Delhi District Court
Cbi vs . M C Tyagi on 3 July, 2007
1
IN THE COURT OF SH G P MITTAL SPECIAL JUDGE;
DELHI
CBI VS. M C TYAGI
RC 57 (A)/01/CBI/ACB/N.D.
CC NO. 48/02
JUDGMENT
Accused MC Tyagi has been sent up to this court to face trial for the offence punishable U/s. 7 and 13(2) r/w Section13(1) (d) of the Prevention of Corruption Act 1988.
2 Story of the prosecution unfolds like this: One Shri Surender Kumar Gera had taken financial assistance of Rs. 4.5 lacs from Uttar Pradesh Financial Corporation (UPFC) sometimes in the year 1985 to establish a factory in the name and style of Vijay Industries at B 55 Sector 10, NOIDA. There was default in payment of loan. His factory was therefore, auctioned by the UPFC for non payment of the dues outstanding against him. According to the complainant in the year 2001 one Sh. Tripathi and one Sh. M C Tyagi who were working as Inspectors with UPFC were constantly approaching him. They had threatened him to get attachment of his house and to send him to prison on the ground that he had not returned the loan of 2 UPFC. They demanded illegal gratification of Rs.1.5 lacs to get the file closed. When the complainant showed his financial difficulties they told him to pay a bribe of Rs. 5,000/- in the first instance. This amount would be used in bribing the people in the head office and bringing them round and then the matter would be settled. The complainant told them that he would pay Rs.1,000/- only and shall pay Rs. 4,000/- lateron.
3 A day prior to making of the complaint dt. 22.8.01 Ex PW5/A Sh. Tyagi telephoned the complainant and told him that either of two of them (Sh. Tyagi or Sh. Tripathi) would come a day after to collect the amount of Rs. 1,000/-. On 23.8.01 the complainant approached the CBI alongwith the complaint Ex PW5/A and 10 GC notes of Rs.100/- each. RC 57(A)/2001 was registered by CBI (ACB)/N Delhi and Inspector S C Bhalla of CBI was directed to investigate the matter.
4 Inspector S C Bhalla made enquiries from the complainant; independent witnesses Naresh Kumar and Brahm Dutt working with Delhi Development Authority were summoned and arrangement for laying the trap was made. Phenolphthalein Powder was applied on 10- currency notes 3 of Rs.100/- each produced by the complainant; its numbers were noted down on the Handing Over Memo Ex PW5/B. The demonstration of reaction of phenolphthalein powder with colourless solution of Sodium Carbonate was made for the benefit of the independent witnesses. The treated GC notes were kept in the pocket of the complainant with direction to hand over the GC notes to Sh. Tyagi or to Sh. Tripathi on their specific demand. Independent witness Naresh Kumar Sharma was asked to be shadow witness and remain as close to the complainant as possible, hear the conversation and see the passing of the bribe amount. He was directed to give the signal after completion of the transaction by scratching his head with both the hands.
5 A KCR-360, Transmitter, a Micro Cassette Recorder and two Audio Cassettes TDK (big) and one Micro Cassette(Sony) were also arranged. The working of the equipment was explained to the complainant and to the witnesses. It was decided that Mic cum Transmitter will be placed at the appropriate place to record the conversation that may take place between the accused and the complainant.
46 The trap team reached the house of the complainant. Some of the members of the trap team took position outside the house of the complainant whereas some members including two independent witnesses went inside the house of the complainant. At about 4PM a telephone call was received by the complainant from Sh. M C Tyagi that he would be reaching his house in 20/25 minutes. Shadow witness Naresh Kumar took position behind the curtain in the drawing room wherefrom he could peep inside and over hear the conversation going on inside the drawing room. The complainant and his wife sat in the drawing room and other members who had entered the house of the complainant took position at other places.
7 At about 4.25 PM accused Sh. M C Tyagi entered the house. He was received by the complainant and sat inside the drawing room. After sometime accused M C Tyagi demanded bribe of Rs.5,000/-. The complainant told him that he had arranged Rs.1,000/- only and that he would pay Rs. 4,000/- lateron. At about 4.45 PM the shadow witness gave the pre-appointed signal. The trap team swooped towards the drawing room. Independent witness Naresh Kumar pointed out towards the accused as the person who had accepted the bribe. Accused M C Tyagi was secured by 5 his wrists by Inspector R S Bedi and Sub Inspector Prem Nath. On being questioned, the accused informed that Sh. B N Tripathi was working as Deputy Manager, (Finance) and that he himself was working as Assistant Grade I. Independent witness Brahm Dutt recovered the bribe amount of Rs.1,000/- from the left side pocket of the shirt of accused. The number of GC notes were tallied with the one as mentioned in the handing over memo Ex PW5/B. Washes of the right hand, left hand and inner lining of the left front pocket of the shirt of the accused were taken which turned pink when dipped in the Sodium Carbonate Solution. They were separately sealed in glass bottles and respective paper slips were pasted thereon.
8 Inspector R S Bedi and SI Prem Nath were sent to the office of UPFC, NOIDA to get the loan file relating to Vijay Industries, B 55, Sector 10, NOIDA. Rough site plan was prepared and the accused was arrested at the spot. During investigation washes were sent for chemical examination. The chemical Examiner gave positive test for phenolphthalein powder and sodium carbonate vide his report Ex PW1/A. Sample voice of the accused was taken and the recorded conversation of the accused was sent for voice spectrographic analysis. Dr. Rajinder Singh found the 6 questioned voice of the accused to be tallying with his specimen voice in respect of their formant frequency distribution, slopes of formants, plosive gaps, inter desk formant acoustic density pattern and other general linguistic and phonetic features. On completion of the investigation challan was filed in the court.
9 A charge for the offence punishable U/s 7, 13 (2) r/w Section 13 (1) (d) of the P C Act, 1988 was framed against the accused. The accused pleaded not guilty to the charge and thus, the prosecution was directed to produce its evidence.
10 In order to prove its case, the prosecution has examined as many as 11 witnesses. PW1 Sh. K S Chabra was working as Senior Scientific Officer and Asstt. Chemical Examiner in CFSL at the relevant time. He had examined three sealed glass bottles containing the washes with the marking RHW, LHW and LSUPW. As per his report Ex PW1/A, the solution contained in all the three sealed bottles had given positive test for presence of phenolphthalein and Sodium Carbonate During cross examination the witness denied the suggestion that since CFSL was under the 7 administrative control of CBI he had acted as per the instructions of CBI or that his report was false.
11 PW 2 Dr. Rajinder Singh, Senior Scientific Officer Cum Asstt. Chemical Examiner who conducted the voice spectrographic analysis of the questioned voice and sample voice of the accused opined that the questioned voice marked 1a, 1b, 1c were similar to specimen voice sample marked S1 S2 and S3 in respect of their formant frequency distribution, slopes of formants, plosive gaps, inter desk formant acoustic density pattern and other general linguistic and phonetic features. During cross examination the witness admitted that he had not done any course in voice test. He stated that the voice test was probable and accuracy was more than 99%.
12 PW 3 Sh. R N Trivedi was working as Managing Director of UPFC in August, 2002. He proved sanction Ex PW3/A granted by him for prosecution of the accused. He stated that he had gone through the material placed on the record before him by the CBI. He deposed that in his capacity as Managing Director of UPFC he was competent to remove an official of the level of Assistant Grade I. 8 13 PW4 Sh. Rakesh Kumar is a formal witness. The sample voice of accused M C Tyagi was taken in his presence on an audio cassette in the CBI office on 11.4.02. He proved memo Ex PW4/A prepared by the CBI officer in this regard.
14 PW5 Sh. Surender Gera, complainant is the star witness of the prosecution. He corroborated the prosecution version in broad particulars and deposed that about 10 years back one Sh. Tripathi and one Sh. Tyagi had come to his house in August, 2001. He deposed that accused Sh. Tyagi first of all, talked about the settlement but he did not agree. On 21.8.01 both Sh. Tripathi and Sh. Tyagi demanded a bribe of Rs. 1.5 lacks. They asked him to make the payment in instalments and pay Rs. 5,000/- in the first instance. On 22.8.01 he received a telephonic call from Sh. Tyagi that they would be coming in the morning to collect the money. On 23.8.01 he went to the CBI office and lodged complaint Ex PW5/A. He deposed about the pre trap and post trap proceedings conducted by the IO, demand and acceptance of bribe of Rs. 1,000/- recovery of the tainted GC notes from the front left pocket of the shirt of accused M C Tyagi. The audio cassette Ex P 14 was played to this witness. The witness stated that the two voices in the beginning of the cassette are voices of the two independent witnesses who 9 had been called at the CBI office, thereafter, the conversation was between him, his wife and the accused. He identified the voice of his wife, accused M C Tyagi and his own voice in the cassette Ex P11 at different portions mark A to A. He stated that rest of the portion of the cassette was not audible.
15 PW6 Sh. Avdhesh Kumar Srivastava, Senior Manager, Law of UPFC is also an important witness in the sense that he gave the procedure for recovery when a person defaults in repayment of loan. He deposed that whenever a person who has taken a loan makes a default, a notice is issued to that person. If the payment is not made inspite of the notice, a notice U/s 29 of State Financial Corporation Act is issued. If the payment is still not made the property against which loan is given is attached and sold. He deposed that in the case of M/s Vijay Industries, the property was sold by UPFC. Even after the sale of property some balance was due and Recovery Certificate was issued against the owners of M/s Vijay Industries and the money was to be recovered as land revenue. He testified that the Recovery Certificate is sent to District Magistrate, UP and then to the Deputy Commissioner of Delhi. There is one time payment scheme in the UPFC. Under this scheme if 10 the borrower makes the entire payment in the lump sum some concession is given by the Corporation to such borrower. He further deposed that in August, 2001 Sh. M C Tyagi and Sh. B N Tripathi were working in the Finance Branch of UPFC NOIDA. The file of Vijay Industries was being dealt with by them. They were not in a position to give any concession to Vijay Industries. The decision on one time settlement is taken by a settlement committee which is headed by the Managing Director of the Corporation. He stated that there was no noting in the file of Vijay Industries to show that any concession was given to this party. The job of Sh. M C Tyagi was to persuade the party to make payment and to see the financial status of the party. During cross examination, the witness stated that there were dues amounting to Rs. 42 lacks against M/s Vijay Industries. He also admitted that Sh. M C Tyagi and Sh. Tripathi were also authorised to go in the field to contact the borrower. If any recovery was made by them they had to deposit the same in the Corporation.
16 PW7 Sh. Brahm Dutt is another independent witness to the trap. He corroborated the version of the prosecution regarding pre trap proceedings and recovery of Rs. 1,000/-
11from the pocket of the shirt of the accused and comparison of the number of the currency notes.
17 PW8 Sh. B N Tripathi was working as Deputy Senior Manager in UPFC. Infact, the complainant had lodged complaint against this witness also. However, the prosecution could not find any evidence to file a challan against him. He proved report dt. 17.10.95 Ex PW8/B. He deposed that Recovery Certificate against accused was sent to Distt. Magistrate, Ghaziabad but the same could not be served. Thereafter, the Recovery Certificate was sent to Deputy Commissioner, Delhi which was served. After service of Certificate, complainant Mr. Surender Gera of M/s Vijay Industries came to the office for settlement. Mr. Gera showed his willingness to give proposal for settlement but no proposal in writing was given by him. Again Mr. Surender Gera came to the office and deposed that he can deposit the amount of earnest money in two instalments of Rs. 5,000/- each. On 23.8.01 Sh. Surender Gera telephoned him in the office and told him that he should collect a sum of Rs. 5,000/- from his office. He disclosed the same to Sh. Avdhesh Kumar Srivastava, his Incharge who told him that accused M C Tyagi may be sent to collect the amount. He told the accused that he should go to the office of M/s Vijay 12 Industries and collect Rs. 5,000/- and deposit the same in the office and issue a receipt. He deposed that the accused went to the office of Sh. Gera and reported that no amount was paid by Sh. Gera. He stated that the settlement proposal used to be considered by a Committee consisting of Chairman and four other members of UPFC and Deputy General Manager. He and the accused were not the members of the Settlement Committee. He stated that complainant Surender Kumar Gera of M/s Vijay Industries had not given any proposal in writing for settlement nor he offered to pay Rs. 10,000/- as earnest money.
18 PW9 Sh. Naresh Kumar Sharma is the shadow witness. He also corroborated the version of the prosecution regarding recovery of Rs. 1,000/-. He deposed that accused M C Tyagi during the conversation was demanding Rs. 5,000/- as per previous talks held between them but Surender Gera had told him that he could arrange only Rs. 1000/- but the accused insisted that there was talk of Rs. 5,000/-. After sometime the wife of the complainant came and told him by gesture regarding the transaction of money and he flashed the signal to the CBI team. The statement of this witness is slightly at variance to the case of the prosecution in as 13 much as this witness has himself not seen the transaction of actual passing of money.
19 PW10 Inspector Parveen Ahlawat of CBI is the Investigating Officer of this case. He had taken specimen voice of MC Tyagi in presence of independent witness Rakesh Kumar. He prepared the transcript of the conversation Ex PW5/E, recorded statement of some witnesses and filed the challan after obtaining sanction for prosecution.
20 PW11 Inspector S C Bhalla is the Trap laying officer. He gave the detailed account of pre trap and post trap proceedings and recovery of the tainted money of Rs. 1,000/- from the left front side pocket of the pant of accused.
21 On close of the prosecution evidence the accused was examined U/s 313 Cr PC. The accused denied that he had made any telephonic call at about 4 PM to the complainant (on 23.8.01). He denied that he had demanded a bribe of Rs. 5,000/- or that the complainant had informed him that he had been able to arrange only Rs. 1,000/-. The accused 14 took up the plea that he had told the complainant that he had been sent by his boss to collect Rs. 5,000/- as token money for proposal to start process for recovery of balance outstanding loan against him. The complainant gave him some money and asked him to count the same. When he counted it was found that instead of Rs. 5,000/- it was only Rs. 1,000/-. He told the complainant that he had been sent to collect Rs. 5,000/- as earnest/token money for proposal but it was only Rs.1,000/- and he wuld not accept it. The complainant told him to keep the said amount of Rs. 1,000/- on the assurance that his wife was bringing Rs. 4,000/- from another room. On this assurance he kept Rs. 1,000/- in his pocket as requested by him. He thus took up the plea that he had not accepted any bribe and had been falsely implicated in the case. Regarding the conversation which was transcribed as Ex PW5/E, the accused stated that it was not the exact transcription of the conversation which took place between him and the complainant. It was the manipulated transcription and that is why it was prepared after 8 months of the incident. He took up the plea that the true transcription has been concealed by the CBI. The accused further took up the plea that the sanction for prosecution was granted by PW3 Sh. R N Trivedi the then Managing Director of UPFC under pressure of the CBI.
15The accused explained that SDM Preet Vihar had summoned the complainant to repay the balance loan amount failing which arrest warrants shall be issued against him and process of attachment will be started. Under fear of arrest and attachment the complainant attended the office of UPFC and requested for acceptance of his proposal towards recovery of balance amount of loan taken by him in the name of M/s Vijay Industries. The accused stated that he was issued an appreciation letter on 22.8.01 for his commendable efforts for recovery of loan from defaulters like the complainant. The complainant is involved in criminal cases and had given his bogus residential address. No noting was requested to be made by him while leaving to collect the earnest money from any party. Thus, the accused stated that he had been falsely implicated in the case and is entitled to acquittal.
22 The accused examined Sh. Ram Singh who had taken a loan of Rs. 3,32,000/- from UPFC in 1983. There was an outstanding amount of Rs. 33 lacs against him. UPFC auctioned his factory situated at Sikandarabad Industrial Area, UP. Still there was some outstanding amount against him. In August, 1999 accused M C Tyagi came to his residence and told him that there is one time payment 16 of loan in UPFC and he could settle his loan amount. He attended the office of UPFC at NOIDA and had negotiations with Senior Officers. The officers told him to deposit atleast Rs.15,000/- as token money and thereafter his case shall be put up before the Committee at Kanpur. After 4/5 days, Sh. M C Tyagi came to his residence. He handed over a sum of Rs. 15,000/- to him. Sh. Tyagi handed him over the receipt on the next day. After a month, he received a letter from UPFC regarding settlement of loan permitting him to pay the amount in instalment of Rs.15,000/- each.
23 DW2 Sh. C P Singh was examined by the accused to prove the procedure for recovery of loan. He stated that if the amount is not fully recovered after sale of hypothecated asset they try to motivate the party to go for one time settlement and they extend certain concessions. He stated that the visit of the field staff without written direction is not illegal. He also stated that whenever the field staff gets any amount its receipt is issued lateron as the field staff does not keep the receipt book. He stated that accused M C Tyagi had worked under him in the year 1983-84. During cross examination the witness stated that if a party pays 17 token money and is ready for settlement, the settlement proceedings are initiated. Whenever any letter is written to a defaulter party a noting is prepared. If settlement proceedings fail and no token money has been received no noting is made regarding failure of one time settlement. 10 to 15% of the amount due may be treated as a token money just to see the bonafide of the party and judge if the party is interested in the one time settlement or not.
24 I have heard Sh. Rajesh Malhotra, Senior public Prosecutor for the CBI and Sh. R N P Sinha Advocate, Ld. Counsel for the accused and have perused the record.
25 It has been urged by the Ld. Sr. Public Prosecutor that the accused has admitted the acceptance of the tainted money of Rs.1,000/- and the only question to be seen is whether the explanation offered by the accused that Rs. 1,000/- was accepted by him as part of the token money and kept in the pocket as the balance amount of Rs. 4,000/-was to be brought by the wife of the complainant from the other room is correct or not. It has been urged that a presumption U/s 20 (1) of the PC Act arises against the accused as he had accepted the amount of Rs.1,000/- as a motive or reward as 18 mentioned in section 7 or in any case without consideration. In support of his contention the Learned Senior Public Prosecutor has placed reliance on Chaturdass Bhagwan Dass Patel Vs. State of Gujarat, AIR 1976 Supreme Court 1497, B Noha Vs. State of Kerala and another, 2006 (4) RCR (Criminal) 938, A Abdul Gaffar Vs. State of Kerala, 2004 (1) RCR, Criminal 318.
26 On the other hand, the Ld. Defence counsel has drawn my attention to page 5 of the Report U/s 173 Cr PC where it is categorically mentioned that accused was not in a position to waive off the loan dues pending against Sh. Surender Kumar Gera but his report could affect the decision of Settlement Committed meant to waive off the loan dues. It has been urged that there could not have been any motive available to the accused to demand any illegal gratification or for the complainant to pay any amount when as per the case of the prosecution the accused was not in a position to give any benefit in the loan. The Ld. Defence Counsel has also referred to the statement of PW6 Sh. Avdhesh Kumar Srivastava and has urged that the decision of one time settlement is taken by the Settlement Committee headed by the Managing Director of the Corporation.
1927 It has been urged that accused M C Tyagi had been assigned the work of collecting the token money or dues of UPFC. As per procedure, accused M C Tyagi like any other field staff could collect the amount offered by any party. PW8 Sh. B N Tripathi has admitted that the accused was sent to collect the amount of Rs. 5,000/- from complainant Surender Gera with the permission of Branch Incharge and thus, it cannot be said that any illegal gratification or bribe was accepted by the accused. Rather, the amount was paid to him by the complainant as token/earnest money for one time settlement.
28 It has been urged that the conversation between the complainant and the accused which took place on 23.8.01 at the time of the incident was recorded on the micro cassette recorder as well as on the normal cassette recorder through transmitter but its transcript was prepared after 8 months. The transcript has been prepared only from one source. In between this period of 8 months the conversation has been manipulated and the same cannot be relied upon particularly, in view of the admission of the complainant that the conversation was not complete.
2029 It has been submitted that the FIR Ex PW10/A was registered at 12 noon before the start of the pre trap proceedings and arranging independent witnesses which is not normal and creates doubt in the case of the prosecution. Non production of the wife of the complainant who was present at the time of the alleged transaction, it is argued is also fatal to the case of the prosecution. It has been submitted that mere recovery of tainted money from the accused cannot be considered as a circumstance pointing to the guilt of the accused. In support of his contentions, the Ld. Defence Counsel has heavily relied upon Suraj Mal Vs. The State, AIR 1979 SC 1408, Mohmood Khan Mahboob Khan Pathan Vs. State of Maharashtra, 1997 (1) Crime 186 (SC) , Yashwant Nanubhai Pingle Vs. State of Maharashtra, 1999 Criminal Law Journal 1270.
30 It has further been urged that in trap cases complainant is in no better position than an accomplice and therefore, corroboration to the testimony of the complainant is required in all material particulars before placing reliance on the testimony of the complainant. Reliance is placed upon Panna Lal Damodar Rathi Vs. State of Maharashtra, AIR 1979, SC, 1191. The Ld. Defence Counsel also placed reliance on Doodh Nath Pandey Vs. State of UP, AIR 1981 21 SC 911 in support of the contention that defence witnesses are entitled to equal treatment with those of the prosecution.
31 First of all, I shall deal with the contention raised by the Ld. Defence counsel that the accused was not a member of the settlement Committee and therefore, was not in a position to give/get any benefit to the complainant and thus the complainant could not have been compelled or persuaded to pay any bribe to the accused. Of course, this is true that the accused was not a member of the Settlement Committee. Infact, it was never the case of the prosecution that the accused was a member of the Settlement Committee or that he was competent to extend any pecuniary advantage to the complainant. In the complaint Ex PW5/A itself it has been mentioned that it had been represented to the complainant by Sh. M C Tyagi and Sh. Tripathi that they would get some help from the head office on payment of some illegal gratification and would get the matter settled. In any case, it is not material whether the public servant who lures a person to give any gratification is in a position to get any benefit for the said person or not. In Chaturdass Bhagwan Dass Patel Vs. the State of Gujarat, AIR 1976 SC 1497, it was held that it is 22 enough if the public servant who accepts the gratification, takes it by inducing a belief or by holding out that he would render assistance to giver (with any public servant) and the giver gives the gratification under that belief. It is immaterial if the public servant receiving the gratification does not intend to do the official act, favour or forbearance which he holds himself out as capable of doing. The complainant in his statement as PW5 has categorically stated that in August, 2001 Mr. Tripathi and one Mr. Tyagi had come to his house. First of all, accused Mr. Tyagi had talked about the settlement but he did not agree. On 21.8.01 Mr. Tripathi and Mr. Tyagi demanded a bribe of Rs.1.50 lacs. Under these circumstances, it would be immaterial if accused M C Tyagi or for that matter Sh. B N Tripathi were in a position to extend any benefit to the complainant or not. But the complainant was under the belief that if he did not yield to the demand he may be in trouble.
32 There is no dispute about the preposition of law as laid down in Suraj Mal Vs. The state (Supra), Mohmood Khan Mahboob Khan Pathan Vs State of Maharashtra (Supra) and Yashwant Nanubhai Pingle Vs. State of Maharashtra (Supra) that mere recovery of tainted money/powdered 23 currency notes is not sufficient to hold the accused guilty for accepting illegal gratification or to draw a presumption U/s 20 (i) of the P C Act. A close reading of Section 20 (i) would show that it has first to be established that the accused had accepted or obtained any gratification as a motive or reward as mentioned in Section 7 or as the case may be is without consideration or for a consideration which he knows to be inadequate. As per Section 7 what is culpable is any gratification other than a legal remuneration as a motive or reward for doing or for bearing to do any official act etc. Therefore, if the accused is able to explain the presence of tainted money with him it would be immaterial that the tainted money has been passed on by the complainant or somebody on his behalf. In Suraj Mal Vs. The state, AIR 1979 SC 1408 a deal was struck to pay a bribe of Rs. 1,000/- to the accused persons. Out of that an amount of Rs. 350/- was to be paid in the first instance ie Rs. 150/- was to be paid to accused Davinder Singh and Rs. 100/- each to accused Ram Narain and accused Suraj Mal. Accused Ram Narain was acquitted on the ground that there was no sufficient evidence against him and was given benefit of doubt. Suraj Mal and Davinder Singh were convicted by the Ld. Special Judge. On appeal the Hon'ble High Court acquitted Davinder Singh on the ground that 24 the sanction was not valid. Appellant Suraj Mal took the matter to the Hon'ble Supreme Court and on appreciation of evidence it was found that where witnesses had given two inconsistent statement in their evidence either at one stage or at two stages, the testimony of such witnesses become unreliable and unworthy of credence. It had further been found that accused Ram Narain had been acquitted on the ground that the evidence against accused Ram Narain was not credible. It was held by the Hon'ble Supreme Court that if the witnesses drew no distinction in the examination in chief regarding acceptance of bribe by Ram Narain and by the appellant and if the witnesses were to be disbelieved with respect to one they could not be believed with respect to the other. In Mahboob Khan Pathan Vs. State of Maharashtra (Supra) the accused had shown by preponderance of probability that the amount of Rs. 60 had been lawfully collected. Similarly, in Yashwant Nanubhai Pingle Vs. State of Maharashtra (Supra) it was held that the testimony of the complainant and other witnesses regarding demand of money and the conduct of the complainant was such that he had no regard for truth. It was under such circumstances that mere recovery of powdered GC notes was not taken as a circumstance which may point to the guilt of the accused.
2533 As far as the instant case is concerned, it is admitted case of the parties that the complainant was in default of clearing the dues of UPFC and his factory was auctioned to clear the dues. The explanation given by the accused to accept the amount of Rs. 1,000/- is that he had been called by the accused to pay him the token money of Rs. 5,000/- to process his case for settlement. Of course, the accused need not prove this defence beyond shadow of reasonable doubts and it would be sufficient for the accused to prove his defence by preponderance of probability. The CBI had taken into possession the file (D-11) Ex PW10/DA relating to the loan of M/s Vijay Industries. In addition, the prosecution has examined PW3 Sh. R N Trivedi, the then Managing Director of UPFC, PW6 Sh. Avdhesh Kumar Srivastava, Senior Manager of UPFC at NOIDA at the relevant time and PW8 Sh. B N Tripathi. In addition, the accused has examined DW2 Sh. C P Singh, who was also working in UPFC at sometime. The case of the accused as stated above is that he had gone to the house of the accused to collect Rs. 5,000/- as token money/earnest money to process the case of the complainant for settlement but no reliable evidence was produced by the accused to infer that he had been authorised to collect any such amount from the complainant 26 or that there was such a procedure. A perusal of the file Ex PW10/DA would show that there is no noting in the file after 14.5.99. There are nine notings on page one of the note sheet between the period 5.11.94 to 14.5.99. As per the first note dt. 5.11.94 made by the accused a letter had been put up regarding the dues payable by the loanee for signatures of the Regional Manager. Vide note dt. 17.11.94 a letter was received from the Law Department of UPFC. It had been mentioned that the details of the personal property of the loanee were not known and a recovery certificate was forwarded to the head office for further action. Similarly other notings were made from time to time. Thus, if the complainant had really been called in the office of UPFC and had been persuaded for one time settlement there would have been some noting in the file.
34 Though, the accused produced DW 2 Sh. C P Singh who had retired as Incharge from the Recovery Cell of UPFC to prove that the field staff can visit a loanee without written direction and that the receipt of the amount accepted by the field staff in cash can be issued lateron. But, no question was put on this aspect to PW3 Sh. R N Trivedi who was the Managing Director of UPFC at the relevant time and was the best person to tell the procedure. PW8 Sh. B N Tripathi 27 (who is a named accused in the FIR) of course, tried to help the accused by stating that on 23.8.01 Sh. Surender Gera had telephoned him that he should collect a sum of Rs.5,000/- from his office, he disclosed this fact to Sh. Avdhesh Kumar Srivastava (PW6) who was his Incharge who told him that accused M C Tyagi be sent to collect the amount. He accordingly, asked accused M C Tyagi to go to the office of M/s Vijay Industries to collect Rs. 5,000/-. PW6 Sh. Avdhesh Kumar Srivastava, had been examined by the prosecution to prove the procedure about the action taken against a defaulter with regard to payment of the outstanding dues. The witness was cross examined on behalf of the accused with regard to the extent of the dues outstanding against Vijay Industries but no question was asked if any permission was taken from him to send accused M C Tyagi to the office of M/s Vijay Industries to collect Rs. 5,000/-. Much reliance cannot be placed on the testimony of PW8 who was a named accused in this FIR and he had been declared hostile by the prosecution.
35 The accused had examined DW2 Sh. C P Singh who had joined UPFC in 1976 and was posted in NOIDA from June, 28 2005 to June, 2006. This is true that a defence witness is entitled to the same value and treatment as a prosecution witness but I am not inclined to place much reliance on his testimony in the absence of any document that any field staff of UPFC can accept any amount from the party at his residence or his office even without any receipt and can leave office of UPFC for this purpose without making any noting in this regard particularly, when no such question has been put to PW3 Sh. R N Trivedi, Managing Director of UPFC in this regard. It is highly improbable that any Govt. department or Govt. Agency would authorise any employee of the level of an Assistant to collect any money from any defaulter without any receipt because instead of solving the problem of getting outstanding dues it may create more problems of leveling false and true allegations.
36 Of course, the transcript Ex PW5/E of the audio tape was got prepared after eight months of the incident; it is also true that the complainant has admitted on hearing the audio cassette during cross examination that it does not contain the entire conversation which had taken place on the date of the transaction but his statement has to be read alongwith his examination in chief when he had clearly stated that the audible portions have been marked by him 29 and that the portions which are not audible have not been marked in the transcript Ex PW5/E. This would show that PW5 Sh. Surender Gera is a truthful witness and had marked the portions in the transcript from the audio cassette which were clearly audible. The prosecution had examined PW2 Dr. Rajinder Singh who had conducted the Spectrographic analysis of the questioned and sample voice of the accused and had opined that the questioned and the sample voice relate to the same person because of their formant frequency distribution, slopes of formants, plosive gaps, inter desk formant acoustic density pattern and other general linguistic and phonetic features. The witness admitted during cross examination that he does not have any Diploma or Certificate in the science of voice testing but his testimony that he had examined more than 500 cases of voice identification involving voice of more than 5000 persons was not challenged during cross examination. His testimony that the accuracy of the voice test was more than 99% was also not challenged. A perusal of the transcript Ex PW5/E portion A to A which had been identified by the complainant PW5 to be belonging to the accused, his wife and he himself, would show that the accused M C Tyagi was in the game of getting the case settled by charging some lump sum amount give credence 30 to the case of the prosecution. The contention raised on behalf of the accused that there had been manipulation in the recording is not very convincing in view of the fact that no reason has been given by the accused as to why the Trap Laying officer Inspector S C Bhalla and why the IO Inspector Parveen Ahlawat would manipulate the transcript to falsely implicate the accused. It has been noticed by the court that whenever any conversation between the complainant and the bribe taker is recorded only some portion of the conversation are clearly audible because the recording is done without any knowledge of the bribe taker and it is not possible to keep the recording instrument close to the bribe taker. In my view even if the court considers only the audible portion of transcript Ex PW5/A and does not take into account the portion which has been not identified by the complainant being not audible it lends assurance to the case of the prosecution that accused M C Tyagi had visited the house of the complainant to receive/obtain illegal gratification.
37 The Ld. Defence counsel has urged that the complainant is to be treated as an accomplice because he himself is a bribe giver and unless his testimony is corroborated in material particulars, the same cannot be accepted. Reliance is 31 placed on Panna Lal Damodar Rathi Vs. State of Maharashtra (Supra). I would like to extract para 9 of the report hereunder for ready reference:
"It will be seen that the version of the complainant that the appellant asked the complainant whether he had brought the money and that the complainant told him that he had and that the appellant asked him to pay the money to the second accused is not spoken to by the Panch witness PW3. According to Panch witness on the complainant asking the appellant whether his work will be achieved, the appellant assured him in the affirmative and the appellant told the complainant what was to be given to the second accused. It is significant that PW 3 does not mention about the appellant asking the complainant whether he had brought the money and on the complainant replying in the affirmative asking the complainant to pay the money to the second accused. Omission by PW 3 to refer to any mention of money by the appellant would show that there is no corroboration of testimony of the complainant regarding the demand for the money by the appellant. On this crucial aspect, therefore, it has to be found that the version of the complainant is not corroborated and, therefore, the evidence of the complainant on this aspect cannot be relied on."32
38 Sometimes, the courts have equated the complainant who is a bribe giver to be an accomplice. However, he cannot be said to be an abettor in the real sense. In M O Samshuddin Vs. State of Kerala, 1995 (3) SCC 351, distinction was drawn between two types of the bribe givers. It was held that in cases under the Prevention of Corruption Act, complainant is the person who gives the bribe in a technical and legal sense because in every trap case wherever the complaint is filed, there must be a person who has to give money to the accused which in fact is the bribe money which is demanded and without such giving the trap cannot succeed. When there is such a demand by the public servant from person who is unwilling and if to do public good approaches the authority and lodges complaint than in order that the trap succeeds he has to give the money. There could be another type of bribe giver who is always willing to give money in order to get his work done and having got the work done he may send a complaint. Here, he is a particeps criminis in respect of the crime committed and thus is an accomplice. It was observed that there are grades and grades of accomplices and therefore, a distinction could as well be drawn between cases where a person offers bribe to achieve his own purpose and where one is forced to offer bribe under a threat of loss or harm 33 that is to say under coercion. It was held that a person who falls in this category and who becomes a party for laying a trap stands on a different footing because he is only a victim of threat or coercion to which he is subjected to. It was further held that the extent and nature of corroboration that may be needed in a case may vary having regards to the facts and circumstances. Similarly, in State of UP Vs Zaullah, AIR 1988 SC 1474: 1998 (1) SCC 557, it was held that the mere fact that the complainant had grievance against the official only requires that his evidence be scrutinized with greater care and it does not call for outright rejection of his evidence at the threshold.
39 In the instant case, though there is no corroboration as such to the factum of actual acceptance of bribe by the accused but there is corroboration to the version of the complainant that the accused had demanded illegal gratification and had come to collect the same from the portion mark A to A of the transcript Ex PW5/E coupled with the recovery of the tainted money from the left front pocket of the shirt of the accused which has not even been disputed by the accused. In this view of matter, it cannot be said that there is no corroboration to the testimony of the complainant in material particulars and therefore, Panna 34 Lal Vs. State of Maharashtra (Supra) does not help the accused.
40 It is true that wife of the complainant in whose presence the transaction had taken place has not been produced as a witness by the prosecution but it is not going to affect the case of the prosecution in view of the fact that other reliable evidence has been produced by the prosecution to corroborate the testimony of the complainant. If wife of the complainant would have been produced her testimony would have been condemned by the defence on the ground that she is bound to support the complainant being his wife. Thus, non production of the wife of the complainant, to my mind, does not affect the merits of the case.
41 The Ld. Defence Counsel has placed reliance on Punjab Rao Vs. State of Maharashtra, AIR 2002 SC 486 to contend that where a reasonable explanation is offered by the accused regarding acceptance of the money the same must be believed. The authority is not applicable to the facts of the present case because here the explanation given by the accused is neither plausible nor probable. In this case no suggestion was given to the TLO PW 11 Inspector S C Bhalla that the amount of Rs. 1,000/- was received and kept 35 in the pocket by the accused as a part of the token money of Rs. 5,000/-. No suggestion was given to complainant PW5 Surender Gera in this regard. Similarly, no such suggestion was given to the two independent witnesses PW7 Sh. Brahm Dutt and PW9 Sh. Naresh Kumar. The defence taken by the accused is completely an after thought and is bound to be rejected. In similar circumstances, Hon'ble Delhi High Court in Ram Lubhaya Vs. State, 52 (1993) DLT 64 had rejected the explanation given by the accused that a sum of Rs. 10/- had been accepted by him as it was represented to him that the amount was to be given to Ramesh @ Pappi relation of the accused and that the complainant owed Rs.10/- to the said Ramesh @ Pappi.
42 Similarly, the contention raised on behalf of the accused that FIR Ex PW10/A was registered at 12 noon before start of the pre trap proceedings and arranging independent witnesses gives rise to suspicion is also without any substance. Rather, whenever an intimation is given regarding commission of a cognizable offence the police is bound to record the FIR and to proceed further with the investigation. In my view there was nothing unusual or irregular in recording the FIR before arranging the 36 independent witnesses and before start of the trap proceedings.
43 In view of foregoing discussions, I am of the view that it is established beyond all reasonable doubts that accused M C Tyagi on 23.8.01 had visited the house of the complainant, had reiterated his demand of illegal gratification and had obtained illegal gratification of Rs. 1,000/- from the complainant. I hold the accused guilty for the offence punishable U/s 7 and 13 (2) r/w Section 13 (1) (d) of the P C Act,1988 and convict him accordingly.
ANNOUNCED IN OPEN COURT (G P MITTAL) TODAY ON 19th JUNE, 2007 SPECIAL JUDGE; DELHI 37 IN THE COURT OF SH G P MITTAL SPECIAL JUDGE;
DELHI CBI VS. M C TYAGI RC 57 (A)/01/CBI/ACB/N.D. CC NO. 48/02 Order on Sentence.
Accused has been held guilty by me for the offences punishable U/s 7 and 13 (2) r/w Section 13 (1) (d) of the P C Act,1988 vide order dt. 19.6.07 2 I have heard Sh. R N P Sinha, Ld. Counsel for the convict and Sh. Akhilesh, Sr. PP for CBI on the question of awarding sentence to the convict.
3 It has been urged by Sh. R N P Sinha that the accused has already put in 25 years of service; he lost his mother during the trial; his wife is suffering from various ailments since the accused was arrested in this case; his son is pursuing B Com while his daughter is pursuing B Tech. It has been submitted that the accused has faced this protracted trial for a period of five years and a lenient view may be taken in the matter of awarding sentence to the accused.
4 On the other hand, it has been submitted by the Ld. Sr.PP that offences of demand of illegal gratification are on the rise and 38 the circumstances pointed out by the Ld. Defence Counsel are not the mitigating circumstances to take a lenient view in the matter. It has been submitted that offences of corruption amongst public servants are on the rise and stringent punishment is the need of the hour to put a brake on the spate of demand of illegal gratification by the public servants. 5 The Prevention of Corruption act, 1988 was enacted in the year 1988 repealing the Prevention of Corruption Act, 1947 with a view to curb corruption amongst public servants , but it failed to have the desired effect. The reason is that only a few people make a complaint regarding demand of illegal gratification by public servants. Most people pay illegal gratification to get illegal gains for themselves at the cost of public exchequer. Nevertheless, many people are compelled to grease palm of dishonest public servants just to avoid harassment.
6 Public servants indulge in corruption because it is a low risk and high gain venture. Unless a message is given to reverse this feeling, it will be difficult to contain corruption in the society which has become a part of day to day life.
7 Taking all the facts and circumstances into consideration, I hereby sentence the accused to undergo rigorous imprisonment for a period of 3 years and to pay a fine of Rs.50,000/- for the 39 offences punishable U/s. 7 and 13 (2) r/w Section 13 (1) (d) of the P C Act,1988. In default of payment of fine, the accused shall suffer simple imprisonment for a period of six months. File be consigned to record room.
ANNOUNCED IN OPEN COURT (G P MITTAL) DATED 3 JULY, 2007 rd SPECIAL JUDGE; DELHI