Delhi District Court
Cc No.532295/16 State vs Gurpreet Singh Walia. 1 on 13 April, 2018
IN THE COURT OF MS. KIRAN BANSAL, SPECIAL JUDGE-07
(CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
CNR No. DLCT01-001167-2013
CC No. 532295/2016
State (Govt. of NCT of Delhi)
VERSUS
1. Gurpreet Singh Walia
S/o Sh. Sartaj Singh
R/o F-174, Vikas Puri
New Delhi-110018.
FIR No. : 37/10
U/S : 7/13(1)(d), 13(2) PC Act
PS : Anti Corruption Branch
Date of institution : 08.08.2013
Judgment reserved on : 21.03.2018
Judgment delivered on : 13.04.2018
JUDGMENT
1. Brief facts of the case as revealed from the chargesheet are that the complainant Sh. Parshuram filed a complaint in the office of Anti Corruption Branch stating that he was doing the work of lift elevator and had office in the name of M/s Continental Elevators at Dwarka, Delhi. He required a license of electronic contractor from the Labour Department, Delhi Government in connection with his work related to lift elevators and had submitted an application for grant of the license on 14.07.2010 with the Electrical Inspector at 5, Sham Nath Marg, Delhi. He has further stated that he got his equipments checked on 03.09.2010 and at the time of checking of CC No.532295/16 State Vs Gurpreet Singh Walia. 1 his equipments his employee Amit was also present. The complainant was called by the accused Gurpreet Singh Walia in his office on 06.09.2010 and when the complainant went to meet the accused, the accused told him that he would come to the office of complainant on 06.09.2010. Thereafter, in the evening the accused came to the office of the complainant for inspection in his office and while descending from the staircase, the accused told the complainant that he would have to pay Rs.35,000/- to get his work done and also told him to come to his office alongwith profile of his office after 3-4 days. The complainant further pleaded to the accused that he does not have such a huge amount as he was a poor man but the accused insisted that without his paying this amount, his work would not be done and left. The complainant further stated that he had some knowledge regarding recording and on 13.09.2010 he arranged Rs.27,000/- and alongwith his employee Amit went to the office of the accused whereupon the accused called for his file and checked it and asked for the amount. He further stated that on the asking of the accused, he had kept amount of Rs.27,000/- on the table of the accused as per his instructions and after he has kept the amount on his table, the accused had put paper weight on the currency notes. All this was recorded in a recorder by Amit who was accompanying the complainant. The complainant further stated that he had arranged for the amount of Rs.5,000/- out of the remaining amount of Rs.8,000/- which was to be paid to the accused Walia Sahab as bribe.
2. On receiving of the complaint of the complainant, panch witness Sh. Pritam Singh was summoned in whose presence the facts were CC No.532295/16 State Vs Gurpreet Singh Walia. 2 verified and thereafter, the panch witness had signed on the complaint. Pre-raid proceedings were carried out and phenolphthalein powder was applied on the currency notes supplied by the complainant and demonstration was also given to the complainant as well as to the panch witness. After the pre-raid proceedings, the raiding party alongwith the panch witness and the complainant proceeded to the office of the accused. The raid could not be successful as when the complainant and the panch witness approached the accused, he told them to wait outside his office and thereafter, left the office stating that he had some urgent work and asked the complainant to come after some time. The complainant thereafter, produced two VCDs on 08.10.2010 regarding recording done by his employee Amit on 13.09.2010. The FIR was thus, registered under section 7/13 of the Prevention of Corruption Act. The VCD was played in the presence of Avinash Aggarwal, Dy. Director, Labour Department who after seeing the same, identified the accused.
3. After completion of investigation chargesheet was filed in the court on 08.08.2013. Thereafter, charge for the offences punishable under section 7 & 13 (2) read with Section 13 (1)(d) of Prevention of Corruption Act. 1988 was framed on 23.07.2014 against the accused Gurpreet Singh Walia to which he pleaded not guilty and claimed trial.
4. Thereafter, prosecution in order to prove its case examined 33 witnesses. PW-1 Ajit Kumar is the panch witness in whose presence the pen spy camera and memory card etc. were handed over to the IO and were seized vide seizure memo Ex.PW1/A. The spy camera, memory card etc. were identified by him in the court CC No.532295/16 State Vs Gurpreet Singh Walia. 3 and same were exhibited as P-1. He further stated that the Ex.P-1 were the same articles which were produced by the complainant in his presence on 11.10.2010.
5. PW-2 Tanvir Aijaz is also a panch witness in whose presence, notice was served upon the accused to give his consent for voice sample identification on 09.10.2010. The notice is Ex.PW2/A. He has further stated that the accused had requested for some time to give reply. He further stated that the accused had also provided written statement to the IO regarding his response.
6. PW-3 Padam Singh is also a panch witness who stated that on 15.10.2010, a notice was issued upon the accused for his consent regarding voice sample and the accused had given the reply to the notice. The notice is Ex.PW3/A and reply of accused is at point A. This witness has not been cross-examined by the counsel for the accused and his testimony remained unrebutted.
7. PW-4 Ct. Suresh Kumar had collected the exhibits in sealed condition from the FSL Rohini alongwith result on 10.11.2010 and had handed over the parcels to MHC(M), PS Civil Lines. He had handed over the result to the IO Insp. Meghraj. This witness has also not been cross-examined by the counsel for the accused and his testimony also remained unrebutted.
8. PW-5 Ct. Anil Kumar had also collected the FSL result and exhibits in sealed condition from FSL Rohini on 11.09.2012. He has further stated that he had deposited three parcels with MHC(M), PS Civil Lines and handed over the result to the IO.
9. PW-6 HC Surajpal Singh is the Duty Officer who recorded the FIR on 08.10.2010. The FIR is Ex.PW6/A and the endorsement on the CC No.532295/16 State Vs Gurpreet Singh Walia. 4 Rukka is Ex.PW6/B.
10. PW-7 Chander Shekhar is Nodal Officer of Bharti Airtel Ltd. Sh.
Chander Shekhar has proved the original application form pertaining to mobile phone no. 9871364640 in the name of accused Gurpreet Singh Walia alongwith photocopy of ID proof and call detail record. The application form is Ex.PW7/A. The ID proof submitted with application form is Ex.PW7/B. Call detail record of the accused for 06.09.2010 is Ex.PW7/C. Similarly, he has also proved the application form of mobile no. 9818919587 in the name of the complainant Parshuram alongwith photocopy of ID proof and call detail record for 06.09.2010. Copy of application form of the complainant Parshuram is Ex.PW7/D, the ID proof is Ex.PW7/E and call detail record is Ex.PW7/F. Certificate under section 65B of Indian Evidence Act is Ex.PW7/G. PW-7 was further examined on 08.10.2016 wherein he had proved the cell ID chart of both the above said mobile numbers i.e. of the complainant and the accused on 06.09.2010. The Cell ID chart of both the numbers were exhibited as Ex.PW7/H. Fresh certificate under section 65B of the Indian Evidence Act regarding cell ID chart is Ex.PW7/I. He has further stated that the number of the complainant was activated on 15.07.2010 and he had inadvertently mentioned while his testimony was being recorded on 22.08.2014 that the SIM was activated on 07.12.2010. He also clarified that the mistake happened during his earlier testimony due to dd/mm/yyyy and mm/dd/yyyy format PW- 7 also filed documents Ex.PW7/X and stated that the SIM of the complainant was activated on 15.07.2010 and not on 07.12.2010.
11. PW-8 Kishan Lal Verma is another panch witness who has stated that on 11.11.2010, the accused was arrested in his presence vide CC No.532295/16 State Vs Gurpreet Singh Walia. 5 arrest memo Ex.PW8/A, the personal search memo is Ex.PW8/B. Notice Ex.PW8/C in his presence was also given to the accused to give his consent for voice sample.
12. PW-9 Virender Pal Singh is also a panch witness who had stated that on 12.11.2010 the accused was present alongwith police officials and accused had refused to provide his voice sample to the police officials and memo in respect of refusal to give the voice sample is Ex.PW9/A and the same was also signed by the panch witness.
13. PW-10 Sh. Pritam Singh, panch witness, was performing his duty on 29.09.2010 in ACB and has deposed that the complainant had produced the complaint in his presence and PW-10 had gone through the contents of the complaint Ex.PW6/B and signed the same. Thereafter, complainant had produced the bribe amount of Rs.5,000/- which were in the form of 10 GC notes of Rs.500/- each. The serial number of the notes were noted down in the report by Inspector Meghraj in his report and Inspector Meghraj sprinkled phenolphthalein powder on the GC notes. The panch witness was asked to touch the notes with right hand by Inspector Meghraj and thereafter, handwash of his right hand was taken in the solution of sodium carbonate which turned pink. The said handwash was thrown away and PW-5 washed his hand with the soap. The pre- raid proceedings are Ex.PW10/A. It is further stated that they reached at 5, Shamnath Marg at 12.20 pm. At about 1:00 pm, they reached at 3rd floor in the office of Labour Branch and took their position. The person upon who they had to raid was not there. Thereafter, they waited till 05:00 pm and accused also reached in his office at about 05:00 pm. He alongwith the complainant entered CC No.532295/16 State Vs Gurpreet Singh Walia. 6 in the office of the accused. The accused told Parshuram to the wait outside the office. Thereafter, accused told that he had some urgent work and left the office and did not return. The raid-proceedings are Ex.PW10/B and Ex.PW10/C.
14. PW-11 Sh. Braham Singh is another panch witness, who was on duty in the ACB office on 10.06.2011 and had gone to FSL, Rohini alongwith Inspector Meghraj and complainant for recording of sample voice of complainant. He deposed that the complainant had read the transcript for recording of his voice sample. Original cassette was marked as Mark O and the copy is Mark C. The cassettes were sealed with the seal of MRG and seized vide seizure memo Ex.PW11/A. The cassettes were shown to the witness in the court, witness identified his signature on the cut off pullanda Ex.P1. Witness also identified his signature on the original cassette Ex.2 which was prepared in the FSL. The cassette Ex.P4 (copy) was also identified by witness. The voice sample was recorded in the cassette in the Physics Lab inside the FSL.
15.PW-12 Sh. Prem Singh is another panch witness who was on duty in ACB on 08.10.2010 and deposed that Parshuram produced two CDs before Inspector Meghraj and same were played. PW-12 deposed that he had gone through the CD and in the said CDs, one Gurpreet Singh Walia was accepting the bribe. One CD was kept open and another CD was converted into a sealed pullanda and sealed with the seal of MRG. CDs were taken into possession vide seizure memo Ex.PW12/A and Ex.PW12/B. Identification memo regarding CDs was also prepared. It is further stated that he alongwith Inspector Meghraj, complainant and one constable reached at 5, Sham Nath Marg and IO seized one file of Electrical CC No.532295/16 State Vs Gurpreet Singh Walia. 7 Contractor and list of contractor 2010 and the diary register, same were taken into possession vide seizure memo Ex.PW12/C. CDs were identified as Ex.P1 and Ex.P2.
16. PW-13 Sh. Sunil Soni is UDC and stated as he was working in the Electrical Branch of GNCT, Delhi since October 2008. He further deposed that Avinash Aggarwal, Deputy Electrical Inspector used to mark file to him and after processing the file, he used to put up the file before the accused who was the Secretary of Board. It is further stated that the file of M/s Continental Elevator was also put up before accused by him. PW-13 further deposed that he had handed over the file of M/s Continental Elevator to the IO of this case after taking it out from a cabin which was in the room of the accused. He had handed over the said file to the IO alongwith list of contractor and diary register. File of M/s Continental Elevator is Ex.PW13/A. List of contractor is Ex.PW13/B and the diary Register is Ex.PW13/C. The relevant entry was also pointed by witness. He further stated that on 12.10.2010 he had handed over list of Contractor alongwith list of pending cases with Sh. G.S. Walia to IO and same were taken into possession vide seizure memo Ex.PW13/E. The four pages of list of Contractor is Ex.PW13/F and the list of pending files with the accused is Ex.PW13/G.
17. PW-14 Ct. Sanjay had collected two sealed envelopes and one sealed cloth parcel from MHC(M) on 19.07.2012 and had deposited same in the FSL, Rohini and after collecting the acknowledgment had handed over the RC to the IO.
18.PW-15 Sumer Singh has deposed that he had joined the Continental Elevator, where he entered into agreement and gave his consent letter of wireman. He knew Parshuram who employed him in his CC No.532295/16 State Vs Gurpreet Singh Walia. 8 firm I.e. Continental Elevator and the consent letter is Ex.PW15/A.
19. PW-16 Raj Kumar Malcat is also panch witness who had joined the investigation of this case and had gone to the FSL. He deposed that he had met the accused and accused refused to give his sample voice before the FSL official and memo Ex.PW9/A regarding refusal was prepared and was also signed by him.
20. PW-17 Avinash Aggarwal is the Retired Electrical Inspector. In the year 2010, he was posted as Dy. Electrical Inspector and as per his deposition a file of Continental Elevators was received in his office and the same was marked to PW-13 Sh. Soni concerned clerk for submission to Secretary Board of Examiners - Sh. Joginder Singh Lather who marked the file to Gurpreet Singh Walia i.e. accused for further action. The file of Continental Elevators has also been exhibited during his testimony as Ex.PW13/A. He stated that the application of Continental Elevators was submitted by Parshuram Prasad, owner of the firm. He has further deposed that on 08.10.2010, he was called in the Anti Corruption Branch where a CD was played in his presence and after seeing the CD he had identified the accused in the CD, the accused had made an indication and the party had put the notes on the table and the accused had put a paper weight on the notes. The IO had prepared the identification memo Ex.PW12/B. CD Ex.P1 was also played during his testimony and the witness i.e. PW-17 after seeing the CD had stated that the accused can be seen in the CD by accepting money by putting paper weight on the currency notes. The witness has also identified the voice of the accused as well as recognized the accused in the video/audio footage as PW-17 deposed that he was working with the accused for the last 26 years. This witness CC No.532295/16 State Vs Gurpreet Singh Walia. 9 has been extensively cross-examined by the counsel for the accused as the main defence of the accused is that the whole case against the accused is made out at the behest of PW-17.
21. PW-18 Parshuram Prasad is the complainant who stated that he had submitted an application for grant of electrical license in the name of M/s Continental Elevators on 15.07.2010 and on 03.09.2010, he had sent his colleague Amit to 5, Sham Nath Marg who returned to his office and told that the accused wanted to meet the complainant. The complainant as per his deposition had on 06.09.2010 again visited the office of the accused and met him and the accused told him that he would inspect the office of the complainant. Thereafter, at about 08:00 pm, the accused reached at the office of the complainant at Sector-10, Dwarka and inspected his office. While descending from staircase, the accused told the complainant that if he wanted to get his work done he will have to pay Rs.35,000/-. On reaching the ground floor, the complainant told the accused that his documents were complete on which the accused told the complainant that he will not do his work without accepting Rs.35,000/- and the accused further asked the complainant to visit his office after 3-4 days alongwith the profile of his company. The complainant further stated that he arranged Rs.27,000/- and on 29.09.2010, he reached at the office of the accused alongwith his colleague Amit to hand over Rs.27,000/- to accused Gurpreet Singh Walia. He further stated that Amit was having spy camera recorder and the complainant met the accused in his office where the accused called the file of the complainant and checked the same and by indication told the complainant to give the amount. The complainant has CC No.532295/16 State Vs Gurpreet Singh Walia. 10 further stated that thereafter he took out Rs.27,000/- from his pocket and kept the same on the table of the accused. Thereafter, the accused had put a paper weight on the currency notes and the said transaction was recorded by Amit in the spy camera and thereafter, they left the office of the accused. PW-18 has further deposed that on 08.10.2010 he went to the office of ACB near Civil Lines alongwith Amit and met Sh. Shukla who further directed him to meet Sh. Meghraj. The complainant thereafter informed Sh. Meghraj about the payment of bribe of Rs.27,000/- to the accused and had told him about remaining amount of Rs.8,000/- which was to be paid to the accused. He also handed over two CDs of recording done by Amit. He further stated that he also handed over complaint Ex.PW18/A written by him to Insp. Meghraj bearing his signatures. The currency notes were thereafter treated with powder like substance by Insp. Meghraj and the complainant was asked to touch the G.C. notes and thereafter, his hands were put in solution of sodium carbonate which turned pink. Insp. Meghraj deployed one person for hearing the conversation and transaction of giving bribe and thereafter, the complainant alongwith five persons of the raiding team left the ACB office and reached the office of the accused where the complainant alongwith another person entered in the office of the accused and tried to meet the accused but the raid was not successful. He further stated that the currency notes which were sprinkled with the powder remained with him. The transcript of the CD is exhibited as Ex.PW18/B. The seizure memo of two CDs is Ex.PW12/A and the identification memo is Ex.PW12/B. The spy camera/recorder was also handed over by the complainant to Insp.
CC No.532295/16 State Vs Gurpreet Singh Walia. 11 Meghraj which was seized vide memo Ex.PW1/A. The complainant further deposed that his file (i.e. file of Continental Elevator) was seized from the office of the accused vide seizure memo Ex.PW12/C and the file is Ex.PW13/A containing his application form, rent agreement etc. PW-18 further deposed that he was taken to FSL Rohini for his voice sample and after taking his voice sample, the same was handed over to Insp. Meghraj by the FSL official and was seized vide seizure memo Ex.PW11/A. The CD Ex.P1 was also identified by the witness and was played in the court during his testimony and after seeing the CD, witness has identified that the CD was the same which was handed over to the Insp. Meghraj and contained the transaction of taking bribe of Rs.27,000/- by the accused. The spy camera recorder and the adopter were also identified by the witness and they were exhibited as Ex.PW18/P1. The cassette containing the voice sample of the complainant was exhibited as Ex.P1 on his identification. The witness on being cross-examined by the Ld. Addl. PP admitted that he has handed over Rs.27,000/- to the accused on 13.09.2010 and not on 29.09.2010 as deposed by him in his examination in chief earlier. The witness also stated that the pre-raid and post-raid proceedings were conducted on 29.09.2010 and not on 08.10.2010 and the date 08.10.2010 regarding pre-raid and post-raid proceedings were wrongly deposed by him due to lapse of time. The witness also clarified that due to old incident, he could not explain the dates properly and the dates written on the record were correct. The complainant was also extensively cross-examined by the Ld. Defence counsel.
CC No.532295/16 State Vs Gurpreet Singh Walia. 12
22. PW-19 Amit Sharma has deposed that he was working with the complainant as Assistant Technician in the firm M/s Continental Elevators which was running at Sector-10, Dwarka. He further deposed that he had applied for electrical contractor license on 15.07.2010 and documents were deposited there. Thereafter, they were called for checking of instruments i.e. multimeter and meager etc. He further stated that he might have visited the office of the accused on 13.09.2010 when the accused told them to inspect the shop/office and directed them to meet him at around 7:00 - 08:00 pm. The accused had reached there around 7:00- 08:00 pm in his car and had inspected their premises and further directed them to meet him in his office alongwith documents of profile of company. He has further stated that when they were coming down from staircase, the accused had demanded Rs.35,000/- to clear the file. PW-19 further deposed that they replied that when their documents are complete then why the accused was demanding Rs.35,000/- and they were not having money at that time as their business had not started at that time. However, the accused told them to meet him in the office alongwith amount of Rs.35,000/-. PW-19 further stated that after hearing the demand of the accused, he went to ACB office to lodge a complaint and they told him that they will not lodge complaint without any cogent proof. He further stated that ACB official advised them to record the voice of the accused and thereafter, recording device was purchased by him which was a spy recorder and the money for the same was paid by the complainant Parshuram. PW-19 further stated that on 27.09.2010, he alongwith Parshuram reached at the office of the accused and the accused demanded CC No.532295/16 State Vs Gurpreet Singh Walia. 13 money by saying "de do" and thereafter, accused indicated to keep the money on the table and accused had put a paper weight on the money and this incident was recorded with the help of video recorder. PW-19 further stated that thereafter, they went to the office of the ACB and handed over the recorder to the officials of ACB and the ACB officials told them to arrange remaining amount so as to conduct a raid. He further deposed that the complainant Parshuram arranged Rs.5,000/- and PW-19 went alongwith Parshuram to the ACB office in the month of September where ACB officials applied some powder like substance on the GC notes and handed over the same to the complainant. However, the raid failed. PW-19 further deposed that in the month of October, he again joined the investigation of the case and some official from the office of accused was called in the office of ACB and CD was played before him. PW-19 identified the accused to be the same person who had demanded Rs.35,000/- to issue electrical license. The spy camera recorder, memory card and the adopter were also identified by him as Ex.PW18/P1. As PW-19 had not explained the facts properly in his examination in chief, he was cross-examined by Ld. Addl. PP for the State and during his cross-examination he admitted that it was on 06.09.2010 when the accused had inspected the shop and had demanded the money and on 13.09.2010, the amount of Rs.27,000/- was handed over to the accused and the same was recorded. PW-19 further stated that he could not explain the dates properly due to lapse of time. When the audio video recording in the memory card was played during the recording of testimony in the court, the transaction of taking money was not CC No.532295/16 State Vs Gurpreet Singh Walia. 14 available in the recording. However, witness stated that he had handed over the device with memory card to the ACB official and at that time episode of handing over and taking over the bribe was (saved) in it. He further deposed that ACB official prepared one CD through Ex.PW18/P1. The CD Ex.P1 was also payed during his testimony and the witness identified the CD and the transaction of giving Rs.27,000/- to the accused and accused putting the paper weight on the money. This witness was also extensively cross-examined by Ld. Defence counsel.
23. PW-20 HC Ram Kumar is the MHC(M) who deposed that on 08.10.2010, IO Insp. Meghraj had deposited one sealed pulanda containing one VCD vide entry at serial no. 50/950 in Register no.
19. Again on 11.10.2010 also, the IO had handed over another sealed pulanda containing recorder and on 13.10.2010 both the pulandas were sent to FSL Rohini through Ct. Subhash Kumar. The relevant entries were exhibited as Ex.PW20/A, Ex.PW20/B, Ex.PW20/C, Ex.PW20/D, Ex.PW20/E, Ex.PW20/F and Ex.PW20/G. Ct. Suresh Kumar on 16.11.2010 had handed over to him two sealed pulandas duly sealed with the seal of Dr. C.P. Singh FSL Delhi. On 10th June (year not clearly mentioned in the testimony), Insp. Meghraj handed over to him two sealed pulandas containing sample voice.
24. PW-21 Dr. C.P. Singh is FSL expert who has deposed that on 13.10.2010 two parcels were received in connection with the present FIR on which seals were intact. The first parcel contained one CD and the same was marked as Ex.1 in the FSL Lab. The second parcel contained one audio video recorder and was marked as Ex.2 by the FSL lab. He has further deposed that on examination CC No.532295/16 State Vs Gurpreet Singh Walia. 15 of Ex.1 and Ex.2, following observations were made :-
"i) The video recording in CD marked Ex. 1 and spy recorder marked Ex. 2 are in digital video format and there are no indication of alteration in the identified video shot on the basis of examination using Non Linear Video Editing Storage System & Video Analyst System.
ii) The recorder is capable of recording video footage.
25. PW-21 further deposed that after examination, the same were sealed and were sent to the investigating agency alongwith the report. The FSL report is exhibited as Ex.PW12/A. He further deposed that on 19.07.2012, three sealed parcels were received. The first and third parcels were the same parcels which were earlier received and were bearing his seal i.e. seal of Dr. C.P. Singh FSL Delhi. The second parcel contained audio cassette containing sample voice of the complainant Parshuram, the same was marked as S-1 and on analysis following opinion was given :-
"On examination the auditory analysis of recorded speech samples of speakers marked Ex. Q1 and Ex. S1 and subsequent acoustic analysis of speech samples by using CSL (Computerize Speech Lab) revealed that the voice exhibits of speaker marked Ex. Q1 are similar to the voice exhibits of speaker marked Ex. S1 in respect of their acoustic cues and other linguistic and phonetic features. The voice CC No.532295/16 State Vs Gurpreet Singh Walia. 16 exhibits of speaker marked Ex. Q1 and Ex. S1 are the voice of same person ( i.e. Shri Parshuram)".
26. PW-21 further stated that after examination, the case property was sealed with his seal and was sent to the investigating agency alongwith the report. The CD sent to the FSL expert for his opinion was played on laptop during his testimony in the court and after seeing the audio video CD Ex.P1, PW-21 stated that the contents of the audio video footage are the same which were examined in the FSL and which are mentioned in his report Ex.PW21/A and Ex.PW21/B. The spy recorder, adopter etc. were also identified by the witness and he deposed that Ex.PW18/P1 are the same which were examined by him in the FSL lab. He also identified the audio cassette Ex.P2 containing the sample voice of the complainant to be the same cassette which was examined by him in the FSL lab.
27. PW-22 Ms. Ashu Goel is also a Scientific Assistant from FSL Rohini who deposed that on 10.06.2011 while she was posted in Physics Division, she had asked the complainant Parshuram to read over the transcript and thereafter, his voice sample was taken on two audio cassettes which were marked as O (original) and C (copy) and both the cassettes were handed over to the IO. Both the cassettes were identified by her as Ex.P2 and P4.
28. PW-23 Sh. Kamal Malhotra, Dy. Labour Commissioner is the witness who has proved the sanction order. He has deposed that in the year 2012, he was posted as Deputy Labour Commissioner and on the request of ACB on 21.06.2012, prosecution sanction under section 19 of Prevention of Corruption Act 1988 to prosecute CC No.532295/16 State Vs Gurpreet Singh Walia. 17 accused Gurpreet Singh Walia was accorded by Hon'ble L.G. Sh. Tajinder Khanna. He has further deposed that on the basis of contents of FIR and other material collected during the investigation and placed before Hon'ble L.G., Hon'ble L.G. applied his independent mind and accorded the sanction and he accordingly conveyed prosecution sanction on behalf of Hon'ble L.G. vide sanction order dated 29.06.2012. The sanction order is Ex.PW23/A and the same was forwarded to the IO vide order Ex.PW23/B. Cross-examination of this witness could not be completed as the witness expired. In view of death of this witness, his name was deleted from the array of the list of witnesses vide order dated 11.12.2015.
29. PW-24 is the IO Insp. Meghraj who has stated that on 29.09.2010, the complainant gave the complaint Ex.PW18/A and on receipt of which panch witness Pritam Singh was called and the panch witness read the complaint and made enquiries from the complainant and thereafter, signed the complaint. The complainant then produced the currency notes of Rs.5,000/- which were treated with phenolphthalein powder and demonstration was given to the complainant and the right hand of the complainant and panch witness were touched with the GC notes and thereafter, their hands were washed with sodium carbonate water which turned pink which was thrown away. Both the panch witnesses and the complainant were instructed to remain close to each other so that they can hear the conversation. Directions were also given to panch witnesses to give signal after the transaction of bribe. The Raid party thereafter, proceeded to the office of the accused and the complainant and the panch witnesses were sent to the office of the accused. However, CC No.532295/16 State Vs Gurpreet Singh Walia. 18 the raid was not successful. The raid team and the complainant returned to the office of ACB and the complainant was asked to inform him about any possibility of future raid and also asked to bring VCDs recorded by him. The IO has further deposed that on 08.10.2010, the complainant came to the ACB and produced VCD of the recording done on 13.09.2010 and both the VCDs were played on the official computer in the presence of panch witness as well as the complainant and the VCDs were marked as "i" and "ii" and CD no. "i" was sealed with the seal of MRG and the other CD was kept open for investigation. Both the CDs were seized vide seizure memo Ex.PW12/A. The transcript of the CD Ex.PW18/B was prepared in the office of ACB. Thereafter, on the complaint of the complainant Ex.PW8/A, Rukka Ex.PW24/A was prepared and was handed over to the Duty Officer for registration of present FIR Ex.PW6/A. The pre-raid proceedings Ex.PW10/A and Ex.PW10/B were also proved by the IO PW-24. IO has further stated that on 08.10.2010, he went to the office of accused and met Sh. Avinash Aggarwal, officer in charge of the accused and told him about the case registered against the accused and also asked for the file of the complainant which was pending for clearance of license. The file was produced by Sh. Sunil Kumar, UDC and was seized vide seizure memo Ex.PW12/B. He has further deposed about the list of contractors Ex.PW13/B, register Ex.PW13/C etc. being seized. He has further stated that they returned to the office of ACB with Avinash Aggarwal and Sunil Aggarwal and CD no. "ii" was played before Avinash Aggarwal and on seeing the video footage, he identified the accused and on identification, identification memo Ex.PW12/B was prepared. On 09.10.2010, the accused joined CC No.532295/16 State Vs Gurpreet Singh Walia. 19 investigation and was confronted with the video footage contained in the VCD no. "ii", and on seeing the video footage the accused did not react and gave a written submission Ex.PW24/C which was seized vide Ex.PW24/B. The accused was thereafter, issued notice by the IO to provide his voice sample. IO has further stated that on 11.10.2010, the complainant came to the office of ACB alongwith his colleague Amit and produced spy camera, adopter and the same were seized and sealed. On 13.10.2010, VCD "i" alongwith spy camera, adopter, memory card were sent to FSL for seeking expert opinion. IO further deposed that after receiving the FSL result on 10.11.2010, he called the accused on 11.11.2010 and arrested him vide arrest memo Ex.PW8/A. The accused was again given a notice to give his voice sample on 11.11.2010. Another notice dated 12.11.2010 Ex.PW9/A to give voice sample was also given to accused. The accused was also taken to FSL Delhi for recording his voice sample on 12.11.2010 but he refused to give his sample voice. On 10.06.2011, the voice sample of the complainant was taken in FSL Rohini. Again the voice sample alongwith adopter, spy camera and the VCD was sent to FSL for seeking further opinion regarding matching of voice of the complainant. IO has further deposed regarding obtaining sanction for prosecution of the accused. He has also deposed that he has collected the CDR of the telephone number of the complainant and the accused and call details, customer application form from Bharti Airtel vide Ex.PW24/D. IO has further deposed regarding obtaining of the documents i.e. the list of cases pending with accused etc. from the office of the accused. IO thereafter clarified during his further examination that the file of Continental Elevator was handed over CC No.532295/16 State Vs Gurpreet Singh Walia. 20 to him by Sunil Soni and not by Sunil Aggarwal as deposed by him earlier inadvertently. He has also deposed that on the basis of site location chart, he has prepared a flow chart Ex.PW24/F to show that the locations of both the mobile numbers was at Sector-6, Dwarka at around 08:00 pm. He also received the bio data of the accused from the Labour Department. Notice dated 13.04.2011 served upon the accused to give his voice sample is Ex.PW24/K. IO has also identified the case property i.e. one CD Ex.P1, spy camera, memory card, adopter Ex.PW18/P1. Audio cassette containing the voice sample of the complainant is Ex.P2.
30. PW-25 Dalip Kumar Tanwar had proved the duty roster for the month of June 2011 in respect of panch witness Brahm Singh and has proved that Brahm Singh was on panch witness duty in ACB on 10.06.2011.
31. PW-26 Mahesh Gupta had proved the duty roster for the month of November 2010 in respect of panch witness Virender Pal Singh and has proved that Virender Pal Singh was on panch witness duty in ACB on 12.11.2010.
32. PW-27 Sanjay Pawar had proved the duty roster for the month of October 2010 in respect of panch witness Tanvir Aijaz and has proved that Tanvir Aijaz was on panch witness duty on 09.10.2010.
33. PW-28 SI K.L. Meena is a formal witness who proved entries in Rojnamcha to show the arrival of panch witnesses on respective dates.
34. PW-29 S.S. Bhole had proved the duty roster for the month of October 2010 in respect of panch witness Padam Singh, Jr. Engineer and has proved that Padam Singh was on panch witness CC No.532295/16 State Vs Gurpreet Singh Walia. 21 duty in ACB on 15.10.2010.
35. PW-30 Sanjeev Sehgal had proved the duty roster for the month of November 2010 in respect of panch witnesses Sh. K.L. Verma and Sh. Raj Kumar Malkat and has proved that they were on panch witness duty on 11.11.2010 and 12.11.2010 respectively.
36. PW-31 Ms. Charanjeet Kaur had proved the duty roster for the month of September 2010 in respect of panch witness Pritam Singh and has proved that Pritam Singh was on panch witness duty in ACB on 29.09.2010.
37. PW-32 Kanshi Ram Verma, Joint Labour Commissioner was examined on behalf of prosecution as cross-examination of Sh. Kamal Malhotra PW-23 could not be completed as he had expired. PW-32 has proved the sanction order dated 29.06.2012 Ex.PW23/A for the prosecution of the present accused. He identified the signatures of Kamal Malhotra. PW-32 was further examined in chief on 23.01.2017 and he proved the bio-data of the accused as Ex.PW32/A and his attendance register Ex.32/B. The service record of the accused is Ex.PW32/C. He has also proved the sanction order Ex.PW23/A which was conveyed by Kamal Malhotra and also proved the noting sheet Ex.PW32/D. The sanction for prosecution of the accused was accorded vide Ex.PW32/F bearing the signatures of the Hon'ble L.G. at point A.
38. PW-33 Jai Kishan had proved the duty roster for the month of October 2010 in respect of panch witness Ajeet Kumar and has proved that Ajeet Kumar was on panch witness duty on 11.10.2010.
39. After completion of the prosecution evidence, statement of accused CC No.532295/16 State Vs Gurpreet Singh Walia. 22 was recorded under section 313 Cr.P.C. wherein all the incriminating evidence was put to the accused which he denied the same to be false and incorrect and further stated that he is innocent and this is a false case registered at the instance of Avinash Kumar Aggarwal who was the head of Electrical Branch in the office of the accused and was having personal grudge against the accused as he wanted to get promotion to the post of Electrical Inspector without any competition as there was no other competitor in the office except the accused. The accused further stated that Avinash Kumar Aggarwal conspired with his close friend one Mohan Yadav alongwith his employee Amit Sharma and driver Parshuram to implicate the accused in the present case. The accused further stated that the alleged recording has been doctored and fabricated and the accused was not present in his office on 13.09.2010 at the time when the alleged recording was made. The accused further stated that the allegations of demand of bribe are totally baseless, false and unfounded. He further stated that a firm in the name of Shivani Power Engineering Private Ltd. belonging to one Bijender Kumar Sharma who is brother of close friend of Avinash Kumar Aggarwal, was already functioning at Shop No.105, Vardhman Dwarkadheesh, Sector-10, Dwarka hence, no license could have been granted to Continental Elevators.
40. The accused in his defence examined 12 witnesses. DW-1 Ms. Nita Sharma, Dy. Labour Commissioner has proved the order dated 23.09.2011 Ex.DW1/A vide which Avinash Kumar Aggarwal was promoted to the post of Electrical Inspector. The copy of Gazette notification is Mark-DW1/B.
41. DW-2 Arun Kumar Aggarwal has proved the reply Ex.DW2/A to CC No.532295/16 State Vs Gurpreet Singh Walia. 23 the RTI application of the accused. He has also proved dispatch entry no. 8613 in the dispatch register of the year 2010 as Ex.DW2/B.
42. DW-3 N.K. Sharma has proved another RTI reply Ex.PW19/DH.
DW-4 Anand Tripathi, General Manager, BSES Rajdhani Power Limited has proved the record of CA No.350038198-CRN no.2660174546 in the name of Smt. Sarita Kumari Sharma at plot no. 20, Ground Floor, Harijan Basti, Sector-23, Pochan Pur, Khasra No.4/25, near MCD School, Dwarka as Mark-DW4/A and DW4/B. The bill in the name of Sarita Kumar Sharma for the month of November 2014 is marked as Mark-DW4/C. He also stated that he had given information vide letter dated 28.11.2011 Ex.DW4/D. As per Ex.DW4/D, the date of energisation of connection is 26.02.2009. Photocopy of CA No.150342885 in the name of Sh. Bijender Kumar Sharma at Shop No. 105, First Floor, Vardhman Dwarkadheesh, Plot no. 1, Sector-10, Dwarka is marked as Mark- DW4/E (colly.). Mark-DW4/F is the copy of application form dated 31.01.2012, of Bijender Kumar Sharma for new connection. Duplicate bill in the name of Sh. Bijender Kumar Sharma for the month of April 2017 is Mark-DW4/G.
43. DW-5 Dr. Gaurav Gupta has proved his reply dated 11.11.2014 as Ex.PW5/A to the RTI application of G.S. Walia. Through this reply the accused has tried to prove that FSL Rohini is not notified under section 79A of I.T. Act. However, this witness in the cross- examination stated that in the year 2010 there was no Cyber Civil Lab notified in Delhi and even on the date of his testimony no Cyber Civil Lab is notified in the country under section 79A of I.T. Act.
CC No.532295/16 State Vs Gurpreet Singh Walia. 24
44. DW-6 Sushil Kumar Yadav stated that he knows Mohan Yadav as he was working with him for about 10 years. He further stated that he also knew Avinash Aggarwal who used to visit the office of Mohan Yadav for inspection of lifts. He further stated that he also knew Parshuram as he used to come to the office of Mohan Yadav to meet him.
45. DW-7 ASI Ramesh Kumar has proved the diary entry no. 1536 as Ex.DW7/A and Ex.DW7/B, according to which the documents received by the said diary were handed over to IO Insp. Meghraj. The documents received vide these diary number is the reply of the accused to the notice of the IO to give voice sample. The said document was marked as Mark-S1 as per order dated 10.01.2018 and 11.12.2017.
46. DW-8 Parvesh Kataria has deposed that M/s Shiv Engineers is their family firm and they were running the business from premises no. 185, Pocket-3, Sector-2, Rohini, Delhi-110085, however the firm was not operational since 2005 and no bill for the sale of any item was issued to any person by them. He has also stated that the phone number mentioned in the bill Mark-DW8/A at point A is not of their firm.
47. DW-9 Anil Kumar, Assistant Account Officer, BSES Rajdhani Power Ltd. proved the application form and electricity connection in the name of Sh. Bijender Kumar Sharma at Shop no. 105, First Floor, Vardhman Dwarkadheesh, Plot no. 1, Sector-10, Dwarka, New Delhi-110075 as Ex.DW9/A.
48. DW-10 Mukesh Gupta, Deputy Electrical Inspector has proved their reply dated 16.05.2017 as Ex.DW10/A and also identified the CC No.532295/16 State Vs Gurpreet Singh Walia. 25 signatures of Avinash Kumar Aggarwal on letter dated 15.11.2010. He also proved the RTI reply dated 30.01.2015 as Ex.DW10/B and another RTI reply dated 30.01.2017 as Ex.DW10/C.
49. DW-11 Virender Singh stated that he knows Parshuram who is a driver by profession and was employee of Naresh Kumar. He has further stated that Naresh Kumar was involved in several criminal cases and both Naresh Kumar and Parshuram were doing the business of spare parts. He further stated that Naresh was killed in an encounter. He further deposed that Parshuram was never been engaged in the work of operation of lift. He has also identified signatures on Ex.PW18/D1.
50. DW-12 Jogender Singh Lather, Assistant Electrical Inspector, Labour Department has deposed that he was the Secretary of Board of Examiners and Sh. Avinash Kumar Aggarwal was the Chairman of the Board. He further deposed that inspection of shop M/s Continental Elevators was done by him alongwith an official of NDPL. He further deposed that the shop M/s Continental Elevators was situated on the first floor and there was no partition in the said shop. He further deposed that he came to know about the registration of the case against the accused on 08.10.2010. He had also gone to the ACB office alongwith Sh. Avinash Kumar Aggarwal and Sh. Sunil Soni at about 06:00 pm and remained there till 07:30 pm. He further stated that the accused used to sit on the 3rd floor of the Labour Department/Electrical Inspectorate, D-Block, 5 Sham Nath Marg and never occupied any office on the 2nd floor. He further stated that their office used to send letters to the contractors whose cases had been approved. He further stated that the file of the Continental Elevators was CC No.532295/16 State Vs Gurpreet Singh Walia. 26 marked to the accused Gurpreet Singh Walia in the presence of Avinash Kumar Aggarwal. He has also stated that the letter addressed to M/s Continental Elevators bears his signatures and the same is Ex.DW12/D1. He has further stated that Avinash Kumar Aggarwal told him that there was no need to check the file as the same was already checked by him. He further deposed that the relations between the accused and Avinash Kumar Aggarwal were not good due to some difference on the matter of promotion and work. He has further stated that the file of M/s Continental was not marked to him between 02.08.2010 to 13.08.2010. In response to the court question, the witness stated that Sunil Soni was the dealing assistant at the relevant time. Defence witness in reply to court question has also given following answer :-
"It is correct that I use to receive the file through Dealing Assistant/ UDC Sh. Sunil Soni. The file used to be marked to me by Electrical Inspector/Chairman. It is correct that the file of M/s Continental Elevator was handed over to me by Sh. Sunil Soni. I had sent the file to accused G.S. Walia on the directions of Sh. Avinash Aggarwal. It is correct that this file was pending with Sh. G.S. Walia from 13.08.2010 to 18.08.2010. The inspection report on the file was placed on 21.10.2010."
51. After completion of the defence evidence, I have heard Sh. Manoj Kumar Garg, Ld. Addl. PP for the State and Sh. Manoranjan, Ld. Counsel for the accused. Perused the record.
CC No.532295/16 State Vs Gurpreet Singh Walia. 27
52. Ld. Addl. PP for the State has argued that prosecution case is based on direct evidence of PW-18 and PW-19 as well as on audio video recording of the incidence. PW-18 Parshuram, complainant in the present case and PW-19 Amit Kumar have categorically deposed that accused had demanded bribe of Rs.35,000/- for issuance of electrical contractor license in connection of file of M/s Continental Elevators on 06.09.2010 while descending from the stairs at the office of complainant i.e. Vardhman Complex Dwarkadheesh, Sector-10, Dwarka. Both the witnesses have further deposed that on 13.09.2010, accused again demanded alleged bribe at the office of accused and obtained Rs.27,000/- as pecuniary advantage for himself by corrupt or illegal means which is reflected in audio video recording contained in the CD regarding aforesaid incident.
53.Ld. Addl. PP further argued that contradictions occurred in the testimony of prosecution witnesses are of minor nature and does not go to the root of the prosecution. Witnesses are not expected to possess photographic memory of the incident. Ld. Addl .PP further submitted that there is no deliberate delay in lodging the FIR. FIR is not ante time and ante dated. The CD Ex.P1 containing the transaction of bribe taken place in the office of accused on 13.09.2010 and same is admissible in evidence. Certificate under section 65B Evidence Act is not required in the present case as original device was produced by the prosecution alongwith the CD Ex.P1. Moreover, requirement of certificate under section 65B Evidence Act is a procedural requirement which can be dispensed with in the interest of justice. Variation of dates, if any, reflecting on the screen of the file is possible due to copying the same from one format into other format by using electronic means. Transcript CC No.532295/16 State Vs Gurpreet Singh Walia. 28 Ex.PW18/B is correct translation of the voice and conduct of the accused appearing in the CD Ex.P1 and the same is neither tampered nor fabricated. It is further argued that PW-21 Dr. C.P. Singh is well competent to examine the electronic evidence and he had issued report Ex.PW21/A and Ex.PW21/B in the due course of his duty and his evidence is admissible. There is no lapse in the preservation of exhibits Ex.P1 and Ex.PW18/P1. There is no occasion or circumstance to doubt the sanctity of the seal of the IO which has been affixed on the pullandas of the present case.
54. Ld. Addl. PP for the State has also argued that accused has nowhere offered any explanation about location of his mobile phone in the nearby area of the office of the complainant on 06.09.2010. Prosecution witnesses have categorically proved about the presence of accused and acceptance of the bribe by him on 13.09.2010 whereas accused has taken plea of alibi and has not proved the same. Rather he himself has proved dispatch of letter dated 13.09.2010 regarding his presence in the office on 13.09.2010. No witness from the office/firm where accused has allegedly conducted inspection on 13.09.2010 with respect of which he had dispatched the letter dated 13.09.2010 has been examined. There is no connivance of the investigating agency with PW-17 Avinash Kumar Aggarwal and accused has tried to mislead the Hob'ble Court by bringing some irrelevant facts regarding PW- 17 Avinash Kumar Aggarwal. It is only a bald allegation of the defence that accused was the hurdle in the promotion of PW-17 Avinash Kumar Aggarwal. Therefore, PW-17 has connived with investigating agency and got booked the accused in the present case. No documentary/authentic/admissible material has been CC No.532295/16 State Vs Gurpreet Singh Walia. 29 furnished to substantiate this allegation/defence of false implication. Rather investigating agency has conducted fair investigation which is reflected from the fact that raid has been fairly shown as unsuccessful and investigating agency has placed the real facts before the Hon'ble Court and not manipulated any fact. For the sake of arguments, if it is assumed that there was any animosity between PW-17 Avinash Kumar Aggarwal and accused, it does not give any right to accused to demand bribe and accept the same and later on defend the same on the ground of animosity. The case before this Hon'ble Court is of the demand and acceptance of the bribe by the accused from the complainant and disputed before the present case is not whether complainant floated fictitious firm or fabricated any document allegedly filed with the application Ex.PW13/A. It does not change the nature of the offence committed by the accused and mitigate the same even if there was any fabrication in the documents allegedly filed with the application Ex.PW13/A. There is valid prosecution sanction against the accused and the same has been issued after due approval of the competent authority Hon'ble L.G. In the present case concerned file containing the note sheet and approval of the Hon'ble L.G. has been placed during testimony of witnesses, therefore, it does not matter as to who has communicated the prosecution sanction order. Nowhere it is established by the defence as to in what manner accused has been prejudiced and could not defend himself because of any irregularity in communication of prosecution sanction order, if any. Rule 2 of the Government of NCT of Delhi Rules, 1992 as amended by the Government of NCT of Delhi is not applicable in the present case CC No.532295/16 State Vs Gurpreet Singh Walia. 30 in light of peculiar facts and circumstances of this case.
55. It is further submitted by Ld. Addl. PP for the State that for the sake of arguments if it is assumed that there has been some irregularity or lapses in the investigation, it does not entitle accused for acquittal. Lastly it is submitted by Ld. Addl. PP for the State that the prosecution has proved the guilt of the accused beyond reasonable doubt and prayed for the conviction of the accused. In support of his arguments, Ld. Addl. PP for the State has relied upon following judgments :
(1) State of Andhra Pradesh Vs P. Venkateshwarlu, Crl. Appeal no.
1317 of 2008, decided on 06.05.2015 by Hon'ble Supreme Court of India, (2) State of Maharashtra Vs Narsingrao Gangaram Pimple, 1984 AIR 63, Hon'ble Supreme Court of India, (3) State of Karnataka Vs Suvarnamma & Anr., Crl. Appeal no. 785 of 2010, decided by Hon'ble Supreme court of India on 14.10.2014, (4) Suresh Chandra Jana Vs State of West Bengal & Ors., Crl. Appeal no. 31 of 2008, decided by Hon'ble Supreme Court of India on 11.08.2017, (5) Radhey Sham Vs State of Haryana, decided by Hon'ble Supreme Court of India on 13.12.2000, (6) Subhash Murti Avasare Vs State of Maharashtra, Appeal no. 1086 of 2006 decided by Hon'ble Supreme Court of India on 19.10.2006, (7) Billa Nagul Shariff Vs State of Andhra Pradesh, Crl. Appeal no. 1165 of 2010 decided by Hon'ble Supreme Court of India on 06.07.2010, CC No.532295/16 State Vs Gurpreet Singh Walia. 31 (8) State of Madhya Pradesh Vs Jiyalal, Crl. Appeal no. 1386 of 2009 decided by Hon'ble Supreme Court of India on 31.07.2009, (9) Tinku Ram Vs State, Crl. Appeal no. 841/2011 decided by Hon'ble Delhi High Court on 13.09.2011.
56.Ld. Counsel for the accused in support of his arguments has relied upon the following citations :-
(1) Anvar P.V. Vs P.K. Basheer & Ors., Civil Appeal no.
4226/2012, decided on 18.09.2014 by Hon'ble Supreme Court of India, (2) S.K. Saini & Anr. Vs CBI, Crl. A. No.159/2005, decided on 1908.2015 by Hon'ble Delhi High Court, (3) Anil Kumar Tito @ Anil Kumar Sharma Vs State NCT of Delhi decided on 29.05.2015 by Hon'ble Delhi High Court, (4) Jagdeo Singh @ Jagga Vs State, Crl. A. No. 527/2014 decided on 11.02.2015 by Hon'ble Delhi High Court, (5) Sharadendu Tiwari Vs Ajay Arjun Singh, E.P. No.01/2014 decided on 17.01.2017 decided by Hon'ble High Court of Madhya Pradesh, (6) Kundan Singh Vs State, Crl. A. 711/2014 decided on 24.11.2015 by Hon'ble Delhi High Court, (7) Sanjaysingh Ramrao Chavan Vs Dattatray Gulabrao Phalke & Anr., Crl. A. No. 97/2015 decided on 16.01.2015 by Hon'ble Supreme Court of India, (8) R.M. Malkani Vs State of Maharashtra, 1973 AIR 157, 1973 SCR(2) decided on 22.09.1972, Supreme Court of India, (9) Ram Singh & Ors. Vs Col. Ram Singh, 1986 AIR 3, 1985 SCR CC No.532295/16 State Vs Gurpreet Singh Walia. 32 Supl. (2) 399, (10) K.K. Velusamy Vs N. Palaanisamy, Civil Appl. No. 2795- 2796/2011 decided on 30.03.2011 by Hon'ble Supreme Court of India, (11) Krishan Chander Vs State of Delhi, Crl. Appeal no. 14/2016 decided on 06.01.2016 by Hon'ble Supreme Court of India, (12) P. Satyanarayana Murthy Vs Dist. Insp. of Police & Anr., Crl. Appeal no. 31/2009, decided on 14.09.2015 by Hon'ble Supreme Court of India, (13) S. Sukumaran Vs State of Kerala, Crl. Appl. no. 192/2015 decided on 29.01.2015 by Hon'ble Supreme Court of India, (14) B. Jayaraj Vs Stae of A.P., Crl. Appl. no. 696/2014 decided on 28.03.2014 by Hon'ble Supreme Court of India, (15) Banarasi Dass Vs State of Haryana, Crl. Appl. no. 630/2003 decided on 05.04.2010 by Hon'ble Supreme Court of India, (16) State of Maharashtra Vs Dnyaneshwar Laxman Rao Wankhede, Crl. Appl. no.1350/2009 decided on 29.07.2009 by Hon'ble Supreme Court of India, (17) C.M. Girish Babu Vs CBI, Crl. Appeal no.377/2009 decided on 24.02.2009 by Hon'ble Supreme Court of India, (18) State of Kerala & Anr. Vs C.P. Rao, Crl. Appl. no.1098/2006 decided on 16.05.2011 by Hon'ble Supreme Court of India, (19) M.K. Harshan Vs State of Kerala, AIR 1995 SC 2178, (20) Hem Chander Vs State of Delhi, Crl. Appl. no. 9/2003 decided on 02.07.2013 by Hon'ble Delhi High Court, (21) Sat Paul Vs Delhi Administration, AIR 1976 SC 294, (22) State of Punjab Vs Madan Mohan Lal Verma, Crl. Appl. no. 2052/2010 decided on 12.08.2013 by Hon'ble Supreme Court of CC No.532295/16 State Vs Gurpreet Singh Walia. 33 India, (23) R. Maheswaran Vs State, Crl. Appl. No.362/2005 decided on 09.12.2014 by Hon'ble Madras High Court, (24) Suresh Rai & Ors. Vs State of Bihar, 2000(4) JT 12 decided on 30.03.2000 by Hon'ble Supreme Court of India, (25) Mukhtiar Singh Singh (Decd.) Vs State of Punjab, Crl. Appeal no. 1163/2017 decided on 14.07.2017 by Hon'ble Supreme Court of India, (26) Ramesh Thakur Vs State (NCT of Delhi) & Anr., Crl. M.C. 2019/2011 decided on 24.05.2013 by Hon'ble Delhi High Court, (27) Bir Singh & Ors. Vs State of Uttar Pradesh, AIR 1978 SC 59, (28) State of M.P. Vs Pappoo @ Saleem & Ors., Crl. Appeal no.507/94 decided on 18.05.2010 by Hon'ble M.P. High Court, (29) Prem Singh Yadav Vs CBI, Crl. Appl. no. 206/2002 decided on 25.03.2011 by Hon'ble Delhi High Court, (30) Nilesh Dinkar Paradkar Vs State of Maharashtra, Crl. Appl. No.537/2009 decided on 09.03.2011 by Hon'ble Supreme Court of India, (31) Harchand Singh & Anr. Vs State of Haryana, 1974 AIR 344, (32) Suraj Mal Vs State (Delhi Admn.), AIR 1979 SC 1408, (33) Dr. H. Prakash Pai Vs State of Kerala, Crl. A. No.2294/2006 decided on 29.06.2015, Hon'ble Kerala High Court, (34) A. Kanagarajan Vs State, Crl. Appl. (MD) No.101/2009 decided on 01.12.2014 by Hon'ble Madras High Court, (35) Lalu Vs State of M.P., 2003 Crl. L.J. 1992, 2003(2) MPHT 345, (36) State of Andhra Pradesh Vs Punati Ramulu & Ors., AIR 1993 SC 2644, CC No.532295/16 State Vs Gurpreet Singh Walia. 34 (37) T.T. Antony Vs State of Kerala & Ors., Appl. (crl.)/2001 decided on 12.07.2001 by Hon'ble Supreme Court of India, (38) Deo Pujan Thakur & Ors. Vs State of Bihar, 2005(1) BLJR 281, 2005 Crl. L.J. 1263, (39) Bhagirath VS State of Madhyra Pradesh, AIR 1976 SC 975, 1976 Cri. L.J. 706, (40) Sharad Birdhi Chand Sarda Vs State of Maharashtra, 1984 AIR 1622, 1985 SCR(1) 88, (41) Nanhar & Ors. Vs State of Haryana, Crl. Appl. no.2496/2009 decided on 11.06.2010 by Hon'ble Supreme Court of India, (42) Dhananjay Singh Bhadoria Vs State, Crl. A. No.198/2011 decided on 31.05.2011 by Hon'ble Supreme Court of India, (43) Narender Kumar Vs State (NCT of Delhi), Crl. Appl. no. 2066-67/2009, decided on 25.05.2012 by Hon'ble Supreme Court of India, (44) Meena Kumari Vs State of Jharkhand, Crl. Rev. No.319/2006 decided on 31.10.2017 by Hon'ble Jharkhand High Court, (45) Pawan Kumar Vs Delhi Administration decided on 17.08.1987 by Hon'ble Supreme Court of India, (46) State Vs Sunil Kumar @ Sagar @ Rahul & Ors., Crl. Leave Pet. No.8/2013 decided on 27.01.2015 by Hon'ble Delhi High Court, (47) Vijay Singh Vs State of M.P., 2005 Crl. L.J. 299, (48) Sahib Singh Vs State of Haryana decided on 28.07.1997 by Hon'ble Supreme Court of India, (49) Jai Parkash Singh Vs State of Bihar & Anr., Crl. Appeal no. 525-526/2012 by Hon'ble Supreme Court of India, (50) Bhajan Singh @ Harbhajan Singh Vs State of Haryana, Crl.
CC No.532295/16 State Vs Gurpreet Singh Walia. 35 Appl. no.562/2007 decided on 04.07.2011 by by Hon'ble Supreme Court of India, (51) Kishan Singh (D) Through LRs Vs Gurpal Singh & Ors., Crl. Appl. No.1500/2010 decided on 12.08.2010 by Hon'ble Supreme Court of India, (52) State of A.P. Vs M. Madhusudhan Rao, Arising out of SLP (Crl.) No.3426/2007 decided on 24.10.2008 by Hon'ble Supreme Court of India, (53) Tomaso Bruno & Anr. Vs State of U.P., Crl. Appl. No.142/2015 decided on 20.01.2015 by Hon'ble Supreme Court of India, (54) Musauddin Ahmed Vs State of Assam, Crl. Appl. no. 879/2004 decided on 06.07.2009 by Hon'ble Supreme Court of India, (55) CBI Vs Ashok Kumar Aggarwal, Crl. Appl. no. 1838/2013 decided on 31.10.2013 by Hon'ble Supreme Court of India, (56) State of Karnataka Vs Ameer Jan, Appeal (Crl.) No. 766/2001 decided on 18.09.2007 by Hon'ble Supreme Court of India, (57) P.L. Tatwal Vs State of M.P., Crl. Appeal no.456/2014 decided on 19.02.2014 by Hon'ble Supreme Court of India, (58) State of T.N. Vs M.M. Rajendran, (1998) 9 SCC 268, (59) Mansukhlal Vithaldas Chauhan Vs State of Gujarat decided on 03.09.1997 by Hon'ble Supreme Court of India, (60) Kuldeep Mathur Vs State of Rajasthan, S.B. Civil Writ Pet. No. 1138/2012, Hon'ble Rajasthan High Court, (61) Sunil Kumar Vs State, Crl. Appeal no.1213/2013 decided on 06.01.2015 by Hon'ble Delhi High Court.
CC No.532295/16 State Vs Gurpreet Singh Walia. 36 Sanction U/s 19 of P.C. Act for Prosecution of Accused :
57. Ld. Defence counsel has vehemently argued and has also stated so in his written arguments at page-38 that there is no valid prosecution sanction against the accused and that the sanction Ex.PW23/A is not valid sanction order as the competent authority who granted sanction for prosecution of the accused is Hon'ble L.G and as per the noting of Sh. Shantanu Singh, OSD dated 31.01.2012 in Para-190-Ex.PW32/DD, it has been mentioned that Hon'ble L.G. has sanctioned prosecution of the accused. However, the prosecution has failed to produce any such order of Hon'ble L.G. which is referred to in the said noting. The document Ex.PW32/D and Ex.PW32/F also mentioned that the Hon'ble L.G. has granted sanction for prosecution of the accused. However, the prosecution has not brought any order by which sanction might have granted, therefore, Ex.PW23/A is not a valid sanction. The relevant portion of Mark-PW32/DD is reproduced as under : -
"Hon'ble L.G. has sanctioned prosecution of Sh. G.S. Walia, Dy. Electrical Inspector. He has directed that the proposed sanction order to be issued be sent to him for his perusal and approval before its issued."
58. The above noting clearly shows that Hon'ble L.G. further directed that the draft prosecution sanction order to be issued be sent to him. This shows that the formal sanction order was yet to be issued and signed. The signatures of Hon'ble L.G. are appearing on Ex.PW32/F at point-A. The noting Ex.PW32/F bearing the CC No.532295/16 State Vs Gurpreet Singh Walia. 37 signatures of Hon'ble L.G. at point A also negates the arguments of the defence that the prosecution has not brought on record any order or noting of Hon'ble L.G. by which he might have granted sanction. The document Mark-PW32/DD shows that the file was under process and the Hon'ble L.G. after granting sanction had asked for the proposed sanction order to be issued to be sent to him in January 2012. Thereafter, as per Ex.PW32/F, the Hon'ble L.G. had granted the sanction. In fact, document Ex.PW32/F shows that even the representation given by the accused was examined before grant of sanction.
59.It has also been argued that in Ex.PW32/D, the Hon'ble L.G. has accorded approval of the draft of prosecution sanction order sent by ACB to the Hon'ble L.G. which implies non-application of mind by the sanctioning authority. However, the noting of Sh. Shantanu Singh on 31.01.2012 as per Mark-PW23/DC shows that the Hon'ble L.G. had directed that proposed sanction order to be issued be sent for his perusal and therefore, there is nothing to suggest that any draft of sanction order was sent to Hon'ble L.G. by ACB. Even in the noting dated 12.03.2012 by Sh. Ramesh Tiwari at Page-49N Ex.PW23/DD, it is mentioned that "as further directed a draft sanction order duly vetted by the Directorate of Vigilance, Govt. of NCT of Delhi is placed at page-146-147/C for consideration of Hon'ble L.G." These notings clearly establish that no draft sanction order was sent by ACB (Anti Corruption Branch).
60.Another arguments of the Ld. Defence counsel is that Kamal Malhotra, Dy. Labour Commissioner was never appointed as Dy. Secretary, Labour, therefore he was not legally competent to authenticate or issue any order in the name of Hon'ble L.G. in view CC No.532295/16 State Vs Gurpreet Singh Walia. 38 of Section 44(3) of the Government of NCT of Delhi Act, 1991 read with Rule 2 of the "Government of NCT of Delhi (Authentication of Orders and other Instruments) Rules, 1992, as amended by the Government of NCT of Delhi (Authentication of Orders and other Instruments) Amendment Rules, 2000.
61. In order to appreciate the facts in correct prospects, the relevant noting on Ex.PW32/D are being reproduced below :-
"Since Sh. Piyush Sharma, Joint Secretary (Labour) is on leave till 6 th July, 2012 it is proposed that the prosecution sanction order may be signed by Sh. Kamal Malhotra, Dy. Secretary (Labour) keeping in view the urgency in the above said matter. The rest of the prosecution sanction order will remain same in view of its approval by on Hon'ble Lt. Governor, Delhi."
62. The above noting in the file shows that the order was signed by Sh.
Kamal Malhotra as Sh. Piyush Mishra, Joint Secretary was on long leave. Therefore, it cannot be said that the prosecution sanction is not valid sanction.
63. The next argument of Ld. Defence counsel is that Hon'ble L.G. could not have applied his mind on the material placed before him as some of the material such as CD Ex.P1, spy recorder with memory card Ex.PW18/P1, FSL report dated 24.08.2012, identification memo dated 08.10.2010, seizure memo dated 08.10.2010, other seizure memos, statement of complainant dated 15.12.2010, statement of Sh. Joginder Lather, Sunil Soni, statement CC No.532295/16 State Vs Gurpreet Singh Walia. 39 of some police officials etc. were never placed before Hon'ble L.G. for perusal. Perusal of Ex.PW32/F shows that one of the FSL report about the authenticity of the video recording was considered before grant of sanction. As already observed, even the representation of the accused was considered before grant of sanction. The sanction order also indicates that after carefully examining the relevant evidence, copy of FIR, copy of seizure memo, copy of FSL result, copy of transcript of conversation, copy of statement of witnesses and other officials recorded under section 161 Cr.P.C., Hon'ble L.G. was of the opinion that a prima facie case for grant of sanction against the accused is made out.
64. Ld. Counsel for the accused has relied upon the judgment State of Karnataka Vs Ameer Jan, Appeal (crl.) 766 of 2011 decided on 18.09.2007 by the Hon'ble Supreme Court of India, wherein it has been observed that :
".............Ordinarily, before passing an order of sanction, the entire records containing the materials collected against the accused should be placed before the sanctioning authority."
65. Ld. Counsel for the accused has further relied upon P.L. Tatwal Vs State of M.P., Crl. Appl. No. 456/2014 decided on 19.02.2014 by the Hon'ble Supreme Court of India observing that :
"The grant of sanction is only an administrative function. It is intended to protect public servants against frivolous and vexatious litigation. It also ensures that a dishonest officer is brought before law and is tried in accordance with law. Thus, it CC No.532295/16 State Vs Gurpreet Singh Walia. 40 is a serious exercise of power by the competent authority. It has to be apprised of all the relevant materials, and on such materials, the authority has to take a conscious decision as to whether the facts would reveal the commission of an offence under the relevant provisions. No doubt, an elaborate discussion in that regard in the order is not necessary. But decision making an relevant materials should be reflected in the order and if not, it should be capable of proof before the court.
In such circumstances, we are of the view that the trial court should conduct a proper inquiry as to whether all the relevant materials were placed before the competent authority and whether the competent authority has referred to the same so as to form an opinion as to whether the same constituted an offence requiring sanction for prosecution."
66. Ld. Counsel has further placed reliance upon State of T.N. Vs M.M. Rajendran, (1998) 9 SCC 268, wherein it has been held that :
"It appears that the Commissioner of Police had occasion to consider a report of the Vigilance Department. Even if such report is a detailed one, such report cannot be held to be the complete records required to be considered for sanction on CC No.532295/16 State Vs Gurpreet Singh Walia. 41 application of mind to the relevant materials on records."
67. Ld. Defence Counsel has also relied upon the judgment Mansukhlal Vithaldas Chauhan Vs State of Gujarat, decided on 03.09.1997 by the Hon'ble Supreme Court of India, wherein it has been observed that :
"The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority. Since the validity of "Sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows, that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be CC No.532295/16 State Vs Gurpreet Singh Walia. 42 sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force by acting upon it to take decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution."
68. Ld. Counsel for the accused has also placed reliance on CBI Vs Ashok Kumar Aggarwal, decided on 31.10.2013 by the Hon'ble Supreme Court, wherein it has been held that :-
"(a) The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge sheet and all other relevant material.
The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the CC No.532295/16 State Vs Gurpreet Singh Walia. 43 basis of which, the competent authority may refuse sanction.
(b) The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withheld the sanction.
(c) The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
(d) The order of sanction should make it evidence that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.
(e) In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law."
69. Certainly, it is the duty of the prosecution to send entire record of the case to the sanctioning authority and the emphasis of the Hon'ble Supreme Court in the above case is also that the record CC No.532295/16 State Vs Gurpreet Singh Walia. 44 should be sent alongwith material and document that may tilt the balance in favour of the accused and on the basis of which competent authority may refuse the sanction. Though, Ld. Counsel for the accused has vehemently argued that the entire record was not sent but he has failed to show as to which of the documents which the prosecution had not sent, would have tilted the balance in favour of the accused. None of the document which were not sent to the Hon'ble L.G. could have formed basis for refusing sanction. The accused has not been able to point out any document or material which if would have been put before the Hon'ble L.G. (but was not sent to Hon'ble L.G. by the IO) might have tilted the balance in favour of the accused and on the basis of which it can be said that if the said document would have been brought to the notice of the Hon'ble L.G., he would not have granted sanction for prosecution of the accused. The accused has also not been able to show that the discretion vested in the Hon'ble L.G. was affected by any extraneous consideration or that the mind of sanctioning authority was under pressure from any corner.
70. It has also been argued that a fabricated and edited transcript was sent to the Hon'ble L.G. in which the words "table par rakhe" have been attributed to the accused whereas these words were clarificatory in nature. The only fabrication, if any, as alleged by the defence is that words "table par rakhe" were not mentioned in brackets but the said brackets have been put later on. In the transcript sent to the Hon'ble L.G., the brackets were missing and therefore, it seemed that the words "table par rakhe" were uttered by the accused. To my mind, mere omission of brackets in the copy of the transcript sent to Hon'ble L.G., is not sufficient to discredit CC No.532295/16 State Vs Gurpreet Singh Walia. 45 the entire sanction order. In fact, perusal of the file of sanction shows that a lot of other material was also considered before grant of sanction and the transcript was only one of the material which was considered for grant of sanction. The Hon'ble L.G. has also mentioned that he has also considered all the facts brought out by the Labour Department, from Page-42 onwards (as per Ex.PW32/F) and thereafter, Hon'ble L.G. has accorded sanction. Page-42 is Ex.PW32/DB which shows that the facts of the case apart from the FIR, endorsement on the FIR, seizure memo, FSL report, statement of witnesses under section 161 Cr.P.C. of Parshuram, Amit Sharma, Prem Singh, Avinash Aggarwal, Joginder Singh Lather and Sunil Soni were also considered. The transcript of the conversation was one of the material which was considered apart from the other material which has been considered. The representation of the accused dated 11.01.2012 addressed to Hon'ble L.G. was also considered and therefore, it can be said that the transcript was the sole document on the basis of which the Hon'ble L.G. has granted sanction.
71. As regards application of mind by sanctioning authority in 2013 (8) SCC 119 State of Maharashtra through CBI Vs Mahesh Jain, following principles were culled out :-
"14.1 It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
14.2 The sanction order may expressly show that the sanctioning authority has perused the material CC No.532295/16 State Vs Gurpreet Singh Walia. 46 placed before it and, after consideration of the circumstances, has granted sanction for prosecution.
14.3 The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it.
14.4 Grant of sanction is only an administrative function and the sanctioning authority is required to prime facie reach the satisfaction that relevant facts would constitute the offence.
14.5 The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
14.6 If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction.
14.7 The order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity."
CC No.532295/16 State Vs Gurpreet Singh Walia. 47 It was further held that :
"True it is, grant of sanction is a sacrosanct and sacred act and is intended to provide a safeguard to the public servant against vexatious litigation but simultaneously when there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. The flimsy technicalities cannot be allowed to become tools in the hands of an accused."
72. Thus, grant of sanction is an administrative function and only prima facie satisfaction of the sanctioning authority is needed. The adequacy or inadequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order and when there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. Also, flimsy technicalities cannot be allowed to become tools in the hands of accused.
73. In view of the above discussion, it cannot be said that the order of sanction for prosecution of accused is not valid or illegal.
Refusal by Accused to give his Voice Sample and Adverse Inference :
74. PW-2 Sh. Tanvir Aizaj panch witness has stated that on 09.10.2010, a notice was served to accused to give his consent for voice sample. The notice is Ex.PW2/A. The accused had requested for some time to give reply and time was granted to accused. On the notice Ex.PW2/A, there is a noting in the handwriting of the accused to allow him to give some time to respond to the notice.
75.Another panch witness PW-3 Padam Singh has stated that on CC No.532295/16 State Vs Gurpreet Singh Walia. 48 15.10.2010, notice Ex.PW3/A was issued to the accused for his consent regarding voice sample and the accused had stated that he agreed to give his voice sample as and when called for this purpose. This witness has not been cross-examined on behalf of accused, so his testimony remained unrebutted.
76. PW-8 Kishan Lal Verma is another panch witness who is also a witness of arrest of accused. He has also stated that a notice was served upon the accused to give his consent to give sample voice and the said notice is Ex.PW8/C. On this Ex.PW8/C, the accused has made a noting that he is willing to give his voice sample, if such a direction is given by the competent authority.
77. PW-9 Virender Pal Singh is another witness who has stated that accused was taken to FSL for sample voice but the accused had refused to provide his voice sample to FSL official and memo Ex.PW9/A was prepared in this regard. During his cross- examination, PW-9 has stated that accused has also put his note/reply on Ex.PW9/A. The reply of the accused to the various notices issued for giving consent for recording of his sample voice are reproduced below :
"You are requested to kindly allow me some time till Monday to respond to this notice" (reply dated 09.10.2010 of accused, to notice for consent for sample voice) "I agree for voice sample. I will come as and when you call me for this purpose" (reply dated 15.10.2010 of accused, to notice for consent for sample voice) CC No.532295/16 State Vs Gurpreet Singh Walia. 49 "I am willing to give voice sample if such a direction/order is given by the competent court"
(reply dated 11.11.2010 of accused, to notice for consent for sample voice) "In response to your similar notice dated 11.11.2010, I had mentioned that I am willing to give voice sample if such a direction is given by the competent court. I shall give my voice sample for comparison as soon as the competent court directs me to do so" (reply dated 12.11.2010 of accused, to notice for consent for sample voice)
78. Another witness PW-16 Raj Kumar Malcat has also proved Ex.PW9/A and has stated that his signatures are at point-C in the Ex.PW9/A and the accused had refused to give his sample voice before FSL official.
79. All these notices clearly established that accused was repeatedly asked to give his consent for voice sample but the accused had initially sought time to give his reply. On 15.10.2010, the accused had agreed also to give his sample voice but later on refused to give his consent for the same. During the course of trial, an application under section 91 Cr.P.C. was moved by the accused for issuing directions/orders for production of documents i.e. the reply sent by the accused to the notice issued by the IO. It was stated that the original letter/document received in the office of ACB has not been CC No.532295/16 State Vs Gurpreet Singh Walia. 50 placed on record by the prosecution. The said application was disposed of vide order dated 11.12.2017 and the relevant portion of order dated 11.12.2017 is reproduced as follows :
"First of all, taking up application U/s 91 Cr.P.C. of the accused moved on 20.05.2017, the IO has filed reply to the same stating that reply of the accused to the notice under section 91 Cr.P.C. was kept in the police file. The reply, alongwith the case law relied upon by the accused in its reply, runs into 11 pages. As the IO in his reply to the application of the accused has submitted that he has received reply to the notice U/s 91 Cr.P.C., the same should have been filed by the IO alongwith the chargesheet and the IO should not have withheld the said documents/reply of accused from the court. The application of the accused U/s 91 Cr.P.C. is, thus, allowed in the interest of justice and the prosecution is directed to place reply of the accused to the notice U/s 91 Cr.P.C. on record".
80. In pursuance to this order, the said document was filed on 10.01.2018 and was marked as Mark-S1 (for identification purpose). Further in the order dated 11.12.2017, it was observed that :-
"Third is the application U/s 311 Cr.P.C. of the accused for recalling PW-24 Insp. Meghraj for further CC No.532295/16 State Vs Gurpreet Singh Walia. 51 cross examination. It is stated that no reply is to be filed on behalf of the prosecution and Ld. Addl. PP for the State has advanced his arguments orally and directly on the application.
Heard. Perused the record.
In the application, it has been prayed that the PW-24 may be directed to place on record letter/reply received in A.C. Branch vide diary entry no. 2755 dated 26.04.2011. This prayer has already been allowed as the application U/s 91 Cr.P.C. has been allowed above and the prosecution has already been directed to place on record the reply sent by the accused and received in A.C. Branch against diary entry no. 2755 dated 26.04.2011. As far as recalling PW-24 for further cross-examination is concerned, Ld. Counsel for the accused has argued that they want to cross-examine PW-24 regarding the legal provisions which could compel the accused to give his voice sample and regarding procedural aspect of the recording of the voice sample. The relevant cross-examination of PW- 24 already conducted in this respect is as follows (testimony of PW-24 dated 13.02.2017 after lunch) :
"It is correct that whenever notice was issued to the accused for providing his voice samples, he replied to the same in writing. It is incorrect to suggest that accused never refused to give his voice sample. Witness after going through the record submits that in response to Ex.PW8/C and Ex.PW9/A accused made endorsement that he would give his voice sample only on the orders of the CC No.532295/16 State Vs Gurpreet Singh Walia. 52 Hon'ble Court. I did not move an application before the Court seeking directions for obtaining voice sample of accused. Vol. I did not feel it necessary to do so."
The necessary question regarding reply of the accused sent vide diary entry no. 2755, have already been put to the PW-24 during his cross-examination. As far as the questions relating the legal knowledge of the IO or the procedural aspect is concerned, the same are not relevant and only factual questions can be put to the witness.
Ld. counsel for the accused has also argued that the reply of the accused sent to the A.C. Branch needs to be exhibited during further cross-examination of PW-
24. As the reply sent by the accused is an admitted document by the prosecution as well by the accused, same may be referred to by both the parties at the time of final arguments."
81. Mark-S1 is the reply sent by the accused to the ACB and is an admitted document by both the parties. The accused in Mark-S1 has stated that at the stage of investigation, the accused cannot be compelled to give his voice sample just as he cannot be compelled to undergo Test Identification Parade. He has also relied upon Rakesh Bisht Vs CBI, 2007 Crl. L.J. 1530 wherein it is held that the court cannot direct the accused to give his voice sample on the application of the IO, specially when the chargesheet has not been filed and there is no special act to deal with the sample voice. The relevant portion on which Ld. Counsel for the accused relied upon CC No.532295/16 State Vs Gurpreet Singh Walia. 53 is reproduced as follows : -
"18. The accused, at the stage of investigation, cannot be compelled to give his voice sample just as he cannot be compelled to undergo a test identification parade. It is for him to give or not to give his voice sample in the course of investigation and the court cannot, during investigation, direct the accused to give his voice sample."
82. In the above judgment, it has also been held that : -
"In my view, the court may permit the taking of voice sample only for the purposes of identification. But these voice samples would not be admissible if they contain inculpatory statements. That is so because, in that eventuality, the accused would have been compelled to be a witness against himself. However, this does not mean that the court can pass an order directing an accused to give samples of his voice even during the pendency of investigation."
83. Certainly after hearing Ld. Counsel for the accused, I am in total agreement with the counsel for the accused that the court or the IO cannot compel or give directions to accused to give his voice sample just as in case of TIP and the voice sample of the accused can only be taken with his consent and the court can only permit the taking of the sample voice for the purposes of identification after obtaining consent of accused. However, it is also the pious duty of the IO to explain to the accused that in case he refuses to give his CC No.532295/16 State Vs Gurpreet Singh Walia. 54 voice sample then an adverse presumption is likely to be drawn against him as in the case of Test Identification Parade. Certainly no direction can be given to the accused to give his voice sample without his consent, nor the accused can be compelled to give his voice sample and it is the discretion of the accused to give or not to give his sample voice.
84. In the notice of the IO asking the accused to give his sample voice i.e. Ex.PW8/C, the IO has specifically stated that :
"Agar aap voice analysis test karwana chaahte hai to apni likhit sahmati de, anytha yeh samjha jaayega ki Video CDs me recorded riswat maangne ki aawaj aapki hai, isliye aap voice analysis test ke liye sample voice nahi dena chaahte hai".
85. Similarly, it was explained to the accused that an adverse presumption is likely to be drawn, if he refused to give his sample voice also through notices Ex.PW2/A, Ex.PW3/A and Ex.PW9/A. Thus, the fact that if the accused does not give his consent to record his voice sample, then an adverse presumption is likely to be drawn was explained by the IO through each and every notice served upon the accused to give consent to record his sample voice but the accused still did not give his consent for recording of sample voice and rather replied through his reply 'Mark-S1', that he cannot be compelled to give his sample voice and he would give the sample voice only if competent court directs him to do so.
86. Hon'ble Delhi High Court in Bail Appl. No. 1784/2015 & Crl.
CC No.532295/16 State Vs Gurpreet Singh Walia. 55 M.A. 13268-69/2016 titled Arun Kumar Mishra Vs State, has observed that :-
"The interim protection was granted to the applicant on the condition that he would join and cooperate with the investigative process. The applicant has failed to abide by the said conditions. His refusal to give sample of his voice may eventually give rise to adverse inference against him"
87. Therefore, the fact that an adverse inference is likely to be drawn in case the accused refuses to give his voice sample has been explained to him by the IO and despite that the accused did not consent to give his voice sample. As the accused had not given his consent to give his sample voice despite several notices and despite explaining him about adverse inference, the adverse inference is hereby drawn that one of the voices in the CD Ex.P1 is of the accused.
Admissibility of CD Ex.P1 and the Report of Forensic Expert :
88. Ld. Counsel for the accused has argued that the prosecution has not produced any certificate as required under Section 65B(4) of the Evidence Act in respect of CD Ex.P1, therefore, the CD is not admissible in evidence and no oral evidence or opinion of Examiner of electronic evidence on CD Ex.P1 can be taken in view of the law laid down by the Hon'ble Supreme Court in Anvar P.V. Vs P.K. Basheer. For the same reason, the transcript Ex.PW18/B, identification memo Ex.PW12/B and FSL reports Ex.PW21/A and Ex.PW21/B are also inadmissible, as they are derivatives of the CD CC No.532295/16 State Vs Gurpreet Singh Walia. 56 which itself is inadmissible.
89. In case titled as Anvar P.V. Vs P.K. Basheer, AIR 2015, SC 180, it has been observed that :
"Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub-section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act :
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
Under Section 65B(4) of the Evidence Act, if it is desired CC No.532295/16 State Vs Gurpreet Singh Walia. 57 to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied :
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc. pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A- Opinion of examiner of electronic evidence.
The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India."
90.The above judgment was again discussed in the case Shafhi Mohammad Vs State of Himachal Pradesh, in Special Leave Petition (Crl.) No.2303 of 2017 by Hon'ble Supreme Court and vide CC No.532295/16 State Vs Gurpreet Singh Walia. 58 order dated 30.01.2018 the Hon'ble Supreme Court observed as follows :
"We may, however, also refer to judgment of this Court in Anvar P.V. Vs P.K. Basheer and Others, (2014) 10 SCC 473, delivered by a Three-Judge Bench. In the said judgement in para 24 it was observed that :
"Electronic evidence by way of primary evidence was covered by Section 62 of the Evidence Act to which procedure of Section 65B of the Evidence Act was not admissible. However, for the secondary evidence, procedure of Section65 B of the Evidence Act was required to be followed and a contrary view taken in Navjot Sandh (supra) that secondary evidence of electronic record could be covered under Sections 63 and 65 of the Evidence Act, was not correct. There are, however, observations in para 14 to the effect that electronic record can be proved only as per Section 65B of the Evidence Act.
Though in view of Three-Judge Bench judgments in Tomaso Bruno and Ram Singh (supra), it can be safely held that electronic evidence is admissible and provisions under Section 65A and 65B of the Evidence Act are by way of a clarification and are procedural provisions. If the electronic evidence is authentic and relevant the same can certainly be admitted subject to the Court being satisfied about its authenticity and procedure for its admissibility may depend on fact situation such as whether the person producing such evidence is in a position to furnish certificate under Section 65B (h).
Sections 65A and 65B of the evidence Act, 1872 cannot be held to be a complete code on the subject. In Anvar P.V. (supra), this Court in para 24 clarified that primary evidence of electronic record was not covered under Sections 65A and 65B of the Evidence Act. The applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Section 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on CC No.532295/16 State Vs Gurpreet Singh Walia. 59 account of manner of proving, such document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B(h) is not always mandatory.
Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies."
91.Thus, the Hon'ble Supreme Court in the above case of Shafhi Mohammad, after discussing the judgment in Anvar P.V. Case held that requirement of certificate under section 65(B) is not mandatory and applicability of the requirement of certificate being procedural can be relaxed by the court wherever interest of justice so justifies. Though, one of the situation where requirement of certificate can be as discussed by the Hon'ble Supreme Court in the above judgment is where electronic evidence is produced by a party who is not in possession of original device, then in such case applicability of Section 63 and 65 of the Evidence Act cannot be held to be excluded. However, the Hon'ble Supreme Court has not stated that it is only in case where a party is not in possession of original device that the requirement of certificate under section 65B (H) can be dispensed with and thus, person producing electronic device being not in possession of original device is one of the instances wherein the requirement of the certificate being procedural can be relaxed. The Hon'ble Supreme Court categorically held that the requirement of certificate under section 65B Evidence Act is not always mandatory and the applicability of CC No.532295/16 State Vs Gurpreet Singh Walia. 60 the requirement of certificate under section 65B can be relaxed whenever interest of justice so justifies. Therefore, in view of the above judgment, let us analyze the evidence brought on record in the present case to see whether the requirement of certificate under section 65B(H) should be relaxed in the present case in the interest of justice.
92. The requirement of certificate under section 65B Evidence Act is to rule out any tampering with the electronic evidence produced on record. The CD in the present case was examined in the FSL twice i.e. first for its authenticity and secondly to match the sample voice of the complainant with one of the questioned voices in the audio- video recording. The findings of the FSL expert in report dated 09.11.2010 regarding authenticity of the audio-video recording being relevant is reproduced as follows : -
"i) The video recording in CD marked Ex.1 and spy recorder marked Ex.2 are in digital video format and there are no indication of alteration in the identified video shot on the basis of examination using Non Linear Video Editing Storage System & Video Analyst System.
ii) The recorder is capable of recording video footage............."
Similarly the FSL expert in his report dated 24.08.2012 regarding matching of sample voice of complainant opined as follows :
".............On examination the auditory analysis of recorded speech samples of speakers marked Ex.Q1 and Ex.S1 and subsequent acoustic analysis of speech samples by using CSL (Computerize Speech Lab) revealed that the voice exhibits of speaker marked Ex.Q1 are CC No.532295/16 State Vs Gurpreet Singh Walia. 61 similar to the voice exhibits of speaker marked Ex. S1 in respect of their acoustic cues and other linguistic and phonetic features. The voice exhibits of speaker marked Ex.Q1 and Ex.S1 are the voice of same person ( i.e. Shri Parshuram).............."
93. Ld. Counsel for the accused has argued that the CD and the spy recorder with memory card was sent to FSL twice and on both the occasions, it is alleged that the recording was made on 22.09.2010 and no opinion as to the actual date of recording was sought from the FSL. It is argued that the date of creation of CD Ex.P1 is 22.09.2010 whereas the IO Insp. Meghraj PW-24 has deposed in his testimony that he had burnt the CD Ex.P1 on 08.10.2010 in the presence of complainant Parshuram and Amit Sharma. It is stated that the statement of the IO is also contradictory to the date of creation i.e. 22.09.2010 as seen in the properties of the CD.
94. It is further argued by the accused that it is not possible for Parshuram to prepare the CD on the same day as it was already handed over to the IO on the next day i.e. 14.09.2010. It is also argued that as per the identification memo Ex.PW12/A, the recording was burnt in the office of ACB in the presence of PW Avinash Kumar Aggarwal. Whereas PW-17 stated that he does not know the name of the person who burnt the CD in the office of ACB. It is also argued that the date i.e. 15.01.2008 appeared on the screen when the file AVSEQ01.DAT in the CD was played on the laptop during the testimony of PW-19 Amit Sharma. It is further argued that PW-21 Dr. C.P. Singh has stated that he had found four deleted files in the memory card and four deleted files were created on 17.01.2008, 23.01.2008, 24.01.2008 and 06.08.2012 and CC No.532295/16 State Vs Gurpreet Singh Walia. 62 therefore, none of the deleted files found in the spy recorder Ex.PW18/P1 was created on the date of alleged recording i.e. 13.09.2010. It is also stated that if the memory card was in the custody of the police then how video file has been created on 06.08.2012 and the said file created on 06.08.2012 was also deleted and it proves that there has been tampering in Ex.PW18/P1.
95. The relevant portion of testimony of PW-21 Dr. C.P. Singh is as follows :
".............On examination of video images in CD marked as Ex. 1 and audio-video recorder marked Ex. 2, the following were observed:
The video recording in CD marked Ex. 1 and spy recorder marked Ex. 2 are in digital video format and there are no indication of alteration in the identified video shot on the basis of examination using Non Linear Video Editing Storage System & Video Analyst System. The recorder is capable of recording video footage............."
".............On 19.07.12, three sealed parcels were received in the office in connection of the aforesaid FIR. The first and the third parcel were the same parcels which were sent earlier and found sealed with the seal of Dr. C.P. SINGH-FSL-DELHI. The speaker starts with the words "Namaskar Sir........................Vo Uske Liye" in CD marked Ex. 1 was marked as Ex. Q1.
On opening the second parcel it was found sealed with the seal of MRG at five places containing one audio cassette mark Ex. O. Ex. O was audio cassette of T-Series, containing specimen voice sample of the speaker (Parshuram). The speaker was marked Ex. S1 The opinion given by me is as under:
"On examination the auditory analysis of recorded speech samples of speakers marked Ex. Q1 and Ex. S1 and subsequent acoustic analysis of speech samples by using CSL (Computerize Speech Lab) revealed that the voice exhibits of speaker marked Ex. Q1 and similar to the voice exhibits of speaker marked Ex. S1 in respect of their acoustic cues and other linguistic and phonetic features.
The voice exhibits of speaker marked Ex. Q1 and Ex. S1 are the voice of same person ( i.e. Shri Pursuram).............".
CC No.532295/16 State Vs Gurpreet Singh Walia. 63 "............At this stage, Ld. APP seeks permission for putting some leading question to the witness with regard to the examination of the audio-video CD conducted by the witness.
Heard. Allowed.
Ques. Whether after seeing the audio CD, you can tell that the person sitting on the chair and whose image is appearing in the audio video CD accepted the money by putting paper weight on it?
Ans. It is correct that the person sitting in the chair wearing a turban is seen as accepting a bunch which appears to be currency notes by putting paper weight on it.
Ques. Whether after seeing the audio CD you had noticed that date and time and year 2008 is mentioned on the video footage, what does it imply?
Ans. The time stamped on the video footage is the time, date and year set on the recorder at the time of recording of the video footage on the CD.
Ques. Is it correct that the above date is called default date which reflects the date already set by the manufacturer, if not changed by the person handling the device?
Ans. It is correct.
Ques. Whether the memory card of Spy camera recorder was retrieved by you to detect all the files deleted from the memory card?
Ans. I had retrieved the deleted files namely, _UNP0001, _UNP0003, _UNP0007 and _UNP0007_Part 2. The two files already mentioned in my report namely SUNP0002 and SUNP0004 were existing as undeleted.
Ques. Whether you had used any specific software designed for forensic examination to retrieve the audio video visuals of the deleted files?
Ans. The deleted files were found corrupted as such they could not be played. I had used forensic tools to retrieve the deleted files.
Ques. Whether on transfer of a file from one media to another media the date on which the file was created is given a fresh date on which file was transferred and it is reflected in the property of the file?
Ans. It is correct.
Ques. Is it correct that file is cut and pasted on another media then the same was deleted from the original source and new date is shown in the target media in the property of the file?
Ans. It is correct.
Ques. Is it correct that if the CD is prepared by using any CC No.532295/16 State Vs Gurpreet Singh Walia. 64 burning software then on some occasion the file name, file format and property of the file are also changed in size, according to the setting of the burning software? Ans. It is correct that whenever a VCD is prepared by using a burning software new video format and file size get changed............."
96. The relevant extracts of the further cross-examination of PW-21 are :
"It is correct that all the evidence in the CD, memory card and the voice sample which have been examined by me in this case falls within the ambit of electronic evidence. I was competent to give the report already Ex.PW21/A and Ex.PW21/B. I had only answered the queries which were sent by the IO in the letters dt.13.10.10 and 19.7.12 in my report. I did not check the default date of key chain spy recorder as I was not asked to do so. As on today as there are many number of video files formats, therefore, it is not easy to change the the format of a file unless it is decompressed and is compatible.
At this stage, at request of Ld. counsel for accused, the memory card brought by the MHC(M) lying in the sealed envelope, is played on the laptop sent by ACB wherein the date appearing / stamped on the two video files No.SUNP.0002 and SUNP.0004 is 24.1.2008 and the time is 12:09:48 to 12:10:32 and 12:46:52 to 12:52:12. The date of 24.1.08 is the continuity of the default date set in the recording device. It is correct that if the user does not set the current date and time the default date will continue in each and every video footage recorded by the said recorder. I was not asked to ascertain the actual / current date of the recording of the video files No.SUNP.0002 and SUNP.0004 is 24.1.2008.
Q. Is it correct that the said key chain spy recorder records video files in .avi format and therefore the two files No. SUNP.0002 and SUNP.0004 existing in memory card are in .avi format ?
Ans. The format of the video recording produced by the recording device is in .avi format whereas the video footage is in .dat format while reproducing is a VCD. Q. Is it correct that when both the files No.SUNP.0002 and SUNP.0004 is opened on laptop then, under the heading properties, it is showing .avi format ? Ans. It is correct.
Q. Is it correct whether in the recording which was sent to you for your report, any copy/paste or cut/paste has been done while transferring data ?
CC No.532295/16 State Vs Gurpreet Singh Walia. 65 Ans. As far as preparation of the CD Ex.P1 is concerned, the video file was imported while preparing a VCD with the modified date showing as 22.9.2010. The maker of the file can tell the manner in which it was imported and whether any cut/copy/paste had been done. Q. Whether when the information is imported from the original device, then whether the process of cut/paste or copy/paste takes place automatically or an operation for it has to be done ?
Ans. For the purpose of cut/paste and copy/paste, someone has to operate and do it, it does not take place automatically.
Q. Did you verify whether the spy recorder was capable of recording of video footages having the same technical specifications of audio coding and technical specifications of video coding as shown in the files in the CD bearing file No. AVSEQ01 ?
Ans. I have already stated in my examination in chief that the recording device was capable of recording video footages and that the video recordings were reproduced on CD in the VCD format due to which the video files is in the default name as AVESQ01 on the CD............"
"............. I have mentioned in my report the format of all the files examined by me in this case. As regards the technical specifications of audio coding relating to video file AVSEQ01 (vol. Audio is embedded in the video file mentioned), the video file format is mentioned in the report. The video file in the recording device in this case was in .AVI format whereas the video file on VCD was in .DAT format. In case a VCD is prepared by importing an .AVI file format, the HASH value of the video file will get changed. It is correct that I have not mentioned the HASH value in my reports already Ex.PW21/A and Ex.PW21/B. It is correct that when the .AVI file is converted into .DAT file, the size of the file also changes. Q. Whether it is possible to retain the same file format and other properties of a video file while preparing/copying it to a CD ?
Ans. It is possible to retain the same file format in case the video file is reproduced as a data CD. Q. Is it correct that if a file is cut from the recoding device and pasted on CD writer then "burn to disc"
command is given, as in this case, then the CD is burn in data CD format and not in a VCD format ?
Ans. In this case, VCD has been prepared and not a data CD.
Q. Is it correct that in your reports Ex.PW21/A and CC No.532295/16 State Vs Gurpreet Singh Walia. 66 Ex.PW21/B you have not mentioned the make, serial number and capacity of any of the exhibits examined by you ?
Ans. I have mentioned the make of the CD and audio cassette in my reports. The make and model of key chain spy recorder is unknown hence same is not mentioned in my reports.
At this stage, on the request of Ld. Defence counsel, a parcel duly sealed with the seal of court is opened containing key chain recorder.
Q. Have you mentioned the make, serial number and capacity of the memory card in your reports Ex.PW21/A and Ex.PW21/B ?
Ans. The witness after seeing the memory card / micro SD card which is inside the key chain recorder states that the make, serial number and capacity is not mentioned in the reports Ex.PW21/A and Ex.PW21/B. (Vol. The chip bears my signatures).
Q. Is it correct that the spy key chain recorder is in damaged condition ?
Ans. It is incorrect that spy key chain recorder is in damaged condition.
Q. Is it correct that the spy key chain recorder cover is in open condition ?
Ans. It is incorrect. (Vol. The cover which inhouses the circuit is slightly detached).
Q. Whether if the electronic data is transferred from the recording device to another media by way of cut paste, the last modified date remains unchanged ?
Ans. In this case, the data CD was not prepared hence, there is no question of retaining of the last modified date. Q. Did you check how many speakers were there in the video file AVSEQ01 while preparing your records ? Ans. I had checked the same.
Q. Can you tell how many speakers were there in the above file ?
Ans. As per the reference of transcription provided with the forwarding memo, there are two relevant speakers which have been referred as A- alleged person and C - complainant.
Q. Did you verify whether there were more than 2 speakers in the AVSEQ01 ?
Ans. The relevant speakers were two as stated above. The extraneous voice was irrelevant.
I did not mention about the extraneous speakers, if any, in my reports. It is wrong to suggest that the CD is forged and fabricated and I have given an incomplete and wrong report about the CD at the instance of IO.
CC No.532295/16 State Vs Gurpreet Singh Walia. 67 Q. What is the date mentioned in the forwarding letter DT. 19.7.2012of the recording of CD ?
Ans.In the forwarding letter dt. 19.7.2012 sent by the IO to me, it was mentioned as under :
"along with two Video CDs which was recorded on 22.09.2010".
At this stage, the Ld. counsel for accused confronted the witness with the letter dt. 19.7.2012 which is on the record in which there is overwriting on the date and 13.9.10 is mentioned by overwriting. The forwarding letter sent to FSL is taken on record and is Mark DA.
Q. Is it correct that as per your report dt.9.11.2010 the name of the file available in the CD sent to you is "AVSEQ01.DAT"
Ans. Yes.
Q. Have you mentioned in your reports Ex.PW21/A and Ex.PW21/B, the date on which the file AVSEQ01.DAT was originally recorded in the primary source ? Ans. It is correct that the date on which the file mentioned above was originally recorded is not mentioned in my reports.
Q. Whether in the absence of original recording, was it possible for you to confirm whether the entire length of the original recording was copied in CD or only a portion of it could had been copied ?
Ans. In this case the video file namely AVSEQ01.DAT is an identified video shot.
Q. Which software was used by you for retrieving the deleted files ?
Ans. The exhibits were sent to the computer forensic unit for retrieving the deleted files and for hash function of the recorded data.
Q. What are the dates on which the deleted files were created ?
Ans. For answering this question, I will have to refer to the data of my case file.
At this stage, the witness after seeing the data from his case file states that the dates are 17.01.2008, 23.01.2008, 24.01.2008 and 06.08.2012.
Q. What are the dates on which the files were deleted ? Ans. This information is not available with me. Q. Is it correct that the said files could have been deleted only if a command was given ?
Ans. It is correct.
Q. What are the dates on which the files got corrupted ? Ans. I cannot tell.
Q. How many total recordings were there in the memory card sent to you for examination ?
CC No.532295/16 State Vs Gurpreet Singh Walia. 68 Ans. There were two files.
Q. Can you tell the names of the files ?
Ans. The names of the file were SUNP0002 and SUNP0004.
Q. Can you tell what were the names of deleted files prior to their deletion?
Ans. The original file names cannot be ascertained exactly after deletion.
Q. Is it correct that in case of key chain spy recorder (Ex.PW18/P1) the first recording made in the blank memory card is given the name SUNP0000 and subsequent recordings are given names SUNP0001, SUNP0002, SUNP0003 and so on ?
Ans. I cannot tell.
Q. Can you answer the same after the memory card is played ?
Ans. No. Q. Did the IO ask you to identify the images of the persons or the alleged transaction of money appearing in the video ?
Ans. No. Q. Can you tell whether any forensic technique was used to determine regarding the object on which the paper weight is allegedly being placed ?
Ans. In my examination in chief, I was shown the recording from where I stated that "--- that the person sitting in the chair wearing a turban is seen accepting a bunch which appears to be currency notes by putting paper weight on it". No query was put to me regarding examination and identification of the objects seen in the video.
Q. Is it correct that any bundle of sheets is stacked together having same size, shape and colour may appear as currency notes ?
Ans. I cannot tell.
It is incorrect to suggest that I have no knowledge regarding digital image forensic nor I have used any proper forensic software to identify any image and I am deposing falsely............"
97.The format of the video recording produced by the recording device is in .AVI format whereas the file in the VCD was in .DAT format. The file format and the property of the file depends upon burning software through which the VCD is prepared. From the testimony of PW-21, it is also clear that the date displayed in the video CC No.532295/16 State Vs Gurpreet Singh Walia. 69 footage is the time, date and year set in the recorder at the time of recording of video footage and may not necessarily be actual date of recording. Similarly, when a VCD is burnt by a burning software, then date appearing in the properties of the file is as per the default date set in the computer used for preparation of the VCD and therefore, the date 15.01.2008 appearing on the screen during the video footage is not necessarily the date of recording but is according to the default date set in the recording device. Similarly, the date 22.09.2010 appearing in the properties of the file in VCD may not be actually showing the date of preparation of the VCD but would be as per the default date set in the computer used for preparation of the CD. Merely because date 15.01.2008 is appearing in the recording, it cannot be said that the recording is forged and fabricated or a tampered one. As far as the date 06.08.2012 of one of the deleted file is concerned, PW-21 already deposed that the said file is corrupted and could not be retrieved and therefore, also from the deleted file in the spy camera recorder it cannot be said that the video recording in CD Ex.P1 is a tampered or a forged one. The accused has also filed additional arguments in this respect which have been perused, but in view of the fact that the said file was already corrupted, the date 06.08.2012 of deleted file is not relevant. PW-21 has also deposed during his cross- examination that in the present case data CD was not prepared but VCD was prepared therefore, the format of the file was changed from .AVI to .DAT. Despite extensive cross-examination of PW-21 by the defence counsel, PW-21 has stood to his ground that the video recording examined by him was an identified video shot and that the audio-video recording in the CD is not forged and CC No.532295/16 State Vs Gurpreet Singh Walia. 70 fabricated and has denied that he gave an incomplete and wrong report about the contents of the CD at the instance of IO.
98.In view of the testimony of PW-21 and in view of the above discussion, it is established that the video recording in CD Ex.P1 is authentic and there is no alteration or tampering in the same.
99.The next question arises about the source of CD Ex.P1. Let us examine the testimony of complainant PW-18 Parshuram, PW-19 Amit Kumar and PW-24 IO Insp. Meghraj in respect of source of CD Ex.P1. The complainant though has stated that he has handed over the CD to the IO but according to him, Amit Kumar had gone to get the CD prepared at the market near Civil Lines. Thus, the CD though were handed over by the complainant to the IO but were not prepared by the complainant and according to the complainant, the same were prepared by Amit Kumar. On the other hand, Amit Kumar has nowhere stated that he has prepared the CD. According to his examination in chief, the CD was played before some employee of the office of the accused and he has also seen the CD and has confirmed about the contents of the CD. He has also deposed that the A.C. Branch official has prepared one CD through Ex.PW18/P1. Though PW-19 has also identified the CD and the transaction of giving Rs.27,000/- to the accused and the accused putting paper weight on the money, but he has nowhere stated that he had prepared the CD. In fact during his cross-examination on 29.06.2015, he had stated that he had played the memory card to check the recording in the cyber cafe at Civil Lines before handing it over to the IO. But nowhere he has deposed about the preparation of CD by him. PW-24 Insp. Meghraj has stated that on 08.10.2010, the complainant Parshuram came to the office of ACB CC No.532295/16 State Vs Gurpreet Singh Walia. 71 and produced two CDs of the recording dated 13.09.2010 and had produced the instrument i.e. spy key chain camera and memory card on 11.10.2010. But during his further cross-examination on 13.02.2017, he has deposed that he had burnt the CD Ex.P1 on 08.10.2010. He has further stated that he had burnt the CD before registration of FIR. He has further stated that the complainant and Amit Kumar were present when he had burnt the CD-I and CD-II. (Burn is a colloquial terms meaning to write content to a CD, DVD or other recordable disc.)
100. The relevant portions of deposition of PW-18 Parshuram in the court is reproduced as under :
"................ I handed over to Inspector Meghraj, 2 CD of the recordings which was done by Amit when Rs.27,000/- was handed over to him............" (examination in chief dated 02.12.2014) "............During investigation, transcript was prepared by the officials of AC Branch after playing the CD probably on the computer and said transcription is Ex.PW18/B which is running into 3 pages which bears my signature at point A. The two CDs which were handed over to the Mr. Meghraj were taken into possession vide seizure memo already Ex.PW12/A which bears my signature at point B............" (examination in chief dated 02.12.2014) "............It is correct that I had handed over 2 VCDs to the Inspector Meghraj on 8.10.2010. It is correct that due to old incident, I could not explain the dates properly, the actual dates are written in the record, are correct............"
(examination in chief dated 02.12.2014) "............Some officials of AC Branch had asked me to prepare 2 CDs and gave to AC Branch. I do not remember whether I had given the CDs along with my complaint............" (cross-examination conducted on behalf of accused on 31.01.2015) "............Mr.Meghraj asked me for the CDs of the recorded conversation. Thereafter, I gave CDs to Mr. Meghraj but I do not remember the date when I gave the same.
CC No.532295/16 State Vs Gurpreet Singh Walia. 72 Mr.Meghraj asked me to give the CDs to verify the contents of my complaint before conducting the raid. It is correct that I went to my house, got the CDs and gave it to Mr. Meghraj and thereafter, raid was conducted. I had prepared the CDs by spy camera. Mr.Meghraj might have seen the CDs on the same day when I gave the complaint. I also gave the memory card and the spy recorder to IO on the same day. IO had prepared a recovery memo of said articles and obtained my signatures on the same. I might have recorded the conversation on 13.09.2010 when I went to give the bribe money to the accused. After the conversation was recorded, the spy recorder and memory card remained in the custody of Amit. The spy recorder and memory card remained in the custody of Amit till the same was handed over to IO. The spy recorder and memory card were not tampered with while in the custody of Amit. It is correct that recording of conversation on 13.9.2010 remained intact in memory card till it was given to IO............" (cross-examination conducted on behalf of accused on 31.01.2015) "............After recording the conversation with accused on 13.9.2010, I came back to my office at shop no.105, Sector-10, Plot no.1, Dwarka. I prepared the CD of the recorded conversation 2 days after recording of the same on 13.9.2010. I had prepared 2 CDs as Inspector Meghraj asked me to bring 2 CDs. I had met Inspector Meghraj during period from 13.9.2010 to 15.9.2010. Amit had gone to get prepare the CDs at the market near Civil Lines, Delhi, I was sitting in the office of AC Branch when Amit went to get the CDs prepared after 2 days from 13.9.2010. The memory card and the recorder were in the custody of Amit from 13.9.2010 to 15.9.2010............." (cross- examination conducted on behalf of accused on 09.02.2015) "............From 15.9.2010 to 29.9.2010, the spy camera, memory card and CDs remained in the custody of Amit. The recordings which were made on 13.9.2010 were available in the memory card which was handed over to IO on 29.9.2010............" (cross-examination conducted on behalf of accused on 09.02.2015) "............Amit had brought the camera, memory card, CD and spy recorder on 29.9.2010 and handed over the same to the IO. The memory card, camera, CD and spy recorder were neither sealed nor kept in a lock after recordings were made............" (cross-examination conducted on CC No.532295/16 State Vs Gurpreet Singh Walia. 73 behalf of accused on 09.02.2015) "............I had not seen the recording in the CD prior to 29.9.10. I had seen the CD in the AC Branch on 29.9.10 for the first time. I did not see the date of the recording. Amit had not made any changes in the CD after the recording. It is correct that any changes made by the Amit in the CD and memory card after its recording is not in my knowledge (vol. Amit told me that he had not made any changes)............" (cross-examination conducted on behalf of accused on 21.02.2015) "............The recording of 13.09.2010 was intact in the memory card. The recordings of the CD and memory card were the same. Amit was present at the time when CD was played by Insp. Meghraj. I & Amit saw the CD together............" (cross-examination conducted on behalf of accused on 21.02.2015)
101. The relevant portions of deposition of PW-19 Amit Kumar in the court is reproduced as under :
"............After half an hour, all the members of the raiding and Sh. Parshuram came back from the office of the accused and informed that raid had failed. In the month of October, I had again joined the investigation of this case. Some employee of office of the accused was also called in the office of AC Branch and the CD was played before them. I had also seen the said CD and I had confirmed about the contents of the CD. I do not want to say anything else............" (examination in chief dated 28.02.2015) "............(vol. I had handed over this device with memory card and all that to the AC Branch official, at that time episode of handing over and taking over the bribe was in it. The AC Branch official prepared one CD through this Ex.PW18/P1, in the said CD, the episode of taking bribe by the accused was clearly visible at that time. But the official of AC Branch might have cut-paste the said episode from the original chip and it can be reverified by the FSL after retrieving the same. I can also identify the CD which was played before me by the ACB official after preparing through Ex.PW18/P1).
At this stage, sealed pullanda sealed with the court seal is opened, out of which one CD already Ex.P-1 is taken out and played on the laptop. Witness identified the CD and particularly the transaction of giving Rs.27,000/- to the CC No.532295/16 State Vs Gurpreet Singh Walia. 74 accused and accused putting the paper weight on the money. (objected to in view of the Judgment of Anwar P.V Vs. P.K. Bashir & Ors. Civil Appeal No. 4226/2012, it is submitted that no oral evidence could be led on the basis of the CD in view of the original recording not brought before the court)." (cross-examination conducted by Ld. Addl. PP for the State on 01.04.2015) "............CD was played before me but I do not recollect the date. It was played in the AC Branch. I and Parshuram were present along with the IO of this case when the CD was played in the AC Branch. I do not recollect the name of other person who was present in the AC Branch at that time............" (cross-examination conducted on behalf of accused on 29.06.2015) "............I had played the memory card before handing it over to the IO. I and Parshuram were present when I had played the memory card to check the recording, in the cyber-cafe at Civil Lines but I do not remember the date............" (cross-examination conducted on behalf of accused on 29.06.2015) "............I had not met accused after the raid conducted by the AC Branch. I handed over the spy recorder and memory card to the IO next day of the recording. Q. Did you hand over spy recorder and memory card to the IO on the same day when you alleged to have recorded file no. AVSEQ01 or after some days ?
Ans. As already said above, I gave it to the IO on next day. IO had conducted the raid after 2 days of my handing over to him the spy recorder, the memory card and CD. I had not met the accused after recording of the file no. AVSEQ01 and prior to the raid.
I had also recorded file no. SUNP0002 and SUNP0004 but I do not remember the date of recording............" (cross- examination conducted on behalf of accused on 29.06.2015) "............I had made two recordings in the memory card regarding this case. The two recordings which I had made were available in the memory card when it was played in the cyber cafe. I cannot tell the name of the file. I had seen the above said recordings in the cyber cafe and thereafter in the court. I had not verified before recordings were made whether there were any other recordings in the memory card. Apart from the two recordings of this case neither I nor anyone else made any other recordings CC No.532295/16 State Vs Gurpreet Singh Walia. 75 regarding this case. Complainant was with me when both the recordings were made. The spy recorder and the memory card were in my possession from the date of recordings till the handing over the same to the IO. The spy recorder and memory card were not kept in a sealed cover by me, they were kept in a drawer in my house which was unlocked. I had played the memory card on my own in the cyber cafe............" (cross-examination conducted on behalf of accused on 19.08.2015) "............It is wrong to suggest that when inspite of my effort and that of Parsuram we failed to falsely implicate the accused, we in connivance with Avinas Aggarwal and others prepared the forged CD and the IO knowing all this in order to help Avinash Aggarwal and Mohan Yadav to archive their ill motive falsely implicated the accused............" (cross-examination conducted on behalf of accused on 19.08.2015)
102. The relevant portions of deposition of PW-24 Insp. Meghraj in the court is reproduced as under :
"............On 08.10.2010 the complainant Parsuram came in the Anti-corruption branch and he produced two VCD of recording dated 13.09.2010. Both the CDs were played on the official computer in the presence of Panch Witness Prem Singh as well as Complainant. The complainant informed that the contents of the CDs were the same as those recorded by him on 13.09.2010. Both the CDs were then marked "i" and "ii" and CD no.1 was sealed with the seal of "MRG" and the other CD was kept open for investigation and the same were seized vide seizure memo already exhibited as Ex.PW12/A bearing my signatures at point "C"............" (examination in chief dated 26.07.2016) "............On 11.10.2010, the complainant Parshuram came to ACB with his friend Amit and he produced the instrument i.e. spy key-chain camera with memory card, wire and adaptor, the same were sealed in a pullanda and sealed with the seal of "MRG" and the same was taken in possession of the complainant and the Panch Witness. The seizure memo of the same is already Ex.PW1/A bearing my signature at point "D"............" (examination in chief dated 26.07.2016) "............The transcript which is part of document Ex.PW32/DC (colly) was prepared on 08.10.10 by CC No.532295/16 State Vs Gurpreet Singh Walia. 76 me............" (cross-examination conducted on behalf of accused on 24.01.2017) "............The transcript is in my handwriting. I had prepared the transcript from the CD Ex.P1............" (cross- examination conducted on behalf of accused on 24.01.2017) "............I did not play the memory card to ascertain the existing file as memory card was deposited in the Malkhana............" (cross-examination conducted on behalf of accused on 24.01.2017) "............I had burnt the CD Ex.P1 on 08.10.2010 but I do not remember the exact time. I had burnt the CD Ex.P1 before registration of FIR. No opinion was sought as to whether the contents of CD1 and CDII were the same. I did not make a copy of the CD1 Ex.P1 but I had made the copy of CDII Ex.PY. The complainant and Sh. Amit Sharma were present when I burnt CD1 & CDII. The CD1 Ex.P1 was sealed on 08.10.2010 but I do not remember the time. The CD1 Ex.P1 was sealed after registration of FIR. On 08.10.2010 the complainant was requested to produce the spy recorder and memory chip at the earliest............." (cross-examination conducted on behalf of accused on 13.02.2017) "............The memory card and recorder were handed over to me by the complainant Parshuram. The recorder and memory card were in the custody of the complainant as told by the complainant to me till they were handed over to me............" (cross-examination conducted on behalf of accused on 13.02.2017) "............At the time when the recording of CD1 was played and shown to Sh. Avinash Aggarwal, panch witness, complainant and Sh. Amit Sharma were present............" (cross-examination conducted on behalf of accused on 13.02.2017)
103. Burning of CD means writing of the contents of the CD. As per the cross-examination of IO on 13.02.2017, he had burnt the CD on 08.10.2010, whereas according to the testimony of the complainant PW-18 Parshuram, the CDs were prepared by Amit CC No.532295/16 State Vs Gurpreet Singh Walia. 77 Kumar. PW-19 Amit Kumar has nowhere deposed that he had prepared the CD from the spy key chain camera. In view of the contradictory statement of PW-18, PW-19 and PW-14, the source of CD Ex.P1 is not clearly established on record.
104. The CD was played at the time of final arguments and after viewing the audio-video recording contained in the CD, there is no doubt that the person seen in the CD is none else but the accused and accused has accepted the bribe by putting paper weight on the same and that one of the voice in the CD is of the accused but as it has not been established on record as to who has prepared the CD Ex.P1, to my mind, this is not a fit case where the requirement of certificate under section 65B of the Indian Evidence Act should be dispensed with. Also, it has come in the testimony of DW-5 Dr. Gaurav Gupta that the forensic lab at Rohini is not notified under section 79A of the Information Technology Act.
105. Section-79A of Information Technology Act, 2000 :
"79A. Central Government to notify Examiner of Electronic Evidence - The Central Government may, for the purposes of providing expert opinion on electronic form evidence before any court or other authority specify, by notification in the Official Gazette, any Department, body or agency of the Central Government or a State Government as an Examiner of Electronic Evidence."
Explanation - For the purposes of this section CC No.532295/16 State Vs Gurpreet Singh Walia. 78 "electronic form evidence" means any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital audio, digital video, cell phones, digital fax machines."
106. "Section-45A of Indian Evidence Act, 1872 :
"45A. Opinion of Examiner of Electronic Evidence - When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in Section 79A of the Information Technology Act, 2000 (21 of 2000) is a relevant fact.
Explanation - For the purposes of this section, an Examiner of Electronic Evidence shall be an expert."
107. The report of forensic expert is only admissible as per section 45-A of the Indian Evidence Act. As per section 79A of the Information Technology Act, the FSL Rohini is not so notified, therefore, the report Ex.PW21/A and Ex.PW21/B of forensic expert PW-21 is not relevant. It is thus, concluded that the CD Ex.P1 is not admissible in evidence due to technical and procedural reasons and the report of the FSL expert is not relevant in view of Section-
CC No.532295/16 State Vs Gurpreet Singh Walia. 79 79A of the Information Technology Act read with Section-45A of Indian Evidence Act.
Appreciation of Oral Evidence :
108. As the CD Ex.P1 is held to be inadmissible in evidence, let us analyse the oral evidence brought on record in order to find out whether prosecution has been able to prove the guilt of the accused beyond reasonable doubt.
109. Ld. Counsel for the accused has argued that there are lot of contradictions in the testimony of various witnesses during their deposition in the court and therefore, the accused is entitled to benefit of doubt as the prosecution has not been able to prove its case beyond reasonable doubt. It is stated that PW-18 Parshuram in his examination in chief on 02.12.2014 had stated that he had reached the office of the accused to hand over Rs.27,000/- on 29.09.2010 but in reply to the leading question by Ld. Addl. PP, he has stated that they had recorded the conversation with the accused when he had handed over Rs.27,000/- to the accused on 13.09.2010 and not on 29.09.2010.
110. PW-19 Amit Sharma stated that on 27.09.2010 he had gone to the office of the accused alongwith Parshuram to give Rs.27,000/- and in response to the question by Ld. Addl. PP he had stated that it is correct that he had recorded the incident of handing over of Rs.27,000/- to the accused on 13.09.2010 and he could not state dates properly due to lapse of time. It is argued that PW-18 Parshuram has stated that he had met the accused in his office on 13.09.2010 which was on second floor and even the IO PW-24 CC No.532295/16 State Vs Gurpreet Singh Walia. 80 stated that the office of the accused was on second floor whereas DW-12 Joginder Singh Lather has stated that the office of the accused was on third floor and accused during his tenure had never occupied any office at the second floor. It is also stated that PW-18 Parshuram had stated during his cross-examination that he had given the CDs to the IO before conducting the raid and he had given the memory card and spy camera recorder also to the IO on the same day. He has further stated that Amit had brought the memory card, CD and spy recorder on 29.09.2010 and handed over the same to the IO. Whereas Amit in his statement stated that he had handed over the memory card, spy recorder on the next date of the recording. It is argued that in view of the contradictory statements given by the witnesses, their testimony is not reliable.
111. A perusal of the testimony of complainant PW-18 as well as PW-19 Amit Sharma who was accompanying the complainant reveals that PW-18 could not depose correctly about the date of giving of amount of Rs.27,000/- to accused and PW-19 was also not able to depose correctly about the dates of the incident i.e. of the demand of Rs.35,000/- and acceptance of Rs.27,000/- and it was only after a leading question by the Ld. Addl. PP for the State, that he was able to give exact dates. However, the court has to take into account that PW-18 and PW-19 are humans and not computers. Their memory is bound to fade with time. The incident is of the year 2010 and the testimony of the complainant in the court was recorded from 02.12.2014 till 21.02.2015 and the complainant was examined on five different dates. Similarly, the chief examination of Amit Sharma had started on 28.02.2015 and his testimony was concluded on 19.08.2015. Also, testimony as far as demand of CC No.532295/16 State Vs Gurpreet Singh Walia. 81 Rs.35,000/- by accused while descending from staircase and acceptance of Rs.27,000/- by the accused in his office by putting a paper weight on the currency notes is consistent, and has not been discredited despite extensive cross-examination.
112. In case State of Maharashtra Vs Narsingrao Gangaram Pimple, AIR 1984 SC 63, decided on 27.10.1984 by Hon'ble Supreme Court, it has been held that :
"It seems that the approach made by the High Court towards the prosecution has not been independent but one with a tainted eye and an innate prejudice. In fact, the High Court appears to have been so much prejudiced against the prosecution that it magnified every minor detail or omission to falsify or throw even a shadow of doubt on the prosecution evidence. This is the very ante-thesis of a correct judicial approach to the evidence of witnesses in a trap case. Indeed, if such a harsh touchstone is prescribed to prove a case it will be impossible for the prosecution to establish any case at all."
113. In case Bharwada Bhoginbhai Hirjibhai Vs State of Gujarat, AIR 1983 SC 753, Hon'ble Supreme Court has observed :
"We do not consider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by learned Counsel for the appellant. Overmuch CC No.532295/16 State Vs Gurpreet Singh Walia. 82 importance cannot be attached to minor discrepancies. The reasons are obvious :
(i) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(ii) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprises. The (pic) mental faculties therefore cannot be expected to be attuned to absorb the details.
(iii) The powers of observation differ from person to person. What one may notice, another may not.
An object or movement might emboss its image on one persons mind, whereas it might go unnoticed on the part of another.
(iv) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder.
(v) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess-work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or CC No.532295/16 State Vs Gurpreet Singh Walia. 83 reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
(vi) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(vii) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."
114. "In Appabhai Vs State of Gujarat, AIR 1988 SC 696, it has been held that the court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded.
CC No.532295/16 State Vs Gurpreet Singh Walia. 84
115. In Rammi Vs State of M.P. with Bhura Vs State of M.P. (1999) 8 SCC 649, Hon'ble Supreme Court observed :
"When an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non- discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence."
116. Thus, it is settled law that the discrepancies in the testimony of witnesses that do not shake the basis of the prosecution case and which are not totally incompatible with the credibility of the prosecution version are to be discarded. In the present case, the complainant has clearly stated that he had applied for electrical contractor license in the name of M/s Continental Elevators. He has also clearly stated that thereafter they had visited the office of the accused and the accused had told them that he would come to inspect their shop/office and the accused had in fact inspected their shop on 06.09.2010 at around 08:00 pm. PW-19 Amit Sharma has also stated that shop was inspected by accused at around 7/8 pm though he could not give the exact date when the accused had visited the shop and only stated that it was on 13.09.2010. PW-19 however, further clarified that he could not explain dates properly CC No.532295/16 State Vs Gurpreet Singh Walia. 85 due to lapse of time. Both the witnesses have categorically stated that when the accused was descending from their shop, accused had demanded Rs.27,000/- in the staircase. Both PW-18 and PW-19 have very categorically stated that when the amount of Rs.27,000/- was handed over to the accused, the same was kept on the table and the accused had put a paper weight on it. PW- 18 has stated that when he alongwith PW-19 had gone to hand over Rs.27,000/-, the accused had called for their file i.e. the file of M/s Continental Elevators.
117. PW-18 has also stated that on 13.09.2010 his file was kept somewhere else and the accused had called for the file and one dealing clerk Soni had brought the file. This fact has also been corroborated by the testimony of PW-13 Sunil Soni as PW-13 during his cross-examination deposed as under :
"On 13.09.2010 when the file relating to M/s Continental Elevator was called by the accused from me, I had gone to the accused alongwith the file and at that time besides the accused, complainant Parshuram and one another person were present there"
118. As far as the presence of accused on 06.09.2010 at Dwarka i.e. at the shop of the complainant, is concerned, the same is proved by the cell ID chart of the mobile phone number 9818919587 belonging to the complainant and mobile no. 9871364640 belonging to accused. The cell ID chart also shows that the accused was present at Dwarka at around 08:00 pm on 06.09.2010. Apart from saying that the said mobile location charts are incorrect, in CC No.532295/16 State Vs Gurpreet Singh Walia. 86 statement of accused recorded under section 313 Cr.P.C., the accused had not come up with any explanation as to why he had gone to Dwarka on 06.09.2010. Perusal of Ex.PW7/C i.e. call record of the accused shows that accused has made outgoing call to the complainant at 20:16:13 i.e. at 08:16 pm and the call duration is of 187 seconds. No explanation has come from the accused as to why he has made this outgoing call to the complainant on 06.09.2010 at 08:16 pm and what conversation took place between him and the complainant. When the documents Ex.PW7/C, Ex.PW7/H as well as Flow Chart of the IO Ex.PW24/F was put to the accused during statement under section 313 Cr.P.C., the accused only stated that the same was incorrect. Thus, it shows that the accused has absolutely no defence as far as call records and cell ID chart is concerned. The accused in his written arguments has stated that the certificate under section 65B produced by PW-7 was not issued in accordance with the requirement of Section-65B of the Indian Evidence Act. It is also argued that PW-7 was not competent to issue these certificates. I have perused the testimony of PW-7 and also the certificate under section 65B of the Indian Evidence Act Ex.PW7/G and Ex.PW7/I, and it does not appear that the same are not in accordance with law or are are issued by an incompetent person. Such frivolous pleas by the accused rather show that he has no genuine defence.
119. Also, in view of the clear deposition by PW-18 and PW-19 that the demand of Rs.35,000/- was made while descending from the shop of complainant and the accused had accepted the amount of Rs.27,000/- by putting a paper weight on the G.C. notes, the minor discrepancies regarding the date of the alleged incident ought CC No.532295/16 State Vs Gurpreet Singh Walia. 87 to be discarded by a judicial mind.
120. DW-11 Virender Singh has deposed that he knew Parshuram as he was a driver. He also identified his signatures on Ex.PW18/D1. He also stated that Parshuram was never engaged in the business of lift. Ex.PW18/D1 was also put to the complainant during his cross-examination and the relevant portion of the cross- examination of complainant - PW-18 is as under :-
"I know Birender yadav as I was living on rent in his village. It is correct that application dated 13.03.2012 Ex.PW18/D1, bears my signature at point A. It is correct that the said letter bears the signature of Birender Yadav. I had written the letter at the behest of one police official Rajiv who told me to give in writing that I was engaged in transport business. Rajiv told me that he was posted at Police Headquarters, ITO at that time."
121. DW-11 has stated that Parshuram was never involved in the business of lift. However, Parshuram has himself admitted in his cross-examination that though he had obtained license of installation of lift but he could not procure much work. Perusal of Ex.PW18/D1 shows that Parshuram is purportedly making an application to some unknown person stating that he is a taxi driver since last 7-8 years and he does not have his own vehicle. Complainant has already stated that he has written this letter on the behest of one police official Rajiv. If the complainant Parshuram had signed on Ex.PW18/D1 stating that he was a taxi driver since last 7-8 years and the same has also been stated by PW-11 Virender CC No.532295/16 State Vs Gurpreet Singh Walia. 88 Singh who has identified his signatures on Ex.PW18/D1, then how this original document Ex.PW18/D1 came into possession of the accused remains unexplained. PW-11 during his cross-examination stated that the complainant Parshuram approached him to get a job and he had written on a blank paper that he knew him for the last 5 years and the original letter was given to Parshuram and the accused on the basis of said letter came at his address i.e. VPO- Sarhaul, Sector-18, Gurgaon. If the accused had approached the witness DW-11 on the basis of address mentioned in letter Ex.PW18/D1 and the original letter was given to Parshuram by DW-11, then how the original letter was produced and filed by the accused at the time of cross-examination of complainant/PW-18 remains totally unexplained. Certainly, complainant would not have handed over the document Ex.PW18/D1 to the accused. The fact that document Ex.PW18/D1 was filed by accused during the cross-examination of complainant and thus, was in his possession itself creates doubt about the authenticity of the facts stated therein. In such circumstances, no reliance can be placed on document Ex.PW18/D1 to come to conclusion that the complainant was driver by profession or had colluded with Avinash Kumar Aggarwal to falsely implicate the accused.
122. The accused has also argued and stated in his statement under section 313 Cr.P.C. that a firm M/s Shivani Power Engineers was also functioning at 105, Vardhman, Dwarkadheesh, Dwarka and hence, no license could have been granted to M/s Continental Elevators at the same address. PW-17 Avinash Kumar Aggarwal was also cross-examined on this aspect and relevant portions of his CC No.532295/16 State Vs Gurpreet Singh Walia. 89 cross-examination are as under : -
"............Q. How many licenses can be granted to one firm at the same address?
A. More than one licenses can be granted in case there is partition in the premises and all of them have separate entries.
Q. In case there is no partition and there is only one entry in the premises and one license has already been granted, can another electrical license be granted to the same premises ?
A. No. Q. Is it mandatory that before granting electrical license the premises should have electrical supply? Ans. No. I had not granted license to M/s. Shivani Power Engineers Pvt. Ltd. at shop no. 105, Vardhaman Dwarkadheesh, plot no. 1, Sector -10, Dwarka, the same was granted by the then Electrical Inspector Shri V.K. Khanna in the year 1992 and I had only renewed the same and it bears my signatures at points A and B, which is Ex. PW12/DD. It is correct that I had renewed the license of M/s. Shivani Power Engineers Pvt. Ltd. at shop no. 105, Vardhaman Dwarkadheesh, plot no. 1, Sector -10, Dwarka, for the period 28.02.03 to 27.02.06 and 28.02.06 to 27.02.09 and it bears my signatures at point C and D. It is correct that at the relevant time when I signed document Ex. PW17/DD at points A to D, I was Ex- Officio Secretary to the Board of Examiners............"
(cross-examination conducted on behalf of accused on 23.02.2016) "............It is correct that I had renewed the electrical contractor license of M/s. Shivani Powers Engineers Pvt. Ltd. having its office at 105, Vardhman Dwarkadheesh, Plot No. 1, Sector-10, Dwarka, Delhi-45 (Ex. PW17/DD), for the period 28.02.09 to 27.02.12. It is incorrect to suggest that I illegally renewed the license of M/s. Shivani Powers Engineers Pvt. Ltd. at the said shop even despite knowledge Secretary of Board of Examiners would refuse to renew it as there was no electrical connection in the said shop as I wanted to favour its proprietor Shri Bijender Kumar Sharma. (Vol. There is no condition prescribed that electrical license can only be renewed in case there is electrical connection in the premises.)............" (cross-examination conducted on behalf of accused on 11.03.2016) "............It is incorrect to suggest that I usurped the CC No.532295/16 State Vs Gurpreet Singh Walia. 90 powers of secretary Board of Examiners in order to favour Bijender Sharma by renewing his contractor license at shop no. 105, Vardhman Dwarka Dheesh, Plot No. 1, Sector-10, Dwarka, Delhi-45, even though there was no electrical connection in the said shop. (Vol. The license was already granted to Shri Bijender Sharma by Shri V.K. Khanna, the then Electrical Inspector in the year 1992)............" (cross-examination conducted on behalf of accused on 11.03.2016) "............It is correct that Shri Bijender Kumar Sharma is director of M/s Shivani Powers Engineers Pvt. Ltd. Our Department had must have taken documents pertaining to Shri Bijender Kumar Sharma being the director of M/s Shivani Powers Engineers. Pvt. Ltd. I do not remember whether the documents pertaining to ownership/tenancy of Shop No. 105, Vardhman Dwarka Dheesh Plot No. 1, Sector-10, Dwarka, Delhi-45 were taken or not by our department. It is correct that at the time of issuance of electrical contractor license, the contractor has to be present in person to sign on the license. It is correct that Shri Bijender Kumar Sharma had signed on Ex. PW 17/DD in my presence in the year 2003............" (cross- examination conducted on behalf of accused on 11.03.2016) "............It is correct that address mentioned in Ex.PW17/DD of M/s Shivani Power Engineers Pvt. Ltd. and the address of M/s Continental Elevators mentioned in Ex.PW17/DF is the same. It is correct that I was Assistant Electrical Inspector when I renewed the license of M/s Shivani Powers Engineers Pvt. Ltd. for the period 28.02.2003 to 27.02.2006. (vol. I was assigned the post of Ex-officio Secretary to the Board of Examiners during the said period)............." (cross-examination conducted on behalf of accused on 07.04.2016) "............I cannot tell without seeing the file regarding the change of address of M/s Shivani Powers Engineers Pvt. Ltd. on the electrical contractor license. I also cannot tell without seeing the file as to whether the address of the company M/s Shivani Powers Engineers Pvt. Ltd. had changed in the year 2006............" (cross-examination conducted on behalf of accused on 07.04.2016) "............Q. Is it correct that when you renewed the license of it M/s Shivani Powers Engineers Pvt. Ltd. for the period 28.2.09 to 27.2.12 you were deputy Electrical CC No.532295/16 State Vs Gurpreet Singh Walia. 91 Inspector?
A. I was Deputy electrical Inspector during the period from 28.2.09 till December 2011, and I had renewed the license of M/s Shivani Powers Engineers Pvt. Ltd. for the period 28.2.09 to 27.2.12. I was conferred with the powers of Electrical Inspector w.e.f 22.8.2007 till my retirement.
Q. Is it correct that the requirements regarding documents to be furnished to your office by the applicant seeking electrical contractor license are mentioned in Ex.PW13/A from Sl. no. 1 to 9 ?
A. Some of the documents mentioned in Ex.PW13/A are not required to be submitted as per the conditions framed under the Rule 45 of Indian Electricity Rules............." (cross-examination conducted on behalf of accused on 07.04.2016) ".............My staff had verified the documents filed by Sh. Parshuram for grant of Electrical Contractor License. The file containing the documents were submitted to me after verification by the concerned dealing assistant and Secretary Board of Examiners............" (cross-examination conducted on behalf of accused on 07.04.2016) "............It is correct that a person applying for electrical contractor license has to be in possession of the shop / office in a marketing place. It is incorrect that the person applying for electrical contractor license had to submit the valid proof of possession of the shop / office (Vol. As it is not one of the requirements mentioned in the conditions)............" (cross-examination conducted on behalf of accused on 07.04.2016) "............It is correct that as per the document Ex.PW17/DG, Mr. Parshuram was advised to submit correct rent agreement. It is correct that thereafter the rent agreement Ex.PW18/DD which is on the file Ex.PW13/A was filed. I cannot tell the deficiency noticed by the staff at the time of verification of the rent agreement and submission of subsequent rent agreement by applicant Parshuram. I cannot comment upon the submission of the rent agreement on stamp paper issued to GAIL. I cannot tell whether GAIL is mentioned on the second rent agreement. It is incorrect to suggest that I in collusion with Parshuram, Amit Sharma, Bijender Sharma prepared two forged rent agreements which were submitted by M/s Continental Elevators. It is wrong to suggest that Mr. CC No.532295/16 State Vs Gurpreet Singh Walia. 92 Parshuram could not have submitted the application for grant of electrical contractor license without the rent agreements. It is correct that photocopy of the electricity bill at the address 105, Vardhaman, Dwarkadheesh is there on the file of Ex.PW13/A (colly.). I cannot say whether there was any electricity connection at 105, Vardhman, Dwarkadheesh when license was granted to Parshuram. (Vol. Since I had not inspected the premises, I cannot say whether there was electrical connection at the premises 105, Vardhman, Dwarkadheesh and as per the conditions, there was no requirement of electricity connection for obtaining electrical contractor license). It is incorrect to suggest that I along with Parshuram, Amit Sharma & Bijender Kumar Sharma had got prepared a forged electricity bill part of Ex.PW13/A(colly.)............." (cross-examination conducted on behalf of accused on 07.04.2016) "............No written instructions were given to Sh. Joginder Singh Lathar, the then Secretary Board of Examiners to mark the file of M/s Continental Elevators to accused. It is incorrect to suggest that I gave the file of M/s Continental Elevators to Sh. Joginder Singh Lathar, personally and told him to mark the file to accused. It is incorrect to suggest that I told Sh. Joginder Singh Lathar that I had personally checked all the documents of the file of M/s Continental Elevators and they were found to be correct. It is incorrect to suggest that I in connivance with the IO pressurized Joginder Singh Lathar to mark the file of M/s Continental Elevators to accused and to make ante dated entries of marking dt. 13.8.2010 on the file Ex.PW13/A(colly.)............" (cross-examination conducted on behalf of accused on 07.04.2016) "............It is incorrect to suggest that at the time when I granted license to M/s Continental Elevators for the premises 105, Vardhman Dwarkadheesh a firm by the name of M/s Shivani Power Engineers Ltd. and I had concealed the said fact. (vol. In one premises there may be number of licenses if there is partition and separate entries)............" (cross-examination conducted on behalf of accused 07.04.2016) "............It is correct that as per rules and practice physical verification is required to verify the place of business before granting license. As per the practice, the physical occupation of premises is to be verified. It is not mandatory to inquire regarding the electric connection. It CC No.532295/16 State Vs Gurpreet Singh Walia. 93 is correct that for installation and operation of the lift in Delhi for commercial or residential purposes license is required to be obtained from our office............" (cross- examination conducted on behalf of accused 26.08.2016) "............The owner of the building applies for license for lift to be installed and sometime name of the firm installing the lift is mentioned in the application form............" (cross-examination conducted on behalf of accused 26.08.2016) "............I cannot tell about the terms and conditions Ex. PW-18/DD. It is incorrect to suggest that there was only entry in shop no. 105, Vardhman Dwarkadish, Sector-10, Dwarka. I did not inspect the said shop, therefore I cannot tell whether any partition was there or not. It is incorrect to suggest that the only one license can be granted to one premises. (Vol in case a shop has separate entries and is separated by partitions, multiple license can be issued). It is incorrect to suggest that I had deliberately misuse my official position to grant electrical license to Continental Elevator running it business at 105, Vardhman Dwarkadish, Sector-10, Dwarka.. It is further incorrect to suggest that I had full knowledge I had already granted license to Shivani Power Engineers Power Ltd. running it business at shop no. 105, Vardhman Dwarkadish, Sector- 10, Dwarka. Electrical Continental Elevator. (Vol. License was granted to Shivani Power Ltd. by my predecessor. The license of Continental Elevator was granted with the approval of board). It is correct that I had renewed the license of Shivani Powers Engineers from 2009 to 2012............" (cross-examination conducted on behalf of accused 26.08.2016)
123. The document Ex.PW17/DD is copy of one such license granted to M/s Shivani Powers Engineers Pvt. Ltd. and Ex.PW17/DF is the copy of the license granted to M/s Continental Elevators. On the overleaf of these licenses, it is mentioned that the license is granted on the following conditions : -
"(i) That not less than 50 percent of workmen employed by the licensee hold Certificate of Competency Class I/II.
(ii) That the licensee either himself holds a CC No.532295/16 State Vs Gurpreet Singh Walia. 94 Certificate of Competency Class I and supervises the works personally or employs a person who hold a Certificate of Competency Class I.
(iii) That the licensee being the holder of Certificate of Competency Class I shall not at any time be in the employment of any other person or firm.
(iv) That the licensee shall maintain the prescribed registers to be inspected at any time by the Electrical Inspectors or his representative.
(v) That the licensee shall furnish any information or record to the Electrical Inspector, Government of N.C.T. of Delhi, 15 Raj Pur Road, Delhi-54 which he may require.
(vi) That the licensee shall inform the Electrical Inspector before beginning work on any installation, including additions, alterations, repairs and adjustments to existing installation."
124. There is no such mention in the Conditions stated above that if one license is granted to one particular shop, then another license cannot be granted. Though the questions regarding grant of another license on same premises on which a license is already granted has been put to witness during cross-examination but the accused has not been able to show any provision, rule, circular, notification or any other document mentioning conditions for grant of license wherein it has been directed that if one license of electrical contractor is granted at one particular premises then another license cannot be granted on the same premises.
125. It is also argued that the premises where the license of M/s Continental Elevators was to be granted was not having an electrical connection nor there was any partition or separate entry and hence, M/s Continental Elevators could not have been granted license.
CC No.532295/16 State Vs Gurpreet Singh Walia. 95
126. DW-12 Joginder Singh Lather is the person who had inspected the shop of the complainant before grant of license and his report is Ex.PW17/DG. The report being relevant is reproduced as under : -
"Inspected the premises of M/s Continental Elevators i.e. 105, Vardhman, Dwarkadheesh, Pocket no. 1, Sector-10, Dwarka on 21.10.2010 and found it suitable to carry out electrical contractor business. Also checked the Meggar and Voltmeter found the same in working order. The applicant advised to submitted the wiring staff register with original licenses, photograph of the shop and correct rent agreement at the earliest. Pls put up the verified details of the wiring staff on receipt of original licenses"
127. On the basis of report Ex.PW17/DG of DW-12 Joginder Singh Lather, the license was granted to the complainant. DW-12 has nowhere mentioned in his report that electrical connection was not existing at the shop when he had inspected the same nor he had raised any objection that license at the same premises has already been granted to M/s Shivani Power Engineers Pvt. Ltd. Also, if the said shop had no electricity connection, then how M/s Shivani Power Engineers Pvt. Ltd. was granted license in the year 1992. Also DW-12 in his evidence has stated that Avinash Kumar Aggarwal had told him that there is no need to scrutinize the documents as the Chairman had told that he had done the same. But Joginder Singh Lather in his above said report Ex.PW17/DG CC No.532295/16 State Vs Gurpreet Singh Walia. 96 has clearly advised the applicant to submit the wiring staff register with original license, photographs of the shop and correct rent agreement at the earliest and therefore, he had checked all the documents and had asked the applicant to rectify the shortcomings. The above report shows that he had scrutinized all the documents and the deposition of DW-12 during his cross-examination that he had not done the scrutiny as he was told by the Chairman that he (Chairman) had done the scrutiny, is not correct. DW-12 during his examination in chief has stated that the file of M/s Continental Elevators was not marked to him between 02.08.2010 to 13.08.2010 and the file of M/s Continental Elevators was with Sh. Avinash Kumar Aggarwal between 13.08.2010 to 08.10.2010. However, in answer to a court question, he has deposed that the file was pending with Sh. Gurpreet Singh Walia from 13.08.2010 to 18.08.2010. He has also admitted that the file of M/s Continental Elevators was handed over to him by Sh. Sunil Soni. Whereas during his examination in chief, he stated that he was called by Sh. Avinash Kumar Aggarwal and was asked to give noting on the said file on 13.08.2010. Again he has stated that he had given noting on the said file on the asking of Sh. Avinash Kumar Aggarwal on 13.08.2010 but he has not stated that the inspection report dated 21.10.2010 on the file was also placed on the asking of Sh. Avinash Kumar Aggarwal. Also, DW-12 has stated that in this case the Chairman was handling the file but during his further deposition he has submitted that the file was pending with Sh. Gurpreet Singh Walia from 13.08.2010 to 18.08.2010. In view of the contradictory statements made by DW-12, his testimony is not reliable.
128. It is argued that the prosecution has concocted a false story CC No.532295/16 State Vs Gurpreet Singh Walia. 97 about the raid allegedly conducted on 29.09.2010 at the office of the accused as the IO has deposed that on reaching 5, Sham Nath Marg, he had sent the complainant in the office of the accused at 2 nd floor of the Labour Department. Whereas, DW-12 Joginder Singh Lather has deposed that the accused used to sit on the 3rd floor and he has never occupied any office at the 2nd floor. It is also agued that the IO had stated that the complainant and panch witness came outside and informed that the accused had gone somewhere but IO had asked them to remain sitting in the office but panch witness has deposed that the accused had told Parshuram to wait outside. The panch witness in his cross-examination has further clarified that the accused had not stated them to go outside or talked to them. Again IO stated that the accused was present in the office when they had reached. Whereas, panch witness PW-10 deposed that the accused was not there. It is also argued that in the raid proceedings Ex.PW10/D, the panch witness and the complainant had informed the IO/RO that the accused had told them to go and meet later. Whereas, PW-10 panch witness in his depositon in the court has stated that the accused has deposed that the accused had asked Parshuram to meet him afterwards.
129. As far as the office of the accused being at 2nd or 3rd floor is concerned, the panch witness PW-10 clearly deposed that they had gone to the 3rd floor of the building where the office of the accused was situated. As already observed, a witness cannot be expected to possess photographic memory and to recall the incident with microscopic details. A witness is expected to only recall main purport of the incident and he cannot recall every word uttered or heard. Both the panch witness and the complainant have clearly CC No.532295/16 State Vs Gurpreet Singh Walia. 98 deposed that they had gone for the raid but the raid had failed. If the IO alongwith the complainant or Avinash Kumar Aggarwal wanted to manipulate, why would they have fairly admitted the raid to have failed. The fact that the IO as well as the complainant and the panch witness deposed that they had gone for the raid but the raid had failed, shows that the investigation was done fairly by the concerned RO and the IO.
130. It is argued that the IO PW-24 Insp. Meghraj has deposed during his testimony that the shop of the complainant was on ground floor and therefore, it is proved that he had not inspected the shop of the complainant. However, both PW-18 and PW-19 have stated that the accused had made the demand when the accused after inspection of the shop/office of the complainant was descending from the staircase. DW-12 also stated that the shop of the complainant was on 1st floor and he had conducted the inspection of the shop/office of the complainant and thus, it is not the case that there was no staircase or no occasion for the accused to have descended/used the staircase at all. Merely because the IO has not prepared the site plan of the shop of the complainant or because he has deposed that the shop of the complainant is situated on the ground floor is no ground to discredit the entire prosecution case, specially in view of the fact that even defence witness DW-12 on whose report, the license was ultimately granted to the complainant, has stated that the shop of the complainant was on first floor and thus, the accused would have used the staircase after inspecting the shop of the complainant.
131. It is also argued that as per the prosecution the alleged offence took place on 13.09.2010 but in the FIR Ex.PW6/A, the CC No.532295/16 State Vs Gurpreet Singh Walia. 99 date of offence is mentioned as 22.09.2010 not once but at three places and the date i.e. 22.09.2010 also corresponds with the day of alleged offence i.e. Wednesday. It is also argued that in the Rukka Ex.PW24/A, the IO has mentioned the date of offence as 22.09.2010 at two places and even subsequent to the registration of the FIR the IO had been mentioning the date 22.09.2010 on documents i.e. seizure memo Ex.PW1/A, forwarding letter dated 13.09.2010 Ex.PW24/DA, forwarding letter dated 29.07.2010 Mark-DA and the letter of ACP Balwant Singh Ex.PW32/DC. It is stated that the CD alongwith spy recorder was sent to FSL on two occasions and the IO on both the occasions has alleged that the alleged recording was made on 22.09.2010. It is further argued that the IO has subsequently changed stand before filing the chargesheet in the court and substituted 13.09.2010 as the date of incident and such contradiction has not been specifically explained by the prosecution and therefore, prosecution story is highly improbable. It is stated that the IO kept mentioning the date 22.09.2010 not only in the FIR but everywhere else for years together and suddenly changed stand without offering any explanation and thus, the only inference that can be drawn in such circumstances is that the alleged offence never took place. In support of his arguments, Ld. Counsel for the accused has submitted that the prosecution has to stand on his own legs without looking at the weaknesses of the defence and has also relied upon certain case laws in this respect.
132. There is no doubt or second thought that the prosecution has to stand on his own legs and prove the story propounded by it. It is the duty of the prosecution to prove its case beyond any reasonable doubt. As far as the mentioning of dates 22.09.2010 in the FIR and CC No.532295/16 State Vs Gurpreet Singh Walia. 100 Rukka is concerned, the IO in his examination in chief dated 23.01.2017 has deposed as follows :-
"...............At the time of preparation of rukka, due to inadvertence, it has been mentioned therein that the CD was containing recordings dated 22.09.2010 instead of 13.09.2010 and the same was also inadvertently mentioned in the letter seeking prosecution sanction. I concluded investigation and filed chargesheet."
133. Though PW-24 Insp. Meghraj has been cross-examined on 23.01.2017 twice i.e. before lunch and after lunch and on 24.01.2017 and 13.02.2017 but during the entire cross-examination, no question has been put to the IO on the above aspect that the date 22.09.2010 mentioned by him in the letter seeking prosecution sanction or in Rukka is not due to inadvertence. This statement of the IO that the same occurred due to inadvertence is sufficient explanation offered by him and in the absence of cross-examination of the IO on this aspect by the accused, there is no reason as to why this explanation of the IO i.e. the same occurred by way of inadvertence, should not be accepted. A person who performs his duty with sincerity is bound to commit certain mistakes. Only a person who does not work would not commit any mistakes during his life time. (Don't do any work = never commit any mistakes) . Again though in column no. 3 in the FIR Ex.PW6/A, the date of occurrence is mentioned as 22.09.2010 but in the body of FIR date 13.09.2010 is mentioned and it is mentioned that the complainant had arranged the amount of Rs.27,000/- and the same was given to CC No.532295/16 State Vs Gurpreet Singh Walia. 101 the accused by putting the same on the table and the accused has thereafter, put a paper weight on the same.
134. In Dhanaj Singh Vs State of Punjab (2004) 3 SCC 654, it was observed that :
"In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. In Paras Yadav Vs State of Bihar (1999) 2 SCC 126, it was held that if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not, the contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.
In Ram Bihari Yadav Vs State of Bihar (1998) 4 SCC
517) also it was observed that if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law-enforcing agency but also in the administration of justice."
135. In view of the above judgment and in view of explanation offered by the IO, the inadvertence committed by the IO in mentioning the date 22.09.2010 in various document ought to be ignored by a judicial mind.
CC No.532295/16 State Vs Gurpreet Singh Walia. 102
136. In fact perusal of the Rukka Ex.PW24/A shows that on the same day, the complainant had produced two VCDs and the said VCDs were played in the presence of panch witness Prem Singh and it is found that the contents of both the CDs were same. Though the counsel for the accused has stated that the only inference to be drawn is that the alleged offence never took place. But he himself in his written arguments has offered an explanation as to how the date 22.09.2010 came to be written by the IO in the Rukka Ex.PW24/A. In the written arguments, Ld. Counsel for the accused himself has stated that 22.09.2010 appears to have been coined by the IO on the basis of the date of creation seen in the properties of file AVSEQ01.DAT in the CD Ex.P1. As revealed in the Rukka, the CD was played by the IO on 08.10.2010 and therefore, it seems that from the properties of the file, the IO also might have noticed the date 22.09.2010 and had inadvertently recorded the same date in the Rukka and same inadvertence was carried forward in the various other documents prepared by him.
137. It is also argued that the accused has never dealt with the file of Continental Elevators as there is no signatures of the accused on the file Ex.PW13/A. Ex.PW13/G is he list of pending cases with the accused produced by PW-13 which was seized vide seizure memo Ex.PW13/E. Though, PW-13 during his examination in chief has stated that the list of pending cases with the accused is Ex.PW13/G but no suggestion has been given to PW-13 that the list Ex.PW13/G is not correct and that the file of Continental Elevators was not pending with accused Gurpreet Singh Walia. The mere suggestion given to the witness PW-13 is that the document Ex.PW13/G does not bear signatures of accused. The list CC No.532295/16 State Vs Gurpreet Singh Walia. 103 Ex.PW13/G cannot be presumed to be incorrect or forged merely because it does not bear the signatures of the accused. Again at the cost of repetition, it is stated that no suggestion has been given to PW-13 that the list Ex.PW13/G is not correct and the cases which were pending with accused Gurpreet Singh Walia has not been correctly stated in the list Ex.PW13/G and therefore, from Ex.PW13/G it is proved that the case of M/s Continental Elevators was pending with the accused. Even DW-12, the witness of the accused in answer to a court question, has stated that file of M/s Continental Elevators was with the accused from 13.08.2010 to 18.08.2010.
138. It is also argued that the complainant PW-18 Parshuram has stated that he had given a written complaint against the accused prior to 13.09.2010 and he had also given a copy of the written complaint to the IO. He further stated that he asked the official of ACB to register the case against the accused but the official of ACB told him that the case could not be registered on the written complaint alone without further proof. The complainant has further deposed that the IO had recorded his statement only once and therefore the IO must have recorded the statement prior to 29.09.2010 and the testimony of the complainant reveals that the IO had not only initiated investigation but also recorded the statement of the complainant under section 161 Cr.P.C. which could not have been done without there being an FIR and no such FIR was lodged prior to 29.09.2010. It is also argued that PW-19 Amit Kumar has also deposed that after hearing the demand of the accused, they went to ACB office where they were told that a case could not be registered without cogent proof. It is also argued that as per CC No.532295/16 State Vs Gurpreet Singh Walia. 104 deposition of PW-19 the spy recorder and the memory card were handed over to the IO on next date of the recording. However, as per the testimony of PW-18 he approached the ACB after 06.09.2010 and lodged a written complaint prior to 13.09.2010 and handed over the CD to ACB on 15.09.2010. It is further argued that this completely belies the prosecution story that the complainant approached the ACB on 29.09.2010 and lodged the complaint ex.PW18/A and produced two VCDs of the alleged recording on 08.10.2010. It is also argued that the testimony of PW-18 and PW- 19 also belies the prosecution story that the spy recorder and the memory card were seized on 11.10.2010.
139. As already observed, no witness can possess a photographic memory or possibly recall every details of an incident. It is not as if a video tape is replayed on the mental screen. Both the witnesses i.e. PW-18 and PW-19 have clearly stated that after the demand they had gone to lodge a complaint with the ACB but the ACB officials did not entertain them. No doubt, the ACB was expected to lode a report on disclosure of a cognizable offence but it is also a matter of common knowledge that it is a herculean task to get an FIR registered in normal course. The accused cannot take benefit of some lapse on the part of the investigating agency in not registering a case/report when the complainant first approached the ACB office.
140. It is also argued that as per the prosecution story, the first meeting between the complainant and the accused took place on 06.9.2010, however, in the complaint Ex.PW18/A the complainant has stated that on 14.07.2010, he deposited an application with all necessary papers at Electrical Inspector, 5 Sham Nath Marg and on CC No.532295/16 State Vs Gurpreet Singh Walia. 105 03.09.2010, he got his instrument tested through Amit Kumar. It is argued that the statement of PW-18 is belied by his own deposition dated 21.02.2015 where he has stated that he had met the accused on 03.09.2010 for checking the multimeter and at that time Amit was with him.
141. I have perused the above testimony, I found no contradiction in the testimony of the complainant. The complainant has clearly stated that he got the instrument checked through his employee Amit Kumar and in his subsequent testimony on 21.02.2015, he has stated that he had met the accused for checking of the Multimeter and at that time Amit was with him. Thus, the complainant has categorically stated that the instruments were got checked by him through his employee Amit Kumar in the office of the accused.
142. The accused in his statement under section 313 Cr.P.C. has stated that Avinash Kumar Aggarwal, Head of Electrical Branch was having personal grudge against him due to objections to illegal manner of disposal of official work by Avinash Kumar Aggarwal. However, the accused has not brought on record any document that he was taking any objection to illegal manner of disposal of work by Avinash Kumar Aggarwal. The accused has examined 12 witnesses but has not summoned even a single file from his department to show any objection being taken by him on any official file. The accused has further stated that Avinash Kumar Aggarwal wanted to remove him from his office so that Avinash Kumar Aggarwal could get promotion to the post of Electrical Inspector without any competition as there was no competitor in the office except the accused. As per the accused, Avinash Kumar Aggarwal also succeeded in getting promotion within a year of CC No.532295/16 State Vs Gurpreet Singh Walia. 106 filing of this case. To prove this fact, he has examined DW-1 and DW-1 has proved the document Ex.PW1/A as per which Avinash Kumar Aggarwal was promoted to the post of Electrical Inspector on ad-hoc basis vide order dated 23.09.2011. Ex.PW1/A shows that the promotion of Avinash Kumar Aggarwal to the post of Electrical Inspector was on ad-hoc basis and not on regular basis. Moreover, Avinash Kumar Aggarwal during his testimony recorded on 07.04.2016 has deposed that he was conferred with powers of Electrical Inspector w.e.f. 22.08.2007 till his retirement. Thus, Avinash Kumar Aggarwal was already conferred with powers of Electrical Inspectors. Avinash Kumar Aggarwal was also posted as Dy. Electrical Inspector in the year 2010 as per his examination in chief and was working as Branch Incharge in the Electrical Inspector Office. It is not the case of the accused that he was senior to Avinash Kumar Aggarwal and therefore, Avinash Kumar Aggarwal would not have got promoted to the post of Electrical Inspector without clearing his way by implicating the accused. As Avinash Kumar Aggarwal was the Branch Incharge and was also conferred with the powers of Electrical Inspector from the year 2007, it prima facie appears that Avinash Kumar Aggarwal was senior to the accused . If Avinash Kumar Aggarwal was already senior to the accused then why he would implicate the accused to clear his way for promotion to the post of Electrical Inspector is not understandable.
143. Moreover, as per gazette notification Mark-DW1/B, the post of Electrical Inspector could have been filled through direct recruitment and also by way of deputation or promotion. In case of recruitment by promotion/deputation, the requirements for the CC No.532295/16 State Vs Gurpreet Singh Walia. 107 appointment of Electrical Inspector are as under : -
" Deputation (including short-term contract)/promotion:
(I) Officers of Central/State Government/U.Ts./ Autonomous Statutory Organisation or State Electricity Boards.
(a) (i) Holding analogus post on regular basis in the parent cadre/department; or
(ii) with five years service in the grade rendered after appointment thereto on a regular basis in the scale of pay of Rs.8000 - 13500 or equivalent in the parent cadre/department; and
(b) Possessing the educational qualification and experience prescribed for direct recruits under column 8.
(II) The Departmental Deputy Electrical Inspector in the scale of pay of Rs.8000-13500 with five years regular service will also be considered alongwith outsiders and in case he/she is selected for appointment to the post, the same shall be deemed to have been filled up by promotion."
144. Departmental Deputy Electrical Inspector with five years regular service were only eligible for consideration for appointment by promotion or deputation. As per the bio-data Ex.PW32/A, accused was appointed to the post of Dy. Electrical Inspector on 26.08.2008. Thus, accused in the year 2010 had still not completed CC No.532295/16 State Vs Gurpreet Singh Walia. 108 5 years of regular service as Dy. Electrical Inspector and he was not in any case eligible for promotion to the post of Electrical Inspector. Though, the accused has proved through the testimony of DW-1 that Avinash Kumar Aggarwal was promoted to the post of Electrical Inspector, but nothing has been brought on record to show that his name was not recommended for promotion due to the present case.
145. It is also argued by Ld. Defence counsel that no independent witness has been examined to prove the demand or acceptance of bribe money. Ld. Counsel for the accused in support of his arguments has also placed reliance upon A. Kanagarajan Vs State, Crl. Appl. (MD) No. 101/2009, passed by Hon'ble Madras High Court and Sat Pal Vs Delhi Administration, 1976 AIR 294, 1976 SCR (2) 11. However, in the present case when first demand was made on 06.09.2010 while descending from staircase, there could not have been any independent witness. As far as presence of independent witness at the time of acceptance of bribe by the accused is concerned, both PW-18 and PW-19 have categorically stated after hearing about the demand of bribe, they had approached the ACB but they were not entertained. Then they deemed it fit to record the incident through a spy camera and therefore, PW-18 and PW-19 were carrying spy camera and intended to record the incident and had actually recorded the incident through spy camera. There could not have been any independent witness at that time in such circumstances. The cases as relied upon by Ld. Counsel for the accused are distinguishable on facts in much as in both the cases A. Kanagarajan Vs State and Sat Pal Vs Delh Administration, the evidence discussed was of trap witnesses. In CC No.532295/16 State Vs Gurpreet Singh Walia. 109 the present case when the raid was to be conducted, an independent panch witness was there. However, the trap has failed and the IO has fairly recorded about the failure of the said trap proceedings.
146. It is also argued by the Ld. Defence counsel that as per the evidence on record seizure memo had already been prepared prior to the registration of the case. However, on the seizure memo Ex.PW12/A, the FIR and the other details of the accused have been mentioned. Ld. Defence counsel has argued that the prosecution case is thus, doubtful and has placed reliance upon Pawan Kumar Vs Delhi Administration, 1988(2) RCR 421, wherein it has been observed that :
"Ld. Counsel for the State concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex.PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa Ex.PW11/F was sent to the Police Station for the registration of the cases on the basis of which the FIR, PW11/G was recorded. The FIR is numbered as 36, a copy of which was sent to the IO after its registration. It comes to that the number of FIR 36 came to the knowledge of the IO after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the FIR no. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the CC No.532295/16 State Vs Gurpreet Singh Walia. 110 perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the FIR no. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
147. However, in judgment Radhey Sham Vs State of Haryana, passed on 13.12.2000 by Hon'ble Supreme Court it has been observed that :
"Ld. Counsel for the appellant further submitted that FIR number is mentioned on the recovery memo and therefore it is apparent that FIR was first registered and thereafter the recovery memo was prepared. He has also submitted that sealing of the seized article was also not proper. No independent witness was examined nor accused was having any injury even though the van turned turtle. In our view, the aforesaid submissions deserve no consideration because with regard to the FIR, FIR number is mentioned on the recovery memo but that would not vitiate the CC No.532295/16 State Vs Gurpreet Singh Walia. 111 recording of FIR."
148. Thus, there is no reason to doubt the prosecution case due to mentioning of FIR no. in the seizure memo in view of the above judgment of Hon'ble Supreme Court.
149. DW-6 has been examined by the accused to show that Avinash Kumar Aggarwal was on friendly terms with Mohan Yadav. However, DW-6 himself has stated that Avinash Kumar Aggarwal used to visit office of Mohan Yadav for inspection of lifts. Thus, the visits of Avinash Kumar Aggarwal to the office of Mohan Yadav were official. He further stated that Avinash Kumar Aggarwal has issued several hundred licenses for operation of lift including firms of Mohan Yadav. Avinash Kumar Aggarwal was posted as Dy. Electrical Inspector therefore, in his official position he must have issued licenses to various firms including the firm of Mohan Yadav. DW-6 during his examination in chief has nowhere deposed that Avinash Kumar Aggarwal and Mohan Yadav were friends. Even as per the deposition of DW-6, the meetings between Avinash Kumar Aggarwal and Mohan Yadav were for official work and not of personal nature.
150. In judgment titled State of Haryana Vs. Bhagirath, Crl. Appeal No. 000234/1992, passed on 12.05.1999, the Hon'ble Supreme Court has observed that :-
"It is nearly impossible in any criminal trial to prove all the elements with a scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression reasonable doubt is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt CC No.532295/16 State Vs Gurpreet Singh Walia. 112 is the same as proof which affords moral certainty to the Judge.
In the treatise The Law of Criminal Evidence authored by H.C. Underhill at p.34, Vol.1 of the 5th Edn., it is stated :
The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt.
In Shivaji Sahabrao Bobade V. State of Maharashtra (1973) 2 SCC 793), the Hob'ble Supreme Court adopted the same approach to the principle of benefit of doubt and struck a note of caution that the dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence demand special emphasis in the contemporary context of escalating crime and escape.
The Hon'ble Supreme Court further observed that the judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt.
151. After a careful perusal of all the oral as well as documentary CC No.532295/16 State Vs Gurpreet Singh Walia. 113 evidence brought on record by the prosecution, the court has absolutely no doubt that the accused had demanded an amount of Rs.35,000/- from the complainant on 06.09.2010 and in pursuance to his demand had accepted an amount of Rs.27,000/- on 13.09.2010.
Plea of Alibi :
152. The accused has also taken plea of alibi and has argued that the accused was not present at the place of the alleged offence i.e. his office on 13.09.2010 before lunch. In this connection, he has relied upon the document Ex.DW12/A and has stated in written arguments that the accused had carried out an inspection at Hotel Continental, Mayur Vihar and as per the deposition of DW-12 Joginder Singh Lather, it takes about 6-7 hours in carrying out inspection of electrical sub-station of the said specifications. It is stated that the letter dated 13.09.2010 has been issued under the signatures of the accused and was dispatched on 13.09.2010 itself vide dispatch entry no. 8613 and therefore, the accused was present at Hotel Intercontinental, Mayur Vihar and had thereafter travelled 15 km to his office and had prepared the letter dated 13.09.2010 and had dispatched it on the same day before 06:00 pm. It is stated that entire exercise would have taken about 9 hours and therefore, the accused could not have been present in his office on 13.09.2010 when the complainant has alleged to have made the recordings.
153. I have perused Ex.DW2/B which is copy of dispatch register.
The perusal of the dispatch register shows that entries for 13.09.2010 started from 8587 and therefore, entries 8583 and 8584 CC No.532295/16 State Vs Gurpreet Singh Walia. 114 should be of 10.09.2010 (11.09.2010 and 12.09.2010 being second Saturday and Sunday) . Surprisingly, against the entries no. 8585 and 8586 there is no dispatch and these two entries have been left blank and entries for 13.09.2010 have started from 8587. As two entries i.e. 8585 and 8586 before the start of entries for 13.09.2010 have been left blank, the authenticity of the dispatch register Ex.DW2/B is doubtful. Also, the letter which was dispatched vide entry no. 8613 is signed by the accused in which the accused has stated that he had carried out inspection on 13.09.2010. The said letter is self-serving document. The accused himself has not entered into witness box to state on oath that he had carried out the said inspection on 13.09.2010. Except to prove the dispatch of the letter on 13.09.2010, no witness has been called by the accused in the witness box who could have deposed on oath that on 13.09.2010 the accused was busy in inspection at Hotel Continental, Mayur Vihar. Rather, the dispatch of this letter on 13.09.2010 shows that the accused was very much present in the office on 13.09.2010 i.e. the date when the accused had received Rs.27,000/- from the complainant. There is nothing on record to establish that the contents of the letter dispatched vide entry no.
8613 and in which it is stated that the accused had carried out the inspection at hotel Continental on 13.09.2010 were correct. At best, the accused has only been able to prove that this letter to M/s Eros Resorts and Hotels Ltd. was dispatched vide dispatch register on 13.09.2010 and this, rather proves the presence of the accused in the office itself on 13.09.2010.
154. Also, the relevant portions of the cross-examination of the complainant regarding the plea of alibi of the accused are CC No.532295/16 State Vs Gurpreet Singh Walia. 115 reproduced hereinbelow :-
"I do not remember the time when I met the accused on 13.09.2010 in his office. I think I had met accused prior to lunch time on 13.09.2010. I had met the accused in his room in the office of Electrical Inspector. The office was on the second floor. I and Amit had together entered the room of accused on 13.09.2010. On 13.09.2010, I and Amit had entered the office of accused only once at that time when we had made the video recording." (cross- examination by Ld. Counsel for accused conducted on 09.02.2015) "On 13.09.2010, I remained in the room in the office of accused for about 15-20 minutes. During that period when I was present in the room of the accused, one person by the name of Soni came there with a file. Soni did not have any conversation with the accused, he merely gave the file and went away............." (cross-examination by Ld. Counsel for accused conducted on 09.02.2015) "............ After entering the room of accused on 13.09.2010 first we have wished him by saying Namaste. While leaving the room of accused on 13.09.2010, we had not wished the accused. Amit can tell as to how many recordings have been made on 13.09.2010. On 13.09.2010, my file was kept somewhere else in the office, accused had called for the file and one Dealing Clerk Soni had brought the same. I did not go to fetch my file, accused had asked Soni to bring the same. On 13.09.2010, I did not meet anyone else in the office of accused except accused.............." (cross-examination by Ld. Counsel for accused conducted on 09.02.2015) ".............It is also incorrect to suggest that I never met accused in his office on 13.09.2010 and that he did not demand any bribe from me on the above said date nor I paid any bribe to him.............." (cross-examination by Ld. Counsel for accused conducted on 09.02.2015) ".............It is incorrect to suggest that I had placed on the table documents demanded by accused and not bribe money on 13.09.2010.............." (cross-examination by Ld. Counsel for accused conducted on 09.02.2015) ".............At the time when I reached the office of accused on 13.09.2010, the employee Soni was not in the room of the accused. Soni had brought the file in the office of accused on 13.09.2010. Accused had asked Soni to bring CC No.532295/16 State Vs Gurpreet Singh Walia. 116 the file on 13.09.2010 but I do not remember how the message was conveyed to Soni.............." (cross- examination by Ld. Counsel for accused conducted on 21.02.2015) ".............It is correct that accused had asked me to submit my business profile. I do not remember whether I had given my business profile to accused or not on 13.09.2010. Vol. Amit may be knowing about it.............." (cross- examination by Ld. Counsel for accused conducted on 21.02.2015) ".............It is wrong to suggest that I did not give money amounting to Rs.27,000/- as bribe to accused. It is wrong to suggest that even in the video no money is being seen being given to the accused. It is wrong to suggest that what is being shown to be given is bunch of papers and not currency notes. It is wrong to suggest that the accused neither demanded nor I paid bribe to the accused.............." (cross-examination by Ld. Counsel for accused conducted on 21.02.2015)
155. The above cross-examination shows that no suggestion whatsoever was given to the complainant that the accused was not present in the office on 13.09.2010 before lunch. The only suggestion given is that the complainant had not met the accused in is office on 13.09.2010. Again, PW-19 Amit Kumar was also present alongwith the complainant at the time of giving bribe to the accused. Absolutely no suggestion was given to PW-19 also during his cross-examination conducted on various dates that the accused was not present on 13.09.2010 in his office before lunch. Thus, accused has not been able to prove his plea of alibi even to the extent of preponderance of probabilities.
Conclusion :
156. In view of the oral evidence of PW-18 Parshuram CC No.532295/16 State Vs Gurpreet Singh Walia. 117 corroborated by the evidence of PW-19 Amit Kumar and their consistent evidence on the following facts :
(i) that the accused Gurpreet Singh Walia had demanded Rs.35,000/- from the complainant Parshuram to clear his file for grant of electrical license in the name of M/s Continental Elevators while descending from the staircase of the shop of the complainant at Dwarka on 06.09.2010 ;
(ii) that on 13.09.2010 both the witnesses i.e. PW-
18 and PW-19 had gone to the office of accused to make payment of demanded amount and had given Rs.27,000/- when the accused had uttered the words "de do" and the amount was put on the table of the accused and accused thereafter, had put a paper weight on the same;
it is proved that accused Gurpreet Singh Walia while working as Deputy Electrical Inspector, Labour Department, Govt. of NCT of Delhi being a public servant had demanded bribe/illegal gratification of Rs.35,000/- on the evening of 06.09.2010 at the office of complainant Parshuram at Shop No.105, Plot no. 1, First Floor, Vardhman, Dwarkadhish, Sector-10, Dwarka and on 13.09.2010, he had demanded and accepted bribe amount/ illegal gratification of Rs.27,000/- from the complainant at his office at 5, Shamnath Marg, Delhi for issuance of Electrical Contract License for working of lift operation in favour of M/s Continental Elevator of complainant. It is further proved that on 13.09.2010 at 5, Shamnath Margh, Delhi accused being a public servant obtained CC No.532295/16 State Vs Gurpreet Singh Walia. 118 bribe/illegal gratification of Rs.27,000/- from complainant Parshuram as a pecuniary advantage for himself by corrupt or illegal means by abusing his position as such public servant for getting issuance of Electrical Contract License for working of lift operation in favour of M/s Continental Elevator of complainant.
157. For the forgoing reasons and the above discussion, I am of the view that prosecution has succeeded in proving its case against the accused Gurpreet Singh Walia beyond reasonable doubt for the offence punishable under section 7 and 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988. I accordingly hold the accused Gurpreet Singh Walia guilty for the offence punishable under section 7 and 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988.
Digitally signed by KIRAN KIRAN BANSAL
Announced in the open court BANSAL Date:
2018.04.26
on this 13th April, 2018. 09:25:17 +0530
(Kiran Bansal)
Special Judge-07
(PC Act Cases of ACB, GNCTD)
Central District, THC, Delhi
CC No.532295/16 State Vs Gurpreet Singh Walia. 119