Delhi District Court
Central Bureau Of Investigation vs Shri Desh Deepak Gulati on 26 May, 2016
IN THE COURT OF SURINDER KUMAR SHARMA
SPECIAL JUDGE, P.C. ACT (CBI) 09, CENTRAL DISTRICT
TIS HAZARI : DELHI
CC No. 37/11
R.C. No. 38 (A)/09
Central Bureau of Investigation
Versus
Shri Desh Deepak Gulati
Son of Late Shri R.K. Gulati
R/o 350 Sainik Vihar, Pitampura
Delhi - 34.
New Address : 43, UGF, Anand Vihar
Near Saraswati Vihar, Pitampura
Delhi - 34.
Date of Institution : 08.07.2010
Date of Arguments : 25.04.2016
Date of Judgment : 26.05.2016
CC No. 37/11 Page 1 of 97
JUDGMENT
1. The accused Sh. Desh Deepak Gulati was charge sheeted by the CBI for the offences punishable under Sections 7 and 13 (2) r/w 13 (1)(d) of the Prevention of Corruption Act, 1988. He was put on trial for the said offences.
Case of the Prosecution as mentioned in the Charge sheet.
2. A case was registered with CBI, ACB, New Delhi, against the accused Desh Deepak Gulati on the complaint dated 31.07.2009 made by complainant Sh. Rajesh Mishra. At the relevant time the accused Desh Deepak Gulati was working as Executive Engineer (Vigilance), MCD at 16, Rajpur Road, Delhi. The complainant Sh. Rajesh Mishra was working as Assistant Engineer and at the relevant time, he was posted at EEMIV/SZ Division, MCD, Pushp Vihar, New Delhi.
CC No. 37/11 Page 2 of 97
3. As per the complaint made by the complainant Sh. Rajesh Mishra, the accused Desh Deepak Gulati had demanded a bribe of Rs. 30,000/ from him (the complainant) for settling a complaint against the complainant Sh. Rajesh Mishra regarding unauthorized construction and encroachment pending with the Vigilance Department of MCD. As per complaint, the said unauthorized construction and encroachment did not pertain to the period of posting of the complainant and the said unauthorized construction and encroachment was prior to the posting of the complainant in the said area. As per the complaint, the accused was trying to collect the bribe through some other Assistant Engineer who was not working under the accused.
4. After registration of the complaint, verification was conducted regarding the authenticity of the complaint, which established that the accused Desh Deepak Gulati has demanded a bribe of Rs. 20,000/ from the CC No. 37/11 Page 3 of 97 complainant Sh. Rajesh Mishra. The accused has asked the complainant to give him the bribe amount on 31.07.2009 at 5.30 p.m., near Syndicate Bank (St. Xavier's School) Civil Lines, Delhi. During the verification proceedings, conversation between the complainant and the accused was recorded in the digital voice recorder in the presence of independent witness Sh. Bibekananda Panda. The said conversation was transferred to a blank CD marked as Q1 and the verification proceedings were incorporated in Verification Memo dated 31.07.2009. Thereafter, the present case was registered on 31.07.2009 against accused Desh Deepak Gulati and Naresh Garg u/s 120 B IPC and u/s 7 of P.C. Act, 1988.
5. A trap team was constituted under the Trap Laying Officer Sh. S.K. Sinha, to nab the accused redhanded. Two independent witnesses, namely S/Sh. Binod Kumar and Sh. Bibekananda Panda joined the trap team. CC No. 37/11 Page 4 of 97
6. During the pretrap proceedings, complainant Sh. Rajesh Mishra produced the bribe amount of Rs. 20,000/ consisting of 14 currency notes of Rs. 1000/ denomination each and 12 currency notes of Rs. 500/ denomination each. All the said currency notes were treated with phenolphthalein powder. Inspector N.V.N. Krishnan demonstrated the reaction of phenolphthalein powder with Sodium Carbonate solution, which showed that the washes of the hands with the Sodium Carbonate Solution would make the solution pink in colour.
7. Independent witness Sh. Bibekananda Panda was directed to act as a shadow witness and to remain with the complainant in order to keep an eye on the complainant and the accused at the time of transaction of bribe amount. To record the conversation at the time of transaction of bribe amount, a digital voice recorder was arranged. Functioning of the said recorder was explained by Inspector Rohit Kumar. Formal voices of CC No. 37/11 Page 5 of 97 both the independent witnesses were recorded in the said recorder and thereafter, the said digital recorder was kept in the left side shirt pocket of the complainant Sh. Rajesh Mishra. The complainant was directed to switch on the recorder before contacting the accused. The complainant and the shadow witness were directed to give a signal after acceptance of the bribe amount by the accused, by scratching their heads. The complainant was also directed to give a miss call from his mobile phone to the mobile phone of TLO Sh. S.K. Sinha. Thereafter, a Handing Over Memo was prepared, wherein, all the pre trap proceedings were incorporated in the presence of independent witnesses. The said Handing Over Memo was signed by all the persons present during the pretrap proceedings.
8. Thereafter, the CBI team reached near the area of St. Xavier's School, Raj Niwas Marg, Delhi, at about 5.20 p.m. on 31.07.2009 in a private vehicle. The complainant CC No. 37/11 Page 6 of 97 Sh. Rajesh Mishra parked his vehicle outside the premises of St. Xavier's School and he stood outside the said school. The shadow witness Sh. Bibekananda Panda, as directed, took an appropriate position on Raj Niwas Marg. The other trap team members including the other independent witness took their respective positions at a safer distance, around the complainant in a scattered manner.
9. At about 5.45 p.m., a person who was later identified as the accused Desh Deepak Gulati, reached near the complainant in his car. There the accused asked the complainant to sit inside his car and demanded the bribe money. The complainant in order to engage the accused told him that the bribe amount is with the mate who would be reaching the spot within two minutes. Thereafter, the complainant alighted from the car of the accused and went towards the driver seat, took out the bribe amount and gave the same to the accused Desh Deepak Gulati, CC No. 37/11 Page 7 of 97 which the accused received with his right hand. On receiving the bribe amount by the accused, the complainant gave the predetermined signal to the trap team and also made a call on the mobile phone of Inspector Rohit Kumar. Thereafter, the trap team along with the independent witnesses, immediately rushed towards the accused. On seeing the trap team, the accused threw away the bribe amount and tried to flee by starting his car, but the complainant removed the keys of the car of the accused. Inspector S.K. Sinha, TLO disclosed his and witnesses' identity. He challenged the accused of having demanded and accepted bribe amount of Rs. 20,000/ from the complainant which the accused denied. The accused was caught hold from right and left hand wrists by Inspector Rohit Kumar and Inspector N.V.N. Krishnan, respectively. Independent witness Sh. Binod Kumar, on the direction of TLO, collected the bribe amount lying on the road.
CC No. 37/11 Page 8 of 97
10. Thereafter, the trap team started the posttrap proceedings. The denomination and serial numbers of the recovered bribe amount was tallied with the denomination and serial numbers mentioned in the Handing Over Memo and the same matched. The same were taken into possession by CBI.
11. A colourless solution of Sodium Carbonate with water was prepared and the right hand fingers of the accused were dipped in the said solution, which turned pink in colour. The said solution was transferred into a clean glass bottle, was wrapped with a cloth and sealed with the seal of CBI. The said bottle was marked as RHW and was signed by both the independent witnesses. The Digital Voice Recorder was taken back from the complainant. Its conversation was replayed in the presence of independent witnesses which confirmed the demand of bribe amount by the accused from the complainant. A rough site plan was prepared and was CC No. 37/11 Page 9 of 97 signed by both the independent witnesses and the complainant. Thereafter, due to gathering of the crowd at the spot, the CBI team along with the accused moved to the Vigilance Office of MCD, Rajpur Road, Delhi. There Sh. Rajender Singh Kaushik Assistant Director, Vigilance, MCD, was apprised of the trap who remained present during the posttrap proceedings.
12. The recorded conversation between the complainant and the accused, in the Digital Voice Recorder was transferred into a blank CD, marked as Q2. During the posttrap proceedings, at about 6.56 p.m. a telephonic conversation was held between the complainant Sh. Rajesh Mishra and Naresh Garg, A.E., MCD. The said conversation at the same time was recorded in the Digital Voice Recorder.
13. The Recovery Memo was prepared in which posttrap proceedings were mentioned. The said Memo was signed CC No. 37/11 Page 10 of 97 by the independent witnesses and the members of the trap party.
14. Investigation was carried out and statements of the witnesses were recorded. During investigation, it was found that the conversation between the complainant and Naresh Garg did not disclose the involvement of Naresh Garg regarding the demand of bribe by the accused Desh Deepak Gulati. Nor any evidence against Naresh Garg was found during investigation to substantiate the charges of demand or conspiracy of Naresh Garg with the accused Desh Deepak Gulati to obtain illegal gratification from the complainant. Hence, Naresh Garg was not chargesheeted by the CBI. After completion of the investigation and after according of requisite sanction by the competent authority u/s 19 of P.C. Act, 1988, for prosecution of accused Desh Deepak Gulati, CBI filed the chargesheet against the accused Desh Deepak Gulati on 08.07.2010.
CC No. 37/11 Page 11 of 97
15. On 16.02.2012, Charge for the offences punishable under Sections 7 and 13 (2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988, was framed against the accused Desh Deepak Gulati, by my Ld. Predecessor. The accused pleaded not guilty to the charge and claimed trial.
16.To bring home the charges against the accused, the prosecution has examined 15 witnesses in total. Evidence of the Prosecution
17. Sh. Rajesh Mishra is the complainant in the present case and is the most material witness. He has been examined as PW9 by the prosecution. He has deposed that at the relevant time i.e. in the year 2009, he was working as Assistant Engineer (Civil) in EE (MIII Division), South Zone, Delhi. In the year 2009, the accused was posted as Executive Engineer (Vigilance) CC No. 37/11 Page 12 of 97 MCD at 16, Rajpur Road, Delhi 54.
18. He stated that in the last week of June, 2009, he had received a telephonic call from the Vigilance Inspector Sh. Om Prakash, who had asked him to contact the accused Desh Deepak Gulati regarding a complaint about some unauthorized construction and encroachment in Saket area. After twothree days, in an official meeting, the complainant met Sh. Naresh Garg, Assistant Engineer (Building) South Zone, Delhi. On the asking of Sh. Naresh Garg, the complainant told him about the call received from Vigilance Department regarding the complaint which did not pertain to period of his posting. After few days, Sh. Naresh Garg had taken the complainant to the room of the office of the accused and introduced him (complainant) to the accused. Sh. Naresh Garg was known to the accused as he had worked with the accused in the past. The complainant had told the accused that he was not at fault in respect of the CC No. 37/11 Page 13 of 97 complaint pending with the accused regarding unauthorized construction and encroachment. The accused also instructed the complainant to remain in touch with Sh. Naresh Garg. The complainant has further stated that in the second week of July 2009, Sh. Naresh Garg told him that the accused Desh Deepak Gulati was asking for Rs. 50,000/, to settle the said complaint. But, Sh.Naresh Garg had convinced the accused to reduce the amount to Rs. 30,000/.
19. On 30.07.2009, the complainant had again received a call from Sh. Naresh Garg who has informed the complainant that whatever the complainant had to do, should be done by 31.07.2009. Then, the complainant assured him (Naresh Garg) that he would meet the accused on next day.
20. Thereafter, on 31.07.2009, the complainant reached the CBI office at CGO Complex, New Delhi, with an amount CC No. 37/11 Page 14 of 97 of Rs. 30,000/. There he met Sh. N.M. Singh, S.P., CBI (ACB) and on the asking of Sh. N.M. Singh, he made a written complainant against the accused stating the entire facts therein. The complaint of the complainant is Ex. PW9/A. The complaint Ex. PW9/A was marked to Inspector S.K. Sinha. The genuineness of the complaint was verified by Inspector S.K. Sinha by constituting a team of Inspector Rohit Kumar and witness Bibekananda Panda, Inspector (Service Tax). For the verification of the complaint, the complainant, Inspector Rohit Kumar, Sh. Bibekananda Panda and Sh. S.K. Sinha left the CBI Office at 10.30 10.40 a.m. to proceed to 16, Rajpur Road, New Delhi. Before leaving the CBI office, an empty Digital Voice Recorder was arranged in which the CBI officials also recorded the introductory voice of witness Sh. Bibekananda Panda. They reached near 16, Rajpur Road, New Delhi, at 11.30 a.m. and parked their vehicle near a shop at some distance from 16, Rajpur Road. Then, Inspector Rohit Kumar after switching on CC No. 37/11 Page 15 of 97 the Digital Voice Recorder, put it in the pocket of the complainant. He also instructed the complainant to go in the office of the accused along with Sh. Bibekananda Panda. At the Reception of the office of the accused, the complainant got issued an entry pass (Ex. PW3/A) for entering the office with Sh. Bibekananda Panda. He had also put his signatures on some register before entering the office of the accused. The complainant along with Sh. Bibekananda Panda went in the office of the accused Desh Deepak Gulati. At that time, the accused was not in his office and three persons were sitting in his room. The complainant asked the said persons about the accused, who informed that the accused Desh Deepak Gulati had gone to attend a meeting and they were also waiting for him (accused) to return. After some time when the accused Desh Deepak Gulati returned to his room, first he attended the other persons who were already sitting in his room. After the said persons had left the room of the accused, the complainant had asked the accused as to CC No. 37/11 Page 16 of 97 how he would settle the complaint. Accused Desh Deepak Gulati inquired about Sh. Bibekananda Panda who was accompanying the complainant. The complainant told that he was a Junior Engineer. The accused Desh Deepak Gulati asked Sh. Bibekananda Panda to leave the room. After Sh. Bibekananda Panda had left the room, the accused asked the complainant, if he (complainant) had been sent by Sh. Naresh Garg. To which the complainant replied in affirmative. The accused Desh Deepak Gulati also asked the complainant as to why he had not brought Sh. Naresh Garg along with him. The complainant replied that Sh. Naresh Garg had told him (complainant) that the accused was asking for Rs. 30,000/ and that if the complainant wanted to further reduce the amount of Rs. 30,000/, he (complainant) should directly talk to the accused. Then, the accused told the complainant that he himself would talk to Sh. Naresh Garg. Then, on the request of the complainant, the bribe amount was reduced to Rs. 20,000/ or CC No. 37/11 Page 17 of 97 Rs. 25,000/. The complainant had also asked the accused, if the money was to be given to the accused then and there. The complainant further told the accused that the money was lying in the vehicle with Site Supervisor. Thereafter, the accused asked the complainant to meet him in the evening at 5.30 p.m. near the Syndicate Bank at Raj Niwas Marg, Delhi. The accused also took the phone number of the complainant and gave a miss call from his phone to the mobile phone of the complainant, so that the complainant gets the mobile number of the accused. After that the complainant left the room/office of the accused. Outside the said room, Sh. Bibekananda Panda was waiting for the complainant. Both of them came out of the building and went to the place where the vehicle was parked by CBI officials. Then, Inspector Rohit Kumar took out the Digital Voice Recorder from the pocket of the complainant and switched it off and they left for CBI office. CC No. 37/11 Page 18 of 97
21. Inspector Rohit Kumar prepared the CD of the said conversation recorded in the Digital Voice Recorder and took the same to Sh. N.M. Singh, S.P. CBI. During the verification proceedings of the complaint, it was established that the accused Desh Deepak Gulati has agreed to receive Rs. 20,000/ instead of Rs. 30,000/, as bribe amount. The said verification was approved by Sh. N.M. Singh, S.P., CBI, ACB, New Delhi.
22. In order to nab the accused Desh Deepak Gulati, red handed, a trap team was constituted under the leadership of Inspector S.K. Sinha (TLO). Sh.N.V.N. Krishnan Inspector CBI and another independent witness Sh. Binod Kumar also joined the trap team. The complainant was carrying an amount of Rs. 30,000/ with him, but he was asked to deposit the remaining amount of Rs. 10,000/ with the CBI officials, which was to be returned to the complainant after the proceedings of trap were over. During the pretrap proceedings, the serial CC No. 37/11 Page 19 of 97 numbers of the currency notes, amounting to Rs. 20,000/, which the complainant was carrying were noted down in a memo. The currency notes consisted of fourteen notes of Rs. 1000/ denomination each and twelve notes of Rs. 500/ denomination each. On the said currency notes of Rs. 20,000/ Phenolphthalein powder was applied by Inspector Sh. N.V.N. Krishnan. With the help of independent witness Sh. Binod Kumar, he demonstrated that when the currency notes with phenolphthalein powder are touched by a person and thereafter the hand wash of the person is taken in the Sodium Carbonate solution, the said solution turns pink in colour. The solution was thereafter thrown away and all the persons present there washed their hands with soap. Sh. Binod Kumar had kept the said currency notes in the left side pocket of the pant of the complainant. A Digital Voice Recorder was also arranged, wherein, the introductory voice of both the independent witnesses was recorded. A trap kit was prepared containing Sodium CC No. 37/11 Page 20 of 97 Carbonate, water, utensils, testtubes and stationary etc. by CBI Officials. A Handing Over Memo Ex. PW1/A was prepared before leaving the CBI office, which bears signatures of complainant at points C1 to C3. Thereafter, the trap team, both the independent witnesses and the complainant left the CBI office in two vehicles. One vehicle was of CBI, in which Sh. S.K. Sinha, Inspector N.V.N. Krishnan, Ms. Sapna Duggal and Sh. Bibekanand Panda, seated. The other vehicle was of the complainant, in which Inspector Rohit Kumar and Sh. Binod Kumar seated.
23. It is further deposed by the complainant that they reached near L.G. House, Delhi, at 5.20 p.m., on 31.07.2009. After reaching the spot, Inspector Rohit Kumar put the Digital Voice Recorder in the left side pocket of the shirt of the complainant, after switching it on. All the team members took their positions. The complainant was instructed by Inspector Rohit Kumar and CC No. 37/11 Page 21 of 97 Inspector S.K. Sinha that after the transaction of the bribe amount was over, the complainant had to give them the signal by scratching his head and also by giving a miss call. The complainant parked his vehicle near the Syndicate Bank, Raj Niwas Marg, Delhi, and waited for accused. The accused Desh Deepak Gulati reached the spot at 5.40 p.m. in his car, which he himself was driving. The accused asked the complainant to sit in his car. After the complainant sat in the car of the accused, the accused asked the complainant 'La De'. To this the complainant replied that the money was with the 'Mate' who was sitting in his car. Thereafter, the complainant alighted from the car of the accused and went back to his car. After sometime, he came back to the driver's seat side of the car of the accused and handed over the tainted money to the accused, which the accused accepted with his right hand. The complainant asked the accused to count the said money and meanwhile he gave the predetermined signal by scratching his head and also CC No. 37/11 Page 22 of 97 gave a miss call to Inspector Rohit Kumar. Then, the accused asked the complainant as to whom he had brought along with him, to which the complainant replied that no one was with him. Then, the accused threw away the bribe amount and tried to flee in his car. But, the complainant took out the key of the car of the accused from its ignition point. Then, the accused came out of his car and tried to run away. But, by that time, the CBI team reached at the car of the accused and apprehended the accused from his shoulder. Inspector N.V.N. Krishnan prepared the solution of Sodium Carbonate and asked the accused to dip the fingers of his right hand in the said solution. As soon as the accused dipped his right hand fingers in the solution, it turned pink in colour. The said solution was sealed in a bottle on which signatures of both the independent witnesses were taken. Inspector Rohit Kumar took out the Digital Voice Recorder from the pocket of the complainant and switched it off. Thereafter, TLO Sh. S.K. Sinha prepared the site plan of the spot CC No. 37/11 Page 23 of 97 which is Ex. PW1/D, upon which signature of the complainant were taken. Thereafter, the trap team decided to move to 16, Rajpur Road, office of the MCD, as it had become difficult to carry on the rest of the post trap proceedings at the spot due to gathering of the crowd.
24. The complainant further stated that on reaching the third floor of the office of the accused, Inspector Rohit Kumar transferred the recording from the Digital Voice Recorder to a CD by using his laptop. The said CD was sealed and signed by the complainant and the independent witnesses. In another room of the said office voice sample of the accused was taken. Search of the car of the accused, his purse and his office almira was taken by CBI officials. Ex. PW1/C (Recovery Memo) bears the signatures of the complainant at points D1 to D4.
25. The complainant further deposed that during the post CC No. 37/11 Page 24 of 97 trap proceedings in the office of the accused, he received a call from Sh. Naresh Garg. The said call was recorded on the asking of Inspector Rohit Kumar. On the direction of Inspector Rohit Kumar, the complainant also asked Sh. Naresh Garg to come to 16, Rajpur Road, Delhi. But, Sh. Naresh Garg expressed his inability to come. The complainant also asked Sh. Naresh Garg to tell his residential address, but Sh. Naresh Garg refused to tell the same. Thereafter, the complainant and Inspector Rohit Kumar in order to contact Sh. Naresh Garg, left for Green Park. On reaching Green Park, the complainant tried to contact Sh. Naresh Garg on phone, but his phone was switched off. On the asking of Inspector Rohit Kumar, the complainant tried to get the residential address of Sh. Naresh Garg, but all he could find was that Sh. Naresh Garg residing in DDA Flats at Safdarjung Enclave, Delhi. At Safdarjung Enclave, they tried to locate the house of Sh. Naresh Garg till 11.30 p.m., but of no avail. Thereafter, on the instructions of Sh. N.M. CC No. 37/11 Page 25 of 97 Singh, they returned to CBI office.
26. The complainant has stated that the currency notes which were thrown by the accused, were picked up by independent witness Sh. Binod Kumar and the serial numbers of the said currency notes were tallied with the serial numbers already noted down in the Handing Over Memo. On tallying, it was found that the serial numbers of the tainted currency notes matched with the serial numbers already noted down in the Memo before leaving the CBI office. The conversation between the complainant and Sh. Naresh Garg was transferred to a CD by Inspector Rohit Kumar and the same was also sealed. Before leaving the CBI Office, the complainant collected his remaining amount of Rs. 10,000/ which he had deposited with the CBI officials before proceeding to the spot.
27. Thereafter, on 19.08.2009, the complainant reached the CC No. 37/11 Page 26 of 97 CBI office for preparation of transcript of the CD. At that time independent witness Sh. Bibekanand Panda and Sh. Naresh Garg were already present. In their presence, CD was played and the complainant identified the voices of the accused, Sh. Naresh Garg and his own voice. The transcripts of the CD (Ex. PW1/E, Ex. PW1/F and Ex. PW9/B) were prepared simultaneously. Ex. PW9/C is the FIR bearing signature of the complainant at point A. He identified the Seizure Memo Ex. PW9/D vide which visitor's pass was seized.
28. The complainant has identified the tainted currency notes Ex. P1 (colly.) which were handed over to the CBI by him. He identified the bottle Ex. P2, cloth wrappers Ex. P4 and P5, the CD pertaining to the recording at the office of the accused during the verification of the complaint. He also identified the CD Q2 (P6), cloth wrapper Ex. P7. The said CD pertains to the recording of the trap proceedings. He also identified the CD Q3 (Ex. CC No. 37/11 Page 27 of 97 P8) and cloth wrapper Ex. P9. The said CD pertains to the posttrap conversation of the complainant with Sh. Naresh Garg. The complainant also identified the voices recorded in CD Ex. P4, CD Ex. P6 (Q2).
29. PW1 is Sh. Bibekananda Panda. He was a member of the trap team and was deputed as shadow witness. He also accompanied the complainant during the verification of the complaint. At the relevant time, he was posted as Inspector in Service Tax, Service Tax Commissionerate, 17 B, IAEA House, I.P. Estate, New Delhi. He stated that on the direction of Additional Commissioner (Personnel and Vigilance), Service Tax, Service Tax Commissionerate, he reported in the office of CBI on 30.7.2009. There he was directed to come on 31.07.2009 at 9.30 a.m. in the CBI office. On 31.07.2009, one person, namely Sh. Rajesh had come to the CBI office. He was explained by the CBI officers that Sh. Rajesh had some complaint against his senior officer Mr. Gulati. The CC No. 37/11 Page 28 of 97 CBI officials have briefed him about the nature of complaint that Mr. Gulati, senior officer of Sh. Rajesh was demanding bribe from him. But, he was not told the amount of bribe. He was asked to accompany the complainant along with some CBI officers to the office of the accused Desh Deepak Gulati, for the verification of the complaint. Sh. Bibekananda Panda along with the complainant and CBI officers went to the MCD office at Rajpur Road, Delhi. PW1 Sh. Bibekananda Panda has corroborated the testimony of PW9 i.e. the complainant, regarding the verification of the complaint as well as the trap conducted on 31.07.2009 by the CBI. He has also stated that in the MCD Office, during the posttrap proceedings, he had tallied the serial numbers of the tainted currency notes with the serial numbers which had already been noted down by CBI officials in the Handing Over Memo, before leaving the CBI office. On tallying, all the serial numbers of the currency notes recorded in the Memo matched with the serial numbers of the currency CC No. 37/11 Page 29 of 97 notes, which were picked up by another independent witness Sh. Binod Kumar, from the spot.
30. PW1 Sh. Bibekananda Panda further stated that on 19.08.2009, he and Sh. Binod Kumar went to CBI Office, where the complainant and Sh. Naresh Garg were also present. There the transcripts of voice recordings, recorded during the proceedings on 31.07.2009 were prepared and he (PW1) had identified his voice and the voice of the accused Desh Deepak Gulati. Regarding Sh. Naresh Garg, PW1 has deposed that Naresh Garg was interrogated by the CBI officials, regarding his involvement, either directly or indirectly, with the accused.
31. PW1 Sh. Bibekananda Panda stated that the site plan Ex. PW1/D was prepared at the spot and bears his signatures. The transcripts Ex. PW1/E and PW1/F were prepared on 19.08.2009 and the same bear his signatures. The ArrestcumPersonal Search Memo Ex. CC No. 37/11 Page 30 of 97 PW1/G, of the accused was prepared in the MCD office and the same bears his signature. Ex. PW1/H is the Car Search Memo which was prepared in his presence and bears his signatures. Ex. PW1/I is the Transcription cumVoice Identification Memo dated 19.08.2009 which bears his signatures. He stated that vide Ex. PW1/J the specimen voice of Sh. Naresh Garg was taken in the CBI office on 19.08.2009 and the same bear his signature. PW1 also tallied the serial number of tainted currency notes before the Court with the serial number of the currency notes mentioned in the Handing Over Memo Ex. PW1/A, which were found matching. He also identified the bottle Ex. P2 and the cloth wrapper Ex. P3. PW1 also identified his signatures on CDs Ex. P4, Ex. P6, Ex. P10, Ex. P12 and on cloth wrappers Ex. P5 and Ex.P7, Ex. P9, Ex. P11 and Ex. P13. PW1 further deposed that CD Ex. P8 pertains to the telephonic conversation between Sh. Naresh Garg and the complainant, in the MCD office.
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32. PW2 is Sh. Binod Kumar. He was an independent witness engaged by the CBI and was a member of the trap team. He deposed that on 31.07.2009, he was working as Inspector with Food & Supply Department of NCT of Delhi. He has stated that on 31.07.2009 he had visited the CBI office. There, he met Inspector S.K. Sinha who asked him to become a witness in a case. The complaint of Sh. Rajesh Mishra was shown and explained to him. At that time, Sh. Panda, the complainant and three or four officers of the CBI were also present. He was told about the laying of a trap to apprehend the accused Desh Deeplak Gulati. Sh. Binod Kumar has corroborated the testimony of the complainant PW9 Sh. Rajesh Mishra and PW1 Sh. Bibekananda Panda with respect to the trap laid by the CBI to apprehend the accused Desh Deepak Gulati. He has stated that he had tallied the serial numbers of the tainted currency notes with the serial numbers of the currency CC No. 37/11 Page 32 of 97 notes which have already been recorded in the Handing Over Memo Ex. PW1/A.
33. PW2 Sh.Binod Kumar has stated that the seal which was put on Recovery Memo Ex. PW1/C was handed over to him and the same bear his signatures. Arrest cumpersonal search memo Ex. PW1/G, Car search cumSeizure Memo Ex.PW1/H and Site Plan Ex. PW1/D also bear his signatures.
34. He has further stated that on 19.08.2009, he went to the CBI office where his voice, voice of Sh. Panda and voice of one other person with whom the accused had talked over the phone, was recorded and CD of the same was also prepared. On the said CD his signatures were taken. He has stated that the transcripts Ex. PW1/E and Ex. PW1/F pertain to the recording of voices of Sh. Panda, Gulati and his (Binod Kumar) which were recorded on 31.07.2009 at Vigilance Branch, MCD Office. The said CC No. 37/11 Page 33 of 97 exhibits bear his signatures. Transcription cum Voice Identification Memo Ex. PW1/I, Specimen Voice Recording Memo Ex. PW1/J also bear his signatures.
35. He has also deposed that on 19.08.2009, the conversation which took place on 31.07.2009 between the accused and Sh. Naresh Garg was reduced into writing. He further stated that on 19.08.2009 Sh. Naresh Garg was also present in CBI office and his voice was recorded and the same was reduced into writing, on which he (PW2 Binod Kumar) put his signatures.
36. He further stated that Ex. P2 is the hand wash of the accused taken at the spot and Ex. P3 is the cloth wrapper, bearing his signatures. The CDs Exs. P6, P8, P10, P12 and their cloth wrappers Exs. P7, P9, P11 and P13 bear his signatures .
37. PW2 Sh. Binod Kumar was crossexamined by the Ld. CC No. 37/11 Page 34 of 97 P.P. for CBI as he had partly resiled from his statement recorded u/s 161 Cr.P.C. In his crossexamination conducted by the Ld. P.P., he admitted that he stated in his statement made to the Investigating Officer that 14 currency notes of the denomination of Rs. 1000/ each and 12 currency notes of denomination of Rs. 500/ each were produced by the complainant. He also admitted it to be correct that the serial numbers of the said currency notes were not noted in the Register, but on a paper i.e. Handing Over Memo Ex. PW1/A. He admitted that before leaving the CBI office, his introductory voice and that of Sh. Panda had been recorded in a Digital Voice Recorder which was put in the pocket of the complainant Rajesh Mishra with the direction to switch it on after reaching the spot. He also admitted it to be correct that the said Digital Voice Recorder was played before recording his introductory voice and that of Sh. Panda in order to ensure that it was not having any prerecorded conversation. He also admitted that no CD was prepared CC No. 37/11 Page 35 of 97 before leaving the CBI office. He admitted that on 19.08.2009, when he visited the CBI office, the transcripts of the recorded conversations were prepared in his presence, in the presence of Sh. Bibekananda Panda and complainant Sh. Rajesh Mishra. He has identified his voice, the voice of accused D.D. Gulati and Sh. Naresh Garg. He also stated that in the MCD office, Sh. Gulati did not receive any phone call and in fact, Sh. Rajesh Mishra had a conversation with Sh. Naresh Garg. He stated that the search of the car of the accused was taken in his presence. He admitted that when he again visited the CBI office on 19.08.2009, Naresh Garg was also present there and it was Naresh Garg with whom the complainant had talked on phone in the MCD office and it was not the accused who had talked to Naresh Garg. He stated that it was correct that the proceedings as mentioned in the various Memos were conducted in the manner as stated therein. He admitted it to be correct that the seal which was handed over to him on CC No. 37/11 Page 36 of 97 31.07.2009 was produced by him on 19.08.2009 in the CBI office. He also admitted that the said seal after the CD was sealed with it, was again returned to him for producing the same in the Court. He also admitted that the said seal remained with him.
38. PW3 is Sh. Suresh Kumar. During the relevant time, he was posted as Peon in the Vigilance Department of MCD, Rajpur Road, Delhi. This witness had issued the Visitor's Pass dated 31.07.2009 Ex. PW3/A to the complainant Sh. Rajesh Mishra (plus one), to meet the accused Desh Deepak Gulati. He has proved Ex. PW3/B signed and attested by him at point A. Ex. PW3/B is the photocopy of the relevant page of the Visitor's Book wherein, the description of Visitor Pass Ex. PW3/A is mentioned, at point B.
39. PW4 is Ms. Manju Verma. At the relevant she was posted as Assistant Director (Vigilance) MCD, at 16, CC No. 37/11 Page 37 of 97 Rajpur Road, Delhi. Her job was to investigate the complaints received in the Vigilance Department of MCD. She knew the accused, who was working as Executive Engineer in the said department. She has stated that Ex. PW4/A is a photocopy of Visitor Register attested by her with an official seal. She has stated that as per entry at point X on Ex. PW4/A a Pass was issued to Sh. Rajesh Mishra (plus one), who had come to meet the accused Desh Deepak Gulati. She further stated that Ex. PW 4/B was supplied by her to the CBI, after attesting the same. Ex. PW4/B is a Vigilance File pertaining to the unit of the accused. She has stated that Ex. PW4/B bear signatures of the accused wherever the word 'E.E (Vig.)' is written. She also identified the signatures of Sh. U.B. Tripathi Director (Vigilance) on Ex. PW4/B at points Y1 to Y3 and the signatures of the accused at points X1 to X3. She stated that as per Ex. PW4/B, one Sh. Rajender Singh had filed some complaint.
CC No. 37/11 Page 38 of 97
40. PW5 is Sh. Rajender Singh Kaushik. At the relevant time, he was posted as Assistant Director in Vigilance Department, MCD, Civil Lines, 16 Rajpur Raod, Delhi. This witness has also signed Recovery Memo Ex. PW1/C. He has denied that the CDs which have been referred to in Ex. PW1/C were prepared in his presence or that the proceedings as mentioned in Ex. PW1/C were conducted in his presence. Even in his crossexamination conducted by the Ld. P.P. for CBI, this witness denied that he was present during the proceedings as mentioned in Memo Ex. PW1/C. He denied that the CDs referred to in Ex. PW1/C were prepared in his presence. He denied that all the proceedings mentioned in Ex. PW1/C were conducted in his presence.
41. PW6 is Sh. Rama Shankar Yadav, Junior Telecom Officer, MTNL. He has stated that vide Ex. PW6/A he has provided the details of telephone call of telephone No. 9968081217 to the Inspector of CBI. The said details CC No. 37/11 Page 39 of 97 are Ex. PW6/B (two sheets).
42. PW7 is Sh. R.K. Singh, Nodal Officer with Bharti Airtel Ltd. He has provided the call details of the telephone No. 9717786909 for the period from 20.07.2009 to 31.07.2009 to CBI. The said call details are Ex. PW7/A. Vide Ex. PW7/B, he had provided the call details of the telephone No. 9717788116 for the period from 20.07.2009 to 31.07.2009, to CBI. Ex. PW7/C is the call details of telephone No. 9717787940 for the period from 20.07.2009 to 31.07.2009. He has stated that Ex. PW7/D is a Customer Enrollment Form submitted by Sh. Jagdish Babu as Executive Engineer (E) 1, MCD, by which he had asked for number of connections including numbers 9717788116, 9717787940 and 9717786909. Ex. PW7/E is the copy of identity card of Sh. Jagdish Babu enclosed along with Customer Enrollment Form. Ex. PW7/F is a letter dated 07.11.2008 written by Sh. Jagdish Babu to Bharti Airtel Limited and Ex. PW7/F1 is CC No. 37/11 Page 40 of 97 a list of officers enclosed with Ex. PW7/F to whom the said telephone connections were to be handed over. He has deposed that as per Ex. PW7/F1 mobile number 9717786909 was alloted to the accused Desh Deepak Gulati, mobile number 9717788116 was alloted to Sh. Rajesh Mishra, the complainant and mobile number 9717787940 was alloted to Sh. Naresh Garg. Ex. PW7/G is a letter dated 18.09.2009 written by him (PW7) to Inspector Shyam Prakash of CBI, to whom he (PW7) has provided the above mentioned call details and call record. PW7 has admitted that on 31.07.2009 at 5.29 p.m., mobile no. 9717786909 had received a call from mobile number 9717788116 and the same lasted for eight seconds.
43. PW8 is Sh. Jagdish Babu. During the relevant time, he was posted as Executive Engineer (ElectricalI) at Town Hall, Delhi. He has corroborated the testimony of PW7 Sh. R.K. Singh regarding the allotment and activation of CC No. 37/11 Page 41 of 97 mobile connections to the officers of MCD working in Engineering Department, by Airtel.
44. He stated that vide Ex. PW8/A mobile number 9717786909 was given to the user i.e. Desh Deepak Gulati, after taking an application form from him.
45. PW10 is Sh. V.B. Ramteke. At the relevant time, he was working as Sr. Scientific Officer, Grade II (Chemistry) in CFSL, New Delhi. He has stated that one sealed bottle containing solution was received for analysis from S.P., CBI, ACB, New Delhi, along with the forwarding letter and specimen seal. He found the seal of the said bottle intact. On analysis, presence of phenolphthalein was found in the said solution. His report in this regard is Ex. PW10/A. The remnants of the solution were again sealed in the bottle with his official seal. The same were returned along with the report to the Superintendent of Police, ACB, New Delhi, vide letter Ex. PW10/B. He identified CC No. 37/11 Page 42 of 97 the bottle Ex. P2 and its cloth wrapper.
46. PW11 is Sh. K.S. Mehra. He has stated that in June 2010, he was posted as Commissioner, MCD. He was competent to remove the accused Desh Deepak Gulati, from service and had accorded the sanction for the prosecution of accused Desh Deepak Gulati, under the provisions of the Prevention and Corruption Act, vide the Sanction Order Ex. PW11/A. He has deposed that he was competent to remove from service an officer of the rank of Executive Engineer working with MCD. Before according the sanction, against the accused, he had gone through the relevant records of the investigation and after being convinced, he accorded the sanction for prosecution of the accused.
47. PW12 is Dr. Rajender Singh. During the relevant time, he was working as Principle Scientific Officer and Head of Physics and Forensic Voice Identification Division, CFSL, CC No. 37/11 Page 43 of 97 New Delhi. He has stated that on 31.08.2009, he had received five sealed parcels from S.P., CBI, ACB, New Delhi. The parcels contained the CDs pertaining to questioned voice recording and the specimen voice recording of accused Desh Deepak Gulati and Sh. Naresh Garg. He had examined the questioned voice records of accused Desh Deepak Gulati and Sh. Naresh Garg with their respective specimen voices and found that questioned voices of Desh Deepak Gulati and Sh. Naresh Garg matched with their specimen voices. In this regard, he gave his report i.e. Ex. PW12/A. The said report was forwarded to S.P., CBI, ACB, New Delhi, along with the CDs. He had identified the CDs Ex. P4, Ex. P6, Ex. P8, Ex. P10 and Ex. P12, all bearing his signatures. He had also identified the Cloth Wrappers thereof which are Ex. P5, Ex. P7, Ex. P9, Ex. P11 and Ex. P13.
48. PW13 is Sh. S.K. Sinha. He has stated that during the relevant time, he was posted as Inspector of Police in CC No. 37/11 Page 44 of 97 ACB, CBI, New Delhi. On 31.07.2009, Sh. N.M. Singh, the then S.P., ACB, CBI, had introduced him to the complainant Sh. Rajesh Mishra. Sh. N.M. Singh had shown the written complaint of the complainant to him and he was asked to verify the allegations mentioned therein. He identified the complaint Ex. PW9/A, bearing the endorsement by Sh. N.M. Singh, marking the complaint to him for verification. For the verification process of the complaint, Inspector Rohit Kumar and an independent witness Sh. Bibekananda Panda, Inspector of Service Tax have assisted him. Complaint Ex. PW9/A was shown to the independent witness, who had satisfied himself regarding the complaint of Rajesh Mishra by interacting with the complainant. Thereafter, Inspector Rohit Kumar arranged a Digital Voice Recorder and its functioning was explained to the complainant and to the independent witness. Then, the verification team left the CBI office at 10.50 a.m. for the place of posting of the accused at Rajpur Road, Delhi. They reached the MCD CC No. 37/11 Page 45 of 97 office at Rajpur Road at 11.40 a.m. and they parked their vehicle. The Digital Voice Recorder was put in the left side pocket of the complainant. The complainant and the independent witness were asked to meet the accused in his office room. The independent witness was asked to act as a shadow witness, in the disguise of a newly recruited J.E. of MCD. Inspector Rohit Kumar and Inspector S.K. Sinha stood outside the office of the accused. After some time, when the complainant and the shadow witness came out from the office, the Digital Voice Recorder was taken out from the pocket of the complainant and was switched off. The complainant informed that the accused had demanded bribe from him and has asked the complainant to meet him near Syndicate Bank, St. Xavier's School, Civil Lines, Delhi, at 5.30 a.m. to handover the bribe amount. Then, the verification team came back to the CBI office. There, Inspector Rohit Kumar transferred the recorded conversation of the accused and the complainant, from CC No. 37/11 Page 46 of 97 the Digital Voice Recorder to new blank CD. The said CD was sealed and signed by the complainant and the independent witness. All the proceedings were noted in the Verification Memo Ex. PW1/B, bearing his signatures. He stated that through verification proceedings, CBI came to know that the accused Desh Deepak Gulati was demanding the bribe amount from the complainant through Sh. Naresh Garg, Assistant Engineer, MCD. After verification of the complaint, FIR (Ex. PW9/C) was registered against the accused Desh Deepak Gulati and also against Sh. Naresh Garg, Assistant Engineer, South Zone, Building Department, Green Park, New Delhi, under section 120B IPC and section 7 of P.C. Act,1988, by the then S.P., CBI, ACB, New Delhi. The FIR Ex. PW9/C was endorsed to him (PW13) for investigation.
49. Thereafter, for laying the trap, a team was constituted, consisting of some CBI officials and independent witnesses Sh. Bibekananda Panda and Sh. Binod Kumar. CC No. 37/11 Page 47 of 97 During the pretrap proceedings, the complaint Ex. PW9/A was shown to the independent witnesses. Then, the complainant produced 26 currency notes amounting to Rs. 20,000/, which included 14 currency notes in the denomination of Rs. 1000/ each and 12 currency notes in the denomination of Rs. 500/ each. Then, Inspector N.V.N. Krishnan treated all the said notes with phenolphthalein powder and with the help of witness Binod Kumar, demonstrated that when the currency notes treated with phenolphthalein powder come in contact with the solution of Sodium Carbonate, the solution turns pink in colour. Thereafter, the pink colour solution was thrown away. The phenolphthalein powder treated currency notes were put in the left side front pocket of the wearing pant of the complainant. Inspector Rohit Kumar arranged and explained the functioning of a Digital Voice recorder. The said recorder was kept in the left side front pocket of the wearing shirt of the complainant. Remaining Phenolphthalein powder was thrown away. All the team CC No. 37/11 Page 48 of 97 members including the complainant and the independent witnesses washed their hands with soap and water for proceeding for the spot. A trap kit was prepared. Thereafter, a Handing Over Memo Ex. PW1/A was prepared by PW13, wherein, all the pretrap proceedings and the serial numbers of the tainted currency notes were recorded. Independent witness Sh. Bibekanand Panda was directed to follow the complainant closely and by concealing his presence. The other independent witness and the trap team members were directed to be present near the complainant in a scattered manner. The complainant and the independent witness Sh. Bibekananda Panda were directed to give a signal by scratching their head with their hands, after acceptance of the bribe money by the accused. Then, all of them left the CBI office at around 4.30 p.m. for Syndicate Bank near St. Xavier's School, Civil Lines, Delhi. The complainant was in his own car and the CBI officials were in a hired vehicle. They all reached the spot at about CC No. 37/11 Page 49 of 97 5.20 p.m. The complainant parked his car near the said school at Raj Niwas Marg and started waiting for the accused to come. Independent witness Sh. Bibekananda Panda was told to remain as near as possible to the complainant. The other team members also scattered themselves around the complainant, waiting for accused to come. After some time, the accused came in his car and stopped near the complainant. Some interaction took place between them and thereafter the complainant also sat in the car of the accused. After a while, Inspector Rohit Kumar received a missed call on his mobile phone from the complainant, who alerted the whole trap team. Inspector S.K. Sinha rushed towards the car of the accused. On seeing them, the accused threw away the bribe amount on the road and tried to flee. But, the complainant took out the keys of the car of the accused from its ignition point. CBI trap team surrounded the car of the accused. Inspector S.K. Sinha disclosed the identity of the trap team members and the CC No. 37/11 Page 50 of 97 independent witnesses. The accused was challenged of having demanded and accepted bribe amount from the complainant and he denied having demanded or accepted any bribe amount from the complainant. The accused was caught hold by Inspector Rohit Kumar and Sh. N.V.N. Krishnan from his right and left hand wrists, respectively. Independent witness Sh. Binod Kumar collected the tainted bribe money from the road. He with the help of independent witness Sh. Bibekananda Panda tallied the serial numbers of the tainted currency notes with that of mentioned in the Handing Over Memo and counted the recovered bribe money. The said recovered bribe money found tallied and was taken in possession. The Digital Voice Recorder was also taken back from the complainant and was switched off. At the spot, a colourless solution of Sodium Carbonate and water was prepared in a clean glass tumbler, wherein, the right hand fingers of the accused were dipped. As a result of which, the said solution turned pink in colour. The said wash CC No. 37/11 Page 51 of 97 was transferred in a clean glass bottle. This bottle was sealed and signed by the complainant and the independent witnesses, at the spot, and was marked as RHW. He prepared the rough site plan Ex. PW1/D at the spot. Due to assembling of the crowd at the spot, the trap team, complainant, both independent witnesses and the accused (in custody), left the spot for MCD office at Rajpur Road, Delhi, i.e. the place of posting of the accused. There, the search of the office room of the accused and his car was conducted. Inspector Rohit Kumar transferred the recorded conversation of the Digital Voice Recorder, in a blank CD. The same was sealed and was signed by the complainant and the independent witnesses.
50. In the meantime, the complainant received a call on his mobile phone from Sh. Naresh Garg, the same was recorded in the Digital Voice Recorder, at the same time. Inspector Rohit Kumar also transferred the said CC No. 37/11 Page 52 of 97 conversation in the recorder into a blank CD. The same was sealed and signed by the complainant and the independent witnesses.
51. PW13 Sh. S.K. Sinha had identified his signatures on Ex. PW1/G the Arrest and Personal Search Memo, on Ex. PW1/H the Car SearchcumSeizure Memo, Ex. PW1/C the Recovery Memo. He stated that a brass seal of CBI by using which the exhibits were sealed, was handed over to independent witness Sh. Binod Kumar for safe custody. The trap proceedings concluded at about 8.30 p.m. on 31.07.2009 and the trap team along with the accused left for CBI office.
52. PW13 Sh. S.K. Sinha also identified the letter and certificate Ex. PW13/A1 and A2, respectively, vide which one sealed bottle Mark RHW and the other exhibits were sent to CFSL for examination. Ex. PW13/A1 and Ex. PW13/A2 bear the signatures of Sh. N.M. Singh, the then CC No. 37/11 Page 53 of 97 S.P., ACB, CBI. He has identified Ex. P2 a sealed bottle, containing the right hand wash of the accused, bearing his(PW13) signature. Ex. P4 and Ex. P5 were seized by him in the presence of witnesses. The same bear his (PW13) signatures . He has stated that he had sealed the CD Ex. P8 with cloth wrapper Ex. P9 in the presence of the witnesses after the recordings in the Digital Voice Recorder were transferred in it. He marked the CD as Q3. Ex. P8 and Ex P9 bear his signatures. CD Ex. P6 was also sealed by him in the presence of the witnesses after the recordings in the Digital Voice Recorder had been transferred in it. He had put mark Q2 on it. Ex. P6 and Ex. P7 bear his signatures. Ex. P10 is the CD and the Ex. P11 is a cloth packing in which the CD was sealed by him in the presence of witnesses and the same bear his signatures. Later, the investigation of the case was transferred from him to Inspector Sh. Shyam Prakash, by the then S.P., CBI, ACB, New Delhi. CC No. 37/11 Page 54 of 97
53. PW14 is Inspector Rohit Kumar. He was the member of the trap team. At the relevant time he was Inspector, CBI, ACB,New Delhi. He had assisted Inspector S.K. Sinha in the trap verification and trap proceedings on 31.07.2009. He has corroborated the testimony of the complainant and of TLO Sh. S.K. Sinha with respect to the verification proceedings of the complaint, the trap proceedings and the post trap proceedings, all conducted on 31.07.2009 by the CBI officials. He also identified the case properties of this case. He has stated that Sh. Bibekananda Panda was available in the office as per the roaster, which the CBI keeps for calling the witnesses from different department.
54. PW15 is Sh. Shyam Prakash. At the relevant time, he was posted as Inspector ACB, CBI, New Delhi. He was the second Investigating Officer of the case. He has stated that initially, Sh. S.K. Sinha, DSP was the Trap Laying Officer in this case. After 23 days of the trap, the CC No. 37/11 Page 55 of 97 case was transferred to him for investigation. During the investigation, he had examined and recorded the statements of the trap team members, complainant, independent witnesses and other witnesses. He had collected the exhibits from the CFSL which were forwarded for the expert opinion and made them the part of the record. He had prepared the transcription of spot conversation recorded during verification of complaint dated 31.07.2009 which is Ex. PW1/E. The transcription of spot conversation between the accused and the complainant, at the time of trap was also prepared by him on 19.08.2009 which is Ex. PW1/F. The transcription of post trap conversation between the complainant and Sh. Naresh Garg was also prepared by him which is Ex. PW9/B. This transcription was prepared by him in CBI office on 19.08.2009 in the presence of both the independent witnesses. He had also prepared Ex. PW1/I which is the TranscriptioncumVoice Identification Memo dated 19.08.2009 of the complainant Sh. Rajesh Mishra, CC No. 37/11 Page 56 of 97 the accused Sh. Desh Deepak Gulati and Sh. Naresh Garg, in the presence of the complainant and both the independent witnesses. The Specimen Voice Recording Memo Ex. PW1/J of Sh. Naresh Garg was also prepared by him, in the presence of independent witnesses. He has also identified the forwarding letter of the then S.P. Sh.N.M. Singh vide which the Compact Discs were sent to CFSL for expert opinion, bearing the signature of the then S.P. and the same is Ex. PW15/A. The certificate attached to it is Ex. PW15/B.
55. During the investigation, he has also collected Ex. PW4/A, Ex. PW9/D and PW3/A. He also obtained sanction for prosecution of the accused from the competent authority. He prepared the chargesheet and filed the same in the Court, along with the list of witnesses, list of documents and the documents collected during the investigation.
CC No. 37/11 Page 57 of 97 Statement of Accused u/s 313 Cr.P.C.
56. The statement of the accused was recorded u/s 313 Cr.P.C. The accused in his statement has stated that he is innocent and has been falsely implicated in this case by the CBI at the instance of the complainant. He never demanded or accepted any money from the complainant Sh. Rajesh Mishra or from anybody else. He has stated that the false statements and documents have been produced by the Investigating Officer to make out a false case against him. The Investigating Officer has also concealed the material evidence. The witnesses have not supported the case of the CBI on material aspects. Sanction was not granted by the competent person and the same has been granted only on the basis of the draft proforma supplied by the CBI. The sanction has been accorded without the application of mind.
57. He has stated that the complainant had lodged a false complaint against him because after the joining of CC No. 37/11 Page 58 of 97 the accused in the Vigilance Department, the complainant was apprehensive of reopening of his files pending in the Vigilance Department by which penalty of dismissal from service was to be imposed upon him. Therefore, in order to create undue pressure upon the staff of Vigilance Department and out of his frustration, the complainant in connivance with his friends in CBI, lodged the false and fabricated complaint against the accused. The accused has denied the allegations against him and alleged his false implication in the case. He stated that the witnesses have falsely deposed against him. The Investigating Officer has not conducted the investigation fairly. Evidence led by the accused
58. In defence evidence, accused Sh. Desh Deepak Gulati has examined four witnesses.
59. Sh. Pankaj Sharma Ahlmad in the Court of Ms. Geetanjali, MM Mahila Court, East, KKD Courts, Delhi, CC No. 37/11 Page 59 of 97 was examined as DW1. He has brought the summoned record pertaining to FIR No. 288/2010 P.S. Shakarpur, u/s 323/354/341/384/451/34 IPC. He has stated that the chargesheet and supplementary chargesheet were filed by the Investigating Officer on 25.09.2014 in the Court of Ms. Vandana Jain Ld. MM, KKD Courts, Delhi. The certified copy of the chargesheet is Ex. DW1/A, certified copy of FIR is Ex. DW1/B, certified copy of Supplementary chargesheet is Ex. DW1/C and certified copies of order sheets dated 23.02.2011 to 22.06.2015 are Ex. DW1/D (colly.).
60.Sh. Ajay Kumar Verma Assistant Law Officer, MCD, was examined as DW2. In July, 2015, he was posted as Assistant Law Officer, EDMC and was functioning as PIO. He has stated that the application for providing the information under RTI Act, was received in the Vigilance Department on 25.06.2015. The copy of the said application is Ex. DW2/A. Sh. Ajay Kumar Verma had CC No. 37/11 Page 60 of 97 provided the information sought by the applicant/accused vide letter dated 29.07.2015 Ex. DW2/B, after receiving direction from the Appellate Authority. The attested copy of the letter dated 04.02.2006 supplied to him by Ms. Rajni Sahdev ALO, Vigilance is Ex. DW2/C and the attested copy of the office order dated 27.08.2014 is Ex. DW2/D.
61. Dr. A.K. Kaushik Addl. Director Department of Electronics & Information Technology, Ministry of Communication & Information Technology was examined as DW3. He has stated that in August 2013, he was working as CPIO. He has brought the file pertaining to RTI application no. 14(187)/2013ESD, filed by Sh. Kulwinder Singh. The copy of said application is Ex. DW3/A. Dr. A.K.Kaushik had provided the information on 07.10.2013 to the applicant Sh. Kulwinder Singh, which is Ex. DW3/C. CC No. 37/11 Page 61 of 97
62. Sh. J.S. Tigga UDC at SDMC, Civic Centre, Vigilance Department, MCD, was examined as DW4. This witness has brought the summoned prosecution file of accused D.D. Gulati from the office of SDMC, Vigilance Department, New Delhi, containing CBI report along with forwarding letter, list of documents and list of witnesses. Copy of forwarding letter is Ex. DW4/A, copy of CBI report is Ex. DW4/B, copy of list of document is Ex. DW4/C and copy of list of witnesses is Ex. DW4/D. Ex. DW4/E is the copy of letter dated 02.06.2010 requesting for according the sanction against the accused D.D. Gulati. Copy of draft sanction order of CBI is Ex. DW4/F. The summoned file also contained copy of FIR, copy of complaint dated 31.07.2009 of the complainant Sh. Rajesh Mishra, copy of Verification Memo dated 31.07.2009 and the miscellaneous documents of the accused and correspondence of MCD. He has stated that the file does not contain copy of the chargesheet, the statements of the witnesses u/s 161 Cr.P.C or the copy CC No. 37/11 Page 62 of 97 of CFSL report.
63. I have heard Sh. A.K. Kushwaha Ld. PP for CBI and Sh. Yogesh K. Verma Ld. Counsel for accused. I have also perused the file, the written submissions filed on behalf of the accused and the case law relied upon by the parties. Arguments of the Ld. P.P. for CBI
64. It was submitted by the Ld. P.P. for CBI that in this case CBI has examined as many as fifteen witnesses and all of them have supported the case of the prosecution. It was submitted that at the relevant time the complainant Sh. Rajesh Mishra was working as Assistant Engineer (Civil) in EE (MIII Division), South Zone, Delhi. The accused was posted as Executive Engineer (Vigilance), MCD. The accused demanded the bribe from the complainant for settling a complaint which was pending against Rajesh Mishra regarding some unauthorized construction/ encroachment. It was contended that from the statement CC No. 37/11 Page 63 of 97 of the complainant Sh. Rajesh Mishra and the verification proceedings conducted on 31.07.2009 by the CBI officials, it is proved that the accused had demanded the bribe of Rs. 20,000/ from the complainant to settle the complaint pending against him (complainant) in the Vigilance Department, MCD, 16, Rajpur Road, Delhi, regarding unauthorized construction and encroachment in Saket area which was under the control of the complainant. The accused had asked the complainant to meet him for the payment of bribe money near Syndicate Bank (St. Xavier's School) at Raj Niwas Marg, Delhi, on the evening of 31.07.2009. The complainant accordingly paid bribe amount of Rs. 20,000/ to the accused on his specific demand. The bribe amount consisted of fourteen currency notes of Rs. 1000/ denomination each and twelve notes of Rs. 500/ denomination each. All the said notes were treated with Phenolphthalein powder. The accused accepted the bribe amount with his right hand. The accused on seeing that some persons were rushing CC No. 37/11 Page 64 of 97 towards his car, threw away the bribe amount. The bribe amount which fell on the road as well as on the dash board of the car was recovered by the trap party. The accused was apprehended by the trap team. The fingers of the right hand of the accused were dipped in the solution of Sodium Carbonate which turned pink in colour.
65. It was submitted that both the independent witnesses i.e. PW1 Sh. Bibekananda Panda and PW2 Sh. Binod Kumar have corroborated the testimony of the complainant regarding the payment of the bribe amount by the complainant to the accused and also the recovery of the said amount from the accused. It was contended that the prosecution witnesses could not be shaken from their stand during their crossexaminations, thus, there is no reason to disbelieve the statements of the prosecution witnesses. The prosecution witnesses are consistent and have supported each other on all the material points. CC No. 37/11 Page 65 of 97 It was contended that the prosecution has been able to prove its case against the accused that he had demanded the bribe from the complainant and accepted the bribe money from the complainant in order to settle the complaint pending with Vigilance Department of MCD, 16 Rajpur Road, Delhi, where the accused was posted as Executive Engineer (Vigilance).
66. It was further contended by the Ld. P.P. that the accused at the relevant time was posted as Executive Engineer in MCD. PW11 Sh. K.S. Mehra was posted as Commissioner MCD, at the relevant time and he has accorded sanction for the prosecution of the accused. He was competent to grant sanction for the prosecution of the accused as he was competent to remove the accused from the service.
67.It was contended that all the members of the trap party have supported the prosecution case on all the material CC No. 37/11 Page 66 of 97 points. They are consistent and corroborative. From the statements of the prosecution witnesses, the case of the prosecution has been proved and therefore, the accused is liable to be convicted for the offence for which he has been charged.
Arguments on behalf of the accused (Desh Deepak Gulati)
68. The Ld. Counsel for the accused submitted that the accused is innocent as he never demanded any bribe amount from the complainant, either directly or through some other person. The accused has been falsely implicated in this case by the complainant. It was contended that some inquiries were pending against the complainant in the Vigilance Department of MCD, where the accused was posted as Executive Engineer. The complainant had apprehension that the said inquiries can be decided against him and he could get the punishment of dismissal from the service. Therefore, in order to CC No. 37/11 Page 67 of 97 create the undue pressure upon the staff of Vigilance Department, the complainant falsely implicated the accused in connivance with the CBI Officials. It was contended that this fact is clear from the statement of PW1 Sh. Bibekanand Panda. It was contended that as per the statement of complainant PW9, he went to the office of CBI on 31.07.2009 and prior to this date, he did not contact the CBI in respect of his complaint, whereas, PW1 Sh. Bibekananda Panda has stated that he was directed on 30.07.2009 by his senior officers to report to the CBI office on 30.07.2009. As the complainant himself had met the CBI officials for the first time on 31.07.2009, then how the independent witness PW1 Sh. Bibekananda Panda was asked to come to CBI office on 30.07.2009 at 2.00 p.m. This all shows that the complainant was in connivance with the CBI and the complaint was made after deliberation and manipulation.
69. It was contended that the motive of the complainant in CC No. 37/11 Page 68 of 97 falsely implicating the accused in the present case was to create pressure upon the accused and the staff of Vigilance Department, MCD, to get rid of the inquiries pending against him (complainant) in the Vigilance Department of MCD.
70. It was contended that there was no motive on the part of the accused to demand any bribe from the accused. It was submitted that the complaint file of the complainant pertaining to Saket area, which was submitted by CBI along with the chargesheet, had already been cleared on 20.07.2009 by the accused D.D. Gulati and by his senior i.e. Director of Vigilance. As no complaint/file against the complainant was pending in the office of the accused, so there was no occasion or motive for the accused to demand any bribe money from the complainant.
71. It was contended that the complaint of the complainant dated 31.07.2009 is a false one as it was written at the CC No. 37/11 Page 69 of 97 instance of the CBI. In the deposition of PW9 i.e. the complainant, he has deposed that after hearing him, the S.P., CBI had asked him to submit a written complaint stating the entire facts and also gave the complainant, a paper to write the complaint. It was submitted that the CBI did not conduct the verification proceedings to check the genuineness and authenticity of the complaint Ex. PW9/A. It was contended that as per the complaint of the complainant, the accused was demanding the bribe and was trying to collect it through another Assistant Engineer, namely Sh. Naresh Garg. But before going for verification proceedings, the CBI officials did not talk to Sh. Naresh Garg nor he was examined by the CBI to prove the facts. It was further contended that the alleged demand of money by the accused during the alleged verification proceedings has not been proved as the same has not been corroborated by the shadow witness PW1 Sh. Bibekanand Panda. It was contended that PW1 Sh. Bibekanand Panda did not overhear the conversation CC No. 37/11 Page 70 of 97 between the complainant and the accused for the reason that at the time of the alleged demand, the shadow witness was not admittedly present inside the room of the accused. Therefore, he is not a witness of alleged demand during the alleged verification proceeding.
72. It was contended that the complainant did not pay any money to the accused. As per prosecution case, the complainant was directed by the Trap Laying Officer that after payment of the money to the accused, the complainant would give a signal by scratching his head or by giving a miss call to the phone of Inspector Sinha. It is admitted by the complainant that he did not give any miss call or the predetermined signal to Inspector Sinha. Meaning thereby, he did not pay any money to the accused and for this reason he did not give any predetermined signal or miss call as directed by the TLO.
73. It was contended that the witnesses are not consistent CC No. 37/11 Page 71 of 97 regarding the time when they reached the CBI office after laying of the trap nor regarding the time when they left the CBI office. They are also not consistent regarding the timings, place, when and where and the manner in which the proceedings after laying of the trap were conducted.
74. It was contended that public witnesses Sh. Bibekananda Panda and Sh. Binod Kumar are not consistent and they have not corroborated the prosecution case. They have not supported the prosecution case on material points. Their statements cannot be relied upon as they are Govt. servants and have deposed under the fear and pressure of CBI, moreover, they are not consistent and corroborative. PW2 Sh. Binod Kumar was not supporting the prosecution case and he was crossexamined by the Ld.P.P. for CBI. Even in his crossexamination, nothing material could be elicited which can be beneficial to the prosecution case.
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75. It was contended that PW5 Sh. Rajender Singh Kaushik is allegedly a witness of the proceedings conducted in the office of the MCD on 31.07.2009, after the trap was laid. This witness has not supported the prosecution case as he has stated that no proceedings were conducted in his presence and he was asked to put his signatures on certain documents by the prosecution. It was contended that this all shows that no proceedings were conducted in the office of MCD, after the alleged trap was laid.
76. It was contended that no other witness has corroborated the testimony of PW9 i.e. the complainant. The complainant is an interested witness as he wanted the accused should be implicated in some case so that a fear and pressure is created in the mind of the staff of the Vigilance Department MCD. This all was done by the complainant in order to ensure that no action is taken against him in respect of the complaints which were pending in the Vigilance Department of MCD. It was CC No. 37/11 Page 73 of 97 contended that even otherwise, the complainant is not a reliable witness as there are so many material contradictions in his statement.
77. It was submitted that the witnesses examined by the CBI are interested witnesses and there are many contradictions in their statements. It was contended that apart from the bald testimony of PW9 the complainant, there is no document or reliable material on record to prove the demand of bribe made by the accused from the complainant on 31.07.2009. It was contended that PW1 Sh. Bibekanand Panda was neither a witness of initial demand nor the witness of demand at the spot except the recovery of money which was collected from the ground by another independent witness Sh. Binod Kumar. PW1 Sh. Bibekananda Panda has signed the documents at the instance of the CBI officials. It was submitted that the independent witnesses have not corroborated the version of the complainant and other witnesses are CBI officials CC No. 37/11 Page 74 of 97 who are interested in the success of the case. The prosecution witnesses are inconsistent and their statements are contrary to each other. It was submitted that the money was not recovered from the possession of the accused, rather it was collected from the road where it was lying scattered.
78. It was contended that as per prosecution case, the accused has raised the demand initially through Sh. Naresh Garg A.E. who was also working in MCD. It was contended that the said Naresh Garg has neither been made an accused in this case nor he has been examined as a witness. The testimony of Sh. Naresh Garg was very much relevant to prove that the accused has demanded the bribe through Sh. Naresh Garg. No explanation has been given by the prosecution as to why Sh. Naresh Garg has not been examined as a witness and therefore, a doubt is created in the story of prosecution that the accused raised a demand of bribe from the complainant CC No. 37/11 Page 75 of 97 through Sh. Naresh Garg.
79. It was contended that the complainant has stated in his statement that he had received a phone call in June, 2009 from Sh. Om Prakash Inspector (Vigilance) MCD. Sh. Om Prakash had asked the complainant Rajesh Mishra to contact the accused regarding a complaint pending against the complainant. It was contended that the prosecution has also not examined Sh. Om Prakash as a witness to corroborate the testimony of the complainant and this also creates a doubt in the prosecution story.
80. It was contended that the Investigating Officer did not conduct the investigation fairly and he is biased. Investigating Officer intentionally concealed material facts during investigation and has placed false and fabricated documents in order to falsely implicate the accused in the present case.
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81.The sanction for prosecution of the accused is not proper as the Commissioner MCD who had given the sanction for the prosecution of the accused was not the competent authority to grant the same. The proper authority to grant sanction to prosecute the accused was Municipal Corporation Delhi.
82. It was submitted that the alleged recorded conversations between the complainant and the accused are not admissible in evidence for want of certificate u/s 65B of Indian Evidence Act 2000 with respect to the electronic evidence.
83. It was contended that the prosecution has failed to prove its case as the demand of bribe by the accused has not been proved, acceptance of bribe has not been proved and the recovery of the alleged bribe money was not effected from the possession of the accused, rather it was collected from the road, where it was lying scattered. It CC No. 37/11 Page 77 of 97 was contended that the complainant is an accomplice and therefore, his uncorroborated testimony cannot be believed. Even otherwise, the testimony of complainant is not consistent and reliable. The other witnesses examined by the prosecution are interested witnesses and even otherwise, they are not consistent and corroborative. Hence, their statements cannot be relied upon. The prosecution is bad in law for want of proper sanction for the prosecution of the accused. It was contended that under all these circumstances, the accused deserves to be acquitted.
Discussion
84. To prove the charge of illegal gratification, the prosecution has to prove the demand of illegal gratification. This has been so held recently by the Hon'ble Supreme Court of India in the case of Khaleel Ahmed Vs. State of Karnataka 2016 (1) JCC 163, wherein, it was held as under: CC No. 37/11 Page 78 of 97 "17. It is a well settled position of law that demand of illegal gratification is a sine qua non for the offences under Section 7 and Section 13(1)(d). Conversely, in the absence of proof of demand of illegal gratification, the offences under Section 7 and Section 13(1)(d) cannot be made out."
85. The aforesaid view has been further endorsed by the Hon'ble Supreme Court of India recently in the judgment reported as Krishan Chander Vs. State of Delhi AIR 2016 SC 298 .
86. The complainant Sh. Rajesh Mishra who has been examined as PW9 has stated that the accused has demanded bribe from him for the settlement of the complaint against him, which was pending with the accused. At the time of verification of the complaint of the complainant, PW1 Sh. Bibekananda Panda was deputed as shadow witness. It is an admitted fact that at the time of demand of bribe by the accused, PW1 Sh.
Bibekananda Panda was not present as he had been CC No. 37/11 Page 79 of 97 asked by the accused to wait outside. Thus, the complainant is the only witness of the demand of bribe.
87. The case of the prosecution is that the complainant PW9 Sh. Rajesh Mishra is a truthful and reliable witness and his testimony does not require any corroboration. It is the case of the prosecution that the settled law is that it is not necessary for the prosecution to lead any evidence to corroborate the testimony of the complainant regarding the demand of bribe by the accused. To support his contention, Ld. P.P. for CBI has relied upon the judgment of Hon'ble Supreme Court of India reported as C.M. Sharma Vs. State of Andhra Pradesh (2013) 2 SCC (Crl) 89, wherein, it was observed that evidence of person who was required by authorities to hand over bribe money to accused in trap is not an accomplice & hence, when his evidence is found to be reliable, corroboration thereof is not necessary. It was further observed that bribe is not taken in public view and therefore, there may not be any CC No. 37/11 Page 80 of 97 person who could see the giving and taking bribe.
88. Now, the question is that whether the testimony of the complainant regarding the demand of bribe is required to be corroborated by any other independent witness. It depends upon the facts of each and every case. In case, the Court finds that the testimony of complainant is trustworthy and reliable, the Court is not required to look for any corroboration of the testimony of the complainant.
89. However, in case the Court feels that the testimony of the complainant needs corroboration, then the Court may look for the corroboration of the testimony of the complainant regarding the demand of bribe. This was so held by the Hon'ble Supreme Court of India in case reported as State of Punjab Vs. Madan Mohan Lal Verma VII (2013) SLT 180, wherein, it was observed that complainant is an interested and partisan witness concerned with success of trap and his evidence must be CC No. 37/11 Page 81 of 97 tested in same way as that of any other interested witness. It was further held that in a proper case, Court may look for independent corroboration before convicting accused person.
90. As per prosecution, the CD, wherein the conversation between the complainant and accused was recorded at the time of verification of the demand of bribe and the transcript thereof, corroborate the demand of bribe by the accused from the complainant. Admittedly, there is no certificate u/s 65 B of Evidence Act. Hence, the same has no evidentiary value in the absence of certificate u/s 65 B of Indian Evidence Act. Reliance in this regard can be placed upon the judgment of Hon'ble Supreme Court of India reported as Anvar P.V. Vs. P.K. Basheer & Ors.
AIR 2015 Supreme Court 180, wherein, it was observed that the electronic records is secondary evidence and the same is inadmissible unless requirements of Section 65B are satisfied. In the present case, there is no certificate CC No. 37/11 Page 82 of 97 u/s 65B of Evidence Act, therefore, the said CD and the transcript thereof cannot be looked into and no reliance can be placed upon the same.
91.The facts of this case are peculiar in nature. The complainant PW9 Sh. Rajesh Mishra has deposed that in the last week of June,2009, he had received a phone call from Sh. Om Prakash Inspector (Vigilance) and he (complainant) was asked by Sh. Om Prakash to contact Sh. D.D. Gulati (accused herein) regarding a complaint pertaining to the Saket Area, in respect of some unauthorized construction and encroachment. The complainant PW9 Sh. Rajesh Mishra has further stated that thereafter he had met Sh. Naresh Garg Assistant Engineer and at that time he (complainant) was in some tension on account of the message conveyed by Sh. Om Prakash to the complainant on the telephone. He told Sh. Naresh Garg that he had received a phone call from the Vigilance Department regarding a complaint and the CC No. 37/11 Page 83 of 97 said complaint did not pertain to his tenure of posting and he was being harassed. He further deposed that Sh. Naresh Garg had told the complainant that Sh. D.D. Gulati was known to him (Naresh Garg) and Sh. Naresh Garg had assured the complainant that he would go along with the complainant to meet Sh. D.D. Gulati. The complainant further deposed that he along with Naresh Garg visited the office of Sh. D.D. Gulati and met him. Then Sh. D.D. Gulati told the complainant that he would make the chargesheet and the complainant should explain his position before the Inquiry Officer. Then, on the intervention of Sh. Naresh Garg, Sh. D.D. Gulati told the complainant to remain in touch with Sh. Naresh Garg. Thereafter, the complainant and Sh. Naresh Garg used to talk over the phone with each other and Sh. Naresh Garg advised the complainant that he should settle the matter. Sh. Naresh Garg also told the complainant that if the complainant was having any problem regarding the money, then Sh. Naresh Garg could help the complainant CC No. 37/11 Page 84 of 97 in this regard. Sh. Naresh Garg also told the complainant that the amount of Rs. 20000/ or Rs. 50000/ was not a big amount and Sh. Naresh Garg also told the complainant that he had requested Sh. D.D. Gulati to reduce this amount. Thereafter, again Sh. Naresh Garg made a phone call to the complainant and told the complainant that the accused i.e. D.D. Gulati was demanding Rs. 50000/, but Sh. Naresh Garg had convinced Sh. D.D. Gulati to reduce the amount to Rs. 30000/.
92.Therefore, from the statement of the complainant, it is clear that the initial demand came through Sh. Naresh Garg. The FIR was registered against accused D.D. Gulati and Naresh Garg. However, Sh. Naresh Garg was not chargesheeted. Nor he was made a witness in this case for the reason best known to the prosecution. Therefore, in my view Sh. Om Prakash Inspector (Vigilance) and Sh. Naresh Garg were the most material CC No. 37/11 Page 85 of 97 witnesses to corroborate the demand of bribe by the accused. Interestingly, the Investigating Officer has not made them witnesses nor the prosecution has examined them in the Court.
93.The Hon'ble Bombay High Court in the judgment reported as 2002 Crl. L.J. 3059 "Tryambak Lilaji Binnar Vs. State of Maharashtra" , has held as under: "10.This apart, admittedly, according to the prosecution at the time of the earlier demand. 2 witnesses were present and one of whom viz. Kotwal is living. The prosecution has chosen not only not to examine him but it appears that even his statement was not recorded during the course of investigation and no attempt was made by the Investigating Officer to get himself satisfied regarding the complainant's assertion of demand having come from the appellant for illegal gratification. While considering the evidence of prosecution it is necessary to bear in mind the importance of evidence of prior demand which if trustworthy makes the trap legitimate to eradicate corruption otherwise it could be an CC No. 37/11 Page 86 of 97 illegitimate trap."
94. The Hon'ble Delhi High Court in the judgment reported as Satpal Singh Vs. State of Delhi 2016 III AD (Delhi) 577 has held as under: "42. and there is no explanation as to why the said ACP who played the key role and against whom the complainant (PW3) and his wife (PW7) had made specific allegations was not examined by the prosecution. Thus, in this background, I have no hesitation to say that there is lacunae in the investigation, so, the Court will view the allegation of payment of the bribe to and recovery thereof with suspicion."
95.Therefore, in view of the fact that Sh. Naresh Garg was the most material witness through whom an initial demand was made by the accused, but Sh. Naresh Garg has not been examined as a witness by the prosecution, nor any explanation has been given by the prosecution as to why Sh. Naresh Garg has not been examined. I am of the CC No. 37/11 Page 87 of 97 opinion that the prosecution has withheld the best available evidence. Keeping in view the law laid down in Satpal Singh Vs. State of Delhi (Supra) and Tryambak Lilaji Binnar Vs. State of Maharashtra (Supra), a doubt is created in the prosecution story.
96. Admittedly, the bribe amount was not recovered from the possession of the accused, rather it was found lying scattered on the road. So the burden lies heavily upon the prosecution that there was demand of bribe. Reliance in this regard can be placed upon the judgment of Hon'ble Delhi High Court reported as Satpal Singh Vs. State of Delhi (Supra), wherein, it was held as under: "46. Reverting back to the case in hand, I note that when the tainted money is not seized from the appellant, the burden is heavily upon the prosecution to prove that there was a demand by the appellant and the same was met out by the complainant and the tainted money was in fact received by the appellant."
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97. Therefore, in view of the above discussed facts and circumstances and in view of the law discussed above, the uncorroborated testimony of the complainant regarding the demand of bribe becomes doubtful and the same cannot be relied upon.
98.The case of the prosecution is that the complainant paid the bribe of Rs. 20,000/ to the accused. The perusal of the evidence of the prosecution shows that except the complainant PW9 Sh. Rajesh Mishra there is no other witness examined by the prosecution regarding the payment of bribe by the complainant and the acceptance of the same by the accused.
99. As per prosecution case, PW2 Sh. Binod Kumar is witness of payment of bribe amount. However, PW2 Sh. Binod Kumar has deposed that the complainant had told that the accused would not accept the money in the presence of any one, so, he was told to stand at some CC No. 37/11 Page 89 of 97 distance. Admittedly, neither PW2 Sh. Binod Kumar nor any other witness had seen the complainant paying the bribe to the accused nor anyone had seen the accused accepting the money from the complainant. Moreover, there are some contradictions regarding the apprehension of the accused after the payment of the bribe by the complainant to the accused. PW2 Sh. Binod Kumar has stated that the accused started running and thereafter the accused was apprehended. Whereas, PW1 Sh. Bibekananda Panda has stated that the accused was apprehended while he was sitting in his car. The recovery of the alleged bribe amount was not effected from the person of accused, rather it was from the ground. Under these circumstances, burden lies heavily on the prosecution to prove that the tainted money was received by the accused. Reliance in this regard can be placed upon the judgment of Hon'ble Delhi High Court reported as Satpal Singh Vs. State of Delhi (Supra). Therefore, the payment of bribe by the complainant to the accused CC No. 37/11 Page 90 of 97 and acceptance thereof by the accused is also not proved beyond reasonable doubt.
100.The case of the prosecution is that the bribe amount was recovered from the accused. Therefore, presumption u/s 20 of P.C. Act, is attracted and the case of the prosecution stands proved. Ld. P.P. for CBI has relied upon the judgment reported as 2001 Crl. L.J. 515 "M. Narsinga Rao Vs. State of Andhra Pradesh", wherein, it was held as under: "14. When the subsection deals with legal presumption it is to be understood as in terrorum 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 etc., 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 CC No. 37/11 Page 91 of 97 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 through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act."
101.Ld. P.P. has also placed reliance upon the judgment reported as B. Noha Vs. State of Kerala & Anr. 2006 IV AD (Crl.) (S.C.) 465, wherein, it was held that when it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive.
102. The Hon'ble Supreme Court of India in a case titled as 'N.Sunkanna Vs. State of Andhra Pradesh' reported as 2015 XI AD (SC) 526, wherein it was observed as under: It is well settled law that mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the CC No. 37/11 Page 92 of 97 offence under Section 7, since demand of illegal gratification is sine qua non to constitute the said offence. The above also will be conclusive in so far as the offence under Section 13(1)(d) is concerned as in the absence of any proof of demand for illegal gratification the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established. It is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or for bearing to do any official act. Unless there is proof of demand of illegal gratification proof of acceptance will not follow.
103.Therefore, in view of the law laid down by the Hon'ble Supreme Court of India in the case of N.Sunkanna Vs. CC No. 37/11 Page 93 of 97 State of Andhra Pradesh (Supra), the judgment relied upon by the Ld. P.P. for CBI is not helpful for the prosecution in this case.
104. The Hon'ble Supreme Court of India in the judgment reported as Banarsi Dass Vs. State of Haryana AIR 2010 Supreme Court 1589, has observed that to prove the offence of bribery, demand and acceptance of bribe is essential. Mere proof of recovery of bribe money from the accused is not sufficient to prove the offence.
105. The accused in the present case is an Executive Engineer which is a Group 'A' post in MCD. The Ld. Counsel for the accused has submitted that the sanction to prosecute the accused was granted by PW11 Sh. K.S. Mehra who was the Commissioner MCD at the relevant time. It was contended by the Ld. Counsel for accused that he was not a competent person to grant sanction to prosecute the accused, rather it was the Municipal CC No. 37/11 Page 94 of 97 Corporation Delhi, which was competent to grant sanction for prosecution of the accused. Reliance in this regard has been placed by the Ld. Defence Counsel upon the judgment of Hon'ble Delhi High Court reported as G.S. Matharaoo Vs. CBI 2012 II AD (Delhi) 188, wherein it was held as under: "22. In view of the discussion hereinabove, the only conclusion that can be drawn in the present case is that the authority competent to remove the Petitioner is the Corporation as notified in the schedule to the Regulations on 15th December, 1976 which regulations have neither been rescinded nor amended till date. Thus, the Corporation is the competent authority to grant sanction under Section 19 of the P.C. Act and not the Commissioner in the case of the Petitioner, who is a Group 'A' employee."
106.On the other hand, Ld. P.P. for CBI has placed reliance upon the judgments of Hon'ble Supreme Court of India reported as State of Bihar & Ors. Vs. Rajmangal Ram decided on 31.03.2014 in Crl. Appeal No. 708 of 2014 and State, by Police Inspector Vs. Sri T. Venkatesh CC No. 37/11 Page 95 of 97 Murty, decided on 10.09.2004 in Crl. Appeal No. 997 of 2004 But, the said judgments are not applicable to the facts and circumstances of the present case as the judgment of G.S. Matharaoo Vs. CBI (supra) relied upon by the counsel for the accused is a direct judgment on the issue involved in this case and is fully applicable to the facts and circumstances of the present case. Therefore, the sanction to prosecute the accused is also bad in law.
107.In view of the above discussion, the prosecution has failed to prove its case. The judgments relied upon by the Ld. P.P. for CBI are not applicable to the facts of the present case. The accused is accordingly acquitted of the charges framed against him for the offences punishable under Sections 7 and 13 (2) r/w Section 13(1)
(d) of the Prevention of Corruption Act, 1988.
108. The bailbond of the accused are cancelled. His surety CC No. 37/11 Page 96 of 97 is discharged. The accused has been asked to furnish bailbonds u/s 437 A Cr.P.C. for a period of six months. The file be consigned to Record Room.
Announced in the Open Court today i.e. 26.05.2016 (Surinder Kumar Sharma) Special Judge, P.C. Act (CBI) 09, Central District, Tis Hazari, Delhi.
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