Delhi District Court
Cc No. 141/15, Cbi vs . H. S. Bhati Page No. 1/90 on 8 September, 2016
IN THE COURT OF SH. M.K. NAGPAL, SPECIAL JUDGE
(P.C.ACT), CBI08, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CC No. : 141/15 (Old CC No. 01/13)
RC No. : 24(A)/2012/CBI/ACB/ND
U/s : 7 and 13(2) r/w Section 13(1)(d) of PC
Act, 1988
Unique ID No. 02401R0035132013
Central Bureau of Investigation (CBI)
Versus
Hemendra Singh Bhati @ H. S. Bhati
S/o Sh. D. S. Bhati
R/o E233, AlphaOne, Greater Noida
Gautam Buddha Nagar, UP
Permanent Address:
H. No. 57, Village Bhonra, POWair
ThanaKakor, District Gautam Buddha Nagar, UP
Date of FIR : 04.07.2012
Date of Institution : 03.01.2013
Arguments concluded on : 22.08.2016
Date of Judgment : 08.09.2016
J U D G M E N T
1. The accused has been sent to face trial by the
CBI on allegations that while working as a Junior Engineer
(JE) (Civil) in the office of Delhi Jal Board (DJB) at Pitam Pura,
CC No. 141/15, CBI Vs. H. S. Bhati Page No. 1/90
he had demanded a bribe of Rs. 90,000/ from the
complainant/PW5 Sh. Noor Mohammad, a partner of M/s N.
M. Construction & Interior Decorator, for passing of the
pending bill of Rs. 2,10,040/ (inadvertently typed as Rs.
2,10,000/ in the charge) of the complainant and in pursuance
of the said demand, he demanded and accepted an amount of
Rs. 50,000/ from the complainant/PW5 as part payment on
04.07.2012 and was caught red handed while accepting the
said amount and by demanding and accepting the above
amounts of illegal gratification as a motive or reward for
passing of the said bill, he had committed an offence
punishable U/s 7 of the Prevention of Corruption Act, 1988 (in
short, PC Act) and further by obtaining the above illegal
gratification, by corrupt or illegal means, he also abused his
position as a public servant and further committed an offence
of criminal misconduct punishable U/s 13(2) r/w Section 13(1)
(d) of the PC Act.
FACTS OF THE CASE AND CHARGES
2. The factual matrix of the case is that the complainant/PW5 was a contractor of DJB and working in the name and style of M/s N. M. Construction & Interior Decorator at Abul Fazal Enclave, New Delhi and he was awarded a work contract for supply of labourers for 89 days for maintenance and cleaning of sewer lines in Shalimar Bagh constituency. A CC No. 141/15, CBI Vs. H. S. Bhati Page No. 2/90 work order number 228 dated 24.02.2012 Ex. PW7/3 (page 117 of D13) was issued by the Executive Engineer, North WestIII to the complainant's firm for the contractual amount of Rs. 2,10,040/ and the complainant was to provide 10 labourers each day for the contractual period of 89 days. It is alleged that the complainant provided the labourers as stipulated in the work order and successfully executed the contract. The bill of Rs. 2,10,040/ of the complainant/PW5 in connection with the execution of the said contract was pending with the accused and the accused demanded a bribe of Rs. 90,000/ for passing of the said bill. Since the complainant did not want to pay the demanded bribe amount, he approached the office of CBI with a hand written complaint Ex. PW5/A (D1) on 04.07.2012 for taking appropriate action against the accused.
3. It is alleged that the above complaint Ex. PW5/A was marked by the SP/ACB/CBI to PW10 SI A. K. Maurya and the SP also introduced the complainant with PW10 and directed him to verify the complaint. PW10 had then called an independent witness namely Sh. Sharad Kumar/PW4 and introduced him with the complainant and the complaint Ex. PW5/A was also shown and read over to the independent witness and PW10 started verification of the facts stated in the complaint. During the course of verification proceedings, PW10 had arranged a blank DVR in which the introductory CC No. 141/15, CBI Vs. H. S. Bhati Page No. 3/90 voice of the independent witness was recorded and then at around 10:33 AM, the complainant was asked to make a call from his mobile number 9718507222 on the mobile number 9650291137 of the accused. The conversation held between the complainant and the accused during the said call was also heard by PW10 as well as the independent witness, while keeping the mobile phone of the complainant in loudspeaker mode, and simultaneously it was also recorded in the DVR. In the said conversation, it was revealed that the accused demanded bribe and was ready to accept it and he was also repeatedly asking the complainant/PW5 to come and meet him in his office at around 1:30 PM.
4. It is alleged that since the motive of demand of the said bribe was not clear from the above conversation, the complainant was asked to make another call to the accused and accordingly a call was again made by the complainant from his mobile number 9953227305 on the above mobile number 9650291137 of the accused at around 1:00 PM and during this conversation, it became clear that the accused demanded and agreed to accept the above bribe for passing of the pending bill of complainant for supply of labourers. The accused also told the complainant that such kind of talks were not safe to be made on phone and hence, he called the complainant in his office on that very day. It was also revealed from this conversation that the accused agreed to accept an CC No. 141/15, CBI Vs. H. S. Bhati Page No. 4/90 amount of Rs. 50,000/ as a part payment against the demanded bribe amount of Rs. 90,000/. This conversation was also heard by all and recorded simultaneously in the above DVR. It is necessary to mention here that the complainant was allegedly having a dual SIM mobile phone at that time, which contained the SIMs of the above two numbers.
5. PW10 had then arranged a blank CD and the above conversation was transferred to the said CD and it was marked as Q1 and the independent witness had signed on the same and a cloth parcel of the CD kept in a plastic case was prepared and sealed with the CBI seal and it was signed by the independent witness. The specimen impression of the CBI seal was also taken on a separate sheet of paper for future requirements and one other copy of the above CD was also prepared for investigation purposes before sealing of the same. All the above proceedings were incorporated by PW10 in the verification memo Ex. PW4/A (D2) prepared in the CBI office, which was signed by the complainant as well as the independent witness, besides PW10 himself. The verification proceedings stood concluded at around 2:00 PM and then a formal case vide FIR RC24(A)/2007, which is Ex. PW11/A (D
3), was registered by the CBI and investigation of the case was entrusted to the IO/TLO/PW11 Inspector Nikhil Malhotra.
CC No. 141/15, CBI Vs. H. S. Bhati Page No. 5/906. It is alleged that thereafter, the TLO/PW11 had constituted a trap team consisting of himself, PW10 SI A. K. Maurya, Inspectors Kailash Sahu, Pramod Kumar and M. K. Upadhyaya and apart from the complainant/PW5 and one independent witness/PW4 Sh. Sharad Kumar already present in the CBI office, he also secured the presence of one other independent witness namely Sh. Prashant Kumar/PW8. All the members of the trap team were introduced with each other as well as the complainant/PW5 and the purpose of assembly was explained to all. In the meanwhile, a call was received from the above mobile number 9650291137 of the accused on the mobile number 9953227305 of the complainant and the accused wanted to know as to at what time the complainant would be coming to his office and to this, the complainant told the accused that he would be reaching there by 3:30 PM. Since this call was sudden and short, it could not be recorded. The TLO/PW11 had then explained and read over the contents of the complaint Ex. PW5/A (D1) to all and the complainant also narrated the entire facts to the team members and verified his complaint as well as the proceedings conducted thereon during the verification process. Thereafter, the complainant produced an amount of Rs. 50,000/, comprising of 100 currency notes of Rs. 500/ each, and the numbers of the said currency notes, alongwith their denominations, were noted down. The members of the trap team were given a demonstration by Inspector Kailash Sahu to CC No. 141/15, CBI Vs. H. S. Bhati Page No. 6/90 explain the purpose and significance of use of phenolphthalein powder and its chemical reaction with sodium carbonate and water. Inspector Kailash Sahu then treated the above notes with phenolphthalein powder and asked PW8 Prashant Kumar to touch the tainted currency notes with his right hand fingers and wash his fingers in the freshly prepared colourless solution of sodium carbonate and water in a glass tumbler and on doing so, the colourless solution turned to pink colour and it was thrown away by Inspector Kailash Sahu after explaining the significance thereof and the remaining phenolphthalein powder was returned back to Malkhana. The personal search of the complainant was conducted and he was not allowed to keep anything incriminating with him, except his mobile phone having the above two SIMs, and the other members of the trap team also searched each other. The tainted currency notes of Rs. 50,000/ were put in the right side pant pocket of the complainant by PW8 and the complainant was directed not to touch the said currency notes and to hand them over to the accused, or to someone else on instructions of the accused, only on a specific demand or gesture from the accused. The trap team members had then washed their hands. The TLO/PW11 had also arranged a DVR and blank CDs and the introductory voices of both the independent witnesses were recorded in the DVR.
7. Further, the other independent witness Sh.
CC No. 141/15, CBI Vs. H. S. Bhati Page No. 7/90Sharad Kumar/PW4 was asked to act as a shadow witness and to remain present with the complainant to overhear the possible conversation between the complainant and the accused and to see the transaction of bribe which was to take place between them. The complainant as well as the shadow witness were both directed to give a signal by rubbing of their faces with their both hands after the above transaction of bribe was over and in case they were not able to see the members of the trap team, then they were instructed to give a missed call from their mobile phones to the mobile phone number 9968081202 of the TLO/PW11. The other witness Sh. Prashant Kumar/PW8 was asked to act as a recovery witness and to remain present with the trap party. The TLO/PW11 had further arranged a kit containing all the requisite articles in connection with a trap and took into possession the sealed parcel of the above CD marked Q1, alongwith the paper on which the specimen seal impression of the CBI was earlier taken by PW10/SI A. K. Maurya.
8. All the above proceedings conducted by the TLO/PW11 were also reduced into writing in the form of one handing over memo Ex. PW4/B (D4) and a separate sheet Ex. PW4/C containing the serial numbers and other details of the currency notes was made an Annexure to this memo. Thereafter, all the members of the trap team left the office of CBI at around 4:30 PM and reached outside the office of the CC No. 141/15, CBI Vs. H. S. Bhati Page No. 8/90 accused. The above DVR was handed over to the complainant and importance thereof was explained to him and he was told to switch it on for recording the conversation which may take place between him and the accused. The complainant/PW5 had then entered the room of accused and the shadow witness accompanied him and rest of the team members took suitable positions in a discreet manner nearby the vicinity of office of the accused.
9. It is alleged that at around 4:47 PM, a missed call was received on the mobile phone number 9968081202 of the TLO/PW11 from the mobile number 9717637821 of the shadow witness, in terms of the above prefixed signal, and accordingly the CBI team, accompanied by the other independent witness, reached at the spot. It was found that the accused was sitting with the complainant/PW5 and the shadow witness and on identification of the complainant/PW5, the accused was apprehended by the CBI officials after confirmation of his identity. The accused was challenged for having demanded and accepted a bribe of Rs. 50,000/ from the complainant as a part payment, against the demanded bribe amount of Rs. 90,000/, for clearing the pending bill of the complainant, on which he turned pale and could not offer any explanation. The above DVR was taken back from the complainant and was switched off. On being asked to narrate the incident, the complainant told the members of the trap CC No. 141/15, CBI Vs. H. S. Bhati Page No. 9/90 team that when he entered inside the room of accused, alongwith the shadow witness, the accused, after some formal talk, demanded the bribe amount from him and on this, he took out the said bribe amount from his right side pant pocket and extended the same towards the accused, who accepted it with his right hand. The complainant further told the members of the trap team that after counting the bribe amount with his both hands, the accused stated that the amount was less than the demanded amount and he asked for the total demanded sum, i.e. Rs. 90,000/. The complainant further told them that the tainted currency notes of Rs. 50,000/ were handed over by him to the accused only on the specific demand of accused and the accused accepted the same and kept it in his office almirah. The shadow witness also corroborated the above version of the complainant.
10. Thereafter, the wash of the right hand of accused was taken in a freshly prepared colourless solution of sodium carbonate and water in a clean glass tumbler, in presence of both the independent witnesses, and on doing so, the colour thereof turned to pink. The said wash was transferred into a clean glass bottle and it was converted into a cloth parcel and sealed with the CBI seal, which was taken back from the shadow witness Sh. Sharad Kumar to whom the seal was earlier handed over by PW10 during the verification proceedings. The said cloth wrapper and the paper label CC No. 141/15, CBI Vs. H. S. Bhati Page No. 10/90 pasted on the said bottle were signed by both the independent witnesses and the TLO/PW11 and the same were marked as RHW. The wash of the left hand of accused was also taken in a similar freshly prepared solution and the colour thereof also turned into pink and a separate cloth parcel thereof in a glass bottle was also prepared, sealed and signed in the same manner and this parcel was marked as LHW. On pointing out of the shadow witness, the above tainted currency notes of Rs. 50,000/ were also recovered from the office almirah of accused and the same were found lying on one bill of DJB prepared in favour of one company named M/s Ricky Engineering Company, which is Ex. PW4/D (D14) on record. The serial numbers and denominations of the said currency notes were found to be tallying with those given in Ex.PW4/C, i.e. Annexure to the handing over memo Ex. PW4/B, (Both these documents are part of D4) by the independent witnesses and the said recovered bribe amount was taken into possession and a wash of the said bill, on which the tainted currency notes found lying, was also taken with the help of a wet cloth in the same manner and a separate cloth parcel of glass bottle of the said wash was prepared, sealed and signed in the same manner and it was marked as PW. The accused was asked if the above bribe amount accepted by him was to be shared by him with any other person, to which he replied in negative. The TLO/PW11 also prepared the rough site plan Ex. PW4/DB (D7) at the spot, which was signed by all. Since CC No. 141/15, CBI Vs. H. S. Bhati Page No. 11/90 the place of apprehension of accused was near the main road and a crowd had started gathering there slowly, hence, in order to secure the safety of accused and the case property, the accused was brought to the office of CBI, alongwith the independent witnesses, at around 6:30 PM.
11. It is further alleged that after reaching in the CBI office, the recordings in the DVR were played and the conversation held between the accused and the complainant at the time of trap was heard by all. The accused was formally arrested in this case at around 7:00 PM on that day and his personal search was also conducted, vide arrestcumpersonal search memo Ex. PW4/F (D6), and intimation of his arrest was given to his family members. The contents of the above recorded conversations were transferred to a blank CD with the help of the official laptop and this CD was marked as Q2 and it was signed by the complainant, TLO/PW11 as well as the two independent witnesses and then a cloth parcel of this CD in its cover was also prepared and sealed with the CBI seal and a spare copy of the said CD was made for the purposes of investigation. The specimen voice sample of the accused was also taken with the help of the above DVR and then transferred to another blank CD, which was marked as S1, signed by the above persons and converted into another sealed parcel in the same manner and the above parcels of CDs were also marked accordingly and signed by the above CC No. 141/15, CBI Vs. H. S. Bhati Page No. 12/90 persons. All the sealed parcels marked as RHW, LHW, PW, Q2 and S1, as well as the recovered tainted bribe amount of Rs. 50,000/ and the above bill Ex. PW4/D (D14) (running into 9 pages) on which the bribe amount was lying, were taken into possession by the TLO/PW11. The specimens of the CBI seal used in the trap proceedings were taken on separate sheets and the same were also got signed from the independent witnesses, besides the TLO/PW11. All the above proceedings relating to trap were incorporated in the recovery memo Ex. PW4/E (D5), which was prepared on official computer in the CBI office, and the contents of the memo were read over and explained to all and the said memo was signed by all the concerned and a copy thereof was also handed over to the accused. The trap proceedings stood completed at around 9:50 PM.
12. The investigation of the case was subsequently transferred to PW15 Inspector Shitanshu Sharma on 10.07.2012 and he got identified the voice of accused appearing in the recorded conversations from the complainant as well as the two independent witnesses, and the independent witnesses also identified their own voices appearing in these conversations, vide the voicecum transcription memo Ex. PW4/G (D8). The transcriptions Ex. PW4/H, Ex. PW4/J and Ex. PW4/K of these conversations were also got prepared by PW15 during the said voice CC No. 141/15, CBI Vs. H. S. Bhati Page No. 13/90 identification proceedings. He also subsequently sent the exhibits to the CFSL for analysis.
13. It is further alleged that during the investigation, it was revealed that the accused was posted as a JE in Shalimar Bagh constituency of the DJB and the labour provided by the complainant was under his supervision and it was his duty to deploy the labour for desilting of the main holes and to check the number of labourers provided on each day of the contractual period. It was further revealed that after completion of work, the bill raised by the contractor was to be entered by the concerned JE in the measurement book and the same was to be put up before the Assistant Engineer (AE)/Zonal Engineer (ZE) for recommending the release of payment and thereafter, before the Executive Engineer (Ex. En.) for signatures and then it was required to be sent to the accounts section for checking and raising the demand of the bill and after clearance of the demand, payment was to be made to the contractor. It was found that though the complainant had provided the labour throughout the contractual period and duly executed the contract, but the bill in respect of his contract was being deliberately kept pending by the accused for want of the money. During investigation, the subsequent IO/PW15 had also seized all the requisite records and documents in connection with this case from the concerned office of DJB and further obtained the ownership CC No. 141/15, CBI Vs. H. S. Bhati Page No. 14/90 and call details records of all the above mobile numbers from the concerned service providers. Vide the report Ex. PW2/A dated 17.07.2012 (D19) given by PW2 Sh. V. B. Ramteke of CFSL, CBI, New Delhi, all the above washes are said to have given positive tests for the presence of phenolphthalein powder and sodium carbonate and vide another report Ex. PW6/A dated 26.10.2012 given by PW6 Dr. Subrat Kumar Choudhary, which was received subsequent to the filing of chargesheet, the specimen voice of accused recorded in the CD marked S1A was opined to be similar to the questioned voices of the accused appearing in the CDs marked Q1 and Q2. After obtaining the requisite sanction U/s 19 of the PC Act for prosecution of the accused, vide order dated 26.09.2012 Ex. PW5/A (D22) from the concerned competent authority of DJB, and completing the other formalities of investigation, PW15 had ultimately prepared and filed the chargesheet against the accused in the court. It is also necessary to mention here that though not specifically reflected in the chargesheet, but it transpired during the course of trial that contents of the specimen voice of accused allegedly transferred in the CD marked S1 on 04.07.2012, i.e. during the course of trap proceedings reflected in the recovery memo Ex. PW4/E (D5) and sent to the CFSL subsequently, could not be actually transferred to the said CD and hence, on request of the CFSL authorities, PW15 had obtained the fresh specimen voice sample of accused on 12.10.2012 vide memo Ex.
CC No. 141/15, CBI Vs. H. S. Bhati Page No. 15/90PW8/A (D20) and transferred its contents to the above CD marked S1A, which was prepared and sealed in presence of the complainant as well as the above two independent witnesses, examined by the CFSL and is the subject matter of the above report Ex. PW6/A.
14. The chargesheet was filed in this court on 31.10.2012 for the offences punishable U/Ss 7 and 13(2) r/w Section 13(1)(d) of the PC Act, 1988 and after initial scrutiny of the documents by the court staff, cognizance of the above said offences was taken by the court on 03.01.2013. On being summoned by the court, copies of the chargesheet and documents were supplied to the accused in compliance of the provisions of Section 207 Cr.P.C. A prima facie case for commission of the offences punishable U/Ss 7 and 13(2) r/w Section 13(1)(d) of the said Act was found to be made out against the accused vide order dated 03.05.2014 of this court and charges for the above said offences were also framed against the accused by this court on 08.05.2014.
EVIDENCE OF PROSECUTION
15. The prosecution in support of its case has examined on record total 16 witnesses and their names and the purpose of examination are being stated herein below: CC No. 141/15, CBI Vs. H. S. Bhati Page No. 16/90
16. PW1 Sh. Huzar Lollen is the then Member (Administration) of DJB, who accorded the sanction U/s 19 of the PC Act for prosecution of the accused in this case vide his order dated 26.09.2012 Ex. PW1/A on record. He stated that the sanction was accorded by him as he was the competent authority to remove the accused from his services at the relevant time.
17. PW2 Sh. V. B. Ramteke is the concerned Senior Scientific Officer of CFSL, Lodhi Road, New Delhi, who had chemically examined the above washes marked as RHW, LHW and PW and gave his report Ex. PW2/A (D19), vide which all the above three exhibits/washes are said to have given positive tests for the presence of phenolphthalein with sodium carbonate. He has stated that the above parcels were received by them in intact sealed condition and the remnants of the exhibits were resealed by him after analysis. He has duly identified the glass bottle parcels containing the above washes as Ex. PW2/1 to Ex. PW2/3 and also the cloth wrappers thereof as Ex. PW2/4 to Ex. PW2/6 respectively and the envelope in which the said parcels were received as Ex. PW2/7.
18. PW3 Sh. Yogender Singh was working as JE with DJB at the relevant time and was posted in the concerned area of Pitampura where the above contract work awarded to CC No. 141/15, CBI Vs. H. S. Bhati Page No. 17/90 the complainant was to be performed. He has stated that the above labour contract for supply of labourers to DJB for maintaining the sewage system, i.e. for cleaning and desilting of main holes, was awarded to the above firm of complainant for 89 days starting from March, 2012 and ending in June, 2012. He also stated that the accused was responsible for preparation of records pertaining to the work of labourers and the bills in respect of the said contract and the labourers were provided to him by the accused and he got the sewage system of the area cleaned with the help of that labour and he also used to report orally to the accused about the number of labourers present on the specific days of the contract and the accused used to maintain records of the labourers. He has further identified the original bill Ex. PW3/A (part of D15) prepared in prescribed format by the accused in respect of the said contract. It is also necessary to mention here that some portion of the above bill containing the purported signatures of the accused was found to be torn during the course of examination of this witness and hence, a photocopy of the said bill was also taken on record during the course of examination of this witness and the same exhibit mark was placed on this photocopy also, which was also found to be similar to the photocopy earlier supplied to the accused.
19. PW4 Sh. Sharad Kumar and PW8 Sh. Prasant Kumar are the two officials of the Indian Railways posted in CC No. 141/15, CBI Vs. H. S. Bhati Page No. 18/90 Baroda House, New Delhi, who were joined in the proceedings of this case as independent witnesses. They both have participated in the trap proceedings and deposed regarding the said proceedings and also proved the documents prepared in connection with the same under their signatures. PW4 has also participated in the verification proceedings conducted prior to the trap. They both have also identified the accused, the exhibits as well as their signatures appearing on various documents etc. The depositions of these two material witnesses will be discussed and appreciated in detail in the subsequent part of this judgment.
20. PW5 Sh. Noor Mohammad is the complainant of this case and he has deposed about making of the above complaint with the CBI, registration of the FIR of this case and all the subsequent proceedings conducted by the CBI officials. He has also identified the accused, the exhibits as well as his signatures on different documents etc. His statement will also be discussed and appreciated later on.
21. PW6 Dr. Subrat Kumar Choudhury is also a Senior Scientific Officer of CFSL, New Delhi and he examined the recorded conversations in CDs marked Q1, Q2, and S1A of this case and gave his report Ex. PW6/A dated 26.10.2012 and opined that the questioned and the specimen voices sent to them were probably the voice of same person, i.e. the CC No. 141/15, CBI Vs. H. S. Bhati Page No. 19/90 accused. He also identified the above exhibits.
22. PW7 Sh. Ajay Kumar, was the Ex. En., North WestIII, in the above office and the accused was working under him at the relevant time. He has deposed about the above contract of labour awarded to the above firm of the complainant, the process of awarding of the contract and the raising and processing of bills etc. on successful completion of such contracts. He has also identified the handwriting and signatures of the accused in the notings of the official file (D
13) pertaining to the above contract and on some other documents, besides his own handwriting/signatures and that of some other officials of their department. He has stated that the note Ex. PW7/1 (on page 116 of file D13) containing the estimate for the above said contract was put up by the accused and it was finally sanctioned by him vide his note dated 21.02.2012 Ex. PW7/2 (on page 112 of file D13), after it was also approved by some other officers, and the work order Ex. PW7/3 (on page 117 of file D13) in respect of the said contract was issued in favour of the above firm of the complainant on 24.02.2012 and the work agreement dated 27.02.2012 Ex. PW5/B (on page 120 of file D13) (wrongly typed as D15 in his statement) was executed between him and the complainant in respect of the said contract.
23. He has also stated that it was duty of the CC No. 141/15, CBI Vs. H. S. Bhati Page No. 20/90 concerned JE to do the day to day supervision of the work performed by the contractor and besides the JE, the AE and Ex. En. also used to supervise the work at intervals. He further stated that the accused was the concerned JE having supervision of work of the above said contract with the complainant and the accused was responsible for making entries in the measurement book regarding the presence of labourers on each day of the contract and also for preparing bills in connection with the same. He has also identified the entries Ex. PW7/4A to Ex. PW7/4G made by the accused in the measurement book (D16) with regard to the above said contract, out of which Ex. PW7/4G was the bill prepared by the accused in respect of the above contract in the said book. He further identified the handwriting of the accused in another bill Ex. PW3/A (part of D15) prepared in the prescribed format and has specifically stated that the accused did not put up the above said bills to him till 04.07.2012, though he was duty bound to do the same, and he was not supposed to keep the said bills pending with him. He further stated that as per his information and knowledge, the work of the above contract was completed by the complainant on 08.06.2012 and the accused did not even ask the contractor to accept the said bill, which was required as per the procedure.
24. PW9 Sh. Sandeep Sharma is the concerned Zonal Engineer (ZE) of the said area and he has also stated CC No. 141/15, CBI Vs. H. S. Bhati Page No. 21/90 that the accused was working under him as well as PW7. He deposed that the above labour contract was given to the complainant and the accused was incharge of the said work and was responsible for ensuring the presence of ten labour on each day of the contract. He has also stated that after preparation of bill by the accused, he was required to ask the contractor concerned to accept the bill and then to recommend the bill for release of payment. Though, he has also identified the handwriting and signatures of the accused, besides his and some other handwritings/signatures, in the measurement book Ex. PW7/4A to Ex. PW7/4G (D16) and in the proforma bill Ex. PW3/A (part of D15), but he has also specifically stated that the above said bill was not put up before him by the accused upto 04.07.2012.
25. PW10 SI Arjun Kumar Maurya (A.K. Maurya) is also the Verification Officer of this case, besides a member of the trap team, and he has deposed on the above lines of prosecution story regarding the assignment of the above complaint Ex. PW5/A (D1) of the complainant to him and the conduction of the above verification proceedings by him, as are reflected in the verification memo Ex. PW4/A (D2). He has also deposed about his participation in the above trap proceedings and the documents prepared with regard to the same like handing over memo Ex. PW4/B (D4), its Annexure Ex. PW4/C (D4) and the recovery memo Ex. PW4/E (D5).
CC No. 141/15, CBI Vs. H. S. Bhati Page No. 22/90He has also identified the accused as well as some of the exhibits.
26. PW11 Inspector Nikhil Malhotra is the Investigating and Trap Laying Officer (TLO) of this case. He has deposed in detail about laying of the above trap and the proceedings conducted with regard to the same, almost on the above lines of the prosecution story, and has also proved all the relevant documents prepared in connection with the same, as already discussed above.
27. PW12 Sh. Pawan Singh is the Nodal Officer of M/s Idea Cellular Ltd. and he has stated that on request of the CBI officials, they had supplied certain attested records pertaining to the above mobile number 9718507222 of the complainant, which was formally subscribed in the name of one Mohd. Rashid, son of the complainant. The records supplied by him included a copy of the Customer Application Form (CAF) Ex. PW12/A of the said number, a copy of the election card of the subscriber Mark PW12/1 and Call Detail Record (CDR) Ex. PW12/B of the said number and also one original certificate Ex. PW12/C U/s 65B of the Evidence Act under his signatures regarding the authenticity of the above CDR (All these documents are part of D23).
28. PW13 Sh. Israr Babu was an alternative Nodal CC No. 141/15, CBI Vs. H. S. Bhati Page No. 23/90 Officer of M/s Vodafone Mobile Services Ltd. at the relevant time and he has also deposed about supply of similar records, i.e. attested copy of CAF Ex. PW13/A, attested copy of election card of subscriber Mark PW13/1, attested CDR Ex. PW13/B and one original certificate Ex. PW13/C U/s 65B of the Evidence Act to the CBI officials by their company vide letter Ex. PW13/D in respect of the other mobile number 9953227305 of the complainant, which was registered in the name of the complainant himself. However, as per him, the records were supplied and the documents were attested under the signatures of Sh. Anuj Bhatia, the Nodal Officer of their company and he also identified the signatures of Sh. Anuj Bhatia on these documents (All these document are part of D
24).
29. PW14 Sh. Surender Kumar, was an Assistant Nodal Officer of M/s Bharti Airtel Ltd. at the relevant time and he has deposed about supply of similar records, i.e. attested copy of CAF Ex. PW14/A, attested copy of ID card of the subscriber Mark PW14/1 and attested CDR Ex. PW14/B of mobile number 9650291137 of the accused, alongwith one original certificate Ex. PW14/C issued U/s 65B of the Evidence Act, to the CBI officials by their company vide letter Ex. PW14/D. However, as per him, the records were supplied and the documents were attested under the signatures of Sh. Vishal Gaurav, the Nodal Officer of their company, and he also CC No. 141/15, CBI Vs. H. S. Bhati Page No. 24/90 identified the signatures of Sh. Vishal Gaurav on these documents (All these documents are part of D25).
30. PW15 Inspector Shitanshu Sharma is the subsequent IO of this case and on being assigned the investigation of this case on 10.07.2012, i.e. after the trap, he recorded the statement of complainant, public witnesses and other members of the trap team and also seized certain records pertaining to the above contract from the office of Delhi Jal Board vide productioncumsearch memo Ex. PW7/5 (D12) and some other documents in respect of the said contract from the complainant vide a similar memo Ex. PW15/D (D17). He had also taken the voice sample of the accused in CD mark S1 and further got forwarded the same, along with recorded conversations contained in the CDs mark Q1 and Q2, to CFSL vide letter Ex. PW15/Acolly (D11) of their SP and he further got forwarded the parcels of the washes to the CFSL on the same day vide similar letter Ex. PW15/Bcolly (D10) of the SP. He also got prepared the transcription Ex. PW15/E of the CD mark S1A On completion of investigation, after obtaining the prosecution sanction and completing the other formalities, he prepared and filed the chargesheet Ex. PW15/C in the court. He also identified the accused, some of the exhibits as well as the voices recorded in the conversation contained in the CD mark S1A.
CC No. 141/15, CBI Vs. H. S. Bhati Page No. 25/9031. PW16 Sh. Vivek Priyadarshi is the then SP, who had forwarded one specimen voice sample of accused in CD mark S1A to CFSL on 17.10.2012, vide his letter Ex. PW16/A (D21), along with one certificate Ex. PW16/B (part of D21) regarding the competency of the CFSL, New Delhi to examine the said exhibits.
STATEMENT AND DEFENCE OF ACCUSED
32. After conclusion of the prosecution evidence, all the incriminating evidence brought on record was put to the accused in his statement recorded U/s 313 Cr.P.C. and the same was denied by accused either as wrong or beyond his knowledge. The accused has not disputed that he was posted as a JE in the above said office at the relevant time and has also stated it to be a matter of record that the above labour contract was granted by their office to the above firm of the complainant and further the terms of execution of the said contract. He also admitted that it was his duty to supervise the said contract, though alongwith the other officers, and also to make entries pertaining to the said contract in the measurement book. He has also not disputed that the above labour contract was duly executed by the complainant and the above entries of the measurement book and bills regarding the said contract were made by him in relation to the said contract. However, it is his case that the complainant had provided the CC No. 141/15, CBI Vs. H. S. Bhati Page No. 26/90 details of the bills after many days of completion of the work and it was only thereafter that he could prepare the above details and bills. It is submitted by him that as per Section 29.2 (final payments), the entries in the measurement book were required to be recorded within one month of completion of the work, which he had made in the present case. It is also his case that he had telephonically informed the complainant/ contractor to come and accept the bills and the complainant told him that he will come and accept the bills shortly, but the complainant did not turn up and rather the complainant got trapped him in this false case only after 26 days of completion of the work.
33. It is further the case of accused that he never demanded or accepted any bribe from the complainant and no calls to or from the complainant were ever made or received by him and the CDs containing the alleged conversations between them are fake and inadmissible in evidence. He has also submitted that since his alleged voice in CD marked Q1 was not matching with his voice, he was called by the CBI in their office and asked to read the entire transcript with a time gap to prepare another forged and fabricated CD. He claimed that even the transcriptions of the above CDs were forged and fabricated and the same are inadmissible in evidence.
34. He has also specifically claimed that this case and CC No. 141/15, CBI Vs. H. S. Bhati Page No. 27/90 the story being put forward by CBI are false and all the documents prepared by the CBI officials are also false and fabricated documents and these have been created to falsely implicate him in this case. He has also specifically denied as wrong all the evidence pertaining to the pretrap and trap proceedings and further the documents prepared in connection with the same. It is also his case that the sanction for his prosecution is invalid and the same was given at the instance of the IO on the basis of the draft proforma supplied by the CBI. He has also challenged the reports of the experts of CFSL while saying that the same are biased and motivated and not legally admissible in evidence. He further claimed that the complainant has got lodged this case against him only because the complainant was having some grudge against him, though he has already prepared the bills of the complainant and further told the complainant telephonically to accept the said bills. He has also sought to lead evidence in his defence.
35. The accused in his defence has examined only one witness Dr. A. K. Kaushik as DW1 and this witness was posted as an Additional Director and Central Public Information Officer (CPIORTI) (ESecurity & Cyber Laws) in October, 2013 and he had only furnished one reply Ex. DW1/A under the RTI Act to some application moved under the said Act by an applicant Sh. Kulwinder Singh, in which it was stated CC No. 141/15, CBI Vs. H. S. Bhati Page No. 28/90 that the Government of India had not issued any notification U/s 79(A) of the Information Technology Act, 2000 notifying the CFSL/CBI/New Delhi to be the examiner of electronic evidence.
36. The challenges made by defence to the prosecution case and the evidence led on record can be broadly discussed and appreciated under the following heads: ADMISSIBILITY OF ELECTRONIC EVIDENCE
37. Firstly, I will discuss the admissibility of the electronic evidence brought on record by the prosecution in this case, which is intended to be used for the purposes of providing corroboration to the other oral and documentary evidence of the prosecution, as adduced on record regarding the alleged demand and acceptance of the bribe amount by the accused. This evidence consists of two parts and the first part comprises of the evidence about the three mobile numbers used in this case, i.e., mobile number 9650291137 of the accused and mobile numbers 9718507222 and 9953227305 pertaining to the complainant. The second part of electronic evidence pertains to the recorded conversations of this case in the form of CDs, to which the contents of these conversations were transferred, and the report of the concerned CFSL expert who had examined the contents of the CC No. 141/15, CBI Vs. H. S. Bhati Page No. 29/90 said conversations for the purposes of identification of the different voices appearing in the same.
38. Before entering upon any discussion regarding the admissibility of the electronic evidence, it is necessary to discuss here some recent judgments on this aspect.
39. It has been held by the Hon'ble High Court of Delhi, in case titled as, "Achchey Lal Yadav Vs. State, reported as Criminal Appeal No. 1171/2012", decided on 04.09.2014, as under:
"10. Thus, computer generated electronic records is evidence, admissible at a trial if proved in the manner specified by Section 65B of the Evidence Act.
11. Subsection (1) of Section 65B makes admissible as a document, paper printout of electronic records stored in optical or magnetic media produced by a computer, subject to the fulfillment of the conditions specified in Subsection (2) of Section 65B."
It was further held as under:
"14. The normal rule of leading documentary evidence is the production and proof of the original document itself. Secondary evidence of the contents of a document can also be led under Section 65 of the Evidence Act. Under Subclause "d" of Section 65, secondary evidence of the contents of a document can be led when the original is of such a nature as not to be easily movable. Computerised operating systems and support systems in industry cannot be moved to the court. The information is stored in these computers on magnetic tapes (hard disc). Electronic record produced there from has to be taken in the form of a print out. Subsection (1) of Section 65B makes admissible without further proof, in evidence, print out of a electronic record contained on a magnetic media subject to the satisfaction of the conditions mentioned in the section. The conditions are CC No. 141/15, CBI Vs. H. S. Bhati Page No. 30/90 mentioned in Subsection (2). Thus compliance with Sub section (1) and (2) of Section 65B is enough to make admissible and prove electronic records.
15. Thus, if witnesses deposed concerning computer print outs of call details generated they must speak the facts to establish that clauses (a) to (d) of subsection (2) of Section 65B or subSection (3) thereof, as the case may be, are satisfied. It is not enough to say "I have seen the call details of the aforesaid three telephone connection on the record. The said calls details are Ex. PW21/A, Ex. PW21/B and Ex. PW21/C respectively. The details are correct as per our record maintained in our office."
40. In case of Anwar P.V. (S) Vs. P.K. Basheer & Ors, Civil Appeal No.4226 of 2012, decided on 18.09.14, the Hon'ble Supreme Court has also made the following observations:
"13. 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 subsection(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 CC No. 141/15, CBI Vs. H. S. Bhati Page No. 31/90 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.
14. Under Section 65(B)(4) of the Evidence Act, if it is desired 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.
15. 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, CC No. 141/15, CBI Vs. H. S. Bhati Page No. 32/90 such a certificate must accompany the electronic record like computer printout, Compact Disc(CD), Video Compact Disc(VCD), Pen drive, etc., 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.
16. 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.
17. 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.
It was further held by their lordships in this case:
"22. The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case (supra), does not lay down the correct legal position.
It requires to be overruled and we do so. An CC No. 141/15, CBI Vs. H. S. Bhati Page No. 33/90 electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."
41. While relying upon and referring to the propositions of law laid down in the case of Anwar P.V. (S) (supra), regarding the admissibility of electronic evidence, the Hon'ble Delhi High Court has again made the following observations in case of Ankur Chawla Vs. CBI & Ors, Crl. M.C. No.2455/12 & Crl. M.A. No.8318/2017:
"17. In the instant case, the impugned order is silent about there being any certificate under Section 65B of the Indian Evidence Act, 1872 in respect of the audio and video CDs and even during the course of hearing, it was asserted on behalf of respondentCBI that aforesaid mandatory certificate of 18th December, 2009 is there, but respondentCBI has failed to show that such a certificate has been filed along with the chargesheet. Attention of this court was not drawn to statement of any witness to show that inference of criminal conspiracy can be drawn against petitioners. Pertinently, although this court is not required to look into photocopy of certificate under Section 65B of the Indian Evidence Act, 1872 furnished in respect of fifteen CDs in packet 'A' but there is no such certificate in respect of the seven CDs in packet 'B' which is solely relied upon by the prosecution. Thus, aforesaid certificate (which is not on record) is of no avail. So, there is no point in now permitting the prosecution to place the original of such certificate on record. It was also not shown during the course of the hearing that when the CDs CC No. 141/15, CBI Vs. H. S. Bhati Page No. 34/90 were prepared but since this case was registered on 23rd November, 2009 therefore these CDs must have been prepared soon thereafter and the certificate under Section 65B of the Indian Evidence Act, 1872 has to be of the date when the CDs were prepared but the photocopy of the aforesaid certificate shows that it was prepared on 18 th December, 2009 and is thus of no avail."
42. Though, vide the above observations made by their Lordship in the case of Ankur Chawla, (Supra) it was held that the certificate U/s 65B of the Evidence Act accompanying such an electronic evidence should be of the contemporary period of creation of such electronic evidence or computer output, but in the subsequent judgment of the Hon'ble Delhi High Court in case Kundan Singh Vs. The State, Crl. A. 711/2014 decided on 24.11.2015, it has been held by their Lordship, while referring, interalia, to the above propositions laid down by the Hon'ble Supreme Court in para no. 15 of their judgment in case Anwar P. V. (S), (Supra), that it is not necessary that this certificate must accompany the electronic record filed with the charge sheet and it can be produced later on when evidence with regard to such an electronic evidence is led in the court. The relevant portion of the observations made by their Lordship in the said case on this aspect is being reproduced herein below:
"40. The expression used in the said paragraph is when the electronic record is "produced in evidence".
Earlier portion of the same sentence emphasises the CC No. 141/15, CBI Vs. H. S. Bhati Page No. 35/90 importance of certificate U/s 65B and the ratio mandates that the said certificate must accompany the electronic record when the same is "produced in evidence". To us, the aforesaid paragraph does not postulate or propound a ratio that the computer output when reproduced as a paper print out or an optical or magnetic media must be simultaneously certified by an authorized person under subsection (4) to Section 65B. This is not so stated in Section 65B or subsection (4) thereof. Of course, it is necessary that the person giving the certificate under subsection (4) to Section 65B should be in a position to certify and state that the electronic record meets the stipulations and conditions mentioned in subsection (2), identify the electronic record, describe the manner in which " computer output" was produced and also give particulars of the device involved in production of the electronic record for the purpose of showing that the electronic record was prepared by the computer."
43. As far as the electronic evidence pertaining to the above mobile numbers used in this case is concerned, the relevant witnesses of the prosecution on record are PW12 Sh. Pawan Singh, PW13 Sh. Israr Babu and PW14 Sh. Surender Kumar. During the course of depositions made by PW12, he has exhibited on record the attested copies of the CAF and CDR of mobile number 9718507222 of the complainant and the original certificate U/s 65B of the Evidence Act furnished by him regarding the authenticity of the above CDR as Ex. PW12/A, Ex. PW12/B and Ex. PW12/C respectively. Besides the above, a photocopy of the election card of subscriber of the above mobile number has also been brought on record during his statement as Mark PW12/1 (all these documents are part of D23). As per the depositions made by this witness and the CAF, the above said mobile number 9718507222 was CC No. 141/15, CBI Vs. H. S. Bhati Page No. 36/90 subscribed in the name of one Mohd. Rashid S/o Noor Mohammad and it has not been disputed that the above Mohd. Rashid is son of the complainant Noor Mohammad of this case. It has also not been disputed that the above mobile number was being used by the complainant at the relevant time, though Ld Defence Counsel has challenged the admissibility of the above documents in evidence.
44. In this regard, it is observed that out of the above documents Ex. PW12/A to Ex. PW12/C, only the document Ex. PW12/B, i.e. CDR of the above mobile number, falls in the category of electronic evidence as Ex. PW12/A is an attested photocopy of the CAF of the said mobile number and Ex. PW12/C is the original certificate U/s 65B of the Evidence Act furnished by the said witness. The original of the above CAF was also produced in the court at the time of examination of this witness. It has been specifically stated on record by this witness that the attested copy of the above CDR Ex. PW12/B of the above mobile number was supplied by him to the CBI official on a letter of request received from the said officer and he has also identified his signatures, alongwith the official seal, appearing on the above copy of CDR as well as on the certificate Ex. PW12/C given by him with regard to the authenticity and genuineness of the said CDR. He has also stated specifically that the call detail record of each mobile phone of their company was automatically stored/maintained CC No. 141/15, CBI Vs. H. S. Bhati Page No. 37/90 in the main server of their company, which is located in Pune, Maharashtra, and the above said computer generated print of the said CDR Ex. PW12/B was taken by him from his own computer installed in his room, which was connected with the main server. During his cross examination, though he has not been able to recall the date on which the above records were supplied by him to the CBI officers, but he has further stated that as per the records of the said calls, the same were retrieved from the main server of the company on 11.07.2002 and further though he has also stated that apart from him, some other persons also used to work as Nodal Officers of the said company at that time, but he has also stated specifically that the computer from which the above print out of the CDR Ex. PW12/B was taken was being exclusively used by him at the relevant time. He has further stated on record that the above CDR was printed from his computer as soon as the same was generated from the main server and the same was not saved by him. He has also denied the suggestions given to him by Ld defence counsel that the above CDR was a fabricated and manipulated document and it was so fabricated at the instance of the CBI officers or further that he was not a competent officer of the said company to give the above certificate Ex. PW12/C. Even the above certificate Ex. PW12/C furnished by him specifically states that the contents of the above CDR were the true reproduction of the originals thereof, to the best of his knowledge and belief, and further CC No. 141/15, CBI Vs. H. S. Bhati Page No. 38/90 that the same were retrieved from the computer which was in possession of this witness and it was a password protected computer and the password excess thereof was only with this witness. Hence, from the depositions made by this witness and the contents of the above certificate Ex. PW12/C furnished by him, it can be safely held that the above CDR Ex. PW12/B of the above mobile number 9718507222 of the complainant stands duly proved on record and it is also admissible in evidence and can be used by the prosecution, in the light of the legal position discussed above.
45. However, as far as the evidence pertaining to the other two mobile numbers, i.e. mobile number 9953227305 of the complainant and 9650291137 of the accused, is concerned, the position is found to be different. As per the depositions made by PW13 Sh. Israr Babu, the Alternate Nodal Officer of M/s Vodafone Mobile Services, an attested copy of CAF Ex. PW13/A of mobile number 9953227305, alongwith attested copy of election card of the subscriber Mark PW13/1, the CDR Ex. PW13/B and the certificate Ex. PW13/C U/s 65B of the Evidence Act with regard to CDR of the above mobile number were supplied to the CBI officials by their company during investigation vide letter Ex. PW13/D (all these documents are part of D24) and the said documents bear the attestation, alongwith the official seal, of Sh. Anuj Bhatia, the Nodal Officer of their company. As per the above CAF Ex.
CC No. 141/15, CBI Vs. H. S. Bhati Page No. 39/90PW13/A, this mobile number was subscribed in the name of the complainant Sh. Noor Mohammad himself and the said fact or the use of this mobile phone by the complainant at the relevant time have also not been disputed by the defence and here also, the dispute is only with regard to admissibility of the above CDR Ex. PW13/B, which is being sought to be used by the prosecution for the purposes of corroborating the other evidence led on record. In this regard, it has been observed that the above calls were not retrieved by him from the server of the company vide the above CDR Ex. PW13/B nor the above certificate U/s 65B of the Evidence Act Ex. PW13/C was signed or given by him. During his cross examination, this witness has specifically made depositions to this effect and has also stated that the above Sh. Anuj Bhatia was still working as a Nodal Officer with their company, though he was not in Delhi on the day when this witness was examined. He has also stated that he has no personal knowledge about this case.
46. Likewise PW13, PW14 Sh. Surender Kumar was also only an Assistant Nodal Officer of M/s Idea Cellular Ltd. and he has identified the signatures on the attestations of the CAF Ex. PW14/A, alongwith a copy of Icard of the subscriber Mark PW14/1, CDR Ex. PW14/B and the certificate Ex. PW14/C U/s 65B of the Evidence Act given regarding the authenticity of the said CDR, which was made and given by CC No. 141/15, CBI Vs. H. S. Bhati Page No. 40/90 Sh. Vishal Gaurav, the Nodal Officer of their company. This witness has also stated specifically during his cross examination that the calls vide the above CDR Ex. PW14/B were not retrieved by him nor the above the certificate U/s 65B of the Evidence Act Ex. PW14/C was signed by him or in his presence and further that he has no personal knowledge about this case. He has also stated further that he has even no knowledge as to when the said CDR was demanded by or supplied to the CBI officials. Further, though he has also stated that Sh. Vishal Gaurav left the services of their company on 28.08.2015, but there is nothing on record to reflect that the present whereabouts of Sh. Vishal Gaurav were not known to the prosecution or that he could not have been made available or traceable for making depositions in this court. Hence, in the light of the legal position discussed above and the above depositions made by these two witnesses, the CDR Ex. PW13/B and Ex. PW14/B of these two mobile numbers, i.e. 9953227305 of the complainant and 9650291137 of the accused, cannot be said to be legally admissible in evidence and cannot be permitted to be used by the prosecution for the purposes of providing corroboration to their case or otherwise as the conditions requisite for leading of secondary evidence in respect of the same, as laid down U/s 65B of the Evidence Act, have not been fulfilled.
CC No. 141/15, CBI Vs. H. S. Bhati Page No. 41/9047. Now coming to admissibility of the recorded telephonic conversations between the complainant and the accused during the course of verification as well as trap proceedings, alongwith the introductory voices of two independent witnesses and the transcripts etc of such conversations, it is the case of prosecution that the telephonic conversations held between the complainant and the accused during the course of verification proceedings, along with introductory voice of PW4 Sh. Sharad Kumar, were recorded in a DVR and then the contents thereof were transferred from the said DVR to one blank audio CD and the said CD was marked as Q1 and a sealed parcel thereof was prepared by PW10 and the said parcel was also marked as Q1. Further, as per the prosecution case, the conversation held between the complainant and the accused during the course of trap proceedings, alongwith the introductory voices of both the independent witnesses, were also recorded in the DVR and the contents thereof were transferred to another blank CD, which was marked as Q2 and a sealed parcel thereof was also prepared by the TLO/PW11 and the same was marked as Q2. Again, the sample voice of the accused taken in the CBI office immediately after the trap proceedings was also allegedly recorded in the DVR, alongwith the introductory voices of the independent witnesses, and the contents thereof were transferred to one other blank CD marked S1 and a sealed parcel thereof was prepared by the TLO/PW11 and marked as CC No. 141/15, CBI Vs. H. S. Bhati Page No. 42/90 S1. There is specific mention of the preparation of the above three CDs and parcels thereof in the relevant documents of the prosecution, i.e. the verification memo Ex. PW4/A (D2) and the recovery memo Ex. PW4/E (D5), as well as the depositions made by the above two official witnesses and the two independent witnesses, i.e. PW4 and PW8.
48. Apart from the above, though not specifically mentioned in the chargesheet, but it has also come on record during the trial that the above CD marked S1 allegedly containing sample voice of the accused taken for the purposes of comparison with his voice recorded during the course of the verification and trap proceedings was found to be blank by the CFSL authority and on the request of the CFSL, another sample voice of the accused was taken in one other blank CD marked as S1A and it is this sample voice of accused which was actually analyzed by the CFSL authorities, in comparison to his questioned voices appearing in the two other CDs marked Q1 and Q2, vide the report Ex. PW6/A given by the concerned CFSL expert Dr. Subrat Kumar Choudhary. This sample voice of accused is alleged to have been taken on 12.10.2012 vide specimen voice recording memo Ex. PW8/A (D20) by PW15 Inspector Shitanshu Sharma in the presence of the above two independent witnesses. It is also the admitted case of prosecution that though the sealed parcels of the said CDs were prepared at the time when the above CDs CC No. 141/15, CBI Vs. H. S. Bhati Page No. 43/90 were made, but spare copies of the said CDs were also prepared by the concerned officials for the purposes of investigation.
49. However, it is also the admitted case of prosecution that the DVR in which all the recordings of the above voices or conversations was/were made by the CBI officials have neither been seized nor sent to CFSL for examination and this fact is specifically admitted by the official prosecution witnesses during the course of their examinations in this court. It is also not clear as to whether all the above recordings were made in one DVR or in different DVRs as no document or record pertaining to the issuance or return etc of such DVR has been brought on record during the evidence. It is also not clear from the evidence led on record as to whether the above recordings were made in the internal memories of the DVR or in any memory card or chip etc inserted in the same has neither the DVR nor any such memory cards or chips containing these original recordings were either sent to CFSL for examinations or produced in the court and only the CDs in which the contents of these conversations were allegedly transferred to by PW10 or PW11 and which were sent to CFSL and examined vide the above report Ex. PW6/A were produced and exhibited in the court. However, the evidence suggests that no memory card or chip was used in this case for recording the above conversations and the CC No. 141/15, CBI Vs. H. S. Bhati Page No. 44/90 recordings were made in the internal memory of the DVR itself. The transcripts of the recordings contained in CDs marked Q1, Q2 and S1, which were prepared on 17.07.2012 by PW15, in the presence of the complainant and the two independent witnesses, vide voice identificationcum transcription memo Ex. PW4/G (D8) are Ex. PW4/H, PW4/J and Ex. PW4/K on record and the transcription of the sample voice of accused taken in the CD marked S1A on 12.10.2012 is Ex. PW15/E on record. All the above transcriptions were prepared by PW15 by playing the recorded conversations as contained in the official copies of the above CDs, which were kept for investigation purposes.
50. Since the original DVRs or memory cards etc have not been seized and examined and only copies thereof were prepared and sent for CFSL analysis and also produced and exhibited in this court, there is no doubt that such CDs containing the recorded conversations of this case and examined by the CFSL authorities fall within the category of secondary evidence and a certificate U/s 65B of the Evidence Act was required in support of the genuineness and authenticity thereof. However, no such certificate U/s 65B of the Evidence Act given by either of the above three officials of CBI, i.e. PW10/SI A. K. Maurya who prepared the CD marked Q1, the TLO/PW11 Inspector Nikhil Malhotra who prepared the CD marked Q2 or PW15 Inspector Shitanshu Sharma who CC No. 141/15, CBI Vs. H. S. Bhati Page No. 45/90 prepared the CD marked S1A, is a part of the evidence led before this court nor it is the case of prosecution that any such certificate was given by any of the above three CBI officials or any other technical official of the CBI, who had transferred the contents of the original recordings in the CDs marked Q1, Q2 and S1A. Even the original laptop or computer with the help of which the said conversations were transferred to the above CDs were not seized in this case, examined by the CFSL or produced in this court. Hence, in the absence of the above and for lack of requisite certificates U/s 65B of the Evidence Act given regarding the authenticity of the above electronic evidence contained in the above CDs marked Q1, Q2 and S1A, which fall within the definition of secondary evidence, the contents of the said CDs are not admissible in evidence and are not of any help to the case of the prosecution as the same cannot be used in evidence. As a result thereof, even the above transcripts of the recordings contained in the above CDs cannot be used by this court for any purposes or for providing any corroboration to the other oral evidence led on record.
51. Apart from the above, even the weightage which could have been given to the above report Ex. PW6/A of PW6 is under serious challenge. Vide the above said report Ex. PW6/A, PW6 had opined that the questioned voices in the recorded conversations were probably resembling with the CC No. 141/15, CBI Vs. H. S. Bhati Page No. 46/90 sample voice being attributed to the accused. It is observed that the manner in which the sample voice of accused was taken vide memo Ex. PW8/A (D20) dated 12.10.2012 is under serious clouds as there is no mention of the said fact in the chargesheet Ex. PW15/C prepared by PW15 himself as this chargesheet only refers to the sample voice of the accused taken in CD marked S1 and the opinion with regard to the same was still awaited at the time when the chargesheet was filed in this court. PW6 in his statement made in this court has claimed that the sealed parcels of the CDs marked Q1, Q2 and S1 were received by them vide letter dated 11.07.2012 and the parcel containing CD marked S1A was received vide letter dated 18.10.2012 of the CBI. During his examination, it has also come on record that the parcel containing CD marked S1A was sent to them by the CBI only with response to one letter dated 27.08.2012 Ex. PW6/DA after the earlier CD marked S1 was found to be blank. Though PW15 is also found to have made specific depositions with regard to the retaking of about voice sample of accused in CD marked S1A, but he is silent in his examination in chief as to the circumstances which warranted the retaking of the sample voice of accused in the said CD. Even the two independent witnesses are not found to have been made any specific depositions regarding taking of the sample voice of accused again in their presence vide the above memo Ex. PW8/A (D
20) on 12.10.2012, i.e. after more than three months of the CC No. 141/15, CBI Vs. H. S. Bhati Page No. 47/90 trap. PW15 has also admitted that even the transcription Ex. PW15/E of recordings of this CD marked S1A neither bears any date nor any signatures, either his or of the independent witnesses. He further admits that it does not even contain a warning allegedly given to the accused that the said voice of accused taken in the above recordings could be subsequently used against the accused. Again, the competency of PW6 to examine the contents of the above audio CDs is also under doubts as he admits that he has not done any diploma or degree in the field of examination of audio and video voices and further also that the CFSL, CBI, New Delhi is not notified U/s 79(A) of the Information Technology Act for the purposes of examinations of the electronic forms of evidence. Hence, in view of the above and some other discrepancies appearing in the evidence, the above electronic evidence or computer outputs in the form of CDRs of the mobile number 9953227305 of the complainant and 9650291137 of the accused and also the evidence pertaining to the above recorded conversations is held to be inadmissible in evidence, though, the evidence in the form of CDR of one other mobile no. 9718507222 of the complainant is found to be admissible and can be used by the prosecution.
VALIDITY OF SANCTION U/S 19 OF THE PC ACT
52. The next challenge made by Ld defence counsel CC No. 141/15, CBI Vs. H. S. Bhati Page No. 48/90 to the prosecution case is on the ground that the sanction U/s 19 of the PC Act Ex. PW1/A granted for prosecution of the accused in this case is not a valid sanction and even no cognizance of the alleged offences could have been taken by the court on the basis of such sanction as the same is expressly barred by Section 19 of the PC Act and even if such a cognizance has already been taken, the entire proceedings and trial conducted subsequent thereto stand vitiated for want of a valid sanction. It has been argued by Ld defence counsel that the evidence led on record clearly demonstrates that the prosecution/CBI did not place all the relevant material for consideration before the sanctioning authority and hence, for want of the same, the sanction Ex. PW1/A was granted by the concerned authority only in a mechanical manner and without any application of mind. It is also argued that since the issue of sanction is a legal issue, this issue can be raised even at the final stage of the trial. Hence, it is the contention of Ld defence counsel that the sanction Ex. PW1/A granted for prosecution of the accused in this case is required to be declared illegal and invalid and the accused should be acquitted on this ground alone. He has also relied upon judgments in cases State of Karnataka Vs. Ameer Jan, AIR 2008 Supreme Court 108 and Ashok Kumar Aggarwal Vs. CBI & Ors., 1 (2016) DLT (Crl.) 539.
53. As on date, the law with regard to sanction is that CC No. 141/15, CBI Vs. H. S. Bhati Page No. 49/90 though the grant of sanction is a sacrosanct act, but the sanction has to be granted by the concerned authority after perusal of the relevant material of the case and the same should not be granted in a mechanical manner. Further, once it is proved that the investigating agency has placed all the relevant material before the sanctioning authority and the authority concerned has accorded sanction on the basis of the said material, then it has been held that the courts should not sit in appeal over the sanction order and should not find faults with the same while acting in a hypertechnical manner. The application of mind on the part of the sanctioning authority is imperative and the order granting sanction must be demonstrative of the fact that there has been such proper application of mind on the part of the competent authority granting the sanction.
54. Section 19 of the PC Act lays down that no court shall take cognizance of the offences punishable U/s 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction of the concerned competent authority. In terms of subsection (3) of the above Section, notwithstanding anything contained in the Code of Criminal Procedure, 1973, no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court in appeal or revision etc on the ground of absence of, or any error, omission or irregularity in the sanction, unless in the opinion of CC No. 141/15, CBI Vs. H. S. Bhati Page No. 50/90 that court a failure of justice has in fact been occasioned thereby. Even the stay of proceedings under the Act by a higher court on the ground of any error, omission or irregularity in the sanction is prohibited, unless that court is satisfied that such error or omission etc has resulted in a failure of justice. In considering such a failure of justice occasioned by such an error or omission etc, the court is required to have regard to the fact whether the objection regarding the validity of the sanction could and should have been raised at any earlier stage of the proceedings, as provided in subsection (4) of the above Section. Further, in terms of the Explanation (a) attached to Section 19 of the Act, the error includes the competency of the authority concerned to grant the sanction.
55. The relevant witness of prosecution on the aspect of sanction is PW1 Sh. Huzar Lollen who was acting as a Member (Administration) of DJB at the relevant time and he has proved his order dated 26.09.2012 on record, vide which he had granted the sanction for prosecution of the accused in this case. He has also stated specifically that the accused was working as a JE (Civil) in DJB at that time and he was the competent authority to remove the accused from services at the said time. As far as his competence to accord the said sanction is concerned, Ld defence counsel has not challenged the same. However, it is his contention that the entire relevant material of this case was not placed before this witness to CC No. 141/15, CBI Vs. H. S. Bhati Page No. 51/90 enable him to grant a valid sanction for prosecution of the accused in this case.
56. On this aspect, it is observed that during his cross examination, PW1 has not been able to recollect as to whether he had gone through the relevant tender file or not while according the above sanction. He has also stated it to be correct that his sanction order Ex. PW1/A does not specifically mention the documents which he had gone through before granting the said sanction. He also does not know as to whether the contractor, i.e. the complainant of this case, had accepted the bill or not by that time. He has further stated it to be correct that a draft proforma of sanction was received by him alongwith the sanction file from the office of Vigilance Branch of the DJB. Hence, simply because he has stated in his examination in chief that before according the above sanction, he had perused the documents and was satisfied and further that during his cross examination he also denied a suggestion that he had granted the sanction in mechanical manner, it cannot be said to have been proved on record that the sanction Ex. PW1/A was granted by him after perusal of all the relevant material nor any such presumption or inference can be drawn therefrom. Rather, the depositions made by him in his cross examination, as specifically discussed above, go to show that all the relevant material of this case was not produced or placed before him for his perusal. In cases of CC No. 141/15, CBI Vs. H. S. Bhati Page No. 52/90 Ameer Jan (Supra) and State of T.N. Vs. M. M. Rajendran (1998) 9 SCC 268, the Hon'ble Supreme Court had termed such sanction orders to be invalid and vitiated, which were passed by the concerned competent authorities without having gone through the entire material of the case and without any proper applications of mind. Some of the relevant observations made by the Hon'ble Supreme Court in case of Ameer Jan, Supra are being reproduced here in below: "7. We agree that an order of sanction should not be construed in a pedantic manner. But, it is also well settled that the purpose for which an order of sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning authority is the best person to judge as to whether the public servant concerned should receive the protection under the Act by refusing to accord sanction for his prosecution or not.
8. For the aforementioned purpose, indisputably, application of mind on the part of the sanctioning authority is imperative. The order granting sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority. We have noticed hereinbefore that the sanctioning authority had purported to pass the order of sanction solely on the basis of the report made by the Inspector General of Police, Karnataka Lokayuktha. Even the said report has not been brought on record. Thus, whether in the said report, either in the body thereof or by annexing therewith the relevant documents, IG Police Karnataka Lokayuktha had placed on record the materials collected on investigation of the matter which would prima facie establish existence of evidence in regard to the commission of the offence by the public servant concerned is not evident. Ordinarily, before passing an order of sanction, the entire records containing the materials collected against the CC No. 141/15, CBI Vs. H. S. Bhati Page No. 53/90 accused should be placed before the sanctioning authority. In the event, the order of sanction does not indicate application of mind as to the materials placed before the said authority before the order of sanction was passed, the same may be produced before the court to show that such materials had in fact been produced."
57. The observations made by the Hon'ble Supreme Court in the case of M. M. Rajendran, Supra are as under:
"The High Court, has come to the finding that all the relevant materials including the statements recorded by the Investigating Officer had not been placed for consideration by the City Commissioner of Police, Madras because only a report of the Vigilance Department was placed before him. The High Court has also come to the finding that although the Personal Assistant to the City Commissioner of Police, Madras has deposed in the case to substantiate that proper sanction was accorded by the City Commissioner of Police, the witness has also stated that the report even though a detailed one was placed before the Commissioner by him and on consideration of which the Commissioner of Police had accorded the sanction, it appears to us that from such depositions, it cannot be held conclusively that all the relevant materials including the statements recorded by the Investigating Officer had been placed before the Commissioner of Police. 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 application of mind to the relevant materials on records. Therefore, it cannot be held that the view taken by the High Court that there was no proper sanction in the instant case is without any basis."
58. Even in a recent decision in the case of Ashok Aggarwal (Supra), the Hon'ble Delhi High Court has CC No. 141/15, CBI Vs. H. S. Bhati Page No. 54/90 considered all the relevant law on the point of sanction and has culled out certain legal propositions, which, interalia, contain that for a valid sanction, the sanctioning authority must be apprised of all the relevant material and facts in relation to the commission of the alleged offences and should apply its mind to such material, which is a sine qua non of a valid sanction.
59. In terms of the law laid down by the Hon'ble Supreme Court in case of State of Maharashtra Vs. Mahesh G. Jain (2013) 8 SCC 119, the factum of grant of a valid sanction for prosecution of the accused can be proved either from the sanction order itself or from the other evidence led on record. However, as already stated above, the evidence led on record goes to show that all the relevant material of this case was not placed before and considered by the sanctioning authority before granting the above sanction Ex. PW1/A for prosecution of the accused. Further, a bare perusal of the sanction order Ex. PW1/A itself shows that all the relevant material of the case was not produced before and considered by PW1 while passing the above order as though the facts pertaining to the demand and acceptance of the above bribe amounts and the commission of the alleged offences by the accused are found to be specifically incorporated in the said order, but the sanction order is entirely silent with regard to the nature or details of the documents which were placed before CC No. 141/15, CBI Vs. H. S. Bhati Page No. 55/90 the sanctioning authority, i.e. PW1, for perusal as it only states vaguely that he examined carefully the material placed before him with regard to the said allegations and circumstances of the case and there is nothing reflected in the said order as to what this material consisted of. Hence, in view of the above factual and legal discussion, it is held that the order Ex. PW1/A granting sanction for prosecution of the accused is illegal and invalid and the entire proceedings and trial conducted against the accused stands vitiated and he can be acquitted on this ground alone. Though, I am conscious of the observations made by the Hon'ble Supreme Court in case Nanjappa Vs State of Karnataka, AIR 2015 SC 3060 that if the trial court comes to a conclusion that the sanction in any such case is invalid then the findings on merits should be avoided, but with highest regards for their Lordships of the Hon'ble Supreme Court, the findings on merits become unavoidable in the peculiar facts, circumstances and stage in the present case as the issue of sanction has not been raised independently during or at the end of the trial and it has been raised as an additional issue when the evidence and case of the prosecution was challenged and was being appreciated during the course of final arguments. Moreover, no purpose can be served in only discharging the accused at this belated stage on the ground of invalidity of sanction and then forcing the prosecution to obtain a fresh sanction and file it in the court when the evidence and case of the prosecution has been found to be unworthy of CC No. 141/15, CBI Vs. H. S. Bhati Page No. 56/90 acceptance on merits.
EVIDENCE REGARDING DEMAND AND ACCEPTANCE OF BRIBE AMOUNT AND RECOVERY THEREOF
60. Earlier, the law relating to the offence of bribery and corruption amongst public servants was contained in Sections 161 to 165A of the Indian Penal Code (IPC), 1860 and the PC Act, 1947, but since the enactment of the PC Act, 1988, which contains more stringent provisions for these offences and has also widened the scope of law on the subject, the above Sections of IPC stand deleted and the old PC Act repealed. Before entering upon any discussion and appreciation of evidence led by prosecution with regard to the demand, acceptance and recovery of the bribe amount in the present case, it is necessary to refer here to some of the relevant judgments on the subject, which specifically deal with the above aspects and lay down the essential ingredients of the offences U/s 7 and Section 13(1)(d) of the PC Act.
61. It has been held by the Hon'ble Supreme Court in case of State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede (2009) 15 SCC 200. being relied upon by Ld defence counsel: "16. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of CC No. 141/15, CBI Vs. H. S. Bhati Page No. 57/90 the Act. For arriving at the conclusion as to whether all the ingredients of an offence viz. demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirely. For the said purpose, indisputably, the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused visavis the standard of burden of proof on the prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the prosecutions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonably doubt".
"21. Even in a case where the burden is on the accused, it is well known, the prosecution must prove the foundational facts. (See Noor Aga v. State of Punjab and Jayendra Vishnu Thakur vs. State of Maharshtra".
62. It has also been held by the Hon'ble Supreme Court in the case of Banarsi Dass Vs. State of Haryana (2010) 4 SCC 450 being relied upon by Ld defence counsel: "11. To constitute an offence under Section 161 of the IPC, it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused. Similarly, in terms of Section 5 (1) (d) of the Act, the demand and acceptance of the money for doing a favour in discharge of its official duties is sine qua non to the conviction of the accused. In the case of M.K.Harshan Vs. State of Kerala (1996 (11) SCC 720) ; (AIR 1995 SC 2178 ; 1995 AIR SCW 3385), this Court in somewhat similar circumstances, where the tainted CC No. 141/15, CBI Vs. H. S. Bhati Page No. 58/90 money was kept in the drawer of the accused who denied the same and said that it was put in the drawer without his knowledge, held as under :
" .............. It is in this context the courts have cautioned that as a rule of prudence, some corroboration is necessary. In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification. Unfortunately, on this aspect in the present case we have no other evidence except that of PW1. Since PW1's evidence suffers from infirmities, we sought to find some corroboration but in vain. There is no other witness or any other circumstance which supports the evidence of PW1 that this tainted money as a bribe was put in the drawer, as directed by the accused. Unless we are satisfied on this aspect, it is difficult to hold that the accused tacitly accepted the illegal gratification or obtained the same within the meaning of Section 5 (1) (d) of the Act, particularly when the version of the accused appears to be probable".
12. Reliance on behalf of appellant was placed upon the judgment of this Court in the case of C.M.Girish Babu (AIR 2009 SC 2022 ; 2009 AIR SCW 1693 )(Supra), where in the facts of the case the Court took the view that mere recovery of money from the accused by itself is not enough in absence of substantive evidence for demand and acceptance. The Court held that there was no voluntary acceptance of the money knowing it to be a bribe and giving advantage to the accused of the evidence on record, the Court in paras 18 and 20 of the judgment held as under : "18. In Suraj Mal Vs. State (Delhi Admn.) (1979 (4) SCC 725); (AIR 1979 SC 1408), this Court took the view that (at SCC p. 727, CC No. 141/15, CBI Vs. H. S. Bhati Page No. 59/90 para2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.
20. A threeJudge Bench in M.Narsinga Rao Vs. State of A.P. (2001 (1) SCC 691 ; SCC (Crl.) 258); (AIR 2001 SC 318 ; 2000 AIR SCW 4427), while dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification, observed : (SCC p. 700, para24) :
"24. .... we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length. (Vide Madhukar Bhaskarrao Joshi Vs. State of Maharashtra (2000 (8) SCC 571); (AIR 2001 SC 147 : 2000 AIR SCW 4018). The following statement made by us in the said decision would be the answer to the aforesaid contention raised by the learned counsel : (Madhukar case, SCC p. 577, para12).
'12. The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. So the word "gratification" need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like "gratification or any valuable thing". If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word "gratification" must be treated in the context to mean any payment for giving satisfaction to the public servant who received it."
CC No. 141/15, CBI Vs. H. S. Bhati Page No. 60/9013. Infact, the above principle is no way derivative but is a reiteration of the principle enunciated by this Court in Suraj Mal case (AIR 1979 SC 1408) (supra), where the Court had held that mere recovery by itself cannot prove the charge of prosecution against the accused in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money. Reference can also be made to the judgment of this Court in Sita Ram Vs. State of Rajasthan (1975 (2) SCC 227) ; (AIR 1975 SC 1432), where similar view was taken.
14. The case of C.M. Girish Babu (AIR 2009 SC 2022 ; 2009 AIR SCW 1693 ) (supra) was registered under the Prevention of Corruption Act, 1988, Section 7 of which is in pari materia with Section 5 of the Prevention of Corruption Act, 1947. Section 20 of the 1988 Act raises a rebuttable presumption where the public servant accepts gratification other than legal remuneration, which presumption is absent in the 1947 Act. Despite this, the Court followed the principle that mere recovery of tainted money divorced from the circumstances under which it is paid would not be sufficient to convict the accused despite presumption and, in fact, acquitted the accused in that case."
63. It was also held by the Hon'ble High Court of Delhi in case titled as, "P.K. Gupta Vs. CBI, reported as 2011 (4) JCC 2352, as under:
"14. In A. Subair v. State of Kerala, (2009) 6 SCC 587, the Supreme Court held as under:
'The legal position is no more res integra that primary requisite of an offence under Section 13(1) (d) of the Act is proof of a demand or request of a valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant, for a valuable thing or pecuniary advantage, the offence under Section 13(1) (d) cannot be held to the established.'
15. It is settled law that mere recovery of bribe money, divorced from the circumstances under which it is paid, is not sufficient to convict the accused when the substantial CC No. 141/15, CBI Vs. H. S. Bhati Page No. 61/90 evidence of demand and acceptance in the case is not reliable.
(See M. Narsinga Rao v. State of A.P. 2001 (1) JCC 118 :
2001(1) SCC 691. In view of above propositions of law, it is recapitulated that the statutory presumption under Section 20 of the Act is available for the offence punishable under Section 7 or Section 11 and not for Clause (d) of Section 13(1). For offence under Section 13(1) (d), it will be required to be proved that some initiative was taken by a person who receives and in that context demand or request from him will be a prerequisite."
64. Again in case of B. Jayaraj Vs. State of A.P. (2014) 13 SCC 55 also being relied upon by Ld defence counsel, the Hon'ble High Court of Delhi has made the following observations:
"7. In so far as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma Vs. State of A.P. (2010) 15 SCC 1 and C.M. Girish Babu Vs. C.B.A. (2009) 3 SCC 779.
8. ...............
9. In so far as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Section 13(1) (d) (i) (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent."
65. It is clear from the above that demand of bribe CC No. 141/15, CBI Vs. H. S. Bhati Page No. 62/90 money and voluntary acceptance thereof by a public servant and recovery of the bribe amount from him are all the necessary ingredients of the above said Sections 7 and 13(1)
(d) of the PC Act for proving of the charges framed against an accused under the said Sections. Further, the said demand or acceptance has to be connected with the official duties or omissions or abuse of the position of a public servant. Again, in the absence of substantive evidence of demand or acceptance of the bribe money, even the mere recovery of the currency notes from an accused by itself is not enough to prove the above said offences and the presumption contained U/s 20 of the Act also comes into operation, for the purposes of Section 7, 11 or clauses (a) or (b) of subsection (1) of Section 13 of the Act, only if it is proved by the prosecution that the accused accepted the said amount knowing it to be an illegal gratification or bribe.
66. Firstly, coming to the initial demand of bribe amount by the accused from the complainant, it is the case of prosecution that the accused had demanded a bribe of Rs. 90,000/ for passing and processing of the pending bill of Rs. 2,10,000/ of the complainant. These allegations are found to be specifically incorporated in the complaint Ex. PW5/A (D1) made by the complainant to the CBI. Further, as per the case of prosecution, as set out in the chargesheet as well as in the verification memo Ex. PW4/A (D2), this demand of bribe CC No. 141/15, CBI Vs. H. S. Bhati Page No. 63/90 amount of Rs. 90,000/ was also made by the accused from the complainant during the course of telephonic conversation between them on the day of trap and the accused ultimately agreed to accept an amount of Rs. 50,000/ as part payment, out of the demanded bribe amount of Rs. 90,000/.
67. However, when the evidence led on record by the prosecution is analyzed and appreciated in this regard, it is found that apart from the verification officer, i.e. PW10 SI A.K. Maurya, neither the complainant himself nor the independent witness/PW4 Sh. Sharad Kumar participating in the above verification proceedings has deposed on the above lines of the prosecution story. PW4 has only stated on record that as per the instructions of his senior officer, he met PW10 in the CBI office and PW10 then introduced him with the complainant, who gave a complaint regarding the demand of bribe by the accused from him. He has also stated that he was introduced by PW10 with the complainant and the complaint was also read over to him and he was told by PW10 that in order to verify the complaint, the complainant would make a telephonic call to the person who had demanded the bribe and he also states about making of the said call by the complainant to the accused. Though, it is case of the prosecution that the conversation held between the complainant and accused during the said call was also heard by this witness, by putting the mobile phone of the complainant on loudspeaker mode, CC No. 141/15, CBI Vs. H. S. Bhati Page No. 64/90 and it is during this conversation that the accused had again demanded the above bribe amount of Rs. 90,000/ from the complainant, but as per this witness the above telephone conversation was not clearly audible. Further, though this witness also states that said conversation was also recorded in a DVR and during the above telephonic conversation the complainant talked with the accused about his pending bill and also for making payment of money for clearance of the said bill, but his these depositions appear to be a hearsay only, in view of his specific depositions earlier made on record to the effect that the said conversation was not clearly audible. Further, in view of his silence about specific demand of Rs. 90,000/ as bribe allegedly made by the accused during the said conversation, his above depositions made with regard to the above conversation being in respect of some pending bill and also for payment of some money cannot be given much weight.
68. Again, as per the case of prosecution and the verification memo Ex. PW4/A (D2), though it was clear from the conversation held between the accused and the complainant during the above first call that the accused was ready to accept the bribe and he also repeatedly asked the complainant to come to his office and to meet him in connection with the same, as has also been deposed by PW10, but since the motive for payment of the above bribe CC No. 141/15, CBI Vs. H. S. Bhati Page No. 65/90 was not clear, the complainant was again made to call the accused and during this conversation not only the motive for payment of the above bribe amount became clear, i.e. it was for clearance of the pending bill of complainant, but the accused also agreed to accept an amount of Rs. 50,000/ from the complainant as part payment of bribe amount, out of the demanded bribe amount of Rs. 90,000/. However, even on this aspect the depositions made by the independent witness/PW4 Sh. Sharad Kumar nowhere support the case of prosecution as in his statement made before this court, he deposes only about making of one call by the complainant to the accused and he is totally silent regarding any such other or second call made in this regard.
69. As far as the depositions made by the complainant himself on these aspects are concerned, it is observed that even the complainant himself has not supported the case of the prosecution in this regard as though he states about the demand of bribe of Rs. 90,000/ from him by the accused for clearance of his pending bill of Rs. 2,10,000/, which led to the making of complaint Ex. PW5/A (D1) by him to the CBI, but he is totally silent during his depositions made in this court regarding the contents of any such telephonic conversations held between him and the accused at the relevant time. He only states on record that after he had explained the facts about his complaint to Sh. A. K. Maurya (PW10) and after CC No. 141/15, CBI Vs. H. S. Bhati Page No. 66/90 PW10 had called the independent witness/PW4, he was asked to make a phone call to the accused and he made the said call and this conversation was recorded and then he deposes about transfer of contents of the said conversation into a CD and preparation of the Verification Memo Ex. PW4/A (D2) etc. However, nowhere he states specifically on record as to what talks were held between him and the accused during the above said telephonic call and to be more specific as to what amount of bribe was demanded by the accused from him for passing of his pending bill, if it was so demanded. Again, likewise PW4, the complainant is also silent about the making of a second call by him to the accused, at the instance of PW10, during the course of which it was alleged by the prosecution that the motive of demand of bribe by the accused became clear and the accused further agreed to accept the bribe amount of Rs. 50,000/ as part payment. The absence of any such depositions made by these two material witnesses of the prosecution story on the crucial aspect of initial demand of bribe made by the accused from the complainant during the above first telephonic conversation and further their silence regarding the making of the alleged second call to the accused give a serious jolt and blow to the story of the prosecution and shatter the very basis thereof. For these reasons, no weightage can also be given to such depositions made by PW10 on record.
CC No. 141/15, CBI Vs. H. S. Bhati Page No. 67/9070. Now coming to the demand, if any, made by the accused from the complainant during the course of trap proceedings, the acceptance of the part bribe amount and recovery thereof, it is observed on appreciation of the evidence led on record by the prosecution that even on these aspects the evidence is found to be lacking the necessary ingredients required for proving commission of the alleged offences and holding the accused guilty therefor. Since it is the case of prosecution that apart from the complainant, only the independent witness/PW4 Sh. Sharad Kumar, who was deputed to act as a shadow witness, had entered the room of the accused, the depositions of only these two witnesses were relevant and could have established the alleged demand of bribe on the part of the accused, as made during the course of trap proceedings and acceptance of the above said amount of Rs. 50,000/ by the accused as such.
71. As per PW4 Sh. Sharad Kumar, he entered the room of the accused, along with the complainant, and the complainant introduced him to the accused as his employee. He further states that the accused offered them tea and then went to the gate of the room and called some tea vendor, but he asked the accused to bring some water for him, which the accused had then arranged. He further states on record that thereafter, the complainant talked with the accused about his not reaching earlier and since he was sitting far away, he CC No. 141/15, CBI Vs. H. S. Bhati Page No. 68/90 could not clearly hear the conversation between the accused and the complainant. In reply to a court query, he has also stated on record that he was sitting at a distance of about 810 feet from the complainant and the accused, who both were sitting across a table. He has further stated on record that then the accused and the complainant talked about some bill and the complainant took out Rs. 50,000/ and put the same on the table and in the meantime, he (PW4) asked the accused about washroom and the accused indicated him the direction for washroom. He has also stated on record that then he got up from his seat and before he could go out, he had seen the accused picking up the amount of Rs. 50,000/ and keeping the same in his almirah or his drawer and then he claims to have left the said room and given the prefixed signal by way of a missed call on the mobile phone of the TLO/PW11. On the aspect of recovery, he further states on record that he remained outside the room of accused so that the CBI team could enter in the said room and when the CBI team reached inside the office, he took them in the above room of the accused and the complainant indicated that the accused had kept the bribe money in the almirah and the CBI officials then caught the accused from his wrist. He also deposed about recovery of the tainted bribe money from the almirah of the accused and tallying of the numbers of the currency notes and taking of hand wash of the accused, along with the hand wash of one bill Ex. PW4/D (D14), which was CC No. 141/15, CBI Vs. H. S. Bhati Page No. 69/90 recovered along with the tainted currency notes from the said almirah, and has further identified his signatures on the recovery memo Ex. PW4/E (D5) prepared in this regard.
72. On these aspects, the complainant himself states on record that when he, along with PW4, went to the office of the accused, the accused was found sitting there and the moment they entered in his office, the accused asked from him "le aaye". He has also stated that he responded positively to the same and asked the complainant to count the money and then he handed over the money to the accused and the accused kept the money in an almirah lying on his right side and after this PW4 Sh. Sharad Kumar went out of the said room to give a missed call to the CBI team. He further states on record about getting engaged in conversation with the accused and in the meantime, the entry of the CBI officials in the said room and apprehension of the accused by them. He also deposes about the recovery of bribe money from the said almirah by the CBI on his pointing out and taking of hand washes of the accused as well as wash of the above bill etc. and further about tallying of the serial numbers of the currency notes. He has also identified his signatures on the recovery memo Ex. PW4/E (D5) prepared in this regard.
73. The depositions made by these two material witnesses of the prosecution on the above aspects of demand, CC No. 141/15, CBI Vs. H. S. Bhati Page No. 70/90 acceptance and recovery of the bribe amount during the trap proceedings are not only contrary to each other, but the same are also against the case of the prosecution as set out in the recovery memo Ex. PW4/E (D5), the chargesheet Ex. PW15/C as well as in the depositions made by the other two official witnesses of CBI, i.e. PW10 and PW11/TLO. PW4 has clearly stated on record that since he was sitting at a distance from the accused and the complainant at the relevant time, when the bribe amount had passed from the complainant to the accused, he was not able to clearly hear the conversation between them. Again, as per the prosecution case, as set out in the recovery memo Ex. PW4/E (D5) and also the depositions made by PW10 and PW11 in this court, they were told by the complainant subsequently, i.e. after apprehension of the accused, that the tainted bribe amount was accepted by the accused form him with his right hand and the accused had kept it in the said almirah only after counting the currency notes with both his hands. It is also found specifically recorded in the recovery memo Ex. PW4/E (D5) that the currency notes were counted by the accused with both his hands. This was also the reason behind taking the washes of both the hands of the accused by the CBI officials. However, contrary to the same, PW4 has stated on record that the above bribe amount of Rs. 50,000/ was first put by the complainant on the table of the accused and it is only thereafter that the same was kept by the accused in an CC No. 141/15, CBI Vs. H. S. Bhati Page No. 71/90 almirah or in a drawer. He nowhere deposes that the tainted currency notes were directly accepted by the accused from the complainant with his hands or also that the accused counted the same before keeping the same in his almirah or drawer. Similarly, the complainant himself is also silent in his examination regarding the actual counting of the notes by the accused, though he has stated that he asked the accused to count the money.
74. Further, while deposing in this court, the complainant has also stated on record that when they reached in room of the accused, the accused asked from him "le aaye"
and he responded positively to the same and further asked the accused to count the money. However, his these depositions are not corroborated by any other oral or documentary evidence on record and the same are also found to have been made against his previous statement Ex. PW5/DX made before the IO during investigation of this case, with which he was duly confronted by Ld defence counsel during his cross examination. Apart from these depositions, nothing else has been deposed by him to constitute the alleged demand of any bribe amount by the accused from him and in view of the above confrontation between his depositions made in this court and his previous statement Ex. PW5/DX, even the above words "le aaye" allegedly uttered by the accused cannot be said to establish or constitute a demand of bribe of any CC No. 141/15, CBI Vs. H. S. Bhati Page No. 72/90 amount on his part from the complainant. Again, depositions of these two witnesses, as discussed above, also make the acceptance of the alleged bribe amount by the accused from the complainant to be doubtful as their depositions on these aspects are found to be suffering from various material contradictions and inconsistencies. Even PW4 is found to have been rightly confronted by Ld defence counsel with his previous statement Ex. PW4/DA made during the investigation on all the above aspects pertaining to the manner in which the above bribe amount was paid by the complainant to the accused, as deposed by him in this court. Further, neither PW4 nor the complainant was crossexamined by the Ld PP for CBI on these material aspects of the prosecution case on which they were found to be making these material and contrary depositions or deviating from the prosecution case.
75. Coming to recovery part of the above bribe amount of Rs. 50,000/, it is admitted case of the prosecution that it was not recovered from the actual physical possession of the accused and it was recovered from the almirah lying in room of the accused. As already discussed above, PW4 was even not sure whether the bribe amount was kept and recovered from the almirah or drawer of the accused. Again, according to him, as well as the complainant, the recovery of the bribe money was effected from the said almirah on the pointing out of the complainant, whereas according to PW8, CC No. 141/15, CBI Vs. H. S. Bhati Page No. 73/90 PW10 and the TLO/PW11, as well as the recovery memo Ex. PW4/E, it is PW4 Sh. Sharad Kumar who had got the above bribe amount recovered from the said almirah of the accused. Further, PW4 or PW5/complainant did not state on record as to by which hand the above bribe amount was accepted by the accused or placed in the above almirah or drawer. However, PW4 went to state on record that the wash of only one hand of the accused was taken by the CBI officials and he could not even remember if it was taken of the right hand or of the left hand of accused. Again, though, he has also stated on record that the said wash was taken in a glass bottle, but he was not able to remember if his signatures were taken on the said bottle or not and further if any other person had signed on the said bottle or not. He is also silent with regard to the taking of hand wash of the above bill Ex. PW4/D (D14) on which the above currency notes were allegedly lying in the almirah at the time of recovery thereof. Though, according to PW8, the hand washes of both the hands of accused were taken, but strangely enough, he has stated on record that the colour of the said washes had turned to blue.
76. Further, according to PW5/complainant, the recovery memo Ex. PW4/E (D5) was prepared at the spot of trap itself, though he claims to have signed it in the CBI office subsequently. However, the above two independent witnesses were not sure during the course of their testimonies CC No. 141/15, CBI Vs. H. S. Bhati Page No. 74/90 as to which documents of the prosecution were prepared at what place, the nature or order of preparation of the said documents and they had simply identified their signatures appearing on these documents. There are also contradictions in the statements of the complainant and PW4 as to whether or not the accused had remained present inside the said room throughout, after their visit to the accused and before he was apprehended by the CBI officials. The evidence led on record is also found to be contradictory on aspect as to where and by whom the tallying of the serial numbers of the above currency notes was done. Hence, even the evidence brought before this court on the aspect of recovery of the bribe amount from possession of the accused suffers from various material contradictions and inconsistencies and is not found worthy of acceptance.
OTHER DISCREPANCIES OF THE PROSECUTION CASE
77. Besides the above material contradictions, inconsistencies and discrepancies appearing in the evidence led on record by the prosecution on the aspects of demand, acceptance and recovery of the bribe amount, there are also various other lacunae and discrepancies in the story and evidence of prosecution which make this court to doubt the veracity of the same. Both the above independent witnesses, i.e. PW4 and PW8, were from the same department and office CC No. 141/15, CBI Vs. H. S. Bhati Page No. 75/90 of the Indian Railways and they both have specifically deposed about attending of the proceedings of this case by each other, as per the directions of their senior officers. As per the prosecution case, only PW4 Sh. Sharad Kumar had participated in the verification proceedings conducted by PW10 and these proceedings are alleged to have been conducted in the prelunch session and according to the verification memo Ex. PW4/A (D2), these proceedings started at 11:00 AM and concluded at about 2:00 PM. However, strangely enough, PW4 in his cross examination has stated that he was called for the purpose of verification in this case only at around 2 O'Clock. Again, according to the case of prosecution, PW8 was made to participate only in the proceedings conducted subsequent to the verification of the above complaint, i.e. in the actual trap proceedings, and according to the TLO/PW11 he had seen and met this witness at around 2:30 PM only, when they all had assembled for the purposes of raid, but as per PW8 he had reached in the CBI office at 10:00 AM itself, though he claims that he was made to wait in the waiting room and was called inside only at around 2:00 PM. If the depositions made by PW4 to the effect that he attended the CBI office only at around 2:00 PM are believed by this court, the entire case and story of the prosecution regarding his participation in the verification proceedings and the making of the above telephonic call/calls by the complainant to the accused are made highly doubtful and CC No. 141/15, CBI Vs. H. S. Bhati Page No. 76/90 unbelievable.
78. It has further been pointed out by Ld defence counsel that the verification memo Ex. PW4/A (D2) though bears the signatures of PW4 on its second/last page, but his signatures are not there on the first page of the above material document of prosecution. Again, to the utter shock and disbelief, the signatures of the other independent witness Sh. Prashant Kumar/PW8 are found to be there on the first page of this document, though he had not participated in the verification proceedings conducted by PW10. The veracity and genuineness of the above document is also made doubtful by the fact that even the signatures of the complainant are not found to be there on the first page of the said document. The explanation being furnished by PW10 in his statement made in this court that the same happened only due to some mistake is not found to be acceptable by the court.
79. Further, there are also found to be some other contradictions in the evidence led on record with regard to the timings of leaving of the CBI office by the trap team and that of reaching at the spot. PW4 has stated that they left the CBI office at around 4:00/5:00 PM and reached at the spot at around 6:00/7:00 PM, whereas PW10 has stated the time of leaving of the CBI office to be 3:00/3:30 PM and that of reaching at the spot to be 4:00/4:30 PM and he further stated CC No. 141/15, CBI Vs. H. S. Bhati Page No. 77/90 specifically that they came back in their office by 6:30 PM. He was also duly confronted by Ld defence counsel with his previous depositions made in his statement Ex. PW10/DA recorded during the investigation in which the time of leaving of their office by them was stated as 4:30 PM and the time of receiving of signal by way of a missed call from the shadow witness was recorded as 4:47 PM. Though, he has explained that the time of leaving of the office was wrongly recorded as 4:30 PM due to some typographical mistake, but this explanation appears to be an afterthought only and also an attempt on his part to reconcile his testimony with the documentary evidence brought on record.
80. Again, there is one other material aspect also on which the prosecution evidence has been found to be lacking reliability and it is as to how the above part bribe amount of Rs. 50,000/ was arranged by the complainant. PW4, PW10 and PW11/TLO have all not been able to tell anything as to how and from where this amount of Rs. 50,000/ came or if the complainant himself was carrying it at the relevant time or not on the day of the above trap as they simply talk about production of the said amount by the complainant and the subsequent proceedings conducted with regard to the same. Even the complainant himself has not deposed anything on this aspect during his examination in chief and it is only in his cross examination that he had made some depositions in this CC No. 141/15, CBI Vs. H. S. Bhati Page No. 78/90 regard. According to him, he was not carrying the above said amount with him when he visited the CBI office on that day and he had called his son from the CBI office and then the money was brought to the CBI office by his accountant. He has also deposed that the money was brought to the CBI office within about one hour of making of the above call, but the CBI officials did not take signatures of his accountant on any document nor recorded his statement.
81. Further, though as per the complainant his accountant did not come upstairs to hand over the money to him and he himself had gone down and brought the money from the accountant, but his above depositions about procuring of the money through his son or accountant do not get corroboration from any of the two independent witnesses or the two officials of CBI as most of them have specifically expressed their ignorance about the mode or source through which the above bribe amount was arranged. Again, though the complainant has also stated that the above call to his son was made from his mobile phone and he even tells the two mobile numbers of his son and further denies a suggestion that he did not make any such calls to his son on that day, but a severe jolt is again given to the above claim of the complainant by the fact that his above claim is not corroborated by the call detail records of the mobile phones of the complainant and his son, which have been placed on CC No. 141/15, CBI Vs. H. S. Bhati Page No. 79/90 record by the prosecution itself and can certainly be looked into and considered against them, irrespective of their admissibility in evidence against the accused for want of a certificate U/s 65B of the Evidence Act as the same are documents of the prosecution itself.
82. Again, as per the depositions made by PW4, when they had met the accused in his office at the time of trap, he as well as the complainant had both shaken hands with the accused and he has also stated that he and the accused had both shaken their right hands, though he was not able to recollect as to with which hand the accused and the complainant had shaken hands with each other. Strangely enough, there is no mention of this vital fact in any of the documents of the prosecution and if the depositions of this witness made on this aspect are believed, then the possibility of transfer of the phenolphthalein powder at the hands of the accused due to such hand shake was always there. There are also contradictions in the evidence led on record as to whether, during the process of demonstration of the application and reaction of phenolphthalein powder and sodium carbonate, only the recovery witness Sh. Prashant Kumar/PW8 was asked to touch the currency notes treated with the said powder as according to PW4 even the hand washes of the complainant and CBI officials, besides PW4, were taken during the above demonstration and the colour of CC No. 141/15, CBI Vs. H. S. Bhati Page No. 80/90 the water in the said process had turned into pink.
83. Further, according to depositions of PW4 made in the course of his crossexamination, the currency notes after being treated with chemical powder were handed over back to the complainant wrapped in a paper and PW8 was not able to remember if these notes were so wrapped in any newspaper, paper or polythene etc before the same were given back to the complainant. If the depositions made by PW4 on this aspect are believed, there was no question of presence of any chemical on the above said bill Ex. PW4/D (D14), on which the currency notes were allegedly kept by the accused in his almirah and the wash of which is also alleged to have turned to pink. Again, the depositions made by PW4 and the complainant suggest as if the prefixed signal was only by way of a missed call to be given by PW4 on the mobile phone of the TLO/PW11, but the case of prosecution from the very beginning was that the signal fixed was either the rubbing of their faces with both the hands by either of these witnesses or the giving of a missed call by either of them. Further, as per PW4 and the complainant himself, they both had gone to the spot from the CBI office in private car of the complainant and the other independent witness/PW8 and the CBI officials were in the official vehicle/vehicles, but contrary to the above, the TLO/PW11 has stated on record that he and Inspector M. K. Upadhyaya of CBI were also in car of the complainant, CC No. 141/15, CBI Vs. H. S. Bhati Page No. 81/90 alongwith the complainant and PW4, and rest of the CBI officials and the other public witness were in the official vehicles. It is also not clear from the evidence led on record as to how many official vehicles were used in the above raid. Further, as per the depositions made by PW4, he had already been a witness in 67 other cases of CBI, prior to the present case, and even PW8 has stated during his cross examination that apart from his four visits made in the CBI office in connection with this case, he had also visited the CBI office on two other occasions in connection with the other cases subsequently. Being so, their testimonies were required to be appreciated with more caution and circumspection and required more degree of reliability for being acted upon, which these have failed to provide.
PRESUMPTION UNDER SECTION 20 OF THE PC ACT
84. It has also been argued by Ld. PP for CBI that despite certain lacunae and discrepancies appearing in evidence of the prosecution, the accused can still be held guilty and convicted for the charged offences in view of the presumption contained under Section 20 of the above said Act as in view of the said presumption, it can be said that the above said recovered bribe amount was accepted by the accused as a gratification or as a motive or reward for showing favours to the complainant in discharge of his official duties.
CC No. 141/15, CBI Vs. H. S. Bhati Page No. 82/9085. However, as has been held and already discussed in some of the above legal pronouncements, this presumption is not available for the offence punishable U/s 13(1)(d) of the PC Act, though it is available for the offence provided U/s 7 of the said Act and for certain other offences as well. But the above contention of Ld PP for CBI is not tenable as it is clear from the language of the above Section itself, as well as the propositions laid down in some of the above cases, especially the cases of C.M. Sharma Vs. State of A.P. (2010) 15 SCC 1 and C.M. Girish Babu Vs. C.B.I. (2009) 3 SCC 779, that the above presumption comes into operation only when it is proved that the accused has accepted, obtained or has agreed to accept or obtain etc., for himself or for any other person, any gratification or valuable thing etc. Further, proof of acceptance of illegal gratification can follow only if there is proof of demand. Since in the instant case, there is no such consistent or corroborative evidence on record regarding the demand or acceptance etc. of the above bribe amount by the accused from the complainant or any agreement to accept the same, in the considered opinion of this court, the above presumption does not come into operation against the accused. Moreover, as has also been discussed earlier, even the recovery part of the above bribe amount has not been proved on record by any satisfactory evidence.
CC No. 141/15, CBI Vs. H. S. Bhati Page No. 83/90MISSING LINK EVIDENCE
86. Apart from the above, the entire link evidence in the chain of the prosecution case is found to be missing and this discrepancy of the prosecution case further makes the other evidence led on record to be unworthy of acceptance. No document, record or register of the Malkhana of CBI has been brought or proved on record to show as to what articles were issued from the Malkhana to the TLO/PW11 prior to the trap team members left for trap of the accused. There is also no evidence on record as to what quantities of phenolphthalein powder or sodium carbonate were issued to or what residues thereof were returned back in the Malkhana by the TLO/PW11. There is even no evidence on record regarding the deposit of the case property of this case, i.e. parcels containing the above hand washes of the accused and the wash of the above bill Ex.PW4/D (D14) and the CDs Mark Q1, Q2 and S1 prepared from the recordings of the above DVR in the Malkhana nor there is any evidence on record as to through which official the above exhibits were got deposited by the IO with the CFSL, New Delhi. Even the name of the concerned official who carried the said exhibits to the CFSL was not cited by the IO in the list of the prosecution witnesses filed on record, what to say of examining him as a witness on record. This also stands true in respect of deposit of the exhibit containing the other CD Mark S1A in Malkhana or with the CC No. 141/15, CBI Vs. H. S. Bhati Page No. 84/90 CFSL and the examination of the relevant official who deposited the said exhibit. Further, even the concerned Malkhana Incharge of the CBI has not been cited or examined as a witness in this case. No documentary evidence has also been led on record to show the alleged handing over of the seal of CBI used by PW10 during the verification proceedings to PW4 or the return thereof by PW4 to the TLO/PW11 during the course of trap proceedings and further, as to what happened with the said seal thereafter.
87. It has been held by the Hon'ble Supreme Court in case titled as, "Ukha Kolhe Vs. State of Maharashtra, reported as AIR 1963 SC 1531", as under:
"8. But there is no evidence on the record about the person in whose custody this phial remained till it was handed over to the SubInspector of Police on April 13, 1961 when demanded. There is also no evidence about the precautions taken to ensure against tampering with the contents of the phial when it was in the Civil Hospital and later in the custody of the police between April 13, 1961 and April 18, 1961. Even the special messenger with whom the phial was sent to the Chemical Examiner was not examined: and Ext. 43 which was the acknowledgment signed by some person purporting to belong to the establishment of the Chemical Examiner does not bear the official designation of that person. The report of the Chemical Examiner mentions that a sealed phial was received from the police officer by letter No. C/010 of 1961 dated April 18, 1961, but there is no evidence that the seal was the one which was affixed by Dr. Rote on the phial. These undoubtedly were defects in the prosecution evidence which appear to have occurred on account of insufficient appreciation of the character of the burden which the prosecution undertakes in proving a case of an offence under S. 66 (1) (b) relying upon the presumption under S. 6 (2)."CC No. 141/15, CBI Vs. H. S. Bhati Page No. 85/90
88. Thus, the absence of the entire link evidence regarding the deposition of the case property in sealed condition at the Malkhana of the CBI and sending of the case property to the CFSL for chemical analysis and the missing link evidence on the above other aspect also make the prosecution case to be doubtful.
BURDEN OF PROOF PLACED UPON THE PROSECUTION AND DEFENCE OF THE ACCUSED
89. It is also a contention of the Ld PP for CBI that the prosecution has duly discharged the burden of proof placed upon it for proving its case against the accused beyond reasonable doubts for commission of the above said offences and this burden stands discharged in view of the consistent and corroborative testimonies of the complainant, the two independent witnesses as well as officials of the CBI, who all have participated in the trap proceedings. Further, it is also his contention that in view of the presumption contained under Section 20 of the PC Act, the burden of proof placed upon the prosecution to prove this case is not as strong as in an ordinary criminal prosecution. However, these contentions of Ld PP for CBI are also misconceived. As already discussed above, the presumption contained under Section 20 of the PC Act comes into operation only after the demand or acceptance etc. of the bribe amount are satisfactorily proved on record and not otherwise. Moreover, the testimonies of the prosecution CC No. 141/15, CBI Vs. H. S. Bhati Page No. 86/90 witnesses on record have already been discussed in detail and are not found to be consistent or corroborative, but rather full of major contradictions, inconsistencies and discrepancies etc. and the same render the said witnesses to be unworthy of acceptance. Further, even in a prosecution under the PC Act, the guilt of the accused is required to be proved beyond reasonable doubts, as is the cardinal principle of criminal jurisprudence, as an accused is considered to be innocent till it is proved to the contrary by a proper proof of demand and acceptance of the illegal gratification, which are the two vital ingredients to secure the conviction of an accused in a case under the PC Act.
90. The accused has nowhere disputed that the above bill of the complainant was not pending before him or that he had not made the requisite entries of the said bill in the measurement book, though the same were yet to be put up by him before his senior officers for approval. However, his defence throughout has been that he never raised any demand of bribe from the complainant in connection with passing of the said bill and the prosecution has miserably failed to prove on record even any such demands made by him from the complainant during any previous meetings or conversations between them. Further, though the accused could not substantiate his defence to the effect that he had telephonically called the complainant to accept the said bill as CC No. 141/15, CBI Vs. H. S. Bhati Page No. 87/90 per rules, but there is no dispute to the submission made on behalf of the accused that a period of one month was available to him for putting of the said bill for approval of the senior officers and the said period was yet to expire before he was apprehended in this case. The defence of the accused that he was got implicated in this case by the complainant only because he was not acceding to his requests for raising the number of labourers is a probable defence.
91. While dealing with the extents of the burden of proof placed upon the prosecution and the defence of an accused, it has been held by the Hon'ble Supreme Court in case titled as Krishna Janardhan Bhatt Vs. Dattatraya G. Hegde, (2008) 2 SCC (Cri) 166, as under:
"34. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is "preponderance of probabilities". Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies."
92. It is also held by the Hon'ble Supreme Court in case titled as Sanjiv Kumar vs. State of Punjab (2010) 3 SCC (Cri.) 330, as under: "20. We cannot lose sight of the principle that while the prosecution has to prove its case beyond reasonable doubt, the defence of the accused has to be tested on the touchstone of probability. The burden of proof lies on the prosecution in all criminal trial, tough the onus may shift to the accused in given circumstances, and if so provided by CC No. 141/15, CBI Vs. H. S. Bhati Page No. 88/90 law. Therefore, the evidence has to be appreciated to find out whether the defence set up by the applicant is probable and true.
23. It has been observed that defence witnesses are often untruthful, but that is not to say that in all cases defence witnesses must be held to be untruthful, merely because they support the case of the accused. The right given to the appellant to explain the incriminating circumstances appearing against him serves a purpose, and cannot be ignored outright. In every case the court has to see whether the defence set up by the accused is probable, having regard to the totality of the facts and circumstances of the case. If the defence appears to be probable, the court may accept such defence. This is primarily a matter of appreciation of evidence on record and no straitjacket formula can be enunciated in this regard."
93. Though, certain other judgments have also been relied upon and referred to by Ld. Defence counsel for the accused on different aspects, but either the same are found to be not much relevant in the given facts and circumstances of this case or any discussion about the same becomes unnecessary in view of the judgments already discussed by this court.
94. In view of the above discussion, it is held that the evidence brought on record by the prosecution is not sufficient to bring home the guilt of the accused for the above said offences beyond reasonable doubts and the accused is, therefore, acquitted of the above charges framed against him giving benefit of doubt. A personal bond in the sum of Rs. 1,00,000/ with one surety of the like amount, alongwith the proofs of addresses and photographs of the accused and CC No. 141/15, CBI Vs. H. S. Bhati Page No. 89/90 surety, has been furnished on record by the accused in terms of the provisions contained U/s 437A Cr.P.C. and it shall remain valid for a period of six months from today, as provided under the said Section. The accused is further directed to appear before the Hon'ble High Court in case a notice of the appeal, if any, filed by the prosecution/CBI against his acquittal by this court is received by him.
95. File be consigned to Record Room, after completing the necessary formalities. The case property be dealt with and disposed of as per law, subject to the outcome of the above appeal or after the expiry of the prescribed period of limitation, in case no appeal is decided to be filed by the CBI.
Announced in open court on 08.09.2016 (M.K. Nagpal) Special Judge (PC Act), CBI08, Central District, THC, Delhi CC No. 141/15, CBI Vs. H. S. Bhati Page No. 90/90