Delhi District Court
Cbi vs Subhash Chand on 22 November, 2014
IN THE COURT OF SHRI P.S. TEJI : DISTRICT & SESSIONS
JUDGE (EAST): SPECIAL JUDGE (CBI), KARKARDOOMA
COURTS, DELHI.
AC No.04/2011
Unique Case ID No.02402R0304082011
FIR No.RC31(A)/2010
under section 7 & 13(2) read with
section 13(1)(d) of the P.C. Act
CBI Versus Subhash Chand
S/o Sh. Rameshwar Dyal Sharma
R/o H.No.212, Gali No.11, Phase6,
Shiv Vihar, New Delhi94.
Date of Institution : 03.10.2011
Date of judgment reserved : 07.11.2014
Date of judgment : 21.11.2014
JUDGMENT
Accused Subhash Chand (on bail) has been sent to face trial by the Anti Corruption Branch of the CBI, for the offences punishable under Section 7 and 13(2) read with Section 13(1)(d) of PC Act, 1988.
2 At the time of commission of the offence, accused was posted as Head Constable, Delhi Police, Police Station Geeta Colony. 3 Briefly stating, the facts of the present case are that a A.C. No.04/2011 CBI Vs. Subhash Chand Page 1 of 53 written complaint dated 13.07.2010 Ex.PW8/A was made by the complainant Harish Kumar @ Monu (PW6) to the CBI to the effect that the complainant was an auto rickshaw driver. Police had registered 12 cases against him in different police stations, out of which 8 cases were registered in PS Geeta Colony. All the cases were pending trial in Court. Complainant further mentioned that due to pendency of cases against him, HC Subhash from PS Geeta Colony was demanding bribe of Rs.20,000/ from him and was threatening if the complainant did not pay Rs.20,000/, he would be declared B.C. and got registered case against him.
4 The complaint Ex.PW8/A was assigned to Insp. Vivek Prakash (PW11) to verify its genuineness. One independent witness Bhupender Kumar (PW8) was arranged. One digital voice recorder was also arranged. Complainant made a telephone call from his mobile phone to the mobile number of accused. The conversation confirmed the demand of bribe of Rs.20,000/ by accused who agreed to accept Rs. 15,000/ as a first installment. The said conversation was recorded in digital voice recorder as well as on the mobile phone of the complainant. Conversation from voice recorder was transferred to CD mark Q1 Ex.P1. A verification memo Ex.PW8/B was prepared. On the basis of complaint and verification memo, FIR Ex.PW6/A was registered against accused Subhash Chand and its investigation was A.C. No.04/2011 CBI Vs. Subhash Chand Page 2 of 53 entrusted to Insp./DSP Raj Singh (PW10).
5 The Trap Laying Officer (PW10) formed a trap team comprising himself, SI Vivek Prakash (PW11), Insp. Pramod Kumar, independent witnesses Bhupender Kumar (PW8), Gopi Chand (PW9) and complainant (PW6). The complaint was shown to independent witnesses. The complainant produced 30 GC notes of denomination of Rs.500/, amounting to Rs.15,000/ and their numbers were recorded in handing over memo Ex.PW6/B. Phenolphthalein powder was applied on all the currency notes. A practical demonstration with regard to chemical reaction between phenolphthalein powder and solution of Sodium Carbonate was given. The smeared GC notes were kept in the right side pant pocket of the complainant with the direction to hand it over to the accused only on his specific demand. Sh. Bhupender Kumar (PW8) was asked to act as a shadow witness. He was also directed to remain close to the complainant to overhear the conversation and to see the transaction between the complainant and the accused. The complainant was given digital voice recorder. Pretrap proceedings were recorded in Handing Over Memo Ex.PW6/B. Complainant was directed to give signal by scratching his head with right hand or give a missed call to the phone of TLO. All the trap party members left the CBI office at 06.00 p.m. and reached near Yamuna Pushta. 6 The complainant contacted the accused by making a A.C. No.04/2011 CBI Vs. Subhash Chand Page 3 of 53 call. Accused directed the complainant to reach at police booth near Rani Garden Chowk. The said conversation was recorded in the memory card of the phone of the complainant. CBI team reached near Rani Garden Chowk and parked the vehicle at a distance. The voice recorder was put in ON mode and placed in the vest of the complainant. The complainant and shadow witness moved towards police booth, whereas remaining trap members and witness Gopi Chand followed them in disguised manner. The complainant again called the accused to ascertain his location as the booth was bolted from outside. 7 After sometime, a person was seen coming and met the complainant. Both of them had some conversation. It was seen that the complainant took out currency notes from his right side pant pocket and extended towards that person who accepted the same with his right hand and kept the same in his back right side pant pocket. Said person was later on identified as accused Subhash Chand. The complainant gave preappointed signal. Accused was apprehended. He was challenged of having demanding and accepting bribe to which he became perplexed and after sometime, admitted to have accepted the bribe amount. The right hand fingers of accused were washed in the solution of Sodium Carbonate and it turned pink. The said solution in glass bottle marked RHW Ex.P5. Independent witness Gopi Chand recovered bribe amount from the back side pant pocket of accused. The numbers of recovered A.C. No.04/2011 CBI Vs. Subhash Chand Page 4 of 53 GC notes were tallied with the numbers mentioned in handing over memo Ex.PW6/B, which found tallied. It was decided to conduct further proceedings in CBI office.
8 In CBI office, accused was asked to put off his pant and he was given a Pyjama to wear. The inner lining of the pant of accused was washed in the solution of Sodium Carbonate which turned Pink. The said solution was transferred to glass bottle marked BRSPPW Ex.P6. The conversation recorded in digital recorder was transferred to CD marked Q2 Ex.P2. The memory card of the mobile phone of the complainant was taken out and same was sealed and marked as Q3 Ex.P3. The specimen voice of accused was taken in CD marked S1 Ex.P4. The trap proceedings were recorded in recovery memo Ex.PW6/C. Accused was arrested vide memo Ex.PW6/DB. TLO (PW10) prepared site plan Ex.PW6/DC. During investigation, exhibits of the case were sent to CFSL vide forwarding letters Ex.PW10/1 and Ex.PW4/A. 9 Further investigation of the case was conducted by Insp. Manoj Kumar (PW12) who issued notice u/s 91 Cr.P.C. Ex.PW7/A to SHO, PS Geeta Colony vide which certain documents were sought. In response to the same, a reply Ex.PW7/B was received along with documents Ex.PW7/C to Ex.PW7/N. In CFSL, Sh. Deepak Kumar Tanwar (PW4) examined the voices contained in CDs and A.C. No.04/2011 CBI Vs. Subhash Chand Page 5 of 53 memory card vide report Ex.PW4/B, whereas Sh. V.B. Ramteke examined the washes vide report Ex.PW5/A. The call details Ex.PW3/B of mobile phone no.9899877657 in the name of complainant were collected along with letter Ex.PW3/A, Certificate Ex.PW3/C and Customer Application Form with annexures Ex.PW3/D. 10 Further investigation of the case was conducted by Insp. Sandeep Gautam (PW13). The Customer Application Form along with documents Ex.PW2/B regarding mobile phone no.9968162831 in the name of accused were received along with letter Ex.PW2/A. The transcriptions Ex.PW6/E and Ex.PW6/F of the recorded conversation was prepared vide memo Ex.PW6/D. 11 Sanction for prosecution of accused was accorded by Sh. Asif Mohd. Ali (PW1) vide sanction order Ex.PW1/A. 12 After completion of the investigation, the charge sheet was filed in the court where the accused was supplied with the copies of the chargesheet and the documents of the CBI.
13 The charges under Section Section 7 and 13(2) read with 13(1)(d) of P.C. Act were framed against accused on 28.01.2012 which reads as under :
"That on or before 13.7.2010, you accused Subhash Chand being the public servant while posted as Head Constable in Delhi Police, Police Station Geeta Colony demanded Rs.20,000/ which you reduced to Rs.15,000/ as illegal gratification from the complainant Harish Kumar A.C. No.04/2011 CBI Vs. Subhash Chand Page 6 of 53 and on 13.7.2010 you accepted the bribe amount of Rs. 15,000/ from the abovesaid complainant and thereby you committed an offence punishable under Section 7 of the Prevention of Corruption Act, 1988.
Secondly, on 13.7.2010, you accepted the bribe of Rs. 15,000/ from the complainant Harish Kumar while abusing your position as public servant and benefiting yourself while abusing your official capacity which amount to misconduct within the meaning of Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and thereby you committed an offence under Section 13(1)(d) punishable under section 13(2) of the Prevention of Corruption Act."
14 Accused pleaded not guilty to the charges framed against him and claimed trial.
15 The prosecution has examined 13 witnesses in support of its case. Out of those witnesses, PW6 Harish Kumar is the complainant. PW5 Sh. V.B. Ramteke examined washes in CFSL. PW4 Sh. Deepak Kumar Tanwar examined voices in the CFSL. PW2 Sh. Vinod Kumar and PW3 Sh. Israr Babu proved the documents regarding mobile phones. PW7 ASI Satvinder Singh is the witness from Delhi Police. PW8 Bhoopendra Kumar and PW9 Gopi Chand are the independent witnesses. PW10 DSP Raj Singh is the TLO, whereas PW11 Insp. Vivek Prakash, PW12 Insp. Manoj Kumar and PW13 Insp. Sandeep Gautam are the witnesses from CBI. PW1 Sh. Asif Mohd. Ali accorded sanction for prosecution of accused.
A.C. No.04/2011 CBI Vs. Subhash Chand Page 7 of 53 16 Statement of accused has been recorded under Section 313 Cr.P.C. Accused denied entire case of CBI and claimed innocence. He has stated that he had never demanded or accepted any money from the complainant. The washes were planted upon him. Accused opted to lead evidence in his defence.
17 Accused has examined five witnesses in his defence i.e. DW1 HC Manoj Kumar; DW2 HC Suresh Kumar; DW3 SI Jag Mahender Singh; DW4 Sh. Deepak Kumar Tanwar and DW5 HC Sanjay Sharma.
18 I have heard Sh. Thakuri, ld. PP for CBI and Sh. Sanjay Gupta, ld. counsel for accused. Written submissions have also been filed on behalf of accused. I have carefully gone through their submissions and the material avaislable on record. Sanction 19 It is argued on behalf of the accused that the sanction Ex.PW1/A accorded by PW1 is liable to be discarded for want of valid sanction. The sanction accorded is invalid for the want of proper application of mind. It is argued that PW1 had gone through the report sent by CBI; copy of report u/s 173 Cr.P.C. was not produced before him; date, time and place of bribe transaction was not mentioned in Ex.PW1/A, names of independent witnesses were not mentioned in Ex.PW1/A. It is further argued that the sanction order is the verbatim of A.C. No.04/2011 CBI Vs. Subhash Chand Page 8 of 53 reproduction of draft sanction proforma sent by CBI to the office of PW1 and the said fact has been proved by Ex.DW3/A. In support of these contentions, reliance has been placed on judgment in case of State of Karnataka Vs. Ameer Jan AIR 2008 SC 108 in which it was observed that the sanction was given solely on the basis of report made by I.G. Police. The material collected during investigation was not available before the sanctioning authority. Thus, the sanction was held to be passed without application of mind. Next judgment relied upon is in case of Om Prakash Vs. State & Ors. (CBI) 2009 (3) RCR (Criminal) 293 in which the sanction accorded was held to be invalid as proforma order was put by subordinate officer before sanctioning authority who signed the same and it was observed that there was no application of mind by the sanctioning authority before according sanction.
20 On the other hand, Ld. PP for the CBI has argued that sanctioning authority himself proved the sanction order and it is settled law that when sanctioning authority himself appears in Court to prove sanction order, unless there is anything brought on record which may vitiate the sanction order, the sanction order has to be taken as proved. 21 Section 19 of the Act provides protection to an accused who happened to be public servant at the time of taking the cognizance by the court. The purpose of sanction under section 19 of the Act to A.C. No.04/2011 CBI Vs. Subhash Chand Page 9 of 53 have the approval of the competent authority to remove the accused from the office, is just because that at the time of taking the cognizance, he was a public servant.
22 In order to prove the sanction granted for the prosecution of the accused, the prosecution has examined Sh. Asif Mohd. Ali (PW1), Addl. DCP (East). PW1 has deposed that he was posted as such since 27.01.2011 and he was the disciplinary authority competent to remove officers of subordinate staff i.e. Constable and Head Constable in Delhi Police. On 27.09.2011, he granted sanction for prosecution of accused HC Subhash Chand, PS Geeta Colony after going through the relevant documents and statements of witnesses pertaining to the present case which was produced before him by SO, DCP Office and after independently applying his mind. He proved the sanction order as Ex.PW1/A. 23 During crossexamination, PW1 has stated that he did not receive any report u/s 173 Cr.P.C. along with other papers submitted for obtaining sanction. He admitted that he had not mentioned the duties of accused in sanction order. He received the documents along with covering letter. His office had prepared the file for the purpose of sanction. He admitted that one CBI report was attached with the forwarding letter received from CBI. He admitted that Head Constable was not a competent authority to declare an accused as habitual A.C. No.04/2011 CBI Vs. Subhash Chand Page 10 of 53 offender/bad character. He admitted that the recommendation to declare a person as bad character is made by the DCP who was the competent authority for the same. He admitted that Head Constable was not in a position to get a false case registered against any person. He admitted that the date, time and place of bribe transaction and name of independent witnesses were not mentioned in sanction order Ex.PW1/A. He denied that the sanction order was prepared by his office and he put the signatures on the same.
24 In the present case, the CBI has produced the sanctioning authority PW1 Sh. Asif Mohd. Ali who duly proved the sanction order of accused as Ex.PW1/A to prosecute him. The perusal of sanction order Ex.PW1/A shows that the sanctioning authority after carefully examining the material such as FIR, statement of witnesses, memos prepared during investigation and other relevant documents collected during investigation and after applying his mind, accorded sanction for the prosecution of accused.
25 Consequently, in view of the above mentioned discussion, it is held that the PW1 was competent to accord the sanction for the prosecution of accused. It has been demonstrated from his testimony and sanction order that material produced before him was made basis for passing sanction order. Though, accused has challenged the competency of sanctioning authority to pass sanction order but has A.C. No.04/2011 CBI Vs. Subhash Chand Page 11 of 53 not produced any material or evidence to show that he was not competent to pass such sanction order. The arguments of Ld. defence counsel that sanction order is defective and invalid as the same do not show application of mind, is not borne out of record. The sanctioning authority while entering into the witness box duly proved the sanction order. Sanction order also reveal that material which is part of judicial record was placed before the sanctioning authority and was gone into by him before according sanction.
26 It is argued by ld. defence counsel that draft sanction order was placed before the sanctioning authority (PW1) and PW1 has just accorded the sanction for prosecution of accused in a mechanical manner. To prove this contention, accused has examined DW3 SI Jag Mahender Singh who has stated that as per record, a letter was received from CBI dated 20.09.2011 along with copy of draft for the sanction. He was shown the copy supplied through RTI of draft sanction and proved the same as Ex.DW3/A. 27 It may be that draft sanction order Ex.DW3/A was placed on record, but it do not in any way discard the testimony of PW1 who had accorded sanction Ex.PW1/A for prosecution of accused. PW1 has specifically deposed that he had gone through the documents placed on record, statements of witnesses, memos prepared during investigation and applied his mind before according sanction. I have A.C. No.04/2011 CBI Vs. Subhash Chand Page 12 of 53 also gone through the ratio of judgment in case of Amar Lal Vs. State of Punjab 2009 Cri.L.J. (NOC) 1246 in which it was observed that mere fact that witness has stated that draft sanction was received from Vigilance Department and sanction letter was issued after deleting word "draft", it does not invalidate sanction.
28 So, I do not find any force in the contention of ld. defence counsel that placing of draft sanction order before the sanctioning authority invalidates the sanction accorded for prosecution of accused. Therefore, the judgments relied upon by accused in case of Ameer Jan (supra) and Om Prakash (supra) are of no help to the him as the same are not attracted to the facts and circumstances of the present case.
29 Consequently, I am of the considered opinion sanction accorded for prosecution of accused Subhash Chand is proper, valid and has been passed after due application of mind.
Demand of bribe at initial stage 30 Our own Hon'ble High Court in case titled Ram Chander Versus State 2009 Cri. L.J. 4058 has framed the guidelines in trap cases. In the said judgment, it was observed that to succeed in trap cases, the prosecution is obliged to prove the previous demand of bribe, its acceptance and the recovery of tainted money. It was further observed that the demand can be proved by the testimony of A.C. No.04/2011 CBI Vs. Subhash Chand Page 13 of 53 complainant as well from the complaint made by him. 31 To prove the demand of bribe by accused at the initial stage i.e. prior to laying of trap, prosecution has examined the complainant Harish Kumar @ Monu (PW6). Complainant (PW6) in his testimony has deposed that on 13.07.2010, he attended CBI office and submitted complaint against accused HC Subhash Chand, PS Geeta Colony who was threatening him to implicate in a false criminal case, in case he did not pay accused Rs.20,000/. He was introduced to independent witnesses. On instructions of CBI official, he contacted accused Subhash Chand from his mobile to the mobile of accused. During mobile conversation, accused assured that he would take care that Ct. Virender Sigh would not harass and further that he need not have tension. During the conversation, money was settled at Rs. 15,000/ which was to be paid to accused for not harassing the complainant. The said conversation was recorded by recording equipment. After the completion of recording, it was transferred to CD mark Q1 Ex.P1. Complainant identified his signatures on transcription cumvoice identification memo Ex.PW6/D and transcriptions Ex.PW6/E & Ex.PW6/F. 32 During crossexamination, complainant (PW6) has stated that he reached CBI office on 13.07.2010 at about 10.00/10.30 a.m. He had written the complaint of present case firstly and then the A.C. No.04/2011 CBI Vs. Subhash Chand Page 14 of 53 complaint of RC no.32A against Ct. Virender. He stated that accused demanded bribe for the first time on 11.07.2010 in the evening outside PS Geeta Colony. He admitted that he did not make any other complaint except the present one. He did not lodge complaint prior to 13.07.2010 as in between there was heavy raining. He denied that he had not meet the accused at any point of time on 11.07.2010 nor any such demand was ever made by accused. He further stated that he had signed the document Ex.PW6/A after 2.00 p.m. He had made call to the accused only at CBI office. He denied that accused never demanded or agreed to accept any bribe from him at any point of time. He further denied that no money was demanded by th accused nor he was threatened by the accused to involve him in false case or to get him declared BC of the area.
33 PW11 Insp. Vivek Prakash has deposed that on 13.07.2010, complaint dated 13.07.2010 Ex.PW8/A submitted by Harish Kumar @ Monu was marked to him. Complainant was introduced to him and PW11 was directed to verify the complaint by SP Sh. Sumit Saran. On perusal of complaint, PW11 found that there was demand of Rs.20,000/ by Subhash Chand, HC PS Geeta Colony. An independent witness Sh. Bhupender Kumar was arranged. One digital voice recorder was also arranged. The complainant was asked to make a call to accused Subhash Chand. During the call, the demand of bribe A.C. No.04/2011 CBI Vs. Subhash Chand Page 15 of 53 being Rs.20,000/ was established and that accused agreed to accept Rs. 15,000/ as a first installment. The said conversation was heard by all with the help of inbuilt load speaker. The said conversation was also recorded in the mobile phone of the complainant. The conversation of digital recorder was transferred to a blank CD marked Q1 Ex.P1. PW11 further deposed that a verification memo Ex.PW8/B was prepared by him in which the detailed proceeding of verification was mentioned which was signed by complainant and Bhupender Kumar. On the basis of complaint and verification memo, FIR Ex.PW6/A of the present case was registered.
34 During crossexamination, PW11 stated that the conversation was transferred to CD from DVR during verification proceedings without hearing the contents of CD. He voluntarily stated that the conversation was heard live when it was done. He denied that no such CD was prepared by transferring any recording from DVR. He stated that complaint was verified as it was lacking particulars of proposed bribe transaction qua date, time and place. The transcription was verbatim from the text available in the device. Witness identified the transcription as Ex.PW6/E being the same which related to conversation which had taken place during verification proceedings. He denied that no such verification proceedings were conducted by him on 13.07.2010 or that memo Ex.PW8/B was fabricated. He stated that he A.C. No.04/2011 CBI Vs. Subhash Chand Page 16 of 53 had conducted two verification proceedings on 13.07.2010 including the present case. Verification of present case was done first and thereafter, verification of other case was done.
35 In the complaint Ex.PW8/A, it was alleged by the complainant that he was an auto rickshaw driver. Police had registered 12 cases against him in different police stations, out of which 8 cases were registered in PS Geeta Colony. All the cases were pending trial in Court. Complainant further mentioned that due to pendency of cases against him, HC Subhash i.e. accused from PS Geeta Colony was demanding bribe of Rs.20,000/ from him and was threatening if the complainant did not pay Rs.20,000/, he would be declared B.C. and case would be registered against the complainant. 36 The complainant (PW6) in his testimony has duly corroborated the contents of complaint Ex.PW8/A that on 13.07.2010, he submitted complaint against accused Subhash Chand who was threatening the complainant to implicate him in false criminal case in case he did not pay Rs.20,000/ to the accused. He has stated that in the presence of CBI official and independent witness, he made a telephone call from his mobile phone to the mobile phone of the accused. During the said conversation, accused assured him that he would not be harassed. He specifically stated that during conversation, the money was settled at Rs.15,000/ which was to be paid to accused. He also A.C. No.04/2011 CBI Vs. Subhash Chand Page 17 of 53 stated that the said conversation was recorded in the recording device. The complaint Ex.PW8/A is the named one in which the name of accused has been mentioned who had demanded Rs.20,000/ as bribe from the complainant for not booking him in a criminal case. 37 The complainant has proved the transcription cum voice identification memo as Ex.PW6/D and his signatures on it. Vide this memo, transcription Ex.PW6/E of the conversation between accused and the complainant before laying of trap, was transcribed from the CD marked Q1 Ex.P1. This transcription also corroborates the testimony of the complainant that accused demanded bribe from him. In the transcription Ex.PW6/E, it is specifically mentioned that when complainant asked the accused how much money he had to pay, to which accused mentioned Rs.20,000/. Thereafter, complainant asked the accused to manage as he had managed about Rs.10,000/. Thereafter, accused agreed to accept Rs.15,000/ and asked the complainant to pay remaining on the next day. So, this conversation duly established that accused Subhash Chand demanded bribe of Rs. 20,000/ from the complainant for not booking him in case and later on agreed to accept Rs.15,000/ on that day being part of the bribe money. 38 PW8 Bhoopendra Kumar, independent witness has also corroborated the testimony of the complainant regarding verification of the complaint and demand of bribe by accused from the complainant. A.C. No.04/2011 CBI Vs. Subhash Chand Page 18 of 53 PW8 has deposed that on 13.07.2010, he visited the CBI office where he was introduced to SI Vivek Prakash (PW11) who had further introduced him to Harish Kumar @ Monu, complainant (PW6) and shown his complaint dated 13.07.2010 wherein it was alleged that HC Subhash demanded bribe of Rs.20,000/ for not registering criminal case against him. The complainant made a call to accused which was recorded. During the conversation, accused demanded Rs.20,000/ from the complainant and on the insistence of complainant, accused told the complainant to arrange atleast Rs.15,000/. The said conversation was recorded in digital voice recorder from which it was transferred to CD. A verification memo Ex.PW8/B was prepared. Witness (PW8) identified his signatures on CD cover Ex.P1A. He identified his introductory voice, voice of complainant Harish @ Monu and said that it also contained probably voice of accused Subhash. 39 During crossexamination, PW8 has stated that he reached the CBI office at about 10.00 a.m. He met the verifying officer and complainant. The verification was started at about 2/2.30 p.m. and was continued for about 1520 minutes. The complainant called the suspect at about 2.30/3.00 p.m. The date, time and place of initial demand was not mentioned in the complaint. He denied that no such complaint Ex.PW8/A was shown to him at CBI office. H stated that all the particulars were there on CD Ex.P1 and paper cover Ex.PX1 when A.C. No.04/2011 CBI Vs. Subhash Chand Page 19 of 53 he signed the same.
40 The testimony of PW8 shows that he corroborated the testimony of complainant (PW6) and Insp. Vivek Prakash (PW11) to the effect that verification proceedings were conducted in his presence which confirmed the demand of bribe of Rs.20,000/ by accused, out of which he agreed to accept Rs.15,000/ on that day.
41 The documents Ex.PW2/B show that mobile phone no. 9968162831 was registered in the name of the accused. The accused had submitted copy of his election identity card while applying for mobile phone connection. The documents Ex.PW3/D prove that mobile phone no.9899877657 was issued in the name of complainant Harish Kumar. The call details Ex.PW3/B of mobile phone no.9899877657 show that a call from mobile phone of complainant was made on the mobile phone no.9968162831, belonging to the accused at 02.43 p.m. which corroborates the case of prosecution that the complainant made a call to the accused while at CBI office during verification proceedings. 42 Report Ex.PW4/B of the Voice Expert Sh. Deepak Kumar Tanwar (PW4) also proves that the Micro SD card marked Q3 Ex.P3 allegedly containing voice of accused recorded while verifying the demand of bribe by him, contains the voice of accused as it was found matched with his specimen voice in cassette marked S1 Ex.P4. So, the report of Voice Expert also corroborates and establishes the case A.C. No.04/2011 CBI Vs. Subhash Chand Page 20 of 53 of prosecution that accused demanded bribe of Rs.20,000/ from the complainant, out of which the accused agreed to accept Rs.15,000/ for not involving the complainant in criminal case.
43 I have gone through the ratio of judgment in case of Panalal Damodar Rathi vs. State of Maharastra 1980 SCC (Cri.) 121 in which it was observed that the testimony of complainant has to be corroborated in material particulars before being relied upon. It was held that there is requirement of corroboration of statement of complainant by other evidence. Similar observations have also been made by Hon'ble Apex Court in case of Ashok Kumar vs. State of Haryana 2011 (1) CC Cases (HC) 281.
44 The contents of complaint Ex.PW8/A have duly been corroborated by the complainant during his testimony in the Court. In his complaint, he mentioned that accused was demanding bribe of Rs. 20,000/ from him and was threatening if the complainant did not pay Rs.20,000/, he would be declared B.C. and got registered false case against him. It has come in the evidence of complainant (PW6) that prior to laying of trap, he had contacted accused while in CBI office in the presence of independent witness (PW8) and Insp. Vivek Prakah (PW11) where during conversation on mobile phone also, accused demanded bribe money of Rs.20,000/ from him and agreed to accept Rs.15,000/. Complainant has also deposed that the conversation which A.C. No.04/2011 CBI Vs. Subhash Chand Page 21 of 53 took place between him and accused in CBI office, prior to laying of trap, was recorded in CD Ex.P1 and memory card Ex.P3. He proved the transcription of the said conversation as Ex.PW6/E. 45 Perusal of transcription Ex.PW6/E shows that there were talks between accused and complainant during which accused agreed to accept the bribe from the complainant. The transcription Ex.PW6/E and verififcation memo Ex.PW6/D also corroborates the testimony of complainant as well as contents of complaint Ex.PW8/A that there was demand of bribe by accused before laying of trap by CBI. 46 The independent witness PW8 Bhoopendra Kumar and verification officer Insp. Vivek Prakash (PW11) also corroborated the testimony of complainant that a conversation between accused and complainant had taken place in CBI office on mobile phone which confirmed the demand of bribe of Rs.20,000/ by the accused and that accused agreed to accept Rs.15,000/.
47 In view of testimony of complainant (PW6) coupled with complaint Ex.PW8/A, verification memo Ex.PW6/D, transcription Ex.PW6/E, report of voice expert Ex.PW4/B and due corroboration by PW8 and PW11, a demand of bribe by accused from the complainant has been established.
48 So, it has been proved that accused demanded bribe from the complainant at the initial stage i.e. before laying trap for not A.C. No.04/2011 CBI Vs. Subhash Chand Page 22 of 53 involving the complainant in false case and for not getting him declared BC of the area.
Demand, acceptance and recovery 49 To prove the demand, acceptance and recovery of bribe at the spot, complainant (PW6) has deposed that after verification of demand of bribe, he produced the sum of Rs.15,000/ before the CBI. Some powder was applied on GC notes and some demonstration was held regarding change of colour to pink. It was done in the presence of independent witness. Thereafter, he along with independent witness and CBI team which including Sh. Raj Singh proceeded to Geeta Colony to meet the accused. On the way, he called accused from his mobile and asked "Sir kahan par ho". Accused replied "police booth pe aa jao (near Ambedkar Park)". Accordingly, complainant reached the said booth and waited for 23 minutes along with independent witness. He again called the accused who said that he was arriving. They reached the spot. Complainant further stated that he handed over money to accused but before that he had some conversation. He asked accused "mujhe koi tang to nahin karega" to which accused replied "tera koi baal bankka nahin kar sakta". The said conversation was recorded with the help of recording instrument which was placed in his shirt by CBI officials. He had talked with accused and handed over bribe amount of Rs.15,000/ saying "Sir ye gin lo". The independent A.C. No.04/2011 CBI Vs. Subhash Chand Page 23 of 53 witness was present with him at that time. Accused replied "nahin nahin aisi koi baat nahin vishwas hai". Accused accepted the said amount; of Rs.15,000/ and put it inside his back pocket of his jeans. In the meantime, Sh. Raj Singh caught hold of accused by his hand and thereafter got recovered bribe amount through independent witness. It was got confirmed from the independent witness that the notes were same. The hand wash of accused was taken inside the police booth. The wash turned into pink colour. The hand washes were poured inside the glass bottles and same were seized. Accused was arrested and was taken to CBI office.
50 The complainant (PW6) identified the jeans of accused as Ex.P2 and recovered GC notes from accused as Ex.P3. The witness identified his signatures on handing over memo Ex.PW6/B and recovery memo Ex.PW6/C. He further deposed that the CBI officials gave him digital voice recorder and instructed him to switch it ON before conversing with the accused. He handed over DVR to CBI when they apprehended the accused. The pink colour hand wash of accused was transferred to glass bottle. Wash of back pocket of jeans was also taken which also turned pink and it was also transferred to glass bottle. The witness identified both the bottles as Ex.P5 and Ex.P6. The CBI officials prepared CD later on. The CD mark Q2 Ex.P2 was played in the Court. The complainant identified his voice and stated that it A.C. No.04/2011 CBI Vs. Subhash Chand Page 24 of 53 contained the conversation between him and accused while sitting in the vehicle. He also stated that the said CD contained his conversation with panch witness and complainant was saying that the accused had called him to reach at police booth. He proved the transcriptions Ex.PW6/E and Ex.PW6/F. Complainant duly identified accused Subhash Chand in the Court.
51 During crossexamination, the complainant (PW6) has stated that DVR was taken back from him after apprehending and challenging the accused. The spot from where the accused was apprehended was a thoroughfare and vehicles were going and coming. The hand wash and currency notes were kept in sealed pullanda. He stated that the place of meeting at police booth, Ambedkar Park was not fixed when he talked with the accused from CBI office. They reached police booth, Ambedkar Park at about 7.00 p.m. Accused reached at the spot after about 5 minutes of their reaching there. He admitted that till the time he lodged the complaint with CBI, no preappointed date, time and place for transaction was finalized. However, PW6 voluntarily stated that the evening hours were finalized. He denied that accused never demanded or agreed to accept bribe from him. He could not say if the accused was on leave from 07.07.2010 to 12.07.2010. He admitted that till 13.07.2010, no proceedings for declaring PW6 BC were initiated at the behest of accused. He denied that police of PS A.C. No.04/2011 CBI Vs. Subhash Chand Page 25 of 53 Geeta Colony had not initiated any proceeding to declare him BC. He voluntarily stated that he was called in police station to give his finger print impressions twice. He denied that he shook his hands with accused when he met him inside the police booth. He admitted that various cases were registered against him as mentioned in list Ex.PW7/L. He further stated that he was witness to the arrest memo Ex.PW6/DB. He denied that transcriptions are fabricated documents. He denied that no amount of Rs.15,000/ was accepted by accused nor any such amount was recovered from him.
52 Complainant (PW6) was cross examined at length but he stuck to his stand that on 13.07.2010, he had a talk with accused during which he directed the complainant to come at police booth, Ambedkar Park. He remained firm that after sometime, accused came at police booth where he received tainted GC notes amounting to Rs. 15,000/ from the complainant and kept the same in his back side pant pocket.
53 The shadow witness Bhoopendra Kumar (PW8) has corroborated the testimony of complainant (PW6). He has stated that a raiding team was constituted including him. The complainant produced Rs.15,000/ which were smeared with phenolphthalein powder. He was asked to accompany the complainant. The CBI team left for Geeta Colony. A call was made by complainant to accused and it was settled A.C. No.04/2011 CBI Vs. Subhash Chand Page 26 of 53 to meet near police booth and a park. Accused did not reached at the settled place and again a call was made by complainant to him. After sometime, accused Subhash Chand reached at the spot and complainant told so. Complainant had conversation with regard to payment of bribe and he took out currency notes and handed over to accused. Accused put the said currency notes in his back side pant pocket. The CBI officials overpowered the accused. The hand wash of accused was taken which converted into pink. Other witness Gopi Chand was asked to take out notes from the pocket of accused. For further proceedings, CBI team along with accused returned back to CBI office. The pocket of pant of accused was got washed and pink converted solution was put in a bottle. Accused was formally arrested. Sample voice of accused, Gopi Chand and PW8 were taken. Witness identified his signatures on complaint Ex.Pw8/A, verification memo Ex.PW8/B, handing over memo Ex.PW6/B, recovery memo Ex.PW6/C, arrest cum personal search memo Ex.PW6/DB of accused, site plan Ex.PW6/DC, transcription cum voice identification memo Ex.PW6/D and transcriptions Ex.PW6/E & 6/F. He further deposed that after recovery of currency notes, the number of notes were tallied with the numbers noted down in handing over memo and were found the same. Money was recovered from right side pant pocket of accused. Witness further identified his signatures on bottles Ex.P5, Ex.P6, recovered currency A.C. No.04/2011 CBI Vs. Subhash Chand Page 27 of 53 notes Ex.P3 (collectively), pant of accused Ex.P2, CD mark Q1 Ex.P1, paper envelope Ex.P1A, CD mark Q2 Ex.PX1, paper cover Ex.PX2, memory card mark Q3 Ex.P3, paper cover Ex.PX3, CD mark S1 Ex.P4 and on paper cover Ex.PX4.
54 In his crossexamination, PW8 has stated that no pre appointed date, time and place of bribe transaction was mentioned in the complaint. He denied that no such complaint Ex.PW8/A was shown to him. It took about 2/2.30 hours in completing pretrap proceedings. They reached at Rani Garden spot. The complainant called the suspect from the spot at about 7.7.15 p.m. and it was short conversation. He stated that the conversation of above two phone calls were played and transcriptions were prepared subsequently. He did not remember the name of CBI officer who gave the practical demonstration or who took hand wash and pant pocket wash of accused. The bottles of washes, notes and pant of accused were kept in the sealed pullanda. The hand wash and pant pocket wash were pink in colour, but he could not tell the intensity of pink colour. The paper slip were pasted on bottles Ex.P5 & Ex.P^ and then he put his signatures on the same. He denied that his introductory voice was not recovered or that the introductory voices identified by him in the Court were planted subsequently. Witness further stated that the suspect reached at the spot after about 5/7 minutes of second phone call made by the complainant. The accused did not A.C. No.04/2011 CBI Vs. Subhash Chand Page 28 of 53 make any specific demand of Rs.15,000/ as bribe from the complainant at the spot. The accused was reluctant after acceptance of amount. The police booth was got opened with the help of police official present there, but he did not know his name. They remained inside the police booth for about 45 minutes to one hour and thereafter entire raiding team along with accused came to CBI office. After apprehension of accused, TLO introduced himself to be from CBI. The DVR was taken back from the complainant. The hand wash of accused was taken first. He did not remember whether complainant shook hand with the accused or not. He voluntarily state that the complainant wished the accused. The memory card was seized at CBI office. Witness denied that he was a tutored witness or that he was deposing against the accused. 55 Another independent witness Gopi Chand (PW9) has deposed on the similar lines of complainant (PW6) and Bhoopendra Kumar (PW8). He corroborated the testimony of both these witnesses. He also stated that he was the member of the trap team and accused accepted bribe money from the complainant in his presence. He also stated that all the proceedings were conducted in his presence. He identified recovered currency notes Ex.P3 (collectively) and also identified his signatures on handing over memo Ex.PW6/B, recovery memo Ex.PW6/C, arrest memo Ex.PW6/DC, transcription cum voice identification memo Ex.PW6/D, transcriptions Ex.PW6/E & 6/F, bottles A.C. No.04/2011 CBI Vs. Subhash Chand Page 29 of 53 Ex.P5 & P6, cassette Ex.P2, paper cover Ex.PX2, cassette Ex.P4, paper cover Ex.PX4, pant Ex.P2 of accused and CD marked S2. 56 During crossexamination, PW9 has stated that he came on 13.07.2010 about his duty at CBI office on that day. He met Insp. Raj Singh who was conducting some proceedings. One type of powder was used on the currency notes. They left CBI office and reached near park at Geeta Colony at about 7.00 p.m. The complainant was repeatedly talking with the suspect on phone. The suspect reached at the spot after about 1520 minutes of their reaching the spot. The talks between the complainant and accused were not within his hearing range. He did not remember the name of CBI official who had performed the proceedings of hand wash of accused. The said proceeding was conducted while sitting outside the police booth. CBI team along with panch witnesses and complainant reached back to CBI office. Except hand wash and tallying of notes, no other proceeding was conducted at the spot. All the documents were signed by him on 13.07.2010 after reaching back to CBI office. Preappointed place and time of meeting between complainant and suspect were not know before leaving CBI office. He came to know about the meeting place at Park near Geeta Colony after alighting from the vehicle. After tallying the notes, the notes were given to raid officer. So far as he recollect, the conversation taken place between complainant and accused on phone at the spot was A.C. No.04/2011 CBI Vs. Subhash Chand Page 30 of 53 recorded. When complainant reached at the spot, suspect was not present there. He denied that he was a tutored witness. He denied that no money transaction had taken place between complainant and accused or that trap money had been planted upon.
57 The Trap Laying Officer DSP Raj Singh (PW10) and member of the trap team Insp. Vivek Prakash (PW11) have also corroborated the testimony of complainant (PW6) and independent witnesses.
58 It is argued by ld. defence counsel that the Court is duty bound to consider the entire testimony of he witness in order to find ut the truthfulness and to see whether the testimony of the witness is unshaken or not. He further argued that the evidence include the examination in chief, cross examination and reexamination. In support of these contentions, he has placed reliance on judgments in case of Thimmareddy & Ors. Vs. State of Karnataka 2014 (5) LRC 51 (SC), A. Subair Vs. State of Kerala 2009 (3) RCR (Criminal) 370, State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede 2009 (4) RCR (Criminal) 217, Mr. Ripen Kumar Vs. Department of Customs 2001 (1) JCC (Delhi) 47.
59 There is no doubt about the law propounded in the above referred judgments. It is a settled law that the Court is bound to consider the testimony of witnesses in entirety. The examination in A.C. No.04/2011 CBI Vs. Subhash Chand Page 31 of 53 chief, crossexamination and reexamination, where permitted, is the complete testimony of a witness and the Court is bound to consider the entire testimony of the witness while reaching to a conclusion. It is for the Court to see whether such a testimony of the witness is trusthworthy or not. In the present case, the testimony of complainant as well as independent witnesses examined by the prosecution inspire confidence of the Court as their testimony are unshaky.
60 It is argued by the ld. defence counsel that the prosecution is bound to prove the demand and acceptance of bribe by accused which it has failed to prove in the present case. In support of the contention, reliance has been placed on judgments in case of Subash Parbat Sonvane Vs. State of Gujarat AIR 2003 SC 2169, Banarsi Dass Vs. State of Haryana 2010 (2) Crimes 351 (SC) Roshan Lal Saini Vs. C.B.I. 2011 (1) C.C. Cases (HC) 219 and State of Kerala Vs. C.P. Rao 2011 (3) C.C. Caes (SC) 182.
61 In case of Subash Parbat Sonvane (supra) it was observed that the there was no to infer that accused demanded any amount from the complainant or that he had obtained the same. In case of Banarsi Dass (supra) it was observed that mere proof of recovery of bribe money from accused is not sufficient to prove in the absence of demand of money and its voluntarily acceptance by accused. In case of Roshan Lal Saini (supra) it was observed that in the absence of any A.C. No.04/2011 CBI Vs. Subhash Chand Page 32 of 53 definite evidence of acceptance of tainted money by the appellant, the prosecution had failed to prove the recovery and acceptance of tainted money by the appellant. In case of C.P. Rao (supra) it was held that accused should be considered innocent till it is proved to the contrary b property proof of demand and acceptance of illegal gratification which is the vital ingredient to secure the conviction in a bribery case. 62 It is further argued that the recovery of currency notes from the accused is doubtful. It is submitted that even mere recovery is not an offence in the absence of demand of bribe. In support of this contention, he has relied upon judgment in case of Suraj Mal Vs. The State (Delhi Administration) AIR 1979 SC 140 in which it was observed that mere recovery of money from accused is not sufficient in the absence of any evidence to prove payment of bribe or to show that accused voluntarily acceptance the money. Next judgment relied upon is in case of C.M. Girish Babu Vs. CBI, Cochin, High Court of Kerala 2009 (2) RCR (Criminal) 134 in which it was observed that in corruption cases, it is necessary that there is a demand of money and the same is accepted for doing a favour. It was further observed that demand of money is a sine qua non for the conviction of the accused. 63 The above referred testimony of the complainant (PW6) duly proves that he made the payment of bribe amount of Rs.15,000/ to the accused which he accepted from his right hand and kept the same in A.C. No.04/2011 CBI Vs. Subhash Chand Page 33 of 53 his back pant pocket. The report Ex.PW5/A of wash expert (PW5) corroborates the testimony of complainant that the right hand wash (RHW) and pant pocket wash (BRSPPW) of accused gave positive tests for the presence of phenolphthalein. The transcription Ex.PW6/F of the recorded conversation which had taken place at the spot between teh complainant and accused shows that the complainant gave money to the accused and asked him to count the same. He asked again and again accused to count the money. He also said that he was giving the money with heavy heart, to which the accused replied to take the money back if he was giving money with heavy heart. Accused has said that there was no necessity to count the money. The conversation also shows that the accused assured the complainant that he would not be harassed thereafter.
64 The above transcription Ex.PW6/F duly corroborates the testimony of the complainant (PW6) that he paid the bribe money to the accused which he voluntarily accepted. As per testimony of the complainant, the tainted GC notes were recovered from the pant pocket of accused. The TLO (PW10), Insp. Vivek Prakash (PW11) and independent witnesses (PW8 & PW9) also corroborated that the complainant gave tainted GC notes to the accused, which he accepted voluntarily and the same were recovered from his person. 65 The CFSL report Ex.PW4/B of voice expert (PW4) A.C. No.04/2011 CBI Vs. Subhash Chand Page 34 of 53 confirms the case of prosecution that it contains the voice of accused. It was observed by the voice expert (PW4) that specimen voice of accused matched with his questioned voices contained in CD mark Q2 Ex.P2 (recorded conversation of the spot).
66 The voice expert report Ex.PW4/B proves that the accused was apprehended from the spot. It further establishes that accused demanded bribe from the complainant at the spot and voluntarily accepted the same. The report Ex.PW5/A of wash expert (PW5) also proves the case of prosecution that accused accepted the tainted GC notes from the complainant which were recovered from him. Therefore, the judgments relied upon by accused in case of Subash Parbat Sonvane (supra), Banarsi Dass (supra), Roshan Lal Saini (supra), C.P. Rao (supra), Suraj Mal (supra) and C.M. Girish Babu (supra) are of no help to him as it has duly been established in the present case that the complainant (PW6) gave bribe money in the form of GC notes amounting to Rs.15,000/ to the accused which he accepted voluntarily and its recovery was effected from him. 67 It has been argued by ld. defence counsel that report Ex.PW4/B of the voice expert Sh. Deepak Kumar Tanwar (PW4) is inadmissible in evidence as he was not a notified Examiner and there is no notification in his favour.
68 I have gone through Section 293 of Cr.P.C. which A.C. No.04/2011 CBI Vs. Subhash Chand Page 35 of 53 provides that reports of certain Government scientific experts is admissible in evidence. Clause (a) of subsection (4) of section 293 Cr.P.C. clearly provides that report of Chemical Examiner or Assistant Chemical Examiner may be used as evidence in any inquiry, trial or other proceedings. As per report Ex.PW4/B, on the day of examination of voices contained in the CDs, he was posted as Sr. Scientific Officer cumAsstt. Chemical Examiner, CFSL, CBI, New Delhi. Thus, when it has been shown from the record that PW4 was an Assistant Chemical Examiner, his report Ex.PW4/B is admissible in evidence as per clause
(a) of Section 293(4) of Cr.P.C.
69 It is argued by ld. defence counsel that the documents Ex.PW3/A to Ex.PW3/D with regard to mobile phone no.9899877657 belonging to the complainant have not been duly proved as Electronic Evidence as a certificate under section 65B of Evidence Act is must for reading those documents in evidence. It is submitted that the certificate Ex.PW3/C placed on record is not as per the pronouncement of higher Courts in case of Achchey Lal Yadav Vs. State (Crl.A. 1171/2012 decided on 04.09.2014 by Hon'ble High Court of Delhi) and Anvar P.V. Vs. P.K. Basheer and others (Civil Appeal No.4226/2012 decided on 18.09.2014 by Hon'ble Apex Court). In these judgments it was held that computer generated electronic record is evidence, admissible at a trial if proved in the manner specified by Section 65B of the Evidence Act. A.C. No.04/2011 CBI Vs. Subhash Chand Page 36 of 53 70 Document Ex.PW3/B is the call detail record of mobile phone no.9899877657. Ex.PW3/D is copy of the customer application form which shows that the said mobile number was issued in the name of the complainant Harish Kumar (PW6). Along with this form, the complainant submitted copy of his licence as an address proof. The contention of the defence counsel that call details record Ex.PW3/B cannot be read in evidence as it does not comply with Section 65B of the Evidence Act. The certificate under section 65B(4)(c) of the Evidence Act has been proved as Ex.PW3/C. This certificate shows that the call details of said mobile number were generated from the computer and its contents were true reproduction of the original. It shows that the computer was in working condition when the call detail record was generated from the computer. So, in view of certificate Ex.PW3/C, the call details are clearly admissible under section 65B of the Evidence Act. Therefore, the judgments relied upon by the defence in case of Achchey Lal Yadav (supra) and Anvar P.V. (supra) are of no help to accused as the call detail record has duly been proved on record as per section 65B of the Evidence Act.
71 It is further argued by ld. counsel for accused that PW8 Bhoopendra Kumar was a tutored witness as he had admitted that he had gone through his statements on the last date and before coming to the witness box. It is further submitted that PW8 was a stock witness A.C. No.04/2011 CBI Vs. Subhash Chand Page 37 of 53 and his testimony cannot be read in evidence. In support of these contentions, ld. counsel has relied upon judgments in case of Ramesh Vs. State (Govt. of NCT of Delhi) 2013 (2) LC 237 (Del), Sumit Kumar Verma Vs. State (Govt. of NCT of Delhi) 2014 (3) LRC 377 (Del) and Ashish Kumar Dubey Vs. State Thr. C.B.I. 2014 III AD (Cri.) (DHC) 421.
72 In Ramesh's case (supra), it was observed that there were several discrepancies in the testimony of the complainant apart from his admission in his crossexamination that he was briefed by police officials outside the court as to what statement he was to give in court. In Sumit Kumar Verma's case (supra) similar observations were made. I have also gone through the ratio of judgment in case of Ashish Kumar Dubey (supra) in which it was observed that when it has been shown that the witnesses produced were stock witnesses, it seriously undermines the socalled independence of these witnesses. 73 There is no force in the contention of the ld. defence counsel that PW8 was a tutored witness or that he was a stock witness. It has come in evidence that the complainant made two complaints on the same day before the CBI, one was against accused Subhash Chand and the other one was against Ct. Virender Singh. He has also stated that trap was laid on the same day against both these accused persons and the place of trap was not too far. It may be that the independent A.C. No.04/2011 CBI Vs. Subhash Chand Page 38 of 53 witness of the present case was also made part of investigation of the other case, which cannot discard his testimony by alleging that he was a stock witness. Mere going through the statement earlier cannot discard the testimony of PW8, when he has duly corroborated the testimony of complainant that accused demanded and accepted bribe in his presence. Therefore, the authorities relied upon by accused in case of Ramesh (supra), Sumit Kumar Verma (supra) and Ashish Kumar Dubey (supra) as the facts of the present case are distinguishable from the facts of the those cases.
74 From the totality of evidence produced on record in the form of testimony of complainant Harish Kumar @ Monu (PW6) which has duly been corroborated by the independent witnesses Bhoopendra Kumar (PW8), Gopi Chand (PW9), Trap Laying Officer/IO (PW10) and Insp. Vivek Prakash (PW11), I am of the considered opinion that the prosecution has duly established that on 13.07.2010, during laying of trap, complainant gave tainted GC notes Ex.P3 (collectively) amounting to Rs.15,000/ to accused which he voluntarily accepted. It has further been duly established that the bribe money accepted by the accused was recovered from his person i.e. pant pocket. The voice expert report Ex.PW4/B as well as wash expert report Ex.PW5/A also corroborates the case of prosecution to the effect that accused was present at the spot, he had conversation was the complainant and he voluntarily accepted A.C. No.04/2011 CBI Vs. Subhash Chand Page 39 of 53 the bribe money from the complainant which was recovered from his person.
Defence 75 The defence taken by accused is that he had not demanded any money from the complainant. He was not competent to get anybody declared P.O. or to get a false case registered. He never had any telephonic talks with the complainant. He was posted as malkhana incharge and had not been on beat duty or patrolling duty. 76 To probabilse his defence, accused has examined DW1 HC Manoj Kumar who proved the copy of FIR No.350/10, PS Geeta Colony u/s 3/4/9 of Gambling Act as DW1/A. He also proved the copy of FIR No.402/14 u/s 392 IPC, FIR No.175/14 u/s 3/4/9 of Gambling Act, DD No.35B dated 7.7.2010, DD No.42A dated 12.07.2010 and proved the same as Ex.DW1/B to Ex.DW1/E respectively. DW2 HC Suresh Kumar has proved the copy of FIR No.545/12 PS Jagat Puri u/s 308/34 as Ex.DW2/A. DW5 HC Sanjay Sharma has proved on record copy of standing order No.57 of 2008 as Ex.DW5/A regarding posting of Malkhana Moharar for general case property and government property in police station.
77 Perusal of copy of FIRs Ex.DW1/A to Ex.DW1/C shows that in all these FIRs, complainant Harish Kumar has been named as an accused. Copy of DD entries Ex.DW1/D and Ex.DW1/E shows A.C. No.04/2011 CBI Vs. Subhash Chand Page 40 of 53 that accused was on leave on 07.07.2010 and 12.07.2010. In FIR Ex.DW2/A name of complainant as an accused has nowhere been mentioned. Document Ex.DW5/A is with regard to duties of malkhana incharge in the police station.
78 It has been argued by the ld. defence counsel that accused was not competent to do any favour or disfavour to the complainant or to get him declared Bad Character of the area. It is submitted that being Head Constable and being posted as malkhana incharge, accused was not competent to get the complainant (PW6) declared BC of the area as the sanctioning authority (PW1) has admitted that the person is declared BC by the DCP. In support of this contention, reliance has been placed on judgment in case of State of Punjab Vs. Sohan Singh 2009 (3) RCR (Criminal) 971 in which it was observed that accused was only Junior Engineer and had no role to play in grant of electric connection out of turn. On similar point, judgment in case of Ganapathi Sanya Naik Vs. State of Karnataka AIR 2007 SC 3213 has also been relied upon.
79 There is no force in the contention of the defence that accused was only the malkhana incharge and there was no occasion for him to demand any money from the complainant or that he had no role in getting declared the complainant bad character of the area. I have gone through the testimony of PW7 ASI Satvinder Singh, PS Geeta A.C. No.04/2011 CBI Vs. Subhash Chand Page 41 of 53 Colony who has stated that as per duty roaster Ex.PW7/M, accused was shown deputed for beat no.5. As per point no.4 of letter of SHO Ex.PW7/B, beat no.5 was allocated to accused and as per point no.6, residence of complainant falls under the area of beat no.5. 80 I have gone through letter Ex.PW7/B written by SHO, PS Geeta Colony to CBI which duly proves that accused Subhash Chand was deputed with beat No.5 and the residence of complainant falls within beat no.5. The duty roaster Ex.PW7/M further proves that accused Subhash Chand was deputed in beat No.5. So, these documents duly proves that apart from malkhana incharge, accused was also deputed as beat officer in beat no.5 where the residence of complainant falls. Therefore, the judgments relied upon by defence in case of Sohan Singh (supra) and Ganapathi Sanya Naik (supra) are of no help to accused as the facts of the present case are distinguishable from the facts of the said cases.
81 It is further argued that complainant Harish Kumar was a tainted and disgruntled person of the area. There were several criminal cases were pending against him as per list Ex.PW7/L and FIRs Ex.DW1/A, Ex.DW1/B and Ex.DW2/A. In support of this contention, reliance has been placed on judgment in case of State of Punjab Vs. Madan Mohan Lal Verma 2013 (7) LRC 34 (SC) and Sat Paul Vs. Delhi Administration AIR 1976 SC 294. It is further argued by ld. A.C. No.04/2011 CBI Vs. Subhash Chand Page 42 of 53 defence counsel that there are so many defects in the investigation and the case of prosecution which creates doubt about the story put up by CBI. He has submitted that since a doubt is cast about the story put up by CBI, the accused is entitled to acquittal. In support of this contention, reliance has been placed on judgment in case of Prem Singh Yadav Vs. Central Bureau of Investigation 2011 (2) C.C. Cases (HC) 305 in which it was observed that where it is possible to have both view, one in favour of prosecution and other in favour of accused, the latter should prevail.
82 So far as contention of the ld. defence counsel that the complainant was of bad character/criminal of the area is concerned, it do not in any way gives right to any police official to demand bribe from the alleged criminal. It may be that several criminal cases were pending against the complainant, but it does not give any right to accused to demand bribe from him. In this regard, I have gone through the judgment of in case of Madan Mohan Lal Verma (supra) in which it was observed that even if the complainant had a criminal background, he can still be forced by the officer of the Income Tax Department to pay illegal gratification for not reopening the assessment of a particular year. It was further observed that since the complainant was an intersted and partisan witness concerned with the success of the trap, the court may look for independent corroboration before convicting the A.C. No.04/2011 CBI Vs. Subhash Chand Page 43 of 53 accused. In the present case, it has come on record that accused demanded illegal gratification from the complainant for not declaring him Bad Character of the area and for not getting him involved in false cases. In the present case, the complainant has duly supported the case of prosecution and his testimony has duly been corroborated by independent witnesses. The prosecution has successfully established beyond reasonable doubt the against the accused that he demanded and accepted illegal gratification from the complainant and its recovery was effected from him. So, the accused cannot get any help from the judgments in case of Madan Mohan Lal Verma (supra), Sat Paul (supra) and Prem Singh Yadav (supra).
83 It is further argued by ld. counsel for accused Virender Singh that the testimony of complainant and independent witnesses is liable to be discarded as there are material contradictions in their statements which makes their testimony fragile and shaky. In support of this contention, reliance has been placed on judgments titled Raj Pal Vs. State 2014 (6) LRC 307 (Del), P. Parasurami Reddy Vs. State of A.P. 2011 (3) C.C. Cases (SC) 313, Pyare Lal Vs. State I (2008) DMC 806 and Om Parkash Vs. State of Haryana AIR 2006 SC 894 84 So far as contention of the ld. defence counsel that there are contradictions and discrepancies in the testimony of witnesses is concerned, I have gone through the testimony of prosecution witnesses. A.C. No.04/2011 CBI Vs. Subhash Chand Page 44 of 53 It is apparent that there are some contradictions/discrepancies in their testimony, but the same are not material which can go to the root of the matter. I am not convinced with the arguments advanced inasmuch as the contradictions so alleged are not as such which go to the root of the matter and discredit the case set up by the prosecution. I have gone through the ratio of judgment in case of Prithu @ Prithvi Chand and Another Vs. State of Himachal Pradesh, (2009) 11 SCC 588 wherein it was observed that that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution's case, may not prompt the court to reject the evidence in its entirety. Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions. Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, would not itself prompt the court to reject the evidence on minor variations and discrepancies. An undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. As the mental capabilities of a human being cannot be expected to be atuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses. Therefore, the accused cannot get any help from the judgments Raj Pal (supra), P. Parasurami Reddy (supra), A.C. No.04/2011 CBI Vs. Subhash Chand Page 45 of 53 Pyare Lal (supra) and Om Parkash (supra).
85 It is further argued by ld. defence counsel that no presumption can be raised against accused persons as the prosecution has failed to prove the demand of bribe. In support of this contention, reliance has been placed on a judgment in case of V. Venkata Subbarao Vs. State represented by Inspector of Police, A.P. 2007 Cri.L.J. 754 in which it was observed that in the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the P.C. Act provides for raising of a presumption ony if a demand is proved.
86 In the present case, from the evidence discussed above, the prosecution has duly established that accused demanded bribe of Rs. 20,000/ from the complainant (PW6). The complainant has specifically deposed in this regard and even corroborated the contents of his complaint Ex.PW8/A which also shows that there was demand of bribe by accused prior to making of complaint to the CBI. Even the demand of bribe by accused prior to laying of trap has been established as it was verified in CBI office vide verification memo Ex.PW8/B which has been corroborated by the complainant (PW46, independent witnesses (PW8 & PW9), Trap Laying Officer (PW10) and Insp. Vivek Prakash (PW11). The acceptance of bribe money by accused at the time of laying of trap and its recovery from his person has also been A.C. No.04/2011 CBI Vs. Subhash Chand Page 46 of 53 convincingly established on record. Thus, when the prosecution has successfully established the demand of bribe by accused and its acceptance, a presumption under Section 20 of the P.C. Act is raised against accused Subhash Chand. Therefore, the accused cannot get any help from the authority in case of V. Ventaka Subbarao (supra). 87 As discussed above, the accused has failed to probabilise his defence that he has been falsely implicated in the present case or that the bribe was not demanded and accepted by him. Conclusion 88 The prosecution has successfully established that the sanction granted by the sanctioning authority Sh. Asif Mohd. Ali, Addl. DCP, East (PW1) was proper. It has duly been established that the sanction has been accorded after due application of mind. The accused has failed to show anything on record to show that the sanction granted was in mechanical manner or without application of mind. 89 The prosecution has further successfully proved its case beyond reasonable doubt against accused Subhash Chand that being public servant while posted Head Constable in Police Station Geeta Colony, he committed the criminal misconduct by demanding the bribe of Rs.20,000/ from the complainant (PW6) for not declaring him Bad Character of the area or for getting him involved in criminal case at the previous stage i.e. before making complaint by the complainant (PW6) A.C. No.04/2011 CBI Vs. Subhash Chand Page 47 of 53 to the CBI and before laying the trap as well. The contents of the complaint and the testimony of complainant have duly been corroborated by other evidence on record.
90 It has further been established that on 13.7.2010, a trap was laid by the CBI team including independent witnesses (PW8 & PW9) and complainant Harish Kumar (PW6). The complainant has specifically stated that he had some talks with accused at the spot and thereafter he gave bribe in the form of tainted GC notes to the accused which he voluntarily accepted from his right hand and kept in his back pant pocket. The bribe money was recovered from the person of the accused. The testimony of complainant has duly been corroborated by independent witnesses and Investigating Officer/TLO. The opinions of wash expert and voice expert have also corroborated the prosecution case that accused demanded the bribe, voluntarily accepted the same and it was recovered from his person. The conversation recorded in CBI office as well as on the spot also established the demand and acceptance of bribe money by accused.
91 It is important to note that corruption by public servants has become a gigantic problem. It has spread everywhere and no facet of public activity has been left unaffected by the sting of corruption. It has deep and pervasive impact on the functioning of the entire country and large scale corruption retards the national building activities and A.C. No.04/2011 CBI Vs. Subhash Chand Page 48 of 53 everyone has to suffer on that count. Corruption is corroding our country like cancerous lymph nodes and demoralising the honest officers. The efficiency in public service would improve only when public servant devotes his sincere attention and does his duty diligently, truthfully, honestly and devotes himself assiduously to the performance of his duty to the post.
92 Consequently, accused Subhash Chand is hereby held guilty for the commission of offence punishable under Section 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. Accused is accordingly convicted for the said offences.
Announced in the open Court ( P.S. TEJI )
Dated: 21.11.2014 District & Sessions Judge(East)
Special Judge (CBI)
Karkardooma Courts : Delhi
A.C. No.04/2011 CBI Vs. Subhash Chand Page 49 of 53
IN THE COURT OF SHRI P.S. TEJI : DISTRICT & SESSIONS JUDGE (EAST) : SPECIAL JUDGE (CBI), KARKARDOOMA COURTS, DELHI AC No.04/2011 Unique Case ID No.02402R0304082011 FIR No.RC31(A)/2010 under section 7 & 13(2) read with section 13(1)(d) of the P.C. Act CBI Versus Subhash Chand S/o Sh. Rameshwar Dyal Sharma R/o H.No.212, Gali No.11, Phase6, Shiv Vihar, New Delhi94.
ORDER ON SENTENCE Vide judgment dated 21.11.2014, convict Subhash Chand has been held guilty and convicted for commission of offence punishable under section 7 and 13(2) read with 13(1)(d) of the P.C. Act. 2 I have heard Sh. Thakuri, ld. PP for the CBI; Sh. Sanjay Gupta, ld. counsel for convict Subhash Chand on the quantum of sentence.
3 The learned PP for the CBI has submitted that at the time of trap, convict Subhash Chand was posted as Head Constable in Delhi Police. He has further submitted that the convict has been held guilty for demanding and accepting bribe from the complainant. It has A.C. No.04/2011 CBI Vs. Subhash Chand Page 50 of 53 duly been established that convict was apprehended and arrested at the spot and bribe money was recovered from pant pocket of convict. He has further argued that convict being public servant misused his official position by demanding Rs.20,000/, agreeing to accept Rs.15,000/ and accepting illegal gratification of Rs.15,000/ for not declaring the complainant Bad Character of the area. He has further submitted that the convict may be awarded maximum punishment prescribed under the law.
4 The ld. counsel for convict Subhash Chand has submitted that the convict is aged about 52 years having wife and three children in the family. He is also having widow mother aged about 82 years in the family to look after. It is submitted that Neha Sharma, second daughter of the convict is aged about 24 years who is 40% handicap. Her disability certificate has been placed on record. Third son of the convict is aged about 21 years. Convict has put in 29 years of service and has already been dismissed from service. Dismissal order of convict has been placed on record. Convict is the sole bread earner of the family and entire family is dependent upon him. It is submitted that a keeping in view the familial circumstances of convict, he may be awarded minimum sentence provided under the law.
5 I have heard submissions of both the sides. It is important to note that corruption by public servants has become a A.C. No.04/2011 CBI Vs. Subhash Chand Page 51 of 53 gigantic problem. It has spread everywhere and no facet of public activity has been left unaffected by the sting of corruption. It has deep and pervasive impact on the functioning of the entire country and large scale corruption retards the national building activities and everyone has to suffer on that count. Corruption is corroding our country like cancerous lymph nodes and demoralising the honest officers. The efficiency in public service would improve only when public servant devotes his sincere attention and does his duty diligently, truthfully, honestly and devotes himself assiduously to the performance of his duty to the post.
6 Keeping in view the circumstances under which the offences were committed, convict Subhash Chand is awarded sentence of four years rigorous imprisonment with fine of Rs.25,000/ for the offence punishable under section 7 of the P.C. Act. In default of payment of fine, he shall further undergo SI for six months. Convict is also awarded sentence of four years rigorous imprisonment with fine of Rs.25,000/ for the offence punishable under Section 13(2) read with Section 13(1)(d) of P.C. In default of payment of fine, he shall further undergo simple imprisonment for six months.
7 Both the sentences of convict shall run concurrently. The convict shall be entitled for the benefit of the provision of Section 428 Cr.PC. Copies of judgment and order on sentence be given free of A.C. No.04/2011 CBI Vs. Subhash Chand Page 52 of 53 cost to the convict.
File be consigned to record room.
Announced in the open Court ( P.S. TEJI )
Dated: 22.11.2014 District & Sessions Judge(East)
Special Judge (CBI)
Karkardooma Courts : Delhi
A.C. No.04/2011 CBI Vs. Subhash Chand Page 53 of 53