a cabin, which was at a distance of around ten (10) meters from the room in which the complainant entered. He mentioned that he stood near the canteen of the police station, which was at a distance of around 20 meters from the room, where the cabin of the accused was situated. He stated that the room was not visible from the spot where he was standing but CC No. 52/22 CBI Vs. Mayank Yadav Page No. 50 of 102 from there he could see Inspector Dharamveer standing near the main gate of the police station. He mentioned that after about 10- 15 minutes, he saw the complainant coming out of the said room. He stated in cross-examination that he had no information about the date & time when the initial demand of bribe was made by the accused. The deposition of the witness shows that he had not personally heard the conversation between the complainant and the accused either on 06.06.2022 or on 07.06.2022. Thus, in so far as his testimony is concerned, it is not of much help for establishing the aspect of demand.
32. Now, let us peruse the testimony of PW-11 Anil Kumar (Second independent witness). He deposed that he joined the trap team on 07.06.2022 at around 10:30 AM. He mentioned that he reached the office of CBI where he was introduced with PW-9 Harender Kumar. He gave a detailed account of the preparations made by the trap team before heading to the police station. He mentioned that the trap team reached police station Kishangarh at around 02:00 PM - 02:15 PM. He mentioned that Insp. Dharambir gave the information that accused would be coming to the police station at around 03:00 PM. He stated that Insp. Dharambir directed him to remain outside the police station along with the members of the trap team. He mentioned that he saw the complainant and PW-9 entering the police station. He CC No. 52/22 CBI Vs. Mayank Yadav Page No. 51 of 102 mentioned that he observed after a few seconds that PW-9 was standing in front of the canteen of the police station. He stated that thereafter, Insp. Dharambir reached at the spot where PW-9 was standing. He mentioned that Insp. Dharambir and PW-9 Harender Kumar went towards the gallery of the police station and he kept following them. He conveyed that thereafter, he saw the complainant only when he came out of the room of the accused. He mentioned that he saw Insp. Dharambir taking out the DVR from the turban of the complainant in the gallery of the police station, meaning thereby, that he saw the complainant from a distance and he was not in the vicinity of the cabin where the alleged conversation took place between the complainant and the accused. He stated in cross-examination that he was not informed about the date of initial demand made by the accused. Thus, the testimony of this witness is also of no consequence to establish the demand.
33. Now, let us peruse the testimony of the complainant who is the star witness of the prosecution. Complainant/ PW-8 stepped into the witness box and supported the prosecution's case. He gave a background about the registration of the FIR No. 508/2020. He disclosed that he retired as a Senior Manager from Punjab & Sindh Bank and started doing the business of electronic goods in partnership with a person named Ankit Bansal. He CC No. 52/22 CBI Vs. Mayank Yadav Page No. 52 of 102 mentioned that during the course of business, taking advantage of his absence, his partner illegally withdrew money from the bank account of the partnership firm. He disclosed that a complaint was lodged by him against his partner and on the said complaint, case FIR No. 421/2020 came to be registered at police station Neb Sarai. He mentioned that as a counter-blast to the said FIR, Smt. Payal Bansal (mother of his partner) got registered the FIR No. 508/2020. He deposed not only against the accused but also against the previous investigating officer of the said FIR. He explained the manner in which the investigation came to be transferred to the accused. He stated that the investigation of the FIR No. 508/2020 was initially assigned to Sub-Inspector (SI) Sanjay Deora, who demanded from him a bribe of Rs.1.50 lakhs and compelled him to pay a sum of Rs.5,000/-. He mentioned that the investigating officer/SI Sanjay Deora was changed on his complaint and the investigation was transferred to SI Chuang and thereafter, it was transferred to the accused.
34. Complainant explained the manner in which the accused made the initial demand of bribe. He mentioned that after being entrusted with the investigation, accused called him at the police station and demanded illegal gratification of Rs.15,000/- along with a further sum of Rs.5,600/- for preparing the photocopies of the charge-sheet. He stated that he refused to fulfill the illegal CC No. 52/22 CBI Vs. Mayank Yadav Page No. 53 of 102 demand and thereafter, accused started building pressure upon him. He deposed that accused summoned him as well as his daughter and son to the police station. He mentioned that accused interrogated her daughter at the police without assistance of a female police officer and also prepared a dosier of his son. He stated that all these actions were taken by the accused to built pressure upon him to concede to his demand for illegal gratification. He explained the manner in which he approached the office of CBI. He mentioned that on being constantly harassed by the accused, he decided to approach the CBI. He deposed about visiting the office of CBI on 06.06.2022 and mentioned that he submitted a written complaint against the accused. He gave a account of the verification proceedings dated 06.06.2022. He stated that in order to verify the allegations of bribe, CBI officials called an independent witness PW-9/ Harender Kumar, who was an employee of DSIIDC. He deposed that PW-7/ Insp. Ashutosh Tiwari arranged a DVR and a new 16 GB memory card. He stated that at around 02:00 PM, he reached at police station Kishangarh along with the CBI officials and the independent witness. He mentioned that he accompanied the CBI officials in a car which was parked at a safe distance from the police station. He stated that before going to the cabin of the accused, a phone call was made by him while sitting in the car with the CBI officials. He mentioned that the conversation CC No. 52/22 CBI Vs. Mayank Yadav Page No. 54 of 102 between him and the accused was recorded on the DVR as the mobile phone was kept on speaker mode. He mentioned that over this conversation, accused confirmed his presence at the police station. He mentioned that before going towards the cabin of the accused, the DVR was kept in switch on mode and the same was concealed in his turban. He deposed that independent witness (PW-9 Harender Kumar) kept walking behind him while he kept going towards the cabin of the accused.
35. Complainant stated that he met the accused at his cabin and he enquired from him whether he had brought the amount of Rs.15,000/-. He mentioned that he told the accused that he had not brought the amount and the accused directed him to bring the same on the next day. He stated that the independent witness kept watching him from some distance. He conveyed that on this day, accused showed him a portion of the charge-sheet. He mentioned that the charge-sheet reflected that he along with his son and daughter were being charge-sheeted in FIR No. 508/2020. He stated that accused also disclosed him that he had added Section 120B of IPC in the charge-sheet. He mentioned that accused told him that he had no option but to file the charge-sheet under Section 406, 420 and 120B of IPC. He deposed that at that point of time, accused told him that he was asking for Rs.15,000/- to remain silent in the court during the course of trial. He mentioned CC No. 52/22 CBI Vs. Mayank Yadav Page No. 55 of 102 that after this conversation, he went back to the car stationed near the police station. He stated that Insp. Ashutosh Tiwari took back the DVR and switched it off. He stated that after this, the CBI officials and the independent witness returned to the office at around 05:30 PM. He mentioned that at the office of CBI, the conversation recorded over the DVR was played and heard by him as well as the independent witness. He stated that thereafter, the memory card was sealed in an envelope and the same was signed by him and the independent witness. He deposed that rough transcripts of the recorded conversation were prepared by him. He stated that the seal was handed over to the indepdent witness (PW-9), who was directed to come to the CBI office on the next day. He mentioned that CBI officials also directed him to come to the office on the next day along with a sum of Rs.15,000/-. He identified his signatures on the verification memo dated 06.06.2022, which is Ex.PW7/A.
36. Complainant deposed about the chain of events on 07.06.2022. He mentioned that on 07.06.2022, he reached the office of CBI at around 10:00 AM along with the sum of Rs.15,000/- in the form of seven currency notes in the denomination of Rs.2000/- each and two currency notes in the denomination of Rs.500/- each. He deposed about meeting the CBI officials and independent witnesses at the office of CBI. He CC No. 52/22 CBI Vs. Mayank Yadav Page No. 56 of 102 mentioned that Insp. Dharambir explained him and the independent witnesses about the procedure of laying down the trap. He stated that the currency notes were treated with some powder and demonstration was given that anything coming in contact with the said powder would turn pink if washed in solution of sodium carbonate and water. He stated that the serial numbers of the currency notes were noted down on a paper and the same was signed by the independent witnesses. He mentioned that all the members of the trap team were directed to wash their hands and remove any article from their person. He mentioned that after this exercise, independent witness Harender Kumar kept the currency notes in the right side front pocket of his pants. He explained that a new memory card was brought and inserted in the DVR. He identified his signatures on the pre-trap memo dated 07.06.2022, which is Ex.PW7/B.
37. Complainant explained the manner in which the trap team reached at the police station Kishangarh on 07.06.2022. He mentioned that at around 01:00 PM, members of the trap team and independent witnesses reached at a spot which was 1 km short of the police station. He stated that on the directions of the CBI officials, at around 02:05 PM, he made a call from his mobile phone to the accused by keeping the phone on speaker mode. He mentioned that accused informed him over this call CC No. 52/22 CBI Vs. Mayank Yadav Page No. 57 of 102 that he was attending court and would be reaching the police station in about one hour. He stated that thereafter, at around 02:50 PM, he received a call from the accused over which he informed him that he had reached the police station. He stated that in response, he told the accused that he would be reaching the police station within ten minutes. He mentioned that all the calls were made and received over whatsapp and the conversations were recorded on the DVR. He mentioned that Insp. Dharambir concealed the DVR in his turban and instructed him to go inside the police station for handing over the bribe amount. He stated that he was advised that on completion of the transaction, he should give a signal to the trap team either by removing his spectacles or making a whatsapp call to that effect.
38. Complainant narrated the manner in which he entered the police station and handed over the bribe amount to the accused. He mentioned that after making all the preparations, he went inside the police station while independent witness Harender Kumar kept following him from a distance of about 2 - 3 meters. He stated that after entering the police station, he met the accused at a cabin, who enquired from him whether he had brought his son along. He mentioned that accused also enquired from him whether his phone was on recording mode. He deposed that he showed his phone to the accused and in the meantime, 2 - 3 CC No. 52/22 CBI Vs. Mayank Yadav Page No. 58 of 102 police officials entered the cabin and started making some enquiries from the accused. He deposed that after those police officials left the cabin, accused enquired from him whether he had brought the money, to which he replied in affirmative. He explained the manner in which the accused accepted the bribe amount. He mentioned that after confirming that he had brought the money, accused took out an A4 size white blank paper from an almirah and put the same on the table. He stated that accused told him to keep the money on the said paper and he complied with the directions. He mentioned that after he placed the currency notes on the paper, accused folded it and kept it in the upper drawer of his table. He stated that thereafter, he went outside the cabin and gave a whatsapp call to Insp. Dharambir. He mentioned that the first call remained unconnected but he managed to connect the second call and give the signal. He mentioned that thereafter, the members of the team entered the cabin and introduced themselves to the accused. He stated that Insp. Dharambir and other CBI officials grabbed the wrists of the accused and started enquiring about the bribe money. He changed this version by stating that in fact, accused followed him outside the cabin and CBI officials caught him outside the cabin only.
39. Complainant also gave an account of the recovery. He CC No. 52/22 CBI Vs. Mayank Yadav Page No. 59 of 102 mentioned that CBI officials took the accused to his cabin and started enquiring about the bribe money. He stated that accused initially kept mum but disclosed after a while that he had kept the money on the top of an almirah lying outside the room of SHO. He mentioned that CBI officials took the accused to the almirah and he pointed out towards the place where the money was kept. He mentioned that independent witness was directed to take the money from the top of the almirah. He deposed that after the bribe money was recovered, the numbers of the currency notes were tallied with the serial numbers recorded on the memo prepared during the pre-trap proceedings.
40. Complainant mentioned about the investigation carried out by the CBI after the recovery of the bribe money. He mentioned that the CBI officials carried out further investigation in a room on the first floor of police station. He stated that the recovered currency notes were sealed by the seal produced by independent witness Harender Kumar. He deposed that the hand washes of the accused were obtained in a solution which turned pink. He stated that separate cloth pieces were used to take swabs from the white paper in which the bribe money was wrapped and the upper drawer of the table where the money was initially kept by the accused. He mentioned that the cloth was dipped in a solution which turned pink. He deposed that in a similar manner, the CC No. 52/22 CBI Vs. Mayank Yadav Page No. 60 of 102 swabs were taken from the top of the almirah where the bribe money was kept and the same was dipped in the solution but it did not turn pink. He deposed that the CBI officials prepared a site plan and obtained his signatures. He mentioned that the recorded conversation captured on the DVR was heard by the CBI officials and the files on the memory card were transferred to a laptop. He identified his signatures on the post-trap memo dated 07/08.06.2022. He mentioned that transcripts of the recorded conversation were also prepared and the same were signed by him and other independent witnesses. He disclosed the manner in which the transcripts of the recorded conversations were prepared.
41. Complainant stated that after few days of the incident, CBI officials summoned him to their office. He stated that as far as he could recollect, he went to the office of CBI on 20 th or 22nd July, 2022 and the transcripts were prepared in the presence of the independent witnesses. He gave an account of the procedure adopted by the investigating agency for preparing the transcripts. He identified his signatures on the transcripts of the conversations dated 06.06.2022 & 07.06.2022 and the same are Ex.PW8/B and Ex.PW8/C respectively. He also identified his signatures on the voice identification memo Ex.PW8/D. The envelopes containing the memory cards, over which the CC No. 52/22 CBI Vs. Mayank Yadav Page No. 61 of 102 conversations were recorded, were produced and the witness identified the same as Ex.PW8/E, Ex.PW8/F, Ex.PW8/G and Ex.PW8/H. The digital file containing the introductory voice of independent witness was played on a laptop and the witness identified the same. In a similar manner, other digital files containing the recorded conversation were played on a laptop and the same were identified by the witness. The DVR, on which the conversations were recorded, was produced and the witness identified the same as Ex.PW8/J. The white paper sheet on which the bribe money was kept by the witness on the directions of the accused was produced and the same is Ex.PW8/K. The recovered bribe money was produced from the malkhana in a sealed envelope. The envelope was opened in the court and the currency notes were shown to the witness who identified them as the same currency notes which were recovered from the accused. He stated that the serial numbers of those currency notes were mentioned on the pre-trap memo dated 07.06.2022. The five glass bottles containing the solutions were also produced from the malkhana and the witness identified them as the same bottles in which the washes were obtained at the spot during the investigation.
42. Ld. Defence Counsel has challenged the testimony of the complainant on the ground that it contains various improvements and contradictions. He has pointed towards the cross-
CC No. 52/22 CBI Vs. Mayank Yadav Page No. 62 of 102examination of the complainant and argued that the complainant has made material improvements over his previous version. He has mentioned that in view of these contradictions, the testimony of the complainant has become unreliable and the same needs to be discarded. He has contended that complainant is an interested witness and his testimony must be read with caution. He has argued that reliance cannot be placed on the uncorroborated sole testimony of the complainant. He has mentioned that the independent witnesses have not deposed anything on the aspect of demand. He has mentioned that there are irreconcilable contradictions in the testimony of the complainant not only on the aspect of demand but also on the aspect of recovery. On the other hand, Ld. Public Prosecutor for CBI has contended that the testimony of the complainant is reliable. He has argued that complainant has supported the prosecution's case on all the material aspects. He has mentioned that the testimony of the complainant finds corroboration from the recorded conversations and transcripts. He has mentioned that minor contradictions in the testimony of a witness are inconsequential and the same do not raise any question mark over his reliability.
43. It is settled law that in order to prove the guilt of an accused, it is the quality of evidence that matters not the quantity and reliance in this regard can be placed on the judgment in the CC No. 52/22 CBI Vs. Mayank Yadav Page No. 63 of 102 matter of Laxmibai & Anr. vs. Bhagwantbuva & Ors. (2013) 4 SCC 97 which reads as under:-
"39. In the matter of appreciation of evidence of witnesses, it is not the number of witnesses but quality of their evidence which is important, as there is no requirement in law of evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time- honoured principle, that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided by Section 134 of the Evidence Act. Where the law requires the examination of at least one attesting witness, it has been held that the number of witnesses produced, do not carry any weight..."
44. In the case of Kanhaiya Lal & Ors. etc. v. State of Rajasthan (2013) 5 SCC 655, it was held as under:-
"24. In Hari Obula Reddy v. State of A.P. [(1981) 3 SCC 675: 1981 SCC (Cri) 795] a three-Judge Bench has opined that it cannot be laid down as "An invariable rule that i evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base CC No. 52/22 CBI Vs. Mayank Yadav Page No. 64 of 102 a conviction thereon."
45. The Supreme Court of India has held in the matter of Panalal Damodar Rathi Vs. State of Maharashtra AIR 1979 SC 1191 that in the absence of corroboration of the evidence of the complainant, regarding the demand for money, his evidence alone cannot be accepted and that it is unsafe to base the conviction on the sole testimony of the panch witness. In Jaswant Singh Vs. State of Punjab AIR 1973 SC 707, the question was whether, in a bribery case, evidence of the complainant should be accepted. The Supreme Court held that complainant is an interested witness and the evidence must be considered with great caution and can be accepted only when it is corroborated in material particulars. The same view point was reiterated in the matter of State of Punjab Vs. Madan Mohan Lal Verma (2013) 14 SCC 153 wherein it was held that the complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person.
46. In the case of Harbeer Singh v. Sheeshpal (2016) 16 SCC 418, the Hon'ble Supreme Court, commenting upon the CC No. 52/22 CBI Vs. Mayank Yadav Page No. 65 of 102 improvement made by the complainant during his testimony, observed as under:
"15. ...Thus, while it is true that every improvement is not fatal to the prosecution case, in cases where an improvement creates a serious doubt about the truthfulness or credibility of a witness, the defence may take advantage of the same. (See Ashok Vishnu Davare v. State of Maharashtra, (2004) 9 SCC 431; Radha Kumar v. State of Bihar, (2005) 10 SCC 216; Sunil Kumar Sambhudayal Gupta v. State of Maharashtra, (2010) 13 SCC 657 and Baldev Singh v. State of Punjab, (2014) 12 SCC 473) ........."
47. In view of the proposition of law laid down by the superior courts in number of judicial pronouncements, it is a settled position that there is no bar in relying on the sole testimony of the complainant and base conviction on the said testimony provided that the testimony is reliable and trustworthy. However, in case, material contradictions and improvements are noticed in the testimony of the complainant, the court, as a necessary caution, should look for corroboration from some independent source. In analysing the evidence led during the trial, especially testimonies of witnesses which have a substantial bearing on the case and more so in trial of offences under PC Act, the complainant is perhaps one of the material witness apart from other witnesses. In evaluating his testimony, the credibility and the manner in which he narrates the facts of the case are critical in determining the case projected by the prosecution. It has been CC No. 52/22 CBI Vs. Mayank Yadav Page No. 66 of 102 held that complainant is an interested witness, who is interested in the success of the trap and therefore, prudence demands that his testimony should be corroborated by some independent source. In view of this backdrop, let us examine the testimony of the complainant to ascertain whether it is of such a sterling quality that it does not require any corroboration and his sole testimony can form the basis of conviction.
48. There is material on record to indicate that complainant has leveled almost similar allegations against the previous investigating officer. There is evidence to demonstrate that complainant lodged almost a similar complaint against the previous investigating officer SI Sanjay Indora. Complainant has deposed that SI Sanjay Indora used to threaten him that he would arrest his son in FIR No. 508/2020 and he demanded a bribe of Rs.50,000/-. It is noticed that he improved this version in the same breath by stating that in fact, SI Sanjay Indora demanded a bribe of Rs.1.50 lakhs. He claimed that SI Sanjay Indora compelled him to pay a sum of Rs.5,000/-. He mentioned that he lodged a complaint against SI Sanjay Indora with the concerned ACP and on this complaint, a departmental inquiry was initiated against him but he was exonerated as there was no proof of the payment. Complainant also admitted in the cross-examination that he wanted the accused to file a closure report in the FIR No. CC No. 52/22 CBI Vs. Mayank Yadav Page No. 67 of 102 508/2020. These circumstances compel this court to read his testimony with caution.
49. I have gone through the testimony of the complainant including his detailed cross-examination. On analysing his statement, in the backdrop of the version presented by the other spot witnesses, contradictions and improvements are visible. Complainant stated in his handwritten complaint that accused demanded the bribe to close the matter and not arrest his son in FIR No. 508/2020. However, he did not depose in the court that the bribe was demanded by the accused on the said assurance. He simply stated that accused started threatening and demanding the bribe and on his refusal, he started building pressure upon him. He changed this version by stating that during his meeting with the accused on 06.06.2022, accused told him that he had added Section 120B of IPC in the charge-sheet. He mentioned that in this meeting, accused demanded a sum of Rs.15,000/- from him for remaining silent in the court during the course of trial of the said case. This version is in contrast with his earlier version that accused demanded the bribe for not arresting his son in the FIR. Complainant stated in his statement under Section 161 of Cr. P.C that accused started threatening him and his children by calling them repeatedly at the police station and finally demanded the bribe of Rs.15,000/- as a relaxation from the frequent visits to the CC No. 52/22 CBI Vs. Mayank Yadav Page No. 68 of 102 police station and for not charge-sheeting him and his daughter in the FIR. However, he made an improvement over this statement by deposing in the court that accused threatened him that he would send him and his children to jail. Thus, it can be seen that complainant kept changing his stand about the reason for which the accused demanded the bribe. He stated in his complaint that the demand was raised by the accused for not arresting his son whereas, it came out during his examination that charge-sheet in the FIR was already prepared and the accused was in the process of filing the same. Complainant subsequently changed his stand by mentioning that accused, in fact, demanded the bribe for keeping silent in the court. This continuous shifting of stand by the complainant creates doubt over his veracity and under these circumstances, it would be unsafe to rely on his testimony unless it is corroborated from some independent source.
50. Record indicates that the complainant has not only made improvements but there are also various contradictions in his statement. These contradictions are visible when his version is read in the light of the chain of events narrated by the independent witnesses. It is the case of prosecution that after conclusion of verification proceedings on 06.06.2022, CBI team returned to the office at around 05:30 PM. Complainant mentioned that the conversation recorded on the DVR was CC No. 52/22 CBI Vs. Mayank Yadav Page No. 69 of 102 played at the office of CBI and thereafter, the memory card was sealed and the seal was handed over to the independent witness Harender Kumar (PW-9). However, PW-9 denied these facts. He stated that CBI team returned to the office at around 02:30 PM and he left home at 05:30 PM. He stated in cross-examination that in his presence, no proceedings with respect to the memory card were conducted at the office of CBI. He denied that the seal was handed over to him on 06.06.2022. He stated in cross- examination that he saw the seal of CBI for the first time on 07.06.2022. Complainant disclosed that the conversation recorded on 06.06.2022 was played at the office of CBI on the same day and rough transcript of the same was prepared. However, PW-9 denied this aspect. He stated that no transcripts were prepared in his presence. It is further noticed that in case, the rough transcripts were prepared on 06.06.2022, the same were not forwarded along with the charge-sheet and no explanation has been tendered as to why the same were withheld. This aspect not only raises question mark over the veracity of the complainant but also over the authenticity of the proceedings conducted at the office of CBI on 06.06.2022.
51. Contradictions and improvements are also noticed in the version of the complainant in respect of the chain of events of 07.06.2022. He has deposed that on reaching the cabin of the CC No. 52/22 CBI Vs. Mayank Yadav Page No. 70 of 102 accused on 07.06.2022, accused offered him a seat and enquired from him whether he has brought his son along to the police station. He deposed that in the meantime, 2 - 3 police officials entered the cabin and started making some enquiries from the accused. He deposed that after those police officials left, accused asked him whether he had brought the money to which he replied in affirmative. He clarified in cross-examination that at that point of time, accused demanded the bribe by orally asking him about the same. However, in the statement recorded under Section 161 of Cr. P.C., he presented a different version mentioning that accused demanded the money by gestures and not by specifically asking him about the same. He disclosed in the statement recorded under Section 161 of Cr. P.C that at the time when he took out the bribe amount and offered it, accused spread a white paper sheet on the table and asked him to keep the same on the said paper. However, it stands recorded in the post-trap memo that he disclosed to Insp. Dharambir that accused directed him to put the money on the paper by gestures. It is seen that the transcripts of the recorded conversations does not reveal that any such oral directions were given by the accused.
52. Complainant deposed that after the transaction completed, he came out of the room and the accused followed him outside. However, he disclosed in the statement recorded under Section CC No. 52/22 CBI Vs. Mayank Yadav Page No. 71 of 102 161 of Cr. P.C that after the transaction, he came out of the room and made a whatsapp call to TLO and thereafter, immediately, CBI team members entered the police station. The version that accused followed him outside the cabin was missing in the earlier statement recorded under Section 161 of Cr. P.C. The improvement made by the complainant gains significance in view of the fact that the recovery was made not from the drawer of the table of the accused but from the top of an almirah lying outside the CCTNS Room. It appears that complainant has made this improvement to provide support to the prosecution's version that accused kept the bribe amount on the almirah.
53. There are contradictions about the manner in which the recovery has been effected. Prosecution has projected a case that after being apprehended, accused disclosed and pointed towards an almirah lying outside the CCTNS Room and the recovery was effected at his instance. There is evidence to demonstrate that there were four cabins in the room where the cabin of the accused was situated. Independent witnesses Harender Kumar (PW-9) and Anil Kumar (PW-11) have deposed that the almirah over which the money was kept was not visible from inside the room where the cabin of the accused was situated. PW-14 Insp. Dharambir also admitted in the cross-examination that the almirah was not visible from the room of the accused. PW-9 CC No. 52/22 CBI Vs. Mayank Yadav Page No. 72 of 102 mentioned in cross-examination that accused did not point out towards the almirah from where the currency notes were recovered. In these circumstances, the version of the complainant and the story of the prosecution that accused pointed towards the almirah from where the money was recovered appears to be doubtful.
54. Complainant has presented a version that accused led the CBI officials to the spot from where the recovery was made but the independent witnesses have not supported this theory. They have mentioned that the recovery was made independently by the CBI officials and the same was not effected at the instance of the accused. PW-9 and PW-11 have conveyed that CBI officials independently found out the place from where the bribe money was purportedly shown to have been recovered. PW-9 stated that while he was sitting in the room along with the accused and PW- 11, he heard the CBI officials shouting outside that the money has been found. He mentioned that thereafter, he went along with the accused at the place where the almirah was lying and PW-11 also accompanied him. He clarified that the almirah was lying at a distance of around 8 to 10 steps from the room of the accused. PW-11 has given a similar account of the recovery. He also stated that recovery was effected independently by the CBI officials.
CC No. 52/22 CBI Vs. Mayank Yadav Page No. 73 of 10255. The prosecution has built up a case that after accepting the bribe, accused initially kept it in the drawer of his table and thereafter, placed it on an almirah lying outside the CCTNS Room. It has been stated that accused took the CBI officials to the almirah and picked up the currency notes lying on the top of the almirah. Insp. Dharambir (PW-14) stated that on his directions, accused picked up the currency notes from the top of the almirah and handed over the same to PW-11 whereas complainant has deposed that the currency notes were picked up by the independent witness and not by the accused. It may be noted that there is no direct evidence to establish the circumstance that the money was kept by the accused on the top of the almirah. It is an inference, which the prosecution insists on drawing on account of the allegedly proved circumstances. However, the testimonies of independent witnesses raise question mark over this version. As observed earlier, it appears that complainant made an improvement in his version that accused followed him outside the room to support the prosecution's version that he had the opportunity to place the money on the top of almirah. This improvement shows the tendency of the witness to implicate the accused and, therefore, his testimony cannot be relied on unless corroborated from some independent source.
CC No. 52/22 CBI Vs. Mayank Yadav Page No. 74 of 10256. As can be seen from the preceding paras that there are various contradictions in the statement of the complainant. Complainant has also made material improvements in his statement. In view of this, his sole testimony cannot form the basis of conviction unless corroborated from some independent source. It is an admitted case that none of the independent witnesses overheard the actual conversation between the complainant and the accused. Independent witnesses also did not see the alleged transaction on 07.06.2022 as none of them was present inside the room where the transaction took place. The testimonies of these witnesses do not serve the purpose of corroboration. Their testimonies, at best, can be used to establish that complainant went inside the police station and nothing further.
57. In order to support and corroborate the version of the complainant, prosecution has heavily relied on the alleged recorded conversations between him and the accused. It is the case of the prosecution that the conversation between the accused and the complainant during the verification proceedings (06.06.2022) as well as on the date on which the trap was executed (07.06.2022) were recorded with the help of a DVR. Besides this, the conversation between the accused and the complainant made over the phone calls were also recorded.
CC No. 52/22 CBI Vs. Mayank Yadav Page No. 75 of 102Subsequently, the voice samples of the accused and complainant were obtained and the same were sent to the CFSL for comparison with the recorded conversation. CFSL returned a positive finding in respect of the voices found on the recorded conversations. Prosecution has relied on the CFSL report to establish that the recorded conversation contained the voice of accused.
58. I have perused the CFSL report as well as other evidence in respect of recorded conversations. Before analysing the recorded conversations, it is expedient to refer to the conditions necessary for the admissibility of tape recorded statements which were laid down by the Supreme Court of India in the matter of Ram Singh Vs. Col. Ram Singh 1985 Suppl. SCC 611 as under:-
"(1) the voice of the speaker must be identified by the maker of the record or by others who recognise his voice. Where the voice is denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker;
(2) The voice of the speaker should be audible and not distorted by other sounds or disturbances;
(3) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence;
(4) Every possibility of tampering with or erasure of a part of the tape recorded statement must be ruled out;CC No. 52/22 CBI Vs. Mayank Yadav Page No. 76 of 102
(5) The statement must be relevant according to the rules of evidence; and (6) The recorded cassette must be carefully sealed and kept in safe custody."
59. It was held by the Supreme Court of India in the matter of Mahabir Prasad Verma Vs. Surinder Kaur (1982) 2 SCC 258 that tape recorded evidence can only be used for the purpose of corroboration. The court made the following observations:-
"Tape recorded conversation can only be relied upon as corroborative evidence of conversation deposed by any of the parties to the conversation and in the absence of evidence of any such conversation, the tape recorded conversation is indeed no proper evidence and cannot be relied upon. In the instant case, there was no evidence of any such conversation between the tenant and the husband of the landlady; and in the absence of any such conversation, the tape-recorded conversation could be no proper evidence."
60. In the matter of Nilesh Dinkar Paradkar Vs. State of Maharashtra (2011) 4 SCC 143, the Supreme Court of India observed that the court should be extremely cautious in examining and relying upon the tape recorded evidence.
"In our opinion, the evidence of voice identification is at best suspect, if not, wholly unreliable. Accurate voice identification is much more difficult than visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely CC No. 52/22 CBI Vs. Mayank Yadav Page No. 77 of 102 replaced by fiction. Therefore, the Courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification. ..."
61. Coming back to the present matter. It is the prosecution's case that the voice of the accused in the recorded conversation was identified by ASI Srikant Malik (PW-10). Prosecution has projected a case that this witness was summoned to the office of CBI during the course of investigation and he heard the conversation and identified the voice of the accused. Prosecution claimed that the witness was familiar with the voice of the accused as he had worked with him for a considerable period of time and heard his conversation on mobile phone on several occasions. However, ASI Srikant Malik (PW-10) did not support this version. He admitted that he went to the office of CBI but denied having identified the voice of the accused. He admitted that CBI officials requested him to identify the voice of the accused but mentioned that he could not identify his voice. The recorded conversation was played in the court and the witness was asked to identify the voice of the accused but he failed to do so. The witness was declared hostile and was cross-examined by the prosecution but nothing much came in cross-examination which may support the prosecution's case. It is noticed that independent witnesses also failed to identify the voice of the accused. Even otherwise, they were not familiar with his voice CC No. 52/22 CBI Vs. Mayank Yadav Page No. 78 of 102 and, therefore, identification by them would not have been of much consequence. Although, complainant identified the voice of the accused in these conversations but the identification made by him is not reliable as he falls under the category of an interested witness. In view of these circumstances, the condition as stipulated under Ram Singh's case (supra) pertaining to identification of the voice of the accused has not been met.
62. In order to identify the voice of the accused, prosecution has also relied on the expert opinion of Sh. Amitosh Kumar, Assistant Director, CFSL (PW-12). PW-12 compared the voice samples with the recorded conversations and concluded in his report that the voice of the accused was found on the recorded conversations. Ld. Defence Counsel has challenged the expert opinion on three grounds; Firstly, on the ground that the CFSL is not notified under Section 79A of Information & Technology Act; Secondly, on the ground that the expert did not possess the requisite qualifications and gave his opinion without carrying out scientific analysis; and Thirdly, on the ground that proper samples were not collected and the chain of custody was not maintained.
63. Coming to the first ground of the challenge that the report Ex.PW12/B is not admissible because the CFSL has not been CC No. 52/22 CBI Vs. Mayank Yadav Page No. 79 of 102 notified under Section 79A of Information & Technology Act by the Central Government of India. Ld. Defence Counsel has submitted that although, a request to act as an expert of electronic evidence was moved by CFSL but it has still not been granted or notified. He has contended that it becomes clear on reading the provisions of Section 79A of Information & Technology Act in the light of Section 65A of Indian Evidence act that a gazette notification is required for examination of electronic evidence. He has argued that since CFSL has not been notified as an examiner of the record, therefore, it cannot examine electronic evidence, i.e., memory cards containing audio recordings and DVR.
64. In order to consider the submissions of Ld. Defence Counsel, it would be appropriate to refer to the provisions of Section 79A of the Information & Technology Act and Section 45 of the Indian Evidence Act:
"Section 79A :- Central Government to Notify Examiner of Electronic Evidence The Central Government may, for the CC No.98/19 State Vs Subhash Borker Pages: 23/37 purposes of providing expert opinion on Electronic form evidence before any court or other authority specify, by notification in the Official Gazette, any Department, body or agency of the Central Government or a State Government as an Examiner of Electronic Evidence.
Explanation - For the purpose of this Section, CC No. 52/22 CBI Vs. Mayank Yadav Page No. 80 of 102 'electronic form evidence' means any information of probative value, i.e., was told or transmitted in electronic form and includes computer evidence, digital audio, digital video, cell phones, digital fax machines".
Section 45A of Indian Evidence Act "Section 45A:- When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer recourse or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in Section 79A of the Information Technology Act, 2000 (21 of 2000) is a relevant fact."
65. It can be seen from the wording of Section 79A of Information & Technologies Act that it provides that the Central Government 'may', meaning thereby that a discretion is vested with the Central Government to designate any authority as an expert of electronic evidence. However, the same does not mean that if an expert has been examined, the electronic record and the report furnished by him is liable to be rejected. Acceptance of such an argument would lead to chaos and would make the expert evidence redundant. There is nothing in Section 79A of the Information & Technology Act which bars the admission of a report given by an expert who had examined the electronic record. The provision does not say that in the absence of notification, an opinion given by a person cannot be admitted in evidence. Reliance on this issue can be placed upon the decision CC No. 52/22 CBI Vs. Mayank Yadav Page No. 81 of 102 in the matter of K.Ramajayam Vs Inspector of Police, Chennai 2016 Cr.LJ 1542, on the issue of Section 79A of Information & Technology Act, wherein it was observed as under:
"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 (PW24), 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."
66. It is obvious that notification under Section 79A of Information & Technology Act lay down a basis to accept the report of a notified expert under Section 293(4)(g) of Cr. P.C. without formal proof of the same. It is also to be appreciated that other experts such as handwriting experts have to prove their opinion or report before the court, after appearing as witness. Their reports are evaluated and appreciated by court on merits rather than being rejected on the grounds that they are not notified experts. As the CFSL was not notified under section 79A of the Information & Technology Act, the formal proof of report of such experts cannot be dispensed under section 293(4)(g) of Cr. P.C. and the prosecution has to prove the reports by calling CC No. 52/22 CBI Vs. Mayank Yadav Page No. 82 of 102 such experts as witnesses. However, the same cannot be discarded or be said to be inadmissible for want of notification under section 79A of Information & Technology Act. It is an altogether different matter that while appreciating the electronic evidence, certain precautions and certain checks need to be followed. Thus, in so far as the admissibility of the report of the expert is concerned, the same cannot be questioned or challenged merely due to the absence of notification under Section 79A of Information & Technology Act. In view of this, there is no merit in the argument that the CFSL report should be discarded merely because the expert has not been notified under Section 79A of Information & Technology Act.
67. There also appears to be no merit in the second ground of challenge that the expert was not qualified enough to give a conclusive report on the voice samples. It was contended by Ld. Defence Counsel that the expert Sh. Amitosh Kumar (PW-12) was not qualified to act as an expert of electronic evidence as he did not possess requisite qualification in the field of voice examination, linguistic and phonetics. Ld. Defence Counsel has argued that this witness admitted in cross-examination that he has received a basic degree in Physics and has got no specialised training to give a conclusive opinion on voice examination. He has argued that the opinion of such a witness cannot form the CC No. 52/22 CBI Vs. Mayank Yadav Page No. 83 of 102 basis of voice identification. I do not agree with this line of argument. Section 293 of Cr. P.C. refers to certain government scientific experts and provides that report of such experts may be used as evidence even without calling them to formally prove their reports before the court. Thus, reports of certain experts are given special status and are admissible without formally calling them to the witness box to prove the same. Record shows that Sh. Amitosh Kumar (PW-12) has given sufficient details in respect of his qualification and experience by deposing that he had examined and compared voice samples in various cases. There is nothing on record to indicate that the witness was not qualified to furnish the report. However, it remains to be examined whether the tape recorded conversations were proved in the manner prescribed under the law.
68. Now, let us examine the third ground of challenge that samples were not obtained properly and the chain of custody was not maintained. Record shows that the memory cards containing the conversations recorded on 06.06.2022 (Q-1) and 07.06.2022 (Q-2) were sent to CFSL along with the memory cards containing the specimen voices of accused (S-1) and complainant (S-2). In addition to this, the DVR used for recording the conversation was also sent for examination. It can be seen that the voice identification was conducted without taking any CC No. 52/22 CBI Vs. Mayank Yadav Page No. 84 of 102 reasonable precautions which should have been normally taken in visual identification of suspects by a witness. It is a matter of fact that the expert witness knew in advance that he had to identify the voice of accused. No attempt was made to mix the voice of the accused with some other unidentified voices. Sh. Amitosh Kumar (PW-12) admitted in cross-examination that the forwarding authority did not send specimens of any unknown voices. He admitted that the specimen voices of only suspected speakers were sent for comparison. The expert witness identified the voices as no specimen apart from that of accused and complainant were sent for comparison. In view of this, the analysis by the expert became an exercise performed only for the purpose of record to achieve the desired result. It is further noticed that the expert did not give any definitive opinion about the voice of the accused and concluded in his report that the voice found on the memory cards is the probable voice of the accused. In such circumstances, it would be unsafe to rely on the voice identification by an expert witness. I am of the considered opinion that the voice identification by the expert witness is not reliable. In a similar situation, in the matter of Ajay Gupta Vs. State through CBI Crl. Neutral Citation 2022/DHC/004498, the High Court of Delhi discarded an expert opinion on voice samples holding that he did not give any definitive opinion on the examined conversation. The court made an observation that the CC No. 52/22 CBI Vs. Mayank Yadav Page No. 85 of 102 accused cannot be held guilty on the basis of probabilities and the prosecution needs to establish its case beyond reasonable doubt.
69. Record further demonstrates that investigating agency failed to maintain the chain of custody of the memory cards. It has been stated that the memory card wherein the conversation of 06.06.2022 was captured was sealed at the office of CBI in the presence of Harender Kumar (PW-9). However, Harender Kumar has denied this aspect. He deposed that the seal of CBI was not handed over to him on 06.06.2022. He mentioned that he saw the seal of the CBI for the first time on 07.06.2022. Further, it is the prosecution's case that the sealed memory cards were opened on 20.07.2022 and the conversation contained therein was played on the laptop and the transcripts of the same were prepared. It has been stated that this exercise was done in the presence of the independent witnesses. Both the independent witnesses have deposed about the proceedings carried out on 20.07.2022. PW-9 Harender Kumar has deposed that after about 8 to 10 days of the incident, he was again summoned to the office of CBI by PW-13 Ajay Kumar, Additional Superintendent of Police. He mentioned that PW-11 Anil Kumar met him on the way to the office of CBI. He deposed that the recorded conversations were played with the help of a computer and the transcripts of the same were prepared. PW-11 Anil Kumar has also stated so but mentioned that the CC No. 52/22 CBI Vs. Mayank Yadav Page No. 86 of 102 memory cards were already lying opened and the same were not taken out from the sealed envelope in his presence. The version of this witness shows that CBI officials opened the sealed memory cards before the arrival of independent witnesses. It has also come on record that CBI officials were possessing another seal, similar to the one which was handed over to PW-9 Harender Kumar. PW-7 Ashutosh Tiwari stated in cross-examination that he was not sure if two seals with the same inscription were available with the CBI. The version of this witness raises question mark over the uniqueness of the seal which was handed over to independent witness. The possibility that CBI officials were possessing a similar seal casts aspersions on the fairness of the entire process. In these circumstances, the possibility of tampering with the case property cannot be ruled out.
70. The chain of custody of the memory cards was broken at the office of CFSL. PW-12 Sh. Amitosh Kumar has deposed that the exhibits containing the memory cards and samples were received in the office of CFSL on 26.07.2022 and the same were received by him after about a month on 26.08.2022. He mentioned that the exhibits remained in his custody till 11.07.2023. He stated that the parcels containing the exhibits were opened by him on 24.05.2023 and the same was sealed by him on 15.06.2022. He admitted that during the period of CC No. 52/22 CBI Vs. Mayank Yadav Page No. 87 of 102 examination, exhibits kept lying in his almirah in unsealed condition. Thus, it can be seen that there was an intervening period of about one month between the time when the exhibits were received at the CFSL and the time when the same came in custody of PW-12. No explanation has been tendered as to in whose custody the exhibits kept lying during this period. Further, it can be seen that the exhibits also kept lying unsealed in the almirah of PW-12 for a considerable period of time. It is also noted that prosecution has failed to explain in whose custody the memory cards kept lying before they were deposited with the CFSL. The entries of the malkhana showing the movement of the memory cards have not been placed on record. In the absence of these entries, no presumption can be drawn that the memory cards were duly deposited and taken out from the malkhana at the relevant time. This shows that the possibility of tampering cannot be ruled out. These factors have raised serious question mark over the authenticity and accuracy of the data purportedly found on the memory cards.
71. It is the case of prosecution that copies of the conversations captured on the memory cards on 06.06.2022 and 07.06.2022 were prepared with the help of 'write blocker', which is stated to be a software tool for maintaining the originality of the device and contents thereof. The verification officer Ashutosh CC No. 52/22 CBI Vs. Mayank Yadav Page No. 88 of 102 Tiwari (PW-7) has deposed that he prepared a copy of the conversation recorded on 06.06.2022 with the help of a laptop. Investigating Officer Insp. Dharambir (PW-14) has deposed on same lines in respect of the conversation recorded on 07.06.2022. He mentioned that contents of the memory card were copied in a laptop with the use of 'write blocker'. It has been stated that during the course of investigation, on 20.07.2022, the copies of the conversations were played on a laptop and the transcripts of the same were prepared. Record shows that although, copies of the recorded conversations were prepared with the intervention of a laptop but no certificate under Section 65B of The Indian Evidence Act was forwarded along with the charge-sheet to vouch for the authenticity of the said copies. The certificate under Section 65B of The Indian Evidence Act gains significance in view of the fact that the transcripts were prepared from the copies of the original conversation and not from the original conversation captured on the memory cards. In these circumstances, it was obligatory for the prosecution to file a certificate under Section 65B of The Indian Evidence Act in respect of the copies of the conversations prepared from the memory cards. The prosecution was duty bound to rule out the possibility of tampering to establish that authentic copies were prepared but it failed to do so. It is further noted that neither the hash value of the data collected over the memory card nor the CC No. 52/22 CBI Vs. Mayank Yadav Page No. 89 of 102 hash value of the copies of the conversation were obtained at any stage of investigation.
72. In view of the above, it can be safely concluded that there is no evidence to correctly identify the voice of the accused in the recorded conversation. There is evidence to show that the chain of custody of the memory cards was not maintained. The memory cards were de-sealed in the absence of independent witnesses. There is no evidence to show the inward and outward movement of the memory cards from the malkhana. Investigating Officer Ajay Kumar (PW-13) admitted in cross-examination that he did not check as to on which dates the case properties were deposited in the malkhana. He admitted that he did not collect the copy of the entries made in the register maintained at the malkhana. He admitted that there is no document to show the movement of the case property during the various stages of investigation. These factors lead to the inescapable conclusion that prosecution has failed to establish the chain of custody of the memory cards. In such circumstances, it would be unsafe to place reliance on the purported conversations recorded over the memory cards. Such an evidence cannot be used to corroborate the version of the complainant.
73. Further, no reliance can be placed on the transcripts as CC No. 52/22 CBI Vs. Mayank Yadav Page No. 90 of 102 there is evidence to show that the transcripts do not depict the actual conversation. Certain material portions of the conversations were found deleted in the transcripts of the conversation dated 06.06.2022 (Ex.PW8/B). Discrepancies were noticed in the recorded conversations contained in Q-1 and the transcripts. The recorded conversations were played during the examination of complainant and the discrepancies came to light. It was found that in the transcript, from points 'X to X-1', it was mentioned that complainant said to accused 'jo abhi 15000/- maangey hain'. However, the conversation heard from the recorded conversation revealed that the complainant stated that 'maine apko 15000/- dene hain final'. Likewise, in reply to the aforesaid question, accused stated from point 'Y to Y1' that, 'jo cheez apne dekhi hai wahi hai jo 17 lakh ka evidence nahi de paya vo chal raha hai jo apke paas proof hai vo rakhiye' while in the recording played before this court, the accused stated, 'maine aapko kabhi bola'. The discrepancy in the transcripts puts question mark over its authenticity. Moreover, since the prosecution has failed to establish the authenticity of the recorded conversations, therefore, the transcripts of such a conversation looses relevance.
74. In view of the discussion held in above stated paras, I have come to a conclusion that there is no cogent evidence to CC No. 52/22 CBI Vs. Mayank Yadav Page No. 91 of 102 substantiate the allegations that accused demanded bribe from the complainant. The testimony of the complainant is not of sterling quality and there is no evidence to corroborate his version. The independent witnesses have not deposed anything about the aspect of demand. The recorded conversations are not reliable and the transcripts are not authentic. Thus, prosecution has failed to establish one of the key ingredients of the offence punishable under Section 7 of PC Act.
75. In the absence of demand, the allegation that accused accepted the bribe becomes irrelevant as the key ingredient of the offence is missing. Nevertheless, it is noticed that the evidence qua the aspect of acceptance and recovery is also doubtful. Record shows that prosecution witnesses have presented contrasting versions about the recovery. On the one hand, complainant and the investigating officer Insp. Dharambir (PW-
14) deposed that the recovery was effected at the instance of the accused whereas, the independent witnesses have deposed that the recovery was effected independently by the CBI officials. Even though no site plan of the place of recovery was prepared by the investigating officer, still, there is evidence to show that the almirah lying outside the CCTNS room was not visible from the room where the accused was being interrogated. In such circumstances, the version of the complainant that accused CC No. 52/22 CBI Vs. Mayank Yadav Page No. 92 of 102 pointed towards the almirah while sitting in the room becomes doubtful.
76. It is noted that prosecution has not tendered any explanation as to how the currency notes placed by the accused in the drawer of his table were found on the top of the almirah. Ld. PP for CBI has argued that the currency notes came to be in possession of the accused and he had sufficient time to place the same on the top of the almirah after the complainant came out of his cabin. He has mentioned that this is the only logical explanation and the accused had sufficient opportunity to place the currency notes at the place from where the same were recovered. I do not find force in these submissions. In a criminal trial, prosecution is duty bound to establish its case either by direct or circumstantial evidence. In case, prosecution intends to prove its case by circumstantial evidence then it is under an obligation to establish each link in the chain of the circumstances. In the present matter, there is a missing link as to how the currency notes travelled on the top of almirah from the drawer of the accused. Prosecution wants this court to draw an inference that the same were kept by the accused but there is no evidence to draw such an inference. In case, the logic that accused had sufficient opportunity to place the currency notes on the top of almirah is accepted, then by the same logic, CC No. 52/22 CBI Vs. Mayank Yadav Page No. 93 of 102 complainant also had an equal opportunity to place the currency notes on the top of the almirah. There is evidence to show that after coming out of the room of the accused, complainant had sufficient time to put the currency notes on the top of the almirah. In such circumstances, the argument of the defence counsel that there is a possibility that the currency notes were planted by the complainant cannot be ruled out.
77. It is further noticed that there are various infirmities in the investigation. It is correct that minor lapses in the investigation does not affect the prosecution's case but in the present matter, serious infirmities can be noticed at each stage of the investigation. The infirmities, as pointed out by the Ld. Defence Counsel, cast doubts over the fairness of investigation. Prosecution has failed to tender any explanation for the said infirmities. It has come on record that after giving the demonstration of the properties of phenolphthalein powder, CBI officials placed the remaining powder in a bag and took the same along during the trap. Complainant has stated in cross- examination that CBI officials treated the currency notes with phenolphthalein powder and kept the remaining powder in the same bag along with other articles. PW-9 Harender Kumar has deposed that phenolphthalein powder was kept in the bag and CBI officials took the said bag to the spot. PW-11 Anil Kumar CC No. 52/22 CBI Vs. Mayank Yadav Page No. 94 of 102 has deposed on the same lines. He also mentioned that CBI officials put the remaining powder in the bag and took the same along to the spot. In order to impart fairness to the investigation and rule out the possibility of false plantation, the unused phenolphthalein powder should have been left at the office of CBI. There was no occasion and reason for the CBI officials to take the unused phenolphthalein powder to the spot. In these circumstances, the defence raised by the accused that phenolphthalein powder could have been planted by the CBI officials cannot be discarded.
78. It is observed that the place where the bribe money is shown to have been kept is unusual. Independent witnesses have deposed that the currency notes were found lying on the almirah lying outside the CCTNS room. PW-11 has conveyed that the currency notes were lying scattered on the almirah and the same were collected by the accused. He mentioned that accused collected the currency notes on the directions of Insp. Dharambir. He stated that Insp. Dharambir gave a plain paper to the accused for wrapping the currency notes and the accused picked up the currency notes and handed over the same to him after wrapping it in the paper. PW-9 has also deposed that the currency notes found lying on the almirah were picked by the accused and the same were handed over by him to PW-11. It is a matter of CC No. 52/22 CBI Vs. Mayank Yadav Page No. 95 of 102 common understanding that in case, a police official accepts the currency notes as bribe, he would usually try to conceal it at a place which is not visible to the other officials of the police station and would not scatter the same over an almirah lying at a place easily accessible to the other police officials. In case, the prosecution's story is believed to be correct than it means that after accepting the bribe from the complainant, accused went outside his room and kept the same on an almirah located at a distance of around 8 - 10 steps from his room. However, there is no conclusive evidence to substantiate this theory. This important link in the chain of recovery is missing. There is no evidence to conclusively establish that the amount was kept on the almirah by the accused only.
79. Prosecution has strongly relied upon the CFSL report which returned a positive finding about the presence of phenolphthalein powder in the solution of hand washes as well as other washes obtained by the CBI officials. I have perused the CFSL report in the light of statements of witnesses and other material available on record. There is evidence to establish that TLO Insp. Dharambir (PW-14) directed the accused to pick up the currency notes from the top of almirah. PW-14 admitted in his cross-examination that he directed the accused to do so. The independent witnesses have also deposed that the currency notes CC No. 52/22 CBI Vs. Mayank Yadav Page No. 96 of 102 were picked by the accused from the top of the almirah. Thus, it can be safely concluded from the material on record that accused was first directed to pick the currency notes from the top of almirah and the hand washes were obtained thereafter. No explanation has come forward for this lapse on the part of the investigating officer. PW-14 admitted in cross-examination that as a usual practice, in such like situations, the hand wash of a suspected official is taken first and the recovery is effected thereafter but he did not tender any explanation for not following the standard protocol. The fact that the prosecution has failed to tender any explanation for adopting this unusual mode raises further doubt. It may be noted that in view of these circumstances, the sanctity of the hand washes is lost and no reliance can be placed on the report of the CFSL. This circumstance provides support to the argument of the defence that the standard protocol was not followed to create false evidence. It is further noticed that although, the prosecution has set up a case that the solution wherein the wash of the top of the almirah was obtained turned opaque, suggesting thereby that no phenolphthalein powder was found therein, but the CFSL returned a positive finding even in respect of the said solution. This discrepancy has not been explained and it puts a further question mark over the authenticity of the CFSL report. I am of the considered opinion that no reliance can be placed upon the CC No. 52/22 CBI Vs. Mayank Yadav Page No. 97 of 102 report of the CFSL in respect of the hand washes and the same needs to be discarded.
80. It is noticed that the investigating agency made no efforts to collect the CCTV footage of the police station. The CCTV footage of the police station would have corroborated the version of the complainant and it would have imparted fairness to the investigation. It is not the prosecution's case that no CCTV camera was installed at the police station. PW-13 Ajay Kumar and PW-14 Insp. Dharambir admitted that they did not collect the the CCTV footage of the police station. They have not tendered any explanation for not collecting the same. The fact that the investigating agency failed to collect and placed on record a vital piece of evidence gives rise to an adverse inference. This further causes dent in the prosecution's case.
81. Now coming to the defence raised by the accused that he was not present at the police station at the time when the complainant visited the police station on 06.06.2022. Ld. Defence Counsel has submitted that it can be seen from the Cell Tower Location of the mobile phone of the accused that at the relevant time, he was present at Mizoram House and not at the police station. The aforesaid contention does not hold ground as the location of the accused at Mizoram House was at 03:29 PM CC No. 52/22 CBI Vs. Mayank Yadav Page No. 98 of 102 while as per the prosecution's version, complainant called him on whatsapp at 04:00 PM. DW-4 HC Yashwant deposed that accused was absent on 06.06.2022 between 01:30 PM to 02:00 PM. DW-3 SI Anil Kumar has also deposed on similar lines. He stated that a Sikh person came to the police station and enquired about the accused who was not present in the police station and, thereafter, the said person left the room. It can be seen that the case of the prosecution is not that the complainant met the accused in the police station on 06.06.2022 between 01:30 PM to 02:00 PM. Rather, it is the case of prosecution that the complainant met the accused between 04:00 PM to 04:35 PM. Independent witness Harender Kumar (PW-9) has deposed about the presence of accused at the police station. He mentioned that he was present outside the police station when the complainant went inside to meet the complainant. Thus, from the testimonies of the witnesses and the evidence placed on record, the defence that accused was not present at the police station during the visit of the complainant on 06.06.2022 is not substantiated. Nevertheless, the fact that accused failed to substantiate this line of defence does not alter the fate of the trial.
CONCLUSION
82. In a criminal trial, prosecution is under an obligation to establish its case beyond reasonable doubts and it must do so by CC No. 52/22 CBI Vs. Mayank Yadav Page No. 99 of 102 leading reliable and cogent evidence. The prosecution must tender an explanation for each circumstance to rule out the possibility of any hypothesis that may point towards the innocence of the accused. On the other hand, accused is only required to present a defence which is probable or believable. He can do so either by cross-examining the prosecution witnesses or by leading independent evidence. In the present matter, prosecution has failed to place on record reliable evidence to conclude that accused demanded the bribe. The testimony of the complainant contains various contradictions and improvements. He made material improvements in his statement which highlighted his tendency to implicate the accused. His testimony is not totally reliable and there is no independent evidence to corroborate his version. No reliance can be placed on the testimonies of the independent witnesses to corroborate the version of the complainant as none of them was present at the spot at the time when the accused allegedly made the demand.
83. It can be seen that the tape recorded conversations were also found unreliable as the voice of the accused was not identified from some independent source. The sanctity of the memory cards was not maintained. It was revealed that the memory cards were taken out from the malkhana and the seal was broken in the absence of independent witnesses. No record CC No. 52/22 CBI Vs. Mayank Yadav Page No. 100 of 102 was produced from the malkhana to demonstrate that the chain of custody was duly maintained during the course of investigation. The evidence to establish the acceptance and the recovery of the bribe amount was also found to be unreliable. Independent witnesses gave different account of the recovery. They mentioned that recovery was not made at the instance of the accused and the same was made independently by the CBI officials. On the other hand, the complainant and the CBI officials presented a version that the recovery was made at the instance of the accused. Serious infirmities were noticed in the investigation. The investigating officer directed the accused to pick the currency notes and, thereafter, obtained the hand washes. He failed to tender any plausible explanation for adopting such an unusual mode of investigation and deviating from the standard protocol. It was found that the CBI officials carried the phenolphthalein powder to the spot from where the recovery was effected. As observed earlier, the bribe money was recovered from the top of the almirah lying outside the CCTNS room. No evidence was led to how as to how the currency notes smeared with phenolphthalein powder reached the top of the almirah. The prosecution insisted on drawing an inference that the same might have been kept by the accused but there was no evidence to draw such an inference. All these circumstances lead to the conclusion that the prosecution has failed to establish its case beyond CC No. 52/22 CBI Vs. Mayank Yadav Page No. 101 of 102 reasonable doubt. The facts brought on record during the cross- examination of the prosecution witnesses, read in the light of the other evidence, show that the possibility that the bribe money was planted upon the accused cannot be ruled out. Although, the accused failed to substantiate the defence that he was not present at the police station during the visit of complainant on 06.06.2022 but his failure does not relieve the prosecution from the burden of establishing its case beyond reasonable doubt. I am of the considered opinion that the prosecution has failed to establish its case beyond reasonable doubt and the accused deserves the benefit of doubt. The result is obvious. The accused stands acquitted of the charges under Section 7 of PC Act.
File be consigned to record room.
Digitally signed byAnnounced in the open Court on SUDHANSHU SUDHANSHU KAUSHIK this 18th day of November, 2024 KAUSHIK Date: 2024.11.23 11:18:32 +0530 (Sudhanshu Kaushik) Special Judge, (PC Act)/ CBI-11, Rouse Avenue Courts, Delhi 18.11.2024 CC No. 52/22 CBI Vs. Mayank Yadav Page No. 102 of 102