Delhi District Court
Cc No. 147/15, Cbi vs . M. K. Mishra Page No. 1 Of 121 on 5 November, 2016
IN THE COURT OF SH. M. K. NAGPAL, SPECIAL JUDGE
(P.C. ACT), CBI08, CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI
CC No. : 532185/16 (Old CC Nos. 147/15 & 48/12)
RC No. : 27(A)/2000/CBI/ACB/ND
U/s : 120B r/w Section 419 IPC and Sections 7
& 13(2) r/w Section 13(1)(d) of the PC
Act, 1988
CNR No. DLCT010000182001
Central Bureau of Investigation (CBI)
Versus
1. Manoj Kumar Mishra
S/o Sh. Satya Deo Mishra
2. Satya Deo Mishra (S. D. Mishra) (since expired and
proceedings against him abated on 12.09.2012)
S/o Sh. Haridaya Ram
Both R/o of Flat No.9
Pocket7, BlockG
Section15, Rohini, Delhi
Date of FIR : 24.05.2000
Date of Institution : 14.09.2001
Arguments concluded on : 26.10.2016
Date of Judgment : 05.11.2016
J U D G M E N T
The present case was registered on a complaint
Ex. PW2/A (D1) dated 24.05.2000 made by the
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 1 of 121
complainant/PW2 Dr. Hari Shankar Bhardwaj (H. S.
Bhardwaj), who was a resident of H. No. 351B, Pocket J & K,
Dilshad Garden95 and was working as a CMO (Ayurveda) in
Indira Gandhi ESI Hospital, Jhilmil, Delhi. It was alleged in the
above complaint that on 10.05.2000 the complainant had
received a telephone call and the caller introduced himself as
one Inspector Mishra of CBI, ACB Branch and told him that
there was some complaint against him and he should come to
him (caller), alongwith documents of his flat, car and the
service record. The caller also told his address as H. No. G
7/9, Sector15, Rohini and his residential telephone number as
7884407.
2. It was also alleged in the said complaint by the
complainant that he did not pay any heed to the words of the
caller, but again on 11.05.2000, he received another call from
the same caller, when he was present in the room of Dr.
Mohanti, Deputy Medical Superintendent of the above
hospital, and the caller again told him that there were so many
complaints against him and the caller also told him that he
should act according to him (caller), else he will lose his job.
The caller further asked the complainant to come to his
residence at 6:00 PM on that day, but the complainant again
ignored the said call. As per the further allegations made in
the complaint, the complainant started receiving calls from the
above caller on morning and evening of everyday thereafter
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 2 of 121
and even on 15.05.2000, another call was received by him,
while he was sitting in the room of Sh. M. K. Sharma, Deputy
Director (Administration) of the above hospital, and this time
the caller extended threats to him that in case he did not visit
the house of the caller, his (complainant's) house will be
raided. The complainant even ignored these calls.
3. It was further alleged by the complainant that he
again received a call from the above caller, i.e. Inspector
Mishra, on 19.05.2000 and the caller asked him to come at his
residence on 20.05.2000 at 2:00 PM. The complainant had
then visited the above residence of Inspector Mishra and he
was told by Inspector Mishra that some complaints with regard
to giving of medicines after tearing the wrappers, selling of
medicines meant for free supply to patients, in collusion with
the pharmacists, attesting the mark sheet of his own daughter
and purchase of a TV without intimating his department were
pending against him, besides some other complaints. The
complainant has also alleged that the above caller/Inspector
Mishra demanded a bribe of Rs. 1 lac from him for filing all
these complaints and when the complainant expressed his
inability to pay such a huge amount, the demand of bribe was
reduced to Rs. 50,000/ and Inspector Mishra further directed
him to arrange and pay to him at least Rs. 10,000/ by
tuesday, i.e. 23.05.2000, and the balance bribe amount of Rs.
40,000/ by 15.06.2000. Since the complainant was not willing
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 3 of 121
to pay the above demanded bribe amount, he approached the
CBI with his above written complaint Ex. PW2/A (D1) and the
then SP, ACB, CBI directed Inspector A. K. Singh/PW20 to
verify the same, register a regular case and to lay the trap. It
is then that the FIR Ex. PW20/1 (D2) of this case was
registered against the accused Satya Deo Mishra (A2),
Inspector CBI, U/s 7 of the Prevention of Corruption Act, 1988
(in short, PC Act) and investigation was undertaken by the
IO/PW20 Inspector A. K. Singh.
4. After registration of the case, a trap team
consisting of the IO/PW20, Inspector A. K. Singh, PW18
Inspector H. S. Karmyal, PW19 Sub Inspector Rakesh Kumar
(Constable at that time), Inspector/Smt. Mridula Shukla and
Inspector/Smt. Shobha Dutta, under the supervision of Sh.
Madhusudan Singh, DSP, was constituted and two
independent witnesses namely PW3A Sh. M. K. Mehta,
Deputy Manager and Sh. Jagvir Singh, Sr. Assistant (since
expired), both from Oriental Insurance Company, Head Office,
Delhi, were also made to join the trap team at around 6:15 PM.
The above complaint Ex. PW2/A was read over in presence of
all the trap team members and the witnesses satisfied
themselves about veracity of the complaint. The complainant
had produced an amount of Rs. 10,000/ in the form of 20 GC
notes of Rs. 500 each and PW18 Inspector H. S. Karmyal
treated these notes with phenolphthalein powder and
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 4 of 121
explained to all the reaction of phenolphthalein powder with
colourless solution of sodium carbonate by giving a practical
demonstration. The treated GC notes were then kept in the
left side shirt pocket of complainant with directions to hand
over the same to the accused only on his specific demand. All
the other pretrap formalities were also observed and
incorporated, including noting down of the serial numbers of
the above GC notes, in one handing over memo Ex. PW2/B
(D3) prepared by the IO/PW20 in this regard, which stood
completed by 8:30 PM.
5. The IO/PW20 had also arranged a recording
equipment called KCR, alongwith its miccumtransmitter
DX400, and one blank cassette make Meltrack DRC60,
alongwith a telephone bug, and after explaining its working to
the complainant and the independent witnesses, the miccum
transmitter of recording equipment was handed over to the
complainant and he was directed to switch it 'on' before
contacting the accused. The KCR was handed over to the
independent witness Sh. Jagvir Singh with instructions to
overhear the conversation that was to take place between the
complainant and the accused through an earphone attached to
it. The blankness of the cassette put in the above KCR was
ensured, formal voices of both the independent witnesses
recorded therein and certain other formalities were also
completed before doing so and all these proceedings were
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 5 of 121
incorporated in one memo Ex. PW2/C (D4) prepared with
regard to the handing over of the above recording equipments
and this memo stood completed at around 8:45 PM.
6. It is further alleged that thereafter, the CBI team
reached at the above above residence of the complainant at
around 9:30 PM and the telephone number 2297148 installed
in the drawing room of his residence was bugged with the help
of the above bugging device and the said telephone bug was
further connected with the above KCR for the purposes of
recording of the telephonic conversations. The complainant
was then made to dial the telephone number 7884407 of the
accused and the conversation which took place between him
and the accused was recorded in the cassette inserted in the
above KCR, which was subsequently taken out and played
before the trap team members and a transcription thereof was
also prepared. The above conversation showed that the
accused talked with the complainant regarding payment of
money and directed the complainant to again call him on
25.05.2000, i.e. on the next day, after 8:00 AM. The above
original cassette was then sealed in a cloth wrapper with the
CBI seal and the cassette as well as the cloth wrapper were
got signed from both the independent witnesses. The above
treated GC notes were taken back from the complainant and
then put in a paper envelope and this paper envelope was
sealed with the seal of CBI and also got signed from the two
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 6 of 121
independent witnesses and handed over to the complainant
and the CBI seal was handed over to the independent witness
Sh. Jagvir Singh, with directions to both of them to bring these
in the CBI office on the next day. One memo Ex. PW2/D (D5)
in this regard was also prepared by the IO/PW20 and the trap
proceedings on that day stood called off at around 11:00 PM.
The transcription of the above conversation is Ex. PW2/E (D
6) on record, which was also signed by both the independent
witnesses, besides the IO/PW20 and the complainant.
7. It is further alleged that the trap team members
again assembled in the office of CBI on 25.05.2000 at around
6:30 AM. The complainant produced the above sealed
envelope containing the tainted bribe amount of Rs. 10,000/
and the said amount was again kept in his left side shirt pocket
with similar directions with regard to handing over of the same
to the accused on his specific demand. One blank cassette of
the same make and the same recording equipments were
again arranged by the IO/PW20 and all the pretrap formalities
were again undertaken by him and recorded in another
handing over memo Ex. PW2/F (D7) prepared in this regard,
which stood concluded at around 7:15 AM. Thereafter, the
CBI team again reached at the residence of the complainant at
around 8:00 AM and after making arrangements for recording
of conversations of the above telephone number 2297148 of
the complainant with the help of the above recording
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equipment, the complainant was again made to call the
accused on his above telephone number 7884407, which call
was simultaneously recorded in the above KCR. It is alleged
that after this conversation, the complainant told the trap team
members that the above accused Satya Deo Mishra
demanded the entire bribe amount of Rs. 50,000/ from him
and directed him to pay it on or before 02.06.2000 to his wife
and at his residence (accused's) and the complainant was also
told by the accused that the complaints against him will be
filed only after payment of the above said amount. This
recorded conversation was also heard by all and it was further
corroborated by the independent witness Sh. Jagvir Singh,
who had overheard the same, and a copy of the above
cassette containing this conversation was got prepared from
the market and the original cassette was then sealed in a cloth
wrapper in the similar manner. The complainant was again
directed to keep the bribe amount of Rs. 10,000/ with him and
to be present in the CBI office again on 30.05.2000 at 6:00
AM, after arranging the entire bribe amount of Rs. 50,000/,
and the seal of CBI used in the above proceedings, which was
taken back from the independent witness Sh. Jagvir Singh,
was again handed over to him for keeping it in safe custody.
The above proceedings were incorporated in another memo
Ex. PW2/G (D8) prepared by the IO in this regard, which
stood completed at around 10:00 AM.
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 8 of 121
8. It is further alleged that on 29.05.2000 at around
7:30 AM, the complainant had received a call from the above
accused Satya Deo Mishra at his residence and the accused
directed him to arrange Rs. 50,000/ as soon as possible and
before 02.06.2000 and he further asked from the complainant
about the details of his appointment and promotion etc. After
perusing his carrier profile, the complainant had also made a
call to the accused at his above residential number on the
same day and this call was attended by a person, who
introduced himself as father of the accused/Inspector Satya
Deo Mishra and also told the complainant that he was aware
about the matter of complainant. The said person further told
the complainant to arrange the bribe amount of Rs. 50,000/ at
the earliest and to give it to Inspector Satya Deo Mishra for
getting his work done. The above person also then instructed
the complainant to pay the bribe amount on the very next day,
i.e. 30.05.2000, before 9:00 AM to Inspector Satya Deo Mishra
to enable him (Inspector S. D. Mishra) the submission of a
final report on the complaints pending against the complainant.
The said person further threatened the complainant that in
case of non payment of the bribe amount, the complainant will
have to face dire consequences and he also instructed the
complainant to come alone at their residence with the above
bribe amount and the complainant had thereafter conveyed all
these developments to the IO/PW20 on the same day.
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 9 of 121
9. It is further the case of prosecution that a trap
team consisting of the above IO/PW20 Inspector A. K. Singh,
PW18 Inspector H. S. Karmyal, PW19 SI Rakesh Kumar,
Inspector Shobha Dutta, Inspector Mridula Shukla, DSP
Madhusudan Singhal and other staff of CBI, the complainant
and the above two independent witnesses had again
assembled in the office of CBI on 30.05.2000 at around 6:00
AM. The complainant had produced an amount of Rs.
50,000/ in the form of 20 GC notes of Rs. 500/ each and 400
GC notes of Rs. 100/ each and after all these GC notes were
treated with the phenolphthalein powder and a demonstration
of reaction thereof with sodium carbonate was given again to
the team members, these tainted notes were kept in a dark
brown colour bag of a given description, which was brought by
the complainant, and this bag was handed over to the
complainant with similar directions regarding handing over of
the currency notes to the accused on his specific demand.
The recording equipment as earlier used, alongwith one fresh
cassette make MeltrackDR60, was again arranged and
handed over to the complainant and the independent witness
Sh. M. K. Mehta after doing the requisite formalities and
besides the same, one micro cassette recorder of make Sony
and a micro cassette of the make Sony MC60 were also
arranged and this micro cassette recorder having the said
cassette was also given to the complainant after completing
the requisite formalities. All these proceedings stood
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 10 of 121
concluded at around 7:30 AM. This time, the independent
witness Sh. M. K. Mehta was directed to act as a shadow
witness, but he was instructed to stay outside the house of
accused as the accused had earlier asked the complainant to
come alone with the bribe money. The complainant was also
directed to give a prefixed signal by saying 'Gin to Lijiye' as
soon as he handed over the bribe amount to the accused and
the shadow witness was instructed to give a signal by way of
scratching his head by both his hands on overhearing the
above words. The complainant was further asked to give the
signal by taking off his spectacles also at the door of house of
the accused, after completion of transaction of the bribe
amount. All the above proceedings were again incorporated in
two memos Ex. PW2/J (D9) and Ex. PW2/K (D10), which
were prepared regarding the handing over of the above bribe
amount and recording equipments respectively, and the details
of the currency notes were also incorporated in separate
sheets, which were made as Annexure A (also part of D9) to
the memo Ex. PW2/J and this Annexure is Ex. PW2/H on
record.
10. It is further alleged that the trap team members
had then reached outside residence of the accused at around
8:15 PM and took suitable positions around the said house.
The complainant alone had proceeded and entered the house
of the accused. After about 1015 minutes thereof, a person in
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his fifties was seen coming out of the said house and
proceeding towards the bus stand and thereafter, the trap
team members also observed that a man in his thirties came
to the front side of the house. At around 8:45 AM, the
complainant also came out of residence of the accused and
gave the prefixed signal by taking off his spectacles and the
trap team members then rushed towards the residence of
accused and rang the door bell. The above person in his
thirties had opened the door and at instance of the
complainant, the said person was challenged by the IO/PW20
as to whether he had demanded and accepted a bribe of Rs.
50,000/ from the complainant, on which that person became
nervous and kept mum. On being asked that person had
disclosed his identity as the accused Manoj Kumar Mishra (A
1) S/o Satya Deo Mishra, Inspector, MDMA, CBI, New Delhi
(A2).
11. It is further alleged that the complainant had then
told the trap team members that the above person had infact
introduced himself as Inspector Satya Deo Mishra on his
earlier visit to the house of accused on 20.05.2000. The
accused Manoj Kumar Mishra was caught hold from his wrists
and the bribe amount of Rs. 50,000/ was found kept on the
table cloth (made of polythene) of the centre table lying in the
drawing room of the house of accused. The independent
witness Sh. Singh was directed to recover the above said
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bribe amount from the table and to tally the numbers thereof
with those mentioned in the above Annexure A Ex. PW2/H
(part of D9), to the above handing over memo Ex. PW2/J, and
the same were found to be tallying. The complainant informed
the trap team members that when he entered the house of
accused, the door was opened by the above accused Manoj
Kumar Mishra (A1), whom the complainant knew as Inspector
Satya Deo Mishra. A1 had asked the complainant to sit in the
drawing room and introduced him to A2 as his father, without
naming him and A2 was taking breakfast at that time. A1
also stated to A2 that 'he is Dr. Bhardwaj and he has come for
the work which I told you'. On this, A2 directed A1 to 'do as I
had already briefed you'. Then A2 left the house for his office
without telling the complainant that he himself was the actual
Inspector Satya Deo Mishra.
12. It is further alleged by the prosecution that the
complainant also told the trap team members that thereafter A
1, i.e. socalled Inspector Satya Deo Mishra, directed him to
wait in the drawing room and he himself went to the front
balcony and also to the rear balcony of the house and then
came back in the drawing room. Thereafter, some
conversation took place between both of them and the above
accused demanded the bribe amount from the complainant by
gesture of his right hand. The complainant had then given the
above bribe amount to the accused, after taking the same out
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of the above bag, and the accused accepted it with his right
hand and after observing the same had kept it in his left hand.
The complainant informed the accused that the bribe amount
was Rs. 50,000/, but on this he was told by the accused that it
was Rs. 40,000/ only. The complainant had then opened the
zip of his above bag and took out another amount of Rs.
10,000/ from the said bag, in the form of 20 GC notes in
denomination of Rs. 500/ each, which were inadvertently left
in the bag, and handed them over to the accused. The
accused (A1) accepted the same through his right hand and
kept the entire bribe amount of Rs. 50,000/ on the table cloth
of the above centre table. The complainant also told the trap
team members that since he could not inadvertently take out
the entire money from the bag in one go, he forgot to give the
signal by saying 'Gin to Lijiye'.
13. Thereafter, the washes of the right as well as left
hand of accused were taken in separately prepared colourless
solutions of sodium carbonate and on doing so, the colour of
the solutions turned into pink and these pink colour washes
were then transferred to empty glass bottles, which were
marked as RHW and LHW respectively and these bottles were
further converted into cloth parcels and sealed with the seal of
CBI. These bottles as well as the cloth parcels were got
signed from the independent witnesses. The original
cassettes containing the recorded conversations were also
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taken out from the KCR and the micro cassette recorder and
the same were played and the recorded conversations
confirmed the version of the complainant and of the shadow
witness and thereafter, these original cassettes were also
sealed separately in the similar manner. A1 also disclosed
that he was posing himself as Inspector Satya Deo Mishra, i.e.
A2, and he himself had further written a complaint against the
complainant and after keeping a photocopy thereof, he
destroyed the original of the said complaint. He also disclosed
to the trap team members that a photocopy of the seniority list
of Ayurvedic Physicians and CBSE mark sheet of Ms.
Bhawna, the daughter of the complainant, were supplied to
him by one Naveen Srivastava, a neighbour of the
complainant who was having some enmity with the
complainant, and these documents were kept in the dickey of
his scooter number UAM 2789, alongwith the above
photocopy of the said complaint, and these documents were
then recovered by the IO/PW20 during search of the said
scooter. All the above post trap proceedings were
incorporated in one recovery memo Ex. PW2/L (D11)
prepared by the IO at the spot and the trap proceedings stood
concluded at around 3:30 PM. The IO/PW20 had also
prepared one rough site plan Ex. PW3/A (D12) of the spot.
The IO/PW20 had also arrested both the accused persons and
conducted their personal searches vide memos Ex. PW3/C (D
14) and Ex. PW3/B (D13) respectively on the same day and
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 15 of 121
further collected their specimen voice samples vide memo Ex.
PW4/F (D25) and specimen handwritings Ex. PW4/E1 to Ex.
PW4/E10 (D27) of A1 on the next day, i.e. 31.05.2000.
14. Further investigation of the case was assigned to
Inspector Virender Thakran/PW21 and he recorded the
statements of witnesses and sent all the exhibits of this case
to the CFSL, New Delhi. Vide the CFSL report Ex. PW3/A (D
30) received subsequently, the above washes were opined to
have given positive tests for the presence of phenolphthalein
powder and sodium carbonate, vide report Ex. PW9/E (D31),
similarities were observed between the specimen handwritings
of A1 and the questioned handwriting appearing in the
photocopy of the above complaint Ex. PW9/A (also Mark A1)
and further vide report Ex. PW1/A (D32), the specimen voice
of A1 and the questioned voices of A1, posing himself as A
2, recorded in the above conversations were opined to be the
probable voices of one and the same person.
15. It has also been established during the
investigation that A1 and A2 were both son and father
respectively and A1 himself was also a public servant being
employed with National Buildings Construction Corporation
(NBCC) and they both had conspired with each other and in
furtherance of the said criminal conspiracy, A1 was
impersonating himself as A2 and had made the above calls to
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 16 of 121
and also demanded and accepted the above said bribe
amount from the complainant and A2 was also a party to the
said demands and acceptance of bribe. Hence, after obtaining
sanctions Ex. PW22/A (D33) and Ex. PW11/A (D34) for
prosecution of A1 and A2 respectively from their competent
authorities and after completion of some other requisite
formalities, PW21 had ultimately prepared and filed this
chargesheet against both the accused persons for commission
of the offence punishable U/S 120B r/w Section 419 IPC and
Sections 7 & 13(2) r/w Section 13(1)(d) of the PC Act, 1988 by
both the accused persons, for the substantive offences U/Ss
419 IPC and 13(2) r/w 13(1)(d) of the PC Act by A1 and
Sections 7 & 13(2) r/w Section 13(1)(d) of the PC Act by A2.
16. Though not reflected in the chargesheet, but it is
necessary to mention here that the above Naveen Srivastava
was also arrested as an accused by the CBI on 30.05.2000
itself and the search of his residential and office premises was
also conducted on 31.05.2000 and one diary Ex. PW4/A (also
Ex. PW9/C) (D26) seized at his instance vide memo Ex.
PW4/B (D24) from his office premises, but he was released
on bail by this court on 31.05.2000 while observing that there
was no prima facie evidence to disclose his role in the alleged
conspiracy between A1 and A2 and the alleged disclosures
made by him before the CBI had not led to any recovery or
discovery of new facts. Subsequently, he was not
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 17 of 121
chargesheeted by the CBI as an accused in this case and
rather, his statement as a witness was recorded during
investigation and he has also been examined on record during
the trial as PW16.
17. The chargesheet was filed in the court on
14.09.2001 and cognizance of the above said offences was
taken on 27.10.2001. Charges for commission an offence
punishable U/S 120B r/w Section 419 IPC and Sections 7 &
13(2) r/w Section 13(1)(d) of the PC Act, 1988 against both the
accused persons, for the substantive offences punishable U/S
419 IPC and Sections 7 & 13(2) r/w Section 13(1)(d) of the PC
Act against A1 and for the substantive offences punishable
under Sections 7 & 13(2) r/w Section 13(1)(d) of the PC Act
against A2 were also framed by this court on 06.08.2014.
18. The prosecution in support of its case has
examined on record total 23 witnesses, but their serial
numbers have been given till PW22 only as two witnesses
were examined as PW3 inadvertently and one of them was
numbered as PW3A. As already indicted above, A2 Satya
Deo Mishra already stands expired and proceedings against
him were abated on 12.09.2012 and hence, the evidence is
required to be discussed and appreciated only in respect of
the charges framed against A1 Manoj Kumar Mishra. The
names and purpose of examination of the witnesses is being
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 18 of 121
stated herein below:
19. PW1 Dr. Rajender Singh is the concerned voice
expert from the physics division of CFSL, CBI, New Delhi and
he has proved his report Ex. PW1/A dated 09.11.2000 (D32)
regarding the comparison of questioned and specimen voices
pertaining to this case and had also prepared the
transcriptions Ex. PW1/B, Ex. PW1/C and Ex. PW1/D (also
part of D32) of the questioned and specimen recordings
contained in the cassettes marked Q2, Q3 and S1
respectively.
20. PW2 Dr. H. S. Bhardwaj is the complainant of
this case and he has deposed in detail on the above lines of
the prosecution story and also about all the relevant
documents prepared in connection with the above trap
proceedings and has further identified his signatures thereon.
During his examination in the court, he has also identified both
the accused persons, the documents seized from the scooter
of accused marked as A1 to A5, the GC notes as Ex. P1/1 to
Ex. P1/420, the above bag in which he carried the said notes
at the time of trap as Ex. P2, table cloth of the centre table
seized from the house of accused as Ex. P3, the voices of the
two independent witnesses as well as of the accused, besides
his own voice, as appearing in the recorded conversations
dated 25.05.2000 and 30.05.2000 contained in the cassettes
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 19 of 121
marked Q2, Q3 and S1, with reference to the relevant portions
of these conversations in the above transcripts Ex. PW1/B to
Ex. PW1/D (D32). His depositions will be discussed and
appreciated in detail subsequently.
21. PW3 Sh. K. S. Chhabra is the concerned expert
of chemistry division of CFSL, New Delhi and he has proved
his report Ex. PW3/A dated 30.06.2000 (D30) given regarding
examination of the samples of the above three washes, which
tested positive for the presence of phenolphthalein powder
and sodium carbonate.
22. PW3A Sh. Mahender Kumar Mehta (M. K.
Mehta) is one of the two independent witnesses joined by the
CBI in connection with and at the time of the above trap
proceedings. He has also deposed in detail regarding his
participation in the said proceedings and preparation of the
above relevant documents and further identified his signatures
thereon. Besides identifying both the accused and the exhibits
and voices as already identified by the complainant, he also
identified the bottles containing the above washes as Ex. P4 to
Ex. P6, the cloth wrappers thereof as Ex. P7 to Ex. P9, the
cassettes marked Q1, Q2, Q3 and Q4 as Ex. P10, Ex. P11,
Ex. P12 and Ex. P13 and the cloth wrappers thereof as Ex.
P10/A, Ex. P11/A, Ex. P12/A and Ex. P13/A respectively,
alongwith his signatures appearing on all these articles.
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 20 of 121
23. PW4 Sh. J. N. Sharma is the then SubInspector
(SI) (Vigilance), Delhi Vidyut Board and PW5 Sh. Sheo Ram
is the Hawaldar of Delhi Vidyut Board at the relevant time and
they both were joined in the search proceedings of the house
and office room of PW16 Naveen Srivastava (though initially
arrested as accused, as already discussed above) conducted
by the CBI officials on 31.05.2000. They both have deposed
regarding the seizure of one diary Ex. PW4/A (also Ex.
PW9/C) (D26) from one briefcase lying in an almirah of the
said office during the above search and have further identified
their signatures on the memo Ex. PW4/B (D24) prepared with
regard to the said seizure. They both have also witnessed the
taking of specimen voice samples of both the accused persons
vide memo Ex. PW4/F (D25) in their presence and also the
specimen handwritings Ex. PW4/E1 to Ex. PW4/E10 (D27) of
A1 in their presence on that day. They have also identified
both the accused, the cassettes marked S1 and S2 in which
the voice samples of the accused persons were taken as Ex.
PW4/C and Ex. PW4/D respectively, alongwith the respective
wrappers Ex. PW4/C1 & Ex. PW4/D1 thereof, and also their
signatures appearing on the memo Ex. PW4/F (D25) vide
which the above voice samples were taken. However, PW4
could recollect about this memo Ex. PW4/F only when he was
got declared hostile and was cross examined by Ld PP for CBI
on this aspect.
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 21 of 121
24. PW6 Sh. Manohar Lal Chawla is the then
Commercial Officer of NorthIII, MTNL, Delhi and he has
proved his letter Ex. PW6/A dated 29.11.2000 (D21), vide
which he had intimated to the CBI that telephone number
7884407 in the name of Smt. Kiran Mishra was working at the
above address on the accused persons since 17.03.1999.
25. PW7 Sh. J. N. Mohanti was the Deputy Medical
Superintendent of the above ESI Hospital of complainant at
the relevant time and he says that in May, 2000, a call was
received in his office and the caller claimed that he was an
Inspector of CBI and he wanted to talk to the complainant. He
also deposed that thereupon, he called the complainant, who
attended the said call.
26. PW8 Sh. M. K. Sharma is the then Deputy
Director (Admn.) of the said hospital and he states that in May,
2000, the complainant came in his room and was looking
disturbed. On being asked about the reasons, the
complainant narrated to him that he (complainant) was being
telephonically harassed by some officer of CBI and then he
advised the complainant to approach Mr. B. S. Sandhu,
another Deputy Director of their office, who was earlier in CBI.
27. PW9 Sh. T. R. Nehra is the concerned
handwriting expert of documents division of CFSL and he had
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 22 of 121
examined the specimen writings marked S1 to S12 Ex.
PW4/E1 to Ex. PW4/E10 and Ex. PW9/D1 & Ex. PW9/D2 (all
part of D27) of A1 and the specimen writings marked S13 &
S14 Ex. PW9/D3 & Ex. PW9/D4 (D28) of PW16 Naveen
Srivastava, with reference to the alleged writing of above
accused appearing in the above copy of complaint Ex. PW9/A
(D15) and in his pocket diary Ex. PW9/B (D22) and that of
PW16 Naveen Srivastava in his diary Ex. PW9/C (D26) and
gave the report Ex. PW9/E dated 09.11.2000 (D31) in respect
thereof.
28. PW10 Sh. Gyan Bahadur was posted as a SI in
MDMA Branch of CBI, where A2 Satya Deo Mishra was
posted, and he is a witness to the memo Ex. PW10/A dated
12.10.2000 (D29), vide which one attested copy Ex. PW10/B
(part of D29) of the revised tour programme of A2 from
09.02.2000 to 20.05.2000 (inadvertently typed as 09.02.2005
to 20.05.2005) was seized during the investigation. He has
also identified the signatures of his Office Superintendent Sh.
Rajender Singh on the above said attestation appearing on the
said document.
29. PW11 Sh. R. P. Agrawal is the then DIG, MDMA,
CBI and he has granted sanction for prosecution of A2 vide
his order Ex. PW11/A (D34).
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 23 of 121
30. PW12 Sh. Om Prakash was also posted as an
Inspector in ACB, CBI at the relevant time and he, alongwith
PW4 and PW5, was part of a raiding team led by Inspector
Surender Malik, which had conducted search of the office and
residence premises of PW16 Naveen Srivastava, as already
stated above. He is also a witness of seizure of the diary Ex.
PW4/A (also Ex. PW9/C) (D26) from the office premises of
PW16 vide memo Ex. PW4/B (D24). He has further stated
that though Naveen Srivastava claimed that photocopies of
mark sheet of Ms. Bhawna and seniority list of ESI doctors
was kept in a briefcase lying in the said premises, but these
documents could not be found in the said briefcase. He
further stated that in the above diary Ex. PW4/A, the telephone
number and residential address of A1 were written at points
Q5 and Q4 respectively.
31. PW13 Sh. Rajinder Singh is the Office
Superintendent of MDMA, CBI and he is the person who had
attested the above copy Ex. PW10/B (D29) of the revised tour
programme of A2, which was seized vide memo Ex. PW10/A
(D29).
32. PW14 Ms. Roopa Bharat was working as Labour
Enforcement Officer at the relevant time and she is a
colleague of the above Naveen Srivastava and claims to have
arranged one copy of a seniority list of ESI doctors through her
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 24 of 121
aunt working in ESI, at the instance of another colleague of
her named Sh. R. K. Aggarwal. She denies that the copy of
seniority list marked A3 on record was the same list arranged
by her and though she was also got declared hostile by the Ld
PP, but she also denied that she procured a copy of the above
list at the instance of the above Sh. Naveen Srivastava.
33. PW15 Mohd. Samiullah was posted as ASI in
MDMA, CBI at the relevant time and he has only identified few
words in the recordings of cassette marked Q1 containing
conversation dated 24.05.2000 to be in the voice of A2, with
whom he had worked.
34. PW16 Sh. Naveen Srivastava, as stated above,
was initially arrested as an accused, but later on made a
witness by the CBI. As per the prosecution case, the daughter
of complainant was having intimacy with this witness and they
both wanted to marry and since the complainant was not
agreeing to their marriage, this witness had asked A1 to put
pressure on the complainant to make the complainant agree
for the above relationship and for this purpose, he had also
provided certain documents to A1. However, in court he is
hostile on these aspects, though he has deposed about the
search of his residential as well as office premises by the CBI
team and the seizure of the above diary Ex. PW4/A (also Ex.
PW9/C) (D26) vide memo Ex. PW4/B (part of D24).
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 25 of 121
35. PW17 Inspector Surender Malik was heading
the above team of CBI which had searched the office and
residence premises of PW16 Sh. Naveen Srivastava on
31.05.2000, in the presence of PW4, PW5 as well PW12, and
had seized the above diary Ex. PW4/A (D26) vide memo Ex.
PW4/B (D24).
36. PW18 Inspector Harish Singh Karmyal and
PW19 SI Rakesh Kumar have both claimed themselves to be
members of the trap team and PW20 Inspector Anil Kumar
Singh is the Trap Laying Officer (TLO) as well as the main
Investigating Officer (IO) of this case and they all have
deposed regarding their participation in the above trap
proceedings conducted on different dates, the documents
prepared during the said proceedings as well as the arrest etc
of the accused persons.
37. PW21 Inspector Virender Thakran is the part IO
of this case, subsequent to the initial IO/PW20 Inspector A. K.
Singh, and on being assigned investigation of this case on
02.06.2000, he had recorded the statements of witnesses,
took specimen writings Ex. PW9/D1 & Ex. PW9/D2 (D27) of
A1 and specimen writings Ex. PW9/D3 & Ex. PW9/D4 (D28)
of PW16 Sh. Naveen Srivastava, seized tour programme Ex.
PW10/B of A2 vide memo Ex. PW10/A (both these
documents are part of D29), letter Ex. PW6/A (D21)
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 26 of 121
regarding telephone installed at the house of accused
persons, sent the exhibits of this case to CFSL, and also
prepared and filed the chargesheet against the accused
persons in the court, after receiving the CFSL reports and the
sanctions for prosecution of the accused.
38. PW22 Sh. Daljit Singh is the then General
Manager of NBCC and he had accorded sanction Ex. PW22/A
(D33) for prosecution of A1.
39. After conclusion of prosecution evidence, all the
incriminating evidence brought on record was put to the
accused Manoj Kumar Mishra in his statement recorded U/s
313 Cr.P.C. and the same was denied by him either as wrong
or beyond his knowledge. The accused has claimed the entire
story of prosecution to be false, baseless and manipulated.
He has specifically denied of ever having impersonated as
Inspector Satya Deo Mishra (A2) or having any telephonic
conversations or negotiations with the complainant and he
also specifically denied the recording of any such
conversations. He has further claimed specifically that though
the above landline number 7884407 was installed at his
residence at the relevant time, but the same was not in
working condition during the period between 10.05.2000 to
08.06.2000.
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 27 of 121
40. Further, it is the case of accused that on the
alleged day of incident, he was present in the balcony of his
house, alongwith his brother and wife, when the complainant
reached there and had parked his (complainant's) car in front
of his house. He asked from the complainant about the
purpose of visit of the complainant to his house, to which the
complainant replied that the address of his house was
provided to the complainant by Sh. Naveen Srivastava.
Though, the accused has not denied the presence of his father
in the house at that time, but he also claims that he went down
stairs to help his father in taking out his car from the parking
and after about 20 minutes, when he came back the
complainant, who was sitting in his house at that time, had
planted the above trap amount in his house and in his
absence, at the instance of the TLO. He also claims that the
complainant then left his house while asking him to call Sh.
Naveen Srivastava.
41. It is also the case of accused that thereafter, when
he and his brother were going outside the house, the TLO met
them on stairs and shook hands with them as they were
already known to each other since the father of the TLO
namely Sh. Baljit Singh and his father, i.e. A2 Satya Deo
Mishra, were both working with CBI. The accused further
claims that he as well as his father were falsely implicated in
this case by the TLO and the complainant, in collusion with
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 28 of 121
each other, as Sh. Baljit Singh, the father of the TLO, had
earlier purchased some furniture from Panchkuian Road
through his father Satya Deo Mishra and the money paid for
the said furniture was borrowed by Sh. Baljit Singh from
accused Satya Deo Mishra and there was some dispute
between them in connection with payment of the said money
as the TLO and his father Sh. Baljit Singh did not want to
refund the said money.
42. Regarding the alleged proceedings conducted at
his house in connection with the above trap, the stand of
accused is that he was taken to the CBI office at around
10:30/11:00 AM and hence, he is not aware about the same.
However, he has specifically claimed that all the documents of
this case were prepared by the TLO subsequently in the CBI
office. He has also denied the taking of any washes from the
spot. With regard to his specimen handwritings and
signatures, his stand is found to be contrary as at one point of
time he claims that the same were taken under duress, but at
the other point he denies it to have been taken altogether.
However, he admits the taking of their specimen voice
samples. With regard to the CFSL reports, the submission of
the accused is that the same are false and fabricated reports
given at the instance of the CBI as the CFSL works under the
administrative control of CBI. He has also challenged the
sanctions given for their prosecution and it is his case that the
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 29 of 121
sanction for his prosecution given by PW22 is illegal as PW22
was neither a competent authority to grant it nor he had
applied his mind at the time of grant thereof and had rather
given it in a mechanical manner. He has also specifically
denied the presence of his above scooter bearing registration
number UAM 2789 in Delhi and seizure of the alleged
documents recovered therefrom, while claiming that the said
scooter was at Lucknow on that day. He claims himself as
well as his deceased father to be innocent and the entire
evidence and story of prosecution to be false while desiring to
lead evidence in his defence.
43. The accused in his defence has also examined on
record total 4 witnesses and their names and purpose of
examinations are being stated herein below:
44. DW1 Sh. Sudhir Kumar Singh is an official from
Institute of accused, i.e. NBCC, and he claims to be a family
friend of and on visiting terms with the accused. This witness
has claimed that he also knew Sh. Naveen Srivastava and Sh.
Naveen Srivastava was having an affair with Ms. Bhawna, the
daughter of the complainant, and Naveen Srivastava even
wanted to marry Bhawna, but the complainant was not agree
to the said marriage due to their different castes and Naveen
Srivastava wanted to recover the gifts valuing around Rs.
1/1½ lacs given to Bhawna and he also sought his help to
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 30 of 121
recover the same. He has also claimed that he, alongwith the
accused Manoj Kumar Mishra, had attended a meeting held
between the complainant and Naveen Srivastava in May, 2000
in Pavilion Hotel and in the said meeting, the complainant
agreed to return an amount of Rs. 50,000/ only to Naveen
Srivastava towards the cost of the gifts given by Naveen
Srivastava to daughter of the complainant. He also claims to
have known about the arrest of the accused Manoj Kumar
Mishra, his father and the above Naveen Srivastava through
newspapers subsequently and further states that he was even
called by a CBI official named Thakran and he went to meet
him and narrated the above facts to him.
45. DW2 Sh. Ashok Kumar Mishra is the real
brother and DW3 Smt. Kiran is the wife of the accused (A1)
and they both have claimed themselves to be present in the
above house of accused at the relevant time and have
deposed about innocence of the accused, as well as of the co
accused Satya Deo Mishra (since deceased), and their false
implication in this case. They both have deposed on the lines
of the submissions made by the accused himself in his
statement recorded U/s 313 Cr.P.C. with regard to the arrival
of the complainant at their house, the manner of plantation of
the above trap amount by the complainant in their house and
apprehension of the accused by the trap team members and
their false implication in this case. They have also specifically
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 31 of 121
deposed about the above affair between Sh. Naveen
Srivastava and Ms. Bhawna, the above dispute between the
complainant and Naveen Srivastava with regard to the value of
gifts given to Bhawna and the above settlement arrived at
between them in hotel Pavilion for payment of Rs. 50,000/ by
the complainant to Sh. Naveen Srivastava in the said meeting.
As per them, the above amount of Rs. 50,000/ was the
amount which the complainant left at their house for handing it
over to Sh. Naveen Srivastava. They both have also deposed
about taking over of a cash amount of Rs. 35,000/ from their
house by the CBI officials, alongwith some documents,
immediately after the above trap an also about seizure of
another cash amount of Rs. 35,000/ from their house in the
evening, which amount was lying in some suitcase belonging
to A2. Their depositions will be discussed and appreciated
later on.
46. DW4 is the accused Manoj Kumar Mishra (A1)
himself who has stepped into the witness box, with permission
of the court, U/s 315 Cr.P.C. and has reiterated the above
defence version on oath. During his statement, he has also
exhibited certain official orders pertaining to his transfer and
posting and further some record in respect of some RTI
applications moved by him. He has also given a detailed
account of the incident pertaining to his trap in this case, the
treatment which he was given and the proceedings which were
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 32 of 121
conducted in the CBI office, after he and his father were
implicated in this case. His depositions forming his defence
will also be appreciated later on.
47. I have heard the arguments advanced by Sh.
Harsh Mohan Singh, Ld PP for CBI and Sh. S. Prasad, Ld
counsel for the accused. The case record, including the
written submissions filed on behalf of accused, has also been
carefully perused.
48. The evidence led on record and the challenges
made by the defence to the case of prosecution, chargewise,
can be broadly discussed and appreciated under the following
heads:
EVIDENCE PERTAINING TO SANCTION FOR
PROSECUTION OF ACCUSED
49. The first major challenge to the prosecution case
by Ld defence counsel is on the ground that the sanction U/s
19 of the PC Act Ex. PW22/A (D33) granted for prosecution of
the accused Manoj Kumar Mishra (A1) in this case is not a
valid sanction. He has assailed the above sanction on two
grounds, i.e. one on the ground of competency of PW22 to
grant the above sanction and the other on the ground that
PW22 had not perused or gone through the entire material or
record before granting it.
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 33 of 121
50. In this regard, it is observed that PW22 Sh. Daljit
Singh was working as a Group General Manager in NBCC at
the relevant time and as per him, he knows and recognizes the
accused who was working in his zone, though at a much lower
rank. He has also stated specifically that he became the
disciplinary authority of accused later on and has further
specifically volunteered that since the requisite competent
authority of accused from Finance Department of NBCC was
not available at the relevant time, he was designated as the
disciplinary authority qua the accused by his office, though he
has also volunteered that under normal circumstances only a
Finance Department officer would have been the competent
disciplinary authority to remove the accused from services as
the accused was working in the Finance Department and he
himself was in the Engineering Department.
51. It is the contention of Ld defence counsel that
since admittedly this witness was not the disciplinary authority
of the accused in the normal course of circumstances, then the
prosecution was bound to produce on record the official order
or notification by which this witness was designated as the
competent or disciplinary authority for the officials of the
Finance Department also, including the accused. In this
regard, he has also referred to the NBCC (Disciplinary &
Appeal) Rules, 1993, a copy of which had been furnished to
the accused under the RTI proceedings and placed on record
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 34 of 121
in statement of the accused/DW4 as Ex. DW4/Fcolly, and as
per him, the General Manager, Finance was the competent
authority for removal of the finance and accounts officials.
52. In this regard, it is observed from the records that
there are clear and specific depositions made by this witness
that he was the disciplinary authority of the accused at the
relevant time at which the sanction Ex. PW22/A for
prosecution of the accused was granted by him on the request
of CBI. During his cross examination though he has also
stated that to the best of his memory he had not handed over
to the CBI a copy of the above order appointing or designating
him as the disciplinary authority of accused nor he was in
possession thereof on the day of his making the above
depositions in the court, but he has further stated specifically
that it was not handed over because the CBI officials did not
ask for a copy of the said order and the same would be
available in the head office of the NBCC Ltd at Lodhi Road,
New Delhi and the said document can be summoned from the
Administrative Division of the NBCC Ltd. Had Ld defence
counsel any doubts regarding the competency of this witness,
he could have made a request to the court at that stage or
could have taken some steps thereafter for summoning the
said order from the head office of the NBCC Ltd and he cannot
now be heard and permitted to take any benefit out of the
same.
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 35 of 121
53. Moreover, Section 19(3) of the PC Act specifically
lays down that notwithstanding anything contained in the Code
of Criminal Procedure, 1973, no finding, sentence or order
passed by a Special Judge shall be reversed or altered by a
court in appeal, confirmation or revision on the ground of the
absence of, or any error, omission or irregularity in the
sanction required under subsection (1), unless in the opinion
of that court, a failure of justice has infact been occasioned
thereby. Further, in terms of the Explanation attached to
Section 19 of the above Act, the error includes competency of
the authority to grant sanction. Hence, when the finding,
sentence or order of a Special Judge cannot even be reversed
or altered by an Appellate or Revisional Court on the ground of
any error or irregularity etc in the sanction order, including the
error pertaining to competency of the concerned authority
granting it, then even a trial court should not generally hold
such sanction to be illegal unless in the opinion of the court a
failure of justice has infact been occasioned thereby or such
error or omission etc has actually resulted in a failure of
justice. The accused is never found to have agitated the
above fact till date at any stage or forum though a period of
more than 16 years stands expired since the day of his
involvement in this case and this court fails to understand as to
how and in what manner he was prejudiced by non production
of the above order or notification designating PW22 as his
disciplinary authority when there are clear depositions made
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 36 of 121
by the above witness on record that such an order or
notification was actually there and it was existing in the
records of their head office and the accused did not even
desire to seek its production.
54. Regarding the other ground of granting the above
sanction by PW22 without perusal of the entire documents or
material also, the contention being raised on behalf of the
accused is not found tenable from the oral and documentary
evidence led on record because the depositions made by this
witness clearly show that the above sanction for prosecution of
accused was granted by him after having detailed discussions
and interactions with the CBI officials as well as with the Chief
Vigilance Officer of his own department. Though, Ld defence
counsel has pointed out certain portions of cross examination
of this witness which show that prior to the grant of the
sanction Ex. PW22/A, this witness had declined the grant of
sanction for prosecution of this accused but it is also found
clarified by this witness that the sanction was initially denied
for prosecution of A1 only because this witness was not
satisfied at that stage about the Sections for which the
sanction for prosecution of accused was being sought at that
time. It has been admitted during the course of arguments
that the sanction was initially denied or refused only because
the substantive Section 7 of the PC Act was also invoked
against this accused, but subsequently the sanction was
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 37 of 121
sought for and granted vide Ex. PW22/A (D33) only for the
substantive offences punishable U/s 419 IPC and Section
13(2) r/w Section 13(1)(d) of the PC Act, besides the offence
of criminal conspiracy punishable U/s 120B IPC r/w Section
419 IPC and Sections 7 and 13(2) r/w Section 13(1)(d) of the
PC Act. The very fact that the sanction was initially refused by
this witness for invoking the substantive provisions of Section
7 of the PC Act against A1, which in opinion of this witness
were not attracted against the said accused, is in itself a
strong circumstance to show the application of mind by this
witness before granting the above sanction. Moreover, it is
also found that the above sanction order Ex. PW22/A (D33) is
a very detailed 6 pages order and it incorporates all the
material facts and events of the prosecution case in respect of
the demand, acceptance and recovery of the above bribe
amount and also the facts and circumstances leading to the
filing of the above complaint and conduction of trap. Hence,
even the contents of the above sanction order Ex. PW22/A by
itself bely the claim of the accused that PW22 did not consider
all the relevant material or documents before granting the said
sanction.
55. The law on the point of sanction is quite settled
and the grant of sanction has been consistently held to be a
sacrosanct act intended to provide safeguards to honest public
servants against frivolous and vexatious prosecutions.
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 38 of 121
However, it has also been held that simultaneously it should
also not be ignored that rampant corruption in society has to
be checked. It has further been held that the courts should not
construe a sanction order in a pedantic manner and should
avoid taking a hypertechnical approach in testing the validity
of a sanction order. Ld defence counsel has himself relied
upon the judgment of the Hon'ble Supreme Court in case
State of Maharashtra, through CBI Vs. Mahesh G. Jain
(2013) 8 SCC 119 : V (2013) SLT 323, which speaks volumes
about the principles for determination of the validity of such a
sanction order. Some of the observations made by their
lordships in the said case are also being reproduced herein
below:
"17. Presently, we shall proceed to deal with the
contents of the sanction order:
17.1 The sanctioning authority has referred to the
demand of the gratification for handing over TDS
certificate in Form 16A of the IncomeTax Act, the
acceptance of illegal gratification by the accused before
the panch witnesses and how the accused was caught
red handed.
17.2 That apart, as the order would reveal, he has
fully examined the material documents, namely, the FIR,
CFSL report and other relevant documents placed in
regard to the allegations and the statements of
witnesses recorded under Section 161 of the Code and,
thereafter, being satisfied he has passed the order of
sanction".
"18. The learned trial judge, as it seems, apart
from other reasons has found that the sanctioning
authority has not referred to the elementary facts and
there is no objective material to justify a subjective
satisfaction. The reasonings, in our considered opinion,
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 39 of 121
are absolutely hypertechnical and, in fact, can always
be used by an accused as a magic trick to pave the
escape route. The reasons ascribed by the learned trial
judge appear as if he is sitting in appeal over the order of
sanction. True it is, grant of sanction is a sacrosanct
and sacred act and is intended to provide a safeguard to
the public servant against vexatious litigation but
simultaneously when there is an order of sanction by the
competent authority indicating application of mind, the
same should not be lightly dealt with. The filmsy
technicalities cannot be allowed to become tools in the
hands of an accused.
19. In the obtaining factual matrix, we must say
without any iota of hesitation that the approach of the
learned trial judge as well as that of the learned single
judge is wholly incorrect and does not deserve
acceptance".
56. When tested in the light of the above legal
propositions, this court fails to find out any fault in the above
sanction order Ex. PW22/A (D33) and therefore, the above
sanction Ex. PW22/A granted for prosecution of accused
Manoj Kumar Mishra in this case is held to be a legal and valid
sanction as no prejudice appears to have been caused to the
accused by the alleged discrepancies being pointed out by his
counsel in the evidence brought on record by the prosecution
in respect of the said sanction order. The judgments in cases
Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (1997)
7 SCC 622, Tirath Prakash (deceased), through his LRs
Vs. State 2011 Crl. L.J. 4028 and State Vs. Ravinder Singh
1995 Crl. L.J. 3428 being relied upon by Ld defence counsel
are found to be not applicable in the present case and even
the other judgment in case Shailendra Nath Bose Vs. State
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 40 of 121
of Bihar AIR 1968 SC 1292 being relied upon on this aspect
can be distinguished as PW22 has clearly stated that he was
competent to grant the above prosecution sanction.
CHARGE OF CRIMINAL CONSPIRACY AND
EVIDENCE QUA THE SAME
57. As stated above, a charge for the offence of
criminal conspiracy punishable U/s 120B IPC r/w Section 419
IPC and Sections 7 and 13(2) r/w Section 13(1)(d) of the PC
Act, interalia, was framed against both the accused persons
because as per the allegations made in the chargesheet,
there was a criminal conspiracy hatched between the above
two accused for commission of the above said offences and it
is only in furtherance of the said conspiracy that A1 had
impersonated himself as A2 and had demanded and
accepted the above bribe amount from the complainant.
58. Before appreciating the relevant evidence on this
aspect, it is necessary to say a few words about a criminal
conspiracy, which is defined by Section 120A IPC and is made
punishable by Section 120B IPC. The offence of criminal
conspiracy is said to have been committed when two or more
persons agreed to do, or cause to be done, an illegal act, or an
act which is not illegal by illegal means. The Proviso attached
to Section 120A IPC further lays down that no agreement
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 41 of 121
except an agreement to commit an offence shall amount to a
criminal conspiracy unless some act besides the agreement is
done by one or more parties to such agreement in pursuance
thereof. The Explanation added to the said Section further
makes it clear that it is immaterial whether the illegal act is the
ultimate object of such agreement or it is merely incidental to
that object. Thus, though some overt act may be required or
necessary to be done by the conspirators of a criminal
conspiracy to hold them guilty for the above said offence,
besides the mere agreement arrived at between them, but in
case the criminal conspiracy hatched between them is for
commission of an offence then such an agreement itself
attracts the provisions of the above said Section. It is so
because the gist of offence is to break the law and the parties
to such an agreement will be guilty of criminal offence even
though the illegal act agreed to be done has not been done.
59. Further, since such criminal conspiracies are
mostly hatched in extreme privacy, direct evidence of such
conspiracies is rarely available and in most of the cases the
courts have to find out the existence of such conspiracies from
the facts and circumstances brought in the evidence. This is
true also for inferring the objects for which a criminal
conspiracy was brought into existence. Again, a number of
persons may be involved or may be part of such a criminal
conspiracy and they may not even be known to each other or
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 42 of 121
may join the conspiracy at different stages and at different
places, but still they all can be held guilty for the above said
offence if they all are found to be acting for a common illegal
purpose and the responsibility of a conspirator not only
extends to what is done by him, but also to the acts of the
other conspirators to be done in pursuance of the said
conspiracy.
60. It has been argued by Ld defence counsel that
there is not even an iota of evidence against the accused to
show or prove the existence of any such criminal conspiracy of
which A1 is being alleged to have been a member for
commission of the above said offences under the PC Act by
impersonating himself as A2 as the facts and evidence
brought on record against the accused by the prosecution are
not sufficient to constitute such a criminal conspiracy. He has
also relied upon the judgments in cases John Pandian Vs.
State, Represented by Inspector of Police, Tamilnadu 2011
(1) JCC 193, Subhash @ Dhillu & Anr. Vs. State of Haryana
III (2015) SLT 193, P. S. Sharma & Ors. Vs. State & Anr. 221
(2015) DLT 572, Raj Kumar Vs. State & Ors. 221 (2015) DLT
74 (DB), Sushil Suri Vs. CBI & Anr. IV (2011) SLT 213 and
State (Delhi Administration) Vs. V. C. Shukla & Anr. AIR
1980 SC 1382 in support of his contentions that the necessary
ingredients for commission of the above said offence have not
been made out in the present case.
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 43 of 121
61. In case of V. C. Shukla, Supra being relied upon
by Ld defence counsel, the Hon'ble Supreme Court has made
the following observations:
"8. Before we proceed further, we might indicate
that it is well settled that in order to prove a criminal
conspiracy which is punishable under Section 120B
of the Indian Penal Code, there must be direct or
circumstantial evidence to show that there was an
agreement between two or more persons to commit
an offence. This clearly envisages that there must
be a meeting of minds resulting in an ultimate
decision taken by the conspirators regarding the
commission of an offence. It is true that in most
cases, it will be difficult to get direct evidence of an
agreement to conspire but a conspiracy can be
inferred even from circumstances giving rise to a
conclusive or irresistible inference of an agreement
between two or more persons to commit an offence.
After having gone through the entire evidence, with
the able assistance of Mr. Rajinder Singh, learned
counsel for A1 and of learned counsel for the State,
we are unable to find any acceptable evidence
connecting either of the appellants with the existence
of any conspiracy......."
62. In case of Firozuddin Basheeruddin & Ors. Vs.
State of Kerala, (2001) 7 SCC 596, the Hon'ble Supreme
Court observed as follows:
"23. Like most crimes, conspiracy requires
an act (actus reus) and an accompanying mental
state (mens rea). The agreement constitutes the
act, and the intention to achieve the unlawful
objective of that agreement constitutes the required
mental state. In the face of modern organised crime,
complex business arrangements in restraint of trade,
and subversive political activity, conspiracy law has
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 44 of 121
witnessed expansion in many forms. Conspiracy
criminalizes an agreement to commit a crime. All
conspirators are liable for crimes committed in
furtherance of the conspiracy by any member of the
group, regardless of whether liability would be
established by the law of complicity. To put it
differently, the law punishes conduct that threatens
to produce the harm, as well as conduct that has
actually produced it. Contrary to the usual rule that
an attempt to commit a crime merges with the
completed offence, conspirators may be tried and
punished for both the conspiracy and the completed
crime. The rationale of conspiracy is that the
required objective manifestation of disposition to
criminality is provided by the act of agreement.
Conspiracy is a clandestine activity. Persons
generally do not form illegal covenants openly. In
the interests of security, a person may carry out his
part of a conspiracy without even being informed of
the identity of his coconspirators. Since an
agreement of this kind can rarely be shown by direct
proof, it must be inferred from circumstantial
evidence of cooperation between the accused.
What people do is, of course, evidence of what lies
in their minds. To convict a person of conspiracy,
the prosecution must show that he agreed with
others that together they would accomplish the
unlawful object of the conspiracy."
"32. In the case of State v. Nalini [1999 SCC (Cri.)
691] discussing the principles governing the law of
conspiracy in the case under Sections 120A, 120B
and 302 IPC, Wadhwa, J., summarised the
principles in para 583 as follows: (SCC pp. 51518):
"583. Some of the broad principles governing
the law of conspiracy may be summarised though,
as the name implies, a summary cannot be
exhaustive of the principles.
1. Under Section 120A IPC offence of criminal
conspiracy is committed when two or more persons
agree to do or cause to be done an illegal act or
legal act by illegal means. When it is a legal act by
illegal means overt act is necessary. Offence of
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 45 of 121
criminal conspiracy is an exception to the general
law where intent alone does not constitute crime. It
is intention to commit crime and joining hands with
persons having the same intention. Not only the
intention but there has to be agreement to carry out
the object of the intention, which is an offence. The
question for consideration in a case is did all the
accused have the intention and did they agree that
the crime be committed. It would not be enough for
the offence of conspiracy when some of the accused
merely entertained a wish, howsoever horrendous it
may be, that offence be committed......"
63. In case Baliya @ Bal Kishan Vs. State of Madhya
Pradesh (2012) 9 SCC 696 also, the Hon'ble Supreme Court
held as under:
"15. The offence of "criminal conspiracy" is defined
in Section 120A of the Penal Code whereas
Section 120B of the Code provides for punishment
for the said offence. The foundation of the offence
of criminal conspiracy is an agreement between
two or more persons to cooperate for the
accomplishment/ performance of an illegal act or an
act which is not illegal by itself, through illegal
means. Such agreement or meeting of minds
create the offence of criminal conspiracy and
regardless of proof or otherwise of the main offence
to commit which the conspiracy may have been
hatched, once the unlawful combination of minds is
complete, the offence of criminal conspiracy stands
committed. More often than not direct evidence of
the offence of criminal conspiracy will not be
forthcoming and proof of such an offence has to be
determined by a process of inference from the
established circumstances of a given case.
16. The essential ingredients of the said offence,
the permissible manner of proof of commission
thereof and the approach of the courts in this
regard has been exhaustively considered by this
Court in several pronouncements of which,
illustratively, reference may be made to E.K.
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 46 of 121
Chandrasenan v. State of Kerala, Kehar Singh v.
State (Delhi Admn.), Ajay Aggarwal v. Union of
India and Yash Pal Mittal v. State of Punjab. The
propositions of law which emanate from the above
cases are, in no way, fundamentally different from
what has been stated by us hereinabove.
17. The offence of criminal conspiracy has its
foundation in an agreement to commit an offence or
to achieve a lawful object through unlawful means.
Such a conspiracy would rarely be hatched in the
open and, therefore, direct evidence to establish
the same may not be always forthcoming. Proof or
otherwise of such conspiracy is a matter of
inference and the court in drawing such an
inference must consider whether the basic facts i.e.
circumstances from which the inference is to be
drawn have been proved beyond all reasonable
doubt, and thereafter, whether from such proved
and established circumstances no other conclusion
except that the accused had agreed to commit an
offence can be drawn. Naturally, in evaluating the
proved circumstances for the purposes of drawing
any inference adverse to the accused, the benefit
of any doubt that may creep in must go to the
accused."
64. The observations made by the Hon'ble Supreme
Court in the case of K. R. Purushothaman Vs. State of
Kerala (2005) 12 Supreme Court Cases 631 are also
reproduced as under:
"11. Section 120A IPC defines "criminal
conspiracy". According to this Section when two or
more persons agree to do, or cause to be done (i)
an illegal act, or (ii) an act which is not illegal by
illegal means, such an agreement is designated a
criminal conspiracy. In Major E.G.Barsay V. State
of Bombay Subba Rao J., speaking for the Court
has said :(SCR p.228)
'The gist of the offence is an agreement to
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 47 of 121
break the law. The parties to such an
agreement will be guilty of criminal
conspiracy, though the illegal act agreed to
be done has not been done. So too, it is not
an ingredient of the offence that all the
parties should agree to do a single illegal
act. It may comprise the commission of a
number of acts.'
12. In State V. Nalini it was observed by S.S.M.
Quadri, J. at JT para 677: (SCC pp.56869, para
662)
'In reaching the stage of meeting of minds,
two or more persons share information
about doing an illegal act or a legal act by
illegal means. This is the first stage where
each is said to have knowledge of a plan for
committing an illegal act or a legal act by
illegal means. Among those sharing the
information some or all may form an
intention to do an illegal act or a legal act by
illegal means. Those who do form the
requisite intention would be parties to the
agreement and would be conspirators but
those who drop out cannot be roped in as
collaborators on the basis of mere
knowledge unless they commit acts or
omissions from which a guilty common
intention can be inferred. It is not necessary
that all the conspirators should participate
from the inception to the end of the
conspiracy; some may join the conspiracy
after the time when such intention was first
entertained by any one of them and some
others may quit from the conspiracy. All of
them cannot but be treated as conspirators.
Where in pursuance of the agreement the
conspirators commit offences individually or
adopt illegal means to do a legal act which
has a nexus with the object of conspiracy,
all of them will be liable for such offences
even if some of them have not actively
participated in the commission of those
offences.'
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 48 of 121
13. To constitute a conspiracy, meeting of minds
of two or more persons for doing an illegal act or an
act by illegal means is the first and primary
condition and it is not necessary that all the
conspirators must know each and every detail of
the conspiracy. Neither is it necessary that every
one of the conspirators take active part in the
commission of each and every conspiratorial acts.
The agreement amongst the conspirators can be
inferred by necessary implication. In most of the
cases, the conspiracies are proved by the
circumstantial evidence, as the conspiracy is
seldom an open affair. The existence of conspiracy
and its objects are usually deduced from the
circumstances of the case and the conduct of the
accused involved in the conspiracy. While
appreciating the evidence of the conspiracy, it is
incumbent on the court to keep in mind the well
known rule governing circumstantial evidence viz.
each and every incriminating circumstance must be
clearly established by reliable evidence and the
circumstances proved must form a chain of events
from which the only irresistible conclusion about the
guilt of the accused can be safely drawn, and no
other hypothesis against the guilt is possible.
Criminal conspiracy is an independent offence in
the Penal Code. The unlawful agreement is sine
qua non for constituting offence under the Penal
Code and not an accomplishment. Conspiracy
consists of the scheme or adjustment between two
or more persons which may be express or implied
or partly express and partly implied. Mere
knowledge, even discussion, of the plan would not
per se constitute conspiracy. The offence of
conspiracy shall continue till the termination of
agreement.
14. The suspicion cannot take the place of legal
proof and prosecution would be required to prove
each and every circumstance in the chain of
circumstances so as to complete the chain. It is
true that in most of the cases, it is not possible to
prove the agreement between the conspirators by
direct evidence but the same can be inferred from
the circumstances giving rise to conclusive or
irresistible inference of an agreement between two
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 49 of 121
or more persons to commit an offence. It is held in
Noor Mohd. Mohd. Yusuf Momin V. State of
Maharashtra, that: (SCC pp.699700, para 7)
'[I]n most cases proof of conspiracy is
largely inferential though the inference must
be founded on solid facts. Surrounding
circumstances and antecedent and
subsequent conduct, among other factors,
constitute relevant material.'
15. It is cumulative effect of the proved
circumstances which should be taken into account
in determining the guilt of the accused. Of course,
each one of the circumstances should be proved
beyond reasonable doubt. The acts or conduct of
the parties must be conscious and clear enough to
infer their concurrence as to the common design
and its execution. While speaking for the Bench it
is held by P. Venkatarama Reddi, J. in State (NCT
of Delhi) V. Navjot Sandhu (p.63) as follows: (SCC
pp.69192, para 103)
'103. We do not think that the theory of agency can
be extended thus far, that is to say, to find all the
conspirators guilty of the actual offences committed
in execution of the common design even if such
offences were ultimately committed by some of
them, without the participation of others. We are of
the view that those who committed the offences
pursuant to the conspiracy by indulging in various
overt acts will be individually liable for those
offences in addition to being liable for criminal
conspiracy; but, the nonparticipant conspirators
cannot be found guilty of the offence or offences
committed by the other conspirators. There is
hardly any scope for the application of the principle
of agency in order to find the conspirators guilty of
a substantive offence not committed by them.
Criminal offences and punishments therefor are
governed by the statute. The offender will be liable
only if he comes within the plain terms of the penal
statute. Criminal liability for an offence cannot be
fastened by way of analogy or by extension of a
common law principle'."
65. Coming to the facts of the present case, as
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 50 of 121
discussed above, the case of prosecution is that it was A1
who had made the consistent calls to the complainant and
demanded, negotiated and accepted the above bribe amount
from him, though impersonating himself as A2. It is also the
case of prosecution that even the alleged photocopy of the
above complaint Ex. PW9/A (D15), which was allegedly
recovered from the dickey of scooter number UAM 2789, was
written in the handwriting of A1 and even the said scooter
belonged to A1. However, A2 was also involved in this case
by the CBI as it was alleged that everything was done by A1
in furtherance of a well planned criminal conspiracy hatched
between both the above accused. Though A2 is no more
alive and proceedings against him already stand abated long
back, but since a charge for the offence punishable U/s 120B
IPC r/w Section 419 IPC and Sections 7 & 13(2) r/w Section
13(1)(d) of the PC Act has also been framed against A1, it
becomes necessary to appreciate and analyze the facts and
circumstances brought in evidence by the prosecution before
this court, to find out if such a criminal conspiracy ever existed
between them or not.
66. On this aspect, the first material circumstance
being relied upon by prosecution is the circumstance showing
that the first recorded call dated 24.05.2000, which was made
by the complainant from his residential landline number
2297148 to the landline number 7884407 of the accused, was
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 51 of 121
attended by A2. The transcript of this conversation is Ex.
PW2/E (D6) on record and only the words 'HAAN' at portion Y
to Y1 and 'HAAN HAAN' at portion Z to Z1 of this
conversation are being alleged to have been spoken by A2
before he had handed over the said call to his son, i.e. A1.
The above words by itself cannot be evidence of a criminal
conspiracy hatched or existing between both the accused and
moreover, even these portions or words of the above
conversation have not been proved by the prosecution to be in
the voice of A2 as per the CFSL report Ex. PW1/A (D32),
which was given with regard to comparison of the questioned
recorded voices of accused during different conversations held
between the accused and the complainant and the specimen
voice samples taken of both the accused.
67. The second incriminating circumstance being
alleged in proof of the above criminal conspiracy pertains to
the telephonic conversation between the complainant and A2,
which allegedly took place on 29.05.2000, i.e. one day prior to
the day of trap which was held on 30.05.2000. Since the
written complaint Ex. PW2/A (D1) was given by the
complainant to CBI on 24.05.2000, i.e. much prior to
29.05.2000, obviously there could not have been any mention
of the telephonic conversation dated 29.05.2000 in the said
complaint in which it was only alleged that one person claiming
himself to be Inspector Satya Deo Mishra of CBI was
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 52 of 121
threatening the complainant and demanding bribe from him for
closing certain complaints received against the complainant.
Though, it was also alleged in the said complaint that the
complainant had even visited the given residential address of
the above Inspector Satya Deo Mishra and met him on
20.05.2000, when the bribe amount was negotiated at Rs.
50,000/, but during his examination in the court, the
complainant has identified A1 only to be the said Inspector
Satya Deo Mishra. Coming back to the telephonic
conversation allegedly held between the complainant and A2,
it has been deposed by the complainant in this court that on
29.05.2000 he again received a telephone call from the above
Satya Deo Mishra and the caller enquired from him about his
date of appointment to service and promotion etc and also
sought certain details thereof. He further deposes that when
he called back the caller to furnish the said details, the phone
was attended by a person who claimed himself to be father of
Inspector Satya Deo Mishra and that person told the
complainant to act as per the instructions of his son and to
arrange the bribe amount of Rs. 50,000/ immediately and to
bring this amount of Rs. 50,000/ at their house in the morning
of 30.05.2000. However, apart from the above bald
depositions made by the complainant in this court regarding
the above telephonic conversation between him and A2, there
is no other document or material on record to corroborate the
same as this conversation was admittedly not recorded. There
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 53 of 121
is also no mention of this conversation in the handing over
memos Ex. PW2/J (D9) and Ex. PW2/K (D10) dated
30.05.2000, which were prepared in the CBI office in the early
morning of 30.05.2000, i.e. the day of trap.
68. The most incriminating circumstance pertaining to
the above criminal conspiracy being relied upon by the
prosecution is the evidence showing the presence of A2 also
in the above house of the accused persons at Rohini at the
time of trap and the conversation held between both the
accused, in presence of the complainant, before A2 left the
house for his office. On this aspect, the complainant has
deposed on record that when he was sent with the trap money
to the house of accused, the door of the said house was
opened by the accused Manoj Kumar Mishra (A1), who at that
time pretended himself to be Satya Deo Mishra (A2). The
accused offered the seat to him and at that time one other
person was taking breakfast there and the accused had
introduced that person to him as his father and the
complainant also identified the said person as A2 during his
examination in the court. It is further deposed by the
complainant on record that A1 then told A2 that the
complainant had come there for his work, which A1 had
already discussed with A2 a day before and thereupon A2
said to A1 'JAISE MAINE BOLA HAIN WAISE HI KARIYE'
and then A2 finished his breakfast and went out of the house.
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 54 of 121
It is only thereafter that the detailed conversation took place
between the complainant and A1 regarding the arrangement
of the bribe amount and the said amount was handed over by
the complainant to A1 and recovered subsequently from the
centre table lying in the drawing room of the house of the
accused.
69. Since the complainant alone had entered the
house of the accused, no other member of the trap team could
have heard the alleged conversation which took place there.
However, as also discussed above, the above conversation
which took place in the house of the accused was being
simultaneously recorded in two separate recording devices
and one of these was a micro cassette recorder which the
complainant himself was having and the other was a KCR
which was with the shadow witness Sh. M. K. Mehta/PW3A, of
which the miccumtransmitter was with the complainant.
Admittedly, PW3A was standing outside the house of the
accused and he is also alleged to have been overhearing the
conversation which took place in the house of the accused
with the help of the above KCR and through earphones.
However, no specific depositions have been made on record
by PW3A about the contents of the said conversation which
took place between A1 and A2 or to be more specific that he
heard A2 saying to A1 'JAISE MAINE BOLA HAIN WAISE HI
KARIYE'. It is also the admitted case of prosecution that
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 55 of 121
transcript of the above recorded conversation held at the time
of trap is Ex. PW1/C, which is alleged to have been prepared
in the office of CFSL at the time of examination of the
questioned and specimen voices of the accused. The said
transcript bears the attestation of the concerned CFSL expert
Dr. Rajender Singh, who has been examined on record as
PW1. However, a bare perusal of this transcript also shows
that it contains no record of any such conversation held
between A1 and A2 and the above words or sentence 'JAISE
MAINE BOLA HAIN WAISE HI KARIYE' uttered by A2 to A1
is not found to be there in the above transcript. Hence, neither
the depositions made by PW3A Sh. M. K. Mehta nor the
transcript Ex. PW1/C corroborates the above depositions
made by the complainant on record to the effect that the above
words or sentence was uttered by A2 to A1 in his presence,
during the course of the trap proceedings and before A2 left
the above said house. Though, it has also come on record in
the depositions made by PW3A, and also the other trap team
members, that A2 was seen by them coming outside the said
house sometime after the complainant entered the said house
and further though, they all have also identified A2 during
their statements made in the court to be the same person, but
this alone is not enough to show or prove the existence of any
such criminal conspiracy between A1 and A2 to make the
above demand of bribe from the complainant or the
acceptance etc thereof.
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 56 of 121
70. Hence, in view of the above legal and factual
discussion, it can be said that the evidence brought on record
by prosecution is not sufficient to prove the existence of a
criminal conspiracy between A1 and A2 for the purpose of
demanding and accepting the above bribe amount from the
complainant or for proving that the demand and acceptance of
the above bribe amount by A1, while impersonating himself
as A2, was in furtherance of any such criminal conspiracy.
CHARGE FOR THE OFFENCE U/S 7 OF THE PC ACT
AND EVIDENCE QUA THE SAME
71. It is the next contention of Ld PP for CBI that the
charges for both the offences punishable U/s 7 as well as
Section 13(2) r/w Section 13(1)(d) of the PC Act can be held to
have been proved against A1 as the evidence led on record
clearly shows that the said accused has not only demanded
the above said bribe amount from the complainant, but has
also accepted the same and further it was also recovered from
his house. It is also argued by him that there is sufficient oral
and documentary evidence on record to substantiate the
above charges and all the ingredients of Section 7 as well as
of Section 13(1)(d) of the PC Act are made out against the
accused from the evidence brought on record.
72. On the other hand, it is the contention of Ld
defence counsel that neither the offence of Section 7 nor of
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 57 of 121
Section 13(2) r/w Section 13(1)(d) of the PC Act is made out
against the accused as the necessary ingredients of demand,
acceptance and recovery etc of bribe, which are required for
proving these offences, are not made out from the evidence
led on record by the prosecution. He has also relied upon the
judgments in cases B. Jayaraj Vs. State of AP IV (2014) SLT
128, State of Punjab Vs. Madan Mohan Lal Verma VII
(2013) SLT 180, Banarsi Das Vs. State of Haryana 2013 (3)
JCC 1842, Smt. Meena Balwant Hemke Vs. State of
Maharashtra 2000 Crl. L.J. 2273, State Vs. Devender Singh
2013 Legal Eagal (Del) 1394, Shankar Lal Vs. State 1999
Legal Eagal (Raj) 466, Suraj Mal Vs. State (Delhi Admn.)
AIR 1979 SC 1408, State of M.P. Vs. J. B. Singh 2000 Crl.
L.J. 4591, State of U.P. Vs. Ram Asrey 1990 UJ (SC) 612
and C. Sukumaran Vs. State of Kerala (2015) 11 SCC 314.
73. Before appreciating the evidence led on record
qua the charge for the offence of Section 7 of the PC Act, it is
first necessary to see if this offence or Section is actually
attracted in the present case or not. Section 7 of the PC Act
deals with the offence of taking gratification other than legal
remuneration by a public servant in respect of an official act.
This Section corresponds to earlier Section 161 IPC, which,
alongwith certain other Sections, was omitted from the above
Code. It is necessary to mention here that Sections 161 to
165A IPC dealing with the offences by or relating to public
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 58 of 121
servants were omitted from the above Code and the provisions
thereof were incorporated in Sections 7 to 12 of the PC Act
with slight modifications. Similarly, Section 13 of the PC Act,
1988 corresponds to Section 5 of the old PC Act, 1949 and
clause (d) of subsection 1 of Section 13 of the new PC Act is
almost similar to clause (d) of subsection 1 of Section 5 of the
old Act. However, to make the original intention of the
Legislature more clear, Section 13(1)(d) of the new Act has
been split into three parts, with certain other modifications in
the old provisions. The relevant provisions of Section 7 and
Section 13(1)(d) of the PC Act (new Act) are also being
reproduced herein below for reference:
Section 7 of the PC Act provides as under:
7. Public servant taking gratification other than
legal remuneration in respect of an official act.
Whoever, being, or expecting to be a public servant,
accepts or obtains or agrees to accept or attempts to
obtain from any person, for himself or for any other
person, any gratification whatever, other than legal
remuneration, as a motive or reward for doing or
forbearing to do any official act or for showing or
forbearing to show, in the exercise of his official
functions, favour or disfavour to any person or for
rendering or attempting to render any service or
disservice to any person, with the Central Government or
any State Government or Parliament or the Legislature of
any State or with any local authority, corporation or
Government company referred to in clause (c) of Section
2, or with any public servant, whether named or
otherwise, shall be punishable with imprisonment which
shall be not less than three years but which may extend
to seven years and shall also be liable to fine.
Explanation. (a) "Expecting to be a public
servant". If a person not expecting to be in office obtains
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 59 of 121
a gratification by deceiving others into a belief that he is
about to be in office, and that he will then serve them, he
may be guilty of cheating, but he is not guilty of the
offence defined in this section.
(b) "Gratification". The word "Gratification" is not
restricted to pecuniary gratifications or to gratifications
estimable in money.
(c) "Legal remuneration". The word "legal
remuneration" are not restricted to remuneration which a
public servant can lawfully demand, but include all
remuneration which he is permitted by the Government or
the organisation, which he serves, to accept.
(d) "A motive or reward for doing". A person who
receives a gratification as a motive or reward for doing
what he does not intend or is not in a position to do, or
has not done, comes within this expression.
(e) Where a public servant induces a person
erroneously to believe that his influence with the
Government has obtained a title for that person and,
thus, induces that person to give the public servant,
money or any other gratification as a reward for this
service, the public servant has committed an offence
under this section.
Section 13 of the PC Act provides as under:
13. Criminal misconduct by a public servant.
(1) A public servant is said to commit the offence of criminal
misconduct,
(a) if he habitually accepts or obtains or
agrees to accept or attempts to obtain from any person for
himself or for any other person any gratification other than legal
remuneration as a motive or reward such as is mentioned in
section 7; or
(b) if he habitually accepts or obtains or
agrees to accept or attempts to obtain for himself or for any other
person, any valuable thing without consideration or for a
consideration which he knows to be inadequate from any person
whom he knows to have been, or to be, or to be likely to be
concerned in any proceeding or business transacted or about to
be transacted by him, or having any connection with the official
functions of himself or of any public servant to whom he is
subordinate, or from any person whom he knows to be interested
in or related to the person so concerned; or
(c) if he dishonestly or fraudulently
misappropriates or otherwise converts for his own use any
property entrusted to him or under his control as a public servant
or allows any other person to do; or
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 60 of 121
(d) if he,
(i) by corrupt or illegal means, obtains for
himself or for any other person any valuable thing or pecuniary
advantage; or
(ii) by abusing his position as a public
servant, obtains for himself or for any other person any valuable
thing or pecuniary advantage; or
(iii) while holding office as a public servant,
obtains for any person any valuable thing or pecuniary
advantage without any public interest; or
(e) if he or any person on his behalf, is in
possession or has, at any time during the period of his office,
been in possession for which the public servant cannot
satisfactorily account, of pecuniary resources or property
disproportionate to his known sources of income.
Explanation. For the purpose of this section,
"known sources of income" means income received from any
lawful source and such receipt has been intimated in accordance
with the provisions of any law, rules or orders for the time being
applicable to be a public servant.
(2) Any public servant who commits criminal
misconduct shall be punishable with imprisonment for a term
which shall be not less than four years but which may extend to
ten years and shall also be liable to fine.
74. It is clear from the above provisions that though
both Sections 7 and Section 13(1)(d) of the PC Act relate to
acceptance or obtaining etc of bribe by a public servant, but
these Sections constitute two different kinds of offences and
this difference is not only of the sentence with which these
offences are made punishable, but also the areas of operation
thereof. Section 7 of the PC Act, 1988 earlier carried a
sentence of imprisonment extending upto 5 years and
minimum sentence of 6 months, which have been enhanced to
7 years and 3 years respectively with the Amendment Act of
2014. Similarly, Section 13(1)(d) of the PC Act, 1988 earlier
carried a sentence of imprisonment extending upto 7 years
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 61 of 121
and a minimum sentence of 1 year, which have been
enhanced to 10 years and 4 years respectively by the above
said Amendment Act. Another noted difference in the
provisions of Sections 7 and 13(1)(d) of the PC Act is that
though mere acceptance may be an offence U/s 7 of the
above Act, but it is obtainment which is required to be there in
case of Section 13(1)(d) of the said Act. In the case of
acceptance, the initiative vests in the person who gives and in
the case of obtainment, the initiative vests in the person who
receives. Thus, the offence U/s 13(1)(d) may be attracted
even without another person being directly involved, but in
case of Section 7 of the said Act, an active attitude of another
person is required. Further, though at sometimes, the same
set of facts may constitute offences punishable by both these
provisions, but it is not so in all the cases. However,
particularly in trap cases, generally both the above Sections
come in operation as the alleged act of obtaining or
acceptance etc of bribe by a public servant also amounts to
criminal misconduct on his part.
75. However, one noted difference between these two
Sections is that though for the purposes of Section 7 of the
said Act, the alleged act of the accused public servant should
necessarily be connected with his official duties, but in case of
Section 13(1)(d) of the above Act it is not always required that
the complained act of the public servant should be connected
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 62 of 121
with or should be part of his official duties or that the same
was done or performed by him in the course of his duties as
such. As discussed above, Section 161 IPC is para materia
with the present Section 7 of the PC Act and the scope of
Section 161 IPC and Section 5(1)(d) of the old PC Act, which
corresponds to Section 13(1)(d) of the new PC Act, was
considered by the Hon'ble Supreme Court in case of
Dhaneshwar Narain Saxena Vs. The Delhi Administration
AIR 1962 SC 195, which is being relied upon by Ld PP for CBI
himself in support of the prosecution case, and while
overruling certain propositions of law laid down in their earlier
judgment in case State of Ajmer Vs. Shivji Lal 1959 Supp
(2) SCR 739, their lordships have made the following
observations:
"5. Criminal misconduct in discharge of
official duty
(1) A public servant is said to commit the
offence of criminal misconduct in the
discharge of his duty
(a)...........
(b)...........
(c)...........
(d) if he, by corrupt or illegal means or by
otherwise abusing his position as a public
servant, obtains for himself or for any other
person any valuable thing or pecuniary
advantage.
(2) Any public servant who commits criminal
misconduct in the discharge of his duty shall
be punishable with imprisonment for a term
which may extend to seven years, or with fine,
or with both."
4. It will be observed that the heading of S.5 is
'Criminal misconduct in the discharge of
official duty'. That is a new offence which
was created by the Act, apart from and in
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 63 of 121
addition to offences under the Indian Penal
Code, like those under S. 161, etc. The
legislature advisedly widened the scope of
the crime by giving a very wide definition in
S.5 with a view to punish those who, holding
public office and taking advantage of their
official position, obtain very valuable thing or
pecuniary advantage. The necessary
ingredient of an offence under S. 161, Indian
Penal Code, is the clause "as a motive or
reward for doing or forbearing to do any
official act or for showing or forbearing to
show, in the exercise of his official functions,
favour or disfavor to any person, or for
rendering or attempting to render any service
or disservice to any person, with the Central
or any State Government or Parliament or the
Legislature of any State, or with any public
servant", but it need not be there in order to
bring an offence under S. 5 of the Act home to
the accused. The offence under this section
is, thus, wider and not narrower, than the
offence of bribery as defined in S. 161, I.P.C.
The words "in the discharge of his duty" do
not constitute an essential ingredient of the
offence. The mistake in the judgment of this
Court in the aforesaid ruling in 1959 Supp 2
SCR 739 : (AIR 1959 SC 847) has arisen from
reading those words, which are part merely of
the nomenclature of the offence created by
the Stature, whose ingredients are set out in
subcls. (a) to (d) that follow, as descriptive of
an essential and additional ingredient of each
of the types of offence in the four sub
clauses. That that is the source of the
mistake is apparent from the erroneous way
in which the section has been quoted at p.744
of the Supreme Court Report (at p.849 of AIR)
in the paragraph preceding the paragraph
quoted above. The ingredients of the
particular offence in cl. (d) of S. 5(1) of the Act
are; (1) that he should be a public servant; (2)
that he should use some corrupt or illegal
means or otherwise abuse his position as a
public servant; (3) that he should have
thereby obtained a valuable thing or
pecuniary advantage; and (4) for himself or
for any other person. In order to bring the
charge home to an accused person under cl.
(d) aforesaid of the section, it is not
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 64 of 121
necessary that the public servant in question,
while misconducting himself, should have
done so in the discharge of his duty. It would
be anomalous to say that a public servant has
misconducted himself in the discharge of his
duty. "Duty" and "misconduct" go ill together.
If a person has misconducted himself as a
public servant, it would not ordinarily be in
the discharge of his duty, but the reverse of it.
That 'misconduct', which has been made
criminal by S. 5 of the Act, does not contain
the element of discharge of his duty, by
public servant, is also made clear by
reference to the provisions of cl. (c) of S. 5(1).
It is well settled that if a public servant
dishonestly or fraudulently misappropriates
property entrusted to him, he cannot be said
to have been doing so in the discharge of his
official duty (vide the case of Hori Ram Singh
V. Emperor, 1939 FCR 159 : (AIR 1939 FC 43).
An application for special leave to appeal
from that decision was refused by the Privy
Council in Hori Ram Singh v. Emperor, 1940
FCR 15 : (AIR 1940 PC 54). This Court,
therefore, misread the section when it
observed that the offence consists in criminal
misconduct in the discharge of official duty.
The error lies in importing the description of
the offence into the definition portion of it. It
is not necessary to constitute the offence
under cl. (d) of the section that the public
servant must do something in connection
with his own duty and thereby obtain any
valuable thing or pecuniary advantage. It is
equally wrong to say that if a public servant
were to take money from a third person, by
corrupt or illegal means or otherwise abusing
his official position, in order to corrupt some
other public servant, without there being any
question of his misconducting himself in the
discharge of his own duty, he has not
committed an offence under S. 5(1)(d). It is
also erroneous to hold that the essence of an
offence under S. 5(2), read with S. 5(1)(d), is
that the public servant should do something
in the discharge of his own duty and thereby
obtain a valuable thing or pecuniary
advantage."
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 65 of 121
76. Further, in case of Dalpat Singh Vs. State of
Rajasthan AIR 1969 SC 17, which is also being relied upon
by Ld PP for CBI himself, the Hon'ble Supreme Court has
again made the following observations on the above aspect:
"16. Before an offence is held to fall
under S. 161 IPC, the following
requirements have to be satisfied: (1)
the accused at the time of the offence
was, or expected to be, a public
servant, (2) that he accepted, or
obtained, or agreed to accept, or
attempted to obtain from some person
a gratification, (3) that such
gratification was not a legal
remuneration due to him, and (4) that
he accepted the gratification in
question as a motive or reward, for (a)
doing or forbearing to do an official
act; or (b) showing, or forbearing to
show favour or disfavour to some one
in the exercise of his official
functions; or (c) rendering, or
attempting to render, any service or
disservice to some one, with the
Central or any State Government or
Parliament or the Legislature of any
State, or with any public servant. As
mentioned earlier admittedly the
appellants were public servant. It is
also established that they obtained
from the several witnesses examined
in this case illegal gratification. The
word 'obtain' is a strong word. It
includes also things received by
extortion. But can it be said that they
obtained the gratifications in question
as a motive or reward for doing or for
forbearing to do an official act or for
showing or for forbearing to show
favour or disfavour to the persons in
question in the exercise of their
official functions? The evidence on
record clearly shows that neither the
appellants intended to from whom
they extorted money or valuable
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 66 of 121
things nor those persons expected
any official favour from them. They
paid the amounts in question solely
with a view to avoid being illtreated or
harassed. The scope of Sec. 161 IPC,
had been considered by this court in
State of Ajmer v. Shivji Lal, 1959 Supp
(2) SCR 739 = (AIR 1959 SC 847) as
well as in State of Uttar Pradesh v.
Kuljas Rai, Cri. Appeal No.177 of 1960,
decided on 22.08.1962. Though the
former decision was overruled in
certain respects by a later decision of
this court to which reference will be
made hereinafter that part of the
decision which considered the
requirements of Sec. 161, I.P.C, was
not different from. Therefore it is
difficult to held that the acts
complained against the appellants can
be held to constitute offences under
Section 161 IPC."
"18. ................
Therefore if it is proved that the
appellants had by illegal means or by
otherwise abusing their position as
public servants obtained for
themselves money or other valuable
things, then, they can be said to have
committed the offence of criminal
misconduct in the discharge of their
official duties. To bring home an
offence under S. 5(1)(d), it is not
necessary to prove that the acts
complained of were done by the
appellants in the discharge of their
official duties. The contrary view
taken by this Court in 1959 Supp (2)
SCR 739 = (AIR 1959 SC 847) (supra)
was overruled by this Court in
Dhaneshwar Narain Saxena v. The
Delhi Administration, AIR 1962 SC 195.
In that case it was observed that the
words occurring in S. 5 of the
Prevention of Corruption Act "in the
discharge of his duty" do not
constitute an essential ingredient of
the offence under S. 5(1)(d), the
ingredients of that offence being (1)
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 67 of 121
that the accused should be a public
servant, (2) that he should use some
corrupt or illegal means or otherwise
abuse his position as a public;
servant; (3) that he should have
obtained a valuable thing or pecuniary
advantage, and (4) for himself or any
other person."
77. In view of the above legal propositions, it is crystal
clear that to attract the provisions of Section 7 of the PC Act, it
is mandatory that the alleged acts of the accused public
servant should be performed or connected with the discharge
of his official functions or duties. Though the accused facing
trial herein, i.e. A1 Manoj Kumar Mishra, is also admittedly a
public servant being an official of NBCC, but it is the admitted
case of prosecution that no work of the complainant pertaining
to the office of accused or NBCC was pending with A1 as the
above complaints allegedly filed against the complainant
pertained to the office of A2 or were purportedly pending
enquiry in the office of CBI, i.e. the office of A2 Satya Deo
Mishra (since deceased). Hence, in his own capacity as a
public servant A1 was never in a position to do or extend any
favours or disfavours etc to the complainant even after
demanding and accepting the above said bribe amount of Rs.
50,000/ and therefore, charge for the offence defined and
made punishable by Section 7 of the PC Act can never be held
as proved against the accused as the said Section is not
attracted in the present case.
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 68 of 121
CHARGE FOR THE OFFENCE U/S 13(1)(d) OF THE PC
ACT AND EVIDENCE QUA THE SAME
78. As discussed above, the scope of Section 13(1)
(d) of the Act is wider than the scope of Section 7 of the said
Act. Though the words demand and recovery do not figure
either in Section 7 or Section 13(1)(d) of the PC Act, but is
now well settled, as is also reflected in most of the above
judgments being relied upon by Ld defence counsel, that when
these Sections are being sought to be made applicable in a
case of trap, as is the present case, then the demand,
acceptance and even recovery of the bribe amount are all the
essential ingredients of commission of the said offences and
each of these ingredients is required to be proved before an
accused can be held guilty and convicted for these offences.
The demand of bribe is even stated to be a sine qua non for
proving the offence of Section 7 as well as of Section 13 of the
PC Act in a trap case. However, this is apart from the other
requirements for finding out if the alleged acts of the accused
constitute a criminal misconduct on his part or not, as is
defined by Section 13(1)(d) of the said Act.
79. As far as the demand of alleged bribe amount
from the complainant by A1, while impersonating himself as
A2, is concerned, it is clear from contents of the complaint Ex.
PW2/A (D1) made by the complainant with the CBI, which
stands duly proved on record during his depositions, that
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 69 of 121
though the complainant had received consistent telephonic
calls from the above accused during the period from
10.05.2000 to 19.05.2000, but in these telephonic
conversations the accused only told him that certain
complaints against him were pending with the accused and
hence, the complainant should come and meet him at his
residence. However, it is also specifically mentioned in the
above complaint by the complainant that he then visited the
house of accused on 20.05.2000 and met the accused there
and the accused then apprised him about the details of the
said complaints received against him and had also demanded
a bribe of Rs. 1 lac from him for settling these complaints. It is
also found specifically recorded in the said complaint that
when the complainant expressed his inability to pay the above
said amount, the accused had then reduced the demanded
bribe from Rs. 1 lac to Rs. 50,000/ and asked the complainant
to pay at least Rs. 10,000/ by tuesday, i.e. 23.05.2000, and
the balance amount of Rs. 40,000/ by 15.06.2000.
80. Even during his depositions made in the court,
after deposing about the above telephonic calls received from
the accused, the complainant has specifically stated that he
visited the house of accused on 20.05.2000 where he met A1,
who was impersonating himself as A2 and was also identified
as such by the complainant in the court, and the accused
demanded Rs. 1 lac from him for closing all complaints against
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 70 of 121
him. The complainant has also deposed that he was not in a
position to pay Rs. 1 lac and after some bargaining, he agreed
for Rs. 50,000/ and it was settled that he would pay Rs.
10,000/ on 23.05.2000 and the balance Rs. 40,000/ on
15.06.2000 and thereafter, he left the house of the accused.
The above depositions made by the complainant in this court
are also corroborated to that extent by the contents of the
above complaint Ex. PW2/A (D1), as already discussed
above.
81. The complainant has also stated on record that
since he did not want to pay the bribe, he visited the office of
CBI on 24.05.2000 in the evening and lodged the above
complaint. Then he also deposed about production of an
amount of Rs. 10,000/ before the CBI officials, in the form of
20 GC notes of Rs. 500/ each, the treatment of the said GC
notes with some powder, touching of the powder treated notes
by the witness Sh. Jagvir Singh with his hands, washing of his
hands in water and turning the colour of the said water into
pink. He has also specifically deposed about the arrangement
of one KCR and handing it over to the above public witness,
the instructions given to them in the pretrap proceedings and
the handing over of the treated GC notes to him in an
envelope. He has also specifically deposed about the
preparation of the handing over memos Ex. PW2/B (D3) and
Ex. PW2/C (D4) of the above GC notes and recording
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 71 of 121
devices. He has further deposed about the visit of the trap
team members, accompanied by the two independent
witnesses, to his house, attaching of some instrument with the
telephone installed at his house for recording of the
conversation and making of a call to the accused from the said
telephone at around 9:45 PM on that day, i.e. 24.05.2000. He
has also stated that during the said call, the accused asked
him to call again on the next day and hence, it was decided
that they all will reassemble in the CBI office on 6:00 AM on
the next day, i.e. 25.05.2000. He has further deposed about
the memo Ex. PW2/D (D5), which was prepared with regard
to the closure of proceedings conducted on that day. All the
above memos have been duly proved on record from the
depositions made by the complainant, PW3A and some other
members of the trap team, as these documents are found to
be witnessed by them and they have also identified their
signatures on these documents.
82. Though the contents of the alleged conversation
which took place between the complainant and the accused
during the said call are not found to be reflected in the memo
Ex. PW2/D (D5), which was prepared at the house of the
complainant, but it is found specifically recorded in the said
memo that after the above call the complainant told the trap
team members that the accused had asked him to call again
tomorrow, i.e. on 25.05.2000, after 8:00 AM and this version of
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 72 of 121
the complainant was even corroborated by the independent
witness Sh. Jagvir Singh, who was overhearing the above
conversation with the help of KCR. It is also the prosecution
case that a transcription of the above recorded conversation
was prepared at the above spot itself on that day and this
recorded conversation is Ex. PW2/E (D6) on record and it has
also been proved on record as there are specific depositions
made by the witnesses on record that it was prepared when
the above recorded conversation of the original cassette
inserted in the KCR was played before all the members of the
trap team before the original cassette containing the said
conversation was sealed by the IO/TLO in a cloth parcel. A
bare perusal of the above transcript also corroborates the
above depositions made by the complainant in this court that
during the said conversation, he was asked by the accused to
call him (accused) again at around 8:00 AM on the next day,
i.e. 25.05.2000.
83. Some of the relevant extracts of this conversation
as per the above transcript Ex. PW2/E (D6) are being
reproduced herein below:
"C kab aa jaun sir
A yar mera time bhai kuchh nahi hai appko mere se
milna bahut jaroori hai
C sir agar aap theek samjho to aaj aa jaun sir
A aaj
C haan
A abhi kitna baja hai ghari dekhi hai aapne
C haan sir
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 73 of 121
A aaj mat aaiye aap
C phir kab aaun sir
A kal val ko aa jaiye
C kal kitne baje aa jaun sir
A shaam ko"....
.........................
................................
....................................
"A aap phir morning mein ek baar phone karna please kyonki mera program abhi kuchh (not clear) nahi hai C theek hai sir, morning mein theek hai sir A theek hai na C haan A 8 baje ke baad C subah 8 baje ke baad A hoon C theek hai sir"
84. Further, the complainant has also specifically deposed in the court about the reassembly of the trap team members, including the two independent witnesses, in the CBI office at 6:00 AM on 25.05.2000 and the pretrap proceedings conducted there, which were incorporated in the handing over memo Ex. PW2/F (D7) prepared at the relevant time and duly proved on record during the statement made by the complainant and some other members of the trap team, who are signatories to the same. He has also stated that the retreated GC notes were again given to him with certain specific directions and then the trap team members again came to his house and made arrangements for recording of the telephonic conversation by attaching an instrument with his telephone. He has also specifically stated that he again made a call to the accused from his telephone and during this call, the accused told him that he (accused) would not accept Rs.
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 74 of 121 10,000/ and the accused asked him to make payment of the complete amount of Rs. 50,000/ before 02.06.2000 and only then he (accused) will close all his complaints. This telephonic conversation was also recorded in a separate cassette put in the KCR and one memo Ex. PW2/G (D8) for closing the trap proceedings on that day was also prepared and this memo also stands duly proved on record and the complainant was then directed by the CBI officials to arrange the entire bribe amount of Rs. 50,000/.
85. Though the contents of the above conversation held between the complainant and accused on 25.05.2000 also not found recorded in the relevant memo Ex. PW2/G (D
8) prepared at the house of complainant, but it is again found duly recorded therein that the above version of the complainant was confirmed by the independent witness Sh. Jagvir Singh, who was overhearing the above telephonic conversation, and this telephonic conversation was also played before the trap team members, before the original cassette containing it was sealed in a cloth parcel. As per the prosecution case, no transcript of this telephonic conversation was prepared at that time, but the transcript thereof was prepared subsequently by the concerned CFSL expert Dr. Rajender Singh/PW1 at the time of analysis of the said conversation contained in the above cassette, which was marked as Q2, and this transcript is Ex. PW1/B on record.
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 75 of 121 The depositions made by the complainant on this aspect are also found to be duly corroborated by the contents of this conversation Ex. PW1/B, the relevant extracts of which are being reproduced herein below: "C aapne sir, 8 baje ke baad telephone karne ke liye bola tha sir"
......................... .........................
"A ki ab mere ko nahi lag pa raha hai ki 2 tarikh tak
aap ye saara arrangement kar doge
C ho jayega sir
A dusri cheej ye ki SP ka maine aapko bata hi diya tha
C haan sir
A samajh rahe hain na aap
C haan sir
A to ye saara ikattha hi aap karna. Samajh rahe hain app
C haan sir
A matlab clear hai na aapko
C sir, aisa hai
A hoon
C jaisi aapki baat hui thi meri beech mein jo baat hui thi
A hoon
C 10,000/ pehle dene ke sir
A hoon
C ki aapne bola tha mangalwar ko shaam ko de dena
A hoon hoon
C hai na
A hoon hoon
C aur phir aapne bola tha ki Mrs. ko de dena
A hoon aa
C mithai ke dibbe mein rakh karke sir
A hoon aa
C to us samay paise nahi huye the"
..............................
..............................
"C nahi sir ab ho gaya hai kal shaam ko intezam ho
gaya tha sir
A phir
C haan ji
A ye aap ikattha kar lo
C sir aisa hai
A hoon
C ki jaisa aapne bola tha wo to 23 ke aas paas
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 76 of 121
hi hoga 23 taarikh aapne bola tha jis tarah se A nahi dekho 23 nahi 2 ko C 2 ko sir A kyonki 3 ko shaam ko wo ho jayenge to main majboor ho jaunga C haan sir. To filhaal ye le lijiye sir C nahi wo to ikattha hi kar lenge koi baat nahi"
..............................
..............................
"C haan sir. To ab batao sir
A ab aap isko ikattha kar lo
C haan sir
A one go mein hi isko kar lenge aur is cheej se bilkul
nishchint raho"
..............................
..............................
"C ab aap ye batao sir, kitna kab tak kar doon sir
A yaar wo to already baat ho hi gai hai ye kya batau main
C aur naye sire se bata do sir
A naye sire se bata doon
C haan
A yaar jo baat hui thi aapko jaankari nahi hai
C hai na sir
A phir
C achha ab ye batao sir kahan de de sir _ de de
A wo to 2 ko karna hai aapne
C haan ji
A 2 taarikh ko mere ko phone karna phir bata dunga
C sir, 2 taarikh mein to abhi kaafi time hai sir
A yaar, meri samajh mein nahi aa rahi
C haan
A aapke paas jo bhi baat hui thi wo pura arrangement hai
C abhi nahi hai sir
A phir to jab ho jaye tab batana phir uske hisab se
bataunga main
C thik hai sir
A main.....shayad SP saab ke ghar pe hi bhej doon aapko"
..............................
..............................
"A ki 2 tak ye arrange karna hoga aapko
C haan sir
A uska reason hai bhaiya 3 taarikh ko subah jab
aage baat tabhi badh payegi aur usi samaya dispose off ho jayegi C to sir 50 karne hain 2 taarikh ko sir A baat agar 50 ki hui hogi to wo hi karne honge C haan sir tab to main sab intezam kar loonga sir CC No. 147/15, CBI Vs. M. K. Mishra Page No. 77 of 121 A hoon C ek dum pakka sir A hai C ye saara kaam mera ho jayega na sir rafa dafa ho jayega na sir A ye baat yaad rakho bhardwaj ji jaban se badi koi cheej nahi"
.............................. ..............................
"C theek hai sir main 2 taarikh tak pakka 50,000/
ka intezam kar loonga sir main
C ek dum theek hai sir
A balki main phir aapko clear kar raha hoon
C haan sir
A aaj ke baad hum log telephone pe koi aisi baat nahi....
C nahi karenge sir, theek hai sir
A aaj taarikh ho gai 25
C haan sir
A aapke pass 7 din hain
C theek hai sir
A aap jaise hi karna arrange
C theek hai sir
A koi jaruri nahi ki 2 taarikh ko hi ho
C theek hai sir
A aap wo karke
C theek hai sir
A aur mere se baat kiye bagair hi
C theek hai sir
A kisi time aanye jo yahan pe chhode aur aap chale jayen
A yahan par meri Mrs. hai
C theek hai sir
A aapko abhi bata raha hoon main, aaj ke baad is
topic pe baat nahi kar paunga
C theek hai sir, theek hai sir
A aap wahan se aaye
C theek hai sir
A 2
C haan ji
A taarikh se pehle
C haan ji
A kya samjhe aap
C haan theek hai sir
A pehli ko ho jata hai pehli ko
C theek hai sir
A 2 ko ho jata hai 2 ko
C 2 taarikh se pehle Madam, bhabhiji ko de doonga sir
A 26 ko ho jata hai
C haan sir
A jab aapka ho jata hai
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 78 of 121
C theek hai sir
A aap apna lana
C theek hai sir
A yahan Madam ko de ke ki ye saab ke liye dibba
C theek hai sir
A ye chhod ke aur aap chale jao
C theek hai sir
A mere pe yakin karke
C theek hai sir"
..............................
..............................
"A kya final hua phir
C sir ye ki 2 taarikh se pehle main aapko 50,000/
de doonga sir
A 2 taarikh matlab
C se pehle aur is se pehle agar intezam ho gaya to
main abhi laakar ke de dunga sir bhabhiji ko jaise aap bata rahe ho usi tarah se A ab is baare mein koi phone pe baat ........... C aaj ke baad nahi hogi sir, jab paise ka intezam hoga to main khood hi lekar ke aaunga sir"
86. Though as per the above depositions made by the complainant and the contents of the transcript Ex. PW1/B, the complainant was asked to arrange the entire bribe amount of Rs. 50,000/ and to pay it at the residence of accused by 02.06.2000, but the complainant has further stated on record, as has already been discussed, that he again received a call from the above accused on 29.05.2000 and the accused sought certain details relating to his appointment and promotion etc. Though, the complainant has also deposed that when he made a call to the accused for furnishing the above details, this call was attended by the father of the above accused, i.e. by A2 Satya Deo Mishra (since deceased), and A2 had asked the complainant to bring the above amount of Rs. 50,000/ at their residence on 30.05.2000 in the morning, CC No. 147/15, CBI Vs. M. K. Mishra Page No. 79 of 121 but as also discussed above, there is no other material to corroborate the above depositions of the complainant regarding the calls dated 29.05.2000. However, still the same is not fatal for the prosecution case as apart from the recorded conversations dated 24.05.2000 and 25.05.2000, there is also the recorded conversation of 30.05.2000 between the complainant and the accused which is available on record, besides the other oral evidence led, on the aspect of demand and further as per per memo Ex. PW2/G (D8) the date 30.05.2000 was fixed for reassembly of the trap team on 25.05.2000 itself.
87. The complainant has also stated that after arranging the above amount of Rs. 50,000/, he reported the above facts to CBI and also produced the above amount of Rs. 50,000/ consisting of 400 GC notes of Rs. 100/ each and 20 GC notes of Rs. 500/ each in the CBI office and left it with the CBI officials. He then talks about reassembling of the entire trap team in the CBI office at 6:00 AM on 30.05.2000, the conduction of the pretrap proceedings vide the handing over memo Ex. PW2/J (D9), noting the details of the above GC notes in Annexure Ex. PW2/H (part of D9) of the above memo and also preparation of one other handing over memo Ex. PW2/K in respect of the recording devices. The above treated GC notes of Rs. 50,000/ are stated to have been handed over to him in a bag brought by him. However, as per CC No. 147/15, CBI Vs. M. K. Mishra Page No. 80 of 121 him, this time two recording devices were to be used in the trap proceedings, i.e. one micro cassette recorder of make Sony having one blank cassette MC60 which was given to him and one KCR entrusted to the shadow witness/PW3A Sh. M. K. Mehta having a blank cassette of Meltrack60 with which one miccumtransmitter of DX40 was attached and given to him. He has further specifically deposed that the CBI officials had instructed him to utter the words 'Gin to Lijiye' as soon as he handed over the bribe amount to the accused and the shadow witness was also directed to give a prefixed signal by placing both his hands on head on overhearing the said words. Subsequently, he has also deposed that the actual signal which he had given to the CBI officials while coming out of the house of accused was by removing of spectacles, which was also one of the prefixed signals to be given by him, as he forgot to utter the above words 'Gin to Lijiye' at the relevant time of handing over of the bribe amount to accused due to some reasons, which he has also explained.
88. It has further been specifically deposed by the complainant that after completing all the pretrap proceedings and preparing the relevant documents in connection with the same, they left the CBI office at about 7:30 AM and reached outside the house of accused. Then he talks about his entry in the house of accused and meeting the accused Manoj Kumar Mishra (A1), who was pretending himself to be Satya Deo CC No. 147/15, CBI Vs. M. K. Mishra Page No. 81 of 121 Mishra (A2). Then he deposes about the presence of the other person taking breakfast there, i.e. A2, and the conversation which took place between A1 and A2 and leaving of the said house by A2, as already discussed.
89. The complainant has also deposed on record that while he continued sitting on the sofa, A1 had first gone to the front balcony and then to the rear balcony of his house and thereafter he came back to the drawing room and started talking with him. The accused asked from him if the money has been arranged, to which he replied in positive. Then the accused further asked from him if he had any problem in arranging the above amount, to which he replied in negative. The complainant has further deposed that the accused had then signaled him to take out the money and thereupon he opened the zip of his bag, took out the money from the bag and gave it to the accused (A1), who accepted it with his right hand, then shifted the tainted money to his left hand and then placed it on the centre table. Even contents of the recovery memo Ex. PW2/L (D11) prepared subsequently by the IO/TLO with regard to the trap proceedings duly corroborate the above version given by the complainant with regard to the demand of the above bribe amount from him by the accused by gesture or signal as it is found specifically recorded in the said memo that during the above conversation, the accused demanded the bribe from the complainant by showing gesture CC No. 147/15, CBI Vs. M. K. Mishra Page No. 82 of 121 of his right hand. Since the above demand of bribe during the trap proceedings was through gesture and not through specific words uttered by the accused, there was no question of corroboration of the same from the contents of recordings of the trap proceedings, which are reflected in the transcription Ex. PW1/C. However, to some extent, the contents of this transcript corroborate the version being given by the complainant that an amount of Rs. 50,000/ was demanded from him as bribe by the accused and he was called at the residence of the accused on that day only for handing over of the said amount and it was handed over to the accused only on his specific demand. Some of the relevant contents of the above conversation/transcript Ex. PW1/C are also being reproduced herein below: "C nahi sahab wo to karna tha chalo thik hai karna to hai hi .................
C sir aapne bola tha jitna jaldi ho jaye utna hi theek hai .................
C ji
A tab main kuchh din bahar hi raha..........Main abhi kal hi
aaya hoon..........nahi nahi bilkool nahi. Dusre bazaar se ............haan haan, hoon hoon. Main aapke paas. Aapne kuchh dekha hi nahi hai. Haan lekin .................... .................
.................
A chaye lijiye please main to actually kal raat mein hamare bhai sahab aa gaye the ....................
....................
C pure 50 hai sir pure 50 hai sir
A 40 hai
C sorry sir
A ....................final report laga di
C koi baat nahi
A kal shaam ko, halanki thoda masla reh gaya, maine
aapki final report laga di
C koi baat nahi
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 83 of 121
C sir aapne meri naukri bachai hai
A yar maine kuch nahi kara"
90. Even during his cross examination, the complainant has stated on record specifically about the above telephonic calls received from the accused since 10.05.2000 and also the calls received on 11.05.2000 and 15.05.2000, which he attended in the offices of his senior officials, as mentioned in the complaint Ex. PW2/A (D1). In this regard, he is also duly corroborated by his two senior officers, i.e. PW7 Dr. J. N. Mohanti and PW8 Dr. M. K. Mishra, though they both are not able to recollect the specific dates in the month of May, 2000 on which these calls were attended or received by the complainant in their rooms. The complainant has also deposed in his cross examination about his above visit to the house of accused and meeting A1 there, during which visit it was settled that he has to pay Rs. 10,000/ on 23.05.2000 and Rs. 40,000/ by 15.06.2000. He has further stated during his cross examination that he could arrange Rs. 10,000/ only by the evening of 23.05.2000 and hence, he visited the CBI office at around 6:00 PM on 24.05.2000. He has also deposed about the telephonic talks held with the accused persons on 29.05.2000 when he was told to pay the entire amount of Rs. 50,000/ in one go on 30.05.2000.
91. The above version of complainant regarding the proceedings conducted on 24.05.2000 and 25.05.2000 in the CBI office as well as in his house is also duly corroborated CC No. 147/15, CBI Vs. M. K. Mishra Page No. 84 of 121 from the depositions made by the independent witness/PW3A Sh. M. K. Mehta as he has participated in the said proceedings and has also witnessed all the relevant documents prepared in connection with the same. PW3A further corroborates the depositions of the complainant made about the trap proceedings conducted on 30.05.2000 as he also specifically states on record that he participated in the said proceedings and was standing near the house of accused at the relevant time and hearing the above conversation held in the house of accused through earphones and he heard the complainant giving the money and another voice saying that the amount was Rs. 40,000/ and further the voice of the complainant that he was giving Rs. 10,000/ more. Even, the other three official witnesses, i.e. PW18, PW19 and the TLO/PW20, of CBI corroborate the testimony of the complainant that during the trap proceedings, the demand of the bribe amount was through a gesture and they were told about the same by the complainant after he came out of the house of accused. They even corroborate the complainant regarding the proceedings conducted at the house of complainant on 24.05.2000 and 25.05.2000, during which the conversations held between the complainant and the accused were recorded and the relevant documents pertaining to the said proceedings were prepared. Further, during the examination in chief of the complainant, the cassettes Mark Q2 and Q3 containing the recorded conversations dated 25.05.2000 and 30.05.2000 (trap CC No. 147/15, CBI Vs. M. K. Mishra Page No. 85 of 121 proceedings) were also played in the court and not only the complainant has identified his own voice, the voices of the independent witnesses and that of the accused, but the relevant extracts of these recordings were also reflected in the evidence on record and even the same corroborate the case of prosecution and statement of the complainant regarding the demand of the above bribe amount by the accused from the complainant before and also during the trap proceedings.
92. The oral evidence brought by the prosecution on record on the aspect of demand of bribe amount is also found to be duly corroborated by the documentary evidence and the same is sufficient to establish beyond doubts that the accused had been consistently demanding bribe from the complainant since 20.05.2000 and he even demanded it, though not in so clear terms, during the conversations dated 24.05.2000 and 25.05.2000 and also during the trap proceedings on 30.05.2000. To be specific, the transcripts Ex. PW2/E (D6) and Ex. PW1/B & Ex. PW1/C also duly substantiate the depositions made by the complainant in this regard. The above transcripts further corroborate the version of the complainant that the above demand of bribe was in connection with some alleged complaints made against him, which were made with the accused. These also corroborate the version of the complainant to the effect that the demand of bribe made by the accused was initially of Rs. 1 lac and then it was CC No. 147/15, CBI Vs. M. K. Mishra Page No. 86 of 121 negotiated and settled at Rs. 50,000/.
93. The next ingredients of the above offence U/s 13(1)(d) of the PC Act to be proved against the accused are the acceptance and recovery of the above said bribe amount by and from the accused. In this regard also, the complainant has made specific depositions on record that when the accused had signaled him to take out the money, he opened the zip of his bag and took out the money from the bag and gave it to the accused Manoj Kumar Mishra (A1), who accepted the money with his right hand and then shifted the tainted money to his left hand and then placed it on the centre table. He has also deposed that then he said to the accused 'SIR YE PACHAS HAZAR RUPAYE HAIN', whereupon the accused said 'NAHI CHALIS HAZAR RUPAYE HAIN'. He has further deposed that then he said 'SORRY SIR' and opened the zip of his bag again and took out a bunch of 20 GC notes of denomination of Rs. 500/ each and gave the same to the accused and this money was also taken by the accused with his right hand, shifted to left hand and then placed on the centre table. He has further deposed that then the accused stated to him 'MAINE AAP KI FINAL REPORT KAL HI LAGA DI HAI' and during this period, a number of other matters were also talked about between them and he remained sitting there for about half an hour. He has also deposed that while handing over the tainted money, i.e. first Rs. 40,000/ and then CC No. 147/15, CBI Vs. M. K. Mishra Page No. 87 of 121 Rs. 10,000/, he forgot to utter the words 'Gin to Lijiye'. Then he talks about leaving the house of accused after some further formal conversation and giving of the prefixed signal by removing of his spectacles and also the giving of a further signal by the shadow witness by scratching his (shadow witness's) head with both hands to the trap team members after noticing him (complainant) giving the said signal. Though his depositions to the extent of giving of signal by the shadow witness were objected, but the objection is found to be baseless as the depositions made by the complainant nowhere suggest that this was an hearsay evidence or that he was not within the view of the shadow witness at the time when he gave the said signal. He has specifically stated in his cross examination that the window panes of his car, in which the shadow witness Mr. Mehta was sitting, were black and Mr. Mehta could see him from the said car though Mr. Mehta himself could not be seen from outside.
94. Now coming to the aspect of recovery of the bribe amount, the complainant has also specifically deposed on record that on receiving the above signal, the entire trap team rushed towards the house of accused and pushed the door bell and the door bell was opened by a 30 years old person, who was identified as Manoj Kumar Mishra (A1). He has also specifically deposed that he was present with the trap team at that time and the said person, i.e. accused Manoj Kumar CC No. 147/15, CBI Vs. M. K. Mishra Page No. 88 of 121 Mishra, was challenged by the TLO/PW20, after disclosing his identity, and the TLO also asked from him if the accused had accepted Rs. 50,000/ as demanded from him, to which the complainant replied in positive. He has also deposed that then the independent witness Sh. Jagvir Singh was asked by the CBI team to check if the GC notes lying on the centre table were the same and on checking the number of the GC notes with the numbers noted down in Annexure A, the two independent witnesses informed the CBI team that the numbers were same. He has further deposed that the witnesses also counted the GC notes and thereafter, A1 was caught from his hands by Inspector H. S. Karmyal/PW18 and constable Rakesh Kumar/PW19 and on this, the accused became perplexed and told that he was Manoj Kumar Mishra and not Satya Deo Mishra and Satya Deo Mishra was his father, who was working in CBI, MDMA. He has further deposed specifically that at the spot itself, the washes of right as well as left hand of A1 and further that of the cloth table were taken in freshly prepared solutions of sodium carbonate and all the solutions turned into pink colour, which were transferred in separate bottles. Then he talks about sealing of the above three bottles containing washes in separate cloth wrappers and labeling them as RHW, LHW and Table Cloth Wash respectively.
95. PW3A Sh. M. K. Mehta on this aspect has also CC No. 147/15, CBI Vs. M. K. Mishra Page No. 89 of 121 specifically stated that after the above prefixed signals were given by the complainant and him, they all rushed to the above flat, pressed the door bell and entered the flat and then found the bribe money lying on the table. He further states that one male person was present there at that time and he has also identified A1 to be the same person during his statement made in the court. He further states that thereafter, he and the other witness Sh. Jagvir Singh were asked to tally the number of GC notes with the numbers noted down in the memo and these were found to be same. He further deposes that then proceedings of taking washes of both the hands of accused were conducted and wash of table cloth was also taken in separate solutions and all these washes turned into pink colour and the same were sealed in three separate bottles in cloth wrappers. He also talks about signing on these cloth wrappers, alongwith the other independent witness. Both the complainant as well as PW3A have also identified their signatures put on the above exhibits during their testimonies made in this court. Further, the depositions made by the complainant and PW3A on the aspect of recovery of the tainted bribe amount from the above table lying in the drawing room of the house of accused are also duly corroborated by the depositions made by PW18, PW19 as well as the TLO/PW20, who all are official witnesses of CBI, as they are also found to have made detailed and specific depositions on this aspect during their statements made in this court.
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 90 of 121
96. Ld defence counsel has pointed out some discrepancies in the testimonies of the complainant, PW3A and the contents of the recording of trap proceedings, as reflected in the transcript Ex. PW1/C, while saying that the depositions made by these two witnesses are not only in contradiction to each other, but these also do not match with the contents of the above transcript and recording with regard to the manner as to how the above bribe amount of Rs. 50,000/ was demanded or accepted by the accused. It is his contention that though as per the complainant he uttered the words 'SIR YE PACHAS HAZAR RUPAYE HAIN' and then the accused uttered the words 'NAHI CHALIS HAZAR RUPAYE HAIN', but as per PW3A he heard the complainant giving money and another voice saying that amount was Rs. 40,000/ and then further the voice of complainant that he was giving Rs. 10,000/ more. He has further pointed out that in the above transcript Ex. PW1/C none of the above sentences is found to be specifically recorded or stated either by the complainant or by the accused. However, it has been observed by the court that the above discrepancy being pointed out by Ld defence counsel is not actually there as in the transcript Ex. PW1/C, the complainant can be heard as saying that 'PURE PACHAS HAIN SIR, PURE PACHAS HAIN SIR' and the accused can be heard while saying that 'CHALIS HAIN' and these contents of the transcript duly corroborate the above version of the incident being given by the complainant CC No. 147/15, CBI Vs. M. K. Mishra Page No. 91 of 121 as well as PW3A that against the demanded/settled bribe amount of Rs. 50,000/ the complainant had initially handed over an amount of Rs. 40,000/ only to the accused and Rs. 10,000/ more were handed over subsequent to the same. The complainant or PW3A can never be expected to recall the exact words which were uttered by the complainant himself or the accused during the course of trap proceedings and all that which is required from them is to corroborate the case of the prosecution on material particulars, which they have successfully done in the present case.
97. It is also one of the contentions of Ld defence counsel, in support of his argument for holding the above trap to be fake, that the depositions made by the above five material witnesses of prosecution clearly show that the trap was initially intended to be held at the house of the complainant himself on 24.05.2000 as well as on 25.05.2000 because their testimonies as well as the documentary evidence brought on record, i.e. the memos prepared in the course of proceedings conducted on these two dates, clearly establish that the trap team arrived at the house of complainant on these two dates after having made all the arrangements for conducting a trap, including treating of the GC notes of Rs. 10,000/ initially arranged by the complainant with phenolphthalein powder and after arrangement of recording devices etc and they even took their respective CC No. 147/15, CBI Vs. M. K. Mishra Page No. 92 of 121 positions around the house of complainant. On this aspect, though, the evidence led on record reflects that the trap team of CBI was fully equipped or prepared to hold trap even on 24.05.2000 and 25.05.2000, but the same by itself is not sufficient to suggest or hold that the trap actually held on 30.05.2000 by the CBI was a fake or fabricated trap. There is also no material on record to substantiate the submissions being made by Ld defence counsel that the trap intended to be held on 24.05.2000 and 25.05.2000 was actually for PW16 Sh. Naveen Srivastava and not for the accused, as was also suggested by Ld defence counsel to the complainant during his cross examination, because the complainant has specifically denied the suggestions given to him in this regard. The complainant as well as some other members of the team have also explained in their cross examinations that the trap team of CBI went to the house of complainant on 24.05.2000 and 25.05.2000 as the complainant had to make calls to the accused for fixing the place of delivery of bribe and it was not felt safe to call the accused from the CBI office and for this reason the arrangements for recording of such calls were also made by the trap team in house of the complainant. Thus, simply because if the trap team was prepared to hold the trap even on these two dates, the same was only because of the possibility which they might be foreseeing to hold it on any of these two dates, after the telephonic conversations which were to take place between the complainant and the accused.
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 93 of 121
98. Regarding the above Naveen Srivastava/PW16, the complainant as well as the IO are found to have been extensively cross examined by Ld defence counsel and it is also his contention that PW16 has not at all supported the case of prosecution to the effect that a copy of the mark sheet of the daughter of complainant and also a copy of the seniority list of complainant showing his caste, which are Mark A2 (D
16) and A3 (D17) respectively on record, were supplied to the accused by PW16 or that he was instrumental in or behind making of the above calls by the accused demanding bribe from the complainant. In this regard, it is observed that PW16 Sh. Naveen Srivastava was a neighbour of the complainant and he was living just opposite to the house of complainant, as has already been stated above. As per the prosecution version, he was having intimacy with Ms. Bhawna, i.e. daughter of the complainant, and they both wanted to marry with each other, but the complainant was not agree to the said relationship due to the caste factor as though the complainant was using the surname of Bhardwaj but he did not belong to the said caste. It is also the prosecution case that this witness was subsequently engaged with some other girl of Lucknow in his own caste. However, since the complainant had not agreed to his relationship with Ms. Bhawna, he managed a copy of the seniority list of complainant through Ms. Roopa Bharat/PW14 and he further managed a copy of the mark sheet of Ms. Bhawna from her and handed over these CC No. 147/15, CBI Vs. M. K. Mishra Page No. 94 of 121 documents to the accused Manoj Kumar Mishra with whom he was having friendly relations. It was done by him to harass the complainant through the above accused and his father (A2) and for that purpose, one fake complaint against the complainant was also fabricated by the accused and a copy of the said complaint is also Ex. PW9/A (D15) on record, which was allegedly recovered, alongwith photocopies of the above mark sheet and seniority list (D16 & D17), from the dickey of the above scooter of accused.
99. However, when Naveen Srivastava was examined in this court as PW16, he turned hostile and did not support the case of prosecution on these aspects. But it is observed that during the course of cross examination of the complainant and suggestions given to him by Ld defence counsel himself, it stands fairly admitted that this witness was in intimacy with Ms. Bhawna and wanted to marry her and their relationship was opposed by the complainant. It also stands established from the said suggestions given to him on behalf of the accused that the above copy of seniority list of complainant was arranged by PW16 through the above witness/PW14 Ms. Roopa Bharat, who further arranged it through her aunt working in the department of the complainant. Though, during the course of cross examination of the complainant some suggestions are also found to have been given to him by Ld defence counsel that even a formal engagement took place CC No. 147/15, CBI Vs. M. K. Mishra Page No. 95 of 121 between his daughter and Naveen Srivastava and Naveen Srivastava wanted to get back the expensive gifts given by him to Ms. Bhawna in connection with the above engagement, when the above relationship did not materialize, and further that some meeting between them also took place in the above hotel where it was settled that the complainant will pay an amount of Rs. 50,000/51,000 to PW16 Sh. Naveen Srivastava against the cost of the above gifts, but all these suggestions have been specifically denied by the complainant as wrong. Further though, the accused himself as DW4 and his other three defence witnesses have all also deposed specifically on these lines, but their bald depositions are not found to be sufficient to prove these facts as there is no independent evidence or material on record to substantiate these claims and depositions of the complainant and other defence witnesses and the same can be safely discarded being either an afterthought or the depositions made by interested witnesses. No steps were taken on behalf of the accused at any stage of investigation or even thereafter for a long time to agitate the alleged false implication of the accused in this case. Simply one receipt/bill dated 10.05.2000 of Rs. 529.80 of Pavilion Restaurant Pvt. Ltd., which has been brought on record as Ex. DW4/C during the course of defence evidence of accused, is not sufficient to hold that any such meeting actually took place in the said hotel or not on that day or that the said meeting was on the above issue of settling the CC No. 147/15, CBI Vs. M. K. Mishra Page No. 96 of 121 amount to be paid to the complainant towards the cost of the alleged gifts given by PW16 to Ms. Bhawna or that any such agreement for payment of Rs. 50,000/51,000 by PW16 to the complainant was actually arrived in the said meeting. In view of the above, there cannot also be any scope for acceptance of a further argument being raised by Ld defence counsel that the above amount of Rs. 50,000/ recovered from the house of accused was the amount which the complainant had brought to the house of accused for PW16 or that it was meant to be paid to PW16 towards the cost of the above said gifts. Even no specific suggestions are found to have been given to the complainant that the above amount of Rs. 50,000/ given by him to the accused was actually meant for payment to PW16 Naveen Srivastava and further PW16 was also not given any such suggestions. Moreover, it is the case of the accused himself that the said meeting was attended by many persons, including the complainant and the accused himself, PW16 Sh. Naveen Srivastava and DW1 Sh. Sudhir Kumar Singh, but as per the above receipt/bill Ex. DW4/C only two persons had visited the said hotel on that day. This all is apart from the fact that the above receipt/bill Ex. DW4/C has not been proved on record by the defence as per provisions of the Evidence Act and hence, it cannot be considered in evidence against the prosecution, though being a document of the defence it can certainly be read and considered against the accused himself. Further though, some suggestions were also given to the CC No. 147/15, CBI Vs. M. K. Mishra Page No. 97 of 121 complainant during his cross examination that the accused had even made a call to PW16 from his mobile in the presence of the complainant at the above relevant time of trap, in connection with the above amount of Rs. 50,000/ brought to his house by the complainant, but such suggestions were specifically denied by the complainant as wrong and even suggestions on these lines are not found to have been given to PW16. No other evidence in the form of call detail record of the mobile phone of accused or PW16 etc has also been brought on record to substantiate the above claim being made on behalf of the accused.
100. One other discrepancy being pointed out by Ld defence counsel in the prosecution story is the fixation of date 30.05.2000 for trap of the accused and it is argued that on one hand the complainant is saying that the date 30.05.2000 for trap was fixed only after the alleged telephonic conversations held between him and the accused persons on 29.05.2000, though the bribe amount was otherwise to be paid by 02.06.2000, whereas in the memo Ex. PW2/G dated 25.05.2000 (D8) it was already mentioned that the trap team was to reassemble in the CBI office on 30.05.2000 at 6:00 AM and some of the official witnesses have also deposed on this line. In this regard, it is observed that the above discrepancy is not much material as almost all the official members of the trap team as well as PW3A have specifically deposed that the CC No. 147/15, CBI Vs. M. K. Mishra Page No. 98 of 121 date of 30.05.2000 was already fixed for reassembly of the trap team members in the CBI office and for the possible trap of the accused and this fact is even found to be specifically recorded in the above memo Ex. PW2/G (D8) prepared at the time of closure of the proceedings conducted on 25.05.2000 and the contrary depositions being made by the complainant on this aspect can only be attributed to the lapse of time or the fading of memory on his part. Hence, this discrepancy is also not fatal to the prosecution case.
101. The oral as well as the documentary evidence led on record regarding the above trap is also duly corroborated by the scientific evidence brought on record by the prosecution in the form of expert reports of CFSL, CBI, New Delhi in respect of the above chemical washes, voice analysis and handwriting of the accused. As already discussed above, the above washes marked RHW, LHW and Table Cloth Wash taken by the TLO/PW20 during the trap proceedings and sealed in three separate cloth parcels were chemically examined by PW3 Sh. K. S. Chhabra of CFSL vide his report Ex. PW3/A (D30) and it is specifically mentioned in the said report, and also deposed by PW3, that all these exhibits gave positive tests for phenolphthalein powder and sodium carbonate. Though, PW3 was duly cross examined on behalf of the accused persons with regard to some aspects of testing of the above exhibits, but during his such cross examination CC No. 147/15, CBI Vs. M. K. Mishra Page No. 99 of 121 nothing material could be extracted out from him which could have made the testing of the said exhibits or the results thereof to be doubtful. The oral depositions made by PW3, as corroborated by the contents of his report Ex. PW3/A (D30), duly corroborate the other oral and documentary evidence led on record by the prosecution with regard to acceptance of the above bribe amount by the accused from the complainant.
102. Coming to the expert evidence about the analysis of the specimen voice of accused, it has also been discussed above that different conversations held between the complainant and the accused on 24.05.2000, 25.05.2000 and 30.05.2000 were recorded in separate cassettes, which were duly sealed in separate cloth parcels immediately on conclusion of the proceedings held on these dates. Though, the conversations held on 24.05.2000 and 25.05.2000 were recorded in one cassette inserted in the KCRs used in proceedings of these days, but the conversation dated 30.05.2000 was recorded in two separate cassettes, i.e. one inserted in the KCR which was with the shadow witness and the other inserted in the micro cassette recorder which was entrusted to the complainant. The handing over memos of recording devices as prepared by the TLO/PW20 on the above dates, as well as the memos prepared in token of closure of proceedings or recovery of the bribe amount, can be seen to substantiate the above facts. It is also the case of prosecution CC No. 147/15, CBI Vs. M. K. Mishra Page No. 100 of 121 that the original cassette containing the recordings of 24.05.2000 was marked as Q1, the original cassette containing the recording dated 25.05.2000 was marked as Q2 and the original cassettes of KCR and micro cassette recorder containing the recordings of 30.05.2000 were marked as Q3 and Q4 respectively and these facts duly stand substantiated from the contents of the CFSL report Ex. PW1/A (D32) prepared by PW1 Dr. Rajender Singh regarding the analysis of the said recordings. The depositions made by the prosecution witnesses and the documents prepared in connection with the above proceedings further make it clear that except the cassette used in the micro cassette recorder entrusted to the complainant, which was of make Sony MC60, all the other cassettes used in recording of the above conversations with the help of KCR were of make Meltrack DRC60. The report Ex. PW1/A further makes it clear that the suspected voice of accused found in recordings contained in the micro cassette Mark Q4 of the micro cassette recorder entrusted to the complainant was not actually analyzed by PW1 vide his above report as the contents of the said recordings were found to be same as that of the recordings contained in the cassette Mark Q3 of the KCR which was with the shadow witness. It has already been discussed above that the transcript of the recordings dated 24.05.2000 prepared by the CBI officials is Ex. PW2/E (D6) and the transcripts of the recordings dated 25.05.2000 and 30.05.2000 are Ex. PW1/B and Ex. PW1/C CC No. 147/15, CBI Vs. M. K. Mishra Page No. 101 of 121 respectively on record, which both were prepared in the CFSL.
103. It is also the case of prosecution that the voice samples of both the accused persons were taken by the TLO/PW20 on 31.05.2000 in the presence of PW4 Sh. J. N. Sharma and PW5 Sh. Sheo Ram etc vide specimen voice recording memo Ex. PW4/F (D25). These specimen voice samples of both the accused Manoj Kumar Mishra (A1) and Satya Deo Mishra (A2) were also taken in two separate original cassettes of make Meltrack DRC60 and these cassettes as well as the sealed parcels thereof were marked as S1 and S2, as has also been specifically mentioned in the above report Ex. PW1/A. Though, even these markings of S1 and S2 given on these cassettes and parcels are not mentioned in the memo Ex. PW4/F (D25), but it is found specifically recorded therein that an endorsement on these cassettes was made with the specific names of the accused persons to whom these voice samples belonged, as was also in the case of endorsements made on the cassettes marked as Q1, Q2, Q3 and Q4 containing the questioned voices recorded during the pretrap and trap proceedings held on 24.05.2000, 25.05.2000 and 30.05.2000. The above memo Ex. PW4/F (D25) and the factum of taking voice samples of both the accused vide the said memo stand duly proved on record from the consistent depositions made by the TLO/PW20 as well as the above two independent witnesses.
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104. PW1 Dr. Rajender Kumar during his statement made in this court has also duly proved on record his report Ex. PW1/A dated 09.11.2000 which was given regarding the analysis of the questioned voices of accused as contained in the above cassettes marked Q1, Q2, Q3 and the specimen voices of both the accused recorded in the cassettes marked S1 and S2. As already stated above, the questioned voice recorded in the cassette marked as Q4 was not put to analysis by him as it contained the same recordings as were there in the other cassette marked as Q3 of the trap proceedings dated 30.05.2000. As per the result of analysis carried out by PW1, as is found to be specifically incorporated in the above report Ex. PW1/A given by him, the different portions/sentences of the questioned voices of the accused, i.e. the accused Manoj Kumar Mishra to whom these questioned voices belonged, were found to be matching with the specimen voice samples of the above accused taken in the cassette marked S1 as it is found specifically stated in the said report that these were probable voices of the same person. This witness was also cross examined at length by Ld defence counsel on this aspect and during his cross examination he has also stated that his office had all the latest gadgets for the purposes of analyzing sound and he had examined the questioned as well as the specimen voices appearing in the above cassettes by auditory method comprising of 23 parameters and also by spectrographic analysis and selected common sentences. He CC No. 147/15, CBI Vs. M. K. Mishra Page No. 103 of 121 was also questioned by Ld defence counsel as to whether he superimposed the voices and their spectrograms of the whole of the questioned and specimen voices appearing in the above cassettes, to which he replied that he had compared the spectrograms of the selected common sentences between the questioned and specimen voices by the scientific method. His depositions made in this court, as corroborated by the contents of his report Ex. PW1/A are sufficient to further corroborate the case of prosecution that it was the accused Manoj Kumar Mishra only with whom the complainant had detailed telephonic conversations on the above three dates and all the questioned voices attributed to the above accused and comprising the demand and acceptance of the bribe amount by him, as recorded in the above cassettes marked Q1, Q2 and Q3, were the probable voices of the said accused only.
105. Though, Ld defence counsel has challenged the competency of this witness on the ground that the Ph.D. course done by this witness was not in the field of audio analysis, but in the photo aucastic study of crime exhibits such as paint, fiber, glass and lipstick etc, but it is observed that the witness was well competent and experienced in his field as he has stated that even the above study of crime exhibits undertaken by him in his Ph.D. course was related to analysis of sound and he was having degrees in M.Sc., B.Ed., M.Phil.
CC No. 147/15, CBI Vs. M. K. Mishra Page No. 104 of 121 (Physics) and Ph.D. in forensic physics, besides having a long experience of 15 years in the field of forensic voice identification and of examining and reporting more than 600 cases of such nature which involved study of different voices of more than 2000 persons and had also appeared as witness in relation to his above field of forensic voice identification in the courts at Delhi and other States in more than 300 cases. Further though, it is also an argument of Ld defence counsel that the TLO/PW20 has fabricated the above specimen voice samples of the accused Manoj Kumar Mishra in a particular manner as the said accused was asked to speak certain few selected words only for recordings, but this contention of Ld defence counsel is not of any worth as it is always some selected sentences or words which can be compared with the questioned words or sentences of a given formation and not all the contents of recordings are required to be so compared or analyzed as it is not practical. Even otherwise, there is nothing on record to suggest that the material made available to the above expert witness was insufficient. Moreover, the very fact that in the same report Ex. PW1/A, it is also found stated that the selected questioned voices appearing in the above cassettes marked Q1, Q2 and Q3 did not match with the specimen voice samples contained in the other cassette marked S2 belonging to the other accused Satya Deo Mishra (since deceased) is sufficient to show the fairness of proceedings conducted by the CBI and of the above process CC No. 147/15, CBI Vs. M. K. Mishra Page No. 105 of 121 of analysis of the voices because had there been any illwill or motive on the part of the CBI officials to falsely implicate any accused in this case, then their choice would have been the accused Satya Deo Mishra who was an official of the CBI and not the present accused Manoj Kumar Mishra.
106. It is also one of the arguments of Ld defence counsel that the contents of the above recordings, as reflected in the transcripts thereof, as well as the expert evidence and report regarding their analysis are not admissible in evidence against the accused as the same amount to secondary evidence within the meaning of the Evidence Act and there is no certificate U/s 65B of the Evidence Act produced by the prosecution on record with regard to the genuineness and authenticity of the said recordings. Judgments in cases Anvar P.V. (S) Vs. P. K. Basheer & Ors. Civil Appeal No. 4226 of 2012 decided on 18.09.2014 by the Hon'ble Supreme Court and Ankur Chawla Vs. CBI & Ors, Crl. M.C. No.2455/12 & Crl. M.A. No.8318/2017 decided on 20.11.2014 by the Hon'ble Delhi High Court are also relied upon in this regard. However, this submission of Ld defence counsel is also found to be without any merits as the evidence brought on record by the prosecution clearly shows that it is the original recordings contained in the original cassettes which were sent to CFSL for analysis and were analyzed vide the above report Ex. PW1/A, alongwith the original voice samples of the accused, CC No. 147/15, CBI Vs. M. K. Mishra Page No. 106 of 121 and hence, the above evidence is found to be primary evidence within the meaning of the Evidence Act and no certificate U/s 65B of the said Act was required for proving the contents of the above recordings or any other evidence pertaining to the same. Even the judgments in cases Niranjan Singh Vs. CBI 203 (2013) DLT 635 and Vishal Chand Jain @ V. C. Jain Vs. CBI 2011 (1) JCC 570 being relied upon by Ld defence counsel on the point of relevancy of recorded conversations are found to be not applicable in the present case.
107. One other important aspect of corroboration of the prosecution case is the evidence pertaining to handwriting of the accused Manoj Kumar Mishra. As already stated above, as per the prosecution case, amongst other documents a copy of one complaint, which is Ex. PW9/A (D15) on record, was also recovered from the dickey of scooter of the above accused. This complaint is alleged to be made against the complainant in respect of certain misdeeds done by him, which included the attestation of copy of a mark sheet/certificate of his own daughter and declaration of a false caste etc in his service records. It is also the prosecution case that during investigation proceedings conducted on 31.05.2000, the IO/PW20 had taken the specimen handwritings of the accused Manoj Kumar Mishra on separate sheets and these writings are Ex. PW4/E1 to Ex. PW4/E10 (D27) on record. It CC No. 147/15, CBI Vs. M. K. Mishra Page No. 107 of 121 is observed that in these writings the accused Manoj Kumar Mishra was made to rewrite the contents of the above copy of complaint Ex. PW9/A in his own handwriting and he had re written the above complaint five times on total 10 sheets. Besides the above specimen writings of accused Manoj Kumar Mishra, subsequently some other specimen writings of this accused and also of PW16 Naveen Srivastava were also taken on 05.07.2000 and 25.07.2000 on sheets Ex. PW9/D1 & Ex. PW9/D2 (D27) and Ex. PW9/D3 & Ex. PW9/D4 (D28) respectively by the subsequent IO/PW21 Inspector Virender Thakran. These specimen writings Ex. PW9/D1 & Ex. PW9/D2 (D27) of accused Manoj Kumar Mishra and Ex. PW9/D3 & Ex. PW9/D4 (D28) of PW16 Naveen Srivastava were taken for the purposes of comparison of some similar writings appearing in their respective diaries Ex. PW20/DX (D
22) and Ex. PW9/C (also Ex. PW4/A)(D26) seized during the investigation and the specimen writings Ex. PW4/E1 to Ex. PW4/E10 (D27) of accused Manoj Kumar Mishra were taken for the purposes of comparison with the writing of the above complaint Ex. PW9/A. In their respective diaries Ex. PW20/DX (D22) and Ex. PW9/C (D26), the accused Manoj Kumar Mishra and PW16 Naveen Srivastava had, interalia, written the name and telephone number of each other and the diaries were seized to show that the both were well known to each other, which fact has even otherwise not been disputed on behalf of each other.
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108. All the above writings were examined in the CFSL by PW9 Sh. T. R. Nehra, handwriting expert, and he has duly proved on record his report dated 09.11.2000 as Ex. PW9/E. As per the above report, not only the questioned writings of the accused Manoj Kumar Mishra and PW16 Sh. Naveen Srivastava in their respective diaries were confirmed to be in their own writings, but it was also opined that the writing appearing in the above copy of complaint Ex. PW9/A (D15) was that of the accused Manoj Kumar Mishra as the specimen writings on sheets Ex. PW4/E1 to Ex. PW4/E10 (D27) were opined to be matching and similar with the writing of the above complaint Ex. PW9/A. This witness was also duly cross examined on behalf of accused persons, but nothing material could be extracted out during his such cross examination by Ld defence counsel which could have the effect of neutralizing or nullifying his above report. Though, the opinions given by the CFSL experts are not binding, but the same have certainly got corroborative values to a great extent and hence, the report Ex. PW9/E given by this witness duly corroborates the case of prosecution that the above copy of complaint Ex. PW9/A (D15) was fabricated by the accused Manoj Kumar Mishra himself to harass the complainant and it is the said complaint in connection with the filing of which he had demanded and accepted the above bribe amount from the complainant.
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109. Though, Ld defence counsel has also argued that contents of the above copy of complaint Ex. PW9/A cannot be considered in evidence by this court as the original thereof has not been produced, but it is the case of prosecution from the very beginning that the original was destroyed by the accused himself, as was disclosed by the accused to the TLO in the very beginning when the accused was apprehended from his house. In any case, the contents of the said complaint are not being actually considered by the court and it is the factum of similarity of handwriting only of the said complaint with the specimen writings of the accused Manoj Kumar Mishra, which is being considered by the court, as has been established by the above said report. Though, it is also one of the contentions of Ld defence counsel that the story of prosecution regarding the seizure of the above copy of complaint Ex. PW9/A, alongwith certain other documents, from the dickey of the above scooter number UAM 2789 of the accused is not believable as the said scooter was not even available in Delhi on the day of trap and rather it was at Lucknow, as has also been deposed by DW2 to DW4 specifically, but this contention of Ld defence counsel or the depositions made by DW2 to DW4 on this aspect have not been substantiated by any satisfactory evidence. The factum of recovery of the above documents from the dickey of the said scooter is found to be specifically mentioned in the recovery memo dated 30.05.2000 Ex. PW2/L (D11) and it is also specifically mentioned in the CC No. 147/15, CBI Vs. M. K. Mishra Page No. 110 of 121 said document, as well as deposed by all the witnesses of trap team, that the said scooter was parked outside the house of the accused on that day and the above copy of complainant Ex. PW9/A as well as some other documents recovered from the dickey thereof, then simply because the place where the scooter was parked is not shown in the site plan Ex. PW3/A (D12) of the spot, Ld defence counsel cannot be heard in saying that the said scooter was not available in Delhi on that day. The judgment in case Shingara Singh Vs. State of Haryana (2003) 12 SCC 758 being relied upon by Ld defence counsel in support of his argument for relevancy of a site plan is not found to be applicable in the present case.
110. Ld defence counsel has also argued about and pointed out certain other lacunaes and discrepancies in the prosecution story and amongst these one is about the absence of the call detail records of the above landline numbers installed at the house of complainant and the accused. It is his contention that the same have either not been obtained by the IO or have not been placed on record by him after obtaining it as the same did not suit the prosecution case. However, this contention of Ld defence counsel also cannot be accepted or made basis for rejection of the otherwise consistent and corroborative evidence led on record by the prosecution in support of its charges framed against the accused. During the course of his defence evidence, the CC No. 147/15, CBI Vs. M. K. Mishra Page No. 111 of 121 accused as DW4 has deposed about filing of some RTI applications and has also brought on record some documents pertaining to the same and these documents are in the form of the applications dated 01.04.2013 and 17.08.2015 seeking certain informations as filed by him and also the replies thereto furnished by the MTNL authorities. The record pertaining to his application dated 01.04.2013 is Ex. DW4/Ecolly and that pertaining to the other application dated 17.08.2015 is Ex. DW4/Dcolly. Though these documents have not been proved on record by him as per the provisions of the Evidence Act, but even otherwise it is observed that in the application dated 01.04.2013, the accused had sought the call details of the above two landline numbers during the period relevant to this trap from the MTNL and it was replied by the MTNL that since the informations being sought were very old and no data was available in their system, the desired call details of these two numbers were not traceable in their system and hence, could not be provided. It is further observed that vide the other application dated 17.08.2015, the accused had sought information regarding the actual working of the telephone number 7884407 installed at their residence during the relevant period of the trap and this information appears to have been sought in view of the fact that during investigation, the CBI had obtained one certificate/letter Ex. PW6/A (D21) dated 29.11.2000 from the MTNL to the effect that the above telephone number was installed at the residence of accused CC No. 147/15, CBI Vs. M. K. Mishra Page No. 112 of 121 and it was installed in the name of Smt. Kiran (who is wife of the accused) and it was working at the said address since 17.03.1999. It is also one of the contentions of the accused that though the above certificate and the depositions made by PW6 show only that the above telephone number was working at their address since 17.03.1999, but the same do not show that it was actually in a working condition during the above trap period. However, the reply furnished by the MTNL to the application dated 17.08.2015 of the accused, which is part of Ex. DW4/D, clearly shows that no record was found available in the office of MTNL to show the booking of any complaint regarding any fault in the working of the above telephone number of the accused during the desired period from 10.05.2000 to 08.06.2000 and it was despite the fact that in his above application, the accused claimed that a complaint regarding the said telephone number being out of order during the above period was registered at Badli Exchange at the relevant time. Hence, the evidence brought on record before this court negates the claim of accused that the above telephone number 7884407 installed at their residence was not in actual working condition during the above trap period. Even otherwise, the very fact that all the material prosecution witnesses of trap have made specific depositions regarding making of calls by the complainant from his landline number to the above landline number of the accused on 24.05.2000 as well as on 25.05.2000 and there is also a specific mention of CC No. 147/15, CBI Vs. M. K. Mishra Page No. 113 of 121 this fact in the relevant documents of prosecution prepared on these dates and these calls were even recorded by the CBI officials, it negates the drawing of any such inference against the prosecution to the effect that the above telephone number installed at the house of accused was not in actual working condition during the relevant period, as is also being submitted on behalf of the accused.
111. It is also one of the contentions of Ld defence counsel that though one independent witness Sh. M. K. Mehta has been examined on record by the prosecution, but the other witness Sh. Jagvir Singh has not been examined. However, it is observed that the witness Sh. Jagvir Singh has not been examined by the prosecution only because of the fact that he expired during the trial and it is not the case that he was willfully withheld by the prosecution. It has also been argued that the link evidence in the form of deposit of the above exhibits by the CBI with the CFSL and entries in the logbook etc of the officials vehicle used by the trap team is missing and in absence of the above link evidence, the story and case of the prosecution should not be believed. However, this argument of Ld defence counsel is also being discarded as the oral and other documentary evidence led on record by the prosecution clearly rules out any possibility of tampering with the parcels of the case property at any stage and the same is also found to be consistent and corroborative enough CC No. 147/15, CBI Vs. M. K. Mishra Page No. 114 of 121 for proving the case of prosecution. It has further been argued that even the witness Ms. Roopa Bharat/PW14 did not support the case of prosecution regarding procuring of a copy of the above seniority list of complainant by PW16 Sh. Naveen Srivastava through her, but this fact is also not found to be detrimental to the case of prosecution because during the course of suggestions given to some of the prosecution witnesses, it was suggested to them on behalf of the accused himself that the said copy of seniority list was obtained by PW16 through this witness. The non examination of contents of the recordings contained in the micro cassette used in the micro cassette recorder given to the complainant at the time of trap proceedings by the CFSL is another ground of challenge to the prosecution case by Ld defence counsel, but even this is not found to be of any detriment to the prosecution case as it is specifically mentioned in the report Ex. PW1/A that the reasons for non examination of the recordings contained in the above micro cassette marked Q4 were only that the contents thereof were found to be same as of the other recordings contained in cassette marked Q3 used in the trap proceedings. Some other discrepancies, contradictions and inconsistencies etc being pointed out by Ld defence counsel in the prosecution evidence, as well as some other judgments in relation to the same, have not been found to be even worth mentioning because such types of contradictions and inconsistencies etc are bound to occur in any case with the passage of time and CC No. 147/15, CBI Vs. M. K. Mishra Page No. 115 of 121 the fading memory of witnesses as all the witnesses cannot be expected to give a parrot like version of the incident.
112. Moreover, during the course of suggestions given to the prosecution witnesses and in his statement recorded U/s 313 Cr.P.C., the accused has though denied the allegations of demand and acceptance of the above bribe amount by him from the complainant, but the factum of recovery of the above bribe amount of Rs. 50,000/ from his house has not been denied. It was the case of accused that the above bribe amount of Rs. 50,000/ was not recovered from the top of the centre table lying in his drawing room and rather it was recovered from the lower rack of the centre table and it was left there by the complainant without his knowledge and might be for handing it over to PW16 in connection with the above alleged settlement arrived at between them in hotel Pavilion. However, as already discussed above, the defence version regarding the alleged settlement arrived in hotel Pavilion has already been discarded by this court as untruthful and the other defences being taken by accused are also found to be self contradictory. If as per the accused, the complainant had taken the above amount of Rs. 50,000/ to the house of accused for giving it to PW16 Naveen Srivastava through the accused, then there was no question of keeping of the said amount by the complainant on the lower rack of the table in the house of accused and that too, without any knowledge or CC No. 147/15, CBI Vs. M. K. Mishra Page No. 116 of 121 consent of the accused. Moreover, the contents of the above recordings and transcripts and also the above hand washes deny the above defence version.
113. Besides the above bribe amount of Rs. 50,000/, an amount of Rs. 35,000/ is also shown to have been recovered during the house search of the accused conducted vide item number 18 of the searchcumseizure memo dated 30.05.2000 (D23) and this amount is alleged to have been produced before the TLO by the wife of the accused Manoj Kumar Mishra. It is further reflected in the above memo that besides this amount of Rs. 35,000/, another amounts of Rs. 18,000/ and 17,000/ were also recovered during the search of the briefcases belonging to A2 Satya Deo Mishra (since deceased), which were opened with the help of some keys brought by Inspector Umesh Dheer during the above search proceedings. During the course of suggestions given to the IO as well as during examination of DW2 to DW4 it has been tried to project on behalf of the accused as if this amount of Rs. 35,000/ recovered from the briefcases of A2 (Rs. 18,000/ + Rs. 17,000/) was the amount which the TLO himself had given to the accused persons in their house few days prior to the actual trap against purchase of some furniture articles by the father of TLO through A2, but there is no corroborative material on record to substantiate the above claim of accused. Even otherwise, it has admittedly nothing to do with the CC No. 147/15, CBI Vs. M. K. Mishra Page No. 117 of 121 recovery of the bribe amount of Rs. 50,000/ from the house of accused. The other defence of false implication of the accused by the TLO due to some dispute between A2 and father of the TLO, who both are alleged to have been working for the CBI, over purchase of some furniture articles by father of TLO through A2 is also not substantiated by any satisfactory evidence as except the bald depositions made by the defence witnesses and some suggestions given to the TLO, which were specifically denied by him as wrong, there is no other evidence to corroborate or substantiate the same.
114. Though, it is also argued by Ld defence counsel that the prosecution has miserably failed to discharge the onus of proving its case against the accused beyond reasonable doubts and benefit of doubt is required to be given to the accused for the said reason and further that the accused has been able to prove that his defence was a probable offence, but this court fails to accept these arguments of Ld defence counsel as the oral evidence led on record by the prosecution is found to be duly corroborated by the documentary evidence and in view of the consistent and corroborative evidence led on record, it can be said that the prosecution has successfully discharged the onus of proving its case against the accused beyond reasonable doubts and the defence taken by the accused is not probable. It is settled that the doubts of which benefit can be given to the accused should be real and actual CC No. 147/15, CBI Vs. M. K. Mishra Page No. 118 of 121 doubts and not just notional or flimsy doubts and every small or immaterial doubt appearing in the case of prosecution cannot be termed to be a reasonable doubt. The judgments in cases S. K. Singhal Vs. State (CBI) 2013 V AD (Delhi) 660, Prem Singh Yadav Vs. CBI 2011 (2) JCC 1059 and L. K. Advani Vs. CBI 1997 (4) Crimes 1 (Del) being relied upon by Ld defence counsel in the given context are distinguishable from the facts of the present case and the propositions of law laid down in the case of V. C. Shukla, Supra are though not disputed, but the same are not of any help to the case of accused.
115. In view of the above discussion, it is held that the evidence led on record by the prosecution in respect of charge for the offence punishable U/s 13(2) r/w Section 13(1)(d) of the PC Act as framed against the accused is not only found to be corroborative, consistent and truthful in nature, but the same is also sufficient to meet out the requirements of the above Sections and to bring home the guilt of the accused for the above said offence.
CHARGE FOR THE OFFENCE U/S 419 IPC AND EVIDENCE QUA THE SAME
116. As already discussed above, the prosecution has successfully proved on record that the above calls dated 24.05.2000 and 25.05.2000 were made by A1 Manoj Kumar CC No. 147/15, CBI Vs. M. K. Mishra Page No. 119 of 121 Mishra to the complainant while impersonating himself as Inspector Satya Deo Mishra, i.e. A2, who was actually his father. It has also been proved on record that it was actually A1 Manoj Kumar Mishra with whom the complainant had met at his house in Rohini on 20.05.2000 and even on the day of trap, i.e. 30.05.2000. A1 had been conversing with the complainant as an official of CBI with whom some complaints filed against the complainant were pending. The above transcripts also duly substantiate the other oral evidence led on record in the form of the testimony of complainant. Further, during his examination in court also, the complainant has identified A1 only as the above Inspector Satya Deo Mishra who was making calls to him and with whom he had met at their house. Hence, the prosecution has also been successful in establishing that during commission of the above offence U/s 13(1)(d) of the PC Act, the accused Manoj Kumar Mishra (A1) had impersonated himself as an Inspector of CBI named Satya Deo Mishra, i.e. A2, who was his father and is since deceased. Therefore, the charge for the offence of cheating by impersonation as made punishable by 419 IPC is also liable to be held as proved against the accused as he by so impersonating himself had thereby fraudulently and dishonestly induced the complainant to deliver the above bribe amount of Rs. 50,000/ to him.
117. In view of the above discussion, it is held that the CC No. 147/15, CBI Vs. M. K. Mishra Page No. 120 of 121 prosecution has successfully brought home the guilt of the accused and proved its charges framed against the accused for offences punishable U/s 419 IPC and Section 13(2) r/w Section 13(1)(d) of the PC Act and the accused is, therefore, held guilty and convicted for the above said offences. However, he is being acquitted for the other charges framed U/s 120B IPC r/w Section 419 IPC and Sections 7 & 13(2) r/w Section 13(1)(d) of the PC Act as well as the substantive offence U/s 7 of the PC Act.
118. A personal bond in the sum of Rs. 50,000/ with one surety of the like amount, alongwith the proof of address 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.
119. Let the accused be now heard on the point of sentence.
Announced in open Court
on 05.11.2016 (M.K. Nagpal)
Special Judge (PC Act), CBI08,
Central District, THC, Delhi
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