Delhi District Court
Cc No. 146/15, Cbi vs . Gopal Krishan 1/90 on 2 December, 2015
IN THE COURT OF SH. M.K. NAGPAL, SPECIAL JUDGE
(P.C.ACT), CBI08, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CC No. : 146/15 (Old CC No. 42/12)
RC No. : 16(A)/2010
PS : CBI/ACB/ND
U/s : 7, 13(1)(d) r/w 13(2) of PC Act, 1988
Unique ID No. 02401R0341442011
Central Bureau of Investigation (CBI)
Versus
Gopal Krishan
S/o Sh. Goverdhan Das
R/o 16A/43, Dhruva Apartments
Sector13, Rohini, Delhi110085
Date of FIR : 13.05.2010
Date of Institution : 28.07.2011
Arguments concluded on : 17.11.2015
Date of Judgment : 02.12.2015
J U D G M E N T
FACTS OF THE CASE AND THE INVESTIGATION DONE The present case was registered against accused Gopal Krishan, an officer of State Bank of India (in short, SBI), Chandni Chowk, Delhi, U/s 7 of the Prevention of Corruption Act, 1988 (in short, the PC Act) on the basis of a written complaint dated 13.05.2010 made by the complainant/PW7 Ms. Geeta, alleging therein that the accused was demanding a CC No. 146/15, CBI Vs. Gopal Krishan 1/90 bribe of Rs. 20,000/ from her for getting processed and sanctioned her loan. The complainant/PW7 had applied for a loan under the Prime Minister Employment Generation Programme (PMEGP) and since the complainant did not want to pay the demanded bribe amount, therefore, she had lodged a written complaint dated 13.05.2010 Ex. PW6/1 (D1) with the SP, CBI, ACB, Delhi and the present case RCDAI2010A 0016 was registered by the CBI vide FIR Ex. PW7/5 (D1) and the investigation was entrusted to PW10 Inspector P.K. Srivastava.
2. It is alleged in the chargesheet that PW10 Inspector P.K. Srivastava constituted a trap team consisting of PW11 Inspector Girish Bhardwaj, Inspector Rajesh Chahal, Inspector Prem Nath, SI Manoj/PW13, SI Yogesh Kumar, SI Vivek Prakash and the two independent witnesses namely Sh. Tara Singh Rawat/PW6 and Sh. Jagdish Prasad Meena/PW7, both officials of the Bureau of Indian Standards (BIS), besides PW10 himself. The pretrap proceedings were conducted by the trap laying officer (TLO) Inspector P.K. Srivastava/PW10, during which the above written complaint made by PW7 in Hindi was read over and explained to the members of the trap team and the complainant had also owned her complaint and told them that the same was written and signed by her. Both the independent witnesses had asked certain questions from the complainant and satisfied themselves regarding the CC No. 146/15, CBI Vs. Gopal Krishan 2/90 allegations contained therein. During the pretrap proceedings, the complainant was also asked to contact the accused on his mobile phone and on doing so, the accused directed the complainant to come to his office. The conversation held between accused and the complainant was recorded in a digital voice recorder (DVR). Thereafter, the complainant produced a sum of Rs. 5,000/ comprising of four currency notes of Rs. 500/ each and thirty currency notes of Rs. 100/ each and serial numbers and the denominations of these currency notes were recorded in the handing over memo Ex. PW6/2 (D2), which was prepared during the said proceedings.
3. Further, during the said proceedings, the above currency notes were also treated with phenolphthalein powder and demonstration thereof was given by PW11 Inspector Girish Bhardwaj to all the members of the trap team and he also explained to them the purpose and significance of use of phenolphthalein powder and its chemical reaction with sodium carbonate and water. Search of the complainant was also got conducted through a female official of CBI and the complainant was not allowed to keep anything incriminating with her. Thereafter, the above said amount of Rs. 5,000/ was put in the purse of the complainant by PW6 Sh. Tara Singh Rawat and the complainant was directed to give the bribe amount to the accused only on his specific demand or to CC No. 146/15, CBI Vs. Gopal Krishan 3/90 some other person on specific direction of the accused and not otherwise. After explaining the functioning of DVR, it was also handed over to the complainant with directions to switch it on before going to meet the accused. PW8 Sh. Jagdish Prasad Meena was deputed to act as a shadow witness and he was instructed to remain close to the complainant in order to overhear the conversation between the complainant and the accused and further to see the transaction of bribe money between the complainant and the accused. He was also directed to give a signal to the trap team by rubbing his face with his both hands after the transaction of bribe was over. The complainant and the shadow witness were further directed to give calls from their mobile phones to the mobile phone of the TLO/PW10 immediately after the transaction of bribe was over, in case they were not able to see the TLO/PW10 or the other members of the trap team. A leather bag was also arranged and empty clean glass bottles, tumblers, sodium carbonate powder and sealing material etc. were kept in the said bag and all the above proceedings were duly recorded in the above handing over memo Ex. PW6/2 (D2).
4. After reaching near the SMECCC (Small & Medium Enterprises City Credit Centre), SBI, Chandni Chowk, the complainant/PW7 and the shadow witness/PW8 were both directed by the trap team to contact the accused and the complainant was again instructed to switch on the DVR before CC No. 146/15, CBI Vs. Gopal Krishan 4/90 entering the bank premises. Other members of the trap team, alongwith the other independent witness, had taken appropriate positions in and outside the bank premises in a disguised manner and the TLO/PW10, Inspector Rajesh Chahal and Inspector Prem Nath had taken position on the third floor of the said building, where the cabin of the accused was located. The complainant and the shadow witness were then seen entering the cabin of the accused and after sometime, the shadow witness came out of the said cabin and took a seat in the waiting place near the TLO/PW10 and others. He told the TLO/PW10 that the accused had asked him to go out of his cabin. After few minutes, the complainant also came out of the cabin of accused and gestured that she was going down and when she was waiting near the lift, the accused also came out of his cabin and started talking to her.
5. Thereafter, the accused went down the stairs to the ground floor where he was joined by the complainant, who came down by the lift, and they were again seen talking with each other. Then, the accused went out of the SBI building and walked for a certain distance, alongwith the complainant, while looking here and there and appearing to be alert. The accused went to a pan shop alongwith the complainant and then came back to the SBI building and while he remained on the ground floor, the complainant went to the third floor of the building and went to the cabin of the accused, as prompted by CC No. 146/15, CBI Vs. Gopal Krishan 5/90 the accused. The TLO/PW10 and the shadow witness/PW8 had remained stationed at the third floor area throughout this time. After about 10 minutes, the accused came back to his cabin and after sometime, the complainant came out of his cabin and again went to the ground floor and then out of the said building and she was followed by the shadow witness and the TLO/PW10 at some distance. When she was at some distance from the said building, she was guided towards a side lane where the DVR was taken back from her by the TLO/PW10 and switched off. The other members of the trap team also joined them. On being asked, the complainant had narrated to the members of the trap team that the accused indicated that he would take the bribe amount at his residence.
6. It is further alleged in the chargesheet that thereafter, the entire trap team, alongwith the complainant and the independent witnesses, returned back to the office of ACB/CBI and at around 05:00 PM, the complainant contacted the accused on his mobile number 9999029124 from her mobile number 9278310273. The accused told the complainant to come at Metro Station, R.K. Ashram Marg and accordingly, they all reached the said metro station at around 05:50 PM. The complainant had again contacted the accused on his mobile phone from her mobile phone and the accused directed the complainant to come down the Metro Station, R.K. Ashram Marg and further told her that he was coming from CC No. 146/15, CBI Vs. Gopal Krishan 6/90 Rajiv Chowk Metro Station. The trap team members spread out and took appropriate positions within the visible distance from the complainant and while doing so, the shadow witness and other trap team members were directed to take adequate precautions to hide themselves as the accused might have seen them in the SBI, Chandni Chowk building. Before that, the DVR was again switched on and given to the complainant.
7. It is also alleged that thereafter, the complainant crossed the road and reached near a water rehri and the accused was also then seen coming out from behind a nearby metro station pillar where he was hiding. The accused gestured the complainant to come towards her and thereafter they both were seen getting into a rickshaw and going towards Gole Market on R.K. Ashram Marg. The trap team members had followed them on two rickshaws and on foot at a safer distance. After going for some distance, the rickshaw of the accused and the complainant was seen taking a turn towards metro station parking. The TLO/PW10 had seen the accused taking the money from the complainant with his right hand and keeping the same in his left side front pocket of his shirt. At that time, the TLO/PW10, PW6 Sh. T.S. Rawat and Inspector Rajesh Chahal were stationed at the bus stand near the metro station parking. Some other members of the trap team are also alleged to have seen the above transaction of bribe. The team members started approaching towards the accused from CC No. 146/15, CBI Vs. Gopal Krishan 7/90 various directions and on this, the accused became alarmed and had taken out the money from his pocket and threw it on the top of the purse of the complainant and jumped out of the moving rickshaw and started running towards the bus stand opposite metro station parking. He was apprehended and challenged by the TLO/PW10 for demanding and accepting illegal gratification from the complainant for processing and sanctioning of her loan. Identify of all the team members was disclosed to him. Accused turned pale and became perplexed and his right hand was caught from wrist by the TLO/PW10 and his left hand was caught by Inspector Rajesh Chahal. In the meanwhile, the DVR was taken back from the complainant and switched off.
8. As the tainted bribe money was lying on the purse of the complainant, therefore, on instructions, PW6 Sh. T.S. Rawat had picked up the same. The independent witnesses tallied the numbers of the recovered currency notes with the numbers and denominations mentioned in the above handing over memo Ex. PW6/2 (D2) and the same were found tallying in toto. Since the bus stop was a public place and crowd had also started gathering there, the accused was taken inside the parking of metro station in a corner and posttrap proceedings were conducted there as per the recovery memo Ex. PW6/3 (D3), during which both the independent witnesses had compared the numbers and denominations etc. of the above CC No. 146/15, CBI Vs. Gopal Krishan 8/90 currency notes and declared that these were the same. The washes of the right hand of the accused and also of the left side front pocket of his shirt were taken separately and on being treated with sodium carbonate solution, the colourless solutions turned pink. The above washes were marked as RHW and LSSPW respectively and were sealed in separate bottles. Since the above metro parking area was a public place and a large crowd was attracted and further since it was also getting dark, the accused was brought to the office of the CBI by the CBI team, alongwith the two independent witnesses, as it was not possible to conduct the further proceedings at the said place and they all reached the CBI office at around 08:00 PM.
9. The conversation recorded in the DVR was then played and heard by all there and it confirmed the demand and acceptance of bribe. The said conversation was then transferred into two blank audio cassettes, out of which one was duly sealed and the other was kept for investigation purposes. Subsequently, during investigation, the above sealed bottles containing hand wash and the shirt wash were sent to CFSL for chemical analysis and vide the report dated 16.08.2010 Ex. PW5/A (D16) given by PW5 Dr. N. M. Hashmi, the Forensic Expert concerned, the presence of phenolphthalein and sodium carbonate was confirmed in both the above washes. The voice analysis report in respect of the CC No. 146/15, CBI Vs. Gopal Krishan 9/90 recorded conversation of the accused could not be obtained since the accused had refused to give the specimen/sample of his voice. However, during investigation, the voice of the accused in the said conversation was got identified from his two colleagues Sh. Anil Kumar Gupta/PW14 and Sh. Satender Pal Singh/PW15 and they both identified it after hearing the recorded conversation between accused and the complainant, which took place on 13.05.2010. After recording the statements of witnesses, obtaining the sanction Ex. PW4/A (D
21) for prosecution of the accused from his competent authority and completing certain other formalities of the investigation, a chargesheet for commission of the offences punishable U/ss 7 and 13(1)(d) read with Section 13(2) of the PC Act was ultimately prepared against the accused.
FILING OF CHARGESHEET AND THE CHARGES FRAMED
10. The chargesheet was filed in the court on 28.07.2011 and cognizance of the above said offences was taken by the court on 06.08.2011. After compliance of the provisions of Section 207 Cr.P.C., a prima facie case for commission of the above said offences was also found to be made out against the accused vide order dated 01.11.2011 of the court and formal charges for the above said offences punishable U/ss 7 and 13(2) r/w Section 13(1)(d) of the PC Act were framed against the accused on 30.11.2011.
CC No. 146/15, CBI Vs. Gopal Krishan 10/90 EVIDENCE FOR THE PROSECUTION
11. The prosecution in support of its case has examined on record total 17 witnesses and their names and the purpose of examination are being stated herein below:
12. PW1 Sh. Israr Babu is the Alternate Nodal Officer of M/s Vodafone Mobile Services Ltd and he has identified the signatures of his colleague Sh. Anuj Bhatia, Nodal Officer, on the letter dated 28.07.2010 Ex. PW1/A, vide which Sh. Anuj Bhatia had handed over a scanned copy of the Customer Agreement Form (CAF) Ex. PW1/B (3 pages collectively) and computer generated call detail records (CDR) dated 07.05.2010 and 10.05.2010 Ex. PW1/C and Ex. PW1/D (all these documents are part of D17) respectively of the mobile number 9999029124 of the accused to Inspector Girish Bhardwaj/PW11 of CBI. He has also identified the signatures of Sh. Anuj Bhatia on the above CDR Ex. PW1/C and Ex. PW1/D.
13. He has also deposed that after seeing the CDR Ex. PW1/C, he can say that on 07.05.2010, there was a call made from the mobile number 9999029124 to mobile number 9278310273 at 21:27:38 hrs (for 36 seconds) and further on that day a call was also received on mobile number 9999029124 from the other mobile number 9278310273 at 21:29:57 hrs (1427 seconds) and entries of these calls in the CC No. 146/15, CBI Vs. Gopal Krishan 11/90 above CDR Ex. PW1/C are at portion X to X.
14. He has also stated that after seeing the CDR Ex. PW1/D, he can say that on 13.05.2010, there were calls received on mobile number 9999029124 from mobile number 9278310273 at 16:59:08 hrs (for 253 seconds) and at 17:53:00 hrs (for 38 seconds) and further, on that day, there was also an outgoing call made from mobile number 9999029124 to mobile number 9278310273 at 18:02:43 hrs (for 47 seconds) and entries of these calls in the above CDR Ex. PW1/D are at portions X to X, Y to Y and Z to Z respectively.
15. He has further stated that on 13.05.2010, there were also two other calls received on the above mobile number 9999029124 from one other mobile number 9650394857 at 11:58:59 hrs (for 20 seconds) and at 12:40:58 hrs (for 35 seconds) and the relevant entries of these calls in the above CDR Ex. PW1/D are at points Z1 to Z1 and Z2 to Z2.
16. PW2 Sh. M. N. Vijayan is the Nodal Officer of M/s Tata Teleservices Ltd and he had supplied similar records pertaining to the mobile number 9278310273 being used by the complainant/PW7 to the above official of CBI during the investigation. He has also identified his signatures on the letter dated 04.08.2010 Ex. PW2/A, computer generated CDR dated 13.05.2010 Ex. PW2/C, the Cell Site ID Chart Ex.
CC No. 146/15, CBI Vs. Gopal Krishan 12/90 PW2/D, the scanned copy of the CAF Ex. PW2/E of the above said mobile number and also on his certificate Ex. PW2/B issued U/s 65B of the Evidence Act regarding the authenticity of the above CDR (all documents are parts of D18). He has stated that as per the above CAF Ex. PW2/E, the above said mobile connection was subscribed in the name of Mr. Bayas Kushwaha.
17. He has also deposed that after seeing the CDR Ex. PW2/C, he can say that on 13.05.2010, there were calls made from the mobile number 9278310273 to mobile number 9999029124 at 17:10:32 hrs (for 252 seconds) and at 18:04:23 hrs (for 37 seconds) and entries of these calls in the above CDR Ex. PW2/C are at portion X to X.
18. He has further stated that a call was also made from mobile number 9999029124 to mobile number 9278310273 at 18:14:06 hrs (for 47 seconds) and the relevant entry of this call in the above CDR Ex. PW2/C is at portion Y to Y.
19. He has also stated that at 17:10:32 hrs, the location of the mobile number 9278310273 at the time of making the said call was in the range of Nizamuddin (East) tower (Cell ID 19426), which also covers the area of CGO Complex, Lodhi Road, and at 18:04:23 hrs and at 18:14:06 hrs, the location of the above mobile number was under the CC No. 146/15, CBI Vs. Gopal Krishan 13/90 Panchkuyian Road tower (Cell ID 17986), which also covers the area of R. K. Ashram Marg Metro. He has also stated that the above locations of the said mobile number are shown at portions X and Y respectively of the above Cell ID chart Ex. PW2/D.
20. PW3 Sh. Tarun Khurana is also a Nodal Officer of M/s Bharti Airtel Ltd and, likewise PW1, he has also identified the signatures of his colleague Sh. Vishal Gaurav, Nodal Officer, on one letter dated 03.08.2010 Ex. PW3/A, vide which the scanned copy of CAF Ex. PW3/B (2 pages collectively) and computer generated CDR dated 13.05.2010 Ex. PW3/C (2 pages collectively) of one mobile number 9650394857, which was in the name of SP, ACB, CBI, New Delhi, were supplied to the CBI officer during the investigation (all the above documents are part of D19). He has also stated that after seeing the above CDR Ex. PW3/C, he can say that on the above day, there were calls made from the mobile number 9650394857 to mobile number 9999029124 at 11:59:01 hrs (for 19 seconds) and at 12:41:01 hrs (for 34 seconds). The relevant entries of the call details of the above mobile numbers were marked at portions X to X and Y to Y on Ex. PW3/C during his statement.
21. PW4 Sh. Rakesh Sharma is the senior most General Manager of SMECCC, SBI at the relevant time and he had accorded the sanction Ex. PW4/A (D21) for prosecution CC No. 146/15, CBI Vs. Gopal Krishan 14/90 of the accused in this case.
22. PW5 Dr. N. M. Hashmi is the Sr. Scientific Officer of CFSL, CGO Complex, Lodhi Road, New Delhi, who had examined the exhibits of this case, i.e. RHW and LSSPW, vide his report Ex. PW5/A, which gave positive test for the presence of phenolphthalein and sodium carbonate in the said exhibits. He has also identified the remnants of the samples, packing material and seals etc appearing on the parcels thereof.
23. PW6 Sh. Tara Singh Rawat and PW8 Sh.
Jagdish Prasad Meena are the UDC and Stenographer respectively of the Bureau of Indian Standards (BIS), who both were joined as independent witnesses in the trap of this case. PW6 was the alleged witness of recovery of the bribe amount and PW8 had acted as the shadow witness. They both have deposed regarding their participation in the said proceedings, though not in the manner as alleged by the prosecution, and their statements will be discussed and appreciated in the later part of this judgment.
24. PW7 Ms. Geeta is the complainant of this case. She has broadly deposed regarding applying for the above loan of Rs. 2 lac, the demand of the bribe amount of Rs. 20,000/ by the accused from her in connection with the CC No. 146/15, CBI Vs. Gopal Krishan 15/90 sanctioning and processing of the said loan and acceptance of the above bribe amount of Rs. 5,000/ by the accused from her, in the manner and at the place etc as deposed by her. She has duly proved on record her written complaint made to the CBI on 13.05.2010 as Ex. PW6/1 (D1), the handing over memo prepared with regard to the pretrap proceedings as Ex. PW6/2 (D2), the recovery memo prepared during the course of posttrap proceedings as Ex. PW6/3 (D3), the arrest memo of accused as Ex. PW6/4 (D4), the personal search memo of accused as Ex. PW8/1 (D5) (which was inadvertently not exhibited during her statement), the site plan of the place of apprehension of accused as Ex. PW6/5 (D6), the memo regarding identification of voice of accused Ex. PW6/6 (D12) and the transcript of different portions of the recorded conversations between her and the accused, which was prepared in her presence, as Ex. PW7/X and PW7/X1 to Ex. PW7/X6 (also part of Ex. PW6/6) (D12) and also her signatures appearing on her loan application and other documents submitted in support of the same. She has further identified the accused as well as the entire case property during the trial and her testimony will also be discussed and appreciated subsequently.
25. PW9 Sh. Bhupender Kumar is the then Assistant Manager of New India Assurance Company, Cannaught Place, New Delhi at the relevant time and on the directions of CC No. 146/15, CBI Vs. Gopal Krishan 16/90 his senior officers, he had visited the office of CBI on 06.09.2010 and met PW11 Inspector Girish Bhardwaj. In his presence, PW11 had asked the accused to give his voice sample, but the accused had refused to do so vide memo Ex. PW9/A (D11) prepared in this regard by PW11, which was signed by PW9 as a witness.
26. PW10 Sh. Pawan Kumar Srivastava is the Trap Laying Officer (TLO) and PW11 Inspector Girish Bhardwaj and PW13 Inspector Manoj Kumar are both the members of the trap team and they all have deposed in detail regarding the conduction of the pretrap and posttrap proceedings, on the basis of the above complaint Ex. PW6/1 given by the complainant. They have further identified the accused and their testimonies will also be discussed in the later part of this judgment.
27. PW12 Sh. J. B. Srivastava is the Chief Manager of SMECCC, SBI and he had identified his signatures on the search list Ex. PW10/1 (D8) dated 14.05.2010, vide which he had handed over certain documents to an officer of CBI during the investigation of this case, which included the document D 9 (consisting of 39 pages) mentioned at serial no. 2 of the above search list. He has also identified the accused as well as the signatures of the accused appearing on various documents, like the document Ex. PW12/1 (pages 1 to 3), CC No. 146/15, CBI Vs. Gopal Krishan 17/90 which is a note dated 08.05.2010 signed by the accused vide which he had recommended the loan of the complainant, the document Ex. PW12/2, which is a presanction survey report regarding the loan and the document Ex. PW12/3, which is a brief opinion dated 06.05.2010 given by the accused regarding the said loan, which are all a part of the above file. He has also stated that pages 6 to 39 of the above document Ex. PW10/1 (D8) are the loan documents of the complainant Ms. Geeta. This witness has also stated that the loan application of the complainant was forwarded to them by the Deputy Director of Nodal Agency of M/s Delhi Khadi & Village Industry Board vide letter dated 19.03.2010 Ex. PW12/5 (page 9 of D
9) and vide letter dated 22.04.2010 Ex. PW12/6 (page 8 of D
9), the Chief Manager, DMS, Shadipur Branch returned back the loan proposal of the complainant, alongwith the other documents mentioned therein, to DGM, SBI, SMECCC, Chandni Chowk, Delhi and he has also identified his endorsement made on the said letter.
28. PW14 Sh. Anil Kumar Gupta and PW15 Sh. S. P. Singh are both the colleagues of the accused and were posted as Deputy Managers in the above said branch of SBI at the relevant time and they both are the alleged witnesses of the voice identification of the accused vide memo dated 15.07.2011 Ex. PW14/A (D20).
29. PW16 Sh. Madan Lal Bindroo is also a Deputy CC No. 146/15, CBI Vs. Gopal Krishan 18/90 Manager of the above branch of SBI at the relevant time and he tells on record the procedure for processing and sanctioning of a loan in their department.
30. PW17 Inspector Sandeep Gautam was an SI in CBI at the relevant time and he was assigned the investigation of this case on 26.07.2011 with permission of the court. On 15.07.2011, he had called PW14 and PW15 in his office for the voice identification of the accused and had prepared the above memo Ex. PW14/A (D20) regarding the refusal of the accused to give his specimen voice.
31. After the conclusion of the prosecution evidence, all the incriminating evidence brought on record was put to the accused in his statement recorded U/s 313 Cr.P.C. and the same was denied by the accused either as wrong or beyond his knowledge. Though, the accused has admitted it to be correct that the loan application of the complainant was forwarded to their branch and was dealt with by him, but he has denied specifically the incriminating evidence regarding the demand or acceptance of any bribe amount by him from the complainant for the approval or the processing of the said loan. He has also specifically denied his alleged trap from the above place and the proceeding conducted with regard to the same at the spot.
32. It is his defence that he had only asked the CC No. 146/15, CBI Vs. Gopal Krishan 19/90 complainant to deposit certain margin money and the insurance cost for the said loan. Though, he has admitted the visit of the complainant to her cabin in the above bank on 13.05.2010, but he claims that he had only asked the complainant to deposit the margin money with the bank on the ground floor premises. He further claims that the complainant was bent upon to hand over the money to him and asked him to deposit the same in the bank, to which he refused. It is further his defence that he has been falsely implicated in this case by the complainant under a preplanned conspiracy with the CBI officers since he refused to deposit the margin money of the complainant, which she was not having. Though, he has not specifically denied the hiring of a rickshaw by the complainant and their riding upon the same at the alleged time of incident, but it is his case that actually he was going to verify the rented premises as well as the documents and to meet the landlord of the complainant, in order to verify the authenticity of her documents, but the complainant told him that since her mother was hospitalized in RML Hospital and her landlord was supposed to come to see her mother there, he could meet the landlord and verify the documents in the hospital itself. He has also claimed that no proceedings at all were conducted in the parking area of above metro station and all the proceedings were done by the CBI officials in their office and he was forcibly taken there by the CBI officials. He has also denied his alleged refusal to give his voice sample and claims that CC No. 146/15, CBI Vs. Gopal Krishan 20/90 only his signatures were taken on some documents by the CBI during the above proceedings and investigation of the case. It is also his case that since he has already recommended the loan of the complainant for approval on 08.05.2010, there was no question of demand or acceptance of any bribe for the same subsequently or on 13.05.2010. He further claims that in the CBI office, a bribe of Rs. 10 lac was demanded from him by the CBI officials and on account of his failure and refusal to pay the same, he was falsely involved in this case and the nerve of his left hand wrist was also cut with a cobra blade by the complainant, with the help of the CBI officials. He has claimed himself to be innocent and has also chosen to lead evidence in his defence.
33. The accused has also examined on record one defence witness Sh. Rajesh Kumar Gupta as DW1 and this witness is also a colleague of the accused and claims to have been posted as a Deputy Manager in the above branch of SBI at the relevant time. Though, he has stated that the loan application of the complainant Ms. Geeta was received in their branch and was allotted/assigned to the accused, but he also states that the said loan application was dealt with by the accused as per the system and procedure and subsequently, they came to know that something happened in the matter pertaining to the said application and one day the CBI visited their office and had possessed the records pertaining to the CC No. 146/15, CBI Vs. Gopal Krishan 21/90 said application. He further claims that the above loan application of the complainant was subsequently assigned to him and he even inspected the residence and the proposed site, but he recommended the said loan for sanction only after the complainant removed certain discrepancies pointed out by him and also changed the nature of her proposed work. As per him, he had worked with the accused for about three years during the period from 2007 to 2010 and the accused was a man of good character and integrity, except the present case.
34. I have heard the arguments advanced by Sh. Prabhat Kumar, Ld Sr. PP for CBI and Sh. Avinash Pandey, Ld counsel for the accused. I have also gone through the entire record of the case, including the brief synopsis/written submissions filed on behalf of the accused.
35. The challenges made by the defence to the prosecution case and the evidence led on record can be broadly discussed and appreciated under the following heads: ADMISSIBILITY OF ELECTRONIC EVIDENCE
36. Before entering upon any discussion regarding the admissibility or relevance of the electronic evidence, it is necessary to discuss here some recent judgments on this aspect.
CC No. 146/15, CBI Vs. Gopal Krishan 22/90
37. It has been held by the Hon'ble High Court of Delhi, in case titled as, "Achchey Lal Yadav Vs. State, reported as Criminal Appeal No. 1171/2012", decided on 04.09.2014, as under:
"10. Thus, computer generated electronic records is evidence, admissible at a trial if proved in the manner specified by Section 65B of the Evidence Act.
11. Subsection (1) of Section 65B makes admissible as a document, paper printout of electronic records stored in optical or magnetic media produced by a computer, subject to the fulfillment of the conditions specified in Subsection (2) of Section 65B."
38. It was further held as under:
"14. The normal rule of leading documentary evidence is the production and proof of the original document itself. Secondary evidence of the contents of a document can also be led under Section 65 of the Evidence Act. Under Subclause "d" of Section 65, secondary evidence of the contents of a document can be led when the original is of such a nature as not to be easily movable. Computerised operating systems and support systems in industry cannot be moved to the court. The information is stored in these computers on magnetic tapes (hard disc). Electronic record produced there from has to be taken in the form of a print out. Subsection (1) of Section 65B makes admissible without further proof, in evidence, print out of a electronic record contained on a magnetic media subject to the satisfaction of the conditions mentioned in the section. The conditions are mentioned in Subsection (2). Thus compliance with Sub section (1) and (2) of Section 65B is enough to make admissible and prove electronic records.
15. Thus, if witnesses deposed concerning computer print outs of call details generated they must speak the facts to establish that clauses (a) to (d) of subsection (2) of Section 65B or subSection (3) thereof, as the case may be, are satisfied. It is not enough to say "I have seen the call details of the aforesaid three telephone connection on the record. The said calls details are Ex. PW21/A, Ex. PW21/B and Ex. PW21/C respectively. The details are correct as per our CC No. 146/15, CBI Vs. Gopal Krishan 23/90 record maintained in our office."
39. In case of Anwar P.V. (S) Vs. P.K. Basheer & Ors, Civil Appeal No.4226 of 2012, decided on 18.09.14, the Hon'ble Supreme Court has also made the following observations:
"13. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under subsection(2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act:
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
CC No. 146/15, CBI Vs. Gopal Krishan 24/90
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
14. Under Section 65(B)(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
15. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc(CD), Video Compact Disc(VCD), Pen drive, etc., to which a statement is sought to be given in evidence, when the same is produced in defence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc., without such safeguards, the whole trial based on proof of electronic records can lead to travesty of CC No. 146/15, CBI Vs. Gopal Krishan 25/90 justice.
16. Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A - opinion of examiner of electronic evidence.
17. The evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India.
40. It was further held by their lordships in this case:
"22. The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case (supra), does not lay down the correct legal position.
It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."
41. While relying upon and referring to the propositions of law laid down in the case of Anwar P.V. (S) CC No. 146/15, CBI Vs. Gopal Krishan 26/90 (supra), the Hon'ble Delhi High Court has again made the following observations in case of Ankur Chawla Vs. CBI & Ors, Crl. M.C. No.2455/12 & Crl. M.A. No.8318/2017:
"17. In the instant case, the impugned order is silent about there being any certificate under Section 65B of the Indian Evidence Act, 1872 in respect of the audio and video CDs and even during the course of hearing, it was asserted on behalf of respondentCBI that aforesaid mandatory certificate of 18th December, 2009 is there, but respondentCBI has failed to show that such a certificate has been filed along with the chargesheet. Attention of this court was not drawn to statement of any witness to show that inference of criminal conspiracy can be drawn against petitioners. Pertinently, although this court is not required to look into photocopy of certificate under Section 65B of the Indian Evidence Act, 1872 furnished in respect of fifteen CDs in packet 'A' but there is no such certificate in respect of the seven CDs in packet 'B' which is solely relied upon by the prosecution. Thus, aforesaid certificate (which is not on record) is of no avail. So, there is no point in now permitting the prosecution to place the original of such certificate on record. It was also not shown during the course of the hearing that when the CDs were prepared but since this case was registered on 23rd November, 2009 therefore these CDs must have been prepared soon thereafter and the certificate under Section 65B of the Indian Evidence Act, 1872 has to be of the date when the CDs were prepared but the photocopy of the aforesaid certificate shows that it was prepared on 18th December, 2009 and is thus of no avail."
42. Firstly, I will discuss the legal admissibility of the electronic evidence brought on record by the prosecution in this case, which is intended to be used for the purposes of providing corroboration to the other oral and documentary CC No. 146/15, CBI Vs. Gopal Krishan 27/90 evidence of the prosecution, as adduced on record regarding the alleged demand and acceptance of the bribe amount by the accused. This evidence consists of two parts and the first part comprises the evidence and records pertaining to the three mobile numbers used in this case, i.e., mobile number 9999029124 of the accused, number 9278310273 pertaining to the complainant and number 9650394857 of the SP, ACB, CBI. The relevant witnesses examined by the prosecution on record in this regard are PW1 Sh. Israr Babu, PW2 Sh. M.N. Vijayan and PW3 Sh. Tarun Khurana.
43. PW1 Sh. Israr Babu, the alternate Nodal Officer of M/s Vodafone Mobile Services has only identified the signatures of his colleague Sh. Anuj Bhatia on one letter dated 28.07.2010 Ex. PW1/A providing the scanned copy of the CAF Ex. PW1/B and the computer generated CDRs Ex. PW1/C and Ex. PW1/D dated 07.05.2010 and 13.05.2010 respectively of the above mobile number 9999029124 of the accused to PW11 Inspector Girish Bhardwaj during the course of investigation (All these documents are part of D17). He has also stated that even the above copies of CDRs Ex. PW1/C and Ex. PW1/D bear the signatures of Sh. Anuj Bhatia and the seals of the company. No reason has been brought on record by the prosecution as to why Sh. Anuj Bhatia, the Nodal Officer of the above company, was not examined on record despite his availability and why his signatures were got CC No. 146/15, CBI Vs. Gopal Krishan 28/90 identified from this witness and in the absence of non examination of Sh. Anuj Bhatia, the above documents cannot be said to have been legally proved in evidence by the prosecution as per the provisions of the Indian Evidence Act, 1872, as the primary evidence available for proving the same has been withheld from the court without any reasons and the same have been got proved through the secondary evidence and, that too, without obtaining any permission from the court.
44. Again, the above scanned copy of the CAF Ex. PW1/B and the computer generated CDRs Ex. PW1/C and Ex. PW1/D are apparently copies which have been made or prints thereof taken by a mechanical process and thus, fall within the category of secondary evidence. Hence, as per the requirements of the Evidence Act, a certificate under Section 65B of the said Act was required in support and proof of the genuineness and authenticity of these documents and this certificate was required to be given by a competent person of the above company, who could have deposed about and certified the fulfillment of the requirements contained under Section 65B of the Evidence Act. However, no such certificate regarding the genuineness of the above said records was taken by the IO during the investigation nor any such certificate forms part of the evidence led on record by the prosecution and hence, for the above said reasons and also in view of the law discussed above, the above documents cannot CC No. 146/15, CBI Vs. Gopal Krishan 29/90 be considered to be a legally admissible evidence in this case and cannot be looked into by the court.
45. PW2 Sh. M.N. Vijayan is the Nodal Officer of M/s Tata Teleservices, which is the service provider of the mobile number 9278310273, which is alleged to have been used by the complainant during conversations with the accused. This witness has supplied the scanned copy of the CAF Ex. PW2/E, the Computerized Cell Site ID Chart Ex. PW2/D and CDR dated 13.05.2010 of the above said mobile number to PW11 during the investigation and all these records were supplied vide his letter Ex. PW2/A and along with his certificate Ex. PW2/B given under Section 65B of the Evidence Act, regarding the authenticity and genuineness of these records (All these documents are part of D18). As per the above CAF, the above mobile connection was subscribed in the name of one Mr. Bayas Kushwaha, who is stated to be the brother of the complainant. However, on a careful perusal of these documents, even the same are not found to be legally admissible in evidence and of any help to the case of the prosecution.
46. It is observed that the above computerized print out of CDR Ex. PW2/C has been taken out on 29.07.2010 and the above certificate Ex. PW2/B given by PW2 is dated 04.08.2010, i.e., six days after the above print outs were CC No. 146/15, CBI Vs. Gopal Krishan 30/90 taken, and in view of the law laid down in case of Ankur Chawla (supra), this certificate should have been given on the same day on which the above documents were created and hence, the above certificate Ex. PW2/B given regarding the authenticity of the above CDR Ex. PW2/C cannot serve any purpose. Moreover, if the depositions of PW2 as made in this court are gone through, the same also show that the requirements laid down under Section 65B of the Evidence Act do not stand fulfilled in this case as this witness has not uttered even a single word in his statement to show that the requirements contained under Section 65B of the said Act were met with regard to the above document and he has simply exhibited the said document without even deposing anything regarding the process of storage and taking print outs of the data from their computers or servers and the safe custody or security thereof etc. Therefore, in view of the law discussed hereinabove, even the evidence brought on record by this witness is of no use for the prosecution.
47. PW3 Sh. Tarun Khurana, likewise PW1 Sh. Israr Babu, has also only identified the signatures of his colleague Sh. Vishal Gaurav on a similar certificate Ex. PW3/A supplying the scanned copy of CAF Ex. PW3/B and the computer generated CDR Ex. PW3/C of mobile number 9650394857, which was stated to be in the name of SP, ACB, CBI. (All these documents are part of D19.) There is also no CC No. 146/15, CBI Vs. Gopal Krishan 31/90 explanation from this witness or otherwise as to why the primary evidence available in the form of testimony of Sh. Vishal Gaurav was not led on record and why this witness was examined by the prosecution instead of Sh. Vishal Gaurav. Again for these documents also, there is no certificate under Section 65B of the Evidence Act brought on record and in view of the above discussion, even the testimony of this witness and the documents brought on record by him cannot be considered in evidence and cannot be used for the purpose of providing any corroboration to the other evidence of the prosecution.
48. The second form of electronic evidence brought on record is the audio cassette in which the contents of the alleged recorded conversations between the complainant and the accused were transferred by the TLO/PW10. As stated above, the different conversations dated 13.05.2010, i.e. day of trap, between the complainant and the accused were allegedly recorded in a DVR given to the complainant by the TLO/PW10, which the complainant was also carrying with her at the time when she had met the accused in connection with the delivery of the above bribe amount. As per the prosecution case, after the trap team had returned back to the office of CBI after apprehending the accused with the bribe amount, the contents of the above recorded conversations were transferred into two blank audio cassettes, out of which CC No. 146/15, CBI Vs. Gopal Krishan 32/90 one cassette was sealed and the other was kept by the TLO/PW10 for investigation purposes. This fact is found specifically stated in the chargesheet as well as in the recovery memo Ex. PW6/3 (D3). PW11, the complainant/PW7 and some other witnesses have also stated specifically regarding the transfer of the contents of the above conversations from the DVR, though some of them stated that the same were transferred to CDs and not to audio cassettes. However, strangely enough, the TLO/PW10 Sh. P.K. Srivastava himself was silent in his entire chief examination regarding the above process of transfer of the recorded conversation from the DVR to the two cassettes or the seizure or sealing of one of these cassettes. It was only during this crossexamination that he had made certain depositions on this aspect when he was questioned by the Ld defence counsel in this regard. He has also stated regarding preparing of a CD and not about the preparing of an audio cassette by transferring of data from the DVR. It has also been admitted by him that the DVR in which the alleged conversations were recorded was not seized by him in this case nor any such DVR has been produced or brought on record during the evidence. But it is on record that the copy of the audio cassette in which the above conversations were transferred and which was sealed by the TLO/PW10 was marked as Q1 and the same has also been produced and brought on record and exhibited as Ex. PW7/7. The transcripts of the above conversations are CC No. 146/15, CBI Vs. Gopal Krishan 33/90 Ex. PW7/X, Ex. PW7/X1, Ex. PW7/X2, Ex. PW7/X3, Ex. PW7/X4, Ex. PW7/X5 and Ex. PW7/X6 on record, alongwith the voice identification memo dated 30.09.2010 Ex. PW6/6 (all part of D12).
49. However, since the original DVR used in this case or the original recordings made in the said DVR are not a part of the evidence, the copy of the audio cassette to which the contents of the above conversations were allegedly transferred and which has been brought in the evidence and played during the trial is only a piece of secondary evidence and cannot be termed as primary evidence. It is also not clear from the evidence as to what process or mode was adopted by the TLO/PW10 in transferring the contents of the above conversations from the DVR to the above cassette and what instrument, i.e., either the laptop or computer etc., was utilized or used by him in transferring the data. Again, the above process of transferring of the data was also required to be certified with a proper certificate under Section 65B of the Evidence Act and this certificate was required to be given to ensure the authenticity and genuineness of the above process of transfer of data and further to ensure that the conversations transferred in the above cassette Ex. PW7/7 were the original conversations which were recorded in the above DVR. However, no such certificate under Section 65B of the Evidence Act given by the TLO/PW10 or by any technical CC No. 146/15, CBI Vs. Gopal Krishan 34/90 expert of the CBI involved in above process of transfer of data is a part of record or evidence. The TLO/PW10 was even specifically questioned in this regard and he went on to state that he had not prepared or issued any certificate under Section 65B of the Evidence Act in respect of the above CD, which he claims to have been prepared by him. Hence, in view of the above, even this process of transfer of data, in the form of alleged recorded conversations between the complainant and the accused from the above DVR to the above audio cassette Mark Q1 (Ex. PW7/7) is not legal and contents of the alleged conversations are also not legally admissible in evidence and identification of the voice of the accused by the complainant and other witnesses during the trial on its basis and also the transcripts of the said conversations Ex. PW7/X, Ex. PW7/X1 to Ex. PW7/X6 are also of no consequence or use to the prosecution case.
DEMAND, ACCEPTANCE AND RECOVERY OF THE BRIBE MONEY
50. Before entering upon any discussion and appreciation of evidence led by the prosecution on record with regard to the demand, acceptance and recovery of the bribe amount in the present case, it is necessary to refer here to some of the relevant judgments on the subject, which specifically deal with the above aspects and lay down the essential ingredients of the offences made punishable by CC No. 146/15, CBI Vs. Gopal Krishan 35/90 Sections 7 and 13(1)(d) of the PC Act.
51. It has been held by the Hon'ble Supreme Court in case titled as Banarsi Dass Vs. State of Haryana, reported as AIR 2010 Supreme Court 1589, as under : "11. To constitute an offence under Section 161 of the IPC, it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused. Similarly, in terms of Section 5 (1) (d) of the Act, the demand and acceptance of the money for doing a favour in discharge of its official duties is sine qua non to the conviction of the accused. In the case of M.K.Harshan Vs. State of Kerala (1996 (11) SCC 720) ; (AIR 1995 SC 2178 ; 1995 AIR SCW 3385), this Court in somewhat similar circumstances, where the tainted money was kept in the drawer of the accused who denied the same and said that it was put in the drawer without his knowledge, held as under :
" .............. It is in this context the courts have cautioned that as a rule of prudence, some corroboration is necessary. In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification. Unfortunately, on this aspect in the present case we have no other evidence except that of PW1. Since PW1's evidence suffers from infirmities, we sought to find some corroboration but in vain. There is no other witness or any other circumstance which supports the evidence of PW1 that this tainted money as a bribe was put in the drawer, as directed by the accused. Unless we are satisfied on this aspect, it is CC No. 146/15, CBI Vs. Gopal Krishan 36/90 difficult to hold that the accused tacitly accepted the illegal gratification or obtained the same within the meaning of Section 5 (1) (d) of the Act, particularly when the version of the accused appears to be probable".
12. Reliance on behalf of appellant was placed upon the judgment of this Court in the case of C.M.Girish Babu (AIR 2009 SC 2022 ; 2009 AIR SCW 1693 )(Supra), where in the facts of the case the Court took the view that mere recovery of money from the accused by itself is not enough in absence of substantive evidence for demand and acceptance. The Court held that there was no voluntary acceptance of the money knowing it to be a bribe and giving advantage to the accused of the evidence on record, the Court in paras 18 and 20 of the judgment held as under : "18. In Suraj Mal Vs. State (Delhi Admn.) (1979 (4) SCC 725); (AIR 1979 SC 1408), this Court took the view that (at SCC p. 727, para2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.
20. A threeJudge Bench in M.Narsinga Rao Vs. State of A.P. (2001 (1) SCC 691 ; SCC (Crl.)
258); (AIR 2001 SC 318 ; 2000 AIR SCW 4427), while dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification, observed : (SCC p. 700, para24) :
"24. .... we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length. (Vide Madhukar Bhaskarrao Joshi Vs. State of Maharashtra (2000 (8) SCC 571); (AIR 2001 SC 147 : 2000 AIR SCW 4018). The following statement made by us in the said decision would be the answer to the aforesaid contention raised by the learned counsel :
CC No. 146/15, CBI Vs. Gopal Krishan 37/90 (Madhukar case, SCC p. 577, para12).
'12. The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. So the word "gratification" need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like "gratification or any valuable thing". If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word "gratification" must be treated in the context to mean any payment for giving satisfaction to the public servant who received it."
13. Infact, the above principle is no way derivative but is a reiteration of the principle enunciated by this Court in Suraj Mal case (AIR 1979 SC 1408) (supra), where the Court had held that mere recovery by itself cannot prove the charge of prosecution against the accused in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money. Reference can also be made to the judgment of this Court in Sita Ram Vs. State of Rajasthan (1975 (2) SCC 227) ; (AIR 1975 SC 1432), where similar view was taken.
14. The case of C.M. Girish Babu (AIR 2009 SC 2022 ; 2009 AIR SCW 1693 ) (supra) was registered under the Prevention of Corruption Act, 1988, Section 7 of which is in pari materia with Section 5 of the Prevention of Corruption Act, 1947. Section 20 of the 1988 Act raises a rebuttable presumption where the public servant accepts gratification other than legal remuneration, which presumption is absent in the 1947 Act. Despite this, the Court followed the principle that mere recovery of tainted money divorced from the circumstances under which it is paid would not be sufficient to convict the accused despite presumption and, in fact, acquitted the accused in that case."
52. It is also been held by the Hon'ble High Court of CC No. 146/15, CBI Vs. Gopal Krishan 38/90 Delhi in case titled as, "P.K. Gupta Vs. CBI, reported as 2011 (4) JCC 2352, as under:
"14. In A. Subair v. State of Kerala, (2009) 6 SCC 587, the Supreme Court held as under:
'The legal position is no more res integra that primary requisite of an offence under Section 13(1) (d) of the Act is proof of a demand or request of a valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant, for a valuable thing or pecuniary advantage, the offence under Section 13(1) (d) cannot be held to the established.'
15. It is settled law that mere recovery of bribe money, divorced from the circumstances under which it is paid, is not sufficient to convict the accused when the substantial evidence of demand and acceptance in the case is not reliable.
(See M. Narsinga Rao v. State of A.P. 2001 (1) JCC 118 :
2001(1) SCC 691. In view of above propositions of law, it is recapitulated that the statutory presumption under Section 20 of the Act is available for the offence punishable under Section 7 or Section 11 and not for Clause (d) of Section 13(1). For offence under Section 13(1) (d), it will be required to be proved that some initiative was taken by a person who receives and in that context demand or request from him will be a prerequisite."
53. Again in case of B. Jairaj Vs. State of A.P., reported as 2014 (3) JCC 1552 also, the Hon'ble High Court of Delhi has made the following observations:
"7. In so far as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma Vs. State of A.P. (2010) 15 SCC 1 and C.M. Girish Babu Vs. C.B.A. (2009) 3 SCC 779.
8. ...............
9. In so far as the presumption permissible to be CC No. 146/15, CBI Vs. Gopal Krishan 39/90 drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Section 13(1) (d) (i) (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent."
54. As far as the first ingredient regarding the demand of the bribe money by the accused from the complainant is concerned, the complainant/PW7 Ms. Geeta herself is the most material witness of the prosecution story on this aspect. As already discussed above, as per the prosecution case, the entire proceedings pertaining to the trap of the accused have been conducted by the CBI officials on 13.05.2010 only and not on any other date. As per the handwritten complaint Ex. PW6/1 (D1) given by the complainant in the CBI office on that very day, i.e. on 13.05.2010, she claims to have applied for the above loan during the month of December in the previous year and after her interview on 04.02.2010, her loan file was sent by the District Task Force Committee, Rampura to Delhi Khadi Gramodhyog Board and from there, it was forwarded to the SBI, Chandni Chowk Branch. She even stated in her above complaint that she had already submitted all the requisite documents pertaining to her loan application in the said bank and the officials of the bank had even verified her residence and the proposed place of work and the first verification was CC No. 146/15, CBI Vs. Gopal Krishan 40/90 done by the DMS, Shadipur Branch and second verification was done by the accused on 05.05.2010.
55. As per her above complaint Ex. PW6/1 (D1), the demand of bribe was first made by the accused from her on 07.05.2010 telephonically and the accused demanded an amount of Rs. 20,000/ from her as bribe for the processing and approval of her loan and he even called the complainant with the bribe amount at his residence at Rohini. She had further submitted in her above complaint that she even visited the residence of the accused on 09.05.2010 and expressed her inability to pay the demanded bribe amount and made request to the accused and told him that her mother was lying admitted in the emergency of RML Hospital and that she was not in a position to pay the above amount. However, she claims that the accused told her flatly that she would have to pay the above amount of Rs. 20,000/ for the processing and clearing of the loan and further told her that a part of the above amount was also to go to their Branch Manager, Mr. Saxena and he further told the complainant clearly that until she pays the demanded bribe amount, her loan will not be cleared and as soon as she will pay the same, she will get the demand draft within a week thereof. She further alleged in her above complaint that the accused was continuously demanding the money from her telephonically and since she was not willing to pay the bribe, she had approached the CBI and had made the CC No. 146/15, CBI Vs. Gopal Krishan 41/90 above complaint, with a request for taking appropriate action against the accused.
56. Since the entire proceedings of the present trap have been done by the CBI only on 13.05.2010, there is no corroboration to the above allegations made by the complainant in her above complaint regarding the making of the initial demands of the bribe amount by the accused from her on 07.05.2010, as neither there is record of any such conversations between her and the accused nor there is any other witness of the alleged demands of bribe. Even there is no corroboration on record to her alleged visit made at the residence of the accused on 09.05.2010, in connection with the processing of her above loan or the payment of the demanded bribe amount as it is not her case that anybody from the CBI or from her family had accompanied her to the house of the accused at the time of her said visit or that she had recorded the conversation which took place between her and the accused or his wife, at the time of her alleged visit to his house. Though, even during her examinationinchief, she has deposed regarding her above visit to the house of the accused and fresh demand of money made from her by the accused and his wife and she further claims that from the house of the accused, she had even telephoned her brother from her mobile saying that he would have to make arrangement of Rs. 5000/6000 in any manner, but his brother CC No. 146/15, CBI Vs. Gopal Krishan 42/90 refused to do so. However, even no record of any such conversation between her and her brother in this regard was collected by the IO during the investigation of the present case. It has already been discussed above that no record in the form of any call details of the mobile phone being used by the complainant prior to 13.05.2010 was collected by the CBI officials from the concerned service provider nor they had collected any records of the mobile number of the brother of the complainant on which the complainant had made the above call. Even her brother is not a witness in this case.
57. Again, she has also deposed in her examination inchief itself that as soon as she got out of the house of accused, she called the police on telephone number 100, though she did not talk to them, as she was annoyed with the above demand of the bribe amount made by the accused. No record of any such call made by the complainant has also been collected by the CBI officials during the investigation. She further states that thereafter, she had called the helpline of the State Bank of India from her mobile at the bus stand at Rohini and she was advised to complain to some senior officer of the bank as they told her that they could do nothing from there. Even no record of the any such call or conversation between the complainant and the concerned helpline official of the SBI is a part of the evidence led by the prosecution on record. Though, she also states in her examinationinchief CC No. 146/15, CBI Vs. Gopal Krishan 43/90 that she approached the CBI Headquarters only after she had taken the number of the CBI Headquarters after dialing at 'Just Dial' on 10.05.2010 at around 06:00 AM, but even this part of her depositions is not corroborated by any evidence. All the above pieces of evidence would have provided corroboration to her depositions to a certain extent.
58. Further, a bare perusal of the statement made by the complainant in this court will show that the same is full of too many material contradictions, inconsistencies and discrepancies and the same is not capable of being accepted or acted upon by this court to secure the conviction of the accused in the present case for serious offences punishable under Sections 7 and 13(1)(d) of the PC Act. Further, her entire statement made in this court is full of improvements made by her on so many material points and the same also render her testimony to be unworthy of acceptance.
59. It is observed that in the very first line of her examinationinchief dated 18.08.2012, she claims that she had first gone to CBI office on 13.05.2010 because she had to lodge a complaint against the accused in connection with the above demand of bribe of Rs. 20,000/ made from her on 07.05.2010. She further deposes about the submission of her loan application and other documents in connection with the said loan and also states that she went to Chandni Chowk Branch of SBI for the first time on 05.05.2010, where she was CC No. 146/15, CBI Vs. Gopal Krishan 44/90 informed by Mr. Srivastava, the Manager, that her file was with the accused. She also claims that then she had met the accused at around 11:00 AM on 05.05.2010 and she also deposed about some conversation between her and the accused regarding her loan application and the inspection of her residence and place of work conducted by the accused in the evening of 06.05.2011. She further states that thereafter, on 07.05.2010, her mother was admitted in RML Hospital and at around 06:00 PM, she received a call from the accused, but she told him that she would call him later as at that time she was with her mother. She further deposes that thereafter, she made a call to the accused and had conversation with him for about 20 minutes in relation to the said loan and it is in this conversation she claims that the demand of the bribe amount of Rs. 20,000/ for processing of her loan was made by the accused from her, as 10% amount of the full loan amount of Rs. 2 lac. As already discussed above, there is no corroboratory material on record to prove the above demand and whatever evidence in the form of CDR of the accused dated 07.05.2010 Ex. PW1/C (D17)was collected during the investigation by the CBI officials has already been held to be inadmissible in evidence for want of meeting the requirements of the Evidence Act. She also claims that she told the accused during the above conversation that she was not in a position to pay the bribe amount and then the accused told her to pay the said amount within 34 days.
CC No. 146/15, CBI Vs. Gopal Krishan 45/90
60. It is further deposed by her in her above examinationinchief dated 18.08.2012 itself that on 08.05.2010, she was having her CA examination and in that morning she had talks with the accused and told him that she would not be able to arrange the money and then, she went for her examination and there was no conversation between her and the accused on that day. She further states that on 09.05.2010, i.e. the next day, the accused called her at his residence and gave her his address and also told her the way to his house and he appeared to be under impression that she was coming to his house with the demanded bribe amount. Then she talks about her visit to the house of accused and states that she left her house at around 11:00 AM and reached the house of the accused by 03:00 PM on that day and before reaching there, she had also called the accused from her mobile for finding out the way to his house. However, subsequently, in her crossexamination dated 08.05.2014, she went on to state that on 09.05.2010 at around 12:00 Noon, she had talked to the accused and told him that the centre for her CA examination was in Sector 6, Rohini and she asked the location thereof from the accused and the accused told her that it was nearby his house. She also claims that then the accused asked her to come to his house with the bribe amount of Rs. 20, 000/. On being further questioned regarding her above CA examinations by Ld defence counsel, she states that she did not recollect the name of the school of her CC No. 146/15, CBI Vs. Gopal Krishan 46/90 examination centre, but the examination timings were from 03:00 PM to 06:00 PM and there were 10 papers in the said examinations and there was no exam scheduled for 09.05.2010 and she was going to Rohini only to see the school of examination. Her these depositions are clearly in contradiction and contract to the depositions made by her in her examinationinchief to the effect that on 08.05.2010, she was having her CA examination and had even gone to appear in the said examination. Though, she also claims that she had even made an entry on 09.05.2010 in the register kept by the security officials at the gate of the society in which the house of the accused was located, regarding her above visit to the house of the accused, but even no copy of the said register was seized by the CBI during the investigation. In any case even the same could not have substantiated the alleged demand of the bribe amount made by the accused from the complainant or further that the above visit of the complainant to the house of the accused was in connection with the said demand of bribe.
61. Further, as per the above complaint Ex. PW6/1 (D1) given by the complainant in the CBI office, she had visited the CBI office for the first time only on 13.05.2010 and not prior to that. In initial part of her examinationinchief dated 18.08.2012 also, she states so. However, in the later part of her testimony of the same day, she changes her stand on this CC No. 146/15, CBI Vs. Gopal Krishan 47/90 aspect when she states that she went to the CBI office for the first time on 10.05.2010 and reached there at 08.30 AM. This was after she had allegedly obtained the telephone number of the CBI Headquarters after dialing the number of 'Just Dial' at around 06:00 AM on that day. In reply to a court query, she also states that she had her CA examination on that day and it was at 02:00 PM. She also claims that she had met the SP Mr. Sumit Saran of CBI on that day and he though told that he would help her, but asked her to first go and appear in her examination. She also states that on that day itself, the SP had introduced her to the Investigating Officers Mr. Girish Bhardwaj and Rajesh Chahal and these officers made her to converse with the accused telephonically. She also identifies her handwriting and signatures in the above complaint Ex. PW6/1 (D1) given by her in the CBI office, but states that the same was given on 13.05.2010 only and she further volunteers that she did not have the money on 10.05.2010 and made arrangement of the same by the evening of 11.05.2010.
62. Then, she deposes about the formation of the trap team and the other proceedings conducted during the pretrap proceedings and further about their visit to Chandni Chowk, SBI Branch and the R.K. Ashram Marg Metro Station in connection with the trap of the accused. However, contrary to her above depositions made in her examinationinchief regarding meeting the Investigating Officers Mr. Girish CC No. 146/15, CBI Vs. Gopal Krishan 48/90 Bhardwaj (PW11) and Mr. Rajesh Chahal on 10.05.2010, she has stated in her crossexamination dated 04.06.2014 that she had only met the SP of CBI in the CBI office on 10.05.2010. When she was specifically asked by Ld defence counsel as to whether she met anybody else in the office of CBI on that day or not, she had replied that she could not tell with certainty now as to whether she had met any member of the trap team formed on 13.05.2010 on 10.05.2010 also in the CBI office. She further claims that it was the SP, CBI who had made her to talk with the accused from the CBI office on 10.05.2010 and the SIM of her phone was put in some other phone by the SP, CBI and then, the said call was made by her to the accused, while keeping her phone on the speaker mode. She also states that she left the CBI office at around 12:00 Noon on that day as she was to take her examination and was further not having any money on that day and she was asked by the SP to arrange the money and also to take her examination.
63. In her above crossexamination dated 04.06.2014, she also claims that she again went to the CBI office on 11.05.2010 and SP concerned had asked from her as to whether the trap money had been arranged or not and she told him that she had asked somebody to arrange the same. She further claims that she had gone to the CBI office on 11.05.2010 as the person to whom she had asked for help and to arrange the money had assured her that he will bring the CC No. 146/15, CBI Vs. Gopal Krishan 49/90 money in the CBI office. She further states that on 11.05.2010, she had met Mr. Rajesh Chahal and Mr. P.K. Srivastava and she had again talked to the accused on 11.05.2010 from the CBI office, though she was not able to recollect as to whether the said call was made to the accused by her or the accused had called her. She has even told the name of the above person, who was to arrange money for her and to bring it in the CBI office, as Mr. Umesh Shah and she even claims that apart from making a call to her elder brother Nand Lal from the CBI office on 11.05.2010 for arranging the money, she had even made a call to the said person Sh. Umesh Shah and he told her to collect the money. She even claims that then at around 03:00 PM, she had left the CBI office in the official vehicle of the CBI, along with CBI official, to collect the money from Mr. Umesh Shah and on the way, she had also received a call from the accused, but she did not pick up the first call and at the time of second call, she gave the phone to the CBI driver accompanying her, who talked with the accused while posing as her brother and after getting the money from the above person, she came back to the CBI office by 05:00 PM and she was asked to come again on 13.05.2014.
64. There is no corroborative evidence on record in support of any of the alleged visits of the complainant to the CBI office on 10.05.2010 or 11.05.2010 as neither any record CC No. 146/15, CBI Vs. Gopal Krishan 50/90 of any entry in the form of signatures of the complainant taken in the visitors' register of the CBI office has been placed on record, nor any record of the alleged conversations dated 10.05.2010 and 11.05.2010 made between the complainant or the accused are a part of the evidence. Rather, to the contrary, the case of the CBI is that it is only on 13.05.2010 that the complainant come to the CBI office for the first time and had made her above complaint Ex. PW6/1 (D1) in their office. The TLO/PW10 Sh. P.K. Srivastava, PW11 Inspector Girish Bhardwaj and PW13 Inspector Manoj Kumar have all clearly stated in their examinations on record that they had met the complainant for the first time only on 13.05.2010 in the CBI office and not prior to that. The TLO/PW10 states that he met the complainant at around 09.40 AM on that day when he was introduced with her by the SP Sh. Sumit Saran and PW11 claims to have met her at around 11:00/11:15 AM on that day when the members of the trap team had assembled there and he was introduced with the complainant. Even PW13 tells the time of meeting with the complainant to be at around 11:00 AM when they had assembled in the room of their office and he was introduced with her. They all have also specifically denied in their crossexaminations of having met with the complainant prior to the said date. The above contradiction is a material contradiction in the prosecution story and adversely effects the credibility thereof to a large extent. Even the depositions made by the TLO/PW10 regarding the stage when he met with CC No. 146/15, CBI Vs. Gopal Krishan 51/90 the complainant are self contradictory. In his examinationin chief dated 28.11.2014, he has stated that on 13.05.2010 he was called by the SP and introduced to the complainant and the SP narrated about the grievances of the complainant and also handed over to him the copy of the FIR and instructed him to take action as per the law. However, in his cross examination recorded subsequently on the same day, he went on to state that the FIR was not registered by the time when he met the complainant and he also made certain inquires from the complainant and had further seen certain documents available with the complainant, in the above verification process, regarding her visits to the accused, during the course of the above inquiry conducted by him prior to the registration of the FIR, and thus, he got the FIR registered on the complaint and organized the trap proceedings only thereafter. He again went on to modify his above depositions in his subsequent crossexamination dated 12.02.2015 when he stated that the FIR was registered during the course of conduction of the said inquiry by him and the copy of the FIR was also received by him during the course of the inquiry and the complainant was further asked by him to make a telephone call to the accused and the said conversation between the complainant and the accused was recorded and these developments were reported to the SP and the SP then directed the registration of the FIR and constitution of the raiding team. However, there is no sufficient corroboration to CC No. 146/15, CBI Vs. Gopal Krishan 52/90 his above claims being made in his crossexamination as no record of any such conversation between the complainant and the accused prior to the registration of the FIR has been brought on record.
65. Now the depositions of the two independent witnesses, i.e. PW6 Sh. Tara Singh Rawat and PW8 Sh. Jagidsh Prasad Meena, are also to be appreciated regarding their visits, if any, to the CBI office prior to 13.05.2010. In their examinationsinchief, they both have maintained that they had visited the CBI office for the first time only on 13.05.2010 and not on any other day prior to the same. However, during the crossexamination of PW6, photocopy of one fax Mark PW6/1 and of one Memorandum Mark PW6/2 have also been brought on record by the witness himself, when he was questioned on this aspect subsequently and his crossexamination was deferred for want of certain documents as the witness was able to recall that the some fax was sent to their office by the CBI for calling them to participate in the above proceedings on 13.05.2010. However, on perusal of these documents, it is found that the fax message dated 07.05.2010 Mark PW6/1 was for appearance of PW6 in the CBI office on 10.05.2010 at 10:00 AM and the Office Memorandum Mark PW6/2 dated 24.05.2010 was for his appearance before the CBI on 25.05.2010. Though, the contents of these two documents cannot be strictly read in evidence as these are photocopies CC No. 146/15, CBI Vs. Gopal Krishan 53/90 only of the concerned documents and the originals thereof have not been brought or proved on record as per the provisions of the Evidence Act, but on the strength of the oral depositions made by this witness, based on these documents, it can be said that the witness had also visited the CBI office on 10.05.2010 and 11.05.2010, besides visiting there on 13.05.2010 which is the date of conduction of the trap proceedings. However, he further states in his above cross examination dated 09.04.2010 that on these two other dates, i.e. 10.05.2010 and 11.05.2010, he had visited only upto the reception of the CBI and not the actual office premises. Even PW8 on being questioned in this regard during his cross examination, has stated that he had gone to the CBI office on the basis of written instructions, in the form of office order from Director, Establishment, received by him one day in advance for his appearance in the CBI office on 13.05.2010, though he was not questioned further on this aspect. However, the above depositions made by these two material witnesses of the prosecution story, coupled with the depositions made by the complainant/PW7 herself regarding her visits to the CBI office prior to 13.05.2010, as already discussed above, suggest that something was already going on in the CBI office in connection with the present case, which has intentionally not been brought before and concealed from this court and it can easily be inferred therefrom that the same did not suit the case of the CBI and has thus, been purposefully withheld from CC No. 146/15, CBI Vs. Gopal Krishan 54/90 this court. This aspect of the prosecution case also goes against them and affects the credibility of their story to a great extent.
66. Coming to the conduction of the pretrap proceedings, the visit of the trap team to the office of the accused in SBI, Chandni Chowk and the alleged demand of bribe amount made by the accused there, it is observed that even on this aspect the story and evidence of the prosecution are not believable and are full of material contradictions and inconsistencies. PW6 Sh. Tara Singh Rawat is one of the two independent witnesses and a material witness of the prosecution story, but during his examinationinchief, he simply states that on that day, he had reached the CBI office at around 12:00 Noon. There he met Inspector Chahal and Mr. Girish Bhardwaj, who told them, i.e. he and PW8 Sh. Jagdish Prasad Meena, regarding the case of Ms. Geeta. He also states that they were informed that phone calls were coming from the accused present in the court to the complainant Ms. Geeta and the complainant and the Inspector present there were tracing the calls in their presence. This part of his depositions is foreign to the prosecution case as it is not the case of the prosecution that any such telephone calls were being regularly made by the accused to the complainant or any such calls were made at or around the above time and as per the records, the first official call was made to the CC No. 146/15, CBI Vs. Gopal Krishan 55/90 accused from the SIM by the complainant only at around 12:00 Noon.
67. PW6 further states on record that they were also told that the said calls were in relation to some cheque of Ms. Geeta and 'LenDen' and Inspector Chahal and Mr. Girish Bhardwaj informed that Ms. Geeta had to receive a cheque, for which accused was asking for commission and they were further shown the complaint of Ms. Geeta and he had also identified the complainant as well as her complaint Ex. PW6/1 (D1). However, strangely enough, this witness has not uttered even a single word regarding the conduction of any pretrap proceedings in his above examinationinchief dated 02.03.2012 or even regarding their alleged visit to the office of the accused situated in Chandni Chowk and he straightaway talks about the visit of the trap team to R.K. Ashram Metro Station. He states that then at about 05:00 PM, a phone call was received by Ms. Geeta and she was asked by the accused to meet him and then the CBI had laid a trap and two vehicles went to Panchkuyian Road Metro Station. On being shown the document Ex. PW6/2 (D2), i.e. the handing over memo prepared in the CBI office regarding the pretrap proceedings and allegedly before the trap team left for trap to the SBI, Chandni Chowk office of accused, he has though identified his signatures on each page of the above document, but he has specifically stated that the said document was CC No. 146/15, CBI Vs. Gopal Krishan 56/90 typed only after the accused had been arrested and they had come back to the CBI office at CGO Complex. Somehow, during the midst of his examinationinchief, he was even permitted to be confronted by Ld Sr. PP for CBI with his previous statement dated 25.05.2010 Ex. PW6/3 (inadvertently the same exhibit number PW6/3 has been put on the above statement of the witness as well as on the recovery memo D
3) recorded under Section 161 Cr.P.C., but even despite being so confronted he has specifically stated that what he has stated in his examination being recorded in the court on that day was correct and what was recorded in his previous statement Ex. PW6/3 was incorrect. He has even denied it to be false the suggestion given by the Ld Sr. PP for CBI that the above document Ex. PW6/2 was not prepared after they had reached back in the CBI office or that he has deposed falsely on this aspect and has further reiterated his above claim by saying that before they left the CBI office, they were only told that they have to leave. These depositions made by this material witness of the prosecution regarding preparation of the handing over memo Ex. PW6/2 only after they had returned back to the CBI office, and not prior to the leaving of the office by the trap team, give a serious blow to the credibility of the prosecution case. Even the complainant corroborates his depositions to some extent as she had also stated in her examinationinchief dated 18.08.2012 itself that there was no writing done of the demonstration before they left CC No. 146/15, CBI Vs. Gopal Krishan 57/90 the CBI office, but it was done subsequently. However, though subsequently, on being shown the above document Ex. PW6/2, she not only admitted her signatures on the same, but also changed her stand and stated that the same was prepared before leaving of their office. In any case, it was done by her only after she was shown the above document.
68. Further, it is also noted from the records that despite the silence of this witness regarding their visit to the Chandni Chowk Branch of SBI, the Ld Sr. PP for CBI conducting the prosecution evidence at the relevant time, had not got declared this witness hostile and had not conducted any crossexamination of the witness on this aspect. The silence of this witness on a material aspect regarding their visit to the Chandni Chowk Branch in connection with the above trap further dents the credibility of the prosecution story.
69. However, though, PW6 Sh. Tara Singh Rawat is silent regarding the visit of the trap team to the office of the accused at Chandni Chowk, but it is observed that the other independent witness, i.e. PW8 Sh. Jagdish Prasad Meena, and the official members of the trap team of CBI have made specific depositions in this regard. But apart from the blows given to the credibility of the prosecution story on this aspect by PW6, even the depositions made by the other witnesses in this regard are not found to be convincing enough. As per all the official members of the trap team, the bribe amount of Rs.
CC No. 146/15, CBI Vs. Gopal Krishan 58/90 5000/ arranged by the complainant was put in the handbag of the complainant by PW6 Sh. Tara Singh Rawat in the course of the pretrap proceedings and PW13 Inspector Manoj Kumar even claims that the above currency notes of Rs. 5000/ treated with the phenolphthalein powder were first put into an envelope and then placed in the handbag of the complainant. However, PW6 himself or even PW8 have not made any such claims regarding putting of the above currency notes in the purse or handbag of the complainant by PW6, either directly or after keeping them in an envelope. They all then talk about their arrival at the SBI Chandni Chowk and the visit of the complainant and the shadow witness/PW8 Sh. Jagdish Prasad Meena in the cabin of the accused. However, as per the TLO/PW10, the cabin of the accused was located on the second floor of the said building, whereas the other witnesses have stated the same to be located on the third floor of the building. Further, as per the prosecution case, after sometime of the entry of the complainant/PW7, as well as of PW8 in the cabin of the accused, PW8 had come out of the cabin and according to the complainant/PW7, she had introduced PW8 with the accused as a travel agent, who had come to Chandni Chowk for some payments and the accused directed PW8 to go out as he wanted to talk to the complainant alone and hence, PW8 came out of the said cabin. Even the other members of the trap team have given similar reasons for coming of PW8 out of the cabin of accused as they claim that CC No. 146/15, CBI Vs. Gopal Krishan 59/90 they were told so subsequently by PW8 as well as the complainant. However, Ld defence counsel has pointed out that this version of the prosecution story is not corroborated from the transcript Ex. PW7/X3 of the relevant time as it is mentioned therein that when the complainant had introduced PW8 to the accused as her brother engaged in the transport business, the accused had offered a seat to him and there is nothing stated in the said transcript that PW8 was asked to go out of the said cabin by the accused or that the accused had sent him out for the reason that he did not want to demand or accept the bribe money from the complainant before a third person. Even if it is presumed that PW8 was sent out of his cabin by the accused, no incriminating inference against the accused can be drawn therefrom. Ld defence counsel has rightly relied upon the judgment in case Roshan Lal Saini Vs. CBI 2011 (1) JCC 102 on this aspect.
70. Again, as per complainant/PW7, she had remained in the above cabin of accused and had talks with him regarding the bribe and after PW8 had gone out of the said cabin, the accused asked from her if she had brought the money and on her answering in affirmative, the accused told her that he would not take the money in the said cabin and instructed her to come at the ground floor of the said building and then, she came out of the said cabin. However, even this part of her depositions is not substantiated or corroborated by CC No. 146/15, CBI Vs. Gopal Krishan 60/90 any evidence on record because the contents of the alleged recorded conversation between the complainant and the accused, of which the audio cassette Mark Q1 and the transcripts Mark PW7/X to PW7/X6 were made, have already been held to be not admissible in evidence against the accused, though the same can be seen against the prosecution being their own documents, and the shadow witness/PW8 was already sent out and was not present in the said cabin at the time of the alleged demand of bribe made by the accused from the complainant.
71. Further, according to the prosecution story and the version given by the complainant, the accused had indicated there that he would accept the bribe amount on the ground floor of the said building and not in his above cabin. The complainant/PW7 further states at the same time that since Chandni Chowk remains crowded, the accused did not take the money there and told her that he would accept it at his residence. There is no reason brought on record as to why the accused had not accepted the demanded bribe amount from the complainant in his above cabin when he had all the time and opportunity to do so and was sitting alone in his cabin with the complainant. Evidence led on record in the form of depositions made by the complainant/PW7 herself, PW8 as well as the other official members of the trap team though further suggests that the complainant had even followed the CC No. 146/15, CBI Vs. Gopal Krishan 61/90 accused outside the said building and upto a pan shop, but there is nothing on record to suggest that the accused was willing to demand or accept the alleged bribe amount from the complainant even outside his cabin and at the ground floor of his office or outside the office building. This fact is further strengthened from the depositions made by the complainant /PW7 herself to the effect that the accused enquired from her as to why she had followed him at the pan shop.
72. The complainant/PW7 has further stated in her statement made in this court that thereafter, the accused went to his branch and she also followed him under the confusion as to where the money was to be handed over to the accused. She claims that when she again entered the above cabin of the accused, the accused was not present and reached there only after about 1015 minutes and had asked from her the reason for her presence in his cabin. When she asked from him as to when she should reach at his residence to deliver the money, she claims that she was told by the accused that he would not demand any money and she should not worry about her loan and she thanked the accused and came back. However, in her subsequent crossexamination recorded on the next date, she further states that she was doubting the above statement of the accused and hence, she along with the CBI officials had gone back to the CBI office at around 05:00 PM and all the officials had become busy in their work. She CC No. 146/15, CBI Vs. Gopal Krishan 62/90 also states that she along with the TLO/PW10, Inspector P.K. Srivastava were sitting in the chamber of Sh. Girish Bhardwaj/PW11 and PW10 and PW11 were talking to each other and she was sitting in a corner and thinking about the refusal of the accused to accept the money. All these depositions in this court made by the complainant/PW7 herself regarding refusal of the accused to demand or accept any bribe amount from the complainant are in sharp contrast to the case of the CBI and the depositions made by the official members of the trap team, as they all have nowhere stated regarding any such refusal of the accused and have simply stated that they came back to the CBI office from Chandni Chowk only because the accused had stated that he would not accept the money there and would accept it at his residence. Even PW8 suggests that the accused had refused to demand or accept the bribe amount from the complainant at the time of their said visit to Chandni Chowk, SBI because he also claims that when they all had reached back in the CBI office, then after 5 minutes thereof they, i.e., he as well as PW6, were asked to go and they both had left the office of the CBI, though, he further claims that on the way to their office, the CBI officials had again called them back in the CBI office through phone.
73. Further, as per the prosecution version when they all had reached back in the CBI office, the complainant had CC No. 146/15, CBI Vs. Gopal Krishan 63/90 made a phone call to the accused at around 05:00 PM and the accused directed her to meet at R. K. Ashram, Metro Station. Even the complainant/PW7 claims that thereafter, she telephoned the accused from the chamber of Sh. Girish Bhardwaj (PW11) from her mobile and she had talked with the accused for about 10 minutes and asked the accused whether it was true that he will not demand the money and will sanction the loan. She then talks about certain questions put by the accused to her regarding the presence of certain suspected persons alongwith her at the time of her visit to his office at Chandni Chowk and then she claims that she was called by the accused to R. K. Ashram, Metro Station. However, there is no documentary evidence on record to corroborate this claim being made by the complainant as the alleged conversation which took place between her and the accused at that time was not recorded by the CBI officials, for the reasons best known to them.
74. Now, coming to visit of the trap team to the place of trap or apprehension of the accused, i.e. near the R. K. Ashram, Metro Station, it is observed that even on this aspect the evidence of the prosecution is full of material contradictions and inconsistencies and cannot be relied upon. As already discussed above, PW6 Sh. Tara Singh Rawat only talks about their visit to the R. K. Ashram, Metro Station and has not deposed anything regarding their alleged visit to SBI, CC No. 146/15, CBI Vs. Gopal Krishan 64/90 Chandni Chowk. Even regarding this visit of the trap team to R. K. Ashram, Metro Station, PW6 claims that they had gone there in vehicles and in the vehicle in which he was sitting, PW8 Jagdish Prasad Meena, Mr. Chahal, Mr. Girish Bhardwaj, Ms. Geeta/complainant and one or two other persons were also there, whose names he does not remember now. However, PW8 claims that the complainant/PW7, Inspector Chahal and one other Inspector were in his vehicle at the time of their alleged visit and PW6 and Mr. P. K. Srivastava were sitting in the other vehicle. The TLO/PW10 and PW11 were not able to tell the sitting arrangements of these vehicles at the time of their above visit, though their depositions also suggest that they had gone to the spot in two vehicles.
75. Again, contrary to the case of the prosecution and the depositions made by all the other witnesses of the trap team, including PW8 Sh. Jagdish Prasad Meena, PW6 Sh. Tara Singh Rawat claims in his examinationinchief itself that when they had reached there, the accused was already standing below the metro station of Panchkuyian Road. He also states that he did not know the accused till that time and further since even the driver of their vehicle did not know him, their vehicle had passed the accused and then Mr. Chahal and Mr. Girish Bhardwaj pointed to him that the accused was standing there. He has further stated that when their vehicle had moved ahead, the complainant was made to get down CC No. 146/15, CBI Vs. Gopal Krishan 65/90 from the vehicle and then Inspector Chahal and Mr. Girish Bhardwaj explained to the complainant as to how she had to go and then, the complainant met the accused at the Panchkuyian Road. As already stated above, contrary to these depositions of PW6 almost all the other witnesses state that they had reached at the R.K. Ashram Metro Station and had taken their respective positions there prior to the appearance or spotting of the accused at the said place.
76. Now coming to the story of apprehension of the accused, PW6 further states on record that then the complainant and the accused sat in a rickshaw and went forward and after sometime, they came back in the same rickshaw and then, complainant gave Rs. 5000/ to the accused and at that time, they were standing at the bus stand at Panchkuyian Road, at a distance of about 1015 meters from the complainant. He further states that while the accused was taking the money, the CBI apprehended him and then Rs. 5000/ were taken from the accused by the CBI and his hand wash was taken and the coloured liquid was sealed and the wash of the pocket of the shirt of accused was also taken and sealed.
77. The complainant/PW7 herself, on this aspect, has stated on record that after making a call to the accused and meeting with him, the accused asked her to hire a rickshaw. They had hired a rickshaw for going towards RML Hospital as CC No. 146/15, CBI Vs. Gopal Krishan 66/90 she had already told the accused that her mother was hospitalized there. However, she claims that then she pretended as if she was making a call to her brother and then told to the accused that her mother already stood discharged and hence, there was no need of going to RML Hospital and she asked the rickshaw puller to take a Uturn towards metro station. She also deposed that when their rickshaw took U turn, the accused demanded money and she took out the money and gave it to the accused, who was sitting on her left side, and the accused got the money with his right hand and had kept the same in the left side pocket of his shirt. She further states that the accused had then seen the CBI officials and hence, he returned back the money and had put the same in her purse and tried to run away, but he was chased and caught by the CBI officials before the metro station. She further states that she was not able to see the CBI officials as they might have come from their back side. She also then deposed about the taking of hand wash and shirt wash of the accused. In her cross examination, she also clarified that the above demand of money by the accused was though a gesture of his hand.
78. As per the prosecution story, the complainant as well as the accused in the above rickshaw were being followed by the members of the trap team in rickshaw/rickshaws as well as on foot. However, the evidence led on record on this CC No. 146/15, CBI Vs. Gopal Krishan 67/90 aspect is entirely unbelievable and full of material contradictions. As already stated above, PW6 has not deposed anything regarding following the complainant and the accused on foot or in a cycle rickshaw and he simply states that they were standing at the bus stand at Panchkuyian Road and he does not even state that any official of CBI or PW8 had followed the complainant and the accused. Even PW8 Sh. Jagdish Prasad Meena has not made any claim regarding following the accused and the complainant by him or even by PW6 as he states on record that he remained in the vehicle itself at the relevant time because he was told that the accused may make objection to his presence as the accused might have already seen him in Chandni Chowk office. He even claims that Inspector Rajesh Chahal had also remained sitting with him in the said vehicle and they were watching Ms. Geeta and the accused going in the rickshaw and only Inspector Srivastava and one other Inspector had followed the accused and complainant in another rickshaw and even PW6 Sh. Tara Singh Rawat was sitting in the other vehicle at the relevant time. He further claims that after 25 minutes thereof, they were called at the metro station and hand wash and shirt wash of the accused were taken there.
79. On the other hand, according to the TLO/PW10, the CBI team and the independent witnesses had also hired two rickshaws and had followed the rickshaw of the CC No. 146/15, CBI Vs. Gopal Krishan 68/90 complainant and the accused and some of the team members had remained there on foot and he has further claimed specifically that he himself was standing at the bus stop near the metro station. He has also stated that after sometime, the rickshaw of the accused and the complainant was seen taking a Uturn towards metro station and while it was returning back, the accused was seen demanding and accepting money from the complainant and after accepting it with his right hand, he kept it in his left side shirt pocket and the transaction was seen by him, all the team members as well as the independent witnesses. He claims specifically that he had also seen the above transaction of money. However, when during his cross examination, he was confronted by Ld defence counsel with his stand taken in his examinationinchief regarding his being stationed at the bus stop of the above metro station, he tried to modify his stand and gave another version of the incident that he as well as the other team members were following the complainant and the accused on foot, behind the two rickshaws taken by the trap team members in following the rickshaw of the complainant moving towards Gole Market. He also stated specifically during his above crossexamination dated 12.02.2015 that the shadow witness was also following the accused and the complainant in a separate rickshaw. However, his these depositions are in sharp contrast and conflict to the depositions made by the shadow witness/PW8 who states specifically that he remained sitting in the vehicle CC No. 146/15, CBI Vs. Gopal Krishan 69/90 itself. In view of the above, it is very hard to believe that either of the above three witnesses could have seen the alleged transaction of demand of the above bribe amount from the complainant and acceptance thereof by the accused. This inference is even strengthened from the above depositions made by the complainant herself that she was not able to see as to from which side the CBI officials had come or reached there.
80. Regarding the above aspect, PW11 Sh. Girish Bhardwaj has also not made any claim of following the rickshaw of the complainant and the accused as he clearly states that it was only after he got a call from the TLO or some other member of the trap team that he, alongwith the shadow witness Mr. Meena, had reached on the road near a bus stop where they had seen the accused being held with his wrists by the TLO and Inspector Rajesh Chahal. The above depositions made by this witness are corroborated by the version of PW8 that he was not following the rickshaw of the complainant and the accused and also contradict the claim being made by the TLO/PW10 that PW8 was following the said rickshaw of the complainant in a separate rickshaw. Though, PW13 has also claimed that the above transaction was seen by all the team members of the raiding party and both the independent witnesses and all of them rushed towards the accused, but even his depositions are liable to be discarded for the reasons CC No. 146/15, CBI Vs. Gopal Krishan 70/90 discussed above. Moreover, if his depositions regarding putting the currency notes first in an envelope and then in the handbag of the complainant are believed, then the entire case of the prosecution falls as nowhere it has been claimed by any other witness and even by the complainant/PW7 does not talk about any such envelope at the time when the notes were kept in her purse or when the same were handed over by her to the accused or recovered subsequently by the CBI officials. Had there been any such envelope in which these currency notes were put in the pretrap proceedings, before keeping the same in the purse of complainant, then there was no question of taking of any hand wash of the accused or turning the colour thereof as pink because it has not been stated by the complainant/PW7 or any other witness that she had taken out the currency notes from the said envelope before the same were handed over to the accused.
81. Now coming to the aspect of recovery of the above amount of Rs. 5000/ from the accused, it is again observed that even the evidence led by the prosecution on record in this regard is full of material contradictions and is not consistent enough to be relied upon by this court. As already discussed above, due to various discrepancies and contradictions found in the statements of the prosecution witnesses, it is very hard to believe that they had seen the alleged transaction of acceptance of the bribe amount by the CC No. 146/15, CBI Vs. Gopal Krishan 71/90 accused from the complainant, as either they have not made any such claim or their testimonies have been found to be lacking in reliability and acceptance.
82. Regarding the recovery part of the above bribe amount, it is the prosecution case that after seeing the above transaction of bribe, the members of the trap team started proceeding towards the accused from various directions and the accused became alert and he took out the bribe money from his shirt pocket and threw it on top of the purse of the complainant and jumped out of the moving rickshaw and started running towards bus stand opposite the metro parking. The TLO challenged the accused for demanding and accepting illegal gratification from the complainant and the identity of the team members was revealed to him and he turned pale and became perplexed. As the tainted bribe amount was lying on the purse of the complainant, therefore, on instructions, the independent witness/PW6 Sh. Tara Singh Rawat picked up the same and the independent witness had also tallied the numbers of the currency notes with those mentioned in the handing over memo and the same were found to be tallying in toto. Then, the accused was taken to nearby parking area of the metro station for conduction of the post trap proceedings.
83. The TLO/PW10 in his statement made in this court has almost deposed on the above lines of the CC No. 146/15, CBI Vs. Gopal Krishan 72/90 prosecution story regarding the recovery of currency notes and the tallying of its numbers etc. However, the statements made by the other witnesses of the prosecution story are not found corroborating the above version of their case. PW6 Sh. Tara Singh Rawat himself has not made any such claim regarding picking up or recovery of the above currency notes of Rs. 5000/ by him or tallying of the numbers thereof either by him or by PW8 Sh. Jagdish Prasad Meena. Rather, he has deposed that the above currency amount of Rs. 5000/ was taken from the accused by the CBI. Even PW8 does not make any depositions regarding the recovery of the above currency notes by his colleague/PW6 and though, he has stated that the recovered currency notes were tallied with the handing over memo Ex. PW6/2, but he nowhere states that the same were tallied either by him or by PW6. PW11 Sh. Girish Bhardwaj did not see the above transaction of bribe, but he had reached at the place where the accused was apprehended on receiving a call from some member of the trap team and he states that the trap money was lying on the purse of the complainant, which was lying on the footrest of the rickshaw. However, as per PW13 Inspector Manoj Kumar, since after seeing the members of the trap team, the accused became alert, he took the bribe amount from his shirt pocket. He took out the bribe amount from his shirt pocket and threw the same towards the handbag of the complainant. But, however, since the hand bag of complainant was fully zipped, hence, the amount CC No. 146/15, CBI Vs. Gopal Krishan 73/90 remained kept on the top of the handbag, which was kept in the lap of the complainant. He has further stated that when Sh. Tara Singh Rawat was directed to recover the bribe amount and it was picked by him from the top of the handbag. However, he nowhere states, likewise PW11, that the above handbag was lying on the footrest of the cycle rickshaw and rather he has deposed that it was in the lap of the complainant. If the depositions of PW11 are to be believed, how the currency notes could have still been on the top of the purse of the complainant when the purse of complainant was not in her lap or had fallen on the footrest of the cycle rickshaw.
84. Entirely different from the above depositions made by the official members of the trap team, the complainant/PW7 Ms. Geeta herself has given another version of the above said aspect and as per her, since the accused had seen the CBI officials, he had returned back the money and had put the same in her purse and then, he had tried to run away and was chased and caught by CBI officials before the metro station. She has further stated that as the bribe money was lying inside her purse, therefore, Sh. Tara Singh Rawat took out the same from her purse. No request was made by Ld Sr. PP for CBI conducting the prosecution at the relevant time for cross examination of the complainant/PW7 on the above aspect. During her crossexamination conducted by Ld defence CC No. 146/15, CBI Vs. Gopal Krishan 74/90 counsel, she was again questioned regarding her above depositions made in the court regarding putting of the money in her purse and her previous depositions made in her statement under Section 161 Cr.P.C. dated 26.05.2010 to the effect that the accused threw the money on her bag and she was asked as to which of her two statements was correct and her reply was that her statement made under Section 161 Cr.P.C. dated 26.05.2010 Ex. PW6/AX was her correct statement. The above material contradiction in the testimony of the complainant and the two different versions given by her regarding the place from where the currency amount was recovered and further the contradictory statements given by the members of the trap team even make the recovery of the alleged bribe amount as per the prosecution story to be doubtful. Moreover, under the given circumstances, the above bribe amount cannot even be said to have recovered from the possession or at the instance of the accused. It has also been discussed above that even the evidence brought on record regarding the demand of the bribe amount by the accused from the complainant is not consistent and corroborative.
85. As also discussed above, the entire testimony of the complainant/PW7 made in this court regarding the alleged transaction of demand, acceptance and recovery of the bribe amount is full of material contradictions and major improvements. Regarding her testimony, Ld defence counsel CC No. 146/15, CBI Vs. Gopal Krishan 75/90 has rightly referred to a case titled Major E.G. Barsey Vs. State of Bombay (1962) 2 SCR 195 wherein, while dealing with the evidence of the trap witnesses, the Hon'ble Apex Court has held that though a trap witness is not an approver, he is certainly an interested witness in the sense that he is interested to see that the trap laid by him succeeds. The court further laid down that a trap witness can at least be equated with a partisan witness and it would not be prudent to rely upon his evidence without corroboration, though his evidence is not a tainted one.
86. Further, the testimonies of the two independent witnesses of this case, i.e. PW6 and PW8, are also not found to be capable of providing enough corroboration or support to the other prosecution evidence led on record and rather their testimonies, especially the testimony of PW6 Sh. Tara Singh Rawat, entirely go against the prosecution case and do more damage to its case then to provide any support to the same. Even the testimonies of the official members of the trap team are found to be contrary and in contrast to each other on various major aspects and the result thereof is that the prosecution cannot be said to have discharged the onus of proving its case against the accused beyond reasonable doubts, by any convincing or acceptable evidence. Even otherwise, in view of the legal pronouncements pertaining to Sections 7 and 13(1)(d) of the PC Act as already discussed CC No. 146/15, CBI Vs. Gopal Krishan 76/90 above and also the law laid down by the Hon'ble Supreme Court in cases of Suraj Mal Vs. State (Delhi Admn.), AIR 1979 SC 1408, P. Satyanarayana Murthy Vs. The District Inspector of Police & Anr., Crl. Appeal No. 31/2009, decided on 14.09.2015 and N. Sukanna Vs. State of A.P., Crl. Appeal No.1355/2015 decided on 14.10.2015 being relied upon by Ld defence counsel, even the mere recovery of currency notes from the accused, in the absence of proof of demand of bribe, will not bring home the guilt of the accused for the above said offence.
MISSING LINK EVIDENCE
87. Apart from the above, the entire link evidence in the chain of the prosecution case is missing and this discrepancy of the prosecution case further makes the other evidence led on record to be unworthy of acceptance. No document, record or register of the Malkhana of CBI has been brought or proved on record to show as to what articles were issued from the Malkhana to the TLO/PW10 prior to the trap team members left for trap of the accused. There is also no evidence on record as to what quantities of phenolphthalein powder or sodium carbonate were issued to or what residues thereof were returned back in the Malkhana by the TLO/PW10. There is even no evidence on record regarding the deposit of the case property of this case, i.e. parcels containing the CC No. 146/15, CBI Vs. Gopal Krishan 77/90 above hand wash and shirt wash of the accused and the audio cassette Mark Q1 prepared from the above DVR, in the Malkhana, nor there is any evidence on record as to through which official the above exhibits were got deposited by the IO with the CFSL, New Delhi. Even the name of the concerned official who carried the said exhibits to the CFSL was not cited by the IO in the list of the prosecution witnesses of this case, what to say of examining him as a witness on record. Further, even the concerned Malkhana Incharge of the CBI has not been cited or examined as a witness in this case.
88. It has been held by the Hon'ble Supreme Court in case titled as, "Ukha Kolhe Vs. State of Maharashtra, reported as AIR 1963 SC 1531", as under:
"8. But there is no evidence on the record about the person in whose custody this phial remained till it was handed over to the SubInspector of Police on April 13, 1961 when demanded. There is also no evidence about the precautions taken to ensure against tampering with the contents of the phial when it was in the Civil Hospital and later in the custody of the police between April 13, 1961 and April 18, 1961. Even the special messenger with whom the phial was sent to the Chemical Examiner was not examined: and Ext. 43 which was the acknowledgment signed by some person purporting to belong to the establishment of the Chemical Examiner does not bear the official designation of that person. The report of the Chemical Examiner mentions that a sealed phial was received from the police officer by letter No. C/010 of 1961 dated April 18, 1961, but there is no evidence that the seal was the one which was affixed by Dr. Rote on the phial. These undoubtedly were defects in the prosecution evidence which appear to have occurred on account of insufficient appreciation of the character of the burden which the prosecution undertakes in proving a case of an offence under S. 66 (1) (b) relying upon the presumption under S. 6 (2)."
CC No. 146/15, CBI Vs. Gopal Krishan 78/90
89. The absence of the entire link evidence regarding the deposition of the case property in sealed condition at the Malkhana of the CBI and sending of the case property to the CFSL for chemical analysis also makes the prosecution case doubtful.
OTHER DISCREPANCIES OF THE PROSECUTION CASE
90. Apart from all the above, there are various other lacunaes and discrepancies in the evidence and case of the prosecution, which also force this court to doubt and discard the evidence led on record. There are serious contradictions in the depositions of the two independent witnesses, interse and also in comparison of the other officials of CBI, regarding the manner in which the above independent witnesses were arranged and made to join the investigation of the present case. Even the complainant/PW7 supported the version given by the two independent witnesses that something was going on in the CBI office in connection with the present case even prior to 13.05.2010 and that appears to be the reason why PW6 Sh. Tara Singh Rawat was summoned in the CBI office on 10.05.2010 and also on 11.05.2010 and PW8 Sh. Jagdish Prasad Meena has also stated that the requisition for summoning him in the CBI office on 13.05.2010 was received by him one day in advance. These discrepancies clearly nullify the official version of the CBI that all the events and developments in the case had taken place only on 13.05.2010, CC No. 146/15, CBI Vs. Gopal Krishan 79/90 after the above complaint Ex. PW6/1 (D1) was made by the complainant/PW7 in their office.
91. Further, as per the prosecution case, after the trap team had returned back to their office on apprehension of the accused with the bribe amount, the conversations recorded in the DVR were played in the presence of the independent witnesses and even the contents thereof were transferred into two blank audio cassettes, out of which one was marked as Q1 and sealed and other was kept for investigation purposes. However, the TLO/PW10 himself is silent in this regard and even PW6 Sh. Tara Singh Rawat has made contrary depositions on record on the above said aspect as at one stage, he has claimed that the conversation was only heard by Mr. Girish Bhardwaj and Mr. Chahal and he did not hear that conversation. He even went to state that he never went to the CBI office after that day, i.e. the day of trap, and all these depositions were made by him in his examinationinchief itself. It is necessary to mention here that the above transcripts of the recorded conversations Ex. PW7/X, Ex. PW7/X1 to Ex. PW7/X6 are all dated 30.09.2010 (D12) and these transcripts are even found signed by both the above independent witnesses in the above said date. These depositions made by PW6 certainly made doubtful the version of the prosecution story regarding preparing the above transcripts of the said conversations from the investigating CC No. 146/15, CBI Vs. Gopal Krishan 80/90 copy of the audio cassette on the above date. Hence, Ld Sr. PP for CBI was forced to question this witness as to where he was on 30.09.2010, but despite that PW6 failed to recall as to where he was on that day. Though, he went on to identify his signatures on the above transcripts and voice identification memo dated 30.09.2010 Ex. PW6/6 (D12), but he also stated that he does not know as to why and when said documents were made. However, subsequently, on consistent questioning by Ld Sr. PP for CBI, he stated that the above conversations were heard by him and the complainant had also identified the voice of the accused in his presence, but again, he further volunteered that though a conversation was going on there, but it could not be heard by him. These depositions made by one of the star witnesses of the prosecution story damage the very credibility thereof.
92. Again, the prosecution has also examined on record PW14 Sh. Anil Kumar Gupta and PW15 Sh. S.P. Singh, who both are the colleagues of the accused and were the witnesses of identification of the alleged voice of the accused in the above said conversations vide memo Ex. PW14/A dated 15.07.2011 (D12). The voice of the accused was got identified from them after the accused had allegedly refused to provide his sample/specimen voice. However, when both these witnesses have been examined on record, they were not sure as to whether the alleged voice of accused appearing in CC No. 146/15, CBI Vs. Gopal Krishan 81/90 most of the above conversations was actually the voice of the accused or not and they have only stated that in most of the conversations, the said voice being projected to be of the accused is disturbed, though in some portions the same appear to be or resembling with the voice of the accused.
93. One other discrepancy of the prosecution case is also that the seals which were used by the TLO/PW10 in sealing the exhibits of this case pertained to the year 2009, as these seals were numbered as 32/2009, and there is no explanation on record from any quarters as to why the seals of the year 2009 were used in the present case, though the trap of this case was effected in May, 2010. Further, besides the above, PW6 Sh. Tara Singh Rawat in his entire statement made in this court has not even named the TLO/PW10 Sh. K. P. Srivastava as a participant or being incharge of the trap proceedings of this case, though PW10 is alleged to have laid the above trap and conducted all the relevant proceedings, pre as well as posttrap, pertaining to this case. There are also contradictions in the testimonies of the prosecution witnesses regarding the conduction of search of the members of the trap team by each other or by the search of complainant through a female staff of CBI. Even the above female official of CBI is not a witness in this case, to rule out that the complainant was not carrying anything incriminating with her at the time of the alleged trap.
CC No. 146/15, CBI Vs. Gopal Krishan 82/90
94. These all discrepancies of the prosecution story are though not individually capable of unrooting the prosecution case on their own, but, together and coupled with the other discrepancies and inconsistencies of the prosecution case, the same make the entire prosecution story and case to be wholly unreliable and unacceptable.
PRESUMPTION UNDER SECTION 20 OF THE PC ACT
95. Though, no case law has been filed or relied upon by Ld Sr. PP for CBI, but it is his contention that in view of the presumption contained under Section 20 of the PC Act, a case for commission of the offence punishable U/s 7 of the above said Act is clearly made out against the accused from the evidence brought on record as in terms of the said presumption, it can be said that the above said amount was accepted by the accused as a gratification or as a motive or reward for showing favours to the complainant in discharge of his official duties. As already held and discussed in some of the above legal pronouncements, this presumption is not available for the offence punishable U/s 13(1)(d) of the PC Act, though it is available for the offence provided U/s 7 of the said Act, interalia. However, this contention of Ld Sr. PP for CBI is not tenable as it is clear from the language of the above Section itself that the above presumption comes into operation only when it is proved that an accused has accepted, obtained CC No. 146/15, CBI Vs. Gopal Krishan 83/90 or has agreed to accept or obtain etc., for himself or for any other person, any gratification or valuable thing etc. Further, proof of acceptance of illegal gratification can follow only if there is proof of demand. Since in the instant case, there is no such consistent or corroborative evidence on record regarding the demand or acceptance etc. of the above bribe amount by the accused from the complainant or any agreement to accept the same, in the considered opinion of this court, the above presumption does not come into operation against the accused. Ld defence counsel in this regard has also relied upon the judgments of the Hon'ble Supreme Court in cases V. Venkata Subbarao Vs. State, represented by Inspector of Police, AP, 2007 Crl. L.J 754 (SC) and T. Subramanian Vs. State of Tamil Nadu, 2006 Crl.L.J. 804 (SC).
BURDEN OF PROOF PLACED UPON THE PROSECUTION AND THE DEFENCE OF THE ACCUSED
96. It is also a contention of the Ld Sr. PP for CBI that the prosecution has duly discharged the burden of proof placed upon it for proving its case against the accused beyond reasonable doubts for commission of the above said offences and this burden stands discharged in view of the consistent and corroborative testimony of the complainant, the two independent witnesses as well as officials of the CBI, who all have participated in the trap proceedings. Further, it is also his contention that in view of the presumption contained under CC No. 146/15, CBI Vs. Gopal Krishan 84/90 Section 20 of the PC Act, the burden of proof placed upon the prosecution to prove this case is not as strong as in an ordinary criminal prosecution. However, these contentions of Ld Sr. PP for CBI are also misconceived. As already discussed above under the previous head, the presumption contained under Section 20 of the PC Act comes into operation only after the demand or acceptance etc. of the bribe amount are satisfactorily proved on record and not otherwise. Moreover, the testimonies of the prosecution witnesses on record have already been discussed in detail and are not found to be consistent or corroborative, but rather full of major contradictions, inconsistencies and discrepancies etc. and the same render the said witnesses to be unworthy of acceptance. Further, even in a prosecution under the PC Act, the guilt of the accused is required to be proved beyond reasonable doubts, as is the cardinal principle of criminal jurisprudence, as an accused is considered to be innocent till it is proved to the contrary by a proper proof of demand and acceptance of the illegal gratification, which are the two vital ingredients to secure the conviction of an accused in a case under the PC Act. Reliance in this regard has rightly been placed by the Ld defence counsel in case State of Karela & Anr. Vs. C.P. Rao, 2012 Crl.L.J. 2607 (SC).
97. While dealing with the extents of the burden of proof placed upon the prosecution and the defence of an CC No. 146/15, CBI Vs. Gopal Krishan 85/90 accused, it has been held by the Hon'ble Supreme Court in case titled as Krishna Janardhan Bhatt Vs. Dattatraya G. Hegde, (2008) 2 SCC (Cri) 166, as under:
"34. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is "preponderance of probabilities". Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies."
98. It is also held by the Hon'ble Supreme Court in case titled as Sanjiv Kumar vs. State of Punjab (2010) 3 SCC (Cri.) 330, as under: "20. We cannot lose sight of the principle that while the prosecution has to prove its case beyond reasonable doubt, the defence of the accused has to be tested on the touchstone of probability. The burden of proof lies on the prosecution in all criminal trial, tough the onus may shift to the accused in given circumstances, and if so provided by law. Therefore, the evidence has to be appreciated to find out whether the defence set up by the applicant is probable and true.
23. It has been observed that defence witnesses are often untruthful, but that is not to say that in all cases defence witnesses must be held to be untruthful, merely because they support the case of the accused. The right given to the appellant to explain the incriminating circumstances appearing against him serves a purpose, and cannot be ignored outright. In every case the court has to see whether the defence set up by the accused is probable, having regard to the totality of the facts and circumstances of the case. If the defence appears to be probable, the court may accept such defence. This is primarily a matter of appreciation of evidence on record and no straitjacket formula can be enunciated in this regard."
99. From the very beginning, the defence of the CC No. 146/15, CBI Vs. Gopal Krishan 86/90 accused has been that he was falsely implicated in this case and he had never demanded or accepted any bribe amount from the complainant and the complainant was only asked to bring and deposit some margin money for the process and approval of the said loan. It is also his contention that the said loan was already recommended by him for sanction on 08.05.2010 and hence, he had no role to play further in the approval of the loan process and there was no question of demand or acceptance of any bribe from the complainant for passing of the said loan as the final sanctioning and approval of the loan was not in his hand and it was in the hands of his senior officer. It is further his defence from the very beginning that after he was falsely apprehended in this case, the CBI officials had demanded some illegal gratification from him and since he could not satisfy their above demand, he was implicated in this case falsely. However, the amount of the alleged illegal gratification demanded by the CBI officials from him has not remained consistent in his defence and had been kept changing during the course of the suggestions given to the prosecution witnesses in the trial. During the course of recording of his statement under Section 313 Cr.P.C. also, he has reiterated his above defence, while admitting specifically that he was apprehended from the above place. However, it is his case that he was only accompanying the complainant to RML Hospital in connection with the verification of her loan documents since the landlord of the complainant was CC No. 146/15, CBI Vs. Gopal Krishan 87/90 expected to visit there to see the mother of the complainant lying admitted in the said hospital, as told to him by the complainant. One defence witness, namely Sh. Rajesh Kumar Gupta, was also examined by the accused on record as DW1 and as per this witness, the accused had worked with him and was a man of good character and integrity and the loan application of the complainant was though initially assigned to the accused, but it was dealt with by the accused as per procedure and rules. He further states that the said application was subsequently assigned to him, after the involvement of accused in this case, and it was found to be having some problem, which was subsequently removed and the loan recommended by him.
100. Ld Sr. PP for CBI has argued that the very fact that the accused admits to have been apprehended by the trap team from the above place shows that the story of the prosecution is true and he was apprehended from the said place when he reached there to accept the demanded bribe amount. However, in the opinion of this court, no such presumption or interference of acceptance or of the demand of the bribe amount by the accused can be drawn simply because he has admitted to have been picked up by the CBI officials from near the above metro station. Though, the defence evidence led by the accused on record to prove his innocence is also not enough, but, as already discussed CC No. 146/15, CBI Vs. Gopal Krishan 88/90 above, the onus to prove the guilt of the accused beyond reasonable doubts always rested upon the prosecution and this onus never shifted. The onus placed upon the accused to prove his innocence is not as strong as that placed on the prosecution because he has only to demonstrate from the facts and circumstances brought on record that his defence was probable or the loopholes and lacunaes of the prosecution story as brought on record left a scope for raising of an inference about his innocence or showed that his defence was probable. The initial burden of proving its case always rests upon the prosecution and this burden never shifts upon the accused even despite the fact that any statute may contain presumptions like the one contained under Section 20 of the PC Act. Ld defence counsel in this regard has also rightly referred to the judgment of the Hon'ble Bombay High Court in case Ravindra Narayan Joshi & Anr. Vs. The State of Maharashtra, Crl. Appeal No. 364/1994, decided on 10.08.2015, wherein it was held that the accused shall only demonstrate the preponderance of probabilities and the onus caste upon the accused to discharge the presumption contained under Section 20 of the PC Act is of a much lesser degree than that which is caste upon the prosecution.
101. In view of the above discussion, it is held that the evidence brought on record by the prosecution is not sufficient to bring home the guilt of the accused for the above said CC No. 146/15, CBI Vs. Gopal Krishan 89/90 offences beyond reasonable doubts and the accused is, therefore, acquitted of the above charges framed against him giving benefit of doubt. A personal bond in the sum of Rs. 25,000/ with one surety of the like amount, alongwith the proofs of addresses and photographs of the accused and surety, has already been furnished on record by the accused in terms of the provisions contained U/s 437A Cr.P.C. and it shall remain valid for a period of six months from today, as provided under the said Section. The accused is further directed to appear before the Hon'ble High Court in case any notice of the appeal, if any, filed by the prosecution/CBI against his acquittal by this court is received by him. File be consigned to record room, after completing the necessary formalities.
Announced in open Court on 02.12.2015 (M.K. Nagpal) Special Judge (PC Act), CBI08, Central District, THC, Delhi CC No. 146/15, CBI Vs. Gopal Krishan 90/90