Allahabad High Court
Dr. Pankaj Kumar vs Cbi/Acb on 5 July, 2019
Equivalent citations: AIRONLINE 2019 ALL 1708, (2019) 2 ALLCRIR 1927
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 44 Case :- APPLICATION U/S 482 No. - 9258 of 2019 Applicant :- Dr. Pankaj Kumar Opposite Party :- Cbi/Acb Counsel for Applicant :- Vikas Srivastava Counsel for Opposite Party :- Gyan Prakash Hon'ble Ramesh Sinha,J.
1. Heard Sri Vikas Srivastava, learned counsel for the applicant and Sri Gyan Prakash, learned counsel appearing for C.B.I. and Sri Amrit Raj Chaurasia, learned A.G.A. for the State.
2. This application under Section 482 Cr.P.C. has been filed with a prayer to set aside the impugned order dated 16.07.2018 passed by Special Judge, Anti Corruption C.B.I., Court No. 1, Ghaziabad, wherein the discharge application moved by the appellant in special case No. 02 of 2017, registered under Sections 120B I.P.C. & 7, 13(2)r/w/13(1)D of P.C. Act, Ghaziabad in pursuance of Crime No./F.I.R. No. RC 1202016A0010/2016, dated 23.08.2016 has been rejected.
3. The brief facts of the present case are that the First Information Report was registered on 23.08.2016 in pursuance of a complaint dated 22.08.2016 to C.B.I./ A.C.B., Ghaziabad alleging that the applicant has demanded an illegal gratification of Rs.1,40,000/- from the complainant Umesh Chandra for handing over/delivery of the aforesaid auction of trees. The applicant was arrested by the police and thereafter, he applied for bail and his bail was granted by this Court. The chargesheet was submitted against the applicant along with co-accused R.S. Waldia who was his subordinate by the C.B.I. on 21.10.2016 for the offence under Sections 7 and 13(2) read with Section 13(1)(d) of Prevention of Corruption Act and Section 120B IPC. The applicant has moved a discharge application before the trial court which was rejected vide impugned order dated 16.07.2018.
4. Learned counsel for applicant has carved out the grounds for discharging the applicant as has been mentioned by him in para No. 40 of the affidavit filed in support of the present 482 Cr.P.C. application which is reproduced hereinbelow:
"I. That in his complaint dated 22.8.16 to ACB/CBI, Ghaziabad against Dr. Pankaj Kumar (Sr. DFM/MB), complainant Umesh Chandra was stated that on delay of file pending before Pankaj Kumar he met him in his office on 18.08.2016 (D-2). Contrary to this Umesh Chandra himself has requested vide his letter dated 09.08.2016 (D-7 page-3) to hand over 210 trees on 18.8.2016. Hence there is no question of delay here on 18.8.16. The issue of delay arises only after 18.8.16. Therefore, the whole allegation is fabricated and conspired.
II. That verification report produced in the chargesheet (D-3) in which conversation transcript presented is totally mismatched and differ from Transcript of Verification (D-8) and also transcript presented in PW-2 statement (page 3 &4). In fact, CBI has presented doctored voice recording and transcript later on.
III. That presented Transcript of verification is of 13.42 minutes in which the conversation between Umesh Chandra and applicant shown starting from 6:10 minute and end with 13:42 minutes, total conversation between two person here in 7:32 minutes. While PW-2 in his statement states that Umesh Chandra came out from the office of Dr. Pankaj Kumar 20 minutes later. An absolutely fake narrative by KM Yadav.
IV. That Transcript of Verification (D-8) were prepared and verified by Vipin Kumar Shukla (SSO/Accounts) and Ratan Kumar (SSO/Accounts) on 16.9.16, while CBI had already sent original sealed memory SD card to Director, CFSL, CBI, New Delhi on 04.09.16 (D-12). In fact C.B.I. has presented doctored voice recording and transcript in the chargesheet.
V. That moreover, the forwarding letter and certificate to Director, CFSL, New Delhi were also forged signed in the name of Sh. Ragvendra Vatsa, SP/CBI/ACB/GZB. While his stamp has been used all over (D-12).
VI. That as per available records the so called trap proceedings were never done in IQ, Head Post Office, Moradabad and Circuit House, Moradabad. Their rooms were never booked by CBI officials for any purpose between 22.8.16 and 23.8.16.
VII. That as per Umesh Chandra statement on (PW-1) page 8 para 2 he was not allowed to carry anything with him except mobile phone, spectacle and bribe money during proceeding for trap then how come Sony DVR was carried by him for voice recording.
VIII. That after handing over of bribe money to RS Waldia by Umesh Chandra, he led CBI inspector SK Pandey to RS Waldia immediately where he was sitting in the hall (D-9 Transcript, page 4). While Umesh Chandra (PW-1) in his statement states that after handing over tainted money to Rajendra Singh Waldia he went to meet Dr. Pankaj Kumar and then after coming out from Dr. Pankaj Kumar chamber he gave the predecided signal by scratching the head with both hands to indicate CBI team. Then CBI team members led by SK Pandey rushed to the hall to nab RS Waldia red handed PW-1 page 10 & 11). These two descriptions are misleading facts and fabricated by CBI.
IX. That as per PW-1 statement (on page 7 para 2) mention "the piece of paper so treated with phenolphthalein powder for the purpose of demonstration was signed by I and all present and same was kept in an envelope and all present including I made out signature on the envelope, marked as D-1 and sealed". While same event described by PW-2 statement (page 6 para 2) mention "the piece of paper so treated with phenolphthalein powder for the purpose of demonstration was signed by I and Sh. Upender Singh and same was kept in an envelope and all present including I, made our signatures on the envelope, marked as D-1 and sealed". Completely fictitious and fabricated story created by CBI.
X. That all over in the chargesheet (pretrap-memo, PW statements) it mentions that GC Notes were belonging to Umesh Chandra. Juxtaposed to this fact as per PW-1 statement (on page 7 para 3) S.K. Pandey, Inspector given GC note to Umesh Chandra (...and he gave 100 GC Notes of the denomination...). another fabricated facts described by CBI.
XI. That the whole team of CBI including S.K. Pandey was in Moradabad in the morning on 23.08.16 without any verification an FIR on merely a complaint lodged by Umesh Chandra.
XII That in the additional list of Article sample voice and voice recording of one Sukh Deo Sharma has been given which grossly shows planted story against the applicant."
5. Learned counsel for the applicant further argued that the trial court has failed to appreciate that the allegation made against the applicant cannot be taken to be true mere on the statement of co-accused R.S. Waldia. Moreover, there is no allegation of direct demand nor any recovery of bribe was made from the applicant
6. Learned counsel for C.B.I. has vehemently opposed the prayer for quashing of the impugned order and has drawn the attention of the Court towards the allegation made and evidence collected against the applicant in the chargesheet which is reproduced hereinbelow.
"VIII. That, investigation revealed that on 18.08.2016, when complainant Shri Umesh Chandra met to Dr. Pankaj Kumar, Sr. DFM, NR Moradabad for pursuing his pending file for processing to depute the ISA/Stock Verifier, accused Dr. Pankaj Kumar demanded illegal gratification equivalent to Rs.25% of auctioned amount of Rs.14,40,000/- but on incapability shown by Shri Umesh Chandra to pay so much of bribe amount, Dr. Pankaj Kumar reduced his demand of illegal amount (Rs.14,40,000/-) i.e. Rs.1,40,000/- approximately.
IX. That the investigation further revealed that since the complainant Shri Umesh Chandra did not intend to pay the said bribe, he gave his complaint dated 22.08.2016 in the office of CBI, ACB, Ghaziabad and allegations were verified. During verification on being given the reference of previous talk to Dr. Pankaj Kumar by complainant regarding demand of illegal gratification and incapability to pay Rs.1,40,000/- in lump sum, Dr. Pankaj Kumar agree to accept Rs.1,00,000 (one lakh) on that day and remaining amount later on. The conversation which took place between accused Dr. Pankaj Kumar and complainant Shri Umesh Chandra was recorded with Digital Voice Recorder in presence of independent witness.
X. That the investigation further revealed that on 23.08.2016, after completion of pre-trap formalities, during trap proceeding Dr. Pankaj Kumar directed the co-accused & one of his subordinate Rajendra Singh Waldia @ R.S. Waldia to accept the illegal gratification of Rs.1,00,000/- on his behalf from complainant Shri Umesh Chandra. The conversation which took place between accused persons and complainant was recorded with Digital Voice Recording in presence of independent witnesses.
XIV. The voice identification of both the accused persons in questioned conversation which was recorded during verification and trap proceeding have been done by witnesses who have identified the voice of both the accused persons in questioned conversations. The report of CFSL for voice identification/matching Waldia with voice recording during verification and trap proceeding is awaited and shall be submitted on receiving the same.
XV. In the aforesaid manner, Dr. Pankaj Kumar, the then Senior Divisional Finance Manager, Northern Railway, Moradabad in connivance with co-accused Rajendra Singh Waldia, by corrupt and illegal means and by abusing his aforesaid capacity as a public servant demanded an illegal gratification to the tune of Rs.1,40,000/- from Shri Umesh Chandra on 23.08.2016 and on incapability shown by Shri Umesh Chandra to pay so much amount in lump sum, Dr. Pankaj Kumar agreed to accept illegal gratification of Rs.1,00,000/- on that day and remaining amount later on Dr. Pankaj Kumar in connivance with co-accused Rajendra Singh Waldia further directed to Rajendra Singh Waldia, Senior Section Officer (Accounts), NR Moradabad (Sub-ordinate of Dr. Pankaj Kumar) to accept the illegal gratification of Rs.1,00,000/- on his behalf from the complainant.
XVI. That, in furtherance of said criminal conspiracy, Rajendra Singh Waldia, Senior Section Officer (Accounts), NR Moradabad, accepted the illegal gratification of Rs.1,00,000/- on behalf of Dr. Pankaj Kumar from the complainant Shri Umesh Chandra while knowing the said Rs.1,00,000/- to be illegal gratification.Thus, the aforesaid acts of omission and commission on the part of Dr. Pankaj Kumar, the then Senior Divisional Finance Manger, Northern Railway, Moradabad and Shri Rajendra Singh Waldia the then Senior Section Officer, Northern Railway, Moradabad, constitute offences punishable under Sections 120-B of IPC and Sections 7 & 13 (2)r/w 13(1)(d) of P.C. Act, 1988."
7. After having heard the learned counsel for the parties present, perused the impugned order as well as material brought on record, it transpires that the trial court is in progress and the charges has been framed against the applicant and two prosecution witnesses i.e. P.W.1 and P.W.2 have also been recorded and the trial court after finding evidence, prima facie, case against the applicant found that there is sufficient material available on record which necessitates his trial has rejected the discharge application. At this stage it would be not proper to either quash the impugned order or the proceedings against the applicant, as the evidence collected by the C.B.I. regarding the allegation made against the applicant and the co-accused R.K. Waldia including documentary as well as electronic evidence i.e. voice recording of the conversation between the applicant and the co-accused a trap was laid down. It is hardly of any significance that no money was recovered from the applicant whereas from the trap laid down against the co-accused R.K. Waldia Rs.1,40,000/- was recovered. The evidence which has been collected during course of investigation, prosecution should be allowed to adduce the evidence against the applicant during course of trial to prove its case against the applicant and the co-accused.
8. In this regard the judgment of the Apex Court in Shoraj Singh Ahlawat and others Vs. State of U.P. and others reported in 2013 SCC (11) 476 it is to be taken note of that while framing charge the Court is required to evaluate the material or document to decide whether facts emerging therefrom, taken at their face value, would disclose the existence of all the ingredients constituting the alleged offence. At this stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is ground for presuming that the accused had committed offence but it should not evaluate sufficiency of evidence to convict the accused even if there is grave suspicion against the accused and it is not properly explained that accused might have committed offence that framing of charges against the accused is justified. It is only for conviction of accused that material must indicate that accused had committed offence but for framing of charges, if material indicates that accused might have committed offence then framing of charges is proper and material brought by the prosecution must believed to be true and their probative value cannot be decided at this stage. This Court should not act at mouthpiece of prosecution and it is impermissible to have robbing at the stage of framing charges.
9. Further, the Apex Court in the case of Kamal Shivaji Pokarnekar Vs. State of Maharashtra reported in AIR 2019 SC 847 wherein held that correctness of allegations against the accused has to be decided only in trial and criminal complaints cannot be quashed at initial stage of issuance of process.
10. After perusal of the evidence collected during investigation by the C.B.I, it cannot be said that either no offence is made out against the applicant or the trial of the applicant is wholly unwarranted. Hence, in my opinion the impugned order passed by the trial court rejecting the discharge application of the applicant does not require any interference by this Court in its inherent power under Section 482 Cr.P.C.
11. The application lacks merits and is, accordingly, dismissed.
Order Date :- 5.7.2019 Shubhankar