Delhi District Court
Cbi vs . Jay Prakash Singh on 30 October, 2012
1
IN THE COURT OF MS. RAVINDER KAUR,
SPECIAL JUDGE ( PC ACT), CBI-03
SAKET COURTS, NEW DELHI
C C No. 32/12
CBI Vs. Jay Prakash Singh
S/o Shri Tej Narayan Singh
R/o MS-38, Mohan Garden,
New Delhi-59.
R C No. 36(A)/2007/CBI/ACB/ND
U/S.7, 13(2) r/w Sec. 13(1)(d) of the P C Act, 1988
ORDER ON SENTENCE
Present: Sh. Umesh Chandra Saxena, Ld. Sr. PP for
CBI.
Sh. Rahul Singh, counsel for convict J P Singh.
Convict J P Singh has been found guilty for
the offence U/s 7, 13(2) r/w 13(1)(d) of the PC Act,
1988.
I have heard arguments on the point of
sentence.
C C No. 32/12 CBI Vs. J P Singh Page no. 1
2
Ld. PP has submitted that offence committed
by the convict is heinous towards the society and he
deserves to be punished with maximum sentence.
On the other hand, the counsel for the convict
has submitted that convict is not a previous convict nor
he was ever involved in any criminal activity. It is
submitted that on account of his being convicted, in the
present case he is likely to loose his job. He has two
unmarried daughters of marriageable age and one of
the daughters is getting engaged on 11.11.2012 and
marriage is fixed for 09.12.2012. It is submitted that
he is the sole earning member of his family and lenient
view be taken while awarding sentence.
It needs no special insight to observe that our
society is badly affected with the corruption by the
public servants. The disease of corruption is spreading
like a cancer and therefore stringent measures are
required to be adopted for curbing this menace. The
corruption cases are difficult to be proved beyond
reasonable doubt and if such cases are proved, the
punishment awarded in such cases should be consistent
with the enormity of the offence. Any lenient view in
awarding the punishment may be considered as an
incentive to public servant who are susceptible to
corruption to indulge in such nefarious practices with
immunity.
I am of the opinion that the likelihood fo the
convict loosing his job cannot be a mitigating
circumstance for the purpose of awarding punishment.
Corruption at any level by any person, of any magnitude
is condemnable which cannot be ignored. It is pertinent
to mention here that the person in the net of the law and
held guilty may not be a first timer corrupt. Such
persons may have been indulging into corrupt activities
for a long number of years, however, to their luck, were
not caught earlier.
C C No. 32/12 CBI Vs. J P Singh Page no. 2
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Taking into account the totality of the facts
and circumstances, convict J P Singh is sentenced to RI
for 3 years U/s 7 of PC Act, 1988 and to pay fine of Rs.
10,000/- , in default of payment of fine, SI for 3 months.
The convict is further sentenced to RI for 3
years U/s 13(2) r/w Sec. 13(1)(d) of PC Act, 1988 and to
pay fine of Rs. 10,000/- , in default of payment of fine, SI
for 3 months.
Both the sentences shall run concurrently.
Benefit of Sec. 428 Cr.PC be given to the convict. A
copy of judgment and order on sentence be supplied to
the convict free of cost.
File be consigned to Record Room
Announced in the open Ravinder Kaur
court on 01.11.2012 Special Judge ( PC Act)
CBI-03,Saket Courts,
New Delhi.
C C No. 32/12 CBI Vs. J P Singh Page no. 3
4
IN THE COURT OF MS. RAVINDER KAUR,
SPECIAL JUDGE ( PC ACT), CBI-03
SAKET COURTS, NEW DELHI
C C No. 32/12
CBI Vs. Jay Prakash Singh
S/o Shri Tej Narayan Singh
R/o MS-38, Mohan Garden,
New Delhi-59.
R C No. 36(A)/2007/CBI/ACB/ND
U/S.7, 13(2) r/w Sec. 13(1)(d) of the P C Act, 1988
Date of Institution : 18.03.2008
Received by transfer on : 12.03.2012
Arguments concluded on : 19.10.2012
Date of Decision : 30.10.2012
JUDGMENT
1. The prosecution case is that on 31-08-07 a C C No. 32/12 CBI Vs. J P Singh Page no. 4 5 written complaint Ex.PW7/A was filed by Ramesh Kumar, S/o Shri Miha Singh, R/o VOP Karoda, Distt. Kaithal, Haryana with the CBI, wherein he alleged that accused J.P. Singh, Asstt. Accounts Officer under Principal Controller of Defence Accounts (NAVY), o/o Accounts Officer, project SEABIRD, R.K. Puram, West Block - V, New Delhi, had demanded from him bribe of Rs.9000/- as consideration for handing over the final cheque payment of hiring charges of some buses belonging to M/s Balaji Services, Mannco Complex, 100 Feet road, Ghitorni Delhi which were engaged with Indian Navy on contract basis. The complainant Ramesh Kumar was working as Manager with M/s Balaji Services. It is alleged that on 30-08-07 when the complainant met the accused J.P. Singh in the office of CDA and requested him to prepare bill for the amount of approximately Rs.4.0 lakhs for the month of May and June, the accused told him that for the month of April, he had taken cheque of approximately Rs. 5.00 lakhs and asked him to pay one per cent commission of the previous cheque along with one per cent commission of the due amount which comes to Rs.9000/- otherwise the complainant would not get the cheques. It is further alleged that C C No. 32/12 CBI Vs. J P Singh Page no. 5 6 the accused told the complainant that only incase by the evening of 31-08-07 the total commission of Rs. 9000/- is given to him, the cheques would be given to him. The complaint was marked to Shri NVN Krishna, Inspector CBI, ACB for the purpose of verification of demand mentioned in the complaint. The presence of two independent witnesses namely Rajpal and Jagdish Chander was sought. The complainant was introduced to both the independent witnesses in order to verify the demand of bribe by the accused from the complainant. The specimen voice of independent witness Rajpal was taken in the Cenix digital voice recorder. The complainant was then directed to dial from his mobile no. 99907777005 to Shri J.P. Singh's landline no. 011-26194662 in the presence of independent witness Rajpal. The telephonic conversation which took place between the complainant and the accused was simultaneously recorded in the DVR after ensuring it was empty. The recorded conversation was then replayed which confirmed the demand of bribe by accused from the complainant. Consequently FIR no. RC-DAI-2007- C C No. 32/12 CBI Vs. J P Singh Page no. 6 7 A-0036 dated 31-08-07 was registered u/s 7 of the PC Act.
2. The trap team comprising of Inspector NVN Krishnan, Inspector A.V. Bharadwaj, Inspector Sushil Kumar, Inspector Rajeev Mathur and SI Jagdev Singh Yadav accompanied by two independent witnesses referred above was formed.
3. Shri Ramesh Kumar, the complainant produced a sum of Rs.5000/- which was part of bribe amount of Rs.9000/- demanded by the accused in the form of four GC notes of Rs.1000/- and ten GC notes of Rs.100/- denomination. Shri A.V. Bhardwaj, Inspector, CBI, ACB Delhi, gave the demonstration and explained the procedure to the independent witnesses and the complainant by treating the GC notes of Rs.5000/- produced by the complainant with phenolphthalein powder. Thereafter GC notes were given to the complainant, which he kept in his left side shirt pocket. The complainant was directed to hand over the bribe amount to J.P. Singh only on his specific demand or to any other person directed by him. The personal search of the complainant was conducted and he was not allowed to keep any cash or article on his person except the GC notes treated with phenolphthalein powder, his C C No. 32/12 CBI Vs. J P Singh Page no. 7 8 mobile phone and his wallet containing I-card.
4. Shri J.S. Yadav, SI explained the functioning of digital recorder to the two independent witnesses. The formal voice of both the independent witnesses was recorded in the blank cassette. The digital recorder was handed over to the complainant with the direction to switch it on before contacting the accused. One of the independent witness, Shri Rajpal was directed to act as a shadow witness and to remain as close as possible to the complainant in order to see and overhear the likely conversation between the accused and the complainant and also the transaction of bribe. The complainant and the shadow witness were directed to give pre-assigned signal by scratching their head with both the hands as soon as the transaction of bribe was over. Thereafter the team proceeded to the spot at R.K. Puram office of the accused by CBI vehicle.
5. The trap team including the two independent witnesses and the complainant reached within the vicinity of the office of CDA, Block no. 5, R.K. Puram, New Delhi at about 1720 hours. The vehicles were parked at a safer distance. The digital recorder was taken from Shri Ramesh Kumar C C No. 32/12 CBI Vs. J P Singh Page no. 8 9 and was switched on and again handed over to the complainant who clipped the same in his vest. He was directed to contact the accused on his landline no. 26180519 from his mobile no. 99907777005. On being contacted the accused informed the complainant that he would be coming down from his office to meet him in few minutes time. The complainant and the shadow witness, Shri Rajpal were directed to proceed near the office of CDA, Block no. 5, R.K. Puram, New Delhi and the other members of the trap team took suitable positions in and around the office.
6. Accused came to the spot in Maruti van no. DL 9CD 3561 and after alighting from the vehicle went upto the complainant. Thereafter, the accused handed over the cheque bearing no. 060667 dated 31-08-07 for Rs.3,97,885/- of RBI issued in the name of Balaji Services to the complainant and demanded the bribe amount from the complainant, on which the complainant took out the bribe amount of Rs.5000/- already treated with phenolphthalein powder from his left side shirt pocket and extended towards the accused which he accepted in his right hand. As the bribe transaction took place in open place, the entire trap team C C No. 32/12 CBI Vs. J P Singh Page no. 9 10 including independent witnesses witnessed the transaction of bribe. Immediately, on acceptance of the bribe amount, the complainant and the shadow witness Shri Rajpal gave the pre decided signal by scratching their head with both the hands. Thereafter, Shri J.S. Yadav, SI caught hold of the right hand wrist of the accused who was challenged whether he had demanded and accepted the bribe. Immediately, accused took the bribe amount from his right hand with his left hand and threw it away on the road side. Accused admitted the acceptance of the bribe from the complainant but stated that he took the same on the directions of Shri G.L. Kochar, Sr. Accounts Officer, who along with Hari Mohan, Driver was standing outside the said Maruti Van no. DL 9 CD 3561 and witnessed the above transaction of bribe.
7. As per prosecution, accused was concerned with supervising over processing for preparation of cheques by the competent authority and their payments which were released by post. For payments of bills, the Contractor concerned submits his bill in the integrated HQ of Minsitry of Defence (NAVY), Delhi. Thereafter, they prepare the contingent bill and forward the same to Dy. CDA C C No. 32/12 CBI Vs. J P Singh Page no. 10 11 (Navy), Project Seabird, R.K. Puram, New Delhi for preparation of cheque. The contingent bills are received in the o/o Dy. CDA (Navy) and an entry of these bills are made in the diary by the Diary clerk on day to day basis and are assigned to concerned task holder (i.e. Auditors/Sr. Auditors) by Asstt. Accounts officer/Section Officer. Then, the bills are audited by the Task Holder and submitted to SO/AAO, who forwards the same to AO/Sr. AO. Thereafter, the Task Holder passes the bill, prepares the punching medium, cheque slip and daily payment sheet. Bills are again submitted to SO/AAO for verification, who forwards the same to AO/Sr. AO again for verification. Then, the cheque and schedule are prepared. The SO/AAO signs on the cheque slip and bill. Finally, the cheque is signed by the Group Officer who is a Class-I officer. (if the bills is over Rs.10 lakh, it is signed by AO/Sr. Accounts officer also). Thereafter, AAO forwards the cheque to the Despatcher for dispatching the same to the party through speed post. One copy of cheque slip is sent to the Unit for information. Also, as per practice, the cheques are disbursed to the party through Post/Speed Post and only in special cases the cheques are delivered by hand for which C C No. 32/12 CBI Vs. J P Singh Page no. 11 12 prior permission is sought from Controller of Defence Account or Joint Controller of Defence Accounts. It is alleged that in the present case, no permission was sought for handing over the cheque to Shri Ramesh Kumar of M/s Balaji Services, Mannco Complex, 100 Feet Road, Ghitorni, Delhi from higher authorities in person.
8. On the directions of CBI independent witness Rajpal picked up bribe amount thrown on the road by accused and then cross checked their denomination with the denomination numbers mentioned in the Handing Over Memo with the help of other independent witness Jagdish Chander and found the same to be similar. Thereafter the accused was taken to his office after obtaining the due permission from the competent authority. Hand wash of his both hands were taken in two separate solution of sodium carbonate and the colour of the same was turned into pink. Each solution was then sealed in closed bottles with the seal of CBI. The DVR was taken from the complainant and was replayed and heard by all which confirmed the demand and acceptance of bribe by the accused from the complainant. The recording in the DVR was then transferred to blank C C No. 32/12 CBI Vs. J P Singh Page no. 12 13 audio cassette after recording the formal voice of the witness. Then the cassette was sealed with the seal of CBI in cloth wrapper and was given mark QA.
9. Accused was arrested vide personal search cum arrest memo. The case property was seized. The specimen seal was handed over to PS-Rajpal for safe custody. As per the chargesheet cheque no. 060667 dated 31-08-07 for Rs.3,97,885/- of RBI issued in the name of Balaji Services was handed over to the complainant.
10. The call detail of mobile no. 99907777005 were collected and it was found that the the said telephone number was registered in the name of Shri Ranvir Singh, S/o Shri T.P. Singh, R/o 207, Adishwar Apartments, 34 Feroz Shah Road, Delhi-30, who is the partner of M/s Balaji Services. As per the call record two calls originated from the aforesaid mobile number on 31-08-07 between 2.29 pm to 2.39 pm for landline no. 011-26194662 and the other call originated from the aforesaid mobile number on 31-08-07 at 5.31 pm for landline number 011-26180519. During investigation it was also revealed that these two landline numbers C C No. 32/12 CBI Vs. J P Singh Page no. 13 14 belonged to the office of Joint CDA, Navy under which the accused was posted. During investigation the hand washes were sent to Chemistry Division of CFSL for expert opinion and the questioned voice of accused as contained in cassette Q1 was also sent to CFSL for comparison with the specimen voice of the accused as contained in cassette S-1 Ex. P-8. The reports were collected from the CFSL.
11. The sanction to prosecute was accorded by Shri K. Shankar, IDAS, Principal Controller of Defence Accounts (NAVY) dated 10-03-08 u/s 19 of PC Act 1988.
12. After completion of the investigation, the chargesheet was filed to the court for prosecution of the accused u/s 7 and section 13 (2) r/w section 13 (1) (d) PC Act.
13. On the basis of material on record, charge U/s. 7 & 13(2) r/w Sec. 13(1)(d) of P C Act was framed against the accused to which he pleaded not guilty and claimed trial.
14. In support of its case the prosecution has examined 16 witnesses.
C C No. 32/12 CBI Vs. J P Singh Page no. 14 15
15. PW-1 is Shri Manoj Kumar Srivastava, Asstt.
Accounts Officer, Accounts Office, Project, Seabird, Office of PCDA, Navy, West Block-V, R.K. Puram, who testified that integrated HQ, Ministry of Defence Navy are engaging buses of Balaji Services on contract basis, since April, 1977. He deposed about the manner a bill is to be raised and how it passes through the hands of different officials of the account office and finally cheque is prepared and despatched to the party.
16. PW-2 Dr. Rajinder Singh, the Principal Scientific Officer, HOD Physics and Forensic identification Division, CFSL had examined the contents of cassette Q1 Ex.P4 i.e. the questioned voice of the accused and compared the same with the contents of cassette S1 Ex.P6 i.e. the specimen voice of the accused . He gave his report Ex. PW2/A to the effect that by auditory and voice spectographic technique he found that the questioned voice in Ex.Q1 tallied with the specimen voice of J.P. Singh in Ex.S1 in respect of their linguistic, phonetic and other general spectographic parameters. He proved the forwarding letter received from SP CBI ACB along with the exhibits as PW-2/B, the cloth wrapper in which the cassette Q1 Ex.P4 was C C No. 32/12 CBI Vs. J P Singh Page no. 15 16 wrapped as Ex.P2, its inlay card as Ex.P3 and the paper envelope in which these exhibits were produced as Ex.P1. He further proved the cloth wrapper in which the cassette S1 Ex.P8 was wrapped as Ex.P6 and its inlay card as Ex.P7.
17. PW-3 Dr. N.M. Hashmi, Senior Scientific Officer, CFSL had examined the contents of exhibit bottles mark RHW Ex.P10 and LHW Ex.P9 and proved his report Ex.PW3/B to the effect that the exhibits RHW and LHW gave positive test for phenolphthalein powder after chemical analysis. He also proved the forwarding letter of the then SP, CBI ACB Ex.PW3/A vide which these exhibits were received in the office of CFSL. He further proved the brown colour envelope bearing the particulars CFSL 2007/C0594 sealed with the seal of CFSL as Ex.P11 and the two cloth wrappers contained therein as Ex.P12 and Ex.P13 respectively which he deposed to have removed from the exhibits Ex.P9 and Ex.P10 respectively.
18. PW-4 is Ms. Reena Tandon, the then Joint Controller of Defence Accounts, Accounts Office, Project Seabird, Office of Principal Controller of Defence Accounts, Navy. She had handed over C C No. 32/12 CBI Vs. J P Singh Page no. 16 17 cheque no. 060667 dated 31-08-2007 Ex.PW4/A drawn in favour of Balaji Services for a sum of Rs. 397885/- signed by Smt. Shivali M. Chauhan, the then Deputy Controller of Defence Accounts vide forwarding letter dated 11-12-07 Ex.PW4/B to SP CBI.
19. PW-5 is Pawan Singh the Nodal Officer from Idea Cellular. He proved the forwarding letter Ex.PW5/A vide which he forwarded to CBI the call details of mobile no. 9990777005 for the period 30-08-07 to 31-08-07 Ex.PW5/B which is in the name of Ranbir Singh, S/o T.P. Singh, R/o 207, Adiswhar Apartments, 34, Firozshah Road, Delhi. He further proved the Customer Enrollment Form as Ex.PW5/C and its annexures as Ex.PW5/C1 to C5. He deposed that mobile no. 9990777005 had SIM no. 89910453050733374749 and had testified that on going through the calls details the two calls originated from mobile no. 9990777005 on 31-08-07 at 2.29 pm and 2.37 pm to landline no. 26194662 and that one call was originated from mobile no. 9990777005 at 5.31 pm to landline no. 26180519.
20. PW-6 is Rajpal an independent witness who C C No. 32/12 CBI Vs. J P Singh Page no. 17 18 was deputed as shadow witness. He deposed about the pre trap proceedings and the proceedings carried out after he gave the prefixed signal. He proved the transcription dated 10-10-07 Ex.PW6/A of the conversation between the complainant and the accused recorded in cassette Q-1 Ex. P-4, arrest cum personal search memo of accused Ex.PW6/B, site plan Ex.PW6/C, search cum seizure memo Ex.PW6/D and identified the signatures on the Verification memo Ex.PW7/B,, Handing Over memo Ex.PW7/C, Recovery Memo Ex.PW7/D and transcription cum voice identification memo Ex.PW7/E respectively.
21. PW-7 is Ramesh Kumar, the complainant, who deposed on the lines of his complaint Ex.PW7/A, about the verification of his complaint, pre trap proceedings and proceedings after the transaction of bribe was over. He proved the verification memo as Ex.PW7/B, Handing Over memo Ex.PW7/C, Recovery Memo Ex.PW7/D and transcription cum voice identification memo dated 10-10-07 Ex.PW7/E, bill submitted by M/s Balaji Services Ex.PW7/F dated 01-06-07 and the two bills dated 01-08-07 Ex.PW7/G and Ex.PW7/H respectively. He further identified the currency notes/bribe amount C C No. 32/12 CBI Vs. J P Singh Page no. 18 19 as Ex.P14 to Ex.P17. During the course of his testimony PW-7 cassette Q1 Ex.P4 was played whereby he identified the voice of the accused as well as his own voice.
22. PW-8 is Hari Mohan who was the driver of the vehicle bearing no. DL 9CD 3561 a maruti van and the accused had taken lift from him upto the crossing in the maruti van. As per the prosecution, he is a witness to handing over of a cheque by the accused to complainant and acceptance of bribe by the accused from him in return. However, this witness did not support the case of the prosecution and he was declared hostile. He was cross examined by Ld. Prosecutor but he denied that he had made statement to the CBI that accused had handed over cheque to the complainant and complainant had given bribe to the accused which he accepted.
23. PW 9 is Sh K Shankar, Principal Controller Defence Accounts Navy, who accorded sanction Ex. PW 9/A U/s 19 PC Act, 1988 for prosecution of the accused.
24. PW 10 is Ms. Mauli Shree Pandey, Dy Controller Defence Accounts, who proved letter Ex C C No. 32/12 CBI Vs. J P Singh Page no. 19 20 PW 10/A vide which she had sent to the CBI, the bio-data Ex PW 10/B of the accused vide her forwarding letter Ex. PW 10/C.
25. PW 11 is Ranbir Singh Mann the partner of Sh Balaji Services who deposed that the said firm was engaged in transport business and was given a contract for supplying buses to Indian Navy for the period from 1.4.07 on contract basis. He further deposed that Ramesh Kumar was the manager of the said firm, looking after the aforesaid contract.
26. PW 12 is Ms. Shivali M. Chauhan, the then Joint Controller, Defence Accounts in the Accounts Office, Project Seabird, R K Puram, New Delhi. She testified that Mr G L Kochhar was the senior Accounts Officer and Mr J P Singh ie the accused was one of the Asstt. Accounts Officer. At that time she was authorised to sign and issue the cheques on behalf of Government of India, Ministry of Defence related to the said office. After signing the cheques, the same were sent to the concerned sections for onward transmission after completion of formalities to the dispatch section. The concerned sections were headed by the Asstt. Account Officers, Mr. J P Singh was heading a C C No. 32/12 CBI Vs. J P Singh Page no. 20 21 section which was dealing with personal claims as well as third party claims apart from other duties. The dispatch section was required to send the said cheques to the drawees either by speed post or by registered post as per the choice of said claimants. Third party cheques cannot be issued by hand to them. Only in exceptional circumstances the cheques related to the official requirements of different units can be issued by hand after receipt of request from the concerned unit heads and after obtaining due authorisation from the competent authority but third party claim cheques cannot be issued by hand. She proved her signature on the cheque Ex PW 4/A.
27. PW 13 Jagdish Chandra, an independent witness who deposed about the pre trap proceedings and admitted his signature on the Handing Over Memo Ex PW 7/C. As per the case of the prosecution, he is a witness to demand and acceptance of bribe by the accused from the complainant. However, in his chief examination he only deposed with regard to the handing over of a cheque to the complainant by the accused and claimed he had not seen any other act between the complainant, shadow witness and accused. He was C C No. 32/12 CBI Vs. J P Singh Page no. 21 22 declared hostile by the prosecution. During his cross examination by Ld. PP he made two contradictory statements. Firstly, he denied that he had seen the accused demanding and accepting the bribe but lateron he stated that the entire trap team including himself had witnessed the said transaction.
28. PW 14 is the then Inspt N V Krishnan ( the TLO) who made detailed statement with regarding to the complaint being marked to him by the then SP CBI ACB, ND, about its verification, pre trap proceedings and proceedings conducted after prefixed signal was received from the complainant and the shadow witness. He testified regarding the entire investigation conducted by him and proved the FIR and other documents He also testified that on the next day of the incident he had recorded the specimen voice of the accused.
29. PW 15 the then SI Rohit Kumar was the subsequent IO who had filed the charge-sheet. He proved the application Ex. PW 15/A whereby permission was sought from the then Special Judge for conducting the investigation. He had recorded the statements of witnesses U/s 161 Cr PC and had C C No. 32/12 CBI Vs. J P Singh Page no. 22 23 prepared the transcription Ex. PW 6/A of the conversation recorded in cassette Q-1 vide Transcription cum Voice Identification Memo dtd. 10.10.07 Ex. PW 7/E. He also collected the cheque Ex PW 4/A vide forwarding letter Ex. PW 4/B, the report of the voice expert Ex PW 2/A, report of the chemical examiner Ex PW 3/A, call details of mobile no. 9990777005 Ex. PW 5/B alongwith annexures vide forwarding letter Ex. PW 5/A, the bio-data of the accused Ex. PW 10/B and the contingent bills. He also obtained sanction for prosecution of the accused. After completion of the investigation, he filed the charge- sheet in the present case.
30. PW 16 is Girdhari Lal Kochhar, Sr. Accounts Officer in the office of joint CDA Navy at R K Puram New Delhi, on 31.8.2007. However, he did not support the case of the prosecution and was declared hostile.
31. After the conclusion of the prosecution evidence, the statement of the accused was recorded U/s.313 Cr PC was recorded. He admitted that he was working as Asstt. Accounts Officer in the Accounts Office Project Seabird R K Puram, C C No. 32/12 CBI Vs. J P Singh Page no. 23 24 West Block-V, New Delhi and admitted his bio-data Ex.PW 10/B. He denied the entire incriminating evidence appearing on record and claimed to be innocent.
32. The accused did not lead any evidence.
33. I have heard arguments addressed by Sh.
Umesh Chandra Saxena, Ld. Sr. PP for CBI and Sh. M P Singh, the defence counsel.
34. Ld. PP for the CBI has submitted that the prosecution has proved its case through the reliable prosecution witnesses and there is ample positive evidence regarding the demand and acceptance of bribe by the accused from the complainant. Ld. PP has relied upon the testimony of PW7 Shri Ramesh Kumar, the complainant in this case, PW6 Shri Rajpal, the shadow witness, PW13 Shri Jagdish Chandra another independent witness, PW14 Inspector NVN Krishnan, the TLO as well as PW2 Dr. Rajinder Singh who conducted comparison of the questioned voice in cassette Q1 Ex.P4 and the specimen voice of the accused in cassette S1 Ex.P8. It is submitted by Ld. PP that the C C No. 32/12 CBI Vs. J P Singh Page no. 24 25 complainant has consistently deposed about the demand of bribe of Rs.9000/ by the accused from the complainant for release of his payment for the month of April, 2007 and for future payment and he delivered the cheque Ex.PW4/A to the complainant against the rules and regulations of the office by hand at the spot and in lieu of the same, accused accepted bribe of Rs.5000/. It is submitted that it has been proved on record vide the testimony of PW1 Manoj Kumar Srivastava and PW 12 Shivali M. Chauhan that the cheque could only be sent to the party concerned through speed post or registered post and in no circumstances it could be released by hand. Whereas, the accused flouted all the rules and regulations and delivered the cheque to the complainant outside the office complex without any permission from the higher authorities and for doing so accepted bribe from the complainant. It is further submitted that all the witnesses have corroborated each other on material particulars. The contradictions if any in their statements are minor in nature and do not go to the root C C No. 32/12 CBI Vs. J P Singh Page no. 25 26 of the case. That the demand and acceptance of bribe and recovery of the bribe amount has been duly proved by the prosecution through the testimony of the witnesses referred above as well as through the report Ex.PW2/A prepared by PW2 Dr. Rajinder Singh, who had examined questioned voice of the accused and compared the same with the specimen voice of the accused and found the same to be similar. The hand wash of the accused was examined by PW3 Dr. N.M. Hashmi and vide his report Ex.PW3/A the presence of phenolphthalein powder is proved on the hands of the accused which proves acceptance of bribe by the accused. Regarding link evidence, it is submitted that the seal after use was handed over to PW 6 Rajpal who deposited the same in the court during the course of his testimony, as such the case property could not be tampered.
35. On the other hand Ld. Defence counsel has submitted that there are serious discrepancies in the C C No. 32/12 CBI Vs. J P Singh Page no. 26 27 testimony of the prosecution witnesses on which no reliance can be placed.
36. It is further submitted that there is no evidence on record that landline telephone Nos. 26194662 and 26180519 were installed in the office/ room of the accused and it is only he who could use the same and received the calls thereon. Further that there is also no evidence on record that mobile No. 9990777005 which was in the name of PW 11 Ranvir Singh Mann, was in use by the complainant. It is further submitted that there are contradictions in the testimony of the witnesses regarding the amount of bribe demanded by the accused, regarding giving of prefixed signal at the time of completion of transaction of bribe, regarding lifting of currency notes from the ground, regarding the name of the shadow witness as PW14 Inspector NVN Krishnan has testified that PW13 Shri Jagdish Chandra was the shadow witness and not PW6 Shri Rajpal, who as per the case of the prosecution was C C No. 32/12 CBI Vs. J P Singh Page no. 27 28 shadow witness. He has also pointed out the discrepancies in the testimony of the witnesses about the manner of throwing bribe money by the accused and as to who had lifted the bribe amount from the ground.
37. Ld. Defence counsel has also assailed that the prosecution has not proved on record the link evidence about the deposit of case property in the malkhana and its safe custody till the same reached the office of CFSL.
It is submitted that the tape recorded conversation cannot be taken into consideration as there is no evidence on record that the cassette Q1 Ex.P4 was kept in safe custody and was not tampered with. Similarly, regarding the hand wash it is submitted that prosecution has not again proved that the bottles containing the hand wash were kept in safe custody in the malkhana and seals remained intact till they were received in the office of CFSL. It is prayed that the accused deserves to be acquitted in view of the discrepancies and contradictions in the case of the C C No. 32/12 CBI Vs. J P Singh Page no. 28 29 prosecution.
38. After hearing the submissions of both the parties, I have gone through the material on record carefully.
39. Section 7 of the POC Act, 1988 provides as under :
"Public Servant taking gratification other than legal remuneration in respect of an official act - Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government of any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government Company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with C C No. 32/12 CBI Vs. J P Singh Page no. 29 30 imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine."
40. In Dalpat Singh Vs. State of Rajasthan, AIR 1969 SC 17 it was held that the following requirement have to be satisfied to attract Sec. 7 of the Prevention of Corruption Act:
(1) the accused at the time of the offence was, or expected to be a public servant;
(2) that he accepted, or obtained, or agreed to accept, or attempted to obtain from some person a gratification;
(3) that such gratification was not a legal remuneration due to him; and, (4) that he accepted the gratification in question as a motive or reward, for:
(a) doing or forbearing to do an official act, or
(b) showing, or forbearing to show favour or disfavour to some one in the exercise of his official functions; or
(c) rendering or attempting to render, any service or disservice to some one, with the Central or any State Government or Parliament or the C C No. 32/12 CBI Vs. J P Singh Page no. 30 31 Legislature of any State or with any public servant.
41. The prosecution is required to prove the above ingredients by way of acceptable and clinching evidence.
In State of Maharasthra Vs. Dnyaneshwar Laxman Rao Wankhede VI (2009) SLT 439, the apex court while discussing the ingredients of offence u/s 7 of PC Act inter alia held as under :
"Indisputably, the demand of illegal gratification is a sine qua non for constitution of an 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-a-vis the standard of burden of proof on the prosecution would differ. Before, however, the accused is called upon to explain as C C No. 32/12 CBI Vs. J P Singh Page no. 31 32 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."
42. The perusal of the explanation (d) of Section 7 POC Act would indicate that a public servant who receives the gratification as a motive or reward for doing, what he is not in a position to do would also be held liable for this offence. If a public servant has used his official position to extract illegal gratification the requirement of the law is satisfied and it would be irrelevant whether the public servant was competent or empowered to do the same or not. Broadly, for the offence u/S 7 of the PC Act, the initiative vests in the person who gives and in case of obtainment i.e. u/S 13(1)(d), the initiative vests in the person who receives. The offence u/S 13(1)(d) may exist without another person being directly involved. Therefore, the acceptance is excluded without another person being directly C C No. 32/12 CBI Vs. J P Singh Page no. 32 33 involved. In the offence u/S 13(1)(d) it is not necessarily implied that another person suffers any monetary loss. The offence may complete without any profit or benefit for another person. However, for the offence u/S 7, there has to be other person also who had given money to the public servant.
43. In the case of State Vs. A. Parthibhan (2006) 11 Supreme Court Cases 473 it is held as under :
" Every acceptance of illegal gratification whether preceded by a demand or not, would be covered by Section 7 of the Act. But if the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it would also fall under section 13 (1)(d) of the Act. The act alleged against the respondent, of demanding and receiving illegal gratification constitutes an offence both under Section 7 and under Section 13 (1)(d) of the Act. The offence being a single transaction, but falling under two different sections, the offender cannot be liable for double penalty.
But in High Court committed an error in holding that a single act of receiving an illegal gratification, C C No. 32/12 CBI Vs. J P Singh Page no. 33 34 where there was demand and acceptance, cannot be an offence both under Section 7 and under Section 13 (1)(d) of the Act."
44. Section 20 of the PC Act 1988 provides for raising of a presumption in the event it is proved that the accused person has accepted or obtained or to obtain for himself any gratification or valuable thing. The presumption u/s 20 can be invoked if the prosecution has successfully proved by way of clinching evidence that accused has accepted or agreed to accept any gratification or valuable thing. Once this fact is proved, the presumption as provided u/s 20 PC Act, 1988 can be raised that public servant has accepted or agreed to accept the same as a motive for doing or forbearing for doing an official act. However, it is a rebuttable presumption and the burden of proof shifts upon the accused to prove that it was not as a motive or reward that the gratification or valuable thing was obtained. However, the onus on the accused to rebut this presumption is not as onerous as on the prosecution.
45. In the present case the accused has been charged for the offence U/s. 7, 13(2) r/w Sec. 13(1) C C No. 32/12 CBI Vs. J P Singh Page no. 34 35
(d) of the PC Act, 1988. It is a settled preposition that in order to prove the offence U/s. 7 of the PC Act, the acceptance of illegal gratification, whether preceded by demand or not, is sufficient. However the acceptance of illegal gratification by the public servant in pursuance of a demand, would fall u/s 13 (1)(d) of the Act also. In Harish Kumar Vs. CBI ILR (2011) IV Delhi 642, the implication of statutory presumption u/s 20 of the POC Act was considered in detail and it was inter alia held as under :
" 14. In the present case, since acceptance and demand has been proved in terms of Section 7 of the POC Act, this Court is duty bound to raise presumption for offence under Section 20 of the POC Act. In M.Narsinga Rao Vs. State of Andhra Pradesh, 2001 (1) SCC 691 it was held that where receipt of illegal gratification was proved, the Court was under a legal obligation to presume that such gratification was accepted as reward for doing a public duty. In the report, it was held :
" 13. Before proceeding further, we may point out that the expressions "may presume" and "shall C C No. 32/12 CBI Vs. J P Singh Page no. 35 36 presume" are defined in Section 4 of the Evidence Act. The presumptions falling under the former category are compendiously known as "factual presumption" or discretionary presumptions" and those falling under the latter as " legal presumptions" or "compulsory presumption".
When the expression "shall be presumed" is employed in Section 20(1) of the Act it must have the same import of compulsion.
14. When the sub-section deals with legal presumption it is to be understood as in terrarium i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act et., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes C C No. 32/12 CBI Vs. J P Singh Page no. 36 37 through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act.
46. In the present case vide the testimony of PW 1 Manoj Kumar Srivastava,AAO, Accounts Office, Project Sea Bird, Office of Principal Controller of Defence Accounts, Navy, West Block-V, R K Puram, New Delhi, it is proved on record that Integrated HQ, Ministry of Defence Navy was engaging buses of M/s. Balaji Services on contract basis since April 2007. PW 1 has explained the procedure as to how a bill submitted by the contractor is passed and cheque is prepared. As per his testimony, after all the formalities are complete, the task holder prepares the cheque and then bill alongwith the cheque is sent to Assistant Accounts officer for checking/signing. Thereafter the cheque is sent to the Group Officer who is class I Gazetted Officer, for signature and after the cheque is signed, it is sent to Sr. Accounts Officer. From Sr. Accounts Officer, it is sent to Assistant Accounts Officer for dispatch to the party vide speed post or registered post. The particulars of dispatch of cheque to a party are recorded in cheque dispatch register. He categorically stated that there is no provision of handing over the cheque to a contractor personally.
C C No. 32/12 CBI Vs. J P Singh Page no. 37 38 The testimony of PW 1 has not been disputed by the accused as the witness was not cross examined at all. Thus, the accused has admitted the procedure of passing of the bill, preparation of cheque and that it is to be dispatched by the AAO to the contractor by speed post or registered post, as explained by PW 1.
47. PW12 Ms. Shivalli M Chauhan who was posted as Joint Controller Defence Account in the Account Office, Project Seabird, R K Puram, New Delhi in the year 2007, testified that at the relevant time accused J P Singh was one of the AAO and was heading a section which was dealing with personal claims as well as third party claims, apart from other duties. She too stated that the dispatch section was required to send the said cheques to the drawees either by speed post or registered post, as per the choice of the claimants but in no circumstances the same could be delivered to them by hand. The testimony of this witness too has not been disputed or rebutted by accused in any manner. She was not cross examined on material aspect. PW 12 further proved that cheque dated: 31.8.2007 Ex. PW 4/A issued in the name of Balaji Services for Rs. 3,97,885/- was issued under C C No. 32/12 CBI Vs. J P Singh Page no. 38 39 her signature. The accused has admitted in his statement U/s 313 Cr. PC that he was posted as AAO in the Account Office, Project Seabird, R K Puram, New Delhi in the year 2007. He also admitted that all the cheques relating to any payment used to be sent by post to the concerned party.
48. The allegations, as per the complaint, are that accused had demanded bribe of Rs. 9,000/- for the payment already released for the month of April by hand to the complainant and for future payment. The accused has vehemently denied demand and acceptance of bribe. Having gone through the statement of accused U/s 313 Cr.PC, in answer to question No. 42, accused has admitted his presence at the spot ie outside the office of CDA where he alongwith PW 16 G L Kochhar reached in Maruti Van, driven by PW 8 Hari Mohan. Even PW 8 and PW 16 have corroborated the case of prosecution to this effect.
49. In regard to the demand or acceptance of bribe, the most important testimony would be of PW 7 Ramesh Kumar, the complainant. In his testimony, he deposed that he was working as C C No. 32/12 CBI Vs. J P Singh Page no. 39 40 Manager in M/s. Balaji Services. The buses of the company were deployed with various schools including school of Navy Office. He stated that his duties as Manager included controlling the buses so deployed and to supervise the supervisors. Regarding collection of payment, he stated that it used to be collected by an official designated by the office and in case such official was not available, then he (PW7) used to collect the payment. He further testified that they used to get their payment from R K Puram Office where accused J P Singh used to deal with their case relating to payments. He deposed about receiving a telephone call from J P Singh on their landline telephone from R K Puram Office informing them that their cheque was ready and to collect the same. He stated that he went to the office of R K Puram where he had given a call to the accused on the telephone number provided by him. The accused then sent one peon downstairs who handed over a cheque to the complainant and demanded some money and he was made to talk to the accused on telephone. Accused told him to take the cheque and money would be adjusted on the next payment. He also told him to make payment lateron. He C C No. 32/12 CBI Vs. J P Singh Page no. 40 41 testified that the said payment was for the month of April 2007. Again payment for 2 to 3 months was due and the complainant called accused on telephone in this connection. He was told by accused to meet him at the gate of office where he had met the Peon earlier. On the same day he went at the gate of R K Puram Office where the accused J P Singh met him and told him that apart from the current payment earlier payment was due to him and he would hand over the cheque to him only after receiving his payment. PW 7 further testified that when he requested and pleaded with the accused that there was recession in business, he was told that in case he would not make the payment, the accused would return his bills with objections. He stated that then he told the accused that he would come tomorrow with the payment. The accused told him to come at 5/ 5:30pm on the next day. PW 7 further stated that he had to give Rs. 9,000/- to J P Singh due to which he was mentally disturbed and approached CBI. He proved his complaint Ex. PW 7/A and deposed about its verification. He further deposed about giving a call to accused from his mobile number 9990777005 which was recorded and as C C No. 32/12 CBI Vs. J P Singh Page no. 41 42 per such conversation the accused told him to come and he would wait for him. The transcription of the said telephonic conversation is Ex. PW 6/A and as per the same, the accused asked him to bring money whatever was available with him.
50. PW 7 also proved the Verification Memo Ex.
PW 7/B. He deposed in detail regarding the pre trap proceedings, the transaction of bribe and proceedings conducted after the apprehension of the accused and recovery of bribe amount. He made specific statement regarding hand wash taken of the accused and that the colour of solution turned pink. The complainant was subjected to detailed cross examination, however, I consider that the lengthy and the detailed cross examination has not been able to shatter the testimony of the complainant. If we peruse the cross examination of the complainant, it reveals he was not cross examined on material points. He was not cross examined at all regarding his testimony that the accused had met him at the gate of his office at R K Puram, a day prior to the incident and had demanded bribe of Rs.9,000/- to be paid on next day by 5/5:30pm. Nor he was cross examined regarding acceptance of bribe amount by the C C No. 32/12 CBI Vs. J P Singh Page no. 42 43 accused and his handing over cheque Ex. PW 4/A to the complainant on 31.8.07 or about the conduct of accused that on seeing CBI officers, he threw the bribe money on the ground. The complainant was also not cross examined about the hand wash of the accused taken by CBI officer/officers. No suggestion was given to the complainant that he had never met the complainant on 30.8.07, a day prior to the incident or that he did not hand over cheque Ex . PW 4/A to the complainant and in lieu of the same accept bribe from him on 31.8.07. He was also not suggested that the accused did not have any telephonic conversation with the complainant on 31.8.07, demanding bribe. The accused in his statement U/s 313 Cr PC has admitted that his hand wash was taken. The accused in his statement U/s 313 Cr PC, in answer to Ques.42, admitted that he had reached spot in Maruti Van driven by driver PW 8 Hari Mohan, outside the office of CDA alongwith his senior Sh G L Kochhar ie PW 16. In answer to Ques. 48, he stated that after getting from the Maruti Van, he proceeded ahead on the main road, two persons came in front of him and one of them extended money towards him but he did not C C No. 32/12 CBI Vs. J P Singh Page no. 43 44 accept the same, in that process the money fell on the ground. However, no such suggestion was given to the complainant that he had extended money towards him but was not accepted by the accused and in that process the money fell on the ground. The accused has nowhere claimed in his statement that since his hands came in contact with money treated with phenolphthalein powder, extended towards him by the complainant and as such, the colour of the solution in which his hands were dipped, turned pink. He has not given any explanation as to how the wash of his hands turned the sodium carbonate colourless solution into pink.
51. The accused in his statement U/s/ 313 Cr PC claimed that he came to know lateron that the person who had exempted money towards him, was Ramesh Kumar, the complainant in this case. Here question arises why would complainant falsely implicate him or would extend money towards him without any reason. It is not the case of accused that he was on enemical terms with the complainant or his employer PW 11 Ranvir Singh Mann, to implicate him falsely. It is also not the defence of the accused that some CBI officials were an enemical towards him and got him falsely C C No. 32/12 CBI Vs. J P Singh Page no. 44 45 implicated. In these circumstances, the defence taken by the accused that when he got down from Maruti Van and proceeded ahead on the main road, two persons, out of which one was lateron identified as the complainant Ramesh Kumar, came in front of him and extended money towards him, is not acceptable. How would complainant know that accused would be reaching a particular place at a particular time unless he had some prior conversation with him in this regard. Rather, it lends credence to the story of the prosecution that complainant had given a call from mobile No. 9990777005 to the accused on landline No. 26180519 at about 05:31pm as proved vide call record Ex. PW 5/B, from the spot and consequently the accused reached the spot in a Maruti Van and handed over the cheque Ex PW 4/A to the complainant and accepted the bribe amount. It is proved on record vide the testimony of PW 1 Sh Manoj Kumar Srivastava,Asstt. Accounts Officer in the office of the accused that the aforesaid landline number was installed in his office besides telephone No. 26194662. Though the accused in his statement U/s. 313 Cr PC in answer to Question No. 37 stated that telephone no. 26180519 was C C No. 32/12 CBI Vs. J P Singh Page no. 45 46 installed in the room of the Accounts Officer Sh G L Kochhar ie PW 16. However, no such suggestion was given to PW 16 when he appeared in the witness box. No question was put to him during cross examination by the defence that telephone No. 26180519 was installed in his room in the office and he had no direct access to the same nor he led any evidence to this effect. As such, mere saying of the accused in his statement U/s 313 Cr PC that the said landline telephone was installed in the room of PW 16 is of no consequence.
52. For a moment even we accept the defence of the accused that he did not know complainant from before and that the complainant and one another person came in front of him while he was walking towards the main road, the accused has failed to explain as to why he was carrying cheque Ex PW 4/A alongwith him, which otherwise as per office Norms/Rules and Regulations was required to be despatched to Balaji Services vide speed post or registered post. Complainant specifically deposed about handing over of cheque Ex. PW 4/A to him by the accused at the spot and that in lieu of the same he accepted the bribe from the complainant.
C C No. 32/12 CBI Vs. J P Singh Page no. 46 47 The delivery of cheque Ex PW 4/A to the complainant at the spot itself is admitted by accused through cross examination of the complainant, whereby he was suggested that before he (complainant) received cheque on 31.8.07, a cheque was received by him from the office of CGDA. The relevant portion of cross examination of PW 7 the complainant is reproduced as under:
" It is correct that earlier a cheque was received from the office of CGDA prior to the cheque received on 31.8.07."
53. The accused thus vide cross examination of the complainant had admitted that complainant had received cheque Ex PW 4/A on 31.8.07. As per complainant the said cheque was delivered to him by the accused at the spot. Had it been that the cheque was sent to the complainant by speed post or registered post, it was for the accused to have produced the relevant record from his office to this effect. PW 12 categorically stated that particulars/details of despatch of cheques are always mentioned in the Despatch Register. Non production of despatch register by the accused C C No. 32/12 CBI Vs. J P Singh Page no. 47 48 leads to the inference that there was no entry of the despatch of any cheque to Balaji Services and the reason is obvious in view of the statement of PW 7 that cheque Ex PW 4/A and even cheque relating to the earlier payment for the month of April 2007, were never sent by speed post or registered post but were delivered to him by hand. No suggestion was given to the complainant that the cheque Ex PW 4/A or any other cheque prior to that was not delivered by hand by the accused to the complainant.
54. It is the argument of the defence counsel that the prosecution has not produced any evidence that any bill of Balaji Services was due as on 31.8.07. However, this argument has no substance, as PW 7 the complainant has proved on record the three bills submitted by Balaji Services for payment, out of which one bill is dt. 1.6.07 Ex. PW 7/F for a sum of Rs. 2,63,088/- and other two bills are dated:
1.8.07 Ex. PW 7/G and Ex PW 7/H for a sum of Rs.
1,24,777/- and Rs. 18,405/- respectively. Further as per the testimony of PW 15 SI Rohit Kumar, the IO of this case, two contingent bills Mark PW 15/PX-1 for Rs. 1,43,182/- and Mark PW 15/PX-2 for Rs. 2,63,088/- were collected during investigation vide C C No. 32/12 CBI Vs. J P Singh Page no. 48 49 forwarding letter Mark PW 15/PX. Both these bills are in the name of Balaji Services and were passed on 31.8.07. As per the endorsement on both these bills, a sum of Rs. 3,97,885/- was paid vide cheque No. 060667 ie Ex PW 4/A towards both the bills and it is the same cheque which was handed over by the accused to the complainant at the spot and in lieu had accepted bribe. The factum of demand of bribe, delivery of cheque Ex PW 4/A to the complainant and acceptance of bribe by the accused is thus proved by the prosecution vide the testimony of PW 7, the complainant in clear terms. The conduct of the accused in delivering the cheque Ex PW 4/A by hand to the complainant instead of sending the same to Balaji Services through speed post or registered post itself leads to the inference and appears to be an additional circumstance in favour of the prosecution that accused violated the office rules and regulations and had motive in delivering the cheque by hand to accept the bribe,which was sheerly misuse of his public office.
55. The testimony of PW 7 the complainant is corroborated by shadow witness PW 6 Rajpal who testified in his examination in chief about the C C No. 32/12 CBI Vs. J P Singh Page no. 49 50 verification of the complaint Ex. PW 7/A, about pre trap proceedings as well as the proceedings carried out after the apprehension of the accused and recovery of bribe amount. He also deposed that from the spot the complainant had made a telephone call to the accused informing him that he ( the complainant) had reached and the accused replied that he would be coming soon and also asked the complainant to meet him at the spot directed by him. PW 6 further testified that accused reached there within 5/10 minutes in a Maruti Van which was driven by a driver and one more person was sitting in the car. The accused got down and he was carrying some papers in his hand. Thereafter the complainant and the accused continued talking with each other regarding the matter fixed earlier regarding transaction of money and on the end of the conversation the complainant took out the money from his pocket and handed over to the accused. As per instructions, he gave prefixed signal on the completion of transaction. Nodoubt, PW 6 did not testify in his examination in chief that the accused had handed over any cheque to the complainant before accepting the bribe. To this effect he was declared hostile by the C C No. 32/12 CBI Vs. J P Singh Page no. 50 51 prosecution and during cross examination by Ld. PP he categorically stated as below:
" The cheque was handed over to the complainant by the accused before transaction of bribe."
" It is correct that cheque of Rs. 3,97,885/- issued in the name of Balaji Services was handed over to the complainant."
56. During cross examination by Ld. Defence counsel he denied the suggestion in the following manner:-
" It is wrong to suggest that accused had not handed over the cheque to the complainant ."
He further stated:
" When the accused reached the spot, conversation between accused and complainant took place for 3 to 4 minutes, thereafter the accused handed over the cheque to the complainant."
57. The defence counsel has submitted that since PW 6 did not testify in his examination in chief that the accused had handed over any cheque to the complainant and thus he has not corroborated the C C No. 32/12 CBI Vs. J P Singh Page no. 51 52 statement of complainant and as such the prosecution has failed to prove the factum of the cheque Ex PW 4/A being handed over by the accused to the complainant at the spot. However, this argument is of no consequence, as the incident pertains to the year 2007 and PW 6 deposed before the court in the year 2010 and there can be every possibility of the witness forgetting certain facts due to lapse of time. When his attention was drawn by the prosecution to the relevant fact, he admitted the same to be correct. I find no reason to not considered the statement of this witness made during cross examination by Ld. PP for corroboration of the testimony of the complainant.
58. Not only PW 6, even PW 13 Jagdish Chander, another independent witness also testified that he had seen the accused handing over the cheque to the complainant. Regarding acceptance of bribe, he stated:
"After about 10-15 minutes of our reaching at that place, one Maruti Van of white colour came and stopped at some distance from the complainant and Rajpal. One person got down from C C No. 32/12 CBI Vs. J P Singh Page no. 52 53 the van and he was holding one file in his hand and he went near the complainant and Rajpal. The said person handed over one cheque to the complainant which we could see from the distance where we were positioned. Thereafter both the complainant and Rajpal gave prefixed signal by scratching their head by both their hands and we all reached there by running."
He further stated:
" On reaching the spot the person who had handed over the cheque was caught hold of and he was holding currency notes."
59. PW 13 was cross examined by Ld. PP and during his cross examination he admitted that the bribe transaction took place in open place outside the office of CDA, Plot No. 5 R K Puram, New Delhi and the entire team including him witnessed the said transaction. He also stated that accused was challenged with regard to his demanding and accepting the bribe amount from the complainant and immediately he threw the amount on the road. He also admitted that the accused had informed that he had demanded and accepted the bribe amount at the instance G L Kochhar, Sr Accounts C C No. 32/12 CBI Vs. J P Singh Page no. 53 54 Officer. It is observed that PW 13 was not subjected to any effective cross examination and defence has failed to shatter his testimony. No suggestion was given to PW 13 that he had not witnessed the transaction of bribe or that the accused had not handed over any cheque to the complainant or that he had not seen the accused holding the bribe money and then on being challenged he had thrown the same on the ground. He was also not cross examined regarding his statement that accused had informed that he had demanded and accepted the bribe amount at the instance of G L Kochhar.
60. The other important witness of the prosecution is PW 14 Inspt N V Krishnan, the TLO, who too corroborated the testimony of the complainant on material particulars. He testified that :
" After alighting from the vehicle, the accused went to the complainant who was standing alongwith the shadow witness and he was seen handing over a cheque to the complainant. Thereafter the complainant was seen taking out powder treated G C notes from his left side shirt C C No. 32/12 CBI Vs. J P Singh Page no. 54 55 pocket and extended it towards the accused which the accused received with his right hand."
He also categorically stated:
"Since the bribe transaction took place in the open area, the whole team was able to witness the said bribe transaction."
61. No suggestion was given to PW 14 that he had not witnessed the transaction or that accused had neither handed over any cheque to the complainant nor accepted any bribe from him. The cross examination of PW 14 was more related to the proceedings after the transaction of bribe. Nodoubt, PW 14 at times could not give specific replies to the questions put to him during cross examination, such like as to whether the complainant had switched on tape recorder on leaving the office of CBI or thereafter, regarding who summoned the independent witnesses, make of audio cassettes, when the cassettes were sent to the expert etc. However, in my opinion, the answers given by PW14 to such questions does not reflect upon his credibility and there is no reason to disbelieve his testimony.
62. The defence counsel has submitted that since C C No. 32/12 CBI Vs. J P Singh Page no. 55 56 PW 14 the TLO has denied that PW 6 Rajpal was the shadow witness and that it was PW 13 Jagdish Chander, who was shadow witness, his said testimony has demolished the entire case of the prosecution and as such the prosecution has failed to prove its case against the accused . However, I do not agree with the arguments of the defence counsel since all the witnesses other than PW 14 had categorically testified that PW 6 Rajpal was the shadow witness. PW 6 Rajpal himself has also deposed in this regard. Besides, the Handing Over Memo Ex PW 7/C also reveals that PW 6 was deputed as shadow witness. Nodoubt, Ld PP was required to seek clarification from PW 14 in this regard but it was not done. At the same time merely on account of the fault of PW 14, as may be due to lapse of time, he forgot the name of the shadow witness and for the reason that Ld PP did not act efficiently, the benefit of such lapse cannot be extended to the accused.
63. Ld. Defence Counsels have placed heavy reliance on the contradictions appearing in the testimony of the complainant. It is a settled preposition that minor contradictions does not go to the root of the case and cannot be taken into C C No. 32/12 CBI Vs. J P Singh Page no. 56 57 account while appreciating the evidence. Normally, the discrepancies take place due to the normal errors of observation, normal errors of memory due to lapse of time and mental disposition at the time of cross-examination. It is also a settled preposition that the maxim 'falsus in uno falsus in omnibus' is neither a sound rule of law nor a rule of prudence. Reference can be made to Bawa Haji Vs. State of Kerala AIR 1974 SC 902 and Ugar Ahir Vs. State of Bihar AIR 1965 SC 277. It is also been held in the number of the cases that minor discrepancies which does not go to the root of the case, should be ignored. Reference can be made to Krishna Pillai Vs. State of Kerala AIR 1981 SC 1237. In respect of appreciation of evidence, in Mehkar Singh Vs. CBI ILR (2011) IV Delhi, it was inter alia held as under :
"It must be kept in mind that while appreciating the evidence of a witness one may come across certain discrepancies in his deposition. These discrepancies are really of no consequence as long as they don't go into the root of an demolish the veracity of the case. These discrepancies can be due to normal errors of observation, or loss of memory due to lapse of time C C No. 32/12 CBI Vs. J P Singh Page no. 57 58 or due to mental disposition such as shock and horror at the time of the occurrence and the like. It must be remembered hat the evidence given by a witness would very much depend upon his power of observation and it is possible that some aspects of an incident may be observed by one witness while they may not be witnessed by another though both are present at the scene of occurrence [vide Boya Ganganna and anr. v. The State of Andhra Pradesh AIR 1976 SC 1541]. In the case of Bharwarda Bhoginbhai Hirjibhai (supra), it was held by the Supreme Court that much importance cannot be given to minor discrepancies which did not got to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. It has been held time and again by catena of judgments of Apex Court that discrepancies do not necessarily demolish the testimony. The proof of guilt can be sustained despite some infirmities [Narottam Singh Vs. State, 1978 Crl.L.J. 1612 (SC)]. In the case of Ramni Vs. State, 1999 (6) SC 247, it was held that all the discrepancies are not capable of affecting the credibility of the witnesses and similarly all the inconsistent statements are not C C No. 32/12 CBI Vs. J P Singh Page no. 58 59 sufficient to impair the credit of a witness."
64. The experience would tell that no prosecution case is immune from inconsistencies here and discrepancies there. The main thing to be seen is whether those inconsistencies etc. go to the root of the matter or pertain to the insignificant aspect thereof. In my opinion, the defence has failed to point out any such discrepancy in the case of the prosecution, which can go to the root of the case, causing irrepairable dent in the case of the prosecution.
65. The defence has vehemently argued that cheque Ex PW 4/A was not handed over by the accused to complainant at the spot and it is for this reason, it was forwarded to CBI by PW 4 Ms Reena Tandon,Addl. Controller of Defence Accounts, Account Office, Project Seabird, Office Principal Controller of Defence Accounts, Navy, West Block-V, R K Puram, New Delhi, vide forwarding letter Ex. PW4/B. Nodoubt, as per the testimony of PW 4, she had forwarded the cheque Ex PW 4/A to CBI vide forwarding letter dt.11.12.07 Ex. PW4/B. However, this in no manner leads to the inference that this cheque was not given by hand to the complainant C C No. 32/12 CBI Vs. J P Singh Page no. 59 60 by the accused on 31.8.07 since in the forwarding letter Ex PW 4/B itself it is mentioned that the said cheque was received in the office of accused vide Sn letter No. AN/I/1600/JPS dt.4.12.07issued by CDA ( Navy) Defence Services in favour of Balaji Services for Rs. 3,97,885/-. Thus in view of the letter Ex PW 4/B the said cheque was not in the office of the accused but was received there vide Sn letter No. AN/ I/1600/JPS dt.4.12.07. The record speaks that PW 4 was not cross examined at all in this regard by the defence. The perusal of the cheque Ex PW 4/A reveals that the same was encashed on 5.9.2007. PW 6 has categorically testified that during the post trap proceedings a photocopy of the cheque was also prepared. All these facts and circumstances prove on record that the cheque Ex PW 4/A was handed over by the accused to the complainant at the spot itself. All the witnesses particularly, PW 7 has categorically stated that the cheque was delivered by the accused to him and in lieu of the same he took the bribe. The details of the cheque Ex PW 4/A finds mentioned in the Recovery Memo Ex.PW 7/D. It is not disputed by the defence that the Recovery Memo was prepared in the office of the accused C C No. 32/12 CBI Vs. J P Singh Page no. 60 61 on 31.8.07 after the transaction of bribe. As such, Ex PW 4/A is the same cheque which was given by accused to the complainant at the spot and its photocopy was retained for investigation purposes. Nodoubt, it was the duty of TLO to have mentioned specifically in the Recovery Memo Ex PW 7/D that after retaining photocopy of the cheque, it was handed over to the complainant but merely for lapse on the part of the TLO or IO of the case, accused cannot be entitled to any benefit. The recovery of the bribe amount from the possession of the accused at the spot has also been proved vide the testimony of the complainant corroborated by PW 6, PW 13 and PW 14.
66. The prosecution has also relied upon the report Ex. PW 2/A of PW 2 Dr Rajender Prasad, whereby after comparison of the contents of cassette Ex. Q-1 ie Ex. P-4 containing the questioned voice of the accused in conversation with the complainant on telephone and at the spot conversation between the two, with the specimen voice of the accused contained in cassette Ex.S-1 ie Ex. P-8, he arrived at the conclusion that by use of auditory and voice spectographic technique the questioned voice tallied with the specimen voice C C No. 32/12 CBI Vs. J P Singh Page no. 61 62 of the accused. The defence counsel has submitted that the tape recorded conversation does not inspire credence, as the prosecution has failed to establish on record that the cassette containing the recording of the telephonic conversation between the complainant and the accused and the spot trap conversation was kept in safe custody and was not tampered with or doctored at any stage. It is further submitted that the conviction of the accused cannot be based solely on the basis of the tape recorded conversation. I fully agree with the contention of the defence counsel that the tape recorded conversation is not a substantive piece of evidence but only to corroborate the testimony of the complainant and other witnesses. However, in the present case, the prosecution is not relying upon only on the tape recorded conversation but is using the same to corroborate the testimony of the complainant and other witnesses. So far the safe custody of the cassette Q1 Ex.P4 is concerned, vide the testimony of PW-6 Shri Rajpal, PW-14 Inspector NVN Krishnan, the TLO and others it is proved on record that the case property including the cassette Q1 Ex.P4, the exhibit bottles of hand wash were sealed with the seal of CBI at the spot. During the C C No. 32/12 CBI Vs. J P Singh Page no. 62 63 course of his testimony PW-6 produced the seal of the CBI in the court and stated that it was handed over to him after use. Thus, since the seal remained in the custody of the independent witness after use in the proceedings and it was returned in the court, there can be no doubt that the case property remained in safe custody and could not be tampered with.
67. The defence counsel has further submitted that as per the Recovery Memo Ex. PW 7/D and the testimony of PW 6 the shadow witness during his cross examination by Ld. PP, the accused while accepting the money from the complainant had enquired, if the money was amounting to Rs. 7,000/- but this fact does not find mentioned in the transcription Ex. PW6/A. To this effect, Ld PP has submitted that at some places the conversation recorded in the cassette was not audible and it is for this reason the words uttered by the accused could not be mentioned in the transcript. The cassette was played in the court during the testimony of PW 7 and it was found to be containing the conversation in accordance with the transcription Ex PW 6/A. In the transcription at several places it is mentioned -''Not clear". I am C C No. 32/12 CBI Vs. J P Singh Page no. 63 64 of the considered view that there can be various reasons for the conversation in the cassette to be not audible or clearly audible at places. However, as referred above, any such conversation is not to be treated as a substantive piece of evidence but is only in the nature of corroborative evidence. It is settled law that where the testimony of witnesses is unimpeachable, no corroboration is required for their testimony, to be relied upon. As discussed above the testimony of PW 7 the complainant is worth credence and no independent corroboration is required from the piece of tape recorded conversation. At the same time, I have no hesitation to say that the prosecution has duly proved on record that the questioned voice in the cassette Q-1 Ex.P-4 was that of the accused and the said conversation which is telephonic as well the spot conversation was between complainant and accused. Vide said conversation the prosecution has proved that the accused had met the complainant on a day prior to 31.8.07 as on page 1 of the transcription Ex. PW 6/A, the complainant had called the accused from the spot and questioned him:
"Ramesh- Aa Sir Mr J P Singh Honge Ji.
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65
J P Singh- Haan J P Singh Baat Kar Rahe
Hain"
Ramesh- Haan Sir Mein Ramesh Abhi
Pahuncha Hun, Sir Wo Late Ho Gya Tha.
J P Singh- (Not Clear )
Ramesh- Haan Ji, Haan Ji, Aan, Sir Mein Usi Sarak Pe Hu Jahan Pe Kal Miley They.
Jahan Pe Kal Miley They, Na J P Singh- Haan, Haan
68. The above conversation proves that the accused had met the complainant on the previous day as well at the same spot where the transaction of bribe took place on 31.8.07. In this conversation they both also discussed about preparation of two cheques and accused told the complainant that one cheque was prepared for both. The telephonic conversation between the complainant and the accused during pre trap proceedings also reveals that there was discussion between the two with regard to payment of money to be made to the accused by the complainant. The complainant had told him that he was bit late and to this the accused was annoyed and uttered -
C C No. 32/12 CBI Vs. J P Singh Page no. 65
66
Bund Kar Late Sahi, Ye Kya Drama Kar
Rakha Hain.
69. The complainant then told him that his
motorcycle had met with some accident and he
had spent some amount there. The accused then told him- Haan Koi Baat Nahi Aap Jo Ho Itna Aap Le Aaiye, Panch Sade Panch Tak Hum Hai.
70. The complainant then told him that he had Rs. 7,000/- out of which he had spent Rs. 2,000/- for the vehicle and rest amount he would deliver the accused in 2 to 3 days.
The accused told him- Acha Theek Hai Aap Aao.
71. The aforesaid tape recorded conversation clearly establishes the prior meeting of the complainant and the accused and the demand of bribe as well as the preparation of the cheque in respect of pending bills of the complainant. As referred above, PW 4 Dr Rajender Prasad was not given any suggestion that the questioned voice was not of the accused. Similarly, the complainant who had identified the voice of the accused in the cassette Ex P-4 during his testimony, was not cross examined at all in this regard which leads to C C No. 32/12 CBI Vs. J P Singh Page no. 66 67 the inference that the defence has admitted that the questioned voice in the tape recorded conversation was of the accused which has corroborated the testimony of the complainant on all material particulars.
72. During the cross examination of PW 7 the accused had tried to take defence that he was falsely implicated for the reasons that the Balaji Services was black listed but no suggestion was given to PW 11 Ranvir Singh Mann, the owner of Balaji Services in this regard nor any record was summoned by the accused from his own office in defence to prove that Balaji Services was black listed at any particular time prior to the incident. Moreover, in his statement U/s 313 Cr PC he stated that Balaji Services was likely to be black listed. He has taken two contrary stands at two different stages without producing any evidence to this effect.
73. In view of the above discussion, I am of the considered opinion that PW 7 the complainant has made a cogent and creditworthy statement he has categorically stated that on reaching the spot where he had met the accused earlier, he made a C C No. 32/12 CBI Vs. J P Singh Page no. 67 68 telephone call to him, he deposed about the arrival of the accused there accompanied by his Sr, Mr Kochhar and driver in an Omni Vehicle. The accused alighted from the vehicle. He handed over the cheque to him and accepted the money. He also deposed about the arrival of the CBI officials in the meantime and the accused throwing the money on the road. During the course of his testimony he identified the GC notes as Ex. P-14 to Ex. P-27. He also deposed about the washing of the hands of the accused and the solution turning to pink. In the cross examination there was nothing which could shatter the testimony of the complainant. It is found to be duly corroborated by the testimony of PW 6, PW 13 and PW 14. PW 3 Dr N M Hashmi, the Sr. Scientific Officer has proved the chemical examination report as Ex. PW 3/A and stated about the positive test about the presence of phenolphthalein powder and sodium carbonate. The superior courts have consistently passed the conviction on the basis of testimony of the complainant coupled with chemical examination report. In case of V.K. Kannan Vs. State AIR 2010 Supreme Court 166, it was inter alia held as under :
C C No. 32/12 CBI Vs. J P Singh Page no. 68 69 "According to Balachander PW2, the money was handed over to the appellant in his presence. Immediately after the bribe amount was handed over to the appellant, he started counting the currency notes. At that time Balachander PW2 came out and gave the pre-arranged signal. Soon thereafter the Inspector and the trap team entered into the above room and the appellant was arrested. The Sodium Carbonate solution was prepared and phenolphthalein test was conducted on both the hands of the appellant separately. There was colour change in the solution and they were preserved in separate bottles.
Balachander PW2 is an independent witness and he has corroborated the evidence of the complainant PW1. Therefore, in the facts and circumstances of this case, it is difficult to accept the submission of the appellant that there was no demand and acceptance of the bribe amount. Both the Trial Court and the High Court rejected the defence version of the appellant."
74. The inconsistencies and contradictions put forth by the Ld. Defence counsel during the course of arguments, are minor in nature and does not go C C No. 32/12 CBI Vs. J P Singh Page no. 69 70 to the root of the case. The complainant has duly proved on record the complaint Ex. PW7/A in which there is specific demand of bribe by the accused persons on 30.8.07 followed by demand made on 31.8.07.
75. In view of the above discussion, I consider that the prosecution has successfully proved that there was a demand of bribe on behalf of the accused and the same was duly accepted by him. It is a settled preposition that where the prosecution has proved that the accused had demand and accepted the bribe and the recovery of the bribe money is also effected, the court would certainly draw the statutory presumption u/S. 20 of the POC Act. It is also pertinent to mention here that unless the presumption is disproved, dispelled or rebutted, the court can treat the presumption as tantamounting to proof. It is also advantageous to refer illustration (a) of Section 114 of Evidence Act which provides that the court may presume that, " a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession."
C C No. 32/12 CBI Vs. J P Singh Page no. 70 71
76. That illustration can profitably be used in the present context as well when prosecution brought reliable material that tainted currency notes were recovered from the possession of accused.
77. On consideration of the totality of the circumstances of the case, the CBI has been able to establish on the basis of evidence on record that accused J P Singh had demanded and accepted the bribe amount from the complainant in lieu of the delivery of cheque Ex.PW 4/A, and is therefore, guilty of the offence U/s. 7, 13(2) r/w Sec. 13(1)(d) of PC Act, 1988 and convicted accordingly.
Announced in the open Ravinder Kaur
court on 30.10.2012 Special Judge ( PC Act)
CBI-03,Saket Courts,
New Delhi.
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72
CC no. 32/12
CBI Vs Jay Prakash
30102012
Present: Shri Umesh Chandra Srivastava, Ld. Senior PP for CBI.
Accused on bail with counsel Shri Rahul Singh.
Vide my separate judgment announced in the open court today, accused is convicted for having committed offence u/s 7 and section 13 (2) r/w section 13 (1) (d) PC Act.
Case to come up for arguments on sentence on 011112 at 2 pm. Ravinder Kaur Special Judge ( PC Act) CBI03,Saket Courts, New Delhi/30.10.2012 C C No. 32/12 CBI Vs. J P Singh Page no. 72 73 CC no. 32/12 CBI Vs Jay Prakash 01112012 Present: Shri Umesh Chandra Srivastava, Ld. Senior PP for CBI.
Convict from JC along with counsel Shri Rahul Singh.
Vide my separate order on sentence announced in the open court today, convict is sentenced to RI for 3 years U/s 7 of PC Act, 1988 and to pay fine of Rs. 10,000/- , in default of payment of fine, SI for 3 months.
The convict is further sentenced to RI for 3 years U/s 13(2) r/w Sec. 13(1)(d) of PC Act, 1988 and to pay fine of Rs. 10,000/- , in default of payment of fine, SI for 3 months.
Both the sentences shall run concurrently. Benefit of Sec. 428 Cr.PC be given to the convict.
At this stage an application for suspension of sentence of convict u/s 389 Cr.PC has been moved.
Arguments heard.
Keeping in view the past conduct of the C C No. 32/12 CBI Vs. J P Singh Page no. 73 74 accused that he has attended the court regularly and that he had never misused the liberty of bail granted to him during the pendency of the trial and the fact that he has also deposited the fine of vide receipt no. 3010 dated 01-11-12, the order on sentence is suspended till 26-11-12 for filing of appeal before the Hon'ble High Court against the judgment of conviction. He is directed to furnish personal bond in the sum of Rs.50,000/- with one surety in the like amount.
Surety bond furnished by his wife who stood surety for him during the trial. The FDR receipt no. TD/CS/004 0437331 dated 10-10-07 of Rs.50,000/- of State Bank of India, Janak Puri Branch is already on record. Surety bond is accepted till 26-11-12. Intimation in this regard be also sent to Jail Superintendent.
File be consigned to Record Room Ravinder Kaur Special Judge ( PC Act) CBI03, Saket Courts, New Delhi/01112012 C C No. 32/12 CBI Vs. J P Singh Page no. 74