Indian Kanoon - Search engine for Indian Law

Delhi District Court

State vs Surender Singh Kataria on 27 February, 2024

     IN THE COURT OF SPECIAL JUDGE (PC ACT) (ACB)­02, ROUSE AVENUE
                      DISTRICT COURTS, NEW DELHI

Presided by : Mr Jay Thareja, DHJS


CNR No. DLCT11­001947­2019
CC No. : 348/2019
FIR No.: 51/2005
U/S. 7/ of the Prevention of Corruption Act, 1988.
Police Station: ACB, GNCTD.


IN THE MATTER OF :­



State                                 v   Sh. Surender Kumar Kataria
                                          S/o Sh. Krishan Chand
                                          R/o H. No.1077,
                                          Bawana Village, Delhi.

                                                         Date of Institution : 12.12.2019
                                     Date of Conclusion of Final Arguments : 27.01.2024
                                                         Date of Judgment : 27.02.2024


                                           JUDGMENT

1. The present criminal case has originated from a charge­sheet filed by the State, alleging commission of offences punishable under Sections 7 and 13 of the Prevention of Corruption Act, 1988 (henceforth 'PC Act, 1988') by the accused, Sh. Surender Kumar Kataria.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 1 of 91 Brief Synopsis of the Charge­Sheet

2. In the charge­sheet, it has been alleged by the State that the genesis/start­point of this case is a complaint dated 17.11.2005, submitted by the complainant, Sh. S. N. Joneja, Principal, Veer Savarkar Basic Training Centre, Pusa, New Delhi­12, Govt. of NCT of Delhi; that vide the said complaint, the complainant, Sh. S. N. Joneja had inter­alia informed the Anti­Corruption Branch of the Govt. of NCT of Delhi (henceforth 'ACB') (a) that on 25.10.2005, Sh. Sanjay Chandra, a reporter of Star TV had done a sting operation at Veer Savarkar Basic Training Centre, Pusa, New Delhi­12 (henceforth, 'the Institute'), wherein he had recorded the accused, Sh. Surender Kumar Kataria, Craft Instructor at the Institute, accepting Rs.4000/­ from a relative of a trainee (Sh. Rajesh), admitted in ITI course of the Institute; (b) that in view of the said sting operation, the accused, Sh. Surender Kumar Kataria was immediately suspended as per CCS Conduct Rules and (c) that the matter had already been brought to the notice of the higher authorities of the Institute; that vide his complaint dated 17.11.2005, the complainant, Sh. S. N. Joneja had also requested ACB to lodge a complaint against the accused, Sh. Surender Kumar Kataria; that in pursuance of the said request, a preliminary inquiry was conducted by Inspector Mehar Chand of ACB and that ultimately, the FIR of this case was registered, on 09.12.2005.

3. Further, in the charge­sheet, it has been alleged by the State that during the preliminary inquiry/initial investigation of this case, the first IO, Inspector Mehar Chand had (a) seized one VCD containing the edited video of the telecast State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 2 of 91 "Sansani" done by Star TV, from Sh. Manoj Kumar Saxena, Craft Instructor at the Institute vide seizure memo dated 07.12.2005, (b) obtained documents regarding admission of Sh. Rajesh Kumar Yadav, trainee admitted in ITI course of the Institute, on 11.05.2006, (c) seized one original video cassette (Part­I) and one VCD (Part­I), made from the said original video cassette, from Sh. Ajay Kumar, BAG Films, NOIDA vide seizure memo dated 20.04.2007, (d) sealed the video cassette (Part­I) in a pullanda with his seal of MC and kept the VCD (Part­I) open for investigation, (e) arrested the accused, Sh. Surender Kumar Kataria, on 06.08.2007, (f) prepared a transcript from the video cassette (Part­I), on 06.08.2007, (g) collected the voice sample of the accused, Sh. Surender Kumar Kataria through CFSL, Lodhi Road, on 08.08.2007, after obtaining permission from the Court of Sh. Sunil Gaur, the then Ld. Special Judge, Delhi, on 07.08.2007, (h) seized one original video cassette (Part­II) and one VCD (Part­II), made from the original video cassette, from Sh. Ajay Kumar, BAG Films, NOIDA vide seizure memo dated 13.08.2007 and (i) sealed the video cassette (Part­II) in a pullanda with his seal of MC and kept the VCD (Part­II) open for investigation.

4. Further, in the charge­sheet, it has been alleged by the State that during the subsequent investigation of this case, the third IO, Inspector Manoj Kumar had (a) prepared the observation memo dated 08.08.2008, (b) obtained the first sanction under Section 19 of PC Act, 1988 qua the accused, Sh. Surender Kumar Kataria, on 21.01.2009, (c) then sent the original sting video cassette (Part­I) alongwith voice sample of the accused, Sh. Surender Kumar Kataria to FSL, Rohini for expert opinion, on 24.02.2009 1 and (d) obtained the FSL report dated 1 In my view, this step should have been taken by the investigating agency/ACB before seeking/obtaining the first sanction under Section 19 of the PC Act, 1988 qua the accused, Sh. Surender Kumar Kataria.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 3 of 91 30.10.2009, affirming that the video in the original sting video cassette (Part­I) is unaltered and contains the voice of the accused, Sh. Surender Kumar Kataria.

5. Further, in the charge­sheet, it has been alleged by the State that during the subsequent investigation of this case, the fourth IO, Inspector Dharamvir Singh had (a) prepared the transcript of the video in the VCD (Part­II), on 22.02.2011 and (b) sent the second original sting video cassette (Part­II) alongwith voice sample of the accused, Sh. Surender Kumar Kataria to FSL, Rohini, for expert opinion, on 10.03.2011.

6. Further, in the charge­sheet, it has been alleged by the State that during the subsequent investigation of this case, the fifth IO, Inspector B.K. Singh had obtained the FSL report dated 31.10.2011, affirming that the video in the second original sting video cassette (Part­II) is unaltered and contains the voice of the accused, Sh. Surender Kumar Kataria.

7. Further, in the charge­sheet, it has been alleged by the State that during the subsequent investigation of this case, the last/eighth IO, Inspector Rohitash Kumar had analysed the investigation already done by the previous IOs and found (a) that Sh. Raj Kumar Yadav and Sh. Rajesh Kumar Yadav (trainee at the ITI course of the Institute) are real brothers belonging to Bihar; (b) that Sh. Rajesh Kumar Yadav was looking for admission in some ITI course; (c) that in the month of July, 2005, the Institute had published information qua ITI courses; (d) that Sh. Rajesh Kumar Yadav had applied for admission in the ITI courses of the Institute but he was not selected; (e) that around that time, Sh. Raj Kumar Yadav had come in contact with the accused, Sh. Surender Kumar Kataria, working as a Craft State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 4 of 91 Instructor at the Institute and asked him about the admission of his brother, Sh. Rajesh Kumar Yadav; (f) that during the ensuing conversations, the accused, Sh. Surender Kumar Kataria had noted down the particulars of Sh. Rajesh Kumar Yadav and told Sh. Raj Kumar Yadav that if he is paid bribe of Rs.13,000/­, he will ensure the admission of Sh. Rajesh Kumar Yadav in the ITI course of the Institute; (g) that thereafter, nothing was done by the accused, Sh. Surender Kumar Kataria; (h) that in view of the status quo, Sh. Rajesh Kumar Yadav had again applied at the Institute and secured admission; (i) that upon getting to know about the admission of Sh. Rajesh Kumar Yadav, the accused, Sh. Surender Kumar Kataria had contacted Sh. Raj Kumar Yadav and demanded the bribe money of Rs.13,000/­ on the pretext that he had secured the admission of Sh. Rajesh Kumar Yadav; (j) that the accused, Sh. Surender Kumar Kataria had also threatened Sh. Raj Kumar Yadav that if the bribe money is not paid, he would get the admission of Sh. Rajesh Kumar Yadav canceled; (k) that in view of the threat given by the accused, Sh. Surender Kumar Kataria, Sh. Raj Kumar Yadav had got in touch with Sh. Sanjay Chandra, a reporter of Star TV; (l) that thereafter, Sh. Raj Kumar Yadav, Sh. Sanjay Chandra alongwith cameraman, Sh. Mukesh Kumar had conducted a sting operation upon the accused, Sh. Surender Kumar Kataria, on 25.10.2005 (recorded in the original video cassette (Part­I))2, during which he had demanded and accepted bribe of Rs.4000/­ from Sh. Raj Kumar Yadav, through a student, Sh. Vikas; (m) that after conducting the sting operation, Sh. Raj Kumar Yadav, Sh. Sanjay Chandra and Sh. Mukesh Kumar had confronted the accused, Sh. Surender Kumar Kataria with the allegation of taking/accepting bribe of Rs.4000/­; (n) that initially, the accused, Sh. Surender Kumar Kataria had denied the allegation but later, upon being shown the sting 2 This is the original video cassette (Part­I), seized by the first IO, Inspector Mehar Chand from Sh. Ajay Kumar of BAG Films, Noida, vide seizure memo dated 20.04.2007.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 5 of 91 operation video (recorded in the original video cassette (Part­I)) in the office of Sh. S. N. Joneja, the Principal of the Institute, the accused, Sh. Surender Kumar Kataria had admitted that he had taken Rs.4000/­ from Sh. Raj Kumar Yadav but claimed that he had not taken the money for admission of Sh. Raj Kumar Yadav; (o) that thereafter, the accused, Sh. Surender Kumar Kataria had returned the sum of Rs.4000/­ taken from Sh. Raj Kumar Yadav; (p) that the incidents of the confrontation of the accused, Sh. Surender Kumar Kataria in the office of Sh. S. N. Joneja, the Principal of the Institute, the admission made by the accused, Sh. Surender Kumar Kataria etc. were recorded by Sh. Sanjay Chandra and Sh. Mukesh Kumar and can be seen in the original video cassette (Part­II) 3 and (q) that despite best efforts, the spy camera and the TV camera recorder used by Sh. Sanjay Chandra and Sh. Mukesh Kumar, on 25.10.2005 had not been seized. Simultaneously, in the charge­sheet, it has been alleged by the State that after doing the aforesaid analysis, the last/eighth IO had obtained the second/final sanction under Section 19 of PC Act, 1988 qua the accused, Sh. Surender Kumar Kataria, on 13.03.2015.

8. Lastly, in the charge­sheet, it has been alleged by the State that from the total investigation done in this case, the logical conclusion that follows is that the accused, Sh. Sunder Singh Kataria is liable to be prosecuted, convicted and sentenced qua the offences punishable under Section 7 and 13 of the PC Act, 1988.4 3 This is the original video cassette (Part­II), seized by the first IO, Inspector Mehar Chand from Sh. Ajay Kumar of BAG Films, Noida, vide seizure memo dated 13.08.2007. 4 I have narrated the charge­sheet filed by the State by referring to the investigation done by the different IOs of this case, in order to highlight (a) that some of the IOs of this case had not done any quality investigation/work, while dealing with the investigation of this case; (b) that a majority of the investigation of this case had been completed in 2011 and yet the investigation file was kept pending for a formal completion and (c) that despite grant of final sanction under Section 19 of the PC Act, State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 6 of 91 Compliance of Section 207 of CrPC, 1973 and Framing of Charge

9. A perusal of the Court file reveals that the aforesaid charge sheet was filed in this Court, on 12.12.2019; that on the basis of the aforesaid charge­sheet, a Ld. Predecessor Judge had taken cognizance of the offences punishable under Sections 7 and 13 of PC Act, 1988, on 19.12.2019; that upon service of summons of this Court, the accused, Sh. Surender Kumar Kataria had appeared in this Court, on 15.01.2020; that after supply of documents to the accused, Sh. Surender Kumar Kataria in compliance of Section 207 of the Code of Criminal Procedure, 1973 (henceforth "CrPC, 1973"), a Ld. Predecessor Judge had framed the charge against the accused, Sh. Surender Kumar Kataria, on 11.03.2020, whereby the accused, Sh. Surender Kumar Kataria was charged with the commission of the offences punishable under Sections 7, 13(1)(d) and 13(2) of Prevention of Corruption Act, 1988 and that when the said charge was read over and explained to the accused, Sh. Surender Kumar Kataria in Hindi, he had pleaded not guilty and claimed trial.

Evidence led by the State

10. During trial of this case, the State had examined 21 witnesses viz. PW1 Sh. Manoj Kumar Saxena, PW2 ASI Anil Kumar, PW3 ASI Ram Kumar, PW4 Sh. S. 1988 qua the accused, Sh. Surender Kumar Kataria, on 13.03.2015, the charge­sheet in this case was filed in this Court more than four years later, on 12.12.2019. In my view, it is despicable on the part the IOs of ACB/State to take around 14 years to file the charge­sheet in this case. In taking this strong view, I draw strength from the judgments in P. Ramachandra Rao v State of Karnataka, (2002) 4 SCC 578, A. R. Antulay & Ors. v R. S. Nayak, (1992) 1 SCC 225 and State of Andhra Pradesh v P. V. Pavithran, (1990) 2 SCC 340, wherein it has been held by the Hon'ble Supreme Court that the right to speedy trial of an accused (guaranteed under Article 21 of the Constitution of India), includes within its sweep all the stages of a criminal proceeding, including investigation.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 7 of 91 N. Joneja, PW5 Retd. SI Surender Kumar, PW6 Sh. Vikas Kumar, PW7 HC Dinesh, PW8 Retd. SI Ramesh Singh, PW9 Dr. C. P. Singh, PW10 Sh. Karnail Singh, PW11 Inspector Surender Kumar, PW12 Sh. Raj Kumar, PW13 Retd. ACP Dharamvir Singh, PW14 Retd. SI K. L. Meena, PW15 Retd. IAS Manoj Kumar, PW16 Retd. Inspector B. K. Singh, PW17 Retd. ACP Mehar Chand, PW18 ACP Manoj Kumar, PW19 Inspector Satender Vashisht, PW20 ACP Rohitash Kumar and PW21 Sh. Mukesh Kumar Yadav.

11. During examination in chief, PW1 Sh. Manoj Kumar Saxena had inter­ alia deposed that during 1999 to 2011, he was working as a Craft Instructor in Veer Savarkar Basic Training Center, Pusa, New Delhi; that on 07.12.2005, in the presence of Sh. S. N. Joneja, the Principal of the Institute, he had handed over one video CD from the almirah of the Principal's room to the first IO, Inspector Mehar Chand and it was seized by the IO vide seizure memo, Ex.PW1/A. During cross­ examination by the Ld. Advocate for the accused, PW1 Sh. Manoj Kumar Saxena had inter­alia deposed that the IO had recorded his statement under Section 161 of CrPC, 1973 and he had not gone to PS ACB.

12. During examination in chief, PW2 ASI Anil Kumar had inter­alia deposed that on 09.12.2011, he was posted as a Constable at PS ACB; that on that day, he had collected an FSL result along with the exhibits of this case, from FSL, Rohini; that thereafter, he had handed over the FSL result to Inspector Yashpal because the IO was on leave and he had deposited the exhibits in the malkhana of PS Civil Lines; that till the exhibits of this case were in his possession, they were not tampered with and that his statement under Section 161 of CrPC, 1973 was State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 8 of 91 recorded on 12.12.2011. During cross­examination by the Ld. Advocate for the accused, PW2 ASI Anil Kumar had inter­alia deposed that on 09.12.2011, he had made departure entry in the DD register of PS ACB and his failure to disclose the said DD entry in his statement under Section 161 of CrPC, 1973 as well as before this Court, does not reflect that he had not collected the FSL result alongwith exhibits of this case, on 09.12.2011.

13. During examination in chief, PW3 ASI Ram Kumar had inter­alia deposed that on 10.03.2011, he was posted as a Head Constable at PS Civil Lines and working as MHC(M); that on that day, on the direction of the IO, he had handed over forwarding letter alongwith two sealed parcels to Ct. Dinesh vide RC No.23/21/11, Ex.PW3/A(OSR) for depositing at FSL, Rohini; that after depositing the said parcels at FSL, Rohini, Ct. Dinesh had handed him over acknowledgement, Ex.PW3/B(OSR); that the entry made by him in register no.19, on 10.03.2011 is Ex.PW3/C(OSR); that on 09.12.2011, when he was working as MHC(M) PS Civil Lines, Ct. Anil had brought two sealed parcels from FSL, Rohini, in sealed condition and that after accepting them in the malkhana, he had made entry in register no.19 Ex.PW3/D(OSR). During cross­examination by the Ld. Advocate for the accused, PW3 ASI Ram Kumar had denied that the entries made by him were ante­dated and ante­time and that he had tampered with the case property.

14. During examination in chief, PW4 Sh. S. N. Joneja had inter­alia deposed that on 25.10.2005, he was working as the Principal of Veer Savarkar Basic Training Centre, Pusa Road, Delhi; that on that day he was unwell and as a result he was at his home; that upon receipt of information from his office at about 1:30 pm to the effect that someone from his Institute had been caught on camera, State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 9 of 91 while taking money from someone, he had reached his Office/Institute at about 02:15­02:30 pm; that upon reaching his Office/Institute, he had met a journalist by the name of Sh. Sanjay, the name of whose institute/newspaper/TV, he does not remember; that upon meeting him, the journalist, Sh. Sanjay had asked him to watch a recording on a device, whose kind, he does not remember; that he had watched the video recorded on the device, either on his office computer or on the TV of the Institute; that in the video, he had seen that 2­3 persons had come to the Institute and entered the room of a teacher, Mr. Kataria (i.e. the accused present in the Court); that in the video, he had also seen that the 2­3 persons, who had come to the Institute and entered the room of Mr. Kataria, were speaking to the accused/Mr. Kataria and handing him over some money; that in the video, he had also seen the accused/Mr. Kataria pointing towards some other person visible in the video and indicating that the money be handed over to that person; that as far as he remembers, in the video, he had also seen that the money was handed over to the third person; that on that day, the journalist, Sh. Sanjay had informed him that Rs.4000/­ had been paid to the accused/Mr. Kataria; that thereafter, he had called the accused/Mr. Kataria in his room and shown him the video; that after showing him the video, he had asked him (accused/Mr. Kataria) if he wants to say anything; that thereafter, the accused/Mr. Kataria had admitted before him that he had taken money from those 2­3 persons and the video was correct; that thereafter, he had asked the accused/Mr. Kataria to return the money, if he had taken the money; that in response to the said request, initially the accused/Mr. Kataria had declined and stated that the money was not with him, but subsequently the accused/Mr. Kataria had brought the money in his room, which was totaling to Rs.4000/­ in the denomination of currency notes, which he does not remember; that the said currency notes were counted by the journalist, Sh. Sanjay or his companion; that he State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 10 of 91 had asked the journalist, Sh. Sanjay and his companions to seal the said currency notes but they had refused; that perhaps they had taken the money against a receipt; that during the process, he had informed about the incident to his senior officers at the Head Office; that they had advised him to suspend the accused/Mr. Kataria with immediate effect and send the report to the Head Office; that he had sent the report after suspending the accused/Mr. Kataria; that he had asked the journalist, Sh. Sanjay to supply a copy of CD containing the video recording; that 4­5 days later, he had received the CD containing the video recording, through a mode he does not remember; that he had sent the CD to the Head Office; that thereafter, he had received instructions from his Head Office to send the CD to ACB; that therefore, he had sent the CD to ACB; that he had also given the complaint dated 16.11.2005, Ex.PW4/A to ACB; that during the investigation of this case, he had twice visited PS ACB; that during the said visits, his statement was recorded by the concerned police officers and that he does not remember if any video was shown to him in the office of ACB. Upon being shown the contents of the unsealed CD of the make Sony, Ex.P1 (bearing the words, 'ITI Pusa Sting'), PW4 Sh. S. N. Joneja had deposed that he had sent the said CD to ACB. Upon being shown the contents of another unsealed CD of the make Sony (with nothing written on it), PW4 Sh. S. N. Joneja had deposed that he is not certain if he had seen the video contained in the said CD on the date of the incident. Upon being shown the contents of a third unsealed CD of the make Moserbaer Pro, Ex.P2 (bearing the words, 'Telecast CD'), PW5 Sh. S. N. Joneja had deposed that he had not seen the video contained in the said CD on the date of the incident and the said video was telecasted on TV.

15. Since, PW4 Sh. S. N. Joneja had not supported the case of the State in entirety, he was permitted to be cross­examined by the Ld. Chief PP for the State.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 11 of 91 During cross examination by the Ld. Chief PP for the State, PW4 Sh. S. N. Joneja had inter­alia deposed that he may have visited ACB, on 15.12.2005; that it is correct that the accused/Mr. Kataria was working as a Craft Instructor at his Institute, on 25.10.2005; that it is wrong to say that the journalist, Sh. Sanjay had called him on 25.10.2005, when he was at his residence; that a staff member had called him; that it is correct that when he had reached his Institute, the journalist, Sh. Sanjay had shown him the video, after connecting the camera with the TV; that it is correct that Sh. Raj Kumar, Foreman alongwith other persons were also present at that time; that it is correct that in the video it can be seen that the accused/Mr. Kataria had taken Rs.4000/­ from Sh. Raj Kumar in the denomination of Rs.500/­, Rs.100/­ and Rs.50/­, after getting them counted from a student as bribe; that it is correct that in the video it can be seen that the accused/Mr. Kataria had told Sh. Raj Kumar to give the money to the student; that he does not remember if the name of the student was Sh. Vikas; that he does not even remember the denomination of the currency notes; that it is wrong to say that he was intentionally not admitting the denomination of the currency notes; that it is wrong to say that he was intentionally not telling the name of the student as Sh. Vikas; that he cannot admit or deny the suggestion that accused/Mr. Kataria had taken the amount of Rs.4000/­ in connection with admission of Sh. Rajesh in fitter course; that the admissions are done by the Directorate of Training and Technical Education and not by the teacher of an Institute like the accused/Mr. Kataria; 5 that he does not remember whether Sh. Raj Kumar was a relative of Sh. Rajesh; that he does not remember the date on which 5 In my view, this statement/testimony of PW4 Sh. S. N. Joneja, cannot be of any advantage to the accused, Sh. Surender Kumar Kataria because explanation (d) to Section 7 of the PC Act, 1988 (as it stood on 25.10.2005), clearly stipulates that 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 the expression, "A motive or reward for doing". So, it really does not matter, whether the accused, Sh. Surender Kumar Kataria was or was not in a position to secure the admission of Sh. Rajesh Kumar Yadav.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 12 of 91 the edited CD was received in his office; that he does not remember the date on which he had sent the edited CD to his Head Office; that he does not remember if the said date was 16.11.2005; that it is possible that the CD was sent to ACB through Sh. Manoj Saxena, CI, BTC­Veer Savarkar; that it is wrong to say that when he had gone to ACB, he was shown two CD's viz. one CD containing unedited video of the sting operation and another CD containing edited version of the sting video, with the announcer of the program, Sansani; 6 that the transcript, Ex.PW4/B, which runs into 16 pages (8 leaves of paper) bears his signatures at point A; that he cannot admit or deny if on 22.02.2011, when he had gone to office of ACB, he was shown the video clippings and thereafter, the transcript, Ex.PW4/B was prepared; that he does not remember that the two CD's shown to him in Court were also shown to him in the office of ACB and on the day of showing, the transcript, Ex.PW4/B was prepared; that the two CDs might have been shown to him but he does not remember ('Dikhai gai hongi, mujhe yaad nahi') and that it is wrong to say that he was intentionally not admitting the complete facts in order to favour the accused.

16. During cross­examination by the Ld. Advocate for the accused, PW4 Sh. S. N. Joneja had inter­alia deposed that he had not witnessed the actual demand and acceptance of the alleged bribe amount by the accused/Mr. Kataria from the journalist, Sh. Sanjay or his companions; that only the return of the amount had occurred in his presence; that when he had received the CD from the journalist, Sh. Sanjay, few days after the incident, it was not accompanied with a certificate under Section 65B of Indian Evidence Act, 1872; that he had received only one CD from the journalist, Sh. Sanjay; that no other CD was received by him; that he had 6 At this stage, the Ld. Chief PP for the State had confronted PW4 Sh. S. N. Joneja with the portion A to A of his statement under Section 161 of CrPC, 1973, Mark PW4/X1.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 13 of 91 sent the received CD to his Head Office; that nobody had recorded the number of currency notes, which were allegedly returned by the accused/Mr. Kataria on any paper on the date of the incident; that the currency notes were returned to the person, who had paid the money and they were not kept by the journalist, Sh. Sanjay; that he does not remember the name of the person, who had kept the amount; that he does not remember if any receipt was obtained from the said person; that when he had first seen the video in his office on the date of incident, Mr. Raj Kumar (Foreman), Mr. Manoj Saxena, the journalist, Sh. Sanjay and his two more companions were present; that 2­3 more persons from his office were also present; that the student who had allegedly received the money was not present in his office as students are not allowed in his office; that he does not remember if he had called the student in his office on that day or thereafter, in order to find out what the matter was; that he had not done so because the case had already been referred to vigilance; that he does not know, whether the IO had demanded a copy of his office note file, pertaining to the incident and a copy of his written report sent to his Head Office; that alongwith the CD, he had sent to his Head Office, a letter on his letter head; that he does not remember whether the transcript, Ex.PW­4/B was written in his presence in the office of ACB or it was already prepared, when he had signed it; that he does not know in whose handwriting, the transcript, Ex.PW­4/B has been scribed; that it is wrong to say that Rs.4000/­ were not brought by accused/Mr. Kataria in his room; that it is wrong to say that the said amount was brought by someone else7 and that it is wrong to say that the accused/Mr. Kataria has been falsely implicated in this case.8 7 It is relevant to note that throughout the trial of this case, the accused, Sh. Surender Kumar Kataria has not specified who this other person was. In my view, when such a suggestion was put to PW4 Sh. S. N. Joneja, the accused, Sh. Surender Kumar Kataria, should have given some specifics of this other person viz. whether he was a student, employee of the Institute or a complete stranger. 8 It is relevant to note that while cross­examining PW4 Sh. S. N. Joneja, the accused, Sh. Surender State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 14 of 91

17. During examination in chief, PW5 Retd. SI Surender Kumar had inter­ alia deposed that on 20.04.2007, he was working as MHC(M) at PS Civil Lines; that on that day, Inspector Mehar Chand had deposited a case property of this case vide entry at Sl. No. 27 in register no.19, Ex.PW5/A (OSR) and thereafter he (PW5 Retd. SI Surender Kumar) had signed the seizure memo dated 20.04.2007, Ex.PW5/A1 at point A; that he identifies the handwriting of HC Om Prakash, who was also posted at PS Civil Lines and whom he had seen writing and signing during the course of his official duties; that the entry at Sl. No. 40 dated 06.08.2007 in register no.19, Ex.PW5/B (OSR) made by HC Om Prakash reflects that the personal search articles of the accused, Sh. Surender Kumar Kataria were deposited by Inspector Mehar Chand, on 06.08.2007; that the original personal search memo pertaining to the accused, Sh. Surender Kumar Kataria, Ex.PW5/B1 bears the signature of HC Om Prakash at point A; that the entry at Sl. No. 42 dated 08.08.2007 in register no.19, Ex.PW5/C (OSR) made by HC Om Prakash reflects that a case property of this case was deposited by Inspector Mehar Chand, on 08.08.2007 and therefore, the seizure memo, Ex.PW5/C1 bears the signatures of HC Om Prakash at point A; that the entry at Sl. No. 43 dated 13.08.2007 in register no.19, Ex.PW5/D (OSR) made by HC Om Prakash reflects that a case property of this case was deposited by Inspector Mehar Chand, on 13.08.2007 and therefore, the seizure memo, Ex.PW5/D1 bears the signatures of HC Om Prakash at point A and that while the case property of this case had remained in his possession/the malkhana, the same was not tampered with. During cross­examination by the Ld. Advocate for the accused, PW5 Retd. SI Kumar Kataria had not imputed any motive upon PW4 Sh. S. N. Joneja, for falsely testifying against him. In my view, in the absence of any such imputation, the logical conclusion that follows is that PW4 Sh. S. N. Joneja, who shared an official hierarchal relationship with the accused, Sh. Surender Kumar Kataria and who would ordinarily not be disposed towards giving false testimony against him, has truthfully disclosed the sequence of events of this case, as per his recollection.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 15 of 91 Surender Kumar had inter­alia deposed that he had mentioned the word 'original' in the entry, Ex.PW5/A (OSR) as this word was mentioned in the seizure memo, Ex.PW5/A­1 and he has no personal knowledge if the video cassette was original or not; that the video cassette had remained in malkhana till it was sent to FSL; that the video cassette was not sent to FSL, during his tenure; that he had remained posted as MHC(M) PS Civil Lines till September/October 2007; that it is wrong to suggest that the case property was tampered with, when it was in his possession as MHC(M) PS Civil Lines; that it is wrong to say that all the aforesaid entries are ante time, ante dated, manipulated or fabricated and it is wrong to say that he had deposed falsely.

18. During examination in chief, PW6 Sh. Vikas Kumar had inter­alia deposed that on 25.10.2005, he was pursuing 'Turner' Course from Basic Training Center, Pusa, New Delhi; that on that day, he was present in his classroom and sitting with his class fellow, Sh. Vikas Yadav; that around lunch time, two persons had come to his classroom and sat for sometime; that later, his teacher, the accused, Sh. Surender Kumar Kataria had also come in the classroom; that thereafter, the two persons, who had come prior to the accused, Sh. Surender Kumar Kataria had started talking to the accused, Sh. Surender Kumar Kataria; that he does not know as to what they had spoken as he and his friend Sh. Vikas Yadav were busy in reading their books; that he does not know the name of either of the two persons, who had come prior to the accused, Sh. Surender Kumar Kataria; that out of the two persons, one person had called out the name of Vikas; 9 that since he and his friend, both were named Vikas, he had gone up to the said two persons; that 9 This statement/testimony is an anomaly, which has been rectified by PW6 Sh. Vikas Kumar during cross­examination by the Ld. Chief Prosecutor for the State and then during cross­examination by the Ld. Advocate for the accused. Even in his statement under Section 313 of CrPC, 1973, the accused, Sh. Surender Kumar Kataria has admitted that he had called out, PW6 Sh. Vikas Kumar.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 16 of 91 upon reaching them, the person who had called out the name of Vikas had given him some money and asked him to count it; that he had counted the money and found it to be Rs.4000/­; that he does not remember the denomination of the currency notes; that after counting the currency notes, he had tried to give the money to the accused, Sh. Surender Kumar Kataria but the accused had asked him to keep the money with him; that thereafter, he had kept the money (Rs.4000/­) with him for sometime; that after about 10 minutes, he had given the money to the accused, Sh. Surender Kumar Kataria; that he does not remember if the said two persons were present, when he had given the amount of Rs.4000/­ to the accused, Sh. Surender Kumar Kataria or whether they had left; that he had not heard any part of the conversation that had taken place between the accused, Sh. Surender Kumar Kataria and those two persons, because he was sitting with his friend, away from the seat of the accused, Sh. Surender Kumar Kataria and because he and his friend were busy reading their books; that after giving money to the accused, Sh. Surender Kumar Kataria, he had left for his house; that on the next day, he had come to know from other students that his picture had appeared in some video and that he does not know anything else.

19. Since, PW6 Sh. Vikas Kumar had not supported the case of the State in entirety, he was permitted to be cross­examined by the Ld. Chief Prosecutor for the State. During cross examination by the Ld. Chief Prosecutor for the State, PW6 Sh. Vikas Kumar had inter­alia deposed that he was not called by the police regarding the amount of Rs.4000/­; that his statement was not recorded; that he was once called at Pitampura in some Polytechnic; that he was once called by ACB officials at PS ACB located at Civil Lines, Delhi; that he does not remember the date when he was called there; that it is wrong to suggest that his statement was State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 17 of 91 recorded by ACB officials, on 01.08.2007; that he was called but his statement was not recorded;10 that though some part of the statement under Section 161 of CrPC, 1973, Mark P­6/A is correctly recorded but the entire part was not stated by him; that it is correct that the accused, Sh. Surender Kumar Kataria had called out the name Vikas and in response thereof, he had gone to his table; that it is wrong to say that upon reaching the table, he had come to know the name of one of the two persons (who was counting the amount of Rs.4000/­) to be Sh. Raj Kumar; that it is wrong to say that at that time, the accused, Sh. Surender Kumar Kataria was also counting the currency notes from his mouth; 11 that he cannot admit or deny that the currency notes were of Rs.500/­ or Rs.100/­ or Rs.50/­; 12 that it is correct that the accused, Sh. Surender Kumar Kataria had not accepted the currency notes from his own hands and he had told Sh. Raj Kumar to give the currency notes to him (PW6 Sh. Vikas Kumar) and then Sh. Raj Kumar had given Rs.4000/­ to him (PW6 Sh. Vikas Kumar); that he does not know and therefore, he cannot admit or deny if after Rs.4000/­ were given to him by Sh. Raj Kumar, the accused, Sh. Surender Kumar Kataria had told Sh. Raj Kumar to pay the balance amount, prior to Diwali; 13 that it is correct that thereafter, the two persons (other than the accused, Sh. Surender Kumar Kataria) had left the classroom; that 8­10 minutes after those persons had left, he had tried to give Rs.4000/­ kept by him in his pant to the accused, Sh. Surender Kumar Kataria and the accused, Sh. Surender Kumar Kataria had asked him to give the amount, after lunch; that it is wrong to say that when he had gone up 10 At this stage, the statement under Section 161 of CrPC, 1973 of PW6 Sh. Vikas Kumar dated 01.08.2007 was shown to him. After reading it, he had testified further. 11 At this stage, the Ld. Chief PP for the State had confronted PW6 Sh. Vikas Kumar with the portion A to A of his statement under Section 161 of CrPC, 1973, Mark P­6/A. 12 At this stage, the Ld. Chief PP for the State had confronted PW6 Sh. Vikas Kumar with the portion B to B of his statement under Section 161 of CrPC, 1973, Mark P­6/A. 13 At this stage, the Ld. Chief PP for the State had confronted PW6 Sh. Vikas Kumar with the portion C to C of his statement under Section 161 of CrPC, 1973, Mark P­6/A. State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 18 of 91 to the table of the accused, Sh. Surender Kumar Kataria, upon being called, he had heard the talks between the accused, Sh. Surender Kumar Kataria and the other two persons or that one of the said two persons viz. Sh. Raj Kumar was talking to the accused regarding admission of his brother or that the accused was asking Sh. Raj Kumar to pay money quickly or that Sh. Raj Kumar was seeking more time to pay money to accused or that Sh. Raj Kumar had requested the accused to reduce the amount;14 that it is correct that he had come to know on the next day that some reporter of Sansani News had caught the accused, Sh. Surender Kumar Kataria, while taking bribe of Rs.4000/­, through a sting operation; it is wrong to say that when he had gone to ACB on 01.08.2007, he was shown the contents of the video recordings in two CDs;15 that it is wrong to say that in those CDs, he had seen video of himself, or the accused, Sh. Surender Kumar Kataria and Sh. Raj Kumar; 16 that it is wrong to say that his statement, Mark P­6/A was correctly recorded as per his version and that it is wrong to say that he had deliberately not supported the case of the prosecution, having been won over by the accused, Sh. Surender Kumar Kataria.

20. At this stage of the examination of PW6 Sh. Vikas Kumar, the VCD, Ex.P1 was played on a laptop brought by the IO. Upon seeing the video contained therein, PW6 Sh. Vikas Kumar had inter­alia deposed that the video is of the incident dated 25.10.2005, which had occurred in the classroom where he was sitting; that in the video, he is visible and audible; that in the video, the accused, Sh. Surender 14 At this stage, the Ld. Chief PP for the State had confronted PW6 Sh. Vikas Kumar with the portion D to D of his statement under Section 161 of CrPC, 1973, Mark P­6/A. 15 At this stage, the Ld. Chief PP for the State had confronted PW6 Sh. Vikas Kumar with the portion E to E of his statement under Section 161 of CrPC, 1973, Mark P­6/A. 16 At this stage, the Ld. Chief PP for the State had confronted PW6 Sh. Vikas Kumar with the portion F to F of his statement under Section 161 of CrPC, 1973, Mark P­6/A. State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 19 of 91 Kumar Kataria is also visible and audible; that in the video, one of the two persons who had come to meet the accused, Sh. Surender Kumar Kataria is also visible and audible; that it is correct that in the video, it is visible that one out of the two persons, is counting the money and thereafter, the money was kept on the table; that in the video, it is visible that the accused, Sh. Surender Kumar Kataria is dragging/pushing the currency notes; that in the video, it is visible that thereafter he (PW6 Sh. Vikas Kumar) had picked up the currency notes and kept them in the pocket of his pant; that in the video, he (PW6 Sh. Vikas Kumar) is seen counting the money before the money was kept on the table; that in the video, it is visible that one of the two persons had given the money to him before he had counted it and kept it on the table and that it is wrong to say that he had deposed falsely in order to help the accused.

21. During cross­examination by the Ld. Advocate for the accused, PW6 Sh. Vikas Kumar had inter­alia deposed that the accused, Sh. Surender Kumar Kataria had called out the name Vikas; that it is wrong to say that he had not gone to PS ACB; that he had gone to a place near Timarpur/Mall Road, but he is not aware of that building; that he had gone to ACB only once; that it is correct that he had not given anything in writing at ACB; that he had not signed any document at ACB; that it is correct that no statement of his was readover to him in ACB; that it is correct that in the video shown to him, it cannot be seen that he had paid Rs.4000/­ to the accused, Sh Surender Kumar Kataria; that it is wrong to say that he had not given money to the accused, Sh. Surender Kumar Kataria; that it is wrong to say that he had kept the money with himself; that it is wrong to say that he had given the money to Sh. Raj Kumar; that when he had given the amount of Rs.4000/­ to the accused, Sh. Surender Kumar Kataria, no one else was present; it is wrong to say that he was State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 20 of 91 shown his statement under Section 161 CrPC, 1973 outside the Court, before his examination; that prior to 25.10.2005, he had not met the person, who had counted and given him Rs.4000/­; that he had not met the said person after lunch on 25.10.2005, in the Institute or elsewhere; that it is correct that he had appeared as a witness in the departmental inquiry against the accused, conducted by the department; that in the departmental inquiry, he had told the same facts which he has told this Court; that it is wrong to say that during the departmental inquiry, he had deposed in favour of the accused, Sh. Surender Kumar Kataria; that he does not know if the accused was exonerated in the departmental inquiry, on account of his testimony17 and that it is wrong to say that he had deposed falsely against the accused.18

22. During examination in chief, PW7 HC Dinesh had inter­alia deposed that on 10.03.2011, he was posted as a Constable at PS ACB; that on that day, on the instructions of IO, Inspector Dharamvir, he had taken the case property of this case from the malkahana of PS Civil Lines to FSL, Rohini, Delhi vide Road Certificate no. 23/21/11, Ex.PW3/A, bearing his signatures at point A; that after depositing the case property at FSL, Rohini, he had obtained acknowledgement, Ex.PW3/B; that after reaching the malkhana, he had deposited the RC, Ex.PW3/A and acknowledgement, Ex.PW3/B and that till the time, the case property of this 17 It is relevant to note that the statement/testimony allegedly made by PW6 Sh. Vikas Kumar during the departmental inquiry against the accused, Sh. Surender Kumar Kataria, has not seen the light of day in this Court.

18 It is relevant to note that while cross­examining PW6 Sh. Vikas Kumar, the accused, Sh. Surender Kumar Kataria had not imputed any motive upon PW6 Sh. Vikas Kumar, for falsely testifying against him. In my view, in the absence of any such imputation, the logical conclusion that follows is that PW6 Sh. Vikas Kumar, who shared a student/teacher relationship with the accused, Sh. Surender Kumar Kataria and therefore, would ordinarily not be disposed towards giving false testimony against him, has truthfully disclosed the sequence of events of this case, as per his recollection.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 21 of 91 case was with him, nobody had tampered with it. During cross­examination by the Ld. Advocate for the accused, PW7 HC Dinesh had inter­alia deposed that the case property of this case was sealed when he had taken it to FSL, Rohini; that he does not remember how many seals were affixed on each of the two pullandas; that he does not remember the impression of the seal; that it is wrong to say that he had tampered with the case property of this case and that he had actually not taken the case property of this case to FSL, Rohini, on 10.03.2011.

23. During examination in chief, PW8 Retd. SI Ramesh Singh had inter­alia deposed that on 13.08.2007, he was posted as a Head Constable at PS ACB and working as driver; that on that day, he and Inspector Mehar Chand had gone to Sector 23, Noida, in the office of a company; that he does not remember the name of the company; that he and Inspector Mehar Chand had gone there, for collecting some cassette, pertaining to some "lene dena" in Pusa; that there, one Surender had handed over a cassette to the IO; that he cannot describe the cassette as he is unable to recollect the exact name of the cassette; that the cassette was taken into possession by the IO, Inspector Mehar Chand after keeping in one envelope; that the IO, Inspector Mehar Chand had applied his seal on it, but he does not remember the impression of the seal; that he had signed some documents on that day; that nothing besides the cassette was sealed; that the cassette was seized vide seizure memo, Ex.PW5/D1 bearing his signatures at point B and that due to passage of time, he does not remember anything else.

24. Since, PW8 Retd. SI Ramesh Singh had not supported the case of the State in entirety, he was permitted to be cross­examined by the Ld. PP for the State. During cross examination by the Ld. PP for the State, PW8 Retd. SI Ramesh Singh State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 22 of 91 had inter­alia deposed that the date of 13.08.2007 is mentioned in the seizure memo, Ex.PW5/D1 and his statement under Section 161 of CrPC, 1973; that on 13.08.2007, he had driven his office vehicle i.e. Maruti Van, which was bearing registration no. DL1CF6057; that on that day, he and Inspector Mehar Chand had gone to BAG Films, FC­23, Sector­16A, Noida, UP; that it is correct that on that day, one Mr. Ajay Kumar, Producer had handed over one original video cassette i.e. Mini DV which was dated 25.10.2005; that it was Part­2 of the sting operation recording; that it is correct that Sh. Ajay Kumar had told Inspector Mehar Chand that it was the original cassette; that it correct that at that time one video CD, which was a copy of original recording in the cassette was also handed over by Sh. Ajay Kumar to Inspector Mehar Chand; that it is correct that the video cassette Mini DV was kept in a brown colour envelope and after closing the envelope, he, Sh. Ajay Kumar and Inspector Mehar Chand had signed it; that it is correct that the envelope was sealed by Inspector Mehar Chand after keeping it in a pullanda; that it is correct that Inspector Mehar Chand had sealed it with his seal of MC; that it is correct that Inspector Mehar Chand had prepared his sample seal; that it is correct that the open Video CD and the sample seal were taken into possession vide memo, Ex.PW5/D­1, which he had signed; that it is correct in his presence, the seizure memo was signed by Sh. Ajay Kumar at point C and by Inspector Mehar Chand at point D.

25. During cross­examination by the Ld. Advocate for the accused, PW8 Retd. SI Ramesh Singh had inter­alia deposed that the entry regarding his departure from PS ACB was lodged by the Duty Officer; that before the video cassette (Mini DV) was sealed by the IO, it was in an unsealed condition; that the copy of the cassette which was given by Sh. Ajay Kumar was also in unsealed condition; that it is wrong to say that he had not accompanied Inspector Mehar Chand to Noida; that State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 23 of 91 it is wrong to say that no proceedings, as deposed by him, during his cross examination by the Ld. PP for the State had occured and that that it is wong to say that he had deposed falsely.

26. During examination in chief, PW9 Dr. C. P. Singh had inter­alia deposed that on 30.10.2009, he was posted as Assistant Director (Physics) in FSL, Rohini, Delhi; that on 24.02.2009, two sealed parcels i.e. one sealed cloth parcel and one sealed envelope, were received in FSL, Rohini through Ct. Dinesh Kumar; that the said parcels were marked to him for analysis of questioned recording and sample voice; that before opening the parcels he had compared/tallied the intact seals with the specimen seals and found them to be correct; that upon opening Parcel­1, he had found it to contain one mini DV video cassette of the make SONY DV­60; that he had marked the said video cassette as Exhibit­1 in the laboratory; that the audio conversation in the said cassette had opened with the speaker saying the words '...... paisa koi nahi aa sir ......'; that he had marked the speaker as 'Exhibit Q'; that upon opening Parcel­2, he had found it to contain one audio cassette of the make Maxell VDII 90; that he had marked the said audio cassette as Exhibit­2 in the laboratory and the voice sample of Sh. Surender Kumar Kataria contained therein as 'Exhibit­ S'; that after conducting auditory analysis of the voices, conducting acoustic analysis by using computerized speech lab system and examining the acoustic cues and other linguistic and phonetic features, he had given the opinion that Sh. Surender Kumar Kataria had spoken the questioned audio recording; that upon examination of the video recording in the video cassette, Exhibit­1 by using Video Analyst Systems, he had given the opinion that it had eighteen identified video shots and that it did not have any indication of alteration in the identified video shots; that his opinions were recorded in his report dated State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 24 of 91 30.10.2009, Ex.PW9/A, bearing his signatures at point A on each page and that after examination, he had sealed the exhibits of this case with his seal of 'Dr. C. P. Singh­ FSL­Delhi.' and forwarded the exhibits as well as his report, Ex.PW9/A vide letter dated 03.11.2009, Ex.PW­9/A1, which contains his specimen seal at point X.

27. Further, during examination in chief, PW9 Dr. C. P. Singh had inter­alia deposed that on 31.10.2011 also, he was posted as Assistant Director (Physics), FSL, Rohini, Delhi; that on 10.03.2011, two sealed parcels/envelopes were received in FSL, Rohini through Ct. Dinesh Kumar; that the said parcels were marked to him for analysis of questioned recording and sample voice; that before opening the parcels he had compared/tallied the intact seals with the specimen seals and found them to be correct; that upon opening Parcel­1, he had found it to contain one mini DV video cassette of the make SONY DV­60; that he had marked the said video cassette as Exhibit­1 in the laboratory; that the audio conversation in the said cassette had opened with the speaker saying the words '......ho gaya... zindagi mein'; that he had marked the speaker as 'Exhibit Q1'; that upon opening Parcel­2, he had found it to contain one original audio cassette of the make Maxell VDII 90; that he had marked the said audio cassette as Exhibit­2 in the laboratory and the voice sample of Sh. Surender Kumar Kataria contained therein as 'Exhibit­ S1'; that after conducting auditory analysis of the voices, conducting acoustic analysis by using computerized speech lab system and examining the acoustic cues and other linguistic and phonetic features, he had given the opinion that Sh. Surender Kumar Kataria had spoken the questioned audio recording; that upon examination of the video recording in the video cassette, Exhibit­1 by using Video Analyst Systems, he had given the opinion that it had two identified video shots and that it did not have any indication of alteration of the identified video shots; that his opinions were State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 25 of 91 recorded in his report dated 31.10.2011, Ex.PW9/B, bearing his signatures at point A on each page; that the correct date of 31.10.2011 is mentioned on the last page; that after examination, he had sealed the exhibits of this case with his seal of 'Dr. C. P. Singh­FSL­Delhi.' and forwarded the exhibits as well as his report, Ex.PW9/B vide letter dated 04.11.2009, Ex.PW­9/B1, which contains his specimen seal at point X and X1. Upon being shown the video cassette of the make SONY, Ex.P1, PW9 Dr. C.P. Singh had identified it to be the video cassette examined by him while preparing the report dated 30.10.2009, Ex.PW9/A. Upon being shown the video cassette of the make SONY, Ex.P2, PW9 Dr. C.P. Singh had identified it to be the video cassette examined by him while preparing the report dated 31.10.2011, Ex.PW9/B. Upon being shown the audio cassette of the make Maxell, Ex.P3, PW9 Dr. C.P. Singh had identified it to be the audio cassette examined by him while preparing the report dated 30.10.2009, Ex.PW9/A and subsequently the report dated 31.10.2011, Ex.PW9/B.

28. During cross­examination by the Ld. Advocate for the accused, PW9 Dr. C. P. Singh had inter­alia deposed that in his reports, he had mentioned the sample audio cassette, Ex.P3 as an original audio cassette, on the basis of the description given to it by the investigating agency in the forwarding letters, Ex.PW­ 9/D1 and D2; that from the audio cassette, Ex.P3, the date on which the voice sample was taken, cannot be deduced; that no video recording was done by him at the time of opening of the sealed parcels, received from the investigating agency; that it is wrong to say that the questioned video recordings sent to him for examination were tampered with or were fabricated recordings; that it is wrong to say that the questioned video recordings sent to him were edited versions of the actual recordings; that it is wrong to say that without examining the contents of the State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 26 of 91 video recordings, he had given reports at the instance of the investigating agency; that he had not received any certificate under Section 65B of the Indian Evidence Act, 1872 along with the sample voice audio cassette, Ex.P3; that he cannot say what is the life span of the video cassettes or the audio cassettes, examined by him; that the eighteen video shots in the video cassette, Ex.P1 were directly recorded on that video cassette and were not copied from any other cassette or CD; that it is wrong to say that the case properties received in FSL were in unsealed condition and therefore, the video recording of opening of parcels was not done at FSL and that it is wrong to say that his reports are false. 19

29. During examination in chief, PW10 Sh. Karnail Singh had inter­alia deposed that on 06.08.2007, he was posted as a Sub­Inspector at PS ACB; that on that day, at the request of the IO, Inspector Mehar Chand, he had assisted in the preparation of the transcript, Ex.PW10/A (8 pages) qua the original sting operation VCD and the transcript, Ex.PW10/B (4 pages) qua the edited version of the original sting operation VCD; that after preparation of the said transcripts, the panch witness, Sh. Ashok Kumar had signed them at point A on each page; that he had not signed the said transcripts; that on 06.08.2007, the accused, Sh. Surender Kumar Kataria was arrested by the IO Inspector Mehar Chand but he had not signed the arrest memo or the personal search memo of the accused; that on 13.08.2007 at the 19 It is relevant to note that only bland suggestions were made to PW9 Dr. C. P. Singh to the effect that his reports, Ex.PW9/A and Ex.PW9/B are false and the video in the Sony Video Cassette, Ex.P1 as well as the video in the Sony Video Cassette, Ex.P2, are tampered with/fabricated. In my view, if the accused, Sh. Surender Kumar Kataria wanted to derive actual capital from the said suggestions, he should have shown actual tampering/fabrication of the said videos to PW9 Dr. C. P. Singh, inter­alia by pointing out any instance of any of the videos jumping from one time frame to another or the lips of a speaker, not matching/syncing with the words being spoken by a speaker. Only if the accused, Sh. Surender Kumar Kataria had done such an exercise, the alleged falsity of the reports, Ex.PW9/A and Ex.PW9/B, would have got exposed.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 27 of 91 request of the IO, Inspector Mehar Chand, he had prepared two copies of a VCD from an open VCD,20 by using the office computer of PS ACB; that after doing so, he had handed over the two copies and the original VCD to the IO, Inspector Mehar Chand on the same day; that in this regard, no memo was prepared by the IO, Inspector Mehar Chand; that his statement was recorded on 06.08.2007 and 13.08.2007 and that due to passage of time/many years, he cannot identify the accused, Sh. Surender Kumar Kataria.

30. During cross­examination by the Ld. Advocate for the accused, PW10 Sh. Karnail Singh had inter­alia deposed that the transcripts, Ex.PW10/A and Ex.PW10/B are not in his handwriting; that he does not know who had written the said transcripts; that his assistance was taken by the IO, Inspector Mehar Chand only in respect of technical aspects viz. how the VCDs were to be played, paused etc.; that the transcripts, Ex.PW10/A and Ex.PW10/B were not prepared as per his dictation; that the said trancripts were prepared as per the dictation of the IO, Inspector Mehar Chand; that he does not remember the number of other persons who were present when the transcripts, Ex.PW10/A and Ex.PW10/B were prepared in his presence as well as the presence of the IO, Inspector Mehar Chand and the panch witness, Sh. Ashok Kumar; that he does not remember the time taken in the preparation of the transcripts, Ex.PW10/A and Ex.PW10/B; that when he had seen the two VCDs, they were not in a sealed condition and that it is wrong to say that the transcripts, Ex.PW10/A and Ex.PW10/B do not bear his signatures or handwriting because they were not prepared in his presence.

20 This should possibly be the VCD­II, seized by the first IO, Inspector Mehar Chand vide seizure memo dated 13.08.2007.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 28 of 91

31. Further, during cross­examination by the Ld. Advocate for the accused, PW10 Sh. Karnail Singh had inter­alia deposed that he does not remember who else was present, when on 13.08.2007, he had prepared two copies of a VCD at the instance of the IO, Inspector Mehar Chand; that he does not remember the make of the computer he had used to prepare the copies; that he does not remember if it was a laptop or a desktop; that he had not prepared/handed over any certificate under Section 65B of the Indian Evidence Act, 1872 qua preparation of two copies of the VCD; that he does not remember if on 13.08.2007 any independent panch witness was present during the preparation of two copies of the VCD; that it is wrong to say that since he had not prepared any copy of a VCD, on 13.08.2007, he was unable to tell the make or type of the computer; that it is wrong to say that he was not present in the Office of ACB, on 06.08.2007 and 13.08.2007 and therefore, none of the documents of those dates bear his signatures and that it is wrong to say that he is a planted witness of the State.

32. During examination in chief, PW11 Inspector Surender Kumar had inter­alia deposed that on 20.04.2007, he was posted as a Sub Inspector at PS ACB; that on that day, the IO, Inspector Mehar Chand had approached him with a VCD and requested him to prepare two copies of the VCD on two blank CDs; that accordingly, he had prepared two copies of the VCD on the office computer and handed over all the three video CDs to the IO, Inspector Mehar Chand, on that very day and that his statement under Section 161 of CrPC, 1973 was recorded. Upon being shown, the CD, Ex.P1 (as per the testimony of PW4 Sh. S. N. Joneja), PW11 Inspector Surender Kumar had deposed that this is the CD from which he had prepared the two copies. Further, upon being shown, the CD, also Ex.P1 (as per the testimony of PW6 Sh. Vikas Kumar), PW11 Inspector Surender Kumar had deposed State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 29 of 91 that is one of the copies prepared by him, on 20.04.2007.

33. During cross­examination by the Ld. Advocate for the accused, PW11 Inspector Surender Kumar had inter­alia deposed that when he has given the original CD, Ex.P1 by the IO, Inspector Mehar Chand, the said CD was in an unsealed condition; that after preparation of the copies, Inspector Mehar Chand had not sealed the original CD, Ex.P1; that he had not signed any of the three CDs; that no memo was prepared by the IO, Inspector Mehar Chand qua preparation of the two copies by him (PW11 Inspector Surender Kumar); that he had not prepared or supplied any certificate under Section 65B of the Indian Evidence Act, 1872 qua the two copies prepared by him; that he had not seen the contents of the original CD, Ex.P1 and therefore, he cannot say if the original CD, Ex.P1 was blank; that the computer from which, he had prepared the two copies, used to remain in his custody at PS ACB; that he does not remember the make of that computer; that there was an in built CD writer in that computer; that in order to prepare the two copies, he had not used an external CD writer and that it is wrong to say that he had not prepared any copies of the original CD, Ex.P1.

34. During examination in chief, PW12 Sh. Raj Kumar had inter­alia deposed that in October 2005, his younger brother Rajesh had secured admission in a Fitter Course in BTC Veer Savarkar PUSA, Delhi; that his brother had secured the said admission on his own merit, as per the merit list; that after his brother had secured the said admission, the accused, Sh. Surender Kumar Kataria had demanded money to the tune of Rs.13,000/­ from him regarding admission of his brother; that prior to it, when his brother's name had not figured in the first two lists of the results, he had inquired from other students and was told by other students State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 30 of 91 that he should met the accused, Sh. Surender Kumar Kataria, who knows everything about it and therefore, once he had met the accused, Sh. Surender Kumar Kataria; that he does not remember the date or month when he had first met the accused, Sh. Surender Kumar Kataria at the Institute; that during the first meeting, when he had told the accused, Sh. Surender Kumar Kataria that his brother had not got admission in the first two lists, the accused, Sh. Surender Kumar Kataria had told him that the accused, Sh. Surender Kumar Kataria would get the admission done and take Rs.13,000/­ for it; that after the admission of his brother, the accused, Sh. Surender Kumar Kataria had demanded the amount of Rs.13,000/­ from him; that he does not remember the exact date, when the accused, Sh. Surender Kumar Kataria had demanded the money after the admission of his brother; that for making the demand, the accused, Sh. Surender Kumar Kataria had made a telephonic call on his mobile phone from the mobile phone of the accused, Sh. Surender Kumar Kataria; that during the said call, the accused, Sh. Surender Kumar Kataria had said that since his brother had secured admission, he should pay the money otherwise the accused, Sh. Surender Kumar Kataria would get the admission canceled and the future of his brother would be spoiled; that he does not remember the mobile number of the accused, Sh. Surender Kumar Kataria, from which the call was made; that he does not remember his own mobile number, on which he had received the call; that he had refused to pay Rs.13,000/­ to the accused, Sh. Surender Kumar Kataria and told the accused, Sh. Surender Kumar Kataria that his brother's admission was offered in routine and therefore, he would not pay the money; that thereafter, the accused, Sh. Surender Kumar Kataria had called him 2­3 times and demanded the amount of Rs.13,000/­; that in view thereof, he had made a call to Sh. Sanjay Chandra of Star News, who had not picked up his call but later called back; that he had informed Sh. Sanjay Chandra about the incident; that Sh. Sanjay State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 31 of 91 Chandra had advised him to call the accused, Sh. Surender Kumar Kataria and tell the accused, Sh. Surender Kumar Kataria that he would pay Rs.4000/­; that thereafter, he had telephonically told the accused, Sh. Surender Kumar Kataria that he would pay Rs.4000/­; that in response, the accused, Sh. Surender Kumar Kataria had said "theek hai"; that on 25.10.2005, when he had gone to the Institute with Rs.4000/­, he was accompanied by Sh. Sanjay Chandra and one Sh. Mukesh, cameraman; that outside the Institute, Sh. Sanjay Chandra had parked his car; that one audio recording device was installed on his body and the cameraman, Sh. Mukesh was carrying a hidden camera in his bag; that the cameraman, Sh. Mukesh had accompanied him inside the Institute; that when he and Sh. Mukesh had gone to the room, where the accused, Sh. Surender Kumar Kataria was having his lunch, the accused, Sh. Surender Kumar Kataria had told him that he should go and sit in another room; that accordingly, he and Sh. Mukesh had gone and sat in another room; that ten minutes later, the accused, Sh. Surender Kumar Kataria had come to that room; that in that room, when he had told the accused, Sh. Surender Kumar Kataria that he had brought Rs.4000/­ only because he could arrange only that much, the accused, Sh. Surender Kumar Kataria had told him, "itney se kuch nahi hoga, Diwali ka time hai, aapko bonus mila hoga" and then, the accused, Sh. Surender Kumar Kataria had demanded the remaining amount also; that the accused, Sh. Surender Kumar Kataria had not accepted the amount of Rs.4000/­ directly from him; that instead, the accused, Sh. Surender Kumar Kataria had called one student, whose name he does not remember, but who was already sitting in the room and instructed the student to take the money from him; that thereafter, he had given the amount of Rs.4000/­ to the said student, who had kept it with him; that Sh. Sanjay Chandra had noted the currency numbers of the notes, totaling to Rs.4000/­, before they had entered the Institute; that he does not remember the denomination State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 32 of 91 of the currency notes, but they were mostly notes of Rs.100/­ each; that after handing over the currency notes to the student, he and Sh. Mukesh had gone out; that then, Sh. Sanjay Chandra had checked the recordings and informed his office; that thereafter he, Sh. Mukesh and Sh. Sanjay Chandra had again entered the Institute; that this time, Sh. Sanjay Chandra was carrying a mike and the cameraman, Sh. Mukesh was carrying a normal camera and both of them had started shooting the incident; that when he, Sh. Sanjay Chandra and Sh. Mukesh had entered the room, where the accused, Sh. Surender Kumar Kataria was sitting, few other persons were also sitting there; that Sh. Sanjay Chandra had questioned the accused, Sh. Surender Kumar Kataria about taking the bribe; that at that time, the accused, Sh. Surender Kumar Kataria had refused about taking the bribe; that then, few other teachers had also come there; that when Sh. Sanjay Chandra had told the accused, Sh. Surender Kumar Kataria that he had recording of him accepting a bribe and he had noted the number of currency notes also (this was at a time, when the Principal of the Institute had also come from his home), the accused, Sh. Surender Kumar Kataria had brought the currency notes; that he does not remember exactly but perhaps the accused, Sh. Surender Kumar Kataria had taken out the currency notes of Rs.4000/­ from some drawer; that by the time, the accused, Sh. Surender Kumar Kataria had brought the currency notes, the Principal of the Institute had already arrived; that Sh. Sanjay Chandra had shown the video sting recording to the Principal and the teachers and as a result, action was taken against the accused, Sh. Surender Kumar Kataria; that thereafter, he, Sh. Sanjay Chandra and Sh. Mukesh had left; that Sh. Sanjay Chandra had taken the recordings as well as Rs.4000/­ to his office and told him (PW12 Sh. Raj Kumar Singh) that he must collect the amount after two days; that after two days, he had gone to the office of Sh. Sanjay Chandra and collected the said amount; that Sh.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 33 of 91 Sanjay Chandra had told him that news would be aired regarding the incident, which he can see; that he was called by one Mr. Meena during the investigation of this case but he does not remember the date on which he was called; that he was called at Vidhan Sabha Bhawan; that regarding this case, he was also called at PUSA Institute and at Aryabhatt Polytechnic and that he cannot recollect anything else about this case.

35. Upon being shown, the video file, "AVSEQ01", found in the CD, Ex.P1 (as per the testimony of PW6 Sh. Vikas Kumar), PW12 Sh. Raj Kumar had deposed that in the video, he as well as the accused, Sh. Surender Kumar Kataria are visible and audible and that the said video was made with the help of spy camera on the date of incident viz. the day he had handed over the money. Upon being shown, the video file, "AVSEQ01", found in the CD, Ex.P4/PW12 (bearing the endorsement VCD­II), PW12 Sh. Raj Kumar had deposed that in the video, he, the accused, Sh. Surender Kumar Kataria, the Principal of the Institute and other persons are visible and audible and that the said video was shot subsequently by Sh. Sanjay Chandra and Sh. Mukesh, when the money taken by the accused, Sh. Surender Kumar Kataria was demanded back from the accused, Sh. Surender Kumar Kataria.

36. Since, PW12 Sh. Raj Kumar had not supported the case of the State in entirety, he was permitted to be cross­examined by the Ld. PP for the State. During cross examination by the Ld. PP for the State, PW12 Sh. Raj Kumar had inter­alia deposed that his statements were recorded by the police officials of PS ACB on 15.12.2005 and 25.06.2007; that it is wrong to suggest that he had taken the police officials to the spot; that it is wrong to say that at his instance, the site plan of the place of occurrence was prepared by police officials, on 15.12.2005; that the police State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 34 of 91 officials were shown the video only; that it is correct that on 25.06.2007, he was called to PS ACB and shown the two videos of the incident; that it is correct that after seeing the two videos on 25.06.2007, he had identified the accused, Sh. Surender Kumar Kataria and the student, Sh. Vikas in the video, before the police officials and that it is correct that due to passage of time, he was unable to recollect the facts stated by him in his cross examination by the Ld. PP for the State.

37. During cross­examination by the Ld. Advocate for the accused, PW12 Sh. Raj Kumar had inter­alia deposed that he does not remember the date on which his brother, Sh. Rajesh Kumar had secured the admission in the Institute; that he also does not remember the date or month, when his brother had applied for admission in the Institute; that he does not remember the names of the students, who had asked him to meet the accused when his brother, Sh. Rajesh Kumar had not secured the admission in the first two lists; that he had met the said students in the Institute itself, near the counter where admission forms etc. are deposited; that the name of the accused, Sh. Surender Kumar Kataria was told to him by 2­3 students, whose names he does not know; that he does not know, whether those students were studying in the Institute and/or in which course/section they were studying; that he does not remember the date, when he had met those students; that he had met the accused, Sh. Surender Kumar Kataria in the Institute on the very day, when those students had asked him to meet the accused, Sh. Surender Kumar Kataria; that he had met the accused, Sh. Surender Kumar Kataria in the BTC Institute itself; that he does not exactly remember the floor of the building (BTC Institute) on which he had met the accused, Sh. Surender Kumar Kataria for the first time; that probably it was the ground floor, but he is not sure; that at that time, he had met the accused, Sh. Surender Kumar Kataria alone and he did not have any State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 35 of 91 companion; that he does not remember whether the accused, Sh. Surender Kumar Kataria was alone at that time; that he does not remember whether he had met the accused, Sh. Surender Kumar Kataria during an on­going class or in the corridor; that he had not made any complaint against the accused, Sh. Surender Kumar Kataria on that very day to the Principal of the Institute or to anyone else; that he had not made the said complaint because he had told the accused, Sh. Surender Kumar Kataria (i) that he would not pay anything, (ii) it would be fine, if his brother is able to secure the admission routinely and (iii) otherwise it would be okay for us and we do not want admission by paying anything to anyone; that during his first meeting with the accused, Sh. Surender Kumar Kataria, he had discovered that the accused, Sh. Surender Kumar Kataria was a teacher; that nobody had told him that the accused, Sh. Surender Kumar Kataria was Incharge of the admission process in the Institute; that he was only told that the accused, Sh. Surender Kumar Kataria had a fairly good idea about admissions; that no student had accompanied him when he had first gone to the accused, Sh. Surender Kumar Kataria; that nobody had pointed out towards the accused, Sh. Surender Kumar Kataria and mentioned that he was Mr. Kataria; that he had gone up to the accused, Sh. Surender Kumar Kataria by asking others; that he had inquired from two students on his way to the accused, Sh. Surender Kumar Kataria and those students had told him as to where the accused, Sh. Surender Kumar Kataria would be available; that perhaps those students had told him that the accused, Sh. Surender Kumar Kataria would be available in the class of "Turners"; that he had met the accused, Sh. Surender Kumar Kataria for the first time between 11:00 AM to 11:30 AM; that it is wrong to suggest that he had not met the accused, Sh. Surender Kumar Kataria anytime and therefore, he was unable to recollect the exact date or place, where he had met the accused, Sh. Surender Kumar Kataria for the first time; that it is wrong to suggest that the accused, Sh.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 36 of 91 Surender Kumar Kataria had not demanded any money for any admission from him or anyone else at any point of time; that he had met the Principal of the Institute for the first time, on 25.10.2005 and that he does not know the name of the Principal.

38. Further, during cross­examination by the Ld. Advocate for the accused, PW12 Sh. Raj Kumar had inter­alia deposed that he had never met the accused, Sh. Surender Kumar Kataria between the first date of meeting and 25.10.2005; that he had only telephonically spoken once or twice, with the accused, Sh. Surender Kumar Kataria; that actually, the accused, Sh. Surender Kumar Kataria had called him twice or thrice on his mobile phone; that perhaps the accused, Sh. Surender Kumar Kataria had used his mobile to make those calls; that the accused, Sh. Surender Kumar Kataria had made those calls during day time, in the month of September and October, 2005; that the accused, Sh. Surender Kumar Kataria had taken his mobile number during the first meeting; that he had given his mobile number to the accused, Sh. Surender Kumar Kataria since the accused, Sh. Surender Kumar Kataria had forced him to give his mobile number despite the fact that he had refused to pay any money to the accused, Sh. Surender Kumar Kataria; that he had not given any complaint against the accused, Sh. Surender Kumar Kataria for forcefully taking his number; that it is wrong to suggest that the accused, Sh. Surender Kumar Kataria had not forcibly demanded his mobile number or that the accused, Sh. Surender Kumar Kataria had not called him on his mobile phone at any time; that he had met the police officials of PS ACB for the first time in connection with this case in the year 2007, when he was called by Mr. Meena; that perhaps he had got a notice in writing at that time; that he had not gone to the police himself in order to make any kind of complaint against the accused, Sh. Surender Kumar Kataria; that once, he had made a telephonic call to Anti Corruption Branch and told State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 37 of 91 the police about the demand made by the accused, Sh. Surender Kumar Kataria; that during the said call, the police official had asked him to come to ACB, by stating that they would tell him as to how to proceed with the matter; that he had not gone to ACB despite being called because he had thought that without making a video, it would not be appropriate and future of his brother would be spoiled; that therefore, he had contacted the media; that he had called ACB, 2­3 weeks prior to 25.10.2005; that it is wrong to suggest that despite being called by the ACB, he had not gone to ACB because he wanted to falsely trap the accused, Sh. Surender Kumar Kataria and because he knew that the ACB would not falsely implicate the accused, Sh. Surender Kumar Kataria; that he had not handed over the currency notes of Rs.4000/­ to the IO of this case, despite collecting them from Sh. Sanjay Chandra because he had spent them; that it is wrong to suggest that he had not given those currency notes because no incident as alleged by him had occurred and if he had given those currency notes, it would have belied the case put forth by him; that he had not asked Sh. Sanjay Chandra to hand over the paper slip on which the number of currency notes was noted down by Sh. Sanjay Chandra, either to himself or to the police; that the said slip is visible in the video; that he does not know whether that paper slip was ever handed over to the police; that after registration of the present case, the accused, Sh. Surender Kumar Kataria had once come to his office along with his brother (who was brought forcibly from his class) and asked him (PW12 Sh. Raj Kumar) to withdraw this case; that at that moment, he had told the accused, Sh. Surender Kumar Kataria that he had not lodged the FIR of this case and he has no problem if the Institute, who had lodged the FIR of this case, withdraws this case; that in this regard, he had lodged an FIR at PS Inderpuri; that he had not supplied his mobile number or the mobile number of the accused, Sh. Surender Kumar Kataria to the police, after the incident or even before it; that it is wrong to suggest State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 38 of 91 that he had deliberately not supplied the numbers because the call detail records would have belied his version; that he had not lodged any complaint with the police, even after getting calls from the accused, Sh. Surender Kumar Kataria, wherein the accused, Sh. Surender Kumar Kataria had threatened to get the admission of his brother canceled; that it is wrong to suggest that he had not made such a complaint because no such calls were made by the accused, Sh. Surender Kumar Kataria.

39. Further, during cross­examination by the Ld. Advocate for the accused, PW12 Sh. Raj Kumar had inter­alia deposed that he had never been to PS ACB prior to the registration of this case; that he had located the phone number of ACB from somewhere, when he had first called ACB; that he did not personally know Sh. Sanjay Chandra; that he had seen mobile number of Sh. Sanjay Chandra on a News Channel and then called Sh. Sanjay Chandra on that mobile number; that he does not remember the date, when he had first called Sh. Sanjay Chandra; that in the year 2005, he used to reside at Shakarpur, Delhi­92; that on the day, when he had first met the accused, Sh. Surender Kumar Kataria, he had first of all gone to Admin. Block of Main Pusa Institute; that BTC Building and the Admin. Block are at a walking distance of 2­3 minutes; that it is wrong to suggest that the distance between those two buildings is one and a half kilometer; that it is wrong to suggest that in order to visit the Admin Block, it was mandatory to get a gate pass; that for admission of a student, no such pass was required; that anybody could go inside to collect admission form or to deposit admission form and it was not necessary to take gate pass at that time; that it is wrong to suggest that even for entering the building of BTC, gate pass / entry in the register maintained at the gate was mandatory; that at that time, there was no such requirement; that it is correct that whenever result is published by Pusa Institute, it is published and prepared by the Admin. Block officers State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 39 of 91 and in that process, there is no interference of teachers; that he cannot say whether the accused, Sh. Surender Kumar Kataria being a teacher had any role or not in the admission process; that it is correct that his brother had secured the admission and he used to attend the classes; that it is wrong to suggest that he has concocted a story; that it is wrong to suggest that he had never gone to BTC and the incident as alleged by him had not occurred; that he had not given copy of his bank account statement to ACB, in order to support his claim that he had withdrawn the amount from his bank because nobody had asked him to give the bank account statement; that he does not remember exactly but perhaps the CD which was shown to him in ACB was in a sealed envelope; that his voice sample was never taken during the investigation of this case; that he had signed his statements given to the police; that it is wrong to suggest that in the CD, Ex.P4/PW12, the accused, Sh. Surender Kumar Kataria is not visible taking out money from anywhere or keeping the money on the table or that in the video, the money kept on the table is only visible; that it is wrong to suggest that the accused, Sh. Surender Kumar Kataria has been falsely implicated by him in connivance with the News Channel, in order to create false news for the News Channel or for enhancing the viewership of the news channel; that it is wrong to suggest that for the said reason, he had deliberately not approached PS ACB or that he had deliberately not given any complaint to PS ACB, else his designs would have not succeeded; that it is wrong to suggest that the CDs shown to him or the videos shown to him are tampered with and are not original videos; that he does not know anybody by the name of Smt. Pushpa or Sh. Prashant; that it is wrong to suggest that Sh. Prashant is the son of Smt. Pushpa or that Sh. Prashant is his friend; that it is wrong to suggest that there was a quarrel/fight between him and Smt. Pushpa regarding the repayment of a loan of Rs.15,000/­ taken by him from Smt. Pushpa; that it is wrong to suggest that his State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 40 of 91 brother, Sh. Rajesh knew Sh. Prashant or was on visiting terms with Sh. Prashant; that it is wrong to suggest that the accused, Sh. Surender Kumar Kataria is a relative of Smt. Pushpa and that on account of his dispute with Smt. Pushpa, he had falsely implicated the accused, Sh. Surender Kumar Kataria; that it is wrong to suggest that since he had to pay Rs.15,000/­ to Smt. Pushpa, on the instructions of Smt. Pushpa, he had gone to pay that amount / part of that amount to the accused, Sh. Surender Kumar Kataria; that it is wrong to say that the amount of Rs.4000/­ exchanged between him and the accused, Sh. Surender Kumar Kataria, on 25.10.2005, is part of that loan repayment;21 that it is wrong to suggest that the said loan amount of Rs.15,000/­ was not paid by him to Smt. Pushpa through the accused, Sh. Surender Kumar Kataria and therefore, he had falsely implicated the accused, Sh. Surender Kumar Kataria to avoid liability; that it is wrong to suggest that earlier there were verbal quarrels between him and Smt. Pushpa and therefore, he had falsely implicated the accused, Sh. Surender Kumar Kataria and that it is wrong to suggest that he had deposed falsely.22

40. During examination in chief, PW13 Retd. ACP Dharamvir Singh had inter­alia deposed that in September, 2010, he was posted as an Inspector at ACB;

21 In my view, this suggestion given to PW12 Sh. Raj Kumar by the Ld. Advocate for the accused, Sh. Surender Kumar Kataria, is a freudian slip or an actual admission on the part of the accused that the sum of Rs.4000/­ was indeed exchanged between PW12 Sh. Raj Kumar and him, on 25.10.2005. In usual course, I cannot imagine that such a fact based suggestion, would have been made by the Ld. Advocate for the accused to PW12 Sh. Raj Kumar, without taking the requisite fact(s) related instructions from the accused, Sh. Surender Kumar Kataria. 22 It is relevant to note that this hypothesis/theory of PW12 Sh. Raj Kumar having taken loan of Rs.15,000/­ from Smt. Pushpa, relative of the accused, Sh. Surender Kumar Kataria and having falsely implicated the accused, Sh. Surender Kumar Kataria, in order to avoid the said liability, has not been stated by the accused during the recording of his statement under Section 313 of CrPC, 1973. Also, it is relevant to note that no suggestion has been put to PW12 Sh. Raj Kumar, for somehow aligning PW4 Sh. S. N. Joneja (Principal of the Institute) and PW6 Sh. Vikas Kumar (student of the Institute) with him and forming a grand conspiracy to falsely implicate the accused, Sh. Surender Kumar Kataria.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 41 of 91 that upon being handed over the further investigation of this case, he had called the complainant of this case (perhaps in November, 2010), played the subject videos and prepared the transcript, Ex.PW4/B, bearing his signatures at point B and the signatures of the complainant at point A; that the said transcript is in the handwriting of an Assistant at ACB, whose name he does not remember; that he had recorded the supplementary statement of the complainant of this case; that thereafter, he had sent the case property of this case to FSL (perhaps on 22.11.2010); that he is not able to properly remember the dates because after Covid­19 infection, he tends to forget things; that he had sent the case property through Ct. Dinesh, who had later handed him over the acknowledgment receipt; that in this regard, he had recorded the statement of Ct. Dinesh and the statement of MHC(M) and that upon his promotion and transfer, on 22.07.2011, he had handed over the further investigation of this case to Inspector B. K. Singh. Upon being shown the transcript, Ex.PW4/B, PW13 Retd. ACP Dharamvir Singh had inter­alia deposed that the date of 22.02.2011 is in his handwriting and therefore, the said transcript was prepared on 22.02.2011. Upon being shown the RC No.23/21/11, Ex.PW3/A(OSR), FSL acknowledgement, Ex.PW3/B(OSR) and entry in register no.19, Ex.PW3/C(OSR), PW13 Retd. ACP Dharamvir Singh had inter­alia deposed that since the said documents mention the date of 10.03.2011, the case property was sent by him through Ct. Dinesh, on 10.03.2011.

41. During cross­examination by the Ld. Advocate for the accused, PW13 Retd. ACP Dharamvir Singh had inter­alia deposed that the transcript, Ex.PW4/B does not bear his signatures and the signatures of the complainant, Sh. S. N. Joneja on every page; that no independent witness/panch witness had joined the proceedings of prepration of the transcript, Ex.PW4/B; that the video which was State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 42 of 91 played at the time of preparation of the transcript, Ex.PW4/B was not in a sealed condition on the day, when the said transcript was prepared; that the said video was in a working CD, kept on the file for investigation, in unsealed condition; that he does not know who had prepared that working CD or when it was prepared; that the said working CD was prepared by someone who had investigated the matter prior to him; that no certificate under Section 65B of the Indian Evidence Act, 1872 was available on the file in support of that working CD; that it is wrong to suggest that the transcript, Ex.PW4/B is a false and fabricated document and therefore, it does not bear signatures on every page and was not witnessed by any independent witness; that it is wrong to suggest that he had not sent any case property to FSL on 10.03.2011; that it is wrong to suggest that the case property was tampered with and therefore, there was a delay of several years in sending the case property to the FSL in this case and that it is wrong to suggest that he had deposed falsely.

42. During examination in chief, PW14 Retd. SI K. L. Meena had inter­alia deposed about the registration of the FIR, Ex.PW14/A(OSR) of this case, the endorsement, Ex.PW14/B made by him on the rukka of this case and the DD entries, Ex.PW14/C(OSR) and Ex.PW14/D(OSR) relating to the registration of the FIR of this case. During cross­examination by the Ld. Advocate for the accused, PW14 Retd. SI K. L. Meena had inter­alia denied the suggestion that the FIR of this case as well as both the DD entries were ante dated and ante timed and that he had deposed falsely at the instance of IO.

43. During examination in chief, PW15 Retd. IAS Manoj Kumar had inter­ alia deposed that he was posted as Director, Department of Training & Technical State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 43 of 91 Education, Government of NCT of Delhi during 31.12.2014 to March 2018; that during that period (sic), a letter dated 22.08.2014, Ex.PW15/A(OSR), seeking sanction against the accused, Surender Kumar Kataria, was received from ACB; that in pursuance of the said letter, appropriate note sheets were prepared by the staff of his office and the file was put up before him for consideration; that he had perused the letter, Ex.PW15/A(OSR) and the material placed before him; that upon being satisfied, he had accorded the sanction dated 13.03.2015, Ex.PW15/B, bearing his signatures at points A and A1; that prior to the sanction dated 13.03.2015, Ex.PW15/B accorded by him, sanction dated 21.01.2009, Ex.PW15/C(OSR) had been accorded qua the accused, Sh. Surender Kumar Kataria by the earlier Secretary, Dr. G. Narendera Kumar; that the investigating agency had sought fresh sanction because after obtaining the first sanction dated 21.01.2009, Ex.PW15/C(OSR), the investigating agency had done further investigation; that the first sanction dated 21.01.2009, Ex.PW15/C(OSR) was accorded in view of the request received from the investigating agency vide letter dated 26.09.2008, Ex.PW15/D(OSR); that in the said letter, all the documents/materials sent by the investigating agency have been disclosed and that all the documents/materials sent by the investigating agency are available in the office file, brought by him.

44. During cross­examination by the Ld. Advocate for the accused, PW15 Retd. IAS Manoj Kumar had inter­alia deposed that in the sanction, Ex.PW15/B, accorded by him, the documents and material provided by the investigating agency have not been specified; that it is wrong to suggest that he had not considered any document or material before according the sanction, Ex.PW15/B; that it is wrong to suggest that he had accorded the sanction, Ex.PW15/B, mechanically; that it is correct that in his sanction, Ex.PW15/B, he has not specified the offence for which State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 44 of 91 sanction has been granted against the accused, Sh. Surender Kumar Kataria; that it is wrong to suggest that he had mechanically signed the draft sanction order put up before him, without application of mind to the facts and material; that he had considered the outcome of the departmental inquiry against the accused, Sh. Surender Kumar Kataria; that in the further proceedings of departmental inquiry, the accused, Sh. Surender Kumar Kataria was penalised by the competent authority and he was not finally discharged from that inquiry; that he had seen the finding of the inquiry officer given against the accused in the departmental inquiry; that the disciplinary authority had inflicted penalty upon the accused in the said DE; that he had taken time to grant the sanction, Ex.PW15/B because vide letter dated 01.10.2014, Ex.PW15/D1(OSR) he had sought certain other information from the investigating agency; that it is wrong to suggest that without application of mind, he had granted the sanction, Ex.PW15/B at the behest of the investigating agency; that it is wrong to suggest that he was not the competent authority to grant the sanction, Ex.PW15/B and that for the category/rank of officials to which the accused belonged, he was the authority competent to remove the official from office.

45. During examination in chief, PW16 Retd. Inspector B. K. Singh had inter­alia deposed that he was posted as an Inspector at PS ACB during 2008 to 2016; that on 24.07.2011, he had received further investigation of this case from the previous IO, ACP Dharamvir Singh; that while he was the investigating officer of this case, only one FSL result, Ex.PW9/B was received vide letter dated 04.11.2011, Ex.PW9/B­1 and that on 18.10.2012, further investigation of this case was handed over by him to Inspector Sanjeev. Despite grant of opportunity, the Ld. Advocate for the accused had not cross­examined PW16 Retd. Inspector B. K. Singh.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 45 of 91

46. During examination in chief dated 10.01.2023, PW17 Retd. ACP Mehar Chand had inter­alia deposed that for the past 2­3 years, he is suffering from Alzheimer disease and therefore, he tends to forget things and finds it difficult to remember things;23 that on 16.11.2005, he was posted as an Inspector at PS ACB; that on that day, one miscellaneous complaint was marked to him for inquiry; that during the preliminary inquiry qua the said complaint, he had obtained copy of a video recording from Sh. Manoj Kumar Saxena of BTC Veer Savarkar, Pusa Institute and seized it vide seizure memo dated 07.12.2005, Ex.PW1/A; that after obtaining the copy of the video recording, he had got the FIR, Ex.PW14/A of this case registered, on the basis of rukka dated 09.12.2005, Ex.PW17/A (which is in his handwriting and bears his signatures at point A); that after registration of the FIR of this case, the investigation of this case was assigned to him; that during investigation, he had inquired from Sh. Sanjay Chandra (Reporter) about the person/place from where the original video of the sting operation can be recovered; that Sh. Sanjay Chandra had informed him that it would be available at the office of BAG Films, Sector­16, NOIDA; that accordingly, on 20.04.2007, he had gone to the office of BAG Films and obtained from Sh. Ajay Kumar (Producer), one CD and one original video cassette, containing the recording of the sting operation; that he had sealed the video cassette with his seal of MC, after obtaining it from Sh. Ajay Kumar; that he had kept the CD in an open condition; that the original video cassette and CD were seized by him vide seizure memo Ex.PW5/A1, which is in his handwriting and bears his signatures at point B and the signatures of Sh. Ajay Kumar at point C; that alongwith the video cassette and CD, Sh. Ajay Kumar had given the letter dated 20.04.2007, Ex.PW17/B bearing the signatures of Sh. Ajay Kumar at point A; 24 that 23 At this stage of the testimony of PW17 Retd. ACP Mehar Chand, the said witness was reminded that in case he wishes to refresh his memory, he can do so at any stage. 24 The said letter reveals that the correct name of BAG Films is BAG Films Ltd.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 46 of 91 he had brought the video cassette and CD to PS ACB; that on the same day i.e. 20.04.2007 at PS ACB, he had played the CD in the office computer and made two more working copies for the purpose of investigation; 25 that thereafter, he had deposited the video cassette and the original CD, seized vide seizure memo, Ex.PW5/A1, in the malkhana of PS Civil Lines; that he had kept the two copies of the CD in the investigation file; that prior to 20.04.2007, i.e. on 15.12.2005, he had prepared the site plan, Ex.PW17/C of the place of occurrence at the instance of Sh. Raj Kumar; that after 20.04.2007, he had recorded the statements of the witnesses including Sh. Sanjay Chandra; that Sh. Sanjay Chandra had informed him that he had prepared two video cassettes; that therefore, he had made efforts to recover the second video cassette; that he had recovered the second video cassette along with a VCD, from Sh. Ajay Kumar (Producer) of BAG Films, on 13.08.2007; that he had sealed the second video cassette with his seal of MC and kept the second video CD open; that he had seized the second video cassette and the second video CD vide seizure memo, Ex.PW5/D1 bearing his signatures at point D, signatures of Sh. Ajay Kumar at point C and signatures of HC Ramesh at point B; that he had also prepared a sample seal at that time; that prior to 13.08.2007, i.e. on 06.08.2007, the accused, Sh. Surender Kumar Kataria (present in Court) had surrendered at PS ACB and was arrested vide arrest memo, Ex.PW17/D; that the accused, Sh. Surender Kumar Kataria was personally searched vide personal search memo, Ex.PW5/B1; that on the day of the arrest of the accused, Sh. Surender Kumar Kataria i.e. 06.08.2007, the first VCD was played on the computer system of PS ACB with the assistance of SI Karnail Singh, in the presence of the accused, Sh. Surender Kumar Kataria and a witness, Sh. Ashok Kumar; that the sting operation video contained in the first VCD was seen by the accused, Sh. Surender Kumar 25 This statement/testimony corresponds with the testimony of PW11 Inspector Surender Kumar.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 47 of 91 Kataria and in this regard, a memo, Ex.PW17/E was prepared; that on that day itself (06.08.2007), the transcript, Ex.PW10/A (8 pages) was prepared in the presence of the witness, Sh. Ashok Kumar; that the said transcript is in his handwriting and bears his signatures at point B of every page as well as the signatures of the witness, Sh. Ashok Kumar at point A on every page; that on the same day i.e. 06.08.2007, he had prepared the transcript, Ex.PW10/B (4 pages) of edited VCD in the presence of the witness, Sh. Ashok Kumar at PS ACB; that the said transcript is also in his handwriting and bears his signatures at point B of every page as well as the signatures of the witness, Sh. Ashok Kumar at point A of every page; 26 that on 08.08.2007, the sample voice of the accused, Sh. Surender Kumar Kataria was obtained at CFSL, Lodhi Road, Delhi, through the concerned CFSL official; that the voice sample was obtained in an audio cassette; that he had sealed the said audio cassette with his seal of MC and consequently seized it vide seizure memo, Ex.PW5/C1; that he had also applied his sample seal on the seizure memo, Ex.PW5/C1 and that as far as he recollects, nothing else was done by him.

47. At this stage of his testimony, PW17 Retd. ACP Mehar Chand was permitted to see the judicial record and refresh his memory. Upon doing so, PW17 Retd. ACP Mehar Chand had inter­alia deposed that on 27.04.2006, he had written a letter, Ex.PW17/F to the Principal, ITI, PUSA regarding investigation of this case and in response to the said letter, he had received reply dated 11.05.2006, Ex.PW17/G; that during the investigation of this case, he had filed the application, Ex.PW17/H before the Court for obtaining the voice sample of the accused, Sh. Surender Kumar Kataria and that he does not remember if the application was 26 These statements/testimony regarding preparation of the transcript, Ex.PW10/A (8 pages) and Ex.PW10/B (4 pages) correspond with the testimony of PW10 Sh. Karnail Singh.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 48 of 91 allowed by the Court or not. Upon being shown the SONY Mini DV Digital video cassette, Ex.P1/PW9 as well as a cloth pullanda (bearing the seals of MC), Ex.P­ 1X/PW17, PW17 Retd. ACP Mehar Chand had identified the SONY Mini DV Digital video cassette, Ex.P1/PW9 as the video cassette seized by him vide seizure memo dated 13.08.2007, Ex.PW5/D1 and the cloth pullanda, Ex.P­1X/PW17 to be the pullanda in which he had sealed the said video cassette. Upon being shown, the SONY Mini DV Digital video cassette, Ex.P2/PW9 as well as a white paper envelop, Ex.P­2X/PW17, PW17 Retd. ACP Mehar Chand had identified the SONY Mini DV Digital video cassette, Ex.P2/PW9 as the video cassette seized by him vide seizure memo dated 20.04.2007, Ex.PW5/A1 and the white paper envelop, Ex.P­2X/PW17 to be the envelope in which he had sealed the said video cassette. Upon being shown the CD of the make Sony, Ex.P1/PW4 (bearing the words, 'ITI Pusa Sting') and a paper envelope, Ex.PW17/X, PW17 Retd. ACP Mehar Chand had identified it to be the VCD seized by him vide seizure memo dated 20.04.2007, Ex.PW5/A1 and the envelope to have his signatures at point A. Upon being shown the CD of the make Sony, Ex.P5/PW17 and a paper envelope, Ex.PW17/Y1, PW17 Retd. ACP Mehar Chand had identified it to be the VCD seized by him vide seizure memo dated 13.08.2007, Ex.PW5/D1 and the envelope to have his handwriting at point X. Upon being shown the audio cassette, Ex.P3/PW9 and an envelope, Ex.PW17/Z, PW17 Retd. ACP Mehar Chand had identified his signatures at point A on the audio cassette, Ex.P3/PW9 as well as his signatures and signatures of the accused, Sh. Surender Kumar Kataria at point A and B of the envelope, Ex.P17/Z.

48. During cross­examination by the Ld. Advocate for the accused, PW17 Retd. ACP Mehar Chand had inter­alia deposed that in the rukka, Ex.PW17/A, he State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 49 of 91 had mentioned that the investigation of this case should be assigned to him and accordingly the FIR of this case was assigned to him for investigation; that at that time, he did not have any written orders of his senior officers, as per which he could have demanded that the investigation of this case be assigned to him; that the DCP had orally asked him to take over the investigation of this case; that it is correct that in the rukka, Ex.PW17/A, it is not mentioned that the DCP had orally directed him to take over the investigation of this case; that it is correct that in the rukka, Ex.PW17/A, there is no reference of the DCP or the name of the DCP; that it is wrong to suggest that he had deliberately obtained the investigation of this case, in order to falsely implicate the accused, Sh. Surender Kumar Kataria; that he does not remember if during 16.11.2005 and 09.12.2005, he had examined witnesses relevant to this case; that he does not remember if he had recorded the statement of Sh. Manoj Kumar Saxena, prior to the registration of the FIR of this case or even after the registration of the FIR of this case, qua the seizure memo dated 07.12.2005, Ex.PW1/A; that likewise, he does not remember if he had recorded the statement of Sh. H. K. Sampat, the witness to the seizure memo, Ex.PW1/A, prior to or after the registration of the FIR of this case; that he does not remember if the letter, Ex.PW17/B was prepared by Sh. Ajay Kumar in his presence, on 20.04.2007; that he does not remember if the letter, Ex.PW17/B was signed by Sh. Ajay Kumar in his presence; that the letter, Ex.PW17/B was handed over to him by Sh. Ajay Kumar in his office of BAG Films, Noida; that it is wrong to suggest that the letter, Ex.PW17/B is a fabricated letter and was not handed over by Sh. Ajay Kumar; that it is correct that in the seizure memo dated 20.04.2007, Ex.PW5/A1, there is no specific mention to the effect that the articles referred therein were seized at the office of BAG Films, Sector­16, Noida; that it is correct that in the seizure memo dated 20.04.2007, Ex.PW5/A1, there is no name or signature of any witness; that he State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 50 of 91 had gone to the office of BAG Films, Noida, on 20.04.2007 alone; that he does not remember whether he had handed over the seal after use, on 20.04.2007 to any independent witness; that it is correct that in the seizure memo dated 20.04.2007, Ex.PW5/A1, there is no mention of handing over of the seal to any independent witness; that it is wrong to suggest that seizure memo dated 20.04.2007, Ex.PW5/A­ 1 and the letter, Ex.PW17/B are fabricated documents; that it is wrong to suggest that he had not seized any case property on 20.04.2007; that it is wrong to suggest that the video cassette, Ex.P2/PW9 is fabricated and tampered with; that he had recorded the statement, Ex.PW17/I of Sh. Ajay Kumar under Section 161 of CrPC, 1973, on 20.04.2007; that it is correct in the said statement, there is no mention of the fact that he had gone to the office of BAG Films, on 20.04.2007; that it is correct that he had recorded the statement, Ex.PW17/J of Sh. Ajay Kumar under Section 161 of CrPC, 1973, on 13.08.2007; that it is correct that in the said statement also, there is no mention that he had gone to the office of BAG Films, on 13.08.2007; that it is correct that in the seizure memo dated 13.08.2007, Ex.PW5/D1, it is not mentioned that he had gone to the office of BAG Films, on 13.08.2007; that it is wrong to suggest that the seizure memo dated 13.08.2007, Ex.PW5/D1 and the statement under Section 161 of CrPC, 1973 of Sh. Ajay Kumar, Ex.PW17/J are fabricated documents; that it is wrong to suggest that no case property was seized by him, on 13.08.2007; that it is wrong to suggest that the video cassette, Ex.P1/PW9 is fabricated and tampered with; that it is correct that the recording device/camera through which the sting operation was done, was not handed over by the concerned news channel to him at any stage of the investigation of this case; that the camera through which the recording was done was shown to him by Sh. Ajay Kumar, on 20.04.2007; that it is correct that the said fact is not mentioned in the seizure memo dated 20.04.2007, Ex.PW5/A1 as well as the statement of Sh. Ajay State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 51 of 91 Kumar dated 20.04.2007, Ex.PW17/I; that it is wrong to suggest that no camera was shown to him and he is deliberately improvising the case; that he does not know the name of the manufacturer of the camera; that the camera was of 2 ft. in length; that he had not tried to check if the video cassette, Ex.P2/PW9 handed over to him, on 20.04.2007 was fitting in the camera shown to him; that he cannot say if the video cassettes, Ex.P1/PW9 and Ex.P2/PW9, submitted to him on 13.08.2007 and 20.04.2007, vide seizure memos, Ex.PW5/D1 and Ex.PW5/A1 were installed and working in the cameras used for the sting operation or are copies of the video cassettes, which were actually used in the sting operation; that in the camera that was seen by him, there was only one slot for inserting a mini DV cassette; that the said camera did not have two slots; that he cannot give any reason as to why he had not seized the camera, on 20.04.2007; that Sh. Ajay Kumar had told him that he would only supply video cassette and not the camera; that he was not sure, if he was required to seize the camera and that he had not obtained any photographs of the camera.

49. Further, during cross­examination by the Ld. Advocate for the accused, PW17 Retd. ACP Mehar Chand had inter­alia deposed that he was not given any certificate under Section 65B of the Indian Evidence Act, 1872 by Sh. Ajay Kumar, Sh. Sanjay Chandra or the cameraman, Sh. Mukesh, on 20.04.2007; that till the investigation of this case had remained with him, he had not asked anyone for any certificate under Section 65B of the Indian Evidence Act, 1872; that Sh. Ajay Kumar had not told him the respective dates on which he had prepared the two VCDs, the computer he had used to prepare the two VCDs and whether he had personally prepared the two VCDs; that with the help of SI Surender, he had prepared two working copies of the first VCD, on 20.04.2007; that he had not taken any certificate State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 52 of 91 under Section 65B of the Indian Evidence Act, 1872 from SI Surender; that the two working copies were prepared on the office computer of PS ACB; that he does not remember the make of that computer; that the said computer was kept in the room of SO Branch of Joint CP of ACB; that similarly, he had prepared two working copies of the second VCD, received by him on 13.08.2007, with the help of SI Karnail; that he had not taken any certificate under Section 65B of the Indian Evidence Act, 1872 from SI Karnail; that the said copies were also prepared on the office computer of PS ACB, whose make he does not remember; that the said copies were also prepared from the computer kept in the room of SO Branch of Joint CP of ACB; that he does not remember if he had watched the video contained in the VCD from which the copies were prepared; that it is wrong to suggest that the subject videos are fabricated; that he had not obtained the signatures of Sh. Raj Kumar on the site plan, Ex.PW17/C and the signatures of SI Karnail Singh on the memo, Ex.PW17/E; that it is correct that the memo, Ex.PW17/E does not have the signatures of the witness, Sh. Ashok Kumar; that it is wrong to suggest that the said document does not have the signatures of the witness, Sh. Ashok Kumar because it is a fabricated document; that it is wrong to suggest that the transcripts, Ex.PW10/A and Ex.PW10/B are fabricated documents; that it is correct that no PCR call or complaint was made on 25.10.2005; that he is not aware if Sh. Raj Kumar had given anything in writing to BAG Films or the reporter, Sh. Sanjay Chandra; that the currency notes allegedly given to the accused, Sh. Surender Kumar Kataria were not handed over to him by anyone; that as per his recollection, the said currency notes had remained with the accused, Sh. Surender Kumar Kataria; that he recollects that the currency notes can be seen in the video, wherein the reporter, Sh. Sanjay Chandra had confronted the accused, Sh. Surender Kumar Kataria but he does not recollect whether they were taken by the reporter, Sh. Sanjay Chandra or someone else; that State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 53 of 91 it is wrong to suggest that since he has falsely implicated the accused, Sh. Surender Kumar Kataria, he is concealing the true picture regarding the recovery of the amount of Rs.4000/­ and only therefore, the amount of Rs.4000/­ was not recovered in this case; that during the investigation of this case, no one had supplied him with the numbers of the currency notes; that he does not remember whether in the second video, the Principal of the Institute, the Vice Principal of the Institute and two more staff members of the Institute are visible; that he does not remember whether he had recorded their statements under Section 161 of CrPC, 1973; that it is not in his knowledge that in second part of video, there is any reference of a sister of the accused, Sh. Surender Kumar Kataria and therefore, he cannot say, whether he had recorded the statement of a sister of the accused, Sh. Surender Kumar Kataria; that he had not given any notice to BAG Films to supply the camera; that he does not remember the DD entries of his departure from PS ACB to BAG Films, on 20.04.2007 and 13.08.2007; that he does not know whether those DD entries have been filed on record by the subsequent IO's; that it is wrong to suggest that he had not gone to the office of BAG Films, on 20.04.2007 and 13.08.2007 and that he had manipulated all the documents, while sitting in PS ACB; that it is wrong to suggest that the accused, Sh. Surender Kumar Kataria has been falsely implicated in this case and it is wrong to suggest that he had not done a fair investigation.

50. During examination in chief, PW18 ACP Manoj Kumar had inter­alia deposed that he was posted as an Inspector at PS ACB from 2005 to 2010; that on 05.02.2008, the further investigation of this case was assigned to him; that during the investigation of this case, he had recorded the statement under Section 161 of CrPC, 1973 of one, Sh. Satish Kumar, on 04.06.2008; that during the investigation of this case, he had played a working copy of the VCD kept on the investigation file, on State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 54 of 91 the office computer, in the presence of a witness, Sh. Y. Raghvendra Rao, on 08.08.2008 and in this regard prepared a memo, Ex.PW18/A, bearing his signatures at point A, the signatures of the accused, Sh. Surender Kumar Kataria at point B and the signatures of the witness at point C and that during the investigation of this case, he had sent the case property of this case to FSL, through Ct. Dinesh and subsequently received the FSL result dated 30.10.2009, Ex.PW9/A. During cross­ examination by the Ld. Advocate for the accused, PW18 ACP Manoj Kumar had inter­alia deposed that it is wrong to suggest that the accused, Sh. Surender Kumar Kataria has been implicated falsely in this case; that it is wrong to suggest that the memo, Ex.PW18/A is a fabricated document; that it is wrong to suggest that the accused, Sh. Surender Kumar Kataria was made to sign blank papers which were later converted into the documents of this case; that it is wrong to suggest that no case property was sent by him to the FSL or that no statements were recorded by him and that it is wrong to suggest that he had deposed falsely.

51. During examination in chief, PW19 Inspector Satender Vashisht had inter­alia deposed that he was assigned the investigation of this case for a short period between January 2014 to March 2014 and that during that period he had not done any investigation. Despite grant of opportunity, the Ld. Advocate for the accused had not cross­examined PW19 Inspector Satender Vashisht.

52. During examination in chief, PW20 ACP Rohitash Kumar had inter­alia deposed that on 25.03.2014, he was posted as an Inspector at PS ACB; that upon receipt of the investigation file of this case from the SO branch of PS ACB, he had perused the file of this case; that upon perusal of the investigation file of this case, he had discovered that the previous IO, Inspector Sanjeev Kumar had issued many State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 55 of 91 notices to Sh. Mukesh Yadav, Sh. Sanjay Chandra and Sh. Ajay Kumar but they had not joined the investigation of this case; that therefore, he had also issued notices to the said persons and made sincere efforts to locate them but they had remained untraced; that after making lot of efforts, he had made the complainant of this case join the investigation of this case; that subsequently, he had traced Sh. Mukesh Yadav and recorded his statement under Section 161 of CrPC, 1973 but his efforts to trace Sh. Sanjay Chandra and Sh. Ajay Kumar had remained unsuccessful; that since further investigation had been done in this case, a decision was taken to obtain fresh sanction qua the accused, Sh. Surender Kumar Kataria; that therefore, he had applied for grant of fresh sanction qua the accused, Sh. Surender Kumar Kataria through Sh. P. K. Mishra, the then DCP, ACB vide letter, Ex.PW15/A(OSR) and that after obtaining the sanction dated 13.03.2015, Ex.PW15/B, he had filed the charge­sheet in this case.

53. During cross­examination by the Ld. Advocate for the accused, PW20 ACP Rohitash Kumar had inter­alia deposed that orally he does not remember the address of the witness, Sh. Mukesh Yadav on which notices were issued, for him to join the investigation; that he can tell the address, after seeing the concerned notices; that it might be correct that the witness, Sh. Mukesh Yadav is now not available at the said address; that he cannot tell if the witness, Sh. Mukesh Yadav has been served with the summons of this Court at a different address; that during the investigation of this case, he had not obtained any certificate under Section 65B of the Indian Evidence Act, 1872 from the witness, Sh. Mukesh Yadav; that since the original mini DV cassettes containing the original recordings were recovered, there was no need of any such certificate; that it is wrong to say that the witness, Sh. Mukesh Yadav had not joined the investigation of this case and not made any State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 56 of 91 statement under Section 161 of CrPC, 1973; that it is wrong to suggest that his statement filed alongwith the chargesheet is a fabricated statement; that while using the word complainant during his examination in chief, he was referring to Sh. Raj Kumar, who is the de facto complainant of this case; that it is wrong to say that Sh. Raj Kumar cannot be called the complainant; that it is wrong to say that Sh. Raj Kumar had not joined the investigation of this case; that it is correct that the letter, Ex.PW15/A(OSR) is dated 22.08.2014 and the sanction, Ex.PW15/B is dated 13.03.2015; that he had never visited the office of the concerned news channel; that it is wrong to say that the accused, Sh. Surender Kumar Kataria has been falsely implicated and it is wrong to say that he had not done a fair investigation.

54. During examination in chief, PW21 Sh. Mukesh Kumar Yadav had inter­alia deposed that since the matter is quite old, he cannot recollect anything, without seeing the concerned audio­video recordings. Upon being shown the SONY Mini DV Digital video cassette, Ex.P1/PW9, PW21 Sh. Mukesh Kumar Yadav had deposed that since the said video cassette does not bear his signatures or writing, he cannot identify it without seeing its contents. Upon being shown the contents of SONY Mini DV Digital video cassette, Ex.P1/PW9 in a video camera of the make Sony, PW21 Sh. Mukesh Kumar Yadav had deposed that in the video, the accused, Sh. Surender Kumar Kataria, the Principal of the Institute and the reporter, Sh. Sanjay Chandra are visible but the complainant 27 is not visible; that the said video was recorded after the alleged bribe transaction, through a camera held by him and that in the video, there is no scene of the accused, Sh. Surender Kumar Kataria returning the amount of Rs.4000/­. Upon being shown the SONY Mini DV Digital video cassette, Ex.P2/PW9, PW21 Sh. Mukesh Kumar Yadav had deposed that 27 It appears that the witness was referring to Sh. Raj Kumar State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 57 of 91 since the said video cassette does not bear his signatures or writing, he cannot identify it without seeing its contents. Upon being shown the contents of SONY Mini DV Digital video cassette, Ex.P2/PW9 in a video camera of the make Sony, PW21 Sh. Mukesh Kumar Yadav had deposed that he cannot identify the video because at the time of recording of this video, he was not present and because he is neither seen nor heard in the video and that there are some persons visible and audible in the video but he cannot identify the said persons. Upon being shown the contents of the VCD of the make Moserbaer (bearing the words, "VCD­I Recording with Spycam"), Ex.P1, PW21 Sh. Mukesh Kumar Yadav had deposed that he cannot identify the video as it was not made in his presence. Upon being shown the contents of the VCD of the make Moserbaer (bearing the words, "VCD­II Recording with Visible Camera"), Ex.P4, PW21 Sh. Mukesh Kumar Yadav had deposed that the video is the copy of the video in the SONY Mini DV Digital video cassette, Ex.P2/PW9;28; that he had made the video contained in the Sony Mini Digital video cassette, Ex.P2/PW929 with an open camera after he and the others had gone inside the Institute for the second time, with the help of a camera which had a slot of Mini DV cassette recorder; that the video prepared by him at that time had got directly recorded in the SONY Mini DV Digital video cassette, Ex.P2/PW9 30 and that he does not remember any other fact.

55. Since, PW21 Sh. Mukesh Kumar Yadav had not supported the case of 28 In my view, this statement has a typographical error. The reference herein should have been to the SONY Mini DV Digital video cassette, Ex.P1/PW9, whose video had been identified by the witness, on the same day.

29 In my view, this statement also has a typographical error. The reference herein should have also been to the SONY Mini DV Digital video cassette, Ex.P1/PW9, whose video had been identified by the witness, on the same day.

30 In my view, this statement also has a typographical error. The reference herein should have also been to the SONY Mini DV Digital video cassette, Ex.P1/PW9, whose video had been identified by the witness, on the same day.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 58 of 91 the State in entirety, he was permitted to be cross­examined by the Ld. PP for the State. During cross examination by the Ld. PP for the State, PW21 Sh. Mukesh Kumar Yadav had inter­alia deposed that he does not recollect the date on which the above mentioned videos were made; that it is however correct that both the videos were made on the same day at BTC Veer Savarkar Pusa, Delhi; 31 that it is correct that on that day, he had accompanied the reporter, Sh. Sanjay Chandra to BTC Veer Savarkar Pusa, Delhi for conducting sting operation along with one person, whose name he does not remember; that he cannot admit or deny that the date on which he and the others had gone to the Pusa Institute, was 25.10.2005; that he does not remember if the name of the other person was Sh. Raj Kumar; that he also does not remember if Sh. Raj Kumar had carried a sum of Rs.4000/­, which was to be given to the accused, Sh. Surender Kumar Kataria as bribe and that he does not remember if the numbers of the currency notes were noted down by Sh. Sanjay Chandra on some piece of paper, before the currency notes were given to the accused, Sh. Surender Kumar Kataria. At this stage of the examination of PW21 Sh. Mukesh Kumar Yadav, his statement under Section 161 of CrPC,1973, Mark P21/X was shown to the witness. After reading the said statement, PW21 Sh. Mukesh Kumar Yadav had inter­alia deposed that he had gone to PS ACB to give his statement but the statement, Mark P21/X is not completely correct and is not completely in accordance with the version given by him to the IO; that in the said statement, it is wrongly recorded that the spy camera was with him at the time of demand and acceptance of the bribe; that actually, the spy camera was with Sh. Sanjay Chandra; that in the statement, Mark P21/X it is wrongly recorded that the demand and acceptance of bribe of Rs.4000/­ by the accused, Sh. Surender Kumar 31 This statement/testimony indicates that the witness, PW21 Sh. Mukesh Kumar has knowledge of both the videos.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 59 of 91 Kataria had occurred in his presence; that it is wrong to suggest that he was wearing the sting camera or that he was walking along side Sh. Raj Kumar; that it is wrong to suggest that in his presence, the accused, Sh. Surender Kumar Kataria had demanded Rs.4000/­ from Sh. Raj Kumar in respect of the admission of the brother of Sh. Raj Kumar;32 that it is wrong to suggest that he had recorded the demand and acceptance of the bribe by the accused, Sh. Surender Kumar Kataria through a sting camera; that it is wrong to suggest that after watching the VCD before the IO, on 08.05.2018, he had confirmed the said fact as well as the fact of the accused, Sh. Surender Kumar Kataria being visible in the VCD; 33 that it is wrong to suggest that the numbers of the currency notes of Rs.4000/­ brought by Sh. Raj Kumar himself were noted down by him and Sh. Sanjay Chandra before starting the sting operation;34 that it is however correct that after the sting operation was conducted, the video of the sting was watched by him and Sh. Sanjay Chandra, outside the Institute; that it is correct that thereafter, he and the others had entered the Institute, while he was carrying an open camera; that it is correct that when he and the others had again gone inside the Institute to confront the accused, Sh. Surender Kumar Kataria about the incident, he was holding the open visible camera; that he does not remember if after again entering the Institute, he and the others had gone to the room of Principal of the Institute, where the accused, Sh. Surender Kumar Kataria had returned the bribe money of Rs.4000/­ to Sh. Raj Kumar; that he does not remember if those were the same currency notes which were noted down earlier; 35 32 At this stage, the Ld. PP for the State had confronted PW21 Sh. Mukesh Kumar Yadav with the portion A to A of the statement, Mark 21/X. 33 At this stage, the Ld. PP for the State had confronted PW21 Sh. Mukesh Kumar Yadav with the portion B to B of the statement, Mark 21/X. 34 At this stage, the Ld. PP for the State had confronted PW21 Sh. Mukesh Kumar Yadav with the portion C to C of the statement, Mark 21/X. 35 At this stage, the Ld. PP for the State had confronted PW21 Sh. Mukesh Kumar Yadav with the portion D to D of the statement, Mark 21/X. State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 60 of 91 that it is correct that on that day, two recordings were made i.e. one with the spy camera and one with open camera; that it is correct that on 08.05.2018, the IO had shown him the second video on a CD and in front of the IO, he had identified the second video to have been made by him, with the help of an open camera; that it is wrong to suggest that either he has been won over by the accused or due to lapse of several years, he is unable to recollect the complete facts.

56. During cross­examination by the Ld. Advocate for the accused, PW21 Sh. Mukesh Kumar Yadav had inter­alia deposed that it is correct that in the video contained in the SONY Mini DV Digital video cassette, Ex.P2/PW9, the accused, Sh. Surender Kumar Kataria cannot be seen returning any money to the complainant or to Sh. Sanjay Chandra or to anyone; 36 that it is wrong to suggest that the video in SONY Mini DV Digital video cassette is fabricated and he had not recorded it; that the SONY Mini DV Digital video cassette, Ex.P2/PW9 was taken by Sh. Sanjay Chandra;37 that at the time when Sh. Sanjay Chandra had taken the video cassette from him, it was in an unsealed condition and he had not sealed it, in any parcel; that he does not know what Sh. Sanjay Chandra had done with the video cassette; that normally, the video cassettes are deposited by the reporters in the library of the News Channel; that he had not given the two video cassettes or the two VCDs to the IO of this case; that the two video cassettes and the two VCDs were not handed over to the IO, in his presence; that normally from the video cassette, the video used to be copied on the computer system of library of his news channel, through a video 36 In my view, this statement also has a typographical error. The reference herein should have also been to the SONY Mini DV Digital video cassette, Ex.P1/PW9, whose video had been identified by the witness, on the same day.

37 In my view, this statement also has a typographical error. The reference herein should have also been to the SONY Mini DV Digital video cassette, Ex.P1/PW9, whose video had been identified by the witness, on the same day.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 61 of 91 cassette recorder­cum­player, which used to be connected to the computer system through a wire; that the videos of this case were not prepared/transferred on to the computer system from the video cassettes of this case, in his presence; that the copies from the computer systems to the CDs were not prepared in his presence; that the camera which was used by him while recording the video contained in SONY Mini DV Digital video cassette, Ex.P2/PW9 was of the make SONY model 170;38 that he and Sh. Sanjay Chandra used to take that camera from the store of their office and after completing the video recording, the camera used to be returned in the store; that he had returned the camera used by him to the store; that he does not know where that camera is and that he had not handed over the camera to the IO at any stage.

57. The record of the Court file reflects that after examining the aforesaid witnesses of the State, the evidence of the State was closed and the case was adjourned for recording of statement of the accused under Section 313 of CrPC, 1973.

Statement of Accused under Section 313 of CrPC, 1973

58. In the statement under Section 313 of CrPC, 1973, the accused, Sh. Surender Kumar Kataria had admitted certain elements of the case of the State albeit with some reservations viz. (a) that in October 2005, he was a public servant, working as a teacher in Basic Training Centre (BTC), Veer Savarkar, Pusa, Delhi;

(b) that on 25.10.2005, PW12 Sh. Raj Kumar had come to his room alongwith one 38 In my view, this statement also has a typographical error. The reference herein should have also been to the SONY Mini DV Digital video cassette, Ex.P1/PW9, whose video had been identified by the witness, on the same day.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 62 of 91 person (but he was not PW21 Sh. Mukesh Kumar Yadav); (c) that on 25.10.2005, he had requested PW12 Sh. Raj Kumar and the other person to sit in his classroom and 10 minutes later, he had gone to his classroom; (d) that in his classroom, he had spoken to PW12 Sh. Raj Kumar in the presence of the other person; (e) that during the conversation, PW12 Sh. Raj Kumar was insisting on paying him Rs.4000/­ (but he was unwilling to accept the said amount); (f) that at the time of the said conversation, two students, including PW6 Sh. Vikas Kumar, were present in the classroom; (g) that upon his calling, PW6 Sh. Vikas Kumar had come and taken Rs.4000/­ from PW12 Sh. Raj Kumar (but he did not know the purpose of the said payment); (h) that later on, PW12 Sh. Raj Kumar, one cameraman and the reporter, Sh. Sanjay Chandra had come inside the institute, with an open camera; (i) that during the investigation of this case viz. on 06.08.2007, he had gone to PS ACB, where he was arrested vide arrest memo, Ex.PW17/B and personally searched vide memo, Ex.PW5/B1 and (j) that his voice sample was recorded at CFSL, Lodhi Road, on 08.08.2007 (but during the recording, he was repeatedly instructed about how to speak).

59. Further, in the statement under Section 313 of CrPC, 1973, the accused, Sh. Surender Kumar Kataria had denied the other elements of the case of the State, either on account of lack of knowledge or on account of them being wrong/incorrect or on account of them being a matter of record. In brief, it was the say of the accused, Sh. Surender Kumar Kataria (a) that he had not met PW12 Sh. Raj Kumar on a date prior to 25.10.2005; (b) that upon getting to know about the issue of the admission of Sh. Rajesh Kumar (brother of PW12 Sh. Raj Kumar), he had not told PW12 Sh. Raj Kumar that the admission of his brother can be secured, upon payment of Rs.13,000/­; (c) that he had not made mobile phone calls to PW12 State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 63 of 91 Sh. Raj Kumar, demanding Rs.13,000/­ and threatening with the cancelation of the admission of Sh. Rajesh Kumar; (d) that he had not got a call from PW12 Sh. Raj Kumar, offering to pay Rs.4000/­ instead of Rs.13,000/­; (e) that on 25.10.2005, he had done nothing to invite PW12 Sh. Raj Kumar to the Institute alongwith any person; (f) that during the conversation in his classroom, upon finding out that PW12 Sh. Raj Kumar had only brought Rs.4000/­, he had not said the words, "itne se kuch nahi hoga, diwali ka time hai, aapko bonus mila hoga" and subsequently demanded the total sum of Rs.13,000/­; (g) that he had not instructed, PW6 Sh. Vikas Kumar to take Rs.4000/­ from PW12 Sh. Raj Kumar; (h) that he had not pushed the sum of Rs.4000/­ towards PW6 Sh. Vikas Kumar when it was kept on the table; (i) that he had not taken the bribe of Rs.4000/­ from PW12 Sh. Raj Kumar; (j) that upon being confronted by the journalist, Sh. Sanjay Chandra, he had not returned any money to anyone; (k) that in his presence, no video was shown to PW4 Sh. S. N. Joneja, Principal of the Institute; (l) that the testimony of PW12 Sh. Raj Kumar regarding the contents of the CD, Ex.P1 and the CD, Ex.P4/PW12 are a matter of record; (m) that PW6 Sh. Vikas Kumar has wrongly identified him in the video contained in the CD, Ex.P1; (n) that after return of the sum of Rs.4000/­ by him, as per the instructions of PW4 Sh. S. N. Joneja, he was not suspended; (o) that the complaint, Ex.PW4/A is false; (p) that the transcript, Ex.PW4/B is a matter of record; (q) that the videos in the video cassettes and the CDs, seized by the first IO, Inspector Mehar Chand are fabricated/manipulated; (r) that the sanction dated 13.03.2015, Ex.PW15/B has been granted wrongly, without appreciating the truth; (s) that the FSL reports, Ex.PW9/A and Ex.PW9/B are a matter of record and (t) that he does not know much about the investigation procedure adopted by the officials of ACB.

60. Further, upon being left free to say anything, the accused, Sh. Surender State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 64 of 91 Kumar Kataria had stated that he is innocent; that he has been falsely implicated in this case by PW12 Sh. Raj Kumar; that more than one month prior to 25.10.2005, PW12 Sh. Raj Kumar had met him on a few occasions regarding the admission of the brother of PW12 Sh. Raj Kumar in ITI Pusa Institute through Smt. Pushpa Sharma; that he treats Smt. Pushpa Sharma as a sister; that before that, he did not know PW12 Sh. Raj Kumar; that every time, PW12 Sh. Raj Kumar used to come and meet him in the Institute, PW12 Sh. Raj Kumar used to say in front of his colleagues that the admission of the brother of PW12 Sh. Raj Kumar should be secured through whatever means possible, including payment of money; that upon hearing such talk, he used to get angry because he had told PW12 Sh. Raj Kumar that the admission of his brother can be secured only on merit and not otherwise; that one month prior to 25.10.2005, when PW12 Sh. Raj Kumar had come to the Institute and repeated the same talk, he had got angry and slapped PW12 Sh. Raj Kumar; that upon being slapped, PW12 Sh. Raj Kumar had threatened him that he will see him and teach him a lesson; that the said threat was given by PW12 Sh. Raj Kumar in the presence of his colleagues and that in pursuance of the said threat, he had been falsely implicated in this case.39 39 It is relevant to note that the majority of the things stated by the accused, Sh. Surender Kumar Kataria, upon being left free to say anything were surprisingly never put during cross examination to PW12 Sh. Raj Kumar, for e.g. it was never put to PW12 Sh. Raj Kumar (a) that prior to 25.10.2005, he had met the accused, Sh. Surender Kumar Kataria on more than one occasion; (b) that on one of the said occasions, he had said that the admission of his brother should be secured through whatever means possible, including payment of money, in front of the colleagues of the accused, Sh. Surender Kumar Kataria and (c) that on a day prior to 25.10.2005, he had got slapped by the accused, Sh. Surender Kumar Kataria and therefore, he had falsely implicated the accused, Sh. Surender Kumar Kataria in this case. In fact, to the contrary, the false implication theory put during cross­examination to PW12 Sh. Raj Kumar was that since, he had a dispute with Smt. Pushpa regarding a loan of Rs.15,000/­, he had falsely implicated the accused, Sh. Surender Kumar Kataria. In my view, this shift in the stand/defence of the accused, Sh. Surender Kumar Kataria, clearly reflects that throughout the trial of this case, the accused, Sh. Surender Kumar Kataria, did not have a definitive defence.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 65 of 91 Defence Evidence led by the accused, Sh. Surender Kumar Kataria

61. In his defence, the accused, Sh. Surender Kumar Kataria had examined only DW1 Sh. Satyawan.40

62. During examination in chief, DW1 Sh. Satyawan had inter­alia deposed that his Aadhar card is Ex.DW1/A(OSR); that in October, 2005, he had gone to meet an acquaintance, Sh. Raj Kumar Sharma, who was working at the Basic Training Centre, Pusa; that after meeting Sh. Raj Kumar Sharma at the Basic Training Centre, Pusa, when he was going down from the stairs and had reached the gallery, he had seen "shor­sharaba"; that upon seeing the shor­sharaba, Sh. Raj Kumar Sharma and he had started walking towards it; that upon reaching the spot, he and Sh. Raj Kumar Sharma had seen two people indulging in "kaha­suni"; that one of the said persons, whose name, he had later on found to be Kataria ji, was repeatedly saying to the other person, "chala jaa yaha se"; that the other person was threatening Kataria ji, "mai tujhey dekh lunga"; that his acquaintance, Sh. Raj Kumar Sharma had started talking to Kataria ji and he had taken away the other person to the gate; that after leaving the other person at the gate, he had come back to the 40 It is relevant to note that in his defence, the accused, Sh. Surender Kumar Kataria, did not examine (a) Smt. Pushpa (his alleged relative/sister), who had allegedly given the loan of Rs.15,000/­ to PW12 Sh. Raj Kumar, who had a resultant dispute with PW12 Sh. Raj Kumar and who had ultimately not received the loan amount from PW12 Sh. Raj Kumar, on account of this case and (b) Sh. Prashant S/o Smt. Pushpa who allegedly knew about the loan transaction and is a friend of PW12 Sh. Raj Kumar. Both these characters were introduced by the accused, Sh. Surender Kumar Kataria during the cross­ examination of PW12 Sh. Raj Kumar. Therefore, it was incumbent upon him to examine them in his defence and bring credibility to his defence. Also, it is relevant to note that in his defence, the accused, Sh. Surender Kumar Kataria did not examine any of his colleagues, who had seen him slapping PW12 Sh. Raj Kumar on a day prior to 25.10.2005 and in front of whom, PW12 Sh. Raj Kumar had threatened him that he will teach him a lesson. In my view, it was incumbent upon the accused, Sh. Surender Kumar Kataria to examine atleast one of his said colleagues, in order to bring credibility to his defence.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 66 of 91 room of Kataria ji, where Sh. Raj Kumar Sharma was already present; that there, he had inquired from Kataria ji, "kya baat ho gai"; that in response, Kataria ji had informed him that the admission of the brother of the other person has to happen and he repeatedly comes and asks Kataria ji to get the admission done; that Kataria ji had also informed him that Kataria ji had refused to help the other person and the admission can happen only on the basis of merit; that after hearing Kataria ji, he had told Kataria ji that such incidents happen and if it happens again, Kataria ji can seek his help as he is also a government servant; that after hearing this, Kataria ji had noted down his address; that after conclusion of the said conversation, he had left for his home; that some days later, when he had met Sh. Raj Kumar Sharma, he was informed that an incident has happened with Kataria ji; that on 03.07.2023, Kataria ji had come to him, informed him about this case and asked for his help; that in response, he had informed Kataria ji that he had not seen the actual incident with the other person and that in response thereto, Kataria ji had told him that he should come to Court and tell whatever he knows.

63. During cross­examination by the Ld. PP for the State, DW1 Sh. Satyawan had inter­alia deposed that in October, 2005, he was working in CRPF; that he had come to Delhi for some personal work from his place of posting viz. Tripura; that his association with Sh. Raj Kumar Sharma had begun, when he was posted in Delhi and he had taken a lift/ride from him; that he had gone to meet Sh. Raj Kumar Sharma at the Basic Training Centre, Pusa, as a social visit and not for some personal work; that at that time, Sh. Raj Kumar Sharma was working as Group Instructor at the Basic Training Centre, Pusa; that he does not have any proof of coming to Delhi in October, 2005, from Tripura; that the full name of Kataria ji is Surender Kumar Kataria; that Kataria ji is the accused, Sh. Surender Kumar Kataria, State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 67 of 91 present in Court; that after October, 2005, he had met Kataria ji, on 03.07.2023; that he had recognized Kataria ji, after Kataria ji had introduced himself; that he does not know the name of the other person, who was doing "kaha­suni" with Kataria ji as he had not inquired it; that when he was taking the other person to the gate, the other person had told him that his "kaha­suni" with Kataria ji was in respect of admission of his brother; that it is correct that he had not heard the actual conversation between Kataria ji and the other person; that he has no personal knowledge regarding this case; that he has no knowledge about any sting operation in respect of Kataria ji; that it is wrong to suggest that his testimony is false and no incident, as alleged by him, had happened and that it is wrong to suggest that he had been tutored by the accused, Sh. Surender Kumar Kataria to testify in this Court.

Final Arguments

64. The final arguments in this case were heard, on 08.12.2023, 09.12.2023, 06.01.2024, 23.01.2024 and 27.01.2024.

65. During the hearing of final arguments, Sh. Kumar Sanjay, Ld. PP for the State had submitted that the accused, Sh. Surender Singh Kataria should be convicted in this case (a) because while responding to question no(s).1, 7, 9, 17, 35 and 60 asked by this Court, during the recording of the statement under Section 313 of CrPC, 1973, the accused, Sh. Surender Kumar Kataria has admitted a substantial part of the case of the State viz. (i) that the accused, Sh. Surender Kumar Kataria is a public servant; (ii) that on 25.10.2005, the accused, Sh. Surender Kumar Kataria had met PW12 Sh. Raj Kumar in his classroom for about 10 minutes; (iii) that on 25.10.2005, the accused, Sh. Surender Kumar Kataria had called the student, PW6 State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 68 of 91 Sh. Vikas Kumar, when PW12 Sh. Raj Kumar wanted to give gratification/bribe of Rs.4000/­; (iv) that on 25.10.2005, the accused, Sh. Surender Kumar Kataria had seen the student, PW6 Sh. Vikas Kumar taking Rs.4000/­ from PW12 Sh. Raj Kumar; (v) that the voice sample of the accused, Sh. Surender Kumar Kataria was collected by the IO at CFSL, Lodhi Road, on 08.08.2007 and (vi) that prior to 25.10.2005, the accused, Sh. Surender Kumar Kataria had met PW12 Sh. Raj Kumar and entertained talks regarding the admission of Sh. Rajesh Kumar Yadav;

(b) because the elements of the case of the State, which have not been admitted by the accused, Sh. Surender Kumar Kataria, have been duly proved by PW12 Sh. Raj Kumar, PW4 Sh. S. N. Joneja and PW6 Sh. Vikas Kumar, who have withstood the cross­examination of the Ld. Advocate for the accused; (c) because throughout the trial of this case, the accused, Sh. Surender Kumar Kataria has not given any credible explanation as to why PW12 Sh. Raj Kumar has falsely implicated him in this case;41 (d) because throughout the trial of this case, the accused, Sh. Surender Kumar Kataria has not given any credible explanation as to why PW4 Sh. S. N. Joneja and PW6 Sh. Vikas Kumar have falsely implicated him in this case; (e) because the testimonies of PW12 Sh. Raj Kumar and PW6 Sh. Vikas Kumar have been duly corroborated by the original video in the Sony Mini DV Digital video cassette, Ex.P2/PW9; (f) because the testimony of PW4 Sh. S. N. Joneja has been duly corroborated by the original video in the Sony Mini DV Digital video cassette, Ex.P1/PW9; (g) because the authenticity of the original videos in the Sony Mini DV Digital video cassette, Ex.P1/PW9 and Sony Mini DV Digital video cassette, Ex.P2/PW9, has been duly proved by PW9 Dr. C. P. Singh vide his two reports, 41 While making this submission, the Ld. PP for the State had pointed out the inconsistency in the suggestions put by the accused to PW12 Sh. Raj Kumar and the statement made by the accused under Section 313 of CrPC, 1973, particularly the statement made by the accused, Sh. Surender Kumar Kataria, upon being left free to say anything.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 69 of 91 Ex.PW9/A and Ex.PW9/B; (h) because the authenticity of the original video in the Sony Mini DV Digital video cassette, Ex.P1/PW9 has also been proved by PW21 Sh. Mukesh Kumar, the creator of the said video; (i) because DW1 Sh. Satyawan is a planted witness of the accused, who cannot be relied upon, for any purpose; (j) because even otherwise, the testimony of DW1 Sh. Satyawan does not exculpate the accused, Sh. Surender Kumar Kataria and (k) because the entire evidence led by the State in this case, categorically points towards the guilt of the accused, in respect of the offences punishable under Section 7 and 13 of the PC Act, 1988.

66. Per contra, Sh. Amitabh Kumar, the Ld. Advocate for the accused had submitted that the accused, Sh. Surender Singh Kataria should be acquitted in this case (a) because the testimony of PW12 Sh. Raj Kumar is unreliable; 42(b) because the hostile elements of the testimonies of PW4 Sh. S. N. Joneja, PW6 Sh. Vikas Kumar and PW12 Sh. Mukesh Kumar Yadav, make the said witnesses, equally unreliable; (c) because during the trial of this case, the State has not examined the reporter, Sh. Sanjay Chandra (mastermind of the sting operation dated 25.10.2005) and the producer of BAG Films, Sh. Ajay Kumar, who had allegedly given the Sony Mini DV Digital video cassette, Ex.P1/PW9 and Sony Mini DV Digital video cassette, Ex.P2/PW9 and two VCDs to the first IO, Inspector Mehar Chand, on 20.04.2007 42 While making this submission Sh. Amitabh Kumar, the Ld. Advocate for the accused had pointed out that during his examination, PW12 Sh. Raj Kumar was unable to tell (a) the name of any of the students, who had pointed him towards the accused, Sh. Surender Kumar Kataria, before the alleged first meeting, (b) the exact date or month of his first meeting with the accused, Sh. Surender Kumar Kataria, (c) why he had not made any complaint against the forceful taking of his mobile number by the accused, Sh. Surender Kumar Kataria and (d) the exact date on which, the accused, Sh. Surender Kumar Kataria had first demanded the sum of Rs.13,000/­ from him (after the admission of his brother, Sh. Rajesh Kumar Yadav). Also, Sh. Amitabh Kumar, the Ld. Advocate for the accused had pointed out that the State had not collected the CDRs of PW12 Sh. Raj Kumar or the accused, Sh. Surender Kumar Kataria to prove the calls, which PW12 Sh. Raj Kumar had claimed to have got from the mobile phone of the accused, Sh. Surender Kumar Kataria.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 70 of 91 and 13.08.2007;43 (d) because the two VCDs, allegedly given by Sh. Ajay Kumar to the first IO, Inspector Mehar Chand, on 20.04.2007 and 13.08.2007 are inadmissible in evidence, for want of certificate(s) under Section 65B of the Indian Evidence Act, 1872;44 (e) because the State/the IOs of ACB have not explained why they had not seized the cameras/equipments used by the reporter, Sh. Sanjay Chandra and the cameraman, PW21 Sh. Mukesh Kumar Yadav, on 25.10.2005 and (f) because the State/IOs of ACB have not seized the currency notes of Rs.4000/­, which were allegedly exchanged between PW12 Sh. Raj Kumar and the accused, Sh. Surender Kumar Kataria, on 25.10.2005.

67. In addition to the aforesaid, Sh. Harpreet Singh, Ld Advocate for the accused (engaged w.e.f. 23.01.2024) had submitted that the accused, Sh. Surender Singh Kataria should be acquitted in this case (a) because the State has not duly proved the demand/acceptance of any money by the accused, Sh. Surender Kumar Kataria; (b) because the Sony Mini DV Digital video cassette, Ex.P1/PW9 and Sony Mini DV Digital video cassette, Ex.P2/PW9 are unreliable; 45 (c) because the testimony of PW9 Dr. C. P. Singh is unreliable, for want of his ability to explain his qualifications/expertise in the field of examination of audio/video files and the field of 43 According to Sh. Amitabh Kumar, Ld Advocate for the accused, the failure of the State to examine Sh. Sanjay Chandra and Sh. Ajay Kumar, creates reasonable suspicion/doubt regarding the authenticity of the Sony Mini DV Digital video cassette, Ex.P1/PW9 and Sony Mini DV Digital video cassette, Ex.P2/PW9, which cannot be overcome by the State, by relying upon the testimony of PW9 Dr. C. P. Singh, who had allegedly examined the said video cassettes and found the videos contained therein, to be unaltered.

44 In support of this submission, the Ld. Advocate for the accused had relied upon the judgment of the Hon'ble Supreme Court in Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal & Ors., (2020) 7 SCC 1.

45 While making this submission, Sh. Harpreet Singh, Ld. Advocate for the accused had referred to the testimony of PW8 Retd. SI Ramesh Singh and pointed out that the said two video cassettes had remained in an unsealed condition with BAG Films, for a considerable time, during which they could have been easily altered/tampered with.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 71 of 91 spectrography/matching of voice samples46 and (d) because a careful examination of the sting video in the Sony Mini DV Digital video cassette, Ex.P2/PW9, clearly reveals that the accused, Sh. Surender Kumar Kataria was not demanding any money from PW12 Sh. Raj Kumar and was actually dissuading PW12 Sh. Raj Kumar from paying any money.47

68. In support of his submissions, Sh. Harpreet Singh, Ld. Advocate for the accused had relied upon the judgments in State (GNCT of Delhi) v Netrapal Singh & Ors., (2024) SCC OnLine Del 147, Neeraj Dutta v State (Govt. of N. C. T. of Delhi), (2023) SCC OnLine SC 280, Jagtar Singh v State of Punjab, (2023) SCC OnLine SC 320, Selvaraj v State of Karnataka, (2015) 10 SCC 230, Sri Rabindra Kumar Dey v State of Orissa, (1976) 4 SCC 233, Soundarajan v State, (2023) SCC OnLine SC 424, Mukhtiar Singh v State of Punjab, (2017) 8 SCC 136, G. V. Nanjundiah v State (Delhi Administration), (1987) (Supp) SCC 266, Darshan Lal v The Delhi Administration, (1974) 3 SCC 595, K. Shanthamma v The State of Telangana, (2022) 4 SCC 574, Panalal Damodar Rathi v State of Maharashtra, (1979) 4 SCC 526, Jai Narayan v State, (2023) SCC OnLine Del 5513, Mahal Singh v State of Delhi, (2023) SCC OnLine Del 5334 and N. Vijayakumar v State of Tamil Nadu, (2021) 3 SCC 687.

46 In my view, the said submission of Sh. Harpreet Singh, Ld. Advocate for the accused is unworthy of a deeper consideration because during his examination in chief, PW9 Dr. C. P. Singh has stated that on 30.10.2009, he was posted as Assistant Director (Physics), FSL. Rohini. In my understanding, a person cannot reach at such a post at FSL, Rohini, without having expertise in some field of forensic sciences. Also, in my view, the said submission of Sh. Harpreet Singh, Ld. Advocate for the accused, is unworthy of a deeper consideration because while cross­examining PW9 Dr. C. P. Singh, the accused had nowhere suggested to PW9 Dr. C. P. Singh that he lacks the requisite expertise. In my view, if the accused had any doubt regarding the expertise of PW9 Dr. C. P. Singh, then the accused should have put it to PW9 Dr. C. P. Singh so that he would have got an opportunity to clear it. 47 This submission was made by Sh. Harpreet Singh, Ld. Advocate for the accused, without prejudice to his previous submission that the sting video in the Sony Mini DV Digital video cassette, Ex.P2/PW9 is an unreliable piece of evidence.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 72 of 91 Analysis and Findings

69. After perusing the record of the Court file, considering the aforesaid rival submissions made by the Ld. PP for the State and the Ld. Advocates for the accused and seeing the video files in the Sony Mini DV Digital video cassette, Ex.P1/PW9 and Sony Mini DV Digital video cassette, Ex.P2/PW9, 48 I find that the accused, Sh. Surender Kumar Kataria is liable to be convicted in this case qua the offences punishable under Section 7 and 13(1)(d) read with 13(2) of the PC Act, 1988, on account of the following reasons.

70. Firstly, the accused, Sh. Surender Kumar Kataria is liable to be convicted, as aforesaid, because in my view, the testimony of PW12 Sh. Raj Kumar is completely reliable, in respect of all the material aspects of this case viz. (a) the repeated demand of Rs.13,000/­ made by the accused, Sh. Surender Kumar Kataria, (b) the acceptance of Rs.4000/­ (part amount) made by the accused, Sh. Surender Kumar Kataria, on 25.10.2005, albeit through his student, PW6 Sh. Vikas Kumar and (c) the purpose of the said demand and acceptance viz. the admission of Sh. Rajesh Kumar Yadav (brother of PW12 Sh. Raj Kumar) in a fitter course at the Institute and because in my view, the testimony of PW12 Sh. Raj Kumar in respect of the said material aspects, strictu sensu does not warrant/require any corroboration from any source, be it human or technical.

71. While taking the aforesaid view regarding the testimony of PW12 Sh.

48 I had seen the said video files, on 08.02.2024, with the assistance of Sh. Shivam of M/s. Yash Studio, sent by the last IO, ACP Rohitash Kumar.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 73 of 91 Raj Kumar, it has weighed in my mind that during his testimony before this Court, PW12 Sh. Raj Kumar has vividly explained all the aforesaid material aspects with the necessary details, including (a) the manner/circumstances in which he had reached the accused, Sh. Surender Kumar Kataria, for the first meeting, (b) the conversation he had with the accused, Sh. Surender Kumar Kataria during the first meeting, (c) the manner/circumstances through which his brother, Sh. Rajesh Kumar Yadav had ultimately secured an admission in the fitter course at the Institute, (d) the manner/circumstances in which, the accused, Sh. Surender Kumar Kataria had repeatedly demanded Rs.13,000/­ from him and threatened him with the cancellation of the admission of his brother, Sh. Rajesh Kumar Yadav, (e) the manner/circumstances in which the accused, Sh. Surender Kumar Kataria had accepted Rs.4000/­ from him, on 25.10.2005, through the student, PW6 Sh. Vikas Kumar and (f) the manner in which, the accused, Sh. Surender Kumar Kataria had reacted, after being confronted by the reporter, Sh. Sanjay inside the office of PW4 Sh. S. N. Joneja, the Principal of the Institute.

72. Also, while taking the aforesaid view regarding the testimony of PW12 Sh. Raj Kumar, it has weighed in my mind that a substantial part of the testimony of PW12 Sh. Raj Kumar has been admitted by the accused, Sh. Surender Kumar Kataria during the recording of his statement under Section 313 of CrPC, 1973, for e.g., the accused, Sh. Surender Kumar Kataria has admitted (a) that he had met PW12 Sh. Raj Kumar prior to 25.10.2005, (b) that during those meetings, he had conversations with PW12 Sh. Raj Kumar regarding the admission of his brother, Sh. Rajesh Kumar Yadav at the Institute, albeit under protest, (c) that on 25.10.2005, he had met PW12 Sh. Raj Kumar (and one more person) in his classroom, for about 10 minutes, (d) that during the said meeting, PW12 Sh. Raj Kumar was offering to pay State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 74 of 91 him Rs.4000/­, (e) that he had called his student, PW6 Sh. Vikas Kumar to the table, where he was sitting with PW12 Sh. Raj Kumar and the other person and (f) that in front of him, PW12 Sh. Raj Kumar had given Rs.4000/­ to his student, PW6 Sh. Vikas Kumar. The divergence between the version put forth by PW12 Sh. Raj Kumar and the accused, Sh. Surender Kumar Kataria is only qua two aspects i.e. (a) whether the accused, Sh. Surender Kumar Kataria had demanded Rs.13,000/­ from PW12 Sh. Raj Kumar, in respect of the admission of Sh. Rajesh Kumar Yadav (brother of PW12 Sh. Raj Kumar) in a fitter course at the Institute and (b) whether the sum of Rs.4000/­ admittedly given by PW12 Sh. Raj Kumar to PW6 Sh. Vikas Kumar, was at the behest of the accused, Sh. Surender Kumar Kataria. In respect of these two contentious aspects, I have agreed with the version put forth by PW12 Sh. Raj Kumar because while his testimony before this Court has come out to be natural and in accordance with the circumstances faced by him, in October, 2005, the defence put forth by the accused, Sh. Surender Kumar Kataria, has come out to be remarkably shaky and wavering. In regard to this observation, it is noteworthy (a) that the defence of the accused, Sh. Surender Kumar Kataria (put to PW12 Sh. Raj Kumar) that he has been falsely implicated in this case because PW12 Sh. Raj Kumar had taken a loan of Rs.15,000/­ from his relative, Smt. Pushpa and did not want to give it back, does not inspire confidence, (i) because the accused, Sh. Surender Kumar Kataria has not examined his relative, Smt. Pushpa and/or Sh. Prashant S/o Smt. Pushpa, as a witness before this Court and (ii) because the accused, Sh. Surender Kumar Kataria has not been able to explain why a person would go through the arduous process of getting his brother admitted in a course at the Institute and approaching a reporter of a reputed TV channel for a sting operation, for the purpose of avoiding a liability of Rs.15,000/­ only; (b) that the defence of the accused, Sh. Surender Kumar Kataria (proffered for the first time State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 75 of 91 during the recording of statement under Section 313 of CrPC, 1973) that he has been falsely implicated in this case because he was dissuading PW12 Sh. Raj Kumar from approaching him regarding the admission of Sh. Rajesh Kumar Yadav through corrupt means and because he had once slapped PW12 Sh. Raj Kumar, in front of his colleagues also does not inspire confidence, (i) because if these facts were true, the accused, Sh. Surender Kumar Kataria, should have (at the least) reported them (at the relevant time) to his superiors, including PW4 Sh. S. N. Joneja, Principal of the Institute and (ii) because the accused, Sh. Surender Kumar Kataria has not examined any of his colleagues, in front of whom, he had allegedly slapped PW12 Sh. Raj Kumar and in front of whom, PW12 Sh. Raj Kumar had allegedly threatened him with consequences; and (c) that the sole defence witness viz. DW1 Sh. Satyawan is completely unreliable because he had not heard the actual conversation between the accused, Sh. Surender Kumar Kataria and the person with whom, the accused, Sh. Surender Kumar Kataria was having "kaha­suni" on a date of October, 2005 and because he does not even know the name of the person with whom, the accused, Sh. Surender Kumar Kataria was having "kaha­suni" on a date of October, 2005.49 49 I have made these observations qua the testimony of DW1 Sh. Satyawan, without prejudice to my considered view that he is a planted witness of the accused, who had never witnessed anything. I find DW1 Sh. Satyawan to be a planted witness because during cross examination of PW12 Sh. Raj Kumar, no suggestion was put to PW12 Sh. Raj Kumar that prior to 25.10.2005, a " kaha­suni" had happened between him and the accused, Sh. Surender Kumar Kataria and after the "kaha­suni", he was escorted out of the Institute by Sh. Satyawan. In my view, if DW1 Sh. Satyawan had been a genuine witness, his alleged interaction with PW12 Sh. Raj Kumar would have surely been put by the accused to PW12 Sh. Raj Kumar. Also, I find DW1 Sh. Satyawan to be a planted witness because it is against the grain of normal human behavior that 18 years after an incident of "kaha­suni", which had happened between two strangers, a person (Sh. Satyawan) remembers it and was readily available to testify qua it, in a Court of Law. This latter reason gains all the more significance, when it has come on record that during 09.12.2005 (date of registration of FIR of this case) and 03.07.2023, the accused, Sh. Surender Kumar Kataria had never met and approached Sh. Satyawan with a request to testify in a Court of Law, on his behalf.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 76 of 91

73. Lastly, while taking the aforesaid view regarding the testimony of PW12 Sh. Raj Kumar, it has weighed in my mind that in response to his positive testimony viz. that after registration of the FIR of this case, the accused, Sh. Surender Kumar Kataria had once come to his office along with his brother, Sh. Rajesh Kumar Yadav (forcibly brought from his class) and asked him to withdraw this case; that at that time, he had inter­alia told the accused, Sh. Surender Kumar Kataria that he has no problem if the Institute withdraws this case and that he had lodged an FIR at PS Inderpuri regarding the said incident, the accused, Sh. Surender Kumar Kataria has not put any suggestion to PW12 Sh. Raj Kumar that the said testimony is false.50 In my view, the said conduct/stance of PW12 Sh. Raj Kumar, which stands admitted by the accused, Sh. Surender Kumar Kataria, on account of non­cross examination, bespeaks of the truthfulness of PW12 Sh. Raj Kumar and his impartial nature towards the prosecution of this case, which was initiated, not on his complaint but on the strength of the complaint, Ex.PW4/A of PW4 Sh. S. N. Joneja.

74. During the hearing of final arguments, the Ld. Advocate for the accused had submitted that the entire testimony of PW12 Sh. Raj Kumar should be ignored/sidelined by this Court (a) because he was unable to tell (i) the name of any of the students, who had pointed him towards the accused, Sh. Surender Kumar Kataria, before the alleged first meeting, (ii) the exact date or month of his first meeting with the accused, Sh. Surender Kumar Kataria, (iii) why he had not made 50 I do not see the said non­cross examination to be an omission on the part of the Ld. Advocate for the accused because the record of this case shows that Sh. Inderpal Khokhar, Ld. Advocate for the accused had extensively cross­examined all the witness of the State at length, giving all kinds of suggestions and had not yielded even an inch to the State. It is my understanding that the said part of testimony of PW12 Sh. Raj Kumar has been consciously admitted by the accused, Sh. Surender Kumar Kataria.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 77 of 91 any complaint against the forceful taking of his mobile number by the accused, Sh. Surender Kumar Kataria and (iv) the exact date on which, the accused, Sh. Surender Kumar Kataria had first demanded the sum of Rs.13,000/­ from him (after the admission of his brother, Sh. Rajesh Kumar Yadav) and (b) because during the investigation of this case, the State had not collected, the call data records ("CDRs") of PW12 Sh. Raj Kumar or the accused, Sh. Surender Kumar Kataria to prove the calls, which PW12 Sh. Raj Kumar claims to have got from the mobile phone of the accused, Sh. Surender Kumar Kataria. After giving considerable thought, I find myself to be in respectful disagreement with the said submission of the Ld. Advocate for the accused because in my view, the above­noted omissions of PW12 Sh. Raj Kumar and the State, do not water down the testimony of PW12 Sh. Raj Kumar in respect of the above­noted material aspects of this case and because in my view, it is only natural that upon being called to testify in this Court in October, 2022 (almost 17 years after the incident dated 25.10.2005), PW12 Sh. Raj Kumar was unable to tell the above­noted exact particulars viz. names and dates.

75. Secondly, the accused, Sh. Surender Kumar Kataria is liable to be convicted, as aforesaid, because even though in my view, the testimony of PW12 Sh. Raj Kumar does not warrant/require any corroboration from any source, in fact, the testimony of PW12 Sh. Raj Kumar has been duly corroborated by PW6 Sh. Vikas Kumar and PW4 Sh. S. N. Joneja.

76. During his testimony before this Court, PW6 Sh. Vikas Kumar has inter­ alia delved on one of the above­noted two contentious aspects viz. whether the sum of Rs.4000/­ admittedly received by him from PW12 Sh. Raj Kumar, on 25.10.2005, was received at the behest of the accused, Sh. Surender Kumar Kataria and State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 78 of 91 expressly testified before this Court that on 25.10.2005, the said sum was received by him from PW12 Sh. Raj Kumar on the behest of/as per the instructions of the accused, Sh. Surender Kumar Kataria and that later on, he had given the said sum to the accused, Sh. Surender Kumar Kataria. In my view, there exists absolutely no reason for this Court to discard this part/aspect of the testimony of PW6 Sh. Vikas Kumar (a) because at the time, he shared a fiduciary relationship with the accused, Sh. Surender Kumar Kataria and in common course of human behavior, would not have acted (especially while being in a classroom) against the wishes of the accused, Sh. Surender Kumar Kataria and (b) because neither through the cross examination of PW6 Sh. Vikas Kumar nor through his statement under Section 313 of CrPC, 1973, the accused, Sh. Surender Kumar Kataria has been able to explain why PW6 Sh. Vikas Kumar would falsely implicate him. In my view, PW6 Sh. Vikas Kumar had absolutely no axe to grind against the accused, Sh. Surender Kumar Kataria and therefore, his testimony on the above mentioned aspect is completely reliable/trustworthy.

77. During his testimony before this Court, PW4 Sh. S. N. Joneja has inter­ alia explained all the proceedings that had taken place in his room, on 25.10.2005, including (a) the watching of the original sting video on the office computer or TV, (b) the showing of the original sting video to the accused, Sh. Surender Kumar Kataria,

(c) the extra judicial confession made by the accused, Sh. Surender Kumar Kataria,51 (d) the bringing of the sum of Rs.4000/­ by the accused, Sh. Surender 51 During the hearing of final arguments, the Ld. PP for the State had not placed much reliance on the said extra judicial confession of the accused, Sh. Surender Kumar Kataria. However, in my view, it meets the standard of law, explained by the Hon'ble Supreme Court in Ram Niwas v State of Haryana, (2022) 15 SCC 306 and the judgments referred therein. I say so because during the cross­examination of PW4 Sh. S. N. Joneja, the accused had not at all suggested that the said extra judicial confession was extracted from him under duress, fraud, misrepresentation etc. The only suggestion put by the accused to PW4 Sh. S. N. Joneja was that no such extra judicial confession had been made. In this State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 79 of 91 Kumar Kataria and the taking of the said sum of Rs.4000/­ by the reporter, Sh. Sanjay and his companions. In my view, there exists absolutely no reason for this Court to discard these parts/aspects of the testimony of PW4 Sh. S. N. Joneja (a) because at the time, he was the superior official of the accused, Sh. Surender Kumar Kataria and in common course of human behavior, would not have acted against the accused, Sh. Surender Kumar Kataria, at the instance of complete strangers like the reporter, Sh. Sanjay, PW12 Sh. Raj Kumar and the cameraman, PW21 Sh. Mukesh Kumar and (b) because neither through the cross examination of PW4 Sh. S. N. Joneja nor through his statement under Section 313 of CrPC, 1973, the accused, Sh. Surender Kumar Kataria has been able to explain why PW4 Sh. S. N. Joneja would falsely implicate him. In my view, PW4 Sh. S. N. Joneja also had absolutely no axe to grind against the accused, Sh. Surender Kumar Kataria and therefore, his testimony qua the proceedings that had taken place in his room, on 25.10.2005, is completely reliable/trustworthy.

78. During the hearing of final arguments, the Ld. Advocate for the accused had submitted that the entire testimony of PW6 Sh. Vikas Kumar and PW4 Sh. S. N. Joneja should be ignored/sidelined by this Court because during examination before this Court, they had been declared hostile/partially hostile by the Ld. Chief Prosecutor for the State. The said submission of the Ld. Advocate for the accused is rejected in view of the law regarding appreciation of testimony of a hostile witness, explained by the Hon'ble Supreme Court in C. Muniappan v State of T. N., (2010) 9 SCC 567.52 The relevant paragraphs of the said judgment, are reproduced below:

regard, I have already disagreed with the accused, Sh. Surender Kumar Kataria. In my view, the said extra judicial confession was made by the accused, Sh. Surender Kumar Kataria and only therefore, PW4 Sh. S. N. Joneja had gone to the extent of making the complaint, Ex.PW4/A to ACB. 52 The said judgment has been quoted with approval in Rajesh Yadav v State of U. P., (2022) 12 SCC

200.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 80 of 91 "81. It is settled legal proposition that:

"6. ... the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross­examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof."

(Vide Bhagwan Singh v. State of Haryana, (1976) 1 SCC 389, Rabindra Kumar Dey v. State of Orissa, (1976) 4 SCC 233, Syad Akbar v. State of Karnataka, (1980) 1 SCC 30 and Khujji v. State of M.P., (1991) 3 SCC 627, SCC p. 635, para 6.)

82. In State of U.P. v. Ramesh Prasad Misra [(1996) 10 SCC 360: 1996 SCC (Cri) 1278] this Court held that (at SCC p. 363, para 7) evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra [(2002) 7 SCC 543: 2003 SCC (Cri) 112], Gagan Kanojia v. State of Punjab [(2006) 13 SCC 516: (2008) 1 SCC (Cri) 109], Radha Mohan Singh v. State of U.P. [(2006) 2 SCC 450: (2006) 1 SCC (Cri) 661], Sarvesh Narain State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 81 of 91 Shukla v. Daroga Singh [(2007) 13 SCC 360: (2009) 1 SCC (Cri) 188] and Subbu Singh v. State [(2009) 6 SCC 462: (2009) 2 SCC (Cri) 1106].

83. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.

84. In the instant case, some of the material witnesses i.e. B. Kamal (PW 86) and R. Maruthu (PW 51) turned hostile.

Their evidence has been taken into consideration by the courts below strictly in accordance with law. Some omissions, improvements in the evidence of the PWs have been pointed out by the learned counsel for the appellants, but we find them to be very trivial in nature.

85. It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witness. As the mental abilities of a human being cannot be expected to be State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 82 of 91 attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses."

Vide Sohrab v. State of M.P., [(1972] 3 SCC 751 : (1972) SCC (Cri) 819 : AIR 1972 SC 2020], State of U.P. v. M.K. Anthony, [(1985) 1 SCC 505 : 1985 SCC (Cri) 105], Bharwada Bhoginbhai Hirjibhai v. Sate of Gujrat, [(1983) 3 SCC 217 : 1983 SCC (Cri) 728 : AIR 1983 SC 753], State of Rajasthan v. Om Prakash, [(2007) 12 SCC 381 :

(2008) 1 SCC (Cri) 411], Prithu v. State of H.P., [(2009) 11 SCC 585 : (2009) 3 SCC (Cri) 1502], State of U.P. v.

Santosh Kumar, [(2009) 9 SCC 626 : (2010) 1 SCC (Cri) 88] and State v. Saravanan, [(2008) 17 SCC 587 : (2010) 4 SCC (Cri) 580]."

79. Thirdly, the accused, Sh. Surender Kumar Kataria is liable to be convicted, as aforesaid, because even though all the CDs collected/prepared by the State in this case are inadmissible in evidence for want of certificate(s) under Section 65B of the Indian Evidence Act, 1872, 53 the Sony Mini DV Digital video cassette, Ex.P1/PW9 and Sony Mini DV Digital video cassette, Ex.P2/PW9, do not suffer from the said taint/defect and because the videos in the Sony Mini DV Digital 53 This includes (a) the VCD seized by the first IO, Inspector Mehar Chand vide seizure memo dated 07.12.2005, Ex.PW1/A, (b) VCD (Part­I), inter­alia seized by the first IO, Inspector Mehar Chand from Sh. Ajay Kumar of BAG Films, vide seizure memo dated 20.04.2007, Ex.PW5/A1, (c) the two copies VCD (Part­I) made by the first IO, Inspector Mehar Chand with the assistance of PW11 Inspector Surender Kumar, on 20.04.2007 (d) VCD (Part­II), inter­alia seized by the first IO, Inspector Mehar Chand from Sh. Ajay Kumar of BAG Films vide seizure memo dated 13.08.2007, Ex.PW5/D1 and (e) the two copies of VCD (Part­II) made by the first IO, Inspector Mehar Chand with the assistance of PW10 SI Karnail Singh, on 13.08.2007.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 83 of 91 video cassette, Ex.P1/PW9 and Sony Mini DV Digital video cassette, Ex.P2/PW9 appear to be genuine/reliable. In regard to this latter observation, it is noteworthy that the genuineness/reliability of the original sting video in the Sony Mini DV Digital video cassette, Ex.P2/PW9 stands established/proved (a) through the admissions made by the accused, Sh. Surender Kumar Kataria, during the recording of his statement under Section 313 of CrPC, 1973;54 (b) through the testimonies of PW12 Sh. Raj Kumar and PW6 Sh. Vikas Kumar 55 and (c) through the testimony of PW9 Dr. C. P. Singh (expert witness of FSL, Rohini), who had found the said video to be free from any alteration. Also, it is noteworthy that the genuineness/reliability of the video in the Sony Mini DV Digital video cassette, Ex.P1/PW9 stands established (a) through the testimony of PW21 Sh. Mukesh Kumar Yadav, who had made it, (b) through the testimony of PW4 Sh. S. N. Joneja, who features in it and has testified in sync with it and (c) through the testimony of PW9 Dr. C. P. Singh (expert witness of FSL, Rohini), who had found the said video to be free from any alteration. At this stage, I must specify that in order to come to a fair/just decision in this case, I had seen the original sting video in the Sony Mini DV Digital video cassette, Ex.P2/PW9 and the video in the Sony Mini DV Digital video cassette, Ex.P1/PW9, on 08.02.2024. In the original sting video in the Sony Mini DV Digital video cassette, Ex.P2/PW9, it can be clearly seen (a) that the accused, Sh. Surender Kumar Kataria is speaking to PW12 Sh. Raj Kumar regarding the admission of his brother, 56 (b) that 54 A majority of the facts qua the classroom interaction dated 25.10.2005, admitted by the accused, Sh. Surender Kumar Kataria during the recording of his statement under Section 313 of CrPC, 1973 are clearly visible in the original sting video in the Sony Mini DV Digital video cassette, Ex.P2/PW9. In my view, this would not have been the case, if the said video was altered/tampered with. 55 A majority of the facts qua the classroom interaction dated 25.10.2005 deposed about by PW12 Sh. Raj Kumar and PW6 Sh. Vikas Kumar are clearly visible in the original sting video in the Sony Mini DV Digital video cassette, Ex.P2/PW9. In my view, this would not have been the case, if the said video was altered/tampered with.

56 At the time of entering the classroom, the accused, Sh. Surender Kumar Kataria can been heard saying, "ho gaya?". In response, PW12 Sh. Raj Kumar can be heard saying, "join kar liya". At another State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 84 of 91 the accused, Sh. Surender Kumar Kataria is calling his student, PW6 Sh. Vikas Kumar to the table where he was sitting with PW12 Sh. Raj Kumar 57 and (c) that the accused, Sh. Surender Kumar Kataria is asking/indicating PW6 Sh. Vikas Kumar to take the sum of Rs.4000/­ from PW12 Sh. Raj Kumar. Also, in the original sting video in the Sony Mini DV Digital video cassette, Ex.P2/PW9, it can be seen that PW6 Sh. Vikas Kumar is obediently behaving in accordance with the instructions of the accused, Sh. Surender Kumar Kataria, who was his teacher. In the same vein, in the latter part of the video in the Sony Mini DV Digital video cassette, Ex.P1/PW9, it can been seen (a) that on 25.10.2005, while sitting in his office, inter­alia in the presence of an aged lady staff member, PW4 Sh. S. N. Joneja (the Principal of the Institute) had interacted fairly with the accused, Sh. Surender Kumar Kataria; (b) that during the said interaction, the accused, Sh. Surender Kumar Kataria had (i) accepted/admitted receipt of Rs.4000/­ from PW12 Sh. Raj Kumar, albeit as part of an amount of Rs.8,000/­ receivable by him, from his alleged relative, Smt. Pushpa and (ii) the presence of the Rs.4000/­ in a drawer, within his knowledge; 58 (c) that in order to be fully convinced about the misconduct of the accused, PW4 Sh. S. N. Joneja (the Principal of the Institute) had matched the numbers of the currency notes of Rs.4000/­, recovered from/at the instance of the accused, Sh. Surender Kumar Kataria and (d) that even at the end of the proceedings, the reporter, Sh. Sanjay instance, the accused, Sh. Surender Kumar Kataria can be heard saying, "Mere bhai ka bhi ho gya hota". At another instance, the accused, Sh. Surender Kumar Kataria can be heard saying, "Seat nahin thi varna pehle hi din tumhara hona tha...". At another instance, the accused, Sh. Surender Kumar Kataria, can be heard talking about a list with name of the brother of PW12 Sh. Raj Kumar. The exact words spoken are, "...List mein naam hai tere bhai ka." In my assessment all these instances, clearly prove that the classroom interaction/conversation dated 25.10.2005 between the accused, Sh. Surender Kumar Kataria and PW12 Sh. Raj Kumar was regarding the admission of the brother of PW12 Sh. Raj Kumar.

57 The exact words used are "Idhar aa Raju".

58 The accused, Sh. Surender Kumar Kataria can be clearly heard saying the words, "Paise hain chaar hazaar rupaye, drawer mein rakhe hain as it is jaise aaye the...maine liye hue hain unse...room mein hi rakhe hue hain paise." Then, he can be heard saying the words, "Mein jaa kar le ke aaon Sir."

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 85 of 91 Chandra had confronted the accused, Sh Surender Kumar Kataria with legitimate questions but the accused had given wayward answers, somewhat defeating the stand taken by him before PW4 Sh. S. N. Joneja (the Principal of the Institute). In my assessment, the original sting video in the Sony Mini DV Digital video cassette, Ex.P2/PW9 and the video in the Sony Mini DV Digital video cassette, Ex.P1/PW9, represent the true state of affairs that had taken place, on 25.10.2005.

80. During the hearing of final arguments, the Ld. Advocate for the accused had submitted that the Sony Mini DV Digital video cassette, Ex.P1/PW9 and Sony Mini DV Digital video cassette, Ex.P2/PW9 should be ignored/sidelined by this Court because during the trial of this case, the State has not examined the reporter, Sh. Sanjay Chandra or Sh. Ajay Kumar, Producer of BAG Films, in order to prove the genuineness/authenticity of the said video cassettes and because the said video cassettes had remained in an unsealed condition with BAG Films, for over 18 months, during which time, they could have easily been tampered with/altered by the officials of BAG Films, including the reporter, Sh. Sanjay Chandra and the cameraman, Sh. Mukesh Kumar. The said submission of the Ld. Advocate for the accused is rejected in view of the reasoning given in the preceding paragraph and in view of the fact that the officials of BAG Films had absolutely no reason to tamper with/alter the said video cassettes. In my view, the only agenda officials of BAG Films had in this entire sequence of events, was to make an episode for their TV serial/show, 'Sansani' and once the said agenda had been met, their interest in PW12 Sh. Raj Kumar or the accused, Sh. Surender Kumar Kataria was over. This is clear (a) from the request made by the reporter, Sh. Sanjay Chandra to PW4 Sh. S. N. Joneja (the Principal of the Institute) in the end stages of the video in the Sony Mini DV Digital video cassette, Ex.P1/PW9 to specifically state the action being State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 86 of 91 taken against the accused, Sh. Surender Kumar Kataria and (d) from the non­ participation of Sh. Sanjay Chandra and Sh. Ajay Kumar, Producer of BAG Films, in the trial of this case. Since, in my view, the officials of BAG Films had no interest in this criminal case, I cannot accept that they had tampered with/altered with the Sony Mini DV Digital video cassette, Ex.P1/PW9 and Sony Mini DV Digital video cassette, Ex.P2/PW9, in order to assist the State in the investigation/prosecution of this criminal case.

81. Fourthly, the accused, Sh. Surender Kumar Kataria is liable to be convicted, as aforesaid because all throughout, he has lied through his teeth. 59 The notable instances of the accused, Sh. Surender Kumar Kataria, lying through his teeth, are recounted below:

(a) On 25.10.2005, before PW4 Sh. S. N. Joneja (the Principal of the Institute) the accused, Sh. Surender Kumar Kataria had admitted that he had accepted Rs.4000/­ from PW12 Sh. Raj Kumar and then stated that he had received the said sum as part of an amount of Rs.8,000/­ receivable by him, from his alleged relative, Smt. Pushpa but when asked to explain why he had taken his allegedly legitimate money, payable by Smt. Pushpa, through a student, PW6 Sh. Vikas Kumar (instead of taking it directly/himself), the accused, Sh. Surender Kumar Kataria had not given any legitimate answer. Later, when the reporter, Sh. Sanjay Chandra had posed the same question to the accused, Sh. Surender Kumar Kataria, he had said that he had taken the money through the student, PW6 Sh. Vikas Kumar because like his alleged relative, Smt. Pushpa, the student, PW6 Sh. Vikas Kumar lives in jamuna­ par/Shahdara and he wanted the money to go back to his alleged relative, Smt. 59 Here I must observe that while our criminal justice system permits a person, accused of a crime to exercise a right of silence, it does not permit the said person to conjure up falsehood after falsehood, in order to delay the discovery of truth.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 87 of 91 Pushpa, for it was short.60 Notably, this hypothesis, which had clearly come as an after­thought to the accused, Sh. Surender Kumar Kataria, on 25.10.2005, was not put to PW6 Sh. Vikas Kumar and PW12 Sh. Raj Kumar, when they had testified before this Court. It was never suggested to PW6 Sh. Vikas Kumar that he had taken Rs.4000/­ from PW12 Sh. Raj Kumar with the end goal of delivering them back to Smt. Pushpa. In the same vein, it was never put to PW12 Sh. Raj Kumar that the sum of Rs.4000/­ given by him, on 25.10.2005 was part of a loan transaction between the accused, Sh. Surender Kumar Kataria and Smt. Pushpa.

(b) On 25.10.2005, before PW4 Sh. S. N. Joneja (the Principal of the Institute) the accused, Sh. Surender Kumar Kataria had admitted that he had accepted Rs.4000/­ from PW12 Sh. Raj Kumar. But before this Court, the accused repeatedly made a false assertion/statement that on 25.10.2005, he had not accepted Rs.4000/­ from PW12 Sh. Raj Kumar, except at the one instance, when he had suggested to PW12 Sh. Raj Kumar that the amount of Rs.4000/­ exchanged between PW12 Sh. Raj Kumar and him, on 25.10.2005, was part of a loan taken by PW12 Sh. Raj Kumar from his alleged relative, Smt. Pushpa. In my ultimate analysis in this case, I have not made much of this freudian slip made by the Ld. Advocate for the accused during the cross­examination of PW12 Sh. Raj Kumar but I must say it does bring the cat out of the bag and exposes the falsity of the accused, Sh. Surender Kumar Kataria.

(c) The introduction of a new defence by the accused, Sh. Surender Kumar Kataria during the recording of his statement under Section 313 of CrPC, 1973 viz. that he had been falsely implicated in this case by PW12 Sh. Raj Kumar because he was dissuading PW12 Sh. Raj Kumar from approaching him regarding the admission of 60 This question/answer are visible at the fag end of the video in the Sony Mini DV Digital video cassette, Ex.P1/PW9.

State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 88 of 91 Sh. Rajesh Kumar Yadav through corrupt means and because he had once slapped PW12 Sh. Raj Kumar, in front of his colleagues. In my view, which I have already expressed once above, the said defence of the accused is absolutely false and a red herring (a) because it was never put by the accused during the cross­examination of PW12 Sh. Raj Kumar, (b) because the accused, Sh. Surender Kumar did not examine any of his colleagues, who had seen him slapping PW12 Sh. Raj Kumar and getting threatened by him (c) because the accused, Sh. Surender Kumar Kataria has not led any evidence of reporting any such incident to his superiors (at the relevant time) and (d) because in order to prove the said defence, the accused, Sh. Surender Kataria has relied upon an apparently planted witness viz. DW1 Sh. Satyawan.

82. In view of the aforesaid reasons, the accused, Sh. Surender Kumar Kataria is convicted qua the offences punishable under Section 7 and 13(1)(d) read with 13(2) of the PC Act, 1988.

83. Before parting with this judgment, it is clarified that while convicting the accused, Sh. Surender Kumar Kataria, as aforesaid, I have taken due note of (a) the law regarding appreciation of evidence, explained in paragraphs 13 to 19 of the judgment of the Hon'ble Supreme Court in M. Narsinga Rao v State of Andhra Pradesh, (2001) 1 SCC 691, (b) the judgment of the Hon'ble Supreme Court in Kishan Chand Mangal v State of Rajasthan, (1982) 3 SCC 466, wherein appropriate adverse view was taken against the accused, Kishan Chand Mangal, on account of scrappy and jumpy cross­examination of the witnesses of the State, (c) the ingredients of Section 7 of the PC Act, 1988, enumerated in paragraph 5 of the judgment of the Hon'ble Supreme Court in Neeraj Dutta v State, (2023) 4 SCC 731 State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 89 of 91 and (d) the ingredients of Section 13(1)(d) of the PC Act, 1988, enumerated in paragraph 6 of the judgment of the Hon'ble Supreme Court in Neeraj Dutta v State, (2023) 4 SCC 731.

84. Also, before parting with this judgment, it is expressly clarified that in my view, the testimonies of PW12 Sh. Raj Kumar, PW6 Sh. Vikas Kumar and PW4 Sh. S. N. Joneja are self­sufficient to convict the accused, Sh. Surender Kumar Kataria qua the offences punishable under Section 7 and 13(1)(d) read with 13(2) of the PC Act, 1988 and that while convicting the accused, Sh. Surender Kumar Kataria, as aforesaid, I have used the videos in the Sony Mini DV Digital video cassette, Ex.P1/PW9 and Sony Mini DV Digital video cassette, Ex.P2/PW9, only for the purpose of corroborating the testimonies of PW12 Sh. Raj Kumar, PW6 Sh. Vikas Kumar and PW4 Sh. S. N. Joneja.

85. Lastly, before parting with this judgment, it is expressly clarified that during the hearing of final arguments, the Ld. Advocate for the accused had not raised any challenge qua the sanction dated 13.03.2015, Ex.PW15/B and upon my own examination, I have not found any flaw in the testimony of PW15 Retd. IAS Manoj Kumar and the sanction dated 13.03.2015, Ex.PW15/B.

86. In Section 452 of CrPC, 1973 it is provided that upon conclusion of a trial, a Court can pass an apposite order in respect of a case property. Taking cue from the said provision of law, the State (acting through the SHO, PS ACB) is advised to get copies of the Sony Mini DV Digital video cassette, Ex.P1/PW9 and Sony Mini DV Digital video cassette, Ex.P2/PW9, made/prepared from FSL, Rohini or any other agency of the State so that in case, the said cassettes (which are State v Sh. Surender Kumar Kataria FIR No.51/2005 PS Anti­Corruption Branch Page 90 of 91 already 18 years old) do not work before a superior Court, the copies (duly supported by certificate under Section 65B of the Indian Evidence Act, 1872 of a government servant of FSL or any other agency of the State) are available for perusal by the superior Court.

87. The Reader is directed to supply a copy of this judgment to the convict, Sh. Surender Kumar Kataria, free of cost, against written acknowledgement.

88. The convict, Sh. Surender Kumar Kataria shall now be heard qua the quantum of sentence to be awarded to him, on 04.03.2024.

Digitally signed by

                                           JAY     JAY THAREJA

                                           THAREJA Date: 2024.02.27
                                                   16:32:00 +0530

Announced in open Court                            (Jay Thareja)
today on 27th February, 2024               Special Judge (PC Act)(ACB)­02,
                                        Rouse Avenue District Courts, New Delhi




State v Sh. Surender Kumar Kataria
FIR No.51/2005
PS Anti­Corruption Branch
Page 91 of 91